CONSTI I

WEEK 1

• Source of and not exercise of legislative power.

• To estd fundamental or basic or apex organs of govt and administration, principals etc
• Apart from the three the constitution may create other organs also. Eg. Finance
commission and Election commission.
• FRs – Magna Carta of India – sovereign to be subject to the rule of law and
documenting the liberties held by free men- provided rights in anglo-american
jurisprudence.
• America – Bill of Rights, followed british and french people.
• All of this inspired the constitution’s FR.
• Why do we need a constitution?
o Activities and functions of the state and establish certain organs, agents or
instrumentalities which act on its behalf and through which the state can
function and operate.
o Norms to regulate basic institutions.
o Basically, it is the law governing the state
• Consti may be written or non written
o In a Written consti it is the formal source of all consti law, regarded as the
supreme or fundamental law of the land, and it controls and permeates each
institution in the country.
o Obligation of judiciary that consti is not violated, called the guardian and
protector of constitution.
o Courts play more creative role under a written constitution than they do under
an unwritten constitution. They also give meaning to the cold letter of the
consti.
o You need special procedure to amend it.
o More rigourous and complicated than passing an ordinary law and is
characterised as the constituent process as distinguished.
o Parliament does not have unlimited power under a written consti it is
sovereign to the extent that india is a sovereign country and not subject to
external power.
o Indian parliament not sovereign even if it has uncontrolled power to do what it
likes must follow restrictions under the constitution.
o Can do what consti permits and cant do what it prohibits.
• Difference between Constitution and constitutionalism
o Country may have constitution but not constitutionalism. Eg country under a
dictator can have a constitution but not the latter.
o Constitutionalism is a system of governance in which the power of govt is
limited by laws, checks and balances with individual and collective freedom
and rights. Monarchy is the opposite of it.
o Core of it is limitation on the govt.
 o Written consti, indpt judiciary, judicial review, separation of power, doctrine
of rule of law, free elections, accountability and transparency, FRs, federalism,
decentralisation of power are some of the basic principles of constitutionalism.
• Forming the Indian Constitution
o Sub committee on FRs divided FRs into
▪ Justiciable – Pt III
▪ Non Justiciable – Pt IV
o Took 2 years 11 months and 18 days
• Consti as bag of borrowings
o Irish, british, Us, Canadian, German etc.
• Nature of the Indian Constitution
o Federal or unitary
▪ In federal, central govt has power over the entire region and regional
govt has power over its jurisdiction.
▪ Eg. USA, India, Aus etc.
▪ In unitary, one central govt where all power is concentrated and can
delegate power to its agencies as it likes.
▪ Eg. Sri Lanka and Singapore.
▪ India is quasi federal, more unitary features than federal.
• Preamble – Introductory statement which talks about the purpose, philosophy, uses,
aspirations etc of the Act.
o Soul of the indian consti.
o Nehru presented it in front of the assembly called Objective Resolution.
o Drafting committee thought that the essential features and socio political
objectives should be on it.
▪ SOVEREIGN – Independant country that will manage its own internal
matters without external interference.
▪ SOCIALIST – Not the communist meaning but it means to establish a
welfare state.
▪ SECULAR – The state has no religion.
▪ DEMOCRACY – Rule by the people.
▪ REPUBLIC – Head of state elected by people directly or indirectly.
▪ JUSTICE – FRs and DPSPs.
• Social Justice
• Economic Justice
• Political Justice
▪ LIBERTY
▪ EQUALITY
▪ FRATERNITY
o All the last three are to be treated in unity and not as separate items.
o Preamble to be read along with DPSP
• 42nd Constitutional Amendment
o Mini constitution, Socialist, Secular and Integrity were added to the Preamble.
• Features of the Constitution
 o Lengthiest constitution in the world.
o Parliamentary form of govt – President is the head of the state, Real power
with council of ministers whose head is the PM.
o Unique blend of rigidity and flexibility – written and hard to amend but the
process has been done 103 times.
o FRs – cannot make laws violating FRs of citizens.
o DPSPs – non justifiable cant take them to court for not following the DPSPs.
o Federation with strong centralizing tendency. - federal but unitary in
emergency.
o Adult suffrage.
o Independent Judiciary
o Secular state
o Single citizenship unlike USA no need for state citizenship.
o Fundamental duties under Part IVA for citizens.
WEEK 3

• FRs can only be enforced against the state by approaching HC under art 226 or art 32
to the SC.
• Article 12: State includes:
o Govt or parliament of India – Executive and legislature of the union
o Govt and the legislature of each of the states – Executive and legisature of the
states
o All local or other authorities within the territory of India or under the control
of govt of india
▪ Other authorities not defined in the constitution so SC has to define it.
• Actions of bodies under the term state as defined in Art.12 can be challenged before
the courts under Art. 13(2) on the ground of violating FRs.
• Acc to Ambedkar FRs should be binding against every authority and available to all
citizens.
o Basically every authority which has been created bylaw and which has got
power to make laws, to make rules, or make by-laws.
• What comes under State apart from the obvious.
o Authorities: Apart from govt and parliament of Indian and legislatures of
each states. person or body exercising power or having a legal right to
command and be obeyed. Can be a public administrative agency or
corporation having quasi-governmental powers. Wide enough to include all
bodies created by a statute on which powers are conferred to carry out
governmental or quasi-governmental function.
o Local Authorities: Local authorities shall mean a municipal committee,
district board, body of port commissioners or other authority legally entitled
to, or entrusted by the government with, the control or management of a
municipal or local fund
o Other Authorities: An autonomous body may be a statutory body, i.e., a body
set up directly by a statute, or it may be a non-statutory body, i.e., a body
 registered under a general law, such as, the companies act, societies
registration act, or a state co-operative societies act, etc.
▪ SC has developed the concept of an instrumentality of the state. Any
body which can be regarded as an instrumentality or agent of the state
falls under this category.
▪ A public corporation to prevent arbitrary application of power to
people governed by a centre of power, subject to the constitutional
limitation as the state itself.
CASE LAWS
1) Rajasthan Electricity Board v. Mohan Lal
• Respondents 1 and 4 to 14 worked at the disposal of State Electricity board, they didnt
frame its own grades and service conditions, even though they were directed to.
• 1 was transfered to PWD with his lien in The SEB. After three years other
respondents were promoted but 1 wasnt after he was transferred back to SEB.
• 1 contended violation of Art 14 and 16. HC allowed.
• In appeal it was contended that
o 1 wasnt a permanent servant and could not claim to be considered along with
the others.
o The board could not be held as State under art.12.
• Held on Issue 1: Since there were no terms and conditions and he was transferred
from the parent company he could be considered as a permanent employee because of
the language used in his transfer and the old T&C applied which were the ones when
they worked for the state govt and therefore the first respondent was entitled to be
considered for promotion.
• Held on Issue 2: Appellant board is “other authority” within Art.12 as
o It is created by a statute
o Carries out governmental or quasi governmental functions within the territory
of India or under the control of the Government of India.
▪ Cant argue saying commercial activities as even state can take part in
them.
o Not every authority created by statute is other authority under article 12. It is
only those with sovereign power to take rules or regulations and to administer
or enforce them to the detriment of citizens.
o The State electricity board has the power of promoting coordinated
development, suppy, distribution etc and therefore has powers invested by the
State with the power to make rules and regulations thus it falls under “other
authority”.
2) Sukhdev v Bhagatram
• Issue 1: Removal from service contrary to regulations framed under ONGC act, LIC
act and IFC act enables the employees to a declaration against the statutory
corporation of continuance in service or would only give rise to a claim for damages.
• Issue 2: These corporations fall under authorities in Art.12?
• Held
 o A state is an abstract entity. It can only act through the instrumentality or
agency of natural or juridicial persons. Therefore, there is nothing strange in
the notion of the state acting through a corporation and making it an agency or
instrumentality of a state.
o The fact that these corporations have independent personalities in the eye of
the law does not mean that they are not subject to the control of government or
that they are not instrumentalities of the government.
▪ They are instrumentalities as without these the state would run the
businesses.
o The companies mentioned above, Oil and Natural gas commission, life
insurance corporation or industrial finance corporation were conducting
businesses for the benefits of the state and central government which clearly
shows that they were instrumentalities of the state.

3) RD Shetty v Airport Authority

• First respondent invited tenders for putting up and running second class restaurants
and two snack bars at the intl airport bombay with them at least having 5 years
experience.
• Acceptance would rest with Airport director and he had right to reject any without
reasons.
• The director accepted the 4th respondents tender as it paid the most and had a coplete
tender but not 5 years experience.
• 1st respondent demanded evidence and it wasnt provided clearly but it was still
accepted.
• HC rejected appellants petition for 1st respondent accepting the tender.
• SC HELD
o Held that it was arbitrary as the standard and norm wasnt satisfied and
violative of the equality clause in the constitution.
o Same test as Sukhdev v bhagatram that it is an instrumentality of the state and
falls under article 12.
o The powers are vested by The International Airport Authority Act, 1971 and
the relationship between the central govt and the airport is also defined.
▪ The central govt has power to terminate or appoint a member of the
council Intl Airport Authority
▪ The capital needed for running the airport is provided wholly by the
central govt.
o Thus it was held that it was an instrumentality of the state and falls under
the purview of Article 12 and the actions were arbitrary and violative of
art.14.

4) Ajay Hasia v. Khalid Mujib

• Question: Jammu Kasmir regional engineering college, srinagar, registered as a soiety
under the Jammu and Kashmir Registration of Societies Act, 1898 whether a state
under article 12 of the constitution and amenable to writ jurisdiction.
• Held
o The composition of the society is dominated by reps appointed by the central
govt.
o Money provided by the central govt and state govt or by the approval by them
o Rules to be made also need to be checked by state and central govt.
o Accounts for scrutiny also have to be provided to the state.
o Control of the state and central govt is soo prominent that no property also can
be disposed in the society without the prior approval of the state.
o Board also appointed and guided by the state and central govt.
o Therefore the society is merely a projection of the state and central
governments.
o The society is an instrumentality or the agency of the state and the central
government and it is an authority within the meaning of Article 12.
o The SC laid down the following test to check if instrumentality or not:
▪ Share capital held by the government
▪ Finance assistance given by the government is large as to meet almost
entire expenditure.
▪ If it has monopoly status conferred or protected by the state.
▪ Deep or pervasive state control.
▪ If the functions are of public importance
▪ Immaterial if it created under a statute or not to prove instrumentality
under art 12, Inquiry should not be how the juristic person is born but
why it has been brought into existence.

5) ZEE telefilms v UOI (2005)

• Zee telefilms had bid for a tournament which was cancelled by the bcci.
• Contended that the BCCI being recognised by the govt and ministry of sports and
youth affairs was under other authorities.
• Within the meaning of Article 12?
• Board did not have any share capital owned by the govt, no financial assitance etc but
did enjoy a monopoly status in the field of cricket. They were not public functions and
were only regulatory in nature and not related to govt functions. It was an autonomous
body. It was also not dominated by the control of the govt.
• Nature and duties test formed under a previous case to define an authority as state
o Formation of body
o Objects and functions
o Management and control
o Financial aid
 • In finding a state action, the existence or non-existence of state financial aid might be
irrelevant even if the given function is closely related to government or is of public
importance. If it does not state money would not influence the conclusion.
• Monopoly status not conferred or protected by the state.
• They may not be state, they are amenable to article 226.

6) Janet Jeyapaul v. SRM university

• Petitioners services terminated by uni.
• HC held that uni was neither state nor an authority within meaning of article 12 of the
COI
• SC held
o SRM uni is subject to writ jurisdiction of the HC under article 226 of the COI
o SC observed that the SRM university is engaged in imparting education in
higher studies to students at large and therefore it is discharging “public
function” by way of imparting education.
o Deemed uni under Section 3 of the UGC act are made applicable to the SRM
uni then it performs all functions an activities governed by the UGC act alike
other universities then it is an authority under article 12.
WEEK 4

• Article 13 provides for the judicial review of all legislations.

• Art 226(HC) and 32(SC) have that power of reading down a law if it violates FR.
• Art 32 v. Art 226
o 32 is a FR, 226 is a constitutional right
o 32 can be suspended during emergency, 226 cant.
o 32 is only for enforcement of FR, 226 can be for other legal rights as well.
o 32 has applicability all over india, 226 has narrower territorial applicability
• Writ jurisdiction of the SC and HC
o Habeus corpus: in cases of illegal detainment and imprisonment.
o Mandamus: to command to do a statutory duty, not discretionary to a person
or authority who has a duty prescribed by the law.
o Prohibition: To refrain bodies of judicial and quasi judicial bodies from
continuing with any proceeding which is in excess of their jurisdiction.
o Quo warranto: issued directing subordinate authorities to show under what
authority they are holding the office.
o Certiorari: corrective in nature, to lower courts to check if the court had
jurisdiction and if the decision is against the principal of natural justice
• Article 13(1) refers to prefer constitution laws which are inconsistent with the FRs
will be void to the extent to which they are inconsistent.
o Art 13(1) is prospective and not retrospective. Therefore, a pre-constitution
law inconsistent with a FR becomes void only after commencement of the
constitution.
o They are not void ab initio.
 o Any rights and liabilities are not void before the enforcement they are only
void with respect to the enforcement of rights and liabilities in the post-
constitution period.

1) Keshava Madhav Menon v. State of Bombay

• Petitioner was being prosecuted over a pamphlet in 1949. The constitution came into
effect during the pendency of the proceedings.
• Contended that the act under which he was being prosecuted is void under the
constitution because it conferred with art 19(1)(a) and hence proceedings cant be
continued.
• Held
o Art 13(1) could not apply to his case as the offence was committed before the
present constitution came into force and therefore, the proceedings started
against him in 1949 were not affected.
o No FR that a person shall not be prosecuted and punished for an offence
committed before the constitution came into force.
o They became operative only on and from the date of the constitution.
o A discriminatory procedure becomes void after the commencement of the
constitution and so it cannot operate even to enforce the pre-constitution rights
and liabilities.
o Only void to the extent of inconsistency.

2) Bhikaji v. State of MP - Doctrine of Eclipse

• A legal provision enacted in 1948 became inconsistent with 19(1)(g) in 1950.
However it was amended later so as to permit the state government to monopolise any
business.
• SC Held:
o The law inconsistent with the FR was not wiped out all together from the
statute book after the commencement of the constitution as it existed in respect
of rights and liabilities before the commencement of the constitution.
o The law was in a dormant or moribund condition for the time being. Such a
law was not dead.
o Once amended the law would then cease to be unconstitutional and become
revivified and enforceable.
o Can only be applied to pre-consti laws because its voidity was held once the
consti came into force but a post consti law is void a initio as no new rights
and liabilities were formed.

• Doctrine of Severability
o Acc to article 13 law is only void to the extent of the inconsistency or
contravention with the relevant Fundamental right if that part is severable.
3) State of Bombay v. Balsara
• The provincial legislatures had the power to make laws in respect of intoxicating
liquors and under entry 19 of List I the dominion legislature had the power to make
laws with respect to import and export across customs frontiers.
• The constitutional validity of the Bombay prohibition act in so far as it restricted the
possession and sale of foreign liquors was impugned on the ground that it was an
encroachment on the field assigned to the dominion legislature under entry 19 of list
1.
• Held
o Restrictions imposed by the act on possession, sale, use and consumption of
liquor are not reasonable on the FR guaranteed by Art 19(1)(g).
o So far as medical and toilet preparations containing alcohol part is not invalid
but the sections which categorise liqour as wine, beer etc are distinctly
separable items.
o Thus the doctrine of severability was imposed.

• Article 13(2): prohibits the making of law violating FR after consti.

o Any law made after 1950 is dead from the very beginning.

4) State of gujarat v. Ambica mills

• Held
o Reversed the conception, Post consti law which is inconsistent with FR is not
nullified in all cases and for all purposes. The doctrine of absolute nullity is
not a universal rule and exceptions exist.
o Post consti laws which takes away or abridges rights conferred by Article 19
will be operative to non-citizens as FR is not applicable to them.

5) Basheshar Nath v. CIT - Waiver of Fundamental Rights

• Petitioner concealed large amount of income. He agreed to a settlement to pay
monthly instalments of 3L.
• Then the act under which he was convicted became void. The petitioner challenged
the settlement.
• Argued that he had waived his FR while entering into the settlement.
• Held
o It is not open for a citizen to waive his rights like in the USA. These rights
have been put in the constitution not merely for the benefit of the individual
but for the entire public.
o Most people are poor and educationally backward so it is the duty of the court
to protect their rights against themselves.
 • Clause 4 to Article 13 which makes it clear that constitutional amendments shall not
be considered as ‘law’ within meaning of Article 13 and therefore cannot be
challenged as infringing the provisions of pt III of the constitution.

WEEK 5
ARTICLE 14 – Equality before the law or Equal protection of the laws

• Dicey’s rule of law: Dicey’s 3 meanings to the rule of law

o i. Absence of Arbitrary Power or Supremacy of Law.
o ii. Equality before law.
o iii. The Constitution is the result of the ordinary law of the land.

1) The State of West Bengal v. Anwar Ali Sarkar – Creating special courts and
special procedure violative of Art.14?
• Special courts were created for speedier trial of certain offences
• The act laid down a special procedure as well
• Contended by a convict under this procedure that it is unconstitutional
• Held:
o The Section of the act was void as it laid down a procedure which varied from
the CRPC and the act did not classify as to who can be tried by the Special
court.
o The Article does not take away the state’s power to classify persons for the
purpose of legislation but the classification must be rational.
▪ the classification must be founded on an intelligible differentia which
distinguished those that are grouped together from others, and
▪ that differentia must have a rational relation to the object sought to be
achieved by the Act.

2) Kathi Raning Rawat v. Saurashtra - Creating special courts and special

procedure violative of Art.14?
• To control crimes like dacoity The Saurashtra State Public Safety Measures
Ordinance was passed.
• After amendment certain sections allowed state government to constitute special
courts of criminal jurisprudence for such area as may be specified in the notification.
To deal with cases or classes of offences or such eases or classes of cases as the
government may, by general or special order in writing, direct.
• Procedure laid down allowed the special court to try offences under certain sections.
• Contended that this contravened with Article 14
• Held
o Did not contravene Article 14.
o All legislative differentiation is not necessarily discriminatory. No
unfavourable bias when understood in the context.
o It was reasonable to protect citizens from crimes of that kind.
o Differing procedures might involve disparity in treatment of persons tried
under them, such disparity is not in itself sufficient to outweigh the
presumption and establish discrimination.
o Difference between discrimination without reason and discrimination with
reason.

3) Kedarnath Bajoria v. state of west bengal - Creating special courts and special
procedure violative of Art.14?
• West Bengal Criminal Law amendment (Special courts) act, 1949 made special courts
and special procedure for the more speedy and more effective punishment of certain
officials
• Held:
o Discriminatory or not should be decided on a case to case basis no general rule
in such a case.
• Principles laid down:
o Underlying purpose and policy of the act and classifications of the offence
should be studied if its reasonable or arbitrary in nature.
o The classification must be perfectly reasonable and intelligent to the object of
the act.
o Not all cases can be assigned randomly proper classification should be made.
The cases should be allotted by the given standard and in line with the object
of the act.

4) Maganlal Chhaganlal v. Municipal corporation of bombay - Creating special

courts and special procedure violative of Art.14?
• Bombay municipal Corporation Act, as also of the Bombay Government Premises
Eviction Act, 1955, which provided a special procedure for evicting an unauthorized
occupant from Municipal premises and for evicting a person from Government
premises violated Article 14 because it was open to the prescribed authorities either to
resort to the special procedure or file a suit.
• Held: These kinda matters were classified into three heads.
a. A statute providing for a more drastic procedure different from the ordinary
law but covering the whole field covered by the ordinary procedure without
any guidelines as to the class of cases in which either procedure is to be
resorted to.
 b. In such cases as mentioned above if from the preamble and surrounding
circumstances as well as the provisions of the statute, explained and amplified
by affidavits, necessary guidelines could be inferred.
c. Where the statute covers only a class of cases.
• Only the first category there will be violation of Article 14.
• Mere availability of two cases will not by itself vitiate the other or violate Article 14,
as long as the executive is guided in its action under the statutes.

Whether an Act can be declared unconstitutional on the ground of being arbitrary in

nature?

1) Rajbala v. State of Haryana

• Section 175 of the Haryana Panchayati Act restricted people from contesting elections
or holding office, another amendment gave rise to more criterion for disqualification
is mentioned below
a. People who have criminal charges for offences of 10 years imprisonment and
more
b. People who failed to pay arrears to banks or coops.
c. People who have arrears of electricity bills
d. No Educational qualification
e. People not having a functioning toilet.
• Argued that it is violative of Article 14 and unreasonable and arbitrary as there was no
nexus between the criteria and the object to be achieved by the act, no legitimate
purpose, restricted people who can stand for elections under the constitution at the
grassroots level.
• Held: Court examined the act from the perspective of Article 14 and did not wish to
enter into a discussion of the concepts of procedural unreasonableness and substantive
unreasonableness.
• If an enactment challenged as violative of Article 14, it can be struck down only if it
is found that it is violative of the equality clause/equal protection clause enshrined
therein. Similarly, if an enactment is challenged as violative of any of the fundamental
rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it
is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No
enactment can be struck down by just saying that it is arbitrary or unreasonable.
• Court cannot sit in judgement over their wisdom.
• Thus, Court cannot simply declare a statute unconstitutional because it is arbitrary.
• Court checked reasonability and the rational nexus with each criteria mentioned.
a. Court held that passing grade was important as education plays an important
role in decision making and better administration, thus legitimate.
b. Court held that financial stability is important and having debts while
contesting in elections which would be costly and fucked. Thus legitimate.
c. Law makers following the rule and setting an example having a functional
toilet is important and it was legitimate and somewhat served the purpose of
the act.
 • Criticised that this decision gave rise to potential exclusionary effects and elitist
approach of the court.
• The Court upheld the constitutionality of the Act emphasizing the legitimate
objectives behind the criterions.

2) Shayaro Bano v. Union of India

• Bano was going through a lot of ill treatment by husband’s family; abused, drugged
demanded dowry and later was divorce by the triple talaq practice which didnt require
wife’s consent.
• Bano challenged the constitutionality of the triple talaq, polygamy and niqah halala;
act of marrying another husband before marrying the first again.
• She claimed that all of this violated Right to Equality, Right against Discrimination
and the Right to Livelihood and argued all of this wasn’t protected under the Right to
Freedom of Religion.
• Issue:
o Triple talaq essential practice of islam?
o Triple talaq violate any FR?
• Held: constitutional bench gave 3:2 verdict, that it was unconstitutional.
• Majority held that it was manifestly arbitrary though regulated by Muslim Personal
Law Application Act. Concurring judge said what is said to be bad in Quran cant be
good in Shariat, doesn’t make sense.
• Dissenting judges said it is intrinsic part of personal law, protected by article 25.
• But due to the majority it was held that this practice was unconstitutional and had to
be laid down.

3) E.P Royappa v. State of Tamil Nadu – Test of Arbitrariness

• Held: Equality and arbitrariness are sworn enemies; one belongs to the Rule of law in
a republic, while the other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14
• Well settled that what Article 14 strikes at is arbitrariness because an action that is
arbitrary, must necessarily involve negation of equality.
• Doctrine of classification is not paraphrase of Article 14 nor is it the objective. Its just
a judicial formula to determine a legislative or judicial action as arbitrary and denial
of equality.
• Law should be politically correct and constitutionally correct as well.
• In fact, the concept of reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through the whole of the
fabric of the Constitution.
• Reiterated the case of International Airport Authority.

4) Joseph Shine v. Union of India – Adultery judgement

 • Joseph Shine filed PIL under Article 32 challenging the constitutionality of the
offence of adultery under section 497 of the IPC (Punished adultery) r/w 198(2) of
Crpc (Only Husbands can file a complaint for the offence of adultery).
• Issues:
o 497 excess penal provision?
o Exemption to women under 198 (2) violates the right to equality under
the constitution.
• Held: Unconstitutional citing violations of the right to equality under Article 14.
• Section solely focused on penalizing women who engaged in extra marital affairs
without the consent or connivance of their husbands.
• Object was to prevent sanctity of marriage and protect women from being used, it did
not fulfil the objective. Men who took part in extra marital affairs equally harmed the
institution of marriage but not penalized under the section.
• Violative of article 14 as it violated the right to equality clause it found the provision
to be discriminatory against women and treating women as objects.
• Cout criticized the gender stereotypes inherent in the section and concluded that it
constituted an arbitrary and unreasonable classification. Allowed only men to
prosecute and excluded wife from having any power to prosecute.
• Judgement emphasized the importance of gender equality and non-discrimination in
matters relating to personal relationships and sexual autonomy.

Case laws on gender-based discrimination

1) Air India v. Nergesh Meerza – dealt with the constitutionality of regulations 46

and 47 of the Air India employee service regulations.

• 46: Retiring age : 58 years except; for an air hostess upon 35 or upon marriage
if it happens within first 4 years of service or first pregnancy, whichever
comes first.
• 47: Option of MD upon being declared medically fit may be extended to only
one year at a time beyond the age of retirement for an aggregate period not
exceeding 2 years and 10 years for air hostess and 5 years for receptionists.
• Issue: 46 and 47 violative of Article 14, 15 and 16?
▪ Whether discretionary powers under regulation 47 be deemed as
excessive delegation or arbitrary?
• Held:
• Article 14 Test: It is undisputed that what Art. 14 prohibits is hostile
discrimination and not reasonable classification. If equals and unequals are
differently treated, there is no discrimination so as to amount to an infraction
of Art. 14 of the Constitution. A fortiori if equals or persons similarly
circumstanced are differently treated, discrimination results so as to attract
the provisions of Art. 14.
• Court acknowledged that there were differences in the nature of work between
Air hostesses and the male workers, qualifications, promotional avenues and
 salary between male and female employees. There was reasonable
classification on the ground of sex based on these differences.
• The court considered this differential treatment to be a result of compliance
with the UK laws and not intentional discrimination.
• Retirement on marriage and pregnancy and was reasonable as it promoted
family planning and health of women. However retirement upon first
pregnancy was deemed arbitrary and unreasonable as it lowered the status of
women and was discouraging them from giving birth. Retirement age of 35
also was arbitrary as there was no reason why women couldn’t work for
longer.
• The authority and delegation of the MDs to extend service was arbitrary and
excessive unreasonable power and was thus violative of Article 14.

2) Anuj Garg v. Hotel Association of India

• Section 30 of the Punjab excise act prohibiting employment of women in hotels and
bars serving liquor as violative of gender equality and therefore ultra vires of Art 14,
15 and 19.
• Govt justified the law on the grounds of security of women and the consequences of
liquor on men and the vulnerability of women.
• Held: A two judge bench found it violative of gender equality and discrimination
based on sex and therefore violative of Art.14. Personal freedom is a fundamental
tenet.
• Privacy rights prescribe autonomy to choose profession whereas security concerns
texture methodology of delivery of this assurance. State protection must not translate
into censorship.
• Stereotype morality and conception of sexual role displayed by the legislation in
question.
• Instead of prohibiting women employment in the bar altogether the State should focus
on functioning the ways through which unequal consequences of sex differences can
be eliminated.

3) National Legal Services Authority v. Union of India

• The petitioners, representing the transgender community, highlighted the pervasive

discrimination faced by transgender individuals in various aspects of their lives.
• The WP sought a legal declaration recognizing the right of transgender persons to
choose a gender identity different from the one assigned to them at birth.
• Non recognition was argued to be violative of their rights under Article 14 and 21 of
the constitution.
• Held: Article 14 of the Constitution applies to all "persons" and guarantees equal
legal protection to everyone, regardless of their gender. The court held that it imposes
a positive obligation on the state to ensure equal protection for transgender
individuals.
• The court recognized that both biological and gender aspects of sex are protected by
Articles 14-16 of the Constitution. It acknowledged that the transgender community
has been systematically denied rights.

4) Indian Young Lawyers Association v. State of Kerala & ors.

• IYLA filed a PIL challenging the sabarimala temple’s prohibition of women from the
temple premises.
• Violates right to equality under Art.14 as the practice is derogatory to the dignity of
women.
• Exclusion of female devotees violates freedom of religion under art.25.
• Held: 4:1 majority held the practice as unconstitutional. Struck down 3(b) of the
Kerala Hindu Places of Public worship rules, 1965.
• Violated FR of women aged 10 to 50 years.
• Custom was not an essential religious practice.
• No comments regarding Art 14. But discriminatory under Art.15.
• Right against untouchability under Art 17 is vast and includes any kind of social
exclusion based on notions of purity.

5) Sectretary, Minister of Defence v. Babita Puniya

• 86 petitioners alleging gender based discrimination in the army where women

officers were given short service commission and no permanent commissions.
• Delhi HC in 2010 allowed Women SSC officers to serve beyond 14 years
• Held: The union’s argument that women officers may face challenges related
to pregnancy, motherhood and soldier life was based on gender stereotypes,
assuming that domestic responsibilities solely rested with women and
perpetuating the notion that women were the weaker sex
• Arguments like change of behaviour of men around women and over
burdening on women officers should not hinder the granting of permanent
commission.
• The government agreed to a three stage assessment for granting PC to female
officers.
• SC held that the policies to grant permission for women officers constituted
systematic discrimination.
• Indirect discrimination, the judgment lays out that substantive equality must
be understood in the context of discrimination that occurs in a system that has
an entrenched power hierarchy.

6) Colonel Nitisha v. UOI

• Now the criteria with which PC was granted after the Babita Puniya judgement.
 • The fitness criteria included scoring higher than the lowest-scoring male officer who
had previously been awarded a PC.
• These criteria resulted in women officers being ineligible for PCs for many years. The
petitioners contended that these seemingly neutral criteria indirectly discriminated
against women officers.
• Held: Formal equality v. Substantive equality: The court distinguished between
formal equality and substantive equality. Formal equality treats everyone alike,
irrespective of their circumstances, while substantive equality requires a deeper
understanding of equality and discrimination.
• Indirect discrimination: Unconscious bias in existing structures, unfair treatment
regardless of intent.
o Statistical evidence can be used to show the same.
o Fraser v. Canada test: (i) whether there is a disproportionate effect on a
particular group, and (ii) whether the law reinforces, perpetuates, or
exacerbates disadvantage.
• Thus court found that the parameters were discriminatory on several counts.
Benchmarking against lowest scoring male officers was discriminatory and on
attaining a 60% they should be granted PC.
• Fitness test scores to be taken at time of 10 or 14 years only and not medical
requirements which put women at disadvantage.
• Annual confidential reports need to prepared keeping women officers in mind.

Affirmative action and Reservation in the Indian Constitution

• Objective of reservation to SCST and OBC not only to give jobs but to empower them
in decision making process of authorities and state.
• Article 16 and 335 have direct bearing on reservation in services.
• Article 46 promotes special care of the educational and economic interests of the
weaker sections of the people and in particular the SC ST and prevent them from any
kind of social injustice and exploitation.
• OBC under NCBC act (National commission for backward classes) means backward
classes other than the SC, ST as may be specified by the Central Government in the
lists.
• Article 16(4) enables the state to make reservation of appointments or posts in favour
of any backward class of citizens which in the opinion of the state, is not adequately
represented in the public services under the state.
• Backward classes not equal to backward caste or communities.
• To determine backward class a test solely based on caste, community, race, religion,
sex, descent, place of birth or residence cannot be adopted as it would be violative of
Article 16(2).
• Article 16(4) is merely an enabling provision and confers a discretionary power in the
state to reserve posts in favour of backward classes of citizens. Balance needs to be
struck between individual rights under Article 14 and 16(1) where affirmative action
needs to be taken by the state.
• Mandal commission to investigate conditions of socially and educationally backward
classes.
• In 1990, the report was used to give 27% reservation for the socially and
economically backward classes.
• In 1991, two modifications were made
▪ Poorer sections to get more preference
▪ 10% vacancies to be reserved for other economically backward classes
not covered under existing reservation scheme.

1) Indra Sawhney v. UOI

• Case pertained to reservation to OBC in central govt jobs. Memorandum

passed based on recommendations of the mandal commission to provide for
jobs.
• Validity of these reservations was challenged.
• Held: Court held that caste cannot be the sole basis for reservation, but it may
be a dominant factor as castes constitute social classes in India. Art 16(4) aims
at identifying socially and educationally backward classes rather than
individuals. Once a caste satisfies the criteria of backwardness then it becomes
a backward class for purposes of Art 16(4).
• Backward classes under 16(4) not same as socially and educationally
backward classes as in 15(4).
• Creamy layer: economically and educationally well-off individuals among the
OBCs should be excluded from the reservation list. This concept doesn’t apply
to SC/ST as they face substantial marginalization regardless of economic
status.
• Article 16(4) is not an exception to Article 16(1) but should be interpreted to
balance the various provisions.
• Reservation quota should generally not exceed 50% in anyone year, except in
exceptional circumstances. 16(4) is adequate representation and not
proportional representation.
• Reservations based on solely on economic criteria, without considering social
and educational backwardness, are not permissible under Article 16(1).
• The court upheld the concept of horizontal reservation, which provides
reservation for specific disadvantaged groups such as children of veterans in
the armed forces, disabled persons, widows, unmarried women, and people
from rural areas, as provided under Article 15(3).
• Reservation not to apply in promotions and 16(4) only allows entry into state
service.
• Rejected the reservation of 10% posts in favour of other economically
backward classes, not covered by any existing schemes of reservations.
• th
77 amendment, 16(4A) was added.
• 81st amendment 16(4B) was added.
2) M. Nagarajan v. UOI

• Challenged validity of amendments to Article 16(4-A), 16(4-B), and the proviso to

Art 335, which introduced reservation in promotion for SC/ST categories along with
consequential seniority, carry forward of backlog vacancies and relaxing qualifying
conditions.
• Held: Court held that in order to provide reservation for promotion under Article 16,
State must demonstrate compelling necessity based on data pertaining to
backwardness, lack of representation in services and overall efficiency. The court held
the constitutionality and said the consequential seniority is part of the service
jurisprudence and does not undermine the core value of equality.
• Where vacancies from previous years were filled by members of the respective
reserved categories. This did not violate the 50% ceiling on reservations and a
distinction must be made between current vacancies and carry forward vacancies, but
the court stressed on the need to not carry forward posts indefinitely.
• Creamy layer principle to be applied while giving promotions so that the benefits of
such reservation reach the most disadvantaged sections.
• While the Indra Sawhney case upheld reservations based on caste, the M. Nagarajan
case emphasized the need for compelling necessity, data-driven backwardness, and
overall efficiency as essential considerations for providing reservation in promotions.

3) Jarnail singh v. Lachhmi narain gupta

• Various states along with the centre challenged the Nagaraj judgement.
• Unjustly difficult acc to that decision to grant reservation in promotions.
• Asked the court to review the three controlling conditions in nagaraj.
• Held: In nagaraj the SC had held that the state must collect quantifiable data to
demonstrate the current backwardness of the SC/ST been granting reservations in
promotions.
• However, for further backwardness Indra Sawhney to be followed finding of
backwardness based on data specifically with SC/ST as it is assumed.
• Creamy layer principle to not only apply to OBC but also to SC/ST.

4) Ram Singh v. Union of India

• Case involved the inclusion of the Jats community in the Union Socially and
Educationally Backward Classes list in several states.
• NCBC suggested Jats should not be included in the SEBC list. However, Union
Government did not bind with it and went on to add as NCBC suggestions not binding
to the Union.
• Held: The court held that in this case it was ignored without sufficient grounds and
without appropriately considering the social backwardness of the Jats community.
• Data used to demonstrate inadequate representation of the Jats was a decade old and
the court said that the use of outdated data cannot be relied upon to determine
inadequate representation.

5) Jaishri Laxman Rao Patil v. Chief Minister.

• Case challenged the validity of the Maharashtra SEBC Act which granted reservation
to the Maratha community in public employment and education
• Maratha community socially and educationally backward?
• Held: Ensuring adequate representation more important than proportionate
representation.
• Maratha community not socially or educationally backward and already had sufficient
representation.
• Both HC and commission exceeded the 50% limit and this did not meet the criteria
for an extraordinary case.
• Now only union governments to create SEBC list and not state after the 102nd
amendment.

6) Janhit Abhiyan v. UOI

• 103rd Constitutional amendment allowed the state to make special provisions for the
economically weaker sections. 15(6) and 16(6).
• Issue: does this amendment breach the basic structure of the constitution by
permitting the state to make special provisions based on Economic criteria.
• Can it exclude SEBCs, OBCs, SCs & STs from the scope of EWS reservation.
• Can the cap of 50% referred to in earlier decisions of the SC be considered to be a
part of the basic structure of the constitution?
• Held: The argument that reservation is only reserved for SEBCs, OBCs, SCs & STs
and can only raise poverty alleviation schemes for EWS and not reservation is not
valid with the constitutional scheme.
• This challenge fails on the principle of distributive justice where the constitution
promises us of Justice and Fraternity.
• Affirmative action by the government for the socio-economic justice of EWS who
werent given benefits cannot be interfered with.
• These sections are for the EWS, SC/ST have already been availing benefits under
15(4), 15(5) and 16(4) cannot raise the grievance when another class of people have
been excluded.
• The ceiling of 50% is not inflexible for all times to come, its modulation will not
damage the basic structure of the constitution.
• Dissents of Bhat and UU Lalit
 o The appropriate test or standard of judicial review of constitutional
amendments is not the same as in the case of ordinary laws; the test is whether
the amendment challenged destroys, abrogates, or damages the “identity”, or
“nature” or “character” or “personality” of the Constitution, by directly
impacting one or some of the “overarching principles” which inform its
express provisions.
o Principle of equality is one of the most important fucking with that will fuck up
the entire structure of the constitution.
o Provision for affirmative action was an intrinsic part of the framework and
value of equality.
o The application of the doctrine classification differentiating the poorest
segments of the society, as one segment (i.e., the forward classes) not being
beneficiaries of reservation, and the other, the poorest, who are subjected to
additional disabilities due to caste stigmatization or social barrier based
discrimination – the latter being justifiably kept out of the new reservation
benefit, is an exercise in deluding ourselves that those getting social and
educational backwardness based reservations are somehow more fortunate.
o Thus cant keep SC/STs out of it as the poorest are mostly from there.
o SC/STs who fall under EWS also mostly are not allowed to avail these new
benefits even thought they fall under EWS definition only bc they are loaded
with benefits.
o Article 16 is to ensure barrier free equal opportunity in regard to public
employment.
o Introduction of EWS is not premised on their lack of representation like OBCs.
The absence of these are basically people who benefit from this are forward
classes which are being represented well.
o The impugned amendment results in treating those covered by reservations
under Article 16(4) with a standard that is more exacting and stringent than
those covered by Article 16(6).

ARTICLE 19 – Protection of certain rights regarding freedom of speech along with

a. Freedom of speech and expression

b. To assemble peacefully w/o arms
c. To form associations and unions
d. To move freely throughout the territory of India
e. To reside and settle in any part of the country
f. -
g. To practice any profession, or to carry on any occupation, trade or business.

2) With reasonable restriction law can be passed in the interest of security of state,
friendly relations with foreign countries, public order etc to curtail freedom of
speech.
• None of these rights under Article 19(1)(a)-(g) are absolute and are subject to
restrictions in clauses 2-6.
1) Romesh Thappar v. State of Madras

• Publisher of the weekly magazine crossroads, published artices that questioned

government’s public policies esp the foreign policy.
• Resulted in suspicions among the public and communist movements in madras.
• Government imposed a ban on the circulation of the magazine.
• Issue: Whether the ban imposed was violative of 19(1)(a).
• Held: Court held that the ban violated the fundamental right to freedom of speech and
expression. Freedom to propagate ideas, opinions and viewpoints on matters of public
concerns and the freedom of the press are an essential component of a democratic
society.
• Court saw the legislation which was the basis for the ban and declared it
unconstitutional as it fell outside the permissible limits of restrictions under Article
19.
• Doctrine of severability – entire legislation not void, would only be null and void to
the extent of its inconsistency with the fundamental rights.
• Emphasized how Article 32 allows for the enforcement of FR.

2) Sakal Papers v. UOI

• Sakal papers published a daily edition with 40% for ads and the rest for news, articles,
views etc.
• Press commission appointed by the government of India to investigate press related
matters based on recommendations.
• Newspaper (Price and Page) Act 1956, which linked pages to price and restricted
number of ads.
• Another order was introduced which further prescribed the max no of 2 pages for a
fixed price.
• Sakal papers along with a few other filed a WP challenging the constitutionality of the
order and the act.
• Issue: Whether the right to publish a newspaper and its circulation fall under the right
of freedom of speech and expression guaranteed under Article 19(1)(a)?
• Held: The Newspaper act and Newspaper order were unconstitutional
• Freedom of speech and expression not only includes freedom of circulation but also
encompasses the volume of circulation.
• Real intent was not to regulate price but to disproportionately raise the price to print
certain newspapers.
• Regulation of ad space directly affects the price of the newspaper leading to less
circulation.
• This was not in interest of general public either and even if it was cant do it by
curtailing other people’s rights.
 • Even if ends pursued are legitimate but the means are not then must be struck down as
unconstitutional.

3) Kedarnath singh v. State of Bihar

• Section 124A deals with sedition and Section 505 of the IPC deals with statements
conducing to public mischief
• The main question is whether these sections become void under Article 19(1)(a).
• Held: The provisions of the sections read as a whole, along with the explanations,
make it reasonably clear that the sections aim at rendering penal only such activities
as would be intended or have a tendency to create disorder or disturbance of public
peace by resort to violence.
• If only the words written or spoken have the ability to cause public disorder or
disturbance of law and order that the law steps in to prevent such activities in the
interest of public order.
• Strikes perfect balance between maintaining public order and individual fundamental
rights.
• Can criticize and comment but cannot incite people to violence and create public
disorder.

4) Bennett Coleman v. Union of India

• The government imposed various restrictions on newspapers through the Newsprint

Control Order, Import Control Order, and Import Policy for Newsprint.
• These restrictions included limits on the number of pages in newspapers, no
interchangeability between editions or papers of the same ownership unit and
limitations on starting new newspapers or editions withing the allocated newsprint
quota.
• Held: These restrictions were unconstitutional as they violated Article 19(1)(a) and
Article 14.
• They weren't control measure they had the effect of controlling newspapers
themselves.
• Excessive and prohibitive burden which would restrict circulation of newspapers will
not be cured by Article 19(2).
• They wanted to regulate, circulate, advetise and grow the newspapers.
• Freedom of press is both qualitative (in content) and quantitative (in circulation).
• Essence and effect of the restrictions rather than purpose and form should be
considered.
• Page limit had no rational basis and treated unequally situated newspapers equally.
• Freedom of circulation allows newspapers to adjust and circulate within allocated
quota
• Restriction on common ownership units were upheld, allowing adjustments within
different editions.
5) Shreya Singhal v. Union of India

• Use of 66A (sending offensive messages through communication service; false news,
causing annoyance, inconvenience, danger, obstruction, insult, injury, deceive etc) - A
was arrested by police for posting a tweet which was said that finance minister’s son
had amassed illegal wealth
• A cartoonist was charged with cyber cell of the mumbai police under Section 124A
and 66A of the IT act that mocked parliament and corruption on his website and
Facebook page.
• A professor was arrested for circulating emails that mocked chief minister.
• Petitioners challenged the constitutionality of Section 66A along with several other
provisions, 69A, 79(3)(b) etc were also examined.
• Held: 66A of the IT act was unconstitutional and struck down the entire provision.
• Free speech can take the form of discussion, advocacy and incitement.
• Only when it reaches the level of incitement to cause violence it needs to be restricted.
• The court noted that the restriction under 66A did not have the proximity or nexus to
cause public disorder.
• Anticipated danger should not be far-fetched but must have a reasonable connection
with the expression.
• Something offensive and annoying may not necessarily be defamatory.
• This section had vague terms like annoying, inconvenient, grossly offensive and
lacked clarity and precision and did not provide notice as one should under criminal
law.
• These vague definitions could lead to self censorship as individuals fearing legal
consequences would not post shit.
• Actual knowledge of the crime is when the intermediary fails to remove after
receiving a court order specifically directing them to do so.

6) Anuradha Bhasin v. Union of India

• P sought a WP directing the respondents to immediately restore all modes of

communication throughout J&K to enable the media to practice its profession.
• Argued that curtailment of internet was restrictive of freedom of speech and
expression.
• Purpose of this was to ensure that the situation on ground would not be aggravated
from outside the country.
• Argued that freedom of free speech related to newspapers cannot be given to internet
as the former is a one way communication while the latter is a two way
communication.
• Issue: Denial of internet access lead to violate any FR? and access to the Internet
ever be blocked and if so under what circumstances?
• Held: Freedom of speech and expression through the medium of internet is an
integral part of Article 19(1)(a) and accordingly any restriction must be under Article
19(2).
 • Freedom of trade and commerce is also protected under 19(1)(g) and through the
medium of internet subject to the restrictions provided under 19(6).
• Doctrine of proportionality: possible goal of intended restrictions must be determined
such goal must be legitimate and before setting it the authorities must consider any
alternative mechanisms in pursuance of the said goal.
• The authority to should weigh the circumstances and implications of the same and
only the least restrictive measure can be resorted to by the state.
• If the order has implications to FR then the same should be supported by sufficient
material and be amenable to Judicial review.
• Degree of restriction and the scope must be in relation to what is necessary.
• There is merit in the contention that the internet could be used to propogate terrorism
and the govt should consider various options under Article 19(2).
• Restriction to Freedom of speech and freedom to practice any profession through the
internet should be in line with 19(2) and 19(6).
• Suspension of internet for temporary time only and should pass test of proportionality.

Analysis
• Good
▪ Proportionality standard. The judgement sets a standard of
proportionality where the legitimate aim, alternatives should be
weighed and only what is necessary should be implemented.
▪ Procedural safeguards into telecom suspension rules.
• If done must be made publicly to make the rules with principles
of natural justice
• Specified temporary time only if suspended.
• Review committee must review the orders every seven working
days
▪ Laid down the importance of the internet.
▪ Government cannot cite lack of technical ability as an excuse.
• Bad
▪ No direction for restoration of communication services in Kashmir
• The still did not direct the government to restore all telecom
services in Kashmir.
▪ Reasonable restriction can also mean complete prohibition
• The Court has held that reasonable restrictions under Article
19(2) can extend to complete prohibition of speech in certain
circumstances.

ARTICLE 21 – PROTECTION OF LIFE AND PERSONAL LIBERTY

• Only according to procedure established by law

• Couched in negative language, but source of many rights
• Includes
o Right to livelihood – Olga tellis
 o Right to live with dignity
o Right against custodial violence – sunil batra
o Right to speedy trial
• Due process of law was supposed to come, as in the USA but this would give a lot of
powers to courts.
• Hence was replaced by procedure established by law
• This was criticized people thought that now judges wont look into the law and provide
discretion. Whereas other few believed that this wont stop the judiciary.
• Article 22 was also inserted which prevents against arbitrary arrest and detention.
• This was influenced by the American experience.
• Firstly it was believed that once a law was enacted by the state, Article 21 could not
have said to be infringed.
• Maneka Gandhi majorly changed this post emergency where the court had failed to
protect the right of the people.

1) Maneka Gandhi v. UOI

• The court in AK gopalan held that the FRs operate independently, and a law
restricting life or personal liberty only had to be passed by the legislature.
• In this case the court departed from such a strict interpretation and emphasized the
interconnectedness of fundamental rights.
• Passport of petitioner was impounded.
• Government decided that in the interest of the public do not furnish her a copy of the
statement of reasons for making that order.
• Petitioner moved the court.
• Held: Fundamental rights conferred by Part III are distinct and mutually exclusive
rights.
• The fundamental rights do not exist in isolation
• Each right has freedom in different dimensions. Only because limits of interference
with one freedom is satisfied, the law is not freed from the necessity to meet the
challenge of another guaranteed freedom.
• Shift to procedural due process: The court moved from the concept in AK gopalan,
mere legislation was no longer sufficient; the procedure under the law restricting the
rights must also be fair, just and reasonable.
• Personal liberty under Article 21 has widest implications and it is used to raise the
status of distinct FRs and give additional protection under Article 19.
• Mere prescription of some kind of procedure as in the Passports Act cannot ever meet
the mandate of Article 21. The said procedure has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary.
• The process in the procedure must answer the test of reasonableness under Article 14.
• If its not right, just, non arbitrary, fanciful or oppressive, it would be no procedure at
all and the requirement of Article 21 would not be satisfied.
• Golden triangle
 o Freedom falling under Article 19, i.e reasonableness test, the non arbitrariness
test of 14 and the requirements of Article 21 must all be satisfied.
o For freedoms falling only under Article 19 and 21: non arbitrariness test of
Article 14 and the requirements of Article 21.

2) Sunil Batra v. Delhi Admn.

• One prisoner was challenging his solitary confinement while the other challenged the
SI who put him into bar fetters for an unusually long period.
• Acc to the Prisons Act, the death row prisoner will be confined in a cell apart from all
other prisoners.
• Held: The court struck down the practice of keeping death row prisoners in solitary
confinement, emphasizing the right to live with human dignity even in prison.
• Confinement in a cell apart doesnt mean solitary confinement.
• Use of bar fetters should only be allowed in exceptional circumstances, depending on
the specific circumstances of the prisoner. Length of sentence is irrelevant.
• Handcuffing should only be used in exceptional circumstances it goes against the
right to a dignified life.
• The court did not strike down the provision but interpreted it in a manner giving right
to live with human dignity even to prisoners.

3) Francis Coralie Mullin v. Administrator Union terriotry of Delhi

• Petitioner under Conservation of Foreign exchange and prevention of smuggling

activities was detained for possessing drugs.
• Those detained under this face more stringent prison rules, including limited meeting
with friends and family and restricted access to lawyers.
• Held: Preventive detention is an anticipatory measure where a person is detained
based on suspicion of committing a future crime, while punitive is for those who have
already committed a crime. Differentiating between the two is necessary.
• Even during preventive detention laws the principles of Article 21 must be upheld and
they have to be fair, just and reasonable.
• Fundamental rights do not evaporate once a person has been detained. The right to life
includes the right to live with dignity.
• Right to life includes right to socialize every now and then with friends and family.
Detainees should have atleast two interviews per week and should be allowed to meet
with their lawyers at any reasonable hour, w/o mandatory presence of a customs
officer and not within hearing distance.

4) Olga Tellis v. Bombay Municipal Corporation

• There was a challenge to the eviction of pavement and slum dwellers by the municipal
corporation of bombay under BMC act. The provision allowed the commissioner to
remove objects or structures on the streets without notice.
 • The court addressed the issue of the right to livelihood as an integral part of the right
to life.
• Held: Right to livelihood is an integral part of right to life.
• But the Constitution does not put an absolute embargo on the deprivation of life or
personal liberty. By Article 21, such deprivation has to be according to procedure
established by law.
• Court acknowledged that no absolute prohibition on the deprivation of life or personal
liberty, but certain safeguards must be in place.
• Court upheld s.314 noting that pavement dwellers do not have a right to encroach on
public property. However, power of eviction without notice should be presumed to be
used only in limited circumstances where delay cannot be tolerated.
• The court established right to a hearing and right to rehabilitation under existing
schemes
• A one month embargo on eviction, alternative pitches to the pavement dwellers and
protecting slums which exist for 20 years or more unless the land is required for a
public purpose.
• Courts have generally been deferential to the state and have not always insisted on
providing alternative accommodation unless there is an existing resettlement and
rehabilitation scheme.

• Maneka gandhi gave new understanding of Fundamental Rights and gave new
liberties in Article 21 and used DPSP to inform the content of Article 21.
• With the advent of PILs matters that were considered within the exclusive sphere of
executive or legislative were now before courts
• PILS are collaborative effort between citizen, state and the court where procedure had
to be relaxed to give relief.
• Judges committee of experts as well to advise the court on a course of action.

5) Bandhua Mukti Morcha v. UOI

• Organisation to the cause of release of bonded labourers in the country

• The system of a person providing labour to someone to clear a debt is incompatible
with new egalitarian socio-economic order which we have promised to build and it is
not only an affront to basic human dignity but also constitutionally invalid
• A significant number of children were being abducted from Bihar and employed in
the industry. The exploitation of these children involved their employment at a young
age, below 14 years, and subjected them to physical abuse
• Held: Court abolished child labour in this case.
• Violation of art 21 and art 23 of the constitution. Right to life encompasses a right to
live with human dignity free from exploitation.
• Article 21 derives its life breath from the DPSP Art 39, 41 and 42.
 • the Constitution-makers never intended to fetter the discretion of the Supreme Court
to evolve a procedure appropriate in the circumstances of a given case for the purpose
of enabling it to exercise its power of enforcing a fundamental right.
• When the poor come before the Court, particularly for enforcement of their
fundamental rights, it is necessary to depart from the adversarial procedure and to
evolve a new procedure which will make it possible for the poor and the weak to
bring the necessary material before the Court for the purpose of securing enforcement
of their fundamental rights.
• Government and officers must welcome PILs.
• Court directed the state to eliminate and devise strategies against child labour
• Compulsory education was mandated for all children employed in mines, factories etc
• Court emphasized on the provision of nutritious food and regular health checkups for
these children
• Court demanded progress reports for the same.

6) Navtej Singh Johar v. UOI

• Prior to this in the suresh koushal case 377 was held to be constitutional.
• the court said that in last more than 150 years less than 200 persons have been
prosecuted (as per the reported orders) for committing offence under Section 377 IPC
and this cannot be made sound basis for declaring that section ultra vires the
provisions of Articles 14, 15 and 21 of the Constitution.
• In this case the court HELD: The purpose of having a constitution is to transform the
society for the better. This concept of transformative constitutionalism is the ability of
the constitution to adapt and transform from time to time.
• Under Right to Life dignity is encompasses and it is the constitutional duty to allow
him to behave and conduct himself and allow one to express themselves with the
consent of the other.
• The collective at large holds the duty to protect this dignity.
• Tainting the individualism of a person as a crime would violate the individual’s right
to mere letters without any spirit.
• Individual autonomy is a compartment of privacy the individual has sovereignty over
his/her body and their intimacy in privacy is a matter of their choice.
• Privacy is intrinsic to liberty, central to human dignity and the core of autonomy.
These values are integral to the right to life under Article 21.
• Denial to right to sexual orientation is a denial to right to privacy.
• Right to privacy enables an individual to exercise his autonomy away from the glare
of societal expectations.
• Article 21 does not only impose negative instructions to the state to not interfere with
one’s right to health. The court also has the obligation to provide resources and
treatment facilities to secure effective enjoyment of the right to health.
• Rights of an individual not to be prejudiced by popular notions of society.
 • Thus S.377 prevents LGBT from leading a dignified life and have the right to sexual
autonomy.
• Right to privacy extends to the right to make fundamental personal choices, including
those relating to intimate sexual conduct, without unwarranted State interference.

7) KS Puttaswamy

• Right to privacy is an intrinsic part of the right to life.

• This court in this case placed privacy at the heart of self-determination of dignity,
autonomy and liberty.
• Privacy recognises the autonomy of the individual and the right of every person to
make essential choices which affect the course of life. In doing so privacy recognises
that living a life of dignity is essential for a human being to fulfil the liberties and
freedoms which are the cornerstone of the Constitution.
• Privacy is the ultimate expression of sanctity of an individual. Constitution should
protect the rights of the individual’s self-determination.
• Concern of privacy arises when state seeks to intrude into the body of the subjects.
• Three aspects of privacy
o Invasion relating to physical body. Eg. Moving freely
o Informational privacy
o Privacy of choice.
• An individual has autonomy over fundamental personal choices and control over
dissemination of personal information which may be infringed through an
unauthorized use of such information.
• The right of privacy is a fundamental right. It is a right which protects the inner
sphere of the individual from interference from both State, and non-State actors and
allows the individuals to make autonomous life choices.
• An invasion of privacy must be in accordance to a procedure which is fair, just and
reasonable. It must meet the threefold requirement
o There must be a law in existence to justify an encroachment on privacy.
o There must be a legitimate state aim which doesnt suffer from state
arbitrariness.
o Means adopted by the legislature need to be proportional to the object sought
to be fulfilled by the law. doctrine of proportionality
▪ Goal of restriction must be limited
▪ Must be necessary
▪ Alternatives measures to be considered
▪ Least restrictive measure to be taken
▪ Open to judicial review.

Right to Freedom of Religion

 • 25(1) - Freedom of conscience and the right to freely profess, practice and
propagate religion.
• 25(2) Exemptions to freedom of religion and what the state can make laws on
• 26 – Freedom to manage religious affairs
• The Constitution does not envisage a complete separation between the State and
religion. The ability of the State to intervene in any purportedly secular affair of a
religion, as had been the norm for several centuries, was seen not as antithetical to
secularism, but as necessary for guaranteeing a more egalitarian society.

1) Commissioner v. Lakshmindra Swamiar

• A commissioner was appointed to the management and administration of a religious

estate.
• The law passes which instated the commissioner had both secular and religious
aspects.
• Issue: Such a law constitutional and in accordance with the religious freedom
guaranteed under the Indian Constitution?
• Held: Constitutional but with certain limitations
o The court had to differentiate between which aspects of the law were
regulating secular aspects and which were regulating religious aspects.
o Management of property by the commissioner was constitutional but
interference with religious aspects like entering temple whenever he wanted
was not.
o Relationship between 26(b) and 26(d) and concluded that the management of
the religious property fell under 26(b).
o It is important to differentiate between what was an essential religious practice
and what was secular activities and the latter could have interference in
accordance with 25(2)(b) but not the former.
o What is essential religious practice can be ascertained with reference to the
doctrine of that religion, only because there is expenditure of money and
employment of priests would not make them secular activities.

2) Commissioner of Police v. Acharya Jagdishwaranand Avadhuta

• A writ petition was filed to allow the ananda cult to perform tandava dance.
• Petitioner pleaded that this has been practiced and performed for more than three
decades. It was first introduced in 1966, so it was prevalent for like 16 years.
• Claimed that the tandava dance was an essential part of the religious rites both in
private and public and interference with the same will infringe rights given by Art 25
and 26.
• Held: Ananda cult was a religious domination as it passed the test of the three
following conditions
 ▪ Collection of individuals who have a system of beliefs or doctrines
which they regard as important to their spiritual well-being and is a
common faith
▪ Common organisation
▪ Distinctive name
• Courts have the power to determine if a particular rite or practice is essential by the
tenets of a particular religion.
• Ananda cult was recent and tandava dance was more recent it is more doubtful as to
whether in such circumstances it can be taken as an essential religious practice,
especially in public.
• No justification in writings either
• In a second round of litigation it was claimed that the tandava dance in public and
book was cited where it said it was essential commissioner gave permission to
perform the same without knife, live snake, trident and skull.
• What constitutes as essential needs to be determined with reference to religious
material and history
• Essential means those practice that are fundamental to follow a religious belief.
• Test of essentiality: Nature of the religion will be changed without the part or
practice?
• Only such permanent essential parts are protected by the constitution.
• Removal of Tandava dance doesnt change nature as the cult was founded without this
practice and ran for ages.
• Religions cannot alter their essential practices to circumvent court decisions.

3) Ismail Faruqui v. Union of India

• Contended that acquisiton of a mosque violates the right under 25 and 26.
• Held: Protection under 25 and 26 is to religious practice which forms an essential part
of the religion. A practice may be religious but may not be essential and integral.
• Offerring a prayer is religious practice but the location of such prayers would not be
essential unless the place has a particular significance for that religion.
• Essential Religious Practices Test: The court held that worshiping at any specific
mosque was not an essential religious practice in Islam. Therefore, the state's takeover
of the land on which a mosque was situated did not violate the essential religious
practices of Islam.

4) Shayara Bano v. UOI

• Somewhat argued that triple talaq would be an essential part of the Islamic faith.
o Nariman and UU Lalit held:
o Referred to Acharya v. Commissioner of police. Triple talaq is only a part
permissible by law and not essential doesnt change the nature of the religion.
o It is considered fucked up in the Quran and what is considered fucked up in
the quran cant be in shariat.
 o Therefore not essential.

5) Indian Young lawyers assn v. State of Kerala

• To determine what is integral to one’s religion in some cases the court has relied on
religious texts, empirical behaviour of the followers and whether the practice existed
at the time of the religions origin.
• Contended that lord ayappa only excluded women to the king who constructed the
temple on account of the celibate nature of the deity present and such practice is
essential to their faith.
• Held: Barring women in place of worship is not an essential religious practice of
Hindu religion.
• Essential part of the Hindu religion to allow Hindu women to enter a temple as
devotees.
• This practice only originated in 1950s, lacks the ageless and consistent character.
• Right granted by 26 to be harmoniously read with 25(2)(b) which throw open
religious institutions of a public character to all classes and sections of Hindus.
• When a conflict arises, the quest for human dignity, liberty, and equality must prevail.

• Because of the ERP doctrine judges are now assuming a theological mantle
which they are not expected to do
• There should be alteration to the doctrine instead of essentiality which has taken
over Art.25, the test should be whether it subscribes to the constitution whether
it is essential or not.

6) Saifuddin v. State of Bombay

• Leader of the Dawoodi Bohras a shia sect can excommunicate its members from
challenging his authority and is denied entry to mosque or any burial in the
community.
• Govt passes excommunication act prohibiting excommunication in bombay
• Challenged the same
• Held: Excommunication has always been part of the history and the power has
consistently been vested in the community. Based on a previous decision by the Privy
council it was an essential religious practice
• Could not be saved by Article 25(2)(b) of the constitution which allows the state to
regulate or restrict secular activities.
• Critique: No rationale or detailed justification was provided as to why it is an
essential religious practice.
• No proper analysis and application of Article 25(2)(b) leaving the reasoning behind its
conclusion unclear.
7) Bijoe emmanuel v. State of Kerala

• Jenovah’s worshippers refused to sing National anthem because according to them it

is against the tenets of their religion
• A commission was appointed their children were found to be law abiding and showed
no disrespect to the national anthem.
• But they were expelled by the appellants.
• Held: Fundamental right under 19(1)(a) and 25(1) have been infringed.
• Violation of freedom of conscience and freely profess, practice and propogate
religion.
• Respondents are directed to re-admit the children into the school, to permit them to
pursue their studies without hindrance.
• No provision of law that obliges someone to sing national anthem.
• The question is not whether a particular religious belief or practice appeals to our
reason or sentiment but whether the belief is genuinely and conscientiously held as a
part of the profession or practice of religion.

READ HIJAB BAN CASE

ARTICLE 29

• Protection of interests of minorities.

1. Conservation of script or culture
2. No denying admission to educational institutions based on
language, religion, race, caste or any of them.
• Art 15 and also protects from discrimination but Art 29(2) is more specific
• Art 15 also has place of birth and sex.

ARTICLE 30

• Right of minorities to establish and administer educational institutions.

o The state shall ensure that the amount fixed by or determined under such law
for the acquisition of such property wont restrict anyone under clause 1.
o No discrimination on the ground that it is being run by a minority by the state
between educational institutions while granting aid.
PAI Foundation v. State of Karnataka

- An ordinance was passed enacting fixed rates of capitation fees and tuition fee to
private unaided educational institutions.

- Issues: FR to set up educational institutions? to what extent can the government

impose regulations upon private educational institutions? Unit to determine the
existence of a religious or linguistic minority in relation to article 30?

-Held: FR under 19(1)(g) to set up educational institutions and Art 26(a) right of
religious denominations to establish and maintain institutions.
-Govt can impose regulations on private institutions in matters of public order,
morality and health, such regulations should not interfere with the right of minorities
to establish and administer educational institutions of their choice under Article 30.
- All minorities have the right to establish educational institutions and discrimination in
granting aid to educational institutions based on minority status is prohibited.