KAMKUS COLLEGE OF LAW

CONSTITUTIONAL LAW OF INDIA-I

LL.M. IST SEM
(PAPER CODE: L-1001)

Article 12 of Indian Constitution Definition of ‘State’

INTRODUCTION

This article is an attempt to understand how the definition of the state, which in common
parlance is termed “government”, has evolved over the years, being shaped by interpretation of
constitutional statutes by different courts in different cases over a chronological set-up. It aims to
further understand if the present definition is good enough or if further expansion is needed if
such expansion will lead to a boom in the number of cases being filed.

Article 12 of the Indian constitution defines the following components as a state

1. The Government of India or the Central government and the Parliament of India that is
the houses of Lok Sabha and the Rajya Sabha.

2. The state-based governments and legislative bodies.

3. Local Authorities like municipalities, panchayat, port trusts etc.

4. All other authorities that are present in Indian Territory or are operating under the
supervision of Indian governments.

Of these, the last phrase of “other authorities” is a wide-ranging term that has been a game
changer and has been the topic of discussion in several cases which have laid down their own set
of criteria for defining it like Rajasthan Electricity case, SukhDev VS Bhagat Ram etc. This is a
critical area when it comes to defining the state as it deals with a broad horizon and courts often
have to strike a very delicate balance while deciding this serious aspect about defining states.

This definition has also been used in Article 36 (Part IV) that deals with the Directive Principles
of State Policy, Article 152(Part VI) that deals with the functioning and handling of states and
Article 308 (Part XIV) that deals with services allocated under Union and States among others.

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WHAT DOES THE CONCEPT OF EJUSDEM GENERIS SAY?

This is the Latin phrase for the expression “from the same generic group”. It was for the first
time since the inception of the Indian state, that the Supreme Court was asked to formulate
criterions to define “state”. This terminology was first used by Justice VS Ayyar Rajmannar in
The University of Madras V Shanta Bai, in 1951, where he suggested that this term could be
used for defining different bodies as the state only if they performed activities that could be
termed as synonymous with government functions.

This phrase thus took into account anything that could be termed as “sovereign function” or any
allied activity. It was not precise and included a great deal of subjectivity depending on the
judges’ discretion. It is to be noticed that it is relatively a narrow term and was subsequently
rejected in the Rajasthan Electricity case but was later used by Justice Alagiri Swami in his
dissenting opinion in Sukhdev V Bhagatram as he defined “sovereign functions”.

This term this was not widely recognized in Indian courts while dealing with the definition of the
state. It can be attributed to the fact that this phrase is narrow and does not deal with the
components that constitute a state in a wide manner.

Rejection of Ejusdem Generis by the Indian courts

This phrase was developed in the case of Electricity Board, Rajasthan, SEB V. Mohanlal
(Rajasthan Electricity case) in the year 1967. The concept of Ejusdem Generis was completely
rejected for being incoherent and incomplete. The concept of “other authorities” including those
that were created by statutes or laws and/or the constitution was rather approved. This was
definitely a notch above the decision in Shantabai, it focused on granting of legal sanction behind
any such body that could be termed as a state, its subsidiary or any other organization that could
be termed to be performing any kind of governmental activity. But it is to be known that it could
have brought in more precise terminology and increased the scope to include bodies that may not
have been created by a statute or the constitution, but could be engaged in an important or related
governmental activity by deputation. Thus, as compared to the concept of Ejusdem Generis, this
term had a larger shelf life due to its clarity and greater acceptability.

SUKHDEV vs BHAGAT RAM (1975):

This case was decided in 1975 and can be termed as very important due to the three sets of
judgments that emerged as a result of the judges having their own sets of opinions about the
concept of what could be termed as a state.

The majority of Chief justice Ray, Justice Chandrachud and Justice Gupta in this constitutional
bench decision that also consisted of Justices Matthew and Justice Alagiri Swami, partly agreed
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with the concept of statute or constitution created authorities as discussed in Rajasthan
Electricity case and also added two other sets of criteria, that were:

1. The organization had the power to make rules and regulations that were considered as
binding

2. There was an existence of pervasive governmental control.

Thus, it was more comprehensive and did build upon the concept enshrined in Rajasthan
Electricity case, but it again emphasized upon legal sanction, which is absent could lead to
problems while pursuing meaningful legal remedies.

On the other hand, Justice Matthew gave a different but concurrent opinion on this topic, he
suggested the following two tests to be taken cumulatively to consider something as the state, it
included:

1. Instrumentality or agency of a state

2. If the functions being performed could be seen as “public service”.

This set of functions can be termed as more inclusive and provide greater opportunity to include
different sets of organizations within the ambit of the term “state”. It does not allow the need for
creation by a statute or constitution but also takes into account the core fundamentals behind any
such body. This was in addition to the decision of dissent given by Alaigiri Swami, but perhaps
Matthew seems to be the most significant and logical one.

AJAY HASIA vs KHALID MUJIB (1981):

In 1981, Justice Bhagwati set six parameters for defining “public service”-

1) Whether the entire share capital is controlled by the government?

2) Whether financial assistance by the government is said to constitute almost the full
expenditure incurred?

3) Whether the corporation enjoys any kind of monopoly that has been allotted or protected by
the state?

4) Whether there is deep and pervasive state control?

5) If the functions of the body are of public importance and are closely related to governmental
duties?

6) If there has been any transferring of any department of the government to this body?
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There is a major fault line with this concept. It does not clarify if these functions work
cumulatively, individually or in some sets or combinations. It is thus not precise and requires
judges to decide at their discretion about availability or non-availability of some of these
criterions.

DOCTRINE OF STATE ACTION

This concept was discussed in MC Mehta V Union of India; in the year 1986, it is originally
enshrined in American constitution. The logic behind this idea is that in cases where the extent of
State aid, control and regulation involved in a private activity is so great so as to term it as State
action. But, Justice Bhagwati felt that this concept did not suit Article 15 (2) of the constitution
and thus there was a need to domesticate this concept and mold it as per Indian needs.

THREE POINT RULE

Ruma Pal’s opinion on what constitutes state is the latest and, in a sense, the most complete set
of opinion in the case of Pradeep Kumar Biswas V Indian Institute of Chemical Biology in the
year 2002. This principle has eclipsed Ajay Hasia and was also used in the high-profile case of
Zee Telefilms V Union of India in 2006 that was dealing with if BCCI was a state, following the
guidelines set by Ruma Pal it decided in the negative.

POSITION OF THE JUDICIARY

It was an issue of great debate if the judiciary should also be termed as a part of “state”. Since
the independence of the judiciary from the other two wings of the state is also necessary to
ensure its transparency and accountability, in the landmark case of Naresh Shridhar Mirajkar V
State of Maharashtra, it was said that only administrative functions of the court can be termed as
a state but not the judicial functions. This allows the judiciary to maintain its rightful autonomy
from the state and thus allow independence in action, at least in theory.

CONCLUSION

Thus, after explaining in a timeline that has ranged from 1951 to 2005 and dealing with how this
term has evolved over these years. The concept of state is a wide ranging one and has evolved
over the years largely due to the judiciary’s interpretation of the phrase “other authorities” in
Article 12 of the constitution. This concept has evolved over these years based on factors like
judges’ interpretation, socio-economic factors involved etc. It has thus far not been a static idea
in any way. The current concept of “other authorities” includes those bodies that are financial,
functionally and administratively controlled by the government. as decided in the case of
Pradeep Kumar Biswas V Indian Institute of Chemical Biology. This, I believe that the definition

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of “state” is expansive enough and there is no further need to improvise or add to this concept
right now.

Right to equality under the Indian Constitution

Right to equality is embodied in a series of articles from Article 14 to 18 of the Constitution of
India. Article 14 contains the principle of rule of law and Articles 15, 16, 17 and 18 contain the
application of this principle. The Preamble to the Constitution of India provides for equality of
status and opportunity. Equality forms part of the basic structure of the Constitution of India.

Article 14
Article 14 reads as, ‘the State shall not deny to any person equality before the law and equal
protection of laws within the territory of India’. This Article is the embodiment the principle of
Rule of Law. Situations not expressly or impliedly covered under Articles 15 to 18 are examined
in the light of Article 14. There are two expressions used in Article 14-

• equality before the law, and

• equal protection of the laws.

Both these expressions sound similar but have different connotations. The expression ‘equality
before law’ has its origin in the English Common Law. It means that amongst equals law shall be
equal and shall be equally administered. The expression ‘equal protection of laws’ has its source
in Section 1 of the 14th Amendment of the U.S. Constitution. Equality before the law is a
negative concept and equal protection of the laws is a positive concept. The doctrine of ‘equality
before the law ‘is equally operative against the legislature itself. If the legislature dares to enact
an enactment inconsistent with any provisions of fundamental rights, the courts are competent
enough to pronounce it unconstitutional.

The principle of equality before the law owes its origin to the doctrine of Rule of Law
propounded by Prof. Dicey in his book The Law of the Constitution (1885). Prof. Dicey gave
three implications of the doctrine of Rule of Law-

• Supremacy of Law/Absence of Arbitrary Power – it means that no man should be

punished except for the breach of the law.

• Equality Before the Law – it implies equal subjugation of all citizens to the ordinary law
of the land administered by the ordinary courts of law.

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 • Primacy of The Rights of The Individual – constitution is the result of the rights of the
individuals rather than being the source of them.

Equal protection of the laws means the right to equal treatment in similar circumstances, both in
privileges conferred and liabilities imposed. The second expression is the corollary of the first
and it is difficult to imagine a situation in which the violation of equal protection of laws will not
be the violation of the equality before law. Both the rule of procedure and the substantive law
come under the purview of Article 14. Equal protection requires affirmative action by the State
towards unequal by providing them facilities and opportunities. Article 14 applies to ‘any
person’ including any company, association, citizen, non-citizens, natural persons as well as
legal persons.

Exception to The Rule of Law

The rule does not prevent certain classes of persons from being subject to special rules. For
example, Article 361 is an exception to the rule of law. It provides that the President or the
Governors or the Rajpramukhs shall not be answerable to any court for the exercise and
performance of the powers and duties of office. This is because of the reason that Article 14 does
not imply that the same laws should apply to all persons or that every law must have universal
application because all persons are not, by nature, attainment or circumstances, in the same
position. This article prohibits class legislation which makes improper discrimination by
conferring particular privileges upon a class of persons arbitrarily selected but it permits
reasonable classification for the purpose of achieving specific ends. For classification to be
reasonable, two conditions must be fulfilled-

• The classification must be based on intelligible differentia which distinguishes persons or

things that are grouped together from others left out of the group.

• The differentia must have rational relation with the object sought to be achieved by the
act.

It means that there must be some nexus between the differentia and the object so that the
classification does not appear arbitrary or discriminatory. What Article 14 strikes at is
arbitrariness because any action that is arbitrary, must necessarily involve negation of equality.
The doctrine of classification which is evolved by the courts is not a paraphrase of Article 14 nor
is it the objective or end of that Article. It is merely a judicial formula for determining whether
the legislative or executive action in question is arbitrary and therefore constitutional denial of
equality. Wherever therefore there is arbitrariness in State action whether it be of legislature or of
the executive or of the authority under Article 12, Article 14 immediately springs into action and
strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness

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pervades the entire constitutional scheme and is a golden thread which runs through the whole of
the fabric of the Constitution. In Maneka Gandhi’s case, the court had opined that Article 14
was not to be equated with the principle of classification. It was primarily a guarantee against
arbitrariness in State action and the doctrine of classification was evolved only as a subsidiary
rule for testing or determining whether a particular State action was arbitrary or not.

Article 15
Article 15 prohibits the State from discriminating against citizens on the grounds of religion,
race, caste, sex or place of birth. On the other hand, it empowers the State to make special
provision for women and children and for socially and educationally backward classes of citizens
(hereinafter referred to as SEBCs), Scheduled Classes (SCs) or Scheduled Tribes (STs).
Originally the Article had only three clauses. Later on, clauses (4) and (5) were added by way of
the First Constitutional Amendment Act, 1951 and the Ninety Third Constitutional Amendment
Act, 2005 respectively.

Article 15(4) empowered the State to make special provision for the advancement of any SEBCs
or for the SCs or the STs. It was added as a proviso or exception to Article 15(1) and Article 29
to override the effect of the judgment of the Supreme Court in the State of Madras v Smt.
Champakam Dorairajan. In that case the government of Madras was acting on the impugned
Communal G.O. (passed before the coming into force of the Constitution) even after coming into
force of the Constitution, reserving seats in Engineering and Medical Colleges of the State based
on caste. The impugned order was declared by the court as violative of the rights guaranteed
under Article 29 and therefore void under Article 13. The word ‘class’ used in the Article is not
used in reference to any caste. The provision does not lay down the criteria to designate the
backward classes, it leaves it to the State to lay down the criteria. However, the court can go into
the question as to whether the criteria are relevant or not.

After the insertion of clause (4) in Article 15, a number of orders were passed by the Mysore
government under Article 15(4) reserving seats for admission to State Medical and Engineering
Colleges for the ‘backward classes’ and the ‘more backward classes’ in addition to the seats
reserved for the SCs and STs. The government had designated the backward classes in these
orders on the basis of caste and communities. One such order was challenged before the Supreme
Court as being irrational and a fraud on Article 15(4) in the case of M. R. Balaji v State of
Mysore. The Supreme court while quashing the impugned order observed-

• Article 15(4) is a proviso or exception to clause (2) of Article 15 and to clause (2) of
Article 29.

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• Further categorization of backward classes into backward and more backward classes is
not envisaged by Article 15(4).

• For the purpose of Article 15 (4), backwardness must be both social and educational and
caste cannot be made the sole or dominant test for determining the backwardness of a class of
citizens.

• And order under Article 15(4) need not be in the form of a legislation, it can also be in
the form of an executive order.

• Speaking generally and in a broad way, a special provision should be less than 50%. The
actual percentage must depend upon the relevant prevailing circumstances in each case.

• The court further commented that the interests of weaker sections of society, which are a
first charge on the State and the Centre, have to be adjusted with the interests of the community
as a whole. Regarding Article 15 (4) the court observed that it is only an enabling provision and
does not impose any obligation on the State to take any special action under it.

The Supreme Court in the case of State of U.P. V. Pradeep Tandon while upholding the
reservations in favour of persons from hills and Uttarakhand areas on the ground that these areas
were instances of socially and educationally backward class citizens, held that the place of
habitation and its environment could be a determining factor in judging the social and
educational backwardness.

In Dr Preeti Srivastav & Anr v State of MP & Ors, the Supreme Court opined that there should
be some minimum qualifying marks for the Reserved Category candidates, if not the same as
prescribed by for the General Category candidates.

Clause (5) was added in Article 15 in order to make the private educational institutions share the
burden of government educational institutions in providing the citizens with greater access to
education. It enabled the State to make provisions for the advancement of the SCs, STs or
SEBCs of citizens in relation to admission in educational institutions including private
aided/unaided educational institutions. The clause, however, was inserted in order to override the
effect of the judgment in T. M. A. Pai Foundation v State of Karnataka, wherein the court
upheld the right of private unaided educational institutions to choose students of their choice.
Minority educational institutions referred to in Article 30(1) are exempted from the purview of
Article 15(5). In the case of Ashok Kumar Thakur v Union of India, the validity of Clause (5)
of Article 15 was challenged before the Supreme Court inter alia on following grounds –

• Whether Clauses (4) and (5) of Article 15 are contradictory to each other?

• Whether Article 15(5) violates the basic structure of the Constitution?

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• Whether exclusion of minority educational institutions from the purview of Article 15(5)
is violative of Article 14 of the Constitution?

The court, in relation to first mentioned issue observed that Clauses (4) and (5) of Article 15 are
not mutually contradictory. The second issue was answered by the court in negative so far as it
related to the State-maintained and aided educational institutions. In relation to the third issue the
court opined that minority educational institutions, by themselves, are a separate class and their
rights are protected by other provisions of the Constitution.

Article 16

Article 16 deals with equality of opportunity in the matter of public employment. It mandates the
State to provide every citizen with equal opportunity in the matters of employment or
appointment to any office under it. However, this does not prevent the State from laying down
the requisite qualifications for recruitment in the government services. It also prohibits
discrimination by the State in relation to employment or appointment to any office under the
State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them. Clause (4) of Article 16 allows the State to reserve seats in favour of backward classes of
citizens which according to State are not adequately represented in the services under the State.

In the case of N M Thomas v State of Kerala Article, the Supreme Court held that the
preferential treatment of under-represented backward classes so far as such treatment was
reasonable and had a rational nexus with the object in view was valid.

In the landmark case of Indra Sawhney v Union of India also known as the Mandal
Commission Case, the Supreme Court dealt with various aspects of the complex issue of
reservation and gave out a very thoughtful judgment. Some of the key aspects of the judgment
are-

• Creamy layer must be excluded from Backward Classes.

• Article 16(4) is not exception to Article 16(1), but an independent clause. Article 16(4) is
exhaustive of the subject of reservation in favour of backward classes, though it may not be
exhaustive of the very concept of reservation. Reservation for other classes can be made under
Article 16(1).

• Reservation shall not exceed the 50 percent limit. Carry forward rule is valid provided it
should not result in the breach of the 50 percent rule (upheld the judgment in Balaji Case and
overruled N M Thomas Case in this respect).

• Reservation in appointments under Article 16(4) confined to initial appointments only.

There shall be no reservation in promotion.
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• Backward classes referred to in Article 16(4) not same as the Socially and Educationally
Backward Classes referred to under Article 15(5).

• Article 16(4) permits classification of Backward Classes into backward and more
backward classes (overruled Balaji Case and upheld N M Thomas Case in this respect).

• In the aftermath of the Mandal Commission Judgment, Clause (4A) was added in Article
16 by way of Seventy Seventh Amendment Act, 1995 providing for reservation in the matters of
promotion. This was further amended by Eighty Fifth Amendment Act, 2001adding the words
‘in the matters of promotion with consequential seniority’ retrospectively from 17-06-1995 in
order to nullify the judgment in Ajit Singh and Ors v State of Punjab which discarded the
concept of consequential seniority. The amendment allowed the reservations to be made in
favour of SCs and STs with consequential seniority. Another Clause (4B) was inserted in Article
16 through Eighty First Amendment Act, 2000 to overcome the 50 percent limitation on the
‘carry forward rule’ to fill the backlog of unfilled vacancies reserved in favour of SCs and STs.

• The amendments made in Article 16 by inserting Clauses (4A) and (4B) were challenged
before the Supreme Court in the case of M Nagraj and Ors v Union of India on the ground that
these amendments were made to reverse the judgments in the above-mentioned cases and that the
Parliament has arrogated to itself the judicial powers thus violating the basic structure of the
Constitution. The court upholding the Constitutional validity of these amendment acts held that
Clause (4A) of Article 16 is an enabling provision and it will be governed by two compelling
reasons, ‘backwardness’ and ‘inadequacy of representation’ as mentioned Article 16(4). If the
State wished to exercise its discretion and make a provision for reservation in promotion for SCs
and STs, it has to collect quantifiable data to show backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance of Article 355.

Article 17
Article 17 exhibits the progressive and reformative vision of the Constitution makers. It
abolishes untouchability and makes the practice of untouchability a penal offence. It can be
termed as one of the earliest efforts made in the direction of social reforms. Since the Article
contemplates the practice of untouchability to be a punishable offence, the legislature enacted the
Protection of Civil Liberties Act, 1955 previously known as the Untouchability (Offences) Act,
1955 to prescribe punishment for untouchability and other practices connected with it. The word
untouchability has not been defined either under Article 17 or the Protection of Civil Liberties
Act, 1955. The term has not been used in the Article in a literal or grammatical sense. It actually
refers to the social disabilities historically imposed on certain classes of people by reason of their
birth in certain castes and would not include an instigation of social boycott by reason of the

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conduct of certain persons. The word “Harijan” prime facie refers to an untouchable.
Untouchability is an integral part of caste system and is not based on mens rea.

Article 18
• Article 18 abolishes titles. Clause (2) prohibits a citizen from accepting any title from a
foreign State with the exception of academic and military distinctions. Conferring of titles by the
State on the citizens without merit violates the principle of equality creating a divide in the
society. Under the British rule there was a practice of conferring titles on the well-wishers and
supporters of the British regime. This resulted in creating a class of nobility which was loyal to
the foreign rulers. Dr. Bhimrao Ambedkar while explaining the import of Article 18 in the
Constituent Assembly said that the Article does not provide a right, instead it confers a duty on a
citizen not to accept any titles not only from the Indian State but also from any foreign State. The
prohibition extends to the acceptance of any presents, emoluments from a foreign State while
holding any office of profit or trust under the Indian State.

Conclusion
• The principle of equality embodied in the Constitution forms the bedrock of our
democratic setup. In an incredibly diverse society like India, the values like social justice,
equality, liberty and fraternity cherished by the Constitution act as the binding force. The Indian
judiciary has been and continues to uphold these core values for the collective advancement of
the society and ensuring justice for every individual. Our visionary forefathers effortlessly gave
us what other societies in the world had to fight and shed blood for. For example, the Indian
Constitution gives us the right to vote equally regardless of gender unlike many progressive
western countries where women had to fight to get this right. They made sure that the new India
is free from the dark shadows of past.

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Freedom of Speech and Expression- Meaning & Scope
Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right to freedom of
speech and expression. The law states that, “all citizens shall have the right to freedom of speech
and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the exercise of
this right for certain purposes. Any limitation on the exercise of the right under Article 19(1) (a)
not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1) (a) includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture,
film, movie etc. It thus includes the freedom of communication and the right to propagate or
publish opinion. But this right is subject to reasonable restrictions being imposed under Article
19(2). Free expression cannot be equated or confused with a license to make unfounded and
irresponsible allegations against the judiciary.

It is important to note that a restriction on the freedom of speech of any citizen may be placed as
much by an action of the State as by its inaction. Thus, failure on the part of the State to
guarantee to all its citizens irrespective of their circumstances and the class to which they belong,
the fundamental right to freedom of speech and expression would constitute a violation of Article
19(1)(a).

The fundamental right to freedom of speech and expression is regarded as one of the most basic
elements of a healthy democracy for it allows its citizens to participate fully and effectively in
the social and political process of the country. In fact, the freedom of speech and expression
gives greater scope and meaning to the citizenship of a person extending the concept from the
level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is,
however, not absolute and it allows Government to frame laws to impose reasonable restrictions
in the interest of sovereignty and integrity of India, security of the state, friendly relations with
foreign states, public order, decency and morality and contempt of court, defamation and
incitement to an offence.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve to
secure to all its citizen liberty of thought and expression. The Constitution affirms the right to
freedom of expression, which includes the right to voice one’s opinion, the right to seek
information and ideas, the right to receive information and the right to impart information. The
Indian State is under an obligation to create conditions in which all the citizens can effectively
and efficiently enjoy the aforesaid rights. In Romesh Thappar v State of Madras (AIR 1950 SC
124), the Supreme Court of India held that the freedom of speech and expression includes
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freedom to propagate ideas which is ensured by freedom of circulation of a publication, as
publication is of little value without circulation. Patanjali Sastri, J., rightly observed that-

‘Freedom of Speech and of Press at the foundation of all democratic organizations, for without
free political discussion no public education, so essential for the proper functioning of the
process of Government, is possible’

However, Article 19(2) of the Constitution provides that this right is not absolute and ‘reasonable
restrictions’ may be imposed on the exercise of this right for certain purposes. The right to
freedom of expression includes the right to express one’s views and opinions on any issue and
through any medium whether it be in writing or by word of mouth.

The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation. This right
includes the right to communicate, print and advertise the information. In India, freedom of the
press is implied from the freedom of speech and expression guaranteed by Article 19(1)(a). The
freedom of the press is regarded as a “species of which freedom of expression is a genus”. On
the issue of whether ‘advertising’ would fall under the scope of the Article, the Supreme Court
pointed out that the right of a citizen to exhibit films is a part of the fundamental right of speech
and expression guaranteed by Article 19(1)(a) of the Constitution.

Indian law does not expressly refer to commercial and artistic speech. However, Indian Law is
developing and the Supreme Court has ruled that ‘commercial speech’ cannot be denied the
protection of Article 19(1)(a) of the Constitution. The Court has held that ‘commercial speech’ is
a part of the ‘right of freedom of speech and expression’ as guaranteed by our Constitution. The
citizens of India have the right to receive ‘commercial speech’ and they also have the right to
read and listen to the same. This protection is available to the speaker as well as the recipient.
Freedom of Speech and Expression also includes artistic speech as it includes the right to paint,
sign, dance, write poetry, literature and is covered by Article 19(1)(a) because the common basic
characteristic of all these activities is freedom of speech and expression.

Under the provisions of the Constitution of India, an individual as well as a corporation can
invoke freedom of speech arguments and other fundamental rights against the State by way of a
Writ Petition under Articles 32 and 226 of the Constitution of India subject to the State imposing
some permissible restrictions in the interests of social control.

Under the provisions of Indian law, the right to invoke the freedom of speech arguments is not
limited to individuals alone. Corporations are also entitled to invoke such arguments. The cases
of Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757and Indian Express
Newspapers (Bombay) P. Ltd v. Union of India (‘86) A.SC. 515, are of great significance. In
these cases, the corporations filed a writ petition challenging the constitutional validity of

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notifications issued by the Government. After much deliberation, the Courts held that the right to
freedom of speech cannot be taken away with the object of placing restrictions on the business
activities of citizens. However, the limitation on the exercise of the right under Article 19(1)(a)
not falling within the four corners of 19(2) is not valid.

Importance of Freedom of Speech

Freedom of Speech is the bulwark of democratic government. This freedom is essential for the
proper functioning of the democratic process. The freedom of speech and liberty is regarded as
the first condition of liberty. It occupies a preferred position in the hierarchy liberties giving
succor and protection to all other liberties. It is the mother of all liberties.

In a democracy, freedom of speech & expression opens up channels of free discussion of issues.
Freedom of speech plays a crucial role in the formation of public opinion on social, economic &
political matters. It embraces within its scope the freedom of propagation and interchange of
ideas, dissemination of information which would help formation of one’s opinion & view point
& debates on matters of public concern. So long as the expression is confined to nationalism,
patriotism & love for the motherland, the use of National flag by the way of expression of those
sentiments would be a Fundamental Right.

In Maneka Gandhi v. Union of India, BHAGWATI J., has emphasized on the significance of the
freedom of speech & expression in these words:

“Democracy is based essentially on free debate and open discussion, for that is the only
corrective of government action in a democratic set up. If democracy means government of the
people by the people, it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his rights of making a
choice, free & general discussion of public matters is absolutely essential.”

This aspect of the right to freedom of speech and expression extending the concept of citizenship
to include socio-political participation of a person is critical in the process of determining the
scope of right to life of a citizen under Article 21 of the Constitution. It is important to note that
the scope of the “freedom of speech and expression” in Article 19(1)(a) of the Constitution has
been expanded to include the right to receive and disseminate information. It includes the right to
communicate and circulate information through any medium including print media, audio,
television broadcast or electronic media.

The judiciary has time and again opined that the right to receive information is another facet of
the right to freedom of speech and expression and the right to communicate and receive
information without interference is a crucial aspect of this right. This is because, a person cannot
form an informed opinion or make an informed choice and effectively participate socially,
14
politically or culturally without receipt of adequate information. The Supreme Court in State of
Uttar Pradesh v. Raj Narain has held that Article 19(1)(a) of the Constitution guarantees the
freedom of speech and expression to all citizens in addition to protecting the rights of the citizens
to know the right to receive information regarding matters of public concern. This position was
reiterated by the Court in Secretary, Ministry of Information and Broadcasting, Govt. of India
v. Cricket Association of Bengal wherein it was held that Article 19(1)(a) includes the right to
acquire and disseminate information. The Supreme Court, while opining on the right to freedom
of information, further noted in Dinesh Trivedi, M.P. and Ors v. Union of India that “in modern
constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of
the government which, having been elected by them, seek to formulate sound policies of
governance aimed at their welfare.”

The print medium is a powerful tool for dissemination and receipt of information for any citizen.
Thus, access to printed material is crucial for satisfaction of a person’s right to freedom of
speech and expression guaranteed to him under the Constitution. Persons with print impairment
have no access to printed material in their normal format. Failure on part of the State to make
legislative provision for enabling access to persons with print impairment of material in
alternative accessible formats would constitute a deprivation of their right to freedom of speech
and expression and such inaction on the part of the State falls foul of the Constitution. In view of
the same, it is an obligation on part of the State to ensure that adequate provisions are made in
the law enabling persons with print impairment to access printed material in accessible formats.

Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the
press and the same is included in the freedom of expression, which is conferred on all citizens
(Virender Vs. State of Punjab, AIR 1958, SC. 986 and Sakal Papers Vs. Union of India AIR
1962 S.C. 305). It has also been by this judgment that freedom of the press under the Indian
Constitution is not higher than the freedom of an ordinary citizen.

Need to Protect Freedom of Speech and Expression

Freedom of speech offers human being to express his feelings to other, but this is not the only
reason; purpose to protect the freedom of speech. There could be more reasons to protect these
essential liberties. There are four important justifications for freedom of speech –

• For the discovery of truth by open discussion – According to it, if restrictions on speech
are tolerated, society prevents the ascertainment and publication of accurate facts and valuable
opinion. That is to say, it assists in the discovery of truth.

• Free speech as an aspect of self- fulfillment and development – freedom of speech is an

integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on

15
what we are allowed to say and write or to hear and read will hamper our personality and its
growth. It helps an individual to attain self-fulfillment.

• For expressing belief and political attitudes – freedom of speech provides opportunity to
express one’s belief and show political attitudes. It ultimately results in the welfare of the society
and state. Thus, freedom of speech provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change.

• For active participation in democracy – democracy is most important feature of today’s

world. Freedom of speech is there to protect the right of all citizens to understand political issues
so that they can participate in smooth working of democracy. That is to say, freedom of speech
strengthens the capacity of an individual in participating in decision-making.

Thus, we find that protection of freedom of speech is very much essential. Protection of freedom
of speech is important for the discovery of truth by open discussion, for self- fulfillment and
development, for expressing belief and political attitudes, and for active participation in
democracy.

Indian Perspective

In India under Article 19(1)(a) of the Constitution of India “all citizens shall have the right to
freedom of speech and expression”. In the Preamble to the Constitution of India the people of
India declared their solemn resolve to secure to all its citizens liberty of thought and expression.
The Supreme Court of India held that the freedom of speech and expression includes freedom to
propagate ideas which is ensured by freedom of circulation of a publication, as publication is of
little value without circulation.

Article 19(2) of the Constitution of India provides that this right is not absolute and ‘reasonable
restrictions’ may be imposed on the exercise of this right for certain purposes. The right to
freedom of speech would include both artistic and commercial speech which is required to be
protected. Freedom of speech and expression would include artistic speech as it includes the
right to paint, sign, dance, write poetry, literature and is covered by Article 19(1)(a) of the
Constitution because the common basic characteristic of all these activities is freedom of speech
and expression.

Under the Constitution of India an individual as well as corporation can invoke freedom of
speech and their fundamental rights. Freedom of Speech is not only protected from unwarranted
governmental interference but also when a private party calls upon a Court to enforce rules of
law whose effect would be to restrict or penalize expression. Much would depend on the issue as
to whether the reference to the trade mark involved has been used in the trade mark sense, for
example, as envisaged in Section 2(2) (a), (b) and (c) of the Trade Marks Act, 1999. There is
16
dearth of case law of how free speech interests are involved in trade mark litigation. In a given
case a party could challenge an act or omission on the part of the Registrar of Trade Marks on
the ground that it infringes the fundamental right of a citizen.

For example: Freedom of speech and expression; or Registrar has acted in a manner which is
against all norms of natural justice. A party could also in a given case challenge the virus of a
provision in the Trade Marks Act, 1999 or the Rules framed there under – if it would violate the
right to freedom of speech and expression.

Under the Trade Marks Act, 1999 there is no specific reference in crystal clear terms to criticism
of another’s mark. However, reference is invited to Section 29 (8) & (9) of the Trade Marks Act,
1999 as follows: –

“Section 29(8) A registered trade mark is infringed by any advertising of that trade mark if such
advertising

• takes unfair advantage of and is contrary to honest practices in industrial or commercial

matters; or

• is detrimental to its distinctive character; or

• is against the reputation of the trade mark.”

Infringement by oral use is provided for in sub–section 9 of Section 29:

“Where the distinctive elements of a registered trade mark consist of or include words, the trade
mark may be infringed by the spoken use of those words as well as by their visual representation
and reference in this section to the use of a mark shall be construed accordingly.”

The position of law is that a tradesman is entitled to declare that his goods are the best in the
world even if the statement is untrue, but he may not in any circumstances say that his
competitor’s goods are bad or criticize his competitors’ goods. If he makes such a statement, it
would amount to slander.

There is no ‘fair use’ clause or an ‘open end’ clause in Indian Trade Mark law. In India, there is
dearth of cases on trade mark infringement where the defendant has invoked freedom of speech
as a defense. Joke articles in India are treated like any other and the author is not entitled to any
additional immunity for the reason that the article is a humorous one.

Freedom of speech enjoys special position as far India is concerned. The importance of freedom
of expression and speech can be easily understood by the fact that preamble of constitution itself
ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The

17
constitutional significance of the freedom of speech consists in the Preamble of Constitution and
is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and
expression”.

Explaining the scope of freedom of speech and expression Supreme Court has said that the
words “freedom of speech and expression” must be broadly constructed to include the freedom
to circulate one’s views by words of mouth or in writing or through audiovisual
instrumentalities. Freedom of Speech and expression means the right to express one’s own
convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode.
It thus includes the expression of one’s idea through any communicable medium or visible
representation.

Moreover, it is important to note that liberty of one must not offend the liberty of others.
Patanjali Shastri,J. in A.K. Gopalan case, observed,

“man as a rational being desires to do many things, but in a civil society his desires will have to
be controlled with the exercise of similar desires by other individuals”.

It therefore includes the right to propagate one’s views through the print media or through any
other communication channel e.g., the radio and the television. Every citizen of this country
therefore has the right to air his or their views through the printing and or the electronic media
subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. In
sum, the fundamental principle involved here is the people’s right to know. Freedom of speech
and expression should, therefore, receive generous support from all those who believe in the
participation of people in the administration.

We can see the guarantee of freedom of speech under following heads.

Freedom of Press

Although Article 19 does not express provision for freedom of press but the fundamental right of
the freedom of press implicit in the right the freedom of speech and expression. In the famous
case Express Newspapers (Bombay) (P) Ltd. v. Union of India the court observed the
importance of press very aptly. Court held in this case that “In today’s free world freedom of
press is the heart of social and political intercourse. The press has now assumed the role of the
public educator making formal and non-formal education possible in a large scale particularly in
the developing world, where television and other kinds of modern communication are not still
available for all sections of society. The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate [Government] cannot make
responsible judgments. Newspapers being purveyors of news and views having a bearing on

18
public administration very often carry material which would not be palatable to Governments
and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is essential for the
proper functioning of the democratic process. Democracy means Government of the people, by
the people and for the people; it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential. This explains the
constitutional viewpoint of the freedom of press in India.

Obscenity

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the
text of India’s Constitution clearly sets out restrictions on free speech. The freedom of speech
guarantee under Article 19(1) (a) can be subject to reasonable state restriction in the interest of
decency or morality. Obscenity in India is defined as “offensive to modesty or decency; lewd,
filthy and repulsive.” It stated that the test of obscenity is whether the publication, read as a
whole, has a tendency to deprave and corrupt those whose minds are open to such immoral
influences, and therefore each work must be examined by itself.

With respect to art and obscenity, the Court held that “the art must be so preponderating as to
throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no
effect and may be overlooked”. The Court concluded that the test to adopt in India, emphasizing
community mores, is that obscenity without a preponderating social purpose or profit cannot
have the constitutional protection of free speech.

Right to Information

Right to know, to information is other facet of freedom of speech. The right to know, to receive
and to impart information has been recognized within the right to freedom of speech and
expression. A citizen has a fundamental right to use the best means of imparting and receiving
information and as such to have an access to telecasting for the purpose. The right to know has,
however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act,
1923 which prohibits disclosure of certain official documents. Even, Right to Information
Act-2005, which specially talks about peoples’ right to ask information from Government
official, prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are
generally the grounds of reasonable restrictions over freedom of speech and expression under
Article 19(1) of Constitution of India. One can conclude that ‘right to information is nothing but
one small limb of right of speech and expression.

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Voters Have Right to Know About their Candidates

In a landmark judgment in Union of India v. Association for Democratic Reforms4, a three-judge

bench held that the amended Electoral Reforms Law passed by Parliament is unconstitutional as
being volatile of citizen’s right to know under Art. 19(1)(g).

The’ Freedom of Speech and Expression’ Is Indeed A Very High One:

In recent judgment of the Supreme Court in Khushboo v. Kannaiammal6 upholds the right to
freedom of speech and expression. Khushboo’s right to freedom of speech was violated by the
institution of multiple criminal cases against her in various courts across the country and
consequent harassment that she suffered.

Grounds of Restrictions

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some restrictions on this freedom for the maintenance of social order,
because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2)
of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the
exercise of the right to freedom of speech and expression “in the interest of” the public on the
following grounds: Clause (2) of Article 19 of Indian constitution contains the grounds on which
restrictions on the freedom of speech and expression can be imposed: -

1) Security of State: Security of state is of vital importance and a government must have
power to impose restriction on the activity affecting it. Under Article 19(2) reasonable
restrictions can be imposed on freedom of speech and expression in the interest of security of
State. However, the term “security” is very crucial one. The term “security of state” refers only
to serious and aggravated forms of public order e.g., rebellion, waging war against the State,
insurrection and not ordinary breaches of public order and public safety, e.g., unlawful assembly,
riot, affray. Thus, speeches or expression on the part of an individual, which incite to or
encourage the commission of violent crimes, such as, murder are matters, which would
undermine the security of State.

2) Friendly relations with foreign states: In the present global world, a country has to
maintain good and friendly relationship with other countries. Something which has potential to
affect such relationship should be checked by government. Keeping this thing in mind, this
ground was added by the constitution (First Amendment) Act, 1951. The object behind the
provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which
may jeopardize the maintenance of good relations between India, and that state.

20
3) No similar provision is present in any other Constitution of the world. In India, the
Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against
foreign dignitaries. Interest of friendly relations with foreign States, would not justify the
suppression of fair criticism of foreign policy of the Government. However, it is interesting to
note that member of the commonwealth including Pakistan is not a “foreign state” for the
purposes of this Constitution. The result is that freedom of speech and expression cannot be
restricted on the ground that the matter is adverse to Pakistan.

4) Public Order: Next restriction prescribed by constitution is to maintain public order.

This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an
expression of wide connotation and signifies “that state of tranquility which prevails among the
members of political society as a result of internal regulations enforced by the Government
which they have established.”

Here it is pertinent to look into meaning of the word “Public order. Public order is something
more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public
peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs
public order. Thus, communal disturbances and strikes promoted with the sole object of accusing
unrest among workmen are offences against public order. Public order thus implies absence of
violence and an orderly state of affairs in which citizens can peacefully pursue their normal
avocation of life. Public order also includes public safety. Thus, creating internal disorder or
rebellion would affect public order and public safety. But mere criticism of government does not
necessarily disturb public order.

The words ‘in the interest of public order’ includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus, a law
punishing utterances made with the deliberate intention to hurt the religious feelings of any class
of persons is valid because it imposes a restriction on the right of free speech in the interest of
public order since such speech or writing has the tendency to create public disorder even if in
some case those activities may not actually lead to a breach of peace. But there must be
reasonable and proper nexus or relationship between the restrictions and the achievements of
public order.

5) Decency or morality: The way to express something or to say something should be

decent one. It should not affect the morality of the society adversely. Our constitution has taken
care of this view and inserted decency and morality as a ground. The words ‘morality or
decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide
instances of restrictions on the freedom of speech and expression in the interest of decency or
morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in

21
public places. No fix standard is laid down till now as to what is moral and indecent. The
standard of morality varies from time to time and from place to place.

6) Contempt of Court: In a democratic country Judiciary plays very important role. In

such situation it becomes essential to respect such institution and its order. Thus, restriction on
the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit
and amounts to contempt of court. According to the Section 2 ‘Contempt of court’ may be either
‘civil contempt’ or ‘criminal contempt.’ But now, Indian contempt law was amended in 2006 to
make “truth” a defence. However, even after such amendment a person can be punished for the
statement unless they were made in public interest. Again in Indirect Tax Practitioners Assn. vs
R.K.Jain, it was held by court that, “Truth based on the facts should be allowed as a valid
defence if courts are asked to decide contempt proceedings relating to contempt proceeding
relating to a speech or an editorial or article”. The qualification is that such defence should not
cover-up to escape from the consequences of a deliberate effort to scandalize the court.

7) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status
another person. A person is known by his reputation more than his wealth or anything else.
Constitution considers it as ground to put restriction on freedom of speech. Basically, a
statement, which injures a man’s reputation, amounts to defamation. Defamation consists in
exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still
uncodified in India and subject to certain exceptions.

8) Incitement to an offence: This ground was also added by the constitution (First
Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to
incite people to commit offence. The word ‘offence’ is defined as any act or omission made
punishable by law for the time being in force.

9) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is

prime duty of government. Taking into it into account, freedom of speech and expression can be
restricted so as not to permit any one to challenge sovereignty or to permit any one to preach
something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all
concerned with the national interest or in the interest of the society. The first set of grounds i.e.
the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States and public order are all grounds referable to national interest, whereas, the second set of
grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are
all concerned with the interest of the society.

22
Conclusion

Expression through speech is one of the basic guarantees provided by civil society. However, in
modern world Right to freedom of speech and expression is not limited to express ones’ view
through words but it also includes circulating one’s views in writing or through audiovisual
instrumentalities, through advertisements and through any other communication channel. It also
comprises of right to information, freedom of press etc. It is a right to express and
self-realization.

Two big democracies of world i.e., America and India have remarkably protected this right. As
far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls in
fundamental right category. Indian courts have always placed a broad interpretation on the value
and content of Article 19(1) (a), making it subjective only to the restrictions permissible under
Article 19(2).

The words ‘in the interest of public order’, as used in the Article 19 include not only utterances
as are directly intended to lead to disorder but also those that have the tendency to lead to
disorder. There should be reasonable and proper nexus or relationship between the restriction and
achievement of public order.

Freedom of speech and expression is the bulwark of democratic government. This freedom is
essential for the proper functioning of democratic process and is regarded as the first condition of
liberty. It occupies a preferred position in the hierarchy of liberties giving protection to all other
liberties. It has been truly said that it is the mother of all other liberties. That liberty includes
the right to acquire information and disseminate the same. It includes the right to communicate
it through available media without interference to as large a population of the country, as well as
abroad, as is possible to reach. Right to know is the basis right of the citizens of a free country
and Art. 19(1)(a) protects that right. Right to receive information springs from Art 19(1)(a).

Protection in respect of conviction for offences (Article 20)

Article 20 has taken care to safeguard the rights of persons accused of crimes. Persons here mean
the citizens, non-citizens as well as corporations. Please note that this article cannot be
suspended even during an emergency in operation under article 359. Article 20 also constitutes
the limitation on the legislative powers of the Union and State legislatures.
23
Ex-Post facto Law
Article 20 (1) says that no person shall be convicted of any offence except for violation of a law
in force at the time of the commission of the Act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the time of the
commission of the offence. This is called Ex-Post facto Law. It means that legislature cannot
make a law which provides for punishment of acts which were committed prior to the date when
it came into force. This means that a new law cannot punish an old act.

Doctrine of Double Jeopardy

Article 20(2) says that no person shall be prosecuted and punished for the same offence more
than once. This is called Doctrine of Double Jeopardy. The objective of this article is to avoid
harassment, which must be caused for successive criminal proceedings, where the person has
committed only one crime. There is a law maxim related to this – nemo debet bis vexari. This
means that no man shall be put twice in peril for the same offence. There are two aspects of
Doctrine of Jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means that the
person has been previously convicted in respect of the same offence. The autrefois acquit means
that the person has been acquitted on a same charge on which he is being prosecuted. Please note
that Constitution bars double punishment for the same offence. The conviction for such offence
does not bar for subsequent trial and conviction for another offence and it does not matter some
ingredients of these two offences are common.

Self-Incrimination Law
Article 20(3) of the constitution says that no person accused of any offence shall be compelled to
be a witness against himself. This is based upon a legal maxim which means that No man is
bound to accuse himself. The accused is presumed to be innocent till his guilt is proved. It is the
duty of the prosecution to establish his guilt.

MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

(ARTICLE 21)
‘Everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly
the most fundamental of all rights. All other rights add quality to the life in question and depend
on the pre-existence of life itself for their operation. As human rights can only attach to living
24
beings, one might expect the right to life itself to be in some sense primary, since none of the
other rights would have any value or utility without it. There would have been no Fundamental
Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will
examine the right to life as interpreted and applied by the Supreme Court of India.

Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his
life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of
the Constitution is not merely the physical act of breathing. It does not connote mere animal
existence or continued drudgery through life. It has a much wider meaning which includes right
to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.
Right to life is fundamental to our very existence without which we cannot live as human being
and includes all those aspects of life, which go to make a man’s life meaningful, complete, and
worth living. It is the only article in the Constitution that has received the widest possible
interpretation. Under the canopy of Article 21 so many rights have found shelter, growth and
nourishment. Thus, the bare necessities, minimum and basic requirements that is essential and
unavoidable for a person is the core concept of right to life.

In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held that:

By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by amputation of an armour leg or the
pulling out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.

In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval the
above observations and held that the “right to life” included the right to lead a healthy life so as
to enjoy all faculties of the human body in their prime conditions. It would even include the right
to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It
includes the right to live in peace, to sleep in peace and the right to repose and health.

Right to Live with Human Dignity

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21 and
held that the right to live the right to live is not merely a physical right but includes within its
ambit the right to live with human dignity. Elaborating the same view, the Court in Francis
Coralie v. Union Territory of Delhi, observed that:

“The right to live includes the right to live with human dignity and all that goes along with it,
viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and
facilities for reading writing and expressing oneself in diverse forms, freely moving about and
25
mixing and mingling with fellow human beings and must include the right to basic necessities
the basic necessities of life and also the right to carry on functions and activities as constitute the
bare minimum expression of human self.”

Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti
Morcha v. Union of India. Characterizing Art. 21 as the heart of fundamental rights, the Court
gave it an expanded interpretation. Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and
Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength
of workers, men and women, and of the tender age of children against abuse, opportunities and
facilities for children to develop in a healthy manner and in conditions of freedom and dignity,
educational facilities, just and humane conditions of work and maternity relief. These are the
minimum requirements which must exist in order to enable a person to live with human dignity
and no State neither the Central Government nor any State Government-has the right to take any
action which will deprive a person of the enjoyment of these basic essentials.”

Following the above stated cases, the Supreme Court in Peoples Union for Democratic Rights v.
Union of India, held that non-payment of minimum wages to the workers employed in various
Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and
violative of Article 21 of the Constitution. Bhagwati J. held that, rights and benefits conferred on
workmen employed by a contractor under various labour laws are clearly intended to ensure
basic human dignity to workmen. He held that the non-implementation by the private contractors
engaged for constructing building for holding Asian Games in Delhi, and non-enforcement of
these laws by the State Authorities of the provisions of these laws was held to be violative of
fundamental right of workers to live with human dignity contained in Art. 21.

In Chandra Raja Kumar v. Police Commissioner Hyderabad, it has been held that the right to
life includes right to life with human dignity and decency and, therefore, holding of beauty
contest is repugnant to dignity or decency of women and offends Article 21 of the Constitution
only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. The
government is empowered to prohibit the contest as objectionable performance under Section 3
of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan, the Court struck down a provision of Bombay Civil
Service Rules, 1959, which provided for payment of only a nominal subsistence allowance of
Re. 1 per month to a suspended Government Servant upon his conviction during the pendency of

26
his appeal as unconstitutional on the ground that it was violative of Article 21 of the
Constitution.

Right Against Sexual Harassment at Workplace

Art. 21 guarantees right to life right to life with dignity. The court in this context has observed
that:

“The meaning and content of fundamental right guaranteed in the constitution of India are of
sufficient amplitude to encompass all facets of gender equality including prevention of sexual
harassment or abuse.”

Sexual Harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

In Vishakha v. State of Rajasthan, the Supreme Court has declared sexual harassment of a
working woman at her work as amounting to violation of rights of gender equality and rights to
life and liberty which is clear violation of Articles 14, 15 and 21 of the Constitution. In the
landmark judgment, Supreme Court in the absence of enacted law to provide for effective
enforcement of basic human rights of gender equality and guarantee against sexual harassment
laid down the following guidelines:

1. All employers or persons in charge of work place whether in the public or private sector
should take appropriate steps to prevent sexual harassment. Without prejudice to the generality
of this obligation they should take the following steps:

1. Express prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.

2. The Rules/Regulations of Government and Public Sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.

3. As regards private employers’ steps should be taken to include the aforesaid prohibitions
in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

4. Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at work places and
no employee woman should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.

27
2. Where such conduct amounts to specific offences under I.P.C., or under any other law,
the employer shall initiate appropriate action in accordance with law by making a complaint with
appropriate authority.

3. The victims of Sexual harassment should have the option to seek transfer of perpetrator
or their own transfer.

In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court reiterated the
Vishakha rulingand observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of work, results in
violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two
most precious Fundamental Rights guaranteed by the Constitution of India…. In our opinion, the
contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to
encompass all facets of gender equality, including prevention of sexual harassment and abuse
and the courts are under a constitutional obligation to protect and preserve those fundamental
rights. That sexual harassment of a female at the place of work is incompatible with the dignity
and honour of a female and needs to be eliminated….”

Right Against Rape

Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right
to life right to live with human dignity. Right to life, would, therefore, include all those aspects
of life that go on to make life meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty, the supreme court held that

“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the
entire society. It destroys the entire psychology of a woman and pushed her into deep emotional
crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore,
the most hated crime. It is a crime against basic human rights and is also violative of the victim’s
most cherished of the fundamental rights, namely, the right to life with human dignity contained
in Art 21”.

Right to Reputation

Reputation is an important part of one’s life. It is one of the finer graces of human civilization
that makes life worth living. The Supreme Court referring to D.F. Marion v. Minnie Davis in
Smt. Kiran Bedi v. Committee of Inquiry held that “good reputation was an element of personal
security and was protective by the Constitution, equally with the right to the enjoyment of life,
liberty and property. The court affirmed that the right to enjoyment of life, liberty and property.
28
The court affirmed that the right to enjoyment of private reputation was of ancient origin and was
necessary to human society.”

The same American Decision has also been referred to in the case of State of Maharashtra v.
Public Concern of Governance Trust, where the Court held that good reputation was an element
of personal security and was protected by the constitution, equally with the right to the
enjoyment of life, liberty and property.

It has been held that the right equally covers the reputation of a person during and after his death.
Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person
would certainly come under the scope of Art. 21.

In State of U.P. v. Mohammaad Naim, succinctly laid down the following tests while dealing
the question of expunction of disgracing remarks against a person or authority whose conduct
comes in consideration before a court of law:

• whether the party whose conduct is in question is before the court or has an opportunity
of explaining or defending himself

• whether there is evidence on record bearing on that conduct justifying the remarks

• whether it is necessary for the decision of the case, as an integral part thereof, to
animadvert on that conduct. It has also been recognized that judicial pronouncements must be
judicial in nature, and should not normally depart from sobriety, moderation and reserve

In State of Bihar v. Lal Krishna Advani, a two-member commission of inquiry appointed to

inquire into the communal disturbances in Bhaglapur district on 24th October, 1989, made some
remarks in their report, which impinged upon the reputation of the respondent as a public man,
without affording him an opportunity of being heard. The Apex Court ruled that it was amply
clear that one was entitled to have and preserve one’s reputation and one also had the right to
protect it. The court further said that in case any authority , in discharge of its duties fastened
upon it under the law, transverse into the realm of personal reputation adversely affecting him, it
must provide a chance to him to have his say in the matter. The court observed that the principle
of natural justice made it incumbent upon the authority to give an opportunity to the person,
before any comment was made or opinion was expressed which was likely to prejudicially affect
that person.

Right to Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include
right to livelihood. In Re Sant Ram, a case which arose before Maneka Gandhi case, where the

29
Supreme Court ruled that the right to livelihood would not fall within the expression “life” in
Article 21.The court said curtly:

“The right to livelihood would be included in the freedoms enumerated in Art.19, or even in
Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of argument that
the word ‘life’ in Art. 21 includes ‘livelihood’ also.”

But then the view underwent a change. With the defining of the word “life” in Article 21 in
broad and expansive manner, the court in Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nandkarni, came to hold that “the right to life” guaranteed by
Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay
Municipal Corporation, popularly known as the “Pavement Dwellers Case” a five judge bench
of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person
can live without the means of living, that is, the means of Livelihood. That the court in this case
observed that:

“The sweep of right to life conferred by Art.21 is wide and far reaching. It does not mean,
merely that life cannot be extinguished or taken away as, for example, by the imposition and
execution of death sentence, except according to procedure established by law. That is but one
aspect if the right to life. An equally important facet of the right to life is the right to livelihood
because no person can live without the means of livelihood.”

If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the
easiest way of depriving a person of his right to life would be to deprive him of his means of
livelihood to the point of abrogation[xxi].

In the instant case, the court further opined:

“The state may not by affirmative action, be compelled to provide adequate means of livelihood
or work to the citizens. But any person who is deprived of his right to livelihood except
according to just and fair procedure established by law can challenge the deprivation as
offending the right to life conferred in Article 21.”

Emphasizing upon the close relationship of life and livelihood, the court Stated: “That, which
alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an
integral part of right to life. Deprive a person from his right to livelihood and you shall have
deprived him of his life.”

Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty and for
that matter on right to livelihood. What Art. 21 insists is that such deprivation ought to be
according to procedure established by law which must be fair, just and reasonable. Therefore

30
anyone who is deprived of right to livelihood without a just and fair procedure established by law
can challenge such deprivation as being against Art. 21 and get it declared void.

In D.T.C. v. D.T.C. Mazdoor Congress, a regulation conferring power on the authority to

terminate the services of a permanent and confirm employee by issuing a noticing without
assigning him any reasons and without giving him a hearing has been held to be a wholly
arbitrary and violative of Art. 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd., it was held that when a government servant or
one in a public undertaking is suspended pending a departmental disciplinary inquiry against
him, subsistence allowance must be paid to him. The Court has emphasized that a government
servant does not his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure established by law which
must be fair, just and reasonable and which is in the larger interest of people, the plea of
deprivation of right to livelihood under Art. 21 is unsustainable. In, Chameli Singh v. State of
Uttar Pradesh, it was held by the Hon’ble Supreme Court that when the land of a landowner was
acquired by state in accordance with the procedure laid down in the relevant law of acquisition
the right to livelihood of such a landowner even though adversely affected, his right to livelihood
is not violated. The Court opined that, the state acquires land in exercise of its power of eminent
domain for a public purpose. The landowner is paid compensation in lieu of land, and therefore,
the plea of deprivation of right to livelihood under Art. 21 is unsustainable.

In M. J. Sivani v. State of Karnataka & Ors., the Supreme Court held that right to life under
Article 21 does protect livelihood but added a rider that its deprivation cannot be extended too
far or projected or stretched to the avocation, business or trade injurious to public interest or has
insidious effect on public moral or public order. It was, therefore, held that regulation of video
games or prohibition of some video games of pure chance or mixed chance and skill are not
violative of Article 21 nor is the procedure unreasonable, unfair, or unjust.

HIV Not a Sound ground for Termination

In MX of Bombay Indian Inhabitants v. M/s. ZY it was held that a person tested positive for
HIV could not be rendered “medically unfit” solely on that ground so as to deny him the
employment. The right to life includes the right to livelihood. Therefore, right to livelihood
cannot hang on to the fancies of the individuals in authority. Even though the petitioner might
have been a nuisance to others and conducted themselves either in a disorderly way or
unbecoming on their profession but, that in itself, it is not sufficient for the executive to take
away their source of livelihood by an executive fiat.

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Right to Work Not a Fundamental Right under Art.21
In Sodan Singh v. New Delhi Municipal Committee, the five judge bench of the Supreme Court
distinguished the concept of life and liberty within Art.21 from the right to carry on any trade or
business, a fundamental right conferred by Art. 19(1)(g) and held the right to carry on trade or
business is not included in the concept of life and personal liberty. Article 21 is not attracted in
case of trade and business. The petitioners, hawkers doing business off the pavement roads in
Delhi, had claimed that the refusal by the Municipal authorities to them to carry on business of
their livelihood amounted to violation of their right under Article 21 of the Constitution. The
court opined that while hawkers have a fundamental right under Article 19(1) (g) to carry on
trade or business of their choice; they have no right to do so in a particular place. They cannot be
permitted to carry on their trade on every road in the city. If the road is not wide enough to be
conveniently accommodating the traffic on it, no hawking may be permitted at all, or may be
permitted once a week. Footpaths, streets or roads are public property and are intended to several
general public and are not meant for private use. However, the court said that the affected
persons could apply for relocation and the concerned authorities were to consider the
representation and pass orders thereon. The two rights were too remote to be connected together.
The court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation and held
that “in that case the petitioners were very poor persons who had made pavements their homes
existing in the midst of filth and squalor and that they had to stay on the pavements so that they
could get odd jobs in city. It was not the case of a business of selling articles after investing some
capital.”

In Secretary, State of Karnataka v. Umadevi, the Court rejected that right to employment at the
present point of time can be included as a fundamental right under Right to Life under Art. 21.

Right to Shelter

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the right to shelter has
been held to be a fundamental right which springs from the right to residence secured in article
19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the poor,
the state has to provide facilities and opportunities to build houses.

Upholding the importance of the right to a decent environment and a reasonable accommodation,
in Shantistar Builders v. Narayan Khimalal Totame, the Court held that

“The right to life would take within its sweep the right to food, the right to clothing, the right to
decent environment and a reasonable accommodation to live in. The difference between the need
of an animal and a human being for shelter has to be kept in view. For the animal it is the bare
protection of the body, for a human being it has to be a suitable accommodation, which would

32
allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at
ensuring fuller development of every child. That would be possible only if the child is in a proper
home. It is not necessary that every citizen must be ensured of living in a well-built comfortable
house but a reasonable home particularly for people in India can even be mud-built thatched
house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of U.P., a Bench of three Judges of Supreme Court had considered
and held that the right to shelter is a fundamental right available to every citizen and it was read
into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter
to make the right to life more meaningful. The Court observed that:

“Shelter for a human being, therefore, is not a mere protection of his life and limb. It is however
where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to
shelter, therefore, includes adequate living space, safe and decent structure, clean and decent
surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities
like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore,
does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary
to enable them to live and develop as a human being.”

Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of family .K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra
Bose, held that right to social and economic justice is a fundamental right under Art. 21. The
learned judge explained that right to life and dignity of a person and status without means, were
cosmetic rights. Socio-economic rights were, therefore, basic aspirations for meaning right to life
and that Right to Social Security and Protection of Family were integral part of right to life.

In N.H.R.C. v. State of Arunachal Pradesh, (Chakmas Case), the supreme court said that the
State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise,
and it cannot permit anybody or group of persons to threaten other person or group of persons.
No State Government worth the name can tolerate such threats by one group of persons to
another group of persons; it is duty bound to protect the threatened group from such assaults and
if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations.

Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde, it was held that right to economic
empowerment of poor, disadvantaged and oppressed dalits was a fundamental right to make their
right of life and dignity of person meaningful.

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In Regional Director, ESI Corporation v. Francis De Costa, the Supreme held that security
against sickness and disablement was a fundamental right under Art. 21 read with Sec. 39(e) of
the Constitution of India.

In L.I.C. of India v. Consumer Education and Research Centre, it was further held that right to
life and livelihood included right to life insurance policies of LIC of India, but that it must be
within the paying capacity and means of the insured.

Right Against Honour Killing

A division bench of Allahabad high court, In Surjit Kumar v. State of U.P., took serious note on
harassment, in ill treatment and killing of a person who was a major, for wanting to get married
to a person of another caste or community, for bringing dishonor to family since inter caste or
inter community marriage was not prohibited in law, the court said that such practice of “honour
killing” was a blot on society. The court, therefore, directed the police to take strong measures,
against those who committed such ‘honour killing’.

Right to Health

In State of Punjab v. M.S. Chawla, it has been held that- the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care.

The Supreme Court in Vincent v. Union of India, emphasized that a healthy body is the very
foundation of all human activities.Art.47, a directive Principle of State Policy in this regard lays
stress note on improvement of public health and prohibition of drugs injurious to health as one of
primary duties of the state.

In Consumer Education and Research Centre v. Union of India, The Supreme Court laid down
that:

“Social justice which is device to ensure life to be meaningful and livable with human dignity
requires the State to provide to workmen facilities and opportunities to reach at least minimum
standard of health, economic security and civilized living. The health and strength of worker, the
court said, was an important facet of right to life. Denial thereof denudes the workmen the finer
facets of life violating Art. 21.”

Right to Medical Care

In Parmananda Katara v. Union of India, the Supreme Court has very specifically clarified that
preservation of life is of paramount importance. The Apex Court stated that ‘once life is lost,
status quo ante cannot be restored.’ It was held that it is the professional obligation of all doctors
(government or private) to extent medical aid to the injured immediately to preserve life without
34
legal formalities to be complied with the police. Article21 casts the obligation on the state to
preserve life. It is the obligation of those who are in charge of the health of the community to
preserve life so that the innocent may be protected and the guilty may be punished. No law or
state action can intervene to delay and discharge this paramount obligation of the members of the
medical profession. No law or State action can intervene to avoid/delay the discharge of the
paramount obligation cast upon members of the medical profession. The obligation being total,
absolute and paramount, laws of procedure whether in statute or otherwise which would interfere
with the discharge of this obligation cannot be sustained and must, therefore, give way. The court
also observed:

“Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether
he be an innocent person or a criminal liable to punishment under the laws of the society, it is the
obligation of those who are in charge of the health of the community to preserve life so that the
innocent may be protected and the guilty may be punished. Social laws do not contemplate death
by negligence to tantamount to legal punishment…. Every doctor whether at a Government
hospital or otherwise has the professional obligation to extend his services with due expertise for
protecting life.”

In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal, a person
suffering from serious head injuries from a train accident was refused treatment at various
hospitals on the excuse that they lacked the adequate facilities and infrastructure to provide
treatment. In this case, the Supreme Court further developed the right to emergency treatment,
and went on to state that the failure on the part of the Government hospital to provide timely
medical treatment to a person in need of such treatment results in violation of his right to life
guaranteed under Article 21. It acknowledged the limitation of financial resources to give effect
to such a right, but maintained that it was necessary for the State to provide for the resources to
give effect to the entitlement of the people of receiving emergency medical treatment.

It has been reiterated, time and again, that there should be no impediment to providing
emergency medical care. In Pravat Kumar Mukherjee v. Ruby General Hospital & Others, it
was held that a hospital is duty bound to accept accident victims and patients who are in critical
condition and that it cannot refuse treatment on the ground that the victim is not in a position to
pay the fee or meet the expenses or on the ground that there is no close relation of the victim
available who can give consent for medical treatment.

The court has laid stress on a very crucial point, viz., state cannot plead lack of financial
resources to carry out these directions meant to provide adequate medical services to the people.
The state cannot avoid its constitutional obligation to provide adequate medical services to
people on account of financial constraints.

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But, in State of Punjab v. Ram Lubhaya Bagga, the Supreme Court has recognized that
provision of health facilities cannot be unlimited. The court held that it has to be to the extent
finance permits. No country gas unlimited resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of India, right to get free and timely
legal aid or facilities has been held to be not a fundamental right of ex-servicemen. A policy
decision in formulating contributory scheme for ex-servicemen and asking them to pay one time
contribution does not violate Art. 21 nor is it inconsistent with Part IV of the constitution.

No Right to die

Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to
live or a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309, I.P.C.,
1860, which punishes a person convicted of attempting to commit suicide? There has been
difference of opinion on the justification of this provision to continue on the statute book.

This question came for consideration for first time before the High Court of Bombay in State of
Maharashtra v. Maruti Sripati Dubal. In this case the Bombay High Court held that the right to
life guaranteed under Article 21 includes right to die, and the hon’ble High Court struck down
Section 309 of the IPC that provides punishment for attempt to commit suicide by a person as
unconstitutional.

In P. Rathinam v. Union of India, a two judge Division Bench of the Supreme Court, took
cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court
supporting the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that
the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his
detriment disadvantage or disliking. The court argued that the word life in Art. 21 means right to
live with human dignity and the same does not merely connote continued drudgery. Thus the
court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail
the right not to live a forced life. The court further emphasized that “attempt to commit suicide is
in realty a cry for held and not for punishment.”

The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State of
Punjab. The question before the court was that if the principal offence of attempting to commit
suicide is void as being unconstitutional vis-à-vis Art.21, then how abetment can thereof be
punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’ having been
included in Art.21 (Rathinam ruling), and Sec. 309 having been declared unconstitutional, any
person abetting the commission of suicide by another is merely assisting in the enforcement of
his fundamental right under Art. 21.

36
The Court overruled the decision of the Division Bench in the above stated case and has put an
end to the controversy and ruled that Art.21 is a provision guaranteeing protection of life and
personal liberty and by no stretch of imagination can extinction of life’ be read to be included in
protection of life. The court observed further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural

termination or extinction of life and, therefore, incompatible and inconsistent with the concept of
right to life”

Euthanasia and Right to Life

Euthanasia is termination of life of person who is terminally ill or in a permanent vegetative

state. In Gian Kaur v. State of Punjab, the Supreme Court has distinguished between Euthanasia
and attempt to commit suicide. The court held that death due to termination of natural life is
certain and imminent and the process of natural death has commenced. These are not cases of
extinguishing life but only of accelerating conclusion of the process of natural death that has
already commenced.

The court further held that, this may fall within the ambit of Right to live with human dignity up
to the end of natural life. This may include the right of a dying man to also die with dignity when
his life is ebbing out. This cannot be equated with the right to die an unnatural death curtailing
the natural span of life.

Sentence of death –Rarest of rare cases

The issue of abolition or retention of capital punishment was dealt with by the law commission
of India. After collecting as much available material as possible and assessing the views
expressed by western scholars, the commission recommended the retention of the capital
punishment in the present state of the country. The commission held the opinion that having
regard to the conditions of India, to the variety of the social upbringing of its inhabitants, to the
disparity in the level of morality and education in the country, to the vastness of its area, to the
diversity of its population and to the paramount need for maintaining law and order in the
country, India could not risk the experiment of abolition of capital punishment.

In Jagmohan v. State of U.P, the Supreme Court had held that death penalty was not violative of
articles 14, 19 and 21.it was said that the judge was to make the choice between death penalty
and imprisonment for life on the basis of circumstances, facts and nature of crime brought on
record during trail. Therefore, the choice of awarding death sentence was done in accordance
with the procedure established by law as required under article 21

37
But, in Rajindera Parsad v. State of U.P., Krishna Iyer J., speaking for the majority, held that
capital punishment would not be justified unless it was shown that the criminal was dangerous to
the society. The learned judge plead for the abolition of death penalty and said that it should
retained only for “white collar crimes”

However, in Bachan Singh v. State of Punjab, the leading case of on the question, a
constitution bench of the supreme court explained that article 21 recognized the right of the state
to deprive a person of his life in accordance with just, fair and reasonable procedure established
by a valid law. It was further held that death penalty for the offence of murder awarded under
section 302 of I.P.C did not violate the basic feature of the constitution.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar, it has held that a Public Interest Litigation is maintainable for
insuring enjoyment of pollution free water and air which is included in ‘right to live’ under
Art.21 of the constitution. The court observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of
enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or
impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of
the Constitution for removing the pollution of water or air which may be detrimental to the
quality of life.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free
from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation
and environment have been held to fall within the purview of Article 21 as it adversely affects
the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens
because of the hazards created if not checked.

The following are some of the well-known cases on environment under Article 21:

In M.C. Mehta v. Union of India (1988), the Supreme Court ordered closure of tanneries that
were polluting water.

In M.C. Mehta v. Union of India (1997), the Supreme Court issued several guideline and
directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.

In Vellore Citizens Welfare Forum v. Union of India, the Court took cognizance of the
environmental problems being caused by tanneries that were polluting the water resources,
38
rivers, canals, underground water and agricultural land. The Court issued several directions to
deal with the problem.

In Milk Men Colony Vikas Samiti v. State of Rajasthan, the Supreme Court held that the „right
to life‟ means clean surrounding which lead to healthy body and mind. It includes right to
freedom from stray cattle and animals in urban areas.

In M.C. Mehta v. Union of India (2006), the Court held that the blatant and large-scale misuse
of residential premises for commercial use in Delhi, violated the right to salubrious sand decent
environment. Taking note of the problem the Court issued directives to the Government on the
same.

In Murli S. Deora v. Union of India, the persons not indulging in smoking cannot be compelled
to or subjected to passive smoking on account of act of smokers. Right to Life under Article 21 is
affected as a non-smoker may become a victim of someone smoking in a public place.

Right Against Noise Pollution

In Re: Noise Pollution, the case was regarding noise pollution caused by obnoxious levels of
noise due to bursting of crackers during Diwali. The Apex Court suggested to desist from
bursting and making use of such noise making crackers and observed that:

“Article 21 of the Constitution guarantees life and personal liberty to all persons. It guarantees a
right of persons to life with human dignity. Therein are included, all the aspects of life which go
to make a person’s life meaningful, complete and worth living. The human life has its charm and
there is no reason why the life should not be enjoyed along with all permissible pleasures.
Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent
the noise as pollutant reaching him. No one can claim a right to create noise even in his own
premises that would travel beyond his precincts and cause nuisance to neighbors or others. Any
noise, which has the effect of materially interfering with the ordinary comforts of life judged by
the standard of a reasonable man, is nuisance…. While one has a right to speech, others have a
right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that
he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into
aural aggression. If anyone increases his volume of speech and that too with the assistance of
artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to
unpleasant or obnoxious levels then the person speaking is violating the right of others to a
peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be
pressed into service for defeating the fundamental right guaranteed by Article 21[lxix]”.

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Right to Know or Right to Be Informed

Holding that the right to life has reached new dimensions and urgency the Supreme Court in R.P.
Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy
had to function effectively, people must have the right to know and to obtain the conduct of
affairs of the State.

In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link
between Art.21 and Right to know, particularly where “secret government decisions may affect
health, life and livelihood.

Reiterating the above observations made in the instant case, the Apex Court in Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens who
had been made responsible to protect the environment had a right to know the government
proposal.

PERSONAL LIBERTY

Liberty of the person is one of the oldest concepts to be protected by national courts. As long as
1215, the English Magna Carta provided that,

No freeman shall be taken or imprisoned… but… by the law of the land.

The smallest Article of eighteen words has the greatest significance for those who cherish the
ideals of liberty. What can be more important than liberty? In India the concept of ‘liberty’ has
received a far more expansive interpretation. The Supreme Court of India has rejected the view
that liberty denotes merely freedom from bodily restraint; and has held that it encompasses those
rights and privileges that have long been recognized as being essential to the orderly pursuit of
happiness by free men. The meaning of the term ‘personal liberty’ was considered by the
Supreme Court in the Kharak Singh’s case, which arose out of the challenge to Constitutional
validity of the U. P. Police Regulations that provided for surveillance by way of domiciliary
visits and secret picketing. Oddly enough both the majority and minority on the bench relied on
the meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in
Munn v Illinois, which held the term ‘life’ meant something more than mere animal existence.
The prohibition against its deprivation extended to all those limits and faculties by which the life
was enjoyed. This provision equally prohibited the mutilation of the body or the amputation of
an arm or leg or the putting of an eye or the destruction of any other organ of the body through
which the soul communicated with the outer world. The majority held that the U. P. Police
Regulations authorizing domiciliary visits [at night by police officers as a form of surveillance,
constituted a deprivation of liberty and thus] unconstitutional. The Court observed that the right
to personal liberty in the Indian Constitution is the right of an individual to be free from
40
restrictions or encroachments on his person, whether they are directly imposed or indirectly
brought about by calculated measures.

The Supreme Court has held that even lawful imprisonment does not spell farewell to all
fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those
‘necessarily’ lost as an incident of imprisonment

Right to Privacy

As per Black’s Law Dictionary, privacy means “right to be let alone; the right of a person to be
free from unwarranted publicity; and the right to live without unwarranted interference by the
public in matters with which the public is not necessarily concerned”

Although not specifically referenced in the Constitution, the right to privacy is considered a
‘penumbral right’ under the Constitution, i.e. a right that has been declared by the Supreme Court
as integral to the fundamental right to life and liberty. Right to privacy has been culled by
Supreme Court from Art. 21 and several other provisions of the constitution read with the
Directive Principles of State Policy. Although no single statute confers a crosscutting
‘horizontal’ right to privacy; various statutes contain provisions that either implicitly or explicitly
preserve this right.

For the first time in Kharak Singh v. State of U.P. question whether the right to privacy could be
implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before
the court. “Surveillance” under Chapter XX of the U.P. Police Regulations constituted an
infringement of any of the fundamental rights guaranteed by Part III of the Constitution.
Regulation 236(b), which permitted surveillance by “domiciliary visits at night”, was held to be
in violation of Article 21. A seven-judge bench held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by
this court in Kharak Singh’s case. Although the majority found that the Constitution contained
no explicit guarantee of a “right to privacy”, it read the right to personal liberty expansively to
include a right to dignity. It held that “an unauthorized intrusion into a person’s home and the
disturbance caused to him thereby, is as it were the violation of a common law right of a man -an
ultimate essential of ordered liberty, if not of the very concept of civilization”

In a minority judgment in this case, Justice Subba Rao held that:

“the right to personal liberty takes in not only a right to be free from restrictions placed on his
movements, but also free from encroachments on his private life. It is true our Constitution does
not expressly declare a right to privacy as a fundamental right but the said right is an essential
ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to

41
give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house,
where he lives with his family, is his ‘castle’; it is his rampart against encroachment on his
personal liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on
the right to privacy using Article 21.

In Govind v. State of Madhya Pradesh, The Supreme Court took a more elaborate appraisal of
the right to privacy. In this case, the court was evaluating the constitutional validity of
Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police
surveillance of habitual offenders including domiciliary visits and picketing of the suspects. The
Supreme Court desisted from striking down these invasive provisions holding that:

“It cannot be said that surveillance by domiciliary visit would always be an unreasonable
restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals
and those who are determined to lead a criminal life that are subjected to surveillance.”

The court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d)
and 21. Mathew J. observed in the instant case,

“The right to privacy will, therefore, necessarily, have to go through a process of case by case
development. Hence, assuming that the right to personal liberty. the right to move freely
throughout India and the freedom of speech create an independent fundamental right of
privacy as an emanation from them that one can characterize as a fundamental right, we do not
think that the right is absolute.

…… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral
zones and that the right to privacy is itself a fundamental right that fundamental right must be
subject to restrictions on the basis of compelling public interest”

In R. Rajagopalan v. State of Tamil Nadu, The right to privacy of citizens was dealt with by the
Supreme Court in the following terms:

“(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy
of his own, his family, marriage, procreation, motherhood, childbearing and education among
other matters. None can publish anything concerning the above matters without his consent –
whether truthful or otherwise and whether laudatory or critical. If he does so, he would be
violating the right to privacy of the person concerned and would be liable in an action for
damages. Position may, however, be different, if a person voluntarily thrusts himself into
controversy or voluntarily invites or raises a controversy.

42
(2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid
aspects becomes unobjectionable if such publication is based upon public records including court
records. This is for the reason that once a matter becomes a matter of public record, the right to
privacy no longer subsists and it becomes a legitimate subject for comment by press and media
among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an
exception must be carved out to this rule, viz., a female who is the victim of a sexual assault,
kidnap, abduction or a like offence should not further be subjected to the indignity of her name
and the incident being publicized in press/media.”

The final case that makes up the ‘privacy quintet’ in India was the case of PUCL v. Union of
India, the Supreme Court observed that:

We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life”
and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given
case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed
“except according to procedure established by law”.

Scope and Content of Right to Privacy:

Tapping of Telephone
Emanating from the right to privacy is the question of tapping of telephone.

In R.M. Malkani v. State of Maharashtra, the Supreme Court held that, the telephonic
conversation of an innocent citizen will be protected by Courts against wrongful or high handed’
interference by tapping the conversation. The protection is not for the guilty citizen against the
efforts of the police to vindicate the law and prevent corruption of public servants.

Telephone tapping is permissible in India under Section 5(2) of the Telegraph Act, 1885. The
Section lays down the circumstances and grounds when an order for tapping of a telephone may
be passed, but no procedure for making the odder is laid down therein.

The Supreme Court in PUCL v. Union of India held that in the absence of just and fair
procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to
safeguard the fundamental rights of citizens under Section 19 and 21. Accordingly, the court
issued procedural safeguards to be observed before restoring to telephone tapping under Section
5(2) of the Act.

The Court further ruled that “right to privacy is a part of the right to “life” and “personal liberty”
enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to
privacy; Article 21 is attracted. The said right cannot be curtailed “except according to procedure

43
established by law”. The court has further ruled that Telephone conversation is an important
facet of a man’s private life. Right to privacy would certainly include telephone conversation in
the privacy of one’s home or office. Telephone tapping would, thus, infract Article 21 of the
Constitution of India unless it is permitted under the procedure established by law. The
procedure has to be just, fair and reasonable.”

Disclosure of Dreadful Diseases

In Mr. X v. Hospital Z, the question before the Supreme Court was whether the disclosure by the
doctor that his patient, who was to get married had tested HIV positive, would be violative of the
patient’s right to privacy. The Supreme Court ruled that the right to privacy was not absolute and
might be lawfully restricted for the prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others. The court explained that the right to life of
a lady with whom the patient was to marry would positively include the right to be told that a
person, with whom she was proposed to be married, was the victim of a deadly disease, which
was sexually communicable. Since the right to life included right to healthy life so as to enjoy all
the facilities of the human body in the prime condition it was held that the doctors had not
violated the right to privacy.

Right to privacy and subjecting a person to medical tests

It is well settled that the right to privacy is not treated as absolute and is subject to such action as
may be lawfully taken for the preventive of crimes or disorder or protection of health or morals
or protections of rights and freedom of others. In case there is conflict between fundamental
rights of two parties that which advances public morality would prevail.

A three-judge bench in case of Sharda v. Dharmpal, ruled that a matrimonial court had the
power to direct the parties to divorce proceedings, to undergo a medical examination. a direction
issued for this could not be held to the violative of one’s right to privacy but court however said
that for this there must be a sufficient material.

Right to Privacy-Woman’s Right to Make Reproductive Choices

A woman’s right to make reproductive choices includes the woman’s right to refuse participation
in sexual activity or alternatively the insistence on use of contraceptive methods such as
undergoing sterilization procedures woman’s entitlement to carry a pregnancy to its full term, to
give birth and subsequently raise children.

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Right to go abroad

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, the Supreme Court has
included Right to travel abroad contained in by the expression “personal liberty” within the
meaning of Article 21.

In Maneka Gandhi v. Union of India, validity of Sec. 10(3)(c) of the passport Act 1967, which
empowered government to impound the passport of a person, in the interest of general public
was challenged before the seven-judge Bench of the Supreme Court.

It was contended that, right to travel abroad being a part of right to “personal liberty” the
impugned section didn’t prescribe any procedure to deprive her of her liberty and hence it was
violative of Art. 21.

The court held that the procedure contemplated must stand the test of reasonableness in order to
conform to Art.21 other fundamental rights. It was further held that as the right to travel abroad
falls under Art. 21, natural justice must be applied while exercising the power of impounding
passport under the Passport Act. BHAGWATI, J., observed:

The principle of reasonableness, which legally as well as philosophically, is an essential element

of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and that It
must be “‘right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be
no procedure at all and the requirement of Article 21 would not be satisfied.

Right against Illegal Detention

In Joginder Kumar v. State of Uttar Pradesh, the petitioner was detained by the police officers
and his whereabouts were not told to his family members for a period of five days. Taking the
serous note of the police high headedness and illegal detention of a free citizen, the Supreme
Court laid down the guidelines governing arrest of a person during investigation:

An arrested person being held in custody is entitled, if he so requests to have a friend, relative or
other person told as far as is practicable that he has been arrested and where he is being detained.

The police officer shall inform the arrested person when he is brought to the police station of this
right. An entry shall be required to be made in the diary as to who was informed of the arrest.

In the case of D.K. Basu v. State of West Bengal, the Supreme Court laid down detailed
guidelines to be followed by the central and state investigating agencies in all cases of arrest and
detention till legal provisions are made in that behalf as preventive measures and held that any
form of torture or cruel inhuman or degrading treatment, whether it occurs during interrogation,
investigation or otherwise, falls within the ambit of Article 21.
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Article 21 & Prisoner’s Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not by mere
reason of their conviction deprived of all their fundamental rights that they otherwise possess.
Following the conviction of a convict is put into a jail he may be deprived of fundamental
freedoms like the right to move freely throughout the territory of India. But a convict is entitled
to the precious right guaranteed under Article 21 and he shall not be deprived of his life and
personal liberty except by a procedure established by law.

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21.
The Court has interpreted Article 21 so as to have widest possible amplitude. On being convicted
of crime and deprived of their liberty in accordance with the procedure established by law.
Article 21, has laid down a new constitutional and prison jurisprudence. The rights and
protections recognized to be given in the topics to follow:

Right to Free Legal Aid & Right to Appeal

In M.H. Hoskot v. State of Maharashtra, the Supreme Court said while holding free legal aid as
an integral part of fair procedure the Court explained that “ the two important ingredients of the
right of appeal are; firstly, service of a copy of a judgement to the prisoner in time to enable him
to file an appeal and secondly, provision of free legal service to the prisoner who is indigent or
otherwise disabled from securing legal assistance. This right to free legal aid is the duty of the
government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this
cannot be termed as government charity.

In other words, an accused person at lease where the charge is of an offence punishable with
imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Counsel for
the accused must be given sufficient time and facility for preparing his defence. Breach of these
safeguards of fair trial would invalidate the trial and conviction.

Right to Speedy Trial

In Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the notice of the
Supreme Court that an alarming number of men, women and children were kept in prisons for
years awaiting trial in courts of law. The Court took a serious note of the situation and observed
that it was carrying a shame on the judicial system that permitted incarceration of men and
women for such long periods of time without trials.

The Court held that detention of under-trial prisoners, in jail for period longer than what they
would have been sentenced if convicted, was illegal as being in violation of Article of 21. The

46
Court, thus, ordered the release from jail of all those under-trial prisoners, who had been in jail
for longer period than what they could have been sentenced had they been convicted

In A.R. Antulay v. R.S. Nayak, a Constitution Bench of five judges of the Supreme Court dealt
with the question and laid down certain guidelines for ensuring speedy trial of offences some of
them have been listed below:

Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried
speedily.

Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, appeal, revision and retrial.

The concerns underlying the right of speedy trial from the point of view of the accused are:

The period of remand and pre-conviction detention should be as short as possible.

The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly
prolonged investigation, enquiry or trial should be minimal; and

Undue delay may well result in impairment of the ability of the accused to defend him.

While determining whether undue delay has occurred, one must have regard to all the attendant
circumstances, including nature of offence, number of accused and witnesses, the workload of
the court concerned. Each and every delay does not necessarily prejudice the accused. An
accuser’s plea of denial of speedy trial cannot be defeated by saying that the accused did at no
time demand a speedy trial

In the case of Anil Rai v. State of Bihar, the Supreme Court directed the Judges of the High
Courts to give quick judgements and in certain circumstances the parties are to submit
application to the Chief Justice to move case to other bench or to do the needful at his discretion.

Right to Fair Trial

Free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in
Zahira Habibullah Sheikh v. State of Gujarat said that right to free and fair trial not only to the
accused but also to the victims, their family members and relatives, and society at large.

Right to Bail

The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe
present-day unsatisfactory and irrational rules for bail, which insists merely on financial security
from the accused and their sureties. Many of the under trials being poor and indigent are unable
47
to provide any financial security. Consequently they have to languish in prisons awaiting their
trials.

But incarceration of persons charged with non-bailable offences during pendency of trial cannot
be questioned as violative of Article 21 since the same is authorised by law. In the case of Babu
Singh v. State of Uttar Prades, the Court held that right to bail was included in the personal
liberty under Article 21 and its refusal would be deprivation of that liberty which could be
authorised in accordance with the procedure established by law.

No right to Anticipatory Bail

Anticipatory bail is a statutory right and it does not arise out of Article 21. Anticipatory bail
cannot be granted as a matter of right as it cannot be granted as a matter of right as it cannot be
considered as an essential ingredient of Article 21.

Right against Handcuffing

Handcuffing has been held to be prima facie inhuman and therefore unreasonable, over-harsh
and at first flush, arbitrary. It has been held to be unwarranted and violative of Article 21.

In Prem Shankar v. Delhi Administration, the Supreme Court struck down the Rules that
provided that every under-trial who was accused of a non-bailable offence punishable with more
than three years prison term would be routinely handcuffed. The Court ruled that handcuffing
should be resorted to only when there was “clear and present danger of escape” of the accused
under -trial, breaking out of police control.

Right against Solitary Confinement

It has been held that a convict is not wholly denuded of his fundamental rights and his conviction
does not reduce to him into a non – person whose rights are subjected to the whims of the prison
administration. Therefore, the imposition of any major punishment within the prison system is
conditional upon the observance of procedural safeguard.

In Sunil Batra v. Delhi Administration, the petitioner was sentenced to death by the Delhi
session court and his appeal against the decision was pending before the high court. He was
detained in Tihar Jail during the pendency of the appeal. He complained that since the date of
conviction by the session court, he was kept in solitary confinement. It was contended that
Section 30 of Prisoners Act does not authorize jail authorities to send him to solitary
confinement, which by itself was a substantive punishment under Sections 73 and 74 of the
Indian Penal Code, 1860 and could be imposed by a court of law and it could not be left to the
48
whim and caprice of the prison authorities. The Supreme Court accepted the argument of the
petitioner and held that imposition of solitary confinement on the petitioner was violative of
Article 21.

Right against Custodial Violence

The incidents of brutal police behavior towards persons detained on suspicion of having
committed crimes are a routine matter. There has been a lot of public outcry from time to time
against custodial deaths.

The Supreme Court has taken a very positive stand against the atrocities, intimidation,
harassment and use of third-degree methods to extort confessions. The Court has classified these
as being against human dignity. The rights under Article 21 secure life with human dignity and
the same are available against torture.

Death by Hanging not Violative of Article 21

In Deena v. Union of India, the constitutional validity of the death sentence by hanging was
challenged as being “barbarous, inhuman, and degrading” and therefore violative of Article 21.
Referring to the Report of the UK Royal Commission, 1949; the opinion of the Director General
of Health Services of India, the 35th Report of the Law Commission; and the opinion of the
Prison Advisers and Forensic Medicine Experts, the Court held that death by hanging was the
best and least painful method of carrying out the death penalty, and thus not violative of Article
21.

Right against Public Hanging

The Rajasthan High Court, by an order directed the execution of the death sentence of an
accused by hanging at the Stadium Ground of Jaipur. It was also directed that the execution
should be done after giving widespread publicity through the media.

On receipt of the above order, the Supreme Court in Attorney General of India v. Lachma Devi
held that the direction for execution of the death sentence was unconstitutional and violative of
Article 21. It was further made clear that death by public hanging would be a barbaric practice.
Although the crime for which the accused has been found guilty was barbaric it would be a
shame on the civilised society to reciprocate the same. The Court said, “a barbaric crime should
not have to be visited with a barbaric penalty.”

Right against Delayed Execution

In T.V. Vatheeswaram v. State of Tamil Nadu, the Supreme Court held that delay in execution
of death sentence exceeding 2 years would be sufficient ground to invoke protection under
49
Article 21 and the death sentence would be commuted to life imprisonment. The cause of the
delay is immaterial, the accused himself may be the cause of the delay.

In Sher Singh v. State of Punjab, the Supreme Court said that prolonged wait for execution of a
sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo that
is through Article 21. But the Court held that this cannot be taken as the rule of law and applied
to each case and each case should be decided upon its own faces.

Right to Write a Book

In State of Maharashtra v. Prabhakar Panduran, the petitioner while under detention in jail
wrote a book on science and sought the permission from the Government to send the manuscript
of the book to his wife for publication, to which the Government refused. The Court held that
this was an infringement of personal liberty and that Article 21 included the right to write the
book and get it published.

Right against Bar Fetters

In Sunil Batra v. Delhi Administration, the Supreme Court gave Right against Bar Fetters and
held that treatment that offended human dignity and reduced man to a level of beast would
certainly be arbitrary and could be questioned under Article 21, but the right is not absolute.

PROCEDURE ESTABLISHED BY LAW

The expression “procedure established by law” has been subject matter of interpretation in a
catena of cases. A survey of these cases reveals that courts in the process of judicial
interpretation have enlarged the scope of the expression. The Supreme Court took the view that
“procedure established by law” in Article 21 means procedure prescribed by law as enacted by
the state and rejected to equate it with the American “due process of law.” But, in Maneka
Gandhi v Union of India the Supreme Court observed that the procedure prescribed by law for
depriving a person of his life and personal liberty must be “right, just and fair” and not
“arbitrary, fanciful and oppressive,” otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Thus, the “procedure established by law” has
acquired the same significance in India as the “due process of law” clause in America. Justice V.
R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration has said that though “our
Constitution has no due process clause” but after Maneka Gandhi’s case “the consequence is the
same, and as much as such Article 21 may be treated as counterpart of the due process clause in
American Constitution.”
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Recently the Supreme Court has dealt with an increasing number of people sentenced to death
for “bride-burning”. In December 1985 the Rajasthan High Court sentenced a man, Jagdish
Kumar, and a woman, Lichma Devi, to death for two separate cases of killing two young woman
by setting them on fire. In an unprecedented move the court ordered both prisoners to be publicly
executed. In a response to a review petition by the Attorney General against this judgment the
Supreme Court in December 1985 stayed the public hangings, observing that “a barbaric crime
does not have to be met with a barbaric penalty.” The Court observed that the execution of death
sentence by public hanging is violation of article 21, which mandates the observance of a just,
fair and reasonable procedure. Thus, an order passed by the High Court of Rajasthan for public
hanging was set aside by the Supreme Court on the ground inter alia, that it was violative of
article 21. In Sher Singh v State of Punjab the Supreme Court held that unjustifiable delay in
execution of death sentence violates art 21.

The Supreme Court has taken the view that this article read as a whole is concerned with the
fullest development of an individual and ensuring his dignity through the rule of law. Every
procedure must seem to be ‘reasonable, fair and just.’ The right to life and personal liberty has
been interpreted widely to include the right to livelihood, health, education, environment and all
those matters that contributed to life with dignity. The test of procedural fairness has been
deemed to be one that is commensurate to protecting such rights. Thus, where workers have been
deemed to have the right to public employment and its concomitant right to livelihood, a hire-fire
clause in favour of the State is not reasonable, fair and just even though the State cannot
affirmatively provide livelihood for all. Under this doctrine the Court will not just examine
whether the procedure itself is reasonable, fair and just, but also whether it has been operated in a
fair, just and reasonable manner. This has meant, for example the right to speedy trial and legal
aid is part of any reasonable, fair and just procedure. The process clause is comprehensive and
applicable in all areas of State action covering civil, criminal and administrative action.

The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v.
Union of India observed that, the fundamental right guaranteed under Article 21 of the
Constitution of India provides that none shall be deprived of his life without due process of law.
The Court observed that smoking in public places is an indirect deprivation of life of
non-smokers without any process of law. Taking into consideration the adverse effect of
smoking on smokers and passive smokers, the Supreme Court directed prohibition of smoking in
public places. It issued directions to the Union of India, State Governments and the Union
Territories to take effective steps to ensure prohibition of smoking in public places such as
auditoriums, hospital buildings, health institutions etc. In this manner the Supreme Court gave a
liberal interpretation to Article 21 of the Constitution and expanded its horizon to include the
rights of non-smokers.

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Further, when there is inordinate delay in the investigation – it affects the right of the accused, as
he is kept in tenterhooks and suspense about the outcome of the case. If the investigating
authority pursues the investigation as per the provisions of the Code, there can be no cause of
action. But, if the case is kept alive without any progress in any investigation, then the provisions
of Article 21 are attracted and the right is not only against actual proceedings in court but also
against police investigation. The Supreme Court has widen the scope of ‘procedure established
by law’ and held that merely a procedure has been established by law a person cannot be
deprived of his life and liberty unless the procedure is just, fair and reasonable. It is thus now
well established that the “procedure established by law” to deprive a person of his life and
personal liberty, must be just, fair and reasonable and that it must not be arbitrary, fanciful or
oppressive, that the procedure to be valid must comply with the principles of natural justice.

ARTICLE 21 AND THE EMERGENCY

In A.D.M. Jabalpur v. S. Shukla, Popularly known as habeas corpus case, the supreme court
held that article 21 was the sole repository of the right to life and personal liberty and therefore,
if the right to move any court for the enforcement of that right was suspended by the presidential
order under article 359, the detune would have no locus standi to a writ petition for challenging
the legality of his detention.

Such a wider connotation given to article 359, resulted in the denial of the cherished right to
personal liberty guaranteed to the citizens. Experience established that during emergence of
1975, the fundamental freedom of the people had lost all meanings.

In order that it must not occur again, the constitution act, 1978, amended article 359 to the effect
that during the operation of proclamation of emergency, the remedy for the enforcement of the
fundamental right guaranteed by article 21 would not be suspended under a presidential order.

In view of the 44th amendment, 1978, the observation made in the above cited judgments are left
merely of academic importance

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Directive Principles of State Policy
Part IV of Indian Constitution deals with Directive Principles of our State Policy (DPSP). The
provisions contained in this Part cannot be enforced by any court, but these principles are
fundamental in the governance of the country and it shall be the duty of the State to apply these
principles in making laws.

The concept of Directive Principles of State Policy was borrowed from the Irish Constitution.
While most of the Fundamental Rights are negative obligations on the state, DPSPs are positive
obligations on the state, though not enforceable in a court of law.

Article 36: Definition

In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part
III.

Article 37: Application of the principles contained in this Part

The provisions contained in this Part shall not be enforced by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall be
the duty of the State to apply these principles in making laws.

Article 38: State to secure a social order for the promotion of the welfare of the people

(1) The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall inform
all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocations.

Article 39: Certain principles of policy to be followed by the State

The State shall, in particular, direct its policy towards securing –

(a) that the citizen, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed
as best to sub serve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment;
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(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are
not abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.

Article 39A: Equal justice and free legal aid

The State shall secure that the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or
in any other way, to ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.

Article 40: Organisation of village panchayats

The State shall take steps to organise village panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self-government.

Article 41: Right to work, to education and to public assistance in certain cases

The State shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 42: Provision for just and humane conditions of work and maternity relief

The State shall make provision for securing just and humane conditions of work and for
maternity relief.

Article 43: Living wage, etc., for workers

The State shall endeavor to secure, by suitable legislation or economic organisation or in any
other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of
work ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities and, in particular, the State shall endeavour to promote cottage industries on an
individual or co-operative basis in rural areas.

Article 43A: Participation of workers in management of industries

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The State shall take steps, by suitable legislation or in any other way, to secure the participation
of workers in the management of undertakings, establishments or other organisation engaged in
any industry.

Article 44: Uniform civil code for the citizen

The State shall endeavour to secure for the citizens a uniform civil code throughout the territory
of India.

Article 45: Provision for free and compulsory education for children

The State shall endeavour to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they complete the age
of fourteen years.

Article 46: Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes and other weaker sections

The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.

Article 47: Duty of the State to raise the level of nutrition and the standard of living and to
improve public health

The State shall regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for medicinal purpose of
intoxicating drinks and of drugs which are injurious to health.

Article 48: Organization of agriculture and animal husbandry

The State shall endeavour to organize agriculture and animal husbandry on modern and scientific
lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting
the slaughter, of cows and calves and other milch and draught cattle.

Article 48A: Protection and improvement of environment and safeguarding of forests and
wildlife

The State shall endeavour to protect and improve the environment and to safeguard the forests
and wildlife of the country.

Article 49: Protection of monuments and places and objects of national importance
55
It shall be the obligation of the State to protect every monument or place or object of artistic or
historic interest, declared by or under law made by Parliament to be of national importance, from
spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

Article 50: Separation of judiciary from the executive

The State shall take steps to separate the judiciary from the executive in the public services of the
State.

Article 51: Promotion of international peace and security

The State shall endeavour to –

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised people
with one another; and

(d) encourage settlement of international disputes by arbitration.

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FUNDAMENTAL DUTIES (ARTICLE 51 A)
It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the
National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life,
and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavor and achievement.

(k) to provide opportunities for education to his child or ward between the age of six and
fourteen years. (This duty was added by the 86th Constitutional Amendment Act, 2002)

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Right To Freedom of Religion under the Indian Constitution
Article 25 to 28 of the Indian Constitution confers certain rights relating to the freedom
of religion. These Constitutional provisions guarantee religious freedom not only to individuals
but also to religious groups.

What is Religion -

The term religion has not been defined in the constitution. Religion has no precious definition.
Religion is a matter of Faith but belief in God is not essential to constitute Religion. Doctrines of
each religion constitute its essential part, but the court is competent to examine them. Philosophy
is different from religion.

Secularism -

Secularism in India does not mean irreligion. It means respect for all faiths and religions.
India being a secular state there is no state preferred religion as such and all religious groups
enjoy the same constitutional protection without any favor or discrimination.

Indian Constitution provides a secular State guarantees freedom of religion in Article 25 to

Article 28 to all persons, whether they belong to minority community or majority community.
The freedom guaranteed in this articles includes the following -

Right to Freedom of Religion (under the Constitution of India)

1) Freedom of conscience and free profession, practice and propagation of religion (Article 25)

2) Freedom to manage religious affairs (Article 26)

3) Freedom as to payment of taxes for promotion of any particular religion (Article 27)

4) Freedom as to attendance at religious instruction or religious worship in certain educational

institutions (Article 28)

1) Freedom of conscience and free profession, practice and propagation of religion

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According to Article 25(1) of the Indian Constitution, Subject to public order, morality, and
health and to the other provisions of this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law-

(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus.

Explanation I -

The wearing and carrying of kirpans shall be deemed to be included in the profession of the
Sikh religion.

Explanation II -

In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly.

2) Freedom to manage religious affairs -

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Article 26 Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

3) Freedom as to payment of taxes for promotion of any particular religion

Article 27 No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular religion
or religious denomination.

4) Freedom as to attendance at religious instruction or religious worship in certain educational

institutions

Article 28 (1) No religious instruction shall be provided in any educational institution wholly
maintained out of State funds.

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(2) Nothing in clause (1) shall apply to an educational institution which is administered by the
State but has been established under any endowment or trust which requires that religious
instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or receiving aid out
of State funds shall be required to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be conducted in such institution or in
any premises attached thereto unless such person or, if such person is a minor, his guardian has
given his consent thereto.

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MINORITIES RIGHTS (ARTICLE 29 & 30)
The Scope of Article 29 and 30 of the Constitution:

These two articles confer four distinct rights.

1. The Right of citizens to conserve its language, script or culture [Art.29(1)]1– “Any
section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same”

2. The Right of a citizen not to be denied admission into state maintained and state-aided
institution on the ground only of religion, race, caste, or language [Art.29(2)2]-”No citizen shall
be denied admission into any educational institution maintained by the State or receiving aid out
of State funds on grounds only of religion, race, caste, language or any of them”

3. The Right of all the religious or linguistic minorities to establish and administer
educational institutions of their own choice [Art.30(1)3]-“All minorities, whether based on
religion or language, shall have the right to establish and administer educational institutions of
their choice.”

4. The Right of an educational institution not to be discriminated against in the matter of

State aid on the ground that it is under the management of a minority [Art.30(2)4]-“The state
shall not, in granting aid to educational institutions, discriminate against any educational
institution on the ground that it is under the management of a minority, whether based on
religion or language.”

To preserve language, script, and culture

Article 29(1) extends to all the citizens irrespective of the fact whether they are in majority or
minority, the only condition being that such section must have a distinct language, script or
culture of its own. It is an absolute right for the minorities to preserve its language and culture
through educational institutions and cannot be subject to reasonable restrictions in the interest of
the general public.

Restrictions on the ground of religion, race, caste or language

Article 29(2) is an individual right given to citizen and not to any community. The present clause
gives an aggrieved person, who has been denied admission on the ground of his religion. If a
person has the academic qualifications but is refused admission only on the grounds of religion,
race, caste, language or any of them, then there is a clear breach of the fundamental right under
this section.5

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Right to Establish and Administer Educational Institution

Article 30(1) is further divided into two parts, that is:

Right to establish

To claim the benefit under article 30(1) it is not necessary-

1. That the institution must seek to conserve the language, script or culture of the minority
community; what is necessary is its establishment by the minority community, it may impart
religious or secular education wholly unconnected with language, script, and culture.

2. That admission into such institution must be confined exclusively to members of the
minority community, and not a single member of the majority community or other minority
communities should have its advantage.6

Case Study of Aligarh Muslim University (AMU) {Azeez Basha v. Union of India}

In the case of Azeez Basha v. Union of India 7, the Supreme Court held that if an educational
institution is not been established by the minority community then they have no right to
administer it. The term “established” and “administered” have to be read in coordination. The
University Grants Commission Act prohibits the formulation of “University” established by the
educational institution unless and until it is governed by law.

1. Wanchoo clearly stated that the article cannot be read to mean that even if the minority
institution had been established by any other authority (Act of Parliament), in this case, the
religious minority cannot avail the services of the university because “establish” and “authority”
are the terms which are complementary to each other.

In the case of Dr. Naresh Agarwal v. Union of India8, where 50% of the seats to be filled on the
basis of entrance examination conducted by Aligarh Muslim University and the other 50% of the
seats was reserved for Muslim Candidates. The petitioners in this case, who are Hindu by caste
have been deprived of their right to participate in the process of admission against that 50%. The
Allahabad High Court followed the judgment of Azeez Basha v. Union of India and held that
AMU is not a minority institution and struck down the amendment which was made in the favor
of Aligarh Muslim University.

Definition of Minority

The term ‘minority’ is not defined anywhere in the Constitution of India but the judges have
interpreted the meaning in many different cases which are mentioned below:

• Re-Education Bill [9]

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Supreme Court through J. S.R Das held that “minority” means a community which is
numerically less than 50% of the total population.

A similar judgment was passed by the Kerala High Court in the case of A.M Patroni v.
Kesavan10 in which it was held that “any religious or linguistic community which is less than
50% of the total population shall be considered as a “minority”.

• D.A.V College, Bathinda v. State of Punjab & Ors

For the purpose of article 30(1) a community may constitute a minority based on language, even
though they may not have a separate script; it would be enough if they have a separate spoken
language.

Right to administer

The word “administer” under article 30(1) of the Constitution means the right to manage and
conduct the affairs of the institution. It is open to a university to impose reasonable conditions
upon a minority institution for maintaining the requisite educational standard and efficiency like-

1. Qualifications of teachers to be appointed in the institution;

2. Conditions of service e.g the age of superannuation of teachers;

3. Qualifications for entry of students;

4. Courses of study (subject to special subjects which the institution may seek to teach)

5. Hygiene and physical training of students.12

In State of Bombay v. Bombay Education Society13, it was held that “Where…..A minority like
the Anglo Indian community, which is based, inter-alia, on religion and language has the
fundamental right to conserve its language, script and culture under Article 29(1) and has the
right to establish and administer educational institution of their choice under Article 30(1)5
surely then there must be implicit in the fundamental right, the right to impart instruction in their
own institutions to children of their own community in then own language…….such being the
fundamental right the police power of the state to determine the medium of instruction must
yield to the fundamental right to the extent it is necessary to give effect to it and can not be
permitted to run counter to it”

In St. Xavier’s College v. The State of Gujarat, the court held that the right to administer is the
right to ‘conduct’ and ‘manage’ the affairs of the institution.

Admission Procedure in Minority Educational Institution

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In St. Stephen’s College v. University of Delhi14, the preference is given to Christian students
by St.Stephen’s College was challenged.

The Supreme Court by the majority of 1 to 4 held that the college is not bound to follow the
university circulars as it will deprive the college of their minority character. The right to select
students for admission is an important facet of administration. This power also can be regulated
but the regulation must be reasonable and should be conducive to the minority institutions. The
impugned directive of the university to select students on the uniform basis of marks secured in
the qualifying examinations would deny the right to the college to admit students belonging to
the Christian community. Unless some concession is provided to the Christian students15

The court decided the two categories for the selection process:

1. Category I – 50% of the seats reserved for the minority community.

2. Category II – remaining 50% are selected on the basis of merit.

But in T.M.A Pai Foundation v. State of Karnataka [16], it was held that “A minority institution
may have its own procedure and method of admission as well as selection of students,

but such a procedure must be fair and transparent, and the selection of students in professional
and higher education colleges should be on the basis of merit. The procedure adopted or
selection made should not tantamount to maladministration. Even an unaided minority institution
ought not to ignore the merit of the students to the colleges aforesaid, as in that event, the
institution will fail to achieve excellence”.

The court also overruled the decision in St. Stephen‟s case. The court has now granted the power
to the state to fix quotas for minority students.

Role of National Commission for Minority Educational Institution – A boon for minority
educational institution

The National Commission for Minority Educational Institution has the original jurisdiction to
determine the minority status of any educational institution as held by the Hon’ble Supreme
Court of India.

Justice Nariman, who authored the judgment, said the NCMEI Act grants the Commission to act
upon all the queries relating to the status of a minority institution.

A power of cancellation was also vested in the NCMEI to cancel a certificate granted either by
an authority or the NCMEI.17

Whether Jamia Millia Islamia is a minority institution?

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On 22nd February 2011 National Commission for Minority Educational Institution (NCMEI) has
declared Jamia Millia Islamia a religious minority institution and that the university will have the
benefit of being a minority institution under article 29 and article 30 of the Constitution.

According to Section 2 (o) of the JMI Act says “University” means the educational institution
known as “Jamia Millia Islamia” founded in 1920 during the Khilafat and Non-Co-operation
movements in response to Gandhiji’s call for a boycott of all Government-sponsored educational
institutions, which was subsequently registered in 1939 as Jamia Millia Islamia Society, and
declared in 1962 as an institution deemed to be a University under section 3 of the University
Grants Commission Act, 1956, and which is incorporated as a University under this Act.18

On 5th March 2018, an affidavit is filed by the incumbent Government in the Delhi High Court
regarding the minority status of Jamia Millia Islamia where they cited the case of Azeez Basha v.
Union of India to justify their stand, in which the apex court held that university incorporated
under the act of parliament cannot be claimed as a minority institution.

The affidavit concludes that JMI is not a minority institution as it was set up by the Act of
Parliament and funded by the central government and it was not set up by any minority sect.

Conclusion

Our constitution aims at “Unity in Diversity”. The minority status is not only dependant on the
basis of religion but also on linguistic minorities. These provisions are inserted in the
constitution so that minorities can also preserve and develop their culture.

In St. Xavier College v. State of Gujarat that “the spirit behind the provision of the following
article is conscience of the nation that the minorities, religious as well as linguistic, are not
prohibited from establishing and administering educational institutes, of their choice for the
purpose of giving their child the best general education to make them complete man and women
of the country.

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Article 32 under the Constitution of India – Right To Constitutional
Remedies
Concept and Purpose

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court
to seek justice when they feel that their right has been ‘unduly deprived’. The apex court is given
the authority to issue directions or orders for the execution of any of the rights bestowed by the
constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.

Under Article 32, the parliament can also entrust any other court to exercise the power of the
Supreme Court, provided that it is within its Jurisdiction. And unless there is some Constitutional
amendment, the rights guaranteed by this Article cannot be suspended. Therefore, we can say
that an assured right is guaranteed to individuals for enforcement of fundamental rights by this
article as the law provides the right to an individual to directly approach the Supreme Court
without following a lengthier process of moving to the lower courts first as the main purpose of
Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights.

Dr Ambedkar stated that:

“If I was asked to name any particular article in this Constitution as the most important- an
article without which this Constitution would be a nullity— I could not refer to any other article
except this one. It is the very soul of the Constitution and the very heart of it and I am glad that
the House has realized its importance.”

Nature of Writ Jurisdiction

The nature of Writ Jurisdiction provided under this Article is discretionary. There are five
important factors for guiding this discretion.

Factors Guiding the Discretion Meaning

1. Locus Standi Right to bring an action or to be heard before a court.

2. Alternative Relief Remedies sought in a lawsuit in various or alternative forms.

3. Res Judicata A case that has been decided.

4. Questions of the Fact An issue that involves resolution of a factual dispute or

controversy.

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5. Laches A defence to an equitable action that bars recovery by the plaintiff because of the
plaintiff’s undue delay in seeking relief.

Types of Writs
There are five types of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus

• Meaning

It is one of the important writs for personal liberty which says “You have the Body”. The main
purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the
protection of the individual from being harmed by the administrative system and it is for
safeguarding the freedom of the individual against arbitrary state action which violates
fundamental rights under articles 19, 21 & 22 of the Constitution. This writ provides immediate
relief in case of unlawful detention.

• When Issued?

Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any
authority of law. A criminal who is convicted has the right to seek the assistance of the court by
filing an application for “writ of Habeas Corpus” if he believes that he has been wrongfully
imprisoned and the conditions in which he has been held falls below minimum legal standards
for human treatment. The court issues an order against prison warden who is holding an
individual in custody in order to deliver that prisoner to the court so that a judge can decide
whether or not the prisoner is lawfully imprisoned and if not then whether he should be released
from custody.

• Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’ father
as the victim P. Rajan who was a college student was arrested by the Kerala police and being
unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara Warrier filed
a writ of Habeas Corpus and it was proved that he died in police custody.

Then, in the case of ADM Jabalpur v. Shivakant Shukla [1] which is also known as the Habeas
Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the
emergency (Article 359).

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While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held in
Narayan v. Ishwarlal that the court would rely on the way of the procedures in which the locale
has been executed.

This writ has been extended to non-state authorities as well which is evident from two cases. One
from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the proctor of
Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins was
released. And in the case of Somerset v. Stewart wherein an African Slave whose master had
moved to London was freed by the action of the Writ.

2. Quo Warranto

• What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public
offices and it is issued to restrain persons from acting in public office to which he is not entitled
to. Although the term ‘office’ here is different from ‘seat’ in legislature but still a writ of Quo
Warranto can lie with respect to the post of Chief Minister holding a office whereas a writ of quo
warranto cannot be issued against a Chief Minister, if the petitioner fails to show that the
minister is not properly appointed or that he is not qualified by law to hold the office. It cannot
be issued against an Administrator who is appointed by the government to manage Municipal
Corporation, after its dissolution. Appointment to public office can be challenged by any person
irrespective of the fact whether his fundamental or any legal right has been infringed or not.

• The court issues the Writ of Quo Warranto in the following cases:

1. When the public office is in question and it is of a substantive nature. A petition against a
private corporation cannot be filed.

2. The office is created by the State or the Constitution.

3. The claim should be asserted on the office by the public servant i.e. respondent.

• Important Case Laws

In the case of Ashok Pandey v. Mayawati , the writ of Quo Warranto was refused against Ms
Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.

Then in the case of G.D. Karkare v. T.L. Shevde , the High Court of Nagpur observed that “In
proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as
such nor does he complain of any non-performance of duty towards him. What is in question is

69
the right of the non-applicant to hold the office and an order that is passed is an order ousting
him from that office.”

The Writ of quo warranto was denied by the court in the case of Jamalpur Arya Samaj v. Dr D.
Ram . The writ was denied on the ground that writ of quo warranto cannot lie against an office of
a private nature. And also it is necessary that office must be of substantive character. Whereas in
the case of R.V. Speyer the word ‘substantive’ was interpreted to mean an ‘office independent
to the title’. Also in H.S. Verma v. T.N. Singh, the writ was refused as the appointment of a
non-member of the state legislature as C.M. was found valid in view of Article 164(4) which
allows such appointment for six months.

3. Mandamus

• Writ of Mandamus

Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior court to a
lower court or government officer. However, this writ cannot be issued against the President and
the Governor. Its main purpose is to ensure that the powers or duties are not misused by the
administration or the executive and are fulfilled duly. Also, it safeguards the public from the
misuse of authority by the administrative bodies. The mandamus is “neither a writ of course nor
a writ of right but that it will be granted if the duty is in nature of public duty and it especially
affects the right of an individual, provided there is no more appropriate remedy” . The person
applying for mandamus must be sure that he has the legal right to compel the opponent to do or
refrain from doing something.

• Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the legal duty.

2. The nature of the duty must be public.

3. On the date of the petition, the right which is sought to be enforced must be subsisting.

4. The writ of Mandamus is not issued for anticipatory injury.

• Limitations

The courts are unwilling to issue writ of mandamus against high dignitaries like the President
and the Governors. In the case of S.P. Gupta v. Union of India , judges were of the view that writ
cannot be issued against the President of India for fixing the number of judges in High Courts
and filling vacancies. But in Advocates on Records Association v. Gujarat , the Supreme Court

70
ruled that the judges’ issue is a justiciable issue and appropriate measures can be taken for that
purpose including the issuance of mandamus. But in C.G. Govindan v. State of Gujarat , it was
refused by the court to issue the writ of mandamus against the governor to approve the fixation
of salaries of the court staff by the Chief Justice of High Court under Article 229. Hence, it is
submitted that the Governor or the President means the state or the Union and therefore issuance
of mandamus cannot take place.

• Important Judgments

In Rashid Ahmad v. Municipal Board , it was held that in relation to Fundamental Rights the
availability of alternative remedy cannot be an absolute bar for the issue of writ though the fact
may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book
had applied for the writ of mandamus against the Director of Public Instruction for the inclusion
of his book in the list of books which were approved as text-books in schools. But the writ was
not allowed as the matter was completely within the discretion of D.I.P and he was not bound to
approve the book.

4. Certiorari

• What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the
jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts
like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against
purely administrative or ministerial orders and that it can only be issued against judicial or
quasi-judicial orders.

• When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:

1. Either without any jurisdiction or in excess.

2. In violation of the principles of Natural Justice.

3. In opposition to the procedure established by law.

4. If there is an error in judgement on the face of it.

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Writ of certiorari is issued after the passing of the order.

• Important Judgments on writ of Certiorari

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning,
ambit and scope of the writ of Certiorari. Also, in this it was explained that Certiorari is always
available against inferior courts and not against equal or higher court, i.e., it cannot be issued by
a High Court against any High Court or benches much less to the Supreme Court and any of its
benches. Then in the case of T.C. Basappa v. T. Nagappa & Anr., it was held by the constitution
bench that certiorari maybe and is generally granted when a court has acted (i) without
jurisdiction or (ii) in excess of its jurisdiction. In Hari Bishnu Kamath v. Ahmad Ishaque , the
Supreme Court said that “the court issuing certiorari to quash, however, could not substitute its
own decision on the merits or give directions to be complied with by the court or tribunal. Its
work was destructive, it simply wiped out the order passed without jurisdiction, and left the
matter there.” In Naresh S. Mirajkar v. State of Maharashtra , it was said that High Court’s
judicial orders are open to being corrected by certiorari and that writ is not available against the
High Court.

5. Prohibition

• What does Writ of Prohibition mean?

It is a writ directing a lower court to stop doing something which the law prohibits it from doing.
Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from acting
contrary to the rules of Natural Justice.

• When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it from
doing something which it is not supposed to do as per law. It is usually issued when the lower
courts act in excess of their jurisdiction. Also, it can be issued if the court acts outside its
jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and
should be issued before the lower court passes an order. Prohibition is a writ of preventive
nature. The principle of this is ‘Prevention is better than cure’.

• Important Case Laws

In case of East India Commercial Co. Ltd v. Collector of Customs , a writ of prohibition was
passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the
ground that the proceeding is without or in excess of jurisdiction or in contradiction with the
laws of the land, statutes or otherwise. Then in the case of Bengal Immunity Co. Ltd , the
Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction
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which does not belong to it than that consideration is irrelevant and the writ of Prohibition has to
be issued as a right.

Amendments to Article 32

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an

amendment was made during the time of emergency when it was passed to reduce ‘both directly
and indirectly’ the jurisdiction of the Supreme Court and the High Courts to review the
application of fundamental rights. Then 43rd amendment of the Indian Constitution was passed
which repealed Article 32A immediately after the emergency was revoked. Following the
amendment, the Supreme Court again gained the power to quash the state laws. Also, the High
Court’s got the power to question the constitutional validity of central laws.

Limitations to Article 32

There are certain circumstances during which the citizens do not get the privileges which they
ought to under Article 32. Therefore, the situations when the fundamental rights may be denied
to the citizens but the constitutional remedies will not be available i.e. Article 32 will not be
applicable are:

• Under Article 33, the Parliament is empowered to make changes in the application of
Fundamental Rights to armed forces and the police are empowered with the duty to ensure
proper discharge of their duties.

• During the operation of Martial law in any area, any person may be indemnified by the
Parliament, if such person is in service of the state or central government for the acts of
maintenance or restoration of law and order under Article 34.

• Under Article 352 of the Constitution when an emergency is proclaimed, the guaranteed
Fundamental Rights of the citizens remains suspended. Also, Fundamental Rights guaranteed
under Article 19 is restricted by the Parliament under Article 358 during the pendency of an
emergency.

• Article 359 confers the power to the President to suspend Article 32 of the Constitution.
The order is to be submitted to the Parliament and the Parliament may disapprove President’s
order.

Conclusion

The constitutional remedies provided to the citizens are the powerful orders with immediate
effect. And the writs are mostly invoked against the state and are issued when PILs are filed. The
Writ Jurisdictions which are conferred by the Constitution though have prerogative powers and
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are discretionary in nature and yet they are unbounded in its limits. The discretion, however, is
exercised on legal principles. Therefore, the first essential on which the constitutional system is
based in the absence of arbitrary power. Hence, the decision must be taken on the basis of sound
principles and rules and should not be based on whims, fancies or humour. And if a decision is
not backed by any principles or rules, then such a decision is considered arbitrary and is taken
not in accordance with the rule of law.

Relationship between Fundamental Rights and Directive Principles of State Policies (DPSPs)

Fundamental Rights and Directive Principles of State Policy as enshrined in the Constitution of
India together comprise the human rights of an individual. The idea of constitutionally embodied
fundamental rights emerged in India in 1928 itself. The Motilal Committee Report of 1928
clearly envisaged inalienable rights derived from the Bill of Rights enshrined in the American
Constitution to be accorded to the individual. These undeniable rights were preserved in Part III
of the Indian Constitution.

The concept of Directive Principles embedded in the Constitution was inspired by and based on
Article 45 of the Irish Constitution. The Directive Principles imposed a duty upon the state to not
only acknowledge the Fundamental Rights of an individual but also to achieve certain
socio-economic goals. Directive Principles were enumerated in Part IV of the Constitution. Parts
III and IV of the Indian Constitution were once described by CJ. Chandrachud to be the
conscience of the Constitution.

However, there has perennially been a controversy surrounding the constitutional relationship
between Fundamental Rights and Directive Principles, as there would be a conflict between the
interest of an individual at the micro level and the community’s benefit at a macro level.

Central part of this controversy is the question pertaining to which part of the Constitution would
have primacy in the case of conflict between Parts III and IV. In this brief paper, an attempt is
made to ascertain and comprehend the constitutional relationship between fundamental rights
and directive principles. The author seeks to map out three different perspectives of the judiciary
and the legislature with regards to the relationship between Fundamental Rights and Directive
Principles.

1. FUNDAMENTAL RIGHTS VIS-À-VIS DIRECTIVE PRINCIPLES

The primary distinction between the Fundamental Rights and Directive Principles as visualized
by the drafters of the Constitution was with regards to the question of enforceability. Part III of
the Constitution was enforceable against the state but Article 37 expressly provided that Part IV
was not enforceable in a court.

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Earlier Supreme Court decisions attributed paramount importance to Fundamental Rights based
on this aforementioned Constitutional position and provision.In the landmark judgment of State
of Madras vs. Srimathi Champakam which subsequently led to the 1st Constitutional
Amendment, Justice Das stated that directive principles were expressly made unenforceable by
Article 37 and therefore could not override the fundamental rights found in Part III, which were
enforceable pursuant to Article 32.The court opined that fundamental rights were sacrosanct and
could not be curtailed by Directive Principles and asserted that the directive principles although
important in their own respect were required to adhere to the Fundamental Rights and in the case
of conflict Part III would prevail over Part IV. This view of the apex court was reaffirmed in
subsequent landmark decisions such as

Mohd. Hanif Quareshi v State of Bihar and In re Kerala Education Bill, 1957.

These decisions of the apex court were subject to much criticism due to the excess importance
endorsed to Fundamental Rights resulting in the complete neglect of principles that promoted
socio-economic change and development.

The legislature was disappointed with the judiciary’s interpretation and believed that it was
contradictory to what the framers of the Constitution believed. Pandit Nehru in his speeches in
relation to the 1st and 4th Constitutional Amendments expressly stated his disappointment. He
stated, “There is difficulty when the Courts of the Land have to consider these matters and lay
more stress on the Fundamental Rights than on the Directive Principles. The result is that the
whole purpose behind the Constitution which was meant to be a dynamic Constitution leading to
a certain goal step by step, is somewhat hampered and hindered by the static element being
emphasized a little more than the dynamic element.”

It is therefore evident that the legislature believed that Fundamental Rights were to assist the
Directive Principles and not vice-versa.

This subsequently led to a transformation in the interpretation of the relationship between

Fundamental Rights and Directive Principles to be more inclusive and harmonious. In Chandra
Bhawan Boarding and Lodging Bangalore v State of Mysore, the Minimum Wages Act, 1948
was challenged for conferring unrestricted, unfettered and arbitrary power on the state in
determining the minimum wages. The state argued that it was obligated to provide for minimum
wages in accordance with the Directive Principles. The court held that the provisions of the
Constitution were created to facilitate progress, as intended by the Preamble and it would be
fallacious to assume that the Constitution provided only for rights and no duties.

Furthermore, it was stated that although Part III encompasses Fundamental Rights, Part IV was
essential in the governance of the country and were therefore supplementary to each other.

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This view was reaffirmed in Kesavanda Bharati v State of Kerala where it was held that the
directive principles were in harmony with the country’s aims and objectives and the fundamental
rights could be amended to meet the needs of the hour implying that Parts III and IV needed to
be harmoniously construed. Although these judgments were more dynamic in comparison to the
previous approach that the apex court had extended, it still did not satisfy the ideals of the
legislature. It could easily be speculated that the 42nd Amendment in 1976 was to accord
primacy to the Directive Principles over the Fundamental Rights. The purpose of the amendment
was to make the Directive Principles comprehensive and accord them precedence over the
fundamental rights “which have been allowed to be relied upon to frustrate socio-economic
reforms for the implementing of Directive Principles”.

This resulted in the resurgence of the debate on the relationship between Fundamental Rights and
Directive Principles. In Minerva Mills Ltd. v Union of India, the court believed that the
harmonious relation between Fundamental Rights and Directive Principles was a basic feature of
the Constitution. It was stated that Part III and Part IV together comprised of the core of the
constitution and any legislation or amendment that destroyed the balance between the two would
be in contravention to the basic structure of the Constitution. Chandrachud CJ. reasserted that
Parts III and IV are complementary to each other and together they constitute the human rights of
an individual. Reading these provisions independently would be impossible, as that would render
them incomplete and thereby inaccessible. However, this was not settled as law yet and there
was another hiccup in the subsequent judgments. In Sanjeev Coke Mfg. Co. v M/s Bharat Coking
Coal Ltd., the Supreme Court held that the part of the Minerva Mills judgment that dealt with
Article 31 C of the Constitution was merely obiter dictum and therefore not binding. The court
thus upheld the Coking Coal Mines (Nationalization) Act, 1972 by granting greater importance
to Directive Principles than Fundamental Rights in accordance with Article 31C that provided
for the same.

The Sanjeev Coke judgment resulted in a divergence of opinion, which was ultimately settled in
State of Tamil Nadu v L. Abu Kavier Bai. The court referred to the decision of Constituent
Assembly to create two parts for these core constitutional concepts. It was stated that the purpose
of the two distinct chapters was to grant the Government enough latitude and flexibility to
implement the principles depending on the time and circumstances. The court therefore
considered the Minerva Mills case precedent and recommended a harmonious construction of the
two parts in public interest and to promote social welfare. This view has been consistently
adopted ever since and has been endorsed in Mohini Jain v State of Karnataka and Unni
Krishnan v State of Andhra Pradesh. It can therefore be construed to be well settled that a

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harmonious interpretation of Fundamental Rights and Directive Principles is quintessential in
ensuring social welfare and the apex court is promoting the same view after much deliberation.

Although it appears to be well established that there is a need for balance and unanimity in
interpreting Fundamental Rights and Directive Principles, this debate is far from over. The
courts off late have played a proactive role in facilitating socio-economic development at a
macro level which requires compromise on a micro level. Therefore in light of the benefit of the
community at large, the Directive Principles may be used to determine the extent of public
interest to limit the scope of Fundamental Rights.

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