Chapter 11

FUNDAMENTAL RIGHTS
(Part III of the Constitution)
11.1: 'State' as defined in Art. 12 :

(i) Definition :
State includes the Government and Parliament of India,
and the Government and Legislatures of the State and all
local and other authorities within the territory of India or
under the control of the Government of India.
The definition is important as the Fundamental rights are
enforceable by writs against the 'State'. Hence, no writ can
be issued against any person or authority which does not come
within this definition.
(ii) 'State' includes the Union and State Executives, and
also the Parliament and the State Legislatures and hence under
judicial review, executive acts and the 'Acts' made by Par-
liament or State Legislatures can be declared ultra vires by
the Supreme Court or the High Courts.
(iii) Local and other authorities:
(a) University is covered under 'other authorities'. The
Supreme Court in Rajasthan Electricity Board V. Mohan
Lai, overruled Shanta Bai's case and held that University
was under 'Other Authorities'.
(b) Municipalities, Corporations and other Local Self
Government institutions are 'State'. In Sukhdev Singh V.
Bhagatram the Supreme Court has given a wide interpreta-
tion. 'Other authorities' includes LIC, Oil and Natural Gas
Commission, Industrial Finance Corporation etc. If the autho-
rity has Constitutional or Statutory powers it is a State whe-
ther it is discharging Sovereign functions or not. If it is an
agency or instrumentality of the State or is discharging the
functions of the State then it is within the definition of 'State'.
(iv) Not a State:
(a) Private persons, Private Associations, Cooperative
Societies, Societies covered under Societies Registration
Act, Companies etc. are not 'State'.
(b) Courts are not within the definition of State for purposes
of Art. 12.

11.2 : Doctrine of Eclipse :

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Meaning : According to the concept of 'Judicial Review',

a law which is against the Constitution is void and ultra vires
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the Constitution.
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 Our Constitution became operative from 26-1-1950.
Hence, any law existing prior to the Constitution (Pre-
Constitutional Law) and any law made subsequently (Post-
Constitutional Law) would be void if the law is against the
Constitution.
Hence, a question arises. If a Pre-Constitutional Law is
held void by the Court as against a provision in the Con-
stitution, and subsequently, if that provision in the Consti-
tution itself is amended by the Parliament, will the 'void law'
become operative or not?
The Supreme Court has held that in such cases, the 'void
law' will become operative automatically after the
amendment is made. The reason is the Constitution will have
'eclipsed' or darkened that 'law', but when the Constitution is
amended, the eclipse is removed and hence proprio vigors,
the law becomes operative. This is called the Doctrine of
Eclipse.
Case: Bhikaji Narayan V. State ofMadhya Pradesh (1955).
The Motor Vehicles Act was amended by the State and
provided for monopoly of Road Transport by the State. In
view of Art.19 (l)(g), Right of Trade or Business, this law
became operative from 26-1-1950 (the date of commenc-
ement of the Constitution). Hence, it became eclipsed by the
Constitution. However, on 18th June 1951, Art. 19 (l)(g) was
itself amended providing for Nationalisation etc. With this
amendment the eclipse was removed, and the monopoly law
revived.
Post Constitution Law : Deep Chand V. State of U.P.
(1959). The U.P. Transport Act came into operation in 1950.
It provided for Nationalisation. But, as there was no proper
provision for compensation, this law was held bad. But the
4th Amendment made inadequacy of compensation not ques-
tionable in any Court. Question was whether the bad mono-
poly law became operative after the Amendment. The
Supreme Court held that the doctrine of eclipse was not
applicable. The reason, was the law was made in 1955. It
became void ab initio. It was a still born law and hence dead.
Hence no revival. A new law is to be enacted, if required by
the State.
Doctrine applied to Post-Constitutional Law : in D.
Lodh V. District Judge the Supreme Court applied to Post-
Constitutional Law. In this case, a suit for ejectment was
decided in favour of the landlord, but due to U.P. Civil law,
this was inexecutable. The law was amended in 1976 to
remove such injustice. Held, the doctrine of eclipse applied
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 Chapter 12

EQUALITY
12.1: Right to Equality :
(i) Art. 14 : Art. 14 of the Constitution States as follows :
The State shall not deny to any person, 'equality before the

law', or 'equal protection of the laws', within the territory of

India.
(ii) Equality before the Law : (a) This is a negative
concept taken from the English Constitution. It implies the
absence of any privilege in favour of any person. It means
that among equals the law should be equal and should be
equally administered and that 'like should be treated alike'
(Jennings). It also means the right to sue and to be sued, to
prosecute and to be prosecuted for the same kind of action
should be the same for all without distinction of race, reli-
gion,wealth, social status or political influence (Jennings).
(b) Dicey's concept of Rule of law has equality as its central
core. According to him it means the 'Supremacy of Law'.
Equality requires that Justice must be available to all. Hence,
Justice should not be denied to the accused who on grounds
of poverty is not in a position to maintain an advocate to
defend him ..
Legal aid is provided in England under the Poor Prisoners
Defence Act, and, Legal Aid and Advice Act. In the U.S, the
Supreme Court held in Powell V. Alabama that under "due
process of law", the State was under a duty to meet the
expenses of defence. In this case, 6 negroes had been accused
of ravishing a white girl to [Link] was no defence. The
Supreme Court declared that the state should pay for the
defence.
In India, in Tara Singh's Case, it was held that opportunity
should be provided to such accused as per Art. 22. In
Hasinara Khatoon V. State of Bihar, the Supreme Court has
held that Justice required that accused should be defended or
State should ensure such legal defence, at its own cost. If legal
defence is not provided, the trial would be vitiated. High
Court Rules have however provided for defence as a 'must*
when the accused has no means. 'Legal Aid Clinics' are now
protecting the interests of such persons in Lower Courts.
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 (c) Equal Subjection to Courts : According to Dicey, equa-
lity before the law means that no man should be made to suffer
in body or goods except for a distinct breach of law ; It also
means that no man is above the law and that all are amenable
to the jurisdiction of the ordinary courts.
Dicey was against the Administrative tribunals as they
differed fundamentally from the Ordinary courts. The tribu-
nals do not follow the court procedures (Civil and Criminal)
and also the law relating to [Link], these tribunals had
come to [Link],the courts have imposed a duty on these
tribunals that they should follow the principles of natural
justice.
(iii) Equal protection of the Laws :(a) This is a dynamic
concept taken from the [Link] (14th Amendment).
It implies equality of treatment in equal circumstances. The
essence of it is that when persons are similarly placed they
must be similarly treated.
In the U.S. in Plussey V. Furguson, separate accommoda-
tion provided to the Negroes and Whites in the Railways was
upheld by the Supreme Court. This was the 'Separate but
equal' concept.
This was overruled in Brown V. Board of Education 1954.
Separate schools had been provided for Negroes and Whites.
A Negro's application was rejected by a White School. Held,
this segregation was Ultra Vires,as violative of 'Equal protec-
tion of the Laws'.

12.2 : Doctrine of Reasonable Classification :

The leading case is KathiRaning V. St. ofSuarastra (1952).
In this case, Das, J, stated the two tests for reasonable Classi-
fication :
(i) The classification must be founded on an intelligible
differentia which distinguishes one group from the other, and
(ii) The differentia must have a rational relation to the

object sought to be achieved by legislation.

Art. 14 forbids class legislation, but does not forbid reaso-
nable classification.
This means, the differentia must not be arbitrary. It must
be based on some qualities or characteristics found in one
group. These must be absent in the group left out. What is
essential is that there must be a nexus between the differentia
and the object of legislation.
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State of Bombay [Link] : The Bombay Prohibition Act,

made it an offence to manufacture,sell or consume intoxi-
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 challenged this. Held, Miliary officials form a separate class
or group by themselves. Civilians are different. This had a
reasonable relationship with the object of legislation. The
Military officers had special duties and responsibilities and
this justified a separate treatment to them.

Chiranji Lai V. Union of India (1951) : The Sholapur

Spinning Co. was taken over by the Central Govt. This was
challenged as violative of Art. 14. Held, Companies under
mal-administration formed a class ; and the object of legis-
lation was to protect the [Link], legislation was
valid.

In the Bank Nationalisation case, the Supreme Court struck

down the Banking Companies [Link] was hostile dis-
crimination between 14 nationalised Banks and other Indian
and Foreign Banks. Even new banks could be started and
could do [Link], the 14 Banks had been taken over and
hence prevented from doing business. Held, discriminatory.
(The Act was suitably amended by Parliament later).

Widened Meaning of Equality : In Maneka Gandhi's

Case,the Govt. had impounded the passport, and this was held
as "not justified". The Supreme Court held that equality was
not limited to the "judicial formula" of reasonable classifi-
cation. It was much -wider. The Legislative Act should not

only pass the two tests of reasonable classification, but also

be NOT ARBITRARY. Accordingly, impounding a passport
without hearing was "not fair". (The petitioner was heard &
passport issued.)
In International Airport Authority Case, the court held that
equality had an "activist magnitude" and embodied guarantee
against arbitrariness. In Air India V. Meerza, the regulation
that air-hostess should retire on attaining 35 years, or upon
marriage, or upon first pregnancy, was held ultra vires, as this
classification was arbitrary.
In Mithu V. State of Punjab, Sn. 303. [Link] struck
down. In this case, if a person is guilty of murder under Sn.
3021.P.C., the court in its discretion may award death penalty,
but under Sn.303 I.P.C. if the person, a prisoner (under life
imprisonment), commits murder, then the court shall give
death penalty. This classification was held bad as under Sn.
302, there was judicial discretion but there was no such
discretion under Sn. 303. Hence Sn., 303 was arbitrary and
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 Basis of Classification:
Reasonable classification may be based on different
grounds:
(i) Geographical basis : Depending on the peculiar cir-
cumstances and situations, the classification may be based on
territorial grounds.
Thus, in Ram Chandra V. State of Orissa, two Nationa-
lisations Acts,to take over road transport for different areas in
the State of Orissa were held valid, as there were material
differences peculiar to the two [Link], districtwise distri-
bution of seats in the Medical College was held bad in
Rajendran V. Tamilnadu. Law providing for different fees in
Medical and Engineering Colleges between residents and
non-residents was held valid in Joshi V. State ofM.P.

(ii) Historical basis: Merger, State reorganisation [Link]

be grounds for reorganisation. In Pavitra Kumar V. State of
W.B.,\he different categories of Advocates into Barrister-
advocates and non-barrister advocates was held valid for
"historical reasons". (Now Under Advocates Act 1962 there
is no such classification). Special immunity to Ex-Rulers in
C.P.C. was held valid on historical grounds.

(iii) Time as the basis : The basis of classification maybe

based on date of operation of law. For instance, an enhanced
tax rate may be imposed from a particular date. Pending cases
may be taxed at old rates. This is not hit by Art. 14.

(iv) Nature of persons, trade, calling or business: Classi-

fication of persons, on the basis of age,for instance is valid
(Sn. 11 Contract Act).
Small Scale Industries, may be classified as one group for
favoured treatment;
Classification of News papers into Small, Medium and Big
for levying customs duty on newsprint was held valid (Ex-
press Newspaper Case).

(v) Special Courts and Special Procedure: Leading case:

Kathi Ranning V. State ofSaurastra. In re Special Courts Bill
the Supreme Court has held that Special Courts and Special
Procedures were valid if the law clearly lays down the guiding
principles e.g. public safety, main- tenance of public order
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etc. The offences must be properly classified in relation to the

objective to be achieved.
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 classification under Art. 14. Hence, tax on Virginia tobacco
but no tax on country tobacco was held valid in E-I-Tobacco
Case.
(vii) Individual or group may be classified, if it is not
arbitrary and answers the two tests.

Eg. Ameerunisa V. Mehboob: There were continuous court

litigations between two claimants. The Hyderabad Legisla
ture passed the Walud Dowla Succession Act and gave the
property of the deceased Nawab of Hyderabad to one party.
The other party challenged this law as it denied its right to
claim the property, just as any other citizen, in a court.
Held, classification was bad.
The essence of Art. 14 is that not only that there must be a
reasonable classification having a relation to the objective to
be achieved, but that such a classification itself should not be
arbitrary.

12.3 : Art. 14 and Special Courts :

Whether Special Courts may be constituted by the Legis-
lature to try certain types of offences, was discussed in detail
by the Supreme Court in 'in re Special Courts 'case. The Court
held that the Bill was valid. The classification of offences
during Emergency had been defined. The duration had been
specified. There were no unguided and uncontrolled powers
to the Executive. The guide lines were clear.

Art. 14 guarantees to all persons (1) Equality before the

law and (2) Equal protection of the Laws, within the territory
of India.

Equality before the law means that among equals,

law should be equal and should be equally administered,
and that like should be treated alike.

It includes the right to sue and to be sued, to prosecute and

to be prosecuted without any distinction of religion race,
Wealth, Social Status or Political Influence.

This includes the concept of "Rule of Law". According

to Dicey, this means the supremacy of law, and, that no
man is above the Law; It means that no person shall
suffer in body or goods except for a distinct breach of
law, and, that all persons are amenable to the
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 What Dicey meant by this was that every official from the
Prime Minister, down to a constable, is under the same
responsibility, for every act done without legal justification,
as an ordinary citizen is. Further, he is subject to the juris-
diction of the same courts as are available to citizens.

In State of West Bengal VAnwarAli, the Act had provided

for special courts to conduct "speedier trial of certain offen-
ces". The [Link] select the offences for speedy trial. The
Supreme Court held that this was an arbitrary Power and
violated Art. 14. No guidelines were given by the Act to
classify the offences. Further, the procedure for trial also
varied from the general procedure provided in the Cr.P.C. This
was also held bad.
However, in Kathai Raning [Link] of Saurastra, the law
had given proper guidelines and also had specified the cate-
gories of offence that could be selected for special trial. Hence,
the law was held good.
In its advisory opinion, in "In re special courts case ", the
Supreme Court held that special courts set up to try offences
committed during national emergency of 1975-77,did not
violate Art. 14. and the procedure provided therein, was held
not against the Constitution.
Hence, in India ,Special Courts may be constituted by law,
but the law should classify the offences or provide clear
guidelines to the Govt. to classify. There should be no room
for any arbitrary discretion of the executive. The procedure
should not be substantially different from the one prescribed
by ordinary law.
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 Chapter 13

FREEDOM OF SPEECH AND EXPRESSION

Art. 19 (l)(a) of the Constitution guarantees to every
Citizen freedom of speech and expression.
Nowhere in the world, freedom of speech is guaranteed in
absolute terms. The U.S. Constitution in its 1st Amendment
stated : 'Congress shall make no law abridging the freedom
of speech or of the Press'. The Supreme Court stated in
Schenck [Link] States : 'Free speech would not protect a
man in falsely shouting fire in a theatre, and causing a panic'.
The Court formulated the 'clear and present danger test' as a
restriction in Dennis Vs. United States. The Smith Act was
challenged in this case.(Teaching etc. of overthrowing of
Government by force was made an offence in this Act). This
was held good. Similarly, Censorship restrictions have been
upheld. (Don Juonfilm case).
Instead of leaving to the Courts as in the [Link] define the
scope, our Constitution has provided that reasonable restric-
tions could be imposed by the Parliament and State Legisla-
tures on the following grounds: Art. 19 (2):
(a) Sovereignty and Integrity of India.
(b) Security of the State.
(c) Friendly relations with Foreign States.
(d) Public Order.
(e) Decency or Morality.
(f) Contempt of Court.
(g) Defamation.
(h) Incitement to an offence.

Scope : The freedom of speech and 'expression':

The freedom is comprehensive and includes not only words
spoken, but also the freedom of the Press, which is the basic
essential of political liberty for proper functioning of demo-
cracy. The basic principle behind this freedom is the right of
the people to know the truth.
(i) Ramesh Thaper V. State of Madras 1950 : Madras
Govt's, ban order of entry and circulation of 'Cross Roads' a
Bombay Weekly, was held ultra vires.
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 (ii) Brij Bhushan V. Delhi: Precensorship of 'Organiser'
was held Ultra Vires the Constitution. Held,the 'Security of
the State, in Act 19(2) did not empower the State to impose
restrictions to control 'Public Order'. This led to the First
Amendment which introduced three grounds: 'public Order'
'Friendly relationship with Foreign Countries' and 'incite-
ment to an offence.'

(iii) In Shailabala Devi's Case, the Supreme Court allowed

publication of 'Sangram' as it contained only meaningless
words, though high sounding and bombastic.

(iv) Bennett Colemen V. India: The G.O. prescribing the

number of pages, at 10 to all newspapers under Newsprint
Control Order was held ultra vires as it affected the circulation
of newspapers.
In Sakal Papers V. Union, the restriction on prices of
newspapers with reference to pages and sizes,was held
bad,by the Supreme Court as it affected publication of
supplements etc.

(v) Lady Chatterly's lover : This book was banned as

obscene. A book seller challenged this, but the Supreme Court
held that the ban was within permissible limits of Decency
and Morality and hence [Link] was convicted (Ranjit V.
State of Maharashtra).

(vi) K.A. Abbas V. Union of India : Film censorship was

upheld in this case as motion picture stirs up emotions than
any other media. For the film'The Tale of four cities' 'U'
Certificate was not granted. The Court upheld the action of
the Govt. The classification of films into"A" (for adults only)
and 'U' (for all) was held valid.

(vii) In Namboodripad's Case, the Supreme Court upheld

his conviction and held that his attack on the
judiciary, calculated to lower the prestige of the judges
amounted to contempt of Court.

Conclusion:
The Courts in India have upheld the freedom of speech and
expression as a precious right and as the quint-essence of
democracy.
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 Chapter 14

PERSONAL FREEDOMS
14.1: Rule against Retrospective Criminal Law :
Art. 20 (1):
(i) One of the cardinal principles of Criminal Law is that
"no ex post facto " Criminal Law shall be made by the State.
This means the law must be prospective only. If the law is
to have effect from an anterior date, that would be against
this concept. This reason is the act is innocent when it is
done, but, a law made subsequently has made the innocent
act punishable with retrospective effect. This rule available
in England and U.S. is embodied in Art. 20 (1).
(ii) The U.S. Constitution [Art. 1 Sn. 9 (3)] declares 'no ex
post facto law shall be passed'. The leading case in Colder V.
Bull. In this Case, the U.S. Supreme Court explained ex post
facto law:
(a) Making an act punishable which act was innocent at
the time of commission, (b) Imposing a greater penalty in
such cases, than what is already provided: or (c) Changing
the procedure to the prejudice of the accused.
(iii) Art. 20 (1): Provides that no person should be
convicted of any offence, except for violation of law in
force at the time of the commission of the offence. Further,
it states that no person should be subject to a greater
penalty than that which might be inflicted for the offence at
the time of commission of the offence.

But, in respect of procedure to be followed, the Supreme

Court has held that there is no right to the accused to any
particular procedure to be followed. The reason is all that
procedural law are prospective.
Shiv Bahadur V. St. of Vindhya Pradesh. The I.P.C. was
extended to Vindhya Pradesh from Sept. 1949, but a Minister
was charge-sheeted for a bribe taken in April 1949. It was
contended that the extension of law was ex post facto law.
Held, in fact, law was in operation in Vindhya Pradesh from
1921. The prosecution was held valid.
Kedar Nath V. State of West Bengal. K was convicted for
an offence committed in 1947. In addition he was put a fine
of Rs. 50,0007- under Criminal Law Amendment Act 1949.
(A fine equal to the money received as a bride could be
imposed under this.) Held, the Act of 1949 was ex post facto
law and hence, could not be applied to K.
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In Berai V. Henry, the prevention of Food Adulteration Act

had provided life imprisonment and the accused was under-
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 reduced to 3 years. Accused could claim this, as it was
beneficial to him.

14.2 : Right against Double jeopardy :

One basic principle of Criminal Law is that no person who
has been accused of an offence shall be prosecuted and
punished for the same offence more than once. This principle
is contained in Art. 20 (2) of our Constitution and also in S.
300Cr.P.C.
The origin of this is in the English Law Nemo dabet Bis
vaxari (no one shall be vexed twice). This has two rules
namely:
(i) Autrefois acquit (previous acquittal);
(ii) Autrefois convict (previous conviction).
According to this if a person has been prosecuted and either

convicted or acquitted, the accused snould not &e tried ag;

by any Court in India for the same offence. ^
In Venkata Raman V. Union of India, V was subjected to
a departmental inquiry and was dismissed from Central
Government Services on grounds of bribery. The police
arrested him under 1611.P.C. for bribery. He contended
that he should not be tried again. The Supreme Court held
that the departmental proceeding was not a prosecution and
therefore he could not get the benefit.
In Maqbul Hussain V. State of Bombay—M was subject to
an inquiry by the custom authorities who confiscated the
goods from him and also fined him. Held Custom
proceeding as not a prosecution.
According to the Supreme Court, prosecution and punish-
ment must be read in a conjective sense. That is, if a person
is prosecuted and punished, he should not be tried again.
Hence if a person is prosecuted and acquitted, the
constitution is silent about this. But S. 300 Cr. P.C. provides
that if a person is prosecuted and convicted or acquitted he
should not be tried again for the same offence.
Exceptions : Sn. 300 has provided for four exceptions.
(a) Lack of Jurisdiction of the Court.
(b) Distinct and separate offence than the one tried.
(c) Consequences of an act resulting in a different
offence
altogether, e.g.: Ais punished for grievous hurt but the
injured
person dies as a result of the injuries, A may be tried for
culpable homicide.
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(d) Does not apply to execution proceedings.

In State of Bombay V. Apte : A was convicted for
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 Act. The Sessions convicted on the first, but acquitted as the
necessary permission had not been taken under the Insurance
Act, in the second. Thereupon, sanction was obtained and a
fresh complaint was filed. Held, in the second prosecution
the ingre-

dients of the offence was different. Hence, in the second

prosecution and ingredients of the offence were different.
Hence, Art. 20 (2) did not apply. He could be tried.

14.3 : Right against Self-Incrimination : Art. 20 (3) :

(i) One fundamental principle of Criminal Law is the right
against Self-Incrimination.
(ii) Origin: The Principle has its origin in England where
it developed as a rule of evidence as a revolt against inqui-
sitorial and unjust methods of interrogating the accused per-
sons. This found its Constitutional Status in the 5th Amend-
ment in the U. S. Constitution. The rationale for the right is
that of protection to the innocent, and a safeguard against
tyrannical prosecution.
(iii) Art. 20 (3) : No person accused of an offence shall be
compelled to be a witness against himself.
This is also called as rule against testimonial compulsion.
According to the Evidence Act, the burden of proving the
guilt of the accused is on the prosecution. The accused cannot
be compelled to give evidence against himself.
Certain conditions must be satisfied to get the benefit:
(a) 'Accused of an offence' : The protection is given to
only an accused. A person is accused when the First Infor
mation Report (F.I.R.) is filed against him, or a Complaint is
made to a Magistrate. Hence, statements made by a person
before the custom officials, are, without accusation and hence
not within Art. 20(3).
(b) The protection is not available to a witness under this
article.
(c) Confessions made under Sn.164 Cr.P.C. before the
Magistrate are valid, as there is 'no compulsion' (Kalavati V.
Himachal Pradesh).
(d) Testimony may be oral or documentary. Documents got
under compulsion cannot be used against the accused. In
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 Sharma V. Sathish Chandra the Supreme Court held that
documents seized under a search warrant, (without any com-
pulsion) were not hit by Art. 20(3). The leading case is State
of Bombay V. Kathi Kalu Oghad. The Supreme Court dis-
posed of a batch of four appeals. In the Bombay appeal,
specimen handwriting had been taken from the prisoner; in
the Punjab appeal the confession of the prisoner led to the
discovery of stolen property, guns and rifles. Impressions of
palms and fingers were taken in the presence of the magistrate
in another appeal. In the West Bengal appeal, opium had been
received by the prisoner through Railways and to compare his
signature on the Railway Way Bill, the police had taken the
specimen signature.

Eleven Judges of the Supreme Court disposed of the case.

It was held that material evidence i.e., the taking of
specimen signatures, thumb impression, handwriting, foot or
palm print, for the purpose of identification is not against
Art. 20(3). Similarly demonstration or parade for
identification is also not hit by Art. 20(3). But there should
be no duress. For example, if 'A' the accused gives
information to the police about weapons used in the
commission of an offence, and if in pursuance of it the
police discover the said weapons, then the fact of discovery
is allowed. This is valid under Art. 20(3).

(e) Compulsion is Prohibited : Compulsion means 'du-

ress'. It includes physical or mental torture, or 'third degree'
methods. Art. 20(3) safeguards against investigating officers
who 'sit comfortably in the Shade, rubbing red pepper into
a poor devil's (accused) eyes, rather than go about in the
sun hunting up for evidence'.
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 circumstances of each case.
In Nandini Satpathy (Ex-Chief Minister of Orissa) case,
the accused was called to Police Station to answer questions
on charges of corruption. She refused to answer and
claimed protection under Art. 20(3). Held, accused is
entitled to keep her mouth shut, if the questions were of
such a nature as to implicate her in this or in any other
offence. Tape-recorded statements (taken without duress)
were allowed in YusufAli case. In Kuttan Pillai 's case, a
document recovered on search of house of accused was held
not under duress.

14.4 : Right to life and Personal Liberty : Art. 21:

(i) Art. 21 of our Constitution declares : "No person shall
be deprived of his life or Personal Liberty except according
to procedure established by law".
The drafting committee, added the word "personal", to
restrict the wide meaning of liberty. Though there was much
discussion to adopt "due process of law" of U. S. Constitution
(5th and 14th Amendments), it ultimately preferred the
Japanese expression "procedure established by law".
In England, the Magna Carta (1215) declared "No man
shall be taken or imprisoned .... save by law of the land".

(ii) Right to life : The Constitution guarantees the right to

life but subject to procedure established by law. Life can be
taken away by the State according to law. In Jagmohan Singh
V. State of U. P. it was held that "death sentence" was not
violative of Art. 21.
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Life does not mean the mere animal existence of man, but,
"extends to protection of every limb of the body through
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which the soul communicates with the outer world".

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 (iii) Personal liberty : According to Blackstone, this
means "the power of locomotion, or moving of one's person
to whatsoever place one's own inclination may direct, without
imprisonment or restraint unless by due process of law".

Wider Meaning to include Arts. 21 and 19 :

The Supreme Court had held in Gopalan's case, that Arts.
21 and 19 were mutually exclusive, and hence, preventive
detention which was covered under Art. 21, could not be
tested with the freedoms of Art. 19. This has been
overruled in S. N. Sarkar V. State of West Bengal. Hence, the
Preventive Detention Law, or any such law, may be tested
under Art. 19. Hence the position is that while Art. 19(1)
deals with a species of rights, or freedoms, Art. 21 takes in
and comprises the residue.
In Kharak Singh V State ofU.P. (1963), the petitioner was
tried for dacoity but was released. The police opened a history
sheet and put him under surveillance. They made domiciliary
visits during nights, and the Supreme Court held that such
visits were without the authority of law and hence,void.
But in Govind V. State ofM.P. there was a Clear Law for
domiciliary visits, and the Supreme Court upheld such
visits.
(iv) Procedure established by law: "Procedure" refers
to the manner and form of enforcing law. The word "law"
was understood to mean enacted law and hence, procedure
established by law meant procedure prescribed by the
Legislature. Such a law could not be tested as to its
reasonableness (Gopalan 's case). This was changed by the
Supreme Court in Hoskot V State of Maharashtra where it
was held that 'law' must be 'reasonable'. Here a Reader of
a college was sentenced to 3 years imprisonment; he
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served the sentence. He had not been given a copy of the

judgment. Held, procedure established by law means 'fair
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and reasonable procedure'. A copy should have been given

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 to him.
This was confirmed further in Menaka Gandhi V. Union of
India.
Thus in procedure established by law the 'law' should be
valid as per Arts. 21 and 22 and must be reasonable. It
must pass the tests of reasonableness under Art. 19. This
wide interpretation has raised the standards of liberty to
almost match with the American concept of 'due process
of law'.
Passport Cases : (a) In Satwant Singh V. A.P.O. (1967),

the passport was not renewed to the petitioner to go abroad.

The Supreme Court held that to go abroad was a fundamental
right, and Satwant was entitled to his passport. To meet this
case the Passport Act 1967 was enacted by the Parliament.
(b) In Maneka Gandhi V. Union of India (1978), the im-
pounding of the passport was questioned. The Supreme
Court, overruled Satwant Singh's case and held, that to go
abroad was not a fundamental right. But, it held under (Art.
21) "procedure established by law," the law must be reason-
able and must answer the tests of Art. 19. Hence, the denial
of passport may affect the right to profession abroad etc.
Passport was issued to the petitioner.
(v) Art. 21 and National Emergency: When the National
Emergency is proclaimed (Art. 352), the President may sus-
pend Art. 14, 21 and 22. In the Habeas Corpus Case (Shukla
V. A.D.M., Jabbalpur, 1976), the Supreme Court held that as
the remedy had been suspended the Court could not go into
the validity of the detention order.
To meet this decision, the 44th Amendment has provided
that Art. 21 cannot be suspended during national emergency.
(vi) Extension of Art. 21 : Art. 21 has been extended to
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give protection to—(1) Under-trial prisoners; (2) Prisoners

serving a sentence; (3) Prisoners subject to ill-treatment or
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inhuman treatment; (4) Persons against whom no trial is

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 launched for years (Pahadia V. State of Bihar)', (5) Person,
who was kept in prison for years even after order of release
by courts [Supreme Court has ordered for payment of com-
pensation]; (6) Case of blinding of under-trials (Khatri V.
State of Bihar); (7) Cases of abuse of young prisoners or
under-trials etc.; (8) Free legal aid to indigent accused
(Khatoon V. State of Bihar); (9) Cases of 'leg iron chains' to
prisoner (Sunil Batra V. Delhi Administration); (10) Consul-
tation with a lawyer in the prison, without the custom officer
being present within the hearing distance (Francis V. Delhi);
(11) Prisoners' right to publish books (State of
Maharashtra V. Panduranga).
(vii) Relationship between Arts. 21 and 22 : In Gopalan
V. State of Madras, Gopalan who had been detained under the
Preventive Detention Act, challenged the Act as violative of
Art. 21. The contention of the State that Art. 21 did not apply
as there was Art. 22 for arrest or detention, was rejected by
the Supreme Court.
It held that Art. 21 dealt with the substantive aspect,
whereas Art. 22 dealt with the procedural aspect. In view
ofManeka Gandhi's case, 'the law' must be 'reasonable' also
(Art. 19).

14.4 A Right to Education Act 2009

Article 45 states “The State shall endeavour to

provide, within a period of ten years, from the
commencement of the Constitution, for free and
compulsory education for all children until they complete
the age of 14 years.”

In 2002, the 86th Constitutional Amendment was passed

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by the Parliament adding Article 21A, to Article 21.

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Thus it became a fundamental Right like Right to life.

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 New Article:

Article 21 A states:
"the state shall provide free and compulsory education
to all children of the age of 6 to 14 years as the state
may, by law determine".

Pursuant to this amendment, the Parliament passed the

Right to Free and Compulsory Education Act (RTE)
which is effective from April 1, 2010

Salient features of the RTE Act

1. Free Elementary Education for ALL children in

age group 6-14 years in a neighborhood school.
There should be no financial constraints can “prevent” a
child from a enrolling, attending and completing
elementary education Elementary education is 8 years of
education from classes 1-8. children between 6-14 years,
The neighborhood within 3 km from home of child

2. Compulsory Elementary Education. .

There is a duty of the parent to send their
children to school (Article 15k)and an it is the
obligation of the government to ensure enrolment,
attendance and completion of elementary education.
If parents are reluctant, the government should
find a way convince , without use of force/
violence/pressure.

3. Age Appropriate Education. etc

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Children are to be enrolled in the class that

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corresponds to their age. Hence, if a 10 year

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 old is a drop out he will be enrolled in class
5 and
“special training” is to be provided to
bring up to the class 5 level.

4. Quality Norms for Schools and Qualifications for

Teachers are given in detail.
.
5. Curriculum in line with Constitution.
The curriculum, syllabus and books must
conform to Constitutional values. Hence,
communal and harmful agendas cannot be
part of the materials used and taught inthe
schools of the country.

6. Evaluation system to be based on principle of

Continuous and Comprehensive Evaluation (CCE).

7. 25%Reservation in Private Schools

All private schools are required to admit
in their incoming class 25% children
from weaker sections and socially
disadvantaged groups from their
neighbourhood.

Case law :
Society for Un-aided Private Schools of Rajasthan V
Union of India 2011
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The Supreme Court upheld the constitutional validity of

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the R T E Act, through a majority of chief justice SH

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 Kapadia and Justice Swatanter Kumar. [ Justice
Radhakrishnan dissented ]

The Supreme Court has brought all educational

institutions within RTE’s ambit except unaided minority
institutions

It has held that the Act is operative from the academic year
2012-2013 itself and would not apply retrospectively to
any admissions or to resident students in boarding schools.

The private schools’ contention that such mandatory

reservation would drain their resources was answered by
the government, which promised reimbursement of money
to the extent of the reservation.

The Court held:

. Article 21A requires non-state actors to achieve the

socio-economic rights of children in the sense that they
shall not destroy or impair those rights and also owe a duty
of care.
The State, however, cannot free itself from obligations
under Article 21A by offloading or outsourcing its
obligation to private State actors like unaided private
educational institutions or to coerce them to act on the
State's dictate.

Private educational institutions have to empower the

children, through developing their skills, learning and other
capacities, human dignity, self-esteem and self-confidence
and to respect their constitutional rights.
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Article 21 read with 21A, therefore, cast an obligation on

the State and State alone. . I am, therefore, of the
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considered view that Article 21A, as such, does not cast

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 any obligation on the private unaided educational
institutions to provide free and compulsory education to
children of the age 6 to 14 years.

Article 21A casts constitutional obligation on the State to

provide free and compulsory education to children of the
age 6 to 14 years.
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 14.5 : Right against Arrest and Detention:
Art.22:

(i) Protection : Art.22(l) to (3) deal with the protection

given to an arrested person.
(a) Any person, who is arrested, shall not be detained in
custody without being informed, as soon as may be, of the
grounds of arrest;
(b) Every person who is arrested should be produced before
the Magistrate within 24 hours of his arrest, excluding the
journey time;
(c) Every arrested person, shall not be denied the right to
consult and to be defended by a legal practitioner of his
choice.

(ii) Preventive Detention Law :

There are two types of detention—(1) Punitive and (2)

Preventive. It is punitive if the detention is according to the
sentence given by the Court, but in preventive detention, the
person is detained not for any proved guilt, but to prevent
him from the possibility of committing an offence. The
objective is 'prevention is better than cure'.

Safeguards:
The preventive detention law must be according to Art.
22(4) to (7) and also Arts. 14,19, 21 and Seventh Schedule.

The provisions may be summarised as follows (with 44th

Amendment):
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(a) The preventive detention law may provide for detention

up to 2 months;
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(b) The grounds of detention must be communicated to

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 the detinue, as soon as may be;
(c) If the Advisory Board gives its opinion that there are
no sufficient reasons, the detention made after 2 months is
void (S. D. Prasad V. State of Bihar);
(d) The Advisory Board shall consist of a chairman, a
serving High Court Judge and two other members (may be
retired judges), it should be constituted according to the
direction of the concerned High Court Chief Justice;
(e) Parliament is empowered to prescribe the maximum
period of detention in any class or classes of cases;

(f) The detaining authority, may not disclose the facts of

detention, if it considers that it would be against the public
interest to disclose.

Recent legislation :
The Preventive Detention Act 1950, which was being
renewed from year to year, lapsed in 1969.
But, in its place the MIS A (Maintenance of Internal
Security Act 1971) was made.
Sn.l7Aof this Act, was struck down by the Supreme
Court, as it provided for 21 months detention without
consulting the Board (Sarkar V. State of W.B.).
In 1974, the Parliament enacted COFEPOSA
(Conservation of Foreign Exchange and Prevention of
Smuggling Act), 1974.

The Parliament repealed the MIS A in 1978.

In its place, it has passed the Essential Services
Maintenance Act (ESMA).
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 Chapter 15

SECULAR STATE
Arts. 25 to 28 :
(i) The Framers of our Constitution incorporated the Free-
dom of religion which is the hall mark of Secularism in
Arts.25 to 28. They were inspired by the U.S. Constitution,
where according to Jefferson there is a wall of separation
between the Church and the State. (First Amendment to U.S.
Constitution).
In our constitution, 42nd Amendment added "secular" to
the preamble. Secular is opposed to "religious state (Theo-
cratic State) " and "Irreligious state ". The State should be
neutral, and, treat all religions equally. Religious practises,
worshipping of God etc. are left to the dictates of every
individuals conscience.
The State should not [Link] should not aid one religion
or prefer one religion over another. It should not collect any
religious [Link] is the essence of separation of the church
from the State.
(ii) Freedom of Conscience : Art. 25. All persons are
equally entitled to the freedom of conscience and the right to
freely profess, practise and propagate religion,
(a) This is subject to public order, morality health and other
provisions of part III.
(b) State may by law regulate or restrict any economic,
financial, political or other secular activity of the religion.
(c) State may provide for (1) Social Welfare and reform or
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(2) Throwing open of Public Hindu religious institutions to

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all classes of Hindus. (Hindu includes a Sikh, Jain or

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 Buddhist. A Sikh may wear a Kirpan).
In "Anand Marg" case, a ban imposed under Sn. 144
Cr.P.C. on Tandava dance with daggers, trisul, skulls [Link]
public places was held valid on grounds of public order.
(iii) Freedom of Religious Institutions : Art. 26 . Every
religious denomination has the right:
(a) To establish and maintain religious and charitable insti
tutions.
(b) To manage its religious affairs.
(c) To own and acquire property, and
(d) To administer such property.
(iv) These two Articles deal with the basic essentials of our
Secularism. Art. 25 refers to persons whereas Art. 26 gua-
rantees freedom to Religious Institutions. These are subject
to certain restrictions. The limit and scope of these have ben
discussed by the Supreme Court in a number of cases :
Commissioner ofH.R. Endowments V. Laxmindra Thirtha
Swamiar (Sirur Mutt Case) : The Madras Hindu Religious
and Charitable Endowment Act had provided for provisions
to deprive the mahant of his right to administer the [Link]
enabled the Commissioner to enter the premises and also the
sanctum sanctorum of the [Link] Supreme Court struck
down these [Link] declared that 'A religion is not only
a code of ethical rules, but it contains rituals, ceremonies,
modes of worship and also observances regarding dress, food
etc. There is internal autonomy and no outside authority has
jurisdiction to interfere.'
In Venkataramana Devaru [Link] of Mysore, the Madras
Temple Entry Authorisation Act, provided for the entry of
Harijans to any Hindu temple. This was challenged by the
trustees of the temple belonging to Gowda Saraswaths. They
claimed under Art. 26 (1), that they had the rights to manage
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the affairs of the temple and hence, they could bar the entry
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of any person. Held, Art. 25(2),to throw open Hindu temples

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 to all Hindus prevailed over Art. 26(1). The law was held
valid.
In Saifuddin V State ofBombay,ihe right of a religious head

to excommunicate a member from the community was held

valid.
In Ratilal V. State of Bombay, the Charity Commissioner
was authorised to deviate the funds of public trust for pur-
poses other than what the donors had indicated. Held, this
violated Art.26.
State ofRajastan V. Sajjanlal. The temple of Lord Jagan-
nath at Puri is a denominational temple. If a law provided for
a non-member of the denomination to be a member or chair-
man of the Managing Committee, then it would be violative
of Arts. 25 and [Link] the Rajastan Public Trust Act did not
have such an effect, it was held valid.

In "National Anthem" case our Supreme Court held that

"religious objectors" (Jehovas) could not be compelled to
salute the national flag.
Three children, who stood up respectfully, but refused to
sing national anthem were expelled from school.
The court followed the American Supreme Court
(Barnette's Case), and held that standing respectfully but not
singing national anthem, was not violative of any law.
The expulsion order was quashed.

In Archaka's Case, the Supreme Court held that the

office of Archaka is secular, and, hence a Hindu, who is
qualified in Agamas etc. as required by the Hindu Temple,
should not be denied of his opportunity in appointment on
grounds of caste.
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(v) Freedom from religious taxes :

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Art. 27 declares that no person should be compelled to

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 pay any taxes or tolls to promote or maintain any particular
religion or its denomination.

In Sri Jagannath V. State ofOrissa, the Supreme Court held

valid a fee levied by the Orissa H.R.E. Act, as there was no
favour to any particular religion or religious denomination.

In Swamiar's Case, the Supreme Court held, a fee 5% of

the total income of the religious institution per annum was a
'tax' and hence the Madras Legislature was incompetent. The
levy was held ultra vires.

(vi) Art. 28 states that religious instructions shall not be

provided in Educational Institutions wholly maintained out
of State Funds.

(a) a State may administer an Educational institution creat

ed under a trust or endowment which requires imparting of
religious instruction.
(b)
(c) In State recognised or aided public educational institu
tions if there is any religious instruction or worship, compul
sory attendance of any person is barred. But, voluntary atten
dance is not barred. Similarly a minor may attend if his
guardian has given consent.
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