Law Notes (LL.

B Notes)
CONSTITUTION
Question 1 :- What is Preamble? Discuss in detail of
Preamble of Indian Constitution and its objects and
significance.  How can you say that according to
Preamble, India is a sovereign, socialist, secular and
democratic republic.  How these are applied by the
courts. Refer to some decided cases? How the
various ideals and goals enshrined in the preamble
have been realised in the constitution? Refer some
decided cases.
The preamble of an Act sets out
PREAMBLE OF THE CONSTITUTION:-
the purpose and object for which a statute is enacted. The
Preamble of the constitution declares :-
We the people of India having solemnly resolved to
constitute of India into a sovereign, socialist, secular
democratic Republic and to secure to all its citizens. :- i)
Liberty of thoughts, expression, belief, faith and worship.
Ii) Justice, social, economics and political. Iii) Equality of
Status and opportunity and to promote among them all..
iv) Fraternity assuring dignity of the individual and the
unity an integrity of the Nation.
I our constitution Assembly this twenty sixth day of
November, 1949 do hereby adopt enact and give to
ourselves this constitution. 
The Purpose of Preamble:- The Preamble to the
constitution is a key to  open the mind of the makers for
which they made several provisions in the constitution. In
constitution preamble occupies an important place & 
The constitution should be interpreted in the light of the
ideals mentioned in the preamble.Keswanand Bharti
v.State of Kerla 1973.
In Berubari case SC held that preamble is not a part of the
constitution and therefore it was never regarded as the
source of limitations powers. But in Keswanand Bharti
case the SC held that Preamble is a part of the
Constitution and all importance is to be attached to it in
interpreting the constitution.  
The Preamble to the constitution serves the following
purposes:-
i) It discloses the source of the constitution.
ii) It lays down the date of the commencement of the
constitution.
iii) It sets out the rights and freedoms which the people of
India wished to secure for themselves.
iv) It declares the nature of the government which it
wishes to establish in the country.    
Preamble declares that people of India are the source of
the constitution of India. The govt., derives all its authority
from the people of India. Administrators are elected by the
People of India. The nature of the govornment, which the
preamble establishes is a sovereign, socialist, secular,
democratic republic. Sovereign because const., does not
recognise the legal supremacy of any other country.  A
democratic because govornment of the people, by the
people and for the people.  Secular because it treats all
the religions equally.  It does not recognise any religion as
a State Religion.  Socialist because it implies economic
equality and  equitable distribution of income.  In such
state important means of production is controlled by the
State. And republic because the Head of State is not a
hereditary Monarch, political sovereignty resides in the
people and Head of State is President of India who is
elected by the people for a fixed term.
Objectives of the Constitution:- The objectives is to secure
to its people, justice. Liberty, and fraternity, the dignity of
the individual and the unity and integrity of the nation. // In
keswaanand Bharti case it has been held that the
preamble is the part of the constitution and therefore it can
be amended by the Parliament under its amending power
under article 368 with the condition that it should not
exercise it amending power so as to destroy the basic
features in the preamble.  By 42nd amendment of the
constitution of India, Parliament did amend the Preamble
inserting the words “ socialist secular” before” Democratic
Republic and “ integrity”before  of the nation. Spirit of
these amendments only expressly stated what was
already present in the constitution impliedly,  the additions
did not impair the basic features.In //Aruna Roy v. Union of
India 2003 secularism has been held to be knowledge of
and respect for all religions and fostering feeling of respect
for them.  Although socialism has nowhere been defined in
the constitution.//In D.S.Nakara v. Union of India 1983 it
has been taken to mean raising the living standard of the
weaker section and labourers and to guarantee for them
lifelong social security while Excel Wear v. Union of India
1979, it was held that the effect of adding the word
Socialist is that the court should give more effect to
nationalisation and state ownership. In brief our socialism
is a unique combination of Maxism. 
 
Question 2 :- “Article 14 permits classification, but
prohibits class legislation.” Discuss this statement.    
OR
What do you understand by reasonable classification
in the context of “ Right of Equality”?  Can a single
person be treated as a class?
Ans:- Introduction:-    Classification and class legislation :
The guarantee of equality  before the law and equal
protection of the laws does not mean that all the laws must
be universal in application to all persons irrespective of
differences in their nature and circumstances.  Equal
treatment with persons in unequal circumstances amounts
to inequality and hence article 14 permits classification of
people difference between those put in class is distinct
from the others and bears a reasonable relations to the
object sought to be achieved by the legislature.// But
article 14 does not permit class legislation which means
undue discrimination by conferring some advantages or
privileges upon an arbitrarily selected group of people
though all of them are similarly circumstanced in relation
to privilege conferred on the selected class. In other words
class legislation amounts to unequal treatment with equals
and hence void under article 14.// Equality is for equals i.e.
to say those who are similarly circumstanced are entitled
to an equal treatment.  The guarantee of equality does not
imply that the same rules should be made applicable to all
persons in spite of differences in their circumstances and
conditions. Refer case Ramesh Prasad Singh v. State of
Bihar l978. // In APBC Singh v. Jharkand state Vaishya
Federation 2006, the Jharkhand state had amalgamated
Extremely backward class and backward class into one
group for the purpose of reservation in professional and
educational institutions.  The court has held that the
decision of the state govt., amalgamating the extremely
Backward classes and Backward classes is violative of
Article 14 because two different classes have been treated
similarly.  Merely showing that the Council of Ministers had
applied their minds in order to arrive at the decision is not
tenable and such decision is arbitrary and unreasonable
and is subject to judicial review.// In a case of chiranjeet lal
v.Union of India 1951, It was held that single individual
may be considered as a class in special circumstances.
The SC ruled that a law may be constitutional even if it
applies to a single individual on account of some special
circumstances or reasons applicable to him, that individual
may be treated as a class itself.  Ordinarily a legislation
pertaining to a single person would not be valid unless it
was possible for the court to discern the special
circumstances differentiating that particular person from
the rest.  If a classification is discernible in the Act, a
presumption arises in favour of its constitutionality, but the
person affected may show that while there are others
having the same differentiating attribute as he, only he is
covered by the Act and not others and the Act will then be
void.
      What article 14 prohibits is class legislation.  But it
does not forbid reasonable classification.  The
classification should not be arbitrary but must rest upon
some real and substantial distinction having some
relationship which is reasonable to the things in respect of
which the classification is sought to be made.  The
classification can be based on the basis of geography or
other objects or occupation. Refer case: Shashi Mohan v.
State of W.Bengal-1958.
     In Menka Gandhi case v Union of India- 1978 SC
emphasized on the content and reach of the great
equalising principle enunciated in Article 14.  Warning
against any attempt to truncate its all embracing scope
and meaning which might  violate it activist magnitude, SC
observed that equality is a dynamic concept with many
aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits.  The court
reiterated the majority view in E.P.Royappa v.state of
Tamil Nadu 1974 that Art. 14 strikes at arbitrariness in
State action and ensures fairness and equality of
treatment.  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. In Ajay Hasia v.Khalid Mujib
1981 SC struck down as constitutionally  invalid, the
allocation of as high a percentage as 33 1/3 of the total
marks for the oral interview for admission to the
Engineering college and declared it as infecting the
admission procedure with the vice of arbitrariness. The
court firmly laid down ha “ what article 14 strikes at
negation of equality” so ruled , the court said that not more
than 15% of the total marks should be allocated for the
oral interview.//In the series of cases State laws creating
special Courts to deal with the problems of law and order
have been questioned. A law creating special courts can
therefore be sustained only if it makes reasonable
classification either of the offences or of the cases or of
the persons, triable by the special courts. Difficulties
usually arise when the law establishing these courts fails
to do so itself and instead leaves it to the govt., to decide
this matter.  In such situation the courts have held that the
law would not be valid if it does not lay down the policy or
principle to regulate and control administrative discretion
to decide which cases offences or persons would be
triable by these courts. In Bhagwanti v Union of India-1989
it has been held that classification between marriage
during service and after retirement for the purpose of
giving family pension is arbitrary and violative of  Article
14. In state of UP v. Committee Management 2010 SC the
respondents were running  unaided school which was
upgraded as High School and Intermediate college in
1991-1999. After 30.6.84 Junior schools wee granted
recognition covered by the Grants-in-aid scheme but the
court held that the action of the State creates class within
class which is arbitrary and violates Article 14 of the
constitution. A distinction between two schools of the
same category was created while one category of schools
continued to get the grants-in-aid benefit inspite of
upgradation of other junior High school were excluded
from benefit. 

 
      
Short Notes
A. DOCTRINE OF SEVERABILITY WAIVER.
B. DOCTRINE OF ECLIPSE.      
C. CITIZENSHIP
D. WAIVER
E. Protection Against Self-Incrimination
F. PROTECTION FROM EX-POST FACTO LAW   
G. PROTECTION FROM DOUBLE JEOPARDY
CITIZENSHIP
At the commencement of this constitution every person
who has his domicile in  the territory of India and  i) who
was born in the territory of India ii) either whose parents
was born in the territory of India iii) who has been
ordinarily resident in the territory of India for not less than
five years immediately preceding such commencement
shall be a citizen of India.
              According to the Federal principle, the
constitution of USA provides for dual citizenship i.e. the
citizenship of the USA and the citizenship of the state.
Though the Indian constitution has adopted the federal
principle of the American constitution but it had opted for a
single citizenship, that is the citizenship of India.  There is
no state citizenship. 
             The citizenship Amendment Act 2003 has paved
for conferring Indian Citizenship not only upon the persons
of Indian origin but citizens of certain other countries also.
The amendment has obviously reserved the idea of single
citizenship and introduced a limited sort of double
citizenship.  
                                      DOCTRINE OF SEVERABILITY     
                   A :- Clause (1) of Article 13 provides : All laws
in force in the territory of India immediately before the
commencement of this constitution in so far as they are
inconsistent with the provisions of this part, shall to the
extent of such inconsistency be void.  Clause (2) of Article
13 says that the state shall not make any law which takes
away or abridges the rights conferred by this Part and any
law made in contravention of this clause shall, to the
extent of contravention be void. Clause 1 and 2 of article
13 thus declare that laws inconsistent with or in
contravention of the fundamental rights shall be void to the
extent of inconsistency or contravention as the case may
be. It means that where only a part of law is inconsistent
with or contravenes the fundamental rights, it is only that
part which shall be void under article 13 and not the whole
of the law. The courts apply the doctrine of severability  or
separability to separate the valid portion of the law from
the invalid portion. 
 In a case State Of West Bengal v .Committee for
protection Democratic Rights, W.Bengal 2010 SC held
that, Any law that abrogates or abridges such right would
be violative of the basic structure. Doctrine.
In some other cases Keshavaananda Bharti v/s State of
Kerla 1973, Minerva Mills v/s Union of India 1980, Waman
Rao v/s Union of India l981 and Srinivasa v/s State of
Karnataka 1987, it was held by SC, The basic features” of
the constitution cannot be amended by exercising the
power of amendment under article 368.
                                         DOCTRINE OF ECLIPSE
  DOCTRINE OF ECLIPSE :-  A law existing at the time of
coming into force of the constitution and inconsistent with
a fundamental rights though becomes inoperative from the
date of the commencement of the constitution. It is not
dead altogether. Though it is overshadowed by the
fundamental rights and remains dormant, it is not wiped
out from the statute book It stands for all the transactions
and for enforcement of rights incurred during pre-
constitution period. It this shadow or eclipse is removed by
the appropriate constitutional amendment the law revives.
This question was considered by the SC in Bhikaji Narain
v. State of MP 1955 the court held that an existing (pre-
constitution) inconsistent law is not dead and can be
revived by any subsequent amendment of the constitution.
In that case a law authorised the State Govt., to
nationalize motor transport business.  This law became
void on coming into force of the constitution in 1950 as it is
violated article 18(1)(g) in 1951. Art.19(b) was amended
which authorised the state govt to nationalized motor
transport business.  It was held that the amendment had
removed the shadow and made the law enforceable. All
existing laws are continued to be valid till courts declares
them to be in conflict with fundamental right and therefore
void. Thus the declaration of validity of the court is
necessary.
                                        
THE WAIVER
?
                                                    

Protection Against Self-Incrimination

It is a trite law in English & American Jurisprudence that
no one should be compelled to give evidence or be
witness against himself. Article 20(3) of constitution
provides,” no person accused of any offence shall be
compelled to be a witness against himself.”  This means
that no accused shall be compelled to make confessions
which might lead to his conviction.    
i) It is the right pertaining to a person “accused of an
offender”
The privilege under article 20(3) is confined only to an
accused i.e. a person against whom there is a formal
accusation relating to commission of an offence, which in
the normal course may result, in prosecution (R.K.Dalmia
v. Delhi Administration 1962)  Where a custom Officer
arrests a person and informs him of the ground for the
purpose of holding enquiry there is no formal accusation of
an offence. ( Veer Ibrahim v. State of Maharashtra, 1976) 
ii) It is protection against compulsion to be witness.     
The phrase used in Art.20(3)  is “ to be witness” and not
“appear as witness". Every possible volitional act which
furnishes evidence is testimony and testimonial
compulsion connotes a coercion which procures  the
positive volitional evidentiary acts of the person as
opposed to the negative attitude of silence or submission
on his part. Case : M.P.Sharma v. Satish Chandra 1954.
The interpretation of the phrase,“ to be witness” given in
above case is too wide and requires a qualification.  Self
incrimination can only mean conveying information based
upon personal knowledge of the person giving  information
and cannot include merely mechanical process of
providing documents in court.
iii) The Prohibition is only against the compulsion of the
accused to give evidence against himself.      
There is not constitutional disability against an accused
being a witness on his own behalf. Case Nandini Satpathi
v. P.L.Dhani-1978, It is laid down that the phrase,
compelled testimony” must be read as evidence procured
not merely by a physical threats or violence but also by
phychic torture. In case: Yusafali v. State of Maharashtra-
1968. Production of a tape-recorded statement of the
accused recorded without his knowledge and without use
of force or oppression was held to be not hit by art. 20(3)
and hence admissible in evidence.
PROTECTION FROM EX-POST FACTO LAW
Article 20(1) of the constitution says, “ 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 he subjected to a penalty greater than that
which might have been inflicted under the law in force at
the time of commission of the offence.
Article 20(1) corresponds to the provisions against ex-
post-facto laws of the  American constitution. Ex-post-
facto-laws are laws which impose and enhanced penalties
upon acts already done i.e. retrospectively. This means
that person can only be convicted of an offence if the act
was charged against him was an offence under the law in
force at the date of commission of the act.  However it
does not prohibit the imposition of civil liabilities
retrospectively.  So a tax can be imposed with effect from
a past date.  This first part of art.20(1) simply means that if
an act is not an offence at the date of its commission, it
cannot be made an offence at any date subsequent to its
commission. The second part of the clause provided that a
person cannot 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. Case: Shiv
Bahadur singh v. State of U.P.-1958 : The prohibition :- it
will  be noted, extends not only to the passing of ex-post-
facto laws but also the conviction or the sentence under
such laws. It was held that penalty means penalty for the
offence committed. In case : Venkataraman v. Union of
India.1954: -such a trial under a procedure different from
what obtained at the time of the offence or by a court
different from that which had the competence at the time
cannot ipso facto  be held to be unconstitutional.
Protection of cause(1) or article 20 cannot be claimed in
cases of preventive detention. 
PROTECTION FROM DOUBLE JEOPARDY
English and American laws bar second prosecution of an
accused for the same offence whether he was convicted
or acquitted as a result of the first prosecution. No one
should be vexed twice for the same act.  But art.20(2) of
the constitution of India has adopted this principle to a
rather narrower extent as its protection against
prosecution for which the accused has already been
prosecuted and punished. Art.20(2) provides “ No person
shall be prosecuted for the same offence more than
once.” 
          The constitutional protection against double
jeopardy is available to the citizens and non citizens of
India. Thus the Indian provision enumerates only the
principle of autrefois convict but not that of autrefois
acquit.  In England and the USA both these rules operate
and a second trial is barred even when the accused was
acquitted at the first trial for that offence.
           In order to bring the case of a person within the
prohibition of art.20(2) it must be shown that he had been
(i) Prosecuted before a court. (ii)Punished by it (iii) The
punishment was for ,” the same offence “ for which he is
being prosecuted again.
           Accordingly there can be no constitutional bar to a
second prosecution and punishment for the same offence
unless the accused had already been punished in the first
instance, in a case Kalawati v. State of M.P.-1953. The
word prosecution has no fixed meaning and is susceptible
of both wider and narrower meanings as laid down in
Venkataraman v. Union of India 1954, but as used in
art.20(2) it embodies four essentials :
1. There must be a person accused of an offence.
2. The proceedings of the prosecution should have taken
place before a court or judicial tribunal and not the
executive or administrative action.
Case : Maqbool Hussain v. State of Bombay 1953 &
H.H.Advani v.  State of Maharashtra 1971.
3. The proceeding should have been taken before the
judicial tribunal or court in reference to the law which
creates offences. Case:Venkatraman v. Union of India.-
1954 & Leo Roy v. Supdt. Of District Jail- 1958.
4. The person must have been not only prosecuted but
also punished in the previous proceeding.
Likewise, clause (2) of article 20 does not apply when the
person prosecuted and punished for the second time and
subsequent proceeding is a mere continuation of the
previous proceedings, e.g. in the case of an appeal
against acquittal. Case: State of M.P. vs. Veereshwar-
1957.
  Similarly the conviction of the accused under section 304
IPC for the death of deceased does not deprive the wife of
the deceased to claim compensation.  A decree of
damages is not a punishment and the rule of double
jeopardy has no application, Case : Suba Singh v.
Devender kaur,2011.
 
Question :- Discuss the importance of the speech and
expression.  Does the constitution permits its
curtailment? If so on what ground and o what extent? 
OR
Examine the scope of freedom of speech and
expression under the constitution of India.  Is right to
information implies in Article 19(1)(a)? 
OR
What is the scope of the right to freedom of speech
and expression? On what grounds can this right be
restricted?  
Answer:- INRODUCTION:-  Freedom of speech and
expression is a fundamental right given under Art 19(1) A
in the part III of the constitution of India.  Article 19  itself
contains certain freedom for the individual.  In a case LIC
v/s Manu Bhai D.Shah, the apex court held that,” That a
speech is Gods- gifted  to mankind.  Through speech a
human being conveys thoughts, sentiments and feeling o
others, freedom speech and expression is thus a natural
right which a human being acquires on birth.  Art.19(2)
imposes certain reasonable restrictions on these freedom.
As a general rule of law, all constitution of the world have
given certain freedoms to their individuals.  The preamble
of our constitution also gives the object of the freedom of
speech   and expression. 
Meaning :- Two things are following:-
i) right of speech
(ii) expression
Speech:-  Means a speak. It means one has the freedom
to speak. But this freedom is no absolute or complete, no
one can speak in such a manner which is  injurious to
others and on such a matter which is prohibited  by law
itself.
Expression :- It means to express or propagate a thing.
Expression may be done through written or through other
legal means. The communication of speech and
expression is a must.  So the freedom of communication
of speech and expression is also guaranteed under
Art.19(1)A.
In National Anthem Case 1986 :- It was held that the right
to speak aso incudes the right not to speak.  In this case,
three students of Jehyesh’s school were expelled by the
governing body of this school on he ground of not
speaking national anthem with other students.  The
challenged it in the court.  The SC held that the freedom of
speech and expression also includes not speaking and not
expressing. One cannot be compelled to speak or
express.
In other case  l995 In the Election Petition of Maharashtra
Chief Minister. In the Election of Manohar Joshi was
challenged on the ground of freedom of religion  and
freedom of speech and expression.  The petitioner argued
that Mr.Manohar Joshi used some words like Hindu and
Hinduism during this election.  These words are against
the right of freedom or religion and also against provisions
of people representative Act. 1950. In other wards, to ask
for vote in the name of religion is illegal.  Bu in this case
SC held that to ask votes in the name of Hindu’s or
Hinduism is not in the name of religion.  The word Hindu
or Hinduism do not denote or represent religion.  These
words are used for particular community residing in India.
However, the statement of  Balthakery chief of shiv sena,
was held against religion.  So in this case two question of
freedom of speech discussed Mr. Joshi was also protected
due to the freedom of speech and expression. 
Art.19(1)(a) guarantees right to freedom of speech and
expression  to its citizens not only within India but even
outside it. If the state action sets up barriers to its citizens
freedom of speech and expression in any country of the
world such action is violative of Article 19(1) (a) as such
expression is within the country. (Per Justice Bhagwati in
Menka Gandhi v. Union of India l978)
Territorial Extent of the right :- The right of freedom &
expression is available even out of India.  Case: Menka
Gandhi v/s Union of India 1978.  The govt argued that this
right can be restricted on the ground of out of the territory
of India because this right is available only within India.  It
cannot be enforced in the foreign countries.  But in this
case SC held that this right could not be restricted on the
ground of territorial extent.  It includes the freedom of
speech and expression even out of India. 
FREEDOM OF PRESS :- The right of speech and
expression includes the freedom of press.  The idea of the
freedom can be expressed by the way of press. Pres  is
the fourth estate of the democracy the fourth essential
condition or the fourth piller of the democracy.  So no
restriction can be imposed on the freedom of press.  The
word expression means no interference in there shall be
the freedom of press.  The freedom of press shall not be
violating to Art.19(1) A.
 Case: Indian Express Newspaper v/s Union of India
1985:- Even imposing sales taxes on the sale of
newspaper has been held violative of Art.19(1) A.  No
sales Tax can be imposed on the newspaper because the
newspapers are the mode of expression or of the views of
the public so there should be no restriction on such
freedom
1 Decency and morality : Any such speech  expression
which is against morality can be restricted under this right.
To show film is also a mode of freedom of speech and
expression qarb of film. Any such thing or scene or speech
which is injurious to the society will be prohibited under
art. 19(2). Morality means some ethical rules of the society
and some form of the society by which the status of the
society is maintained.
1. Public Order: Any such speech which is dangerous to
the unity of country can be restricted under ar. 19(2).
2. Contempt of Court:-Any-thing said against the interest
of the court can be prohibited, if any one interferes in
courts business it is offence & Punishable.
3. Friendly relation with foreign states: Ist amendment
1951 friendly relation should be maintained with other
countries.
4. Defamation:- Any statement which gives injuries to
man’s status under sec.499 IPC
5. Incitement for an offence:- Abetment or to provoke
through speech It is an offence under section 107 IPC. 
6. Sovereignty & Integrity of India: By 10th amendment so
any such speech which can be dangerous to he Unity &
integrity of India can be restricted 
So in this way these are the reasonable restrictions, which
can be imposed on the right of freedom and speech &
expression.

         
 
Question :- Define the word ,” State” as used in
context of Fundamental Rights In Part III of the
constitution . 
OR
What does the word, State signify as defined in Article
12? Examine.
Answer: INTRODUCTION  :- Article 12 OF the constitution
defines the term State, It lays down, In this part, unless the
context otherwise requires, the state includes the
Government and Parliament of India and the government
and the legislature of each of the states and all local or
other authorities within the territory of India or under the
control of the government of India.” Thus the term state
includes :-
1. The Government of India i.e. the executive of the
Union.
2. The Parliament of India i.e. the legislature of the Union.
3. The government of each state i.e. Executive of states.
4. The legislature of  each state i.e. Legislature of states.
5. All local  or other authorities within the territory of India.
6. All local or other authorities under the control of the
Govt., of India
Thus the term state includes Executive and the Legislative
organs of the Union and  States besides the Local or other
authorities within the territory of India or under the control
of the Govt., of India.
Authorities = Means a person or body exercising power to
command. In art.12 the word authority means the person
or body having the power to make laws orders,
regulations, bye-laws, notifications etc., which have the
force of law and have the power to enforce those laws.
Local Authorities :-According to sub-section 3(1) of section
3 of the General Clauses Act 1897, local authority means
a Municipal Committee, District Board, Body of
Commissioners or other authority legally entitled to or
entrusted by the government within the control or
management of a municipal or local fund.
Other Authorites :-  It was the opinion of the Madras High
Court that the term,’ other authorities’ under article 12
should be constructed ejusdem generis with the
government or legislature and so construed it can only
mean authorities exercising governmental functions.  Case
:Madras University v. Santa Bai 1954, This view of the
Madras High Court has been rejected by the Appex Court.
In Ujjambai v. State of U.P.1962.  The SC laid down that
the doctrine of ejusdem generis cannot be applied in the
interpretation of the term, other authorities.
In Electricity Board v. Mohan Lal, 196 SC has observed
that the term other authorities used under Article 12
includes all the authorities created by the Constitution or
Statute on whom powers as conferred by law, whether or
not they are engaged in performing governmental
functions.
 In later decisions the Supreme Court gave a wider and
more liberal interpretation of the expression, ‘other
authorities’.
In Ramanna Dayaram Shety v. The International Airport
authority of India 1979:- The SC held that if a body is an
agency or instrumentality of government it is an authority
within the meaning of Art. 12, whether it is a statutory
corporation, a government company or even a registered
society.  In this case the SC laid down the following tests
for determining whether or not a body is an agency or
instrumentality of the govt.  
           Whether there is any financial assistance given by
the State and if so what is the magnitude of such
assistance. Whether there is any other form of assistance
given by the State and if so, whether it is of the usual kind
or it is extraordinary.  Whether there is any control of the
management and policies of the corporation by the State
and the nature and extent of such control.
IN ASSAM SMAL SCALE INDUSRIES DEVELOPMENT
CORN., LTD V/S J.D.PHARM 2006 :-  The Appex court
has observed that Assam small scale Industries
development corpn. Ltd., is a statutory body, it is a State
within the meaning of  Art.12 of the constitution.
IS JUDICIARY INCLUDED IN THE TERM STATE ? 
The present position appears to be that when the judiciary
acts in its judicial capacity, it is not included within the term
other agencies and therefore it is not ‘State’ within the
meaning of Art. 12 whereas when it acts in administrative
capacity it is included within the term’ other agency’ and
therefore, it is a State, in the case of Prem chand Garg v.
Excise  Commissioner 1963.
In another case of Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology, 2002, The SC has held that
the Council of Scientific and Industrial Research is an
instrumentality of the State within the meaning of art. 12 of
the constitution. 
 
Question: What is right to life and personal liberty ? How
the new dimension   Has been given to it by Judiciary?  
OR
Explain the concept of personal liberty and upto what
extent it has been moulded in modern times?
OR
No person shall be deprived of the right of life and
personal liberty except according to procedure established
by law under Aar.21? Comment.   
Ans.  Introduction:- Personal liberty means freedom of
person or body.  The right of life means to live in the world.
These two things the right of life and personal liberty are
the most important rights of a person.  No one has the
right to take away the personal liberty of a person. The
rights are protected by the constitution itself under article
21.  The concept of personal liberty borrowed from the
American constitution. Even at international level, there
wee declarations which granted personal liberty and right
of life to human beings.  Article 21, has been explained
now a days very liberally by the SC.
     In a case P.N. Bhagwati on behalf of S. Court gave
decision for the people of certain local of Himachal
Pradesh, for enforcing the right of personal liberty.  In this
trial village people were prohibited during raing days
bringing essential commodities, such as, food, clothes,
shelter due to water-course on the way. The court held
govt., was liable for constructing a bridge on the water-
course.   
Right of life and personal liberty:-  Art.21 “ No person shall
be deprived of the right of life a personal liberty except
according to the procedure established by law"
No Person: means that any person whether citizen or non-
citizen
Deprived : means to take away or to finish or to arrogate a
thing.
Right of Life : Life means to live in the world. For living in
the world mainly three things Roti- Kapra and Makan are
necessary. These things are under the right of life.  
Personal Liberty: It consisted two things i) Personal ii)
Liberty.  Personal means relating to person or body.
Liberty means freedom.  So personal liberty means the
freedom of the body or bodily freedom in art. 19 there are
certain freedoms, but art 21 contains certain other types of
freedoms which are particularly related with body. For exp.
To eat, sleep and sit etc., according to one’s own choice. 
In A.K. Gopalan v/s State of Madras:-  This freedom was
restricted to bodily freedom only but later on in Kharak
Singh case, Menka Gandhi case and in certain other
cases, this concept of personal liberty was applied very
widely by the Supreme Court.  
Case : A.K.Gopalan v/s State of Madras: 1950 : The
meaning of term personal liberty was taken very narrowly.
The court held the term liberty is lin ked with the term
personal so personal freedom is only bodily freedom. In
this case certain persons including the petitioner,
A.K.Gopalan was aarrested under the Preventive
Detention Act 1950. It was held by s. Court that the arrest
and the imprisonment of the accused under this act is not
against Art.21.
Right of Privacy:-Case : Kharak Singh v/s State of U.P.-
1963.:  In this case the police of UP state suspected that
the petitioner has links with certain Dacoits. For the
purpose of investigation, the police interfered in the
personal life of Kharak singh.  Police even searched his
house at night and police used to ask from the petitioner at
midnight about his whereabouts. The petitioner challenged
these actions of the police under art.21.  He argued that
these actions of the police infringe his personal liberty.
            The Supreme Court held that the police could not
interfere in the private life of the petitioner without the
procedure established by law. A human being want to live
with privacy. Thus in this case, the right of privacy was
included in the right of liberty.
 A case Govind v/s State of M.P. 1975  in this case the
same activities of M.P. state police were held valid
because they had force of law.  The state govt., formed
certain regulations after taking power from police act.
A case Raj gopal v/s State of Tamil Nadu 1994 :- The S.
Court held that the right of privacy is a fundamental right
under art.21 of the constitution and a citizen has the right
to safe guard the privacy of his own family, marriage,
procreation, motherhood, child bearing and education
among another matters" No one can punish anything
mentioned above without his consent.
RIGHT TO TRAVEL TO ABROAD:-    A case Satwant
Singh  v/s Delhii Pass Port Officer 1967 in this case the
passport of the petitioner was confiscated by the Passport
authority of Delhi without giving any reason.  The
petitioner challenged this action and argued that the travel
to abroad also comes under the right of personal liberty.
The petitioner was some business in the foreign country
so he used to go to abroad from time to time.  Supreme
Court held that to travel to abroad also come under the
right of personal liberty. 
Menka Gandhi v/s Union of India. 1978 in this case also
the passport of the petitioner was confiscated by the
Passport authorities giving no reason for confiscation to
the petitioner.  The petitioner challenged it on the ground
of personal liberty.  The passport authorities argued that
there is a law for this purpose, In this law, it is not
necessary to give reason for impounding the passport.  It
is also not in the interest of public to give reasons of
impounding the passport. 
 But S. Court rejected all these arguments and said law
should also be based on the principle of natural justice.
The procedure established by the law should be
reasonable &  According to natural justice and the
opposite party should be given opportunity of hearing.  So
this case changed the concept of personal liberty
dynamically.  
Right of Livelihood :- A case People of democratic v/s
Delhi Administration 1982 The workers of Asaid Village
1982 were paid very minimum wages. A public interest
litigation was filed for this purpose.  The petitioner said
that reasonable wages are necessary for livelihood.
Therefore outright of live hood has been broken.  This
right comes under the right of personal liberty.  The S.
Court held that the right of livelihood comes under the right
of personal liberty under art. 21, but in another case
Sadan Singh v/s New Delhi Municipal Committee 1989 the
S.C, held that right to carry on any trade or business is not
included in the concept of life and personal liberty. The
petitioner who was doing he business on the pavement of
the roads of Delhi had claimed the refusal by the Municipal
authorities to them, to carry on business for their livelihood
resulting in the violation of their right of livelihood under
art. 21 of the constitution.  The court distinguished the
ruling of the court in Ollga-Tell’s case and held that it is not
applicable in this case. In another case D.K.Yadav v/s
J.N.A Industries-1993:  In this case SC held that the right
of life under art.21, includes right of live-hood and
therefore before terminating the service of an employee a
fair plea requires that a reasonable opportunity should be
given to him to explain his case.
RIGHT TO DIE :  A case Marui Sripati Dubal v/s  State of
Maharashtra 1986 the Bombay High court held in case
that the right to die also comes under the right of personal
liberty.  So committing to suicide should not be taken as
an offence.  It is a freedom of human beings to live or to
die.  Therefore section 309 of IPC is against Art. 21.  In
this case a police constable due to adverse family
circumstances tried to commit suicide. He was prosecuted
for this act. The court held that he was not liable under
section 309 of IPC.  Another case of P.Rathanam and Nag
Bhushan Patnaik v/s.Union of India 1944 :   The S. Court
confirmed the decision of Bombay High Court and held
that the right to live also includes the right to die, so it is
personal liberty of a person to finish his life.  But still there
is a controversy about the mercy death.  The view of some
writers is that this death should be included under the right
of personal liberty. 
Gian Kaur  v/s State of Punjab 1996:- The S. Court held
that ‘right to life’ under article 21 of the constitution does
not include, ‘right to die’, right to life is natural right
embodied in art. 21 which means to die a natural death
and does not include the right to commit suicide which is a
unnatural extinction of life and inconsistent with the
concept of right to life.
RIGHT OF EDUCATION: A CASE MISS MOHINI JAIN
V/S STATE OF KARNATKA-1992 In this case the
petitioner could not get admission in the professional
course due to high capitation fees.  There are some orders
of the Govt., of Karnataka for taking capitation fees.  This
fee was Rs.60,000/-for the out state candidates. The
petitioner could not arrange this amount of money.  She
challenged it on the ground that the right of education also
come under the right of personal liberty.  The S.C. held its
decision according to the petitioner’s argument.  In
Unikrishanan v/s State of Andhra Pradesh 1993 the court
modified the scheme laid down in Mohini Jain case in
relation to NRI students and held that out of entire the
seats only 5% seats can be filled up by NRI students, on
the basis of merit, to be judged by the management of the
college concerned and not on the basis of entrance
examination.
Case : All India Imam Organization and others v/s Union
of India The Imams of various mosques in India
challenged their wages etc., under the right of personal
liberty. Their wages were very low on which they could no
exist in the world.  They had no other source of income.
They were engaged in this service for the whole life time.
The S. Court held that the right to live in world is the first
most important right of personal living. Here also their
rights of life had been infringed.  The court ordered the
Waqif Board of India for giving sufficient wages to these
Imams for their living in this world. On source basis  now a
day a system of Rain Basera ( Lodging system for poor)
has been started by the Rajasthan Govt., on the orders of
the Rajasthan High Court.
PROFESSIONAL DOCTOR LIABILITY:- In PARMANAND
KARTARA V/S UNION OF INDIA 1989 it has been made
a rule now there is no need to file FIR, according to the
rules of Cr.PC for the purpose of curing the wounded
person in an accident.  In this case, the SC held that it is a
duty of professional doctor whether private or govt., to
cure(care) the wounded person firt and to report to police
afterwards.
SUSPENSION OF ARRTICLE 21 DURING
EMERGENCY:- During National emergency( under article
352) article 21 can be suspended.  It means no one can
claim personal liberty under article 21 during national
emergency.  There was done in 1962(Chiana attack) in
1971 (Pakistan) and 1975 emergency in India.  This has
also been confined in the Case of : ABM JABALPUR V/S
STATE  OF U.P.-1976:  This case is known as ‘ Habeas
Corpus’ case. In this case the SC held that during
emergency Art.21 can be suspended.  But in 44th
amendment 1978 it has been added that Art.21 cannot be
suspended during emergency of Indian government.
There were many authorities to the person.  This
amendment adopted the dissented views of justice
Khanna given in the above mentioned cases.  Thus if
there is a reasonable procedure established by law then
personal liberty can be taken, otherwise not.
 
Question: Constitution of India Provides freedom of
Religion or Secularism to all person. What are the
restrictions which can be imposed by the State on this
freedom? OR
India is a secular state? Do you agree with it.? OR
There is a guarantee of freedom of conscience and
right to profess, practice and propagate the religion
under article  25(1). Comments.  Give its exceptions
also.
Answer:  Introdction : Right of freedom of religion is
contained from Art. 25 to28 of constitution of India, these
articles are contained in the part III of the constitution.  As
part III is related with the fundamental rights, Art 25(1)
gives the conditions for the freedom of religion. Under
Art.2(2)there are certain restrictions on this freedom of
religion.  Art.26 is related the management of the religious
affairs and the maintenance of religious institution.  Art.27
says that the income earned by the way of religious
activities shall not be taxable, Art.28 says that the Govt.,
shall not give any aid for the religious activities.  These
four Articles give the ideas of secularism.  The preamble
of the constitution also says that our constitution is
secular.  There is freedom of thought, expression, belief
and faith. That is why India is a secular state. 
DEFINITION OF RELIGION: On the basis of religious
concept a state may be divided into three categories :-
i) Anti-Religious State : A state, which is anti religious.  It
means where there is no recognition to any religion in the
state. In other words, the persons of that state can not
follow or adopt any religion.
ii) Religious State : A State, which has its own religion or
where there is recognition of only one religion.  All people
are bound to follow that one religion. For example
Pakistan, and other Muslim countries.
iii) Secular state :- A State, which is neither anti religious,
nor religious.  It means such a state has not its own
religion but it does not prohibit any person for adopting
any religion. Modern Democratic countries are mostly
secular states. For example, America, England & India
etc.
WHAT IS RELIGION : Now question is arises that what is
religion?  It is very difficult to difine in certain words of term
‘religion’ because it is based upon faith and belief. It is a
matter of inner conscience or spiritual matter. Though in
various cases the SC of India has said that,” Religion is a
doctrine of belief. Religion is related with the manners,
living manners of getting peace in this world, including the
manners of talking, eating even types of dress. So religion
is a variety of different things in the life of a person, which
are related with spiritual or inner conscience matters. 
RIGHT TO FREEDOM OF RELIGION: According to article
25(1) there is guarantee to every person for the freedom
conscience and right to profess, practice and propagate
the religion.  The words of this article give the right for the
freedom of religion.  Art. 25(1) gives the guarantee for the
freedom of religion.  This article mainly contains the
following two things:
i) Freedom of conscience.
ii) Right to profess, practice and propagate the religion.
Freedom of Conscience:  Every person has the freedom of
conscience.  It means to think according to one’s own will.
Conscience is an internal matter upon which there is no
control of any other person, even a father cannot control
his son for the purpose of religion.  A person is free to
adopt any religion or he is free to adopt no religion. He
may be antitheist or anti God.  But it does not, mean that it
is violative of any provision of the constitution or of any
law. He is free to follow any section or any branch of
religion.  
RIGHT TO PROFESS, PRACTICE & PROPAGAE :  
Profess means to accept any thing.  A person is free to
accept any religion and to declare it openly. There is no
restriction on him for this purpose. Practice Means o
perform he religious activities. I mean one is free o follow
the customs or ceremonies or other activities of a religion.
Propagate means o spread the religion it means one has
the right to expend or spread his religion.  It means one
has the freedom to make others as his followers in this
religion. For this purpose one has the right to express his
thoughts or ideas about his religion but propagation of this
does not mean the conversion of the religion. Conversion
is an interference in the propagation of another religion. In
a case, conversion is allowed. 
1.  Case : National Anthem’s case 1984, in this case the
SC held that it is the freedom of Religion and one cannot
compel any other person for obeying he directions relating
with another religion.”  It is also said that the right to speak
also includes right of not to speak. So this order was held
violative of Art.2(1)being against the right of freedom of
religion. Case: Ramesh v/s Union of India 1988, a PIL was
filed,  SC rejected  this agreement and held that it does
not infringes the right of freedom of religion under article
25(1), even said that by this serial the true picture of the
partition of India comes in the knowledge of the public
which will be in the benefit of the public.   
RESTRICTION OVER THE FREEDOM OF RELIGION:-
Freedom of religion is neither right nor absolute freedom.
Some restrictions may be imposed on this right in the
interest of public.  The article 25(2) it self lays down
certain restrictions.
Restriction in the interest of public morality and health:-To
maintain law & order is prime duty of the government. The
government may impose certain reasonable restriction on
the religious activities. If they are dangerous to the public.
For example: to arrange route of the religious, procession,
even the force-able conversion is not in the interest of the
public. Case: Gulam Abbas V/s State of UP 1984 : The SC
rejected this argument and held that to decide a dispute
between two sections such acts  petition come under the
reasonable restrictions.
* Recently in election of Maharashtra Chief Minister:
During Dec., 1995 the election of Mr. Murli Manohar Joshi
was challenged  on the ground of religion and freedom of
speech & expression.  The petitioner argued that Mr.Joshi
used some words like Hindu or Hinduism during his
election speech. 
              SC held that o ask for votes in the name of Hindu
or Hinduism do not denote or represent religion. These
words are used for a particular community residing in
India. However the statement of Bal Thakry chief of shiv-
sena was held against religion. Mr joshi was protected due
to the freedom of religion and freedom of speech and
expression.    
1 Morality :   To Practice or propagate any such activity in
the name of religion which effects the morality of persons
shall be restricted.  That is to practice or propagate
prostitution in the name of religion, is not valid.
2 Health :- In the shia act, there is a provision for
slaughtering the cows in the public place because of its
effects on the health. So this is not reasonable even if to
be related with religion. 
3 Economic or secular of administrative activities :    
means monitory or financial matters. Some reasonable
restrictions may be imposed on the financial matters of the
religious activities. There are certain secular activities
which have no link with the religion can be prohibited
under section 25(2).  Case : SP Mittal v/s Union of India
1983. In this court held that certain reasonable restrictions
could be imposed in the administrative activities of any
religion. In other case :State of W.Sbegal v/s Ashutosh
Lohri -1995, The SC held that the decision of the Mohd.
Hanif  & Qureshi v/s state of Bihar, the slaughtering of
cows no the essential elements of Muslim religion.
4 Social Welfare Reform :  Certain restricitions may be
imposed for the purpose of social reforms, for example
Sati Pratha which is considered as a religious activity
under Hindu religion has been prohibited by passing the
sati pratha prevention act.  Similarly in south Devdasi
Pratha according to this pratha  the girls  were sent to the
temple for entertain of the guests in the temple under this
practice, there were incidents by which these girls were
misused, so the restrictions in the name of social reforms
imposed  on this pratha under section 25(2).
Article 26 Freedom to manage religious Affairs : Says that
any denomination has the freedom to manage the affairs
of its religion. For this purpose, following rights have been
given:
1. To establish and maintain institution for religious or
charitable purposes.
2. To maintain the religious affair in these institutions.
3. To acquire and hold movable and immovable property
for these institutions.
4. To dispose of such properties according to law.
Article 2 says that no tax can be imposed upon religious
income. Even state can also not impose tax on any person
o property for the promotion of religion.  However Private
and govt. Aided educational institutions can give such
directions for the purpose of religion but in case of govt
educational institutions no religious directions or aid can
be given by the state. There is complete freedom of
religion in India except certain restrictions as explained
above. India is a secular state. 
Article 25 to 28 are peculiar and most important articles
which adjust all types of religious communities castes in
India that is why it is said that ,” There is unity in diversity
in India.”