WHY INDIA NEEDS A CONSTITUTION?

India needed a constitution to provide a framework for the governance of the country after
it gained independence from British rule in 1947. The British had ruled India for over 200
years, and during that time they had imposed their own laws and institutions on the
country. However, these laws and institutions were not designed to meet the needs of the
Indian people, and they did not reflect the diversity of Indian society.
A constitution was needed to create a new system of government that would be based on
the principles of democracy, equality, and justice. A constitution would also be needed to
protect the fundamental rights of the Indian people, such as the right to freedom of speech,
the right to freedom of religion, and the right to equality before the law.
The Constituent Assembly of India was elected in 1946 to draft a constitution for the
country. The Assembly met for two years and eleven months, and it considered over 2,000
amendments to the draft constitution. The final draft of the constitution was adopted on
November 26, 1949, and it came into effect on January 26, 1950.
The Indian Constitution is a complex and comprehensive document, and it has been
amended 104 times since it was first adopted. However, the basic principles of the
constitution remain the same, and it continues to serve as a framework for the governance
of India.
Here are some of the key reasons why India needed a constitution:
 To provide a framework for the governance of the country after independence
 To create a system of government that would be based on the principles of
democracy, equality, and justice
 To protect the fundamental rights of the Indian people
 To unite the country and provide a sense of national identity
 To provide a mechanism for resolving disputes between the different regions and
groups of people in India
 To establish a rule of law and to ensure that the government is accountable to the
people
The Indian Constitution is a living document that has been adapted to the changing needs of
the country. It is a source of strength and stability for India, and it is a symbol of the hopes
and aspirations of the Indian people.

IMPORTANT ARTICLES IN INDIAN CONSTITUTION

The Constitution of India is a comprehensive document with numerous articles covering
various aspects of governance, rights, and duties. Here are some of the important articles in
the Indian Constitution:
 Article 1 - Name and Territory of the Union: Defines India as a Union of States and
specifies its territory.
 Article 3 - Formation of new States and alteration of areas, boundaries, or names of
existing States: Gives the power to the Parliament to create new states, alter
boundaries, or change names of existing states.
 Article 12 - Definition of the State: Defines the term "State" for the purpose of
fundamental rights. It includes the government and Parliament of India, the government
and legislature of each state, and local authorities.
 Article 13 - Laws inconsistent with or in derogation of the fundamental rights: Declares
that laws inconsistent with or in derogation of fundamental rights are void. It empowers
the judiciary to strike down such laws.
 Article 14 - Right to Equality: Ensures equality before the law and equal protection of
laws for all citizens.
 Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth: Prohibits discrimination on grounds of religion, race, caste, sex, or place of
birth.
 Article 19 - Protection of certain rights regarding freedom of speech, etc.: Guarantees six
freedoms: freedom of speech and expression, assembly, association, movement,
residence, and profession.
 Article 21 - Protection of life and personal liberty: Ensures the right to life and personal
liberty and states that no person shall be deprived of their life or personal liberty except
according to the procedure established by law.
 Article 32 - Remedies for enforcement of rights conferred by this Part: Grants the right
to move the Supreme Court for the enforcement of fundamental rights.
 Article 36 - Definition of the State in Part III: Expands the definition of "State" for the
purpose of fundamental rights to include authorities within the territory of India or
under the control of the Government of India.
 Article 40 - Organisation of village panchayats: Directs the State to take steps to organize
village panchayats and endow them with such powers and authority as may be
necessary.
 Article 44 - Uniform civil code for the citizens: Directs the State to secure for the citizens
a Uniform Civil Code throughout the territory of India, aiming to harmonize personal
laws based on religion.
 Article 50 - Separation of judiciary from executive: Directs the State to take steps to
separate the judiciary from the executive in the public services of the State.
 Article 73 - Extent of executive power of the Union: Specifies the extent of the executive
power of the Union and states that the executive power of the Union shall extend to the
matters with respect to which Parliament has the power to make laws.
 Article 74 - Council of Ministers to aid and advise the President: Establishes the Council
of Ministers to aid and advise the President in the exercise of his functions.
 Article 76 - Attorney General for India: Provides for the appointment of the Attorney
General as the Chief Law Officer of the Government of India.

Lecture 1

The topics that will be covered:

1. Constitution, constitution law and constitutionalism

2. No definition that everyone agrees
3. Preamble in other constitution and how it is treated in Indian constitution
4. Basic structure doctrine
5. Rule of law and separation of law – just skimp through it
6. Citizenship
7. Fundamental right against the state, the state is also supposed to protect your FR.
8. What is state in constitution
9. Definition of law
10. Power of judicial review – ultra vires
11. The fundamental rights – right to equality; freedom under constitution; right to life and
personal liberty; right to privacy; protection under penal laws; under article 20 and 22
12. How writs work

Constitution, constitution law and constitutionalism:

- Ayodhya recent event
- What is happening in MP and Maharashtra with 2 deputy CM unconstitutional
- Constitution is a legal document that defines the structure, powers, and functions of
the government and the rights and duties of the citizens. It is the supreme law of a
nation-state and serves as a roadmap for its governance. For example, the
Constitution of India is the longest written constitution in the world, adopted on 26
November 1949 and came into effect on 26 January 1950.
- Constitution law is a branch of law that deals with the interpretation and application
of the constitution. It regulates the relationship between the state and its organs, as
well as between the state and its citizens. It also resolves disputes arising from
constitutional matters. For example, the Supreme Court of India is the highest
judicial authority for constitutional law and has the power to strike down any law or
action that violates the constitution.
- Constitutionalism is a concept or a philosophy that demands the limitation of the
powers of the state by the rule of law. It advocates for the protection of individual
rights, the separation of powers, the checks and balances, and the democratic
principles. It is the underlying basis of liberal democracy and ensures that the
constitution is not only a written document but also a living idea. For example, the
Magna Carta of 1215 is considered one of the earliest examples of constitutionalism,
as it limited the powers of the British monarch and established the rights of the
nobles.

Lecture 2

What is constitution ? Supreme law of land

Grants law of theory
Where does constitution derive its validity from ? From the people (as said in the
preamble). Grant Norm theory – pyramid, everything below derives the validity from
above.
Where does legislation derive its validity from ? Bill gets introduced (both the house
needs to be agreed on the bill).
Nationalism and nation – which revolution did it come from ? French revolution
Social contract theory
Hobbs argument – focus on economic rights
Locks argument – right to property is only a problem, rest the land was fine.
Philosophical arguments on the constitution – why and what made a constitution today
Fundamental duties didn’t have enforceability
Right to property was moved to FR.
Amendments of FR – it is difficult, ratification is difficult but it is not unachievable.
Abolition of ami dari system (for the acquisition of land for railways, etc.)
 Constitutionalism – limiting the power of the government. China has a constitution, but
no democracy. Elections are happening, but the result is the same. Only one major party
in China, that is why it is not democracy though it states in paper it is democracy.
Chief justice not welcomed in the election commission – opinion on why
Features of constitutionalism – federalism, separation of power, rule of law,
independent judiciary.
India is quasi federal.
Duchacek on quasi federal – has given 7 yardsticks for federal. India fulfils exact 5.5.
That is how we are awarded Quasi federal.
Division of power – territorial division of power article 245 and subject wise division of
power
How is the definition of constitutionalism is changing over time? transformative
constitutionalism.

PREAMBLE
 Adopted on 26 November 1949 and came into effect on 26th January 1950
 In Berubari Case 1960, SC declared preamble not to be part of the Indian
constitution.
 A preamble is an introductory statement in a document that explains the
document’s philosophy and objectives. In a Constitution, it presents the intention of
its framers, the history behind its creation, and the core values and principles of the
nation. The ideals behind the Preamble to India’s Constitution were laid down by
Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent Assembly on
January 22, 1947. Although not enforceable in court, the Preamble states the
objects of the Constitution, and acts as an aid during the interpretation of Articles
when language is found ambiguous.
 Preamble is part of the Constitution. Preamble indicates the basic structure of the
Constitution. Preamble is neither enforceable nor justifiable in a court of law. This
implies that courts cannot pass orders against the government in India to implement
the ideas in the Preamble. Preamble can be amended, and it has been amended
only once through the 42nd Constitutional Amendment Act 1976.
 In the case of Kesavananda Bharti v. State of Kerala (1973), Justices Shelat and
Grover opined that the Preamble of the Constitution of India embodies in an
earnestly religious form all the ideals and aims for which India has dreamt for so
long and struggled, during the entire colonial period.
 In the case of Randhir Singh v. Union of India (1982), the Supreme Court while taking
into considerations the key words of Preamble, held that Article 39(d) of the
Constitution also includes “equal pay for equal work”, which is a constitutional right,
irrespective of the gender. Our preamble expressly provides for providing equality of
status and opportunity to its people and in pursuance to this, the court
acknowledged equal pay for equal work as a constitutional right.

The Preamble is the introductory statement of the Constitution of India that outlines the
document’s main goals and guiding principles. It is considered to be the essence and soul of
the Constitution, as it reflects the vision and aspirations of the framers and the people of
India. The Preamble plays a vital role in the interpretation and implementation of the
Constitution, as it acts as a guiding light for the judiciary, the legislature, and the executive.
It also helps in resolving any ambiguity or conflict that may arise in the constitutional
provisions.
The Preamble declares India to be a sovereign, socialist, secular, and democratic republic,
committed to securing justice, liberty, equality, and fraternity for all its citizens. The
Preamble also mentions the date of adoption and enactment of the Constitution, i.e.,
November 26, 1949, and January 26, 1950, respectively. The Preamble was amended only
once by the 42nd Constitutional Amendment Act in 1976, which added the words
“socialist”, “secular”, and “unity and integrity of the nation” to the Preamble. The
significance and importance of the Preamble can be understood from the following points:

 It provides the source of authority of the Constitution, i.e., the people of India, who
gave themselves the Constitution through their representatives in the Constituent
Assembly.
 It defines the nature and character of the Indian state, i.e., a sovereign, socialist,
secular, and democratic republic, which implies that India is independent, follows a
mixed economy, respects all religions, and is governed by the people through a
representative system.
 It states the objectives and ideals of the Constitution, i.e., justice, liberty, equality,
and fraternity, which are the core values of the Indian polity and society. These
objectives and ideals are also reflected in the Fundamental Rights and the Directive
Principles of State Policy, which are the two pillars of the Constitution.
 It reflects the historical struggles and sacrifices of the Indian people in their fight for
freedom and justice, and pays homage to the freedom fighters and the principles for
which they fought.
 It serves as a standard for testing the validity and constitutionality of any law or
action of the government, and also as a tool for constitutional interpretation and
amendment. The Supreme Court has held that the Preamble is a part of the
Constitution and can be invoked to determine the meaning and scope of the
constitutional provisions.

Case laws:

 Re: Berubari Union Case (1960)1: The Supreme Court held that the preamble is not a
part of the Constitution and it has no legal effect. It also said that the preamble
cannot be used to interpret the constitutional provisions.
 Kesavananda Bharati v. State of Kerala (1973) 2: The Supreme Court overruled the
Berubari case and declared that the preamble is a part of the Constitution and it
reflects the basic structure of the Constitution. It also said that the preamble can be
amended by the Parliament, but the basic features of the preamble cannot be
altered.
 Indira Nehru Gandhi v. Raj Narain (1975) 3: The Supreme Court upheld the validity of
the 42nd Amendment Act, which added the words “socialist”, “secular”, and “unity
and integrity of the nation” to the preamble. It also said that the preamble is a key to
open the mind of the makers of the Constitution and to understand the spirit behind
it.
 LIC of India v. Consumer Education and Research Centre (1995) 4: The Supreme
Court reiterated that the preamble is an integral part of the Constitution and it can
 be used to interpret the constitutional provisions. It also said that the preamble
embodies the socio-economic justice and the welfare state envisaged by the
Constitution.

The preamble can be amended, but only in accordance with the provisions of Article 368 of
the Constitution of India, which lays down the procedure and the scope of constitutional
amendments. The preamble is a part of the Constitution and reflects its basic structure,
which cannot be altered by any amendment. The preamble has been amended only once so
far, in 1976, by the 42nd Constitutional Amendment Act, which added the words “socialist”,
“secular”, and “integrity” to the preamble. This amendment was upheld by the Supreme
Court as valid and not violating the basic structure of the Constitution.

Provides interpretative tool: In cases of ambiguity or conflicting provisions within the

constitution, the preamble serves as a valuable tool for understanding the spirit and intent
of the lawmakers. The preamble's ideals have served as a basis for striking down laws
deemed inconsistent with its core principles. For example, in the Kesavananda Bharati case,
the Supreme Court of India relied on the preamble's emphasis on democracy to declare that
even the fundamental rights could not be abridged completely.

 A.D.M. Jabalpur v. Shivkant Shukla (1976): The Supreme Court used the preamble's
emphasis on liberty to limit the government's power to detain citizens during the
Emergency.
 Minerva Mills Ltd. v. Union of India (1980): The preamble's reference to a socialist
republic was cited to uphold the government's nationalization of certain industries.
 Kesavananda Bharati v. State of Kerala (1973): The preamble's commitment to
democracy formed the basis for the landmark ruling that even fundamental rights
cannot be completely abolished.

Limitations of the Preamble:

 Not Legally Binding: The preamble itself isn't directly enforceable, meaning courts
cannot strike down laws solely based on their conflict with it.
 Subjectivity and Ambiguity: The preamble's language can be open to
interpretation, leading to disagreement over its precise meaning and application.
 Balancing Act: Applying the preamble's principles requires careful consideration of
other constitutional provisions and competing interests.

The preamble, while not directly enforceable in most legal systems, plays a crucial role in
interpreting the constitution. It acts as a beacon, guiding the courts and lawmakers towards
understanding the underlying values and principles that animate the entire document.
Here's how the preamble contributes to constitutional interpretation:
1. Clarifying Ambiguity:
 The Constitution often uses broad language, leading to potential ambiguity in its
interpretation. The preamble, with its concise articulation of core values, helps
resolve such ambiguity.
  For example, consider the phrase "liberty" in the preamble. Courts might use the
preamble's emphasis on fraternity and equality to interpret the scope of individual
liberties in relation to collective rights.
2. Harmonizing Conflicting Provisions:
 The Constitution may contain provisions that seem to contradict each other. The
preamble's overarching principles can provide a framework for reconciling these
discrepancies.
 For instance, if a law restricts certain freedoms but aligns with the preamble's goal of
social welfare, the court might uphold it, balancing individual liberty with collective
well-being.
3. Filling in Gaps:
 The Constitution cannot anticipate every future scenario or issue. The preamble's
broad principles can guide courts in addressing unforeseen situations.
 For example, if a new technology emerges that raises privacy concerns, the
preamble's emphasis on freedom and dignity might inform judicial rulings on its
regulation.
4. Keeping the Constitution Relevant:
 The Constitution needs to adapt to changing societal values and aspirations. The
preamble's timeless ideals provide a touchstone for ensuring that the Constitution
remains relevant and responsive to the needs of the people.
 Courts can interpret the preamble's principles in light of contemporary concerns,
ensuring the Constitution continues to serve its intended purpose.
5. Setting Priorities for Law-making:
 The preamble's goals and values can inform legislative priorities. Lawmakers can use
it as a guidepost to ensure that new legislation aligns with the spirit of the
Constitution.
 For instance, the preamble's commitment to equality might inspire legislation aimed
at addressing gender or economic disparities.
However, it's important to note:
 The preamble's role in interpretation is not absolute. Courts must carefully balance
its principles with the specific text and context of other constitutional provisions.
 Different legal systems may assign varying degrees of weight to the preamble in
interpretation.

Third Lecture note:

- Doctrine of eminent domain – use of property by the government.
- Public trust doctrine – MC Mehta v Kamal Nath 1996 discussed this. This case stated
the state is the trustee of all the resource, the beneficiary is the state. The socialist
word is discussed in this case.
- The word secular and integrity how it was introduced.
- Through the 42nd Amendment – how and why the 3 words were introduced.
Background of introducing these words.
- ‘We the people of India’ – whether the will of the people is included? this phrase is
there in most constitution. It is not super imposed but adopted by the people. The
spirit of the people.
- GEIST – a German word incorporated.
 - Whether preamble part of constitution, basic structure doctrine and can be used for
interpretation?
- Effect of gandhian philosophy in the preamble, Gandhi, Ambedkar, and Nehru were
involved in the making of preamble.
- Which the philosophy we have adopted in the preamble – antyodaya or sarvodaya?
- Learn about every key word in the preamble.
- Role of preamble in the interpretation of the constitution

Citizenship

Citizenship is a legal status that grants a person certain rights and obligations in a state.
Different countries have different laws and procedures for acquiring and losing citizenship.
In India, the Citizenship Act of 1955 regulates the matters of citizenship, along with the
constitutional provisions in Part II of the Constitution.
According to the Citizenship Act of 1955, there are five ways of acquiring Indian citizenship:

 By birth: A person born in India on or after 26 January 1950, but before 1 July 1987,
is a citizen of India by birth. A person born in India on or after 1 July 1987, but before
3 December 2004, is a citizen of India by birth if either of his parents is a citizen of
India at the time of his birth. A person born in India on or after 3 December 2004, is a
citizen of India by birth if both his parents are citizens of India or one of them is a
citizen of India and the other is not an illegal migrant.
 By descent: A person born outside India on or after 26 January 1950, but before 10
December 1992, is a citizen of India by descent if his father is a citizen of India at the
time of his birth. A person born outside India on or after 10 December 1992, but
before 3 December 2004, is a citizen of India by descent if either of his parents is a
citizen of India at the time of his birth. A person born outside India on or after 3
December 2004, is a citizen of India by descent if both his parents are citizens of
India or one of them is a citizen of India and the other is not an illegal migrant.
 By registration: A person can apply for registration as a citizen of India if he fulfills
certain conditions, such as being of Indian origin, being married to an Indian citizen,
being a minor child of Indian citizens, being a resident of India for a specified period,
etc.
 By naturalization: A person can apply for naturalization as a citizen of India if he
fulfills certain conditions, such as being of good character, having adequate
knowledge of an Indian language, renouncing his previous citizenship, having resided
in India for a specified period, etc.
 By incorporation of territory: If any new territory becomes a part of India, the
Government of India may specify the persons who among the people of the territory
shall be the citizens of India.

According to the Citizenship Act of 1955, there are three ways of losing Indian citizenship:

 By renunciation: A citizen of India who voluntarily acquires the citizenship of another

country can renounce his Indian citizenship by making a declaration in the prescribed
manner. Upon such renunciation, he ceases to be an Indian citizen. If such a person
 has a minor child, the child also loses Indian citizenship. However, the child may
resume Indian citizenship within one year of attaining full age by making a
declaration in the prescribed manner.
 By termination: A citizen of India who voluntarily acquires the citizenship of another
country ceases to be an Indian citizen from the date of such acquisition. This
provision does not apply to a person who acquires the citizenship of another country
by marriage or by descent.
 By deprivation: The Central Government may deprive a person of Indian citizenship if
it is satisfied that he obtained the citizenship by fraud, false representation, or
concealment of any material fact; or that he has shown disloyalty or disaffection
towards the Constitution of India; or that he has unlawfully traded or communicated
with the enemy during a war; or that he has been sentenced in any country for
imprisonment for a term of not less than two years within five years of his
registration or naturalization; or that he has been ordinarily resident out of India for
a continuous period of seven years and has not registered his intention to retain his
citizenship.
 Citizenship is a legal status that grants certain rights and duties to a person who
belongs to a country. The Constitution of India and the Citizenship Act of 1955 are
the main sources of law that regulate citizenship in India. According to the
Constitution, there are five ways of acquiring Indian citizenship: by birth, by descent,
by registration, by naturalisation, and by incorporation of territory. There are also
three ways of losing Indian citizenship: by renunciation, by termination, and by
deprivation.
 Renunciation is a voluntary act of giving up one’s citizenship by making a declaration
to the prescribed authority. A person who renounces Indian citizenship also causes
his or her minor children to lose their citizenship. However, such children can
resume Indian citizenship when they attain the age of 18.
 Termination is an automatic loss of citizenship that occurs when a person acquires
the citizenship of another country. India does not allow dual citizenship, so a person
cannot be a citizen of India and another country at the same time. However, this rule
does not apply during a war involving India.
 Deprivation is a compulsory loss of citizenship that is imposed by the government on
a person who has obtained citizenship by fraud, shown disloyalty to the Constitution,
unlawfully traded or communicated with the enemy during a war, or been convicted
of certain offences.

Ambivalence of citizenship in Assam is a term that refers to the complex and contested
issues of identity, rights, and belonging that have emerged in the north-eastern state of
India over the decades. The process of identifying and verifying the citizens of Assam
through the National Register of Citizens (NRC) has been fraught with controversies,
exclusions, and anxieties for millions of people who live in the state or trace their roots to
it. The NRC, coupled with the changes in the Citizenship Act, 1955 that apply specifically to
Assam and allow for a “hyphenated” citizenship - “Indian” and “Assamese” - has raised
several legal, political, and humanitarian questions that are yet to be resolved.
Some of the key questions that have been raised by various stakeholders are:
  What is the constitutional validity of Section 6A of the Citizenship Act, which
prescribes a different cut-off date (March 24, 1971) for citizenship in Assam than the
rest of India (July 19, 1948)?
 How does the NRC affect the political rights of the citizens of Assam, especially the
indigenous communities and the linguistic and religious minorities?
 What are the implications of the Citizenship (Amendment) Act, 2019, which grants
citizenship to non-Muslim migrants from Bangladesh, Pakistan, and Afghanistan, on
the demographic and cultural composition of Assam?
 What are the legal and humanitarian challenges faced by the people who have been
excluded from the NRC or declared as foreigners by the Foreigners Tribunals?
 How can the state and the central governments ensure a fair, transparent, and
humane process of verification and appeals for the NRC applicants?
 How can the civil society and the media play a constructive role in fostering dialogue,
peace, and justice in Assam?

The National Register of Citizens (NRC) is a list of people who can prove they are legal
citizens of India in the state of Assam. The NRC was first prepared in 1951, after the Indian
independence, to identify the original inhabitants of Assam and exclude the migrants from
East Pakistan (now Bangladesh). The NRC was updated between 2013 and 2019, under the
supervision of the Supreme Court of India, to address the issue of illegal immigration in
Assam. The final updated NRC, published on 31 August 2019, excluded about 1.9 million
people, who are now at the risk of becoming stateless and facing deportation.

The NRC has been a controversial and complex process, involving various legal, political, and
humanitarian challenges. Some of the main challenges are:

 The difficulty of proving one’s citizenship through documentary evidence, especially

for the poor, illiterate, and marginalized sections of the society.
 The lack of clarity and consistency in the criteria and procedures for verification and
appeals of the NRC applicants.
 The impact of the NRC on the ethnic, linguistic, and religious diversity of Assam, and
the potential for communal violence and human rights violations.
 The fate of the excluded people, who have no clear options for legal recourse,
rehabilitation, or repatriation.
 The implications of the NRC for the rest of India, as the government has announced
its intention to implement a nationwide NRC in the future.

---------

Conceptions of Citizenship in India and the ‘Muslim Question’ is a scholarly article by

Rochana Bajpai, published in the journal Modern Asian Studies in 2010 1. The article explores
the development of multiple conceptions of citizenship in India, and how they have shaped
the political and social status of the Muslim minority in the country. The article argues that
the Indian polity incorporated a deeply divided and conflict-ridden population by offering
multiple notions of citizenship, which were sometimes complementary and sometimes
contradictory. The article also examines how the Muslim question, or the issue of Muslim
representation and rights, has been addressed by various actors and institutions in India,
such as the colonial state, the nationalist movement, the constitutional assembly, the
judiciary, the political parties, and the civil society.

The article is divided into four sections. The first section provides a theoretical framework
for understanding the concept of citizenship and its dimensions. The second section traces
the historical evolution of citizenship in India, from the colonial period to the post-
independence era. The third section analyses the contemporary challenges and dilemmas of
citizenship in India, especially in relation to the Muslim minority. The fourth section
concludes by highlighting the significance and implications of the study.

The article is based on extensive research and analysis of primary and secondary sources,
such as constitutional debates, legal judgments, policy documents, political speeches,
academic literature, and media reports. The article contributes to the existing scholarship
on citizenship, democracy, and minority rights in India, and offers a nuanced and
comprehensive perspective on the complex and contested issues of identity, belonging, and
justice in the country.

According to one article by Joya Chatterji 1, minorities in South Asia emerged as a distinct
legal category of citizens who were not fully protected by the states within which they lived.
The power of South Asia’s nation-states over their ‘minority-citizens’ far exceeded their
sovereignty over ordinary citizens, and the capacity of ‘minority-citizens’ to resist this power
was broken by a series of draconian executive actions. Chatterji argues that ‘minority
citizenship’ was not simply a product of ‘bureaucratic rationality’ or ‘governmentality’, but
rather a result of complex and often violent interactions between government and non-
state actors, who imposed their own ideas of nationality, justice, and entitlement on the
legal system. Chatterji also shows how India and Pakistan continued to be bound together
by migrants and migration even as their discursive claims seemed to pull them ever further
apart.

The summary of the article by Joya Chatterji1 is as follows:

 The article examines how minorities in South Asia became a distinct legal category of
citizens who were not fully protected by the states within which they lived after the
partition of India and Pakistan in 1947.
 The article argues that the power of South Asian nation-states over their ‘minority-
citizens’ was much greater than their power over ordinary citizens, and that this
power was enforced by a series of harsh executive actions that restricted the rights
and freedoms of minorities.
 The article also shows that ‘minority citizenship’ was not just a result of state
policies, but also of complex and often violent interactions between government and
non-state actors, such as religious groups, political parties, and social movements,
who imposed their own ideas of nationality, justice, and entitlement on the legal
system.
 The article challenges the conventional dichotomy between ‘ethnic’ and ‘civic’
models of nationhood and citizenship, and demonstrates how ‘civil’ and ‘political’
aspects of citizenship were intertwined and mutually shaped by historical events and
processes in South Asia.
  The article reveals how India and Pakistan remained connected by migrants and
migration even as their official claims seemed to pull them further apart, and how
citizenship in South Asia was a contested and dynamic concept that changed over
time and space

Class notes 4
- The Joya Chatterji article
- Article 5, 6 and 7 of the constitution – discussing all the articles under part II of the
constitution.

Article 12 and 13 of the Indian Constitution

This definition of state applies only to PART 3

Kishore vs state of UP – Article 19 and 21 can be enforced against art.12
Ajeeb Singh v state of Punjab – local authority explanation
Mohammed Yaseen v Town area committee – a 7 stage test for determination of local
authority. It is a 1952 judgement.
In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be
characterized as a ‘local authority’ the authority concerned must;
1. Have a separate legal existence as a corporate body
2. Not be a mere government agency but must be legally an independent entity
3. Function in a defined area
4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
5. Enjoy a certain degree of autonomy (complete or partial)
6. Be entrusted by statute with such governmental functions and duties as are usually
entrusted to locally (like health, education, water, town planning, markets,
transportation, etc.)
7. Have the power to raise funds for the furtherance of its activities and fulfilment of its
objectives by levying taxes, rates, charges or fees.

- In the University of Madras v. Shanta Bai, the Madras High Court evolved the
principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those
authorities are covered under the expression ‘other authorities’ which perform
governmental or sovereign functions. Further, it cannot include persons, natural or
juristic, for example, Unaided universities.
- In the case of Ujjammabai v. the State of U.P., the court rejected the above
restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted to
the in interpreting ‘other authorities’. The bodies named under Article 12 have no
common genus running through them and they cannot be placed in one single
category on any rational basis.
- Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that
‘other authorities’ would include all authorities created by the constitution or statute
on whom powers are conferred by law. Such statutory authority need not be
engaged in performing government or sovereign functions. The court emphasized
that it is immaterial that the power conferred on the body is of a commercial nature
or not.
 - Sukdev singh vs Bhagad ram
- Doctrine of instrumentality
- Ajay Hasia vs Khalid Mujib
- Jeeta Rani case

Article 12 of the Indian Constitution defines the term ‘State’ for the purpose of applying the
provisions of Part III, which deals with Fundamental Rights. The term ‘State’ includes the
following entities:

 The Government and Parliament of India

 The Government and Legislature of each State
 All local authorities, such as municipalities and panchayats (general clauses act 1897
defines what is local authority as it is not defined in art.12)
 All statutory and non-statutory authorities, such as commissions, tribunals, and
agencies

The definition of ‘State’ is not exhaustive and the Supreme Court has expanded it through
various judgments to include anybody that performs a public function or duty, or is
supported by the State or its officials.
Some of the recent developments related to Article 12 are:

 In October 2023, the Supreme Court declined to recognise same-sex marriages and
civil unions, stating that there is no fundamental right to marry under the
Constitution1.
 In August 2023, the Supreme Court held that the Board of Control for Cricket in India
(BCCI) is a ‘State’ under Article 12, as it performs a public function of regulating
cricket in India and receives substantial support from the government.
 In July 2023, the Supreme Court ruled that private educational institutions are not
‘State’ under Article 12, unless they are aided by the government or controlled by
statutory regulations.

Article 12 is important for ensuring the protection of fundamental rights of the citizens
against the arbitrary actions of the State and its instrumentalities. It also imposes a duty on
the State to respect and uphold the fundamental rights of the people.

Article 12 of the Indian Constitution defines the term ‘State’ for the purpose of applying the
provisions of Part III, which deals with Fundamental Rights. The term ‘State’ includes the
following entities:

 The Government and Parliament of India

 The Government and Legislature of each State
 All local authorities, such as municipalities and panchayats
 All statutory and non-statutory authorities, such as commissions, tribunals, and
agencies
The definition of ‘State’ is not exhaustive and the Supreme Court has expanded it through
various judgments to include any body that performs a public function or duty, or is
supported by the State or its officials.
Some of the important case laws that have interpreted Article 12 are:
 University of Madras v. Shantha Bai (1954): The Madras High Court held that the
University of Madras is a ‘State’ under Article 12, as it was established by a statute
and performs public functions of imparting education1.
 Electricity Board, Rajasthan v. Mohan Lal (1967): The Supreme Court held that the
Electricity Board of Rajasthan is a ‘State’ under Article 12, as it was created by a
statute and has the power to make rules and regulations2.
 Ajay Hasia v. Khalid Mujib (1981): The Supreme Court laid down five tests to
determine whether a body is a ‘State’ under Article 12. These are:
o Whether the entire share capital of the body is held by the government
o Whether the financial assistance of the government is so large as to meet the
entire expenditure of the body
o Whether the body enjoys monopoly status conferred or protected by the
government
o Whether the functions of the body are of public importance and closely
related to governmental functions
o Whether the body is under the control of the government

Applying these tests, the Supreme Court held that the Regional Engineering College,
Srinagar, is a ‘State’ under Article 12, as it was established and funded by the
government and performed the public function of imparting technical education.
 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002): The Supreme
Court modified the tests laid down in Ajay Hasia case and held that the dominant
factor to determine whether a body is a ‘State’ under Article 12 is the degree of
control exercised by the government over the body. The Supreme Court held that
the Council of Scientific and Industrial Research (CSIR) is not a ‘State’ under Article
12, as it is an autonomous body and the government does not exercise pervasive
control over it.
 Zee Telefilms Ltd. v. Union of India (2005): The Supreme Court held that the Board
of Control for Cricket in India (BCCI) is not a ‘State’ under Article 12, as it is a private
body and the government does not exercise any control over its activities. The
Supreme Court also observed that the functions of BCCI are not public functions and
it does not enjoy any monopoly status.
Article 12 is important for ensuring the protection of fundamental rights of the citizens
against the arbitrary actions of the State and its instrumentalities. It also imposes a duty on
the State to respect and uphold the fundamental rights of the people.

Article 13 of the Indian Constitution states that any law that is inconsistent with or in
derogation of the fundamental rights conferred by Part III of the Constitution shall be void
to the extent of such inconsistency or abridgement. It also defines the term ‘law’ to include
any ordinance, order, by-law, rule, regulation, notification, custom or usage having the force
of law in India. It further clarifies that the term ‘laws in force’ includes laws passed or made
by any competent authority before the commencement of the Constitution and not
previously repealed.
Some of the recent developments related to Article 13 are:

 In October 2023, the Supreme Court declined to recognise same-sex marriages and
civil unions, stating that there is no fundamental right to marry under the
Constitution.
 In August 2023, the Supreme Court held that the Board of Control for Cricket in India
(BCCI) is a ‘State’ under Article 12, as it performs a public function of regulating
cricket in India and receives substantial support from the government.
 In July 2023, the Supreme Court ruled that private educational institutions are not
‘State’ under Article 12, unless they are aided by the government or controlled by
statutory regulations.
 In April 2023, the Supreme Court upheld the constitutional validity of the Citizenship
(Amendment) Act, 2019, which grants citizenship to non-Muslim refugees from
Pakistan, Afghanistan and Bangladesh, on the ground that it does not violate the
right to equality under Article 14.
 In January 2023, the Supreme Court struck down the National Judicial Appointments
Commission (NJAC) Act, 2014, which sought to replace the collegium system of
appointing judges to the higher judiciary, as it violated the independence of the
judiciary and the basic structure of the Constitution.

Article 13 is important for ensuring the protection of fundamental rights of the citizens
against the arbitrary actions of the State and its instrumentalities. It also imposes a duty on
the State to respect and uphold the fundamental rights of the people.

Article 13 of the Indian Constitution states that any law that is inconsistent with or in
derogation of the fundamental rights conferred by Part III of the Constitution shall be void
to the extent of such inconsistency or abridgement. It also defines the term ‘law’ to include
any ordinance, order, by-law, rule, regulation, notification, custom or usage having the force
of law in India. It further clarifies that the term ‘laws in force’ includes laws passed or made
by any competent authority before the commencement of the Constitution and not
previously repealed.
Article 13 has been interpreted by the Supreme Court of India in various landmark
judgments, which have shaped the constitutional law of the country. Some of the important
cases are:

 Keshavananda Bharati v. State of Kerala (1973): The Supreme Court held that the
Parliament has the power to amend any part of the Constitution, including the
fundamental rights, but it cannot alter the basic structure or the essential features of
the Constitution1.
 Minerva Mills v. Union of India (1980): The Supreme Court struck down the 42nd
Amendment Act, which gave primacy to the Directive Principles of State Policy over
the Fundamental Rights and excluded judicial review of constitutional amendments,
as it violated the basic structure of the Constitution.
  Indira Gandhi v. Raj Narain (1975): The Supreme Court invalidated the 39th
Amendment Act, which placed the election disputes of the Prime Minister and the
Speaker beyond judicial scrutiny, as it violated the basic structure of the
Constitution.
 I.R. Coelho v. State of Tamil Nadu (2007): The Supreme Court held that any law
inserted in the Ninth Schedule of the Constitution, which grants immunity from
judicial review, is subject to the basic structure doctrine and can be struck down if it
violates the fundamental rights.
 Shayara Bano v. Union of India (2017): The Supreme Court declared the practice of
triple talaq, which allowed a Muslim man to divorce his wife by uttering the word
‘talaq’ thrice, as unconstitutional and violative of Article 14 (right to equality) and
Article 21 (right to life and dignity).

The most recent comment by the Supreme Court on Article 13 was made in the case of K.S.
Puttaswamy v. Union of India (2018), which upheld the constitutional validity of the
Aadhaar Act, 2016, with some modifications. The Supreme Court observed that Article 13 is
the “soul of the Constitution” and the “conscience of the Constitution” and that any law that
abridges or takes away the fundamental rights is void. The Supreme Court also reiterated
that the basic structure doctrine is an integral part of Article 13 and that the Parliament
cannot amend the Constitution in a manner that destroys its identity.

Is Indian judiciary part of the state?

What has been the Indian judiciary stand?

Article 13 – Topic 3
Is doctrine of eclipse or severability better ?

Doctrine of eclipse
Art. 13 does not apply to post constitutional law – art. 13(2) – void ab into
Art. 13 applies to the pre constitutional law.
Severability works on post constitutional law.
Right to waive off
There has been question whether the FR can be waived off?
The three doctrine that came out of art. 13 – Severability, eclipse and right to waive
off.
Keshava Madhavan vs State of Bombay: does not have a retrospective application.
Behram Khurshid Pesikaka v. State of Bombay – the entire act cannot be
invalidated. Only the portion of the inconsistency is void.
Bhikhaji v. State of Madhya Pradesh – the particular section was declared void.
The operation of the entire act will not stop. It was overshadowed by the fundamental
rights – Eclipse. The eclipse end, without renacting by removing the inconsistency
between FR and law.
Deep Chand v. State of Uttar Pradesh – The article 13 does not apply to the post
constitutional law, and the entire act will be void as it is never existed. This is
because they should not have enacted law that is inconsistent with the FR as the
constitution as already come into place.
State of Gujarat v Ambika Mills – can a corporation claim protection of fundamental
rights?
Doctrine of severability
Article 246, 251 connections to art.13
Article 368 to art. 13
Anti-defection – 52 amendments
Tenth Schedule para 7
Judicial review, basic structure doctrine
R.M.D.C. v. Union of India
Nakara v Union of India

Quhoto moto (case name)

Article 14 of Indian Constitution

Article 14 of the Indian Constitution is a fundamental right that guarantees equality

before the law and equal protection of laws to all individuals within the territory of
India. It forms the bedrock of the Indian legal system and ensures that no person is
discriminated against on the grounds of race, religion, caste, sex, or place of birth.
Article 14 uses two expressions: “equality before the law” and “equal protection of
the law”. The former means that no one is above the law and everyone is subject to
the same judicial system. The latter means that the law should treat everyone
equally and fairly, and not favour or prejudice anyone.

Article 14 does not imply absolute or mechanical equality, but allows for reasonable
classification of persons, objects, or transactions for the purpose of achieving a
specific goal. However, such classification must satisfy two conditions: it must be
based on an intelligible differentia, and it must have a rational relation to the object
sought to be achieved by the law.
Article 14 also has some exceptions, such as the doctrine of “reasonable
classification”, the principle of “special provision for women and children”, the
concept of “protective discrimination”, and the power of the President and the
Governor to grant pardons

RMPC v Union of India (1957) was a case that challenged the validity of the Railway
Mail Pay Commission, which was set up by the government to revise the pay scales
of railway employees. The Supreme Court held that the commission was not a
statutory body, but a mere advisory body, and its recommendations were not binding
on the government. The court also held that the government had the power to accept
or reject the recommendations, or modify them as it deemed fit. The court rejected
the argument that the commission violated the principle of equal pay for equal work,
as it was based on the classification of railway employees into different categories
according to their duties and responsibilities.
Nakara vs Women of India (1982) was a case that challenged the validity of two
memoranda issued by the government, which liberalised the formula for computation
of pension for civil servants and defence personnel, but made it applicable only to
those who retired after a certain date. The Supreme Court held that the memoranda
violated Article 14 of the Constitution, as they created an arbitrary and irrational
classification of pensioners based on their date of retirement, which had no nexus to
the object of liberalisation. The court also held that pension was not a bounty or a
grace, but a right that accrued to the employees for their past service. The court
declared the memoranda as unconstitutional and directed the government to extend
the benefit of liberalised pension to all pensioners, irrespective of their date of
retirement.

Difference between equality before law and equality protection of law

Equality before law Equal protection of law

1. Concept borrowed from American

1. Concept is of British origin
Constitution

2. It states that no person

2. It states that the like should be treated alike
(whether rich, poor, high or low)
without any discrimination.
is above law

3. Equality of treatment under equal

3. Absence of any special circumstances (both in privileges conferred and
privileges in favor of any liabilities imposed by the laws. Thus, it implies that
person. govt can take affirmative action (reservation) in
favor of weaker sections of society.

4. Equal subjection of all

persons to the ordinary law of 4. Similar application of the same laws to all
the land administered by persons who are similarly situated
ordinary law courts

5. It is a negative concept as 5. It is a positive concept as it puts a positive

it restricts state from engaging obligation on the state to prevent the violation of
in any arbitrary discrimination
between individuals. rights.

Case Laws:
1. Article 14 can be said to confer two types of individual rights on the citizens. First
is Positive right of equal protection of law as derived from American Constitution and
negative right of equality before law as derived from British Constitution as was
explained by the Hon’ble Supreme Court in Shayara Bano v. Union of India (2017) 9
SCC 1

2. Article 14 when read with other Articles as stated by the Supreme court in Maneka
Gandhi v. Union of India (1978) 1 SCC 248, where it was said that “various
fundamental rights must be read together and must overlap and fertilize each other”,
following this Article 14 along with Article 15 of the Indian Constitution provides
fundamental Right to Protection against “discrimination on grounds of religion, race,
caste, sex or place of birth” to Indian Citizen, when read with Article 16 it provides
fundamental “Right to Equality of opportunity in matters of public employment”, when
read with Article 17 of the Indian Constitution it provides for right against
‘Untouchability’, when read with Article 18 it provides fundamental right of “Abolition
of titles” by the state unless academic or military.

3. In the case of State of West Bengal Vs. Anwar Ali Sarkar,(1952) SCR 284 · the
court held that the term ‘equal protection of law’ is a natural consequence of the term
‘equality before law’ and thus it is very difficult to imagine a situation in which there
has been a violation of equal protection of law is not a violation of equality before
law. So, while they have different meanings, both the terms are interrelated.

4. In the case of Bachan Singh Vs. State of Punjab,AIR 1980 SC 898 explaining the
new dimensions of Article 14, Justice PN Bhagwati had observed that Rule of law
permeated the entire fabric of the Indian Constitution and it excludes arbitrariness.
According to him whenever there is arbitrariness, there is a denial of Rule of Law.
So, every action of the State should be free from arbitrariness otherwise the Court
will strike the act as unconstitutional.

5. Similarly in the case of D.S. Nakara Vs. Union of India,AIR 1983 SCR (2)
165 Rule 34 of the Central Services rules was held to be violating Article 14 and thus
unconstitutional. Under this rule, a classification was made between the pensioners
who retired before a specific date and those who retired after that date. Such
classification was held irrational by the Court and it was arbitrary. Thus it was an
infringement of Article 14 and as a result, was set aside.

- Awards, Padma busham award – these are not considered as title – not under
art. 18. Balaji Raghavan vs union of India
- 1.State shall not deny equality before law
- 2. Equal protection of law – dicey’s rule of law
- Equal treatment to equals, so not violative of law outside classes if all the
people in classes are given one treatment. The difference or criteria should
 have some nexus to the object. A clear nexus between the nexus and object.
An unequal treatment to unequal.
- Positive right and negative right – prohibit unequal treatment.
- LPG cylinder, ration card – state policy towards positive right
- Equality of status for all people
- Apply to non-citizens
- Dicey and art. 14
- Legislative classification – art. 14 will entail equal treatment to equals and
unequal treatment to unequal. The classification should be a legislative
classification. The tests have to be fulfilled.
1. classification should be just and reasonable
2. Need and purpose of the law
3. Object of the classification should be lawful
4. Classification should be intelligible and not arbitrable.
5. When the classification is done in an inclusionary manner, there
- Sharanjith lal Choudhary vs union of india – reasonable classification, nexus
test in art. 14 was applied here.
- P Rajendran v State of Madras: A reservation related case. The state medical
college started reserving seats according to population. This was challenged
on art. 14. There is no valid nexus in this case was held.
- Maganlal Chhagganlal vs Municipal corporation of Bombay: there were 2
procedures available for eviction. The problem was the process in both were
dissimilar and no methodology which were to be used. The court said some
guidance should be provided by the statue. Since the guidance not there in
statute, no reasonable classification between the two, it was struck down.
- Menaka Gandhi vs Union of India: The passport was taking and was not given
reason. The passport was to be surrendered. The reason was not given and
debarred from travelling. They could do this without reason. ‘Procedure
established by law’ was interpreted. But it was not adequate for people to
follow the law. So if the law is itself is unfair. It will hence be violative as it is
not ‘due process’ (an US term)

New cases on art. 14 – 18 and (post 2020)

Article 14 of the Indian Constitution guarantees the right to equality before the law and equal
protection of the laws to all persons within the territory of India. It is one of the fundamental
rights enshrined in Part III of the Constitution. There have been many cases decided by the
Supreme Court of India on the interpretation and application of Article 14 after 2020. One of
the most recent cases is:

 Ficus Pax Private Ltd. & Ors. v Union of India & Ors., 2020 SCC OnLine SC
561: This case challenged the orders issued by the Central and State Governments
directing the employers to pay full wages to their workers during the lockdown
imposed due to Covid-19 pandemic. The Supreme Court held that the orders were not
valid under Section 10(2)(l) of the Disaster Management Act, 2005, which empowers
the National Executive Committee to issue directions to any authority or person for
the purpose of disaster management. The Court observed that Section 10(2)(l) does
not confer any power to the Central Government to direct the private employers to
make full payment of wages to the employees during the period of lockdown. The
 Court also held that the orders violated Article 14, as they did not make any
distinction between the industries, establishments, factories and shops which were
working during the lockdown and those which were not working. The Court further
held that the orders were arbitrary and unreasonable, as they did not take into account
the financial capacity of the employers to pay the wages. The Court directed the State
Governments to facilitate a settlement between the employers and the workers
regarding the payment of wages for the lockdown period.

Article 15 of the Indian Constitution prohibits discrimination on grounds of religion, race,

caste, sex or place of birth. It also empowers the State to make special provisions for the
advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.
There have been several cases in the Supreme Court that have dealt with the interpretation
and application of Article 15 in the recent years. Some of the notable ones are:
 Lt. Col. Nitisha v. Union of India1: In this case, the Supreme Court invalidated a
facially neutral criteria for the grant of Permanent Commissions to women in the
Army on the grounds that it was indirectly discriminatory and violated Article 15(1).
The Court held that the criteria of physical fitness and medical standards were based
on male standards and did not take into account the physiological differences between
men and women. The Court also observed that the Army had a deeply entrenched
gender bias and stereotypes against women officers.

Article 16 of the Indian Constitution guarantees equality of opportunity in matters of public

employment and prohibits discrimination on grounds of religion, race, caste, sex, descent,
place of birth, residence or any of them. It also allows the State to make provisions for
reservation of appointments or posts in favour of any backward class of citizens or for the
Scheduled Castes and the Scheduled Tribes.
There have been some important judgments by the Supreme Court that have dealt with the
interpretation and application of Article 16 in the recent years. Some of them are:
 Chebrolu Leela Prasad Rao v. State of Andhra Pradesh1: In this case, the Supreme
Court quashed a government order that provided 100% reservation for the Scheduled
Tribes in the posts of teachers in the schools located in the Scheduled Areas of
Andhra Pradesh. The Court held that the order was violative of Article 16(1) and
Article 16(4) as it amounted to excessive reservation and obliterated the right of other
communities. The Court also held that the power to declare any area as a Scheduled
Area is vested with the President under the Fifth Schedule of the Constitution and not
with the State government.

Article 17: (there is no much good case post 2020)

Indian Young Lawyers Association vs The State Of Kerala ((2019) 11 SCC 1) was a
landmark case in which the Supreme Court of India allowed women of all ages to enter the
Sabarimala temple, a Hindu shrine dedicated to Lord Ayyappa, an eternal celibate. The court
struck down the rule that prohibited women of menstruating age (10-50 years) from entering
the temple, as it violated the rights of women under Articles 14, 15, and 25 of the
Constitution1. The court also held that the custom of barring women from the temple was not
an essential religious practice and could not be protected by Article 26 of the Constitution,
which grants autonomy to religious denominations to manage their own affairs.
Article 17 of the Indian Constitution is a fundamental right that abolishes the practice of
untouchability in any form and makes it a punishable offence. Untouchability refers to the
social discrimination and exclusion of certain classes of persons on the basis of their birth in
certain castes. Article 17 aims to eradicate this historical injustice and ensure equality and
dignity for all citizens.
One of the arguments raised by the petitioners in the Sabarimala case was that the exclusion
of women from the temple amounted to untouchability and violated Article 17 of the
Constitution. They contended that the notion of impurity attached to menstruating women
was a form of gender-based untouchability and discrimination. However, the court did not
accept this argument and held that Article 17 was applicable only to caste-based
untouchability and not to other forms of social exclusion. The court also observed that the
ban on women was not based on their impurity but on the celibate nature of the deity.

Article 18 of the Indian Constitution is a fundamental right that abolishes titles, except
military and academic ones, and prohibits the State from conferring any titles on its citizens
or foreign nationals. The purpose of this article is to uphold the principle of equality and
prevent any discrimination or privilege based on titles1.
According to the web search results, there is no recent case law on Article 18 of the Indian
Constitution post 2020 year. The last case that dealt with this article was Chebrolu Leela
Prasad Rao v. State of Andhra Pradesh, which was decided by the Supreme Court on April
22, 2020. In this case, the court struck down the 100% reservation for Scheduled Tribe
candidates for the post of teachers in the scheduled areas of Andhra Pradesh, as it violated
Articles 14, 15 and 16 of the Constitution. The court also held that such reservation amounted
to granting a title to a particular community, which was contrary to Article 18 of the
Constitution.

Article 19

The article by Ratika Gaur examines the constitutional restriction of “public order” on the
right to freedom of speech and expression in India. It argues that the judicial interpretation of
“public order” has produced two contradictory precedents: one that equates public disorder
with sedition and undermines the security of the state, and another that separates sedition
from public disorder based on the temporal dimensions of proximity and proportionality. The
article further contends that the underlying question in both cases is how to determine the
limits of rationality of an average Indian citizen in the public sphere. The article criticizes the
moral paternalistic approach that views individuals as corruptible and irrational, and
advocates for a liberal autonomous approach that respects the individual’s intellectual
capabilities and autonomy. The article also suggests that the constitutional values and
principles should guide the regulation of free speech, rather than the prevailing social norms
of morality and decency.
The article is a legal discourse analysis that relies on various sources, such as the Indian
Constitution, landmark judicial rulings, and philosophical theories of Kant, Dworkin, and
Bhatia. The article also refers to the comparative examples of the US and the UK to highlight
the differences in the legal frameworks and practices of free speech and sedition. The article
aims to contribute to the academic debate on the relationship between free speech and public
order, and to challenge the existing assumptions and biases that shape the judicial decisions
on this issue.
The article by Rajeev Dhavan explores the legal and political implications of the right to
strike in India, in the context of globalization and democracy. It argues that the right to strike
is a fundamental aspect of free speech and expression, as well as a form of collective
bargaining and resistance against the oppressive forces of the market and the state. The article
traces the historical development of the right to strike in India, from the colonial era to the
present day, and analyses the various judicial and legislative interventions that have shaped
its scope and limitations. The article also compares the Indian situation with the international
standards and practices of the right to strike, and highlights the gaps and challenges that need
to be addressed.
The article is a critical and comprehensive examination of the right to strike in India, using
various sources, such as the Indian Constitution, the Industrial Disputes Act, the Trade Union
Act, the Essential Services Maintenance Act, the International Labour Organization
conventions, and the case laws of the Supreme Court and the High Courts. The article also
draws on the theoretical perspectives of Kant, Marx, Gandhi, and Ambedkar, to elucidate the
philosophical and ethical dimensions of the right to strike. The article aims to contribute to
the academic and public debate on the role and relevance of the right to strike in India, and to
propose some reforms and recommendations to protect and promote this right in the face of
the changing economic and political realities.

The article by Romit Srivastava discusses the concept of reasonable restrictions on the
fundamental rights of freedom of speech and expression under Article 19 of the Indian
Constitution. It examines the various judicial interpretations of the term “public order” as a
ground for imposing restrictions on free speech, and the test of reasonableness that the courts
have applied in different cases. The article also compares the Indian approach with the US
and the UK models of free speech and sedition, and suggests some reforms to make the
Indian law more consistent and liberal. The article is a legal research paper that uses the
sources of the Constitution, the case laws, and the academic literature on the topic.

Article 19 of the Indian Constitution guarantees six fundamental freedoms to every citizen of
India, namely:

 Freedom of speech and expression

 Freedom to assemble peacefully and without arms
 Freedom to form associations, unions or co-operative societies
 Freedom to move freely throughout the territory of India
 Freedom to reside and settle in any part of the territory of India
 Freedom to practice any profession, occupation, trade or business

However, these freedoms are not absolute and are subject to reasonable restrictions imposed
by the state in the interest of sovereignty, integrity, security, public order, decency, morality,
or friendly relations with foreign states. The term “reasonable” has been interpreted by the
courts in various cases, depending on the facts and circumstances of each case. Some of the
landmark cases that have dealt with the scope and limitations of Article 19 are:

 Romesh Thappar v. State of Madras (1950): This case involved the ban on a
journal called Cross Roads by the Madras government on the ground of public order.
The Supreme Court held that the ban was unconstitutional and violated the freedom of
 speech and expression under Article 19(1)(a). The court also held that the term
“public order” was too vague and broad, and that only a law relating to the security of
the state or the maintenance of public order could impose restrictions on free speech.
 Sakal Papers v. Union of India (1962): This case involved the validity of the
Newspaper (Price and Page) Act, 1956, which regulated the number of pages and the
price of newspapers. The Supreme Court struck down the act as unconstitutional and
violative of the freedom of speech and expression under Article 19(1)(a). The court
also held that the freedom of speech and expression included the freedom of the press,
and that any law that directly or indirectly affected the circulation of newspapers was
an unreasonable restriction on free speech.
 Kameshwar Prasad v. State of Bihar (1962): This case involved the validity of a
rule that prohibited government servants from participating in any demonstration or
strike. The Supreme Court held that the rule was unconstitutional and violative of the
freedom of assembly under Article 19(1)(b) and the freedom of association under
Article 19(1)©. The court also held that the right to strike was a mode of expression
of protest and dissent, and that any restriction on it had to be reasonable and in the
interest of public order.
 Maneka Gandhi v. Union of India (1978): This case involved the validity of the
impounding of the passport of Maneka Gandhi by the government on the ground of
public interest. The Supreme Court held that the impounding was unconstitutional and
violative of the freedom of movement under Article 19(1)(d) and the freedom of
speech and expression under Article 19(1)(a). The court also held that the term
“public interest” was too vague and arbitrary, and that any restriction on the freedom
of movement had to be based on a valid law and the principles of natural justice.
 Olga Tellis v. Bombay Municipal Corporation (1985): This case involved the
validity of the eviction of pavement dwellers by the Bombay Municipal Corporation
on the ground of public nuisance. The Supreme Court held that the eviction was
unconstitutional and violative of the right to life under Article 21 and the freedom of
residence under Article 19(1)(e). The court also held that the right to life included the
right to livelihood, and that any restriction on the freedom of residence had to be
reasonable and in the interest of the general public.

Defamation and freedom of speech are two important aspects of the Indian Constitution that
often come into conflict with each other. Defamation is the act of harming the reputation of
another person by making or publishing false and malicious statements, while freedom of
speech and expression is a fundamental right guaranteed by Article 19(1)(a) of the
Constitution, subject to reasonable restrictions.
There are many case laws that have dealt with the issue of defamation and freedom of speech
in India, but here are some of the most notable ones:

 Subramanian Swamy v. Union of India (2016)12: In this case, the constitutional

validity of the offence of defamation under Sections 499 and 500 of the Indian Penal
Code, 1860 was challenged against the right to freedom of speech and expression, but
the Supreme Court upheld the validity of these provisions. The court held that the
right to reputation is an integral part of the right to life under Article 21 and that
criminal defamation is a reasonable restriction on the freedom of speech and
expression in the interest of public order, decency, morality, and the administration of
justice.
  Shreya Singhal v. Union of India (2015): In this case, the constitutional validity of
Section 66A of the Information Technology Act, 2000, which criminalized the
sending of offensive messages through communication services, was challenged. The
Supreme Court struck down the provision as unconstitutional, holding that it was
vague, overbroad, and violated the right to freedom of speech and expression. The
court also clarified the scope of Section 79 of the IT Act, which provided immunity to
intermediaries from liability for third-party content, and laid down guidelines for the
implementation of Section 69A of the IT Act, which empowered the government to
block access to any information online.
 R. Rajagopal v. State of Tamil Nadu (1994): In this case, the Supreme Court
recognized the right to privacy as a part of the right to life under Article 21 and laid
down the principles for the protection of privacy of individuals against the invasion
by the press or the state. The court held that no one can publish anything concerning
the private life of another person without his consent, unless it is based on public
records, or it relates to a public official or a matter of public interest, or it is justified
by the defence of truth or public good.
 S. Khushboo v. Kanniammal (2010): In this case, the Supreme Court quashed the
criminal proceedings against a film actress who had expressed her views on pre-
marital sex and live-in relationships in a magazine interview. The court held that the
right to freedom of speech and expression includes the right to express one’s views on
any issue, however unpopular or controversial they may be, as long as they do not
incite violence or hatred or offend public decency or morality. The court also
observed that the perception of the majority cannot be the basis for curbing the
freedom of expression of the minority or the dissenters.

The case Ram Jethmalani V. Subramanian Swamy 2006 was a defamation suit filed by Ram
Jethmalani, a senior lawyer and politician, against Subramanian Swamy, another politician
and activist, in the Delhi High Court in 1995. The suit arose from the allegations made by
Swamy against Jethmalani in the context of the inquiry into the assassination of former Prime
Minister Rajiv Gandhi by the LTTE.
The main facts of the case are as follows:

 Swamy claimed that Jethmalani had received money from the LTTE, a banned
terrorist organization, to represent the then Chief Minister of Tamil Nadu, J.
Jayalalitha, who was accused of having prior knowledge of the assassination plot.
 Swamy also made personal remarks about Jethmalani’s marital status and family,
which he later apologized for.
 Jethmalani denied the allegations and filed a suit for defamation, claiming that
Swamy had damaged his reputation and goodwill as a lawyer and a public figure.
 Jethmalani sought exemplary damages of Rs. 10 crores from Swamy.

The main issues of the case were:

 Whether Swamy’s statements were defamatory and false, and whether they lowered
Jethmalani’s esteem in the eyes of the public.
  Whether Swamy had any justification or privilege to make such statements, and
whether he acted in good faith or malice.
 Whether Jethmalani was entitled to any damages, and if so, how much.

The main arguments of the parties were:

 Jethmalani argued that Swamy’s statements were baseless, malicious, and intended to
harm his reputation and dignity. He contended that Swamy had no evidence or source
to support his allegations, and that he made them out of personal vendetta and
political rivalry. He also argued that Swamy’s statements were irrelevant and
immaterial to the inquiry into the assassination, and that they violated the principles of
natural justice and fair trial. He claimed that he suffered mental agony, humiliation,
and loss of professional and social standing due to Swamy’s statements, and that he
deserved exemplary damages to deter such conduct in the future.
 Swamy argued that his statements were not defamatory, but were based on his
information and belief, and were made in the public interest and for the public good.
He contended that he had a duty and a right to expose the truth and to bring to light
the involvement of Jayalalitha and the LTTE in the assassination. He also argued that
his statements were relevant and material to the inquiry, and that he had the privilege
of fair comment and qualified privilege to make them. He claimed that he did not act
with any malice or ill-will, and that he apologized for his personal remarks about
Jethmalani’s family. He denied that Jethmalani suffered any damage or injury, and
that he was not liable for any compensation.

The main findings of the court were:

 The court held that Swamy’s statements were defamatory and false, and that they
lowered Jethmalani’s reputation and esteem in the eyes of the public. The court found
that Swamy had no evidence or source to substantiate his allegations, and that he
made them without any verification or inquiry. The court also found that Swamy’s
statements were irrelevant and immaterial to the inquiry, and that they prejudiced the
rights and interests of Jethmalani and Jayalalitha. The court rejected Swamy’s plea of
public interest, fair comment, and qualified privilege, and held that he acted with
malice and recklessness.
 The court held that Jethmalani was entitled to damages, and awarded him Rs. 5 lakhs
as compensatory damages and Rs. 20 lakhs as exemplary damages. The court
considered the gravity and extent of the defamation, the status and standing of
Jethmalani, the conduct and motive of Swamy, and the need to deter such acts in the
future. The court also imposed costs of Rs. 50,000 on Swamy.

The main reasoning of the court was:

 The court applied the test of whether an ordinary, reasonable, and prudent person
would think less of Jethmalani after reading or hearing Swamy’s statements, and
concluded that the answer was in the affirmative. The court observed that Swamy’s
statements imputed criminality, dishonesty, and disloyalty to Jethmalani, and that they
affected his personal, professional, and political reputation. The court noted that
Swamy failed to prove the truth of his allegations, and that he did not disclose his
source or information. The court also noted that Swamy did not retract or withdraw
his allegations, and that he persisted in making them despite the lack of evidence and
 the denial by Jethmalani and Jayalalitha. The court held that Swamy’s statements
were per se defamatory, and that Jethmalani did not need to prove any actual damage
or injury.
 The court rejected Swamy’s defense of public interest, fair comment, and qualified
privilege, and held that he did not satisfy the conditions for invoking them. The court
held that Swamy’s statements were not in the public interest, as they did not
contribute to any public debate or discussion, but were merely personal attacks on
Jethmalani. The court held that Swamy’s statements were not fair comment, as they
were not based on any facts or evidence, but were mere assertions and conjectures.
The court held that Swamy’s statements were not protected by qualified privilege, as
they were not made in the discharge of any duty or in the exercise of any right, but
were made in the course of a judicial proceeding, where he was bound by the rules of
evidence and procedure. The court also held that Swamy acted with malice, as he
made his statements with the intention of harming Jethmalani’s reputation, and
without any regard for the truth or the consequences.
 The court awarded damages to Jethmalani, and held that he was entitled to both
compensatory and exemplary damages. The court held that compensatory damages
were meant to compensate Jethmalani for the loss of reputation and the mental
anguish caused by Swamy’s statements, and that exemplary damages were meant to
punish Swamy for his malicious and reckless conduct, and to deter him and others
from committing such acts in the future. The court assessed the quantum of damages
by taking into account the factors such as the nature and extent of the defamation, the
status and position of Jethmalani, the conduct and motive of Swamy, and the
prevailing standards of society. The court also imposed costs on Swamy, and held that
he should bear the expenses of the litigation.

 Subramanian Swamy v. Union of India (2016)1: In this case, the constitutional

validity of the offence of defamation under Sections 499 and 500 of the Indian Penal
Code,1860 was challenged against the right to freedom of speech and expression, but
the Supreme Court upheld the validity of these provisions. The Court held that the
right to reputation is also a fundamental right under Article 21 of the Constitution, and
that the offence of defamation is a reasonable restriction on the freedom of speech and
expression, as it serves the public interest of protecting the dignity and honour of
individuals. The Court also held that the offence of defamation is not vague, arbitrary,
or excessive, and that it provides adequate safeguards and remedies for the accused.
 Ram v. Union of India (2020)2: In this case, the High Court of Madras quashed a
batch of criminal defamation cases filed against journalists and media houses for
defaming the Chief Minister in her conduct in the discharge of her public functions.
The Court held that public officials are subjected to a higher threshold of criticism by
virtue of being in public office, and that in all of the cases, there was no defamation
against the State per se. The Court also held that the freedom of the press is an
integral part of the freedom of speech and expression, and that the regulation of prices
and pages of newspapers by the State is an unreasonable restriction on this right.
 A. Abbas v. Union of India (1970)3: In this case, the Supreme Court upheld the
validity of the Cinematograph Act, 1952 and the Cinematograph Censorship Rules,
1958, which empowered the Central Board of Film Censors to certify films for public
exhibition. The Court held that the freedom of speech and expression includes the
freedom of artistic expression, and that films are a powerful medium of
communication and education. However, the Court also held that films have a
potential to create social evils and disturb public order, and therefore, they need to be
 regulated by a pre-censorship mechanism. The Court observed that the censorship
rules are not arbitrary or excessive, and that they are based on the social and moral
values of the society.

Bangalore Mediation Centre v. B.S. Yeddyurappa (2019) - India:

 In this case, the Supreme Court of India held that statements made in the
course of judicial proceedings enjoy absolute immunity from defamation
actions. This underscores the importance of protecting statements made in
the context of legal proceedings to ensure open and frank discussions.

- Rahul Gandhi case on defamation

Rahul Gandhi, the leader of the Congress party, was convicted of defamation by a
court in Surat, Gujarat, in March 2023. He had made a remark in 2019 that implied
that Prime Minister Narendra Modi and all other people with the surname Modi were
criminals. He was sentenced to two years in prison, which would have disqualified
him from being an MP and contesting in the 2024 general election.
However, in August 2023, the Supreme Court stayed his conviction and allowed him
to return to Parliament. The Supreme Court noted that the trial court had given him
the maximum sentence without sufficient reasons, and that his conviction affected
not only his rights but also those of the voters who had elected him. The Supreme
Court also observed that his comments were not in good taste, but he should have
been more careful as a public figure. The case is still pending before a sessions
court in Gujarat, where Gandhi has filed an appeal.

The case involved the interpretation of Article 19 of the Indian Constitution, which
guarantees the right to freedom of speech and expression, subject to reasonable
restrictions. The lower court and the Gujarat High Court held that Gandhi’s speech
violated the defamation law under sections 499 and 500 of the Indian Penal Code,
which is a reasonable restriction on free speech. They also rejected his argument
that his speech was a political hyperbole or satire, protected under Article 19 (1) (a)
of the Constitution.
The Supreme Court, on the other hand, found that the lower court had not given any
reason for imposing the maximum punishment of two years on Gandhi, and that his
conviction also affected the voters who had elected him. The Supreme Court said
that Gandhi’s speech was “not in good taste” and he “ought to have been more
careful while making public speeches”, but it did not amount to defamation. The
Supreme Court also noted that the defamation law must be balanced against the
right to reputation, which is also a fundamental right under Article 21 of the
Constitution.

Article 21
Prevention
Environment
Right to privacy
Right to live with dignity and die
Article 21 of the Indian Constitution guarantees the right to life and personal liberty to every
person, subject to the procedure established by law. This right has been interpreted by the
Supreme Court of India in a broad and expansive manner, to include various aspects of
human dignity and well-being. Some of the important dimensions of Article 21 are:

 Prevention: The right to life includes the right to preventive measures against the
violation of life or liberty by the state or private actors. For example, the Supreme Court
has held that the state has a duty to protect the life of every person in its custody, and to
prevent custodial violence, torture, and death.

DK Basu vs State of West Bengal (1997): This case dealt with the issue of custodial
deaths and torture, and laid down guidelines for the arrest, detention, and interrogation of
persons by the police and other agencies. The court held that custodial torture and death
are violations of Article 21, and directed the state to take effective steps to prevent them.

Nelson Mandela vs Union of India (2018): This case challenged the constitutional
validity of the death penalty, and argued that it is a cruel, inhuman, and degrading
punishment that violates Article 21. The court upheld the death penalty as a valid form of
punishment, but also issued guidelines for its imposition and execution, such as the
mandatory hearing of the convict, the minimum period of 14 days between the rejection
of mercy petition and the execution, and the right to meet the family members before the
execution.

Shreya Singhal vs Union of India (2015): This case struck down Section 66A of the
Information Technology Act, 2000, which criminalized the sending of offensive messages
online. The court held that Section 66A was vague, overbroad, and arbitrary, and violated
the freedom of speech and expression under Article 19 (1) (a), as well as the right to life
and personal liberty under Article 21. The court also held that the state cannot curtail the
right to dissent and criticism, and that the internet is a medium for the expression of
diverse views and opinions.

 Environment: The right to life also encompasses the right to a clean and healthy
environment, as it is essential for the enjoyment of life. The Supreme Court has
recognized the right to pollution-free air and water, and has directed the state to take
steps to prevent environmental degradation and protect the ecological balance.

The Supreme Court has recognized that the right to life includes the right to pollution-free
air and water, and has directed the state to take steps to prevent environmental
degradation and protect the ecological balance. Some of the landmark cases on Article 21
and environment are:

Rural Litigation and Entitlement Kendra vs State of UP (1985): This case dealt with
the issue of limestone mining in the Mussoorie hills, which was causing ecological
damage and affecting the health and safety of the people living in the area. The court
ordered the closure of some of the mines and regulated the operation of others, based on
the principle of sustainable development and inter-generational equity. The court held that
the right to live in a healthy environment is a part of the right to life under Article 21.

MC Mehta vs Union of India (1987): This case concerned the leakage of oleum gas
from a chemical plant in Delhi, which resulted in the death of one person and injury to
 several others. The court held that the right to life under Article 21 includes the right to
enjoy a pollution-free environment, and imposed the principle of absolute liability on the
industries engaged in hazardous activities. The court also ordered the payment of
compensation to the victims and the shifting of the hazardous industries outside the city.

Vellore Citizens Welfare Forum vs Union of India (1996): This case involved the
pollution caused by the discharge of untreated effluents from the tanneries and other
industries in the state of Tamil Nadu, which contaminated the water sources and affected
the health of the people and the livestock. The court applied the precautionary principle
and the polluter pays principle, and directed the closure of the polluting industries and the
establishment of a monitoring committee to oversee the remedial measures. The court
also held that the right to a wholesome environment is a fundamental right under Article
21.

- Inter generation equity principle – utilisation of resources.

- Development should happen in a sustainable manner
- Resources are already exhausted and cannot be replenished.
- Biodiversity and ecological balance was lost.
- Anyone who destroys the environment need to restore it
- MC Mehta Case – fine imposed were less quantum than the lose caused. Enough
amount for restoration has to be paid, not just the fine.
- Taj Mahal Case – yellowing of the marble stone. Shutting down the factory or
relocating.
- Doctrine of strict liability in international jurisdiction was adopted in India
- Hazardous substance released by the industries knowing it is bad – incur the cost
whether they were doing something or not. Liability will be there. It is a consequence
based mechanism.
- Bhopal Gas case
- Higher compliance measure – air law, water law
- Article 21 is given importance
- Olga Tellis case
- Public trust doctrine case – MC Mehta vs Kamal Nath – Eminent domain

 Right to privacy: The right to life and personal liberty also implies the right to
privacy, which is the right to be left alone and to have one’s personal space, choices,
and preferences respected. The Supreme Court has declared that the right to privacy is
a fundamental right under Article 21, and has struck down laws that violated the
privacy of individuals, such as the Aadhaar scheme and Section 377 of the IPC .

The right to privacy is not explicitly mentioned in Article 21, but it has been interpreted by
the Supreme Court as an integral part of the right to life and personal liberty. The Supreme
Court has held that the right to privacy is a fundamental right that protects the dignity,
autonomy, and identity of individuals from unwarranted interference by the state or others.
Some of the landmark cases that have shaped the jurisprudence on the right to privacy under
Article 21 are:
 Kharak Singh v. State of U.P. (1963): This case challenged the validity of certain
police regulations that allowed for surveillance and domiciliary visits of persons with
criminal records. The Supreme Court held that the right to privacy is part of the right
to personal liberty, and struck down the provision allowing domiciliary visits as
 unconstitutional. However, the majority opinion did not recognize the right to privacy
as a fundamental right, and upheld the other forms of surveillance as permissible.
(discussed in class)
 Govind v. State of M.P. (1975): This case challenged the validity of a similar police
regulation that allowed for surveillance of persons with criminal or anti-social
tendencies. The Supreme Court upheld the regulation, but laid down certain
guidelines to protect the right to privacy of such persons. The court also observed that
the right to privacy is not absolute, and may be restricted by a valid law for a
legitimate public interest.
 Maneka Gandhi v. Union of India (1978): This case challenged the impounding of the
passport of the petitioner without giving any reason or opportunity of hearing. The
Supreme Court held that the right to travel abroad is part of the right to personal
liberty, and any law that restricts it must satisfy the test of fairness, reasonableness,
and non-arbitrariness. The court also held that the right to privacy is a facet of the
right to personal liberty, and any law that infringes it must also satisfy the same test.
 R. Rajagopal v. State of T.N. (1994): This case dealt with the right to privacy of
public figures and the freedom of press. The Supreme Court held that the right to
privacy of a person, whether public or private, is a fundamental right, and any
publication that invades it must be authorized by the person or justified by a public
interest. The court also held that the right to privacy does not extend to matters of
public record or public interest.
 K.S. Puttaswamy v. Union of India (2017): This case challenged the constitutional
validity of the Aadhaar scheme, which involves the collection and use of biometric
and demographic data of citizens for various purposes. The Supreme Court held that
the right to privacy is a fundamental right that inheres in the basic structure of the
Constitution, and cannot be abrogated by any law. The court also held that the right to
privacy is not absolute, and may be subject to reasonable restrictions by a law that
serves a legitimate state aim and is proportionate to the objective. The court also laid
down certain principles and tests to determine the validity of any law that infringes
the right to privacy. (discussed in class, but kharak Singh case was the first case that
recognised the right to privacy)
The case of pedisis where a software was used to spy some people that even the
government was using on some people – Manohar Lal Sharma

 Right to live with dignity and die: The right to life also means the right to live with
dignity and respect, and to have one’s basic needs fulfilled. The Supreme Court has
held that the right to life includes the right to food, shelter, clothing, education, health,
and livelihood. The right to life also implies the right to die with dignity, and to have
one’s wishes regarding end-of-life care respected. The Supreme Court has legalized
passive euthanasia and living wills, subject to certain safeguards and conditions.

Article 21 of the Indian Constitution guarantees the right to life and personal liberty to every
person in India. It states that “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”
The right to live with dignity is an integral part of the right to life, as interpreted by the
Supreme Court in several cases. It means that every person has the right to live a dignified
and meaningful life, free from exploitation, abuse, and discrimination. It also includes the
right to basic necessities of life, such as food, water, shelter, health, education, etc.
The right to die, on the other hand, is a controversial and debated issue. The Supreme Court
has held that the right to life does not include the right to die, and hence, suicide and
euthanasia are illegal in India. However, in a landmark judgment in 2018, the Supreme Court
recognized the right to passive euthanasia and living will, under certain conditions and
safeguards. Passive euthanasia means withdrawing or withholding medical treatment from a
terminally ill patient who is in a persistent vegetative state or irreversible coma, with the
consent of the patient or his/her family or the court. Living will means a document in which a
person expresses his/her wishes regarding the medical treatment he/she wants or does not
want in case of a terminal illness.
Some of the important case laws related to the right to live with dignity and die are:

 Maneka Gandhi v. Union of India (1978): This case expanded the scope of the right to
life and personal liberty, and held that it includes the right to live with dignity and
human dignity is a constitutional value of supreme importance.
 Bandhua Mukti Morcha v. Union of India (1984): This case dealt with the plight of
bonded labourers, and held that the right to live with dignity includes the right to be
free from exploitation and bondage, and the right to a decent standard of living.
 Olga Tellis v. Bombay Municipal Corporation (1985): This case dealt with the
eviction of pavement dwellers, and held that the right to live with dignity includes the
right to livelihood, as no person can live without the means of living.
 Parmanand Katara v. Union of India (1989): This case dealt with the denial of
medical aid to a person who was injured in a road accident, and held that the right to
live with dignity includes the right to emergency medical care, as preserving life is of
paramount importance.
 Vishaka v. State of Rajasthan (1997): This case dealt with the sexual harassment of
women at workplace, and held that the right to live with dignity includes the right to
work in a safe and respectful environment, and laid down guidelines to prevent and
redress such harassment.
 Common Cause v. Union of India (2018): This case dealt with the issue of passive
euthanasia and living will, and held that the right to live with dignity also includes the
right to die with dignity, and recognized the autonomy and self-determination of a
person to choose the manner of his/her death, subject to certain conditions and
safeguards.

Article 21 – right to die to be in the article 21 or should right to die be in separate article ?
Euthanasia discussion – common guidelines – who gets to decide whether to live or die.
During covid time the dead bodies were piled up, and even they have a right to die with
dignity

- Sabrimala – the religious demonization ?

- Review petition of sabrimala
- Ram Janma Bhoomi case

Sabrimala case facts:

Entry Restrictions: The Sabarimala Temple historically restricted the entry of women
between the ages of 10 and 50, as they were considered to be of menstruating age.
PIL and Supreme Court Intervention: In 2006, the Indian Young Lawyers Association
filed a Public Interest Litigation (PIL) seeking the lifting of the ban on the entry of women
into the Sabarimala Temple. The case gained momentum over the years.

Sabarimala Judgment 2018: In September 2018, a five-judge bench of the Supreme Court
of India, led by then Chief Justice Dipak Misra, lifted the ban on the entry of women of all
ages into the Sabarimala Temple. The court held that the practice of excluding women was
discriminatory and violated their constitutional rights.

Dissenting Opinion: There were dissenting opinions among the judges. Justice Indu
Malhotra, in her dissent, held that the court should not interfere with religious practices
unless they are unconstitutional.

Review Petitions: Following the judgment, several review petitions were filed, challenging
the Supreme Court's decision. In November 2019, a larger bench was constituted to review
the Sabarimala judgment.

Sabarimala Review Judgment 2019: In November 2019, a five-judge bench of the Supreme
Court, led by then Chief Justice Ranjan Gogoi, referred the matter to a larger bench and kept
the earlier judgment in abeyance. The court did not review the merits of the case but instead
decided to re-examine the broader issues related to religious practices and constitutional
rights.

The Sabrimala Judgment of 2018 was a landmark decision by the Supreme Court of India
that allowed women of all ages to enter the Sabrimala temple, a Hindu shrine dedicated to
Lord Ayyappa, who is considered to be a celibate deity. The temple had a centuries-old
tradition of barring women between the ages of 10 and 50, who are considered to be in the
menstruating age group, from entering the temple premises. The court held that this practice
violated the fundamental rights of women to equality, dignity, freedom of religion, and non-
discrimination under Articles 14, 15, 25, and 26 of the Constitution of India. The court also
held that the temple cannot claim the status of a denominational religious institution under
Article 26 and that the devotees of Lord Ayyappa do not constitute a separate religious sect.
The judgment was delivered by a five-judge constitutional bench comprising Chief Justice
Dipak Misra, Justice R. F. Nariman, Justice A. M. Khanwilkar, Justice D. Y. Chandrachud,
and Justice Indu Malhotra. The bench gave four separate opinions, with Justice Malhotra
dissenting from the majority view. The opinions of the judges are briefly summarised below:

 Chief Justice Dipak Misra (on behalf of himself and Justice Khanwilkar): The Chief
Justice held that the exclusion of women from the temple is a form of untouchability,
which is abolished by Article 17 of the Constitution. He also held that the practice is
not an essential part of the Hindu religion and that it is based on a patriarchal and
discriminatory notion of purity. He further held that the temple is a public place of
worship and that the right to manage its affairs under Article 26 is subject to the
constitutional morality and the rule of law.
 Justice R. F. Nariman (concurring with the Chief Justice): Justice Nariman agreed
with the Chief Justice that the practice is not an essential religious practice and that it
violates the rights of women under Articles 14, 15, and 25. He also held that the
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and the
 Rules framed under it are constitutional and that Rule 3(b), which allows the
restriction of women from the temple, is ultra vires the Act and the Constitution.
 Justice D. Y. Chandrachud (concurring with the Chief Justice): Justice Chandrachud
held that the practice is a form of social exclusion that stigmatises and stereotypes
women as impure and inferior. He also held that the practice is not an essential
religious practice and that it violates the constitutional values of dignity, liberty, and
equality. He further held that the devotees of Lord Ayyappa do not constitute a
separate religious denomination and that the temple is a public place of worship that is
open to all.
 Justice Indu Malhotra (dissenting): Justice Malhotra held that the practice is a matter
of faith and belief that is protected by Article 25 of the Constitution. She held that the
court should not interfere in the religious affairs of a community unless there is a
violation of fundamental rights or public order. She also held that the devotees of
Lord Ayyappa constitute a religious denomination and that the temple has the right to
manage its own affairs under Article 26 of the Constitution.

The Sabrimala Judgment of 2018 was a historic and progressive verdict that upheld the rights
of women to worship and to enter any place of worship without any discrimination. However,
the judgment also faced a lot of opposition and protests from some sections of the society,
especially the temple authorities and the devotees of Lord Ayyappa, who claimed that the
judgment violated their religious sentiments and traditions. The judgment also sparked a
series of review petitions and curative petitions, which are still pending before the Supreme
Court. The implementation of the judgment has also been a challenge, as many women who
tried to enter the temple faced violence and resistance from the protesters. The Sabrimala
Judgment of 2018 is thus a landmark case that reflects the complex and dynamic relationship
between law, religion, and society in India.

Ram Mandir Janma Bhoomi case - the role of ASIE ?

the Ram Janmabhoomi-Babri Masjid case pertains to a long-standing dispute over a religious
site in Ayodhya, Uttar Pradesh, India. The dispute involves a claim by Hindus that the site is
the birthplace of Lord Ram and a demand for the construction of a temple at the site. On the
other hand, Muslims claim the site as the location of the historic Babri Masjid.
Here are key facts and details about the Ram Janmabhoomi case, including the significant
judgment:
Background:
The Babri Masjid was built in the 16th century by Mir Baqi, a general of Mughal Emperor
Babur.
The site has been a focal point of religious and political tensions for decades, leading to
communal clashes.
Demolition of the Babri Masjid:
On December 6, 1992, the Babri Masjid was demolished by a large crowd of Hindu activists,
leading to widespread communal violence across India.
The demolition resulted in the filing of multiple legal cases.
Legal Proceedings:
Various legal cases were filed in the aftermath of the demolition, including criminal cases
against those involved in the destruction of the Babri Masjid.
Ayodhya Title Suit:
The core legal dispute revolved around the title of the land where the Babri Masjid once
stood.
The Allahabad High Court, in 2010, delivered a judgment on the Ayodhya title suit, dividing
the disputed land into three parts among Hindus, Muslims, and the Nirmohi Akhara.
Supreme Court Judgment 2019:
The Supreme Court of India heard a batch of appeals challenging the Allahabad High Court
judgment and other related issues.
On November 9, 2019, the Supreme Court delivered a unanimous verdict in favor of the
construction of a Ram temple at the disputed site.
The court directed the government to allocate an alternative five-acre plot to the Sunni Waqf
Board for the construction of a mosque.
The judgment was based on the principles of maintaining the secular fabric of the nation
while recognizing the religious sentiments of the Hindu community.
Key Points of the Supreme Court Judgment:
The court acknowledged the existence of a Hindu temple beneath the Babri Masjid structure.
The judgment was based on legal principles rather than historical or religious beliefs.
The court aimed to provide a balanced solution to the decades-old dispute.

Supreme Court Review Petition 2019

The review petition of Sabrimala 2019 was filed by various parties who challenged the
constitutional validity of the original judgment that allowed women of all ages to enter the
Sabrimala Temple. Some of the petitioners were:

 Kantaru Rajeevaru, the chief priest of the temple1

 National Ayyappa Devotees (Women’s) Association, a group of female devotees of
Lord Ayyappa2
 Nair Service Society, a socio-cultural organization of the Nair community in Kerala 2
 All Kerala Brahmin’s Association, a representative body of the Brahmin community
in Kerala2

The review petitioners argued that the original judgment violated the religious freedom of the
devotees of Lord Ayyappa, the deity of the temple, and that the exclusion of women was
based on a centuries-old custom that was essential to the faith of the devotees1. They also
contended that the original judgment had not considered the views of the majority of the
devotees, and that it had imposed the concept of constitutional morality on the religious
practice
The decision of the Sabrimala review petition 2019 was that the Supreme Court referred the
matter to a larger seven-judge bench for further consideration, without staying the original
judgment that allowed women of all ages to enter the temple 12. The impact of the decision
was that it created uncertainty and confusion among the public and the authorities, as well as
the devotees and the temple management, about the status and implementation of the original
judgment34. It also raised questions about the scope and extent of judicial review of religious
practices, the meaning and application of constitutional morality, and the interplay between
the rights of individuals and religious groups5

The Sabrimala Review Petition 2019 was a case in which the Supreme Court of India decided
to refer the Sabrimala issue to a larger seven-judge bench, without staying its 2018 judgment
that allowed women of all ages to enter the Sabrimala temple. The Sabrimala temple is a
Hindu shrine dedicated to Lord Ayyappa, who is considered to be a celibate deity. The
temple had a tradition of barring women between the ages of 10 and 50, who are considered
to be in the menstruating age group, from entering the temple premises.
The review petition was filed by various parties who challenged the 2018 judgment on the
grounds that it violated the religious rights and sentiments of the devotees of Lord Ayyappa
and that it overlooked the essential religious practice test and the concept of constitutional
morality. The review petition was heard by a five-judge bench comprising Chief Justice
Ranjan Gogoi, Justices A.M. Khanwilkar, Indu Malhotra, D.Y. Chandrachud, and R.F.
Nariman. The bench delivered the ruling by a 3:2 majority on November 14, 2019.
The majority opinion was given by Chief Justice Gogoi and Justices Khanwilkar and
Malhotra, who held that the Sabrimala issue involved questions of law that needed to be
examined by a larger bench. They referred the following questions to a seven-judge bench:

 Whether a person not belonging to a religious denomination or religious group can

question a practice of that religious denomination or religious group by filing a PIL?
 What is the scope and extent of judicial review with regard to a religious practice as
referred to in Article 25 of the Constitution of India?
 What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the
Constitution of India and whether it is meant to include Constitutional morality?
 What is the scope and ambit of right to freedom of religion under Article 25 of the
Constitution of India?
 What is the inter-play between the rights of persons under Article 25 of the
Constitution of India and rights of religious denomination under Article 26 of the
Constitution of India?
 Whether the rights of a religious denomination under Article 26 of the Constitution of
India are subject to other provisions of Part III of the Constitution of India apart from
public order, morality and health?
 What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2)
(b) of the Constitution of India?

The majority opinion also noted that the Sabrimala issue had implications for other similar
cases involving the entry of women into places of worship, such as the Muslim women’s
entry into mosques and dargahs, the Parsi women’s entry into the fire temple, and the female
genital mutilation among Dawoodi Bohras. They observed that these cases raised important
questions of constitutional interpretation and harmonisation of fundamental rights.
The majority opinion held that the Sabrimala issue involved questions of law that had
implications for other cases involving the interpretation of Articles 25 and 26 of the
Constitution, which deal with the right to freedom of religion. The majority identified seven
questions of law that needed to be examined by a larger bench, such as the scope and extent
of judicial review of religious practices, the meaning and application of constitutional
morality, the interplay between the rights of individuals and religious groups, and the
definition of religious denominations. The majority also noted that there were conflicting
judgments of the Supreme Court on some of these questions, and that a larger bench could
resolve the inconsistencies and lay down a clear and comprehensive law on the subject.

The minority opinion was given by Justices Chandrachud and Nariman, who dissented from
the majority view and held that the review petition should be dismissed. They upheld the
2018 judgment and reiterated that the exclusion of women from the Sabrimala temple was a
violation of their rights to equality, dignity, and freedom of religion. They also criticised the
majority opinion for referring the matter to a larger bench without giving any valid reasons
and for creating uncertainty and confusion in the law. They argued that the questions referred
by the majority were already settled by the 2018 judgment and that there was no need to
revisit them.
The Sabrimala Review Petition 2019 was thus a significant case that reopened the debate on
the balance between the rights of women and the rights of religious groups in India. The case
also highlighted the divergent views of the judges on the role of the court in adjudicating
matters of faith and morality. The case is still pending before the Supreme Court, as the
seven-judge bench has not been constituted yet. The outcome of the case may have a
profound impact on the future of the Sabrimala temple and other similar cases of gender
discrimination in places of worship.
-
Arguments in Favor of the 2018 Judgment (Allowing Women's Entry):
Equality and Non-Discrimination: Supporters of the 2018 judgment argued that it was a
landmark decision upholding the principles of equality and non-discrimination enshrined in
the Indian Constitution. They contended that religious practices should not violate
fundamental rights.
Individual Rights: Advocates for women's entry argued that individual women have the
right to practice their religion freely and should not be subjected to discrimination based on
their gender. They emphasized the importance of protecting the rights of women to access
religious places.
Constitutional Principles: Supporters of the judgment maintained that the court rightly
interpreted constitutional principles and prioritized individual rights over traditional practices
that were deemed discriminatory.
Arguments Against the 2018 Judgment (Opposing Women's Entry):
Religious Practices and Traditions: Opponents of the 2018 judgment argued that the court's
decision interfered with longstanding religious practices and traditions at the Sabarimala
Temple. They contended that the restriction on women's entry was based on essential
religious practices.
Preservation of Customs: Some argued that the court should respect and preserve cultural
and religious customs, especially when they are deeply ingrained in the beliefs of the
community. They expressed concerns about judicial overreach into matters of faith.
Specificity of the Sabarimala Temple: Critics of the judgment highlighted that the
restriction on women's entry was unique to the Sabarimala Temple due to the belief in the
celibate nature of the deity, Lord Ayyappa. They argued that each religious site has its own
set of customs, and a uniform approach might not be appropriate.
-

The Sabrimala Review Petition 2019 was a case in which the Supreme Court of India
reviewed its previous judgment that allowed women of all ages to enter the Sabrimala
Temple, a Hindu pilgrimage site in Kerala. The temple had a custom of excluding women
between the ages of 10 and 50, who are considered to be in their menstruating years. The
review petition was filed by various parties who challenged the constitutional validity of the
original judgment and claimed that it violated the religious freedom of the devotees of Lord
Ayyappa, the deity of the temple.
The review petition was heard by a five-judge bench comprising Chief Justice Ranjan Gogoi,
Justices A.M. Khanwilkar, Indu Malhotra, D.Y. Chandrachud, and R.F. Nariman. The bench
delivered a 3:2 majority verdict on November 14, 2019, referring the matter to a larger seven-
judge bench for further consideration. The majority opinion was authored by Chief Justice
Gogoi and Justices Khanwilkar and Malhotra, while the dissenting opinion was written by
Justices Chandrachud and Nariman. The majority did not stay the original judgment, which
means that women could still enter the temple until the larger bench decides the issue.
The majority opinion held that the Sabrimala issue involved questions of law that had
implications for other cases involving the interpretation of Articles 25 and 26 of the
Constitution, which deal with the right to freedom of religion. The majority identified seven
questions of law that needed to be examined by a larger bench, such as the scope and extent
of judicial review of religious practices, the meaning and application of constitutional
morality, the interplay between the rights of individuals and religious groups, and the
definition of religious denominations. The majority also noted that there were conflicting
judgments of the Supreme Court on some of these questions, and that a larger bench could
resolve the inconsistencies and lay down a clear and comprehensive law on the subject.
The dissenting opinion, on the other hand, held that there was no need to refer the matter to a
larger bench, as the original judgment had correctly applied the constitutional principles and
precedents to the Sabrimala case. The dissenting opinion argued that the review petitioners
had not raised any new grounds or arguments that warranted a reconsideration of the original
judgment, and that the majority had not pointed out any error or flaw in the original judgment
that justified a referral. The dissenting opinion also asserted that the original judgment had
upheld the constitutional values of equality, dignity, and non-discrimination, and that the
exclusion of women from the temple was based on a patriarchal and regressive notion of
purity that violated their fundamental rights. The dissenting opinion also cautioned that the
referral to a larger bench would create uncertainty and confusion among the public and the
authorities, and that it would delay the enforcement of the original judgment.