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Legality of beauty contents and dignity of woman under article 21

INDEX

COVER PAGE 1
CERTIFICATE 2
ACKNOWLEDGMENT 3
INDEX 4
BIBLIOGRAPHY 5
INTRODUCTION AND CONTARCT OF SALE 6
SALE AND AGREEMENT DISTINCTION 8
AGREEMENT TO SALE BECOMING A SALE 11
CONCLUSION 12





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INTRODUCTION

The Constitution of India was enacted on 26th of January 1950. The Constituent Assembly of India drafted
the nation's Constitution. Being drafted on 26th of November 1949, the Indian Constitution laid the
foundations for establishment of the Democratic Republic of India.

Drafting of the constitution: The Constitution of India was drafted over a period of 2 years, 11 months and
17 days. The members of Constituent Assembly of India met for the first time in the year 1946 on December
9. The next meeting of the Assembly took place on August 14th, 1947 for the dominion of India in which the
proposal of forming various committees was presented. Such committees include Committee on
Fundamental Rights, the Union Powers Committee and Union Constitution Committee. One of the unique
factors of this meeting was that the Assembly gathered as the Sovereign Constituent Assembly of India.

On 29th August 1947 a Drafting Committee, with Dr. Ambedkar as the Chairman, was formed on the basis
of the various reports submitted by the previous committees. It was in the year 1948 that the concerned
committee formed a Draft Constitution including a range of proposals. The Constituent Assembly of India
held two meetings in February 1948 and October 1949 to go through the clauses of the Draft. Finally, from
14th to 26th of November, 1949 the Constituent Assembly analyzed each and every provision of the Draft.
The then President of the Constituent Assembly of India signed the Draft on November 26th, 1949.

Today, there are 12 Schedules and 395 Articles in the Constitution of India. Amendments have been made to
the Constitution time and again as per the need of the hour. Till 2006, there have been 94 Amendments made
to the constitution.


Equality - which connotes equal opportunity for one and all
Justice - which means fair judgment in the fields of politics, society and economy
Fraternity - which works towards keeping the integrity and strength of the country intact along with
special stress on individual dignity
Liberty - which assures every citizen of India the freedom of speech and expression, religious
independence and choice of going by one's own belief
The Constitution of India provides Fundamental Rights under Chapter III. These rights are guaranteed by
the constitution. One of these rights is provided under article 21.
Article 21: Protection of life and personal liberty no person shall be deprived of his life or personal
liberty except according to procedure established by law

According to Bhagwati, J., Article 21 embodies a constitutional value of supreme importance in a
democratic society.

Iyer, J., has characterized Article 21 as the procedural magna carta protective of life and liberty.

This right has been held to be the heart of the Constitution, the most organic and progressive provision in our
living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his life or personal liberty by the State as
defined in Article 12. Violation of the right by a private individual is not within the preview of Article 21.



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Article 21 secures two rights: Right to life; and right to personal liberty.

The Article prohibits the deprivation of the above rights except according to procedure established by law.
Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution,
Article 40(4) of the Constitution of Eire 1937, and Article XXXI of he Constitution of Japan, 1946.

Article 21 Applies to natural persons. The right is available to every person, citizen or alien. Thus, even a
foreigner can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India,
as mentioned in Article 19 (1) (e).

1


1
Francis Coralis v. Union Territory of Delhi
, AIR 1981 SC 746.
2

P.S.R. Sadhanantham v. R.S Naik
, AIR 1992 SC 1701.
3

I.R. Coelho v. State of Tamil Nadu
, AIR 2007 SC 861.
4

Rajneesh Kapoor v. Union of India
, AIR 2007 MP 204.
5

Bombay Dyeing & Mfg. Co. v. By. EA Group
, AIR 2006 SC 1489.
6
Majumdar, P.K., Kataria, R.P., Commentary on the Constitution of India, 10
th
Ed., Vol. 1, Orient Publishing
Company, Allahabad, 2009, p. 928.



Article 21 assures the right to live with human dignity, free from exploitation. The state is under a
constitutional obligation to see that there is no violation of the fundamental right of any person,
particularly when he belongs to the weaker section of the community and is unable to wage a legal
battle against a strong and powerful opponent who is exploiting him. Both the Central Government
and the State Government are therefore bound to ensure observance of the various social welfare
and labor laws enacted by Parliament for the purpose of securing to the workmen a life of basic
human dignity in compliance with the directive principles of the state policy.




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Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure
established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical
or fanciful. The law of preventive detention has therefore now to pass the test not only for Article
22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court
would have to decide whether the procedure laid down by such law for depriving a person of his
personal liberty is reasonable, fair and just. In another case of Olga Tellis and others v. Bombay
Municipal Corporation and others, it was further observed: Just as a mala fide act has no
existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is
therefore essential that the procedure prescribed by law for depriving a person of his fundamental
right must conform the norms of justice and fair play. Procedure, which is just or unfair in the
circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law, which
prescribes that procedure and consequently, the action taken under it. As stated earlier, the
protection of Article 21 is wide enough.
The object of the fundamental right under Article 21 is to prevent encroachment upon personal
liberty and deprivation of life except according to procedure established by law. It clearly means
that this fundamental right has been provided against state only. If an act of private individual
amounts to encroachment upon the personal liberty or deprivation of life of other person. Such
violation would not fall under the parameters set for the Article 21. In such a case the remedy for
aggrieved person would be either under Article 226 of the constitution or under general law. But,
where an act of private individual supported by the state infringes the personal liberty or life of
another person, the act will certainly come under the ambit of Article 21. Article 21 of the
Constitution deals with prevention of encroachment upon personal liberty or deprivation of life of a
person.









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It has been held that beauty contests in their true form are not objectionable. But if there is incident
representation of the figure of a woman or if there is any matter of derogatory of women, then it would
offend the indecent representation of women acy, 1986 and also article 21, Chandra rajkumari v. police
commissioner, Hyderabad, AIR 1998 AP 302.

21. Protection of life and personal liberty no person shall be deprived of his life or personal liberty except
according to procedure established by law
1. Womans right to make re

Indecent Representation of women can be obscene, which means that a law curbing obscenity
can come of help.
The word, obscenity as the dictionaries tells us, denotes the quality of being obscene which
means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an
important interest of society to suppress obscenity
In RANJIT D. UDESHI Vs STATE OF MAHARASHTRA, the test of obscenity was established. The
appellant, a bookseller, sold a copy of the unexpurgated edition of Lady Chatterley's Lover". He
was convicted under s. 292, Indian Penal Code, it was ruled, in judging a work, stress should not
be laid upon a word here and a word there, or a passage here and a passage there. Though the
work as a whole must be considered, the obscene matter must be considered by itself and
separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave
and corrupt those whose minds are open to influences of this sort. In this connection the interests
of contemporary society and particularly the influence of the impugned book on it must not be
overlooked. Where, obscenity and art are mixed, art must so preponderate as to throw the
obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and
may be overlooked. It is necessary that a balance should be maintained between "freedom of
speech and expression" and "public decency or morality"; but when the latter is substantially
transgressed the former must give way. And in CHANDRAKANT KALYANDAS KAKODAR v.
STATE OF MAHARASHTRA AND ORS, it held that there was no fixed rules to determine
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obscenity.The concept of obscenity would differ from country to country depending on the
standards of morals of contemporary society.
The Indecent Representation of Women (Prohibition) Act, 1986: The Act punishes the
indecent representation of Women, which means the depiction in any manner of the figure of a
woman; her form or body or any part thereof in such way as to have the effect of being indecent, or
derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or
morals. It states that no person shall publish or cause to publish or cause to be published or
arrange to take part in the publication or exhibition of any advertisement, which contains indecent
representation of women in any form. 'In the Act, advertisement' includes any notice, circular,
label, wrapper or other document and also includes any visible representation made by means of
any light, sound, smoke or gas. The Amendment suggested by the National Commission for
Women suggests to amend the definition to advertisement' includes any notice, circular, label,
poster, wrapper or other document and also includes any visible representation made by means of
any laser light, sound, smoke, gas, fibre, optic electronic or other media It states that no person
shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any
book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure
which contains indecent representation of women in any. The Commission has also suggested the
addition of the word Derogatory along with indecent.

B-Women have inherent RIGHT TO DIGNITY: The expression 'life' assured in Article 21 of the
Constitution does not connote mere animal existence or continued drudgery through life. It has a
much wider meaning which includes right to livelihood, better standard of living, hygienic
conditions in the workplace and leisure." Quality of life covered by Article 21 is something more
than the dynamic meaning attached to life and liberty. Right to life includes right to human dignity
Right to live with human dignity enshrined in Article 21 derives life breath from the directive
principles of State policy .In Maneka Gandhi V Union of India, it was ruled that right to life is not
merely confined to physical existence but also includes within its ambit the right to live with human
dignity. In Francis Coralie V Union of Territory of Delhi it was held that means something more
than just physical survival and is not confined to protection of any faculty or limb through which life
is enjoyed or the soul communicates with the outside world, but includes the right to live with
human dignityWomen are human beings. So every right pertaining to human beings is not alien to
women. Women have right to live a dignified life. In Chandra Raja Kumari V, Police Commissioner,
Hyd, it had been held that right to live includes right to live with human dignity or decency and
therefore holding of beauty contests is repugnant to dignity or decency of women and offends Art
21 of the Constitution.
The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights
has recognized that human beings have dignity inseparable from them.
Thus, the right to dignity being an inseparable part of right to life guaranteed under the Indian
Constitution under Art.21 makes the enforcement of the laws possible by the initiation of a writ
petition in the Supreme Court or High Courts under Art.32 and Art.226 respectively. Article 32
guarantees the enforcement of fundamental rights conferred by Part III of the Constitution by
issuing appropriate directions, orders or writs.



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CONTARCT OF SALE

Formal contract by which a seller agrees to sell and a buyer agrees to buy, under
certain terms and conditions spelled out in writing in the document signed by
both parties. An invoice, for example, is a contract of sale. Also called agreement
of sale, contract for sale, sale agreement, or sale contract.
A contract of sale may be absolute or conditional. Section 4(1) of the Sale of
Goods Act defines a contract of sale of goods as A contract whereby the seller
transfers or agrees to transfer the property in goods to the buyer for a price. The
definition of contract of sale of goods reveals that either actual sale or agreements
to sell both are covered under the act. A contract of sale may be absolute or
conditional. Where under a contract of sale the property in the goods is
transferred from the seller to the buyer, the contract is called a sale, but where the
transfer of the property in the goods is to take place at a future time or subject to
some condition thereafter to be fulfilled, the contract is called an agreement to
sell. An agreement to sell becomes a sale when the time elapses or the conditions
are fulfilled subject to which the property in the goods is to be transferred. The
term contract of sale is a generic term it includes an agreement to sell as well as
a sale, formerly, known as a bargain and sale
A sale is sometimes described as an executed contract of sale. An agreement to
sell is sometimes described as executor contract of sale. The words transfer the
property indicate that there should be two persons via seller and purchaser. A
man cannot buy his own goods. Moreover, if merely title to the goods passes but
not as a result of any contract between the parties, expresses or implied, there is
no sale.
State of Madras V Gannon Dankerley and Company
2
.

2
AIR 1958 S.C 560
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There is no sale of goods when the meals are served either to the casual visitors
in a restaurant located in a hotel or to the residents of the hotels in which lodging
and meals are provided. State of H.P V Associated Hotels of India Ltd.
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Seller
Seller means a person who sells or agrees to sell his goods.This is in conformity with the
definition of a contract of sale which includes an agreement to sell as well as a sale.
Buyer:-
Buyer means a person who buys or agrees to buy goods belonging to another.An option to
buy ,however is not the same thing as agreement to buy. The agreement comes into
existence only when the option is exercised.Helby vs Matthews
4
.






SALE AND AGREEMENT TO SELL

The distinction between a sale and an agreement to sell is drawn in the provisions
of the Sale of Goods Act, 1930
Where under a contract of sale the property in the goods is transferred from the
seller to the buyer the contract is called a sale; but where the transfer of the

3
AIR 1972 S.C 1131
4
A.C 1895 471
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property in the goods is to take place at a future time or subject to some condition
thereafter to be fulfilled the contract is called an agreement to sell.
An agreement to sell becomes a sale when the time elapses or the conditions are
fulfilled subject to which the property in the goods is to be transferred. The Sale
of Goods Act also contains the following provisions:
"Contract of sale" shall include an agreement to sell as well as a sale.
"Sale" shall include a bargain and sale as well as a sale and delivery.
The distinction between an agreement to sell and a sale is fundamental. The
former is a contract pure and simple. At the time of the contract the property in
the goods does not pass, but the buyer acquires a right in persona to the transfer
of the property upon the happening of an event or the fulfilment of a condition. A
sale on the other hand is more than a. contract. Its effect is to transfer to the buyer
forthwith a right in rem - the property in the goods. Under an agreement to sell
the seller remains the owner until the agreement to sell becomes a sale, under a
sale the buyer becomes the owner forthwith. An agreement to sell and a sale are
sometimes referred to as an executor contract of sale and an executed contract of
sale respectively.
(1) A contract of sale of goods is a contract whereby the seller transfers or agrees
to transfer the property in goods to the buyer for a price. There may be a contract
of sale between one part-owner and another.

(2) A contract of sale may be absolute or conditional
(3) Where under a contract of sale the property in the goods in transferred from
the seller to the buyer, the contract is called a sale, but where the transfer of the
property in the goods is to take place at a future time or subject to some condition
thereafter to be fulfilled, the contract is called an agreement to sell.
(4) An agreement to sell becomes a sale when the time elapses or the conditions
are fulfilled subject to which the property in the goods is to be transferred.

A sale and an agreement to sell can be distinguished as:-
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An agreement to sell is an important document in the process of sale and
purchase of property. This agreement contains the terms and a condition agreed
upon between the parties, and binds them. An agreement to sell is the basic
document on which a conveyance deed is drafted. It is always advisable to have
an agreement to sell in writing. It precedes the execution of a sale deed. This
agreement is signed and executed by the seller and buyer on a non-judicial stamp
paper. It has legal value and if need be can be produced as evidence in a court.
The agreement specifies the procedures to be followed leading to the execution of
the conveyance or sale deed. It records the understanding reached between the
parties, and is binding on both. An agreement to sell protects the interests of both
parties and spells out in clear terms the conditions under which the seller is
intending to sell the property and those under which the buyer is intending to
purchase it. This facilitates smooth culmination of the transaction without
dispute, confusion and misunderstanding. Section 26 of the Indian Contract Act
unless otherwise agreed, the goods remain at the sellers risk until the property
therein is transferred to the buyer, but when the property therein is transferred to
the buyer, the goods are at the buyers risk whether delivery has been made or
not. Provided that, where deliver has been delayed through the fault of either
buyer or seller, the goods are at the risk of the party in fault as regards any loss
which might not have occurred but for such fault. An analysis of sections relating
to passing of property.

Consequences of Breach: In case of sale, if the buyer fails or refuses to pay the
price of the goods, the seller can sue for the price, even if he has the possession
of goods. In an agreement to sell, if the buyer fails to accept and pay the price,
the seller can sue him only for damages and not for the price, even if the goods in
possession of the buyer.
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Right of Resale: In a sale the property of goods is immediately transferred to the
buyer and so the seller (even if the goods are in his possession) cannot result the
goods. If the seller does so, the subsequent buyer cannot acquire the title to the
goods. The original buyer can recover the goods from the third person and can
also sue the seller for the breach of contract. In an agreement to sell, the seller
can sell the goods to anyone as he has the property of goods and the new buyer
gets the title of goods as he purchases the goods for consideration and without
any notice of prior agreement. In such a case the original buyer can only sue for
damages.
A sale affects a transfer of the general property in the goods to the buyer, in other
words, it creates a jus in rem
5
. Sales tax officer V Budh Prakash Jai Prakash
6
.An
agreement to sell there is no transfer of property but it gives to the either party a
remedy against the person and general estate of the other for any default in
fulfilling his part of the agreement, in other words, it creates a jus in persona
7
.
If there has been a sale and the buyer fails to pay for the goods the seller may sue
for the price. Where there is merely an agreement to sell, and the buyer fails to
accept and pay for the goods, the seller can only sue for damages which are
defined in section 56 of the goods act damages for non-acceptance. If there is
an agreement to sell and the seller commits a breach the buyer has only a
personal remedy against the seller namely a claim for the damages. The goods are
still the property of the seller and he can dispose of them as he likes. But if there
has been a sale, and the seller commits a breach the buyer not only has a personal
remedy against the seller, but also an remedy which a owner has in respect of the
goods as well, such as a suit for conversion or dentine. In many cases, too, he can

5
Against a thing.
6
A.S.C 1954 (459)
7
Directed towards a particular reason
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follow the goods in the hands of third persons. The reason is that on a sale the
property in the goods passes to the buyer and he becomes the proprietor or owner
of the goods.
















Conclusion

A "sale" is (colloquially) a completed transaction where the only remaining
duties of the buyer may be timely rejection after inspection, and the only
remaining duty of seller is to honor any express or implied warranty. This
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assumes the full price was paid during the sale and the goods were delivered,
otherwise, the sale is not technically complete.
An "agreement to sell" is a contract that envisions (or defines) a future sale,
thus all conditions precedent and other terms (delivery, payment, etc),
continue to be "executory", that is, are yet to be fully carried out. A breach
of this contract could result in a court order of specific performance, or for
damages caused by the loss of the opportunity to buy or sell.
DIFFERENCE BETWEEN SALE AND AGREEMENT TO SELL
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Transfer of property (ownership): In a 'sale' the property in goods passes to
the buyer immediately at the time of making the contract in 'an agreement to sell'
there is no transfer of property to the buyer at the time of the contract.
Risk of loss: The general rule is that unless otherwise agreed, the risk of loss
primarily passes with property (Sec. 26). Thus in case of sale, if the goods are
destroyed the loss falls on the buyer even though the goods may never have come
into his possession because the property in the goods has already passed to the
buyer. On the other hand, in case of an agreement to sell where the ownership in
the goods is yet to pass from the seller to the buyer, such loss has to be borne by
the seller even though the goods are in the possession of the buyer.











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