Law Notes (LL.

B Notes)
Notes and Video Lecture of LL.B ( 3 Year) Kurukshetra
University Kurukshetra

CONSTITUTION
Question 1 :- What is Preamble? Discuss in detail of Preamble
of Indian Constitution and its objects and significance. How
can you say that according to Preamble, India is a sovereign,
socialist, secular and democratic republic. How these are
applied by the courts. Refer to some decided cases? How the
various ideals and goals enshrined in the preamble have been
realised in the constitution? Refer some decided cases.
PREAMBLE OF THE CONSTITUTION:- The preamble of an Act
sets out the purpose and object for which a statute is enacted.
The Preamble of the constitution declares :We the people of India having solemnly resolved to constitute
of India into a sovereign, socialist, secular democratic
Republic and to secure to all its citizens. :- i) Liberty of
thoughts, expression, belief, faith and worship. Ii) Justice,
social, economics and political. Iii) Equality of Status and
opportunity and to promote among them all.. iv) Fraternity
assuring dignity of the individual and the unity an integrity of
the Nation.
I our constitution Assembly this twenty sixth day of November,
1949 do hereby adopt enact and give to ourselves this
constitution.
The Purpose of Preamble:- The Preamble to the constitution is
a key to open the mind of the makers for which they made
several provisions in the constitution. In constitution preamble
occupies an important place &
The constitution should be interpreted in the light of the ideals

mentioned in the preamble.Keswanand Bharti v.State of Kerla

1973.
In Berubari case SC held that preamble is not a part of the
constitution and therefore it was never regarded as the source
of limitations powers. But in Keswanand Bharti case the SC
held that Preamble is a part of the Constitution and all
importance is to be attached to it in interpreting the
constitution.
The Preamble to the constitution serves the following
purposes:i) It discloses the source of the constitution.
ii) It lays down the date of the commencement of the
constitution.
iii) It sets out the rights and freedoms which the people of India
wished to secure for themselves.
iv) It declares the nature of the government which it wishes to
establish in the country.
Preamble declares that people of India are the source of the
constitution of India. The govt., derives all its authority from
the people of India. Administrators are elected by the People of
India. The nature of the govornment, which the preamble
establishes is a sovereign, socialist, secular, democratic
republic. Sovereign because const., does not recognise the
legal supremacy of any other country. A democratic because
govornment of the people, by the people and for the people.
Secular because it treats all the religions equally. It does not
recognise any religion as a State Religion. Socialist because it
implies economic equality and equitable distribution of
income. In such state important means of production is
controlled by the State. And republic because the Head of
State is not a hereditary Monarch, political sovereignty resides
in the people and Head of State is President of India who is
elected by the people for a fixed term.

Objectives of the Constitution:- The objectives is to secure to

its people, justice. Liberty, and fraternity, the dignity of the
individual and the unity and integrity of the nation. // In
keswaanand Bharti case it has been held that the preamble is
the part of the constitution and therefore it can be amended by
the Parliament under its amending power under article 368
with the condition that it should not exercise it amending
power so as to destroy the basic features in the preamble. By
42nd amendment of the constitution of India, Parliament did
amend the Preamble inserting the words socialist secular
before Democratic Republic and integritybefore of the
nation. Spirit of these amendments only expressly stated what
was already present in the constitution impliedly, the
additions did not impair the basic features.In //Aruna Roy v.
Union of India 2003 secularism has been held to be knowledge
of and respect for all religions and fostering feeling of respect
for them. Although socialism has nowhere been defined in the
constitution.//In D.S.Nakara v. Union of India 1983 it has been
taken to mean raising the living standard of the weaker section
and labourers and to guarantee for them lifelong social
security while Excel Wear v. Union of India 1979, it was held
that the effect of adding the word Socialist is that the court
should give more effect to nationalisation and state ownership.
In brief our socialism is a unique combination of Maxism.

Question 2 :- Article 14 permits classification, but prohibits

class legislation. Discuss this statement.
OR
What do you understand by reasonable classification in the
context of Right of Equality? Can a single person be treated
as a class?

Ans:- Introduction:- Classification and class legislation : The

guarantee of equality before the law and equal protection of
the laws does not mean that all the laws must be universal in
application to all persons irrespective of differences in their
nature and circumstances. Equal treatment with persons in
unequal circumstances amounts to inequality and hence
article 14 permits classification of people difference between
those put in class is distinct from the others and bears a
reasonable relations to the object sought to be achieved by the
legislature.// But article 14 does not permit class legislation
which means undue discrimination by conferring some
advantages or privileges upon an arbitrarily selected group of
people though all of them are similarly circumstanced in
relation to privilege conferred on the selected class. In other
words class legislation amounts to unequal treatment with
equals and hence void under article 14.// Equality is for equals
i.e. to say those who are similarly circumstanced are entitled to
an equal treatment. The guarantee of equality does not imply
that the same rules should be made applicable to all persons
in spite of differences in their circumstances and conditions.
Refer case Ramesh Prasad Singh v. State of Bihar l978. // In
APBC Singh v. Jharkand state Vaishya Federation 2006, the
Jharkhand state had amalgamated Extremely backward class
and backward class into one group for the purpose of
reservation in professional and educational institutions. The
court has held that the decision of the state govt.,
amalgamating the extremely Backward classes and Backward
classes is violative of Article 14 because two different classes
have been treated similarly. Merely showing that the Council
of Ministers had applied their minds in order to arrive at the
decision is not tenable and such decision is arbitrary and
unreasonable and is subject to judicial review.// In a case of

chiranjeet lal v.Union of India 1951, It was held that single

individual may be considered as a class in special
circumstances. The SC ruled that a law may be constitutional
even if it applies to a single individual on account of some
special circumstances or reasons applicable to him, that
individual may be treated as a class itself. Ordinarily a
legislation pertaining to a single person would not be valid
unless it was possible for the court to discern the special
circumstances differentiating that particular person from the
rest. If a classification is discernible in the Act, a presumption
arises in favour of its constitutionality, but the person affected
may show that while there are others having the same
differentiating attribute as he, only he is covered by the Act
and not others and the Act will then be void.
What article 14 prohibits is class legislation. But it does
not forbid reasonable classification. The classification should
not be arbitrary but must rest upon some real and substantial
distinction having some relationship which is reasonable to
the things in respect of which the classification is sought to be
made. The classification can be based on the basis of
geography or other objects or occupation. Refer case: Shashi
Mohan v. State of W.Bengal-1958.
In Menka Gandhi case v Union of India- 1978 SC
emphasized on the content and reach of the great equalising
principle enunciated in Article 14. Warning against any
attempt to truncate its all embracing scope and meaning which
might violate it activist magnitude, SC observed that equality
is a dynamic concept with many aspects and dimensions and
it cannot be imprisoned within traditional and doctrinaire
limits. The court reiterated the majority view in E.P.Royappa
v.state of Tamil Nadu 1974 that Art. 14 strikes at arbitrariness
in State action and ensures fairness and equality of treatment.
The principle of reasonableness which legally as well as

philosophically is an essential element of equality or

non-arbitrariness pervades article 14 like a brooding
omnipresence. In Ajay Hasia v.Khalid Mujib 1981 SC struck
down as constitutionally invalid, the allocation of as high a
percentage as 33 1/3 of the total marks for the oral interview
for admission to the Engineering college and declared it as
infecting the admission procedure with the vice of
arbitrariness. The court firmly laid down ha what article 14
strikes at negation of equality so ruled , the court said that
not more than 15% of the total marks should be allocated for
the oral interview.//In the series of cases State laws creating
special Courts to deal with the problems of law and order have
been questioned. A law creating special courts can therefore
be sustained only if it makes reasonable classification either of
the offences or of the cases or of the persons, triable by the
special courts. Difficulties usually arise when the law
establishing these courts fails to do so itself and instead
leaves it to the govt., to decide this matter. In such situation
the courts have held that the law would not be valid if it does
not lay down the policy or principle to regulate and control
administrative discretion to decide which cases offences or
persons would be triable by these courts. In Bhagwanti v
Union of India-1989 it has been held that classification between
marriage during service and after retirement for the purpose of
giving family pension is arbitrary and violative of Article 14. In
state of UP v. Committee Management 2010 SC the
respondents were running unaided school which was
upgraded as High School and Intermediate college in
1991-1999. After 30.6.84 Junior schools wee granted
recognition covered by the Grants-in-aid scheme but the court
held that the action of the State creates class within class
which is arbitrary and violates Article 14 of the constitution. A
distinction between two schools of the same category was

created while one category of schools continued to get the

grants-in-aid benefit inspite of upgradation of other junior High
school were excluded from benefit.

Short Notes
A. DOCTRINE OF SEVERABILITY WAIVER.
B. DOCTRINE OF ECLIPSE.
C. CITIZENSHIP
D. WAIVER
E. Protection Against Self-Incrimination
F. PROTECTION FROM EX-POST FACTO LAW
G. PROTECTION FROM DOUBLE JEOPARDY
CITIZENSHIP
At the commencement of this constitution every person who
has his domicile in the territory of India and i) who was born
in the territory of India ii) either whose parents was born in the
territory of India iii) who has been ordinarily resident in the
territory of India for not less than five years immediately
preceding such commencement shall be a citizen of India.
According to the Federal principle, the constitution of
USA provides for dual citizenship i.e. the citizenship of the
USA and the citizenship of the state. Though the Indian
constitution has adopted the federal principle of the American
constitution but it had opted for a single citizenship, that is the
citizenship of India. There is no state citizenship.

The citizenship Amendment Act 2003 has paved for

conferring Indian Citizenship not only upon the persons of
Indian origin but citizens of certain other countries also. The
amendment has obviously reserved the idea of single
citizenship and introduced a limited sort of double citizenship.
DOCTRINE OF SEVERABILITY
A :- Clause (1) of Article 13 provides : All laws in
force in the territory of India immediately before the
commencement of this constitution in so far as they are
inconsistent with the provisions of this part, shall to the extent
of such inconsistency be void. Clause (2) of Article 13 says
that the state shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of
contravention be void. Clause 1 and 2 of article 13 thus declare
that laws inconsistent with or in contravention of the
fundamental rights shall be void to the extent of inconsistency
or contravention as the case may be. It means that where only
a part of law is inconsistent with or contravenes the
fundamental rights, it is only that part which shall be void
under article 13 and not the whole of the law. The courts apply
the doctrine of severability or separability to separate the valid
portion of the law from the invalid portion.
In a case State Of West Bengal v .Committee for protection
Democratic Rights, W.Bengal 2010 SC held that, Any law that
abrogates or abridges such right would be violative of the
basic structure. Doctrine.
In some other cases Keshavaananda Bharti v/s State of Kerla
1973, Minerva Mills v/s Union of India 1980, Waman Rao v/s
Union of India l981 and Srinivasa v/s State of Karnataka 1987, it
was held by SC, The basic features of the constitution cannot
be amended by exercising the power of amendment under
article 368.

DOCTRINE OF ECLIPSE
DOCTRINE OF ECLIPSE :- A law existing at the time of
coming into force of the constitution and inconsistent with a
fundamental rights though becomes inoperative from the date
of the commencement of the constitution. It is not dead
altogether. Though it is overshadowed by the fundamental
rights and remains dormant, it is not wiped out from the
statute book It stands for all the transactions and for
enforcement of rights incurred during pre-constitution period.
It this shadow or eclipse is removed by the appropriate
constitutional amendment the law revives. This question was
considered by the SC in Bhikaji Narain v. State of MP 1955 the
court held that an existing (pre-constitution) inconsistent law
is not dead and can be revived by any subsequent amendment
of the constitution. In that case a law authorised the State
Govt., to nationalize motor transport business. This law
became void on coming into force of the constitution in 1950
as it is violated article 18(1)(g) in 1951. Art.19(b) was amended
which authorised the state govt to nationalized motor transport
business. It was held that the amendment had removed the
shadow and made the law enforceable. All existing laws are
continued to be valid till courts declares them to be in conflict
with fundamental right and therefore void. Thus the declaration
of validity of the court is necessary.
THE WAIVER
?

Protection Against Self-Incrimination

It is a trite law in English & American Jurisprudence that no
one should be compelled to give evidence or be witness

against himself. Article 20(3) of constitution provides, no

person accused of any offence shall be compelled to be a
witness against himself. This means that no accused shall be
compelled to make confessions which might lead to his
conviction.
i) It is the right pertaining to a person accused of an offender
The privilege under article 20(3) is confined only to an accused
i.e. a person against whom there is a formal accusation
relating to commission of an offence, which in the normal
course may result, in prosecution (R.K.Dalmia v. Delhi
Administration 1962) Where a custom Officer arrests a person
and informs him of the ground for the purpose of holding
enquiry there is no formal accusation of an offence. ( Veer
Ibrahim v. State of Maharashtra, 1976)
ii) It is protection against compulsion to be witness.
The phrase used in Art.20(3) is to be witness and not
appear as witness". Every possible volitional act which
furnishes evidence is testimony and testimonial compulsion
connotes a coercion which procures the positive volitional
evidentiary acts of the person as opposed to the negative
attitude of silence or submission on his part. Case :
M.P.Sharma v. Satish Chandra 1954. The interpretation of the
phrase, to be witness given in above case is too wide and
requires a qualification. Self incrimination can only mean
conveying information based upon personal knowledge of the
person giving information and cannot include merely
mechanical process of providing documents in court.
iii) The Prohibition is only against the compulsion of the
accused to give evidence against himself.
There is not constitutional disability against an accused being
a witness on his own behalf. Case Nandini Satpathi v.
P.L.Dhani-1978, It is laid down that the phrase, compelled
testimony must be read as evidence procured not merely by a

physical threats or violence but also by phychic torture. In

case: Yusafali v. State of Maharashtra-1968. Production of a
tape-recorded statement of the accused recorded without his
knowledge and without use of force or oppression was held to
be not hit by art. 20(3) and hence admissible in evidence.
PROTECTION FROM EX-POST FACTO LAW
Article 20(1) of the constitution says, No person shall be
convicted of any offence except for violation of a law in force
at the time of the commission of the act charged as an offence,
nor he subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of
commission of the offence.
Article 20(1) corresponds to the provisions against
ex-post-facto laws of the American constitution.
Ex-post-facto-laws are laws which impose and enhanced
penalties upon acts already done i.e. retrospectively. This
means that person can only be convicted of an offence if the
act was charged against him was an offence under the law in
force at the date of commission of the act. However it does
not prohibit the imposition of civil liabilities retrospectively.
So a tax can be imposed with effect from a past date. This first
part of art.20(1) simply means that if an act is not an offence at
the date of its commission, it cannot be made an offence at
any date subsequent to its commission. The second part of the
clause provided that a person cannot be subjected to a penalty
greater than that which might have been inflicted under the law
in force at the time of the commission of the offence. Case:
Shiv Bahadur singh v. State of U.P.-1958 : The prohibition :- it
will be noted, extends not only to the passing of ex-post-facto
laws but also the conviction or the sentence under such laws.
It was held that penalty means penalty for the offence
committed. In case : Venkataraman v. Union of India.1954:

-such a trial under a procedure different from what obtained at

the time of the offence or by a court different from that which
had the competence at the time cannot ipso facto be held to
be unconstitutional. Protection of cause(1) or article 20 cannot
be claimed in cases of preventive detention.
PROTECTION FROM DOUBLE JEOPARDY
English and American laws bar second prosecution of an
accused for the same offence whether he was convicted or
acquitted as a result of the first prosecution. No one should be
vexed twice for the same act. But art.20(2) of the constitution
of India has adopted this principle to a rather narrower extent
as its protection against prosecution for which the accused
has already been prosecuted and punished. Art.20(2) provides
No person shall be prosecuted for the same offence more
than once.
The constitutional protection against double jeopardy is
available to the citizens and non citizens of India. Thus the
Indian provision enumerates only the principle of autrefois
convict but not that of autrefois acquit. In England and the
USA both these rules operate and a second trial is barred even
when the accused was acquitted at the first trial for that
offence.
In order to bring the case of a person within the
prohibition of art.20(2) it must be shown that he had been (i)
Prosecuted before a court. (ii)Punished by it (iii) The
punishment was for , the same offence for which he is being
prosecuted again.
Accordingly there can be no constitutional bar to a
second prosecution and punishment for the same offence
unless the accused had already been punished in the first
instance, in a case Kalawati v. State of M.P.-1953. The word
prosecution has no fixed meaning and is susceptible of both
wider and narrower meanings as laid down in Venkataraman v.

Union of India 1954, but as used in art.20(2) it embodies four

essentials :
1. There must be a person accused of an offence.
2. The proceedings of the prosecution should have taken place
before a court or judicial tribunal and not the executive or
administrative action.
Case : Maqbool Hussain v. State of Bombay 1953 & H.H.Advani
v. State of Maharashtra 1971.
3. The proceeding should have been taken before the judicial
tribunal or court in reference to the law which creates
offences. Case:Venkatraman v. Union of India.-1954 & Leo Roy
v. Supdt. Of District Jail- 1958.
4. The person must have been not only prosecuted but also
punished in the previous proceeding.
Likewise, clause (2) of article 20 does not apply when the
person prosecuted and punished for the second time and
subsequent proceeding is a mere continuation of the previous
proceedings, e.g. in the case of an appeal against acquittal.
Case: State of M.P. vs. Veereshwar-1957.
Similarly the conviction of the accused under section 304 IPC
for the death of deceased does not deprive the wife of the
deceased to claim compensation. A decree of damages is not
a punishment and the rule of double jeopardy has no
application, Case : Suba Singh v. Devender kaur,2011.

Question :- Discuss the importance of the speech and

expression. Does the constitution permits its curtailment? If
so on what ground and o what extent?
OR
Examine the scope of freedom of speech and expression
under the constitution of India. Is right to information implies
in Article 19(1)(a)?
OR

What is the scope of the right to freedom of speech and

expression? On what grounds can this right be restricted?
Answer:- INRODUCTION:- Freedom of speech and expression
is a fundamental right given under Art 19(1) A in the part III of
the constitution of India. Article 19 itself contains certain
freedom for the individual. In a case LIC v/s Manu Bhai
D.Shah, the apex court held that, That a speech is Godsgifted to mankind. Through speech a human being conveys
thoughts, sentiments and feeling o others, freedom speech
and expression is thus a natural right which a human being
acquires on birth. Art.19(2) imposes certain reasonable
restrictions on these freedom. As a general rule of law, all
constitution of the world have given certain freedoms to their
individuals. The preamble of our constitution also gives the
object of the freedom of speech and expression.
Meaning :- Two things are following:i) right of speech
(ii) expression
Speech:- Means a speak. It means one has the freedom to
speak. But this freedom is no absolute or complete, no one
can speak in such a manner which is injurious to others and
on such a matter which is prohibited by law itself.
Expression :- It means to express or propagate a thing.
Expression may be done through written or through other legal
means. The communication of speech and expression is a
must. So the freedom of communication of speech and
expression is also guaranteed under Art.19(1)A.
In National Anthem Case 1986 :- It was held that the right to
speak aso incudes the right not to speak. In this case, three
students of Jehyeshs school were expelled by the governing
body of this school on he ground of not speaking national
anthem with other students. The challenged it in the court.

The SC held that the freedom of speech and expression also

includes not speaking and not expressing. One cannot be
compelled to speak or express.
In other case l995 In the Election Petition of Maharashtra Chief
Minister. In the Election of Manohar Joshi was challenged on
the ground of freedom of religion and freedom of speech and
expression. The petitioner argued that Mr.Manohar Joshi used
some words like Hindu and Hinduism during this election.
These words are against the right of freedom or religion and
also against provisions of people representative Act. 1950. In
other wards, to ask for vote in the name of religion is illegal.
Bu in this case SC held that to ask votes in the name of
Hindus or Hinduism is not in the name of religion. The word
Hindu or Hinduism do not denote or represent religion. These
words are used for particular community residing in India.
However, the statement of Balthakery chief of shiv sena, was
held against religion. So in this case two question of freedom
of speech discussed Mr. Joshi was also protected due to the
freedom of speech and expression.
Art.19(1)(a) guarantees right to freedom of speech and
expression to its citizens not only within India but even
outside it. If the state action sets up barriers to its citizens
freedom of speech and expression in any country of the world
such action is violative of Article 19(1) (a) as such expression
is within the country. (Per Justice Bhagwati in Menka Gandhi v.
Union of India l978)
Territorial Extent of the right :- The right of freedom &
expression is available even out of India. Case: Menka Gandhi
v/s Union of India 1978. The govt argued that this right can be
restricted on the ground of out of the territory of India because
this right is available only within India. It cannot be enforced
in the foreign countries. But in this case SC held that this right

could not be restricted on the ground of territorial extent. It

includes the freedom of speech and expression even out of
India.
FREEDOM OF PRESS :- The right of speech and expression
includes the freedom of press. The idea of the freedom can be
expressed by the way of press. Pres is the fourth estate of the
democracy the fourth essential condition or the fourth piller of
the democracy. So no restriction can be imposed on the
freedom of press. The word expression means no interference
in there shall be the freedom of press. The freedom of press
shall not be violating to Art.19(1) A.
Case: Indian Express Newspaper v/s Union of India 1985:Even imposing sales taxes on the sale of newspaper has been
held violative of Art.19(1) A. No sales Tax can be imposed on
the newspaper because the newspapers are the mode of
expression or of the views of the public so there should be no
restriction on such freedom
1 Decency and morality : Any such speech expression which
is against morality can be restricted under this right. To show
film is also a mode of freedom of speech and expression qarb
of film. Any such thing or scene or speech which is injurious
to the society will be prohibited under art. 19(2). Morality
means some ethical rules of the society and some form of the
society by which the status of the society is maintained.
1. Public Order: Any such speech which is dangerous to the
unity of country can be restricted under ar. 19(2).
2. Contempt of Court:-Any-thing said against the interest of the
court can be prohibited, if any one interferes in courts
business it is offence & Punishable.
3. Friendly relation with foreign states: Ist amendment 1951
friendly relation should be maintained with other countries.
4. Defamation:- Any statement which gives injuries to mans
status under sec.499 IPC

5. Incitement for an offence:- Abetment or to provoke through

speech It is an offence under section 107 IPC.
6. Sovereignty & Integrity of India: By 10th amendment so any
such speech which can be dangerous to he Unity & integrity of
India can be restricted
So in this way these are the reasonable restrictions, which can
be imposed on the right of freedom and speech & expression.

Question :- Define the word , State as used in context of

Fundamental Rights In Part III of the constitution .
OR
What does the word, State signify as defined in Article 12?
Examine.
Answer: INTRODUCTION :- Article 12 OF the constitution
defines the term State, It lays down, In this part, unless the
context otherwise requires, the state includes the Government
and Parliament of India and the government and the legislature
of each of the states and all local or other authorities within the
territory of India or under the control of the government of
India. Thus the term state includes :1. The Government of India i.e. the executive of the Union.
2. The Parliament of India i.e. the legislature of the Union.
3. The government of each state i.e. Executive of states.
4. The legislature of each state i.e. Legislature of states.
5. All local or other authorities within the territory of India.
6. All local or other authorities under the control of the Govt.,
of India
Thus the term state includes Executive and the Legislative
organs of the Union and States besides the Local or other

authorities within the territory of India or under the control of

the Govt., of India.
Authorities = Means a person or body exercising power to
command. In art.12 the word authority means the person or
body having the power to make laws orders, regulations,
bye-laws, notifications etc., which have the force of law and
have the power to enforce those laws.
Local Authorities :-According to sub-section 3(1) of section 3
of the General Clauses Act 1897, local authority means a
Municipal Committee, District Board, Body of Commissioners
or other authority legally entitled to or entrusted by the
government within the control or management of a municipal
or local fund.
Other Authorites :- It was the opinion of the Madras High
Court that the term, other authorities under article 12 should
be constructed ejusdem generis with the government or
legislature and so construed it can only mean authorities
exercising governmental functions. Case :Madras University
v. Santa Bai 1954, This view of the Madras High Court has been
rejected by the Appex Court. In Ujjambai v. State of U.P.1962.
The SC laid down that the doctrine of ejusdem generis cannot
be applied in the interpretation of the term, other authorities.
In Electricity Board v. Mohan Lal, 196 SC has observed that the
term other authorities used under Article 12 includes all the
authorities created by the Constitution or Statute on whom
powers as conferred by law, whether or not they are engaged
in performing governmental functions.
In later decisions the Supreme Court gave a wider and more
liberal interpretation of the expression, other authorities.
In Ramanna Dayaram Shety v. The International Airport
authority of India 1979:- The SC held that if a body is an
agency or instrumentality of government it is an authority
within the meaning of Art. 12, whether it is a statutory

corporation, a government company or even a registered

society. In this case the SC laid down the following tests for
determining whether or not a body is an agency or
instrumentality of the govt.
Whether there is any financial assistance given by the
State and if so what is the magnitude of such assistance.
Whether there is any other form of assistance given by the
State and if so, whether it is of the usual kind or it is
extraordinary. Whether there is any control of the
management and policies of the corporation by the State and
the nature and extent of such control.
IN ASSAM SMAL SCALE INDUSRIES DEVELOPMENT CORN.,
LTD V/S J.D.PHARM 2006 :- The Appex court has observed
that Assam small scale Industries development corpn. Ltd., is
a statutory body, it is a State within the meaning of Art.12 of
the constitution.
IS JUDICIARY INCLUDED IN THE TERM STATE ?
The present position appears to be that when the judiciary acts
in its judicial capacity, it is not included within the term other
agencies and therefore it is not State within the meaning of
Art. 12 whereas when it acts in administrative capacity it is
included within the term other agency and therefore, it is a
State, in the case of Prem chand Garg v. Excise Commissioner
1963.
In another case of Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology, 2002, The SC has held that the Council of
Scientific and Industrial Research is an instrumentality of the
State within the meaning of art. 12 of the constitution.

Question: What is right to life and personal liberty ? How the

new dimension Has been given to it by Judiciary?
OR

Explain the concept of personal liberty and upto what extent it

has been moulded in modern times?
OR
No person shall be deprived of the right of life and personal
liberty except according to procedure established by law under
Aar.21? Comment.
Ans. Introduction:- Personal liberty means freedom of person
or body. The right of life means to live in the world. These two
things the right of life and personal liberty are the most
important rights of a person. No one has the right to take away
the personal liberty of a person. The rights are protected by
the constitution itself under article 21. The concept of
personal liberty borrowed from the American constitution.
Even at international level, there wee declarations which
granted personal liberty and right of life to human beings.
Article 21, has been explained now a days very liberally by the
SC.
In a case P.N. Bhagwati on behalf of S. Court gave decision
for the people of certain local of Himachal Pradesh, for
enforcing the right of personal liberty. In this trial village
people were prohibited during raing days bringing essential
commodities, such as, food, clothes, shelter due to
water-course on the way. The court held govt., was liable for
constructing a bridge on the water-course.
Right of life and personal liberty:- Art.21 No person shall be
deprived of the right of life a personal liberty except according
to the procedure established by law"
No Person: means that any person whether citizen or
non-citizen
Deprived : means to take away or to finish or to arrogate a
thing.
Right of Life : Life means to live in the world. For living in the
world mainly three things Roti- Kapra and Makan are

necessary. These things are under the right of life.

Personal Liberty: It consisted two things i) Personal ii) Liberty.
Personal means relating to person or body. Liberty means
freedom. So personal liberty means the freedom of the body
or bodily freedom in art. 19 there are certain freedoms, but art
21 contains certain other types of freedoms which are
particularly related with body. For exp. To eat, sleep and sit
etc., according to ones own choice.
In A.K. Gopalan v/s State of Madras:- This freedom was
restricted to bodily freedom only but later on in Kharak Singh
case, Menka Gandhi case and in certain other cases, this
concept of personal liberty was applied very widely by the
Supreme Court.
Case : A.K.Gopalan v/s State of Madras: 1950 : The meaning of
term personal liberty was taken very narrowly. The court held
the term liberty is lin ked with the term personal so personal
freedom is only bodily freedom. In this case certain persons
including the petitioner, A.K.Gopalan was aarrested under the
Preventive Detention Act 1950. It was held by s. Court that the
arrest and the imprisonment of the accused under this act is
not against Art.21.
Right of Privacy:-Case : Kharak Singh v/s State of U.P.-1963.:
In this case the police of UP state suspected that the petitioner
has links with certain Dacoits. For the purpose of
investigation, the police interfered in the personal life of
Kharak singh. Police even searched his house at night and
police used to ask from the petitioner at midnight about his
whereabouts. The petitioner challenged these actions of the
police under art.21. He argued that these actions of the police
infringe his personal liberty.
The Supreme Court held that the police could not
interfere in the private life of the petitioner without the
procedure established by law. A human being want to live with

privacy. Thus in this case, the right of privacy was included in

the right of liberty.
A case Govind v/s State of M.P. 1975 in this case the same
activities of M.P. state police were held valid because they had
force of law. The state govt., formed certain regulations after
taking power from police act.
A case Raj gopal v/s State of Tamil Nadu 1994 :- The S. Court
held that the right of privacy is a fundamental right under
art.21 of the constitution and a citizen has the right to safe
guard the privacy of his own family, marriage, procreation,
motherhood, child bearing and education among another
matters" No one can punish anything mentioned above
without his consent.
RIGHT TO TRAVEL TO ABROAD:- A case Satwant Singh v/s
Delhii Pass Port Officer 1967 in this case the passport of the
petitioner was confiscated by the Passport authority of Delhi
without giving any reason. The petitioner challenged this
action and argued that the travel to abroad also comes under
the right of personal liberty. The petitioner was some business
in the foreign country so he used to go to abroad from time to
time. Supreme Court held that to travel to abroad also come
under the right of personal liberty.
Menka Gandhi v/s Union of India. 1978 in this case also the
passport of the petitioner was confiscated by the Passport
authorities giving no reason for confiscation to the petitioner.
The petitioner challenged it on the ground of personal liberty.
The passport authorities argued that there is a law for this
purpose, In this law, it is not necessary to give reason for
impounding the passport. It is also not in the interest of public
to give reasons of impounding the passport.
But S. Court rejected all these arguments and said law should
also be based on the principle of natural justice. The
procedure established by the law should be reasonable &

According to natural justice and the opposite party should be

given opportunity of hearing. So this case changed the
concept of personal liberty dynamically.
Right of Livelihood :- A case People of democratic v/s Delhi
Administration 1982 The workers of Asaid Village 1982 were
paid very minimum wages. A public interest litigation was filed
for this purpose. The petitioner said that reasonable wages
are necessary for livelihood. Therefore outright of live hood
has been broken. This right comes under the right of personal
liberty. The S. Court held that the right of livelihood comes
under the right of personal liberty under art. 21, but in another
case Sadan Singh v/s New Delhi Municipal Committee 1989 the
S.C, held that right to carry on any trade or business is not
included in the concept of life and personal liberty. The
petitioner who was doing he business on the pavement of the
roads of Delhi had claimed the refusal by the Municipal
authorities to them, to carry on business for their livelihood
resulting in the violation of their right of livelihood under art.
21 of the constitution. The court distinguished the ruling of
the court in Ollga-Tells case and held that it is not applicable
in this case. In another case D.K.Yadav v/s J.N.A
Industries-1993: In this case SC held that the right of life under
art.21, includes right of live-hood and therefore before
terminating the service of an employee a fair plea requires that
a reasonable opportunity should be given to him to explain his
case.
RIGHT TO DIE : A case Marui Sripati Dubal v/s State of
Maharashtra 1986 the Bombay High court held in case that the
right to die also comes under the right of personal liberty. So
committing to suicide should not be taken as an offence. It is
a freedom of human beings to live or to die. Therefore section
309 of IPC is against Art. 21. In this case a police constable
due to adverse family circumstances tried to commit suicide.

He was prosecuted for this act. The court held that he was not
liable under section 309 of IPC. Another case of P.Rathanam
and Nag Bhushan Patnaik v/s.Union of India 1944 : The S.
Court confirmed the decision of Bombay High Court and held
that the right to live also includes the right to die, so it is
personal liberty of a person to finish his life. But still there is a
controversy about the mercy death. The view of some writers
is that this death should be included under the right of
personal liberty.
Gian Kaur v/s State of Punjab 1996:- The S. Court held that
right to life under article 21 of the constitution does not
include, right to die, right to life is natural right embodied in
art. 21 which means to die a natural death and does not
include the right to commit suicide which is a unnatural
extinction of life and inconsistent with the concept of right to
life.
RIGHT OF EDUCATION: A CASE MISS MOHINI JAIN V/S STATE
OF KARNATKA-1992 In this case the petitioner could not get
admission in the professional course due to high capitation
fees. There are some orders of the Govt., of Karnataka for
taking capitation fees. This fee was Rs.60,000/-for the out state
candidates. The petitioner could not arrange this amount of
money. She challenged it on the ground that the right of
education also come under the right of personal liberty. The
S.C. held its decision according to the petitioners argument.
In Unikrishanan v/s State of Andhra Pradesh 1993 the court
modified the scheme laid down in Mohini Jain case in relation
to NRI students and held that out of entire the seats only 5%
seats can be filled up by NRI students, on the basis of merit, to
be judged by the management of the college concerned and
not on the basis of entrance examination.
Case : All India Imam Organization and others v/s Union of
India The Imams of various mosques in India challenged their

wages etc., under the right of personal liberty. Their wages

were very low on which they could no exist in the world. They
had no other source of income. They were engaged in this
service for the whole life time. The S. Court held that the right
to live in world is the first most important right of personal
living. Here also their rights of life had been infringed. The
court ordered the Waqif Board of India for giving sufficient
wages to these Imams for their living in this world. On source
basis now a day a system of Rain Basera ( Lodging system for
poor) has been started by the Rajasthan Govt., on the orders of
the Rajasthan High Court.
PROFESSIONAL DOCTOR LIABILITY:- In PARMANAND
KARTARA V/S UNION OF INDIA 1989 it has been made a rule
now there is no need to file FIR, according to the rules of Cr.PC
for the purpose of curing the wounded person in an accident.
In this case, the SC held that it is a duty of professional doctor
whether private or govt., to cure(care) the wounded person firt
and to report to police afterwards.
SUSPENSION OF ARRTICLE 21 DURING EMERGENCY:- During
National emergency( under article 352) article 21 can be
suspended. It means no one can claim personal liberty under
article 21 during national emergency. There was done in
1962(Chiana attack) in 1971 (Pakistan) and 1975 emergency in
India. This has also been confined in the Case of : ABM
JABALPUR V/S STATE OF U.P.-1976: This case is known as
Habeas Corpus case. In this case the SC held that during
emergency Art.21 can be suspended. But in 44th amendment
1978 it has been added that Art.21 cannot be suspended
during emergency of Indian government. There were many
authorities to the person. This amendment adopted the
dissented views of justice Khanna given in the above
mentioned cases. Thus if there is a reasonable procedure
established by law then personal liberty can be taken,

otherwise not.

Question: Constitution of India Provides freedom of Religion

or Secularism to all person. What are the restrictions which
can be imposed by the State on this freedom? OR
India is a secular state? Do you agree with it.? OR There is a
guarantee of freedom of conscience and right to profess,
practice and propagate the religion under article 25(1).
Comments. Give its exceptions also.
Answer: Introdction : Right of freedom of religion is contained
from Art. 25 to28 of constitution of India, these articles are
contained in the part III of the constitution. As part III is related
with the fundamental rights, Art 25(1) gives the conditions for
the freedom of religion. Under Art.2(2)there are certain
restrictions on this freedom of religion. Art.26 is related the
management of the religious affairs and the maintenance of
religious institution. Art.27 says that the income earned by the
way of religious activities shall not be taxable, Art.28 says that
the Govt., shall not give any aid for the religious activities.
These four Articles give the ideas of secularism. The preamble
of the constitution also says that our constitution is secular.
There is freedom of thought, expression, belief and faith. That
is why India is a secular state.
DEFINITION OF RELIGION: On the basis of religious concept a
state may be divided into three categories :i) Anti-Religious State : A state, which is anti religious. It
means where there is no recognition to any religion in the
state. In other words, the persons of that state can not follow
or adopt any religion.
ii) Religious State : A State, which has its own religion or
where there is recognition of only one religion. All people are
bound to follow that one religion. For example Pakistan, and

other Muslim countries.

iii) Secular state :- A State, which is neither anti religious, nor
religious. It means such a state has not its own religion but it
does not prohibit any person for adopting any religion. Modern
Democratic countries are mostly secular states. For example,
America, England & India etc.
WHAT IS RELIGION : Now question is arises that what is
religion? It is very difficult to difine in certain words of term
religion because it is based upon faith and belief. It is a
matter of inner conscience or spiritual matter. Though in
various cases the SC of India has said that, Religion is a
doctrine of belief. Religion is related with the manners, living
manners of getting peace in this world, including the manners
of talking, eating even types of dress. So religion is a variety of
different things in the life of a person, which are related with
spiritual or inner conscience matters.
RIGHT TO FREEDOM OF RELIGION: According to article 25(1)
there is guarantee to every person for the freedom conscience
and right to profess, practice and propagate the religion. The
words of this article give the right for the freedom of religion.
Art. 25(1) gives the guarantee for the freedom of religion. This
article mainly contains the following two things:
i) Freedom of conscience.
ii) Right to profess, practice and propagate the religion.
Freedom of Conscience: Every person has the freedom of
conscience. It means to think according to ones own will.
Conscience is an internal matter upon which there is no
control of any other person, even a father cannot control his
son for the purpose of religion. A person is free to adopt any
religion or he is free to adopt no religion. He may be antitheist
or anti God. But it does not, mean that it is violative of any
provision of the constitution or of any law. He is free to follow
any section or any branch of religion.

RIGHT TO PROFESS, PRACTICE & PROPAGAE : Profess

means to accept any thing. A person is free to accept any
religion and to declare it openly. There is no restriction on him
for this purpose. Practice Means o perform he religious
activities. I mean one is free o follow the customs or
ceremonies or other activities of a religion. Propagate means o
spread the religion it means one has the right to expend or
spread his religion. It means one has the freedom to make
others as his followers in this religion. For this purpose one
has the right to express his thoughts or ideas about his
religion but propagation of this does not mean the conversion
of the religion. Conversion is an interference in the
propagation of another religion. In a case, conversion is
allowed.
1. Case : National Anthems case 1984, in this case the SC
held that it is the freedom of Religion and one cannot compel
any other person for obeying he directions relating with
another religion. It is also said that the right to speak also
includes right of not to speak. So this order was held violative
of Art.2(1)being against the right of freedom of religion. Case:
Ramesh v/s Union of India 1988, a PIL was filed, SC rejected
this agreement and held that it does not infringes the right of
freedom of religion under article 25(1), even said that by this
serial the true picture of the partition of India comes in the
knowledge of the public which will be in the benefit of the
public.
RESTRICTION OVER THE FREEDOM OF RELIGION:- Freedom
of religion is neither right nor absolute freedom. Some
restrictions may be imposed on this right in the interest of
public. The article 25(2) it self lays down certain restrictions.
Restriction in the interest of public morality and health:-To
maintain law & order is prime duty of the government. The
government may impose certain reasonable restriction on the

religious activities. If they are dangerous to the public. For

example: to arrange route of the religious, procession, even
the force-able conversion is not in the interest of the public.
Case: Gulam Abbas V/s State of UP 1984 : The SC rejected this
argument and held that to decide a dispute between two
sections such acts petition come under the reasonable
restrictions.
* Recently in election of Maharashtra Chief Minister: During
Dec., 1995 the election of Mr. Murli Manohar Joshi was
challenged on the ground of religion and freedom of speech &
expression. The petitioner argued that Mr.Joshi used some
words like Hindu or Hinduism during his election speech.
SC held that o ask for votes in the name of Hindu or
Hinduism do not denote or represent religion. These words are
used for a particular community residing in India. However the
statement of Bal Thakry chief of shiv-sena was held against
religion. Mr joshi was protected due to the freedom of religion
and freedom of speech and expression.
1 Morality : To Practice or propagate any such activity in the
name of religion which effects the morality of persons shall be
restricted. That is to practice or propagate prostitution in the
name of religion, is not valid.
2 Health :- In the shia act, there is a provision for slaughtering
the cows in the public place because of its effects on the
health. So this is not reasonable even if to be related with
religion.
3 Economic or secular of administrative activities : means
monitory or financial matters. Some reasonable restrictions
may be imposed on the financial matters of the religious
activities. There are certain secular activities which have no
link with the religion can be prohibited under section 25(2).
Case : SP Mittal v/s Union of India 1983. In this court held that
certain reasonable restrictions could be imposed in the

administrative activities of any religion. In other case :State of

W.Sbegal v/s Ashutosh Lohri -1995, The SC held that the
decision of the Mohd. Hanif & Qureshi v/s state of Bihar, the
slaughtering of cows no the essential elements of Muslim
religion.
4 Social Welfare Reform : Certain restricitions may be
imposed for the purpose of social reforms, for example Sati
Pratha which is considered as a religious activity under Hindu
religion has been prohibited by passing the sati pratha
prevention act. Similarly in south Devdasi Pratha according to
this pratha the girls were sent to the temple for entertain of
the guests in the temple under this practice, there were
incidents by which these girls were misused, so the
restrictions in the name of social reforms imposed on this
pratha under section 25(2).
Article 26 Freedom to manage religious Affairs : Says that any
denomination has the freedom to manage the affairs of its
religion. For this purpose, following rights have been given:
1. To establish and maintain institution for religious or
charitable purposes.
2. To maintain the religious affair in these institutions.
3. To acquire and hold movable and immovable property for
these institutions.
4. To dispose of such properties according to law.
Article 2 says that no tax can be imposed upon religious
income. Even state can also not impose tax on any person o
property for the promotion of religion. However Private and
govt. Aided educational institutions can give such directions
for the purpose of religion but in case of govt educational
institutions no religious directions or aid can be given by the
state. There is complete freedom of religion in India except
certain restrictions as explained above. India is a secular state.
Article 25 to 28 are peculiar and most important articles which

adjust all types of religious communities castes in India that is

why it is said that , There is unity in diversity in India.