CONSTITUTION OF INDIA
The constitution of India came into force on January 26, 1950. It is a comprehensive written document containing 395 articles divided into 22 parts and 12 schedules.
Q.1. what is preamble? Discuss the meaning and purposes of the preamble.
Ans.:-The preamble to an act sets out the purpose and object for which a statute is enacted. It lays down the aim and the objectives for which the constitution framed
In a case “kesvanand Bharti v. State of kerla” (1973).It was held by the Supreme Court, preamble is a part of the constitution and constitution should be interpreted in the light of preamble.
The purpose of the preamble:-
- It discloses the source of the constitution,
- It laid down the date of the commencement of the constitution,
- It sets out the right and freedoms which the people of India wished to secure for themselves,
- It declares the nature of the government which it wishes to establish in the country.
The preamble is reproduced bellow
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a ‘SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC’ and to secure to all the citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FERTENITY assuring the dignity of the individual and the unity and integrity of the nation;
IN OUR CONSTITUENT ASSEMBLY, this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
STRUCTURE CONSTITUTION OF INDIA:-
Q.2. what is nature of Indian constitution? Or
“The constitution is more unitary in nature than federal.” Comment. Or
“The constitution of India is neither purely federal nor purely unitary, but is a combination of both” discuss.
Ans.:- All constitutions are generally divide into two categories, one federal and other unitary.
Under unitary constitution the power of the government are centeralised in one government and that is generally the Central Government and the states are subordinate to it.
But in federal constitution there is division of powers between the centre and the states and both are independent as well as coordinate to each other.
A federal constitution has following essential features:-
- Distribution of power:- a federal constitution defines and demarcates the sphere of the State and Central Government. Each Government has to act within its own sphere and can not interfere in other’s field.
- A written constitution:- Distribution of power can not be made oral. It must be done by written document which is known as the Constitution so as to avoid disputes.
- Supremacy of the Constitution:-In a federal system the constitution is considered as the supreme law of the land. All organs and institution of the State derived their power from the Constitution and have to function within the limits defined by it.
- Authority of the court:-The courts in this system have the final authority to interpret the provision of the Constitution and maintain the supremacy of the constitution.
- Rigidity:-The procedure of amendment in a federal constitution is generally rigid.
The Indian Constitution possesses all essential characteristics of federal constitution as mentioned above.
In certain circumstances the constitution expressly empowers the Centre to interfere in the states matters, which is against the features of federal constitution.
In the following matters, the Indian Constitution becomes unitary:-
- Appointment of government:-The Governments are appointed by the President of the India and are answerable to him.
- Parliament’s power to legislate in the national interest:-Articles 249 empowers parliament to make laws with respect to every another matter of state list if it is in national interest.
- Emergency provisions:-emergency like war, failure of state machinery and financial emergency, if arise in country then parliament can make law even on matters given in state list.
Hence we can say that the Constitution of India is neither purely federal nor unitary but it is a combination of both. The Indian Constitution is mainly federal with unique unitary features to safeguard the unity and integrity of the country.
Part 3rd of the Constitution of India guarantees certain fundamental rights to the citizen of India; some of these rights are also available to all people in India.
These rights are essential for the all round development of individual personality. Such rights can be classified as follows:-
- Right to equality…………………………………Articles 14 to 18
- Right to freedom…………………………………Articles 19 to 22
- Right against exploitation………………………..Articles 23 to 24
- Rights to freedom of religion…………………….Articles 25 to 28
- Cultural and educational rights…………………...Articles 29 to30
- Right to constitutional remedies…………………Articles 32 to 35
Right of property (article-31) is no more a fundamental right; it is only a legal right.
Definition of `State`
- The guarantee of fundamental rights is sought to be made as complete and absolute as possible by a very comprehensive definition of the term “State” for the purposes of Part III of the Constitution.
- With few exceptions, all the fundamental rights are available against the State.
Article 12 `State`, unless the context otherwise requires, 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.
- What is, and what is not a “State” has been the subject matter of rich case laws under Article 12.
- There are tests formulated by several cases of the Supreme Court to find out whether an institution is a “State”. There cannot indeed be a straightjacket formula. It is not necessary that all the tests should be satisfied or reaching the conclusion either for or against holding an institution to be “State
- In AJAY HASIA VS. KHALID MUJIB, (REGISTERED SOCIETY), Regional Engineering College was held to be a “ State”. In this judgment of the Supreme Court, Mr. Justice Bhagwati enunciated the following test for determining whether an entity is an instrumentality or agency of the State: -
- One thing is clear that if the Government holds the entire share capital of the corporation, it would go a long way towards indicating that the corporation is an instrumentality or agency or Government.
- Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
- It may also be a relevant factor whether the corporation enjoys monopoly status, which is the State conferred or State protected.
- Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
- If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classified the corporation as an instrumentality or agency of government.
- Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
In another case, the Hon`ble Supreme Court laid down the preponderant consideration for deciding whether any agency is a State agency or not. They are: -
- Financial resources of the State being the chief funding scheme
- Functional character being governmental in essence
- Plenary control in the government
- Some element of authority or command
5. Prior history of some activity having been carried on by the government and made over the new body
Judicial Review (Justifiability of Fundamental Rghts)
Article 13 gives teeth to the fundamental rights. It lays down the rules of interpretation in regard to laws inconsistent with or derogation of the fundamental rights.
Existing laws: Article 13(1) All laws in force in the territory of India, immediately before the commencement of the Constitution, insofar as they inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void.
- Article 12 mentions the authorities against which fundamental rights are available. Article 13 lays down that any law passed by a legislature or a law already in existence, as so far is inconsistent with the guarantee of fundamental rights will be void. The responsibility of declaring such a law void, is cast on the judiciary.
- Article 13 (1) is not retrospective in operation. Hence laws that were already in existence on the date of commencement of the Constitution do not become void ab initio, but only from the commencement of the Constitution. The term void does not mean repealed.
Hence, such a law will be a good law for all obligations incurred before January 26, 1950 and also in cases of those persons who cannot claim fundamental rights guaranteed by the Constitution. Moreover, if by a subsequent amendment of the Constitution the inhibition is removed by existing law will become operative. Further, the law shall be void only to the extent of the inconsistency.
Future Laws : Article 13(2) future laws means laws made after the commencement of the Constitution. After the constitution comes into force the State shall not make any laws which is takes away or abridges the rights conferred by part III (Fundamental rights) and if such laws made, it shall be void to the extent to which it curtails any such rights.
Meaning of Laws: Article 13(3) In this Article, unless the context otherwise requires, -
- “law” includes any ordinance, order, bye-law, regulation, notification, custom or usage having in the territory of India the force of law;
- “laws in force” include laws passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
Article 13 of the Constitution come for judicial review in a number of cases and the Courts have evolved doctrines like doctrine of Severability, eclipse, etc.
Doctrine of Severability
- It is not the whole Act, which would be held invalid, by being inconsistent with Part III of the Constitution but only such provisions of it, which are violative of the fundamental rights, provided that the part, which violates the fundamental rights, is separable from that which does not isolate them.
- But if the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder the court will declare the entire Act void. This process is known as Doctrine of severability or separability.
Some cited case laws
- In re: A K Gopalan, the Supreme Court held that the preventive detention minus Sec 14 was valid as the omission of Sec 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective.
- In RMDC Vs Union of India, the Supreme Court held that where the validity of Sec 2(d) of Prize Competitions Act, which was broad enough to include competitions of a gambling nature as well competitions involving skill, was challenged. The Supreme Court held that the provisions of the Act were severable and struck down only those provisions which related to competition involving skill.
- In re: Ramesh Thapar case, the Hon`ble Supreme Court held that if the test of severabiltiy cannot be pressed into service the entire statute must be declared ultra vires even though a part of it may be consistent with the Constitution.
Doctrine of Eclipse
- What happens to those portions of laws or even the entire laws, which are declared, void because of inconsistency with the provisions of fundamental rights? Are such laws deemed to be repealed?
The answer to these questions is that such laws are only inoperative and not void. If by a subsequent amendment to the Constitution, the necessary legislative power is conferred on the legislature with retrospective effect, laws or portions of laws, which were inoperative because of inconsistency with fundamental rights, are revived and can be enforced.
Some cited case laws
- In re : Bhikaji Nrain Dhakras case, Acting CJ, Supreme Court observed that an existing law inconsistent with a fundamental right though becomes inoperative from the date of 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. They stand for all the transactions and for enforcement of rights incurred during pre-constitution period. If this shadow is removed by an appropriated constitutional amendment the law revives.
- In re: Shenoy case, the Supreme Court held that an Act is eclipsed when a court declares it as unconstitutional, but it revives again as soon as the appellate Court upholds its constitutionality and validity.
- Thus, the impugned law was only eclipsed by the shadow of unconstitutionality. When the shadow was removed by correcting the defects, the eclipse ceased and the law can be enforced.
Is the doctrine of eclipse applicable only to pre-constitution law or is it applicable to post- Constitution laws also?
This question came for judicial review many times, some decision were in favour of pre-constitution laws while others were in support of both laws. However till now there is no any unambiguous judicial pronouncement.
Doctrine of Waiver of Fundamental Rights
- When a person who has right of privilege conferred on him by a statute, contracts away or otherwise intentionally gives up the right of privilege he is supposed to waive the right.
- The question is can a person waive his fundamental rights?
- The matter was considered by the Supreme Court in Behram Vs. State of Bombay. in that case the majority held that the fundamental rights, though primarily for the benefit of the individual, have been put into our Constitution on grounds of public policy for the benefit of general public and in pursuance of the objective declared in the preamble and hence none of them can be waived.
- Finally in Basheshar Nath Vs. CIT, S K Das J observed as follows
Where a right of privilege guaranteed by the Constitutions rests in the individual and is primarily intended for his benefit and does not infringe on the rights of others, it can be waived provided such waiver is not forbidden by law and does not contravene public policy or public morals.
However, Bhagwati J held that no fundamental right could be waived. The Fundamental rights are mandatory on the State and a citizen cannot by his act or conduct relieve the State of the solemn obligation imposed on it.
Conclusion: in light of above cited cases we can conclude that Fundamental rights cannot be waived.
RIGHT OF EQUALITY
Article 14 – Equality before law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Equality before the law: The expression “equality before the law” means the absence of any special privilege in favour of any person and the equal subject of all classes to the ordinary law, i.e Article 14 prohibits unreasonable discrimination between persons. The expression indicates a negative concept.
Equality before the law indicates that among equals the law should be equal and should be equally administered, that like should be treated alike.
Equal protection of the laws: The expression “equal protection of the laws” indicates a positive concept implying equality of treatment in equal circumstances. In other words, all persons similarly circumstanced shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there should not be discrimination between one person and another under same circumstances.
- Equal protection of laws does not mean that the same laws will applicable to all persons. It means the same law will apply to all persons placed in similar situations. It prohibits discrimination. Among equals, law will be equally administered.
Doctrine of Classification
- Article 14 assures equality to all persons before the law. However, this does not and cannot mean that in their application all laws shall be equal to all persons. This is not possible.
- Equal protection of laws guaranteed by Article 14 does not mean that all laws should be general in character and universal in application. It does not mean that same laws should apply to all persons. Varying needs of different classes of persons often require separate treatment. In fact, equal treatment in unequal circumstances would amount to inequality. Therefore a reasonable classification is not only permitted but it is necessary if the society is to progress.
- The power to make classification may also be exercised by administrative bodies acting under an Act of a legislature.
Classification means segregation in classes, which have a systematic relation, usually formed in common properties and characteristics.
Test of Valid Classification:
The Supreme Court of India in State of West Bengle V. Anwar Ali Sarkar enunciated following two test of valid classification:
- It must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the group; and
- The differentia must have a rational nexus with objects sought to be achieve by statue in question.
Rules with respect to valid Classification:
Summary of the principles (Rules) formulated by the Supreme Court with respect to valid classification
Following is the summary of the principles formulated by the Supreme Court while dealing with Ram Kishen Dalmia Vs. Justice S R Tendulkarl:- Laws ought to operate alike on all persons under like circumstances
- Article 14 forbids class legislation, but does not forbid classification.
- Classification must be rational i.e. must satisfied two conditions, namely (a) the classification must be founded on an intelligent differential which distinguishes those that are grouped together from others (b) the differential must have a rational relation to the object sought to be achieved by the Act.
- the Classification may be founded on different basis, namely geographical, or according to objects or occupation or the like
- in permissible classification, mathematical nicety and perfectly equality are not required.
- Even a single individual may be treated a class by himself on account of some special circumstances or reason applicable to him and not applicable to others.
- Articles 14 prohibits discrimination not only by substantive law but by a law of procedure also.
- Burden of proof lie on a person who challenge the constitutionality of classification.
Some cited case laws
- In Ramesh Prasad Singh Vs. State of Bihar, it has been held that Equality is for equals, that is 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 circumstance and condition.
- In Chiranjeet Lal case it was held that singly individual maybe considered as a class in special circumstances.
- In Shashi Mohan vs. State of West Bengal, the Supreme Court had that what Article 14 prohibits is class legislation. But it does not forbid reasonable classification. The classification, however, should not be arbitrary it 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.
- In R K Garg Vs. Union of India, the Supreme Court held that classification made by the Act between persons having black money and persons not having black money is based on intelligible differential having rational relation with the object of the Act.
Article 15 : Prohibition of Discrimination
Article 15 (1) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
The State shall not discriminate against any citizen on grounds only of religion, race, case, sex, place of birth or any of them.
Article 15(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to:
- access to shops, public restaurants, hotels and places of public entertainment; or
- the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
Article 15(3) & (4) create some exception to the right guaranteed under Article 15(1) & (2), these exception are as follows:
Article 15(3): The State may make any special provision for women and children.
Article 15(4): The State may make any special provision for the advancement of any-
- socially and educationally backward classes of citizens or
- for the Scheduled Castes and the Scheduled Tribes.
Relationship to article 14
- It should be noted that Art 15 is limited to Citizens while art 14 extends to all persons.
- The right conferred by clause (1) is available against the State only, while that under clause (2) is available against persons also.
- The crucial word in this article is discrimination, which means making an adverse distinction with regard to or distinguishing unfavourably from others. Another crucial word is only so that if the discrimination were based on some ground not connected with religion etc but with some other rational factor, the discrimination would be valid.
Article 16: Equality of Opportunity in matter of public employment
Article 16 This Article, inter alia, provides as under
All citizens to get equal opportunity
Article 16(1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
Article 16(2): No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
Exceptions: however certain exception provided under Art. 16(3), 16(4) and 16(5)
Article 16(3): Classification in employment as per place of residence
- Parliament may make any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
Article 16(4): Reservation for certain class and its cumulative effect
- The State may make any provision for the reservation of appointments or posts or promotion of any class or classes of posts in the services in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State.
Article 16(5): Religious office
- A law may provide that any incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
Some cited case laws
- In Janaki Prasad Vs. State of J & K the Supreme Court laid down that the expression “backward class of citizens” in Article 16(4) means the same thing as the expression “any socially and economically backward class of citizens” in Article 15(4). In order to qualify for being called a “backward class citizen” a person must be a member of socially and educationally backward classes. This is indeed a new approach and a departure from earlier view accepted by the Supreme Court.
It is necessary that the following conditions be fulfilled before the application of the principle laid down in Article 16(4):
- The class of citizens is socially and educationally backward
- In the opinion of the State the class is not adequately represented in the service under the state.
- In Akhil Bhartiya Soshit Karamchari Sangh (Rly) Vs Union of India the Supreme Court laid down that in the interest of efficient administration, at least half of the total number of posts should be kept open to attract the best of nation’s talent. If it is otherwise, an excess of reserved quotas would convert the State service into a collective predominantly of backward classes. The Court laid down that it was for the State to innovate and classify to weed out the creamy layers of SC and ST.
Article 17: Abolition of Untouchability
Article 17 “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law.
- This is a very significant provision from the point of view of equality before the law. It guarantees social justice and dignity of man, the twin privileges which were denied to a vast section of the Indian society for centuries together.
- As the “Untouchable” is put in inverted commas, it is held that the word is to be understood in its historical sense and not in literal and grammatical sense (Devarajiah Vs. B Padmanna).
- Untouchability does not include social boycott ( Davarajiah v. Padamanna)
Article 18: Abolition of Titles
Article 18 (1) No title, not being a military or academic distinction, shall be conferred by the
- No citizen of India shall accept any title from any foreign State.
- No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the president any title from any foreign State.
- No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.
- The abolition of title did not affect the ten existing titles of the rulers of Indian States, which were guaranteed to them under Article 362 (since repealed). Similarly there is nothing in the article that prevents the universities from conferring honorary degrees, as degrees are not titles.
- It is to be noted in this connection that Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri are awards. They are not titles.
Article 19: RIGHT TO FREEDOM
- article 19 guarantees six freedoms to an Indian citizen. It consists of two parts: the first part declares the six freedoms while the second part lays down the circumstances under which certain limitations on these freedoms may be justified.
Article 19 Protection of certain rights regarding freedom of speech etc.
- This Article, inter alia, provides that
Citizens to have six rights
- All citizens shall have the right –
- To freedom of speech and expression
- To assemble peaceably and without arms;
- To form associations or unions;
- To move freely throughout the territory of India;
- To reside and settle in any part of the territory of India, and
- To practise any profession or to carry on any occupation, trade or business.
State may impose reasonable restrictions
- The State may by law impose reasonable restrictions on the exercise of the above-mentioned rights in any of the following circumstances: -
- In the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
- In the interests of the general public or for the protection of the interests of any Scheduled Tribe.
- In relation to
- the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.
- the carrying on by the State or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, or citizens or otherwise.
- These rights are not absolute rights. In fact, no right can be absolute right. Neither the individual is allowed to enjoy his liberty unfettered, nor is the Government given a free charter to abrogate individual liberty. In a civilized and advanced society, it is necessary to reconcile individual liberty with State control. The power of the Government to limit human liberty must itself be limited, as also the right of the individual to enjoy his liberty. In the absence of such provision on the part of Government, individual liberty itself might come to an end by the action of anti-social persons. Hence a reconciliation of the two (right and restriction) is very necessary.
- The freedoms under article 19 are limited to citizens. Article 19 is available against State action for the protection of freedoms mentioned in the article.
- A detenue cannot be prevented from sending outside the jail for publication, matter that contains nothing prejudicial to the grounds for which he had been detained.(State of Maharashtra Vs. Prabhakar; Fernandez Vs State of Maharashtra)
- Shareholders can challenge the validity of a law on the ground of violation of their fundamental rights and the company may be joined in with proper pleading (Barium Chemicals Vs company Law Board)
- An unincorporated association cannot also be citizen and cannot claim these rights (All India Bank employees Association Vs National Industrial Tribunal)
Criteria of validity of law
- The considerations that generally prevail in judging the validity of a law in the context of the article are: -
- Whether the law imposes a restriction on the freedom in question.
- Whether the restrictions have been imposed by law
- Whether the restrictions are reasonable and
- Whether the restriction besides being reasonable is imposed for one of the specified purposes relevant to the freedom in question as enumerated in the article.
- Each of these conditions must be satisfied.
- Right to freedom of speech and expression (Art. 19(1)(a)):
The freedom of speech and expression under Article 19(1)(a) means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode.
Freedom of speech and expression include:
- Right to make good and bad speech
- Right not to speak
- Expression by sign
- Freedom of press
- Dramatic performance
- Commercial Advertisement
- Right to information
- Right to get reply
- Fly national flag
- In the interests of the sovereignty and integrity of India
- the security of the State
- friendly relations with foreign States
- public order
- decency or morality, or
- in relation to contempt of court
- defamation or
- Incitement to an offence.
- Freedom of assembly (Art. 19(1)(b)):
Article 19(1)(b) guarantees to all citizens of India the right of assembly which includes the right to hold meetings and putting ones views before it or to take out processions. However such assembly must be peacefully and without arms and subject to such restriction as may be imposed by the state in the interests of:
- the sovereignty and integrity of India, or
- Public order
- Freedom of Association (Art. 19(1)(c)):
All citizens of India have right to form association and union or people are free to have the members of association or union entertaining similar views but such freedom is subjects to such restriction as may be imposed by the State in the interest of:
- the sovereignty and integrity of India, or
- Public order
Freedom to form association includes freedom to deny forming association.
- Freedom of movement (Art. 19(1)(d)):
Every citizen of India have right to move or travel throughout the territory of India, this right is not extend to travel abroad and subject to such restriction as may be imposed by the State:
- In the interest of general public, or
- For the protection of the interest of Schedule tribe
- Freedom of residence (Art. 19(1)(d)):
This freedom is with intention to remove internal barriers within the territory of India to enable every citizen to travel freely and settle down in any part of a state or union territory, but subject to such restrictions as may be imposed by the State on following grounds:
- In the interest of general public, or
- For the protection of the interest of Schedule tribe
Besides from that certain area may be banned for certain persons such as prostitutes (State of UP v. Kaushaliya devi)
- Freedom to trade and occupation:
The right guaranteed by clause (g) of article 19(1). namely, freedom of profession, trade or business, is intended to ensure that citizens' right to business does not depend on grant by the State and that the State cannot prevent a citizen from carrying on a business, except by a law imposing a reasonable restriction in the interest of the general public. Of course, there is no right where the business is dangerous or immoral; such a business may be absolutely prohibited or may be required to be licensed. Moreover, there is no right to carry on a business at any place or at any time restrictions may be imposed in that regard. A citizen cannot be compelled to do a certain business.[(Pyare Lal v. Delhi Municipality, (Business on the streets).; Ebrahim v. Regional Transport Authority, (Reasonable restrictions for public convenience; Hathising Manufacturing Co. v. Union of India, (Right not to carry on a business). Lakhan Lal v. State of Orissa,. (Dangerous trade) ]
State may impose restrictions on following grounds:
- The professional or technical qualifications necessary for practicing or carrying on any occupation, trade or business, or
- The carrying on by the State, or by a corporation owned by the State, of any trade, industry or services whether to exclusion, complete or partial, of citizen or otherwise
Some cited case laws
- Test of reasonableness
In applying the test of reasonableness (which is the most crucial consideration), the broad criterion is whether the law strikes a proper balance between social control on the one hand and the rights of the individual on the other hand. The court must take into account he following aspects
- nature of the right infringed
- underlying purpose of the restriction imposed
- evils sought to be remedied by the law, its extent and urgency
- how far the restriction is or is not proportionate to the evil and
- prevailing conditions at the time.
(Chintaman Rao Vs. State of Madhya Pradesh; Khare Vs State of Delhi)
- One of the tests is to bear in mind the directive Principles of State Policy.(Kesavananda Bharti Vs State of Kerala)
- Privileges available to the print media has the following limitations: -
the right to reputation
the right to privacy
the law of contempt of court.
- Freedom of speech is based on the foundation of freedom of right to know. The State can impose and should impose reasonable restriction in the rights where it affects the national security or another matter affecting the nation’s integrity.
- Citizens have a right to know about affairs of Govt. But the right is not absolute. Secrecy can be legitimately claimed in respect of transactions with repercussions on public security (Dinesh Trivedi Vs Union o India)
- The freedom of press is not expressly mentioned in Art 19 It has been judicially construed, this freedom now includes not merely the freedom to write and publish what the writer considers proper (subject to reasonable restrictions imposed by law for specific purpose) but also the freedom to carry on the business so that information may be disseminated and excessive and prohibitive burden restricting circulation may be avoided (Express Newspapers Vs Union of India; Bennett Coleman Vs Union of India)
- The freedom of movement guaranteed by clause (d) of article 19 is in addition to the right to personal liberty guaranteed under articles 21. Orders of externment and internment violate this right unless they fall within the permissible restrictions (Khare Vs State of Delhi; Kharak Singh Vs State of Uttar Padesh)
- There cannot be any right to call or enforce a Bandh, which conflicts with the exercise of the fundamental rights of other citizens in addition to causing nation loss in many ways. Bandhs do not fall within the fundamental right of speech (Communist Party of India (M) Vs Bharat Kumar)
- If a convict is prepared to give an interview to journalists and videographers, the facility should be allowed to the latter. Position of a person sentenced to death is in this respect not inferior to that of a citizen ( M Hasan Vs Government of Andhra Pradesh)
- Trial by media- Questions are often raised as to "trial by media". When a sensational criminal case comes to be tried before the court, public curiosity experiences an upsurge. Newspapers - most of them compete with each other, in publishing their own version of the facts. Some of them employ their own reporters, to unearth details not otherwise available. This enthusiasm is understandable. The thirst for sensational news is a natural human desire. However, investigatory journalism has its risks. The law does not prohibit it in the abstract. But the law does require the players in this activity to keep within certain limits. These limits primarily flow from:
- the right to reputation;
- the right to privacy; and
- the law of contempt of court.
- AIDS- A person suffering from AIDS can be restricted in his movements by law. (Lucy v. State of Goa,)
· Bandhs- The distinction drawn between "Bandh" and a call to general strike or "Hartal" is well made out with reference to the effect of a "Bandh" on the fundamental rights of citizens. There cannot be any doubt that the fundamental rights of people as a whole cannot be sub-servant to the claim of fundamental right of an individual or only a section of the people. There cannot be any right to call or enforce a "Bandh" which conflicts, with the exercise of the fundamental rights of other citizens, in addition to causing national loss in many ways. "Bandhs" do not fall within the fundamental right of speech. A Bandh is a warning to a citizen that he goes for work or opens his shop he would be prevented. Even if legislature does not prohibit them courts should intervene to protect the right to work or right to study; (Communist Party of India (M) v. Bharat Kumar).
RIGHTS TO FREEDOM OF PERSON
Article 20 Protection in respect of conviction for offences.
- This Article provides three important protections :-
A person shall be convicted as per law in force (Protection against ex post facto laws)
- No person shall convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence;
- The person shall not 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.
- The prohibition in Article 20 is a prohibition against legislation, but not against judicial decisions.
- The term 'convicted' implies that the provision is with respect to criminal punishment. The term 'penalty' means punishment for an offence. It does not include any other measures; say by way of preventive detention.
- Every ex post facto law must necessarily be retrospective but every retrospective law is not an ex post facto law. The former only are prohibited.
Article 20(1) does not affect ex post facto law reducing the sentence under the law on the same subject. Such a law must be deemed to have impliedly repealed the earlier law on the topics. In this case the Court has explained the distinction between retrospective law and ex post facto law
A person shall not be convicted twice for the same offence (Prtection against double jeopardy)
- No person shall be prosecuted and punished for the same offence more than once.
Protection of Article 20(2) will be available only if there has been a prosecution and punishment for the same offence before a court of law or tribunal required by law to decide the matters in controversy judicially on evidence and on oath, which it must be authorised by law to administer, and not before a tribunal which entertains departmental or administrative inquiry even though set up by a statute. Similarly, if a law provides two punishments for the same offence, Article 20(2) would not be attracted.
Thus protection of Article 20(2) can be claimed only if following conditions are fulfilled:
(1)There was a previous prosecution,
(2) the prosecution was before a court of law or a judicial Tribunal authorised to take evidence on oath,
(3) The prosecution ended in punishment of the accused, and
(4) The punishment was for the same offence.
- Protection of Article 20(2) is not available if the previous prosecution was vitiated for want of jurisdiction, proper complaint or prior sanction, etc.
Accused person shall not be compelled to be witness against himself (Privilege against self-incrimination)
- No person accused of any offence shall be compelled to be a witness against himself, in other words, an accused cannot be compelled to state anything which goes against him. But this protection is applicable only when all three conditions are fulfilled:
- That he must be accused of an offence;
- That there must be a compulsion to be a witness; and
- Such compulsion should result in his giving evidence against himself.
The Supreme Court laid down that:
- This protection is available only to an accused person.
- An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.
- The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not "compulsion".
- "To be a witness" means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.
- To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made.
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.
- It lays that no person shall be deprived of life or personal liberty except “Procedure established by law” which means a procedure which is reasonable fair and just.
- A person who cannot pay for medical expenses must be given free medical treatment and that, without delay. A person should not be hand-cuffed (after arrest on a criminal charge) except in certain exceptional situations.
- The impact of constitutional provision (protection of life and personal liberty) lies in the fact, that by being elevated to the pedestal of a fundamental right, the right is placed beyond the reach of ordinary legislation inspired by political motives,
- Right to life includes the finer graces of human civilisation: -
- the right to live with human dignity
- right to healthy environment, pollution free water and air, protection against hazardous industries, free education up to 14 years.
- Emergency medical aid, privacy, shelter, livelihood, fair trial, free legal aid.
- Punishment for attempted suicide has been held to be unconstitutional by the Supreme Court on the reasoning that a person cannot be forced to enjoy the right to life to his detriment.
- The expression `personal liberty` has been understood in a wide sense. The Supreme Court pointed out that it “does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personam)
- In Bachan Singh Vs State of Punjab, the Supreme Court laid that death penalty as an alternate remedy for murde