4th January03 January 201309:31 

Distinction between rights granted to citizens and rights granted to persons. Persons includes legal persons, so companies are included. The Fundamental Rights have several restrictions attached to them. These restrictions are then tested for their reasonableness by the judiciary. Article 13-is a negative right. Talks about what the State cannot or shall not do.Rights can be positive or negative. But the rules and the test of reasonableness applies to all rights. All fundamental rights are subject to reasonable restrictions. The use of one fundamental right, may infringe other fundamental rights, thus they all are subject to restrictions. The reasonableness and justness is examined by the judiciary. Some fundamental rights do not mention the State at all (e.g. article 17). So definition of state in article 12 is not relevant to all fundamental rights. So articles like article 17 can be invoked against persons who do not constitute the state. However, the Supreme Court has a mindset that the fundamental rights can be enforced only against the State. They do not take into consideration the subtle differences between the articles. These rights can be made applicable horizontally. They can be applied to private individuals also (e.g. article 17)

 Article 15 (1) can be only vertically applied. It mentions the State. Article 15 (2) can be applied horizontally against private citizens. There is no reference to state in this clause.

 But the judiciary has been conservative and not arrived at this conclusion. They say that Fundamental Rights chapter starts with article 12, so all fundamental rights should be enforced only against the state. But when numerous came up with violations made by private citizens, the court said that it was the state's responsibility to ensure that the violation of the fundamental right did not happen.

 MC Mehta: Doctrine of State Action. If the State has asked a private individual to perform an activity on its behalf, then to the extent of that activity, the individual can be considered a state.

 But courts always try to derive a linkage between the affected party and the state. Treat the state as a benevolent patriarch. This is not required for rights like those given under article 17. why should the façade of the state be erected when it has not been included by the words of the article. The enforcement of fundamental rights will then depend on

whether the party can be defined as a state. If not, then fundamental rights cannot be enforced against them E.g. the BCCI. So there will be no accountability.

 The Supreme Court may also instruct the party to apply to the High Courts, who can use article 226 to enforce any rights, so the problem of fundamental rights being enforceable only against the state does not arise. So the Supreme Court restricts itself to violations by the state itself. When talking about article 18, the state does not come into the picture. (discussing the use of titles and their prohibition) The court will simply ask the person using the title to stop or suffer penal consequences.

 Concept of direct and indirect duty of the state. But this may lead to over-complications. "Expression of one thing means exclusion of all other things"

  

5th January05 January 201310:38 Fundamental rightsRight is any legal interest protected through law or legal mechanism. Violation of such right gives rise to remedy, this ensures the protection of the right. It is based on a moral principle or the legal system's understanding of the importance of the right. The FRs are inevitable in a democratic society. Recognition of the principle that the state is responsible for the protection of the rights. Various intrinsic rights of a human, human rights. These are natural rights. The urge to live with human dignity is a natural inclination. protection of these rights essential to his natural living as a human being.

1. Intrinsic quality of human beings2. Urge for justice-social, economic and political.

Exploitations are resisted by individuals, hence the emergence of mass movements. Arbitrary use of power resulting in injustice to society cause upheaval in society. Need for protection against exploitation. Schemes are started to offset the effect of exploitation.  Greek and Roman civilizations: all citizens to be treated equally, legal system should provide for appropriate legal procedure, punishment which is proportionate to the crime. Without these principles, it is not possible to ensure justice.The Roman legal system had a refined and evolved principles of its own, and the Anglo-Saxon system had its own systems prior to Magna Carta.  

In 1215, we see the emergence of the Magna Carta, the first human rights document in the domestic legal system. It came in the context of a mass movement. Against King John, who used arbitrary powers against the Barons and subjects. The King was compelled to sign the Magna Carta, which guaranteed certain rights. There are various principles in this document. It is the first effort on the part of a legal system to list rights which could be regarded as fundamental to society. It could be called a law as it was framed by the parliament and was assented to by the monarch. There are 63 clauses in this. Clause 39 of the Magna Carta is one of the earliest statements of due process of law principle. It could be done only by lawful judgment of his appeals. Also said that right to justice will not be denied to any person. Right to legal aid and speedy trial should be considered as a part of the due process of law. Fairness in adjudication. Rights to be protected by procedural fairness. But these rights were granted to only free men. It was not applicable to slaves and women. In the 19th century, slavery was abolished in England (one of the wackiest reasons EVER :P English air is so pure that when breathed it frees slaves and makes them free men). Once slaves enter the territorial jurisdiction of England, they are set free. Subsequently due process rights were expanded to include other groups.  Bill of Rights in 1689 after the revolution. It is a landmark document in the course of the history of human rights. There cannot be scope for the suspension of rights without the consent of the government. The principle that the government cannot function without the consent of the governed was developed from this bill of rights.  Excessive bail demanded by courts is unfair under article 21. Petty offences should not have a very heavy penalty. *) Coker v Georgia-imposition of death penalty on rapist is disproportionate.  Act of settlement of 1700. the principles of magna carta and the bill of rights were made applicable. Due process principles should be held paramount over the laws made by the provincial government.*) Dr. Bolham's case-nullification of medical license. It is essential for the principles of natural justice. If the law declares them unnecessary, then the law should be declared invalid if it goes against common law right and reason. The idea of a superior law over the normal legislations.  The Virginia declaration of rights considered that every person is endowed with the basic natural rights which are essential for their development. It is a self evident truth that all human beings are born free and equal, they are entitled to life, liberty and pursuit of happiness. Any law affecting the rights

of the people should have the approval of the legislature. Influenced by the social contract theorists.  Human Rights Act 1998, the latest legislation aimed at consolidating the human rights in England. This does not allow for judicial review, but it gives the parliament an opportunity to reconsider the matter.   

8th January08 January 201311:40 Article by Aravind Dhattar: in Vol 10 of SCC 2012. READ In the Indian constitution, there is a hierarchy between part 3 and part 4 for all practical purposes. This is because one is enforceable and the other is not. When the constitution came into existence, India was faced with the prospect of joining one of the blocs of the cold war. American bloc followed civil and political rights, equality, etc. Russian bloc followed economic social and cultural rights such right to food, water, etc.Two distinctive schools of thought. India introduced both. The American rights in part 3 and the Russian rights in part 4. but the nature of the right in part 4 is that the state must spend money to enforce those rights. There must be a budgetary allocation in order to enforce rights under part 4. there is no need for the state to spend on the rights mentioned under part 3. ICCCPR: mandatory to provide civil and political rightsICESCR: state provides to the best of its ability. It is not mandatory, it is qualified by the best of its ability. Referring to economic, cultural and social rights. Thus FR are enforceable. But DP are not enforceable. If there was no right to clean water/environment, the court does not ask the government to ensure clean environment because it requires expenditure on the part of the government. But social, cultural rights are just present as a checkpost when going to the polls. But this did not come true. Polls were governed by other factors like castes, etc. so DP were sidelinedNow the courts stepped in. asked why the DP were being neglected except in the area of property. Said that if they are unimportant, then why are they present in the constitution. *) State of Kerala v N M ThomasDP like FR are fundamental to the governance of the nation. So SC said DP are also important. Courts cannot enforce FR completely disregarding DP.

 Then came Maneka Gandhi's case. After this all DPs started being influential, starting with the right to live with dignity.DP were being introduced through the right to life and personal liberty. Almost all DPs were introduced through these rights. The relationship and harmony between the FR and the DP is a part of the basic structure (as stated in this case).DP slowly ended up becoming FR (e.g., right to education, now a fundamental right)  Argument that DP if considered so important then it should be specifically included into the FR by amendment like right to education. Do not include them by using right to life. Do not leave it to the judiciary to decide what DP should be a part of right to life. If the enforcement of the right depends on the financial ability of the state, then should it be called a fundamental right?  

9th January09 January 201310:36 The purpose of looking into the history of the rights is to understand the intention of the constitution makers. But the meaning of the rights need not be confined to the original intention. This is because the needs and views of the people change over generation. Thus it cannot be confined to a specific time frame. Successive generations add their wisdom to the development of the constitution.*)Missouri v HollandConstitution to be determined by looking at the original intention of the constitution as well as the needs of the present generation. A constitution is produced by four stages:

1. First the constitutional values are brought into the minds of the people.2. The constitution is framed by the constituent assembly. The aspirations

of the society as they have determined from their interactions. Concretizing the values

3. Filling up the interest axis through constitution amendments. The successive generations will be adding to the provisions.

4. Judicial contribution. It determines various provisions and the silences and the areas which are not properly articulated are brought out. Silences in the constitution are also very important sources on the basis of which the subsequent judges may bring out various principles. E.g. the basic structure doctrine.  

Original intention cannot be stagnate. Thus the scope of the rights must be expanded. If you follow originalism, meaning that follow only the original intention, then you cannot have the growth of the constitution. Progressivism says that the past cannot govern the present, hence the constitution should reflect the value of the present generation. However, there are certain propositions such as dignity of life, rule of law etc. are relevant for all generations. It transcends the barriers of time. Hence these constitutional values will always be present in the constitution. The genesis of constitutional values in India can be traced back to the Vedic times.  In *)Dred Scott case, the SC thought that slavery was not prohibited in the constitution.Right to equality was not included in the first 10 amendments. It was introduced after 70 years through the 14th amendment.The American Constitution did not original have any provision relating to rights. Rights against the federal government were made available by the first 10 amendments. After the 14th amendment, they realized that the rights should be applicable against the state governments as well as the federal government. But judiciary thought that only racial discrimination should be covered. So the 19th amendment was brought in to handle gender discrimination.The court also said that if equal facilities are provided, then racial discrimination is not present and it confirms the right to equality. This is a very narrow interpretation. *) Plassey v Fergusson. The minority judgment on the other hand, said that the constitution is colourblind. This proposition of separate but equal was overruled in *) Brown v Board of Education-in matters relating to public matters, there is no scope for separate but equal. This is because separate but equal is in itself unequal. *) A K Gopalan-right to life. A valid legal procedure can be used to take away life or liberty. There can be no inquiry determining the fairness of such procedure. Life only meant physical human existence. Vegetative existence included *) Maneka Gandhi-overruled the above. Said that the procedure should be fair just and reasonable. Only if the procedure fulfills the above criteria can the procedure be used to curtail life or personal liberty. French declaration of the right of man in the revolution is also important. Assertion of rights against the feudal lords. They were declared by the National Assembly in 1789. wanted to emphasis on equality over liberty. But in India they are on an equal footing.  UN Charter has specific provisions for protecting human rights as a method to prevent war.

The justification for human rights is that it is necessary for justice and peace in the world. Inevitability of human rights for peace and justice shown in the declaration of human rights. It is not a treaty, it is based on the values around the world.  Convention on eradication of discrimination against women.Convention on eradication of racial discrimination.Convention on the rights of the Child.The judges refer to the principles in these conventions. E.g. *) Vishaka v State of Rajasthan-relied on the principles in the first convention to lay down guidelines relating to the problem of sexual harassment at the work place. The court was acting on the basis of the Universal Declaration of Human Rights as well as the first convention (Convention on eradication of discrimination against women). In the course of interpretation of rights when international covenants can also be used, then it is the responsibility of the court to implement them. Before this, the view was that the covenant must be specifically made binding on the courts in India other wise it cannot be regarded as the law of the land. This view was changed in this case.  The Bangalore DeclarationThe Commonwealth judges arrived at a conclusion that it is the responsibility of the municipal courts (domestic courts) to implement international human rights conventions.Article 51 DP-foster respect for international conventionsThus not only part 3, but part 4 is also a source of human rights *)Neelavathi Behra v state of Orissa-SC developed the principle of compensatory remedies in case of deprivation of human rights. Developed on the basis of article 11 of the convention of civil and political rights. Right to compensatory remedy could be considered to be a part of article 32, it is inherent. The new dimensions of the article was got from these international covenants

*)Valsamma Paul v Kochi InstitutionAlso used international convention on civil and political rights *)Chadrima Das v Indian RailwaysRight to receive compensation. Right to life to all people and not just citizens. American war of independence stood for the self evident truth that life liberty and pursuit of happiness is the inalienable right of society. If the government cannot protect those rights then the people have the right to get rid of the government. 

Thomas Payne-all men are born with equal natural rights. Referred to by President Obama during his swearing in.   In Golaknath, the SC said that Fundamental Rights are the modern day versions of natural rights. These rights are enforceable against the state. But some rights are available against private individuals too. e.g. right against exploitation. Rights under article 15. unfair discriminations are prohibited under article 15(2).    Indian Experience with FRThere is a view that human rights have been imported from the West. This view is wrong. The earliest notions of human rights, due process principles, protection of life and liberty were recognized from the earliest times. Ancient India believed in basic human duties, rather than basic human rights. Abiding by Dharma, which stands for the best practice, the highest good and the welfare of all. No scope for deprivation of life. There are a no. of propositions on equality. On the basis of property, said that a person's economic right is based on his labor. Kautilya: arrest can only be made on the basis of investigation. No self incrimination allowed. Religious freedom was recognized. There are no accounts of religious wars in ancient India. But in the colonial period, there was a negative and positive influence. Negative-starvation, exploitation of farmers, repressive measures against freedom fighters. Positive-social reform legislations against sati, female infanticide. Gradual inclusion of due process jurisprudence due to the development of codes of procedure. These constituted the basis for the constituent assembly's discussion. The constitutions given by the British did not have a specific guarantee of rights. They felt that there was no need to catalogue the rights, any attempt to do so with truncate the rights. It is the parliament's duty to self restrain when framing laws. But this is not possible in India.   

11th January11 January 201311:41  Evolution of fundamental rights in constitutional lawLokmanya Tilak felt that freedom is a birthright. It is a natural right. Natural rights are not given by the legal system, humans are born with them. State needs to guarantee those rights, basic rights, balance between equality and liberty by applying the principles of fraternity. It establishes social harmony, and allows human dignity to flourish. Dignity is an important

concept which asserts the respect of a human being. It is the basis for various rights, unalienable rights, e.g. right to privacy.*) Nandini v State of ChattisgarhState has no power of inflicting certain inhuman situations or cruelty because of which humans may lose their lives. It is the responsibility of the state to develop economic policies to alleviate the dignity of the individual. Bhagat Singh on revolution-it is not a bloodbath. It is a situation in which the oppressed classes will be protected from exploitation. The state has the responsibility of protecting the rights. *)Bhanumati v state of UPUsed Bhagat Singh's view. Constitutionality of UP Panchayati Raj Act. This act was upheld by the SC. Article 51 A(b)-citizens have the fundamental duty to abide by the values and ideal for which the freedom fighters had fought. This duty is relevant in interpreting the constitution. Intention of constitution makers is gleaned from the constituent assembly debates. There is a need to understand the extent and the way in which constitutional documents can be used in constitutional legislation Constitutional documents: e.g. british given docs-all the historical acts like govt of india act 1935, etc. none of these docs had any reference to fundamental rights. Because it was felt that constitutions should develop an efficient governance. Democracy itself protects rights. The people's hearts must have them. It should not be recorded on paper. Rights to be protected under the stewardship of the parliament, no need to protect these rights against the parliament. However certain provisions relating to non discrimination in matters of employment, freedom of religion etc. find mention in the act of 1935 1895-specific list of fundamental rights, influenced by the French. The bill of rights.1925-preparedunder the influence of Amy Bessant and Gandhi. Has provisions for guarantee of rights1928-Nehru Committee Report. Alternative to Simon Commission. 19 FR. Right to education, health and work as enforceable rights along with other rights such as right to equality, etc. socio economic rights were given importance as well as civil and political rights. No distinction between the two groups of rights. Reference is made to this report in some judgments relating to the position of part 4 with respect to part 3. *) Minerva Mills Case-should part 4 prevail upon part 3 as a whole? Because protection was given to enactments enforcing article 39B and 39C which used directive principles. The 44nd amendment extended this protection to ALL DP, so this caused an imbalance. Said that part 3 and part 4 have a common genesis in the Nehru

Committee Report. Both are important and are mutually supplementary. They are equal.  *) state of Madras v Champakam Dorai RajanViolation of right to equality. Caste-based distribution of medical seats on the basis of population of each caste. The govt said that this scheme is promoting the interests of backward classes of people. SC refused. Said that selection of candidates should be on merit. Population of caste is not the right to criteria. At that time there was no article 15(4). So the SC said it violated right to equality. But under article 46 DP, it says that the state would promote the interests of the backward classes of citizens. So clash between FR and DP.Article 46 cannot be given effect because DP are not enforceable but FR are. So, part 4 is subservient to part 3. this was orbiter. However it influenced the viewpoint of the courts untill 1973 or so when they were regarded as equal. The basis for declaring them equal was the Nehru Report.  In AK Gopalan's case, the SC used the assembly debates to determine what is meant by procedure established by law as under article 21. the assembly members said that they should avoid use the phrase 'due process of law'. Ultimately justice is to be promoted.  The US SC nullified several welfare legislations on the basis that it goes against the property rights of the landlord, etc. this is substantial due process.  But in India, they look at whether the law itself is meritorious.   In AK Gopalan, the preventive detention law deprived the liberty of a person. Did the legislature provide for a fair, just or reasonable procedure. Because ultimate goal is justice. So should the law that is unjust be held invalid? It does not have the same attribute as due process of law. Courts are not bound by the constituent assembly debates. It is used to understand the intention of the framers of the constitution. Growth of constitution cannot take place if we merely stick to the intention of the constituent assembly members and their views. There should be a method to incorporate new idea. The debates are used at the discretion of the constitution. *) Maneka Gandhi-constitution does not choke judicial discretion*)Aruna Roy v UoI-govt wanted to bring reform in the educational system. New syllabus for primary and secondary education. It regarded that school curriculum should have a component about religions. Imparting of knowledge about religion. It will enable the children to understand different religions and

develop a sense of tolerance. This was challenged through article 27-imparting of religious instruction. Is it the same? DR. Ambedkar made it clear religious instruction does not include knowledge about religions. It will not influence the mind of the child, and will bring social harmony. The majority judges refer to this view point elaborately.' *) Indra SahwneyIssue relating to extent of reservation that would be made available. Reference to views of Ambedkar. If reservation is made up to 70%, it goes against the first principle of equality. Supplementary principle cannot oust the fundamental principle of equality. So only in the minor, that is, 50% reservation is allowed. Reservation cannot be excessive.  Right to property-reference to the debates would have developed the right in a more appropriate manner. The debates stated that the right would be within the framework of economic justice. The right to property cannot have an overwhelming say over the enactments meant for economic justice. But SC and HC were in favor of providing greater protection to the FR to property and thus as many as 16 amendments took place and thus finally it was removed from part 3 and made a constitutional rights.  Reference to the debates was made however when the court was deciding the extent of an individual's liberty. We need to go beyond the constitution and look at constitutional documents as well. The tendency of human rights is that they tend to expand.The difference between fundamental rights and human rights-human right is any right to life, liberty, equality and dignity guaranteed in the constitution or enumerated in international conventions and protected by the courts. Fundamental right is a set of rights that are available primarily against the state, but can be used in some circumstances against private individuals. It is fundamental, basic and so essential that it is inalienable.  The growth of secularism is clearly seen in the views of various scholars as well as in various events that took place before the commencement of the constitution. It was adopted in the midst of anarchy. So the provisions reflect the need for enormous powers in the hands of the government to protect peace and tranquility. Hence we see provisions relating to preventive detention, etc. There must be enumeration of the restrictions to the rights. There should be proper guidelines.   

12th January12 January 201310:39 

Jurisprudential Dimension of fundamental freedoms guaranteed under the constitutionOne set of views is that every human is endowed with the capacity to develop his personality. All facilities should be used for the purpose of self improvement. It is along with the growth in the society. What is the purpose underlying the fundamental rights? The purpose is that there should be promotion of individual perfection and purpose. This is the principle of Teleogy. It is to be carried out through the means of rights. It is the demand of god that humans attain perfection (I'm sorry, WHAT? :P) Humans are able to rationalize and logically think. He is not governed by pure animal instincts. Society has to frame moral principles so that it will lead him to a perfect morality. Every human is a rational, moral being. (Why is this turning into a discussion on religion? :P) highest good of the society is to be attained through rational choices.Utilitarians believed in the maximum happiness of all. They believed the above ideas are mainly imaginary and cannot be utilized (I'm not sure if this is what he said :P) Each individual should frame his conduct with the intention of maximizing public utility. Thinkers include Jeremy Bentham, etc. promotion of happiness and lessening of pain and not on the basis of god given rules. Some say human rights should be examined from the angle of duties. Justification for various rights on the basis of duty. When all humans perform their duty, rights get protected automatically. Assuming all are rational, equal beings. Rights get protected by the performance of duties. It is from the angle of duty that the case for rights could be firmly established. The only right available is the right to perform the duty. This was the view of ancient Indian thinkers as well. Each individual as a duty towards one's family, society, god, etc. duty to promote the highest good and perfect situation. So Good Law or Dharma is to be upheld and economic choices and personal choices should confirm to the highest good or Dharma. Each individual should have adequate information about his duties. Gandhi said that the right we deserve and preserve comes from duty properly performed. Emphasis on duty, the fallout will be the protection of the rights of all. A method of ensuring better protection of rights. Thinking about social happiness and harmony rather than the individual. Foundations for human rights. These rights apply everywhere. Irrespective of cultural differences, they stand at a higher pedestal. They are known as trumps (reference to playing cards), it prevails over everything else. So we have special justification for them. Universally all political systems recognize the importance of those rights. Thinkers like Ellen Gevitt.As a rational moral agent, every individual has the right to maximize his or her freedom. This view is similar to that of Emmanuel Cant-act in such a way that your conduct is the basis for the conduct of others. Behave in such a way that others also behave in an ideal manner towards you. Autonomy, liberty and welfare are the components which enhance the equality of man.

John Rolls considers that at the original stage the individuals acted as rational agents and they rationally chose those types of norms which are taking them to ideal way of life. People are free and independent and their freedom and independence should be respected by others. Each nation has the responsibility to ensure that it respects and enhances the rights of all. Scope for international intervention for humanitarian cause is possible. (do we need to know all this? Darn Jurisprudence :P) inclination to basic necessities that make life possible. As a human, he finds it necessary to have a family, privacy, children and make intimate decisions relating to private life. Inclined to assemble with others, express his views, involve himself in economic activities. Inclined to profess and propagate a religion. Basic inclination of every human to claim for justice. It is the spontaneous demand from a human. Methods of ensuring this is the principle of fair trial, fair administration of criminal justice. Due process protection of life and liberty. A human right or fundamental right is basically a right. Characteristics are:

1. Person of inherence. Right is vested in some person. Can be a citizen or a natural human being or an artificial being also. Fundamental rights under the constitution have been granted to artificial persons as well. Rights under article 19 are reserved for citizens. It cannot be used by aliens or companies. So a newspaper company cannot use freedom of speech. But now the view is that each of the shareholders of such a company can claim this right. Article 21 can be enjoyed by natural human beings only.

2. Person of incidence-against whom the particular right is available. Against the state. Sometimes there is no reference to person of incidence. In these cases the . Some rights are available against individual private citizens as well. e.g. untouchability abolishing. Is article 21 available only against the state? This is not clear. It has not been specified that the deprivation must be by the state.

3. Content of a right-can be positive or negative.4. Title-each right is based on some title. On what basis is the right

granted? Which Article or Act? The right can be traced to a specific law or article.

5. Subject to certain exceptions, restrictions and limitations. No right can be regarded as absolute. Abuse of a right may cause injury to others.  

*) Srimathi Vidhya Narayan caseDetention of a woman by another person who expected to marry her. The Woman went to SC under writ of Habeous Corpus. Can the SC issue under this circumstance? The SC said that the remedy can only be claimed against the state. Because of the phrase procedure established by law. HB cant be given under article 32 for private detention. But you can claim under article 226 where the HC does not deal with FR alone by using these writs.  

There was a change in the 1980s about the scope of article 21. detention of the wife by husband or by other person who sought to have control over her. Writ of HB was given. The younger brother detained two daughters of the deceased to force the daughters and the mother to compel them to agree to an undertaking that the property will devolve on him alone. HB was issued in this circumstances and it deviated from the earlier case's approach.  Expanding the first two characteristics enhances the efficacy of the rights. A state is a body that includes all political authorities. So that rights can be claimed against them. Definition of state has expanded over the years.  In order to know the scope of these rights, it is important to look at the analysis made by Hohfild.Facts of rights and their Corrolatives:

1. Right and duty-There is duty to exercise the right in such a way that the rights of others is not violated

2. Liberty and no right-unrestrained area of free action. Right to associate includes right to not associate. So there is also a right to not be compelled to join any association. Liberty is a situation where others have no right to intervene. Autonomy. Other person has no right to intervene. It is possible to have diagonal relationships. Liberty in one means others have duty to not intervene.

3. Power and subjection-power is expressed in terms of autonomy.4. Immunity and disability-FR in the form of immunity against self

commission and discrimination. The state is disabled from discriminating or intervening with this immunity.

Each facet has a counterpart. 'Right in me'. Concept of corrolation means that every legal interest is connected with the legal interest of others. There is duty to exercise the right in such a way that the rights of others is not violatedThese theories find mention in several judgments like those of Justice Krishna Iyer, etc.    

15th January15 January 201311:47

Hofield's analysis.(look at previous day's notes) gives us a clue as to how to analyze fundamental rights This analysis becomes important when trying to determine the extent of the fundamental rights. Rights impose duties on the state. Has a duty to not interfere with minority rights, personal liberty of incidents etc. Freedom to speech and expression, etc. No other person has any right over the individual. In other words, no one has the right to interfere with your freedom (of speech and expression in this case). Liberty in me means an absence of duty in me as well. Right in me also means absence of other's right to interfere. Abuse of liberty shall be curtailed, but not liberty as such. So government can impose such restrictions. Duty of no abusing liberty or right acts as a restriction upon such liberty or right. Each right has various facets. E.g. freedom of religion has freedom of conscience, freedom to profess and propagate. But if conversions take place through fraud or through illegal enticement, then there is violation of freedom of conscience.

Justice AN Ray in *) Rev. Stainislaws v state of MPExamined an legislation against forced conversion by fraud, etc. and said that such legislation is in accordance with article 25. it protects the freedom of conscience.  Between power and subjection. Fear of public power. Power is the ability to alter the legal positions of others. For fundamental rights, autonomy for individuals has a component of power. Subjection of others to the application of power. Subjection is a liability. Many rights act as injunctions. E.g. right against discrimination. Immunity. Article 20-specific immunities. State is under a disability from violating my right to equality. Immunity on the part of individuals can be found in situations of specific liberties like right to privacy, etc. these are not water tight compartments.  Some article are principles, they create the scope for the generation and protection of those rights. Title to the right cannot be traced through the article. It must be through a specific legislation or act.e.g. article 23. the rights given under this article are through specific legislations. The article itself contains only the principle.  Some scholars feel that all these 6 components should be integrated together and that you should always start with 'duty.' *) Saifuddin SahebA religious community has a small amount of denomination to maintain discipline. Individual's right to freedom of religion is subject to the collective right to freedom of religion. Minority judgment held that the legislation had violated individual freedom (something about people being excommunicated by a Muslim religious group) *)PMA Metropolitan v Moran Mar MarthomaMalankara Association was a church. It has excommunicated someone for an act of discipline. The SC ruled that in the absence of a fair procedure relating to excommunication, any kind of order relating to excommunication cannot be regarded as appropriate. Asked the church to frame elaborate norms as to the circumstances in which excommunication can take place. Provides for moral rational standards as compared to the previous judgment. Should protect individual right from arbitrary orders.  Ultimately the courts decide. Essence of Religious rights (rites?) test. Essential tenets which are required for the survival of that religion as a religion itself. But if it amounts to civil disabilities, then the procedure must be fair.

 

 

 

  

16th January16 January 201310:38 Problem arising out of multiple liberties. Liberty of individual and liberty of the group. Multiplicity of rights operate together. So the relationship between certain right and interest shall have consequences of mutual balance and control on one hand and mutual support on the other hand. The principles about the relationships between various facets of rights have their own.  Preamble framework which had guided the interpretations of the fundamental right. It is a grand design about the planning of the whole constitution document, its philosophy and values. Value is any principle that can be regarded as valid by society. The values of the constitution are interrelated. Explains the character of the state. It also gives the form of government that is to be established in the state. Democratic suggests that there will be no arbitrary use of power and that there will be rule of good law, not merely law. *) AK Gopalan v State of MadrasAbout preventive detention laws. Was this constitutional? Challenged on the basis of article 21 and the preamble. So can you take away liberty by any law? Should it confirm to the requirements of democracy and justice? The

preamble can give a guideline on what sort of laws ought to be framed. The majority did not agree with this argument. They said the preamble is not an authentic provision for the authorization of power. It is only a general statement about the overall aims of the property. It cannot be said to give a provision about how laws should be framed.  The constitution is not for the mere purpose of defining power. It was also meant to reform society (?). The Indian constitution was made in the context of bringing a democratic government to the country. It was based on the lessons learned by freedom fighters. Identification of those values as supreme or paramount was seen during the making of the constitution. Rosco Pound had the view that law is not a mere legal rule. Some of the principles can also be regarded as having the character of law. Some of the policies could also be elevated to the status of the constitution. A policy can be explained as a goal of the community, to bring welfare to the people. It provides a leeway to the power holder to choose between alternative methods of achieving the goal which has been set. Policy leads to diversity of approaches. It depends on the economic strength of the country. But when it comes to principle, it is definite. It is a statement of a proposition for the recognition of some right or imposition of some obligation. A constitution recognizes not only principle but also policy. It is essential to have some amount of value loading in the constitution. It is essential to give an identity to the political entity it is adhering to (not sure if this is what he said).  The constitution should confine itself to stating only legal principles? But it also states several moral principles. It should be a source of inspiration to guide the nation. The word 'socialist' in the preamble could influence judges.*) DS Nakara v UoIUnion Government had differential pension policy. Court had to examine its constitutional validity. In a socialist state it is the responsibility of the state to eliminate differences. Socialism can be of several types. No definite definition. But it is gathered from various principles of DPs. So economic justice is one of the principles of socialism that India must follow. The SC thus nullified this policy and the preamble to the constitution provided some input to the interpretation of the constitution.  Secularism was used in *) SR Bommai v Union of IndiaIt is freedom of religion that needs to be protected. Ismail Farooqui v UoI-RamJanmBhoomi case. Aruna Roy v Union of India-instructions about various religions does not constitute religious instruction Some of the provisions are vague. The convenience of vagueness.

Indra Sawney v UoI-SC said that reservation in the matter of promotions is not justified. Also reservation cannot exceed 50%. Individual justice should also be protected as well as social justice.  So 16(4)(a) was added. In case of SC and ST, reservation in promotion is a rule. This was interepreted in *) Ashok Kumar Mathur. It said that though reservation may be valid, it does not give consequential seniority. So there was another amendment to bring this in. this was challenged in *) M Nagraaj v UoI. It said that it is in confirmation with the basic structure. However the need to bring reservation in promotion should be stated by the government. It must give adequate compelling reasons for such reservation.  Earlier practices of providing reservation in promotions (Devdasan case and Rangaswamy case) was overruled. Concept of social justice will not have definite content or unchanged principles. It will change from time to time. Fraternity is employed to balance between right and liberty. It is a rich concept which provides inspiration*) Nandini Sundar v State of ChattisgarhChallenged the policy of the state to fight the naxalites through SPOs. These SPO were temporary employees from tribal communities. They were not well trained and their careers were not ensured. Their salaries were also lower. So there was exploitation, and use of tribals against another section of society and dehumanization of citizens. Reference to concept of fraternity:

1. Avoidance of any kind of dehumanization. If a state has such powers, it is not in accordance with fraternity.

2. In order to promote fraternity, there should be some comprehensive schemes to promote the downtrodden sections of society. Should launch economically and socially inclusive policies

3. Protecting the fundamental rights.   Concept of dignity. It essentially means respect for the individual in order to enjoy a position of respect. He should have self confidence and self respect, this can be got only when others respect him. This is the basic element of liberty. Dignity is a rich resource for culling out various facets of rights which are unnamed such as right to privacy, etc. dignity is the basis. There is growing reference to dignity as the basis of human rights. It is difficult to determine what is the master key for all types of rights: it can be dignity, fraternity, etc. it needs the application of various concepts.

  

18th January18 January 201311:42 Fundamental dutiesThrough performance of fundamental duties there would be better environment for enjoyment of fundamental rights. Introduced by the 42nd amendment. The benefit of looking into fundamental duties was realized by the courts.Under article 51A-duties are diverse in nature. IMP duty: to abide by the constitution. People's respect of the constitution is the most effective method upholding the constitution. The idea of composite culture is also found through the mixing of several sections of society. Multicultural society has emerged. These are duties prescribed on citizens. 51 A (g)-repeatedly used by SC for building up principles for environmental protection. Article 21 also interpreted to include right to clean environment. So to carve out a right to environment out of 21, 51A(g) was used. Right to environment was held to be a fundamental rights. Pollution pays principle.  If there is reservation, does it come in the way of attaining excellence? If you use reservation, then you may lose out on meritorious candidates, so how will you get excellence? *) AIIMS Students Union v AIIMS 2000Justice Bhagwathi said that Fundamental Duties are not enforceable but are a valuable guide to the interpretation of the constitution. Court said that you cannot have reservation at super specialty institutions. If it accommodates people with less merit, then it goes against the spirit of excellence. The interest of merit should be taken into consideration when considering admission into educational institutions. So you cannot have reservation of more than 50%. Society's interest on one hand and the interest of disadvantaged sections on the other hand was balanced. Society's interest in having efficiency and excellence is harmed when there is reservation. So it must balance between interests.  Part 4 of the constitutionIt lays down the policy. However, we must make a distinction between principle and policy. Ronald Darkin made a distinction. Roscoe Pound also considered that a legal rule is associated with other concepts like morality and social aspirations. Law cannot be confined to enforceable legal rule. There is no such thing as eternal law,. There is only eternal goal of promoting perfection in human development. Legal rule is not something

dependent on enforcement. A norm is law only if it is enforceable through sanctions. This was the view of John Austin. Pound, on the other hand, was a bit more liberal. He included social aspirations and moral standards of society in the field of law. Pound said principles are propositions which lay down certain rights or impose restrictions. policy is a statement of a collective goal of community welfare. As far as Directive Principles are concerned, they are policies which are based on certain principles. Irish Constitution used the word 'Directive Principles of Social Policy' . In India, these are addressed to the state rather than society, so they are known as Directive Principles of State Policy. It is fundamental in the governance of the state. Some members of the Constituent Assembly were uncomfortable with the contents of the Directive Principles. They felt it was more in the nature of a election manifesto. State has to make laws and has the responsibility of enforcing them. These operate as guidelines to the state. Government of India ACT gave the Governor-general the right to issue instruments of instructions. Making the Directive Principles enforceable in a court of law is practically impossible. There should be certain amount of flexibility in implementation of socio- economic rights as they are dependent on the economic development of the country, which is difficult to have when they are enforceable by a court of law. Because the state may not have the capability to enforce the Directive Principles. So the enforcement should be a political and legislative decision. Part 4 is a source for various principles. Directive Principles are fundamental in the governance of the state. It is futile to have a set of statement which reflect the aspirations of society but are not enforceable. This was rebutted by saying that they are in the form of instructions to society. They give the standards for governance. Operation of political sanction if not legal sanction.  When law is enacted, a policy gets converted into a principle itself. Article 39A-equal remuneration to both men and women. Right to livelihood. The judiciary is not in a commanding position. it is the duty of the legislature. There is emergence of a legal principle with the establishment of a law, which in turn finds its basis in policies.  The term state is to be understood through article 12. The judiciary is also a state and thus must implement the Directive Principles wherever possible.  Article 37-duty of the state.

*)Keshavananda Case: Judiciary has the responsibility of implementing the directive principles.  

If part 4 is repealed, is it in violation of the basic structure? Servai and other positivist thinkers believe that the absence of Directive Principles makes no difference as they are not enforceable. They cannot be regarded as law. If it is examined from the angle of social engineering, then enforceability is not the test to determine what is law. There are other provisions, such as constitutional conventions, which are not enforceable but are still highly important. If enforcement is the test, then many provisions of the constitution should be excluded from being treated as constitutional provisions. So it should not have such a narrow view. So Directive Principles should be treated as fundamental in the governance of the country. All parts of the constitution should be treated as equally enforceable. No part can be sidelined or treated as unimportant. Directive Principles are not inferior to any other part of the constitution. The approach of the judiciary in the beginning was to give part 4 a lesser position and part 3 was given more importance over part 4.   Phases of development:

1. State of Madras v Champakam Dorrairajan Said the Directive Principles are subordinate to part 3. they are not enforceable. This was in relation to a communal government order. Distribution of medical seats according to populations of castes. Govt. said it promotes a principle under part 4. article 46. the argument against was that it goes against FR to equality under article 14 and 15. also article 29 (2).

I have no idea what is going on in this class :/. Just look things up later if needed. I keep missing things he's saying :/.   

21st January21 January 201311:43 

Stanford Encyclopedia on Philosophy-use for simplistic explanations of all those wacko philosophies that he talks about in class.  Directive PrinciplesServai said that something is a law only when it is enforceable. So he would not apply the Hofieldian Scheme. The Irish Constitution said that the Directive Principles were non cognizable. The court cannot take them into considerationIn India, the courts cannot enforce them, but can take them into consideration.

In South Africa, both Fundamental Rights and Directive Principles are enforceable. But Civil and Political rights are enforceable per se. Economic and Social rights (Directive Principles) are enforceable up to the capacity of the state, margin of appreciation. The state will get the benefit of the doubt.  Right to health-what are its spinoffs? State may say they cannot perform the operation because of burden on exchequer. So when the citizen goes to court, the court asks the government why they’re not. So state says that if we conduct this operation then we wont have the resources to help the rest of the population. So if the court finds that the reason is justified, then the court will let the state off. If the reason is not satisfactionary, then the court can enforce the right. This is where you can still draw a Hofieldian analysis according to Servai. Thus this cannot be done for the Directive Principles in India.  Directive Principles are not even laws as they cannot be mandated by the courts.  The trajectory of Directive Principles. From being absolutely no enforcement to being somewhat enforceable.   Mohammed Haneef Qureshi caseAbout Bihar bill which prevents cow slaughter. Court looked at various aspects of religion and held the bill to be unconstitutional. One of the arguments was that it was a directive principla. The court said that these are not enforceable and thus since it violates Fundamental Rights it is unenforceable. This case has been largely undone in MM QureshiCow slaughter bill in Gujarat. This was upheld as constitutional because of directive principles being fundamental to the governance of the country. 6-1 judgment (6 vegetarians :P :D)  So looking at the trajectory, there are phases about the importance of Directive Principles. From inconsequential to relatively more important.  *) University of Madras v Champakam Dorairajan (VIMP CASE)Earliest Constitutional Law case. State of Madras passed a Communal government order saying that they would reserve seats for SC and ST in medical colleges. At this time there was no article 15(4). SC said this is unconstitutional as it violates equality. Govt. Argued that it was in pursuance of article 46 which is a Directive Principle. But SC said it is a

Directive Principle, Fundamental Rights over-rank them. Directive Principles are unenforceable. So for the early SC, not cognizable and not enforceable was equated. DP completely disregarded.This lead to 1st amendment which brought in article 15(4). *)Mohammed Hanif Quareshi v State of BiharCourt looked at only Fundamental Rights chapter. Willfully disregarded the Directive Principles chapter. Said that the Directive Principles are not laws so they cannot be enforced by the court.  Gradually, it was felt that complete disregard for Directive Principles was not beneficial. There was a shift (because judiciary shifted? Or because the govt. started to enforce some Directive Principles over Fundamental Rights? This was an discussion between the two teachers :) )the govt. found article 39B and 39C becoming important for achieving social justice. So now the court had to take the Directive Principles into consideration. So said that even Directive Principles are important. They cannot be brushed aside. So the courts started with observations that Directive Principles are also important to the governance of the state.  State of Kerala v NM ThomasReservation case where they said Directive Principles are also important Keshavananda caseUpheld the 24th and 25th amendment which gave 39B and 39C precedence over article 14. so Directive Principles could completely disregard certain fundamental rights. This opened a floodgate Maneka GandhiRight to life was expanded. They started reading Directive Principles into right to life.  Minerva MillsParliament tried to expand the law saying that not just 39 B and 39C but any provision in part 4 is more important than Fundamental Rights. The SC disagreed.SC said that Directive Principles are important but they cannot completely disregard Fundamental Rights. So harmony between enforcement of Directive Principles and Fundamental Rights is a part of the basic structure 

This harmony is what makes Directive Principles important. Thus they cannot be just brushed aside. They can be made enforceable by legislations, constitutional amendments, judicial precedents, etc.   Enormous shift in the way the phrase 'other authorities' is interpreted in article 12 because of the way lawmaking is becoming decentralized and privatized. Changes in jurisprudence seem to bring about changes in society and vise versa. Textbook for classMP Jain.

 

Extra class 21st January21 January 201315:05 Fundamental rightsSome Fundamental Rights are enforceable against individuals as well. So should state be irrelevant?No, as some rights are enforceable against the state. So the definition of who constitutes the state becomes very important. Especially in the era of PPP (Public Private Partnership). When the private party begins to violate a right, then can the FRs be used against them? Are they 'state?' Article 12: Definition of stateThe problem lies with the phrase 'local and other authorities' within the territory of India. But if defined too broadly, then every single authority, like a company, another individual, etc., in India is a state. However, to make the application of Fundamental Rights practicable, they have devolved a complicated jurisprudence.  *) State of Madras v Shanta BaiCase of the 1950s. Can a person be deprived of his property by an individual? Also claimed certain Fundamental Rights protections. The courts were also firm that Fundamental Rights can be invoked only against the state. SC said that Fundamental Right is available only against the state. Then she argues that the individual is also a state. Then the court applied the rule of Ejusdem Generis. If specific names are given, then the general part must also be of the same nature as the specifics. There must be a linkage.Ejusdem Generis (of the same nature or similar kind)Govt. of India, Parliament, Legislature and government of the states. So the 'other authorities' must be a govt. authority according to the rule of EG. Only

govt. departments and authorities could be constituted as state. Only those bodies which perform sovereign functions could be called state. IFCI-first development financial institution. In 1996, it was reconstituted and was opened to the market and its shares were listed. Now it's IFCI Ltd. Initially, it was state as it was a branch of the govt. but is it state now? Against a public servant-enforceable? Can complain against the person. If you pursue Fundamental Rights route, then the state can say that it will conduct a departmental inquiry.   But this definition is unclear. Can you invoke it when the officer acts in a private capacity?  Then they started liberalizing the definition and included other institutions as well.  State was defined in article 12 mainly for its use in part 3. the more broadly you define state, the more the scope of article 32 is expanded.  A private company may be state by the use of transferred authority only for the purpose for which it has been appointed by the state. The authority must be vested by the state.  *) Electricity Board Rajasthan v MohanlalIn this case, the SC said that to be other authority, you need to be a body created by a statute. You need not perform sovereign functions. Any statutory body is state.  *) Sukhdev Singh v Bhagatram (1975)The question was about the IFCI, the LIC and the ONGC. Are they state? By 4-1, the SC said that they are state. But their logic was different. 3 judges (CJ Ray, Chadrachur and Gupta) said that these are created by statute and have statutory power to make binding rules and regulations. They are also subject to pervasive government control. These three reasons together make them state. They laid down a test: control test? (:P) Government control becomes very important. How extensively the government can exercise control. Justice Mathew gave a separate test: whether the function the institution is performing is public service and whether this corporation is instrumentality or agency of the state.Justice Alaigiriswamy dissented and said that the only test is the sovereign functions test because by this test there is no distinction being laid down by an ordinary and a statutory corporation. 

But what about companies who were under a license? There was significant government control over these companies, but they obviously could not be held to be state. Thus look at Justice Mathew's test.  

22nd January22 January 201311:37 The first step of increasing the ambit of 'other authorities' was the Rajasthan State Electricity Board v Mohanlal case-statutory authority included. Then came the Sukhdev Singh case which sought to increase the ambit by including tests. The dissenting judge felt that the ambit of 32 should be smaller than that of 226. so 32 should deal with only state-sovereign function.But the majority gave us two significant tests (elaborated on the previous day)3 judges (CJ Ray, Chadrachur and Gupta) said that these are created 1) by statute and 2) have statutory power to make binding rules and regulations. 3) They are also subject to pervasive government control. How do you determine such control? Look at shareholding, the no. of directors.Justice Mathew gives an important term: whether this body is an instrumentality or agency of the state. He is looking at the contemporary economic scenario in India. Initially all functions of the govt. were performed by the govt. Corporations were a rarity. Later, public corporations started coming in, which were not necessarily set up by a statute. Since they are performing public services on behalf of the state, thus they should also be covered under article 12. So he was clear that the predominant test should not be whether its origin was in a statute, but rather its functions, whether its functions would be those that the state would have performed  *) Sabhajit Tiwari v Union of India (1975)CASE HAS BEEN OVERRULED.The Question was whether CSIR (Council for Scientific Research) is state. A lot of its functions are in close association with the government. But it was originally started as a society as registered under the Societies Registration Act. But the SC said that CSIR is NOT state. They did not apply the test laid down by Justice Mathew. Looked at only the test laid down by the first 3. said that CSIR is not created BY a statute, rather it is created UNDER a statute. It derives its recognition under a statute. Also looked at constitution of CSIR and said there is no pervasive state control. This decision is the odd one out of the evolution of the definition.  

 *) RD Shetty v International Airport Authority of India (1979)3 judge bench. Justice Bhagwathi gives recognition to Justice Mathew's test. Said predominant test is instrumentality or agency. Because (giving an analogy) the govt. has an option to act through itself or through an agency. In such cases the agency should also be held to be state. IAAI is acting as an agent of govt. and performing functions which the govt. could have performed through its own officers. This case did not refer to the requirement of statutes laid down by the three judge bloc.  *) Ajay Hasiya v Khalid Mujib (1981)Often held to be the only case on article 12.5 judge bench.Justice Bhagwati gave a six pronged test:

1. Whether the entire share capital is held by the govt. 2. Whether the financial assistance of the state is so much so as to meet

almost the entire expenditure of the corporation3. Whether the corporation enjoys a monopoly status which is state

conferred or state protected4. Existence of a deep and pervasive state control5. Whether the functions of the corporation are of public importance and

are closely related to govt. functions6. Whether a department of the government is transferred to the

corporation 

Does a body have to confirm to all to be called state? This was never specified. It will be based on overall appreciationIn this case the body was Regional Engineering College of Srinagar registered under the Jammu and Kashmir Societies Registration Act. SC called it state. It confirms to one test, that it performs a public service. It does not confirm to most of the parameters. However the trend of the judiciary after this case was to include as many things into the definition of state as possible. The statutory origin was no longer that relevant. The broadest criteria was whether this body was performing a public function or not. The connection with a statute is irrelevant.   Around the same time as the above judgment, Justice Krishna Iyer was hearing:*) Som Prakash Rekhi v Union of India (1981)Bench strength: 3.Oil company named Burma Shell which was nationalized and taken over the govt. and then called Bharat Petroleum Corporation. He delivered the judgment of this case on the same day as the above judgment, so that he had a precedent to say that BPC is state. Otherwise he would be bound by

the 3 judge test. Said that it was transferred into an instrumentality as the govt. held the majority shares.   

Extra class 24th January24 January 201314:30 Recommended reading on article 12: Zee Telefilms v Union of India: Majority JudgmentIt discusses all the cases dealing with article 12 in a chronological order.  If everything is called state, then the definition of state under article 12 becomes redundant. The floodgates were opened and the objective of having article 12 became redundant. SC began to just rely on the public functions factor and called it state. But later, they realized that Ajay Hasiya judgment had meant to take the overall appreciation of all six guidelines rather than just taking any one of them.  Some cases said NCERT is not state. The SC was giving a confusing signal. Because they did not know which test to rely on. Need to come to a conclusion as to how many  *) Pradeep Kumar Biswas v Institute of Chemical Biology (2002)OVERRULES SABHAJIT TIWARILaid down that NCERT is not state because it has no pervasive interference and is independent. Justice Ruma Pal said that Ajay Hasiya parameters are just indicative. They are not binding or clinching. The test laid down in this case:Whether in the light of the cumulative facts as established the body is financially, functionally and administratively controlled by or under the government. Such control must be particular to the body in question and must be pervasive. When the control is merely regulatory, whether under a statute or not, it will not suffice to call the body a state.A relationship with the government was sought to be established. It has satisfy all three criteria. Control is not regulation. Because regulation may apply to both government and private companies. But this does not mean that private companies can be held to be state. This case did not lay down the instrumentality test. (Crosscheck this because the actual case does contain an instrumentality test <http://www.indiankanoon.org/doc/471272/>) *) Zee Telefilms v Union of IndiaInvolves the BCCI. The question was about television broadcasting rights. Zee wanted to file a writ petition under article 32. BCCI said that they are not

state so there cannot be a writ against them so they have to use 226 and go to the HC. Union of India said the BCCI is state so there is no problem with the writ petition. To oppose this the BCCI said that the government could not be relied on as there were several affidavits by the Union of India before various HCs which said that BCCI is not state.  BCCI said it is not state because it is not functionally, financially or administratively controlled by the government. So it cannot be state. They have never been delegated the authority and responsibility to administer the game of cricket in India by the government. BCCI said that it is a private club. Also claimed that they are a society registered under the Madras Societies Registration Act.  Union of India said that BCCI is state because the BCCI relies on an autonomy that it enjoys. There was a defacto delegation. Apparent delegation because at any time if the government says you have to confirm to certain directions, then they have to confirm to them. They have to seek permission for every foreign tour. Before every team visits India, BCCI must ask for permission. For awards, in case of cricketers, the advise of the BCCI is taken. Cricket was not an Olympic sport. In 1996 cricket was a part of the Commonwealth Games. India had to send a team. But the team of the BCCI was a BCCI India Team, not the national team. So the players were hired by the government to form the Indian Cricket Team. So they can exercise financial control. Functional control, because they need to seek permission from the government. So its activities are intrinsically connected to the government. In addition to this, they perform a public function. 3-2 majority.Majority Judgment by Justice Santosh Hegde. It outlines the test. They said that there is no financial control. There is no express delegation from the government. BCCI is thus autonomous. It is only a society. But the point about it being a state was redundant. The majority relied on the financial control. But assuming that the BCCI was not as rich as it is, then they would have to take money from the government to promote the state. The scope of the definition of state was being narrowed again.Now the question of whether a society is state or not depends on the facts and circumstances. The act of the BCCI was being challenged as being against article 14. whether the terms and conditions of the contract were against 14. does the BCCI perform functions of enriching importance. It may allow or deny access to entertainment.The majority judgment was based on the Ajay Hasiya approach.  

The minority judgment was that whether the consequence of the exercise of power by such a body is such that it violates human right. Creation of de facto monopoly or if there is outsourcing of legislative or administrative power. From this angle, BCCI could be called a state. This was a pro-human rights approach.   

29th January29 January 201311:43 *) P K BiswasFinancially, functionally and administratively, if a body is controlled by the state, then it is state. BCCI had the power of controlling media access, but it was decided that it was not state. Whether a particular body performs functions which has an adverse effect on human rights, whether it has a de facto or de jure monopoly, whether there is outsourcing of administrative or legislative functions, then it may be considered a state. The practical difficulties of applying Ajay Hasiya. There are bodies which perform public functions but they may be private bodies or societies. Then how can they be called state? These services have a lot of implications on human rights, but they are provided by private bodies. So if they violate a human right and indulge in discrimination, can this be allowed? Is there a legal remedy against this?Communitarian right to be enjoyed by only the members of the community. So a housing society has the autonomy to decide what sort of bylaws they want to frame. So the argument that it is violative of right to equality, right to residence under article 21 was brushed aside. This was the situation in *) Zoroastrian Housing Society Limited *) Shelly v Tremorn (US SC)Case about restrictive covenants. The seller imposed on the buyers that he could not sell the house to any other person other than a white. This was intended to be enforced through the court of law. The SC said that courts cannot enforce it as it is blatantly discriminatory.   But can right to equality be invoked? The article specifically says that the state shall not deny...so you cant call a housing society a state as per the Ajay Hasiya guidelines. If this mechanical approach is allowed, then the housing society cannot be covered by article 12.Bylaws framed by a society cannot be called law as law requires generality of application. A bylaw is only applicable to the members of that particular community. So can you invoke unfair restriction under contract law (sec 23)?

You can claim that the term is against public policy (sec 23 of Contract Act) and then get that provision written off? But the SC said that the bylaws cannot be even tested against public policy under sec 23. In certain circumstances however, you can invoke the power of the HC under sec 226 as it can issue against any authority or person.  *) Anandi Sathguru Trust Case 1989College established by Non-profit organization. This college had serious financial difficulties and UGC aid was needed. But eventually the college had to be closed down. The teachers were given notice and they wanted to claim relief from the college and trust, so they approached the HC for arrears of salary, etc. argument that 226 cannot be used against private bodies. The SC rejected this and said that 226 can be invoked against semi private bodies which perform a public function. Irrespective of the fact whether it can be called a state under article 12 or not.  *) Bijayalaxmi case (decided by Orissa HC)Working women's hostel established. It took disciplinary action against two inmates and ousted them. They were not given due notice or opportunity to be heard. They went to the HC and said that there was violation of article 21 right to life with dignity as no shelter. The HC said there was violation of 21 and provided a remedy. If the court had insisted on some state action, then there would have been no remedy from the court.  *) MC Mehta v Union Of IndiaLeakage of Oleum Gas in Delhi. The SC developed the concept of strict liability in this case. The remedy under 21 read with 32 protected the interests of the victims. If 12 and 14 were invoked then that remedy was not possible. Justice Bhagwathi said that you cant make a difference between private actors and state actors in circumstances like these and thus the remedy was granted.  Can the judiciary be regarded as a state? 12 refers to only legislature and executive, silent about the judiciary. The formal concept of state according to political scientists includes all three. But 12 does not mention judiciary. Perhaps the framers felt that including the judiciary would be anomalous. Where do you go to claim a remedy against the judiciary when the judiciary itself provides remedies? You have to assume that the judiciary always protects rights. 12-it is an inclusive definition. So in addition to those already specified, there may be other components in addition to those already specified.  *) Naresh Shridhar Mirajkar v State of MaharashtraContempt of court proceeding and pressmen were prevented from having access to the judiciary. Lack of access to court proceeding violated the

fundamental right of the press. As judiciary is also a part of state. But is the judiciary a state under 12? SC said no. legislature and executive have been mentioned under 12 but there is a deliberate omission of judiciary, so it means that they did not want to include judiciary under state as under 12. if the judiciary performs any legislative functions, then there may be a possibility of calling it state to that extent. Does the rule making function of the judiciary come under this? If these rules violate Fundamental Rights, then you can get a remedy. *) Prem Chand Garg v Excise CommissionerRule of the SC that each petitioner would submit certain amount of security before submission of petition to it. The requirement to pay security before invoking the court makes its operation unequal on the basis of the financial capacity of the petitioner. The SC nullified this rule as unconstitutional. A legal norm is nullified as unconstitutional.  Also, when the judiciary makes appointments such as those of clerks, etc. if there is irregularity in the appointment, it can be challenged as unconstitutional. DD Basu has an elaborate discussion on whether the judiciary is a state. When quasi-judicial function is performed, it is regarded as state, but when purely adjudicative function is performed, it is not state.  Naresh Shridhar Mirajkar has not been overruled. Judiciary is not state. But this statement is under speculation. In case of Special Leave Petitions, *) PSR Sadanantham v ArunachalamSC overruled the order of acquittal given by the HC in a Special Leave Petition. This resulted in a conviction. So the SC shall act in a fair manner when hearing such petitions. SC is also governed by the rules relating to fairness and justice and must follow these principles. Article 13Fundamental principle of constitutionalism that the constitution is supreme. Ordinary legal norms and laws are subject to the provisions of the constitution. There is no general clause relating to supremacy of the constitution in India. But it can be found in part 3 article 13 of the constitution and in part 4 article 37. this was for the purpose of caution even without 13 the position would have been the same ( AK Gopalan v Union of India). But it has been specified in 13 just as a precautionary measure. Laws which are in force before the commencement of the constitution have to be in conformity with part 3.  What is meant by the term 'laws in force'? It includes laws passed or made by a legislature or any other authority. It should not have been repealed

before the commencement of the constitution. Irrespective of whether it was brought into operation or not, the law shall be regarded as in operation. The legislature decides the date of commencement. Article 13(1) has only prospective effect of operation. No retrospective effects.Gaah, I can’t for the life of me pay attention to this! Especially when our Economics professor has seen fit to throw us off track the day our abstracts are to be submitted! How absolutely infuriating! XP  

30th January30 January 201310:38 Article 13Important constitutional principle that constitution is supreme to all other legal norms and laws. Even customary usages and principles will be tested against the touchstone of part 3 of the constitution. If found inconsistent with any provision of the constitution, they will be declared as invalid and void.  *) Keshava Madhav Menon v State of BombayIs the Press Powers Act, enacted in 1949 subject to the test of being unconstitutional? As this act had come into force before the commencement of the constitution. The SC said that article 13 (1) is only prospective. It cannot apply to laws which came into force before the constitution. If it were allowed, then it will open a floodgate of litigation. All acts which took place prior to the constitution but are STILL IN FORCE after the commencement of the constitution (in other words, the cause of action rose AFTER the commencement) then part 3 WILL apply. Part 3 will not apply when the cause of action rose before the commencement of the constitution. There can be no retrospective effect to the constitutional provision.  *) Lachman Das (Referred to in VN Shukla)If a discriminatory procedure is adopted in the course of deciding a case that arose before the commencement of the constitution, then the issue relating to constitutionality can be heard and remedy given.No retrospective effect to substantial principle. But it can be given to a discriminatory procedure which is continuing when the commencement began ( wrong usage, but whatever :P) Void-regarded as non existent. As though never brought into existence. It cannot give any right, duty or remedy. However, they are not declared void ab initio. Void ab initio would mean that the constitutional provision would have retrospective effect, which would raise several difficulties.  

The American Constitution on the other hand regards it as void ab initio because in the eyes of law the act had never come into existence.  This is relevant for post constitutional laws as seen in article 13 (2). Prohibition on state from making any law which takes away or abridges the rights conferred under part 3. In spite of this warning, if such a law is made, then it will be declared void. It does not use the words void ab initio. So it will be invalid only after the date of the judgment. This is the presumption of constitutionality of legislation. The judiciary will respect the legislative will. The petitioner must prove that the legislation is violating part 3. and it will be held void only after the date of the judgment including that particular case.   *) Basheshar Nath v Income Tax CommissionerDoctrine of waiver. Petitioner subjected to proceeding under income tax (under some legislation) his concealed income was confiscated and he agreed to a settlement. Subsequently, the constitutionality of this legislation was challenged and it was declared unconstitutional. So he came back to court and said that the agreement amounted to waiver of his Fundamental Rights. But under part 3, these rights cannot be waived. So the court has to give remedy. Rejection of doctrine of waiver and upheld the contention of the petitioner. Held that right under article 14 cannot be waived.5 judge bench.2-rights under article 14 cannot be waived. 2-not only under article 14, but also any rights under part 3 cannot be waived at all. 1-sole dissent. Said that fundamental right can be waived. Said that it is the choice of the individual. Majority judgment says that rights under 14 cannot be waived at all. The question as to other rights has not yet been determined.  The legislature may subsequently rectify an error in the legislation if it is declared erroneous. ( I think this is what he said. It’s your fault for distracting me Yash :P)  *) Hari Singh v Military estate officerSC declared Punjab Public Premises act as unconstitutional as it did not provide adequate protection to the evictees and was discriminatory. Then the parliament re enacted the same law by removing the unconstitutional provision. The SC said that the removal of such defect in the legislation cannot be regarded as inappropriate. The reframing of the legislation to make it confirm with part 3 makes the legislation a valid one. So when the legislation is given a retrospective effect, it is within the power of the legislature to do so for civil law. It saves the validity of the constitution.

  

1st February01 February 201311:39 Article 13Only the effect of the legislation after the commencement of the constitution will be charged by part 3. Doctrine of eclipseWhen a legislation is made, the legislature had competence to make it. But after the constitution commenced, the legislation may become partly invalid. Then there may be a constitutional amendment after which the legislation becomes completely valid once more. This is the doctrine of eclipse. *) Bhikaji Narain v State of Madha Pradesh Legislation in 1949 said state had the power of taking over any transportation agencies. State monopoly could be created. But there was a fundamental right to freedom of trade and commerce. Creation of a state monopoly was not expressly stated in 19(6) originally. So creation of state monopolies was successfully challenged. So there was an amendment in 1951 which made state monopoly also a ground for the restriction of freedom of trade. So there could not be any more obstruction. The period between the commencement of the constitution and the amendment of the constitution was the period during which the legislation was eclipsed. Requirements for application of the doctrine of eclipse:

1. It should have been validly enacted before the constitution2. It should operate on atleast one section of society after constitution. In

other words, it should be partly valid and partly invalidThis doctrine cannot be applied to legislations which came into force after the constitution came in to force. However an attempt was made in:*) state of Gujarat v Ambica MillsState of Bombay enacted legislation which provided for welfare funds. All factory incomes had to earmark some income as welfare funds for the welfare of the workers. When creating the fund, the employer's liability to the workers was not absolved. This had the effect of taking over the property of the employers without compensation as employers were still liable for welfare. *) Bombay Dying and Manufacturing case 1958The above legislation was declared invalid. Then Gujarat enacted a new legislation which cured the defect of the previous legislation. The employer would create the fund, his liability would cease after creation of the fund. This was in 1964.

What happens to the legislation between 1958 and 1964?The SC decided this question in the Ambica Mills case. Said that during that period the legislation was applicable to non citizens. Thus, although the legislation was held violative of citizens rights in 1958, it was operative as against the foreigners. The legislation was not declared completely invalid. So this doctrine may be applied to post constitution laws as well. The use of the term to the extent of It appears to imply the doctrine of severability. Only the part offending the constitution is to be deleted. The valid part continues to exist.  *)Kihota holloham caseThe entire 10th schedule was not struck down. Only a clause which gave the speaker the sole right to decide defection of the member of the legislature.This is applicable only when the invalid portion can be separated. If this is not possible, then the whole act would be declared invalid.  *) State of Bombay v FN Balsara 1958Certain provisions of the Bombay prohibition act were declared invalid. Doctrine of severability was applied.  *) Superintendent Central Prison Fathayagad v Ram Manohar Lohia Sec 3 of the act was in contention. SC said that although not all kinds of instigation, only some are void against FR. But since the valid cannot be separated from the invalid, thus the entire section would be struck down.  *) Shri Sahasara Lingeshwara Temple v State of KarnatakaThere was an enactment relating to the governance of temples. The purpose was to ensure that the secular or economic activities connected with the religious activities would be subjected to the FR. This legislation provided religious denominations. Only Hindu religious temples were to be governed under this act. The HC said that the denomination which excludes other communities from this legislation as unconstitutional. Also, it is not possible to operate the legislation without the presence of the invalid part. So the whole legislation would have to be struck down. Doctrine of severability could not be applied.  Narrow scope should be given to the section-this is known as the doctrine of Reading Down.Broad interpretation may lead to injury to fundamental rights. So they should not be given such a broad interpretation. Thus by a narrow scope, it is possible to save the constitutional validity of the legislation.  *) Govind v State of MP 1970Police authorities were given the power to have surveillance over habitual criminals at night. This was to ensure that the possible escape of these

criminals should not damage the society. But there was a violation of their right to privacy. So was this justifiable? At this time, the Maneka doctrine had not yet been invoked. A broad interpretation of this section would mean that any habitual criminal could be checked and would lead to arbitrary powers to the police. But if the power is confined to use only when it is needed, then it doesn’t affect privacy. So the police should record their reasons for such surveillance in writing and only then use the power.  *) Sunil bathra v Delhi AdministrationThe power of the prison authorities to impose handcuffing was questioned. It was an encroachment on the personal liberty. Blank conferment of power without guidelines. The court could say it is unconstitutional point blank; or they could provide guidelines for when the power can be used such as recording of reasons for the use of handcuffs. It should be used in justifying circumstances alone. The SC was upgrading the competence of the legislation to protect the rights of the citizen while reducing the power of the prison authorities at the same time. Reading up and reading down at the same time.  But when the judiciary's logic strains the language of the legislation, it may be more appropriate to strike it down  *) DTC v DTC Mazdoor CongressThe statute gave the authority to issue notice and terminate any person within 3 months without any reason. The grounds for this were not specified. It violated the principles of natural justice. The majority in this case did not hold that it was a case of reading down. It was not possible to uphold the legislation even by reading down its provisions. It would mean altering the language of the legislature itself. But the DISSENT said that reading down was possible in this case as well. If the requirements of natural justice are read into the legislation, then it is possible to save the legislation.   The meaning the term law in article 13 means ordinary law. It does not refer to constitutional amendments. Each lower legal norm derives its validity from the higher legal norm (rules from acts, acts from the constitution) but constitutional amendments cannot be added to this legal norm hierarchy. So in IC Golaknath, the judgment had logical infirmity. (Look at last semester's notes for details. I'm sure you remember the details anyway :D) Ah Light help me, but I cant understand most of what is being said! ;A; T_T o__O  

2nd February02 February 201310:41 Doctrine of eclipse This is usually used when testing an ordinary law against fundamental rights. But it is most relevant in case of constitutional amendments (the clearest use of these doctrines can be seen in case of constitutional amendments).If something is declared unconstitutional, it does not mean it goes off the books. It stays. This is because a time might come when it may become constitutional. Or the parliament may pass a law which validates it. The law is not in operation. But it may be revived in the future. So an unconstitutional act is not deleted from the statute books, though it cannot be used. The law can be later validated. This is because the law is declared void from the date of the judgment. This would not be applicable if the law were declared void ab initio. It applies to both pre constitutional and post constitutional cases. Post constitutional law: State of Gujarat v Sri Ambica Mills.This was reaffirmed in: Dulare Lodhe v 3rd Additional District Judge KanpurThis was the first post constitutional law in which this doctrine was applied.  *) Keshavanan Madhav MenonPress Control Law passed in 1930. in 1949, this plaintiff printed a pamphlet, so the govt. filed charges against him. Then the constitution is passed. So he said that now he had the freedom of speech and expression. He may have committed an offence under this act, but this act is unconstitutional. But the SC said that the law is not void retrospectively. So it cannot be stopped. The situation may be slightly different in case of post constitutional laws. SeverabilityCan the remaining sections survive when the unconstitutional sections are removed? This is also applied to constitutional amendments (Keshavananda Bharti, Minerva Mills)   Article 13(3)-definition of laws. This is an illustrative list and not a substantive list. Can a custom override law? Yes, as customs can sometimes be called laws. If it can, then should it be subject to fundamental rights? As long as a custom is a valid custom and has the required antiquity, continuity, etc. it is a valid law and must be subject to fundamental rights.What about customs under personal laws?  

Are personal laws, laws? Are they subject to fundamental rights? Courts have never considered personal laws as laws under article 13. because they could not apply the fundamental rights to them *) John WallaMathom (2003)Personal laws are not laws within the meaning of article13. this is because it affects self determination of individuals. When this is given statutory recognition then fundamental rights can be used to test them. The statute or act is law. So this law will be subjected to fundamental rights. To be called law, the custom must have certain features like rationality, continuity, etc. so that they can override other laws.   

4th February04 February 201311:43 Right to Equality ->Equality of status and opportunity->EBL( Equality before the law ) EPL (Equal Protection of Law)->Non discrimination->Special Protection/Protective discrimination There should be no justification for differentiation between human beings except in special circumstances. This view is seen in Aristotle's writings and Anglo-Saxon writings. They held that holding equals unequal, or unequals equal results in injustice.Equality has several facets and dimensions. These point out how it is ever-growing, with new doctrines added to it. It is one of the most dynamic rights. e.g. the notion of reasonableness is also included in the right to equality.The preamble talks about the equality of status and opportunity. Legal status of an individual determines the right, duty, power, subjection, liberty, no right, etc. (look at the eight points discussed somewhere before this. Somebody's philosophy I think) It is Hofield :)If someone is given special rights or made subject to disabilities by virtue of birth, social background, or wealth, then there is inequality of status. Every individual has the potential to develop his personality. All humans have equal status because of possession of equal human parity. There should be equal access to opportunities. When every person has access to similar type of opportunities, then there is equality of opportunity. (My, so profound! :P) the level of opportunities go up when the state implements welfare policies. This concept has been incorporated into the preamble of the constitution.  For EBL to be possible, it is necessary for law to be supreme. EBL leads to equality. It has the dimension of excluding any kind of special privileges or

immunities. It also removes any kind of special disabilities. Jennings considered that EBL reflects a situation where regarding the right to sue and the right to be sued, all persons shall stand on equal footing and no person shall be exempted from the rule of law. This was developed in England through common law, through the concept of rule of law. It shall be supreme and operate equally on all. EBL imposes a responsibility on the executive aloneEPL imposes a positive direction on the state. It obligates the state to ensure that persons in different circumstances are treated in a different manner, depending on their circumstances. If there is proper identification of differentiation, then they cannot be regarded as objectionable. E.g. the IPC exempts a child below the age of 7 from criminal liability-child cannot understand the nature or consequences of its conduct; Income Tax Act applies only to persons who earn more than a certain specified minimum limit-this is to ensure that govt. can earn revenue on the basis of taxable capacity; MGNREGA applies to only the rural poor and is not applicable in a general manner-it is directed for a specific class. The law maker differentiates between the rich and the poor and enacts laws based on a sense of proportionality. These laws cannot be applied uniformly. There is always a method of classification followed because of the peculiar circumstances of the society in which this law is to be implemented. So a society is not a uniform society. There exist several classes which deserve special treatment from the legal system. So equality of law may be related to EPL instead. This was developed in the US. This imposes a responsibility on the legislature as well. In India, the makers sought to include both aspects. EBL and EPL are laid down in Article 14. there is also declaration of the principle of non discrimination in Article 15(1), 15(2), 16(1), 16(2), 17 and 18.15(1)-state shall not discriminate. There are five grounds of prohibited discrimination. 15(2)-no discrimination on access to public facilities16(1)-no discrimination on matters of public employment. 17-prohibition on private individuals from discrimination18-no special status to be granted. Non discrimination situation Policies are laid down under article 15(3), (4), 15(5), 16 (4), 16(4) A and 16(4) B.These allow the state to make special provisions for the promotion of depressed sections of society.  *) EP Royappa v State of TN New doctrine of reasonableness in the exercise of power was contemplated.There was unjustified transfer of a senior civil servant in an arbitrary manner. The court said it was an arbitrary action, which is opposed to equality. Right to equality is a sworn enemy of arbitrariness. The court examines the

reasons behind the action of the govt. the SC developed the principle of proportionality-whether the exercise of the right is justified when taking into account the facts and circumstances.  All the equality provisions show immense concern for the promotion of justice.  The reach of the equality charter is wide enough to cover all eventualities relating to justice. John Rawl considered justice to be a concept of fairness. Equal to be treated equally, and when unequal treatment is inevitable, then the lesser advantaged persons should be given protection.  EBL stands for the principle that law shall rule and not man.  *) Entick v CarringtonThe House of Lords evolved the concept that when an administrative authority acts without legal authority and inflicts activities like unlawful seizure or arrest, then the officer responsible for that action will be held personally liable. He enjoys immunity only as far as his power is exercised in a valid manner. If he transgresses that power, then his immunity is removed and he is held liable before the law like an ordinary citizen.  Ivor Jennings explained the notion of equality before the law as the absence of any special privilege, immunity or disability should be considered as equality before the law.  Though the government can be held vicariously liable, is it not the responsibility of the govt. to recover in from the wrong doer? This is mentioned in: *) Sebastian Hongray v State of OrissaPolice lockup death due to torture. Habeas Corpus writ was sought but the police could not produce that person so compensation was awarded. The SC issued directions that the money would be recovered from the pople who had committed the wrongful act. Criminal prosecution shall be launched and disciplinary actions shall also be taken *) Neelavathi BeharaAlso spoke about recovery of the liability from the errant official. Spoke about the ultimate liability of the errant official.However, the govt. is not liable for acts which are done as a part of sovereign function. This has lead to a lot of debate as to what constitutes sovereign functions. 

Under article 361, the President of India as well as the Governor of a state is exempt from certain liabilities. Not answerable to any court for the performance of his duties or about any act done by him in exercise of his powers and duties. Valid exercise of power entitles them to immunity. In the course of exercising their powers as constitutional entity. The court must recognize discretion to err within the scope of discretion itself. Gross violations cannot be protected by article 361. The protection is available only for acts done in pursuance of the constitution.  

5th February05 February 201311:45 Right to equality has several facets.Equality before the Law ( EBL) and equal protection of laws (EPL). The SC said that the term 'law' under EBL is a generic expression and represents the philosophy of law.EPL on the other hand refers to specific laws. Protection is to be provided by different specific laws. Income Tax Act, Advocates Act, etc. there is a need for making classifications. However these should operate in a reasonable manner. Court have evolved a method of approving the method of classification: concept of reasonable classification. Various classes are to be classified on the basis of some criteria. Reasonableness of the classification is determined based on certain principles:

1. Existence of reasonable or rational criterion-it should operate in such a way that only those persons possessing the same characteristic shall be grouped together. It should have the competence of grouping the persons who have the same characteristics as distinct from those who do not have them. There should no be under inclusion or over inclusion under this criteria. *) DS NakaraPensioners who retired after a particular date were given a higher pension rate and those before were given lower. There was no justification for this differentiation. This was a situation of under inclusion. *) MR Balaji v Union of IndiaOver inclusion. Some castes were identified as socially and educationally backward classes but did not possess the features of such a backward class at all. Thus it was improper.  Persons who possess the same characteristics should not be left out. BCI said that after the age of 45 no person can be enrolled as a lawyer. This is unreasonable. It causes under inclusion. Their exclusion is unreasonable.

 2. The criteria should have a rational nexus with the object of the scheme.

E.g. minors and insane persons cannot enter into contracts. The purpose is to protect vulnerable sections of society. The law intends to protect their interests. The choice of the criterion is infancy or insanity. This criterion must have a nexus with the object of the scheme. In this case, the nexus of the contract act is to ensure that agreements are carried out by competent persons. They should be of equal footing. So there is a nexus and their exclusion becomes appropriate. Has a rational nexus with the scheme of the legislation.

 The above two factors must be satisfied when attempting to determine whether the classification made is a reasonable one. This test was first brought up in:*) State of West Bengal v Anwar Ali Sarkar WB govt. enacted a special legislation for trying offences like communal riots in special courts. The court upheld this classification because the purpose of the legislation was meant to ensure speedy disposal of such cases. Offences which affect the security of the state and public order ought to be tried quickly. Hence the legislation was justified. These principles are also applicable even when a single person constitutes the class. Differential treatment is not bad. Discriminatory treatment is not justified. Possession of certain characteristics makes him a class by himself.  *) Chiranjit Lal Choudhry v Union of IndiaSholapur Spinning and Weaving Company, of whom the above was a shareholder, was not being run properly. A special legislation for taking over this company was carried out for protecting the interests of the workers. This legislation applies to only one company, but it was upheld. The criteria on which the company was treated in a different manner could be regarded as appropriate. Factors such as mismanagement, etc. made it a class by itself and the law could be regarded as valid. Rational nexus: the object of the law was to protect the interest of the workers. This could be done only by taking over the management of the company.  Sometimes the legislature may act with prejudice when deciding the criterion or the object of the legislation.*) Amerrunnisa Begum v Muhboob BegumDispute relating to Nizam's property. Special legislation for devolution of this property instead of applying the general Mohammedan law of succession. So two women's succession rights would have to be decided under this legislation. Govt. argued that this legislation was needed to put an end to this long standing dispute. It was also legally advised to enact a special legislation. The SC said that there was no justification for the classification.

The criterion which had the effect of targeting women could also not be justified. Law should not operate with any kind of prejudice.  *) Ram Prasad v State of BiharBettaya Estate was owned by minors and the court of wards was administering this property. Certain landlords were exploiting the tenants. This caused an unrest and forceful restoration of tenants and the landlords used the police to restore their possession. So Bihar enacted a legislation which cancelled all the contracts of lease. Did it confirm to right to equality and satisfy the above criterion? No, because the selection of certain persons as beneficiaries was not justified. If the legislation was applicable to the entire state, then it may have been held to be valid. *) LM Misra Institute for Socio Economic Change v State of BiharRegistered society was responsible for its administration. The subsequent govt. had some prejudice against this institution. Political rivalry. Enacted legislation taking over its property. Statement of objects said that there is need to nationalize education to ensure that educational opportunities are available to all and that this is first step of several programs aimed at increasing access to education. This was challenged. The SC said that it was selecting the above institution based on special characteristics and it was satisfying the element of matching the nexus. This was a bad judgment. It does not meet the criteria established above. It was politically motivated. There was no explanation as to why that institution ought to be taken over. *) SP MittalArravilai Institution was taken over. But there were several factors which justified this. Mal administration, mis-management, etc. so it was needed in order to save the institution.  *) Dharam Dutt v ICWA (International Council for World Affairs)ICWA was meant to understanding international relations. Undertook research activities. In course of time ICWA became defunct, mismanagement, etc. real academic activity ceased. Parliament enacted a specific legislation to take over ICWA. The SC tested its constitutionality based on the above cases and upheld its constitutionality.  The judiciary views such specific legislation with suspicion. Then, if the above criteria are classified, then the law is upheld as justified.  

6th FebruaryHappy Birthday Yunho! ^-^06 February 201310:38

Requirements for classification:1. Rational criteria for classification-intelligible differentia (whom element)2. It should have a rational nexus with the object of the scheme (why

element) 

In case the first element is not taken properly, it causes injustice. When the disputes are private. What is the rationale for treating those private individuals differently? Sometimes, the legislation may be enacted for public interest. But it is difficult to determine whether the legislation refers to public interest (E.g. LM Misra case).  In the US, in addition to the above two factors, the courts also look into whether there is compelling state interest which justifies that policy. The judiciary will apply the Strict Scrutiny Test. It will put the legislation into an additional line of inquiry, as to whether it is satisfying the additional factor it is being examined for.  *) DredScot v SandfordUS case. It lead to the civil war. This case was heard before the 14th Amendment. *) M Nagraaj v Union of IndiaSC has adopted the doctrine of compelling state interest.  In the US, apartheid was justified on the basis that it was separate but equal.*) Plessey v Fergussson Doctrine of separate but equal. IMP dissenting minority which said that the constitution does not recognize segregation based on color.  *) Brown v Board of EducationThe above case was overruled, atleast in the context of public schools. Removed the scope of racial discrimination in the public forum. Looked into the issue of whether there is compelling state interest. It is resorted to only in certain circumstances-when there is racial discrimination or violation of some preferred freedom (freedom of expression, freedom of association, freedom of religion)  *) California University v Allan BakkePositive action is beneficial. In India, not just the state, even private individuals are forbidden from discriminating. Article 15(1).  So if the US SC had to decide LM Misra, what would their position be? Legal differentiation is justifiable. Discrimination is unjust differentiation.  

Economic matters, tax issues, property regulations-court does not usually apply the compelling state interest doctrine. Starts with the presumption of constitutional validity.But when it comes to matters relating to race, the SC starts with the assumption that it is constitutionally invalid.   Elements:

1. Whom?2. Why?3. What? What sort of treatment and what is the object of this

classification.  The court sometimes confuses whom with why and does not apply the rationale properly.   Compelling State interest is not the same as public policy. It looks at the overall considerations of the general interests of society.  Equal protection of laws is a supplementary principle which ought to support the philosophy of equality before the law.  In addition to the above three principles, the other question that must be asked is that whether it is conducive to modern society.    In the American Constitution, the chain was:1)Inequality

2. Separate but equal3. Formal equality4. Substantive equality

  

8th February08 February 201311:43 Right to Freedom Right to equality: state shall not deny to any person.Right to freedom: only citizens are entitled to this freedom.A non citizen is not given a right to freedom of speech and expression in the same way that a citizen is given those rights.  

No express provision for the freedom of the press in the constitution. A strong lobby against expressly stating that the press is free, because it might give a sign to the citizens that the press is free but they are not free in their ordinary capacity (what odd logic!) Besides, the press consists of the citizens themselves, who can utilize their individual rights to attain freedom of the press. The SC has brought in free press. *) Romesh Thappar v State of Madras *) Brij Bhushan v State of PunjabThe Communist Party of India was banned. The RSS was also banned. In the state of Madras, there was a Communist Mouthpiece called Crossroads. In Punjab, there was a RSS Mouthpiece called the Organizer. The above defendants were the editors respectively. The SGs both felt that the circulation of these two newspapers would harm public order and lead to public order disturbances. The SC declared the orders which banned the two newspapers to be unconstitutional. Said you can restrict 19(1) rights only on the grounds mentioned in 19(2). Also said that newspapers play an important role in imparting correct timely information to the people, which is a part of article 19(1). So infringing on the newspapers is infringing on the people's right to know. Besides, a democracy should allow dissent from the government.   This lead to the first constitutional amendment, which now included public order disturbance in 19(2) and added the word 'reasonable' before restrictions. This meant that the judiciary could scrutinize the restrictions imposed by the government. But reasonability of the restrictions are examined too late to protect the freedom being affected.  It should be the duty of the individual to self restrain.  Censor board->Film certification appellate tribunal->Supreme Court  

9th FebruaryYes, clearly I was very bored :P09 February 201310:38The restrictions under to 19(1) could only be on the grounds under 19(2) and would also have to be 'reasonable' after the first amendment. It is extremely difficult to stifle the media in India. 

In the case of a newspaper, It disseminates information, but it is also a business. It has business functions as well. It has a profit motive as well. So it is a trade. Right to freedom of trade can be curbed under 19(6), which can be curbed for public interest, which has been very vaguely defined. Restrictions on the business of the newspaper. The purpose of the government was to suppress the newspaper. Different restrictions on the business activities of the newspapers. Came up with a policy that newspapers are to restrict them to only 10 years, as there was a shortage of newsprint. This affected their circulation and their content. The sales get affected, so no advertisement, which affects their profit. This means that they reduce their payroll and their coverage reduces. So there is an indirect effect on the freedom of speech. Direct effect on trade and occupation.So the SC evolved a test called the Direct Impact Test. If the direct and inevitable impact of the restriction on trade is on free speech, then the restriction must satisfy the grounds under 19(2) as well. The direct impact of the restriction is not only on the freedom of trade, but also on the right to free speech. Then it must justify the grounds under 19(2). 19(1)(a) has a lot of sub rights in it. E.g. right to information, right to fly the national flag *) Naveen Jindal v Union of IndiaFlag code said that other than on specific days like the Independence Day civilians cannot fly the flag. NJ used to fly the flag in his factories. He said that he is a nationalist and so he would fly the flag every day of the year. He took the case to the SC. The SC said that right to fly the national flag is a facet of right to freedom of speech. Unless he is doing something against morality, etc. you cannot stop him from flying the flag. The Flag Code is subservient to the constitution.  Recent decision of the SC said that if you fly flags at cricket matches and make it a part of your attire, it is against morality and also violates the fundamental duty to respect the national flag. So it cannot be allowed.   *) Prabha Dutt v Union of IndiaJail Code. PD wanted to interview two death row convicts. The Jail code does not allow the death row convicts to meet any outsider. She went to the SC. She said she had a right to interview as a part of freedom of speech and people have a right to know about their thoughts. The SC said that the Jail Code is just a code, a law. The constitution is above it. The right to interview a prisoner subject to reasonable restrictions is part of 19(1) Right to commercial speech, advertisements.  

*) Hummdat Davakhana 1955Government sought to curb their advertisements under the Drugs and Magic Remedies Act. They went to the SC saying right to free speech has been violated. SC said that right to commercial speech is not a part of free speech but free trade. *) Tata Press v MTNLOverruled the above case and said that right to commercial speech is a part of freedom of speech and expression. Said advertisements are as much a part of free speech as it is a part of free trade.  The government can come up with restrictions, but they must satisfy the grounds under 19(2) and must also satisfy the test of reasonability.       

11th February11 February 201311:45 *) Express Newspapers Pvt. Ltd v Union of India 1958 SCJournalists wanted regulation of their employment in the newspaper industry. So parliament enacted Working Journalists (Condition of Service) and Miscellaneous Provsions Act 1955. The Industrial Disputes Act 1947 was made applicable to the newspaper industry. Forced retrenchment provision was given retrospective effect of one year: the employee needs to be given notice and must also be given compensation. Because the industry retrenched workers in anticipation of this act. Gratuity was to be paid even to employees who worked for only three years and voluntarily retired. Labour laws say that this should be paid only when the employee has retired at the correct age, or has served for 15 years, or has taken VRS. The working hours were regulated, provided leave. Central Govt. was also authorized to constitute a wage board to decide the wages: must take into account the cost of living, rates prevalent in other similar industries, circumstances relating to the newspaper industry in different parts of the country, and any other relevant circumstances. Petitions were filed against the wage rates decided by this board.

1. Wages rates cast a heavy financial burden on the propreitors and will cripple the industry-curbing freedom of press, violating 19(1)(a)

2. An important factor has not be mentioned: the capacity of the industry to pay. So no unnecessary burden is cast on them. Restriction of 19(1)(g)-trade

3. Payment of gratuity to only three year worker is an unreasonable restriction of 19(1)(g)

Court held that the consequences of crippling is a remote consequence and not a direct one. Besides it is not inevitable and it may happen due to several factors. So no direct and inevitable effect on the right. Test of Direct and Inevitable Effect on the Right was established for the first time in this case. However it was not used.Court agreed that capacity to pay should have been a factor. But court presumes constitutionality. It held that the factor can be read into the inclusive clause (any other circumstances bit)One provision was struck down: payment of gratuity to person working only for 3 years and voluntarily retired from his job. Unreasonable restriction-violated 19(1)(g) and did not fit any restrictions given under 19(6).  *) Sakal Papers Pvt. Ltd. V Union of India 1962 SC An act named Newspaper Price and Page Act 1956 was in contention and an order passed under this act was in contention. Sec 3 allowed the Central Govt. to regulate the price of the newspaper as well as regulate pages and sizes. For a particular price, the newspaper pages are restricted (e.g Rupee1: 10 pages, 2 Rupees: 20 pages and so on)Price and advertisements are the two sources of revenue. Most sell below cost of production so that they have wide circulation. This loss is compensated by the advertisement.Govt. said that some newspapers increase pages to earn advertisement revenue and allows them to reduce prices to such an extent that they eliminate other newspapers. Considered to be unfair competition. Govt. passed an order: regulated no. of pages in relation to the price. The no. of supplements was also limited to only 4 in a week. These two measures were challenged. Contention: as a result of this policy or action, the proprietors have only two options: keep prices stable and reduce pages, or increase the prices and risk loss of circulation. This curtails their freedom of the press. Violates 19(1)(a)The govt. said that the motive is to prevent unfair competition. Also said that they can increase the prices to increase the pages. Also said that the price-page formula was suggested by the Press Commission. So said that it was not malafide.SC said that press also has the freedom of circulation. First time that freedom of circulation was added to freedom of press. Also said that increasing prices would result in reduction in circulation, which is a violation of the freedom of the press. It is the direct effect which has to be taken into account, irrespective of the motive of the govt. so as the direct effect was violating the freedom of the press and the statute was struck down.  *) Bennet Coleman and Co. v Union of India 1972 SCNewsprint Policy 1972-73 was in contention:

1. No new newspaper can be started by a common ownership unit even within the authorized quota of newsprint (newsprint is considered an essential ewcommodity and so the govt. has the power to regulate the amount of newsprint consumed)

2. Limitation on the no. of pages: 10 pages. 3. No adjustment was permitted between circulation and the no. of pages

in each newspaper4. No interchangability between the quotas allotted to the different papers

owned by the common ownership unit. 5. Allowance of 20% increase of pages for newspapers who were originally

publishing at less than 10Contention:

1. Restriction on publishing a new newspaper is curbing the freedom of the press

2. Restriction of page limit also curbs this freedom3. Prohibition of the flexibility was an unreasionable curb on the freedom4. Restriction on interchangability of quota also considered unreasonable.

Reply:1. Newsprint is an essential commodity and it is important to regulate

them2. Respondents do not have the right to come to court. cited the case

belowState Trading Corporation v Commercial Tax Officer 1963 Company is not a citizen so cannot claim any freedom under article 19. because 19 is available to citizens. A company is a legal person but not a citizen.

3. Emergency was prevalant and article 358 says that any executive action cannot be challenged on the grounds of article 19.

Judgment:SC rejected the contention about the company. Said that a company publishing a newspaper is not a company but is a press and has the freedom of press. It is different from a normal company. A company is an association of citizens. It is just a vehicle for them to come together and express their views in a uniform manner. So a company can claim freedom, as it expresses its views. The views are published in the name of the journalist rather than in the name of the company. The freedom of speech is not performed by the separate legal entity of the company itself, it is performed by the employees. With respect to solely business functions, a company running a newspaper can be treated as a normal company. It is considered to be representing individuals views.For 358, though passed during emergency, it is a continuation of the policy passed in earlier years. It was not a standalone policy. It was an extension of previous policies. If an executive action is a continuation of a series of executive actions taken when the emergency was not in force, then even though this particular executive action is taken during emergency, it can be challenged on the basis of 19.

SC held that the objective of the act is not relevant when the direct and inevitable effect of the act curbs the freedom of the press and hence violated 19 and will be struck down  *) Indian Express Newspapers Pvt. Ltd v Union of India India did not produce a lot of newsprint. It needed to be imported. Govt. used to levy duties on this import. A notification increased this duty.Challenged:

1. 60% of cost is born by the industry to procure the newsprint. Then additional duties burden will curb the freedom as it will cripple the industry

Contention:1. Does not directly affect freedom of speech, it affects freedom of trade. 2. And it is also justified under 19(6). 3. Increase in duty has a minimal effect on their business.

The court said that a proprietors has two rights: freedom of speech and freedom of trade. The freedom of speech can never be taxed, though the trade can be taxed. So if the rate of duty is not too high, then it taxes only trade. But if it is so high that it cripples the industry, then it taxes the freedom of speech as well. So directed the govt. to reduce the duty rates.   

12th February12 February 201311:44

19(1)(b)-right to assemble peacefully and without arms Subject to: sovereignty and integrity of the country; and public order.Reasonable restriction. If public order is in question. Public order must satisfy the reasonability test.  Fact situationThere is a right to assemble peacefully. *) Devendrappa v Karnataka State Small Industries BoardA public servant from Karnataka who was dissatisfied with the government. He took out a rally against the government. He is hit with a dismissal order from the govt. saying that the terms and conditions of his servidce do not allow him to take out such rallies. So he challenges the terms and conditions as being violative of 19(1)(a) and 19(1)(b). The restrictions need to be reasonable. The govt. said he is entitled to the rights. But he is a public servant, so is different from normal citizen. If he demonstrates against the govt. then the people will lose faith in the govt. and this is against public interest. His trade and occupation as a public servant is subject to reasonable restriction under public servant. Claimed that it was a restriction of 19(1)(g). SC upheld this dismissal. Very criticized judgment. Dangerous precedent.   Distinguished in*) Baldev Singh Gandhi v State of PunjabElected to city council, found rampant corruption, so protested to the superiors. Govt. said he cannot protest. SC distinguished saying that he protested to his superiors and the government and not the people. So this form of process is valid even though he is a public servant.  19(1)( c)-freedom to form associations and unionsSubject to 19(4)Subject to: sovereignty and integrity of the country; and public order; and morality Association can be clubs, political parties, meeting of like-minded people, companies, etc.They can be formed as long as it satisfies the above conditions. Is the right to administer or run the association run concurrent with this right? *) DAV College v State of PunjabState said that as they are running a college they must confirm to certain conditions. They said that that violated their right to freedom of association.

SC said 19(1)© only gives the right to pick and choose when forming the association. But when running, the state can lay down regulations.  19(1)(d) and 19(1)(e)Freedom of movement and residenceCan be restricted under 19(5). Can be subjected to public interest. Interest of scheduled tribes.  *) AK GopalanCommunist leader who was preventively detained. Claimed that right to personal liberty violated. Court said that it was through procedure established by law, it need not be just or fair. Also argued that right to freedom of movement has been affected. Court said it is subject to public interest.   People have a right to know about the antecedents of the candidates. Net assets, educational qualifications, etc. Parliament passed a retrospective amendment to the Representation of people's act. This was held to be unconstitutional in PUCL v Union of India. Question: is the right to vote a fundamental right? SC said that it is a constitutional right. There is also a duty to vote.  State of Gujarat passed a law which made it mandatory to vote. If you do not vote, then you wont get access to govt. resources.              

13th February13 February 201310:38 Application of Reasonable classification in cases relating to special provisions(?) *) State of WB v Anwar Ali Sarkar

WB special courts act was in issue. Wide powers to the SG to chose any person to be tried by special court. Atmosphere of communal violence. In an ordinary court, there would be many procedural safeguards.In a special court, such procedures could be dispensed with. The govt. had the discretion of choosing which law they could apply. There were no guidelines on how the choice is made, it was arbitrary. The court invalidated the act by saying that the classification was not rational. There was no rational way to determine who would be tried by special court. *) Kathi Kanning v State of SaurashtraPublic safety measures ordinance classified classes of ordinances. Empowered the SG to try any one or more classes to be tried by a special court. For the purpose of creating this court was stated in the preamble as well as the body of the act. It had guidelines to determine who would be tried by the special court. The court said that these guidelines amounted to a reasonable classification. This case had different facts from the case above and hence was decided differently.  If the material facts of the case are different, then the court may deviate from the older case. This is the method of distinguishing.  This has been reiterarted in:*) Kedarnath v WBWB Criminal Courts Act. Allowed the SG to transfer any case to special courts. The court upheld this act as the error and infirmities had been removed from the legislation.  Does differentiation in procedure result in any kind of discrimination?*) ChandraBhawan Boarding and Lodging v state of mysoreMinimum wages act. Two procedures under the same act. 1) advisory board or 2) committee to identify the minimum wages. Possibility of treating equals unequally. The SC said that when the act is read with its preamble, and part 4 of the constitution, it can be regarded as not violative of equality. The discretion conferred on the govt. is appropriate. Discretionary power is not discriminatory.  Rule of law assumes that there will be total absence of uncontrolled or unguided legislations.Discretion should be accompanied with guidelines. In the course of the operation of discretion, the authority will act in a fair manner.Equality: at the stage the discretion is conferred AND at the stage when the discretion is exercised.  Discretion is power coupled with liberty. Scope for alternative scope of action.  

Presumption of constitutionality of legislation is used only to a limited extent.  *) In re special courts bill1978, bill for trying offences which had occurred during the emergency. Purpose to try the offences under a special court of speedy disposal of cases. Offences which occurred before the emergency were held to be over included. There were adequate guidelines in the case. *) Northern India Caterers Ltd. V State of PunjabThe Punjab Public Premises and Lands Act 1959 was challenged as unconstitutional. Special procedure to be adopted for eviction of any tenant. SC examined the issue. The govt. had unguided discretion to refer the matter to either the ordinary court or a special court relating to eviction. So it was held to be unconstitutional *) Maganlal ChaganlalSC considered that having two types of systems for adjudication in such a serious matter could not be considered unconstitutional by itself. Only if the classification is not reasonable can it be declared unconstitutional.  *) AK GopalanLegislation can be declared unconstitutional even in the absence of article 13 because the legislative power is to be exercised subject to the provisions of the constitution. If the legislation does not specify the circumstances in which the discretion is to be exercised, then it will be held to be unconstitutional.  For delegated legislation, there should be guidelines.  *) Nirmala Textile Mills Power to refer industrial disputes to any of the bodies which are created for the redressal of disputes. The govt. decide which body will hear the matter. Is it constitutional?  If the scheme could be justified on the basis of the purpose of the legislation, the intention of the legislation. Purpose was to ensure industrial tranquility. If there are adequate guidelines, then it could be considered valid. *) Jyothi Prashant v Admin of UT of Delhi Eviction of tenant because of breach, or personal residing. Slum Clearance Law: need to get prior permission from the Slum Clearance Authority. Is this discretion of the authority whether to grant permission or not reasonable discretion? Does it violate article 14?  a

  

18th FebruaryHappy Birthday Changmin! ^_^18 March 201319:03  

19th February19 February 201311:51 Article 20 and 21Cannot be suspended during an emergency. They are known as non-derogable right. Cannot be suspended even during a national emergency. ICCCPR article 4 talks about non-derogable rights too. Article 20This article is academically not given much importance. It has been looked at as an appendage to 21. 20 gives a lot of constitutional protections. 20 (1)- cannot be punished for an act which is not an offence under the law. Also cannot be punished beyond the maximum punishment specified. There is no retrospective effect to hold someone guilty of an offence for an act which was legal when it was done but subsequently due to an ordinance the act becomes illegal. No retrospective effect to either constituting the offence or the maximum statement. Right against ex post facto laws. This is not applicable to continuing offences as the dates are difficult to determine.  Is it available only against criminal wrongs? As the word 'offence' has been used, so this protection is available only against criminal offences. Civil laws can have retrospective effect. So not applicable to civil wrongs. But can argue under 14 if you are singled out and subjected to excessive penalties.  This is because of the distinction between the ramifications of a civil wrong and a criminal offence.  If it is a civil statute, it must have specific provisions if it wants to impose criminal liability. If it has not been specified, then only civil liability will apply.  *)Hathi Singh Manufacturing Company v Union of IndiaA lot of industries were closing down because of mismanagement, etc. so lots of job loss. The state passed a law that if the industry is closing down they have to provide compensation to the workers from a retrospective date. Challenged saying that retrospective penalty is being imposed, violation of

20(1). (note that it was not applicable to companies which closed before the law came into force) The SC said that 20(1) does not apply to a civil law.  *) Sajjan Singh v State of PunjabTalks about the Prevention of Corruption Act. Sec 5(3) was challenged. This section said that in case of allegations of disproportionate assets, the burden of proof shifts to the person being investigated to prove that the assets were procured via known sources of income alone. Challenged saying that subject to adducing burden of proof from a previous date. Must prove something was lawful even when the law was not in force. The State said that he is not being held guilty of an offence from a backdate. They are asking for retrospective justification for the assets. The SC agreed with the state. If he is held guilty, a part of his guilt does come from the period when the act is not in force, but since he is not held guilty only for the period in which the act was not in force, 20(1) will not apply. The law is giving an opportunity to justify and does not hold him guilty per se.  *) Ratanlal v State of Punjab16 year old committed criminal offence. Held guilty by TC and HC. Then the Probation of Offenders Act came into force. Saying that offenders below the age of 21 will be sent to a reform home. The law came into force after the decision of the HC. The state said that the case was settled before the law came into force. The law as it existed would apply. The SC-2:1 judgment. Majority by Justice Subbarao. He said that you need to look beyond the blackletter of the law. Said that look at the purpose of the law was to reform the child. So you should extend the benefit of the this law to this child as well. Retrospective effect was given. PRINCIPLE: if it is a question of reduction of punishment, then 20(1) is not applicable.   *) Sarla Mudgal Case: the conversion to Islam to evade Bigamy laws. When this judgment came into operation, the others committing the same offence were not held guilty. But *) Lily Thomas said that because of Sarla Mudgal's precedent, all similar instances even before the Sarla Mudgal judgment would be held to be offences. This is because it is law because of a judicial decision as opposed to law because of a legislative statute. This is a dangerous idea as it hierarchizes law.    

22nd February22 February 201311:44

Article 20(2) and (3)Both are also present in the 5th amendment to the constitution in the US. But their scope and ramifications are different. 20(2)-right against double jeopardy. But vastly different meaning from the US meaning20(3)-right against self incrimination. But vastly different meaning from the US meaning 20(2)No person shall be prosecuted and punished for the same offence.

1. This applies to criminal cases only (because of the word offence). So does not cover any other kinds of cases. If one proceeding is civil and the other is criminal, it does not hit 20(2).

2. It must be heard by a court or a tribunal, that is, a judicial authority. 3. The punishment must follow procedure established by law.

 *) Raja Nayanlal Bansilal v MP MisriThe above conditions for application of sec 20(2) were laid down in this case.  *) Best Bakery caseAllegations that people were burned alive and the police acted as mere spectators. There was no evidence, so they were released. There was a hue and cry and the SC ordered that the case be retried in Maharashtra under article 142 Constitution. So they raised the claim of double jeopardy. The SC said that they were not punished when prosecuted the first time. So the right of double jeopardy does not apply in this case.  20(3)Right against self incrimination. You should not be made compulsorily a witness against yourself. The Indian constitution says that no person accused of an offence shall be compelled to be a witness against himself.  *)State of bombay v Kathi Kalu Ogadu11 judge bench decision. Does taking biological samples amount to violation of 20(3)? The SC said no. The act of being a witness against yourself can only be done through written or oral means.  *)Selvi v State of Karnataka3 judge benchDistinguishes from the above case. It spoke about the new scientific tests. Said that it violates 20(3). Distinguished between physical evidence, which is not covered by 20(3), and testimonial evidence. This evidence is the type got by using scientific tests like brain mapping. This is hit by 20(3). What if it is voluntary? Then it is held to be statement made to a police officer and thus is inadmissible as evidence.

   

25th February25 February 201311:45 Economic Policy, tax policy. Legislature takes policy decision on the basis of democratic decision. When criterion of classification is absurd or unreasonable, then the court feels it must interfere. In the US, the judiciary developed the approach that it will not interfere in economic policies or tax legislations. But there will be social policies also promoted through the tax legislations. Generally, the tax laws are reflections of the state's policy to have certain measures of the economic activities. When the judiciary interferes in these matters, it causes difficulties. 'New Deal' era in the US, regulation of agrarian activities, industrial activities, etc. the purpose was to generate employment in the era of the Great Depression. Discouragement of overproduction, as it would cause fall in prices. In order to curtail production, policies of intensive economic interference were enacted. The SC nullified many of these enactments as unconstitutional by saying that they violate due process, violating legislative power of the state. If the law provides for higher standards of health in poultry products, it is a law that must be enacted in a reasonable manner. Excessive delegation of legislation is violative of the constitution. So the US President decided to add more judges also said that they would retire at the age of 70. this was a threat to the judiciary and the judiciary also felt that it was intefering too much into economic policies and it should indulge in self restraint. So in 1939:*)US v Caroline ProductsWhen a legislation is relating to tax matters, property or economic reforms, the legislation shall not ordinarily be interfered with. The questions relating to reasonable classification shall not apply to this. This is the dominant approach of the SC of India as well.  So SC of India did not interfere in tax legislations. As exact classifications may not be possible in these circumstances. This approcah is found in tax statutes and cases: *) Hoescht Pharmaceuticals  *) Khandige v State of Kerala 1963 After state reorganization, the land laws were not uniform for all parts. Tax Assessment-1) every year must submit accounts, this causes larger burden 2) Compounding: on the basis of the no. of acres, the govt. can calculate the

possible income and then calculates the tax on it. The SC evolved the principle that the judiciary must approach tax laws with self restraint. The reason being that inherent complexity in tax legislation give the legislature a wider discretion. There are several factors which affect the amount of tax to be paidApplication of such factors as criteria as valid: the court starts with this presumption. If broadly, the competing interests are balanced, then it must be regarded as valid. You cannot use a golden scale to examine tax legislations.  State of Tamil Nadu imposed entertainment tax based on the location of the theaters. The courts upheld it as justified. This is because they attract different clientele and have different facilities. Geographical area is one basis of classification in tax matters. When unreasonable criteria is used in tax matters, then the court nullifies it. *) KT Moopil NairFlat rate of tax on all land. The rubber estate holder had to pay large tax amount because of this. One year it was so unreasonable, that it was almost equal to the value of the property itself. So he had to sell some property to meet tax liability. So if operation of legislation results in transfer of property rather than transfer of income, then the legislation cannot be regarded as justified. In the name of tax law, there was transfer of property itself. Although there is presumption of constitutionality of the legislation, in this case it could not be justified. In such gross circumstances, the court interferes and it nullifies. Even if the tax law is immoral or unfair, the court tolerates it. *) RK Garg v Union of IndiaGovt launched the program of bearer bond. It provided that any person whose income is not disclosed earlier, has the opportunity of disclosing it and investing in bearer bonds without suffering penal action. Problem of black money. This was challenged saying that it protects those who broke the law. Discrimination against honest tax paying citizens. The unscrupulous citizens get the double advantage of not being penalized and also the opportunity to convert black money into white. This is not reasonable classification. The SC rejected this argument and said that in matters relating to tax the SC does not generally interfere. This has been criticised by a no. of jurists saying that it is against the principle of morality.  Sometimes classifications have to be made on the basis of geographical factors. 

Different laws were prevalent in different districts of the same state after state reorganization. A peculiar situation arose with different laws being made applicable because of historical and geographical factors.  *) Sri Adamar Mutt v KarnatakaPrevalence of different laws relating to Hindu religious and charitable institutions in different districts in the same state. Does this violate equality? The court held that because of historical factors, the diversity of laws is a reality, then the court will not hold it to be violative of right to equality. But in this case, the court said that though the existence may be an accident, its continuation is resulting in confusion and discrimination. There cannot be adequate harmony. The diversity itself is not justifiable. Issued direction to the govt. to unify the laws. But such harmonization is difficult to achieve. It was done in 1997 by the govt.  Geographical factors can be grounds of classification. In case it has arisen out of federalism principle. So diversity cannot be regarded as inappropriate. In case the SGs have different rates of DA to be paid, then though all officers perform the same tasks they are paid differently. *) KC Mandawar v State of MPThe SC said equality principle applies only when the employer is the same. MP paying less DA allowance than the Central Govt. disparity between the rate of central DA and state DA. For an individual employee, the worth of money is the same, irrespective of where he works. This is because the employers/pay masters are different. There may be different policies between different power holders, this should be held to be a natural consequence of federalism. Equality principle applies only when the paymaster discriminates. Differences between paymasters cannot be challenged on the basis of equality. Different states will have different laws.  Under Income Tax act, if there are arrears, it shall be realized in the same manner that arrears of land revenue are realized. Different states have different land revenue laws. Some stringent, others are not so stringent. If the liability arising out of one central law is to be put into operation in different manners depending on the states, then is it violative of right to equality? The SC said it is not violative of right to equality because classifications cannot be challenged in tax matters. There must be a liberal approach towards tax matters. The judgment is not very convincing. Because it causes difficulties. The same law has different applications in different states only by virtue of the laws of the concerned state.  Classification is not the paraphrase of equality (Um, what??)  

Equality before the law.Equal protection of laws.Concept of reasonableness: Developed in EP Royappa v State of Tamil Nadu case. Goes beyond the doctrine of classification. .0322 New equality doctrine 

 

  

26th February26 February 201311:43 Sec 21Life and personal liberty. This right comes with a condition. It can be restricted by the procedure established by law. This procedure can be used to deprive life or personal liberty. Procedure established by law is a neutral term. It does not clarify whether the procedure or the law which establishes it should be just, reasonable, etc. In the beginning, the courts did not look at the morality of the law. Also did not indulge in combined reading of rights. So did not read 14 and 21 together. Procedure established by law does not require a just procedure. When due process is imported, then the procedure must be just fair and reasonable.In the US, the 5th and 14th amendments refer to due process of law and also refer to life, liberty and property. The term due before process automatically means that the process must have some basis of equity, rationality, justness, etc. it cannot be any process. The judiciary is made to intervene. Procedural due process check. The American jurisprudence also says that they will not only look at the procedure, but will also examine the law

which establishes the procedure for justness, fairness, reasonableness, etc. this is substantive due process check.  In *) AK GopalanSC said that there is no procedural or substantive check. The law will not be examined for fairness justness etc.  But there are problems with due process as well. The court may overstep its power. When examining the substantive law, it looked at each and every aspect of the law. The opposition of the government came from the courts, which is not a democratically elected body. In 1937, the SC of America decided that substantive due process checks would NOT be used for economic or business regulation, cultural or social laws. However, it would be continued to be applied for cases of civil, political rights.  *) Fergusson v CooperCourt should not use due process checks to act as super legislatures.  Article 21 was one of the most keenly debated articles. Two schools of thought: one wanted due process from the US, the other did not want to repeat the US mistakes. The pro due process was led by KM Munshi. The other section was led by BN Rao. Said that due process would reduce the legitmacy of the government. Looked at article 31 of the Japanese constitution. Which has procedure established by law. One of the last changes was the replacement of due process with procedure established by law.  

  

27th February27 February 201310:33 India has imported elements of due process into procedure established by law.  *) GopalanThe judges were extremely positivist, refused to read due process into procedure established by law. Gopalan was held under Preventive Detention. He challenged it on the grounds that it violated his right to life and personal liberty. SC said this deprivation was because of a valid law. Right to life and liberty is not an absolute right, it is limited by a process established by law. Nambiar's argument: ->procedure established by law. But what is law? Is it a state made law? The state may make any kind of laws, which may be arbitrary or draconian in nature. Or does it mean law in its general sense as under article 14 (equality before the law-as it is connected with justice, as a generic system.). The law should be seen in a broader perspective. So mere state made law should not be able to deprive you of your right to life. So according to him , the law mentioned under this article is not law that is but law that ought to be. ->He also said that when you say procedure established by law, the procedure should be a valid one. Its validity should not be based on the fact that a law has passed such a procedure. Its validity should be derived from its reasonableness and justness. ->What if while depriving him of his right to life and personal liberty you violate other rights of his such as right to free movement being violated, you also violate right to equality as he has been singled out. So the restriction should satisfy all the tests for all the fundamental rights. So it should not only satisfy 21, but also 19 (reasonability under 19(5)) and 14 (reasonable classification). Rights cannot be read in isolation.

The court says that 21 is about personal liberty. So there is a personal angle to it. The right under article 19 is a general right. General article on liberty is 19. Only 21 covers personal liberty. The court was divided into three: majority, separate concurring and dissent.The court said that law is law that exists. Did not accept the morality argument. The court said that the procedures established by law are not due process. Due process was rejected by the constituent assembly. Our law does not require due process. Only the procedure needs to be followed. Will not look at its reasonableness.The court also said that the rights cannot be harmonized. The rights will be looked at as being separate from each other. Justice Kaniya, Mukherjee and DasJustice Pathanjali Shastri concurred. He agreed on all counts, but he said the procedure should be not what this law follows but what the procedure established generally by the CrPC or CPC. The procedure laid down cannot be vastly different from the procedures other general laws lay downDissent: Justice Fazal Ali. Due process judge. Procedure must give you a natural justice hearing. Mithu SinghSec 303 IPC. Death sentence to individual who has murdered someone else while being on trial for murder.   

1st March01 March 201311:42 Gopalan refused to admit the need to interlink fundamental rights and their restrictions with each other. Right should be read in conjunction with each other. But the tool that they could use was due process, but this had been rejected by the constituent assembly. Reasonable just means due process. When related to property, to provide for just compensation also involves use of due process.The amount had to be in some congruence with the market rate. But this interpretation was coming in through due process. But due process could not come into 21, though it was being used in 14 and 31->mostly because there were no express words used like procedure established by law. linking of rights was also not possible. In *) RC Cooper v Union of IndiaBank Nationalization->just compensation to be paid. For the first time interlinking of fundamental rights by the SC. Linkage of 19(1)(f) and 31. both are related to property. So get combined reading and combined effect and

then decide. So due process element of justness was used and there was linkage of fundamental rights for the first time. Something that the court had expressly ignored.  *) Maneka Gandhi v Union of India (1978)Passport was taken away because of violations. Said that it affects right to life. Violation of 19 and 21 rights. Bhagwathi said: 21->the procedure described under 21 has to be a just, fair and reasonable procedure. Also said arbitrary procedure is against the principle of equality. The procedure must be unbiased. He got in the notion of procedural due process. Interlinked the fundamental rights. Forms the Golden Triangle between 14, 19 and 21. if any law is tested on the touchstone of any of the three, it must be tested on the other two as well. It must satisfy all three, only then it is constitutional. If it violates any one of the three, then it will be unconstitutional. The express linkage is limited to only 14, 19 and 21. Life and personal liberty have a lot of meanings. Wide plethora of meanings. Meanings got from part 4, which was non enforceable, were made enforceable by reading them into life and personal liberty.  What elements of due process did he bring in? Procedural or Substantive?The consequence of expanding the meaning of life and personal liberty leads to substantive due process.   *) Munn v IllinoisRight to live does not mean mere animal existence. It includes the right to live with human dignity.  *) Bacchan Singh v Union of India (1983)Rarest of rare doctrine for death penalty was laid down.The majority said that the law as such would not be tested. Only the procedure to be tested. Said only procedural due process was given by Maneka. Said that the law just needs to be validly passed. Bhagwathi dissents (so cool! :D): said that you cannot separate law and the procedure. Said he brought in both substantive and procedural due process.  *) Mithu Singh (*1983)Mentioned previously.Sec 303 challenged on the basis of the law itself and not the procedure. Murder committed by a life convict condemns him to death penalty. Bhagwathi said there is substantive due process, and sec 303 was declared unconstitutional->creates arbitrary classification, creates compulsion on the court. Substantive due process was established.  

Strict scrutiny, compelling state interest: are variations of substantive due process.  Check up what was included in life and personal liberty from any textbook.  Does right to life include right to die?Right to die involves:

1. Suicide-self killing2. Passive euthanasia-life support system of a patient is removed. 3. Active euthanasia-administering of lethal drug to patient by doctor'

 The first three cases did not deal with euthanasia. Only suicide was dealt with. Attempt to commit suicide is an offence sec 309 of IPC. This was challenged by the convicts as to its constitutionality. *) MS Dubal v Maharashtra 1987 Bombay HCPolice constable, who met with an accident and got mental illness. Tried to immolate himself. Convicted, and challenges sec 309. HC said 309 violates article 14 and 21. Court said:According to RC Cooper, FR are to be read together. What is true of one should be equally true of the other.As right to speak also includes right to not speak, so right to live should also include right not to live. 14 violated by sec 309. there is no definition of suicide, so punishment for an offence which is not defined is arbitrary and so violates 14.  *) C. Jagdishwara v AP (HC)HC of AP. Court held that sec 309 is valid and is not hit by 21. if 309 is removed, then state will have to deal with people resorting to hunger strike to pressurize the government. Also 306 (abatement of suicide) will have to be removed if 309 is removed because if primary offence is not an offence then its abatement will also not be an offence. Not a necessary consequence, but validity of 306 may be challenged in future. *) P Rathinam v Union of India (SC)Convicted under 309. challenged. SC said 309 violates 21. said:

1. FR are to be read together: right to speak and not speak, so right to live also includes right to not live.

2. Subjecting a person who survived suicide is cruel. Also held in Deena v Union of India (1983 SC)-any cruel law is violative of 21. so it violates 21.

3. The law commission in 42nd report suggested that 309 should be removed from the statute books

4. Theological arguments

It violates 21. does not violate 14 *) Gian Kaur v Punjab (SC)Convicted of abatement of suicide under sec 306. main argument: 309 is no longer an offence, then abatement is not an offence. Aiding with right to die.Court said 309 does not violate 21. logic in Rathinam was criticized->that right to live includes right to die. Said right to silence is an abstention. There is no positive action required to exercise it. But right to die requires an overt action. And hence they cannot be read together as the rights under 19 and 21 are dissimilar.21 has an object of protecting life, so extinction of life cannot be covered under 21.  *) Aruna Shanbaug (SC)Euthanasia aspect examined for the first time. Court held that active euthanasia cannot be valid under 21. but passive euthanasia is not a crime within any of the laws, so it is lawful. The court also laid down framework for carrying out passive euthanasia.

1. Report from doctors that patient is terminally ill, or in a consistent vegetative state-receded into coma.

2. HC allows passive euthanasia3. Person or near relative has given consent.

   SNAP TEST ON 18th Oh wow >.< Shincha Khamsahamnida >.<

4th March04 March 201311:39 *) NI CaterersParallel laws. Government can chose any one of the laws. Is this discretion? Application of general law of rent control or special legislation which empowers a special tribunal to hear the matter and a summary procedure is to be adopted. What is the basis of choosing one over the other? Government said it allows speedy disposal of justice. Special legislation used when unauthorized persons are to be evicted.SC said conferment of discretion without control or guidelines is unconstitutional. There were no guidelines on how the law would be chosen. *) Maganlal ChaganlalSimilar circumstances as above. Advantageous to government. Two laws running simultaneously, discretion of the government to chose. SC said that conferment of discretion by itself is not unconstitutional. The government can decide which law is to be applied on the basis of facts and

circumstances. Adequate reasons to chose between the two. So it was upheld as constitutional. Discretion should be exercised in a reasonable manner. Right is conferred against the state.Presumption in favor of constitutionality in legislations. So apply this presumption in administrative discretion as well.  *) EP Royappa v State of Tamil NaduSenior IAS officer who deserved the post of 'Chief Secretary' was not given this post because there was no vacancy. So he was given the position of deputy secretary of planning commission instead. Government argued that it was equal in position to Chief Secretary in all aspects. Also said there was no mala fide consideration. Petitioner said there was political vendetta against him. So mala fide exercise of power. But he could not establish mala fide or ulterior motive of the government. SC (5 judge bench) unanimously said that there was no mala fide. The petitioner could not prove the existence of any mala fide. Separate judgment by Justice Bhagwathi: historic judgment. It propounded the new doctrine of equality . It is not to be identified with the doctrine of classification alone. Equality and arbitrariness are sworn enemies. Doctrine of reasonableness is an essential component of right to equality. Reasonableness reflects proportionality or commensurarity (I don’t know if that's the word he used). Vagueness allows certain amount of discretion which is constitutional. Reasonableness: action should be justified by reasons. If the action is in proportion to the offence, then it is said to be reasonable. *) E & E Company case Government has a list of approved contractors for entering into contracts. Sometimes non performance of work or non payment of dues or poor quality of service may result in blacklisting of the contractor. This is justified. But if the government blacklists out of malice, it is unreasonable and unjustified. Because the government's act cannot be explained with justified reasons. Blacklisting held as unconstitutional because there was no procedural safeguard. Government acted arbitrarily-> no notice or hearing. Every law is an infraction of liberty. But its existence is justified on the grounds of greater good. But if the law is more evil than the evil it aims to counter, then it is unjustified. *) Mithu Singh v State of Uttar Pradesh

Doctrine of reasonableness applied. Imposition of mandatory death sentence - sec 303 IPC. (Covered before :P) No discretion to the judge. Has ti be imposed even in extenuating circumstances. SC went for substantial analysis of 'procedure established by law.' Sec 303 IPC struck down as unconstitutional.Justification for imposition of death penalty is based on facts and circumstances.  *) RD ShettyDoctrine of reasonableness was applied. Court will examine whether there is proportionate or reasonable exercise of power. AAI: applications for hoteliers->only class I hoteliers to apply for contracts in international airports. After bids were placed, a hotelier who belonged to a category lower than Class I was given the contract. Another person of the same level argued that they should have not said that only Class I could apply if they were awarding the contract to someone who was in a class lower.Court cited the case of EP Royappa.There should be equality of opportunity to compete to obtain a governmental contract. Exercise of discretion from the angle of reasonableness. *) Ajay HasiyaArbitrary use of power by interviewing board of engineering college by giving disproportionate marks to less deserving students.   

5th March05 March 201314:42 *) EP Royappa Made an impact on public law. SC gradually developed activist interpretations. Equality and arbitrariness are sore enemies. Proportionality of law. Its implications were not contemplated. But it was applied in subsequent cases. Government should not deny equal opportunity in case blacklist is made with prejudice or without reasons. *) DTC v DTC Mazdoor SabhaDTC adopted a service rule which provided that DTC could terminate an employee by giving three months notice. No opportunity to hear the employee. Regarded as violative of 14. there was no guideline on its use and it could be used in an arbitrary manner. Right to equality operates at two levels where discretion is concerned:

1. Unguided discretion can be nullified as violation of 14

2. Unreasonable exercise of discretion (though with guidelines) which has mala fide considerations can also be nullified as violation of 14.

 Economic privileges are distributed by the government. But if the government distributes in a mala fide or arbitrary manner, then it violates 14. *) Common Cause v Union of IndiaPIL filed against Petroleum Ministry for distribution of petrol bunks arbitrarily. SC quashed the distribution as unconstitutional and imposed fine on the minister. *) Srilekha VidhyarthiAfter State general elections, the newly elected government terminated all existing government pleaders and advocates and appointed new ones (these were connected to the ruling party). SC nullified this arbitrary appointment. *) Kasturilal v State of Jammu and KashmirIn the distribution of resin, there was no auction. Based on government preferences. But SC found no malafide. So it was upheld, though non-arbitrariness principle was put into application. Petitioner was not able to establish corruption *) Cricket Association of Bengal v Ministry of BroadcastingRight to broadcast is a part of speech and expression. But right to use the spectrum is not a fundamental right. SC said the ministry should act in a fair manner when allotting the telecasting rights. Spectrum can be made available only by the distribution of the government. Maximization of profit will be an important consideration. Proper method of distribution to be used. Authority for: use of spectrum cannot be claimed as a fundamental right *) 2G Spectrum case: Centre for Public Interest Litigation v Union of IndiaPrinciple of non-arbitrariness. ->Preponement of cut off date: The ministry fixed a date for allocation but later preponed the date. So companies who may have applied were denied the opportunity to apply.-> Regulations adopted by TRAIPreponement of the date was arbitrary and done with the intention of preferring some over others. Policy of first come first serve reflects a rule of capture. It will be a matter of accident. So it cannot be regarded as appropriate. It is discriminatory. Also held to be dangerous because powerful firms will have an advantage. It also raises the issue of who comes first. The person who has the information will

naturally apply first. Those connected with government agencies. So they get a preferential position. SC said auction is the sole method of distribution. *) In re Natural Resources AllocationThis case referred to Kasturilal v State of Jammu and Kashmir. SC gave opinion that auction can be one of the methods but it is not the only method. Came because of Presidential reference in 2G case. Is auction only method? Must be fair method of distribution.The SC observed at para 141 that auction though preferable, it cannot be held as a constitutional requirement for distribution of natural resources. More important is the proportion of public good and maximization of revenue. If arbitrary, then it violates 14. this is used for allocation of all natural resources.  Certain amount of vagueness about application of doctrine of reasonableness. Mathematical formula not possible. Reasonable classification goes in for comparative analysis.  In Germany, the doctrine of proportionality is one of the core principles of public law. Reasonableness is applicable to 21 when considering procedure established by law as well (As stated in the case of Maneka Gandhi)   

6th March06 March 201315:41 Article 1515(1)-no discrimination only on basis of…Two interpretations:

1. Discrimination on grounds other than those mentioned. Any other factor which influences the differentiation. The differentiation is not based on the forbidden grounds alone

2. Effect of the differentiating clause *) Madhu Kishwar v State of BiharLitigated against discriminatory legislation against tribal women. Devolution of property on only male heirs. Challenged saying it was discrimination. Gender discrimination. Women should also have the right.SC said the law is not entirely based on differentiation of sex. Tribal factors and religion is also operating. So the legislation cannot be nullified. The court did not want to open a floodgate of litigation. The court asked the state to reform by statutory legislation. But tribals did not want change. Also applied 21. spoke about the right to maintenance. So the method of saving the

legislation was to make the male heir's right subject to the woman's right of maintenance. This was the majority judgment. Dissent: if we apply the convention of removal of discrimination against women, then it should be held unconstitutional. Or else, it must be held that male heirs include female heirs as well. Reading down of the operation of the legislation. Its scope was read down to save its constitutionality. 'on grounds of only'-interpreted in a way to take the effect into consideration. *) State of Bombay v Bombay Education Society (1954)29(2) case. State wanted to limit activities of English medium schools. Said can admit students only from Anglo Indian families, or those children who claim English as their mother tongue. Language is a prohibited ground under 29(2). So is the legislation entirely based on language?SC said that they need to look at the effect of the differentiating clause. The ultimate effect will be discrimination on the basis of language. Legislation was held unconstitutional. *) Yusuf Abdul Aziz v State of BombaySec 497 IPC challenged. Deals with adultery, the paramour of the wife is prosecuted. Section differentiates between male and female. Is this discriminatory? Bombay HC: applied the effect test laid down in the above case. Said it was not entirely based on sex. Had other cultural factors as well. The author of the crime is always the paramour.Appealed to the SC. SC said that the issue is under 15(3) and not 15(1), so under special provision for women and children for their protection. So women protected from being charged for adultery.  *) Soumithri Vishnu v StateSC upheld sec 497 IPC that it is in accordance with 15(3). The husband and wife cannot prosecute each other. But they have remedies under marital laws. Classification on place of birth*) DP Joshi v State of Madhya BharatState provided for differences in fee structure for MBBS course. People with domicile of the state would have lower fees. People coming from other states would have to pay captation fee of Rs. 1500/-Differentiation on grounds of domicile-does this lead to place of birth?SC said factor of domicile is different from factor of place of birth.Factor like long residence may be justifiable according to the circumstances. As the college was built by the State, so benefit should be given to the people of the state.

Discrimination was thus not based on place of birth.   

8th March11 March 201315:29 15(1)Discrimination on basis of place of birth *) D P Joshi v State of Madhya BharatMoney spent by state should benefit the people of that state. Court found differentiation based on domicile and not place of birth. This has given rise to controversial policies by States. *) Vasundhara v State of MysoreGovernment policy-> all medical seats reserved for domiciled students. Constitutionality tested. SC used Joshi's principle and held it to be appropriate. The policy adopted continued in:*) Mohini Jain v State of Karnataka Capitation fee regarded as violation of 21-right to medical education. Higher fees paid by non-state students. Imposition of a capitation fee considered unconstitutional. *) Unnikrishnan CaseDP Joshi principle upheld. Higher fees-> paid seats and free sears in medical colleges. Higher fees on less meritorious students. Fees would be decided on the basis of merit as well as ability to pay. Said distribution of paid seats should also be on the basis of merit.(what are ze facts? :P) But this suffers from both over- and under-inclusiveness. This case has been overruled. By TMA Pai I think Discrimination between people of the same state. *) P Rajendran v State of MadrasDifference between districts is unconstitutional. *) TMA Pai foundation Overruled UnniKrishnan. Did away with difference between paid and free sears. No difference between management and free sears. Can go for limited NRI quota, but also distribute on merit *) PA Inamdar

Self financing institutions would ask for higher fees from NRI students. Court supported their financial needs in the absence of any state aid Discrimination between people of same state is not domicile. It is unconstitutional.*) Pradip Thandon v State of Uttar Pradesh District distribution of seats unconstitutional. But can have special provisions for SC, ST. Joshi principle-denies equal opportunity to people from other states. Relation to opportunity in Public EmploymentResidence is not a ground for discrimination. 15(2)-various types of discrimination in access to public property. Applicable to state and private service providers. USA-extension of doctrine of state action brought private action under purview of rights.India-specifically mentioned where private action is applicable 15(3)-special provisionIf 15(3) an exception to 15(1)?If yes then provision should be construed narrowly. But this is not appropriate for equality clauses. 15(3) promotes substantive equality so it is an independent right on its own. *) State of Kerala v NM Thomas16(1) and 16(4). 16(4) is not an exception to 16(1). Independent existence. Gender justice is the principle behind 15(3). Discretion of state to make special provisions. *) TNT SC, ST Employee Welfare association v State Bank of India*) SBI SC ST Employee Association16(4) does not confer any right on petitioner or duty on government to make reservation.So there is no claim for reservation as a matter of fundamental right. *) Dattatreya v State of Bombay / Anjali v State of West BengalReservation for women in local bodies was upheld by both HCs as with 15(3) *) State of Andhra Pradesh v PV Vijaykumar30% posts reserved for women. Policy questioned->backward classes reservation possible under 16(4). But no mention of women so cannot use

15(3) instead of 16(4). Court said 15(3) can be used as the basis of reservation. Used to empower women and their status will be elevated.In the absence of special provisions, interest of women is not adequately protected. *) Indra SawhneyWomen are vulnerable, no matter what strata of society they come from. Mandal Committee report under question. Vertical reservation on the basis of sex. Horizontal reservation for caste *) Gayathri Devi v State of OrissaDistribution of opportunities to run medical stores. Government policy 30% of such to be earmarked for women. Fits 15(3). *) Rakesh Kumar Gupta v State of Uttar PradeshReservation made 50% in teachers for women was justified. *) Air India v Nargis MirzaDifferent approaches related to air hostesses violates 15(1) and 15(3). *) Air India Cabin and Crew Association V Yashaswini Merchant (2005)Air India policy->air hostesses will retire from flight service but continue as ground staff. This does not violate 15(3). Prohibition of employment of women in bars->is this for the protection of women?Legislation struck down as unconstitutional.   

9th March09 March 201310:38 Discussion of different expansions of right to life. And the later interpretations of right to freedom. Due process principle. Cases which expanded 21:*) Francis (covered before)Right to live with  *) all MC Mehta casesRight to fresh air and water. These were directive principles which were never seriously considered by the judiciary. Maneka Gandhi's case said that life and personal liberty are an omnibus of terms and include many other

things. So the SC said that right to life includes right to clean air, clean drinking water, etc. so DR are being included under article 21. so though DR are not enforceable, they become enforceable when they are read into 21. *) Olga Tellis v BMCRight to shelter as part of 21. rehabilitation of pavement dwellers.  *) Soden Singh v New Delhi Municipal CorporationAbout pavement squatters who sold their merchandise. They were evicted. So they went to the SC. Said their right to trade has been violated. Violation of 21 which is right to shelter and right to trade. SC said they have a right to trade. But they did not have the right to trade in a particular place. The state is not duty bound to ensure that you continue to trade in the same spot. So right to trade is not affected. Right to trade is subject to public interest. Can be reasonably restricted.  *) Narmada Bachao AandolanSardar Sarovar project. The dam would submerge areas where the tribals resided and grazed cattle. The World Bank decided to fund. The SC said that first EIA must be done. WB backed out, and private funding came in. SC said that the height cannot be beyond a certain height. If you want to do so, you must satisfy the court that you have taken enough alternatives.The SC finally said that they can increase the height. No more concerned about rehabilitation. The SC said that development is legislative and executive prerogatives and are not the consideration of the judiciary. This ignores the fact that the judiciary has been examining policy decisions in the form of examination of presidential pardons, due process rules.The SC asked the lawyers for the state whether they have been resettled. They said that they have been settled in Maharashtra, where their conditions are vastly different.  Right to shelter, right to health, right to education, conservation of physical environment, protection from harmful chemicals, Right to privacy, right to speedy trial, right to free legal aid, right against handcuffing, right against sexual harassment at the workplace.  This expansion has not only made DRs enforceable, but also made international conventions enforceable. The expansion of 21 gave the Vishaka judgment its significance.  Is due process not applicable to laws passed under 15(3) and 16(4)? Two forms of equality: formal and substantive equality. Substantive equality talks about substantive due process. Questioning the rational behind the law.  

The binding element in the golden triangle of FR is the question of due process.  

 

  

11th March11 March 201319:01 *) Vishaka v State of RajasthanThe conduct of the employee which causes sexual harassment is violative of the constitution.Fact: Gang rape of woman social workerVacuum in in law was filed by activism by the court.SC laid down guidelines and said that this would be law until a legislation covering sexual harassment is passed by the parliament.SC said the guidelines were tentative. Imposed obligation on the government to amend service rules. Also applicable to private companies. Workplace is any institution, so even educational institutions are covered. Employer has a duty to publicize the rules against sexual harassment. 14, 15(1), 15(3), 19, 23, 46 and international conventions were used. Special provisions for children *) Lakshmikanth Pandey v Union of India

In the absence of law relating to transnational adoption, SC felt the need to develop guidelines to protect the interest of the children. Said certain procedures should be satisfied: the agency should be registered, the adoption should take place as a court of wards decision, the court of wards must also look into post adoption welfare of the child. 15(3) and 23 were used. Both were integrated. 15(4)Inserted through 1st constitutional amendment. Because SC said in:*) Champakam DorairajanSC said that you cannot have caste based reservation for educational seats. Caste based differentiation is unconstitutional. State argued under 46-promotion of SC and ST. Court said that directive principles cannot be used to violate the principles of fundamental rights. This made the parliament pass the first constitutional amendment15(4)-special provision for SC, ST, and socially and educationally backward classes.Article 341A-parliament can alter list of SC and ST by passing a law. But there was no trace of reservation or substantive equality in any constitution in the world. Governal maternalism-justified for SC, ST. but it may create weak citizens, who are inefficient. Reservations are adopted along with the principle of equality. Substantive and formal equality. Possible conflict between the two.The reservation is not to compensate but to promote social justice. But it must be done in a manner which satisfies the rule of law.So excessive reservation violates 1st principle of equality and cannot be allowed. Evolution of principle->extent of reservation cannot be more than limit of 50%->identifying-appropriate identification of beneficiaries by looking at several factors and not just caste->what type of benefits-balancing principle Development of law under 15(4) and 16(4) took place in a similar manner. 16(1)-equality of employment in public employment16(2)-no discrimination on race, religions, caste, sex, descent, place of birth or domicile.15(1)-race, sex, caste, religion or place of birth.  16(1)-has several dimensions->recruitment to pension. Equal payment for equal work. 

*) Randhir Singh v Union of India Different departments had different pay scales for drivers. SC held it to be in violation of 16(4). *) Mandavar v State of Madhya PradeshDifferences between states do no violate 16(4). As each state has different financial capabilities. *) M NagrajUpheld reservation in promotions but held that certain conditions have to be met while using 16(4)Compelling evidence to show state interest.   

12th March12 March 201314:23 Extent of reservationGeneral approach of court to strike a balance between interest of the particular class or caste and society as a whole. This balancing is found for minority rights as well. The rule is 50%. It is generally followed, and has not become a constitutional principle (16(4)(b)). But in exceptional circumstances, it may be increased for filling up the backlog of previous years. For SC ST and any backward classes. *) MR Balaji v State of Mysore (1964)Constitutional validity of reservation beyond 50% questioned. 57% reservation in medical colleges for SC ST. SC nullified it and called it excessive. Said that you have to ensure scope for excellence is adequately provided. Administrative efficiency acts as a limitation on 16(4). 16(4) is an exception to 16(1)?15(4) is an exception to 15(1)?If this were true then it means that 16(4) and 15(4) should be construed narrowly and not vitiate the general rules of 16(1) and 15(1).This is incorrect.

*) State of Kerala v NM Thomas16(4) is not an exception to 16(1). Different relationship. Rule providing exemption from test for promotion for SC ST for 2 years. This rule was challenged. Said 16(4) is an independent right. 50% rule was doubted. Relaxation in case of promotion of SC ST is justified in exceptional circumstances. Reasoned on the basis of 46+16(4). 

*) Vasanth Kumar v State of Karnataka Restoration of 50% rule. Government wanted 58% reservation. Court said Balaji principle said reservation cannot be beyond 50% and so it was unconstitutional. *) Indra Sawhney v Union of IndiaReservation not beyond 50%. Else it would violate the first principle of equality. Substantive equality should balance with formal equality. Reservation is not the only method of enhancing substantive equality . In some far flung areas, it is possible that some sections of society have no access to education. Their level of backwardness will be so high that reservation above 50% may be essential for them. *) SBI + TNT ( yesterday's notes please! :) ) SBI has the right to decide the need for reservation for SC ST on the basis of its judgment.  *) M Nagraaj State should provide documentation showing compelling need for reservation. Reservation is a factor of social necessity. This necessity should be proved by adequate data. *) Chakradar Paswan v State of BiharReservation possible when there are plurality of posts. Not possible for single post as that becomes 100% reservation. *) Raj Kuar v Gulbarga UniversitySingle posts can be pooled and then reservation can be made.  *) Madhav Case/ Narsiman CaseChakradar principle cannot be applied. 1 vacancy. It arose because of leave. It was to be filled temporarily. The eligible candidate could be selected without violating Chakradar principle. No longer relevant after Indra Sawhney *) PG Institute of Medical Education and Research v Faculty AssociationSC overruled Madhav and Narsiman5 judge bench-no reservation in a single post vacancy.   

13th March13 March 201310:39

 Article 16(4)(a)It was introduced to overcome the problem of overruling some of the other cases. In Indra Sawhney, said that reservation in promotion was violation of equality. But this went against the Rangachari and Devdasan cases, which had upheld such reservation.  Indira Sawhney said the rules would not come into effect for 5 years and then legislation for adjusting to the new rule should be made 16(4)(a)-reservation in promotion should be permissible for SC ST.Will this have the effect of providing consequential seniority or will catch up rule of seniority apply instead?Catch up rule had this implication: several people appointed, seniority on the basis of their date of appointment. It will be the crucial factor for determining seniority at the lower level by each department. This seniority will be maintained at the level of promotions as well. The order of seniority is to be maintained at promotion. But 16(4)(a) has the effect of disturbing this order as it allows the SC ST candidates to get early promotion. So should consequential seniority be maintained/ *) Ashok Kumar GuptaThe above question came up. SC ruled that it is the same principle of seniority that has to be maintained at the higher level. For SC ST, it is on the basis of date of appointment that seniority is to be maintained. SC ST promotions are preferred. So their seniority at the higher level after promotion to be maintained. *) Ajit Singh JunejaOverruled above. Not possible to apply consequential seniority by 16(4)(a). It will affect the morale of the service. Service rules provide for catch up rule. So the seniority order should be maintained irrespective of the fact that the more junior candidate was promoted first. But this was found to be disadvantageous to SC ST.So consequential seniority was to be implement as a clause in 16(4)(a). This obliterated catch up rule for SC ST.   This was questioned in *) M Nagaraj v Union of IndiaWhat is the meaning of consequential seniority. Is 16(4) constitutional.SC: the catch up rule is a service rule and cannot be elevated to the position of a principle of equality. 16(4) (a) and (b) were held to be valid. But the court brought in extraordinary changes. They need compelling state interest

The court insisted that backwardness of the community and inadequacy of representation and need for reservation for promotion to be proved by valid data beyond doubt. Stringent requirements. Used article 335.   117th constitutional amendment bill-pending before SC. SC and ST shall be deemed to be backward. And so no need to prove backwardness with empirical data. Promotion with consequential seniority. This intends to nullify the effect of the UP Power case and the Nagraaj case.   *) UP Power Corp limited v Rajesh KumarService rule of UP: catch up rule would apply for all except for SC ST promotions. SC said that mere recognition of consequential seniority is not enough. The state must also satisfy the criteria laid down in Nagraaj. A service rule which simply provided that catch up rule would apply to every one but SC ST, this type of barred rule cannot be allowed without the criteria in Nagraaj being satisfied.   The SC was in favor of maintaining some technical posts beyond the reach of reservation. For highly specialized posts. Indira Sawhney case. Indira Sawhney has been applied in several other cases. e,g, seats for post grad medical studies. *) Preeti ShrivastavaGM-45% marks. SC ST-20% marks. This was nullified.  *) AIIMS Medical Students AssociationObservation: no sound mind can consider 15% marks to be passed. It goes against academic excellence. Also would be disastrous for medical science. Why should seats go to the mediocre when there are meritorious students available. Courts sought to maintain sanctity for specialized courses away from reservation  Identification of backward classesThe term class is used and not caste. So possible to identify any group as backward class.Indira Sawhney sought to use the creamy layer test in the identification of the classes. Looking at the affluence of the person. The creamy layer test was misused. In UP it was provided that to fall under creamy layer, the person should have income more than 10 lakhs a year, or should have a certain amount of land.

So it excludes people who deserve the reservation. Struck down in Ashok Kumar Thakur case.  Kerala govt. decided not to apply creamy layer test as no community fit its criteria. Struck down as unconstitutional  Indira Sawhney: creamy layer test only for OBC and not for SC ST.   *) EV ChinnaiahThere are 105 SCs they were treated as though coming from the same category. But there was hierarchy within the SCs itself. So benefit of reservation would only go to the creamy layer SC. Raju commission: said split the castes into 4: Mala, Madiga, Rewa and Miero.Madiga belonged to scavengers who were excluded from various benefits. Deprived on share. So sub classification on the basis of their population to give reservation within the reservation allocation given to the SC community as a whole.  SC said that it amounted to over classification or microclassification. This results in inequality. But this observation is problematic.Under 342, only the president can notify SC ST. any modifications would have to be done by the parliament. The AP legislation had the effect of altering the very composition as scheduled castes. Legislative incompetence. OmmaAppa/ AbojhiNoonaUnnieOppaDonsaengAjhussiAjhumoni-sshi   

15th March 15 March 201311:42

Reservation There is a difference between 15 and 16, the two main sources of reservation. Grounds on which you cannot differentiate is different for the two articles (I think I've mentioned this before) two additional grounds in 16-place of residence and descent. DP Joshi-> violated 15 because it was not related to public employment. SC said you can have domicile based reservation for education. Because 15 does not talk about residence. So you can have domicile reservations under 15. but not under 16 because 16 talks about no discrimination on the ground of residence. State wants to train its own residents. So want to spend on its own residents.   Pradeep Jain-> Bhagwathi said that national integration is important. But you can still have 50% reservation on the basis of domicile. But reservation only at the entry level. No reservation at the post graduate level or super specialty level. Caste based reservationDoes class include caste? Read 15(4) and 16(4) together. But there is a difference in their origin.

 15(4)-SC, ST and socially and educationally backward classes16(4)-backward classes.  15(4) was added through the first constitutional amendment After Champakam DoraijanCaste based reservations. And there was no 15(4). So the reservation was declared unconstitutional as violation of 15(1).  So amendment brought in 15(4).  

1. What determines backwardness? Caste? Sex? Sexual orientation? Economic power?

2. What is the maximum permissible quantum of reservation? Not possible mathematically to determine what is backward on criteria other than caste *) MR Balaji v State of Mysore (1963)The SC said caste is not the sole determinant of backwardness. It can also be poverty, occupation, place of habitation, etc. *) R Chitralekha v State of Mysore (1964)Two basis of classification: economic condition and occupation. No caste. SC said that it is constitutional. This case is important because it DOES NOT have caste as one of the factors for reservation and yet it was held as constitutional. *) P Rajendran v State of Madras (1968)*) P Sagar v State of AP (1968)Both states have two basis of classification in which the predominant factor of classification was caste.Madras-it was upheldAP-declared unconstitutional.  *) State of UP v Pradeep Tandon (1975)Reservations on different aspects. Reservation-rural areas, hilly areas, uttarakhand areas. Classification is based on geographical locations.SC-backwardness must be both social and educational. So even if caste is not one of the factors, it is constitutional. What determines backwardness? Traditionally unchanging positions of people. Place of habitation, environment. So caste is not the sole criteria. So mostly upheld, except the reservation for rural areas. Because staying in rural areas does not mean you are backward.  

 Gradually the court decided that only caste based reservation is relatively error free.

 

  

16th March16 March 201310:40 *) Jayashree v State of Kerala (1978)Caste and poverty are both important factors.  *) KC Vasanth Kumar v State of Karnataka (1985)5 judge bench. But 5 different opinions. Chandrachur: what is backward class? It is comparable to SC and ST in the matter of backwardness. They should also satisfy economic criteria. In other words, they should not be above a certain average income level. Desai: the only criteria is economic backwardness. Not caste. Chinappa Reddy: primary test is class poverty. The other factors could be caste, residence, etc.Sen: the only factor is poverty. How do you measure backwardness? Can use caste as a factor. Venkatramiah: three factors: caste, means or economic condition and occupation.

No clear idea of whether caste is a or the factor for reservation. Most had the economic criterion. But they differed on factors in addition to economic factor.   What should be the quantum of reservation?*) General Manager Southern Railway v S Rangachary (1962)SC allowed reservation in promotions.  *) Balaji (1963)The govt. rule provided for 68% reservation. SC said it is unreasonable. Maximum reservation can be 50%. SC said 15(4) and 16(4) are exceptions to 15(1) and 16(2). The exception cannot become bigger than the rule. The scope of the exception should not be greater than the rule itself. So the maximum reservation should be 50% and no more. *) Devdasan v Union of India (1964) VIMPReservation up to 17.5%. But this reservation was subject to a carry forward. If quota wasn’t filled up that year, then the empty seats can be filled up next year in addition to next year's quota. The govt. said reservation is less than 50%. SC declared carry forward to be unconstitutional. Can have up to 50% but cannot have carry forward of the reservations.  *) State of Kerala v N M Thomas (1976)IMP because it said that 15(4) and 16(2) are NOT exceptions. The exception rule was refuted. 15 and 16 cannot be read without 14. 15(1) and 15(4) together in harmony to ensure that the goal of 14 is reached. They should be read together. So you can have reservations over 50%. Reservation up to any extent is possible. This is the case which said that FR and DP must be read together. So 46 was read with 14, 15 and 16. 46 can only be implemented if 15(4) and 16(4) are not read as exceptions. The directive principles along with the fundamental rights are fundamental to the governance of the country.  Political XDNon Congress govt. at the center. Said would give social justice. Gave rise to Mandal Commission report, which caused an uproar in the country. Two orders:

1. 27% reservation for SEBC Socially and Educationally backward classes . Already 15% for SC and 7.5% for ST so total reservation was now 49.5%

2. Preferences to poorer SEBC. Another 10% to OBC other backward classes. This order came a year after the first. So now total reservation is 59.5% 

*) Indra Sawhney

The SC had a 9 judge bench-6:3Majority said: first scheme is fine. First part of preference in the second scheme is fine. But the second part is not. SC said caste is an important factor for determining backwardness. In some cases, caste can be the sole determinant for determining backwardness. Equating class with caste. SC said they need to pay obseiance to historical backwardness. You have to have caste with other factors if they can be scientifically proved. You cannot have classification without caste. Caste could be used as one of the most important parameters, if not the sole parameter for determining backwardness. So the court as good as said that class is equivalent to caste. SC also said that cannot have more than 50% reservation except in exceptional circumstances, such as a far flung area where the majority may be backward.Overruled Both Rangachary and Devdasan.Carry forward is allowed, but it cannot exceed 50%. Also you cannot have reservation in promotions.   Constitutional Amendments:77th amendment 199516(4)a added-allows for reservation in promotionsThen 81st amendment 200016(4)b-carry forward beyond 50% allowed82nd amendment 2000Proviso to article 335:can have reservation even to the extent of compromising administrative efficiency for the ends of social justice.  85th Amendment 2001Amended 16(4)a and brought in consequential seniority All of these were upheld in: *) Nagraaj.But the state must show a compelling state interest for taking such steps. *) UP Power corporation v Rajesh KumarDeclared unconstitutional because it assumed backwardness. The SC said you need to show compelling state interest.  Nagraaj: said 14, 15 and 16 are a part of the equality code.   

17th MarchHappy Birthday Shriya! ^_^18 March 2013

19:02  

18th MarchHappy Birthday Evania! ^_^18 March 201314:31Constitutional Amendments:

1. 1995 77th amendment 16(4)(a) added-allows for reservation in promotions for SC and ST. Legal dispute: Preeti Shrivastav (covered before)10% relaxation given to SC and ST at all levels in terms of qualifying marks4:1 said cannot have relaxation at MD level, though it is permissible at MBBS level. The SC made a referred to article 335 of the constitution. Reservation subject to efficiency. Reference to 335 for the first time. The courts said that all the reservation policy have to be consistent with efficiency. Relaxation has to be broader rules of efficiency and merit Then 81st amendment 2000 was passed.Brought in 16(4)(b)-carry forward of vacant posts beyond stipulated limit 50% allowed. 50% limit was a judicial creation. Not explicitly mentioned in the constitution. This amendment brought in the explicit mention of the 50% rule in the constitution. 82nd amendment 2000Proviso to article 335:can have reservation even to the extent of compromising administrative efficiency for the ends of social justice. Direct answer to Preeti Shrivastava case. Exception is bigger than the rule.  Does the state need to show requirement for reservation?    Consequentially seniorityX and Y got job at same level in a bank. X joined before Y. so X is senior to Y. X is general candidate Y is a reserved (SC) candidate. X is senior to Y. Reservation in promotion: Y gets promotion before X.X get the promotion after a few years. Now Y is senior to X, as Y had got promotion before him. Consequential seniority means that irrespective of the fact that you got promoted because of reservation, the minute you are promoted before the senior, you become senior to the old senior.  Catch up rule: when X gets promotion, he will again be senior to Y.

 *) Ajit Singh JunejhaConsequential and catch up rule. No consequential seniority. So will apply catch up rule.  85th Amendment 2001Consequential seniority to apply *) M. Nagraaj v Union of India Asked to invalidate 77th, 81st, 82nd and 85th amendments. SC upheld them. The amendments were supported by all the political parties. SC said that can reservation in promotions, etc. but you need to show that the people who are the beneficiaries of such reservations are actually backward. Compelling state interest to have this reservation. Prove backwardness by actual social backwardness (caste), economic backwardness, etc. court laid down the adequacy of backwardness. 16(4)a and b are facillitating measures. They are not fundamental rights. Cannot have a natural claim to 16(4). It has to be on the basis of tangible facts.   *) UP Power Corporation v Rajesh Kumar (2012)Anyone who belongs to SC, ST and OBC are deemed to be backward and can use reservation. SC said that first backwardness needs to be shown. Not done in this case, so the reservation is unconstitutional.  117th amendment bill: SC, ST will be deemed to be backward. Not yet passed.    15(5) Introduced through amendment. Reservation in private unaided educational institution. Challenged in  *) TMA Pai Foundation v Union of IndiaSC said that the state cannot have reservation in private unaided educational institution. Violates freedom of trade. (longest judgment :D)  *) Islamic FoundationAttempted to clarify TMA Pai. *) PA Inambdar Clarified TMA Pai.  

93rd Amendment : brought in 15(5). Applicable to all except minority institutions.  

NOTE: It's INDRA Sawhney not Indira xD Please read the textbooks:MP Jain   

19th March19 March 201314:31 Article 2525(1) Subject to all other fundamental rights. So if there is hierarchy of fundamental rights, then it would be at the bottom. It is also subject to health, public order and morality. 25(2) the state can make any law to regulate or restrict any economic, financial, political or other secular activities.   Jagganath Temple. Law passed that donations would have to be deposited in the hundis. Went to court saying that religious right infringed. The court said that economic activities can be interfered with by the state under sec 25(2)(a). Economic laws are secular laws. They will apply to all religions.25(2) b singles out Hindus. Social welfare and welfare. Because of the caste system.  Community from Karnataka said they had the right to control access to private property and thus would not allow people below a certain caste to enter.Court said that they cannot have a blanket ban. But since they are a denominational group, they can restrict the entry to certain points of the day.  State can make any law relating to the non essential religious functions. The state can not make laws regarding essential religious functions.      

20th March20 March 201314:29 

Article 25(2)(B)-the first part about refers to all religions. Social reform in all religions.

1. Public order, health, morality and any under FR, the state can interfere'2. Even if not covered above, state can regulate in secular matters like

finance related with religion3. The state can even interfere with religious functions unless it is an

essential religious function 290A-temple fund. Maintenance of temples. So Haj  Test to determine what consist of essential religious functions*) Shirur Matt case 1954TN govt. passed a law regulating the running of temple trusts. The head of this temple objected. Case went to the SC. SC: economically, financially, it is the discretion of the state. The state can regulate. The state can also regulate all religious functions except those which are essential religious functions. This was supported by the fact that article 25(2)(b) allows the lower caste to enter temples, which may be in violation of certain religious functions.  Interpretation of article 26 was also done. Head would have had the right to manage the affairs of the temple if he could prove that the temple was a religious denomination. Since he was unable to do so, 25 was applied instead.  Article 26: rights of religious denominations (in other words, religious sects). Not subject to many riders. 26(b)-right to manage its own affairs in religion… (IMP part, look at the constitution)(c) - can own and manage property *) Venkatramana Devaru v State of Mysore (1958)Refer to the notes about a temple in Karnataka in yesterday's notes for the facts.Essential religious functions test was made applicable to religious denominations as well *) Saifuddin Saheb v State of Bombay (1962)Challenged the denial of excommunication law. Supreme Court agreed and held it to be unconstitutional as excommunication is an essential religious right. Excommunication cannot be prohibited but it can be subjected to certain regulations.   *) Yagyapurushananda Dasji

Satsangi temple. Refer to Family law notes on who is a Hindu...the first case ^^Can regulate actions.    *) Tandav Case (Swami Jagadishwara Nanda v Commissioner of Police, Calcutta)Tandav. Anandmargi group-denomination. Ritual which had them wearing bones and dancing in Calcutta on a particular day, known as Tandav. Police said it cannot be allowed. Argued that it was a violation of their 26(b) right. Court said it was not an essential religious function and thus it was not a violation This case was reviewed in 2004.SC said that there are very few things which are essential functions. Essential functions are the basic tenets on which the religion is built. So they are very small in number. Everything else is a superstructure, so it cannot be an essential religious function. This was applicable to both religions as well as religious denominations.  *) Ismail Farooqui 1994Babri Masjid case. Quran reading in mosque-mosque absent-violation of right? Court said: reading quran essential but not necessary to do it in a mosque.    SP Mittal v UoIState law in TN which regulated the property in an area called Auroville. Said they are an RD, so they have certain rights. State said can regulate property. They said that they violate 26. court said that they were not an RD. Aurobindo was a philosopher and not a religious leader. Dissent: one judge did say that they were an RD.     

22nd March22 March 201314:25 PB Sawant in SR Bommai: religious tolerance and equal treatment of all religious groups and protection of their life and property and places of their worship are essential part of secularism 

BP Jeevan Reddy: citizens' freedom to profess, practice and propagate religion of their choice and state's duty to treat all equally irrespective of religion constitute secularism. JS Verma in Ismail Faruqi: secularism is the principle of equality of treatment of individuals and groups in the matter of religion. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern od scheme of the Constitution. Santosh Kumar and Aruna Roy cases Restoration of temples: does it amount to state intermingling with religion.  DP says that the state must protect sites of archeological importance. So this can be read into article 25 for states to fund the restoration of the temple  *) LT Swamier Religious endowment interfered with Udupi Mutt. So went to court alleging violation of 25. Test on identifying the essential aspect of religion. Tenet approach. SC made a distinction between essential and non essential aspects of religion. In order to figure this out, you need to look at the religious texts of the religion. Defect in this test is that it remains static. Does not change.  *) DevaruDecide what are essential rituals by looking at what the community believes in. this is because the text approach is not completely reliable.  *) AS NarayanaTenet+belief+constitutional order *) Bijori Manuel?Jehova's witnesses. Zohrastrian texts which detail duties. Also many community beliefs. Community's belief is important in religions . Students refused to sing National Anthem. So they were expelled? Religion says that they were not to sing the praises of anyone other than their deity.  *) Jagadishwara NandaAre Anandamargis a separate religion? (Possibly covered before...oh wait, definitely covered before :P) performance of dance is not specifically stated in any religious text of theirs and thus cannot be an essential religious ritual.  2nd Anadmargi Case 2004Essential part of religion: taking that part away would result in fundament change in the character of that religion. Cannot be additions or subtractions to this part.

 *) Mahindra casePerson born into a religion should be allowed to enter the place of worship of that religion.   *) Rev StanislausConversions. No conversions because of force, coercion, etc. against freedom to propagate? Court said that freedom to propagate does not include freedom to coerce others into <<22nd March.wma>> Audio recording started: 15:27 22 March 2013 *) N Adithya v state of TNHolding a hereditary post in a temple is not an essential part of religion. So even an SC can be appointed as long as he is qualified.  Removal of hereditary posts in the Jagganath temple, the Kashi temple and the Tirumalai temple.    Article 26Venkatramana Devaru CaseGSBs are a religious denomination (now there's something I didn't know even being one! xD)MULKI(That's my dad's ancestral place! This case is turning into a personal revelation by the second! xD)Right to exclude others for specific timings from the temple. But for the other hours they must be allowed in. (ratio is similar to that previous case on the Satsangis )   Article 27No tax for promotion and maintenance of any religious denomination'Wall of separation between the state and religion.Restriction should be general? Or should it say that it wont collect for the purpose of any specific religion? *) UoI v Rafique Sheikh Bikan (2012) 6 SCC 655Haj subsidy cannot be continued indefinitely.  *) Prafool Doradiya v union of India (2004)

Haj funding did not violate 27. the requirement is that collection of tax should be specifically for the expenses of a religion. Also a small fraction of revenue was used to fund the Haj  *) Vasanth Kumar v State of MysoreNo reservation policy after 20 years (LOL. :P)  Individual freedom: art 25Rights of religious denomination: 26State's non-entanglement with religion: 27No religious instruction in public schools: 28Relation between free exercise and non establishment Relation between art 25 anf 26-temple entry (Devaru) and excommunication (Saifuddin) cases  

23rdMarch23 March 201311:41 Must keep in mind the political and economic history behind the fundamental rights. The princely states. The aftermath of the second world war. Freedom of religion is highly influenced by human rights concerns. So the protection of minority rights and practice of religion became important.Religion has always been the central theme in India. So the concept of secularism in India is not irreligion but that the state will not patronize any religion but will still give protection to the minorities, both religious and linguistic. Minority is decided region-wise. Minority protection is wider than religious protection.  Article 26Clause © is the most important. To own an acquire movable and immovable property. So they have a fundamental right to property.Fallacy? The sole reason they are allowed to have a fundamental right to own property is because of its connection with religion. Does this violate 15(1)?  TMA Pai FoundationVIMP judgment. Dealing with educational institution. Right to establish an educational institution is part of the right under 19(1)(g). Right to establish school/college thus is a part of a fundamental right. But this cannot be established without property. So property is brought in, though fundamental right to property has been ignored.

  Educational right is an important segment of minority protection. Article 29-30  Article 25Freedom of conscience includes the right to not to associate with any religion.  What about 290A? Why is the state charged with the maintenance of Hindu temples and shrines? Right to carry on propaganda about religion. This right is subjective to public order, health, morality and the other fundamental rights.   Is the right to convert a fundamental right? 25(1) gives the right and 25(2) gives the restrictions to the right.     

25th March25 March 201314:27 It's not enough to look at tenets. It's important to look at community beliefs. *) Bijoy Manuel's case *) AS Narayana v State of APIn addition to tenet and community, it is appropriate to apply constitutional values as they uphold humanistic values.  Tenet approach was developed in the Anandmarga case. Looks to cohesion of group and how the group is a part of the religion in order to understand what is a religious denomination.  Students cannot be compelled to participate in religious instructions. Instead, moral instructions may be given. Instruction about religions is acceptable, as long as it is a comparative study of religions. This was decided in *) Aruna RoySeperation between state and religion is not an absolute one.  Article 29: preservation of cultural and educational rights

Culture is that which arises ought of the group conscience as a whole. Literature, art, etc. products of the group conscience of the community. It is the outcome of the group exercise of intellectual activity by the community. No community should be excluded. This is the belief of our constitution makers and policy makers. Reaffirmation of faith in coexistence of different communities.  What is the justification for the protection of minorities? Possibilities of injustice and breach of peace prevented by protecting minorities.  *) UnnikrishnanMajority religion is also allowed to establish and run educational institutions under 19(1)(g).   Race, religion and language: cultural traits *) VN Sunanda Reddy v APGovt gave advantage of 5% grace marks to people who had passed decree exam in telgu medium during recruitment. This was held as violative of 16. court said that language is not a rational basis for classification for recruitments into public service. Inherent defect in constitutional remedy: only prospective remedies possible  The marginal note has not competence to constrict the main text.Article 29? (it's really hard to follow his class:/)The marginal note occurred because of the process involved in making the constitution. Because article 29 and 30 were originally in the same clause.  Human dignity is the basis for the protection of the minorities.   Right to administer an educational institution does not mean you have the right to maladminister.  Restrictions put in order to achieve academic excellence are not violative of their fundamental rights.   Professional educationTMA Pai: the words 'of their choice' were interpreted to include any type of educational institution, such as a university.  

Two tests for reasonable regulation:1. Restriction should be reasonable2. It should be for the excellence of the minority institution

It was laid down in *) Sidhrajbhai Case So the right is not confined to primary and secondary education.  Is article 30 limited by article 29? Right under 29(1) can be effective through use of the particular language or script.  Education was under the state list until the 42nd amendment. Decide whether a language group is a minority or not based on the population of the state. Justice Ruma Pal: Minority should mean whether the community is disadvantaged or vulnerable, not whether they are numerically minor or not.  *) Abdul Azeez v Aligarh Muslim UniversityAligarh Muslim University-is it a minority institution? It was an institution established by the govt. thus it could not be called a minority institution.   Minority institutions need not teach in their own language. They may teach in English.There isnt a nexus between 29 and 30 for 29 to act as a limitation to 30.   *) Andhra Pradesh Christian Medical College u Institution did not comply with the requirements of the Medical Council of India. No facilities. Court considered it to be a situation of Maladministration     Sprinkling of non minority into the minority institution is allowed  *) St. Stephen caseDid not want to follow DU instructions. Is the DU order appropriate? SC said it is the right of the minority institution to admit students of that minority up to 50% and the rest should be open to competition on general merit.  Right to non discrimination on the matter of providing grants.

  *) Siddeshwari v State of West Bengal During the primary education stage, the state can ask for instruction to be made in the mother tongue. This does not violate 29 and 30Compulsion to learn a specific language is not unconstitutional Okay, that's it. I cant pay attention to this any more. Just read MP Jain or something  

30th March30 March 201311:47 Right to establish minority institutions: not an absolute right. State can impose restrictions for the cause of excellence. So state can insist that the salaries paid be fair, the appointment of staff be in accordance with the law which regulates education in general.Admission: in *) Sidhraj Pai govt cannot unreasonably interfere in admission. Excessive govt. nominations in admissions would jeopardize the autonomy of the minority institution. In *) St. Stephens the court said that fair balance must be observed. So non minority students should be admitted if the institution receives grants from the govt. thus they can reserve 50% for the students belonging to the minority which established the institution. Cap of 50% reservation if the institution receives grants and aid from the govt. But this was difficult because they may argue that the institution was established for the benefit of the members from that minority. So in extraordinary cirxumstances, when the special needs of the institution demands reservation beyond 50%, it should be allowed *) TMA Pai foundationMajority: minority institution can have reservation of 50% but it is not possible to make it rigid as it depends on the needs of the institution in question. It needs to be reasonable, but it need not be limited to 50%. Thus this case created confusion.   *) Unnikrishnan v AP (1993)SC said that professional educational institutions must balance between social needs to have meritorious students admitted and the need for the professional educational institutions to meet their expenses. Though

capitation fee or donation is not allowed under the law, they can ask for fees in order to maintain a no profit-no loss situation. SC said that the capitation fee legislation cannot be followed in toto. Instead, the SC laid down guidelines:50% seats will be given purely on merit. The rest will be offered on the basis of not only merit, but also willingness to pay higher fees. Seats are distributed on the basis of merit at both levels and the reservation policy must be followed at both levels as well.  This was inherently wrong (I didn’t get why) In TMA Pai (1994), 50% to minority candidates. (1995) There was provision for NRI quota of 15% within the payment seats (2003) Rigid 50% rule in Stephen's case is not appropriate. State to fix suitable % in each case. this differentiation between students who can pay and those who are admitted on pure merit was abolished. This case overruled the above judgment. Autonomy of professional institutions was recognized. Govt. cannot interfere with the admission. Govt. can interfere only when asked to do so. No scope for profiteering in running an educational institution. So though 19(1)(g) (Freedom of occupation, not business) is the basis for establishing the non minority institution. Not under 21A because that covers education to the age of 14 only. Education cannot be used to make profit. Court said that the fees will be decided on the basis of a committee consisting of people who have knowledge about the running of the institution. Sometimes, marginal excess is collected to meet the future development needs of the institution.Higher fees can be imposed on some students as a part of the management quota. Scholarships should be offered to the poorer students. The guidelines are applicable to non minority institutions as well.  *) Islamic Academy of Education v Karnataka (2003)Clarified TMA Pai. Court provided that fees can be fixed only on the basis of the committee report and an exhaustive examination of the expenses *) PA Inamdar v State of Maharashtra State can prescribe % of reservation only in AIDED institutions. If not aided, then it will be done by the institution. State's policy of reservation DOES NOT APPLY in unaided professional institutions. Cannot compel the institution to follow the reservation policy when the state does not provide any funds to the educational institution. Transborder minorities: students coming from other states, where they may not be in the minority. So the no. of transborder students in the institution will be decided by the educational institution. Some seats would have to be allowed for students belonging to the minority but from different states within the 50% quota. The factor of 'local only' is restricted. 

Amendment-15(5) was inserted to superseed the PA Inamdar decision. To allow the state to make provisions for SC, ST and OBC for admission into institutions, aided or unaided, other than minority educational institutions. The validity of this was challenged:*) Ashok Kumar Thakur Case (2008)SC said that the amendment did not violate the basic structure as it promotes the cause of social justice.  *) Society for Unaided Private Schools of Rajasthan v Union of India (2012)Obligation to reserve 25% of the seats to children belonging to the weaker sections of society within the neighborhood. Irrespective of whether they get aid from the government or not. 3 judge bench. Court upheld the constitutionality of the legislation as a whole. However, the dissent said that if the institution does not receive aid from the govt. then it cannot be forced to reserve seats. Majority said that education is a charity. So unaided institutions are also under an obligation to look after the needs of the socially backward citizens.   *) State of Karnataka v Appa Balu IngaleShould benefit of doubt be given to offences relating to untouchability. Offence of untouchability to be regarded as a serious offence, so benefit of doubt rule does not apply.  *) Moti Ram v UPSC ST Atrocitites Act: no right to bail. Does this violate 21. procedure established by law should be just fair and reasonable. Court said disposing with the right to post bail is allowed when it is to prevent the offence of untouchability.  *) Balaji Raghavan CaseRight against exploitation. Economic power should not allow one to disadvantage others. It goes against the concept of equal rights for all.  Forced labor, bonded labor, trafficking in human beings goes against human dignity.  People's union for democratic rights v Union of IndiaNew interpretation for forced labour. Person forced to work for lower than minimum wages: this is forced labour. Even he is willing to work, because he had no other option.  Bandhu Mukti Morcha u Persons rescued from bonded labor must be rehabilitated.  

Immoral traffic prevention act. Girls and women who are rescued from prostitution should have their interests protected by the protective homes set up for them.  SC laid guidelines for the upkeep of such homes in *) Upendra Baxi v UP *) Gaurav Jain v UoISpecial rights fo child prostitutes and children of prostitutes. Care, protection and educational facilities. Child care centers should be established.  Article 24: prohibition of employment of children in factories, mines or any hazardous employment. Prohibition only in hazardous activities. But can be otherwise employed as long as education not affected. Prohibtion of child labor act regulates employment in non hazardous industries and prohibits employment in hazardous industries. This FR requires supporting legislation.  *) Laxmikanth Pandey v UoITransnational adoption of children. Court laid several guidelines in this case. (Please look at your family law tutorial. Or wait, I think I've written the guidelines before. Hmmm….) no economic transaction allowed between natural parents and adoptive parents MC Mehta v TNThe employer must educate the children.   

1st April01 April 201314:28 Right to PropertyClose interaction with human rights. Property is a product of a person's labor. Thus property is any economic interest which has value in exchange. Without this, many freedoms cannot be enjoyed. Freedom of speech or freedom of press means that he has the power to control the medium of such expression, which would be some form of property. Occupation: tools needed for economic activityFreedom of religion: property is used for offeringsRight to life: without ownership of certain property, it is not possible to enjoy the right to life. In the form of food grain stores, the house he resides in, etc. enable him to enjoy his right to dignified life. Clothes are also included in property? (now that's interesting ^_^)Hegel considered that a person expresses through his property. Tagore also said a person expresses himself through property. But Tagore also condemned the evil aspect of property: economic power is used to subjugate others. Exploitative aspect of property. Wealth should be disarmed of its evil

propensities (Okay, why are we talking about what Tagore thought? :/) Difference between benevolent aspect of property and exploitative aspect of property. The constitution makers believed that the wealthy would exploit the poor. Property should always be subjected to the higher rule of justice. The principle should be economic justice.  Nehru committee report and other domestic reports: protection of agrarian or economic reforms. If these are not protected then it will be an impediment to the upliftment of the poorer sections of society as economic reforms and social reforms would not be allowed. Orienting the whole of the relations towards economic justice. This is an important goal which ought to influence the state actions. The constitution makers felt that property should be subject to three important types of state legislative powers:

1. Power of eminent domain2. Power of taxation'3. Police power

 These are supposed to help control the evil aspects of property. Common law proposition: use one's property in such a way that another's legal right is not infringed. So no unjust enrichment or loss, and distribution of material sources of production in a justified mannerDP-39B and 39C-reflect the above principles. These speak about the orientation towards economic justice. Recognize the thrust towards economic justice. Eminent domain-power which every sovereign legislature possesses by virtue of being the sovereign to acquire private property for public purpose with the payment of compensation through law. This is the principles expropriation. It has two types: acquisition and requisition. Acquisition, when property title is transferred to the government. Requisition: the government occupies the property for some time, only possession is transferred, not ownership. Sometimes, mere possession may cause loss of ownership. The ultimate owner of property is the state. Government has sovereign power to acquire land. For creation of social and economic facilities. What are the requirements for expropriation?

1. It requires the application of law. The rights must be curtailed only through the rule of law. Does removal of right to property from FR amount to complete removal? Or can it be claimed on the basis of other FRs or the doctrine of reasonableness or basic structure?

2. The law should record the public purpose. It cannot be acquired for private purpose, even if provided for by law.

3. The govt. should fix adequate compensation for the property to be acquired

  The SC now relies on the rule of law and reasonableness*) KT Plantation Limited v Karnataka (2010)-5 judgeIt can be claimed as a substantive right under art 300A. Property belonging to the private person can be done only for public purpose and not be transferred to private persons. Else it violates right to equality. So can the govt. take land from the zamindars? Court said that it is for social reform, for eradication of concentration of wealth. Protects the interest of society as a whole. Breaking of the intermediary system.Need to protect land reforms-clause 4 and 5 of the original article 31. Compensation to be provided for petty acquisition. But for large scale acquisitions, no compensation can be provided. Else govt. would have to pay too much compensation. Govt. decides the amount of compensation on the basis of the hardwork of the individual in acquiring such property and the purpose for which the govt. is acquiring such property.When property which is the source of someone's livelihood is taken, then he shall be completely compensated. However, when large tracts of land are to be acquired, which are above the ceiling limit, then full compensation need not be paid.  Compensation should always be equal to market value. Common law principle: British and American. Market value is to be determined on the basis of objective facts-sale between non over eager buyer and seller. It has egalitarian purpose. The individual should not lose when the society gains.  For agrarian reforms or economic reforms, can market value be fixed as market value? Constitution makers said that full compensation need not be paid, but a part of the compensation may be paid. They feared that payment of full compensation would create a huge economic burden on the states. But when sole property of a person is acquired, he will be paid compensation.   Law of taxation: imposition of huge taxes makes it impossible to conduct economic activities. The size of the tax practically amount to expropriation. This cannot be allowed. It should not operate as an instrument of acquisition. When tax laws are examined, the court will examine the consequences of such taxes. If it affects in the above manner, then the court will declare the law to be unconstitutional and unreasonable. Judiciary interferes only when taxation amounts to confiscation.  Police power: inherently possessed by the state. Inherently bad (dilapidated building, contrabands, prohibited goods). Seizure and destruction of such

property is allowed under police power. No compensation is to be paid to the owner. There should be a legal basis. Under 31, originally provided that no person shall be deprived of his property. Under 300A-read the bare act 31(2)-for expropriation of property (both methods) there should be a law authorizing the same for public purpose and it should provide principles relating to fixation of compensation. Acquisition of property for large scale economic reforms. But the SC did not follow the spirit of the constitution. Said that the compensation fixed was inadequate, though the legislation was meant for agrarian and economic reforms *) Kameshawar Singh v BiharFixing different scales of compensation for different zamindars was violating right to equality. It was in accordance with reasonable classification, but it was held as a violation of 14 and declared unconstitutional.  This caused backlash in the parliament. It gave rise to amendment-insertion of 31 A and 31B. Done by the constituent assembly in the form of the Parliament. They had the aim of protecting the large scale agrarian and economic reforms. (Examine bare act? ) The possible challenge that could be raised on the basis of 14 or 19 could be nullified by these articles. Can a legislation meant to secure social justice be nullified on the ground of equality? Thus, there is a need to put a check to protect from arguments based on 14 or 19. if the acquisition of land within the ceiling limit, then full compensation would be paid to him. (proviso to 31A (1))  Ceiling limit: if land holding goes beyond a certain limit, there is a need to acquire the land and distribute it among landless peasants. This limit is 10 standard acres of land. Regarded as ideal holding.  31A-two approaches: protection to agrarian and economic reforms as well as protection of land owner within ceiling limit. 31A was deemed to be not enough to deal with all situations. So another mechanism was creation :31B which created the 9th schedule. 31A-general policy31B-special mechanism for implementing the principles stated in 31A. Only for protecting economic or agrarian reforms-9th schedule to be used only for these laws. But the 9th schedule was abused (remember notes from consti-I)  *) Bela Banerjee

*) Vajradhar MurildarThough house it acquired, compensation given only for land is not reasonable. Compensation fixed under land requisition amendment act, regarded as adequate or not?  Slowly emerging proposition that the compensation fixed by the legislature shall not be interefered with unless it is unreasonable. *) RC Cooper v UoI14 banks nationalized. Compensation fixed by market value. But the principles used to calculate were held to be inadequate, and thus a portion of the legislation was held to be unconstitutional.  KB caseMeaning of the term amount. The SC said that the amount should be a reasonable amount. Reasonable nexus between the amount fixed as compensation and the worth of the property in the market. The compensation need not be equivalent to market value, but should have a reasonable nexus with it (E.g. property worth Rs. 100000 cannot be compensated by paying Rs. 10)  After KB, the court was in favor of accommodating economic justice and there was no need to remove property from FR. But the Janata party said in its manifesto that they would add right to work as FR and remove right to property from FR.  300A-provides for a formal legalistic protection to right to property. Right to property is an extent of law. The law made by the state shall decide the scope of right to property.So can any law be made? Legal framework to provide adequate protection to property  New interpretation of article 21 of the constitution. Procedure established by law should be just fair and reasonable.  After the 44th amendment, Bombay HC viewed that the acquisition of property should be in accordance with article 21 of the constitution. The law should be just, fair and reasonable. Loss of land or house within ceiling limit jeopardizes his personal liberty. There could be property in the form of opportunity to work. The person's reliance on the property should be respected.  *) Jirubhai Catcher v Gujarat

Case where land tenure abolition act (1982) was in issue. Though a part of 9th schedule, the legislation was examined for compensation and the court said that compensation would be decided on the basis of reasonableness and just and fairness (such bad grammar :() SC did not approve the approach of the Bombay HC related to the application of reasonableness under 21 to 300A. The law for 300A should also be just fair and reasonable. But 300A has different language-talks about authority of law. 21 talks about procedure established by law. When the two phrases are different. The application of the requirement of reasonableness cannot be applied to issues relating to 300A PK Tripathi and HM Seervai said that after the 44th amendment-right to property now has a greater protection. Basic structure operated even against right to property. So 300A is subject to basic structure. The interconnection between various freedoms and the right to property, it can be protected. Once a law is required to be reasonable, the argument that it should be reasonable for 300A also applies. The rule of law requires that there should be dependability upon the govt.'s action. The image of the govt. as the protector of rights will be lost. The dependability of the people on the government's action shall be adequately taken into account. An atmosphere for the better protection of property is possible. Exclusion of the power of judicial review will affect the basic structure seems to show that there should be reasonableness in the application of 300A. These two scholars relied on the natural philosophy that the state should protect the interests of the citizens. 300A provides for a legalistic approach. The type of law and the requirements should be decided by the legislature and not the judiciary.  Tataguni estate case-5 judge bench-IMP caseCrosscheck about 26, didn’t quite catch what he said  

2nd April02 April 201314:26 SC could not be approached to challenge any law which dealt with the right to property. But when the legislation affects other provisions under part 3, then you can go to court. Use aspect of property and power aspect of property. Property used for enjoyment of specific freedom (e.g. residence, personal belongings) is the use aspect of property. Also when property is used for expression, it is the use aspect of property. It should be regarded as emanation. This doctrine means that rights are not confined to named provisions. They are dependent on several other provisions as well. (e.g. right to food is derived from right to life) Unnamed right is derived from the named right. When

doing this, regard should be had as to the nature of the named right and the relationship between the two. *) All India Bank Employees Association.Whether right to strike is an inevitable component of right to freedom of association. The association needs to assert its right. But the Court did not agree. Efficacy of the association depends on the association or community. The constitution cannot guarantee the success of the association. Several tools: propaganda, etc. One of the tools should not be regarded as a component of the right. Freedom of association is the right of a citizen. It should not be equated to the right of an association. An association's rights are only legal. An individual right is fundamental. Link between named and unnamed right was used for the first time in this case. There should be an organic connection between the two. It should be impossible to enjoy the named right without the unnamed right.  Close nexus between right to livelihood and property makes the right to property a part of right to livelihood which is a part of the right to life.*) Olga TellisAccess to place of work is a part of right to livelihood, which is a part of right to life. Thus deprivation should be done by procedure established by law. It should not say that the state should provide the livelihood. It just says that when deprivation takes place it must take place by procedure established by law. 21 is invoked only when deprivation takes place *) Sodam Singh v New Delhi Municipal corporation Cannot have dignified life without the right to livelihood.   State's active action is required when its absence results in deprivation. *)_MP Vaish v MaharashtraLaw colleges wanted grants from the govt. they cannot teach properly. So bad lawyers, so cannot give proper legal aid. So 21 is affected. (circles, circles :P)  *) Ambika Prasad Mishra v UPLegislation differentiating men and women for tenancy rights challenged under 21. women and tenants were deprived of rights. Direct injury to right to life as land was the source of their livelihood. SC disagreed. Krishna Iyer said that the link between property and personal liberty is far fetched. Cannot restore right to property into FR through 21. the petitioner also spoke about gender justice. The legislation was also challenged on the basis of 14, but the legislation was in the 9th schedule. So the SC did not listen to this argument (jerks!)

 Seervai favored a natural law philosophy approach after 44th amendment. Cannot enjoy right to life without property. Law under both 300A and 21 should be reasonable.  DD Basu said, different phrases used, so you cannot compare the two. So 300A can be used by passing any law.  *) Basanti Bai v MaharashtraBom HC: reasonableness under 21 is applicable even to laws under 300A. 14, 19 and 21 create a guardian angel (okay, what now?) to purge the constitution of all arbitrariness.The matter went to the SC. 5 judge bench. The law need not be reasonable for 300A. So Bom HC was overruled.  *) Jirubhai Nanbhai KnacharThe notion of reasonableness in not implicit in 300A. Only recuirement is that it should be deprivation should be on reasonable terms. It should not be confiscatory and should have adequate compensation.   *) KT Plantation limited v State of Karnataka VIMPAuthoritatively lays down that the principles with the property is taken over, the compensation paid should be reasonable. When FDI is received by the govt. it is reasonable to expect reasonable returns. If this is not done, then their property is deprived. Need to create respectability about the govt.'s policy. So govt. must have a reasonable approach to the right to property. Developed on the basis of the right of Foreign investor. Rule of law shall operate to achieve justice. 300A law does not invariably mean reasonable law. But the phrase rule of law means that it should not operate in a way which demeans the country in international eyes and meets the legitimate expectations of the people.31A (1) proviso 2: acquisition of land within ceiling limit will be paid compensation equivalent to market value. Government granted land to famous couple for lena lo cultivation. Would the ceiling limit be applicable? They sold their property to the KT company for a very small amount. The Govt wanted to take over this property. SC said that this legislation was valid on the basis of 300A. 300A is now the source for checking arbitrary deprivation of property.   31A, 31B, 31C-incroporated for agrarian reforms. The court was trying to accommodate arguments about reasonableness in 300A

  Government granted land to famous couple for lena lo cultivation. Would the ceiling limit be applicable? They sold their property to the KT company for a very small amount. The Govt wanted to take over this property. SC said that this legislation was valid on the basis of 300A    31B. It is linked with 31A. It ought to be confined to only agrarian and economic reforms. Arbitrary enactments are not correct. 31B is unfortunately abused. Any inclusion into 9th schedule would be tested on the basis of the basic structure (Indira Gandhi case). But this case said that basic structure will be used for constitutional amendments but not the legislation itself. Different approach in Waman Rao. All post KB insertions into the 9th schedule can be challenged on the basis of the basic structure doctrine.  *) DJ MahajanRemedy given though legislation was put into the 9th schedule IR Coelho Legislation tested on basic structure as upheld.   31C. Additional support to agrarian and economic reforms. Or to legislation meant to implement 31A and 31B. Effort made to expand 31C to promote any aspect of part 4 of the constitution. The 42nd amendment. This was nullified by the Minerva Mills case.    Article 32'Right to constitutional remedy is a part of FR in India. English writs started with the AngloSaxon developments. Prerogative writs to legal writs.In the US, habeas corpus cannot be suspended without the acceptance by the Congress.Even during war, this remedy should be available.  In India, the law of writs was developed in the colonial period. Habeas Corpus was in the CrPC. Mandamus and Certiorari were in HC Act. Recognition of writs provided basis for the development of this law. English writs provided a mature background for the maturity of Indian writs. Ambedkar said that it is necessary to have the right to go to court to be put into the part 3. where there is right, there is remedy. Remedy makes the right more effective.

 32 has several clauses. (Read the bare act)Right to move the SC for enforcement of rights by appropriate proceedings. Originally, it was thought that this meant the proceeding laid down. No debate over whether the proceeding is appropriate or not. *) Dariya v UP laid this down Proceeding which the court may adopt for 32 should confirm to other provisions of part 3 of the constitution. Deposition of money before moving the court is regarded as a violation of 14. *) Prem Chand Garg v Excise Commissioner said this. Appropriate proceeding will be decided on the nature of right or the purpose for which the remedy is sought. Rules can thus be flexible. Epistolery jurisdiction. It means that the courts jurisdiction can be invoked through letters. *) Charles Sobhraj case. Conditions in the Tihar jail were inhuman. Letter written to the SC. Court exercised its jurisdiction based on this letter.  *) leelavathi beharAThe SC should innovate new tools for rendering justice. Traditional intruments may not be appropriate. So accusitorial method is not the only method for the SC to provide remedies. Inquisitorial tools should be used when accusitorial method provides no remedies/ PIL. Traditionally, only the victim can invoke the jurisdiction of then court. Locus standi principle came on the basis of private suits. Link between right and remedy should be taken into consideration. But this obstructed access to justice. Restricted the scope of remedies by using locus standi. Ordinarily, the people who are affected may not go to court. So liberalization of locus standi, now any NGO or amicus curae (okay, just using the term here) can file on their behalf. Rise of PILs. Bonafide intention of getting remedy for the affected class, then the SC should admit such PILs. The institution fo PIL shows its significance. Access to judicial forums for the depressed sections of society through social workers. It involves participative justice. PIL is connected with the rule of law. Deviation from some law-to ensure that the public admin system will act in accordance with the rule of law. Accommodating inventions in procedural law as well. e.g. collection of evidence through committees. Court will supervise even after the decision is given to ensure effective implementation of the judgment. Traditional locus standi is not applicable. But the competence of the person filing the PIL should be checked. He should not have the intention to defeat the ends of justice, have a malafide intension, etc. he should not be a meddlesome interloper, should have no private interest to promote.

 Rich area of remedies that can be provided under 31 (2). Specific remedies. The 5 writs. Quo Warranto , HB, M, C, P. Not just these writs, but other writs, directions and orders can also be issued. Monetary compensation can be provided under 32. *) Rudul Shah v Bihar14 year detention even after acquittal. The court awarded compensation of 30000 and recognized his right to sue the state. 21, which guarantees right to life and liberty will be curtailed if the judiciary is limited to merely ordering release. Should also be able to award compensation. *) Bheem SinghAwarded compensation of rs 15000. Sebastain Hombre v UoI (1984)Compensation of 1 lakh to the wives of the detainees. Not possible to restore the life of the deceased detainees. HB writ issued. Govt. could not produce them in court. Compensation only when there is gross violation of personal liberty. Only when there is death or permanent injury Leelavathi Behra v OrissaCompensation was justified on the basis of international conventions as well. Police atrocity caused death of the person in custody and to escape the blame, put the body on the railway track. Compensation of 150000 was given and preventive action against the police officers was also resorted to. So that there would be a deterrent effect. State has the right to be indeminfied agaisnt the action of the wrong doer. The compensation should be recovered from the wrongdoer. State liability and officer liabiltiy will go hand in hand (talking about police torturing folk) Court evolved the idea of officer liability along with state liability.   

3rd April03 April 201314:25 Constitutional RemediesFundamental rights are significant only when they can be properly enforced. Mere written guarantee will only have educational value. Thus, right to constitutional remedy is a fundamental right. Thus this provision is treated as the most important fundamental right

These remedies have attained perfection and need not be improved upon. Indian judges invented new tools, not known to international law systems. Like public interest litigation. The requirement of locus standi is eased. The rule of locus standi cannot be glorified as a procedural law which blocks access to justice. Cannot be used against people who have a bona fide intention to get remedies for the people afflicted. Thus right to go to SC is a fundamental right. However, you need not go to court to get a remedy. Court can suo moto take action.  Salem-25 mentally challenged people kept in asylum handcuffed. Handcuffed because the superintendent thought them to be dangerous. There was an outbreak of fire. All 25 died. The SC can treat a letter as a formal writ petition. Then the court will appoint advocates to pursue the matter and then the formal petition is submitted afterwards. PIL emerged as a handmaiden of legal aid. Used the services of the legal authority to frame the formal petition. Cognizance is taken by the court on the letter, etc. and then the lawyers would be appointed to frame formal petitions.  Criticism of writing letters addressing a judge particularly. Instead all letters are collected by the registrar of SC and given to the CJI who makes docket allocation. A PIL once filed cannot be withdrawn. Because it deals with the interest of society as a whole. *) Sheela Barse CaseWanted to withdraw her case relating to unfair treatment in borston schools (for Juvenile offenders). She faced several problems in court with unnecessary adjournments, etc. So she wanted to withdraw the case. But the court said a PIL petition cannot be withdrawn because it is submitted on the behalf of the aggrieved people. Allowing withdrawal cannot be allowed as it may lead to abuse. Can submit petition to disassociate himself from the case. But the case will continue without the person.  PIL cannot be used as a means for making profit.  32(1)-right to move the SC is an FRUnder 32(2), no reference to right of person to move SC. The court can suo moto take cognizance.Content of both suggest that right under 32 imposes a duty on the SC and it had no discretion.The HC has discretion under 226.  

The order that every petitioner deposit security before entering petition was held as unconstitutional as a violation of 14 and 32. discrimination based on economic power. Artificial rules and procedures developed by other countries were not to be used to block article 32.   Alternative remedies available locally should be exhausted before invoking the HC's jurisdiction. Must exhaust administrative remedy, etc. before going to the HIGH court.Same principle does not apply to SC. He need not exhaust all other remedies before approaching the court. *) Ramesh Thappar *)Kharag Singh v UP*) Dalia v State of UPSC can be approached without exhausting other remedies. Is res judicata principle applicable to SC and HCs? This is a procedural rule to ensure finality in the decision of the court. This is not applicable ONLY for the writ of Habeas Corpus. It is applicable in all other writs. This is because this procedural principle cannot be excluded from writs. This is because it carries an element of justice. Litigation should not be used for oppression or exploitation. Special consideration for HB because personal liberty of the person is at stake. Personal liberty ought to be protected. The slightest doubt about legality of incarceration should be examined by the court Only person with vigilance only can get remedy. Rights are lost with the lapse of time. So cannot entertain petitions submitted after the lapse of reasonable time. Reference to law of limitations.  Can the court then hear petitions under 32? Does limitation act prevail over jurisdiction in 332 and 226? Limitation act is an ordinary law and thus it cannot prevail over the constitution. It can be regarded as an analogy or norm that delay should not take place. Interest of justice demand that if grievances are present, they should be brought before the court within a reasonable time. Is this time as given in the limitation act or according to the general understanding of reasonableness. This is decided on the basis of the facts of the case. Some consider limitation act to provide an analogy. Others say the limitation act cannot be the parameter as it is an ordinary law.  Can HB be used for releasing a person from confinement by a private person. Can provide remedy even against private detention. 

*) Vidhya Varman Said you cant use HB against private citizens *) In re Nilima Priyadahrshini / Balwant Singh (2 separate cases)Said it CAN be used. This is the principle today.  A person should enjoy all the freedoms which he can enjoy when being confined. Hygiene, access to books, medical services, etc. should all be provided. The conditions of detention should not be unlawful. If they are, then HB can be used. The person will not be released, but the writ can be used to improve the conditions of detention.   

8th April08 April 201314:20 Locus standi has been almost removed, but not completely. The court will examine whether the PILgator has a bonafide interest in the outcome of the case. Will examine whether the PILgator has any personal grievance. Modification of the locus standi principal. PIL brought a big change in procedural and substantive law. Procedural law: evolved many new types of remedies, inquisitorial system was evolved. Duty dimension of the SC is seen. Under 32, the SC has only duty and no discretion. Duty not to allow the abuse of the judicial process leads to the discretion of what PILs can be admitted. Examination of litigative competence.  Article 32 now reflects the duty rather than discretion on the part of the SC. 32(2)-court on its own notion can entertain any claim. Even if no person files a claim. Amarnath Yathra Case. Monetary compensation is a remedy under 32. can be directions, orders or writs under 32. so order for payment of compensation is possible. Developed in:*) Rudul Shah v State of BiharAcquitted but not released for 14 years because court's order did not reach the prison authorities. Awarded compensation of 30000 against the jail. Tortious liability against the state was instituted.  *) Veena Sethi v BiharDoctors recommended that the inmate of an insane asylum had been cured and ought to be released. But in the communication of the name, there was omission of an initial. Misspelling. Not properly identified. So the managing committee did not release him. So the person was held for 3-4 years. When PIL was instituted to look into conditions at the asylum, this fact was discovered. Formalities came in the way of justice.

  *) Leelavathi BehraThe one with the police torture-body on railway tracks *) Mahmood Nayyar Azam v State of Chattisgarh (2012) 8 SCC 1A social activist, also ayurvedic doctor, was a source of embarrassment for the coal barons concerning the rights of the workers of the mines. The police booked him under the provisions of IPC and Electricity Act. He was arrested and the police were successful in getting his photograph on a placard which said he was a cheat, etc. and admitting such things as a part of his character. This was published in a newspaper. Wife suffered mental shock. Close friends disassociated from him, daughter could not be given in marriage. Against the police he filed a petition with the state government. They replied saying that it is a voluntary act of confession. The HC awarded petty compensation. So the matter went to the SC.Was he entitled to compensation.Elaborate judgment: he awarded a compensation of 5 lakhs. The sum of 5 lakhs could not be regarded as confined to the exhaustion of all his claims. In addition to this sum, all compensation that the court may award under the law of torts will also be awarded to him. Who bears the compensation payment?  There were principles but not coherent principles.  Rape by military officials: compensation of 60000'Arrest of MLA: 2 lakhsThere was no standard.  There has been an expansion on the scope of other writs. Certiorari can be issued against any adjudicative body. Anyone under a statutory duty to act judicially. So will include tribunals and other quasi judicial bodies. It is also a writ commanding the production of documents. Whether there is violation of the principles of natural justice.  Writ of Prohibition. Also applicable to all judicial bodies (see above). Because of bias, lack of competence Writ of Mandamus: order of the court to any person or authority or body to do any act ordered by law or abstain from doing some act. It should be a part of the duty of some public officer. It should be a legal obligation. The

concerned authority should have public duty. This is essential. If there is discretion and not duty, then this writ cannot be issued. This is because the authority cannot be compelled to perform its function in a particular manner. Mandamus cannot be issued against the legislature as it is their discretion as to what sort of laws ought to be passed.  So cannot ask the Punjab and Haryana govt. to make an anti ragging law. The judiciary cannot issue the writ of mandamus. So when the body or person has discretion, this writ cannot be issued. However, if public duty is not performed, such as FIR not filed, etc. then this writ may be used. This writ is used to ensure justice. Continuous mandamus is seen in cases of environmental protection.  Mandamus is issued only against official authorities. If the state is tolerating the illegalities of a private company which has caused environmental degradation, then the writ can be issued against the state. And then the state will compel the private body to perform their duties.    Writ of Quo WarrantoTo remove any person who is unlawfully occupying any public post. Appointment is illegal, etc. in relation to public office. The remedies are quite flexible.  Guidelines issued by the court (Vishaka, Lakshmikant, etc.)These were issued under 21. So 21 is no longer a formal set of principles. 14 and 19 have been used in making the procedure under 21 reasonable, just and fair. Substantive approach, influenced by the idea of natural law, has influenced the development of 21.  Pvt. Unaided institutions have the right under 19 to run the institution the way they want to. But they are bound by certain legal principles: rules of transparency, merit and efficiency. The process of selection should be fair, transparent and should reflect the merit (wait, why are we doing this here? Is this a revision of some sort?) Article 33 and 34

33-essential that the rights of persons in military or para military or police or service which maintains law order shall be subject to certain restraints. They cannot exercise their freedoms in the same manner that private citizens do. This is because they have a special responsibility to maintain law and order. Thus they cannot form trade unions, etc. In order to protect national interest. Because it would otherwise lead to chaos. So the parliament has the power to modify the rights given under this part when it is in relation to the above services. Also applicable to people working in intelligence and counter intelligence services (James Bond! Dun dun dun! XD) also telecommunication officials who support the armed forces also cannot enjoy the same rights. This does not mean that they are deprived from all their rights. It means that the parliament has the power to prescribe by law what type of rights can be enjoyed by them and what cannot be. The law laid down by the parliament decides what rights they can enjoy. State laws cannot be used to do so. It must be passed by the parliament. This is done for the purpose of ensuring the proper discharge of their duties. So they cannot be deprived of all types of rights. Only to the extent that it is necessary for proper discharge of their functions *) Ranjeet Thakur v BiharPerson beloinging to lower level of the army was harrassed by the higher officer because of his misconduct. So the officer imposed punishment of 28 days Rigorous imprisonment under martial law after summary hearing. In the course of imprisonment, he went on a hunger strike to pressurize the authorities, which is also an offence. So he was prosecuted and imprisoned for 3 years. Is this proportional or reasonable punishment?If law made by the parliament with reference to the above services cannot be tested on the basis of 21. then there is no method of checking the abuse of power. Is it proportionate? SC: in previous cases, the court used the either or approach. Can be either a private citizen with all freedoms. Or you can be a member of the forces and be stripped of some of the rights and freedoms. This is because the state does not compel people to join the army.  The court viewed in other cases: the person who is serious about full fledged principles should not enter the services. He is aware that he must give up some of his freedoms But Ranjeet Thakur has a different view point. The court said that it is only to the extent that the abrogation is in the interest of the public function that it is appropriate. It can only be used against acts which affect public security. The acts done in this case do not amount to such grave circumstances. Going on a hunger strike to show his displeasure with the arbiterary authority of the hiuhgher officer cannot be held to be as serious. Also, only the parliament can make laws in relation to this.  

Narcotics act: has certain provisions, which were not applied to a member of the military who was found to be in possession of opium. Said that the officer has given up their FR.Court said that the parliament must specifically say in a law that the provisions are not applicable to the members of the military. So in the absence of such a clear articulation of the parliament's mind, it is not possible to say that 33 can come to rescue of the govt. to justify the denial of procedural rights.  34-when martial law is imposed. There are provision for the exclusion of rights. Indemnify any person as to any act done to restore order in an area under martial law.    Use the cases by writing the propositions laid down under them