4th January

03 January 2013
09:31

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 faade 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 January
05 January 2013
10:38

Fundamental rights
Right 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 beings
2. 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 January
08 January 2013
11:40

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 rights
ICESCR: 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 sidelined
Now 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 Thomas
DP 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 January
09 January 2013
10:36

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 Holland
Constitution 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 Declaration
The 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 conventions
Thus 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 Institution
Also used international convention on civil and political rights

*)Chadrima Das v Indian Railways
Right 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 FR
There 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 January
11 January 2013
11:41

Evolution of fundamental rights in constitutional law
Lokmanya 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 Chattisgarh
State 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 UP
Used 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 rights
1928-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 Rajan
Violation 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 Sahwney
Issue 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 January
12 January 2013
10:39

Jurisprudential Dimension of fundamental freedoms guaranteed under the
constitution
One 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 case
Detention 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 violated
These theories find mention in several judgments like those of Justice Krishna
Iyer, etc.



15th January
15 January 2013
11:47





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 MP
Examined 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 Saheb
A 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 Marthoma
Malankara 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 January
16 January 2013
10:38

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 Madras
About 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 UoI
Union 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 India
It 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 Chattisgarh
Challenged 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 January
18 January 2013
11:42

Fundamental duties
Through 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 2000
Justice 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 constitution
It 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 January
21 January 2013
11:43

Stanford Encyclopedia on Philosophy-use for simplistic explanations of
all those wacko philosophies that he talks about in class.

Directive Principles
Servai 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 consideration
In 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 theyre 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 case
About 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 Qureshi
Cow 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 Bihar
Court 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 Thomas
Reservation case where they said Directive Principles are also important

Keshavananda case
Upheld 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 Gandhi
Right to life was expanded. They started reading Directive Principles into
right to life.


Minerva Mills
Parliament 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 class
MP Jain.

Extra class 21st January
21 January 2013
15:05

Fundamental rights
Some 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 state
The 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 Bai
Case 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 Mohanlal
In 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 January
22 January 2013
11:37

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 corporation
3. Whether the corporation enjoys a monopoly status which is state conferred
or state protected
4. Existence of a deep and pervasive state control
5. Whether the functions of the corporation are of public importance and are
closely related to govt. functions
6. 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 appreciation
In 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 January
24 January 2013
14:30

Recommended reading on article 12: Zee Telefilms v Union of India: Majority
Judgment
It 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 TIWARI
Laid 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 India
Involves 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 January
29 January 2013
11:43

*) P K Biswas
Financially, 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 1989
College 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 India
Leakage 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 Maharashtra
Contempt 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 Commissioner
Rule 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 Arunachalam
SC 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 13
Fundamental 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 cant 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 January
30 January 2013
10:38

Article 13
Important 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 Bombay
Is 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 Commissioner
Doctrine 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. Its your fault for distracting
me Yash :P)


*) Hari Singh v Military estate officer
SC 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 February
01 February 2013
11:39

Article 13
Only the effect of the legislation after the commencement of the constitution
will be charged by part 3.

Doctrine of eclipse
When 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 constitution
2. It should operate on atleast one section of society after constitution. In
other words, it should be partly valid and partly invalid
This 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 Mills
State 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 1958
The 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 case
The 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 1958
Certain 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 Karnataka
There 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 1970
Police 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
doesnt affect privacy. So the police should record their reasons for such
surveillance in writing and only then use the power.

*) Sunil bathra v Delhi Administration
The 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 Congress
The 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 February
02 February 2013
10:41

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
Kanpur
This was the first post constitutional law in which this doctrine was applied.

*) Keshavanan Madhav Menon
Press 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.

Severability
Can 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 February
04 February 2013
11:43

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 alone
EPL 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 facilities
16(1)-no discrimination on matters of public employment.
17-prohibition on private individuals from discrimination
18-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 Carrington
The 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 Orissa
Police 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 Behara
Also 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 February
05 February 2013
11:45

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 Nakara
Pensioners 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 India
Over 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 India
Sholapur 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 Begum
Dispute 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 Bihar
Bettaya 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 Bihar
Registered 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 Mittal
Arravilai 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 February
Happy Birthday Yunho! ^-^
06 February 2013
10:38
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 Sandford
US case. It lead to the civil war.
This case was heard before the 14th Amendment.

*) M Nagraaj v Union of India
SC 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 Education
The 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 Bakke
Positive 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 equal
3. Formal equality
4. Substantive equality


8th February
08 February 2013
11:43

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 Punjab
The 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 February
Yes, clearly I was very bored :P
09 February 2013
10:38
The 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 India
Flag 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 India
Jail 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 1955
Government 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 MTNL
Overruled 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 February
11 February 2013
11:45

*) Express Newspapers Pvt. Ltd v Union of India 1958 SC
Journalists 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 SC
Newsprint 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 newspaper
4. 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 10
Contention:
1. Restriction on publishing a new newspaper is curbing the freedom of the
press
2. Restriction of page limit also curbs this freedom
3. Prohibition of the flexibility was an unreasionable curb on the freedom
4. Restriction on interchangability of quota also considered unreasonable.
Reply:
1. Newsprint is an essential commodity and it is important to regulate them
2. Respondents do not have the right to come to court. cited the case below
State 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 February
12 February 2013
11:44



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 situation
There is a right to assemble peacefully.
*) Devendrappa v Karnataka State Small Industries Board
A 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 Punjab
Elected 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 unions
Subject 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 Punjab
State 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 residence
Can be restricted under 19(5).
Can be subjected to public interest. Interest of scheduled tribes.

*) AK Gopalan
Communist 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 February
13 February 2013
10:38

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 Saurashtra
Public 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 WB
WB 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 mysore
Minimum 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 bill
1978, 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 Punjab
The 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 Chaganlal
SC 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 Gopalan
Legislation 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 February
Happy Birthday Changmin! ^_^
18 March 2013
19:03


19th February
19 February 2013
11:51

Article 20 and 21
Cannot 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 20
This 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 India
A 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 Punjab
Talks 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 Punjab
16 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 February
22 February 2013
11:44
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
meaning
20(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 Misri
The above conditions for application of sec 20(2) were laid down in this case.


*) Best Bakery case
Allegations 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 Ogadu
11 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 Karnataka
3 judge bench
Distinguishes 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 February
25 February 2013
11:45

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 Products
When 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 paid
Application 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 Nair
Flat 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 India
Govt 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 Karnataka
Prevalence 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 MP
The 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 February
26 February 2013
11:43

Sec 21
Life 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 Gopalan
SC 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 Cooper
Court 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 February
27 February 2013
10:33

India has imported elements of due process into procedure established by law.


*) Gopalan
The 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
Das
Justice 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 down
Dissent: Justice Fazal Ali. Due process judge. Procedure must give you a
natural justice hearing.

Mithu Singh
Sec 303 IPC. Death sentence to individual who has murdered someone else
while being on trial for murder.


1st March
01 March 2013
11:42

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 India
Bank 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 Illinois
Right 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 killing
2. 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 HC
Police 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 euthanasia
3. Person or near relative has given consent.



SNAP TEST ON 18th
Oh wow >.< Shincha Khamsahamnida >.<
4th March
04 March 2013
11:39

*) NI Caterers
Parallel 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 Chaganlal
Similar 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 Nadu
Senior 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 dont 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 Shetty
Doctrine 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 Hasiya
Arbitrary use of power by interviewing board of engineering college by giving
disproportionate marks to less deserving students.


5th March
05 March 2013
14:42

*) 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 Sabha
DTC 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 India
PIL filed against Petroleum Ministry for distribution of petrol bunks arbitrarily.
SC quashed the distribution as unconstitutional and imposed fine on the
minister.

*) Srilekha Vidhyarthi
After 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 Kashmir
In 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 Broadcasting
Right 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 India
Principle 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 TRAI
Preponement 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 Allocation
This 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 March
06 March 2013
15:41

Article 15
15(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 Bihar
Litigated 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 Bombay
Sec 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 State
SC 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 Bharat
State 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 March
11 March 2013
15:29

15(1)
Discrimination on basis of place of birth

*) D P Joshi v State of Madhya Bharat
Money 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 Mysore
Government 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 Case
DP 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 Madras
Difference 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 Employment
Residence 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 provision
If 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 Thomas
16(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 Association
16(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 Bengal
Reservation for women in local bodies was upheld by both HCs as with 15(3)

*) State of Andhra Pradesh v PV Vijaykumar
30% 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 Sawhney
Women 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 Orissa
Distribution 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 Pradesh
Reservation made 50% in teachers for women was justified.

*) Air India v Nargis Mirza
Different 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 March
09 March 2013
10:38

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 cases
Right 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 BMC
Right to shelter as part of 21. rehabilitation of pavement dwellers.

*) Soden Singh v New Delhi Municipal Corporation
About 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 Aandolan
Sardar 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 March
11 March 2013
19:01

*) Vishaka v State of Rajasthan
The conduct of the employee which causes sexual harassment is violative of the
constitution.
Fact: Gang rape of woman social worker
Vacuum 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 Dorairajan
SC 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 amendment
15(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 employment
16(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 Pradesh
Differences between states do no violate 16(4). As each state has different
financial capabilities.

*) M Nagraj
Upheld reservation in promotions but held that certain conditions have to be
met while using 16(4)
Compelling evidence to show state interest.


12th March
12 March 2013
14:23

Extent of reservation
General 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 Thomas
16(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 India
Reservation 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 Bihar
Reservation possible when there are plurality of posts. Not possible for single
post as that becomes 100% reservation.

*) Raj Kuar v Gulbarga University
Single posts can be pooled and then reservation can be made.

*) Madhav Case/ Narsiman Case
Chakradar 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 Association
SC overruled Madhav and Narsiman
5 judge bench-no reservation in a single post vacancy.


13th March
13 March 2013
10:39

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 Gupta
The 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 Juneja
Overruled 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 India
What 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 Kumar
Service 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 Shrivastava
GM-45% marks. SC ST-20% marks. This was nullified.


*) AIIMS Medical Students Association
Observation: 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 classes
The 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 Chinnaiah
There 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.
Omma
Appa/ Abojhi
Noona
Unnie
Oppa
Donsaeng
Ajhussi
Ajhumoni
-sshi



15th March
15 March 2013
11:42


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 reservation
Does 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 classes
16(4)-backward classes.

15(4) was added through the first constitutional amendment

After Champakam Doraijan
Caste 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 upheld
AP-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 March
16 March 2013
10:40

*) 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) VIMP
Reservation up to 17.5%. But this reservation was subject to a carry forward. If
quota wasnt 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 XD
Non 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-6:3
Majority 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 1995
16(4)a added-allows for reservation in promotions
Then 81st amendment 2000
16(4)b-carry forward beyond 50% allowed
82nd amendment 2000
Proviso to article 335:can have reservation even to the extent of compromising
administrative efficiency for the ends of social justice.

85th Amendment 2001
Amended 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 Kumar
Declared 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 March
Happy Birthday Shriya! ^_^
18 March 2013
19:02


18th March
Happy Birthday Evania! ^_^
18 March 2013
14:31
Constitutional 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 marks
4:1 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 2000
Proviso 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 seniority
X 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 Junejha
Consequential and catch up rule. No consequential seniority. So will apply
catch up rule.

85th Amendment 2001
Consequential 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 India
SC said that the state cannot have reservation in private unaided educational
institution. Violates freedom of trade. (longest judgment :D)

*) Islamic Foundation
Attempted 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 March
19 March 2013
14:31

Article 25
25(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 March
20 March 2013
14:29

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 religion
3. 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 1954
TN 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 1994
Babri 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 UoI
State 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 March
22 March 2013
14:25

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.

*) Devaru
Decide what are essential rituals by looking at what the community believes in.
this is because the text approach is not completely reliable.

*) AS Narayana
Tenet+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 Nanda
Are 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 2004
Essential 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 case
Person born into a religion should be allowed to enter the place of worship of
that religion.


*) Rev Stanislaus
Conversions. 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 TN
Holding 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 26
Venkatramana Devaru Case
GSBs 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 27
No 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 655
Haj 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 Mysore
No reservation policy after 20 years (LOL. :P)

Individual freedom: art 25
Rights of religious denomination: 26
State's non-entanglement with religion: 27
No religious instruction in public schools: 28
Relation between free exercise and non establishment

Relation between art 25 anf 26-temple entry (Devaru) and excommunication
(Saifuddin) cases


23rdMarch
23 March 2013
11:41

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 26
Clause 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 Foundation
VIMP 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 25
Freedom 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 March
25 March 2013
14:27

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 AP
In 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 Roy
Seperation 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.

*) Unnikrishnan
Majority religion is also allowed to establish and run educational institutions
under 19(1)(g).


Race, religion and language: cultural traits

*) VN Sunanda Reddy v AP
Govt 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 education
TMA 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 reasonable
2. 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 University
Aligarh 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 Collegeu
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 case
Did 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 30
Compulsion 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 March
30 March 2013
11:47

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 foundation
Majority: 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 didnt 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 Ingale
Should 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 UP
SC 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 Case
Right 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 India
New 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 Morchau
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 UoI
Special 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 UoI
Transnational 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 TN
The employer must educate the children.


1st April
01 April 2013
14:28

Right to Property
Close 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 activity
Freedom of religion: property is used for offerings
Right 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 domain
2. 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 manner
DP-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 judge
It 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 Bihar
Fixing 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 policy
31B-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 Murildar
Though 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 UoI
14 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 case
Meaning 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 case
Crosscheck about 26, didnt quite catch what he said


2nd April
02 April 2013
14:26

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 Tellis
Access 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 Maharashtra
Law 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 UP
Legislation 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 Maharashtra
Bom 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 Knachar
The 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 VIMP
Authoritatively 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 Mahajan
Remedy 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 beharA
The 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 Bihar
14 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 Singh
Awarded 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 Orissa
Compensation 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 April
03 April 2013
14:25

Constitutional Remedies
Fundamental 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 Case
Wanted 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 FR
Under 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 UP
SC 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 April
08 April 2013
14:20

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 Bihar
Acquitted 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 Bihar
Doctors 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 Behra
The one with the police torture-body on railway tracks

*) Mahmood Nayyar Azam v State of Chattisgarh (2012) 8 SCC 1
A 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 lakhs
There 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 Warranto
To 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 Bihar
Person 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