◈ RIGHT TO FREEDOM

◈ Article 19 (1) guarantees to all citizens the six rights. These are:

(a) Right to freedom of speech and expression.

(b) Right to assemble peaceably and without arms.

(c) Right to form associations or unions or co-operative societies.

(d) Right to move freely throughout the territory of India.

(e) Right to reside and settle in any part of the territory of India.

(f) ******repealed

(g) Right to practice any profession or to carry on any occupation, trade or business.

◈ Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of
property was deleted by the 44th Amendment Act of 1978.

◈ Six rights are not absolute

◈ These six rights are protected against only state action and not private individuals.
Moreover, these rights are available only to the citizens. The State can impose ‘reasonable’
restrictions on the enjoyment of these six rights only on the grounds mentioned in the
Article 19 itself and not on any other grounds. Absolute individual rights cannot be
guaranteed by any modern State. There cannot be any right which is injurious to community
as a whole. In A.K. Gopalan v. State of Madras, the Court observed that “ man as a rational
being desires to do many things, but in a civil society his desires have to be controlled,
regulated and reconciled with the exercise of similar desires by other individuals”. The
restrictions on these freedom are provided in clause 2 to 6 of Article 19 of the Constitution.

◈ However, the restriction which may be imposed under any of the clause must be reasonable
restriction. The restriction cannot be arbitrary. Hence a restriction to be constitutionally
valid must satisfy the following two test:-

(1) The restriction must be for the purposes mentioned in clause 2 to 6 of Article 19;

(2) The restriction must be reasonable restriction.

Test of ‘Reasonable Restriction’- The restriction on the rights under Article 19(1) can only be
imposed by a ‘Law’ and not by executive or departmental instructions. The phrase “reasonable
restriction” in Article 19(6) means that the restrictions imposed on a person in the enjoyment of his
right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the
public.

◈ Further, it is also required that a law impose restriction on the fundamental right must also
strikes a proper balance between the right guaranteed in Article 19(1) and the social control
in Article 19 (2) to (6).

◈ The requirement that a restriction should be ‘reasonable’ means that it is for the courts to
determine whether any restriction is reasonable or not. If the courts are of the view that a
particular restriction is not reasonable then it will declare it void. The word reasonable thus
 widens the scope of judicial review. However there is no definite or absolute test to judge
the reasonableness of a restriction. Each case is to be judges on its own merit.

◈ Freedom of Speech and Expression

◈ Article 19(1) (a) guarantees to all citizens the right to 'freedom of speech and expression'.
However, this right is subject to reasonable restrictions being imposed under Art. 19(2).

◈ The freedom of speech under Art. 19(1)(a) includes the right to express one's views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing,
picture, film, movie, etc. It thus includes the expression of one’s ideas through any
communicable medium or visible representation, such as, gesture, signs and the like. The
expression connotes also publication and thus the freedom of the press is included in this
category. Free propagation of Ideas is necessary objective and this may be done on the
platform or through the press. The freedom of propagation of ideas is secured by freedom of
circulations. Liberty of circulation is essential to that freedom as the liberty of publication.
Without circulation the publication would be of little value.

◈ The freedom of speech and expression includes liberty to propagate not one’s view only. It
also includes the right to propagate or publish the views of other people, otherwise this
freedom would not include the freedom of the press.

◈ Freedom of expression has four broad special purpose to serve: (1) it helps an individual, to
attain self-fulfilment; (2) it assists in the discovery of truth; (3) it strengthens the capacity of
an individual in participating in decision making; and (4) it provides a mechanism by which it
would be possible to established a reasonable balance between stability and social change.
All members of society should be able to form their own belief and communicate them
freely to others.

◈ Right to receive information-

◈ The expression "freedom of speech and expression" in Art. 19(1)(a) has been held to include
the right to acquire information and disseminate the same. It includes the right to
communicate it through any available media whether print or electronic or audio-visual,
such as, advertisement, movie, article or speech, etc. This freedom includes the freedom to
communicate or circulate one's opinion without interference to as large a population in the
country, as well as abroad, as is possible to reach. Thus, the fundamental principle involved
here is the people’s right o know. Freedom of speech and expression should, therefore,
receive generous support from all those who believe in the participation of people in the
administration.

◈ In Prabhu Dutt v. Union of India, AIR 1982, Supreme Court held that the right to knows news
and information regarding administration of the government is included in the freedom of
press. But this right is not absolute and restriction can be imposed on it in the interest of
society and the individual from which the press obtains the information. They can obtain
information from an individual when he voluntarily agrees to give such information. In this
case, the Court directed the Superintendent of the Tihar Jail to permit the Chief Reporter of
the Hindustan Times Newspaper to interview, Ranga and Billa, the two death sentence
convicts, under Art. 19 (1) (a) as they were willing to be interviewed. The Jail authorities had
refused the permission to the newspaper representative to interview the convicts.
◈
Right to vote: A Fundamental Right : Voters right to know about their candidates.

◈ In Union of India v. Association for Democratic Reforms, AIR 2002, In this case the petitioners
for Democratic Reforms filed a PIL and requested the Court for a direction to implement the
recommendation made by the law Commission in its 170th report. On May 2, 2002 the
Supreme Court delivered a judgment and directed the Election Commission to issue a
notification making it compulsory for those who contest election to make available
information about their education, assets, liabilities and criminal background for the benefit
of the voters. Election Commission acted upon the order of the court and issued the
notification accordingly. Thereafter, Parliament amended the Electoral Law (Representation
of People) Act and negatived the Court’s judgment and Election Commission notification.
Section 33 of the amended RPA provided ‘notwithstanding anything contained in any
judgment of any court or any order of the Election commission, no candidate shall be liable
to disclose such information, in respect of his election, which is not required to be disclosed
under this act or rules made thereunder.’

◈ The Supreme Court held that Parliament had no legislative competence to direct the State or
its instrumentality to disobey the orders of the Court. The Parliament cannot declare that
the law declared by the supreme Court is not binding. The Court restored its May 2, 2002
verdict and directed the Election Commission to issue a fresh notification for
implementation of its judgment. The Court held that every citizen has a right to know about
their representative under Article 19 (1) (a).

◈ In State of Uttar Pradesh v. Raj Narain, the Supreme Court has held that Art. 19(1)(a) not
only guarantees freedom of speech and expression, it also ensures and comprehends the
right of the citizens to know, the right to receive information regarding matters of public
concern.

Freedom of the press

◈ Freedom of the press is implied from the freedom of speech and expression guaranteed by
Art. 19(1)(a). There is no specific provision ensuring freedom of the press as such. The
freedom of the press is regarded as a "species of which freedom of expression is a genus”.
Thus, being only a right flowing from the freedom of speech, the freedom of the press in
India stands on no higher footing than the freedom of speech of a citizen, and the press
enjoys no privilege as such distinct from the freedom of the citizen. The Supreme Court has
laid emphasis in several cases on the importance of maintaining freedom of press in a
democratic society. The press seeks to advance public interest by publishing facts and
opinions without which a democratic electorate cannot make responsible judgments.
Articles and news are published in the press from time to time to expose the weaknesses of
the government. This leads at times to the suppression of the freedom of the press by the
government.

◈ Indian Express Newspapers v. Union Of India, (1985), Speaking about the importance of
freedom of press the court observed :
◈ “The expression “freedom of the press” has not been used in Article 19 but it is
comprehended within Article 19 (1) (a). The expression means freedom from interference
from authority which would have the effect of interference with the content and circulation
of newspapers. There cannot be any interference with the freedom in the name of public
interest. The purpose of the press is to advance the public interest by publishing facts and
opinions without which a democratic electorate cannot make responsible judgments.
Freedom of the press is the heart of social and political inter-course. It is the primary duty of
the courts to uphold the freedom of press and invalidate all laws or administrative actions
which interfere with it contrary to the constitutional mandate”.

◈ Banning entry and circulation of journal

◈ Romesh Thapper v. State of Madras, AIR 1950, In this case a law banning entry and
circulation of journal in a State was held to be invalid. The petitioner was printer, publisher
and editor of a weekly journal in English called “Cross Road” printed and published in
Bombay. The Government of Madras, in exercise of their powers under section 9 (1-A) of the
maintenance of Public Order Act, 1949, issued an order prohibiting the entry into or the
circulation of the journal in that State. The Court held there can be, no doubt, that freedom
of speech and expression includes freedom of propagation of ideas, and that freedom is
ensured by the freedom of circulation. Indeed without circulation the publication would be
of little value. Restriction on freedom of speech and expression can only be imposed on
grounds mentioned in article 19(2) of the Constitution. A Law which impose restriction on
ground of public order falls outside the scope of restriction under clause (2) and is void and
unconstitutional.

◈ Fixing minimum price and the number of pages of Newspaper

◈ In Sakal Papers Ltd. v. Union of India, AIR 1962, the Daily (Price and Control Order), 1960,
which fixed a minimum price and also the number of pages which could be published by a
newspaper was challenged as unconstitutional by the petitioner on the ground that it
infringed the liberty of press. The petitioners were required to increase the price of their
newspapers without increasing the pages. An increase in price without any increase in
number of pages would reduce the volume of circulation. On the other hand, any decrease
in the number of pages would reduce the column, space for news, views or ideas. The order,
therefore, acted a double-edged knife. The State justified the law as reasonable restriction
on a business activity of a newspaper in the interest of general public. The Court struck
down the order rejecting the State’s argument. The right of freedom of speech and
expression cannot be taken away with the object of placing restriction on the business
activity of a citizen. Freedom of speech can only be restricted on the grounds mentioned in
clause (2) of Article 19.

◈ Telecast of Serial

◈ In Odyssey Communications Pvt. Ltd. V. Lokvidayan Sanghathan, (1988), The respondents, a

registered social organisation of Pune, filed a public interest litigation under Article 226 to
restrain the Union of India, Ministry of Information and Broadcasting and the State of
Maharashtra from telecasting the serial “Honi Anhoni” on the ground that it was likely to
spread false or blind beliefs and superstition amongst the members of the public. The Court
held that the right of the citizen to exhibit films on the Doordarshan, on the terms and
conditions imposed by the Doordarshan is a part of the fundamental right of freedom of
 expression guaranteed under Article 19(1)(a), which can be curtailed only on the grounds
mentioned in Article 19 (2). The respondents failed to show that exhibition of the serial was
prima facie prejudicial to the community. It was also not likely to endanger public morality.

◈ Film censorship

◈ K.A. Abbas v. Union of, India, AIR 1971, the petitioner had challenged the validity of
censorship as violative of his fundamental right of freedom of speech and expression as
according to him it imposed unreasonable restriction. Under the Cinematograph Act, 1952,
cinema films were classified into two categories, viz., “U” films and “A” films according to
their suitability for adults or young people. “U” films were meant for unrestricted exhibition
while “A” films could only be exhibited to adults. It was argued that motion picture as a form
of expression was, entitled to equal treatment with other forms of expression. The Court
held that pre-censorship of films was justified under Article 19(2) on the ground that films
have to be so treated separately from other forms of art and expression because a motion
picture was able to stir up emotions more deeply than any other product of art.

◈ Freedom of speech includes freedom of silence

◈ In Bijoe Emmanuel v. State of Kerala (1986), Also known as National Anthem case, three
children belonging to Jehovah’s witnesses were expelled from the school for refusing to sing
the national anthem. The circular issued by the Director of Public Instructions Kerala had
made it obligatory for students in the schools to sing national anthem. The children in this
case stood up respectfully when the national anthem was being sung at their school but they
did not join in singing it. They refused to sing the national anthem as according to them it
was against their religious faith which does not permit them to join in any rituals except in
their prayer to Jehovah, their God. They challenged the validity of their expulsion before the
Kerala High Court which upheld their expulsion as valid on the ground that it was their
fundamental duty to sing the national anthem. On appeal, the Supreme Court held that
there was no law under which their fundamental right under Article 19 (1) (a) could be
curtailed. They did not commit any offence under the Prevention of Insults to National
Honour Act, 1971, because they stood up respectfully when the national anthem was being
sung. Freedom of speech and expression also includes freedom of silence.

◈ Commercial Advertisement- Part of Speech and expression

◈ In Hamdard Dwakhana v. Union of India, AIR 1960, the validity of the Drug and Magic
Remedies (Objectionable Advertisement) Act, which put restriction on the advertisement of
drugs in certain cases and prohibited advertisement of drugs having magic qualities for
curing disease was challenged on the ground that the restriction on advertisement violate
the freedom of speech. The Supreme court held that an advertisement is no doubt a form of
speech but every form of advertisement is not a form of speech or expression of idea.
Advertisement when it takes the form of commercial advertisement no longer falls within
the concept of freedom of speech for the object of such advertisement is not the
propagation of ideas – social, political or economic or furtherance of literature or human
thought. An advertisement of commercial nature is not protected under Article 19 (1) (a).

◈ In Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd., The Supreme Court, however, held
that commercial advertisement is a part of the freedom of speech and expression granted
under Article 19(1) (a) of the Constitution. It can only be restricted on the grounds specified
 in clause (2) of Article 19. The Supreme Court by referring to the judgment of Hamdard
Dawakhana’s case held that the judgement was a limited one prohibiting an obnoxious
advertisement and could not be accepted in view of the wider importance of the
advertisement. All commercial advertisement could not be denied the protection of Article
19(1)(a) (as was helfd in Hamdarad Dawakhana case) of the Constitution merely because
the same has been issued by businessmen.

◈ Telephone Tapping- Invasion on right to privacy

◈ In People’s Union for Civil Liberties v. Union of India, AIR 1997, The petitioner, People Union
for Civil Liberties a voluntary organisation filed a petition under Article 32 of the Constitution
by way of Public interest litigation highlighting the incidents of telephone tapping in recent
years. The petitioner challenged the validity of Section 5(2) of the Indian Telegraph Act,
1885. Section 5(2) permits the interception of message in accordance of the provision of the
said section.

◈ The Court laid down exhaustive guidelines to regulate the discretion vested in the State
under Section 5(2) of the Indian Telegraph Act for the purpose of phone tapping and
interception of other messages so as to safeguard public interest against arbitrary exercise
of power. Under the guidelines, an order for telephone tapping can only be issued by the
Home Secretary of the Centre and State Governments. The order is subject to review by a
high power review committee and the period for telephone tapping cannot exceed two
months unless approved by the reviewing authority which can extend in upto six months.

◈ Calling for closer(Band) illegal being violative of FR’s

◈ In Communist Party of India (M) v. Bharat Kumar and others, AIR 1998, Supreme Court held
that calling for and holding closers (Band) by political party or organisation is
unconstitutional and is hence illegal as it violate the fundamental rights of the citizens.
According to court by holding a Band citizens are prevented from attending their avocations
and traders are prevented from keeping their business activates and workers are prevented
from attending to work in the factories and students are prevented to enter their
educational institutions. Supreme Court upheld the Kerala High Court’s judgment that no
political party has right to call for Closer (Band) on the ground that it is part of its
fundamental right of freedom of speech and expression under Article 19(1) (a).

◈ Television Showing Terrorists Attack

◈ In Mohammed Ajmal mohammed Amir Kasab alias ABU Mujahid v. State of Mahrashtra, AIR
2012, the Supreme Court in an important observation, regarding the role of media in live
electronic coverage of terrorist attacks on Taj Hotel, Hotel Oberoi and Nariman House and
shown on T.V. screen stated- The terrorist attacks at all the places, in minutes to minutes
details, were shown live on the Indian TV from the beginning to end almost non-stop in
which almost all the channels were competing with each-other in showing the latest details.
This reckless coverage gave rise to a situation where on the one hand terrorist were
completely hidden from security forces and they had no means to know their exact position
or even the kind of fire arms and explosive they possessed and on the other hand, the
position of the security forces, their weapons and all their operational movement were
being watched by the collaborators across the border on TV screens and being
communicated to the terrorists. Any attempt to justify the conduct of the TV channels by
 citing the right to freedom of speech and expression would be totally wrong and
unacceptable in such situation.

◈ Grounds of Restrictions.

◈ While it is necessary to maintain and preserve freedom of speech and expression in a

democracy, so also it is necessary to place some restrictions on this freedom for the
maintenance of social order. No freedom can be absolute or completely unrestricted.
Accordingly, under Art. 19(2), the state may make a law imposing 'reasonable restrictions'
on the exercise of the right to freedom of speech and expression 'in the interests of’ the
security of the State, friendly relations with foreign States, public order, decency, morality,
sovereignty and integrity of India, or 'in relation to contempt of Court, defamation or
incitement to an offence'. No restriction can be placed on the right to freedom of speech
and expression on any ground other than those specified in Art. 19(2).

(a) Security of the State.- Under clause (2) of Article 19, reasonable restriction can be imposed on
freedom of speech and expression in the interest of security of the State. In Romesh Thapper v. State
of Madras, the Supreme Court has occasion to interpret the meaning of the words security of the
State. The court said that there are different grades of offences against ‘public order’. Every public
disorder cannot amount to be regarded as threatening the security of the State. The term ‘security
of the state’ refers only to the serious and aggravated forms of public disorder, e.g., rebellion,
waging war against the State and not ordinary breaches of public order and public safety e.g.,
unlawful assembly, riot, affray.

(b) Public Order- This ground was added by the Constitution (First Amendment) Act, 1951, in order
to meet the situation arising from the Supreme Court’s decision in Romesh Thaper’r Case. In that
case, it was held that ordinary or local breaches of public order were no ground for imposing
restriction on the freedom of speech, expression guaranteed by the Constitution. According to Court
as the ground Public Order is not included under Article 19(2) so restriction on freedom of speech
and expression cannot be restricted on the ground of public order. As a result of this decision the
expression ‘public order’ was added to Article 19(2) as one of the grounds for imposing restrictions
on the freedom of speech and expression.

◈ Friendly relations with foreign states- This ground was also added by Constitution (1st
Amendment) Act, 1951.The idea behind imposing restrictions on the freedom of speech in
the interests of friendly relations with a foreign country is that persistent and malicious
propaganda against a foreign power having friendly relations with India may cause
considerable embarrassment to India, and, accordingly, indulging in such a propaganda may
be prohibited.

◈ Incitement to an offence- This ground was also added by Constitution (1st Amendment) Act,
1951. Freedom of speech and expression cannot confer a licence to incite people to commit
offence. The word ‘offence’ used here is not defined in the constitution. It is, however,
defined in General Clauses Act, it means any act or omission made punishable by law. What
constitute incitement will, however, have to be determined by the court with reference to
the facts and circumstances of each case.

◈ Contempt of court- In a democratic society, freedom of speech and expression is a prized

privilege and a salutary right of the people. But, at the same time, no less important is the
maintenance of independence and integrity of the judiciary and public confidence in the
 administration of justice. It thus becomes necessary to draw a balance between the two
values. Power has been specifically conferred on the Supreme Court (Art. 129) as well as
each High Court (Art. 215) to punish its contempt. The freedom of speech and expression
guaranteed by Art. 19(1)(a) is thus subject to Arts. 19(2), 129 and 215.

◈ Defamation- Defamation is both a crime as well as a tort. "Defamation is the publication of a

statement which reflects on a person's reputation and tends to lower him in the estimation
of right-thinking members of society generally or tends to make them shun or avoid him." As
a crime, Defamation is defined in S. 499,I.P.C. The law seeks to protect a person in his
reputation as in his person or property.

◈ Decency or Morality- The words “morality or decency” are of wide meaning. The word
‘obscenity’ of English is identical with the word ‘indecency’ under the Indian Constitution.
The test of obscenity is ‘whether the tendency of matter charged as obscene is to deprave
and corrupt those whose minds are open to such immoral influence and into whose hands a
publication of this sort is likely to fall. Thus a publication is obscene if it tend to produce
lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that
public into whose hands the book is likely to fall.

◈ Sovereignty and Integrity of India- The ground was added to clause (2) of Article 19 by the
Constitution (Sixteenth Amendment) Act, 1963. Under this freedom of speech and
expression can be restricted so as not to permit to any one to challenge the integrity or
sovereignty of India.

◈ Freedom to assemble: Arts. 19(1)(b) and 19(3)

◈ Article 19(1)(b) guarantees to the citizens of India the right to assemble peaceably and
without arms. Under Art. 19(3), however, the state can make any law imposing reasonable
restrictions on the exercise of this right in the interests of public order, and sovereignty and
integrity of India.

◈ To some extent, there is common ground between Arts. 19(1)(a) and 19(1)(b). For example,
demonstrations, processions and meetings considered under Art. 19(1)(a) also fall under Art.
19(1)(b) for a demonstration also amounts to an assembly and, therefore, the same
principles apply under both Articles. The right to strike is not available under either of these
Articles.

◈ Under Article 19(3) reasonable restriction can be imposed in the in the interest of
‘sovereignty and integrity of India’ or ‘public order’.

◈ Freedom to form association :Arts. (19)(1)(c) and 19(4)

◈ Article 19(1)(c) guarantees to the citizens of India the right to form associations or unions.
Under Art. 19(4), reasonable restrictions in the interests of public order or morality or
sovereignty and integrity of India may be imposed on this right by law.

◈ The right to form associations is the very lifeblood of democracy. Without such a right,
political parties cannot be formed, and without such parties a democratic form of
government, especially that of the parliamentary type, cannot be run properly. Hence the
Constitution guarantees the right to form associations subject to such restrictions as can be
imposed under Art. 19(4).
◈ In Damayanti v. Union of India, AIR 1971, The validity of Hindi Sahitya Sammelan Act, 1962
was challenged as violative of Article 19(1)(c).

◈ The Petitioner was a member of an association. The act changed the composition of the
association and introduced new members. The result of this alteration was that the
members who voluntarily formed the association were now compelled to act in the
association with other members in whose admission they had no say. The Supreme Court
held the Act violated the rights of the original members of the society to form an association
guaranteed under Article 19(1)(c). “The right to form an association”, the Court said,
“necessarily implies that the person forming the association have also the right to
continue to be associated with only those whom they voluntarily admit in the association.

◈ O.K.A. Nair v. Union of India, AIR 1976, An important question arose whether ‘civilian’
employees, designated as ‘non-combatants’ such as cooks, chowkidars, laskers, barbers,
mechanics, boot-makers, tailors, etc., attached to the Defence Establishments have a right
to form associations or unions. The appellants were members of the civil employees unions
in the various centers of the defence establishment. The Commandant declared their unions
as unlawful associations. They challenged the order as violative of their fundamental right to
form association or unions under Article 19(1) (c) of the Constitution. They contended that
the members of the unions, though attached to the defence establishments, were civilians
and their service conditions were regulated by civil services rules and therefore they could
not be called “members of the Armed force” within the meaning of Article 33 of the
constitution. The Supreme Court rejected the contentions of the appellants and held that
the civilian employees of the defence establishment fall within the description of the
members of the Armed forces within the meaning of Article 33 and, therefore were not
entitled to form trade unions.

◈ Freedom of movement and residence: Arts. 19(1)(d), (19)(1)(e) and 19(5)

◈ Article 19(1)(d) guarantees to every citizen the right to move freely throughout the territory
of India. Art. 19(1)(e) guarantees to a citizen the right to reside and settle in any part of
India. According to Art. 19(5), however, the State may impose reasonable restrictions on
these rights by law in the interests of general public or for the protection of the interests of
any Scheduled Tribe.

◈ These constitutional provisions guarantee to the Indian citizens the right to go or to reside
wherever they like within the Indian territory. A citizen can move freely from one State to
another, or from one place to another within a State. These rights underline the concept
that India is one unit so far as the citizens are concerned.

◈ However, reasonable restriction can be imposed in the interest of general public or for the
protection of the interests of any Scheduled Tribe.

◈ In Ajay v. Union of India (1988), A rule was made under the Motor Vehicles Act requiring
compulsory wearing of helmet by a person driving a scooter or a motor cycle. The rule was
challenged as infringing the free movement of the driver of a two wheeler guaranteed under
Art. 19(1)(d), but the Court refused to accept the argument. The Court maintained that the
rule has been framed for the benefit and welfare of, and safe journey by, a person driving a
two wheeler vehicle. The rule is made to prevent accidents not to curtail freedom of
movement.
 ◈ The right of a citizen to move freely may also be restricted for the protection of the interest
of Scheduled Tribes. The object is to protect the original tribes which are mostly settled in
Assam. The tribes have their own culture, language, custom and manners. It was consider
necessary to impose restrictions upon the entry of outsiders to these areas.

◈
Freedom to carry on trade and commerce: Arts. 19(1)(g)and 19(6)

◈ Article 19(1)(g) guarantees to all citizens the right to practise any profession, or to carry on
any occupation, trade or business. Under Art. 19(6), however, the state is not prevented
from making a law imposing, in the interests of the general public, reasonable restrictions on
the exercise of the above right. Nor is the state prevented from making--

(i) a law relating to professional or technical qualifications necessary for practising a profession or
carrying on any occupation, trade or business; or

(ii) a law relating to the carrying on by the state, or by corporation owned or controlled by it, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or
otherwise.

◈ Right to carry on business includes the right to close the business

◈ In Excel Wear v. Union of India, AIR 1979, the petitioner “Excel Wear” was a registered firm.
It had a factory at Bombay where it manufactured garments for exports. Due to serious
labour trouble, the factory was running into a recurring loss. The petitioners finding it almost
impossible to carry on business of the factory, served a notice on the State Government for
prior approval for its closure. The Government refused approval in the public interest.

◈ The Supreme Court held – Nobody has got a right to carry on the business if he cannot pay
even minimum wages to the labourers. He must then close down his business. The refusal
not to close down business, even if he cannot pay, is not a reasonable restriction in the
public interest within the meaning of Article 19(6) of the Constitution. The right to carry on a
business includes to close it down if the circumstances so warranted. State cannot compel a
citizen to carry on business against his will. However, right to close down business can be
restricted or regulated by the State in the interest of public.

◈ Government Doctors- No right of private practice

◈ In Sukumar Mukherjee v. State of W.B., (1993), the appellants challenged the validity of
West Bengal State Health Service Act, 1990 on the ground that it impose unreasonable
restriction on their right to carry on any occupation, trade or business under Article 19(1)(g)
of the Constitution. Section 9 of the Act prohibited private practice by a teacher doctor of
West Bengal Medical Education Service a Government institution.

◈ The Court held – The restriction imposed by section 9 is reasonable and in the interest of the
general public. The restriction is not on the freedom to practise the medical profession. This
applies to those doctors who voluntarily join the Government service. Those who join the
government service are bound by he terms and conditions of service and will have no right
to private practice.

◈ Doctrine of res extra commercium

◈ In Khoday Distilleries Ltd. v. State of Karnataka, (1995), the question before the court was
whether a citizen has fundamental right to trade or business in liquor?

◈ The Court held that the right under Article 19 are not absolute but qualified and State is
authorised under clause (2) to (6) of Article 19 to impose reasonable restriction on this right
in the public interest. A citizen has no fundamental rights to trade or business in activities
which are immoral and criminal and in articles or goods which are obnoxious and injuries to
health, safety and welfare of general public, i.e., res extra commercium (outside commerce).
Hence a citizen has no right to carry on trade or business in liquors as beverage. The State
has power to prohibit the manufacture, sale, possession, distribution and consumption both
because it is dangerous article of consumption.

◈ State Lotteries-

◈ In B.R. Enterprises v. State of U.P., AIR 1999, the petitioners had challenged the validity of
Lotteries (Regulation) Act, 1998, and the order passed by the State of U.P. in exercise of
power vested under Section 5 of the Act banning sale of lottery tickets of other States in the
State of Utter Pradesh as violative of Art. 19(1)(g) and Arts. 301, 302, and 303 of the
Constitution.

◈ The Supreme Court held- The lottery contains an element of chance and therefore cannot be
trade or commerce but is gambling. It is res extra commercium i.e., outside commerce, Sale
of lottery tickets organised by the State cannot be construed to be trade and commerce
within the meaning of Arts. 301 to 303 or trade or business under Art. 19(1)(g) of the
Constitution. The difference between gambling and trade is that a gambling inherently
contains a chance with no skills, while trade contains skill with no chance.

◈ Hawkers Right to trade on pavement of roads.

◈ Sodan Singh v. New Delhi Municipal Committee, AIR 1989, Supreme Court held that hawkers
have a fundamental right to carry on trade on pavement of roads, but subject to reasonable
restriction under Article 19(6) of the Constitution. The petitioners who were poor hawkers
were carrying on the business on the pavements of roads of Delhi. Municipal Committee
restricted them to continue their business on the pavements of roads. The Supreme Court
held the right to carry on trade or business on pavement of roads cannot be denied on the
ground that the streets are meant only for passing or re-passing and for no other use. The
right if properly regulated would help both the small traders and the general public by
making available ordinary articles of day use for a comparatively lesser price.

◈ Prohibition on sale of eggs

◈ Om Parkash v. State of U.P., AIR 2004, the appellants challenged the validity of Gazette
Notification under Section 298(2) of the U.P. Municipalities Act as amended prohibiting the
sale of eggs within the municipal limits of Rishikesh on the ground that it imposed
unreasonable restriction on their rights to carry on business under Art. 19 (1)(g) of the
Constitution.

◈ The Supreme Court held- The notification is valid as it impose reasonable restriction on the
right to trade of the appellants and is not violative of Art. 19(1)(g) of the Constitution. The
reasonableness of complete restriction imposed on trade of non-vegetarian food items has
to be viewed from cultural and religious background of the three municipal towns. The
 members of several communities in India are strictly vegetarian, such people in great
number regularly visit Haridwar and Rishikesh. The bye law was in the larger interest of the
public hence, valid.

◈ Slaughter of Cow

◈ In State of Gujarat v. Mirzapur Moti Qureshi Kasab Jamat, AIR 2006, the petitioners, who
were butchers, challenged the Constitutional validity of the Bombay Animal Preservation
Gujarat amendment Act, 1994 as applicable to the State of Gujarat. Under the legislation,
the state of Gujarat imposed a total ban on slaughter of cows and calves and other milch
and draught cattles. The Supreme Court held – The prohibition of slaughter of cows does not
amount to total ban on activity of butchers. The ban imposed by section 5 of the Act is with
regard to slaughter of particular class of cattle. They are left free to slaughter cattle other
that those specified in the Act.

◈ Article 20. Protection in Respect of Conviction for Offences

◈ Article 20 of the Constitution provides following safeguards to the persons accused of

crimes:-

(a) Ex post facto law: Clause (1) of Article 20.

(b) Double jeopardy : Clause (2) of Article 20.

(c) Prohibition against self-incrimination: Cause (3) of Article 20.

(A) Protection Against Ex Post Facto Laws: Article 20 (1)- No person shall be convicted for any
offence except for violation of law in force at the time of the commission of the act charged as an
offence, nor be subject to a penalty greater than that which might have been inflicted under the law
in force at the time of the commission of the offence.

◈ An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is,
upon acts already done or which increases the penalties for such acts. The enactment of
such a law is prohibited by the first provision of Article 20. However, this limitation is
imposed only on criminal laws and not on civil laws or tax laws. In other words, a civil liability
or a tax can be imposed retrospectively. Further, this provision prohibits only conviction or
sentence under an ex-post-facto criminal law and not the trial thereof.

◈ Article 20(1) has two parts. Under the first part, no person is to be convicted of an offence
except for violating a 'law in force' at the time of commission of the act charged as an
offence. A person is to be convicted for violating a law in force when the act charged is
committed. A law enacted later, making an act done earlier (not an offence when done) as
an offence, will not make the person liable for being convicted under it.

◈ For example

◈ In Soni Devrajbhai Babubhai v. State (1991), The Supreme Court held that Section 304B , IPC,
was enacted on 19-11-1986 making a dowry death punishable as an offence under the Penal
Code. A new offence has thus been inserted in the IPC with effect from 19-11-1986. Because
of Art. 20(1), section 304B cannot be applied to a dowry death which took place in 1984, i.e.,
prior to its enactment.
 ◈ The second part of Art. 20(1) immunizes a person from a penalty greater than what he
might have incurred at the time of his committing the offence. Thus, a person cannot be
made to suffer more by an ex-post-facto law than what he would be subjected to at the time
he committed the offence.

◈ For Example:

◈ In Kedar Nath v. State of West Bengal, the accused committed an offence in 1947, which
under the Act then in force was punishable by imprisonment or fine or both. The act was
amended in 1949 which enhanced the punishment for the same offence by an additional
fine equivalent to the amount of money procured by the accused through the offence. The
Supreme Court held that the enhanced punishment could not be applicable to the act
committed by the accused in 1947 and hence set aside the additional fine imposed by the
amended Act.

◈ Beneficial Provisions- However, the accused can take advantage of the beneficial provision
of the ex post facto law. The rule of beneficial construction requires that ex post facto law
should be applied to mitigate the rigorous (reducing the sentence) of the previous law on
the same subject. Such a law is not affected by article 20(1).

◈ In Ratanlal v. State of Punjab, 1965, a boy of 16 years was convicted for committing an
offence of house-trespass and outraging the modesty of a girl aged 7 years. The magistrate
sentenced him for 6 months rigorous imprisonment and also imposed fine. After the
judgment of magistrate, the Probation of Offenders Act, 1958, came into force. It provided
that a person below 21 years of age should not ordinarily be sentenced to imprisonment.
The Supreme Court by a majority of 2 to 1 held that the rule of beneficial interpretation
required that ex post facto law could be applied to reduce the punishment. So an ex post
facto law which is beneficial to the accused is not prohibited by clause (1) of Article 20.

B. Protection against Double Jeopardy – Clause (2)- Article 20(2) of our Constitution says that “no
person shall be prosecuted and punished for the same offence more than once”. This clause
embodies the common law rule of ‘nemo debit vis vexari’ which means that no man should be put
twice in peril for the same offence. If he is prosecuted again for the same offence for which he has
already been prosecuted he can take complete defence of his former acquittal or conviction.

 The American Constitution also incorporates the same rule, however, under clause (2)
Article 20 is narrower that given in American and British laws. Under the American and
British Constitution the protection against double jeopardy is given for the second
prosecution for the same offence irrespective of whether an accused was acquitted or
convicted in the first trail. But under Article 20(2) the protection against double punishment
is given only when the accused has not only been ‘prosecuted’ but also ‘punished’ and is
sought to be prosecuted second time for the same offence.

◈ The use of the word ‘prosecution’ thus limits the scope of the protection under clause (2) of
Article 20. If there is no punishment for the offence as a result of the prosecution, clause (2)
of Article 20 has no application and an appeal against acquittal, if provided by the procedure
is in substance a continuance of the prosecution. The word prosecution as used with word
punishment embodies the following essentials:

(1) The person must be accused of an offence, The word ‘offence’ as defined in General Clause
Act means any act or omission made punishable by law for the time being in force.
 (2) The proceeding or the prosecution must have taken place before a ‘court’ or judicial
tribunal.

(3) The person must have been ‘prosecuted and punished’ in the previous proceeding.

(4) The ‘offence’ must be the same for which he was prosecuted and punished in the previous
proceedings.

◈ Exercise:

◈ Maqbool Husain v. State of Bombay, AIR 1953, the appellant brought some gold into India.
He did not declare that he had brought gold with him to the custom authorities on the
airport. The customs authorities confiscated the gold under Sea Customs Act. He was later
on charged for having committed an offence under the Foreign Exchange Regulation Act.
The appellant contended that second prosecution was in violation of Article 20 (2) as it was
for the same offence, i.e., for importing gold in contravention of Government notification for
which he had already been prosecuted and punished as his gold had been confiscated by
customs authorities.

◈ The Court held that the Sea Customs Authorities were not a court or judicial tribunal and the
adjudging of confiscation under sea customs act did not constitute a judgment of judicial
character necessary to take the plea of double jeopardy. Hence, the prosecution under FERA
Act is not barred.

◈ Article 20 (2) does not apply where the person is prosecuted and punished for the second
time and subsequent proceeding is mere continuation of the previous proceeding, e.g., in
the case of an appeal against acquittal.

C. Prohibition against self-incrimination- Clause (3) – clause (3) of Article 20 provides that no person
accused of any offence shall be compelled to be a witness against himself. Article 20 (3) embodies
the general principle of English and American jurisprudence that no one shall be compelled to give
testimony which may expose him to prosecution for crime. The cardinal principle of criminal law is
that an accused must be presumed to be innocent till the contrary is proved. It is the duty of the
prosecution to prove the offence. The accused need not make any admission or statement against
his own free will.

◈ Explaining the scope of this clause in M.P. Sharma v. Satish Chandra, 1954, the S.C. observed
that this right embodies the following essentials:

(1) It is a right pertaining to a person who is “accused of an offence”.

(2) It is protection against “compulsion to be a witness”.

(3) It is protection against such compulsion relating to his giving evidence “against himself”.

(1) Accused of an offence.- The words ‘accused of an offence’ make it clear that this right is only
available to a person accused of an offence. A person is said to be an accused person against whom
a formal accusation relating to the commission of an offence has been leveled which in normal
course may result in his prosecution and conviction. It is not necessary that the actual trial or inquiry
should have started before the Court.
 ◈ In M.P. Sharma v. Satish Chandra, it was held that a person, whose name was mentioned as
an accused in the first information report by the police and investigation was ordered by the
magistrate, could claim the protection of this guarantee.

(2) To be a witness. – The protection is against compulsion ‘to be an witness’. In M.P. Sharma v.
Satish Chandra, 1954, the Supreme Court interpreted the expression “to be a witness” very widely
so as to include, oral, documentary, and testimonial evidence. The protection under Article 20(3)
covers not merely testimonial compulsion in a court room but also compelled testimony previously
obtained. The Court accepted the definition given in the Indian Evidence Act that a person can be ‘a
witness’ not merely by giving oral evidence but also by producing documents or making intelligible
gesture as in the case of a dumb witness or the like. If this interpretation of the phrase ‘to be a
witness’ was to be followed then compulsory taking of finger impression or specimen handwriting of
an accused would come within the mischief of Article 20(3). This broad interpretation, it was
thought, would certainly hamper the effective administration of justice.

◈ However, In State of Bombay v. Kathi Kalu, AIR 1961, the Supreme Court held that the
interpretation of the phrase ‘to be a witness’ given in M.P. Sharma’s case was too broad and
required a qualification. To be a witness can only mean conveying information based upon
personal knowledge of the person giving information and cannot include merely the
technical process of producing documents in court which may throw light on any point in
controversy. Thus when a person gives his finger impression or specimen writing or
signature, though, it may amount to furnishing evidence in the large sense is not included
within the expression “to be a witness”.

(3) Compulsion to give evidence “against himself”.- The protection under Article 20(3) is available
only against the compulsion of accused to give evidence against himself. But left to himself he may
voluntarily by entering into the witness-box or by giving evidence voluntarily on request. Request
implies no compulsion. Therefore, evidence given on request is admissible against the person giving
it.

In Nadini Satpathy v. P.L. Dani, AIR 1977, the Supreme Court has considerably widen the scope of
clause (3) of Article 20. The phrase “compelled testimony” must be read as evidence procured not
merely by physical threat or violence but by psychic (mental) torture, atmospheric pressure,
environmental coercion, tiring interrogatives and the like.

◈ Validity of Lie Detector Tests

◈ Narcoanalysis, Polygraphy and Brain Finger printing tests of the accused.-

◈ In Selvi v. State of Karnataka, AIR 2010, the accused had challenged the validity of certain
scientific techniques namely, Narcoanalysis, Polygarphy and Brain finger Printing tests
without their consent as violative of Article 20(3) of the Constitution.

◈ The Supreme Court held- That these tests are testimonial compulsions and are prohibited by
Article 20 (3) of the Constitution. The compulsory administration of these tests constitutes
cruel, inhuman, or degrading treatment. The court laid down following guidelines for these
tests:

(1) No Lie Detector Tests should be administered without the consent of the accused.
(2) It he accused volunteers for a Lie Detector Test, he should be given access to a lawyer and
physical, emotional and legal implication of such a test should be explained to him by the police and
his lawyer.

(3) The consent should be recorded by a Judicial Magistrate.

(4) During the hearing before the Magistrate, the person alleged to have agreed should be duly
represented by a lawyer.

(5) The actual recording of the Lie Detector shall be done by an independent agency (such as a
hospital) and conducted in the presence of a lawyer.

◈ Article 21.- Right to life and personal liberty

◈ Article 21 lays down that no person shall be deprived of his life or personal liberty except
according to 'procedure established by law'.

◈ The most important words in this provision are procedure established by law. Immediately
after the Constitution became effective, the question of interpretation of these words arose
in the famous case A.K. Gopalan v. State of Madras, AIR 1950, where the validity of the
Preventive Detention Act, 1950, was challenged. The main question was whether Art. 21
envisaged any procedure laid down by a law enacted by a legislature, or whether the
procedure should be fair and reasonable. In this case petitioner A.K. Gopalan, a communist
leader was detained under Preventive Detention Act, 1950. The petitioner challenged the
validity of his detention under the Act on the ground that it was violative of his right to
freedom of movement under Art. 19(1)(d) which is very essence of personal liberty under
Art. 21.

◈ He contended before the court that;

◈ (1) The word 'law' in Art. 21 does not mean merely enacted law but incorporates principles
of natural justice so that a law to deprive a person of his life or personal liberty cannot be
valid unless it incorporates these principles in the procedure laid down by it.

◈ (2) The reasonableness of the law of preventive detention ought to be judged under Art. 19.

◈ (3) The expression 'procedure established by law' introduces into India the American
concept of procedural due process which enables the Courts to see whether the law fulfils
the requisite elements of a reasonable procedure.

◈ However, Supreme Court rejected all these arguments.

◈ The Supreme Court by majority held that the personal liberty in Art. 21 means nothing more
than liberty of physical body, that is, freedom from arrest and detention without the
authority of law.

◈ The Supreme Court ruled by majority that the word 'law' in Art. 21 could not be read as
meaning rules of natural justice. These rules were vague and indefinite and the Constitution
could not be read as laying down a vague standard. Nowhere in the Constitution the word
'law' was used in the sense of abstract law or natural justice.
◈ The word 'law' was used in the sense of state-made law only and not natural justice. The
expression 'procedure established by law' would therefore mean the procedure as laid down
in an enacted law.

◈ The word liberty is a very comprehensive word and if interpreted it is capable of including
the rights mentioned in Article 19. But by qualifying the word ‘liberty’ with ‘personal’ its
meaning has been narrowed down to the meaning given in English Law to the expression
‘liberty of the person’.

◈ Thus, the Supreme Court ruled in Gopalan’s case that in Art. 21, the expression "Procedure
established by law” meant the procedure as laid down in the law as enacted by the
Legislature and nothing more. A person could thus be deprived of his "life" or 'personal
liberty' in accordance with the procedure laid down in the relevant law.

◈ The Court was thus concerned with the procedure as laid down in the statute. Whether the
procedure was fair or reasonable, or according to natural justice or not was not the concern
of the Court. The ruling thus meant that to deprive a person of his life or personal liberty--

◈ (1) there must be a law;

◈ (2) it should lay down a procedure; and

◈ (3) the executive should follow this procedure while depriving a person of his life or personal
liberty.

◈ But this restrictive interpretation of the expression ‘personal liberty’ in Gopalan’s case has
not been followed by the Supreme Court in its later decisions.

◈ In Kharak Singh v. State of U.P. AIR 1963, the Supreme Court of India refused to accept the
narrowest interpretation of the term “personal liberty”. The court held that the term
“personal liberty” under Article 21 of the Indian Constitution included not only mere
freedom from physical restraint but something more than mere animal existence. In this
case kharak singh charged in a dacoity case but was released as there was no evidence
against him. Under the U.P. Police Regulations, police opened a history sheet against him
and kept him under police surveillance which included secret picketing of his house by the
police, domiciliary visit at night and verification of his movements and activities.

◈ The Supreme Court held that the domiciliary visits by the police were an invasion on the
petitioners personal liberty. By the term ‘life’ as used here something more is meant than
mere animal existence. The police regulations authorising domiciliary visits was violating of
Article 21 as there was no law on which it could be justified.

◈ But in Govind v. State of M.P., 1975, the Supreme court held that M.P. Police Regulations
authorising domiciliary visits which were framed by the Government under section 46(2)(e)
of the Police Act were constitutional.

◈ The difference between the two case was that in Kharak Singh’s case the regulations were
declared unconstitutional because they were not framed under any law and hence did not
have the force of law. On the other hand, in Govind’s case the validity of similar Police
Regulations was upheld as they had the force of law.
 ◈ In Satwant Singh v Assistant Passport Officer, AIR 1967, the Court held that the right to
personal liberty included the right to go abroad. The Court insisted the Passport authorities
to adopt some fair procedure for regulating the grant or denial of passports. Consequently,
the Indian Parliament enacted the Passport Act of 1967, specifying who is eligible for a
passport, under what circumstances a passport is refused, and the procedure for applying a
passport.

◈ A major breakthrough came in Maneka Gandhi v Union of India, AIR 1978, In this case, the
meaning and content of the words ‘personal liberty’ again came up for the consideration of
the Supreme Court. In this case the petitioners passport was impounded by the Central
Government under Section 10 (3) (c) of the Passport Act, 1967. The Act authorised the
Government to do so if it was necessary ‘in the interest of the general public’. The
Government of India decline in the interest of the general public to furnish the reason for its
decision.

◈ The Petitioner Challenged the validity of the said order on the following grounds;

(1) Section 10 (3) (c) was violative of Article 14 as conferring an arbitrary power since it did not
provide for hearing of the holder of the passport before the passport was impounded.

(2) Section 10 (3) (c) was violative of Article 21 since it did not prescribe procedure within the
meaning of Article 21.

(3) Section 10 (3) (c) was violative f Article 19(1) (a) and (g) since it permitted imposition of
restrictions not provided in clauses (2) to (6) of Article 19.

The Supreme Court held that the Government was not justified in withholding the reasons for
impounding the passport from the petitioner.

◈ Delivering the judgment, Bhagwati, J. held that the procedure contemplated in Article 21
could not be unfair or unreasonable. The principle of reasonableness which is an essential
element of equality or non-arbitrariness under Article 14 and the procedure under Article 21
must answer the test of reasonableness in order to be in conformity with Article 14. Hence,
any procedure which permitted impairment of individuals right to go abroad without giving
him a reasonable opportunity to be heard could be condemned as unfair and unjust. The
Supreme Court has given the widest possible interpretation of the word ‘personal liberty’.
Article 21 requires the following conditions to be fulfilled before a person deprived of the
property; (1) there must be law;(2) the law must provide a procedure;(3) the procedure
must be just, fair, and reasonable. (4) the law must satisfy the requirements of Arts. 14 and
19 i.e., it must be reasonable.

◈ Thus, prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal
liberty to citizens only against the arbitrary action o the executive, and not from legislative
action. The State could interfere with the liberty of citizen if it could support its action by a
valid law. But after Maneka Gandhi’s case Article 21 now protects the right to life and
personal liberty of citizen not only from executive action but from the legislative action also.
A person an be deprived of his life and personal liberty if four conditions are complied with
i.e., (1) there must be law;(2) the law must provide a procedure;(3) the procedure must be
just, fair, and reasonable. (4) the law must satisfy the requirements of Arts. 14 and 19 i.e., it
must be reasonable.
◈ Expanding horizon of right to life and personal liberty

◈ Right to live with human dignity- In Francis Coralie v. Administrator, Union Territory of Delhi,
1978, the Supreme Court stated that, “the right to life includes the right to live with human
dignity and all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter over the head and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and mixing and commingling with fellow
human beings”

◈ Deepak Bajaj v. State of Maharashtra, held that reputation, which is sine qua non of dignity
of a person, is part and parcel of his right to life and personal liberty. This observation is
mostly warranted in the present scenario where suspicion has become the driving force for
the police to pick up and detain individuals in violation of their right to life, dignity, and
reputation.

◈ Article 21 includes Right to Livelihood

◈ Right to livelihood is include in right to life as no person can live without the means of living
that is livelihood. If right to livelihood is not treated as part and parcel of right to life, the
easiest way of depriving a person of his right to life would be deprived him of his means of
livelihood.

◈ The Supreme Court in Olga Tellis v. Bombay Municipal Corporation, 1986, held that the
concept of “right to life and personal liberty” guaranteed under Article 21 of the
Constitution includes the “right to live with dignity” which in turn includes right to livelihood.
The court observed that “it does not mean merely that life cannot be extinguished or take
away as, for example, by the imposition and execution of death sentence, except according
to the procedure established by law. That is one aspect of the right to life. An equally
important facet of that right is the right to livelihood because no person can live without the
means of livelihood.

◈ Also in Sodan Singh v. New Delhi Administration, 1989.

◈ Article 21 includes Right to Shelter

◈ In Chameli Singh v. State of U.P., 1996, it has been held the right to shelter is a fundamental
right under Article 21 of the Constitution. In any organised society, the right to live as a
human being is not ensured by meeting only the animal needs of man. It is secured only
when he is assured of all facilities to benefit himself. Right to live guaranteed in any civilised
society implies the right to food, water, decent environment, education, medical care and
shelter.

◈ Article 21 includes Right to Privacy

◈ For the first time, the issue was raised in Kharak Singh v State U.P. Justice Subba Rao in his
minority judgment said that the right to privacy flows from the expression personal liberty.
However, the majority held that the Indian Constitution does not specifically protect the
right to privacy.
◈ In R. Rajgopal v. State of Tamil Nadu, 1994, the Supreme Court observed that right to
privacy is nothing but ‘right to be let alone and it is implicit in right to life and personal
liberty guaranteed under Art. 21 of Indian Constitution. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child bearing and
education among other matters. No one can publish anything concerning the above matters
without his consent whether truthful or otherwise and whether critical.

◈ Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India, 2017, Aadhaar Scheme, a
biometric-based 12-digit unique identification number issued to all Indians residents, is
considered as a technology-enabled tool for efficient public service delivery and root out the
corruption from it. Under the Aadhaar Scheme, the Government of India collects and
compiles both the demographic and biometric data of the residents of this country to be
used for various purposes.

◈ However, the scheme has been opposed by several people. One of the ground of attack on
the scheme is that the collection of biometric data is violation of the ‘right to privacy’.

◈ The petitioner contended that right to privacy emanates not only from Article 21, but also
from various other articles of fundamental rights.

◈ The Supreme Court observed that the privacy of the individual is an essential aspect of
dignity. Privacy enables the individuals to retain the autonomy of the body and mind. The
Court held that Privacy is a constitutionally protected right which emerges primarily from
the guarantee of life and personal liberty in Article 21 of the Constitution. It was observed by
the court that no legal right can be absolute. Every right has limitations. Therefore, even a
fundamental right to privacy has limitations. The limitations are to be identified on the case
to case basis depending upon the nature of the privacy interest claimed.

◈ Article 21 includes Right to Health and Medical Care

◈ In a landmark decision of Parmanand Katara v Union Of India, 1989, the Supreme Court held
that in medico legal cases preservation of life is of paramount importance therefore it is the
primary duty of doctor whether Government or private to give immediate aid to the victims
(injured person) either he is a criminal or innocent person and shall not wait for the
completion of legal formalities.

◈ Right to Sleep

◈ In Ramlile Maidan v. Home Secretary, Union of India, 2012, on the night of 4th June, 2011,
the men and women belonging to different age groups who had come to Ramlila Maidan to
participate in the yoga training camp led by Baba Ram Dev and for which permission had
been given were sleeping. The permission to hold the camp was withdrawn and Section 144
of Cr.P.C. was imposed and without notice of it, the police in an attempt to disperse
gathering at about and after 1.00 A.M. on 4th/5th June, 2011 resorted to use of tear gas and
lathi charge to disperse the peaceful sleeping crowd. A number of men and women were
Injured resulting into death of a women Rajbala.

◈ The supreme Court held that The decision to forcibly evict the innocent public sleeping in
the mid night was arbitrary and abuse of power to some extent. Court held that sleep is
necessity and not a luxury. It is necessary for optimal health and happiness as it directly
affects the quality of life of an individual. Sleep is biological and essential ingredient of the
 basic necessities of life. The deprivation of sleep would result in mental and physical torture
both. Right to sleep is a part of right to privacy and is also a constitutional freedom
acknowledged under Article 21 of the Constitution.

◈ Right to Die whether part of Right to life

◈ The question arises whether right to life under Article 21 includes right to die or not. This
question came for consideration for first time before the High Court of Bombay in State of
Maharashtra v. Maruti Sripati Dubal, 1987, In this case the Bombay High Court held that
the right to life guaranteed under Article 21 includes right to die, and the hon'ble High Court
struck down section 309 IPC which provides punishment for attempt to commit suicide by a
person as unconstitutional. The judges felt that the desire to die is not unnatural but merely
abnormal and uncommon.
In this case a Bombay Police Constable who was mentally ill was refused permission to set
up a shop and earn a living. Out of frustration he tried to set himself afire in the
corporation’s office room.

◈ On the other hand, Andhra Pradesh High court in Cheena Jagadeeshwar v. State of A.P.,
1988, held that the right to die is not a fundamental right within the meaning of Article 21
and hence section 309 of IPC is not unconstitutional.

◈ In P Rathinam v. Union of India a Division Bench of the Supreme Court supporting the
decision of the High Court of Bombay in. Maruti Sripati Dubal case held that under Article 21
right to life also include right to die and laid down that section 309 of Indian Penal Court
which deals with ' attempt to commit suicide is a penal offence' unconstitutional. The Court
held that Section 309 of IPC was violative of Art, 21 and hence it is void. A person cannot be
forced to enjoy right to life to his detriment, disadvantage or disliking.

◈ This issue again raised before the court in Gian Kaur v. State of Punjab, 1996. In this case a
five judge Constitutional Bench of the Supreme Court overruled the P. Ratinam's case and
held that Right to Life under Article 21 of the Constitution does not include Right to die or
Right to be killed and there is no ground to hold that the section 309, IPC is constitutionally
invalid. To true meaning of the word 'life' in Article 21 means life with human dignity. Any
aspect of life which makes life dignified may be include in it but not that which extinguishes
it. The 'Right to Die' if any, is inherently inconsistent with the Right to Life as is death with
Life.

◈ Euthanasia

◈ A question may arise, in case of a dying man, who is, seriously ill or has been suffering from
virulent and incurable form of disease he may be permitted to terminate it by a premature
extinction of his life in those circumstances.

◈ In Aruna Ramchandra Shanbaugh v. Union of India, 2011, a writ petition was filed by Ms.
Pinki Virani of Mumbai claiming to be the next friend of Aruna Ramchandra Shanbaugh with
a prayer for direction to the respondent to stop feeding and let Aruna die peacefully. Aruna
who was the staff nurse in King Edward Memorial Hospital, Mumbai, was attacked on 27th
Nov, 1973 by a sweeper in the hospital with intention to rape her. He wrapped a do chain
around her neck while attempting rape on her. Next day a cleaner found her lying on the
floor with blood all over in an unconscious state. It was alleged that due to strangulation by
the dog chain, the supply of oxygen to the brain stopped and her brain got damaged.
◈ Justice Markandey Katju in this case held that, “Euthanasia is one of the most perplexing
issues which the courts and legislatures all over the world are facing today.” Euthanasia is
an extremely sensitive area, as it is a decision revolving around the life and death of a person
making it an important facet of Article 21 of the Indian Constitution. In India, right to life is a
fundamental right under Article 21 whereas right to die is not. To distinguish between the
Right to life and Right to die with dignity is an extremely difficult task and because of which
whether euthanasia should be legalized or not is a constant struggle, not only in India but in
other Countries too. It was made clear in this case that withdrawal of life support from a
terminally ill patient whose family consents to it can be allowed but under certain
circumstances, and thereby giving guidelines that how and when passive euthanasia can be
practiced. However, it was the High Court which had the ultimate authority and say on
whether a patient should be allowed to practice passive euthanasia or not. This was the first
case in the history of India to which legalized passive euthanasia. However, Active
Euthanasia is still illegal in India and there is no legislation for it.

◈ Right to die with dignity

◈ In a landmark judgment Common Cause (A Regd. Society) v. Union of India & Anr. delivered
on 9th March, 2018, the Supreme Court of India held that a person in persistent vegetative
state can opt for passive euthanasia, and that a person can execute a living will to refuse
medical treatment in case of a terminal illness. In response to the apprehensions of misuse
of advance directives (or living wills), such as those expressed by the Law Commission of
India in its 241st Report, the court also issued comprehensive guidelines on the procedure for
execution of an advance directive as well as for giving effect to passive euthanasia. The
guidelines will remain in force until Parliament enacts a legislation on the subject. Supreme
Court has allowed passive euthanasia that paved the way the right to die with dignity when
there is no hope of medical recovery.

◈ Prisoners Right and Article 21

◈ The protection of Article 21 is available even to convicts in jails.

◈ In D.B.M Patnaik v. State of A.P., 1974, The petitioners, who were naxalite under-trail
prisoners, were undergoing the sentence in the central jail, Vishakhapatnam. They
contended that the armed police guards posted around the jail and the live-wire electrical
mechanism fixed on the top of the jail was an infringement of their right to life and personal
liberty guaranteed by Article 21 of the Constitution. The Court, however held that in the
present case the convicts were not deprived of their fundamental right by posting of police
guards outside the jail. 146 naxalite prisoners were lodged in jail as a result of which usual
watch and guard proved inadequate. The installation of live-wire does not itself cause the
death of the prisoners.

◈ Article 21 includes Right to speedy trial

◈ in Hussainara Khatoon (I) v. Home Secretary, State of Bihar, 1979, The Supreme Court held
that speedy trial is a fundamental right implicit in the guarantee of life and personal liberty
enshrined in Art. 21 of the Constitution and any accused who is denied this right of speedy
trial is entitled to approach Supreme Court under Art. 32 for the purpose of enforcing such
right and the Supreme Court in discharge of its constitutional obligation has the power to
give necessary directions to the State.
◈ Right to free legal aid

◈ Khatri v. State of Bihar, AIR 1981, the court answered the question the right to free legal aid
to poor or indigent accused who are incapable of engaging lawyers. It held that the state is
constitutionally bound to provide such aid not only at the stage of trial but also when they
are first produced before the magistrate or remanded from time to time and that such a
right cannot be denied on the ground of financial constraints or administrative inability or
that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused
of such rights. The right to free legal services is an essential ingredient of reasonable, fair
and just procedure for a person accused of an offence and it must be held implicit in the
guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer
to an accused person if the circumstances of the case and the needs of justice so require.

◈ In Sukh Das v. Union Territory of Arunachal Pradesh, AIR 1986, Justice P.N. Bhagwati,
emphasized the need of the creating the legal awareness to the poor as they do not know
the their rights more particularly right to free legal aid and further observed that in India
most of the people are living in rural areas are illiterates and are not aware of the rights
conferred upon them by law. Even literate people do not know what are their rights and
entitlements under the law. It is this absence of legal awareness they are not approaching a
lawyer for consultation and advise.

◈ Ajmal Kasab vs. State of Maharashtra, the apex Court held that it is the duty and obligation
of the magistrate before whom a person accused of committing a cognizable offence is first
produced to make him fully aware that it is his right to consult and be defended by a legal
practitioner and, in case he has no means to engage a lawyer of his choice, one would be
provided legal aid at the expense of the State.

◈ Right against handcuffing

◈ In a landmark judgment Prem Shankar vs Delhi Administration, AIR 1980. In this case the
validity of some clauses of Punjab Police Rules were challenged as violation of Article 14, 19
and 21 of the Constitution of India. Justice Krishna Iyer while delivering the majority
judgment held that provisions and every under trial who was accused of a non bailable
offence punishable with more than three years jail term would be handcuffed, were
violative of articles 14, 19 and 21 of the constitution. Handcuffing should be resorted to only
when there is a "clear and present danger of escape" breaking out the police control and for
this there must be clear material, not merely an assumption. In special instances the
application of handcuffing is not ruled out. But even where in extreme cases, handcuffing is
to be put on the prisoner, escorting authority must record simultaneously the reasons for
doing so otherwise under article 21 of the procedure would be unfair and bad in law.

◈ Rights against Solitary Confinement and Bar Fetters

◈ In Sunil Batra (No. 1) v. Delhi Administration, AIR 1978, The courts have strong view against
solitary confinement and held that imposition of solitary confinement is highly degrading
and dehumanizing effect on the prisoners. The courts have taken the view that it could be
imposed only in exceptional cases where the convict was of such a dangerous character that
he must be segregated from the other prisoners. The Supreme Court has also reacted
strongly against putting bar fetters to the prisoners. The court observed that continuously
keeping a prisoner in fetters day and night reduced the prisoner from human being to an
 animal and such treatment was so cruel and unusual that the use of bar fetters was against
the spirit of the Constitution of India.

◈ Sentence of Death- Constitutionality

◈ In Jagmohan Singh v. State of Uttar Pradesh, AIR 1973, the petitioner challenged the validity
of death sentence on the ground that it was violative of Art. 19 and 21 because it did not
provide any procedure. It was contended that the procedure prescribed under Criminal
Procedure Code was confined only to findings of guilt and not awarding death sentence. The
Supreme Court held that the choice of awarding death sentence is done in accordance with
the procedure established by law. The judge makes the choice between capital punishment
(Death Sentence) or imprisonment of life on the basis of circumstances and facts and nature
of crime brught on record during trial. Accordingly, a 5-member Bench of the Court held that
capital punishment was not violative of Arts. 14, 19 and 21 and was therefore
constitutionally valid.

◈ Homo-sexuality.- Rights of LGBT Community

◈ NAZ Foundation v. Government of NCT of Delhi, 2010, in this case Delhi High Court on July
02, 2009 ended the discriminatory treatment against LGBT people in India by declaring
Section 377 of Indian Penal Code unconstitutional. Section 377 is a result of British legal
system which criminalizes homosexuality. A writ petition has been bought up by an NGO
named NAZ Foundation who works for HIV/AIDS sufferers. Petitioner contended before the
court that section 377 of IPC is unconstitutional as violative of Articles, 21, 14and 15 of the
Constitution.

◈ Court held that Section 377 of IPC unconstitutional in so far as it criminalises consensual
sexual acts in private between who have attained 18 years of age being violative of Articles
21, 14, and 15 of the Constitution. The provision of Section 377 of IPC will continue to
govern non-consensual acts involving minors.

◈ Suresh Kumar Kaushal v. Naz Foundation, 2014, the Supreme Court on a Special Leave
Petition through a two Judges Bench set aside the judgment of High Court and ultimately
declared Section 377 of IPC constitutional and held that those who indulge in carnal
intercourse in the ordinary course and those who indulge in carnal intercourse against the
order of nature constitute different classes and the people falling in the different category
cannot claim that Section 377 is arbitrary and makes irrational classification.

◈ However the Court made it clear that notwithstanding the verdict of this Court in this case.
The competent Legislature would be free to consider the desirability and propriety of
deleting Section 377 IPC from the statute book or amend the same.

◈ Finally in a landmark case Navtej Singh Johar and Others v. Union Of India, 2018, the
Supreme Court scrapped the controversial Section 377- a 158-year-old colonial law on
consensual gay sex. The Supreme Court reversed its own decision and said Section 377 is
irrational and arbitrary. “LGBT Community has same rights as of any ordinary citizen.
Respect for individual choice is the essence of liberty; LGBT community possesses equal
rights under the constitution. Criminalizing gay sex is irrational and indefensible,” said Chief
Justice Dipak Misra, who headed the five-judge bench hearing the case.

◈ Right to Education
 Article 21A

◈ The Constitution (86th Amendment0Act, 2002 has added a new Article 21A after Article 21
and has made education for all children of age of 6 to 14 years fundamental right. It provides
that “the State shall provide free and compulsory education to all children of the age of 6 to
14 years in such manner as the State may, by law determine.”

◈ It is well-known that education is a basic human right. Future of any country depends on the
nature of education system of the country. Though members of constituent assembly knew
the importance of universal education but even then, due to paucity of resources they could
not provide it as a fundamental right, but it was mentioned in Directive Principles of State
Policy. Article 45 provides that State shall endeavour to provide, within a period of ten years
from the commencement of this Constitution, for free and compulsory education for all
children until they complete the age of fourteen years. The object was to abolish illiteracy
from the country.

◈ It was expected that the elected governments of the country would honestly implement this
directive. But it is unfortunate that since lapse of 60 years from the commencement of the
Constitution they did not take any concrete steps to implement this directive and 40%
population of the country is still illiterate. The framers of the Constitution perhaps were of
the view that in the view of the financial condition of a new state it was not feasible to make
it a fundamental right under Part III of the Constitution, but included it in Chapter IV as one
of the directive principle of the State Policy.

◈ Judicial decisions before 86th Amendment

◈ Mohini Jain v. State of Karnataka, 1992, in this case Miss Mohini Jain, a resident in Uttar
Pradesh, applied to enroll in a course at Sri Siddhartha Medical College, a private medical
college in Karnataka. The college requested a deposit of Rs. 60,000 for tuition fees for the
first year and a bank guarantee to cover the fees for the remaining years. Jain and her family
did not have the means to pay the requested sum, and the private medical college denied
her admission to the course.

◈ She filed a petition in the Supreme Court against the Karnataka government, challenging
that right to education is a fundamental right under Article 21 of the Constitution

◈ The Supreme Court first held that, although the right to education was not explicitly
guaranteed by the Constitution, it is essential to the realisation of the fundamental right to
life and human dignity under Article 21. the Court held that right to education at all level is a
fundamental right u/A 21 and chargiing capitation fees for admission is illegal and amounted
to denial of citizen’s right to education.

◈ The matter was again raised in Unni Krishnan v. State of Andhra Pradesh, 1993, where the
Court speciffically held that the right to education for children of the age of 6 to 14 years is a
fundamental right. The Court did not agree with the decision of the Mohini Jain’s case
judgment that the children of all ages have the right to education but held that the right to
free education is available only to the children of upto age of 14 years and overruled the
Mohini Jain case on this point. The Court has said that after 14 years of age the obligation of
the State depended on the economic capacity and development.
 ◈ Though the Supreme Court in Unni krishnan case held that the right to education for the
Children is a fundamental right but even after this there was no improvement in the
situation. A demand was being raised from all corner to make education a fundamental
right. Consequently, the Government enacted 86th Amendment.

◈ Article 21 A makes it obligatory for the Government to enact a Central legislation to give
effect to the constitutional amendment. The legislation will create a mechanism by which a
citizen who is aggrieved that the right to education has not been fulfilled should be able to
get relief by filing writ petitions in the High Courts and the Supreme Court.

◈ Ultimately, after a lapse of 8 years the Right of Children to Compulsory Education Act, 2009
was passed by the Parliament to give effect to the 86th Amendment Act, 2002. The Act
contains seven chapters spread over 38 sections. It provides the responsibilities of the
Central and State Governments, teachers, parents and community members in ensuring that
all children of the age 6 to 14 years receive free and compulsory elementary education.

◈ Some features of the RTE Act 2009

(1) It makes compulsory for private aided and unaided schools to take 25 percent children
belonging to the Sc and St and other backward classes, socially and educationally backward
classes and economically weaker sections.

(2) The law provides for the building neighbourhood Schools in three years whose definition
and location will be decided by the State.

(3) The Law aims to do away with the practise of Schools taking capitation fess before
admission.

(4) The Law has forbidden screening of parents for any admission procedure.

(5) The RTE act has set down guidelines for States and Centre to execute and enforce free and
compulsory education a fundamental right.

(6) If a school does not provide facility to complete elementary education then a child of that school
can take a transfer to any other government (govt.) or government-aided school.

(7) Each child is also entitled to free text books, writing material and uniform.

(8) Central Government has the responsibility to prepare National Academic Curriculum, teacher
training manuals, capacity building and technical support to the states for the promotion of the RTE.

(9) It is the duty of every parent to admit their children or ward to school and ensure that they
receive elementary education.

(10) There should be one teacher for every 30 students for the class I to V and one teacher for every
thirty-five students for class VI to VIII.

◈ Protection Against Arbitrary Arrest and Detention

Article 22

◈
Article 22 . Protection Against Arbitrary Arrest and Detention
 ◈ Arrest is a legal process which takes away personal liberty otherwise recognised as a
fundamental right and guaranteed as such to all persons. Article 22 provides the procedural
safeguards against arbitrary arrest and detention. An arrest has serious ramifications and
thus can only be made under the authority of law and in accordance with that law. In a free
and civilized society an individual needs to be protected from the police atrocities and abuse
so as to ensure the effective administration of criminal justice. Article 22 guarantees
constitutional procedural safeguards to an arrestee and a detenue under preventive
detention.

◈ Article 22 (1) and (2) can be termed as rights of an arrested person and Article 22 (3) states
that protection under clause (1) and (2) will not be available to the enemy alien and to a
person arrested under preventive detention laws. Article 22 clause (4) to (7) of the Indian
Constitution provide the procedure which is to be followed if a person is arrested under the
law of 'Preventive Detention'.

◈ Right of arrested persons under ordinary laws.-

◈ Clause (1) and (2) of Article 22 guarantee four rights on person who is arrested for any
offence under an ordinary law:

(a) Right to be informed ‘as soon as may be’ of grounds of arrest,

(b) Right to consult and to be represented by a lawyer of his own choice,

(c) The right to be produced before a magistrate within 24 hours,

(d) No detention beyond 24 hours except by order of the magistrate.

The Above fundamental rights guaranteed to arrested persons by clause (1) and (2) of Article 22 are
available to both citizens and non-citizens and not to persons arrested and detained under any law
providing for preventing detention.

(a) The right to be informed of ground of arrest.- This is necessary to enable the arrested person
to know the grounds of his arrest and to prepare for his defence. Article 22 is in the nature
of a directive to the arresting authorities to disclose the grounds of arrest of a person
immediately. The words used in Article 22(1) are ‘as son as may be’ which means as nearly
as is reasonable in the circumstances of a particular case. If the ground of arrest is delayed it
must be justified by reasonable circumstances. This right of being informed of the grounds
of arrest is not dispensed with by offering to make bail to the arrested person. In Joginder
Kumar v. state of U.P., 1994, the Supreme Court has laid down guidelines governing arrest of
a person during the investigation. This is intended to strike a balance between the need of
police on one hand and the protection of human rights of citizens. The court held that
person is not liable to arrest merely on the suspicion.

◈ The Court has laid down the following guidelines to be followed in making arrest of a person:

(1) An arrested person being held in custody ie entitled, if he so request to have one friend,
relative, or other person who is known to him or likely to take an interest in his welfare to
told as far as is practicable that he has been arrested and where he is being detained.

(2) Police officer shall inform the arrested person when he is brought to police station of this
right.
 (3) An entry shall be required to be made in the police diary as to who was informed of the
arrest.

The Court directed that it shall be the duty of the magistrate, before whom the arrested person is
produced to satisfy himself that these requirement have been complied with.

(b) Right to be defended by a lawyer of his own choice.- Prior to Maneka Gandhi’s decision in India
the view of the court was that it was not bound to provide the help of a lawyer unless a request was
made by him. But as a result of the ruling of the Supreme Court in Maneka Gandhi’s case and a
series of cases following that case it is clear that the courts will be bound to provide the assistance of
a lawyer to a person arrested under an ordinary law.

In Hussainnara Khatoon v. Home Secretary Bihar, 1979, the Supreme Court held that it is the
constitutional right of every accused person who is unable to engage a lawyer and secure legal
services on account of reasons such as poverty, indigence etc. to have free legal services provided to
him by the State and the State is under constitutional duty to provide a lawyer to such person if the
needs of justice so require.

(c) Right to be produced before a Magistrate.- in addition to the furnishing of the grounds of arrest
the arrested person must be produced before the Magistrate within 24 hours of his arrest. It can be
extended beyond 24 hours only under the judicial custody. It affords a possibility, if not an
opportunity for immediate release in case the arrest is not justified.

(d) No detention beyond 24 hours except by order of the Magistrate.- This means that if there is
necessity of detention beyond 24 hours it is only possible under judicial custody. The expression
‘arrest and detention’ in article 22(1) and (2) was held not to apply to a person arrested under a
warrant issued by the court on a criminal or quasi-criminal complaint or under security proceedings.
Article 22 is designed to give protection against the act of the executive order of non-judicial
authorities.

◈ Thus under Article 22 (1) and (2) the arrested person has a right to be produced before the
nearest magistrate within a period of 24 hours. This would enable the arrested person to get
a speedy trial. This means that if there is failure to produce the arrested person before the
nearest magistrate within twenty-four hours it would make the arrest illegal.

◈ In a significant judgment in C.B.I v. Anupam J. Kulkarni, 1992, the Supreme court has laid
down detailed guidelines governing arrest of an accused when investigation can not be
completed within 24 hours. The Court has held that when a person is arrested under Section
57 of Cr.P.C. he should be produced before the nearest Magistrate within 24 hours. The
Judicial Magistrate can authorise the detention of the accused in such custody, i.e., either
police or judicial from time to time but the total period of detention cannot exceed 15 days
in the whole. After the expiry of the first period of 15 days, the further remand can only be
in judicial custody. There cannot be any detention in the police custody after the expiry of
first 15 days.

◈ Exceptions.- Clause (3) of Article 22 provides two exceptions to the rule contained in
contained in clauses (1) and (2). It says that the right given to arrested person under clauses
(1) and (2) are not available to following persons:

(1) An enemy Alien

(2) A person arrested and detained under a Preventive Detention Law.

An enemy alien may, however, seek the protection under clauses (4) and (5) of Article 22 it arrested
under a law of Preventive Detention, but subject to the law passed by the Parliament.

◈ Preventive Detention Laws

◈ Article 22 clause (4) to (7) of the Indian Constitution provide the procedure which is to be
followed if a person is arrested under the law of 'Preventive Detention'.

◈ What is preventive detention?

◈ Preventive detention means when a person is kept in custody on an apprehension that he

may commit a crime in future. The object of preventive detention is not to punish a man for
having done something but to interrupt him before he does it and prevent him from doing it.

◈ Preventive Detention Laws -Preventive Detention Act, 1950

◈ On 26th February 1950, the first Preventive Detention Act was enacted by the parliament.
The object of the Act was to provide for detention with a view to preventing any person
from acting in a manner prejudicial to the defense of India, the relation of India with a
foreign powers, the security of India or a State or the maintenance of public order, the
maintenance of supplies and services essential to the community.

◈ Maintenance of Internal Security Act, 1950

◈ Terrorist And Disruptive Activities (Prevention) Act 1987 (TADA)

◈ Prevention of Terrorism Act, POTA, 2002

◈ Unlawful Activities (Prevention) Act, UAPA Amended in 2012

◈ Constitutional safeguards against preventive detention laws –

◈ Though the constitution has recognized the necessity of law as to Preventive Detention, it
has also provided Safeguards to mitigate their harshness by placing fetters on legislative
powers conferred on the Legislature. Article 22 clause (4) to (7) guarantee a person certain
constitutional safeguards -

1) Review by advisory board

2) Communication of Grounds of detention to detenue

3) Detenue's right of Representation

◈ Review by Advisory Board

◈ (4) No law providing for preventive detention shall authorize the detention of a person for a
longer period than three months unless-

◈ (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said period of
three months that there is in its opinion sufficient cause for such detention: Provided that
 nothing in this sub-clause shall authorise the detention of any person beyond the maximum
period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

◈ (b) such person is detained in accordance with the provisions of any law made by Parliament
under sub clauses (a) and (b) of clause (7).

◈ (7) Parliament may by law prescribe –

◈ (a) the circumstances under which, and the class or classes of cases in which, a person may
be detained for a period longer than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board in accordance with the
provisions of sub-clause (a) of clause (4);

◈ (b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and

◈ (c) the procedure to be followed by an Advisory Board in an inquiry under [sub-clause (a) of
clause (4).

◈ In Hitendra Vishnu Thakur v. State of Maharashtra, 1994, a case relating to TADA, the
Supreme Court has held that the designated court has no power to remand a TADA accused
to custody if the police fails to complete investigation within six months to one year.
Irrespective of gravity of offence the accused has under Section 167 (2) Cr.P.C and Section
20(4) (b) of the TADA, right to be released on bail if the police fails to complete the
investigation within 180 days or with the permission of the court in one year.

◈ (b) Communication of grounds of detention to detenue

◈ Clause (5) says, when any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation against the order.

◈ Article 22(5) gives two rights to the detenue: (a) the authority making the order of detention
must “as soon as may be” communicate to the person detained the grounds of his arrest
and (b) to give the detenue “the earliest opportunity” of making a representation against
the order of detention, that is, to be furnished with sufficient particulars to enable him to
make a representation.

◈ The Clause (5) impose an obligation on the detaining authority to furnish to the detenu the
grounds for detention “as soon as possible”. The grounds o detention should be very clear
and easily understandable by the detenu. The sufficiency of the particulars conveyed to the
detenu is a justiciable issue, the test being whether they are sufficient to enable the detenu
to make an effective representation. Communication is a strong word. It requires that
sufficient knowledge of the basic facts constituting the grounds should be imparted
effectively and fully to the detenu in writing in a language which he understand, so as to
enable him to make a purposeful and effective representation. If the grounds are only
verbally explained to the detenu and nothing in writing is left with him in a language which
he understands then that purpose is not served, and constitutional mandate in Article 22(5)
is infringed.
◈ In Lallubhai Jogibhai Patel v. Union of India, 1981, The detenu did not know English but the
grounds of detention were drawn in English and the detaining order stated that the Police
Inspector while serving the grounds of detention fully explained the grounds in Gujarati to
the detenu; but no translation of the grounds of detention into Gujarati was given to the
detenu. It was held that there was no sufficient compliance of Article 22(5) and hence the
order of detention was invalid.

◈
(c) Detenue's right of Representation

◈ The Other right given to the detenu is that he should be given the earliest opportunity of
making a representation against detention order. It means that the detenu must be
furnished with sufficient particulars of ground of his detention to enable him to make
representation.

◈ The grounds under Article 22(5) means all the basic facts and materials which have been
taken into account by the detaining authority in making the order of detention and on
which, therefore, the order of detention is based. Nothing less that all the basic facts and
materials which influenced the detaining authority in making the order of detention must be
communicated to the detenu. There are the legal safeguards enacted by the Constitution
makers against arbitrary exercise of the vast power of preventive detention which may be
rested in the executive by a law of Preventive Detention.

◈ Exception

◈ Clause (6) of Article 22 however, provide one exception in Clause (5) which says that
“Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest
to disclose.”

◈ Hence it follows that both the obligation to furnish particulars and the duty to consider
whether the disclosure of any facts involved therein is against public interest are vested in
the detaining authority, not in any other.

◈ Subjective satisfaction of detaining authority.- The Language used in the preventive

detention laws make it clear that the power of detention was to be exercised on the
subjective satisfaction of the detaining authority. The court will not normally interfere with
the decision of the detaining authority whether the grounds given in the detaining order are
sufficient or not. However, the subjective satisfaction of the detaining authority is not wholly
immune from judicial scrutiny.

◈ The Courts have, by judicial decision, carved out an area, limited though it may be, within
which the validity of the subjective satisfaction can yet be subject to judicial scrutiny. The
Subjective satisfaction of the detaining authority can be challenged on the following
grounds, namely, mala fide or vagueness, and irrelevant or non-existent grounds or
mechanical application of mind of detaining authority.