CONSTITUTION- ARTICLE- 19-32, Study notes of Constitutional Law

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Constitutional Law I

Unit 4 — Class Notes

Articles 19, 20, 21, 21A, 22, 23–24, 25–28, 29–30, 32

B.A. LL.B. (Hons.) / B.B.A. LL.B. (Hons.) · Semester II

Article 19 — Fundamental Freedoms Overview

• Article 19(1) guarantees six freedoms to citizens: speech & expression, peaceful assembly, association, movement, residence, and profession.
• These are NOT absolute — clauses (2) to (6) permit the State to impose 'reasonable restrictions' on grounds such as sovereignty, security, public order, decency, morality, and contempt of court.
• Key distinction: Reasonable restriction ≠ absolute prohibition. Every restriction must pass an objective reasonableness test — State of Madras v. V.G. Row (1952). Freedom of Speech & Expression — Article 19(1)(a)

What it includes

• Right to express opinions through any medium — spoken, written, printed, visual.
• Freedom of the press — newspapers cannot be burdened by prohibitive taxes.
• Right to silence: Bijoy Emmanuel v. State of Kerala (1987) — students cannot be forced to sing the national anthem if it violates their conscience.
• Right to information: Access to information is a necessary precondition for meaningful expression.
• Internet access: Anuradha Bhasin v. UOI (2020) — internet shutdown must satisfy tests of necessity and proportionality; internet is protected under 19(1)(a) and 19(1)(g).

Commercial Speech

Hamdard Dawakhana (1960): SC held commercial advertisements are NOT speech under 19(1)(a) — they fall under trade/commerce under 19(1)(g). But this position has evolved.

• Tata Press Ltd. v. MTNL (1995): Reversed the position — commercial advertising IS protected speech under 19(1)(a). A telephone directory is protected expression.

Obscenity & Reasonable Restriction

Ranjit D. Udeshi v. State of Maharashtra | AIR 1965 SC 881

FACTS Udeshi, a bookseller, was convicted for selling Lady Chatterley's Lover. He challenged Section 292 IPC (obscenity) as a violation of 19(1)(a). HELD Conviction upheld. Section 292 IPC is a valid reasonable restriction under 19(2). Court applied the Hicklin Test — whether the material tends to deprave and corrupt those whose minds are open to immoral influences. KEY Hicklin Test (from Regina v. Hicklin, 1868): focus is on the most vulnerable reader, and any isolated passage can make the whole work obscene.

Aveek Sarkar v. State of West Bengal | AIR 2014 SC 1752

FACTS A German magazine photo of Boris Becker and his fiancée (nude) was republished in a Calcutta magazine. Criminal proceedings were initiated for obscenity.

cattle preservation is a relevant factor.

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat | AIR 2006 SC 212

FACTS (^) Gujarat enacted a total ban on slaughter of all cattle including old bullocks. Butchers challenged it under 19(1)(g). HELD (^) Total ban upheld. DPSP Article 48 (cattle preservation) and 48A (environment) are relevant to the reasonableness of the restriction. Court applied a higher threshold for economic utility of cattle in modern agriculture. KEY (^) Overruled the partial striking down in Hanif Qureshi for old bullocks. DPSPs can be used to justify a restriction but cannot override a fundamental right. Right to Freedom of Assembly — Article 19(1)(b)

• Himmat Lal v. Police Commissioner (1973): Right to hold public meetings on public streets upheld. State can impose regulations for traffic and order but cannot prohibit meetings altogether.
• Communist Party of India (M) v. Bharat Kumar (1998): Calling for a 'bandh' (complete shutdown) is unconstitutional — it coerces others and violates their fundamental rights to movement, livelihood, and expression. Freedom of Association — Article 19(1)(c)
• Jamaat-e-Islami Hind v. UOI (1995): Freedom to form associations includes the freedom of the association to function. A ban on an association must be justified by evidence of actual threat to sovereignty or public order.

Article 20 — Protection Against Conviction for Offences Three Safeguards

• 20(1) — Non-retrospectivity (Ex Post Facto Law): No person shall be convicted for an act that was not an offence when it was committed. Nor can a punishment greater than what existed at the time of the offence be imposed.
• 20(2) — Double Jeopardy: No person shall be prosecuted and punished for the same offence more than once.
• 20(3) — Self-Incrimination: No person accused of any offence shall be compelled to be a witness against themselves. Key Cases

Maqbool Hussain v. State of Bombay | AIR 1953 SC 325

HELD (^) Double jeopardy under 20(2) applies only to judicial/criminal prosecutions, not to departmental or quasi-judicial proceedings. Customs confiscation is not a 'prosecution.'

State of Bombay v. Kathi Kalu Oghad | AIR 1961 SC 1808

HELD Taking fingerprints, handwriting samples, or voice specimens is NOT 'testimony' under 20(3). It does not amount to compelling a person to be a witness against themselves, since these are physical characteristics, not testimonial communications.

Selvi v. State of Karnataka | AIR 2010 SC 1974

HELD Narco-analysis, polygraph tests, and brain-mapping conducted WITHOUT the consent of the accused violate Article 20(3). Involuntary administration of these tests constitutes compelling a person to be a witness against themselves. KEY Any information extracted through such techniques without consent is inadmissible. Consent must be genuine, informed, and voluntary.

Nandini Satpathy v. P.L. Dani | AIR 1978 SC 1025

HELD Protection against self-incrimination under 20(3) extends to the stage of police interrogation, not just formal court proceedings. An accused cannot be compelled to answer questions likely to expose them to a criminal charge.

E (^) procedure (Art. 21). KEY Justice Bhagwati coined the Golden Triangle. Justice Krishna Iyer held that the right to travel abroad is part of personal liberty under Art. 21. Expanding Horizons of Article 21

• Right to dignity: Francis Coralie Mullin v. UT of Delhi (1981) — right to life includes the right to live with human dignity, including basic necessities.
• Right to livelihood: Olga Tellis v. Bombay Municipal Corporation (1986) — pavement dwellers cannot be evicted without notice; right to livelihood is part of right to life.
• Death penalty: Bachan Singh v. State of Punjab (1980) — death penalty is constitutional but can only be imposed in the 'rarest of rare' cases.
• Right to environment: M.C. Mehta v. UOI (1988) — right to a clean environment is part of Article 21.
• Right to health: Parmanand Katara v. UOI (1989) — every doctor has a duty to provide emergency medical treatment. A person cannot be denied care due to formalities.
• Right to privacy: K.S. Puttaswamy v. UOI (2017) — 9-judge bench unanimously held privacy is a fundamental right under Article 21.
• Decriminalization of consensual sex: Navtej Singh Johar v. UOI (2018) — Section 377 IPC struck down insofar as it criminalised adult consensual same-sex relations. Right to identity and dignity under Art. 21.
• Right to food: PUCL v. UOI (2011) — right to food is an integral part of the right to life with dignity.
• Right to reputation: Kishore Samrite v. State of U.P. (2013) — reputation is protected under Art. 21.
• Prisoners' rights: Sunil Batra v. Delhi Administration (1980) — prisoners retain fundamental rights. Solitary confinement must conform to Art. 21.
• Right to speedy trial: Hussainara Khatoon v. State of Bihar (1979) — persons awaiting trial cannot be kept in jail for periods exceeding the maximum sentence for the alleged offence. ADM Jabalpur v. Shivkant Shukla — The Dark Chapter

A.D.M. Jabalpur v. Shivkant Shukla | AIR 1976 SC 1207 (The Habeas Corpus Case)

FACTS (^) During the Emergency (1975–77), the Government suspended the right to move any court for enforcement of Art. 21. Hundreds of political detainees filed habeas corpus petitions challenging their detention. HELD (4:1) Majority held that during Emergency, no person has locus standi to challenge detention even if it is malafide. The right to life itself can be suspended. Only Justice Khanna dissented — holding that even without Art. 21, the State cannot take away life without authority of law. KEY (^) Widely criticised as the Supreme Court's worst hour. All 4 majority judges were later passed over for CJI elevation. Justice Khanna was superseded and resigned. The 44th Amendment (1978) restored Art. 21's unamendability.

Article 21A — Right to Education Inserted by the 86th Constitutional Amendment, 2002. 'The State shall provide free and compulsory education to all children between 6 and 14 years.'

• Mohini Jain v. State of Karnataka (1992): Right to education is a fundamental right flowing from Art. 21 — the state must ensure it. Capitation fees violate the right.
• Unni Krishnan v. State of AP (1993): Refined Mohini Jain. Free and compulsory education is a right only up to age 14. Beyond 14, it remains a constitutional obligation but subject to State's economic capacity. Introduced a scheme linking private unaided institutions to State regulation.
• 86th Amendment (2002): Inserted Art. 21A making free and compulsory education (ages 6–14) an explicit fundamental right. Also inserted Art. 51A(k) — a fundamental duty of parents to provide education to their children.
• Society for Unaided Private Schools v. UOI (2012): Right to Education Act, 2009 upheld as constitutional and applicable to all schools except unaided minority schools.

Articles 23 & 24 — Rights Against Exploitation Article 23 — Prohibition of Traffic in Human Beings & Forced Labour

• Bans: (1) trafficking in human beings, (2) begar (forced labour without payment), (3) other similar forms of forced labour.
• Violation is a criminal offence punishable by law.
• Exception: The State can impose compulsory service for public purposes (e.g., conscription), provided it does not discriminate on grounds of religion, race, caste, or class.

Bandhua Mukti Morcha v. Union of India | AIR 1984 SC 802

FACTS Organisation wrote a letter to Justice Bhagwati describing bonded labourers in stone quarries in Faridabad, Haryana — trapped by debt, forced to work under threat, paid below minimum wage. HELD SC treated the letter as a writ petition under Art. 32 (epistolary jurisdiction / PIL). Held the labourers were bonded labourers within the Bonded Labour System (Abolition) Act, 1976. Any labour extracted by force or economic compulsion is bonded labour — no formal agreement required. Burden of proof shifted to employer. DIRECTIO NS State directed to survey and identify bonded labourers, release and rehabilitate them, provide housing, medical care, and education, and prosecute employers. KEY Pioneered epistolary jurisdiction — a letter to the court can be treated as a writ petition for enforcement of fundamental rights of the marginalised. Article 24 — Prohibition of Child Labour

• No child below 14 years shall be employed in any factory, mine, or hazardous occupation.
• Not an absolute ban on ALL child employment — only hazardous establishments.
• Exception: A child helping their parents in a family business, or a child actor — does not fall under Art. 24 as long as it is not hazardous.

Articles 25–28 — Freedom of Religion Structure of Religious Rights

• Article 25: Freedom of conscience and the right to freely profess, practise, and propagate religion — subject to public order, morality, health, and other fundamental rights.
• Article 26: Every religious denomination has the right to establish and maintain religious institutions, manage religious affairs, own property, and administer it in accordance with law.
• Article 27: No person shall be compelled to pay taxes for promotion or maintenance of any particular religion.
• Article 28: No religious instruction in State-funded educational institutions. Voluntary attendance at religious instruction in State-aided institutions is permissible. Essential Religious Practices (ERP) Test The ERP test: only practices that are 'essential' or 'integral' to a religion are protected under Arts. 25 and 26. Courts determine what is essential — not the community itself.

Commissioner, HRE Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt | AIR

1954 SC 282

FACTS Madras Hindu Religious and Charitable Endowments Act allowed the government to take over the administration of the Shirur Mutt, a religious denomination. HELD (^) Introduced the ERP test. Religion includes all practices essential and integral to it — not just beliefs but rituals, ceremonies, modes of worship. What is 'essential' to religion is a question of fact determined by religious texts and traditions. The State cannot interfere with essential religious practices. KEY (^) Distinguished between religious affairs (protected under Art. 26(b)) and secular activities associated with religion (open to State regulation).

Qureshi v. State of Bihar | AIR 1958 SC 731

HELD Cow slaughter on Bakr-Id is NOT an essential religious practice of Islam. Muslims have the religious right to sacrifice an animal, but it need not specifically be a cow. The State can restrict cow slaughter without violating Art. 25.

Sardar Syedna Taher Saifuddin v. State of Bombay | AIR 1962 SC 853

FACTS Bombay Prevention of Excommunication Act prohibited the head of the Dawoodi Bohra community from excommunicating members. HELD Act struck down. The power of excommunication is an essential religious practice of the Dawoodi Bohra denomination. It is central to maintaining religious discipline and is protected under Art. 26(b).

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta | AIR 2004 SC 2984

HELD Public performance of the Tandava dance is NOT an essential religious practice of the

Articles 29 & 30 — Cultural & Educational Rights Structure

• Article 29(1): Any section of citizens with a distinct language, script, or culture has the right to conserve it.
• Article 29(2): No citizen shall be denied admission into any State-maintained or State-aided educational institution on grounds only of religion, race, caste, language, or any of them.
• Article 30(1): All minorities — religious or linguistic — have the right to establish and administer educational institutions of their choice.
• Article 30(2): The State shall not, while granting aid, discriminate against a minority educational institution. Arts. 29 and 30 are NOT mutually exclusive. A minority institution can claim both — conservation of language/culture (Art. 29) AND right to administer an institution (Art. 30). Key Principle: Right to Administer ≠ Right to Misadminister The State can impose reasonable regulations on minority institutions — for educational standards, academic excellence, and affiliation requirements. But regulations cannot be so stringent as to destroy the minority character or autonomy of the institution. Key Cases

In re Kerala Education Bill | AIR 1958 SC 956

HELD The State cannot, through regulation, destroy or substantially abridge the right of minorities to administer their educational institutions. Regulations to ensure educational standards are valid, but those that take away management or appointments are not.

Ahmedabad St. Xavier's College Society v. State of Gujarat | AIR 1974 SC 1389

FACTS Gujarat University Act gave the Vice Chancellor authority over appointment and disciplinary action against staff in all affiliated colleges, including minority ones. HELD Provisions struck down. Minorities have the right to choose their own Principal and teachers — this is the 'tone and temper' of the institution. Disciplinary control over staff is a core aspect of administration. State cannot vest this in an external authority. KEY Extended Art. 30 to general secular education — not restricted to religious teaching. Right to administer includes: staff selection, disciplinary control, and fee-setting. But must comply with minimum academic standards.

St. Stephen's College v. University of Delhi | AIR 1992 SC 1630

HELD Minority institutions can reserve up to 50% of seats for their own community. For remaining seats, merit must be the criterion. Admission procedures must be transparent and non-arbitrary.

Aligarh Muslim University v. Naresh Agarwal | 2024 — 7-Judge Bench

HELD (^) Majority (4:3) overruled the 1967 Azeez Basha verdict. Statutory incorporation does not strip an institution of its minority character. AMU's minority status is to be assessed afresh by a smaller bench on the basis of newly laid criteria. KEY The question of whether AMU is a minority institution was remitted. Minority status depends on who established the institution, not on the form of incorporation.

KEY (^) Pioneered PIL through epistolary jurisdiction — a letter to the court treated as a writ petition. The SC can appoint commissioners to investigate and report.

Daryao v. State of U.P. | AIR 1961 SC 1457

HELD (^) Res judicata applies to writ petitions under Art. 32. If a petition is dismissed on merits by a High Court under Art. 226, the same matter cannot be reagitated before the SC under Art. 32.