The Constitution of India provides Fundamental Rights under Chapter III. These rights are guaranteed by the constitution. One of these rights is provided under article 21 which reads as follows:-
Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Though the phraseology of Article 21 starts with negative word but the word No has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against state only. If an act of private individual amounts to encroachment upon the personal liberty or
deprivation of life of other person. Such violation would not fall under the parameters set for the Article 21. in such a case the remedy for aggrieved person would be either under Article 226 of the constitution or under general law. But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals with prevention of encroachment upon personal liberty or deprivation of life of a person.
The state cannot be defined in a restricted sense. It includes Government Departments, Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, but it does not include non-statutory or private bodies having no statutory powers. For example: company, autonomous body and others. Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State which are not according to procedure
established by law. The main object of Article 21 is that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed. Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down and it will be available not only to every citizen of the country . As far as Personal Liberty is concerned , it means freedom from physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. Procedure established by Law means the law enacted by the State. Deprived has also wide range of meaning under the Constitution. These ingredients are the soul of this provision. The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court.
The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in Gopalans case that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles. In this case the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d). at that time Gopalans case was the leading case in respect of Article 21
along with some other Articles of the Constitution, but post Gopalan case the scenario in respect of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law. Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalans case in
the case of Maneka Gandhi v. Union of India , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty. This view has been further relied upon in a case of
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others as follows:
Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the test not only for Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. In another case of Olga Tellis and others v. Bombay Municipal Corporation and others , it was further observed : Just as a mala fide act has no existence in the eye of law, even so, unreasonableness
vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is just or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.As stated earlier, the protection of Article 21 is wide enough and it was further widened in the case of Bandhua Mukti Morcha v. Union of India and others in respect of bonded labour and weaker section of the society. It lays down as follows:
Article 21 assures the right to live with human dignity, free from exploitation. The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Both the Central Government and the State Government are therefore bound to ensure observance of the various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the directive principles of the state policy.
The meaning of the word life includes the right to live in fair and reasonable conditions, right to rehabilitation after release, right to live hood by legal means and decent environment. The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance.
It was observed in Unni Krishnans case that Article 21 is the heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the life includes the education as well as, as the right to education flows from the right to life.
As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare home have found place under it. Through various judgments the Apex Court also included many of the non-justifiable Directive Principles embodied under part IV of the Constitution and some of the examples are as under:(a) Right to pollution free water and air.
(b) Protection of under-trial.
(c) Right of every child to a full development.
(d) Protection of cultural heritage.
Maintenance and improvement of public health, improvement of means of communication, providing human conditions in prisons, maintaining hygienic condition in slaughter houses have also been included in the expanded scope of Article 21. this scope further has been extended even to innocent hostages detained by militants in shrine who are beyond the control of the state.
The Apex Court in the case of S.S. Ahuwalia v. Union of India and others it was held that in the expanded meaning attributed to Article 21 of the Constitution, it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. If in any circumstance the state is not able to do so, then it cannot escape the liability to pay compensation to the family of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution. While dealing with the provision of Article 21 in respect of personal liberty, Hon'ble Supreme Court put some restrictions in a case of Javed and others v. State of Hariyana, AIR 2003 SC 3057 as follows: at the very outset we are constrained to observe that the law laid down by this court in the decisions relied on either being misread or read divorced of the context. The test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights. The lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive justice- economic, social and political- cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty. Reasonableness and rationality, legally as well as philosophically, provide colour to the meaning of fundamental rights and these principles are deducible from
those very decisions which have been relied on by the learned counsel for the petitioners.
The Apex Court led a great importance on reasonableness and rationality of the provision and it is pointed out that in the name of undue stress on Fundamental Rights and Individual Liberty, the ideals of social and economic justice cannot be given a go-by. Thus it is clear that the provision Article 21 was constructed narrowly at the initial stage but the law in respect of life and personal liberty of a person was developed gradually and a liberal interpretation was given to these words. New dimensions have been added to the scope of Article21 from time to time. It imposed a limitation upon a procedure which prescribed for depriving a person of life and personal liberty by saying that the procedure which prescribed for depriving a person of life and personal liberty by saying that the procedure must be reasonable, fair and such law should not be arbitrary, whimsical and fanciful. The interpretation which has been given to the words life and personal liberty in various decisions of the Apex Court, it can be said that the protection of life and personal liberty has got multi dimensional meaning and any arbitrary, whimsical and fanciful act of the State which deprived the life or personal liberty of a person would be against the provision of Article 21 of the Constitution.
Saturday, May 8, 2010
Thursday, May 6, 2010
Constitutional Validity of Death Penalty
The provision of death penalty as an alternative punishment for murder under s. 302, IPC was challenged as constitutionally invalid being violate of Arts. 14, 19 and 21 of the Constitution in a series of cases. It was contended in Jagmohan Singh v. State of U.P. that the constitutional validity of death sentence has to be tested with reference to Arts. 14 and 19 besides Art. 21 of the Constitution as the right to life is fundamental to the enjoyment of all these freedoms as contained in Art. 19 of the Constitution.
It was further contended that the Code of Criminal Procedure prescribed the procedure of finding guilt of an accused but regarding the sentence to be awarded under s. 302, IPC the unguided and uncontrolled discretion has been left to the Judge to decide the sentence to be awarded. The Supreme Court held that the death sentence as an alternative punishment under s. 302, IPC is not unreasonable and it is in the public interest and the procedural safeguard provided to the accused under the Code of Criminal Procedure is not unreasonable leaving the discretion with the judge to sentence an accused, convicted for murder either to death or life imprisonment Death sentence as an alternative punishment for life was held valid.
Though the court did not accept the contention that the validity of the sentence to death has to be tested in the light of Arts. 14 and 10 of the Constitution. But in Rajendra Prasad v. State of U.P. the court accepted the proposition that the validity of the death sentence can be tested with reference to Arts. 14, 19 and 21 of the Constitution. The Supreme Court suggested that in exceptional circumstances death sentence should be imposed only when public interest, social defence and public order would warrant. Such extreme penalty should be imposed in extreme circumstances. The court in Barchan Singh v. State of Punjab upheld that constitutional validity of death sentence. The court reasoned that penal law does not attract Art. 19(1) of the Constitution. If the impact of the law on nay of the rights under Art. 19(1) is merely incidental, indirect, remote or collateral, Art. 19 would not be available for testing its validity.
Accordingly, the court held that s. 302, IPC for its validity would not require to qualify the test of Art. 19. The procedure provided in the Code of Criminal Procedure for imposing capital punishment for murder cannot be said to be unfair, unreasonable and unjust. But Justice Bhagwati in his dissenting judgment held that s. 302, IPC and s. 354(3), Cr PC violation of Arts. 14 and 21 as these provisions confers unguided power on the court which irrational and arbitrary.
Thus, death sentence should be imposed in the rarest of the rare case. The Supreme Court in Machhi Sing v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed. It should be considered whether there is something uncommon about the crime and the compelling circumstances for imposing death sentence after giving maximum weight age of the mitigating circumstances which is favour of the accused.
Jumman Kahn was facing the gallows on being sentenced to death for having brutally raped and strangulated to death a six year old girl named Sakina. The convict challenged the death sentence and its constitutionality.It was argued that death penalty is not only outmoded, unreasonable, cruel and unusual punishment but also defies the dignity of the individual and the issue needs reconsideration which stands like sentinel over human misery, degradation and oppression. The Supreme Court while endorsing its earlier view as to the constitutionality of death sentence held that the failure to impose death sentence is such grave cases here it is a crime against the society, particularly in case of murders with extreme brutality will bring to naught the sentence of death penalty provided by s. 302 of IPC. The only punishment which the convict deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust is nothing but death as a measure of social necessity and also a means of deterring other potential offenders.
The Supreme Court in earlier case Banchan Singh v. State Punjab upheld the constitutional validity of imposition of death sentence as an alternative to life imprisonment and it was further that it is not violate of Arts. 14 and 21 of the Constitution. Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v State of Punjabheld that death sentence is constitutionally valid and permissible within the constrains of the rule in Bachan Singh (supra). This has to be accepted as the law of the land. The decisions rendered by this court after full debate has to be accepted without mental reservation until they are set aside.
The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat and in Allauddin’s case and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty.
It is in the rare cases, the legislature in its wisdom, considered it necessary impose the extreme punishment of death to deter others and to protect the society. The choice of sentence is left with the rider that the judge may visit the convict with extreme punishment provided there exist special reasons for doing so. The provision of Art. 302, IPC is consistent with the Constitutional Provision of Art. 21 which enjoins that personal liberty or life of an individual shall not be taken except according to the procedure established by law. Whether death penalty violates Art. 14, 19, and 21 of the Constitution came up for consideration before the Supreme Court in Bachan Singh v. State of Punjab and the court answered the contention in the negative.
In the face of the statutory provision in cl. (3) of s. 354 of the Cr. PC requiring giving of special reason while imposing death penalty which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, the extreme plea of death in no case cannot be countenanced and death penalty cannot be said to be violate of Art. 21 of the Constitution. Section 302, IPC casts a heavy duty on the court to choose between death sentence and imprisonment for life and court must show high degree of concern and sensitiveness in the choice of sentence. It was held in Allauddin Mian v. State of Bihar that special reason in s. 354, Cr. PC should be sufficient safe guard against arbitrary imposition of extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considered the sentence of that magnitude justified.
It was further contended that the Code of Criminal Procedure prescribed the procedure of finding guilt of an accused but regarding the sentence to be awarded under s. 302, IPC the unguided and uncontrolled discretion has been left to the Judge to decide the sentence to be awarded. The Supreme Court held that the death sentence as an alternative punishment under s. 302, IPC is not unreasonable and it is in the public interest and the procedural safeguard provided to the accused under the Code of Criminal Procedure is not unreasonable leaving the discretion with the judge to sentence an accused, convicted for murder either to death or life imprisonment Death sentence as an alternative punishment for life was held valid.
Though the court did not accept the contention that the validity of the sentence to death has to be tested in the light of Arts. 14 and 10 of the Constitution. But in Rajendra Prasad v. State of U.P. the court accepted the proposition that the validity of the death sentence can be tested with reference to Arts. 14, 19 and 21 of the Constitution. The Supreme Court suggested that in exceptional circumstances death sentence should be imposed only when public interest, social defence and public order would warrant. Such extreme penalty should be imposed in extreme circumstances. The court in Barchan Singh v. State of Punjab upheld that constitutional validity of death sentence. The court reasoned that penal law does not attract Art. 19(1) of the Constitution. If the impact of the law on nay of the rights under Art. 19(1) is merely incidental, indirect, remote or collateral, Art. 19 would not be available for testing its validity.
Accordingly, the court held that s. 302, IPC for its validity would not require to qualify the test of Art. 19. The procedure provided in the Code of Criminal Procedure for imposing capital punishment for murder cannot be said to be unfair, unreasonable and unjust. But Justice Bhagwati in his dissenting judgment held that s. 302, IPC and s. 354(3), Cr PC violation of Arts. 14 and 21 as these provisions confers unguided power on the court which irrational and arbitrary.
Thus, death sentence should be imposed in the rarest of the rare case. The Supreme Court in Machhi Sing v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed. It should be considered whether there is something uncommon about the crime and the compelling circumstances for imposing death sentence after giving maximum weight age of the mitigating circumstances which is favour of the accused.
Jumman Kahn was facing the gallows on being sentenced to death for having brutally raped and strangulated to death a six year old girl named Sakina. The convict challenged the death sentence and its constitutionality.It was argued that death penalty is not only outmoded, unreasonable, cruel and unusual punishment but also defies the dignity of the individual and the issue needs reconsideration which stands like sentinel over human misery, degradation and oppression. The Supreme Court while endorsing its earlier view as to the constitutionality of death sentence held that the failure to impose death sentence is such grave cases here it is a crime against the society, particularly in case of murders with extreme brutality will bring to naught the sentence of death penalty provided by s. 302 of IPC. The only punishment which the convict deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust is nothing but death as a measure of social necessity and also a means of deterring other potential offenders.
The Supreme Court in earlier case Banchan Singh v. State Punjab upheld the constitutional validity of imposition of death sentence as an alternative to life imprisonment and it was further that it is not violate of Arts. 14 and 21 of the Constitution. Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v State of Punjabheld that death sentence is constitutionally valid and permissible within the constrains of the rule in Bachan Singh (supra). This has to be accepted as the law of the land. The decisions rendered by this court after full debate has to be accepted without mental reservation until they are set aside.
The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat and in Allauddin’s case and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty.
It is in the rare cases, the legislature in its wisdom, considered it necessary impose the extreme punishment of death to deter others and to protect the society. The choice of sentence is left with the rider that the judge may visit the convict with extreme punishment provided there exist special reasons for doing so. The provision of Art. 302, IPC is consistent with the Constitutional Provision of Art. 21 which enjoins that personal liberty or life of an individual shall not be taken except according to the procedure established by law. Whether death penalty violates Art. 14, 19, and 21 of the Constitution came up for consideration before the Supreme Court in Bachan Singh v. State of Punjab and the court answered the contention in the negative.
In the face of the statutory provision in cl. (3) of s. 354 of the Cr. PC requiring giving of special reason while imposing death penalty which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, the extreme plea of death in no case cannot be countenanced and death penalty cannot be said to be violate of Art. 21 of the Constitution. Section 302, IPC casts a heavy duty on the court to choose between death sentence and imprisonment for life and court must show high degree of concern and sensitiveness in the choice of sentence. It was held in Allauddin Mian v. State of Bihar that special reason in s. 354, Cr. PC should be sufficient safe guard against arbitrary imposition of extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considered the sentence of that magnitude justified.
article 21 of Constitution of India : Right to Live
Indian democracy wedded to rule of law aims not only to protect fundamental rights of its citizens but also to establish an egalitarian order. Law being an instrument of social engineering obliges the judiciary to carry out the process established by it.
Lord Chancellor Sankey once said amidst the cross currents and shifting sands of public life the law is like a great ark upon which a man may set his foot and be safe. In this remark, he has emphasized on the importance of law. It is needless to say that life of an individual in a society would become a continuing disaster if not regulated.
The first decision given to interpret the scope and meaning of life and personal liberty under article 21 of the Indian constitution was:
A.K.Gopalan VS. State Of Madras (air 1950 sc 27)
The apex court interpreted that the words "procedure established by law" in article 21 are to be given a wide and fluid meaning of the expression "due process of law" as given under the u.s. constitution but it refers to only state made statues laws. if any statutory law prescribed procedure for deprieving a person of his rights or personal liberty it should meet the
requirements of article 21
However, after 2 decades this was over ruled in the case of R.C.Cooper VS. Union Of India (AIR 1970 SC 564) after this there where a series of decisions by the apex court including that of maneka gandhi vs. Union of India in this case it was held that any law that deprives the life and liberty must be just and fair
krishna iyer j. rightly said that "procedure" in article 21 means fair , not formal procedure law is reasonable law not any enacted pieces"
Now it is settled that
That article 21 confers positive rights to life and liberty The word life in article 21 means a life of dignity and not just mere animal survival (this was also upheld in the case of Francis caralie{(1993)1 scc 645} The procedure of depriving a person of his life and liberty must be reasonable, air and just
In the 1978, the 44th amendment of the constitution took place, article 359 was amended, and it provided that article 20 and 21 could not be suspended even during declaration of an emergency. In the case of P.Rathinam case held that right to live includes right not to live. Physical as well as mental health both are treated as integral part of right to live upholding that without good health , neither civil nor political rights which constitution confers cant be enjoyed. Judiciary has played a vital role in the interpretation and correct use of article 21.
The following are some cases on "right to life" through judicial activism
C Masilamani Mudaliar Vs. Idol Of Sri Swami Nathaswami Thrukoll {(1996) 8scc525/Pr22}
Article 21 of the Indian constitution reinforces "right to life". Equity, dignity of a person and the right to development are the inherent rights of every human being. Life in its expanded horizon includes everything that gives meaning to a person's life including culture, heritage and tradition with dignity of a person.
Noise Pollution (V), In Re, {(2005) 5 Scc 733/Pr 10}
Article 21 guarantees right to life and includes all those aspects which make a persons life meaningful, complete and worth living. In the above case, it was held that any one who wishes to live in peace, no one can claim a right to create noise even though he does so in his own premises. Any noise, which materially interferes with the ordinary comforts of the life of the other, judged by an ordinary prudent man is nuisance.
Kartar Singh vs. State of Punjab {(1994) 3 scc 569}
Speedy trail is an essential part of the fundamental rights guaranteed by article 21 of the Indian constitution.
Unni krishnan vs. State of Andhra pradesh
the apex court has widened the scope of article 21 and has provided with the rights article 21 embraces within itself. They are
Right to go abroad
Right to privacy
Right against solitary confinement
Right against delayed execution
Right to shelter
Right against custodial death
Right against public hearing
Doctor's assistance
Along with all these above-mentioned rights, it was also observed that the right to education would also be included as apart of right to life.
A.k. bindal vs. Union of India (2003) 5 SCC 163
It was held that no person should be deprived of his life and personal liberty except according to the procedure established by law.
Thus with the above brief preview of article 21 it is clear that it has a multidimensional interpretation. Any arbitrary, whimsical and fanciful act of the part of any state depriving the life or personal liberty would be against article 21 of the Indian constitution.
Lord Chancellor Sankey once said amidst the cross currents and shifting sands of public life the law is like a great ark upon which a man may set his foot and be safe. In this remark, he has emphasized on the importance of law. It is needless to say that life of an individual in a society would become a continuing disaster if not regulated.
The first decision given to interpret the scope and meaning of life and personal liberty under article 21 of the Indian constitution was:
A.K.Gopalan VS. State Of Madras (air 1950 sc 27)
The apex court interpreted that the words "procedure established by law" in article 21 are to be given a wide and fluid meaning of the expression "due process of law" as given under the u.s. constitution but it refers to only state made statues laws. if any statutory law prescribed procedure for deprieving a person of his rights or personal liberty it should meet the
requirements of article 21
However, after 2 decades this was over ruled in the case of R.C.Cooper VS. Union Of India (AIR 1970 SC 564) after this there where a series of decisions by the apex court including that of maneka gandhi vs. Union of India in this case it was held that any law that deprives the life and liberty must be just and fair
krishna iyer j. rightly said that "procedure" in article 21 means fair , not formal procedure law is reasonable law not any enacted pieces"
Now it is settled that
That article 21 confers positive rights to life and liberty The word life in article 21 means a life of dignity and not just mere animal survival (this was also upheld in the case of Francis caralie{(1993)1 scc 645} The procedure of depriving a person of his life and liberty must be reasonable, air and just
In the 1978, the 44th amendment of the constitution took place, article 359 was amended, and it provided that article 20 and 21 could not be suspended even during declaration of an emergency. In the case of P.Rathinam case held that right to live includes right not to live. Physical as well as mental health both are treated as integral part of right to live upholding that without good health , neither civil nor political rights which constitution confers cant be enjoyed. Judiciary has played a vital role in the interpretation and correct use of article 21.
The following are some cases on "right to life" through judicial activism
C Masilamani Mudaliar Vs. Idol Of Sri Swami Nathaswami Thrukoll {(1996) 8scc525/Pr22}
Article 21 of the Indian constitution reinforces "right to life". Equity, dignity of a person and the right to development are the inherent rights of every human being. Life in its expanded horizon includes everything that gives meaning to a person's life including culture, heritage and tradition with dignity of a person.
Noise Pollution (V), In Re, {(2005) 5 Scc 733/Pr 10}
Article 21 guarantees right to life and includes all those aspects which make a persons life meaningful, complete and worth living. In the above case, it was held that any one who wishes to live in peace, no one can claim a right to create noise even though he does so in his own premises. Any noise, which materially interferes with the ordinary comforts of the life of the other, judged by an ordinary prudent man is nuisance.
Kartar Singh vs. State of Punjab {(1994) 3 scc 569}
Speedy trail is an essential part of the fundamental rights guaranteed by article 21 of the Indian constitution.
Unni krishnan vs. State of Andhra pradesh
the apex court has widened the scope of article 21 and has provided with the rights article 21 embraces within itself. They are
Right to go abroad
Right to privacy
Right against solitary confinement
Right against delayed execution
Right to shelter
Right against custodial death
Right against public hearing
Doctor's assistance
Along with all these above-mentioned rights, it was also observed that the right to education would also be included as apart of right to life.
A.k. bindal vs. Union of India (2003) 5 SCC 163
It was held that no person should be deprived of his life and personal liberty except according to the procedure established by law.
Thus with the above brief preview of article 21 it is clear that it has a multidimensional interpretation. Any arbitrary, whimsical and fanciful act of the part of any state depriving the life or personal liberty would be against article 21 of the Indian constitution.
Saturday, May 1, 2010
art. 30 of The Constitution of India
Article 30
Right of minorities to establish and administer educational institutions.- (1) All
minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.
_20[(1A) In making any law providing for the compulsory acquisition of any property of
any educational institution established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by or determined under such law
for the acquisition of such property is such as would not restrict or abrogate the right
guaranteed under that clause.]
(2) The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a minority,
whether based on religion or language.
Right of minorities to establish and administer educational institutions.- (1) All
minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.
_20[(1A) In making any law providing for the compulsory acquisition of any property of
any educational institution established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by or determined under such law
for the acquisition of such property is such as would not restrict or abrogate the right
guaranteed under that clause.]
(2) The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a minority,
whether based on religion or language.
The Basic Structure of the Indian Constitution
The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's
constitutional history during the last decade of the 20th century, has reappeared in the public realm.
While setting up the National Commission to Review the Working of the Constitution (the
Commission), the National Democratic Alliance government (formed by a coalition of 24 national and
regional level parties) stated that the basic structure of the Constitution would not be tampered with.
Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions
that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission's
work.
Several political parties -- notably the Congress (I) and the two Communist parties which are in the
opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy
for its design to adopt radical constitutional reforms thus destroying the basic structure of the
document.
Much of the public debate has been a victim of partial amnesia as even literate circles of urban India
are unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s.
The following discussion is an attempt to chart the waters of that period rendered turbulent by the
power struggle between the legislative and the judicial arms of the State.
According to the Constitution, Parliament and the state legislatures in India have the power to make
laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests
in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by
Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has
the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding
fathers wanted the Constitution to be an adaptable document rather than a rigid framework for
governance. Hence Parliament was invested with the power to amend the Constitution. Article 368
of the Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative
enthusiasm of Parliament ever since independence. With the intention of preserving the original
ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the pretext of amending it. The
phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised this
concept for the first time in the historic Kesavananda Bharati case in 1973.1 Ever since the Supreme
Court has been the interpreter of the Constitution and the arbiter of all amendments made by
Parliament.
The pre-Kesavanada position
Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of
citizens, was challenged as early as in 1951. After independence, several laws were enacted in the
states with the aim of reforming land ownership and tenancy structures. This was in keeping with the
ruling Congress party's electoral promise of implementing the socialistic goals of the Constitution
[contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required
equitable distribution of resources of production among all citizens and prevention of
concentration of wealth in the hands of a few. Property owners -- adversely affected by these
laws -- petitioned the courts. The courts struck down the land reforms laws saying that they
transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the unfavourable judgements, Parliament placed these laws in the Ninth Schedule of2 the Constitution
through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively
removing them from the scope of judicial review.
[Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951
as a means of immunising certain laws against judicial review. Under the provisions of Article 31,
which themselves were amended several times later, laws placed in the Ninth Schedule -- pertaining
to acquisition of private property and compensation payable for such acquisition -- cannot be
challenged in a court of law on the ground that they violated the fundamental rights of citizens. This
protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating
the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created
with the primary objective of preventing the judiciary - which upheld the citizens' right to property on
several occasions - from derailing the Congress party led government's agenda for a social
revolution.]
Property owners again challenged the constitutional amendments which placed land reforms laws in
the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the
Constitution.
In 1967 an eleven-judge bench of the Supreme Court reversed its position. Delivering its 6:5 majority
judgement in the Golaknath v. State of Punjab case , Chief Justice Subba Rao put forth the curious
position that Article 368, that contained provisions related to the amendment of the Constitution,
merely laid down the amending procedure. Article 368 did not confer upon Parliament the power to
amend the Constitution. The amending power (constituent power) of Parliament arose from other
provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make
laws (plenary legislative power). Thus, the apex court held that the amending power and legislative
powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must
be deemed law as understood in Article 13 (2).
The majority judgement invoked the concept of implied limitations on Parliament's power to
amend the Constitution. This view held that the Constitution gives a place of permanence to the
fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had
reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed
this limitation on the powers of Parliament. Parliament could not modify, restrict or impair
fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms
granted under it. The judges stated that the fundamental rights were so sacrosanct and
transcendental in importance that they could not be restricted even if such a move were to receive
unanimous approval of both houses of Parliament. They observed that a Constituent Assembly might
be summoned by Parliament for the purpose of amending the fundamental rights if necessary.
constitutional history during the last decade of the 20th century, has reappeared in the public realm.
While setting up the National Commission to Review the Working of the Constitution (the
Commission), the National Democratic Alliance government (formed by a coalition of 24 national and
regional level parties) stated that the basic structure of the Constitution would not be tampered with.
Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions
that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission's
work.
Several political parties -- notably the Congress (I) and the two Communist parties which are in the
opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy
for its design to adopt radical constitutional reforms thus destroying the basic structure of the
document.
Much of the public debate has been a victim of partial amnesia as even literate circles of urban India
are unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s.
The following discussion is an attempt to chart the waters of that period rendered turbulent by the
power struggle between the legislative and the judicial arms of the State.
According to the Constitution, Parliament and the state legislatures in India have the power to make
laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests
in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by
Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has
the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding
fathers wanted the Constitution to be an adaptable document rather than a rigid framework for
governance. Hence Parliament was invested with the power to amend the Constitution. Article 368
of the Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative
enthusiasm of Parliament ever since independence. With the intention of preserving the original
ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the pretext of amending it. The
phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised this
concept for the first time in the historic Kesavananda Bharati case in 1973.1 Ever since the Supreme
Court has been the interpreter of the Constitution and the arbiter of all amendments made by
Parliament.
The pre-Kesavanada position
Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of
citizens, was challenged as early as in 1951. After independence, several laws were enacted in the
states with the aim of reforming land ownership and tenancy structures. This was in keeping with the
ruling Congress party's electoral promise of implementing the socialistic goals of the Constitution
[contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required
equitable distribution of resources of production among all citizens and prevention of
concentration of wealth in the hands of a few. Property owners -- adversely affected by these
laws -- petitioned the courts. The courts struck down the land reforms laws saying that they
transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the unfavourable judgements, Parliament placed these laws in the Ninth Schedule of2 the Constitution
through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively
removing them from the scope of judicial review.
[Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951
as a means of immunising certain laws against judicial review. Under the provisions of Article 31,
which themselves were amended several times later, laws placed in the Ninth Schedule -- pertaining
to acquisition of private property and compensation payable for such acquisition -- cannot be
challenged in a court of law on the ground that they violated the fundamental rights of citizens. This
protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating
the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created
with the primary objective of preventing the judiciary - which upheld the citizens' right to property on
several occasions - from derailing the Congress party led government's agenda for a social
revolution.]
Property owners again challenged the constitutional amendments which placed land reforms laws in
the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the
Constitution.
In 1967 an eleven-judge bench of the Supreme Court reversed its position. Delivering its 6:5 majority
judgement in the Golaknath v. State of Punjab case , Chief Justice Subba Rao put forth the curious
position that Article 368, that contained provisions related to the amendment of the Constitution,
merely laid down the amending procedure. Article 368 did not confer upon Parliament the power to
amend the Constitution. The amending power (constituent power) of Parliament arose from other
provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make
laws (plenary legislative power). Thus, the apex court held that the amending power and legislative
powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must
be deemed law as understood in Article 13 (2).
The majority judgement invoked the concept of implied limitations on Parliament's power to
amend the Constitution. This view held that the Constitution gives a place of permanence to the
fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had
reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed
this limitation on the powers of Parliament. Parliament could not modify, restrict or impair
fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms
granted under it. The judges stated that the fundamental rights were so sacrosanct and
transcendental in importance that they could not be restricted even if such a move were to receive
unanimous approval of both houses of Parliament. They observed that a Constituent Assembly might
be summoned by Parliament for the purpose of amending the fundamental rights if necessary.
History
World War II in Europe came to an end on May 9, 1945. In July, a new government came to power in the United Kingdom. The new British government announced its Indian Policy and decided to convene a constitution drafting body. Three British cabinet ministers were sent to find a solution to the question of India's independence. This team of ministers was called the cabinet mission.
The cabinet mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by July-August 1946. With the independence of India on August 15, 1947, the Constituent Assembly became a fully sovereign body. The Assembly started working from December 9, 1947.
The Constituent Assembly
The people of India elected the members of the provincial assemblies who in turn elected the members of the Constituent Assembly.
The Constituent Assembly had members belonging to different communities and regions of India. It also had members representing different political properties. Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee were some of the important leaders who guided the discussion in the Assembly. There were more than 30 members of the scheduled classes. The Anglo - Indian community was represented by Frank Anthony and the Parsis were represented by H.P. Modi. Constitutional experts like Alladi Krishnaswamy Aiyer, B.R. Ambedkar, B.N. Rau and K.M. Munshi were also members of the Assembly. Sarojini Naidu and Vijaylakshmi Pandit were important women members. Rajendra Prasad was elected president of the Constituen Assembly. B.R. Ambedkar was appointed the Chairman of the Drafting Committee.
The cabinet mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by July-August 1946. With the independence of India on August 15, 1947, the Constituent Assembly became a fully sovereign body. The Assembly started working from December 9, 1947.
The Constituent Assembly
The people of India elected the members of the provincial assemblies who in turn elected the members of the Constituent Assembly.
The Constituent Assembly had members belonging to different communities and regions of India. It also had members representing different political properties. Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee were some of the important leaders who guided the discussion in the Assembly. There were more than 30 members of the scheduled classes. The Anglo - Indian community was represented by Frank Anthony and the Parsis were represented by H.P. Modi. Constitutional experts like Alladi Krishnaswamy Aiyer, B.R. Ambedkar, B.N. Rau and K.M. Munshi were also members of the Assembly. Sarojini Naidu and Vijaylakshmi Pandit were important women members. Rajendra Prasad was elected president of the Constituen Assembly. B.R. Ambedkar was appointed the Chairman of the Drafting Committee.
Importance of Constitution
It lays down the basic structure of the government under which its people are to be governed. It establishes the main organs of the government - the executive, the legislature and the judiciary.
The Constitution not only defines the powers of each organ, it demarcates the responsibilities of each. It regulates the relationship between the different organs and between the government and the people.
A Constitution is superior to all the laws of the country. Every law enacted by the government has to be in conformity with the Constitution.
The Constitution lays down the national goals of India - Democracy, Socialism, Secularism and National Integration.
It spells out the rights and duties of the citizen
The Constitution not only defines the powers of each organ, it demarcates the responsibilities of each. It regulates the relationship between the different organs and between the government and the people.
A Constitution is superior to all the laws of the country. Every law enacted by the government has to be in conformity with the Constitution.
The Constitution lays down the national goals of India - Democracy, Socialism, Secularism and National Integration.
It spells out the rights and duties of the citizen
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