Article 14 - Equality

Introduction

Article 14

1)Equality before the Law

2)Equal protection of the Law

Exception

Classification and class legislations

Test of reasonable classification

Applicability of Article 14

New concept of Equality

Introduction

Article 14 states that the state shall not deny to any person equality before the
law or equal protection of law within the territory of India. Thus, Article 14
embodies the general principles of equality before the law and prohibits
unreasonable discrimination between persons. Article 14 says every person is
equal before the law and deserves equal treatment in equal circumstances
without distinction of caste, race, sex, religion, social status however this rue is
not absolute and has few exceptions.

Article 14 provides two Expressions.

1)Equality before the law

2)Equal protection of the law

Equality before the law

The phrase equality before the law is of English origin. Equality before the law
and equal protection before law are two different terms. The phrase equality
before the law in which no rank, status, positions shall not be considered before
the law but subject to certain exception which are - Governors, President,
sovereign of foreign officials, Diplomats etc. It does not believe in absolute
equality as it is physically impossible to achieve. Dr Jennings say - the right sue
and to be sued, to prosecute and to be prosecuted for the same kind of action
should be same for all citizen of full age and understanding without of caste,
race, religion, social status or political influence.

Equal protection of law

It means that person similarly circumstanced shall be treated alike both in

privileges and liability imposed by laws. Equal laws should be applied to all in
the same situation and there should be no discrimination between one person
and another. In the view of legislation their position is same. Therefore
legislature is entitled to make a reasonable classification for the purpose of
legislation and treat all in one class on an equal footing.

Exception.

Article 14 is not absolute in nature and it does not mean that the power of
private citizen is equal to the powers of Public officials. Thus, the police officer
has the power to arrest while no private person has the power. This is not
violation of Article 14. But it does require that these powers should be clearly
defined by law and abuse of such authority by public officials must be punished
by ordinary court in the same manner as a crime committed by the private
person. Secondly, that rule of law is not applicable to certain class of citizen
which are subject to special rule i.e certain members of society are governed by
special rules in their profession. Thus, member of armed forces are controlled
by military law and a medical practitioner is subjected to regulations framed by
Medical council of India. Also Article 361 provides that President and Governor
of the state are not answerable to any court in the exercise of power and duty of
their office.

Also certain provision under certain situation rules out Article 14 that are-

1)Article 31c provides that law made for implementing directive principle under
clause b) and c) of Article 39 cannot be challenged on the ground that it in
violation of Article 14. The Supreme Court in the case Sanjeev coke Mfg. Co. v
Bharat coal cooking Ltd held that where Article 31c comes in Article 14 goes
out.

2)In cases of emergency proclaimed by the president under article 359 (1)
enforcement of right are suspended for the period during which the
proclamation is in force.

3)Article 361 provides that President and Governor are exempted from any
criminal proceeding during the tenure of there office.
4) In International law, foreign sovereign and ambassador enjoy full immunity
from any judicial proceeding.

Classification and Class legislation

Article 14 is not absolute in nature therefore it does not mean that all law must
be general in nature or must have universal applicability for all persons.
According to the needs of different class which often requires different
treatment , so reasonable classification is permitted and is necessary for society
to progress. Thus, Article 14 permits reasonable classification and prohibits
class legislation. Class legislation means that particular privileges granted to a
particular class of persons arbitrarily selected from a large number of persons
which are equal in nature where no reasonable distinction of substantial
difference can be found justifying the inclusion of one and the exclusion of the
other from such privileges.

Test of Reasonable Classification

Reasonable classification of persons, objects and transactions by legislature for

the purpose of achieving specific ends must not be arbitrary, artificial or
evasive.

Classification to be reasonable must fulfil the following two conditions-

1)Classification must be found on intelligible differentia which distinguishes

persons or things that are grouped together from others left out of the group.

2)Differentia must have rational relations to the object sought to be achieved by

the act.

Education can be a basis for classification-

In STATEOF BIHAR V BIHAR LECTURERS ASSOCIATIONS it has been
held that there is clear distinction between a trained lecturer and untrained
lecturer. Such distinction is valid, rational and reasonable. The classification is
reasonable and is based on intelligible differentia which distinguishes one class
(trained) and the other class (untrained). Such classification has a rational nexus
to the object intended to be achieved.

The applicability of Article 14 was laid down in the DALMIA case which holds
good governing a valid classification under Article 14 they are-

1-That the single individual may be treated as a class by itself

2-Presumption in favour of Constitutionality of statute and the burden is upon
the Petitioner

3-The classification may be made on different basis eg. geographical or

according to object occupation of the likes

4-The classification made by legislature need not be scientifically perfect or

logically complete

5-There can be discrimination both in the substantive as well as procedural law

Article 14 applies to both

The question whether a classification is reasonable and proper or not must,

however, be judged more on common sense than on legal technicalities.

New concept of equality : Protection against Arbitrariness

In E.P ROYAPPA V STATE OF TAMIL NADU, AIR 1974

the Supreme court has changed the old concept of equality which was basis on
reasonable classification and had laid down a new concept of equality.
Bhagwati .J delivered the judgement in the following words: Equality is a
dynamic concept with many aspect and dimensions and it cannot be confined,
cribbed or cabined within traditional and doctrinaire limits.

Also in MANEKA GANDHI V UNION OF INDIA Bhagwati .J confirms the

new concept of equality by quoting the judgement of E.P ROYAPPA case
pronounced by him. Article 14 strikes down arbitrariness in state and ensures
fairness and equality of treatment.

Prior to new concept of equality laid down in E.P ROYAPPA case the view of
Article 14 is to forbid discrimination and not classification provided that it
should fulfil 2 test

1) That it was based on Intelligible differentia and

2) That the differentia has a rational nexus with the object that law seek to achieve. but
according to new doctrine the old concept is merely a judicial formula for determining
whether the legislative or the executive action is arbitrary and, therefore, constitutes a denial
of equality.

In AIR INDIA V NARGESH MEERZA, AIR 1981

Regulation 46 of Air India and Indian Airlines Regulations provides that an air hostess would
retire from service of a corporation upon attaining the age of 35 or on marriage if it took
place within 4 years of service or on first pregnancy, whichever occur earlier. Which was the
most unreasonable and arbitrary provision and liable to be struck down. Therefore, Supreme
court struck down Air India and Indian Airlines Regulations on the age of retirement and
pregnancy bar on services of air hostesses as unconstitutional on the ground that the condition
laid down were entirely unreasonable.
 Article 21
Introduction

Scope of Article 21

Compensation for Violation

Right to Education Article 21 A

Introduction

Article 21 - No person shall be deprived of his life or personal property except according to
the procedure establish by law. The most important words in the Article 21 are procedure
establish by law. Prior to Maneka Gandhi case Article 21 guaranteed the right to life and
personal liberty only in case arbitrary action of the executive but after the Maneka Gandhi
case protection against legislative actions was granted.

Scope of article 21

Prior to Maneka Gandhi case approach to the Article 21 was very strict narrow literal and
positivist. The word personal liberty came into consideration in the case AK GOPALAN V
UNION OF INDIA where the petitioner a communist leader was detained under the
Preventive Detention Act 1950. The petitioner challenged the validity of detention under the
act on the ground that it is a violation of his right to freedom and action under Article 21(1)
(d) . He argued that right to freedom is very essence of Article 21 and therefore, the
restriction imposed by the act(preventive detention) must be fair and reasonable and also the
word law must include right of natural justice. It was argued that Article 19(1) and 21 should
be read together. Article 19(1) deals with substantive law and Article 21 deals with the
procedural law. But the contention was rejected by the SC in the majority on the ground that
right to personal liberty means nothing more than that of freedom from arrest and detention
without authority of law. The majority is of view that Article 19 and 21 deal with the aspect
of law.
Finally in the landmark case of Maneka Gandhi v Union of India where the decision of AK
Gopalan case was overruled and has widened the scope the of the word personal liberty
considerably. The court lay down stress on procedural safeguard. The procedure must satisfy
the requirement of natural justice.

In MANEKA GANDHI v UNION OF INDIA the petitioner's passport was impounded by

passport authority u/s 10(3) of the passport act 1967. The act authorises to do so if it is in the
interest of the general public. The petitioner challenged the order on following grounds,
1) it is in violation of Article 14 because it did not provide for hearing of passport holder
2) sec 10(3) is in violation of Article 21 since it does not provide for procedure within the
meaning of Article 21
3) the imposition of restriction is in violation of Article 19(a)(g) as such restiction are not
given.
The SC held that the government was not justified in withholding the reason for impounding
the passport from petitioner and the procedure given in Article 21 the order withholding
reasons for impounding the passport was therefore not only in breach of statutory provisions
but also in violation of the rule of natural justice. Embodied in audi alteram partem. Thus
Article 21 requires the following conditions to be fulfilled.
1. there must be a valid law
2. the law must provide a procedure
3. the procedure must be just fair and reasonable.
4. the law must satisfy the requirement of Article 14 and 17 also in NANDLAL V STATE
OF PUNJAB, the validity of the order of detention made under section 3 of the prevention of
black marketing and maintenance of supply of essential commodity act was challenged.

The court applying Maneka Gandhi's principle held the procedure adopted by the advisory
board was arbitrary and illegal.

Following are the rights under right to life and personal liberty under Article
21:

1. Right to live with human dignity-

After the case of Maneka Gandhi court gave new dimension to Article 21. Right to life is not
merely confine to physical existence but it includes within its ambit the right to live with
human dignity. In the case PEOPLE'S UNION FOR DEMOCRATIC RIGHTS V UNION OF
INDIA the court held that non-payment of minimum wages to the workers employed in
various Asiad project in Delhi was denial to them their right to live with basic human dignity.

2. Right to livelihood

In OGLA TELLIS V BOMBAY MUNICIPAL CORPORATION popularly known as

pavement dweller case where five bench court held that the word life includes right to
livelihood. The right to livelihood is treated as part of constitutional right to life. The court
took humanitarian view in the matter to reduce the hardship by pavement dwellers involving
eviction of their huts and ordered municipal authority to remove huts after the end of
monsoon season. The court also demarcated hawking and non hawking zone.

3. Right to Shelter

It the duty of the state to provide housing facilities to dalits and schedule tribe as to enable
them to come into the mainstream of national life.
In SHAMELI SINGH V STATE OF UP it has been held that the right to shelter is a
fundamental right under article 21 .Right to life guaranteed in any civilised society implies
that right to food, water, decent environment, education, medical care and shelter as all the
civil, political, social and cultural right cannot be exercised with basic human right.
Therefore, right to shelter is not only to protect life and limbs but also helps the man to
inculcate the values of intellect and spirituality and to grow physically strong. Right to shelter
includes decent structure, adequate living space, proper sanitation, electricity, sufficient
light , pure air and water to drink and other civic amenities. Thus, it enables the man to live
and develop as human being.
4 Right to privacy

A citizen has the right to safeguard the privacy of his family, own, marriage, procreation,
childbearing , and education among other things. The right to privacy has several aspects and
it is a part of life and liberty.

In R. Rajagopal vs State of Tamil Nadu

In this case, the petitioner had written an autobiography depicting close relation between
prisoner and other IAS, IPS and other officials in the jail. But officials were afraid that it
might expose their true nature and compelled the petitioner not to publish the same. The
question for consideration was whether authorizing piece of writing infringes the citizens
right to privacy and also can media be authorised to publish the personal life of citizen. The
court held that official has no right to impose prior restraint on publication but they can take
action only after the publication if it is found to be false. If a matter becomes a public record
the right to privacy does not exist and the matter becomes legitimate to be discussed by press
and media. But in some cases interest of decency matters under article 19(2). eg- matters of
sexual assault, addiction or a like offence should not further be subject to the indignity of a
persons name and the incidence being published in press and media.

In State of Maharashtra vs Madhulkar Narian

The Supreme Court held that the right to privacy is available even to women of easy virtue
and no one can invade her privacy. A police inspector visited the house of one Banubai in
uniform and demanded to have sexual intercourse with her she raised hue and cried, when he
was prosecuted he told the court that she was a lady of easy virtue and therefore her evidence
was not to be relied upon. The court rejected the argument of applicant and held him liable
for violating her right to privacy under article 21 of the Constitution.

Telephone tapping

In People's Union of civil Liberty vs Union of India The Supreme Court held that telephone
tapping is a serious invasion of personal life of persons under Article 21 and it should resort
to the state unless there is public emergency or interest of public safety required. The court
laid down detailed guidelines to regulate the discretion vested in the state under Section 5 of
Indian telegraph Act for the purpose of tapping interception of other messages so as to
safeguard public interest against arbitrary and unlawful exercise of Government.

Right to health and Medical Assistance

In Parmanand Katara vs Union of India

It has been held that it is a professional obligation of all doctors, private or government to
extend medical aid to the injured immediately to preserve life without waiting for legal
formalities to be complied by the police. Article 21 of Constitution casts an obligation on the
state to preserve life. Court says that in its true spirit it would help in saving life of many
citizens who die in accident because no medical aid is given to them on the ground that they
are not authorized to treat medico-legal cases.

In Vincent Parikurlangara vs Union of India

The Supreme Court held that the right to maintenance and improvement of Public Health is
included in the right to live with human dignity enshrined in article 21. A healthy body is the
very foundation of all human activities. In a welfare state, this is the obligation of the state to
ensure the creation and sustaining of condition congenial to good health.

Protection of Ecological and Environmental Pollution

In Shriram food and fertilizers cases, the Supreme Court directed the companies
manufacturing hazardous and lethal chemicals and gases posing a danger to health and life of
workman and people living in its neighbourhood. The matter was brought before the court
through a public interest litigation. The management was directed to deposit a sum of rupees
20 lacs by way of security for the payment of compensation claims of the victims of Oleum
Gas leak with the Registrar of the Court. In addition, a bank guarantee of sum of rupees 15
lacs was also directed to be deposited. Subject to this condition the Court allowed the partial
reopening of the plant.
 Freedom of Religion
ARTICLE 25-28

India is a secular State. The 42nd Amendment Act, 1976 has inserted the word Secular in the
Preamble. The court said that "State tolerance of religion does not make it either a religious
or a theocratic State". Secularism represents faith born out of rational faculties and it enabled
to see the imperative requirements for human progress in all aspects. Secularism is neither
anti-God nor pro-God as it treats alike the devout, agnostic and the atheist.

FREEDOM OF RELIGION- ARTICLE 25(1)

Guarantees to every person the freedom of conscience and the right to progress, practice and
propagate religion. The right guaranteed under article 25(1) like other Constitutional rights is
not absolute. This right is subject to public order, morality, and health and to other provisions
of part 3 of the Constitution. Also under sub-clause (a) and (b) of clause (2) of article 25 the
State is empowered by law-
(a) To regulate or restrict any economic, financial, political or other secular activity which
may be associated with religious practice
(b) To provide for (i) social welfare and reform and
(ii) to open Hindu religious institutions of a public character to all classes and sections of
Hindus.

Under article 25 (1) a person has a twofold freedom-

(a) Freedom of conscience;
(b) Freedom to progress, practice and propagate religion.

FREEDOM TO MANAGE RELIGIOUS AFFAIRS- ARTICLE 26

Article 26 says that subject to public order morality and health every religious denomination
of any section of it shall have the following rights:-
(a) To establish and maintain institutions for religious and charitable purposes
(b) To manage its own affairs in matters of religion
(c) To own and acquire movable and immovable property
(d) To administer such property in accordance with law.

RIGHT TO ESTABLISH AND MAINTAIN- INSTITUTIONS FOR

RELIGIOUS AND CHARITABLE PURPOSES-

Under Article 26(a) every religious denomination has the right to establish and maintain
institutions for religious and charitable purposes.
Azeez Basha v. Union of India (AIR 1968 SC 662)- the words "establish and maintain" must
be read together. Therefore, only those institutions which religious institutions establishes
which it can claim to maintain it.

RIGHT TO MANAGE 'MATTERS OF RELIGION'-

Under Article 26(b) every religious denomination is free to manage its own affairs in 'matters'
of religion.
Bira Kishore Dev v. State of Orissa (AIR 1964 SC 1501)- the Shri Jagannath Temple act took
the management of secular activities of the temple from Raja of Puri and vested it in the
committee constituted under the act. The court held the act valid.

RIGHT TO ADMINISTER PROPERTY BY DENOMINATION-

Under Article 26(c) a religious denomination had the right to acquire and own property and
to administer such property in accordance with law. The right to administer property owned
by a religious denomination is a limited right, and it is subject to the regulatory power of the
State in clause(2)(a) of article 25 and also any general property law.
Rati Lal v. State of Bombay, a law which took away the right of administration altogether
from religious denomination and vested it in another secular authority was held to be
violative of the right guaranteed by Article 26(d).

FREEDOM FROM TAXES FOR PROMOTION OF ANY PARTICULAR

RELIGION- ARTICLE 27

Article 27 provides that no person shall be compelled to pay any tax for the promotion and
maintenance of any particular religion or denomination. This article emphasize the secular
characters of State. The public money collected by way of tax cannot be spent by the State for
the promotion of any particular religion. The prohibition is against giving any aid to any
particular religion. This means that if State aid is to extend to all religious institutions along
with secular ones alike without any discrimination, then Article 27 is not applicable.

PROHIBITION OF RELIGIOUS INSTRUCTION IN STATE-AIDED

INSTITUTIONS- ARTICLE 28

According to article 28(1), no religious instruction shall be imported in any educational

institution wholly maintained out of State funds. Under clause 1(3) no person attending any
educational institution recognized by the State or receiving aid out of State fund shall be
required to take part in any religious instruction that may be imparted in any such institution
or to attend any religious worship that may be conducted in any such institution or to any
premises attached thereto unless such person or if such person is minor his guardian has
given consent thereto. Thus, article 28 mentions 4 types of educational institutions:
(a) Institutions wholly maintained by the State.
(b) Institutions recognized by the State.
(c) Institutions that are receiving aid out of State fund.
(d) Institutions that are administered by the State but are established under any trust or
endowment

In the institutions of (a) type, no religious instructions can be imparted. in (b) type and (c)
type institutions, religious instructions may be imparted only with the consent of the
individuals. In (d) type of institutions, there is no restriction on religious instruction.
 A Right to Constitutional Remedies – Article 32
Synopsis

Article 32

Writ

Habeas corpus

Mandamus

Certiorari

Prohibition

Quo warranto

Alternative remedy.

Article 32

The fundamental rights are meaningless without enforcement of the same. The remedy makes
the right real. An effective remedy for fundamental rights has been provided for under article
32.

Article 32 (1)

Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for
enforcement of fundamental rights conferred by part 3 of the Constitution.

Article 32 clause 2) Confirm the power upon the supreme court to issue appropriate
directions or orders or writs including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for enforcement of fundamental rights conferred by
part 3 of the constitution. Thus, the language of article 32 (2) provides for a very wide scope.
It permits all necessary adaptation without legislative sanction.

Writs

a)Habeas corpus-

Habeas corpus literally means "you have the body" This writ is issued in the form of an order
calling upon a person by whom another person is detained to let the court know under what
authority he has been detained that person.

In Kanu Sanyal v. District Magistrate, Darjeeling

The Supreme Court held that for writ of habeas corpus producing of the body of the person
alleged to be unlawfully detained is not essential.

Application of writ : An application can be made by the person detained illegally or in certain
cases on his behalf by a friend or relative.

Technicalities : Technicalities and legal necessities are no impediments to the court. Even
informal communication can be entertained by the court for proceeding if basic facts are
found.

b)Mandamus

The word mandamus means order. The writ of mandamus is thus an order commanding a
person or public authority do something in the nature of public duty or in statutory duty.
Thus, a writ of mandamus will be granted-
a) when the applicant has a right to compel performance of some duty cast upon the
authority.
b) to restrain public authority from acting under a law declared unconstitutional.

A writ of mandamus will not be granted-

a) when a duty is merely discretional.
b) when it is against the private individual.
c) for an obligation arising out of a contract.

3) Certiorari

A writ Certiorari is issued by a Supreme Court to an inferior court or body exercising Judicial
or Quasi-Judicial functions to remove a suit from such a court or body to adjudicate upon the
validity of proceedings or the body exercising judicial or Quasi-judicial functions. A writ of
Certiorari can be issued to judicial or Quasi-judicial body on the ground of-
1) where there is an error of law apparent on the face of the record. But the same is not the
error of the fact

In Hari Vishnu v. Ahmad Ishaque The supreme court held that no error is said to be the face
of record if it is not self-evident. Where if there has been violation of procedures or
abrogation of the principles of natural justice. A writ of Certiorari cannot lie against a private
body.

4) Prohibition

A writ of prohibition is issued primarily to prevent an inferior court or Tribunal from

exceeding its jurisdiction or acting contrary to the rule of natural justice. The difference
between prohibition and certiorari are-
-prohibition is issued prohibiting the court from continuing proceedings
-Certiorari is issued to quash the order on the ground of jurisdiction.

The object of Prohibition is prevention rather than cure, the object of Certiorari is the cure.

5)Quo warranto-
The word Quo warranto means " what is your identity". This writ prevents a person holding
an office he is legally not entitled to. The court under this writ may pass an order preventing
the holder from continuing office and declares it vacant. A writ of Quo warranto can be
obtained by a person if he satisfies certain conditions-
1) the office in question is a public office.
2) seat is held by person without legal authority.

A writ of quo warranto cannot be issued against an office of private character. How the court
can also refuse to grant a writ of quo warranto if it is vexatious in nature or where the
plaintiff acquiesced in the very act complained about.

In a writ of quo warrranto a person declared not eligible to hold the post, cannot be ordered
recovery of amount for service rendered.

6)Alternative remedy

K K Kochuni v. State of Madras. The court held that article 32 being a fundamental right the
court can grant relief, notwithstanding the existence of an alternative remedy. However in S
A khan v. State of Haryana It has been held that when a statutory alternative remedy is
available to the petitioner against suspension order, the writ petition under article 32 is not
maintainable.
 Article 29 And 30
1)Introduction

2) Article 29

3) Article 30

Introduction

Article 29 and 30 of the Indian Constitution provide for cultural and educational rights. It
provides for protection of minorities in India. Article 30 allows minorities in India to
establish and administer educational institutions of their choice.

Article 29

Article 29 provides for protection of interest of minorities

i) under clause 1 Any section of the citizens residing in the territory of India or any part
thereof, having the distinct language, script or culture of its own shall have the right to
conserve the same. Thus, it affords constitutional provisions to protect the language, script or
culture of the citizens. The same is valid for both majority and minority group.
ii) according to clause 2, no citizens shall be denied admission into any educational
institution maintained by State or receiving aid out of state fund on the ground only of
religion, race, caste, language or any of them. This provides that the state shall not
discriminate with reference to the admission of a person on the basis of religion, cast, sex,
language.

In state of Madras vs Champakam Dorairajan

An order of Madras government had fixed the position of students of each community that
could be admitted in the state medical and engineering colleges. The same was challenged as
it denied admission only on the basis of religion and cast. The petitioners were denied
admission because they were brahmins. The supreme court held that to be violative Article
29(2).

2) Article 30

Article 30 provides the right to the minorities to establish and administer educational
institutions.

i) According to clause 1, all minorities whether based on religion or language, shall have the
right to establish and administer educational Institutions of their own choice.

ii) according to clause 2, the state shall not grant aid to educational institutions discriminating
against any education Institutions on ground that, it is under the management of a minority,
whether based on religion or language.
Minority-

Article 30(1) used the term linguistic or religious minority. The same has not been defined by
the constitution, and generally refers to the non-dominant group. A linguistic minority is one
that has a separate spoken language, it is not necessary the language has a different script

In Kerala Education Bill

The supreme court observed that the fundamental rights given to all minorities under article
30(1) do not prevent the state to insist that in granting aid the state can prescribe certain
reasonable regulations to ensure excellence. Thus, the court held that the right under article
30(1) were not absolute. The state has to take care that the regulations imposed must not take
away the right of the minorities provided under article 30(1). The supreme court further
observed that a minority, with regards to a State Law extending to the whole of the state in
question, must be determined from the population of the state and not against the whole of
India. Thus, Christian community been 20% of the population of Kerala is a minority in
Kerala.

Establish and Administer

The word Establishment and administration have to be read together. Therefore, the minority
can administer an educational institution if the same has been established by it. Thus religious
minority cannot administer education institutions set up by someone else. The right have been
provided so that the minority can mould the institution as per the interest of the community.

In Frank Anthony Public School vs. Union of India

The Supreme Court held that statutory measures regulating terms and conditions of services
of teachers for maintaining education, excellence and standard were not violative of Article
30. The management of a minority School cannot be permitted to oppress or exploit their
employees under the guise of article 30(1).

The scope of article 30 was re-examined in the case T.M.A Pai Foundation vs State of
Karnataka

Supreme Court held with regards to the scope of article 30-

i) The term minority under article 30(1) cover linguistic and religious minorities.
ii) The purpose of determining the minority, the unit shall be state and not the whole of India.

iii) Article 30(1) provides all minority right for establishing and administering educational
institutions of their choice. This even includes professional educational institutions.
iv) the right conferred by article 30(1) is not absolute though the un-aided enjoys more
freedom as compared to the aided institution.
v) admission of students to unaided minority educational institutions cannot be regulated by
the state except for minimum qualification in the interest of educational standard.
vi) an unaided minority institution is entitled to admit student belonging to a minority group,
at the same time they must also appoint the non-minority student to a reasonable extent.
vii) in the case of non-minority student eligibility for admission should be on the basis of
common entrance test.
viii) minority institution can have separate entrance merit as long as they are fair and
transparent.
ix) the authorities granting aid, to an aided minority institution may prescribe basis of
admission for the academic standard.
x) the right to administer is not absolute and regulatory measures ensuring educational
standard and excellence is valid.

In P.A.Inamdar vs State of Maharashtra

The scope of article 30 was further elaborated by the Supreme court. The aspect laid down by
the court were-
i) minority Institutions are free to admit Student of the choice. The admission of non-minority
students cannot be forced upon it.
ii) they can impose certain regulatory control of the state
iii) state or university cannot interfere with the internal policy of the Institution. There can be
only specific rules and guidelines.
iv) minority Institutions can reserve any number of seats for their students.
 Citizenship
Introduction

CONSTITUTIONAL PROVISIONS

CITIZENSHIP AT THE COMMENCEMENT OF THE CONSTITUTION.

1)citizenship by domicile Article 5

2)citizenship of emigrants from Pakistan Article 6

3)citizenship of migrants to Pakistan Article 7

4)citizenship of Indian abroad Article 8

TERMINATION OF CITIZENSHIP

CITIZENSHIP ACT 1955

INTRODUCTION

The population of the state is divided into 2 class -citizen and aliens. A citizen of a state who
enjoys full civil and political rights. Part 2 of the Indian Constitution under article 5 to 11
deals with the law relating to citizenship at the commencement of the constitution i.e on 26th
Jan 1950. This provision was enacted keeping in view the partition of the country in 1947.

CONSTITUTIONAL PROVISIONS

Part 2 of the Indian Constitution describe classes of person who would be deemed to be
citizens of India at the commencement of the Constitution on 26th Jan 1950 and leaves the
entire law of the citizen to be regulated by law of the parliament. Article 11 confers power to
parliament to enact law relating to this matter. In exercise of its power, the parliament has
enacted the Indian Citizenship act 1955. This act deals with acquisition and termination of the
citizenship subsequent to the commencement of the constitution.

CITIZENSHIP AT THE COMMENCEMENT OF THE CONSTITUTION.

The following persons under Article 5 to 8 of the constitution of India shall become citizens
of India at the commencement.
1)citizenship by domicile - Article 5
2)citizenship of emigrants from pakistan - Article 6
3)citizenship of migrants to Pakistan - Article 7
4)citizenship of Indian abroad Article - 8
1)citizenship by domicile Article 5 -

According to this Article 5 a person is entitled to citizenship by domicile if he fulfills the

following two conditions
a)he must, at the commencement of the Constitution, have his domicile in the territory if
India.
b)such person must fulfill one of the three conditions-
1)he was born in India
2)either of his parent was born in India
3)he must have been ordinary resident in the territory of India for not less than 5 years
immediately before the commencement of the constitution.

Domicile in India is considered an essential requirement for acquiring the status of Indian
citizenship. Domicile of a person is in that country in which he is either has or is deemed by
law to have his permanent house. It must be accompanied by the intention to make it his
permanent house. There are 2 main class of Domicile-
1)domicile of origin
2)domicile of class While the former is attach to the individual by birth and the latter is
acquired by resident in territory subject to distinct legal system with the intention to reside
permanently.

In PRADEEP JAIN V. UNION OF INDIA The Supreme court only recognizes one domicile
viz., the domicile of India. When a person who is permanently resident in one state goes to
another state with the intention to reside there permanently, his domicile does not change and
he does not acquire a new domicile of choice.

Two main elements are necessary for the existence of the domicile-
1)A residence of particular kind.
2)An intention of particular kind.

In LOUIS DE RAEDT V. UNION OF INDIA

The petitioner who was a foreign challenged the order of central government expelling them
from India on their failure to acquire Indian citizenship. They were staying in India for more
than 5 years on the basis of passport and residential permit. They argued that they were
staying for more than 5 years and hence become citizen of India under Article 5(c) of the
constitution. The contention was rejected by Supreme court and held that they fail to establish
the intention to reside permanently. The petitioner did not have domicile in India.

2)citizenship of migrants from Pakistan Article 6

A person migrated from Pakistan has been classified into two categories-
1)Those who came to India before July 19, 1948
2)Those who came to India on or after July 19, 1948

A person migrated from Pakistan is deemed to be a citizen of India at the commencement of

constitution if he or either of his parents or any of his grandparents were born in India as
defined in the Government of India Act, 1935. And in addition, to above conditions which
applies to both cases fulfills one of the following two conditions-
1)In case of he migrated before 19 July 1948, he has been ordinarily residing in India since
the date of migration.
2)In case, he migrated on or after 19 July 1948 he has been registered as a citizen of India by
an office appointed by Govt of India for the purpose. Provided that no person shall be
registered unless he has been residing in India for 6 months immediate before the date of
application for registration.

3)Citizenship of migrants to Pakistan Article 7

Under Article 7 a citizen by domicile (Article 5) and migration (Article 6) cease to be citizen
if he has migrated to Pakistan after 1st march 1947. An exception is however made in favour
of a person who has returned to India on the basis of permit or resettlement in India. Such
person is entitled to become a citizen of India if he fulfills other conditions necessary for
immigration from Pakistan after July 19, 1948 under Article 6. Thus, Article 7 overrides
Article 5 and 6. Both Article 6 and 7 use the term migrated. The meaning of the term
migrated came for consideration before the Supreme court in the case of KULATHI V.
STATE OF KERALA The term migrated used in Article 6 and 7 has to be construed with
reference to the context and purpose and the prevailing political conditions at the time of
commencement of Constitution. The term is interpreted as voluntarily going from India to
Pakistan permanently or temporarily and such movement was not for short visit or for a
special purpose.

In BHANWARAOO KHAN V. UNION OF INDIA

The Supreme court has held that those who have voluntarily migrated to Pakistan and became
a citizen of Pakistan cannot claim citizenship of India on the ground that they have been
living in India for a long time and their names have been included in the voter list. In this
case, a lady Bhanwaroo Khan had claimed the Indian citizenship on the ground that she had
return to India after 1955 and had been living there since.

4)Citizenship of Indian abroad Article 8

Person
1) who was born in India
2)either of his parent was born in India or,
3)any of whose grandparents was born India before Independence, but who is residing in
another country outside India or Pakistan may register himself as a citizen of India with
diplomatic or consular a representative of India in the country of residence.

TERMINATION OF CITIZENSHIP

Article 9 provides that if a person voluntarily acquires citizenship of another country he shall
not be able to claim citizenship of India under Article 5,6 and 8.It only deals with voluntary
acquisition of citizenship of foreign state before the constitution came into force. The case of
voluntary acquisition of citizenship of foreign citizenship before the commencement of the
constitution will have to be dealt with government of India under the Citizenship Act, 1955.

CITIZENSHIP ACT, 1955

Parliament in exercise of the power given to it under Article 11 of the Constitution has passed
the Citizenship Act, 1955 making provision of acquisitions and termination of citizenship
after the commencement of the Constitution. The act provides for the acquisition of Indian
citizenship in 5 ways-
1)birth
2)descent
3)registration
4)naturalization
5)incorporation of territories

1)Birth- A person born in India on or after 26 Jan 1950 is a citizen of India by birth except
when-
a)His father possesses diplomatic immunity and is not an India citizen or
b)His father is enemy alien and he is born at the place under enemy occupation.

2)Descent- A person born outside India on or after 26 January 1951 is citizen of India by
descent, if at the time of his birth his father is an Indian citizen-
a)when his birth is registered at any Indian consulate
b)his father at the time of his birth is on service under Govt of India.
c)similarly, any person outside the territory of Undivided India and who was or deemed to be
citizen of India at the commencement of the Constitution, is also considered as Indian citizen
by decent only.

3)Registration- The prescribed authority may on application register a citizen of India if he

belongs to any of the following categories-
a) a person of Indian origin who is ordinarily resident of India for 7 years before making an
application for registration.
b)Person of Indian origin who is ordinarily resident in any country or place outside undivided
India.
c)a person who is married to Citizen of India and is ordinarily resident in India for 7 years
before making an application for registration.
d)minor children of person who are citizen of India

4)naturalization -The qualification for naturalization are as follows-

a)He must not be a citizen of a country where Indian citizen are prevented from becoming
citizen by naturalization.
b)He has renounced the citizenship of another country.
c)He must take an oath of allegiance.
d)He must be of good character.
e)He must have adequate knowledge of language recognized by constitution.

5)Incorporation of Territories- If any new territory becomes a part of India the Govt of India
shall specify the persons of the territory to be citizen of India.
 Freedom of trade commerce and intercourse
Introduction

Part XIII, of the Constitution under article 301 to 307 lays down the provisions relating to
trade, commerce and intercourse. Objectives to remove the impediment in the way of
Interstate and Intra- state commerce and trade, thus to make the country one single economic
unit. This is to break down the barrier of commerce which existed within India prior to the
Constitution.

Freedom of trade commerce and intercourse

Article 301 declares that trade, commerce and intercourse throughout the territory of India
shall be free. Article 301 includes inter- state and intra- state trade thus restricting the
legislative power of both the parliament and the state legislature.

Meaning

Trade- Trade means buying and selling of goods.

Commerce- commerce means all forms of transportation via land, air and water.

Intercourse- Intercourse means movement of goods from one place to another.

The word free in article 301 does not imply freedom from laws and regulations. Purely
regulatory and compensatory laws cannot be regarded as violative of freedom of trade and
commerce. Such laws are intended merely to regulate Trade and Commerce they tend to
facilitate not restrict and restrain freedom of trade. Article 19 (1)(g) also guarantees to Citizen
the right to practice any profession and carry on any trade, business etc. But while article
19(1)(g) conferred upon the fundamental right of a citizen to carry on trade, business etc.
Article 301 confers the only statutory right. Protection under article 19(1)(g) is available to
citizens only whereas article 301 is available to anyone.

In Atiabari Tea Co. v. the State of Assam.

The validity of Assam Taxation Acts 1954 was challenged on the ground that it violated
Article 301 of the Constitution. The supreme court held that as the movement of goods was
directly taxed it was in violation of article 301 and held it to be void.

In Automobile Transport Limited v. State of Rajasthan

The appellant challenged the validity of Rajasthan Motor Vehicle Taxation Act 1951 inter
alia as violating article 301. The state government imposed taxes on all motor vehicles used
and kept within the state of Rajasthan. The court held the tax valid as they were only
regulatory measures imposing compensatory taxes- facilitating trade, commerce and
intercourse. The test laid down in Atiabari case was approved by the court with a clarification
that regulatory measures imposing compensatory tax do not come within the purview of
restrictions contemplated in article 301. And therefore, such measure need not comply with
the requirement of provisions of article 304(b).

Restrictions on freedom of trade commerce and intercourse

Article 302-

This article authorizes the Parliament to impose such restrictions on the freedom of trade
commerce and intercourse between one state and another or any part of India in Public
Interest.

Article 303 (a) clause(1)-

Provides that Parliament shall not have the power to make any law giving preference to any
state over another by virtue of any entry relating to trade commerce and intercourse in any
one list in the 7th schedule. Clause 2) the parliament can discriminate among States if the
same is necessary due to the scarcity of goods in any part of India.

Article 304 (a)-

Empowers the state to impose any tax on goods imported from another state if similar goods
in the state are subject to similar tax.

State of Madhya Pradesh vs Bhailal Bhai

A state of law imposed the sales tax on imported tobacco but locally produce tobacco was not
subject to such sales tax. The court invalidated the tax as discriminatory.

Article 304(b)

provided that the state can impose reasonable restriction on freedom of trade commerce and
intercourse as required in the interest of public provided that-

1) it has been previously sanctioned by the president.

2) the law is in the public interest and reasonable.

Article 305-

Article 305 saves the existing laws and laws providing for state monopolies in so far as the
President may by order otherwise direct.

Appointment of authority-

Article 307 empowers the parliament to appoint such authority as it considers appropriate for
the purpose of article 302, 303, 304, 305. It can confer on such authorities search powers and
duties as it thinks necessary.
 National Emergency
Introduction

National emergency

Duration

Consequences

44th Amendment Act, 1978

44th Amendment Act, 1971

Financial Emergency.

1)Introduction

Article 352 provide that if the President is satisfied that there exist grave emergency in the
state in case of armed rebellion or war or the security of India is threatened, he may proclaim
an emergency in respect of the whole of India or any part of India. In a case of an emergency
normal federal constitution can be adopted in which basic fundamental principles are
suspended.

2)National emergency

Article 352 (1) states emergency can be proclaimed by the president if he is satisfied that
there exist grave emergency by war, arms, rebellion and threat to the security of India. Also,
emergency can proclaim before the actual occurrence of event contemplated in Article 352.
According to clause (2), the Proclamation at any time can be revoked by the president
varying such proclamation if the Lok Sabha passes resolution disapproving or disapproving
its continuation.
Clause (3) states emergency can be proclaimed only on the occurrence of the cabinet of
minister and by the advice of the prime minister and such proclamation must be
communicated to president in writing. According to clause (4), The proclamation of
emergency must be laid before each house of parliament before the Expiration of 30 days. It
shall cease to be in operation unless approved by both the houses. If the proclamation of
emergency is issued at the time of the dissolution of Lok Sabha without approving it but the
proclamation is approved by Rajya Sabha, the proclamation shall cease to operate at the
expiration of 30 days from the date on which the Lok Sabha seat after fresh election. A
proclamation once approved can remain in operation for period of 6 months and for further
continuation of the emergency beyond the period of 6-month approval shall be required by
the parliament every 6 months.

In Minerva Mills limited v. Union of India

The Supreme Court held that there is no bar to judicial review of the proclamation of
emergency issued by the President under article 352 (1). The courts power is however limited
only to examining whether the limitations conferred by Constitution have been observed or
not. The court cannot go into the question of correctness or adequacy of the facts and
circumstances on which the satisfaction of the government is based. The satisfaction of the
President is a condition Precedent and if it can be shown that there is no satisfaction of the
President at all, the exercise of the power would be constitutionally invalid.

The word satisfaction in article 352 does not mean personal satisfaction of the president, but
it is satisfaction of the cabinet. The power to declare emergency can be exercised by the
president only on the advice of the Council of Ministers.

3)Duration of emergency-

Prior to 44th Amendment, a proclamation of emergency could remain in force in the first
instance for 2 months. But once approved by parliament emergency could remain in force
indefinitely. After the 44th Amendment, a proclamation of emergency may remain in force in
the first instance for 1 month. Such proclamation, if approved by the parliament, shall remain
in force for the period of six months unless revoked earlier. For further continuation of
emergency beyond the period of 6 months approval by parliament would be required after
every 6 months.

4)Effect of proclamation of emergency-

1) Extension of center's executive power (article 353)-

During the operation of a proclamation of emergency the executive power of the union
extend to giving of directions to any state as to the manner in which the executive power of
the state is to be exercised. The 42nd amendment provided that the union to exercise this
power on any other state where emergency is not in force if there is a threat to the territory of
India and the state where the emergency is in force.

2) Parliament empowered to legislate on state subject (art 353(b))

While the proclamation of emergency is in force, the union parliament is empowered to make
laws with respect to any of the matter in the state list. The distribution of legislative power is
thus fundamentally changed during the emergency. The law-making power of the state is not
suspended during the emergency. The state can make law but it is subject to the overriding
power of the union parliament.

3) Extension of life of Lok Sabha-

According to the article 83(2) during the operation of the emergency the president may
extend the normal life of Lok Sabha by a year each time, but the period must not exceed 6
months after the proclamation ceases to operate.

4)Centre empowered to alter distribution of revenue between Union and the

State (Article 354)
Article 354 empowers the president to alter, modify the Financial Arrangement between the
State and the Center provided in the article 268 to 279 while the proclamation of an
emergency is in operation.

5) Suspension of Fundamental Rights guaranteed under Article 19.

Article 358 provides for suspension of 6 freedom guaranteed to the citizens by Article 19 of
the Constitution. Article 358 provides that during a proclamation of emergency nothing in
Article 19 shall restrict the power of the state to make any law or to take any executive
action. Article 19 comes back to life after the proclamation of emergency ceases but no action
shall lie for any action done during emergency even after emergency is over.

5)The 44th Amendment Act, 1978

Two most important changes were made in article 358

1) article 19 will be suspended only when the proclamation of emergency is declared on the
ground of war or external aggression and not when emergency is declared on the grounds of
arms rebellion.
2) It has inserted a new clause (2) in article 358 which says that nothing in the clause (1) shall
apply to-
a)Any law which does not contain recital to the effect that such law is in relation to the
Proclamation of Emergency in operation when it is made.
b)To any executive action taken otherwise than under a law containing such recital. Prior to
this amendment, the validity of even other laws, which were not related to the emergency,
could not be challenged under article 358.

Suspension of right of enforcement of fundamental rights (article 359) According to article

359 the president may suspend the right to enforce fundamental rights guaranteed by part 3
(except article 20 and 21). Further all proceedings pending for enforcement of rights remains
suspended

6)44th Amendment 1971

Two changes :
1) article 359 does not provide the right to suspend the right under article 20 and 21.
2) article 359 will not apply to any law which does not declare it to be in relation to the
emergency.

In Ghulam Sarwar v. Union of India

The supreme court held that a presidential order issued under article 359 can be challenged if
it has been discriminatory.

State Emergency : Article 355 provides that it shall be the duty of the union to protect every
state against external aggression and internal disturbance to ensure that the government of
every state is carried on in accordance with the constitution.
7)Failure of constitutional machinery

According to the article 356

1) According to clause 1) if the president on receipt of report from the governor of a state or
otherwise is satisfied that a situation has arisen in which the government of the state cannot
be carried on in accordance with the provision of the Constitution he may issue proclamation.
By that proclamation
1) the president may assume to himself all or any of the power vested in or exercisable by the
Governor to anybody or authority in the state.
2) the president declare that the power of Legislature of the state shall be exercised by or
under the authorities of parliament.
3)the president may make such incidental and consequential provisions as may appear to him
to be necessary or desirable for giving effect to the object of proclamation.

In S.R Bommai v. Union of India

The court held that proclamation issued by the president under article 356 is subject to
Judicial review if president rule is imposed under political consideration only the court can
restore the Assembly.

8)Financial emergency Article 360

Article 360 provides that if the president is satisfied that situation has arisen whereby
financial stability or credit of India or part of the territory, is threatened he can buy
proclamation make a declaration to the same effect. The proclamation of Financial
Emergency shall cease to operate after 2 months unless the same has been approved by both
the houses. The executive authority of the Union shall extend to giving financial directions to
any state to maintain financial stability or credit. This includes the reduction in salary and
allowances of any class of persons serving the state and even members of the Judiciary.
 Right to Freedom – Article 19
Introduction

ARTICLE 19

TEST OF REASONABLE RESTRICTION

RIGHT AVAILABLE TO CITIZENS ONLY

1)Freedom of speech and expression

2)Freedom of assembly

3)Freedom to form association

4)Freedom of movement

5)Freedom to reside and settle

6)Freedom of occupation, trade, business or profession.

INTRODUCTION

Personal liberty is most important of all fundamental rights. Article 19 to 22 deals with the
different aspect of this basic right. Article 19 to 22 provides the backbone of the chapter on
fundamental rights. The foremost among these are the 6 fundamental rights in the nature of
freedom which are guaranteed to the citizen by art 19 of the Constitution.

ARTICLE 19

The article 19 of the constitution guarantees the citizen following 6 fundamental freedoms
1)Freedom of speech and expression
2)Freedom of assembly
3)freedom to form association
4)freedom of movement
5)Freedom to reside and settle
6)freedom of occupation, trade, business or profession.

These 6 freedom are however not absolute. There cannot be any right which is injurious to
the community as a whole. Therefore, liberty has got to be limited. For liberty of one must
not offend the liberty of other.
Patanjali Shastri .J in AK GOPALAN case observed man as a rational being desire to do
many things, but in civil society his desire has to be controlled, regulated and reconciled with
the exercise of a similar desire of another individual. The rights guaranteed under article 19
has some restriction imposed by the constitution and confers upon the state a power to
impose by law reasonable restriction as necessary in the larger interest of the community. The
restriction on these freedoms is provided in clause 2 to 6 of article 19 of the constitution.

TEST OF REASONABLE RESTRICTION

The restrictions under art 19(1) can be only imposed by law and not by the executive or
departmental instructions. The restriction should strike a proper balance between the rights
guaranteed under art 19(1) and social control in art 19(6). It is on the judiciary to decide
whether any particular restriction is reasonable or not. The word reasonable is subject to the
supervision of the Supreme court. However there is no particular test to judge the
reasonableness of the restriction but each case is the judge on its own merits.

Following are the guidelines laid by Supreme court for determining the reasonableness of
restriction-
1)The restriction must have a reasonable relation to the object which the legislation seek to
achieve and must never exceed it.
2)The degree of reasonableness varies with the nature of rights infringed, the underlying
purpose of the restriction imposed, the extent and urgency, disproportion of the imposition,
the prevailing condition at the time.
3)The restriction must be reasonable from the substantive as well as the procedural
standpoint. The court should consider not only duration and extent but also circumstances of
the restriction under which it is imposed
4)A restriction which is imposed for securing the object and laid down in the directive
principle of state policy may be regarded as reasonable restrictions
5)The court must determine the reasonableness of restrictions by the objective standard and
not by a subjective standard. The question is not if the court feels the restrictions as
reasonable but where a normal prudent man would regard the restriction reasonable.
6)The restriction also amounts to the prohibition under certain circumstances, thus, law
depriving a citizen of his fundamental rights if it prohibits him to carry out dangerous trade
such as cultivating dangerous narcotics plants.

RIGHT AVAILABLE TO CITIZENS ONLY

The rights guaranteed under art 19(1) are only available to citizens and not to an alien or
foreigner. A corporation or a company cannot claim a right under art 19 because they are not
natural persons, but now there appears a change in the judicial attitude on this point.
In BANK NATIONALISATION case and the NEWSPAPERS case, the court held that
though a company cannot claim a right under art 19, but the shareholder of the Company can
claim the right under art 19.

A] FREEDOM OF SPEECH AND EXPRESSION Article 19(1)(a) and 19(2)

freedom of speech is indispensable in a democracy. In ROMESH THAPPER V. STATE OF

MADRAS Patanjali Sastri rightly observed- freedom of speech and press lay at the
foundation of all democratic organisation, for without free political discussion no public
education, so essential for the purpose of functioning of the process of popular government, is
possible.

Meaning and scope

Freedom of speech and expression means right to express one's own conviction and opinion
freely by word of mouth, writing, printing, picture or any other mode. The freedom of
expression includes liberty to propagate not one's view only. It also includes the right to
propagate or publish the view of other people, otherwise, this freedom would not include the
freedom of the press.

Freedom of speech and expression has four broad special purpose to serve-
1)it helps an individual to attain self-fulfillment.
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 establish a reasonable balance
between stability and social change.

In PRABHU DATTA V.UNION OF INDIA

The Supreme court held that the right to know the 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 the society and the individual
from which the press obtain the information. In this case, the court directed the
Superintendent of the Tihar jail to permit the newspaper to interview Ranga and Billa, the
two chief death sentence convict under article 19 (1)(a)as they were willing to interview. The
jail authority had refused the permission to the newspaper representative to interview the
convict.

NEW DIMENSION TO FREEDOM OF SPEECH AND EXPRESSION

In the historic judgement in SECRETARY, MINISTRY OF I & B V. CRICKET

ASSOCIATION OF BENGAL

The Supreme court has considerably widened the scope and extent of the right to freedom of
speech and expression and held that the government has no monopoly on electronic media
and a citizen has under art 19(1)(a), a right to telecast and broadcast the viewer/listeners
through electronic media on Television and radio any important event and directed the
government to set up an independent autonomous broadcasting authority which will free the
Doordarshan and Akashvani from the shackles of the government control.

B] FREEDOM OF ASSEMBLY (ARTICLE 19(1)(B) AND 19(3))

Article 19(1)(b) guarantees to all citizen of India to assemble peacefully and without arms.
The right to assembly means right to hold meetings and to take out procession. The right is,
however, subject to certain restriction under art 19(3) in the interest of sovereignty and
integrity of India. The assembly must be peaceful and must not cause any breach of public
peace.

Unlawful assembly

If the assembly becomes unlawful it can be dispersed. Chapter 8 of IPC lays down the
conditions if the assembly becomes unlawfull. U/sec 141 of IPC an assembly of 5 or more
becomes unlawful if the common objective of persons composing the assembly is,
1)To resist the execution of any law or any legal process.
2)To commit any mischief or criminal trespass.
3)To obtaining possession of any property by force.
4)To compel a person to omit to which he is legally bound to do.
5)To overawe the Government by means of criminal force.

Other provision to curb unlawful assembly like sec 129 of CrPC which may order such any
assembly to be dispersed if the disturbances to the public peace are reasonable apprehended.

C] FREEDOM TO FORM ASSOCIATION (art 19(1)(c) and 19(4))

The constitution guarantees to the citizen to form an association, unions, Co-operative society
under art 19(1)(c). Under clause (4) of 19, the constitution imposes reasonable restrictions in
the interest of public order or morality. The organisation is an association between its
members in matters of common concern. It thus includes the right to form companies,
society, partnership, trade union and political parties.

Right of association and Armed forces

In O.K.A NAIR V. UNION OF INDIA

An important question arose when the civilian employees designated as non-combatants such
as cooks, lasker, barber, mechanics, boot-maker, tailors etc. attached to Defence
Establishment have a right to form associations or union. The appellant was the member of
civil employees union in the various centre of defence Establishment. The commandant
declared their Union as unlawful association. They challenged the impugned action was in
violations of their fundamental right to form association under art 19(1)(c). They contended
that they are governed by Civil service Rules and, therefore, they could not be called as
member of armed force within the view of art 33 of the constitution. The Supreme court
rejected the contention of appellant and held that the civilian employee of Defence
Establishment answers the description of the member of armed force within the meaning of
art 33 of the constitutions

Restriction on Freedom of association

In STATE OF MADRAS V. V.G RAO

The validity of criminal amendment act of 1950 provided any association or union interferes
in the administration of law or with maintenance of constituting danger public peace, the
association or union is declared unlawful by notification in the official Gazette; was
challenged The Supreme Court held that the restriction imposed by sec 16(2)(b) of the act
were unreasonable. The test under it was subjective satisfaction of the Government and the
factual existence of the ground was not justiciable issue.

D] FREEDOM OF MOVEMENT ( 19(1)(d) and 19(5) )

This right guarantees to all citizen of India the freedom of movement freely throughout the
territory of India subject to reasonable restriction under clause 5 of art 19.
Ground Of Restrictions

The state may impose reasonable restriction under clause 5 of Article 19 on Freedom of
Movement two grounds-
1)In the interest of general public
2)For the protection of Schedule Tribes

The right to move freely throughout India is restricted to protect Schedule Tribes which are
mostly settled in Assam. These tribes have their own culture, language, customs and
manners. It was considered necessary to impose restriction on the entry of outsiders to these
areas. It was feared that the mixing of Tribes with people of another area might produce an
undesirable effect upon the tribal people.

In RAJNEESH KAPOOR V. UNION OF INDIA

It has been held the requirement of wearing of a helmet is not a restriction on free movement
of citizens. The paramount objective of wearing a helmet is to save a life.

E] FREEDOM OF RESIDENCE (article 19(1)(e) and 19(5) )

This article gives the right to the citizen to reside and settle anywhere in India subject to
reasonable restriction mentioned in clause 5 of article 19. The object of this clause is to
remove internal barriers within India or any of its parts. The word "the territory of India" as
use this article indicates freedom to reside anywhere and in any part of the state of India.
Right to reside and right to move freely are complementary to each other. Therefore, most of
the cases consider under art 19(1)(d) and art 19(1)(e) are relevant to each other.

In IBRAHIM WAZIR V. SATE OF BOMBAY

In this case the appellant came to India without permit and was deported back to Pakistan
under sec 7 of Pakistan Control Act of 1946 empower the Central Government to direct
removal of person from India including an Indian citizen against whom reasonable suspicion
existed of having committed an offence to enter India without permit and passport. The court
held that the order of removal is invalid on the ground that it impose unreasonable restriction
on the fundamental rights of citizen to reside and settle in India. The coming of citizen to his
homeland even without permit not to be so grave as to justify his expulsion from the country.

G] FREEDOM OF OCCUPATION,PROFESSION,TRADE OR BUSINESS

( article 19(1)(g) and article 19(6) )

Article 19(1)(g) guarantees all the citizen the right to practice any profession or to carry on
any occupation, trade or business. However, it is restricted to reasonable restriction under
article 19(6). 1)in interest of public 2)prescribing professional or technical qualifications
necessary for practising any profession. 3)enabling the state to carry on any trade or business
to the exclusion of citizen wholly or partially.