1. All citizens shall have the right-
(a) to freedom of speech and expression
(b) to assemble peaceably and without arms,
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; (and)
(f) Omitted by the Constitution (Forty-forth Amendment) Act, 1978;
(g) to practise any profession or to carry on any occupation, trade or business.
2. Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law, insofar as such law imposes reasonable restriction on the exercise of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
3. Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India, security of the state, public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
4. Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the state from making any law imposing, in interest of the sovereignty and integrity of India or public order or morality, reasonable restriction on the exercise of the right conferred by the said sub-clause.
5. Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the state from making any law imposing, reasonable restriction on the exercise of any of the rights conferred by the said sub-clause either in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
6. Nothing in sub-clause (g) of the said clause, shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing in the interests of the general public, reasonable restriction on the exercise of the right conferred by the said sub-clause and in particular, nothing in said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the state from making any law relating to-
(i) the professional or technical qualifications necessary for practicing any profession or carrying or any occupation trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the state, of any trade, business, industry or service, whether to the exclusion, complete or partial of citizens or otherwise."
Clauses (a) to (g) of article 19(1) guarantees to the citizen of India six freedoms, viz., of speech and expression, peaceful assembly or association, free movement, residence, and practicing any profession and carrying on any business.
These freedoms are necessary not only to promote certain basic rights of the citizens but also certain democratic values, and the oneness and unity of the country. Article 19 guarantees some of the basic values and natural rights inherent in a person.
A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27: 1950 SCR 88. Patanjali Shastri, J., observed that man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals.
However, the freedom guaranteed by article 19(1) are not absolute as right can be. Each of these right is liable to be controlled, curtailed and regulated to some extent by laws made by Parliament or State legislatures. Accordingly clauses (2) to (6) of article 19 lays down the grounds and purposes for which a legislature can impose reasonable restrictions on the rights guaranteed by articles 19(1)(a) to (g).
Unlike articles 14 and 21 the rights guaranteed under article 19 also not available to all persons. The right under article 19 can be claimed by citizens only. The word citizens refers to natural persons, who are entitled to citizenship under the law of the land. Citizens under article 19 mean only natural persons and not legal persons such as corporation or companies.
R.C. Cooper v. Union of India, MANU/SC/0074/1970 : AIR 1970 SC 1318: (1971) 1 SCR 512: (1970) 2 SCC 298 (Bank Nationalisation case). It was held that a shareholder, a depositor or a director is not entitled to move a petition for infringement of the rights of the company, unless by the action impugned by him, his rights are also infringed.
Bennett Coleman and Co. Ltd. v. Union of India, MANU/SC/0038/1972 : AIR 1973 SC 106: (1972) 2 SCC 788: 1973 (1) SCJ 177. The Court said that the fundamental rights of citizens are not lost when they associate to form a company. When the fundamental rights of shareholders are impaired by State actions their rights as shareholders are protected.
The Chairman, Railway Board v. Mrs. Chandrima Das, MANU/SC/0046/2000 : AIR 2000 SC 988: 2000 Cr LJ 1473: 2000 AIR SCW 649: 2000 (3) SCJ 1. Right to life under article 21 extends to a foreigner in India.
The restriction which may be imposed under any of the clauses must be reasonable restriction. The restrictions cannot be arbitrary. Hence a restriction to be constitutionally valid must satisfy the following two tests-
1. the restriction must be for the purpose mentioned in clauses (2) to (6), and
2. the restriction must be reasonable.
State of Madras v. V.G. Row, MANU/SC/0013/1952 : AIR 1952 SC 196: 1952 SCJ 253: 1952 Cr LJ 966: 1952 SCR 597. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.
Freedom of speech is the bulwork of democratic government. This freedom is essential for the proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty.
Article 19(1)(a) secures to every citizen the freedom of speech and expression. The freedom of speech and expression means the right to express one's convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. Freedom of speech and expression, just as equality clause and the guarantee of life and liberty has been very broadly construed by the Supreme Court right from the 1950's. It has been described as basic human right, a natural right.
Romesh Thappar v. State of Madras, MANU/SC/0006/1950 : AIR 1950 SC 124: 1950 SCJ 418: 51 Cr LJ 1514: 1950 SCR 594. Patanjali Shastri, C.J., observed that:
"Freedom of speech and of the press lays the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible".
Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621: 1978 (2) SCJ 312. Bhagwati, J., emphasesed in these words-
"Democracy is based essentially on free debate and open discussion for that is the only corrective of government action in a democratic setup. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential."
Prabhu Dutt v. Union of India, MANU/SC/0087/1981 : AIR 1982 SC 6: 1982 Cr LJ 148: (1982) 1 SCC 1: 1982 (1) SCJ 169: 1982 SCC (Cri) 41: (1982) 1 SCR 1184. The Supreme Court has held that the right to know news and information regarding administration of the government is included in the freedom of press.
The freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication.
Sakal Papers Ltd. v. Union of India, MANU/SC/0090/1961 : AIR 1962 SC 305: 1962 (2) SCJ 400: (1962) 3 SCR 842. The right to propagate one's idea is inherent in the conception of freedom of speech and expression.
Advertisements undoubtedly are form of speech because they bring activities to the notice of the public. Advertisement when it takes the form of commercial advertisement no longer falls within the concept of freedom of speech for the object of such advertisement is not the propagation of ideas-social, political or economic or furtherance of literature on human thought.
Hamdard Dawakhana v. Union of India, MANU/SC/0016/1959 : AIR 1960 SC 554 (563): 1960 Cr LJ 735: 1960 SCJ 611: (1960) 2 SCR 671. The advertisement in the instant case relater to commerce or trade and not to propagating of ideas and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of article 19(1)(a).
Tata Press Ltd. v. MTNL, MANU/SC/0745/1995 : (1995) 5 SCC 139: AIR 1995 SC 2438: 1995 (3) SCJ 571: 1995 AIR SCW 3602: JT 1995 (5) SC 647. It has been held that commercial speech (advertisement) is a part of the freedom of speech and expression granted under article 19(1)(a).
In India, freedom of the press is implied from the freedom of speech and expression guaranteed by article 19(1)(a). There is no special provision ensuring freedom of the press as such. The freedom of the press is regarded as a "species of the genus freedom of expression".
Sakal Papers v. Union of India, MANU/SC/0090/1961 : AIR 1962 SC 305: 1962 (2) SCJ 400: (1962) 3 SCR 842. It has been held in this case that article 19(1)(a) guarantees not only what a person circulates but also the volume of circulation. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression.
Bennett Coleman & Co. Ltd. v. Union of India, MANU/SC/0038/1972 : AIR 1973 SC 106: (1972) 2 SCC 788: 1973 (1) SCJ 177. The Court maintained that the freedom of the press embodies the right of the people to speak and express. The freedom of speech and expression is not only in the volume of circulation but in the volume of news and views. The press has the right of free publication and their circulation without any obvious restraint on publication. In the words of Court "freedom of the press is both qualitative and quantitive. Freedom lies both in circulation and in context".
Indian Express Newspaper (Bom) Pvt. Ltd. v. Union of India, AIR 1986 SC 515: (1985) 1 SCC 641: (1985) 2 SCR 287. The fundamental principle involved was the 'people's right to know'. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of the people in the administration. The court noted that with a view to checking malpractices interfering with the free flow of information, democratic constitutions world over make provisions guaranteeing freedom of speech and expression and laying down the limits of interference therewith.
Ajay Goswami v. Union of India, MANU/SC/5585/2006 : AIR 2007 SC 493: 2007 AIR SCW 15: (2007) 1 SCC 143: (2006) 14 Scale 317: 2007 (1) SCC (Cri) 298. The Court held that in order to shield minors and children the State should not forget that the same content of a newspaper might not be offensive to the sensibilities of adult men and women.
The freedom of speech and expression means the right to express one's convictions and opinion freely by word of mouth, writing, printing, picture or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression.
People's Union for Civil Liberties v. Union of India, MANU/SC/0149/1997 : AIR 1997 SC 568: 1997 AIR SCW 113: JT 1997 (1) SC 288: MANU/SC/0149/1997 : (1997) 1 SCC 301: 1996 (4) SCJ 565. Telephone tapping violates article 19(1)(a) unless it comes within grounds of restriction under article 19(2).
National Anthem, National Flag and National Song are secular symbol of the nationhood. They represent the supreme collective expression of commitment and loyalty to the nation as well as patriotism for the country.
Bjoe Emmanuel v. State of Kerala, MANU/SC/0061/1986 : (1986) 3 SCC 615: AIR 1987 SC 748: 1986 JT 115: 1986 (3) Supreme 344: 1986 (3) SCJ 395 (National Anthem case). The Supreme Court has held that no person can be compelled to sing the National Anthem, if he has genuine conscientious objections based on his religious faith.
Union of India v. Naveen Jindal, MANU/SC/0072/2004 : AIR 2004 SC 1559: 2004 AIR SCW 705: JT 2004 (2) SC 1: MANU/SC/0072/2004 : (2004) 2 SCC 510: (2004) 1 SCALE 677: 2004 (1) Supreme 880. The Supreme Court considered in detail that right to speech and expression under article 19(1)(a) includes flying the National Flag.
The right to speech implies the right to silence. It implies freedom, not to listen, and not to be forced to listen. The right comprehends the freedom to be free flow what one desires to be free from.
Noise Pollution (N) In Re, MANU/SC/0415/2005 : AIR 2005 SC 3136: 2005 AIR SCW 3525: JT 2005 (6) SC 210: MANU/SC/0415/2005 : (2005) 5 SCC 733: 2005 (5) SCJ 165: (2005) 5 SCALE 475: 2005 (5) Supreme 77. A loudspeaker forces a person to hear what he wishes not to hear. The use of a loudspeaker may be incidental to the exercise of the right but, its use is not a matter of right or part of the rights guaranteed by article 19(1).
Union of India v. Association for Democratic Reforms, MANU/SC/0394/2002 : AIR 2002 SC 2112: 2002 AIR SCW 2186: JT 2002 (4) SC 501: MANU/SC/0394/2002 : (2002) 5 SCC 294: (2002) 4 SCALE 297: 2002 (4) Supreme 1. In this case Supreme Court held that voters have fundamental rights to know about their candidates. It has been held that the amended Electoral Reforms law passed by Parliament is unconstitutional as being violative of citizen's right to know under article 19(1)(a).
Jyoti Basu v. Debi Ghosal, MANU/SC/0144/1982 : AIR 1982 SC 983: 1982 UJ (SC) 186: (1982) 1 SCC 691: 1982 (1) SCJ 245. It was held by the Apex Court that though right to elect is fundamental to the democracy. It is neither a fundamental right nor a common law right. It is pure and simple a statutory right.
Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621: 1978 (2) SCJ 312. Justice Bhagwati held that freedom of speech and expression guaranteed by article 19(1) is exercisable not only in India but outside as well. The right to travel abroad is not specifically named as fundamental right but it is an integral part of fundamental rights and partakes the basic structure of the Constitution.
K.A. Abbas v. Union of India, MANU/SC/0053/1970 : AIR 1971 SC 481: (1971) 2 SCR 446: 1971 (2) SCJ 242. The Supreme Court has upheld censorship of films under article 19(1)(a) on the ground that films have to be treated separately from other forms of art and expression because motion picture is able to stir up emotions more deeply than any other product of art.
Secretary Ministry of Information and Broadcasting v. Cricket Association of West Bengal, MANU/SC/0246/1995 : (1995) 2 SCC 161: AIR 1995 SC 1236: 1995 AIR SCW 1856. It was held by the Supreme Court that right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by article 19(1)(a). A citizen has a right to use best means of receiving or importing information and as such have an access to telecasting subject to limitations on account of the use of public property.
State of Uttar Pradesh v. Raj Narain, MANU/SC/0032/1975 : AIR 1975 SC 865: (1975) 4 SCC 428: (1975) 3 SCR 333. Mathew J., observed "The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wory when secrecy is claimed for transactions which can at any role have no repercussion on public security".
The Right to Information Act, 2005 repeals the Freedom of Information Act, 2002 which is passed by the NDA Government. The object of the Act is to promote openness, transparency and accountability in administration.
S.P. Gupta v. President of India, MANU/SC/0080/1981 : AIR 1982 SC 149: 1981 Supp SCC 87: (1982) 2 SCR 365. The right to know, receive and import information has been recognised within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose.
Within certain limits, picketing or demonstration may be regarded as the manifestation of one's freedom of speech and expression. Peaceful picketing is free speech. Non-violent acts like words, picketing and demonstration is a non-violent act of persuasion.
Communist Party of India (M) v. Bharat Kumar, AIR 1998 SC 184: 1997 AIR SCW 4147: (1998) 1 SCC 201: (1997) 7 SCALE 21: 1997 (9) Supreme 415: 1998 (1) UJ (SC) 60. A full Bench of the Kerala High Court has declared 'Bandhs" organised by political parties from time-to-time as unconstitutional being violative of the fundamental rights of the people. A call for bandh is clearly deferent from a call for general strike or hartal. There is destruction of public property during a bandh. The High Court has also directed the State and all its law enforcement agencies to do all that may be necessary to give effect to the court order.
While it is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restriction on this freedom for the maintenence of social order. No freedom can be absolute or completely unrestricted. Accordingly, under article 19(2), the State may make a law imposing reasonable restrictions.
Clause (2) of article 19 specifies the limits upto which the freedom of speech and expression may be restricted. It enables the legislature to impose reasonable restrictions on the right to free speech under the following heads-
(1) Security of the State;
(2) Friendly relation with foreign States;
(3) Public Order;
(4) Decency and Morality;
(5) Contempt of Court;
(6) Defamation;
(7) Incitement to an offence;
(8) Sovereignty and integrity of India.
Freedom of assembly is an essential element in a democratic government. In the words of Chief Justice Waite of the Supreme Court of America "the very plea of a government, republican in form, implies a right on the part of citizens to meet peaceably for consultation in respect of public affairs". The purpose of public meetings being the education of the public and the formation of opinion on religious, political, economic or social problems, the right of assembly has a class affinity to that of free speech under clause (1)(a).
Article 19(1)(b) guarantees to the citizen of India the right to assemble peaceably and without arms. The Constitution secures this right to the citizen subject to the two limitations.
(1) Assembly must be unarmed;
(2) It must be peaceful i.e., it must not be tumultuous or riotous in character.
Further under clause (3) the State may impose reasonable restrictions as may be necessary-
(1) In the interest of public order;
(2) In the interest of sovereignty and integrity of India.
Babulal Parate v. State of Maharashtra, MANU/SC/0155/1961 : AIR 1961 SC 884: (1961) 2 Cr LJ 16: 1961 (1) SCJ 524: (1961) 3 SCR 423. The right guaranteed under article 19(1)(b) includes right to take out procession through public roads subject of course to directions of the Magistrate so as not to be a threat to public peace and order.
Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, MANU/SC/0583/1972 : AIR 1973 SC 87: 1973 Cr LJ 204: (1973) 1 SCC 227: 1973 SCC (Cri) 280. The Supreme Court upheld the provisions as reasonable restriction in the interest of public order but the rule made under the Act which empowered the commissioner to refuse permission was struck down as ultra vires section 33(1)(o) on the ground that section 33(1)(o) gives power to regulate meetings and processions but does not authorise to prohibit all meetings and processions.
Article 19(1)(c) guarantees to the citizens of India the right to form associations or unions. Under article 19(4), reasonable restriction in the interest of public order or morality or sovereignty and integrity of India may be imposed this right by law.
The right to form associations is the very lifeblood of democracy. Without such a right political parties cannot be formed and without such parties a democratic and parliamentary form of government cannot be run properly. The right to form an association necessarily implies that the persons forming association have also right to continue to be associated with only those whom they voluntarily admit in their association.
State of Madras v. V.G. Row, MANU/SC/0013/1952 : AIR 1952 SC 196: 1952 SCJ 253: 1952 Cr LJ 966: 1952 SCR 597. The Supreme Court declared that the test of reasonableness should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases.
Damyanti Naranga v. Union of India, MANU/SC/0726/1971 : AIR 1971 SC 966: (1971) 3 SCR 840: 1971 UJ (SC) 409. In this case, it has been held that the law in question did not merely regulate the affairs of the society, it altered its composition. Any law altering the composition of the association compulsorily will be a breach of the right to form the association of the original members guaranteed under article 19(1)(c) such a law is not protected under article 19(4).
Ous Kutilingal Achudan Nair v. Union of India, MANU/SC/0057/1975 : AIR 1976 SC 1179: 1976 UJ (SC) 43: (1976) 1 SCWR 79: MANU/SC/0057/1975 : (1976) 2 SCC 780: (1976) 2 SCR 769: 1976 (2) SCJ 453. The Question arose as to whether the chowkidars, barbers, carpenters, mechanics, tailors, bootmakers, etc., in the armed forces can be prevented by Parliament from forming associations or unions in exercise of their fundamental right under article 19(1)(c).
The Supreme Court held that although these employees are non-combatant and are in some matters, governed by civil service rules, yet they are integral part of the armed forces and their duty is to accompany the Armed Personnel on active service or in camp or on march. Therefore, the Central Government is competent to make rules restarting on curtailing their fundamental rights under article 19(1)(c).
Delhi Police Non-Gazetted Karamchari Sangh v. Union of India, MANU/SC/0068/1986 : AIR 1987 SC 379: 1986 JT 920: (1987) 1 SCC 115: 1987 (1) Supreme 9: (1987) 1 UJ (SC) 234: 1987 (1) SCJ 144. The Supreme Court has upheld the validity of the
Police-Force (Restriction of Rights) Act, 1966, which impasses certain restrictions on the enjoyment of rundamental rights on members of the police force. The Act has been enacted under article 33 but it is also valid under article 19(4).
Tika Ramji v. State of Uttar Pradesh, MANU/SC/0008/1956 : AIR 1956 SC 676: 1956 SCJ 625: 1956 SCR 393. The Supreme Court held that assuming that right to form association implies a right not to form association, it does not follow that the negative right must be regarded as fundamental right. The court, thus left the question in a doubtful state of authority.
Article 19(1)(d) guarantees to all citizens of India the right "to move freely throughout the territory of India." The right to move means the right of locomotion and the qualifying adverb 'freely' connotes that the freedom to move is without a restriction and is absolute i.e., to move wherever one likes, whenever one likes, however, subject to any valid law enacted under clause (5).
These constitutional provisions guarantee to the Indian citizen the right to go or to reside wherever they like within the Indian territory. A citizen can move freely from one State to another, or from one place to another within a State. These rights underline the concept that India is one unit so far as the citizens are concerned.
N.B. Khare v. State of Delhi, MANU/SC/0004/1950 : AIR 1950 SC 211: 1950 SCJ 328: 1950 SCR 519. The petitioner was served with an order of externment by the DM, Delhi to remove himself immediately from Delhi district and not to return there for a period of three months. The order was made under the East-Punjab Safety Act, 1949.
The Supreme Court held that the mere fact that the power to make the order of externment was given to the State Government or District Magistrate where satisfaction was final, did not make the restriction unreasonable because the desirability of passing such an order in emergency had to be left to an officer.
Kharak Singh v. State of Uttar Pradesh, MANU/SC/0085/1962 : AIR 1963 SC 1295: (1963) 2 Cr LJ 329: (1964) 1 SCR 332: 1964 (2) SCJ 107. The Court ruled by majority that no aspect of police surveillance fell within the scope of article 19(1)(d). The purpose of secret picketing was only to identify the visitors to the suspect so that police might have some idea of his activities and this did not affect his right of movement. It was argued that if a person suspected that his movements were being watched by the police, it would induce in him a psychological inhibition against movement and this would infringe article 19(1)(d) which should restrain a person's freedom.
Ajay Canu v. Union of India, MANU/SC/0010/1988 : (1988) 4 SCC 156: AIR 1988 SC 2027: JT 1988 (3) SC 523. A rule was made under the Motor Vehicles Act requiring compulsory wearing of helmet by a person driving a scooter or a motorcycle. The rule was challenged as infringing the free movement of the driver of a two-wheeler guaranteed under article 19(1)(d) but the court negavited that the rule has been framed for the benefit and welfare of and safe journey by a person driving a two-wheeler vehicle. The rule is made to prevent accident and not to curtail freedom of movement.
Rajneesh Kapoor v. Union of India, MANU/SC/8567/2006 : AIR 2007 SC 204. It has been held that the requirement of wearing helmet is not a restriction on free movement of citizen, the paramount objective of wearing helmet is to save life.
State of Uttar Pradesh v. Kaushilya, MANU/SC/0091/1963 : AIR 1964 SC 416: (1964) 1 SCWR 276: (1964) 4 SCR 1002. The validity of section 20 of the U.P. Suppression of Immoral Traffic in Women and Girls Act, 1956 was challenged. Under that section, Magistrate could compel a prostitute to remove herself from the place where she resided or frequented. He could also prohibit her from re-entering the place without his permission. Though it affects right to move throughout the territory of India and to reside and settle anywhere within the territory of India guaranteed by article 19(1)(d), yet the section was upheld as constitutional because the restriction was considered to be reasonable in the interest of the general public.
The State may under clause (5) of article 19 impose reasonable restrictions on the freedom of movement on two grounds-
(i) in the interest of general public;
(ii) for the protection of the interest of Scheduled Tribes.
The purpose of this clause is also to remove internal barriers within the territory of India so as to enable every citizen to travel freely and settle down in any part of a State or union territory. This freedom is subject to reasonable restrictions in the interests of general public or for the protection of the interest of any Scheduled Tribe.
State of Uttar Pradesh v. Koushilya, MANU/SC/0091/1963 : AIR 1964 SC 416: (1964) 1 SCWR 276: (1964) 4 SCR 1002. Prostitutes may be restricted to carry on their trade within a specified area and accordingly may be required to reside in or to remove from particular areas.
Hasan Ali Raihani v. Union of India, MANU/SC/8021/2006 : AIR 2006 SC 1714: 2006 Cr LJ 2106: 2006 AIR SCW 1572: MANU/SC/8021/2006 : (2006) 3 SCC 705: 2006 SCJ 803: (2006) 3 SCALE 293: 2006 SCC (Cri) 33: 2006 (3) Supreme 135. When the residence visa permit of a person who entered India on the basis of a valid permit was cancelled, the Supreme Court held that having regard to the fact that he has entered the country legally, the competent authority must inform him of the reasons for his proposed deportation.
Dhan Bahadur Gharti v. State, AIR 1953 Ass 61, A custom prevailing in a tribal area that no Nepali or foreigner would be allowed to stay in the area without the permission of the Deputy Commissioner, was held valid under article 19(5) as being a reasonable restriction in the interests of the protection of the Scheduled Tribes.
Article 19(1)(g) guarantees to all citizens the right to practise any profession, or to carry on any occupation, trade or business. Clause (6) provides that nothing in sub-clause (g) shall affect the operation of any existing law insofar as it imposes or prevent the State from making any law imposing in the interest of the general public, reasonable restrictions on the exercise of such right. Nothing in clause (g) shall affect the operation of any existing law relating to professional or technical qualification for practising any profession or carrying on any business or occupation and law relating to State monopoly.
State of Bombay v. R.M.D. Chamarbaugwalla, MANU/SC/0019/1957 : AIR 1957 SC 699: 1957 SCJ 607. It was contended on behalf of the respondent that even a criminal or immoral activity, if it yield profit on income, must be treated as trade or business protected by article 19(1)(g). The Supreme Court held that crime cannot be a business.
State of Uttar Pradesh v. Kartar Singh, MANU/SC/0060/1964 : AIR 1964 SC 1135: (1964) 1 SCWR 435: (1964) 2 Cr LJ 229: 1964 (2) SCJ 666. It was held that there is no fundamental right to carry on trade in adulterated food stuffs. Similarly, no one can claim fundamental right to trade in smuggled goods.
Sadan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988: (1989) 4 SCC 155: (1989) 2 SCR 1038. The Supreme Court held that hawkers have a fundamental right to carry on trade on pavement of roads but subject to reasonable restrictions. The Court observed that the word 'occupation' has a wide meaning such as any regular work, profession, job, principal activity, employment, business or calling in which an individual is engaged.
Khoday Distilleries v. State of Karnataka, MANU/SC/0572/1995 : (1995) 1 SCC 574: AIR 1996 SC 911: 1995 AIR SCW 313: JT 1994 (6) SC 588. The Supreme Court concluded that a citizen has no fundamental right to trade or business in intoxicating liquors. Article 47 of the Constitution directs the State to endeavour to bring about prohibition of intoxicating liquors and all other drugs injurious to health.
T.M.A. Pai Foundation v. State of Karnataka, MANU/SC/0905/2002 : AIR 2003 SC 355: 2002 AIR SCW 4957: JT 2002 (9) SC 1: MANU/SC/0905/2002 : (2002) 8 SCC 481: (2002) 8 SCALE 1: 2002 (8) Supreme 62. The court held that the establishment and running of an educational institution where a large number of persons are employed as teachers and administrative staff and an activity is carried on which results in the imparting of knowledge to students, must necessarily be regarded as an occupation even if these is not for the purpose of profit generation.
Kuldeep Singh v. Government of N.C.T. Delhi, MANU/SC/8215/2006 : AIR 2006 SC 2652: 2006 AIR SCW 3627: (2006) 5 SCC 702: 2006 (7) SCJ 342: (2006) 6 SCALE 588: 2006 (5) Supreme 742. The Supreme Court held that the matter relating to grant of licence for dealing in liquor is within the exclusive domain of the State. If the State had the right to adopt a policy decision it indisputably had a right to vary amend or repeal the same.
Excel Wear v. Union of India, MANU/SC/0263/1978 : AIR 1979 SC 25: (1978) 4 SCC 224: 1979 (1) SCJ 292: (1979) 1 SCR 1009: (1978) 2 SCWR 382. The Court emphasized that while there may be greater emphasis on nationalisation and State ownership of industries, private ownership of industries is recognised. Private enterprise forms a large portion of Indian economic structure. Socialism cannot go to the extent of ignoring the interest of all such persons.
1. No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
2. No person shall be prosecuted and punished for the same offence more than once.
3. No person accused of any offence shall be compelled to be a witness against himself.
An ex post facto law is a law which imposes penalties retrospectively that is, upon acts already done or which increases the penalty for the past acts. The right as secured by clause (1) corresponds to the provisions against ex post facto law of the American Constitution which declared that no ex post facto laws shall be passed. The ex post facto law are laws which nullified and punished what had been lawful when done.
Article 20(1) has two parts. Under the first part, no person is to be convicted of an offence except for violating a 'law in force' at the time of the commission of the act charged as an offence. A person is to be convicted for violating a law in force when the act charged is committed.
Pareed Lubha Muhammed Lubha v. K.K. Neelambaran, MANU/KE/0064/1967 : AIR 1967 Ker 155: ILR (1967) 1 Ker 110: 1967 Cr LJ 891: 1967 Ker LJ 403. It was held that if the non-payment of the Panchayat Tax was not an offence on the day it fell due, the defaulter could not be convicted for the omission to pay under a law passed subsequently even if it covered older dues.
Sakshi v. Union of India, MANU/SC/0523/2004 : AIR 2004 SC 3566: 2004 Cr LJ 2881: 2004 AIR SCW 3449: 2004 (3) Crimes 177: MANU/SC/0523/2004 : (2004) 5 SCC 518: (2004) 6 SCALE 15: 2004 SCC (Cri) 1645: 2004 (5) Supreme 68. Article 20 relates to the constitutional protection given to persons who are charged with a crime before a criminal court. The protection under clause (1) is available only against conviction on sentence for a criminal offence under ex post facto law and not against the trial.
Hathisingh Mfg Co., Ltd., Ahmedabad v. Union of India, MANU/SC/0303/1960 : AIR 1960 SC 923: 1961 (1) SCJ 22: (1960) 3 SCR 528. Article 20(1) does not bar a civil liability being imposed retrospectively. An Act passed in June, 1957, imposed on the employers, closing their undertaking, a liability to pay compensation to their employees since November 28, 1956. Their liability could be enforced by coercive process leading to imprisonment in case of failure to discharge it. The Supreme Court held that the liability imposed by the law was a civil liability which was not an offence and so article 20(1) could not apply to the liability for the period of November, 28, 1956 to June, 1957.
The second part of article 20(1) immunize a person from a penalty greater than what he might have incurred at the time of his committing the offence. Thus a person cannot be made to suffer more by an ex post facto law than what he would be subjected to at the time he committed the offence.
Kedar Nath v. State of West Bengal, MANU/SC/0082/1953 : AIR 1953 SC 404: 1953 Cr LJ 1621: 1953 SCJ 580: 1954 SCR 30. The accused committed an offence in 1947, which under the Act then in force was punishable by imprisonment, or fine or both. The Act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the amended Act.
Sarla Mudgal, President, Kalyani v. Union of India, MANU/SC/0290/1995 : (1995) 3 SCC 635: AIR 1995 SC 1531: 1995 AIR SCW 2326: 1995 Cr LJ 2926: JT 1995 (4) SC 331: MANU/SC/0290/1995 : (1995) 3 SCC 635: 1995 SCC (Cri) 569. It is settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because the court does not legislate but only interprets an existing law.
T. Barai v. Henry An Hoe, MANU/SC/0123/1982 : (1983) 1 SCC 177: AIR 1983 SC 150: 1983 Cr LJ 164: 1983 SCC (Cri) 143: 1983 UJ (SC) 132 (2): (1983) 1 SCR 905. It has been held that the accused could take advantage of the beneficial provision of the Central Amendment Act and thus he had the benefit of the reduced punishment.
Rattanlal v. State of Punjab, MANU/SC/0072/1964 : AIR 1965 SC 444: 1965 (1) SCJ 779: (1965) 1 Cr LJ 360: (1964) 7 SCR 676: (1964) 2 SCWR 161. An ex post facto law which only mollifies the rigours of a criminal law is not within the prohibition of article 20(1). An accused should have the benefit of a retrospective or retroactive criminal legislation reducing punishment for an offence.
When a person has been convicted for an offence by a competent court, the conviction serves as a bar to any further criminal proceedings against him for the same offence. The idea is that as one ought to be punished twice for one and the same offence. If a person is indicted for the same offence in a court he can plead as a complete defence. He can take the plea of autrefois acquit or autrefois convict.
This principle is based on the English Maxim "nemo debet vis vexari" which means that a man may not be put twice in peril for the same offence. But under article 20(2) the protection against double punishment is given only when the accused has not only been prosecuted but double punishment is given only when the accused has not only been prosecuted but also punished and is sought to be prosecuted second time for the same offence.
Maqbool Hussain v. State of Bombay, MANU/SC/0062/1953 : AIR 1953 SC 325: 1953 SCJ 456: 1953 Cr LJ 1432: 1953 SCR 730. The Supreme Court held that sea custom authorities were not a court or judicial tribunal and the adjudging of confiscation under the Sea Custom Act, did not constitute a judgment of judicial character necessary to take the plea of the double jeopardy. Hence the prosecution under the Foreign Exchange Regulation Act, is not barred.
S.A. Venkataraman v. Union of India, MANU/SC/0133/1954 : AIR 1954 SC 375: 1954 Cr LJ 993: 1954 SCJ 461: 1954 SCR 1150. The constitutional right guaranteed by article 20(2) against double jeopardy can be successfully invoked only where the prior proceedings on which reliance is placed are of a criminal nature instituted or continued before a court or law or a tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
A.A. Mulla v. State of Maharashtra, MANU/SC/0339/1997 : AIR 1997 SC 1441: 1997 Cr LJ 353: 1997 AIR SCW 63: JT 1996 (9) SC 551: (1996) 11 SCC 606: 1997 SCC (Cri) 305. The appellants were charged with section 409, IPC and section 5 of the Prevention of Corruption Act, for making false panchnama disclosing of recovery of 90 gold biscuits although according to prosecution case the appellant had recovered 99 gold biscuits. They were tried for retaining 9 gold biscuits before the special judge but appellants were acquitted on the ground that the prosecution had failed to prove misappropriation. The appellants were again tried under the Customs Act and FERA. The appellants challenged the validity of their second trial on the ground that it was violation of article 20(2) of the Constitution. It was held that the second trial was not barred as not only the ingredients of the offence of two trials were different but the factual situation of offences in the first and the second trial were also different.
State of Bombay v. S.L. Apte, AIR 1961 SC 678: 1961 (1) SCJ 685: (1961) 1 Cr LJ 725: (1961) 3 SCR 107. The respondents were convicted and sentenced under section 409 of the IPC and section 105 of the Insurance Act, by the Magistrate. The Supreme Court held that the second persecution was not for the same offence and, therefore article 20(2) was not attracted.
State of Rajasthan v. Hat Singh, 2003 AIR SCW 217: MANU/SC/0006/2003 : AIR 2003 SC 791: 2003 Cr LJ 884: 2003 (1) Crimes 356: JT 2003 (1) SC 77: (2003) 2 SCC 152: (2003) 1 SCR 38: (2003) 1 SCALE 43: 2003 SCC (Cri) 451: 2003 (1) Supreme 215: 2003 (1) UJ (SC) 407. It has been held that the offence of glorification of Sati under section 5 of the Rajasthan Sati Prevention Act, 1907, is different from offence of violation of prohibitory order under section 6 of the Act.
State (NCT of Delhi) v. Navjot Sandhu, MANU/SC/0465/2005 : AIR 2005 SC 3820: 2005 Cr LJ 3950: 2005 AIR SCW 4148: 2005 (3) Crimes 87: 2005 (6) SCJ 210: (2005) 6 SCALE 177: 2005 SCC (Cri) 1715: 2005 (5) Supreme 414. The Supreme Court held that ingredients of offence under section 302 IPC and sections 3(2) and 3(3) of POTA are substantially different and that an offence falling within ambit of section 3(1) of POTA may not be squarely covered by the offence under section 300 of the IPC. Therefore, article 20(2) was held inapplicable.
Jitendra Panchal v. Intelligence Officer, NCB, MANU/SC/0123/2009 : AIR 2009 SC 1938: 2009 AIR SCW 1559: 2009 (1) Crimes 338: MANU/SC/0123/2009 : (2009) 3 SCC 57: (2009) 2 SCALE 202: 2009 (1) SCC (Cri) 986. The offence for which the accused was tried and convicted in a foreign country (USA) was in respect of a charge of conspiracy to possess a contraband substance with the intention of distributing the same punishable under US law. The offence for which he was tried in India was relating to the impartation of the contraband article from Nepal into India and exporting the same for sale in USA punishable under sections 3 and 4 of the Penal Code read with section 3(38) of the General Clauses Act. The offences for which the appellant was tried and convicted in the USA, and for which he is now being tried in India are distinct and separate and do not therefore, attract the provisions of article 20(2) of the Constitution.
Mukhtiar Ahmed Ansari v. State (NCT of Delhi), MANU/SC/0309/2005 : AIR 2005 SC 2804: 2005 Cr LJ 2569: 2005 AIR SCW 2379: 2005 (2) Crimes 107: JT 2005 (4) SC 503: (2005) 5 SCC 258: 2005 (4) SCJ 526: (2005) 4 SCALE 269: 2005 SCC (Cri) 1037: 2005 (3) Supreme 370. In connection with an incident of kidnapping and extortion the accused was booked under the Arms Act as well as under TADA. He was also charged in kidnapping case along with two brothers. He was acquitted in kidnapping case. The Supreme Court set aside the sentence passed against the accused under TADA as also under the Arms Act on the ground that once the accused was acquitted in kidnapping case the doctrine of autrefois acquit get attracted.
Clause (3) of article 20 declares that "person accused of an offence shall be compelled to be a witness against himself." This provision embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated in the federal Constitution. The characteristic features of this principle are-
(1) That the accused is presumed to be innocent;
(2) That it is for the prosecution to establish his guilt;
(3) That the accused need not make any statement against his Will.
On analysis, the provision will be found to contain the following components-
(i) It is a right available to a person "accused of an offence";
(ii) It is a protection against 'compulsion' to be a witness;
(iii) It is protection against such 'compulsion' resulting in his giving evidence 'against himself'.
The privilege under clause (3) is confined only to the accused i.e., a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in the prosecution.
M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, MANU/SC/0018/1954 : AIR 1954 SC 300: 1954 Cr LJ 865: 1954 SCJ 428: 1954 SCR 1077. The Supreme Court taking a broad view of article 20(3) stated that to limit article 20(3) to the oral evidence of a person standing trial for an offence is to confine the content of the constitutional guarantee to its barely 'literal import', and so to limit article 20(3) would be to rob the guarantee of its substantial purpose and to miss the substance. It cover not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes.
Nandini Satpathy v. P.L. Dani, MANU/SC/0139/1978 : AIR 1978 SC 1025: 1978 Cr LJ 968: (1978) 2 SCC 424: 1978 SCC (Cri) 236. The court held that the expression "accused of an offence" no doubt includes a person formally brought into police diary as an accused person but it also includes a suspect. Adverting to several of its earlier decisions, the court did not agree with the restrictive view of the expression 'accused of an offence' taken therein and extended the application of article 20(3) to police interrogations.
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat, MANU/SC/0473/1991 : (1991) 4 SCC 406: AIR 1991 SC 2176: 1991 Cr LJ 3086: 1991 AIR SCW 2419: 1991 (3) Crimes 232: JT 1991 (3) SC 617: (1991) 3 SCR 936. It has been held that mere issue of notice on pendency of contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemnor.
"To be a witness" means making of oral or written statement in or out of court by a person accused of an offence. It means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in a court or otherwise. Such statements are not confined to confession but also cover incriminatory statements i.e., to the statements which have a reasonable tendency strongly to point out to the guilt of the accused.
M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, MANU/SC/0018/1954 : AIR 1954 SC 300: 1954 Cr LJ 865: 1954 SCJ 428: 1954 SCR 1077. The compulsory taking of finger impressions or specimen handwriting of an accused would come within the mischief of article 20(3).
State of Bombay v. Kathi Kalu Oghad, MANU/SC/0134/1961 : AIR 1961 SC 1808: (1961) 2 Cr LJ 856: (1962) 3 SCR 10. The court held that "to be a witness" in article 20(3) means to impart knowledge about relevant facts by an oral statement or statement in writing made as given in court or otherwise by giving of thumb impression or impression of foot, palm, or fingers or specimen writing or signature or showing parts of body by way of identification are not included in the expression 'to be witness' in article 20(3).
Parshadi v. Uttar Pradesh, MANU/SC/0100/1956 : AIR 1957 SC 211: 1957 Cr LJ 328. An accused who was charged with committing of a murder stated to the police that he would give clothes of the deceased which he had placed in a pit and thereafter he dug out the pit in presence of witnesses and took out the clothes which were identified as the clothes belonging to the deceased. It was held that the statement of the accused to the police is admissible.
In order to bring the evidence within the inhibition of article 20(3), it must be shown that not only the person making the statement was an accused at the time of making the statement and it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make the statement.
Nandini Satpathy v. P.L. Dani, MANU/SC/0139/1978 : AIR 1978 SC 1025: 1978 Cr LJ 968: (1978) 2 SCC 424: 1978 SCC (Cr) 236. In this case the Court has widened the scope of compulsion and held that compulsory testimony is evidently procured not merely by physical threats or violence, but also by psychic, torture, interrogative proxility, overbearing, intimidating methods and the like.
Kalawati v. State of Himachal Pradesh, MANU/SC/0030/1953 : AIR 1953 SC 131: 1953 Cr LJ 668: 1953 SCJ 144: 1953 SCR 546. The Supreme Court has held that article 20(3) does not apply at all to a case where the confession is made by an accused without any inducement, threat or promise. Similarly retracted confession although they have little probative value, are not repugnant to this clause.
Mohd. Dastagir v. State of Madras, AIR 1980 SC 756: 1960 Cr LJ 1159: 1960 SCJ 726: (1960) 3 SCR 116. The Supreme Court has held that the accused was not compelled to produce the notes as no duress was applied on him to produce the notes. The appellant was not an accused at the time the currency notes were seized from him.
Amrit Singh v. State of Punjab, MANU/SC/8642/2006 : AIR 2007 SC 132: 2007 Cr LJ 298: 2006 AIR SCW 5712: 2006 (4) Crimes 380: (2006) 11 SCALE 309: 2007 (2) SCC (Cri) 397: 2006 (8) Supreme 710. It has been held that asking an accused of his hair for the purpose of identification amounts to testimonial compulsion. The accused has right to refuse to give specimen of his hair for the purpose of identification. He can not be made witness against himself in view of article 20(3) of the Constitution.
No person shall be deprived of his life or personal liberty except according to procedure established by law.
A.K. Gopalan v. Union of India, MANU/SC/0012/1950 : AIR 1950 SC 27: 1950 SCJ 174: 51 Cr LJ 1383: 1950 SCR 88. In that case the petitioner A.K. Gopalan, Communist leader was detained under the Preventive Detention Act, 1950 the petitioner challenged the validity of his detention under the Act on the ground. That it was violative of his right to freedom of movement under article 19(1) which is the very essence of personal liberty guaranteed by article 21 of the Constitution. He argued that the words "personal liberty" includes the freedom of movement also and therefore the Preventive Detection Act, 1950 must also satisfy the requirement of article 19(5).
The Supreme Court by majority held that the 'personal liberty' in article 21 means nothing more than the liberty of the physical body, that is, freedom from arrest and detention without the authority of law. According to Prof. A.V. Diecy "Personal liberty means freedom from physical restraint and coercion which is not authorised by law".
Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621: 1978 (2) SCJ 312. The Supreme Court overruled the Gopalan's case and Justice Bhagwati observed - "The expression personal liberty in article 21 is of widest amplitude and it covers a variety of rights which go to constitute the fundamental liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under article 19".
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: 1981 Cr LJ 306: (1981) 1 SCC 608: 1981 SCC (Cri) 212: 1981 (2) SCJ 18: (1981) 2 SCR 516. Bhagwati J. stated that right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms freely moving about and mixing and mingle with fellow human beings.
Bandhua Mukti Morcha v. Union of India, MANU/SC/0051/1983 : AIR 1984 SC 802: (1984) 3 SCC 161. It is the fundamental right of everyone in this country to live with human dignity, free from exploitation. This right to live with human dignity enshrined article 21 derives its life breath from the directive principles of state policy.
Peoples Union for Democratic Rights v. Union of India, MANU/SC/0038/1982 : AIR 1982 SC 1473: MANU/SC/0038/1982 : AIR 1982 SC 1473: 1982 UJ (SC) 553: MANU/SC/0314/1982 : (1982) 2 SCC 494: (1982) 2 SCWR 202 (Asiad Project Case). The Supreme Court has held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and is violative of article 21 of the Constitution.
Kharak Singh v. State of Uttar Pradesh, MANU/SC/0085/1962 : AIR 1963 SC 1295: (1963) 2 Cr LJ 329: (1964) 1 SCR 332: 1964 (2) SCJ 107. It was held that the term personal liberty in article 21 includes all varieties of rights which make-up the personal liberties of man other than those mentioned in article 19(1).
Satwant Singh Sawhney v. D. Ramarathnam, A.P.O. New Delhi, MANU/SC/0040/1967 : AIR 1967 SC 1836: 1968 (1) SCJ 178: (1967) 3 SCR 525. It was held that personal liberty in article 21 includes right of locomotion. It does not include right to move throughout the territory of India as it is expressly guaranteed by article 19 but right to go abroad is included in article 21.
Neeraja Choudhary v. State of Madhya Pradesh, MANU/SC/0060/1984 : AIR 1984 SC 1099: (1984) 3 SCC 243: 1984 (2) Crimes 511. The Supreme Court observed that it is the plaints requirement of articles 21 and 23 that the bonded labour should not only be identified and released but also suitably rehabilitated.
Olga Tellis v. Bombay Municipal Corporation, MANU/SC/0039/1985 : AIR 1986 SC 180: (1985) 3 SCC 545. The Supreme Court held that if there is an obligation upon the state to secure to citizens adequate means to livelihood and right to work.
Delhi Transport Corporation v. DTC. Mazdoor Congress, MANU/SC/0031/1991 : AIR 1991 SC 101: JT 1990 (3) SC 725: 1991 SCC (Lands) 1213: (1991) Supp 1 SCC 600. The Supreme Court held that right to life includes right to livelihood and therefore right to livelihood cannot hang on to the fancies of individuals in authority. Deprivation of livelihood must be through procedure prescribed by law which must be just fair and reasonable and not fanciful, oppressive or at vagary.
Chandra Rajakumari v. Police Commissioner, Hyderabad, MANU/AP/0153/1998 : AIR 1998 AP 302: 1998 (1) Andh LD 810: 1998 (1) Andh LT 329. It has been held that the right to live with human dignity or decency is included in article 21 and therefore, holding of beauty contest is repugnant to dignity or decency of women and offends article 21 of the Constitution.
Peoples Union for Civil Liberties v. Union of India, (2003) 3 SCALE 263: MANU/SC/0234/2003 : AIR 2003 SC 2363: 2003 AIR SCW 2353: JT 2003 (2) SC 528: MANU/SC/0234/2003 : (2003) 4 SCC 399: (2003) 2 SCR 1136: 2003 (3) Supreme 93. It has been held that right to life in article 21 includes right to food.
Consumer Education and Research Centre v. Union of India, MANU/SC/0175/1995 : (1995) 3 SCC 42: 1995 AIR SCW 759: 1995 Lab IC 1368: MANU/SC/0175/1995 : AIR 1995 SC 922. The Supreme Court held that right to health and medical care to protect ones health and vigour white in service or post retirement is a fundamental right of a workers.
Subhash Kumar v. State of Bihar, MANU/SC/0106/1991 : AIR 1991 SC 420: 1991 AIR SCW 121: JT 1991 (1) SC 77: MANU/SC/0106/1991 : (1991) 1 SCC 598: (1991) 1 SCR 5: 1991 (1) UJ (SC) 533. The Supreme Court held that the protection and improvement of environment has been included in the right to life under article 21.
Susetha v. State of Tamil Nadu, MANU/SC/8403/2006 : AIR 2006 SC 2893: 2006 AIR SCW 4026: (2006) 6 SCC 543: (2006) 7 SCALE 640: 2006 (6) Supreme 193. It has been held that right to water is envisaged as part of right to life under article 21. The same has been recognised in articles 47 and 48A. Article 51A(g) makes it a fundamental duty of every citizen to protect and improve natural environment including forests, lakes, rivers and wildlife.
Animal and Environment Legal Defence Fund v. Union of India, MANU/SC/0249/1997 : AIR 1997 SC 1071: 1997 AIR SCW 1078: JT 1997 (3) SC 298: MANU/SC/0249/1997 : (1997) 3 SCC 549: 1997 (1) SCJ 522: (1997) 2 SCR 728: (1997) 2 SCALE 493: 1997 (2) Supreme 713. The Supreme Court held that right to life in article 21 includes protection and preservation of environment.
T.N. Godavarman v. Union of India, MANU/SC/0960/2002 : AIR 2003 SC 724: 2003 AIR SCW 23: JT 2002 (9) SC 200: (2002) 10 SCC 606: (2002) 8 SCALE 204: 2002 (7) Supreme 620. The Supreme Court pointed out that two salutary principles governing environment are (I) principle of sustainable development and (II) precautionary principle. It was held that convention of Biological Diversity having being acceded to by India, the Government should, in the absence of compelling reasons, keep in view the international obligation while exercising its discretionary power under Forest Conservation Act.
Research Foundation For Science Technology National Resources Policy v. Union of India, (2005) 10 SCC 510. The right to healthy environment is an internationally recognized essential and is a fundamental rights guaranteed under article 21, the right to information and community participation for protection of environment and human health.
Intellectual Forum Tirupathi v. State of Andhra Pradesh, MANU/SC/8047/2006 : AIR 2006 SC 1350: 2006 AIR SCW 1309: (2006) 3 SCC 549: 2006 (2) SCJ 293: 2006 (2) Supreme 292. The Supreme Court has held that article 21A is the constitutional obligation of the Governments to protect and preserve the environment. The Court held that the tanks are important for protection of environment and supply of water to those areas. The Government is responsible to protect and preserve historical tanks on the basis of sustainable development and public trust.
Murli S. Deora v. Union of India, MANU/SC/0703/2001 : AIR 2002 SC 40: 2001 AIR SCW 4505: JT 2001 (9) SC 364: MANU/SC/0703/2001 : (2001) 8 SCC 765: 2002 (1) SCJ 85: (2001) 8 SCALE 6: 2001 (8) Supreme 326. A non-smoker is afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places where people make. It in indirectly depriving of his life without any due process of law.
Sukhwant Singh v. State of Punjab, MANU/SC/0866/2009 : (2009) 7 SCC 559. It has been observed that right to regulation of a person's valuable asset is a facet of his right under article 21 that the court has inherent power to grant interim bail pending the disposal of the regular bail.
R.M. Malkani v. State of Maharashtra, MANU/SC/0204/1972 : AIR 1973 SC 157: 1973 Cr LJ 228: (1973) 1 SCC 471: 1973 SCC (Cri) 389: (1973) 2 SCWR 776. The Supreme Court state that the telephonic conversation of an innocent person would be protected by the courts against wrongful or high-handed interference by tapping of the conversation by the police.
People's Union for Civil Liberties v. Union of India, MANU/SC/0149/1997 : AIR 1997 SC 568: 1997 AIR SCW 113: JT 1997 (1) SC 288: MANU/SC/0149/1997 : (1997) 1 SCC 301: 1996 (4) SCJ 565: 1997 (1) UJ (SC) 187. The court has rule that right to privacy is a part of the right to life and personal liberty. Telephone conversation is an important facet of a man's private life. The right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy".
R. Rajagopal alias R. R. Gopal v. State of Tamil Nadu, MANU/SC/0056/1995 : AIR 1995 SC 264: (1994) Supp 3 SCC 644: 1994 (2) UJ (SC) 661: 1994 AIR SCW 4420: JT 1994 (6) SC 514. The Supreme Court asserted that in recent times the right to privacy has acquired constitutional status. It is implicit in the right to life and liberty guaranteed to the citizen's by article 21. It is right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.
Chairman, Railway Board v. Chandrima Das, MANU/SC/0046/2000 : AIR 2000 SC 988: 2000 Cr LJ 1473: 2000 AIR SCW 649: JT 2000 (1) SC 426: (2000) 2 SCC 465: 2000 (3) SCJ 1: (2000) 1 SCALE 279: 2000 (1) Supreme 265. The Court observed that rape is a crime not only against the person of a women, it is a crime against the entire Society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. Rape is therefore, the most hated crime. It is crime against human right and is violative of the victim's most cherished right, namely, right to life which includes right to live with human dignity contained in article 21.
Vishaka v. State of Rajasthan, MANU/SC/0786/1997 : AIR 1997 SC 3011: 1997 AIR SCW 3043: 1997 (3) Crimes 188: JT 1997 (7) SC 384: (1997) 6 SCC 241: 1997 (3) SCJ 584: (1997) 5 SCALE 453: 1997 SCC (Cri) 932: 1997 (7) Supreme 323. The Supreme Court has declared sexual harassment of a working women at her place of work as amounting to violation of rights of gender equality and right to life and liberty guaranteed under articles 14, 19 and 21.
In this case, the Supreme Court has laid down the exhaustive guidelines to prevent sexual harassment of working women in places of their work until a legislation is enacted for the purpose.
Apparel Ex-port Promotion, Council v. A.K. Chopra, MANU/SC/0014/1999 : AIR 1999 SC 625: 1999 AIR SCW 274: JT 1999 (1) SC 61: MANU/SC/0014/1999 : (1999) 1 SCC 759: (1999) 1 SCJ 265: (1999) 1 SCALE 57: 1999 (1) Supreme 110: 1999 (1) UJ (SC) 508. The Supreme Court observed that there is no gainsaying that each incident of sexual harassment, at the place of work results in violation of the fundamental right to gender equality and right to life and liberty, the two most previous fundamental rights guaranteed by the Constitution of India.
Parmanand Katara v. Union of India, MANU/SC/0423/1989 : AIR 1989 SC 2039: 1990 Cr LJ 671. The Supreme Court observed that article 21 of the Constitution casts an obligation on the State to preserve life. The patient whether he be an innocent or be a criminal liable to punishment under the law of the society. It is the responsibility of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.
Surjit Singh Thind v. Kanwaljit Kaur, AIR 2003 P&H 353: 2004 (1) Cur LJ (CCR) 52: 2004 (2) Marri LJ 108. The Punjab and Haryana High Court has held that allowing medical examination of a woman to prove her virginity amounts to violation of her right to privacy and personal liberty enshrined under article 21 of the Constiution.
State of Maharashtra v. Maruti Sripati Dubal, MANU/SC/0115/1997 : AIR 1997 SC 411: (1996) 6 SCC 42. The Bombay High Court held that section 309 of the Penal Code which provides for punishment for attempt to commit suicide is not in violation of articles 14 and 21.
Chenna Jagdeshwar v. State of Andhra Pradesh, 1988 Cr LJ 549. The Andhra Pradesh High Court held that right to die is not a fundamental right within the meaning of article 21 and hence section 309, IPC is not unconstitutional.
P. Rathinam/Nagbhusan Patnaik v. Union of India, MANU/SC/0433/1994 : (1994) 3 SCC 394: AIR 1994 SC 1844: 1994 Cr LJ 1605: 1994 AIR SCW 1764: 1994 (2) Crimes 228: JT 1994 (3) SC 392: 1994 (2) SCJ 545: (1994) 3 SCR 673: 1994 SCC (Cri) 740. A two Judges Bench of the Supreme Court also held that the right to life under article 21 included right not to live a forced life i.e., to commit suicide and therefore section 309 of the Penal Code was held to be unconstitutional.
Gian Kaur v. State of Punjab, MANU/SC/0335/1996 : (1996) 2 SCC 648: AIR 1996 SC 946: 1996 Cr LJ 1660: 1996 AIR SCW 1336: 1996 (1) Crimes 197: JT 1996 (3) SC 339: (1996) 3 SCR 697: 1996 SCC (Cri) 374. A Bench of five Judges held that the right to life is a natural right embodied in article 21 but suicide is an unnatural termination or extinction of life. Article 21 which guarantees protection of life cannot be constructed so as to read therein extinction of life or right to die.
Mr. Justice J.S. Verma observed - "Any aspect of life which makes it dignified may be read into article 21 of the Constitution but not that which extinguishes it and is, therefore inconsistent with the continued existence of life resulting in effacing the right itself."
Right to life is a natural right embodies in article 21 but suicide is an unnatural termination or extinction of life and incompatible and inconsistent with the concept of right to life.
Mohini Jain v. State of Karnataka, MANU/SC/0357/1992 : (1992) 3 SCC 666: AIR 1992 SC 1858: 1992 AIR SCW 2100: JT 1992 (4) SC 292: 1992 (3) SCJ 152: (1992) 3 SCR 658: 1992 (2) UJ (SC) 331. The Supreme Court held that the right to education is a fundamental right under article 21 of the Constitution which cannot be denied to a citizen by charging higher fee known as the capitation fee. The right to education flows directly from right to life. The right to life under article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education.
Unni Krishnan, J.P. v. State of Andhra Pradesh, MANU/SC/0333/1993 : (1993) 1 SCC 645: AIR 1993 SC 2178: 1993 AIR SCW 863: JT 1993 (1) SC 474: (1993) 1 SCR 594: 1993 (1) UJ (SC) 721. The majority held that admission to all recognised private educational institutions particularly medical or engineering shall be based on merit, but 50% of the seats in all professional colleges be filled by candidates prepared to pay a higher fee. The Court held that imparting of education is not and cannot be allowed to become commerce. Citizens have the right to establish educational institutions but not to own them as commercial institutions.
TMA Pai Foundation v. State of Karnataka, MANU/SC/0905/2002 : AIR 2003 SC 355: 2002 AIR SCW 4957: JT 2002 (9) SC 1: MANU/SC/0905/2002 : (2002) 8 SCC 481: (2002) 8 SCALE 1: 2002 (8) Supreme 62. The Constitutional Bench of Supreme Court has overruled the Unni Krishnan decision partly. The Court held that the scheme relating to admission and the fixing of fee were not correct and to that extent, they are overruled.
Jayendra Vishnu v. State of Maharashtra, MANU/SC/0926/2009 : (2009) 7 SCC 104. Article 21 envisages a fair trial, a fair procedure and fair investigation. By reason of such a right alone the appellant was entitled not only to be informed about his fundamental right and statutory rights but it was obligatory on the part of the Special Public Prosecutor to place on record the requisite materials before the designated judge to show that the appellant, after his arrest in Delhi case on 23-7-1993 was not an absconder and thus the provisions of section 299 of the Code was not attracted.
DLF Power Limited v. Central Coalfields Ltd., MANU/SC/0532/2009 : AIR 2009 SC 2189: 2009 AIR SCW 2881: (2009) 6 SCC 258: (2009) 5 SCALE 429. The Supreme Court observed that free and fair trial is sine qua non of article 21. The apprehension of denial must be reasonable but not imaginary. Reasonableness would obviously depend on the facts and circumstances of a case and their evaluations by the courts.
Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : AIR 1994 SC 1349: 1994 Cr LJ 1981: 1994 AIR SCW 1886: 1994 (2) Crimes 106: JT 1994 (3) SC 423: 1994 (2) SCJ 230: (1994) 3 SCR 661: 1994 SCC (Cri) 1172. The Supreme Court has laid down guidelines governing arrest of a person during investigation. This has been done with a view to strike a balance between the needs of law enforcement on the one hand and protection of human rights of citizens from oppression and injustice at the hands of law enforcing agencies.
Madhav Hayawadanrao Hoskot v. State of Maharashtra, MANU/SC/0119/1978 : AIR 1978 SC 1548: 1978 Cr LJ 1678: (1978) 3 SCC 544: 1978 SCC (Cri) 468. The Supreme Court observed the State should provide free legal aid to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. The Supreme Court emphasized that right to appeal from the Sessions Court to the High Court is essential where criminal conviction is brought about with long loss of liberty.
Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, MANU/SC/0121/1979 : AIR 1979 SC 1369: 1979 Cr LJ 1045: (1979) 3 SCR 532: MANU/SC/0121/1979 : (1980) 1 SCC 98: 1980 SCC (Cri) 40. The Supreme Court has taken a big innovative step forward humanizing the administration of criminal justice by suggesting that free legal aid be provided by the State to pear prisoners facing a sentence. When an accused has been sentenced by a court, but he is entitled to appeal against the verdict, he can claim legal aid. If he is indigent and is not able to afford the counsel, the State must provide a counsel to him.
Sunil Batra v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675: 1978 Cr LJ 1741. The petitioner, sentenced to death on charges of murder and robbery, was being kept in solitary confinement pending his appeal before the High Court. He filed a writ petition in the Supreme Court under article 32. The Court emphasized that article 21 means that law must be right, just and fair and not arbitrary, fanciful or oppressive. Otherwise, it would be no procedure at all and the requirements of article 21 would not be satisfied.
Kishor Singh Ravinder Dev v. State of Rajasthan, MANU/SC/0072/1980 : AIR 1981 SC 625: 1981 Cr LJ 17: (1981) 1 SCC 503: 1981 SCC (Cri) 191: 1981 (2) SCJ 97. The Supreme Court held that the use of third degree method by police is violative of article 21 and directed the Government to take necessary steps to educate the police so as to inculcate a respect for the human person. The court also held that the punishment of solitary confinement for a long-period from 8 to 11 months and putting bar fetters on the prisoner in jail for several days on flimsy ground like loitering in the prison, behaving insolently and in uncivilized manner, tearing of his history ticket etc., must be regarded as barbarous and against human dignity and violative of articles 14, 19 and 21 of the Constitution.
Bachan Singh v. State of Punjab, MANU/SC/0055/1982 : AIR 1980 SC 898: 1980 Cr LJ 636: (1980) 2 SCC 684: 1980 SCC (Cri) 580. The Supreme Court held that the provision of death penalty under section 302, IPC as an alternative punishment for murder is not violative of article 21. Article 21 of the Constiution recognises the right of the State of deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. The death penalty for the offence of murder does not violate the basic features of the Constitution.
Naval v. Union of India, MANU/RH/0821/2008 : AIR 2009 RAJ 63: 2009 (3) ALJ (NOC) 502: 2009 (1) Raj LW 865: 2009 (2) WLC 507. The petitioner gave birth to a child despite sterilization operation. It was prima facie negligence on the part of the doctor. The petitioner was entitled to compensation.
R.D. Upadhyay v. State of Andhra Pradesh, MANU/SC/2061/2006 : AIR 2006 SC 1946: 2006 AIR SCW 2274: 2006 (2) Crimes 138: (2006) 4 SCALE 336: 2006 (3) Supreme 546. The Supreme Court observed that the place of birth of child born in prison not to be recorded as "prison" in birth certificate. It shall be registered in a local birth registration office. Child above 6 years are not to be kept with female prisoners.
The Supreme Court has ruled in the A.K. Gopalan case that in article 21 the expression "procedure established by law" meant the procedure as laid down in the law as enabled by the legislature and nothing more. A person could thus be deprived of his life or personal liberty in accordance with the procedure laid down in Maneka Gandhi case.
This term 'procedure established by law' means procedure laid down by statute or procedure prescribed by the law of the State. Thus article 21 requires the following conditions to be fulfilled before a person is deprived of the property-
(1) there must be a law justifying interference with the person's life or personal liberty;
(2) the law should be a valid law;
(3) the procedure laid down by the law should have been strictly followed.
Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621: 1978 (2) SCJ 312. The Court observed-
"The law must, therefore, now be settled that article 21 does not exclude article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty, and there is consequently no infringement of the fundamental right conferred by article 21 such a law insofar as abridges or takes away any fundamental right under
article 19 would have to meet the challenges of that article. Thus a law depriving a person of personal liberty has not only to stand the test of article 21 but it must stand the list of article 19 and article 14 of the Constitution.
Article 21A. Right to Education.-
The state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law determine.
This article has been added in the chapter of Fundamental Rights by the Constitution (86th Amendment) Act, 2002.
Article 22. Protection against arrest and detention in certain case.-
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an enemy alien, or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judge of High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient causes for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe-
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by any Advisory Board in an inquiry under sub-clause (a) of clause (4)
The protection of the individual from oppression and abuse by the police and other enforcement officers is a major interest in a free society. Arrest and detention in police lock-up may be very traumatic for a person. It can cause him incalculable harm by way of loss of his reputation. Denying a person of his liberty is a serious matter.
Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : AIR 1994 SC 1349: 1994 Cr LJ 1981: 1994 AIR SCW 1886: 1994 (2) Crimes 106: JT 1994 (3) SC 423: 1994 (2) SCJ 230: (1994) 3 SCR 661: 1994 SCC (Cri) 1172. No arrest can be made in a routine manner or on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.
A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27: 1950 SCJ 174: 51 Cr LJ 1383: 1950 SCR 88. To the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply. But if certain procedural safeguards are expressly stated as not required, or specific rules on certain points of procedure are prescribed, it seems improper to interpret these points as not covered by article 22 and left open for consideration under article 21. To the extent the points are dealt with, and included or excluded, article 22 is a complete code. On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected.
R.C. Cooper v. Union of India, MANU/SC/0074/1970 : AIR 1970 SC 1318: (1971) 1 SCR 512: (1970) 2 SCC 298. A law relating to preventive detention must now satisfy not only the requirement of article 22 but also the requirement of article 21 of the Constitution. In other words, the procedure prescribed under the preventive detention law must be reasonable, just and fair under articles 14, 19 and 21 of the Constitution.
Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621: 1978 (2) SCJ 312. Now article 21 itself has become an almost inexhaustible source of restraint upon the legislature. Consequently, the relationship between articles 21 and 22 has drastically changed, rather reversed.
Article 22 provides the following rights of accused persons-
1. Right to be informed of the grounds.-
Clause (1) of article 20 provided that no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest. Section 50 (1) of the Code of Criminal Procedure in compliance to this constitutional principle lays down that every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
In re Madhu Limaye, AIR 1969 SC 1014: (1969) 3 SCR 154: 1969 Cr LJ 1440: (1969) 1 SCWR 470: MANU/SC/0047/1968 : (1969) 1 SCC 292. It is not necessary to furnish the arrested person with full details of the offence, but the information should be sufficient to enable him to understand why he has been arrested and to give him an idea of the offence which he is alleged to have committed.
Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : (1994) 4 SCC 260: MANU/SC/0311/1994 : AIR 1994 SC 1349: 1994 Cr LJ 1981: 1994 AIR SCW 1886: 1994 (2) Crimes 106: JT 1994 (3) SC 423: 1994 (2) SCJ 230: (1994) 3 SCR 661: 1994 SCC (Cri) 1172. The Court has held that a person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the police officer effecting the arrest that such arrest was necessary and justified.
2. Right to Consult lawyer-
Article 22(1) also postulates that there is an accusation against the person arrested against which he should be able to defend himself by engaging a legal practitioner of his choice. Section 303 of the Code of Criminal Procedure also provides that any person accused of an offence before a criminal court or against whom proceedings are instituted under the Code has a right to be defended by a pleader of his choice.
Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, MANU/SC/0122/1979 : AIR 1979 SC 1377: 1979 Cr LJ 1052: (1979) 1 SCC 108: (1979) 3 SCR 760: 1979 SCC (Cri) 50. The Supreme Court has held that it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence to have legal service provided to him by the State and the State is under constitutional duty to provide a lawyer to such person if the needs of justice so require.
3. Right to be produced before a Magistrate within 24 hours.-
Clause (2) of article 22 provides that every person who is arrested and detained in custody shall arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate.
State of Uttar Pradesh v. Abdul Samad, MANU/SC/0102/1962 : AIR 1962 SC 1506: (1962) 2 Cr LJ 499: (1962) Supp 3 SCR 915. This is a mandatory provision. Article 22 issues an injunction in clear and unambiguous term, it is not permissible to read into that provision exception other than the two specific exceptions provided in clause (3) of article 22. An arrest and detention for the purpose of deportation is not outside the scope of the constitutional protection under article 22(2).
4. No detention beyond 24 hours except order of the Magistrate.-
After expiry of 24 hours the person detained has right to be freed unless the Magistrate, before whom he is produced, authorized the further detention. Section 167 of the Code of Criminal Procedure provides that whenever it appears that investigation cannot be completed within 24 hours of the arrest, police officer may sent the accused to the nearest judicial Magistrate along with a copy of entries in the diary.
Khatri v. State of Bihar, MANU/SC/0518/1981 : AIR 1981 SC 928: 1981 Cr LJ 470: (1981) 1 SCC 627: 1981 UJ (SC) 72: (1981) 2 SCR 408: 1981 (2) SCJ 185. The Supreme Court strongly urged that the constitutional requirement to produce an arrested person before a judicial Magistrate within 24 hours of his arrest must be strictly and scrupulously observed.
Non-application of articles 22(1) and 22(2) -Article 22(3) makes two exceptions. Article 22(1) and (2) do not apply to:
(a) enemy alien, and
(b) to persons arrested or detained under a law providing for preventive detention.
Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the mind of an executive authority. Preventive detention is fundamentally and qualitatively different from imprisonment after trial and conviction in a criminal court. Preventive detention and prosecution for an offence are not synonymous. Preventive detention is preventive, not punitive. Punitive detention is to punish an individual for any wrong done by him, but preventive detention is curtailing the liberty of a person with a view to prevent him from committing certain injurious activities in future.
State of Tamil Nadu v. Senthil Kumar, MANU/SC/0050/1999 : AIR 1999 SC 971: 1999 Cr LJ 1343: 1999 AIR SCW 591: 1999 (1) Crimes 46: JT 1999 (1) SC 201: (1999) 2 SCC 646: 1999 (1) SCJ 384: (1999) 1 SCALE 226: 1999 SCC (Cri) 299: 1999 (1) Supreme 271. The Supreme Court observed that whereas punitive incarceration is after trial on the allegation made against a person, preventive detention is without trial into the allegations made against him.
Clause (4). Limitation as to period of detention and provision for Advisory Board-A detenue under preventive detention is not detained after trial and conviction of an offence by a competent court. To provide safeguard against arbitrary arrest, clause (4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board constituted of persons who are, or have been or are qualified to be High Court Judge has reported before the expiration of the said period of three months. The confirmation of the opinion of the Advisory Board to continue the deletion beyond three months must be within three months from the date of detention in conformity with the mandate of clause (4) of article 22.
Clause (5). Communication of grounds to the detenue-Article 22(5) has two limbs - one-The detaining authority is to communicate to the detenue the grounds of his detention "as soon as may be". Two - The detenue is to be afforded "the earliest opportunity" of making a representation against the order of detention. This is natural justice Woven into the fabric of preventive detention by the Constitution.
Lallubhai Jogibhai Patel v. Union of India, MANU/SC/0216/1980 : (1981) 2 SCC 427: AIR 1981 SC 728: 1981 Cr LJ 288: 1981 SCC (Cri) 463: 1981 (2) SCJ 37: (1981) 2 SCR 352. The detenue did not know English but the grounds of detention were written in English and the detaining order stated that the Police Inspector while serving on the grounds of detention fully explained the grounds in Gujarati to detenue, but no translation of the grounds of detention into Gujarati was given to the detenue. It was held that there was no sufficient compliance of article 22(5).
Clause (5) Right to Make Representation.-
The detaining authority is under a constitutional duty to furnish reasonably definite grounds to the detenue as well as adequate particulars of the grounds of detention. Article 22(5) requires that the detenue shall be afforded the earliest opportunity of making representation against the order of detention. No inordinate delay, no shortfall in the materials communicated shall stand in the way of the detenue in making an effective or comprehensive representation in regard to all basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom.
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