Articles of Constitution: Asymmetry of Equality—Political Whispers and Constitutional Underpinnings

Asymmetry of ‘equality’ — Political whispers and constitutional underpinnings

Article 14

“Four score and seven years ago our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. We are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated, can long endure.”

---Abraham Lincoln: Gettysburg Address

Equality as a concept is a complex term and often sounds even paradoxical when placed in socio-political context in human life.

‘We are equal’ is oft-repeated slogan in the society, when we politically or socially protest against any perceived incident of discrimination.

‘Our class is superior in the society’ is a critical assertion of the same individuals in the same society, when they claim exclusive entitlements.

Aldous Huxley rightly said; “that all men are equal is a proposition which at ordinary times no sane individual has ever given his assent.” ( Proper Studies by Alduos Huxley )

Unlike scientific fields of mathematics or biology, the conceptual lucidity, precision and measurement methodology relevant for comprehensive understanding of ‘equality’ proves both complex and vulnerable to the semantic risks in the legal and constitutional domains of human life.

Saga of human life since times immemorial to the present day constitutionalism is scripted and enacted in the social-scapes of vibrant and vocal of democracies and is punctuated with almost endless conflicts and tensions.

In mathematics and other branches of applied sciences, metrics and topology simplify the conceptual as well as computational aspects of equality.

Identically in anthropology and biology, DNA and RNA decode and disclose the semantics of equality.

In the socio-political trajectories, we observe that two vital claims of the citizenry: 1. Right to equality 2. Right to freedom, have always been the ignition and fuel of the eternal struggles of mankind in each and every corner of the world.

Viewed in a historic perspective, the fierce and fiery conflicts in this aspirational direction of ideal-chasing by humankind have been endless, uninterrupted and eternally painful.

Skipping the pre-Socratic period of philosophy and polity, we find an exegesis of doctrine of isonomy in the works of Aristotle. The said doctrine posits legal treatment in the quintessential nature of non-discrimination amongst the peers in a society. The said doctrine of isonomy was, through well chosen words and expressions, enshrined in Constitution of India as Article 14 to Article 18, literally to cover all aspects of equality in socio-political life of humans, within eternal glow of a comprehensive rubric- Right to Equality.

The political history of the World marks various events leading to crystallization and development of the said doctrine of isonomy. The first celebrated event of signing of a charter described as Magna Carta by king John of England on 15^th^ June, 1215 at Runnymede (county of Surrey in England) is in itself a great milestone, which became a precursor in the human endeavourers for establishment of rule of law. This ‘rule of law’ is indeed the soul of ‘right to equality’. The right to equality is an embodiment of rule of law. Rule of law is distinguishable from the rule of ruler. The rules made by the rulers if found valid on the touchstone of constitutionality, are treated as rules of law.

Again far off in America, on 15^th^ December, 1791 another historical event of signing of Bill of rights authored by James Madison through a series of amendments (Initially 17 amendments were proposed and only 12 were ratified) to the newly ratified constitution of USA also deserves to be regarded as a symbol of triumph for humanity in the context of its political, social and moral struggle to attain equality for all.

Apart from the above, even due consideration of the dissertations and enlightened opinions of scholars and philosophers, from time to time, by the power centers across the political map of the world is always hailed as crowning moment of human struggle for rights, particularly right to equality. Be it John Locke (Theory of Natural Rights), Rousseau( social Contract),Montesquieu (separation of powers ), John Stuart Mill ( On Liberty), Professor Dworkin ( Taking Rights seriously , Law’s Empire ) the deliberations of equality and liberty which constitute the foundation of their views, certainly shaped the politics of the day, from time to time.

In passing a vital thought of Lord Wilson Rievaulaux (Prime Minister of England for two terms ) on the subject need to be borne in mind ;

“Everybody should have an equal chance — but they should not have a flying start.”

In a recent judgement, National legal Services Authority v Union of India,(2014) 5 SCC 438 ,Hon’ble Bench of Supreme Court of India approvingly referred to philosophical and historical aspects of equality as delineated by erudite discourses of Aristotle, Immanuel Kant, Nelson Goodman and John Rawls. Para 107, 108, 127 and 133 of the said judgement elucidate the jurisprudential value of such meaningful references.

Hegel, a German thinker and philosopher, suggests that a ‘concept’ (Der Begriff) is best understood by converting its essence into ‘mere representations’ (Vorstellungen) of everyday life. ‘Equality’ as a constitutional concept is to be grasped by identifying and referring to Vorstellungen , which can be culled out of the dicta of the courts in everyday forms of lis, hinging upon the concept of equality in different facets of human life.

Referring to a philosophical perspective, of pre-Hegelian period , we notice that Immanuel Kant analyses the concept of ‘equality’ by questioning whether it is a nuomenon (thing-in-itself) or a ‘phenomenon’ (what is captured by the observational faculties). Such perspective may also facilitate deeper philosophical probe into the concept.

In order to clarify the terms ‘noumenon’ and ‘phenomenon’ a glance at an illustration would be helpful. Illustratively ‘noumenon’ of a rainbow is actuality of collected vapours placed in a particular path of light. The ‘phenomenon’ of rainbow is a visible band of seven colours, across the sky, observed by the onlooker delightfully from a particular location.

In the state of nature, equality is in existence in the shape of ‘sameness’, whereas in the legal and constitutional concept, equality is not ‘sameness’ but a certain judicially discernible degree of similarity, based on an acceptable and rational criteria.

Thus, even philosophical aids do not, proprio vigor, simplify the concept of equality. Extra large treatises of Maxwell, Craies, Crawford, GP Singh, to name a few, shed light on how to read and how to interpret the laws in the light of constitutional semantics of equality. Still Justice Cardozo of USA Supreme Court had to admonish the judiciary with his indelible words: “A judge is not a knight errant, roaming at will in pursuit of his own ideal of beauty or goodness. He has to draw his inspiration from consecrated principles.”

The Article 14 of the Constitution of India reads as under:

EQUALITY BEFORE LAW: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The said Article is analogous to the following:

i) Section 41 of constitution of Eire 1937

ii) Article 3(1) of Constitution of West Germany

iii) Common Law of UK

iv) Section 1 of Article 14 of Constitution of United States

v) Article 4 of Constitution of Swiss Confederation 1874

vi) Section 15 Of Canadian constitution act 1982

vii) Article 33(2) Of Constitution of People’s Republic Of China 1982

viii) Articles 6 and 7 of Universal Declaration of Human rights 1948

The aforesaid article 14 is having two functional limbs.

The first limb ‘Equality before law’ is borrowed from British Constitution. The British Constitution, though not a formalized written document, is a terra firma of conventions, traditions and ideals which are deemed sacrosanct in concept and practice and are treated under the nomenclature ‘common law’. The first limb is a negative concept. The second limb of the said Article 14 which speaks of ‘Equal protection of laws’ is borrowed from the American Constitution (14^th^ amendment thereof). The second limb is a positive and affirmative concept.

The relevant part of the text of the said 14^th^ Amendment reads as under:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

The second limb of Article 14 is based on a time tested legal maxim famously known as ‘due process.’ As regards judicial review of the second limb of Article 14 is concerned, unlike American precedents, law is interpreted in the light of philosophy of the basic structure of Indian Constitution by the Hon’ble Supreme Court (refer: West Bengal v Anwar Ali Sarkar 1952 SCR 332). However, clarifying the real position of Article 14, Hon’ble Supreme Court in, Subramaniam Swamy v. CBI (2014) 8 SCC 682 lays down as under:

“Article 14 of the Constitution incorporates the concept of equality and equal protection of laws. The first part of Article 14 is a declaration of equality of the civil rights of all persons within the territories of India and enshrines basic principles of republicanism. The second part which is a corollary of the first enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favoritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.”

Illustratively, a conspectus of legal aspects pervading interpersonal relations as well as citizen-state relations in the society need to be viewed to understand the broad contours of the concept of equality.

While dwelling on the constitutional concept of gender equality ,the exclusionary practice of denial of access to the deity Ayayapa in the Sabrimala Temple in Kerala to the females was found to be offensive to ‘constitutional morality’- a phrase evolved on the basis of numerous references, to protect the petitioners from perpetual violence of inequality, strengthened with the religious beliefs and nourished by age-old religious practices and textual interpretations. It is relevant that the concept of ‘constitutional morality’ was also judicially construed in Manoj Narula v Union of India, 2014 (9) SCC 1, where the question of election of the persons with criminal antecedents arose before the Court. The entire warp and weft of political governance was examined by the Supreme Court on the touchstone of ‘constitutional trust’ and ‘constitutional morality’. The concept of constitutional morality finds its first mention in the history of Greece authored by eminent English historian George Grote. The said historian describes the Athenian democracy as a rule based on constitutional morality in contrast with a mob rule. Article 25 of the Constitution of India also refers to a term morality. Dr B. R. Ambedkar, when asked to comment, why so voluminous administrative details have been incorporated in the constitution, replied that administrative details can be omitted from constitution only if the entire citizenry is saturated with constitutional morality. The constitutional morality has been defined and described as a cultivated value in the society through different processes of socio-political development and growth. It is certainly not a transient value which varies with cultural and social sensitivities of the individuals over a particular period of time. Constitutional morality is an abiding virtue and soul of constitutional ideals and practices.

Article 14 operates as a bar against unreasonable classification, but certainly does not prohibit reasonable classification.

The rights guaranteed under part 3 of the constitution are not absolute rights but the same are subject to reasonable restrictions (Chairman Railway Board vs Chandrima Dass 2000 2 SCC 465) .

The right to equality is available only against the State. It is not enforceable against a private unaided educational institution, whether minority or non-minority (barring exceptional legal requirements). Frank Anthony Public school Employees Association v Union of India Air 1987 SC 311.

A relevant question that often arises in the context of interpretation of Article 14 is the expression ‘class’ which also forms the semantic nucleus of the expression classification. The expression ‘class’ means a homogenous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like (State of A.P. v P. Sagar, AIR 1968 SC 1379, 1382.)

The word class is used in the sense of social class and not in the sense it is understoof in Marxist jargon. (Indra Sawhney v. Union of India, AIR 1993 SC 477, 552)

Whether a single individual constitute a class? The said question arose in Mohd. Shahabudin vs State of Bihar ( 2010) 4 SCC 653.Court answered the question in the affirmative, while upholding administrative notification under section 9 (6) of CrPC whereby the petitioner was required to face trial inside the Siwan Jail.

It needs to be borne in mind that principles of legitimate expectation cannot override public interest which is core value of Article 14 (Reliance Telecom Limited v union Of India AIR 2017 SC 337)

Professor Laski says: “equality does not mean the identity of treatment or the sameness of reward. If a bricklayer gets the same reward as a mathematician or a scientist, the purpose of society will be defeated. Equality, therefore, means, first of all the absence of social privilege. In the second place it means that adequate opportunities are laid open to all”.

Article 14 applies to all persons and is not restricted to the citizens of India. (Chairman, Railway Board v. Chandrima Das AIR 2000 SC 988: (2000) 2SCC 465)

While a string of judicial pronouncements on the anvil of Article 14 consistently applied classification approach for determination of the issues under challenge, in E P Royappa v State of Tamil Nadu 1974 AIR SC 555) a new dimension to Article 14 was for the first time added. It was succinctly held in the said case that Article 14 embodies a guarantee against arbitrariness. It needs to be borne in mind the classification approach of interpretation, which still holds the field, envisaged the following criteria:

(i)That the classification must be founded on intelligible differentia which distinguishes persons grouped together from others left out of the group.

(ii)That differentia must have rational nexus to the object sought to be achieved.

The said criteria is laid down in a number of cases including State of AP v Nallamillirami Reddi (2001) 7 SCC 708 (Para 8).

Courts applied various legal maxims to foster and nurture the right to equality in its exalted role sentinel qui vive. In this regard the application of maxim ; “actus curiae neminem gravabit” i.e. act of court shall prejudice no man and another maxim “lex non cogit ad impossibilia” i.e. law does not compel a man to do which he cannot possibly do were applied in : Raj Kumar Dey v Tarpnda Dey AIR 1987 SC 2195, Gursharan Singh v NDMC( AIR 1996SC 1175) are relevant and noticeable while understanding judicial pruning of otherwise unwieldy concept of equality.

While reasonable classification remains the underlying principle of the right to equality, a perspective-shift in the judicial treatment of the concept of equality, revealed its essence in various subsequent cases. Thus in Maneka Gandhi v Union of India ( AIR 1978 SC 597 ) the 7 judges bench of Supreme court held, inter alia , that : (a) a procedure which is arbitrary, oppressive or fanciful is no procedure at all and (b)a procedure which is unreasonable could not be said to be in conformity with Article 14 (c) The fundamental rights are overlapping. Thus apart from the factum of competence of legislature to pass a legislation, the touchstone of non-transgression of any fundamental right under the constitution is a relevant and necessary parameter to examine validity of law. However, again in Om kumar v Union of India (2001) 2 SCC 386 , principle of proportionality came to be aptly applied by the Bench in the judicial evaluation of equality. Hon’ble Court held that when an administrative action of State is challenged, court applies the principle of proportionality, as a primary review. If the action is alleged to be violative of Article 14 on the ground of arbitrariness, court by the way of secondary review applies ‘Wednesbury Principle’.

In this regard it needs to be understood that ‘Proportionality’ is a judicial test to examine whether the administrator or legislator have adopted reasonable or the least restrictive choice of measures in the context of regulating the fundamental rights of the petitioner, so as to achieve the object in question . It was held : “maintain a proper balance between the adverse effects which the legislation or administrative order may have on rights, liberties or interests of persons, keeping in mind the purpose which they were intended to serve.”

‘Wednesbury Principle’ finds its conceptual genesis in Wednesbury case decided by Lord Greene in 1948(Associated Provincial Picture Houses v R (1947)2 All ER 680 CA).As per ‘Wednesbury Principle’ if a statute gave a direction/power to an administrator to take a decision, the scope of judicial review in the matter would remain restricted. The judicial intervention would be justified only if the order or decision is found contrary to law, or if it transpires that relevant factors were not considered or irrelevant/ extraneous factors were taken into consideration or the decision was one which no reasonable person could have taken.

Adding dimensions to right to equality has been a salubrious trend due to dynamic judicial approach to safeguard the right of equality under different circumstances. Thus in Motiram v state of MP AIR 1978 SC 1594, Hon’ble Bench, while dispensing with the practice of insisting for sureties from the same State/ Court jurisdictions, held as under :

“What law prescribes sureties from outside or non-regional linguistic, sometimes legalistic applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic, sometimes linguistic, sometimes legalistic. Art 14 protects all Indians qua Indians, within the territory of India. Art 350 sanctions representation to any authority including a court, for redress of grievances in any language used in the Union of India . Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland. Swaraj is made of united stuff”.

In the context of challenges of the matters in courts ,‘reading down’ a provision as distinguished from ‘striking down’ has also added a convenient path to judicial review. The impugned provision on the touchstone of Article 14 also deserves a passing reference. Any law is ‘read down’ by the courts if any impugned word or phrase can be qualified or taken away without doing violence to the substantive part of law. In contrast, if any provision of law under challenge comprises of more than one limb and such limbs are found to be severable, the harmless limb is saved and the bad one is severed and struck down. It depends on the factual mould of the challenge as to how justice is to be ensured on the basis of Article 14 of the Constitution of India.

In 1974 2 SCC 409, two distinct interpretations by Justice Bhagwati and Justice Alagiriswami resulted in a debate whether Article 14 really shines like a beacon light pointing towards goal of class-less egalitarian socio economic order or it is a just and fair rule of equality to be always tested on the touchstone of reasonableness. The critics of Justice Bhagwati’s point of view held that a classless egalitarian social economic order may be a goal of a school of thought or the creed of some political parties, but is not the essence and light of Article 14 as such. The view of Justice Alagiriswami that Article 14 does not demand a fanatical approach but is a safeguard against unreasonable discrimination found favour with the eminent constitutional scholars and accordingly the said exposition of law holds the field till date.

Racial discrimination, being an anathema to the rule of law, was struck down on the anvil of the rights enshrined in Article 14 of the Constitution of India (Kama Dorjee v Union of India AIR 2017 SC 113).

Exceptions/ limitations/ deviations to Article 14;

Privileges of President of India, Governor of a State, Members of the Parliament (Article 361, 361A of the Constitution of India)
Special treatment to scheduled and tribal areas under Articles 244 and 244A of the Constitution of India
Reservations for different communities under Article 330-342 of the Constitution of India
The exceptions mentioned in Articles 15, 16, 18 and references to such exceptions in other provisions of the constitutional scheme.

With the aforesaid clarificatory concept of constitutional right to equality in mind, we need also to grasp the judicial interpretation of the said vital provision of Constitutional law by reference to some relevant judgments. In nutshell, the following propositions laid down in different judgments elucidate how the right enshrined in Article 14 has been approvingly read by the Supreme Court over a period of time:

(a) Article 14 condemns discrimination not only by substantive law but by a procedural law {(1959) SCR at p. 297 i.e. Dalmia case}

(b) Article 14 forbids class legislation but does not forbid classification (D D Joshi v Union 1983 ASC 420,425)

(c) Permissible classification must satisfy two conditions, namely (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question (Anwar Ali Sarkar’s Case (1952) SCR at pp. 340-341)

(d) The differentia and object are different and it follows that the object by itself cannot be the basis of the classification (Anwar Ali Sarkar’s Case (1952) SCR at p. 341)

(e) In permissible classification mathematical nicety and perfect equality are not required. Similarity, not identity of treatment is enough (Balsara case (1951) SCR 682 at pp 709-10)

(f) The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like. (Dalmia case (1959) SCR 279 at p. 297)

(g) If a law deals equally with members of a well defined class, it is not open to the charge of denial of equal protection on the ground that the law has no application to other persons. (Bombay v. F.N. Balsara (1951) SCR 682, 709)

(h) Even a single individual may be in a class by himself on account of some special circumstances or reasons applicable to him and not applicable to others, a law maybe constitutional even though it relates to a single individual who is in a class by himself. {(1959) SCR at p. 297 i.e. Dalmia case}.

(i) The Legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. (khyerbari Tea cO. v Assam (1964) 5 SCR 975)

(j) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles (1959) SCR supra at p. 297 proposition (a))

(k) In order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived ((1959) SCR supra at p. 297 proposition (e). fol. In Ramraj singh v State (‘69) AB 333)

(l) It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. (ibid p.297, proposition (c))

(m) While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatory legislation. The principle must be borne in mind in deciding whether a law violates Article 14. (Ram Prasad Narayan Sahi v Bihar (1953) SCR 1129)

‘The earth does not argue, it is not pathetic, has no arrangements, does not scream, haste, persuade, threaten, promise makes no discriminations, has no conceivable failures, closes nothing, refuses nothing, shuts none out’.

Walt Whitman - Leaves of Grass

Article 15

Sun, moon, earth and seas

Breeze, forests or lissome reeds

Lo ! blessed plenitude -Grace of Supreme

Bathes all alike — mighty, maimed or mean.

Nature is a Supreme force, rightly called Divine, universally engaged in the supreme task of nurturing life. It follows eternal laws of Nature (distinct from the comparatively ephemeral and man-made laws : natural law, positive law, real law or Marxian law). Nature bestows on every form of life, without any ‘individualized reward and punishment paradigm’, what is needed for its nourishment. The State, a political entity with its quintessential limitations, on the other hand, manifests essentiality of its geo-political selfhood, through self defined patterns of political and social processes, resting on the plank of mutuality with its citizens. The relationship of the State- citizen is often viewed as a ‘social contract’. State is conspicuously characterized by ‘individualized reward - punishment paradigm’ of mutuality. Here lie, in the random order multiple scattered weeds of discrimination and perpetual constitutional challenges to liberate the mankind from these lethal weeds.

The text of Article 15 reads as under:

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to---

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

The genesis of the said Article 15 lies in revolutionary social reform movements in India to put an end to every shade of discrimination against any citizen, especially on the grounds specifically enumerated therein. The social movements of Dr. B R Ambedkar, Mahatma Gandhi and Jyoti Rai Phule are relevant in the context of revolutionary reforms to uproot the radicalized and stubborn social malpractices and deep-seated social negativity. The five specific grounds of discrimination enumerated in the text of the Article 15 are: religion, race, caste , sex and place of birth.

At the outset it is proper to clarify that the words ‘Nothing in this Article’ prefacing clauses (3) , (4) and (5) of Article 15. Such prefixes are inserted ex majore cautela and are not be read or treated as ‘legislative device’. However, in this regard it deserves to be clarified that observations of Hon’ble Bench in Thomas case(AIR 1976 SC 490) that these prefixes: ‘Nothing in this Article’ are legislative devices were held to be erroneous. The error regarding hasty treatment of the said expression as a legislative device was noted and rectified in Akhil Bhartiya Shoshit Karamchari Sangh v Union Of India AIR 1981 SC 293.

This Article 15 prohibits the State from practicing, facilitating or approving any identity-related discrimination on the grounds(identity factors)mentioned therein , while in the same breath, issuing a clear mandate against citizens from inflicting any disability liability, restriction or condition on a fellow citizen based on the identities enumerated in the Article. The article also imposes an affirmative duty on the State to implement in letter and spirit of the constitutional values ingrained in the Article.

In the historical context it may be noted that some scholars of Constitutional law in India have often rued the factum of critical absence of the term ‘revolution’ in the transformative script, even while the voluminous and exalted script is written in blood of the martyrs, of Indian independence. The multi-faceted struggle of Indian independence contemporaneously with equally energetic cathartic processes of nation building, such as, ‘defining a nation’, ‘forging a unity’, ‘inculcating values of nationalism’, collectively cherishing highest ideals of a glorious co-existence on the consecrated principles of non violence against the fierce storms of ‘divide and rule’ policies inflicted by the foreign rulers on the soul of the nation. These critical processes of reformation to awaken the soul of the nation for raising courageous, assertive and loud voice in unison, against subjugation indeed elevates the status of triumph of Indian struggle much higher than a mere revolution. History tells that ‘revolution’ is a mob-led, often blood-stained actions in the nature of killing the natives of their own States by a frenzied citizenry of any State. Thus the triumph of Indian freedom struggle of awakening the soul of a nation and peacefully attaining independence always deserved to be recognized globally as a ‘glorious revolution’ and not just its ‘slaughter-house format’ of revolutions, such as, French Revolution and Russian Revolution. The glorious moment of adoption of Constitution of India by a unified and non-exclusionary supreme force of ‘We, the People of India’ on 26.01.1950 and triumphantly hoisting a tricolor of independent republic of India at Red Fort are great events in any documented civilization of human history which did not get justice at the hands of the world historians. Contrary to the saga of various other States, who hysterically glorified the spirit and endeavours of their citizens, by over-use of emphatic expression ‘revolutions’ in the chronicles of their history with an object of semantically enriching their political ‘struggle’, which by any comparative standards is much feeble and much lackadaisical transformative political movement, in contrast with the socio-political accomplishments of ‘People of India’. India, a nation with multiple historical discords, divisions, contradictions and distortions, constitutionally preferred a softer and humbler expression, such as, ‘freedom movement’ and ‘struggle for independence’ and cautiously eschewed the term ‘revolution’, while chronicling the multi faceted battles, internal as well as external, of years and years, for independence of India.

Pt. Nehru in his celebrated speech on the auspicious moment of India’s awakening to the salubrious dawn of freedom blithely captured the mystified ‘long years’ of struggle of the ‘people of India’ through a romantic-wrapping in his ornamental phrase ‘tryst with destiny’.

K.M. Munshi focused on the spiritual aspects of the struggle of people of India for liberation by choosing an apt phrase: ‘Pilgrimage to Freedom’.

Maulana Abdul Kalam Azad highlighted the of emergence of a free ‘nation’ as a civilisational luminosity for the liberated brotherhood.

Be it as it may, Article 15 and article 17 of the Constitution of India, indeed signify and symbolize a ‘revolution’ in the socio-cultural realities of India and these two Articles are not scripted in normal tenor and normal rhythm of socio-political movements, especially when the then prevailing socio-political realities of the India are honestly evaluated in the context of transformative effects of constitutional values adopted by independent India.

We need to examine, at the first instance, Article 15 of constitution of India, while attempting to deconstruct the underlying philosophy of the said Articles 15 and 17.

The discrimination against any citizen on the aforesaid five grounds is prohibited by Article 15. The sub clauses (3) to (5) of the said Article lay down affirmative duty to act as well as the scope of powers which State can constitutionally exercise to introduce positive discrimination(also referred to, in specific context, as reverse discrimination ) in favour of the classes enumerated in the aforesaid sub clauses.

Thus, Article 15(4), often referred to as a constitutional mechanism for reverse discrimination, authorises the State to make any reasonable discrimination in favour of the vulnerable social segments including women and children. State can also make any reasonable discrimination to serve the cause of educationally backward classes of citizens- Scheduled Castes and Scheduled Tribes. State, by virtue of added sub clause (5), can also create preferential opportunities for the enumerated classes in educational institutions, including private educational institutions, whether aided or unaided.

The Article 15 ,while enjoining, inter alia, even upon its citizens a constitutional obligation ,imposes a strict prohibition against creating any disability, liability, restriction or condition against any fellow citizen, on the grounds cited in Clause (1) of the Article, with regard to;

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

The judicial dicta on the reach and scope of Article 15 ,often employs terms and expressions , such as, ‘reverse discrimination’, ‘discrimination based on geographical classification’, ‘discrimination in favour of backward areas’, ‘protective discrimination’ and ‘institutional preference’.

‘Reverse discrimination’ in favour of members of scheduled castes and scheduled tribes is held to be justified , on the anvil of article 15(40 and article 16(4), not only, on the ground of their backwardness but also for parallel ground to ‘right’ a historical ‘wrong’ ( Pardeep jain v Union Of India AIR 1984 SC 1420).

‘Discrimination based on geographical classification’ Such discrimination falls outside article 15 . Its justification can be evaluated on the touchstone of Article 14 ( valid classification criteria).(AIR 1986 SC 1362- also called regional reservation : Nidamurthi v State of Maharashtra( AIR 1986 SC 1362 )

‘Discrimination in favour of backward areas’ Such discrimination falls outside Article 15 . Its justification can be evaluated on the touchstone of Article 14 ( valid classification criteria).

‘Protective discrimination’ The issue of protective discrimination came up in Jagdish Saran v Union of India 1980 AIR SC 820. Court noted that Delhi University discriminated against students of other Universities. Delhi university asserted that it was obliged to protect its students from discrimination by other universities. The question of validity of this discrimination was found unjustified on the touchstone of Articles 14 and 15.

‘Institutional preference’ The practice of preferring students from the same university for higher courses was upheld as valid (Greater Bombay Municipal corporation v T. Anjali , AIR 1989 SC 1194).

Before proceeding further, it would be expedient to briefly dwell on the said five ‘identity factors’ or ’ five grounds’ which form the nucleus of article 15.

**Religion- **Before the nineteenth century, the term “religion” was rarely used. For medieval authors, such as Aquinas, the term religio meant piety or worship, and was denied of “religious” systems outside of what he considered orthodoxy (Harrison 2015). The term “religion” obtained its considerably broader current meaning through the works of early anthropologists, such as, E.B. Tylor (1871), who systematically used the term for religions across the world. Natural philosophers, such as Isaac Newton, Johannes Kepler, Robert Hooke, and Robert Boyle, sometimes appealed to supernatural agents in their natural philosophy (which we now call “science”). Still, overall there was a tendency to favor naturalistic explanations in natural philosophy. This preference for naturalistic causes may have been encouraged by past successes of naturalistic explanations, leading authors such as Paul Draper (2005) to argue that the success of methodological naturalism could be evidence for ontological naturalism. Some studies suggest that religion draws more upon an intuitive style of thinking, distinct from the analytic reasoning style that characterizes science (Gervais and Norenzayan 2012). On the other hand, the acceptance of theological and scientific views both rely on a trust in testimony, and cognitive scientists have found similarities between the way children and adults understand testimony to invisible entities in religious and scientific domains (Harris et al. 2006). Moreover, theologians such as, the Church Fathers and Scholastics were deeply analytic in their writings, indicating that the association between intuitive and religious thinking might be a recent Western bias.

Regardless of the philosophical or metaphysical debates on aspects of religion, the Constitution of India uses the term religion in Article 25 in a pragmatic manner which even implicitly recognizes that religion may not necessarily be theistic (thus even pagan and heathens form amorphous religious identities). In A.S. Narayana v State of Andhara Pradesh AIR 1996 SC 1765(para 89), Hon’ble Supreme Court acknowledged that it is difficult to define the expression of religion and religious practices or beliefs. Thus, polytheism, henotheism, monotheism, monism, advaitism and multiple other religious classifications have been recognized by the Courts in the course of their adjudicatory function.

The complex and paradoxical concept of equality was retrieved even from the mystic world of religious texts and age-old practices in a case popularly known as Sabrimala temple case (Indian Young Lawyers Association vs. State of Kerela 2019 11 SCC 1).

In The Commissioner Hindu religious Endowments Madras v Sri Lakshmindera Thirtha swamiar Of Shri Shirur math AIR 1954 Sc 282 , it was held that “religion is certainly faith of the individuals and communities and it is necessarily not theistic. A religion has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to spiritual well being, it would not be correct to say that religion is nothing else but a doctrine or belief”.

In Most Rev.PMA Metropolitan v Moran Mar Marthoma,AIR 1995 SC 2001, it was held : ” religion is the belief which binds spiritual nature of men to a supernatural being .”It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is civil in nature and includes right to practice it, preach it, and profess it.

Race- Grouping of humans based on shared physical and social qualities into categories generally viewed as distinct and different from other classifications by the society is a determinant of racial identity. A race has got common phenotypical traits which are described in well documented phylogenetic trees describing folk taxonomies. The expression ‘race’ was also described as ancestrally differentiated populations which were also described as clades. Philosopher Robin Anderson used cladistics as a tool to categorize human races biologically. Race is a social construct. Max Weber describes such sociological stratification as intra-generational differentiation. Bordieu, another sociologist, explained the race by using a metaphor of social spheres. As per the said metaphor, social positions of the individuals and social lifestyles were dotted and correlated to understand the cultural and social characteristics of particular races as well as the mutual distinctions between any two races. Constitution of India does not recognize any race for a favour or disfavour.

Caste- Caste is a closed, often walled, social stratification system in which people inherit their social position/ status within a society.

In colonial Spain, the expression to define such socially stratified groups was castas. The term caste was defined to the Indian Society in 17^th^ Century by the Portuguese. The Dutch ethnographic studies also refer to the social stratification as caste. In Latin America, caste signifies race, ethnicity as well as economic status.

In India, Caste system consisted of four categories known as Varnas. The said Varnas were Brahmins (Priests), Kshatriyas (Warriors), Vaishyas (Commerce) and Shudras (Workmen). Some people found themselves as ‘left-outs’ in the said classification of four Varnas and they came to be socially treated as outcastes or untouchables. The said classification of four Varnas has its genesis in a documented form in 200 B.C. The said document is known as Manusmriti. Caste system also gives rise to practice of endogamy which has metamorphosed over the period of time , within some echelons of Varnas, while excluding the disadvantaged castes. The Constitution of India addresses the entire issue relating to all identified classes for the purpose of special provisions in their favour and for their advancement. Article 330-342 and Article 366(24) read with Schedule V, VI of the Constitution of India elucidate the castes and tribes recognised for special favours to secures their upliftment.

Article 341 and Article 342 authorize President of India to issue a notified order in respect of each state specifying the castes races and tribes which are to be regarded as scheduled caste and mutatis mutandis scheduled tribe. President has issued Constitution(Scheduled Castes)Order 1950 and Constitution(Scheduled Castes) Union Territories Order 1951. Clause 2 of 1950 order provides for castes, races and tribes which are deemed to be scheduled castes in the states mentioned in part 1 to part 30 of the said order. Para 3 of the said order states that ‘notwithstanding anything contained in para 2, no person professing a religion other than Hindu or Sikh shall be deemed to be a member of scheduled caste’.

In B C swain v W & T department ( AIR 1974 Ori 115) it was held that although harijans do not fall within scheduled castes and scheduled tribes, the court can take judicial notice of the fact that they were socially and educationally backward.

Sex- In the context of identity perspective the expression ‘sex’ not only signifies gender recognition but also connotes and signifies sexual orientations and proclivities.

In this regard it is relevant to refer to two recent cases decided by Supreme Court of India :

In National legal Services Authority v Union of india, (2014) 5 SCC 438, the issue of conventional binary of gender, said to be based on Corbett principle of biological test was discarded, in favour of psychological test of self identification in favour of the persons described as transgender, eunuch and hijras. Various guidelines were issued by Hon’ble Court to ensure that gender equality is practically ensured to what came to be called as the ‘third gender’, for all intents and purposes.

Dealing with another aspect of sexual orientation, in Navtej Singh Johar v Union of India (2018) 10 SCC 1. As per the judicial exposition of the right to equality laid down in the said case, the pith and substance of Section 377 of the Indian Penal Code stood deeply probed in the light of legitimate sexual orientations of humans and by well reasoned conclusions the said provision in Indian penal code stands decriminalized. The judges, in unanimity, found the said section 377 IPC to be an embodiment of cultural bias, without any valid and scientifically supported rationale and hence ‘manifestly arbitrary’. It was emphatically ruled that sexual orientation cannot be shrunken into a canonical or puritanical rhythm of life. Thus now legalized rights of non-canonical consensual sexual activities between the consenting parties are pulled out of taint of criminality or illegality. The so decriminalized activities need to be kept off from public life and to remain cleared of the patina of obscenity, if any citizen intends to resort to the same as a legally valid right. With such reasonable restrictions, the entire spectrum of non canonical sexual orientation of human life stands legally sanctified, within the celebrated ideals of equality.

Place of birth- Place of birth of any Indian, whether in a hostile country or any other part of the world cannot be a ground for discrimination if such person claims constitutional rights out of any discriminatory action of the State. Domicile and place of birth are not synonymous. The prohibition in Article 15 is restricted to discrimination based on place of birth and cannot be extended to discrimination based on domicile (D.P Joshi vs. State of Madhya Bharat, AIR 1955 SC 334)

Socially and educationally backward classes- parameters which are taken into consideration by a state for defining such classes in the state have to be documented and a fair procedure has to be adopted to identify these classes.

Article 15 as originally enacted, contained only three sub clauses. Sub Clause 4 was inserted by first constitutional amendment in the year 1951. The said amendment was necessitated as a result of decision in Madras vs Champakaun Dorairajan (AIR 1951 SC 226). The ratio of the said judgment led to quashing of a government order which was challenged as a ‘communal order’.

Another relevant aspect of this Article is that sub clause (3), (4) and (5) do not confer any right on a citizen, much less a fundamental right on the citizens. The said 3 sub clauses of Article 15 simply empower the State to take some reasonable steps, at variance with the quintessential tenor and substance of the main Article 15.

As Article 16(4), Article 15(4) confer a discretion on the state and do not create any constitutional duty or obligation, therefore, no mandamus can be issued either to provide for reservation or for relaxation in admission in Universities (Union of India v. R. Rajeshwaran (2003) 9 SCC 294)

Article 16

If we view the constitutional scheme of fundamental rights in a scientific perspective, we can broadly reach a conclusion that if the effulgence of Article 14 is treated as an ‘incident ray’, Articles 15 to 18 necessarily appear on the specified surfaces as ‘reflection rays’, in consonance with laws of reflection.

The text of the said Article 16 reads as under;

16. Equality of opportunity in matters of public employment

1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State,

2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

3. Nothing in this article shall prevent Parliament from making any law prescribing, in egard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

4. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which in the opinion of State are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.

Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Analogous provisions in other constitutions;

I) Article VI of the constitution ofUnited States

II) ii) Section 116 Of Commonwealth Of Australian Constitution Act

III) iii)Section 275 and298 (1) of Government of India Act 1935, article 29 of the constitution of People’s Republic of Bangladesh

Amendment of Article 16: This Article is amended by the Constitution (Seventh amendment) Act 1956, by the Constitution (seventy seventh) amendment Act 1995 and also by the Constitution (eighty first amendment) Act 2000. Clause (4A) empowers the State to make any provisions for reservation in promotion in Government jobs in favour of SC’s and ST’s if the State is of the opinion that they are inadequately represented in the services under the State. This amendment is made to nullify the effect of the Supreme Court decision in Indra Sawhney v Union of india (AIR 1993 SC 477) in which the Supreme Court held inter alia that reservation in promotion ought not to be made. The new clause (4B) ends the 505 ceiling on reservation for SC, ST and OBC in backlog vacancies which could not be filled due to the non availability of eligible candidates of these classes in the previous years. The new clause provides that the unfilled vacancies would be treated as a separate class and would be filled in succeeding year or years and will not be counted with vacancies of the year in which they are being filled up, even if the limit of 50% imposed by the Supreme Court in Indra Sawhney’s case (AIR 1993 SC 477) is crossed. In that case 50% limit was laid down for both current as well as backlog vacancies. This Article was affected by the Constitution (Eighty-second Amendment) Act 2000 which is intended to restore the relaxation in qualifying marks and standard of evaluation for job reservation and promotion of Scheduled Castes and Scheduled Tribes by inserting a new proviso to Article 335 of the Constitution.

Constitutional (Eighty Fifth Amendment) Act 2001:

By this amendment the words “in matters of promotion to any class” in clause (4A) are to be substituted by the words “in matters of promotion, with consequential seniority, to any class” with retrospective effect from 17^th^ June 1995.

The fundamental right under article 16 is ‘equality of opportunity’ and not ‘reservation’ per se. Thus the seekers of a right to the concession of reservation are barred from invoking Article 32 for enforcement of their claim for reservation. (EV Chinnaiah Vs. State of AP, 2005 (1) SCC 394, 414 Para No.31; Arunachal Pradesh Public Service Commission Vs. Baloji Badhavath, 2009 (5) SCC 1, Para No.18).

In the sociological perspective the following words of Emile Durkheim an eminent sociologist hold an important massage for any nation grappling with the grave challenges of constitutionalism. We, in india, need to travel beyond the stark reality of political paradigms questioning the concept of a nation through a painful metaphor: Delhi, A capital In Search of a Nation. The nucleus of nationhood is fraternity and promotion of fraternity is avowed ideal enshrined in the preamble of the constitution of India. In this regard, an eminent sociologist Emile Durkheim opines:

“Law is a social fact: the collective consciousness of the society codified to govern acts of citizens in order to ensure social harmony. More specifically, civil law codifies norms of conduct between individuals in society; although acts which are categorized as criminal acts are done against individuals, they are an attack on the organic solidarity of society. Criminal acts are thus not only harmful to their victims but also to the society.”

The ‘social harmony’ theme of jurisprudence is profound and abstract, especially in a democracy with extraordinary complex diversity, across the length and breadth of its social trajectories. The pursuit of gaining the confidence of amorphous and diversity-ridden masses describable as the ‘otherness’ of society ( the alienated and politically hostile segments of society) by a political leader is a great challenge for the Indian society. However, India, a nation quintessentially representing an age old civilization, has been engaging itself quite energetically in this critical challenge of conquering ‘otherness’ with irrepressible political Will and will certainly succeed in its earnest endeavours.

While dwelling upon the details of such complex legal issues, Hon’ble Supreme Court stated as under;

“The principle of equality is a delicate, vulnerable and supremely precious concept for our society. It is true that it has embraced a critical and essential component of constitutional identity. The larger principles of equality as stated in Articles 14, 15 and 16 may be understood as an element of the ‘basic structure’ of the constitution and may not be subject to amendment, although, these provisions, intended to configure these rights in a particular way, may be changed within the constraints of the broader principle. The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity.” K.G. Balakrishnan, C.J. in Ashoka Kumar Thakur v. union of India, (2008) 6 SCC 1, para 118

Having at hindsight, the aforesaid observation of the Hon’ble Supreme Court, we need to have a relook at this constitutional provision engrafted in chapter 3 of Constitution of India to ensure equality of opportunity in the matters of public employment.

‘Public Employment’ is an expression that connects nature and scope of employment under reference with the overarching personality of the State, even if such connect is not deep and is limited only to some noticeable facet or extent. ‘State’ as defined in Article 12 of the Constitution of India, includes its instrumentalities.

While Article 16(1) is a mandate to the State to ensure equality of opportunity for all citizens in the matters relating to the employment or appointment, Clause (2) of the Article prohibits any discrimination against the citizens on the grounds specifically enumerated in the said Article.

It would be relevant to understand the content, context and scope of the said terms i.e.

The complex and paradoxical concept of equality was retrieved even from the mystic world of religious texts in a case popularly known as Sabrimala temple case (Indian Young Lawyers Association vs. State of Kerela 2019 11 SCC 1).

In The Commissioner Hindu religious Endowments Madras v Sri Lakshmindera Thirtha swamiar Of Shri Shirur math AIR 1954 SC 282 , it was held that “religion is certainly faith of the individuals and communities and it is necessarily not theistic. A religion has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to spiritual well being, it would not be correct to say that religion is nothing else but a doctrine or belief”.

In Most Rev.PMA Metropolitan v Moran Mar Marthoma,AIR 1995 SC 2001, it was held : ” religion is the belief which binds spiritual nature of men to a supernatural being .”It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is civil in nature and includes right to practice it, preach it, sand profess it.

Caste- Caste is a closed, often walled, social stratification system in which people inherit their social position/ status within a society.

Article 341 and Article 342 authorize President of India a notified order in respect of each state specifying the castes races and tribes which are to be regarded as scheduled caste and mutatis mutandis scheduled tribe.The President has issued Constitution(Scheduled Castes)Order 1950 and Constitution(Scheduled Castes) Union Territories Order 1951. Clause 2 of 1950 order provides for castes, races and tribes which are deemed to be scheduled castes in the states mentioned in part 1 to part 30 of the said order. Para 3 of the said order states that ‘notwithstanding anything contained in para 2 no person professing a religion other than Hindu or Sikh shall be deemed to be a member of scheduled caste’.

In B C swain v W & T department ( AIR 1974 Ori 115) it was held that although harijans do not fall within scheduled castes and scheduled tribes, the court can take judicial notice of the fact that they were socially and educationally backward.

Sex- It is in this context of identity perspective the expression ‘sex’ not only gender recognition but also signifies all relevant sexual orientations.

In this regard it is relevant to refer to two recent cases:

In National legal Services Authority v Union of india,(2014) 5 SCC 438, the issue of binary of gender based on Corbett principle of biological test was discarded in favour of psychological test of self identification in favour of transgenders, eunuchs and hijras. Various guidelines were issued by Hon’ble Court to ensure that gender equality is practically ensured to the third gender for all intents and purposes.

Place of birth- Place of birth of any Indian, whether in a hostile country like Pakistan or any other part of the world cannot be a ground for discrimination if such person claims constitutional rights out of any discriminatory action of the State. Domicile of birth and place of birth are not synonymous. The prohibition in Article 15 is restricted to discrimination based on place of birth and cannot be extended to discrimination based on domicile (D.P Joshi vs. State of Madhya Bharat, AIR 1955 SC 334)

Socially and educationally backward classes- parameters which are taken into consideration by a state for defining such classes in the state

Class defined- Santram v Labh Singh AIR 1985 SC 314 para 4

Descent — It primarily signifies hereditary status. Thus Hereditary officers Act became void. In Gazula Dashratha Rama Rao v AP ( 1961 AIR SC 572) the hereditary mode of selection process to the post of village munsiff under Madras hereditary Village Officers Act 1895 was held void, while holding that the said post is an office under the State.

Clause (3) to Clause (5) contain a principle of affirmative obligation to bind the State to frame appropriate law, provision or policy for extending in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, any such advantage as maybe relevant for securing justice in favour of the enumerated classes of persons.

Employment and appointment are synonymously used expressions and refer to all horizontal or vertical aspects of employment, including promotion.

Thus this Article 16 embodies principle of non-discrimination juxtaposed with principle of an affirmative State action as a constitutional obligation for ensuring that ‘unequals’ in the society are brought at a level where they can compete with others (Union of India v. Pushpa Rani, (2008) 9 SCC 242, para 39).

Article 16 permits, inter alia, the following classifications, subject to the test of reasonableness:

Direct recruits and promotees (Mervyn Coutinda v. Collector of Customs AIR 1967 SC 52)
Between special recruits and promotees (Saxena Anand Prakash v. Union of India AIR 1968 SC 754, State of Mysore v Narsimha Rao (AIR 1968 SC 349, Rajindran CA vs. UOI AIR 1968 SC 507)
Higher and Inferior classes or grades in the same service , Employees of Railway and Employees of Central secretariat. (Rajindran CA v UOI AIR 1968 SC 507)

In a famous case, Mandal Commission Case (Indra Sawhney v. UOI, AIR 1993 SC 477), Hon’ble Supreme Court, after examining multiple aspects of classifications permissible within the scope of Article 15 and Article 16, inter alia observed:

Article 16(4) refers to the word ‘provision’ as distinguished from the word law used in clauses 3 and 5 of Article 16 employ the expression ‘law’.A reading of the said clause 16(4) clearly discloses that it does not contemplate the intended reservation only through a legislative act but by executive orders as well.
For backward classes reservation has to be made only under 16(4), since these classes have been taken out of the classes mentioned in Article 16 (1).
Reservations can take various forms including, preferences, concessions, exemptions, relaxations, extra facilities etc.
Word ‘class’ is used in in the sense of a social class. Caste is not antithetical to class.
In identification of backward class , ‘caste’ per se is not the main determinant. Thus backward class does not necessarily mean backward caste.
A ‘means test’ need to be adopted to exclude the creamy layer from the reservation benefits with an object of optimal percolation of reservation benefits across the identified backward classes.(para 86)
Clause (4) of Article 16 is not in the nature of an exception to Clause (1) of that Article, as held in some cases. But an instance of classification permitted under Articles 16(1) and (2) and the concession in favour of backward classes have to be reconciled in such a manner that it does not unreasonably encroach upon the field of equality. (Post Graduate Institute of Medical Education and research, Chandigarh v faculty Association, (1998) 4 SCC 1 (para 32): AIR 1998 SC 1767)
Like Article 14, Article 16(4) permits of reasonable classification (Indra Sawnhey v UOI, AIR 1993 SC 477( para 57)
Clause (4) of Article 16 is an instance, and elaboration of, the principle of classification which is inherent in Clause (1) (Indra Sawhney v UOI, AIR 1993 SCC 477 (para 57 and 396)
Clause (4) is exhaustive of the concept of reservation in favour of backward classes. It does not follow however that Clause (1) does not follow however that Clause (1) does not permit of any reservation for any class other than backward, e.g. persons with disability . (Rajeev Kumar Gupta v UOI (2016) 13 SCC 153). But in the latter case the reservation will be valid only if it satisfies the test of reasonable classification and the State shall have to satisfy that such a provision was necessary in the public interest to redress an exceptional situation (Indra Sawhney v UOI, AIR 1993 SC 477 (paras 59 and 399): 1992 Supp. (3) SCC 217-9-Judges
Thus, as regards the conditions of service relating to employment such a salary, increment, gratuity, pension and age of superannuation, there can be no exception even in regard to the backward classes of citizens. The only matter which clause (4) covers is a provision for the reservation of appointments in favour of a backward class of citizens. (Indra Sawhney v UOI, AIR 1993 SC 477 (paras 57, 58, 94A, 292, 396, 399-400): 1992 supp. (3) SC 217- 9 Judge Bench).

Clause (4) of Article 16 permits reservation for the backward classes of citizens who are not, in the opinion of the State, adequately represented in the services of the State. It does not permit reservation for any person who does not belong to backward classes nor does it enable the State to reserve posts on communal lines ( Venkataramana B v. state of Madras AIR 1951 SC 229)

Excerpts from the said judgement of nine judges bench ( 3 judges dissenting ) in Indra Sawhney v Union of India, being majority view, to elucidate the reach and scope of Article 16 and are being reproduced hereunder for reference;

Para 82. The above material makes it amply clear that a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return - they do, barring a few exceptions they go into the same fold again. It doesn’t matter if he has earned money. He may not follow that particular occupation. Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class - the caste - that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community. As observed by Dr. Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind though not exclusively - while enacting Article 16(4). Urbanisation has to some extent broken this caste- occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber by caste continues to do the same job - may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the same job though he may have a laundry of his own. May be some others too carry on the profession of barber or washerman but that does not detract from the fact that in the case of an over-whelming majority, the caste-occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of a washerman or vice versa would indeed be a rarity - it is simply not done. There, one is supposed to follow his caste occupation, ordained for him by his birth. There may be exceptions here and there, but we are concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not only in low social position but also in poverty; it generates poverty. ‘Caste-occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centers, there may be some dilution. But since rural India and rural population is still the overwhelmingly predominant fact of life in india, the reality remains. All the decisions since Balaji speak of this ‘caste-occupation-poverty’ nexus. The language and emphasis may very but the theme remains the same. This is the stark reality notwithstanding all our protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to be encouraged. It should not be. It must be eradicated. That is the ideal - the goal. But any programme towards betterment of these sections-classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand - Ostrich-like - wouldn’t help. One cannot fight his enemy without recognizing him. The U.S.Supreme Court has said repeatedly, if race be the basis of discrimination - past and present - race must also form the basis of redressal programmes though in our constitutional scheme, it is not necessary to go that far. Without a doubt, an extensive restructuring of socio-economic system is the answer. That is indeed the goal, as would be evident from the preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect of equality emphasised in Article 16(4) - equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it.

Para 83. Now, we may turn to the identification of “backward class of citizens”. How do you go about it? Where do you begin? Is the method to very from State to State, region to region and from rural to urban? What do you do in the case of religions where caste system is not prevailing? What about other classes, groups and communities which do not wear the label of caste? Are the people living adjacent to cease-fire line (in Jammu and Kashmir) or hilly or inaccessible regions to be surveyed and identified as backward classes for the purpose of Article 16(4)? And so on and so forth are the many questions asked of us. We shall answer them. But our answers will necessarily deal with generalities of the situation and not with problems or issues of a peripheral nature which are peculiar to a particular State, district or region. Each and every situation cannot be visualised and answered. That must be left to the appropriate authorities appointed to identify. We can lay down only general guidelines.

At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes - for it cannot be denied that Scheduled Castes include quite a few castes.

Coming back to the question of identification, the fact remains that one has to begin somewhere - with some group, class or section. There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes/groupings, more particularly when Article 16(4) seeks to ameliorate social backwardness. What is unconstitutional with it, more so when caste, occupation, poverty and social backwardness are so closely inter-twined in our society? [Individual survey is out of question, since Article 16(4) speaks of class protection and not individual protection]. This does not mean that one can wind up the process of identification with the castes. Besides castes (whether found among Hindus or others) there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. For example, in a particular State, Muslim community as a whole may be found socially backward. (As a matter of fact, they are so treated in the State of Karnataka as well as in the State of Kerala by their respective State Governments). Similarly, certain sections and denominations among Christians in Kerala who were included among backward communities notified in the former princely State of Travancore as far back as in 1935 may also be surveyed and soon and so forth. Any authority entrusted with the task of identifying backward classes may well start with the castes. It can take caste ‘A’, apply the criteria of backwardness evolved by it to that caste and determine whether it qualifies as a backward class or not. If it does qualify, what emerges is a backward class, for the purposes of Clause (4) of Article 16. The concept of ‘caste’ in this behalf is not confined to castes among Hindus. It extends to castes, wherever they obtain as a fact, irrespective of religious sanction for such practice. Having exhausted the castes or simultaneously with it, the authority may take up for consideration other occupational groups, communities and classes. For example, it may take up the Muslim community (After excluding those sections, castes and groups, if any, who have already been considered) and find out whether it can be characterized as a backward class in that State or region, as the case may be. The approach may differ from State to State since the conditions in each State may differ. Nay, even within a State, conditions may differ from region to region. Similarly, Christians may also be considered. If in a given place, like Kerala, there are several denominations, sections or divisions, each of these groups may separately be considered. In this manner, all the classes among the populace will be covered and that is the central idea. The effort should be to consider all the available groups, sections and classes of society in whichever order one proceeds. Since caste represents an existing, identifiable, social group spread over an overwhelming majority of the country’s population, we say one may well begin with castes, if one so chooses, and then go to other groups, sections and classes. We may say, at this stage, that we broadly commend the approach and methodology adopted by Justice O.Chinnappa Reddy Commission in this respect.

We do not mean to suggest - we may reiterate - that the procedure indicated hereinabove is the only procedure or method/approach to be adopted. Indeed, there is no such thing as a standard or model procedure/approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the court has no say in the matter. The only object of the discussion in the preceding para is to emphasise that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward.

Para 83A. The only basis for saying that caste should be excluded from consideration altogether while identifying the Backward Class of Citizens for the purpose of Article 16(4) is Clause (2) of Article 16. This argument, however, overlooks and ignores the true purport of Clause (2). It prohibits discrimination on any or all of the grounds mentioned therein. The significance of the word “any” cannot be minimised. Reservation is not being made under Clause (4) in favour of a ‘caste’ but a ‘backward class’. Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4). Even that is not enough. It must be further found that that backward class is not adequately represented in the services of the State. In such a situation, the bar of Clause (2) of Article 16 has no application whatsoever. Similarly, the argument based upon secular nature of the Constitution is too vague to be accepted. It has been repeatedly held by the U.S. Supreme Court in School desegregation cases that if race be the basis of discrimination, race can equally form the basis of redressal. In any event, in the present context, it is not necessary to go to that extent. It is sufficient to say that the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the State. Born Heathen, by baptism, it becomes a Christian - to use a simile. Baptism here means passing the test of backwardness.

The 77^th^ Amendment of Constitution of India, literally erased the upgraded spectrum of navigational methodology in the context of the equitable social spreads of reservation benefits as fairly scripted by the constitutional Bench.

Justice K.S Hegde in State of Maharashtra v Nasimkhan Ahmad Khan (1970) 2 SCC454 para 9 rightly observed that “if social wrongs are sought to be remedied in the streets then there can be neither peace nor progress. Without progress the attainment of social justice is impossible.”

Today even the dicta of courts, upon being loosely-wrapped in the ‘social wrong dossier’, is sought to be remedied in the ‘streets’. As angels fear to tread such streets, politicians, with all their might, rush in to re-write the scripts of perpetual reinforcement of their vote banks even though these scripts turn out be scripts of perpetual injustice.

Thus this Article 16, read, mis-read and re-read in different political streets and political camps, stands literally reduced into a textual embodiment of hypersensitive and combustible social facts, distanced from the sacred underpinnings of its philosophy. Today Article 16 stands in its Janus-headed manifestation on the political centre-stage, in our disparity-ridden democracy. In the absence of a any credible political leadership amongst the targeted beneficiaries, the de-contextualized ‘letter and spirit’ of this Article is literally being dragged from court to court, in pursuit of the ‘ideals’ which already stand burnt and buried by toxic concoctions of ‘vote-bank-shaped’ political ideologies.

William Shakespeare, the great bard of Avon, so aptly ponders over the intrinsic duality of opportunity — bright shade and dark shade. His following words resonate even today on the stage of life;

“O, Opportunity, thy guilt is great!

‘tis thou that executest the traitor’s treason;

Thou sets the wolf where the the lamb may get;

Whoever plants the sin, thou point’s the season;

‘tis thou that spurn’st at right;

And in thy shady cell, where none may spy him’

Sits sin, to seize the souls that wander by him.”

Article 17

The smouldering fire of the text of Article 17 compels one to cogitate over the facticity ( Kindly refer to the German equivalent Faktizutat — Johann Gottlieb Fichte ) of ‘caste’, as birth—based stratification, in its worst form, as it exists in different parts of the world, besides its multilayered forms of anthropocentric absurdities in India. In this regard the history of ‘cagot’( pronounce KAGO) people needs to be explored even though it is presently obscure in Europe. Some researchers opine that such obscurity arises as it has been cautiously erased. The cagot descent in Eurpoe was treated as an accursed reality of blood-line. If family trees in anthropological and sociological treatises of Europe are searched the obscurity of caste system will vanish. In many villages or towns in Pyrenees (Western France and Northern Spain), such study would ipso facto reveal that caste of ‘cagots’ lived in France and since 13^th^ century. As per documented facts this caste of ‘cagots’ was treated as ‘untouchables’. These castes were also referred to as Agotes, Gahets, capets, Caquex and were treated inferior to peasantry in several ways. Traces of this are also available in the sociological landscapes of the day, such as, Campann or hagetman. These castes were socially coerced to live in ghettoes on the malarial side of rivers and their ghettoes were known as cagoteries. In the churches they had to use their own doors. At least 60 Pyrennean churches still bear the marks ‘cagot Doors’. They had their own fonts. They were given communion on the end of long wooden spoons. When a cagot came to a town he had to report their presence by shaking a rattle, just like the then practice for the lepers. They suffered highest form of apartheid. Some of the prohibitions on cagots were bizarre. They were not allowed to walk barefoot, like normal peasants of the day. They were not allowed to east alongside non-cagots, nor were permitted to share dishes. They were not allowed to touch parapets of bridges. Even the poetry of 16^th^ and 17^th^ century laments occasional but socially diasapproved misalliances (marriages between cagots and non- cagots were strongly opposed by society).In 18^th^ century prosperous cagots in the Landes were caught using fonts of non cagots.- his hands were chopped off. The fields of cagots were verboten. In another documented case feet of a cagot were spiked with hot in for transgressing such social prohibition.Even today separate cemetery for cagots exists in Bentayoo Seree, a tiny village of Pau. References to such dark social reality are abundantly available in Franscisque Michel’s Hisotrie Des races maudites (History of the cursed races). The stark social realities of descent-based discrimination faces by ‘sami’ also known as Lapps across northern Sweden, Norway and Finland as well as by ‘Rusyns’ in Ukraine are also almost identical. Apart from Europe, African countries are socially afflicted by caste based discrimination.

Close-walled caste system also exists in Nepal, Pakistan, Srilanka, Indonesia, Philippines, China, Mangolia, Tibet, Korea, Iran, Yemen, Nigeria. Some historians and sociologists including Gerald D Berreman, W. Lloyd Warner also traced existence of caste system in United States of America.

**Art 17. Abolition of of untouchability. “**Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchablity” shall be an offence punishable in accordance with law.

Article 17 is enshrined in the constitution as a positive force to liberate the society from the blind and ritualistic adherence and traditional beliefs which lost all legal and moral foundation. It seeks to establish a new order for society —equality to Dalits, at par with the general public, absence of disabilities, restriction or prohibition on grounds of caste or religion, availability of opportunity and sense of being participant in the mainstream national life.( State Of Karnatka v Appa Ballu Ingale AIR 1993 SC 1126)

The word untouchability is used in the Article in inverted commas. This signifies that the said term is not used in its literal or grammatical sense, but means and signifies a practice as developed historically in India. However, in literal construction even lepers or patients of epidemic or contagious diseases, who suffer some temporary pain of untouchability, would fall in the classification. In this regard the the judicial view expressed in Devarajiaah v Padmanama 1958 AIR Mys 84 elucidates the relevant aspects.

In Pavdai Goundeer v state 1973 AIR Mad 458, it was held that acquisition of land for construction of a colony for Harijans was not violative of article 17**.**

in this article the word untouchable has not been defined. a single judge of Mysore high court has held untouchability ‘as social disabilities historically imposed on certain classes of people by reason of their birth in certain castes and would not include instigation of social boycott by reason of conduct of a person’. ( Devrajia v Padamma AIR 1961 Mad 35)

At the outset , the term ‘Dalit’ needs to be understood in its social and political connotation. This term Dalit was first used by Jyotirao Phule , an eminent social reformer, for the oppressed classes or untouchable castes of Hindus. However, Mahatma Gandhi chose Harijan, meaning children of God,as a descriptive term for oppressed classes or untouchable castes of Hindus.

This Article 17 is not only a post script of a social revolution which culminated in a legalistic and constitutional burial of ‘untouchability’, but a clarion call to awakened citizenry to rise and act sleeplessly, on war footing, by identifying and weeding out the toxic and hazardous ‘residue’ of the hydra-headed socio-cultural virus from social and political landscapes, as active constituents of State .

Justice V.R Krishna Iyer, in State Of Karnaka v Shri Ranganatha Reddy (1977)4 SCC 471 ,meaningfully elucidated the concept of social revolution in his exalted prose as under;

” in a country where the people are, by and large, illiterate, where social revolution is being pushed through by enormous volumes and variety of legislation and where new economic adventures requiring unorthodox jural techniques are necessitous, if legal drafting is to be equal to challenge of change, a radicalization of its methodology and philosophy and an ability for the legislative manpower to express themselves in streamlined, simple, project-oriented fashion is essential.”

In a recent judicial verdict(majority verdict of five judges, one dissenting ) in well known Sabrimala Case , the concept of ‘untouchability’ was dissected from the angle of its origins and painful, nay shameful, consequences. Thus in Indian young lawyers association and others v State of Kerala (2019) 11 SCC 1, the following dicta of the Bench clarifies relevant aspects of the ‘untouchability’ as a social issue ;

346. Manual scavengers have been the worst victims of the system of “purity and pollution”. Article 17 was a promise to lower castes that they will be free from social oppression. Yet for the marginalized communities, little has changed. The list of the daily atrocities committed against Dalits is endless. Dalits are being killed for growing a moustache, daring to watch upper-caste folk dances, allegedly for owning and riding a horse and for all kinds of defiance of a social order that deprives them of essential humanity. The Dalits and other oppressed Sections of society have been waiting long years to see the quest for dignity fulfilled. Security from oppression and an opportunity to lead a dignified life is an issue of existence for Dalits and the other marginalized. Post-independence, Parliament enacted legislations to undo the injustice done to oppressed social groups. Yet the poor implementation of law results in a continued denial which the law attempted to remedy.

347. Article 17 is a social revolutionary provision. It has certain features.

347.1.The first is that the Article abolishes “untouchability”. In abolishing it, the Constitution strikes at the root of the institution of untouchability. The abolition of untouchability can only be fulfilled by dealing with notions which it encompasses. Notions of “purity and pollution” have been its sustaining force. In abolishing “untouchability”, the Constitution attempts a dynamic shift in the social orderings upon which prejudice and discrimination were institutionalized. The first feature is a moral re-affirmation of human dignity and of a society governed by equal entitlements.

347.2. The second important feature of Article 17 is that the practice of “untouchability” is forbidden. The practice is an emanation of the institution which sustains it. The abolition of the practice as a manifestation is a consequence of the abolition of the institution of “untouchability”.

347.3. The third significant feature is that the practice of untouchability” is forbidden “in any form”. The “in any form” prescription has a profound significance in indicating the nature and width of the prohibition. Every manifestation of untouchability without exception lies within the fold of the prohibition.

347.4. The fourth feature of Article 17 is that the enforcement of disabilities founded upon “untouchability” shall constitute an offence punishable in accordance with law. The long arms of the criminal law will lend teeth to the enforcement of the prohibition.

348. The Constitution has carefully eschewed a definition of “untouchability”. The draftspersons realized that even a broadly couched definition may be restrictive. A definition would become restrictive if the words used or the instances depicted are not adequate to cover the manifold complexities of our social life through which prejudice and discrimination is manifest. Hence, even though the attention of the framers was drawn to the fact that “untouchability” is not a practice referable only to the lowest in the caste ordering but also was practiced against women (and in the absence of a definition, the prohibition would cover all its forms), the expression was designedly left undefined. The Constitution uses the expression “untouchability” in inverted comas. The use of a punctuation mark cannot be construed as intent to circumscribe the constitutional width of the expression. The historical backdrop to the inclusion of the provision was provided by centuries of subjugation, discrimination and social exclusion. Article 17 is an intrinsic part of the social transformation which the Constitution seeks to achieve. Hence in construing it, the language of the Constitution should not be ascribed a curtailed meaning which will obliterate its true purpose. “Untouchability” in any form is forbidden. The operation of the words used by the Constitution cannot be confined to a particular form or manifestation of “untouchability”. The Constitution as a constantly evolving instrument has to be flexible to reach out to injustice based on untouchability, in any of its forms or manifestations. Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution.

357. Our society is governed by the Constitution. The values of constitutional morality are a non-derogable entitlement. Notions of “purity and pollution”, which stigmatize individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution. Practices which legitimise menstrual taboos, due to notions of “purity and pollution”, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. Article 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, “in any form”. Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that Article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.”

This Article 17 belatedly awakens the nation to what may be described as a great blot on Indian society- untouchability — which through some unedited texts, attributed to a Papal authority of Hindu religion, named, Manu, mingled with riverine course of beliefs and myths in human life and continued to grow and spread as untreated ‘weed of toxicity’. Such toxicity spread across length and breadth of Hindu society in full public view, and gained deep roots as a ‘pathological disorder’ in Hindu Society. Perhaps it was the religious wrapping of these ‘beliefs and myths’ which benumbed the normal human curiosity and inquisitiveness for a long span of time to question the rationality and sanctity of untouchability in human society. Thus it appears that human mind remained aloof from any serious deliberation over this decadent layer of social stratification. One hopes that a rational evaluation of the stratification paradigm in the course of public debates, if initiated at the enlightened forums of ancient times, could effectively lead to critical questioning about the veracity of these misanthropic ‘beliefs and myths’ to save the society from the curse of the centuries. But it did not happen.

John Greenleaf Whittier, an American poet, rightly said;

“For all sad words of tongue or pen

The saddest are these: It might have been.”

The concept has also been considered from the angle of social justice in the following judgments:

“Social Justice, equality and dignity of person are cornerstones of social democracy. The concept ‘social justice’, which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. ‘Social justice’ is thus an integral part of ‘justice’ in the generic sense. Justice is the genus, of which social justice is one of its species.. The concept of social justice embeds equality to flavour and enliven practical content of ‘life’. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results.

K. Ramaswamy J. in Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42, 67 and 68, paras 18 and 19

“Probably, the injustice of the past, when suddenly set right by the equity of the present, puts on a molested mien and the beneficiaries of the status quo cry for help against injustice to them. The law, as an instrument of social justice, takes a longer look to neutralize the sins of history. Be that as it may, judicial power cannot rush in where even administrative feet to fear to tread.”

V.R. Krishna Iyer J. in T.N. Education Department Ministerial and General Subordinate Services Association. V. State of T.N. , (1980) 3 SCC 97, para 18.

A law existing at the time when the Constitution came into effect would be a law within the meaning of Article 17 (State v Banwari AIR 1951 All 614 (para5)). A person of higher class refusing professional service to a Harijan is punishable as an offence covered by Article 17.(State v. Kishan AIR 1955 MB 207 (paras 8, 9).

Articles 17 and 26- A fundamental distinction between excluding persons from temples open for purposes of worship to the Hindu public in general on the ground that they belong to the excluded communities and excluding persons from denominational temples on the ground that they are not within the benefit of the foundation. The former will be hit by Article 17 and the latter protected by Article 26.(Venkataramana Devaru v State of Mysore AIR 1958 SC 507 (para 24); 1958 SCJ 382)

Protection of Civil Rights Act 1955- object of Article 17. The thrust of Article 17 and the protection of Civil Rights Act 1955 is to liberate the society from blind and ritualistic adherence and traditional beliefs which lost all legal and moral base. It seeks to establish new ideal for society- equality to Dalits, at par with general public, absence of disabilities, restriction or prohibition on grounds of caste or religion, availability of opportunities and a sense of being a participant in the mainstream of national life. In interpreting the said Act the Judge should always keep in mind the constitutional goals and the purpose of the Act and interpret the provisions of the Act in the light thus shed to annihilate untouchability, to accord to the Dalits and the Tribes right to equality, social integration a fruition and fraternity a reality. Thus where the Harijans were stopped from taking water from well on the ground of their being untouchables on the threat of using gun; it was an offence under section 4 of the said Act. (state of Karnataka v Appa Balu Ingale AIR 1993 SC 1126 (paras 4, 35, 36, 38)A Negro was entitled by an injunction to purchase a house from a White who denied sale on the ground of colour and statute 42 USC Article 1982 would apply to both State and private acts of denial of equality. Denial of civil rights on ground of Negro segregation is actionable at law.( Joseph Lee Jones v Alfred H. Mayer Co. (1968) 20 Lawyers’ Ed 2d 1189; 392 US 409)

Purification of Harijans:- The practice of Harijans being permitted to enter the temple of Shri Shrinathji near Udaipur only after being purified by requiring them to wear ‘kanthimala’ and sprinkling them with ‘Gangajal’ (Ganges water) and given them tulsidal prior to entry in the temple amounts to practice untouchability and is violative of Articles 14, 15 and 17. (Surya Narayan Choudhary v State AIR 1989 Raj 99 (para 10))

Article 18

“For the obdurate people will not believe

What they do not see and distinctly feel”

-The journey to the East, Hermann Hesse

[Article 18-Abolition of titles:]{.underline}

(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

This Article marks a historic reform in the society quintessentially in the nature of sanitizing social structures from the symbols and signs of all wayward supremacy. This Article in its affirmative textual philosophy assertively commands complete severance of the practices followed during the British era in respect of conferment of titles. In Britain, titles not only defined the unquestionable supremacy of social status and as a sub-text of title it was ensured that the ‘chosen one’ gets the undeserved priorities besides the best of State resources. In an anecdotal style an author in his recent well researched book, highlighted the social value of a title. Bertrand Russell, an eminent philosopher from the University of Cambridge, had developed art of making public addresses at public places. During one such sessions of public speech, he was beaten by an infuriated mob for speaking against the British policy of participation in World War II. One of his students rushed to a police station to seek assistance of the police for saving his brilliant teacher from the mob brutality. The Officer on duty, when requested by the student to save the Cambridge Scholar during his public address in the neighborhood park on the topic of the folly of the British to participate in World War II, callously told the complainant that such anti-nationals must face the pain of mob fury. The student just uttered that he is not only a Cambridge Scholar but ‘A Lord’. Upon hearing the word ‘Lord’, the officer on duty, in a split of a second, rushed to the spot to save Lord Bertrand Russell, while citizen Bertrand Russell was condemned to meet his fate. In India, titles like Rajbahadur, Raibahadur, Sir, Nawab, Maharaja, were conferred by the British on the ‘faithful Indians’.

At the time of adoption of the Constitution, all titles, except distinctions earned in military or academics, were rendered inconsequential and redundant, lock, stock and barrel, in the context of social recognition and social distinctions.

Article 18(1) prohibits the State from conferring any title, except military and academic distinction, on any person. Article 18(2) and (3) contain a loud and clear mandate to the citizens from accepting any title from a foreign State. However, those who hold office of profit or trust under the State, and are not citizens of India, also need to obtain consent of President of India before accepting any title from the foreign State. Article 18(4) bars any other person holding an office of profit or trust under the State from accepting any present, emolument or office of any kind from or under any foreign State except with the consent of President of India.

This Article 18 does not per se prohibit the State from recognizing and acknowledging merit or work of extraordinary nature of any person by the State. Awards and decorations to recognize excellence in various distinct fields including performance of duties as contemplated in Article 51A of the fundamental duties by any citizen of India. Thus the national awards have been held to be not amounting to titles under Article 18(1) (Balaji Raghavan v. UOI (1196) 1 SCC 361 (paras 28, 29, 30, 31, 32): AIR 1996 SC 770).

Article 19

“Man is condemned to be free; because once thrown into the world, he is responsible for everything he does…

”…Freedom is what you do with what has been done to you” Jean Paul Sartre

19. Protection of certain rights regarding freedom of speech, etc.---(1) All citizens shall have the right--- (a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India;

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

(f)( repealed by the constitution 44^th^ amendment Act 1979, with effect from 20.06.1979)

(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, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations 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 in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or 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 in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions 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 in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,---

(i) the professional or technical qualifications necessary for practising any profession or carrying on 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.

This article corresponds to :

i) First and Fourteenth Amendments to the Constitution of USA

ii) Common Law of England subject to specific statutory laws.

iii)Section 40(6)(1) of Constitution of Eire 1937

iv)18(1) (e) (f) (g) of constitution of Sri Lanka 1972

v)Articles 50 and 51 of Constitution of USSR 1977

vi)Section 298 of Government of India Act 1935

This Article is also co-relatable to some international conventions, including;

(a) Universal Declaration of Human Rights 1948.

(b) International Covenant of Civil and Political Rights 1966

(d) Articles 6 and 12 of International Covenant of Economic, Social and Cultural Rights 1966

Thus in its grand sweep this Article 19 emerges in the constitutional scheme as a citadel of liberty of the citizens of India, while essentially being an embodiment of ‘general thoughts’ underlying the concept of ‘freedom’ in the socio-political domains of life. These ‘general thoughts’ are tersely referred to as ‘general questions raised by this Article’, by H M Seervai, an eminent scholar of constitutional law, in his magnum opus ‘Constitutional Law of India.’

This Article 19, being an amalgam of rights and restrictions, is self clarificatory to the effect that only ‘rights’ enshrined in the text are fundamental, while the restrictions enumerated in the text of the Article, being not quintessentially part of fundamental status, necessarily have to firmly stand on the touchstone of reasonableness.

The expression ‘reasonable restrictions’ used in this article is akin to the expressions : ‘inherent tendency’ or ‘reasonable tendency’ as used in American constitutional law (Hari Dass v Usha Rani Banik AIR 2007 SC 2688).

Another cognate question : whether the test of reasonableness contemplated in Article 14 and the test of reasonableness related to the restrictions mentioned in this Article are same and similar? Insofar as the inbuilt concept of reasonableness in this Article is concerned, the reasonableness of restrictions has to be weighed against the sacrifice/peril of deprivation of the constitutionally guaranteed liberty to the citizens.

In Surajmal v ITC AIR 1961 Cal 578, Hon’ble Bench held that while under Article 14, the law focuses on reasonable classification having reasonable nexus to the object of law, under Article 19, the Court focuses on the reasonableness and constitutional validity of restrictions imposed on the six guaranteed freedoms to rule out any unnecessary weight of any restriction. Hon’ble Bench in the said case held that if equal standard of reasonableness is introduced in Article 14 and Article 19, it would tantamount to holding that the concept of ‘due process’ of American law also forms the core of Constitution of India, which is certainly contrary to the letter and spirit of Indian Constitution. Thus the test of ‘reasonableness’ in both the Articles 14 and 19 stand on different footing, even though often overlapping, at some logical points.

Regarding the test of reasonableness ingrained in the Article 19 for the purpose of evaluation of the questions of the constitutional validity of the imposed restrictions, the following dicta of Apex Court needs to be borne in mind ;

“It is important to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statue impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of value of the judges participating in the decision should play an important part, and the scale of to their interference with legislative judgment in such case can only be directed by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable” (Chintaman Rao V M.P. AIR 1951 SC 118 )

At the outset, it is proper to clarify that the words ‘Nothing in the sub clause…’ clauses (2) to (6) of article 19. This prefixes are inserted ex majore cautela and are not be read or treated as a ‘legislative device’.

The expression ‘in the interest of… ’ employed in clauses (2) to (6) of Article 19 also need to be clarified. The expression signifies that preventive exercise of power to impose restriction, on the touchstone of rationality, stands constitutionally recognized. ( Ramji lal Modi v State of UP, AIR 1957 SC 620 )

The expression ‘in the interest of public order.’ has wider meaning than the expression ‘for maintenance of the public order’. Thus legislature can reasonably curb the utterances which have tendency to cause public disorder ( Virendera v State of Punjab AIR 1957 SC 896 ) or to excite religious disaffection ( Ramji lal Modi v State of UP, AIR 1957 SC 620 )

However, the expression ‘public order’ is narrowly construed and all acts which disturb public tranquility are not treated as per se sufficient to impose restrictions.( Madhu limaye v SDM , Mongyr AIR 1971 SC 2486 )

Another vital question of general nature is: Whether the expression ‘reasonable restriction’ includes ‘prohibition’? This question was affirmatively answered by Apex Court in Narendra Kumar vs Union of India 1960 (2) SCR 387. Hon’ble Bench held as under:

“It is reasonable to think that makers of the constitution considered the word restriction to be sufficiently wide to save laws inconsistent with Article 19(1), or taking away the rights conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of different matters mentioned in the clause. There can be no doubt, therefore that they intended the word restriction to include the cases of prohibition also. The contention that the law prohibiting the exercise of fundamental right is in no case saved, cannot therefore be accepted.”

In another important case, RMD Chamarbaugwala v UOI AIR 1957 SC 628- A question was raised by the Court: ” Can legislature of a State contract away its power to establish such regulations as are reasonably necessary ,from time to time, to protect the public morals against evils of lotteries?”

The said question was answered in the negative through the following words of Justice Krishna Iyer;

“We have no hesitation, in our hearts and our heads, to hold that every systematic, profit-oriented activity, however sinister, suppressive or socially diabolic, cannot ipso facto, exalt itself into a trade. Incorporation of Directive Principles ..casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice-social, economic, and political-shall inform all the institutions of the national life, it is not idle print but command to action. We can never forget, except at our peril, that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women are not abused, that exploitation, moral and material, shall be extradited… At this point, the legal culture and the public morals of a nation may merge, economic justice and taboo of traumatic trade may meet and jurisprudence may frown upon dark and deadly dealings.”

Article 19(1)(g) or Article 301 do not, within their scope, include the activities which are criminal or permit inclusion of all such dealings as are legally categorized as ‘res extra commercium’ (a thing outside commerce).

The history of amendments relating to this Article also elucidates its reach and scope, while unfolding the objects of each clause of this Article.

Clauses (2) and (6) of Article 19 were amended by Constitution First Amendment Act 1951. The following amendments were brought into effect on 18.06. 1951 retrospectively;

i) Addition of new grounds of restrictions upon freedom of speech : friendly relations with foreign states , public order ,incitement to an offence

ii) The erstwhile ground : ‘tends to overthrow the State’ was deleted

iii) Words ‘libel’ and ‘slander’ were replaced by the word ‘defamation’

iv) The expression restriction was inserted to qualify all the grounds

Another amendment in clause (6) of Article 19 freedom of trade, profession was effected and the freedom of trade, profession etc. were qualified by new grounds of restrictions viz. carrying out trade, business industry or service by the State or by a corporation owned or controlled by the State. Thus a citizen cannot claim as a matter of right that such action of the State ousts him from his business etc.

Thereafter through Sixteenth Amendment ( 06.10.1963 ) and Forty Fourth Amendment (30.04.1979 ) , this article was again amended as follows ;

Through 16^th^ Amendment clauses (2) (3) (4) of Article 19 were amended and the ground of maintenance of the sovereignty and integrity of India was included as a ground upon freedom of expression, assembly and association, guaranteed by sub clauses (a) to (c) of clause (1) of this Article.

Forty Fourth Amendment Act 1978 led to omission of sub clause (f) of clause 1 of this Article. Thus the right to property was excluded from the list of fundamental rights.

In Malerkotla v Mohammad Mushtaq AIR 1960 Punjab 18 the court relied upon the Maxim: “it is an everlasting law, that no positive and human law shall be perpetual and a clause which excludes abrogation is not good from its commencement.”

The facts of the said case pertained to challenge of an action of Punjab Municipal committee under section 152 of the Punjab Municipal Act, 1911. The petitioner had converted his house into a brothel and there were multiple complaints against him. A number of persons picked from that house and were prosecuted for carrying out prostitution and other such activities. The municipality of Malerkotla, exercising powers under section 152, evicted them from the premises without providing any alternative accommodation to them. High Court of Punjab, considering the challenge on the anvil of Article 19, reversed the decision of the Sessions Court while holding that Municipal Committee was competent to prohibit the practice of prostitution or keeping of a brothel. The High Court further held that Municipal Committee was under no obligation to provide alternate accommodation.

Another general question is : Whether a corporation is a citizen for the purpose of exercise of rights under Article 19?

In State trading Corporation of India Limited v. CTO,(1963 AIR SC 1811) a nine judge bench with majority of 7:2 held that corporation is not a citizen; therefore, it could not invoke Article 19. In the said case, the question of lifting the corporate veil was not raised before the bench. Thus the decision continues to hold the field for a long spread of time. However, in RC Cooper Vs. union of India AIR 1970 SC 564 (bank nationalization case), Hon’ble Supreme Court decided the rights of 14 nationalized banks under Article 19(1)(f), on the petition of one shareholder, who claimed to be Director of Central Bank of India Limited. But the decision in State Trading Corporation case was not thereby changed. Thus the corporation remains deprived of its recognition as a citizen for the purposes of Article 19.

Dwelling upon the expression ‘clear and present danger’ the following view of Lord Sumner (in Rowman v Secular Society) is relevant ;

“The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the presented by meetings or possessions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before. In the present day reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed by methods not scandalous. Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise. The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experiences in the other; nor does it bind succeeding generations, when conditions have again changed. After all, the question whether a given opinion is a danger to the society is a question of times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the movement, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion… which prevents us from varying their application to the particular circumstances of our time in accordance with that experience. And judgments of the Indian Courts show that the approach indicated by the Lord Sumner is best adapted for determining the reasonableness of restrictions.”

Articles 14, 19 and 21 are not exclusive to each other but intrinsically co-related.(Add Secretary Govt of India Valka Subhash Gadla, 1992 Supp(1)SCC 496 ).

Where Articles 31A , 31 B and 31 C apply, Article 19 is overshadowed and is of no avail.( Srinivasa Raghavchar H. S. v State of karnatka , AIR 1987 SC 1518)

As citizenship itself is not a fundamental right of a person, being subject to legislative competence under Article 11, a person cannot claim infringement of Article 19 consequent upon termination of his citizenship (Izhar Ahmad Khan v UOI, AIR 1962 SC 1052 ).

Article 19 is confined to civil rights in contradistinction with political rights , such as, right to vote ( Ponnuswami NP v Returning Officer AIR 1952 SC 64), right to hold any political office or the privileges of chamber of the legislature(Ananda Nambiar K v Chief Secretary To Govt. of Madras AIR 1966 SC 657 ).

Article 19 covers the domain of natural or common law rights as distinguished from statutory rights, such as right of a lawyer to practice before a court, the right to hold a public office, right to stand as candidate for election to Municipal Body or Legislature etc. Thus rights are available only subject to the restrictions imposed thereon (Jamuna Prasad Mukharia v Lacchi Ram, Air 1954 SC 686 ).

The an unincorporated associations of the citizens cannot be equated with a corporate entity in the context of the claim for invoking Article 19 (All India Bank Employees Association v N I Tribunal, AIR 1962 SC 171.

Article 19 recognizes and guarantees vital and basic rights inherent in the status of free citizen of a free country. Thus right to burn copy of Constitution of India is not protected under this Article . ( Re Nataranjan N.V. AIR 1965 Mad 11).

Besides the aforesaid general questions relating to Article 19, the bunch of individual rights contained in this Article are enumerated in Article19(1) are rights to six (originally seven) freedoms for building a virtuous foundation, through unhindered intellectual self expression and social intercourse, amongst citizens to nurture a progressive, inclusive, productive and positive society.

Instances of unreasonable restrictions in respect of Substantive aspects

Section 3(d) of the Drugs & Magic Remedies (Objectionable Advertisement) Act 1954, provides-”… no person shall take part in any publication of any advertisement referring to any drug which suggested…the use of that drug for- the diagnosis, cure, mitigation treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act”

The rule-making power under the Act was given to the Central Government. Held, that the italicized portion conferred uncanalised and uncontrolled power to the Executive to include, by specifying it in the Rules, any disease within the mischief of the Act, and thus imposed an unreasonable restriction upon the freedom of expression. (Hamdard Dawakhana v. UOI, Air 1960 SC 554: 1960 (2) SCR 671)

Section 8 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, which was enacted “to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith, provided---

“Any person authorized by the State Government … May seize and detain any document, article or thing which such person has reason to believe contains an advertisement which contravenes any of the provisions of this Act…”

Held, that the above provision went far beyond the purposes of the Act and, in the absence of adequate safeguards, constituted an unreasonable restriction on the freedom of expression guaranteed by Article 19(1)(a). (Hamdard Dawakhana v. UOI, Air 1960 SC 554: 1960 (2) SCR 671)

Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, which prohibits Government servants from participating in any demonstration..with any matter pertaining to his conditions of service has been struck down as an unreasonable restriction on the ground that it is wide enough to include within its prohibition even the demonstrations or expressions of ideas which are peaceful and orderly and may not, accordingly, lead to a breach of public order. (Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 (1172): 1962 Supp. (3) SCR 369)
A person detained under the D.I. rules cannot be deprived of his right to publish a book unless the publication itself is prejudicial to the objects of the D.I. Act. (State of Maharashtra v. Pandurang Sanzgiri, Prabhakar, AIR 1966 SC 424: 1966(1) SCR 702)
An instrumentality of the State (e.g. L.I.C.) cannot refuse to publish scholarly criticism of its policies (LIC v Manubhai D. Shah, Prof., (1992) 3 SCC 637: AIR 1993 SC 171). Similarly, Doordarshan cannot deny access to the screen to a film maker whose film has been acclaimed and received a prestigious award. (LIC v Manubhai D. Shah, Prof., (1992) 3 SCC 637: AIR 1993 SC 171).

Instances of unreasonable restrictions in respect of Procedural Aspects

Section 20 of the Dramatic Performances Act, 1876, which empowers an executive officer to restrict a dramatic performance on his subjective satisfaction and without giving an opportunity to be heard to the persons going to be affected by the order, constitutes an unreasonable restriction upon the freedom of expression. (Abbas K.A. v UOI, AIR 1971 SC 481: (1970) 2 SCC 780; Rangarajan S. v Jagjivan P., (1989) 2 SCC 574 : 1989 (2) JT 70)
Section 3(1) of the Punjab Special Powers (Press) Act, 1956, which empowered the State Government to prohibit the bringing into the State of any newspaper, if the Government was satisfied that such action was necessary for the maintenance of communal harmony or public order, has been held to be invalid on the ground that it placed whole matter at the subjective satisfaction of the State Government without even providing for a right of representation to the party affected. ( Virendra v. State of Punjab, AIR 1957 SC 896 : 1958 SCR 308)

Unreasonable restrictions upon freedom of press.

It would not be legitimate for the state-

(a) To subject the press to the laws which take away or abridge the freedom of expression or which would curtail circulation and thereby narrow the scope of dissemination of information or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving to seek Government aid. (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641)

(b) To single out the Press for laying upon it excessive and prohibitive burdens which would restrict the circulation, (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641; Bennett Coleman v UOI, AIR 1973 SC 106 (124-25): (1972) 2 SCC 788: Casebook I, pp259-64) impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media (Virendra v. State of Punjab, AIR 1957 Sc 896: 1958 SCR 308; Sher Singh, S v. R.P. Kapur, Air 1968 Punj 217: 1968 Cri. L
J 775)

(c) To impose a specific tax upon the Press deliberately calculated to limit the circulation of information. (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641)

(d) To require the newspapers either to reduce the number of their pages or to raise their prices, according to a schedule prescribed by the State (Express newspapers ltd. v UOI, Air 1958 Sc 578(614): 1959 SCR 12; I.E. Newspapers v UOI, AIR 1986 SC 515 (paras 42ff.) : (1985) 1 SCC 641), on some ground extraneous to Cl. (2), e.g. the elimination of unfair competition amongst newspapers, (Sakal Papers (P.) ltd v UOI, AIR 1962 Sc 305: 1962 (3) SCR 842; Express Newspapers v UOI , Air 1986 Sc 872 (para 76): (1986) 1 SCC 133), or to fix a manximum page level (Prabha Dutt v UOI , Air 1982 SC 6: (1982) 1 SCC 1)

On the other hand, it would be open to the State to restrict the commercial activities of a newspaper, in the public interest in so far as that can be done without restricting the freedom of expression or circulation of a newspaper. (Bennett Coleman v UOI, Air 1973 Sc 106 (124-25): (1972) 2 SCC 788 Casebook I, pp. 259-64). Thus the right to publish an advertisement is not a part of the freedom of expression but, if a restraint on advertisement curtails circulation, it would offend Article 19(1)(a). (Bennett Coleman v UOI, Air 1973 Sc 106 (124-25): (1972) 2 SCC 788 Casebook I, pp. 259-64)
The freedom of expression of the Press cannot be abridged on the ground of conferring benefit upon the public or any section thereof (Bennett Coleman v UOI, Air 1973 Sc 106 (124-25): (1972) 2 SCC 788 Casebook I, pp. 259-64)

Article 20

“Against Eternal injustice, man must assert justice and to protest against universe of grief he must create happiness”- Albert Camus

20. Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the 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

Analogous Constitution.

This Article corresponds to (i) Article 1, ss. 9(3) and 10 of the Constitution of the United States; (ii) Article 15(5) of the Constitution of Eire 1937; (iii) Article 39 of the Japanese Constitution of 1946; and (iv) Article 1193) of the Constitution of Nepal 1962.

International Organisation.

This Article has close relationship with (i) Article 11(2) of the Universal Declaration of Human Rights 1948; (ii) Article 15(1) of the U.N. covenant on Civil and Political Rights 1966.

Corresponding law

(i) Section 300 of the Criminal Procedure Code 1973; and (ii) section 26 of the Geneal clauses Act 1897 are correlated to Article 20.

Sovereign Legislature is competent to enact retrospective laws. However, as regards criminal legislation, Article 20 speaks of violation of law in force at the time of the commission of the act charged as an offence. It prohibits making of ex post facto criminal law. It also prohibits infliction of penalty greater than which might have been inflicted under the law which was in force when the ‘Act’ was committed. The prohibition contained in this Article does not bar passing of the retroactive law (substantive criminal law) but bars conviction under such law (Kedarnath Bajoria v State of West Bengal AIR 1953 SC 404).

There is nothing in this clause which creates vested right in any course of procedure (UOI v Sukumar Pyne AIR 1966 SC 1206)

The word ‘offence’ is not defined in the Constitution. The definition in Section 3(37) of the General Clauses Act, 1897 is to be applied.

Unless there is law forbidding the doing or omission to do something, no question of punishment comes (Shiv bahadur Singh Rao v. State of UP AIR 1953 SC 394).

Where a law for irrigation provides for levy of a special rate for unauthorized use with retrospective effect, Article 20 (1) is not attracted because there was no law prohibiting the use of water and no punishment for an offence. (Jwala Ram v State of Pepsu AIR 1962 SC 1246)

Where the previous prosecution was null and void- eg. For absence of proper sanction (Collector of Customs v Calcutta Motor and Cycle Company Air 1958 Cal. 682 : 1958 Cri LJ 1469) or for want of jurisdiction of Court (Baijnath Prasad Tripathi v State of Bhopal, 1957 SCr 650: Air 1957 Sc 494) , a fresh trial upon the same facts would not be barred, even though the accused might have served out a part of his sentence before he could obtain his acquittal on appeal, on the ground of want of sanction or jurisdiction (Dattu Pant v Advya Chari Air 1956 Hyd. 127).

Where there was no punishment in the previous proceedings owing to dismissal for default of the complainant, a fresh prosecution would not be barred (Ram Ghei v Ram Kishan AIR 1962 All. 642 : AIR 1952 All 642). Where a conviction is set aside and a retrial ordered, the retrial is a continuation of the same proceedings and not a second prosecution (Mithailal v State AIR 1954 all. 689)

In Rattan Lal v Punjab (1964 ) 7 SCR 676, (‘65) A.SC. 444 it has been held as under:

“Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective..But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition of Article 20.”

In Article 20(1) the law, inter alia, embodies a time tested doctrine which reads: *Nova constitutio futuris formam imponere debet, non praeteritis (*a new law ought to be prospective in its operation and not retro-active ). Thus a law enacted, at a later point of time, from the date of initiating the process in respect of an offence cannot lead to imposition of higher penal consequences on the person already facing prosecution or punishment. This doctrine respects law as prevailing on the date of commission of offence.

The Article will apply only in the event of conviction or sentence under an ex post facto law and not on the basis of trial.

The prohibition is only against judicial punishment with retrospective effect. It does not prohibit enforcement of any other sanction by a civil or revenue authority.( State of WB v S K ghose AIR 1963 SC 255 )

It al;so does not prohibit cancellation of naturalization certificateby reason of act committed prior to the operation of penal lawin question or the imposition ofsome statutory penalityor to enforce civil liability. Shiv Dutt Rai Fateh Chand v UOI AIR 1984 SC 1194 )

‘Law in force’ is defined in section 24 of General clauses Act.

The enlargement of the definition of sexual intercourse was found to be inapplicable to the cases where offence was committed prior to amended law.( Sakshi v UOI SCC(5) 518 )

The proceedings before statutory authorities and penalties imposed would not fall under the term punishment , which means only a judicial penalty awarded by criminal court.

Thus the following are not covered by this Article;

Disciplinary action in case of public servants ( Rama Pc v SSP AIR 1967 Mys 220)

Action against lawyer under legal practitioners Act ( AIR 1952 Mad 725) or under Bar Councils Act

( Joginder Singh v Bar Council AIR 1975 Del 192)

Penalty for jail offences under disciplinary rules of jail ( Maqbool Hussain v St of Bombay AIR 1953 SC 325)

Penalty for jail offences under Prison Act (Pritish Dey v The state AIR 1952 Cal 319 )

Penalties under 167 (8) of Sea Customs act(( Thomas Dana v State Of Punjab AIR 1959SC 375), or under 23 (1) (a) of FERA 1947 (Director of Enforcement v MCTM (1996) 2 SCC 471 )

Penalties prescribed by rules of legislature for breach of privilege (Raj Narain Singh v Atmaram Govind AIR 1954 All 319)

Binding down for good behaviour under section 110 or taking security under section 107 of Cr PC

( Aumugham P v State of madras Air 1953 Mad 664)

In case of preventive detention (Gulam ahmad ashai v State of J and K AIR 1954 J&K 59)

Article 20(2) which is described as principle of autrefois acquit or autrefois convict. This is also called a law against double jeopardy. Whether the principle enshrined in article 20 is also describable as issue estoppel or cause of action estoppel needs to be understood in a legal perspective. There are distinctions between the doctrine enshrined in article 20 and doctrines described as issue estoppel and cause of action estoppel.

The principle of issue estoppel has its origin in Blai v curran (1939) 62 CLR 464. Australian High court stated this principle in the following words;

“a judicial determination directly involving an issue of fact or of law disposes once for all the issue, so that it cannot be raised between the same parties or their privies. The estoppel covers only the those matters which the prior judgement, decree or order necessarily established as the legal foundation or justification of its conclusions that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between ‘res judicata’ and ‘issue estoppel’ is that in the first(‘res judicata’) the very right or cause of action claimed or put in suit has in the former proceedings passed into judgement, so that it is merged and has no longer an independent existence, while in the second (‘issue estoppel’) for the purpose of some other claim or cause of action, a state of factor law is alleged or denied the existence of which is a matter necessarily decided by the prior judgement, decree or order.”

In Ravinder Singh v Sukhbir singh , (2013)9SCC245 , the distinction between double jeopardy and issue estoppel is clarified BY HON’BLE Bench of Supreme Court . The following observation is relevant ;

Para 18 The principle of issue estoppel is also known as cause of action estoppel and the same is different from the principle of double jeopardy or autre fois acquit as embodied in section 403 Cr.PC. The principle applies where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already decided when the accused is tried subsequently even for a different offence, which might be permitted by section 403(2) of Cr.PC. Thus the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence arising out of a transaction, a trial has taken place and the accuse has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at the conclusion inconsistent with the conclusion reached in earlier trial is prohibited by rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in two trials should be the same but also the fact in issue, proved or not, as present in the earlier trial must be identical to what is sought to be re-agitated in subsequent trial. If the cause of action was determined to exist, i.e. judgement was given on it, the same is said to be merged in the judgememnt. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatum .

However,in another case : Hope plantations v Taluk Land Board —Civil appeal 540 of 1986 , Hon’ble Supreme court distinguished ‘issue estoppel’ from ‘cause of action estoppel’ as under ;

“…cause of action estoppel arises where cause of action in the later proceedings, the latter having been between the same parties or their privies and having involved the same subject matter.In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgement…issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in the subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to seeks to reopen that issue. Here also the bar is complete to re-litigation but its operation can be thwarted under certain circumstances…”

Article 20(3) embodies the jurisprudential rule recognized as Nemo Tenetur principle. The legal maxim reads: nemo tenetur selpsum accusare ( no one need to accuse himself) . This principle was also adopted by Fifth Amendment of US Constitution. The practice of self incrimination by accused was followed and persisted in inquisitorial system (where the judge remains involved in throughout the process and actually steers collation and preparation of evidence) of France and Ecclesiastical Courts of England. In the adversarial system of trial, envisaging role of the court as impartial, between prosecution and defence, the principle of Nemo Tenetur gained paramount relevance and constitutional sanctity.

Article 21

“The logic of words should yield to logic of realities”

J. Louis D. Brandeis in Di Santo v Pennsylvania 273 US 34 (1927)

Clouds are not spheres

Mountains are not cones

Coastlines are not circles and bark is not smooth nor does lightening travel in a straight line : Benoit Mandle Brot. Iambic pentameter

Artice 21 : Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.

Analogous Constitutions: This Article corresponds to (i) The Magna Carta of 1215; (ii) The Fifth Amendment of the Constitution of the United States; (iii) Article 40(4) of the Constitution of Eire 1937; and (iv) Article XXXI of the Constitution of Japan 1946. “Due Process” clause has also been incorporated in Article 103 of the Constitution of Federal Republic of Germany.

International Charters: This Article is closely related to (i) Article 3 and 9 of the Universal Declaration of Human Rights 1948; (ii) Article 9 of the U.N. Covenant on Civil and Political Rights 1966; (iii) Article 2 of the European convention on Human Rights 1950. In People’s Union of Civil Liberties v Union of India (1997 1 SCC 301) it has been held that Article 21 of the Constitution of India is to be interpreted in conformity with Article 17 of the International Covenant on Civil and Political Rights 1966 and Article 12 of the Universal Declaration of Human rights 1948 for the purpose of protecting the right to privacy.

The expression ‘life’ used in the text of the Article as central focus places life in a ‘constitutional perspective’ which broadly envisages death as an antonym of life. Such semantics of ‘life’ are certainly at variance with philosophical perspective. The deprivation of life as contemplated in this article, in its literal sense signifies extinction of life in toto.

As the constitutional perspective expanded in the eternally changing realities of human life and new lessons taught by time and tide , the expression ‘life’ broadened in its semantic reach.

Whether ‘right to life’ includes ‘right to die’ was answered in the negative by Supreme Court in Gian Kaur v State Of Punjab AIR 1996 SC 946. The reasons set out in paras 19,21,22,23, 31, 41,42 of the said judgement nullify the ratio of and affirmatively overrule the law laid down in P. Rathinam v UOI 1994 SC 1844. The later view against right to die is also reiterated affirmatively in Lokendera Singh v State of MP (1996 )2 SCC 648 : State of Maharshtra v Maruti Sripat Dubal AIR 1997 SC 411.

In a recent case relating to passive euthanasia , in Aruna Shanbaug case (2011 (4) SCC 454), Hon’ble Supreme Court while expressing their approval about the ratio of Gian Kaur (supra), assuming the role of Parens Patriae allowed passive euthanasia for bringing to an end, with dignity, the life of a vegetative patient. The said judgment recognizes that the right to die is not included in right to life but taking note of vegetative state of the patient and very detailed reports of the doctors, permitted withdrawal of the life support in a guided manner. As regards, the jurisdiction of the Court, where ‘right to die’ which is not a fundamental right, is under challenge, Court invoked the doctrine of Parens Patriae. The following paras of the said judgment are relevant with regard to the question relating to jurisdiction of the Court qua determination of right to die:

“126. The doctrine of *parens patriae (*father of the country) had originated the British law as early as in the 13^th^ century. It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

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130. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as Parens Patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.”

Justice Field in Munu v Illinosis (1877)94 US 113 held: “life means something more than mere animal existence and the inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed.”

In the spectrum of constitutional law in india, ‘life’ is held to signify not only animal existence but every such fact or circumstance that give meaning to life, including, traditions, culture, heritage in its full measure, which falls even in the expanded concept of Art ( Ramsharan Autyanuprasi v UOI, AIR 1989 SC 549).

‘Life includes livelihood’ has been an oft—debated hypothesis in the constitutional law. Life was held to include livelihood in Olga tellis v Bombay Municipal corporation (1985) 3bSCC 545. The said view was found fraught with some practical difficulties .At present the view expressed in *Begula Bapi Raju v State of AP (*1984 )1 SCC 66, holding that livelihood does not strictu sensu fall in the expression ‘life’ as employed in Article 21, prevailed for quite some time. However, some limitations of right to livelihood were subsequently explained as qualifying factors to the said right to prevent overstretched and impractical form of the same ( Indian Drugs and pharmaceuticals Ltd. v Workmen , (2007) 1 SCC 408 ). Now again after ; Centre For Environment and Food security v UOI (2011) 5 SCC 676, the right to livelihood in the context of MAGNREGA scheme is again treated as integral part of Article 21.

The other vital term ‘liberty’ in the text of Article 21 is held to be more than mere freedom from physical restraint or the bounds of a person( Confederation of ex servicemen Asss v UOI, (2006) 8 SCC 399 )

The phrase personal liberty is very wide and includes all possible rights which constitute personal liberty, including those which are mentioned in Article 19. It was further held that a fruitful and meaningful life presupposes life full of dignity, honour, health and welfare (Sidharaman Satlingappa Mhetre v St of Mah. (2011)1 SCC 694 ).

In A k Gopalan v state of Madras ,Air 1950 SC 27, it was held that deprivation is distinguishable from restriction. It was further held that Article 21 has no application in case of restrictions. The Article comes into play only in case of total loss of personal liberty which signifies deprivation. The textual over-focussing in A K Gopalan(supra ), apparently arose due to the then accepted opinion of the Bench that Fundamental rights are mutually exclusive and distinct. This view of mutual exclusivity of fundamental rights was overruled almost after two decades in R C Cooper v UOI AIR 1970 SC 564, where it was observed that the fundamental rights, in the constitutional scheme, stem from a common philosophical root and are cohesive and organically inter-related. The said view of inter-relation of fundamental rights is emphatically reiterated in Add Secretary Govt of India Valka Subhash Gadla, 1992 Supp(1)SCC 496 ). Thus the journey on the path of justice also led to substitution of the ‘negative duty’ of the State under Article 21 of not interfering in life and liberty of individual without sanction of law to a positive obligation of the State to facilitate a better enjoyment of life and dignity (Vincent Panikurlangra v UOI (1987 SC 990).

A plethora of rights as articulated and recognized by the Courts from time to time continued to flow in the treasured catalogue of human rights, while simultaneously expanding the semantic nucleus of Article 21.

Thus ‘Right to fair and impartial investigation’, certain rights of an accused, certain rights of a victim are all came to be included in the warp and weft of Article 21 ( State of WB v Committee For Protection of Democratic Rights, (2010) 3 SCC 571 ).

‘Procedure established by law’ as a constitutional concept which need to be understood in array of analogous concepts such as the concept of ‘due process of law’, ‘due procedure’ , ‘due course of law’, ‘course of common law’ ‘law of the land’ etc. the settled maxims of law permit and sanction under such safeguards for protection of rights as those maxims prescribe for the class of cases to which the one in question belongs .The term ‘due process of law’ has not been defined as the said concept has been ever growing in its reach and scope. The ‘Procedure established by law’ has a deep meaning for all lovers of liberty and judicial sentinels( M H Hoskot v State of Maharashtra Air 1978 SC 1548) this expression means procedure enacted by law made by the State that is to say, union Parliament or State legislatures (Collector Of Malaber v Srimmal Ebrahim Hajee AIR 1957 SC 688 )The concept of ‘Procedure established by law’ is defined in step-by-step method by Justice Fazl Ali in ( A k Gopalan v state of Madras ,Air 1950 SC 27) as : (1) Notice (2) opportunity to be heard (3) An impartial tribunal (4) Orderly course of procedure. However , in the same case, J. Patanjali Shastri , held that the phrase procedure established by law also includes settled usages. Thus the normal modes of proceedings as well as the ordinary and well-established criminal procedure is held by J. Patanjali Shastri to include (1) An objective and ascertainable standard of conduct to which it is possible to confirm (2) Notice to party of accusation against him (3) reasonable opportunity to him to establish his innocence (4) an impartial tribunal capable of giving an unbiased judgement.

There is no conceptual distinction between ‘Procedure established by law’ in Article 21 and ‘save with authority of law’ as employed in Article 31(1) and ‘except by authority of law’ as used in Article 265 of constitution of India ( ADM Jabalpur v Shivkant Shukla AIR 1976 SC 1207 ).

In Maneka Gandhi case , court observed that requirement of due compliance of principles of natural justice is implicit in Article 21.

When procedure is held to be unfair even though no principle of natural justice is is involved, it would lead to a conclusion that such procedure lacks in reasonableness. (Maneka Gandhi v UOI AIR 1978 SC 597, para 56 ).

The constitutionality of law can be assailed , notwithstanding Article 21 , inter alia on the following grounds ;

a) competence of legislature(Gopalan A K v state of Madras Air 1950 SC 27 )

b) vice of excessive delegation(Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 )

c) colourable exercise of legislative power(Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 )

d) ultra vires (Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 )

e) order is mala fide (Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 )

f) violative of Article 21 (Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 ), Article 14 (A R Antulay v R S nayak, (1988) 2 SCC 602 ), Article 19 ( Malkani R M v State of Maharashtra , AIR 1973 SC 157 ) or Article 22 ( Gopalan A K v state of Madras Air 1950 SC 27 )

g) Vague (Abbas K.A. V UOI AIR 1971 SC 481 )

h) Denial of right to legal assistance to prisoner ( Nand Lal Bajaj V State of Punjab, (1981) 3 SCC 671 )

i) Unfair or unreasonable (Maneka Gandhi v UOI AIR 1978 SC 597, para 56 ).

j) Violates natural justice ( A R Antulay v R S nayak, (1988) 2 SCC 602 , 4:3 ratio )

As the constitutional law through dynamic interpretation of Courts expanded, the horizons of Right to life as contemplated in Article 21 also reached higher and higher destinations in the judicial journey. Thus the following rights also came to be recognized as integral part of Article 21 ;

a) Right of a person not to be subjected to bonded labour ( Bandhua mukti morcha vUOI AIR 1984 SC 802 )

b) Right of a person not to be subjected to unfair conditions of labour(Peoples Union v UOI Air 1982 SC 1473 )

c) Right of a person to be rehabilitated after release(Neerja Choudhary v State of MP AIR 1984 Sc 1099 )

d) Right of a person to a reasonable accommodation( Chhetria Pardushan Mukti Sangharsh Samiti v State of Up AIR 1990 SC 2060 )

e) Right of a person to hawk (Maharashtra Ekta Hawkers Union v MC Greater Mumbai (2004)1 SCC 625 )

f) Right of a person to appropriate insurance policy within paying capacity and means of the insured( LIC of India v Consumer Education Research AIR 1995 SC 1811 )

g) Right of a person of locomotion, except insofar it is included in Article 19 (1) (d) ( Satwant Singh Sawhney v Asstt passport Officer , AIR 1967 Sc 1836 )

h) Right of a person to travel abroad ( State of Maharshtra v Parbhakar Pandurang Sanzgiri AIR 1966 SC 424 )

i) Right of a person to return to India from abroad (Satwant Singh Sawhney v Asstt passport Officer , AIR 1967 Sc 1836 )

j) Right of a person to socialize with members of family and friends( Hussainara Khatoon v Home secretary St. of Bihar Air 1979 SC 1360 , Kadra Pahadiya V St. of Bihar AIR 1982 SC 1167 )

k) Right of a person to protect himself from loss of citizenship which would entail deportation ( State of UP v shah Md. Air 1969 SC 1234 )

l) Right of an employee in a disciplinary proceedings to take legal aid where employer is represented by a lawyer (Bd. Of Trustees of port of Bombay v Nadkarni, Dilip Kumar Raghvendra Nath AIR 1983 SC 109 )

m) Right of detenu before an Advisory Board to take legal aid where Government is represented by a lawyer (A K Roy v UOI AIR 1982 SC 710 )

A vital question raised in Swapnil Tripathi v. Supreme Court of India ((2018) SCC 10 639 ) is whether live streaming of Court proceedings in the prescribed digital format would be an affirmation of the constitutional rights bestowed upon citizenry. Does the right of justice at the doorstep of the litigant through such mechanism of life streaming the court proceedings constitute part of Article 21?

Hon’ble Supreme Court while observing that advent of technology has made live streaming of court proceedings feasible, chose to seize the moment with the admonition that it is time for lawyers and judges to walk out of cocoon of physical court rooms and to attitudinally embrace the new paradigm of court room functioning that affirmatively allows live streaming of the court proceedings. The model guidelines prepared and submitted in the Court by the State were also approved. Thus, the extended limb of Article 21 approves, inter alia, the right of a litigant to watch live streaming of court proceedings qua his case as an inviolable right under Article 21 of the constitution of India.

K.S. Puttaswamy v. Union of India 2019 1 SCC 1, famously known as the Adhaar card case, examined the taxonomy of right to privacy. Holding that right of privacy has to be balanced with right of the State to gather reasonable information about the individuals. The distinction is drawn between identity and identification. Right to identity is treated as a fundamental right whereas right to identification cannot be treated as antithetic to right to identity.

The concept of privacy is subjected to judicial deconstruction by Justice D.Y. Chandrachud in K.S. Puttaswamy v. Union of India(supra ) . His exposition of privacy in the following words is relevant to unravel and understand domain of the constitutional right of privacy:

“297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”

Article 21 A

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.

(Eighty Sixth amendment Act 2002 w.e.f. 01.04.2010)

In historical perspective it needs to be borne in mind that when India got independence, it was having more that 45% illiterate adult population of the world. In such darkness over the social-scape, universal adult suffrage was adopted by India, to nurture the democracy on the apparently tilted fulcrum of equality. Even today India continues to bear pain of having to host 70 million illiterate adults (beyond age of 15 years) population. Thus it is indeed not only the largest but also the darkest democracy of the world. Education is the only panacea for multiple ills infesting the dark corners of the Indian society.

Indian educational landscape is also afflicted by various critical socio-economic challenges and education is the solitary route to redemption from these trammels of doom.

As per published official data pertaining to 2014-2015, total number of schools, in all categories, in India are 15,16,865 (Primary 8,47,118 , Upper Primary 4,25,094 Secondary 1,35,335 Senior secondary 1,09,318) whereas the population of children entitled to school education is … in the same year. Even the student teacher ratio, another parameter to test the quality of education, at primary school level in India is…per 100 students , in contrast with global standards of average of … per 100 students. Apparently, the challenge to push the democracy out of the dark zones is indeed a Sisyphean task for the nation.

Constitution of India as adopted on 26^th^ January 1950, placed the subject of Education in the State list . Belatedly in 1976, through 42^nd^ constitutional amendment, the subject of education stood placed in Concurrent List.

The said 42^nd^ Constitutional amendment ushered in a springtide in policy initiatives in the field of education across the ‘resource-crunched xeriscapes’ of India. Thus the lackadaisical scenario, often isolated from a broad national and global outlook, broad and bright horizons emerged as transformative paradigms . The journey of human enlightenment through State education initiatives from pre-1976 xeriscaping to post-1976 landscaping, inspired hope and brought sunshine in the darker niches of Indian democracy. Now the Central government remains deeply engaged in their constitutional role in the field of Education.

Thus National Education Policy 1986 and the Programme Of Action ( POA) of 1986 as well as of 1992, in the path of education, are acknowledged as credible milestones set up by Central Government in discharge of its solemn constitutional obligations. To meet the challenges on this front, on 26 September 1985 , an independent Ministry of Human Resource Development was established by the Central Government. The said Ministry has presently two departments, namely, (i) department of school education and (ii) department of higher education. With an object of fortifying and intensifying the efforts in this direction, in the year 1988 National Literacy mission Authority was set up as an independent and autonomous wing of ministry of HRD. The said Authority is obligated to carry out the various functions, including :

(i)Policy and planning

(ii)Development and promotional activities

(iii)Operational functions including assistance to voluntary agencies and other NGOs

(iv)Technology demonstration

(v)Leadership training

(vi)Resource development including media and materials Research and development

(vii)Monitoring and evaluation

The other major initiatives taken by the Government during and post 11^th^ Five year plan period, included micro-management of policy initiatives through launching of repeated and focused plans under the nomenclature of Abhiyaans (Missions) . A Sarva Siksha Abhiyann was effectively launched in 2001 with an object of universalisation of primary education. The said Mission was launched in 1.1 million habitations across the country and targeted to cover 192 million children. Thereafter another mission Saakshar Bharat with an objective of attaining 80% literacy was launched in the year 2009. The said initiative, Saakshar Bharat has four broad objectives: (i) imparting functional literacy and numeracy to non-literates,(ii ) acquiring equivalency to the formal education system,(iii) imparting relevant skill development programmes and (iv) promoting learning society by providing opportunities for continuing education. The progress in the field of education tossed up new challenges and thus Saakshar Bharat Mission 2012 and Saakshar Bharat Mission 2020, as deeper and broader initiatives in this direction were also launched.

The central Government with an object to accomplish the task of ‘literate India’ enacted ‘Right of Children To free and Compulsory education Act 2009’ on 4^th^ August 2009. The said Act was published in the Gazette on 27^th^ August 2009.The said Act came into force w.e.f. 1^st^ April 2010.

The Article 21A (Eighty Sixth amendment Act 2002 w.e.f. 01.04.2010) read with Article 51A (k) conjointly ensure that children between age of 6 to 14 do not remain deprived of their fundamental right to gain access to education. The Article 21 A of Constitution of India traces its origin in the locus classicus in the reformative role of Supreme Court of India , pointedly articulated in Unni Krishnan v State of AP (1993 ) 1 SCC 645.The spirit , strength and reach of Article 21 A was elated by amended clause (k) to Article 51 A . In Ashok Kumar Thakur v UOI ( 2008 ) 6 SCC1 , in a moment of clairvoyance, Supreme Court observed that that in the absence of Article 21 A, the other fundamental rights are rendered meaningless.

The luminous words of Justice V R Krishna Iyer in T N Education department etc. Assn. v State Of T N (1980)3 SCC 97 meaningfully resonate in the context of value and quality of education as a much-needed cathartic agent in human life. Hon’ble Judge observed : “The wisdom of yesterday may obsolesce into the folly of today, even as science of old may sour into the superstition now and vice versa.” The truism of education as a perennial process of internal enlightenment of an individual needs no further emphasis.

The fundamental right is restricted to primary , elementary as well as secondary education and not to higher education. ( Bhartiya Sewa Samaj Trust v Yogesh Bhai Ambalal Patel )(2012)9 SCC 310, ( State of Maharashtra v Sant Deyaneshwar Sikshan Shastra Mahavidyalya ( 2006)9 SCC 1.

“Imparting elementary and basic education is a constitutional obligation on the States as well as societies running educational institutions. Children are not only future citizens but also the future of the Earth. Elders in general and parents and teachers in particular owe a responsibility for taking care of the well-being and welfare of the children.”

M.Y. Eqbal, J. in Major Saurabh Charan v. NCT of Delhi, (2014) 6 SCC 798, para 16

“Article 21-A has been added by amending our Constitution with a view to facilitate the children to get proper and good quality education. However, the quality of education would depend on various factors but the most relevant of them is excellence of teaching staff. In view thereof, quality of teaching staff cannot be compromised. The selection of the most suitable persons is essential in order to maintain excellence and the standard of teaching in the institution. It is not permissible for the State that while controlling the education it may impinge the standard of education. It is, in fact, for this reason that norms of admission in institutions have to be adhered to strictly. Admissions in mid academic sessions are not permitted to maintain the excellence of education.”

-Dr. B.S. Chauhan, J. in State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436, para 34.

“The Government is on the right track with regard to improving the infrastructure of our system, books and buildings only go so far. They are necessary but not sufficient for achieving the ultimate goal of (1) keeping children in school, (2) ensuring that they learn how to think critically, and (3) ensuring that they learn skills that will help them secure gainful employment. When you lack a school building, teachers, books and proper facilities, your schooling might be ‘free’ but it is not an ‘education’ in any proper sense. Adequate number of schools must be established with proper infrastructure without further delay. In order to achieve the constitutional goal of free and compulsory education, we have to appreciate the reality on the ground. A sizeable section of the country is still so poor that many parents are compelled to send their children to work. The State must carve out innovative policies to ensure that parents send their children to school. The Mid-Day Meal Scheme will go a long way in achieving this goal. But, apart from mid-day meals, the Government should provide financial help to extremely poor parents. Ultimately, this is the most important aspect of implementing Article 21-A, incentives should be provided to parents so that they are persuaded to send their children to school. More than punishment, creative incentive programmes will go a long way in the implementation of the fundamental right enshrined under Article 21-A.”

Dr. Dalveer Bhandari, J. in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, para 430

State Power contoured by Principles and Values of Human Rights

Article 22

Article 22. Protection against arrest and detention in certain cases

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.
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.
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.

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, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

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

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
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
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

Analogous Provisions

This Article corresponds to (i) the Sixth amendment to the Constitution of the U.S.A.; (ii) Article 34 of the Constitution of Japan 1946 (iii) Article 104 of the Constitution of Federal Republic of Germany; and (iv) the Common Law of England.

International Charter and Convention.

This Article relates to (i) Articles 9 and 14 of the International Covenant on Civil and Political Rights 1966; (ii) Articles 5 and 6 of the European Convention of Human Rights 1950.

Amendment

Clause (4) of Article 22 had been substituted by the Constitution (Forty —Fourth Amendment) Act 1978 and sub-clause (a) of clause (7) of Article 22 was omitted and sub-clauses (b) and (c) had been re-lettered as sub-clauses (a) and (b) of clause (7) with consequential change in sub-clause (b) by the Constitution (Forty-Fourth Amendment) Act 1978. The amendment of cls. (4) And (7) of Article 22 made under the Constitution (Forty-Fourth Amendment) Act 1978 has not yet been given effect to.

In A.K. Roy v. Union of India (Air 1982 SC 710 (para 52)), the Supreme Court, by majority view, held that the Central Government has unfettered discretion in this question of bringing the provisions of section 3 of the 44^th^ Amendment Act into force. It is not for the court to compel the Government to do that.

In view of this decision, the Central Government has chosen not to issue notification for commencement of section 3 of the 44^th^ Amendment Act 1978 and, as such, the original provision as contained in the unamended Article 22 are still in force.

Article 22 , inter alia, deals with preventive detention. Preventive detention is justified on the basis of primordial compulsions of need to maintain an order in the society, without which all rights and liberties would lose their meanings. This field of justification for preventive detention is also known as ‘jurisdiction of suspicion’. The words of Thomas Jefferson still resonate with force to justify this ‘jurisdiction of suspicion’; “To lose our country by scrupulous adherence to written law, would be to lose the law absurdly by sacrificing end to the means”.

However, preventive detention is a precautionary measure and no organ of State holds carte banche in the exercise of ‘jurisdiction of suspicion’ ( UOI v Yumnam Anad M (2007)10 SCC 190 ).

In State of Maharshtra v Bhaorao Punjabrao Gawade (2008) 3 SCC 613, it was held that a ‘live link’ with the activities of a detenue and action of preventive detention is necessary and relevant .

The preventive detention and criminal proceedings are not parallel proceedings (Hardhan Saha v State of West Bengal, AIR 1974 SC 2154 ).High Court while dismissing writ to assail preventive detention could not direct Commissioner of Customs to lodge FIR in exercise of its power under 482 CR PC (Pooja Batra v UOI , (2009) 5 SCC 296 )

In National Security case i.e. A K Roy v UOI (AIR 1982 SC 710), while emphasizing on the fundamental rights of prisoners, the Supreme Court moved a step forward on the path of constitutional rights, while holding that unless the prisoners are not specifically deprived of their rights under the law applicable to them, their Fundamental Rights cannot be treated as erased.

It is also a settled proposition of law that the procedure prescribed for preventive detention must be strictly followed. If a deviation from procedure is made, the person detained is entitled to be released from detention (A K Gopalan v State of Madras, AIR 1950 SC 27). Even though the detention is valid ab initio, it may become illegal if the procedure is violated subsequently (State of Bombay v Atamram Shridharvidya , AIR 1951 SC 157 )

Article 22 is not a complete code of constitutional safeguards relating to preventive detention. If Article 22 carries a specific provision in its fold, it cannot be shadowed or controlled by Article 21. But where Article 22 is silent in toto, Article 21 will apply ( A K Gopalan v State of Madras, AIR 1950 SC 27 ).

In Nand Lal Bajaj v Union territory, New Delhi AIR 1981 SC 746, it was held that the procedure prescribed under Articles 21 or 22 must not be arbitrary and it must stand on pedestal of article 14.

It is now a well settled law that violation of procedure renders the detention of a person illegal (Abdul Karim v State of West Bengal, AIR 1969 SC 1028).

In another recent case Additional Secretary to Government of India v Alka Subhash Gadia( 1992) Supp1 Scc 496, Supreme Court held that the detenu is entitled to get the order before execution. Thus the challenge at the pore execution stage of the detention order was allowed (Subhash POpatlal Dave v UOI, (2012) 7 SCC 533). However, though not exhaustive, the following grounds of challenge to the impugned orders of detention are upheld by Supreme Court ;

a) The impugned order is not passed under the Act mentioned in the order

b) Order is sought to be executed against a wrong person

c) It is passed for a wrong purpose

d) It is passed on vague, extraneous and irrelevant grounds

f ) The passing authority is not competent

The Courts have in repeated challenges before it on the anvil of Article 22 laid down various propositions of law which control the executive action .The violation of Article 22 is clearly made;

i) Where the accused is denied opportunity to engage a lawyer (Janardhan Reddy v State of Hyderabad, AIR 1951 SC 217).

ii) Where the trial is held without informing the accused of the date fixed for the trial and without giving him an opportunity to communicate with his lawyer (Hans Raj v State, Air 1956 ALL 641).

iii) Where the trial is commenced immediately after a Court appointment of a defence lawyer ( Bashira v State of UP, AIR 1968 SC 1313 ).

iv)Where the lawyer engaged by the accused is not allowed to appear by the Court ( Tika v State of UP, (1975) Cr. LJ 337All )

v)The right to be defended by lawyer is available for appeals ( Tika v State of UP, (1975) Cr. LJ 337All )

vi) The object of punitive detention is to punish a person for what he has done, the object of preventive detention is to prevent him from doing something that falls within the entries 9 of the list 1 and 3 of List III.( A K Gopalan v State of Madras , AIR 1950 SC 27)

The following words and phrases need to be understood for a better grasp of the reach and scope of this Article:

Arrest: The expression arrest appearing in the Article 22 of the Constitution of India is a comprehensive term which is designed to cover all cases in which a person is apprehended by a legal authority and is not confined to the cases in which a person is apprehended by or under orders of the civil or criminal court. Thus it covers all cases of punitive, preventive detention besides even protective detention (Ajaib Singh V State of Punjab AIR 1952 PUNJAB 309 (FB))
Detention: The word detain may denote detention of a person against his or her will (Alamgir v State of Bihar AIR 1959 SC 436)
As soon as may be: Even though no specific time is mentioned in the expression, the expression mandates utmost urgency and immediacy in compliance of the mandate. This phrase does not preempt the authority from explaining any delay to the satisfaction of the Court (Rajammal v State of Tamil Nadu AIR 1999 SC 684)
Grounds: The grounds mean all basic facts and materials (khudiram das v State of West Bengal AIR 1975 SC 550) The grounds also include all materials besides facts (Sophia Gulam Mohammad Bham v State of Maharashtra AIR 1999 SC 3051)
Defended: This expression clearly includes the exercise of right so long as the effect of arrest continues. The narrow meaning of the word ‘defended’ cannot be accepted (State of MP v Shobha Ram AIR 1966 SC 1910)
Magistrate: Magistrate means judicial magistrate only.
Provisions of law providing for preventive detention are as under:
Communicate: The word ‘communicate’ is a strong word. If the grounds are only verbally explained to the detainee and nothing in writing is left with him which he understands then the purpose is not served and mandate in Article 22(5) is infringed (Kubic Darusz v Union of India (1990) 1 SCC 568).

As regards the sweep of Article 22 is concerned, the following judicial dicta is relevant :

Making it obligatory to constitute an Advisory Board to recommend confirmation of the detention where it is sought to continue beyond two months.
A State law cannot authorise detention beyond the maximum period prescribed by the Parliament under the powers given to it under Cl. (7)
The Parliament also cannot make a law authorising detention beyond two months without the intervention of an Advisory Board unless the law conforms to the conditions laid down in Cl. (7).
Provision has also been made to enable the Parliament to prescribe the procedure.
Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by cl (5) of Article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention. This right has been guaranteed independently of the duration of the period of detention. (Samir Chatterjee v. State of W.B. , AIR 1975 SC 1165 (paras 3,5,7): (1975) 1 SCC 801.

Following cooper’s case (Cooper, R.C. v Union of India, 1970 (3) SCR 530: Air 1970 SC 564), it has also been held in some cases that a law under Article 22 must also pass the test of reasonableness under Article 19(1)(d) (State of U.P. v Mahant Singh, AIR 1986 Sc 207 (para 5); State if Rajasthan v. Shamsher Singh, AIR 1985 SC 1082; PRakash Chandra Mehta v. Commissioner v. Secretary, Govt. of Kerela , AIR 1986 Sc 687; Mohd. Yusuf Rather v State of J&K, Air 1979 SC 1925).

In Samatha v State , AIR 1997 SC 3297 , the Supreme Court expounded the maxim ’ Reddendo singula singulis’ while holding that the word ‘person’ is interpreted in its generic sense and its width cannot be curtailed by specific qualification of one species i.e. natural person, when it is capable to encompass in its ambit, natural persons, juristic persons, and constitutional mechanism of governance in a democratic set up.

Article 23

23. Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them

ANALOGOUS PROVISIONS:

This Article corresponds to (i) the Thirteenth Amendment of the Constitution of the United States; and (ii) Article 18 of the Constitution of Japan.

INTERNATIONAL CHARTER AND CONVENTION

This Article relates to (i) Article 4 of the Universal Declaration of Human Rights 1948; (ii) Article 8 of the Covenant on Civil and Political Rights 1966; and (iii) Article 4 of the European Convention for the Human Rights 1950.

MEANING OF EXPRESSION

(i) Begar: It means making a person work against his will and without paying any remuneration therefor. Molseworth gives the meaning of begar as :Labour or service exacted by a Government or a person in power without giving remuneration for it (Vasudevan v S.D. Mittal AIR 1962 Bom. 53 (para 28) It has been defined as “forced labour, one pressed to carry burden for individuals or public; under old system when pressed for public service no pay was given”. (as per Wilson’s Glossary)

In the Constituent Assembly Debates Vol 7, page 809, the reference to the speech of Mr. Raj Bahadur — Member of the Constituent Assembly, is relevant and clarificatory of this Article 23. The words of the said member: “this Article is a compliment to the character of freedom enshrined in Article 13 (Now Article 19). This frees the poor, downtrodden and dumb people of Indian States from the course of ‘begar’. The beggar has been a blot on humanity-----------Through the centuries this course has remained as dead weight on the shoulders of the common man like the practice of slavery”.

Though the word slavery has not been used in Article 23, the very expression ‘traffic in human beings’ has a wide connotation to cover ‘slavery’ within it.

In AIR 1982 SC 1473 begar has been described as a labour or service which a person is forced to give without receiving any remuneration.

(ii) “Other similar forms of forced labour”. The words “other similar forms of forced labour must be construed ejusdem generis with begar. (Dulal Samanta v. Dsitrict Magistrate, Howrah AIR 1958 Cal 365 (para 28))

This Article has its genesis in Article 4 of the Universal declaration of Human Rights which bans slavery and slave trade in any form. Even Article 4 of the European Convention of human Rights and Article 8 of the covenant on Civil and Political Rights 1966 prohibit forced or compulsory labour.

Article 23 by force of its constitutional philosophy widens the sweep of the expression ‘State’ in the context of enforceability of rights, to include even a private person. In Sanjit Roy v. State of Rajasthan (AIR 1983 SC 328), it has been held as under:

“This Court had occasion to consider the true meaning and effect of Article 23 in a judgment given on 18th September 1982 in writ petition No. 8143 of 1981-Peoples Union for Democratic Rights and Ors. v. Union of India and Ors. (1982 AIR 473) . The Court pointed out that the constitution makers, when they set out to frame the Constitution, found that the practice of ‘forced labour’ constituted an ugly and shameful feature of our national life which cried for urgent attention and with a view to obliterating and wiping out of existence this revolting practice which was a relic of a feudal exploitative society totally incompatible with new egalitarian socio-economic order which “We the people of India” were determined to build, they enacted Article 23 in the Chapter on Fundamental Rights. This Article, said the Court, is intended to eradicate the pernicious practice of ‘forced labour’ and to wipe it out altogether from the national scene and it is therefore not limited in its application against the State but it is also enforceable against any other person indulging in such practice. It is designed to protect the individual not only against the state but also against other private citizens.”

The reach and scope of Article 23 as a ‘Fundamental right against exploitation’ also aims to annihilate every exploitative form of exploitation classified as traffic in human beings.

Women and children are the most vulnerable targets of such exploitation. In Vishal Jeet v UOI (1990)3 SCC 318 , popularly called devdasi case, Supreme Court looked at the practice and held the same to be flagrantly violative of Article 23. Thus in Gaurav Jain v UOI AIR 1997SC 3021, in tandem with Shama Bai v State of UP,AIR 1959 ALL WR 509, the law to suppress such traffic was held valid, while issuing directions to State to evolve procedure and principles regarding rescue and rehabilitation of prostitutes.

Another expression ‘forced labour’ in the fold of Article 23 is relevant. It is wide expression. Thus even though remuneration was paid to the workers, having regard to ‘compulsive features’ of employment, Court in People’s Union For Democratic Rights v UOI AIR 1982 SC 1473, held it to be forced labour. It was also held that if any person was compelled to work for a wage, less than notified minimum wage, it would tantamount to forced labour(People’s Union For Democratic Rights v UOI AIR 1982 SC 1473 ).

The expression ‘public purposes’ in the enabling clause (2) of Article 23 is again a wide expression. The expression ‘public purposes’ is wide enough, to include not only military and police services but also other social services. (Dulal Samanta v. Dt. Magistrate, Air 1958 Cal. 365 (372)). Reformation and rehabilitation of the prisoners serve as public purpose for which imposition of hard labour on the convicted prisoner on payment of minimum wages would be saved under Cl. (2). but too much emphasis should not be laid on reformation theory so that the tenets of punishment may not altogether vanish, ignoring the interest of the victim and his dependents (State of Gujarat v Hon’ble High Court of Gujarat, (1998) & SCC 392 (paras 91 and 99). Thus there will be no contravention of Article 23.

(i) To compel a cultivator to carry foodgrains to the Government godown, without remuneration for such labour, in a scheme of procurement of foodgrains as an essential commodity for the community. (Acharaj Singh v State of Bihar, AIR 1967 Pat. 114 (119)). But a Government servant could not, in the normal times, be compelled to carry loads outside his official duties. (State v. Jarwar, AIR 1955 HP 18)

(ii) To compel a Government servant to continue in service even after the age of superannuation, pending the conclusion of a departmental inquiry, would be valid under this clause. (Partap Singh v State of Punjab, AIR 1964 SC 72(100)).

Article 24

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment

International Charter and Convention:

This Article relates to (i) International Covenant on Economic, Social and Cultural Rights, 1966 (ii) The European Social Charter.

Related Article:

This Article is related to Articles 39 and 45 of the Constitution and Section 67 of the Factories Act 1948.

Meaning:

‘Hazardous Employment’- The expression is wide enough to include construction industry (People’s Union for Democratic Rights v. UOI , AIR 1982 SC 1473 (paras 6, 11, 15, 16).

The Supreme Court has directed that children should not be employed in hazardous jobs in factories and positive steps should be taken for the welfare of such children as well as for improving the quality of their life. (M.C. Mehta v State of Tamil Nadu (1991) 1 SCC 283 (paras 5, 7, 8, 9, 11) and the employers of children below 14 years must comply with the provisions of Child Labour (Prohibition and Regulation) Act providing for compensation, employment of their parents/guardians and their education (M.C. Mehta v. State of Tamil Nadu (1996) 6 SCC 756)