Constitution of India
Constitution of India
Section 10(3)(c) of the Passport Act authorizes the Passport authority to impound a Passport if it deems it necessary to do so in the in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interest of the general public. Maneka’s passport was impounded by the central Government under the Passport Act in the interest of the general public.
Maneka filed a writ petition challenging the order on the ground of violation of her Fundamental Rights under Article 21. One of the major grounds of challenge was that the order impounding the Passport was null and void as it had been made without affording her an opportunity to being heard in her defence. The court laid down a number of propositions seeking to make Article 21 much more meaningful than hitherto.
← The court reiterated the proposition that Article 14, 19 and 21 are not mutually exclusive. A law prescribing a procedure for depriving a person of ‘personal liberty’ has to meet the requirements of Article 19. Also the procedure established by law in Article 21 must answer the requirement of Article 14 as well. ← The expression ‘Personal liberty’ in Article 21 was given an expansive interpretation. The expression ‘Personal liberty’ ought not be read in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. The right to travel abroad falls under Article 21.
← The most significant and creative aspect of Maneka case, is the re-interpretation by the Court of the expression ‘procedure established by law’ used in article 21. Article 21 would no longer mean that law could prescribe some semblance of procedure, however arbitrary or fanciful, to deprive a person of his personal liberty. It now means that the procedure must satisfy certain requisites in the sense of being fair and reasonable.
The procedure cannot be arbitrary unfair or unreasonable.
As the right to travel abroad falls under art 21, natural justice must be applied while exercising the power of impounding a Passport under the Passport Act. Although the Passport Act does not expressly provide for the requirement of hearing before a passport is impounded, yet the same has to be implied therein.
Case 2 Sunil Batra vs. Delhi Administration (1980)
The Court has given several directives to improve many aspects of prison administration and condition of prisoners. In this case, the Court has pointed out that its powers under Art. 32 are free from the rigid restraints of the traditional English writs. Prison torture is not beyond the reach of the Supreme Court under Article 32. For this purpose, the Court treats letters from prisoners as writ petitions. In this case, the judicial process was set in motion by a letter written by a prisoner to a Judge of the Supreme Court complaining of the brutal attack by the prison staff on a fellow prisoner. Forsaking all procedural formalities, “since freedom was at stake”, the letter was treated by the Court as a petition for the writ of Habeas Corpus.
Case 3 Hussainara Khatoon vs. Home Secretary – State of Bihar (1979)
Hussaainara Khatoon case of the Bihar undertrials started with an article written in Indian Express. An advocate then filed a petition under Article 32 in the Supreme Court to protect the personal liberty of the undertrials. The Supreme Court has laid great emphasis on speedy trial of criminal offences and has emphasized: “It is implicit in the broad sweep and content of Article 21”. A fair trial implies a speedy trial. No procedure can be ‘reasonable fair or just’ unless that procedure ensures a speedy trial for determination of the guilt of such person.
The Supreme Court has directed release of all undertrials who have been in jail for periods longer than the maximum term of imprisonment for which they could be sentenced if convicted of the offence charged. The Court also directed that the undertrial prisoners, who are accused of multiple offences and who have already been in jail for the maximum term for which they could be sentenced on conviction, even if the sentences awarded to them were consecutive and not concurrent, should be released forthwith, since their continued detention clearly violates not only human dignity but also their Fundamental Right under Art.21 of the Constitution.
The Supreme Court has taken a big innovative step forward in humanizing the administration of criminal justice by suggesting that free legal aid be provided by the State to poor prisoners facing a prison sentence.
Case 4 Keshavananda Bharati vs. State of Kerala (1973)
The State of Kerala passed the Kerala Land Reforms Act. 1963. This Act affected the interest of the petitioner, Keshavananda Bharati, Swamiji of a mutt. So he filed a writ petition before the Supreme Court under Article 32 of the constitution, contending that his fundamental rights under Article 14,19(1)(f),25,26 and 31 were violated by the Kerala Land Reforms Act. While the case was pending, the parliament passed three constitutional Amendments, viz., 24th, 25th & 29th Amendments. The constitution Twenty-fourth Amendment repealed article 19(1) (f) which read “to acquire, hold and dispose of property”. It also repealed Article 31, i.e., compulsory acquisition of property. It made several other changes. It also included the Kerala Land Reforms Act in the ninth schedule, thereby making them immune from attack on the ground of fundamental rights.
As a result, the fundamental right to property was deleted from the constitution. The petitioner felt that, by these Amendments, he would lose the case in the court. So, he amended his writ petition before the Supreme Court, & challenged the validity of 24th, 25th & 29th Amendments. He contended that though the power of the parliament to amend was wide, it was not unlimited. The power to amend under Article 368 should not empower the parliament to destroy the basic features of the constitution. The Supreme Court’s judgment in this case is as follows:
i) The constitution Twenty-fourth (Amendment) Act, 1971, section 2(a) (b) of the constitution Twenty-fifth (Amendment) Act, and the constitution Twenty-ninth (Amendment) Act are valid. ii) The decision of the majority in Golaknath’s case that the word ‘Law’ in Article 13(2) included Amendments to the constitution & the Article operated as a limitation upon the power to amend the constitution under Article 368 is erroneous, and so, is overruled. iii)
The power of Amendment includes within itself the power to add, alter or repeal the various Articles of the constitution, including those relating to fundamental rights. iv) There is no power to amend or alter the basic structure of the constitution. v) The First part of the Article 31-C is valid, and the second part of the Article 31-C laying down “no law containing a declaration that if it is for giving effect to such policy shall be called in question in any court on the ground that it doesn’t give effect to such policy” is invalid. vi) There is no inherent or implied limitations on the power of Amendment under Article 368.
Case 5 Air India vs. Nergesh Meerza (1981)
A regulation made by Air India, a statutory corporation, fixed the normal age of retirement of air hostesses at 35 yrs but authorized the managing director to extend the same to 45 yrs at his option subject to other conditions being satisfied. The regulation was held bad as it armed the managing director with uncanalized and unguided discretion to extend the age of retirement of any air hostess. No guidelines, principles or norms were laid down subject to which the power was to be exercised. Nor was there any procedural safeguard available to an air hostess who was denied extension. A regulation providing for termination of service of an airhostess in Air India on her first pregnancy has been held to be arbitrary and abhorrent to the notions of a civilized society.
Case 6 Visakha vs. State of Rajasthan (1997)
The Supreme Court has declared sexual harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is a clear violation of Article 14, 15 and 21 of the Constitution. Article 21 guarantees right to life with dignity. Accordingly the Court has observed in this connection: “the meaning and content of the Fundamental Rights guaranteed in the constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse”
Sexual harassment also violates the victim’s fundamental right under Article 19(1)(g) “to practice any profession or to carry out any occupation, trade or business”. Thus Article 32 is attracted. In the absence of any domestic law relating to sexual harassment in India, the Supreme Court has itself laid down under Article 32 some directions for prevention of such harassment. These directions are binding and enforceable and are required to be strictly observed in all work places until suitable legislation is enacted to occupy the field.
Case 7 M R Balaji vs. State of Mysore (1963)
An order of the Mysore Government issued under Article 15(4) reserved seats for admission to the state Medical and Engineering colleges for Backward classes(28%) and ‘more’ Backward classes(22%). This was in addition to the reservation of seats for SCs (15%) and for STs (3%). Backward and more backward classes were designated on the basis of ‘castes’ and ‘communities’ The Supreme Court characterized Article 15(4) as an exception to Article 15(1) (as well as to Article 29(2)]. The court declared the order bad on several grounds in this case.
← The first defect in the Mysore order was that it was based solely on caste without regard to other relevant factors and this was not permissible under Article 15(4) ← Secondly, the test adopted by the state to measure educational backwardness was the basis of the average of student population in the last three high school classes of all high schools in the state in relation to a thousand citizens of that community. This average for the whole state was 6.9 per thousand. The vice of the Mysore order was that it included in the list of backward classes, castes or communities whose average was slightly above, or very near or just below the state average(e.g., Lingayats (7.1) were mentioned in BC list). ← Thirdly, the court declared that Article 15(4) does not envisage classification between backward and more backward classes as was made by the Mysore order.
In Balaji case, the Supreme Court could sense the danger in treating ‘caste’ as the sole criterion for determining social and educational backwardness. The importance of the judgment lies in realistically appraising the situation when the court said that economic backwardness would provide a more reliable yardstick for determining social backwardness because more often educational backwardness is the outcome of social backwardness. The court drew distinction between ‘caste’ and ‘class’. An attempt at finding a new basis for ascertaining social and educational backwardness in place of caste is reflected in the Balaji decision.
The court also ruled that reservation under Article 15(4) should be reasonable. It should not be such as to defeat or nullify the main rule of equality enshrined in Article 15(1). While it would not be possible to predicate the exact permissible percentage of reservation, it can be stated in a general and broad way that it ought to be less than 50%.
Case 8 Indra Sawhney vs. Union of India (1992) (Mandal Commission Case)
The Supreme Court has taken cognizance of many complex but very momentous questions having a bearing on the future welfare and stability of the Indian society. ← The overall reservation in a year is limited to a maximum of 50% ← Amongst the classes granted reservation, those who have been benefited from reservation and have thus improved their social status (called the ‘creamy layer’ by the court), should not be allowed to benefit from reservation over and over again. This means that the benefit of reservation should not be misappropriated by the upper crust but that the benefit of reservation should be allowed to filter down to the lowliest so that they may benefit from reservation to improve their position.
The court has said that if a member of IAS, IPS or any other All India Service, his social status rises; he is no longer socially disadvantaged. This means that, in effect, a family can avail of the reservation only once. ← An element of merit has been introduced into the scheme of reservation. o Promotions are to be merit based and are to be excluded from the reservation rule. o Certain posts are to be excluded from the reservation rule and recruitment to such posts is to be merit based. Minimum standards have to be laid for recruitment to the reserved posts.
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 21 November 2016
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