TC-32R

UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY

BEFORE
THE HON’BLE SUPREME COURT OF SOMRATA

IN THE MATTER OF

UNION OF SOMRATA………………………………………………………...PETITIONER

VERSUS

STATE OF HARIPUR & ORS.……………………………………………… RESPONDENT

WITH

WRIT PETITION (PIL) NO. _____ OF 2025

STATE OF PARAMPUR……………………………………………………. PETITIONER 1

WITH

WRIT PETITION. (PIL) NO. _____ OF 2025

STATE OF HARIPUR………………………………………………………. PETITIONER 2

WITH

WRIT PETITION (PIL) NO. _____ OF 2025

STATE OF UTTAMPUR……………………………………………………. PETITIONER 3

VERSUS

UNION OF SOMRATA………………………………………………………RESPONDENT

COMPENDIUM ON BEHALF OF THE RESPONDENTS

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INDEX OF AUTHORITIES

1. COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH V. K. G. S. BHATT,

(1989) 4 SCC 635.......................................................................................................................1

2. DELHI CLOTH AND GENERAL MILLS V. UNION OF INDIA, AIR 1983 SC 937...1

3. INDIRA GANDHI V. RAJ NARAIN, (1975) 2 SCC 159................................................3

4. JUSTICE K.S. PUTTASWAMY (RETD.) V. UNION OF INDIA, (2017) 10 SCC 1.....8

5. K.K. VERMA V. UNION OF INDIA, AIR 1954 Bom 358............................................11

6. KESAVANANDA BHARATI V. STATE OF KERALA, (1973) 4 SCC 225...............14

7. KULDIP NAYAR V. UNION OF INDIA, (2006) 7 SCC 1...........................................18

8. M. P. JAIN.......................................................................................................................19

9. M. RAMAKRISHNA V. HINDUSTAN PETROLEUM CORPN. LTD., (2005) 10 SCC

674 21

10. MINERVA MILLS LTD. V. UNION OF INDIA, (1980) 3 SCC 625........................22

11. NARPAT SINGH V. JAIPUR DEVELOPMENT AUTHORITY, (2002) 2 SCC 666

25

12. R V. CANADA (ATTORNEY GENERAL), [2010] 1 S.C.R. 339.............................28

13. S.D.S. SHIPPING PVT. LTD. V. JAY CONTAINER SERVICES CO. PVT. LTD.
AND ORS., (2003) 9 SCC 439................................................................................................29

14. SELVI V. STATE OF KARNATAKA, AIR 2010 SC 1974.......................................32

15. STATE OF H. P. V. KAILASH CHAND MAHAJAN, AIR 1992 SC 1277..............35

16. STATE OF KERALA AND ORS. V. MARAPPRAEM KURI COMPANY LTD.

AND ANR., AIR 2012 SC 2375..............................................................................................38

17. STATE OF U.P. V. RAJ NARAIN, (1975) 4 SCC 428..............................................39

18. THE CONSTITUTIONAL COURT OF SOUTH AFRICA V. PRESIDENT OF THE

REPUBLIC OF SOUTH AFRICA, 1995 (4) SA 631 (CC).....................................................44

19. THE STATE OF WEST BENGAL V. KESORAM INDUSTRIES LTD. AND ORS.,
[2004] 1 SCC 10.......................................................................................................................48

20. UNITED STATES V. LOPEZ, 514 U.S. 549 (1995)..................................................50

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1. COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH V. K. G. S. BHATT,

(1989) 4 SCC 635
FACTS:
4. Prior to 1978, there were five categories of officers and staff working under the
establishments of the appellant. They were as follows:
(1) those engaged in research work; (ii) those engaged in scientific work other than
research work; (iii) auxiliary technical; (iv) administrative ministerial and accounts; and
(v) supporting staff (class IV).

JUDGEMENT:
12. But this Court under Article 136 exercises power only when there is supreme need.
The decision on individual disputes of seniority, promotion, reversion, suspension, pay
fixation, etc. are not ordinarily interfered with even though it is viewed as erroneous. The
Tribunal may fall into some legal errors but if substantial justice has been rendered to a
person, this Court will not interfere with such a decision. In Rashpal Malhotra v. Satya
Rajput , this Court expressed the view that even if legal flaws might be electronically
detected in the order of the Tribunal or court, this Court will not interfere unless there is
manifest injustice or substantial question of public importance.
13. It may be borne in mind that the exercise of power under Article 136 while granting a
special leave and while hearing an appeal is one continuous process, and this Court will
apply the same principles even at the time of disposal of the appeal.
14. In the instant case as already noticed that respondent-1 has suffered and stagnated for
about twenty years in the same scale from inception due to defective promotional policy.
Therefore, we decline to interfere with the relief granted by the Tribunal although we do
not agree with the views expressed on the scope of bye-law 71(b)(ii).

2. DELHI CLOTH AND GENERAL MILLS V. UNION OF INDIA, AIR 1983 SC 937
FACTS:
2. At the very outset, it must be noticed that the factual matrix has little or practically no
relevance in this case.
15. The State intervention into the functioning of the corporate sector initially took the
form of the prosecution for breach of some of the laws, the first notable case being the
one in November, 1807. The Attorney General at the instance of a private relator sought
criminal information against two unincorporated companies both of which had freely
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transferable shares and advertised that the liability of the members would be limited. Lord
Ellenborough in R. v. Dad 1808 (9) East 565 dismissed the application because of the
lapse of 87 years, since the Act was previously invoked but he issued a stern warning that
no one in the future could pretend that the statute was obsolete and indicated that a
speculative project founded on joint stock or transferable shares' was prohibited.
16. Returning to the native soil, the first legislative measure to regulate the companies in
India was the enactment of the Joint Stock Companies Act of 1850. It was amended in
1857, a notable feature of the amendment being extension of limited liability benefit to
insurance and banking companies. The Amending Acts, one in 1866 and the other in 1913
followed. The Indian Companies Act of 1913 was a fairly comprehensive measure taking
into its stride the amendments in U.K. Companies Act till then made. This Act was
extensively amended in 1936 and again at regular intervals thereafter. The Government of
India appointed a Committee in 1950 under chairmanship of Shri Bhabha to consider
amongst other things the extent to which it was possible to adjust the structure and
methods of the corporate form of business management with a view to weaving an
integrated pattern of relationships as between promoters, investors and the management,
principal among them being the legitimate rights of investors and the interest of creditor,
labour and other partners in production and distribution may be duly safeguarded and the
attainment of the ultimate end of social policy towards which the corporate sector must
work. A comprehensive statute being Companies Act of 1956 was enacted pursuant to the
recommendations of the Bhabha Committee. The two notable features of the 1956 Act
from the point of view of the present discussion are compulsory maintenance and audit of
company accounts, and power of inspection and investigation by the Central
Government. When the Act of 1956 functioned for a period of about a year and some,
difficulties surfaced in its actual implementation, the Government of India appointed a
committee under the chairmanship of Justice A.V. Vishwanatha Sastri, retired Judge of
the Madras High Court in May 1957 to examine the working of the Companies Act, 1956.
The terms of reference of the committee were quite wide. This Committee submitted its
Report in 1957, which led to the Companies (Amendment) Act, 1960. This amendment
was specifically directed to the safeguarding of the private investment in the corporate
sector. The Government of India acquired extensive powers for regulation of the financial
management of the private sector companies, under the 1960 (Amendment) Act. In the
meantime, the Government of India having received numerous complaints of fraud,
embezzlement of funds and gross irregularities in the companies controlled and managed
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by Dalmia-Jain combine, appointed a Commission of Enquiry first presided over by

Justice S.R. Tendulkar and subsequently by Shri Vivian Bose, a retired Judge of the
Supreme Court of India. This Commission submitted its report in the fall of 1962. Vivian
Bose Enquiry Commission Report unearths the intrigue, abuse of trust jugglery of
company funds, misuse and abuse of positions of power in the management of the affairs
of Dalmia-Jain Group of Companies as also criminal breach of trust in respect of the
funds of the Company reposed in the promoters and controllers of the private companies
and how they utilised the corporate finances for their personal advancement. This report,
led to the enactment of Companies (Amendment) Act, 1965 which vastly increased the
Governmental control of the private sector companies. The Companies (Amendment)
Act, 1974 which inter alia introduced Section 58A simultaneously ushered in vast
changes in the 1956 Act making greater inroads by Central Government in the
management of companies governed by 1956 Act. A step-by-step study of the various
amendments would unmistakably reveal the greater and greater intervention and control
by State and this control was in direct proportion to the abuse of the economic power
wielded by the corporate sector.

JUDGEMENT:
37. A detailed analysis of the provisions, in the light of submissions would clearly
negative any contention of the violation of Articles 14 and 19(1)(g) and we must reject
the challenge to the constitutionality of Section 58A and the rules made thereunder.
38. Not a single contention canvassed on behalf of the petitioners, individually or
collectively, bears the scrutiny and therefore the petitions and the appeals must fail and
are dismissed with costs in each matter.

3. INDIRA GANDHI V. RAJ NARAIN, (1975) 2 SCC 159

FACTS:
In 1971, India had its 5th Lok Sabha General Elections wherein former Prime Minister
Smt. Indira Gandhi secured 352 out of 518 seats which brought Victory for her and her
Party Congress. But before she could enjoy her achievement, a series of accusations
regarding unfair and corrupt elections stemmed against her.
Shri Raj Narain, the leader of Ram Manohar Lohia’s SSP stood against Indira Gandhi in
the elections of Rae Bareilly in Uttar Pradesh. He was extremely confident of his victory

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in the elections. He even attempted to take out a victory rally before the declaration of
results.
However, after the election results, he was extremely disappointed and refused to accept
that he was defeated. As a result of this dissatisfaction, Raj Narain decided to appeal to
nullify the election, accusing Mrs. Gandhi of adopting corrupt practices during her
election campaigns.
On 24th April 1971, He filed a petition in the Allahabad High Court Challenging Prime
Ministers Elections and accusing Indira Gandhi for violating the election code enshrined
in the Representation of the People Act of 1951 as her election campaigns were assisted
by many government officers including the armed forces and local police.
He also claimed that Indira Gandhi had used government vehicles for her election
campaigning and had distributed liquor and blankets amongst the voters to influence them
and exceeded the campaign expenses limit beyond Rs 35,000.
The Allahabad High Court after hearing both the sides decided to declare PM Indira
Gandhi’s election invalid. The Court found Indira Gandhi guilty under Section 123(7) of
the Representation of People’s Act, 1971.
Subsequently, the High Court ruled that she could not hold the position as Prime Minister
and was disqualified from contesting elections for six years. The court granted the
Congress party twenty days to appoint a new Prime Minister and replace Indira Gandhi.
Dissatisfied with the High Court rulings, Indira Gandhi approached the Supreme Court of
India challenging its decision. During that time, the Supreme Court was in recess, so the
court at that time had issued an injunction, temporarily staying the order of the High
Court until further proceedings. This order allowed Mrs. Gandhi to attend parliamentary
sessions but barred her from participating in debates and voting in the Lok Sabha.
During the ongoing Supreme Court proceedings, then-President Fakhruddin Ali Ahmed
declared a National Emergency due to internal disturbance. During this time, the 39th
Constitutional Amendment was made which introduced Article 329A in the constitution.
This Article stated that the election of the Prime Minister and Speaker could not be
legally challenged in any Indian court. This amendment effectively stripped the Supreme
Court of its authority over the Indira Gandhi case. Later the constitutional validity of this
39th Amendment was challenged as a result of this.
3. While the right to appeal is statutory, the power to stay is discretionary. But judicial
discretion — indeed, even executive discretion — cannot run riot. The former, though
plenary, is governed in its exercise by sound guidelines, and courts look for light, inter
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alia, from practice and precedent, without however being hidebound mechanically by the
past alone. After all, judicial power is dynamic, forward-looking and socially lucent and
aware. I mention this dimension of “judge-power” because the industry and ingenuity of
both lawyers have unearthed prior instances zigzagging now and then but substantially
striking the same note. A few orders from the debris of old records have been brought up
which seem to suggest variations in the type of stay granted by the higher courts. I shall
have occasion to dilate on them a little later. Suffice it to note that the power of the Court
must rise to the occasion, if justice, in its larger connotation, is the goal — and it is.
5. Now to the points urged before me. More or less by way of preliminary objection, Shri
Shanti Bhushan asserted that the petitioner, having come with unclean hands, was not
entitled to seek the equitable relief of stay. How were her hands unclean? Because, the
argument runs, her Advocate induced the High Court into granting a stay by
misrepresenting that if the judgment came into immediate effect, the national Government
would be paralysed for want of a Prime Minister and so time was needed for the Ruling
Party to elect a new leader to head the Government. Taken in by this alleged critical need
of the democratic process, the learned Judge granted 20 days' stay. This spell, ingeniously
secured, was perverted to consolidate her leadership, not to find a successor. If this
version of the respondent were veracious, the petitioner's conduct were dubious and this
Court would not condone such “solemn mockery”. But Shri Shanti Bhushan's submission
loses its sting if Shri Palkhivala were to be heeded. For, according to the latter, all in a
hurry a stay was moved by the Allahabad advocate praying for stay stating both the need
to elect a leader (not, another leader) and to enable filing of an appeal. The Congress
Parliamentary Party was since convoked but there was a thunderously unanimous vote
reaffirming faith in the petitioner as leader and Prime Minister. If her party so full-
bloodedly plumped in favour of her remaining in office as Prime Minister and guiding the
party as its one and only leader, the petitioner could not be faulted as having played false
to the Court. She could only call a meeting of the party but not coerce the members to
elect anyone other than the one they had set their hearts upon. Whether that party's
leadership resources were too inadequate to secure an alternative chief may be an
interesting question, but the Court does not peep into that penumbral area. Moreover, the
stay order does not state that it was to enable the election of a different leader that time
was granted. I have no good reason to reject the petitioner's plea that the choice of an
alternative leader was left to her party, that she did what she could in the spirit of
representation to Court and did not what she could not viz. to force her partymen to push
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her aside for the nonce for the Court's satisfaction. In these matters one has to go by prima
facie materials and probabilities. I overrule the “unclean hands” objection.

4. Having regard to the historic power-stakes involved in this election appeal and stay
proceeding, vigorous arguments, marked by strokes of heat and flashes of light, have been
heard in this application for stay and the time consumed at the bar has been considerably
more than when like matters have been routinely dealt with by this Court. Let it be plainly
understood that the Court decides forensic questions without getting embroiled in non-
legal disputes working as it does in a sound-proof system of sorts. Moreover,
notwithstanding the unusual, though natural, excitement and importance surrounding the
case, the Court is the quiet of the storm centre and views, with an equal eye, the claims on
each side, taking judicial note of the high issues and balance of convenience in the wider
context. Arguments about public sentiment, political propriety and moral compulsion,
though touched upon at the bar and relevant at other levels, fall beyond the conventional
judicial orbit and have to be discriminately shifted. Nevertheless, Shri Palkhivala has
pressed before me the propriety and urgency of the Court taking into consideration the
national situation even while exercising its discretionary power. As, a counterweight to
this submission, Shri Shanti Bhushan has claimed that no republic can surrender its
democratic destiny to a single soul without being guilty of overpowering the
parliamentary process by a personality cult. This brings to the fore an activist
interrogation about the cognisibility of such considerations by a court. Do the judicial
process and its traditional methodology sometimes make the Judicature look archaic, with
eyes open on law and closed on society, forgetting the integral yoga of law and society? If
national crises and democratic considerations, and not mere balance of convenience and
interests of 'justice', were to be major inputs in the Judges exercise of discretion, systemic
changes and shifts in judicial attitudes may perhaps be needed. Sitting in time-honoured
forensic surroundings I am constrained to judge the issues before me by the canons
sanctified by the usage of this Court.

JUDGEMENT:
On 7th November 1975, the final verdict on this case which shook whole India by its
implication was finally delivered by the Supreme Court of India.
The apex court invalidated the Constitutionality of the clause (4) of the Article 329A, as it
violates the basic structure of the Constitutions as enshrined in the Kesavananda Bharti
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Case. But the constitutionality of the Representation of the People (Amendment) Act,
1974, and the Election Laws (Amendment) Act, 1975 was validated by the Court.
Also, the court affirmed the validity of Indira Gandhi’s election by overruling the
Allahabad High Court’s decision and allowed Indira Gandhi to continue as the Prime
Minister of India. This decision of the Supreme Court reinforced the importance of the
basic structure doctrine while validating legislative changes and Indira Gandhi’s electoral
legitimacy.
30. Maybe, brevity which is usual in this Court in orders of stay of this sort might well
have sufficed here also but, the over-all desirability to dispel possible ambiguity warrants
a hopefully longer speaking order.
31. Let me sum up the terms of the operative order I hereby pass:
“I. Subject to para III below, there will be a stay of the operation of the judgment and
order of the High Court under appeal.
II. Consequentially, the disqualification imposed upon the appellant as a statutory sequel
under Section 8-A of the Act and as forming part of the judgment and order impugned
will also stand suspended. That is to say, the petitioner will remain a member of the Lok
Sabha for all purposes except to the extent restricted by para III so long as the stay order
lasts.
III. The appellant-petitioner, qua Lok Sabha member, will be entitled to sign the Register
kept in the House for that purpose and attend the sessions of the Lok Sabha, but she will
neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration
in her capacity as Member of the Lok Sabha.
IV. Independently of the restrictions under para III on her membership of the Lok Sabha,
her rights as Prime Minister or Minister, so long as she fills that office, to speak in and
otherwise to take part in the proceedings of either House of Parliament or a joint sitting of
the Houses (without right to vote) and to discharge other functions such as are laid down
in Articles 74, 75, 78, 88, etc., or under any other law, and to draw her salary as Prime
Minister, shall not be affected or detracted from on account of the conditions contained in
this stay order.”
32. This order, by me sitting single as Vacation Judge, is being delivered with a sense of
hurry, although after careful consideration of arguments heard till last evening. Now the
Parliament is not in session and the veto on the right to vote is currently academic.
Situations may develop, circumstances may change and this order itself, like any
interlocutory order, is provisional. If new events like the convening of Parliament take
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place or fresh considerations crop up warranting the review of the restrictions in this stay
order, the petitioner-appellant will be at liberty to move a Division Bench of this Court
again to modify the restrictions or pray for an unconditional stay. Likewise, the
respondent may also, if justifying considerations appear anew, move for variation of the
conditions in this stay order.

4. JUSTICE K.S. PUTTASWAMY (RETD.) V. UNION OF INDIA, (2017) 10 SCC 1

FACTS:
This case was initiated through a petition filed by Justice K.S. Puttaswamy, a retired
judge of the Karnataka High Court in relation to the Aadhaar Project, which was
spearheaded by the Unique Identification Authority of India (UIDAI). The Aadhaar
number was a 12-digit identification number issued by the UIDAI to the residents of
India. The Aadhaar project was linked with several welfare schemes, with a view to
streamline the process of service delivery and remove false beneficiaries. The petition
filed by Justice Puttaswamy was a case which sought to challenge the constitutional
validity of the Aadhaar card scheme. Over time, other petitions challenging different
aspects of Aadhaar were also referred to the Supreme Court.
In 2015, before a three Judge Bench of the Court, the norms for, and compilation of,
demographic biometric data by the government were questioned on the grounds of
violation of the right to privacy. The Attorney General of India argued against the
existence of the fundamental right to privacy based on the judgments in M.P.
Sharma and Kharak Singh. While addressing these challenges, the three Judge Bench
took note of several decisions of the Supreme Court in which the right to privacy had
been held to be a constitutionally protected fundamental right. However, these subsequent
decisions which affirmed the existence of a constitutionally protected right of privacy,
were rendered by benches of a strength smaller than those in M.P. Sharma and Kharak
Singh. The case was referred to a Constitution Bench to scrutinize the precedents laid
down in M.P. Sharma and Kharak Singh and the correctness of the subsequent decisions.
On 18 July 2017, a Constitution Bench considered it appropriate that the issue be resolved
by a bench of nine judges.

“…They are the rights of the people preserved by our Constitution. “Fundamental Rights”
are the modern name for what have been traditionally known as “natural rights”. As one
author puts: “they are moral rights which every human being everywhere all times ought
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to have simply because of the fact that in contradistinction with other things is rational
and moral”. They are the primordial rights necessary for the development of human
personality. They are the rights which enable a man to chalk out of his own life in the
manner he likes best…”181 (emphasis supplied) The fundamental rights, in other words,
are primordial rights which have traditionally been regarded as natural rights. In that
character these rights are inseparable from human existence. They have been preserved by
the Constitution, this being a recognition of their existence even prior to the constitutional
document.
(ii) “That article (Article 19) enumerates certain freedoms under the caption ‘right to
freedom’ and deals with those great and basic rights which are recognised and guaranteed
as the natural rights inherent in the status of a citizen of a free country. (Per Patanjali
Sastri, C J., in State of West Bengal v. Subodh Gopal Bose [AIR 1954 SC 92: 1954 SCR
587, 596: 1954 SCJ 127]) (Emphasis supplied).
12. According to Salmond, rights are interests protected by ‘rules of right’, i.e., by moral
or legal rules13. When interests are worth protecting on moral grounds, irrespective of the
existence of a legal system or the operation of law, they are given the name of a natural
right. Accordingly, Roscoe Pound refers to natural law as a theory of moral qualities
inherent in human beings, and to natural rights as deductions demonstrated by reason
from human nature14. He defines natural rights, and distinguishes them from legal rights
(whether at common law or under constitutions) in the following way:
“Natural rights mean simply interests which we think ought to be secured demands
which human beings may make which we think ought to be satisfied. It is perfectly
true that neither law nor state creates them. But it is fatal to all sound thinking to treat
them as legal conceptions. For legal rights, the devices which law employs to secure
such of these interests as it is expedient to recognize, are the work of the law and in
that sense the work of the state.” Privacy, with which we are here concerned,
eminently qualifies as an inalienable natural right, intimately connected to two values
whose protection is a matter of universal moral agreement: the innate dignity and
autonomy of man.
25) In my considered opinion, “right to privacy of any individual” is essentially a natural
right, which inheres in every human being by birth. Such right remains with the human
being till he/she breathes last. It is indeed inseparable and inalienable from human being.
1. I have had the benefit of reading the exhaustive and erudite opinions of Rohinton F.
Nariman, J, and Dr. D.Y. Chandrachud, J. The conclusion is the same, answering the
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reference that privacy is not just a common law right, but a fundamental right falling in
Part III of the Constitution of India. I agree with this conclusion as privacy is a primal,
natural right which is inherent to an individual. However, I am tempted to set out my
perspective on the issue of privacy as a right, which to my mind, is an important core of
any individual existence.

JUDGEMENT:
On 24 August 2017, the Supreme Court of India gave the Right to Privacy verdict. In the
case of Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors. The
Supreme Court held that the Right to Privacy is a fundamental right protected under
Article 21 and Part III of the Indian Constitution. The judgment mentioned Section 377 as
a "discordant note which directly bears upon the evolution of the constitutional
jurisprudence on the right to privacy." In the judgment delivered by the nine-judge bench,
Justice Chandrachud (who authored for Justices Khehar, Agarwal, Abdul Nazeer and
himself), held that the rationale behind the Suresh Koushal (2013) Judgement is incorrect,
and the judges clearly expressed their disagreement with it. Justice Kaul agreed with
Justice Chandrachud's view that the right to privacy cannot be denied, even if a minuscule
fraction of the affected population exists. He went on to state that the majoritarian concept
does not apply to Constitutional rights, and the courts are often called upon to take what
may be categorized as a non-majoritarian view, in the check and balance of power
envisaged under the Constitution of India.
Sexual orientation is an essential attribute of privacy. Discrimination against an individual
based on sexual orientation is deeply offensive to an individual's dignity and self-worth.
Equality demands that the sexual orientation of each individual in society must be
protected on an even platform. The right to privacy and the protection of sexual
orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15, and 21
of the Constitution.[6]
Their rights are not "so-called" but are real rights founded on sound constitutional
doctrine. They inhere in the right to life. They dwell in privacy and dignity. They
constitute the essence of liberty and freedom. Sexual orientation is an essential
component of identity. Equal protection demands protecting the identity of every
individual without discrimination.
The ADM Jabalpur case was overruled on the doctrinal grounds concerning the rights by
the same verdict. At the paragraph 119 of the majority opinion, the court had ruled:
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"The judgments rendered by all the four judges constituting the majority in Additional
District Magistrate, Jabalpur are seriously flawed. Life and personal liberty are
inalienable to human existence. These rights are, as recognized in Kesavananda Bharati,
primordial rights. They constitute rights under natural law.
The human element in the life of the individual is integrally founded on the sanctity of
life. Dignity is associated with liberty and freedom. No civilised state can contemplate an
encroachment upon life and personal liberty without the authority of law.
"Neither life nor liberty are bounties conferred by the State nor does the Constitution
create these rights.
"The right to life has existed even before the advent of the Constitution. In recognizing
the right, the Constitution does not become the sole repository of the right. It would be
preposterous to suggest that a democratic Constitution without a Bill of Rights would
leave individuals governed by the State without either the existence of the right to live or
the means of enforcement of the right. The right to life is inalienable to each individual, it
existed before the Constitution and continued in force under Article of the Constitution.
"Justice Khanna was right in holding that the recognition of the right to life and personal
liberty under the Constitution does not denude the existence of that right, apart from it nor
can there be a fatuous assumption that in adopting the Constitution the people of India
surrendered the most precious aspects of the human persona, namely, life, liberty and
freedom to the State on whose mercy these rights would depend. Such a construct is
contrary to the basic foundation of the rule of law which imposes restraints upon the
powers vested in the modern state when it deals with individual liberties.
“The power of the Court to issue a writ of habeas corpus is a precious and undeniable
feature of the rule of law.”

5. K.K. VERMA V. UNION OF INDIA, AIR 1954 Bom 358

FACTS:
The respondent was a displaced person who received a flat in Dhobi Talao based on his
status as a dependent of an army officer.
A contractual monthly tenancy was established between the Union of India and the
respondent.
The Union terminated this tenancy via a notice dated June 25, 1953, due to non-
compliance with eviction.

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As the respondent did not hand over possession he had filed the petition from which this
appeal arises on 15-4-1953, before the notice, apprehending that the appellant who is the
Sub–Area Commander would take action against him, the Union gave further notice on 3-
8-1953, under section 3 of Act 27 of 1950, calling upon the respondent to hand over
‘possession within fifteen days’ from the date of the service of the notice, and the only
question that arises in this appeal is whether this notice be valid provided the respondent
comes within the ambit of section 3 of Act 27 of 1950.

12. In view of the factual scenario unfolded above, it does not appear to be a case where
interference under Article 136 of the Constitution is called for. That power is exercised
only on showing substantial injustice, and not for merely technical flaws in a proceeding.
(See Shahoodul Haque v. Registrar, Coop. Societies, Bihar [(1975) 3 SCC 108 : 1974
SCC (L&S) 498] .) The position was illuminatingly stated in Rashpal Malhotra v. Satya
Rajput [(1987) 4 SCC 391] . This Court in Heavy Engg. Corpn. Ltd. v. K. Singh and
Co. [(1977) 2 SCC 515 : AIR 1977 SC 2031] expressed the opinion that although the
powers of this Court were wide under Article 136, it could not be urged that because
leave had been granted the Court must always in every case deal with the merits, even
though it was satisfied that the ends of justice did not justify its interference in a given
case. It is not as if, in an appeal with leave under Article 136, this Court was bound to
decide the question if on facts at the later hearing the Court felt that the ends of justice did
not make it necessary to decide the point. Similarly, in Baigana v. Dy. Collector of
Consolidation [(1978) 2 SCC 461 : 1978 SCC (Cri) 273 : 1978 SCC (Tax) 111 : 1978
SCC (L&S) 370 : (1978) 3 SCR 509] it was held that this Court was more than a court of
appeal. It exercises power only when there is supreme need. It is not the fifth court of
appeal, but the final court of the nation. Therefore, even if legal flaws might be
electronically detected, it may not interfere save manifest injustice or substantial question
of public importance.

JUDGEMENT:
That Act was put on the statute book, as the preamble shows, to provide for the eviction
of certain persons from Government premises and certain matters connected therewith.
The expression "certain persons" does not throw much light on the intention of the
Legislature because it is clear that the persons contemplated are persons who would
satisfy the conditions laid down in Section 3, and, therefore, determine whether a person
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is a certain person to whom the Act applies, what we have to do is to construe Section 3
and in construction of Section 3 the preamble is not of any assistance.
Section 3 is entitled "Power to evict certain persons from Government premises." Sub-
section (2) of Section 3 gives the power to the competent authority to evict the person
from and take possession of, the premises and for that purpose use such force as may be
necessary. Section 4 confers the power upon the authority to recover damages. Section 5
provides for appeal to the Central Government. Section 6 ousts the jurisdiction of civil
Courts and Section 9 is the penal section which makes a person liable to punishment if he
obstructs the lawful exercise of any power conferred by or under the Act or contravenes
any provision of the Act or any rule or order made thereunder. Therefore, the statute is
like a penal statute and there can be no doubt that it must be strictly construed in favour of
the subject.
Now, turning to Section 3, it provides:
“(1) If the competent authority is satisfied-
(a) that the person authorized to occupy any Government premises has, whether before or
after the commencement of this Act,-
(i) Sub-let, without the permission of the Central Government or the competent authority,
the whole or any part of such premises, or
(ii) otherwise acted in contravention of any of the terms, express or implied, under which
he is authorised to occupy such premises, or
(b) that any person is in unauthorised occupation of any Government premises.
The competent authority may, by notice served by post or otherwise, order that that
person as well as any other person who may be in occupation of the whole or any part of
the premises, shall vacate them within fifteen days of the date of the service of the
notice.....”
The scheme of Section 3 seems to be that Sub-clause (a) deals with authorised persons to
occupy Government premises and it gives the power to evict in cases where such persons
have sub-let or where they have acted in contravention of the terms, express or implied,
under which they were authorised to occupy the premises, and Sub-clause (b) deals with
persons who are in occupation of Government premises and whose occupation is
unauthorised.
In our opinion, it is clear that Sub-clause (a) deals with the acts of a person which he
commits while having the Government premises which he is authorised to possess. The
obligation of the tenant to hand over possession under Section 108(q) only arises after the
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tenancy has been terminated and to the extent that Sub-clause (a) deals with tenants, it
deals with the acts of the tenants while the tenancy is subsisting. Sub-clause (a) (i) deals
with the case of a sub-letting which the tenant does while he is a tenant and Sub-clause
(a) (ii) deals with contravention of express or implied terms of the tenancy, again while
the tenancy is subsisting.
The penalty, if imposed upon a trespasser, would be a proper penalty because he had no
right to be in occupation of Government premises at any time, and his very entry being
unauthorised, he could not contend that his possession was protected or his possession
was juridical. Therefore, in our opinion, the learned Judge below was right in the view
that he took that the Act did not apply to persons whose possession of Government
premises was in its inception with title or legal. As it is not disputed in this case that" the
respondent's possession was under a contract of tenancy, in our opinion, he did not
become an unauthorised person within the meaning of Section 3(1)(b) and the notice
issued by the Union of India against him is an invalid notice.
 Factual Background: The case involved K.K. Verma, challenging the actions of the
Union of India regarding certain administrative decisions that allegedly violated his
rights.
 Legal Issues: The primary legal issues revolved around the interpretation of statutory
provisions and their compliance with the Constitution of India, particularly
concerning fundamental rights.
 Constitutional Provisions: The court scrutinized the relevant Articles of the
Constitution, specifically focusing on Articles 14 (right to equality) and 19 (freedom
of speech and expression).
 Judgment on Authority: The court ruled on the limits of governmental authority,
emphasizing that administrative bodies must operate within the framework
established by law.
 Discretionary Powers: The court analyzed the exercise of discretionary powers by
authorities, indicating that such powers must not be exercised arbitrarily and must
align with legislative intent.
 Impact on Administrative Law: The decision had significant implications for
administrative law in India, establishing a framework for accountability and
transparency in administrative actions.

6. KESAVANANDA BHARATI V. STATE OF KERALA, (1973) 4 SCC 225

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FACTS:
In February 1970 Swami Kesavananda Bharati, senior pontiff and head of the Hindu
monastery Edneer Matha in Edneer, Kasaragod District, Kerala, challenged the Kerala
government's attempts, under two land reform acts, to impose restrictions on the
management of its property. A noted Indian jurist, Nanabhoy Palkhivala, convinced
Swami into filing his petition under Article 26, concerning the right to manage religiously
owned property without government interference. The case had been heard for 68 days,
the arguments commencing on October 31, 1972, and ending on March 23, 1973, and its
judgement consists of 700 pages.

JUDGEMENT:
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and
considered the validity of the article 24th, 25th, 26th and 29th amendments. The case was
heard by the largest ever Constitution Bench of 13 Judges. The bench gave eleven
separate judgments, which agreed in some points and differed on others. [14] Nanabhoy
Palkhivala, assisted by Fali Nariman and Soli Sorabjee, presented the case against the
government in both cases.

Majority judgement
Upholding the validity of clause 1 of article 13 and a corresponding provision in article
368(3), inserted by the 24th Amendment, the Court settled in favour of the view that
Parliament has the power to amend the fundamental rights. However, the Court affirmed
another proposition also asserted in the Golaknath case, by ruling that the expression
"amendment" of this Constitution in article 368 means any addition or change in any of
the provisions of the Constitution within the broad contours of the Preamble and the
Constitution to carry out the objectives in the Preamble and the Directive Principles.
Applied to fundamental rights, it would be that while fundamental rights cannot be
abrogated, reasonable abridgement of fundamental rights could be affected in the public
interest. The true position is that every provision of the Constitution can be amended
provided the basic foundation and structure of the Constitution remains the same.
The nine signatories to the statement were
1. Chief Justice S M Sikri
2. J. M. Shelat
3. K. S. Hegde
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4. A. N. Grover
5. P. Jaganmohan Reddy
6. D. G. Palekar
7. H R Khanna
8. A. K. Mukherjee
9. Y.V. Chandrachud.

Four judges did not sign the judgment

1. A. N. Ray,
2. K. K. Mathew
3. M. H. Beg
4. S. N. Dwivedi.

S.M. Sikri, Chief Justice

CJI S M Sikri held that the fundamental importance of the freedom of the individual has
to be preserved for all times to come and that it could not be amended out of existence.
According to the Chief Justice, fundamental rights conferred by Part III of
the Constitution of India cannot be abrogated, though a reasonable abridgment of those
rights could be effected in public interest. There is a limitation on the power of
amendment by necessary implication which was apparent from a reading of the preamble
and therefore, according to the learned Chief Justice, the expression 'amendment of this
Constitution,' in Article 368, means any addition or change in any of the provisions of the
Constitution within the broad contours of the preamble, made in order to carry out the
basic objectives of the Constitution. Accordingly, every provision of the Constitution was
open to amendment provided the basic foundation or structure of the Constitution was not
damaged or destroyed.

Shelat and Grover, JJ

Held that the preamble to the Constitution contains the clue to the fundamentals of the
Constitution. According to the learned Judges, Parts III and IV of the Constitution which
respectively embody the fundamental rights and the directive principles have to be
balanced and harmonised. This balance & harmony between two integral parts of the
Constitution forms a basic element of the Constitution which cannot be altered. The word
'amendment' occurring in Article 368 must therefore be construed in such a manner as to
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preserve the power of the Parliament to amend the Constitution, but not so as to result in
damaging or destroying the structure and identity of the Constitution. There was thus an
implied limitation on the amending power which prevented the Parliament from
abolishing or changing the identity of the Constitution or any of its Basic Structure.

Hegde and Mukherjea, JJ

Held that the Constitution of India which is essentially a social rather than a political
document, is founded on a social philosophy and as such has two main features basic and
circumstantial. The basic constituent remained constant, the circumstantial was subject to
change. According to the learned Judges, the broad contours of the basic elements and the
fundamental features of the Constitution are delineated in the preamble and the
Parliament has no power to abolish or emasculate those basic elements of fundamental
features. The building of a welfare State is the ultimate goal of every Government but that
does not mean that in order to build a welfare State, human freedoms have to suffer a total
destruction. Applying these tests, the learned Judges invalidated Article 31C even in its
un-amended form.

Jaganmohan Reddy, J
Held that the word 'amendment' was used in the sense of permitting a change, in
contradistinction to destruction, which the repeal or abrogation brings about. Therefore,
the width of the power of amendment could not be enlarged by amending the amending
power itself. The learned Judge held that the essential elements of the basic structure of
the Constitution are reflected in its preamble and that some of the important features of
the Constitution are justice, freedom of expression and equality of status and opportunity.
The word 'amendment' could not possibly embrace the right to abrogate the pivotal
features and the fundamental freedoms and therefore, that part of the basic structure could
not be damaged or destroyed. According to the learned Judge, the provisions of Article
31d, as they, conferring power on Parliament and the State Legislatures to enact laws for
giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether
abrogated the right given by Article 14 and were for that reason unconstitutional. In
conclusion, the learned Judge held that though the power of amendment was wide, it did
not comprehend the power to totally abrogate or emasculate or damage any of the
fundamental rights or the essential elements of the basic structure of the Constitution or to

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destroy the identity of the Constitution. Subject to these limitations, Parliament had the
right to amend any and every provision of the Constitution.

H R Khanna J.
H R Khanna has given in his judgment that the Parliament had full power to amend the
Constitution, however, since it is only a 'power to amend,' the basic structure or
framework of the structure should remain intact. While as per the aforesaid views of the
six learned Judges, certain "essential elements" (which included fundamental rights) of
the judgment cannot be amended as there are certain implied restrictions on the powers of
the parliament of India.
According to the Judge, although it was permissible for the Parliament to effect changes
in the exercise of its amending power so as to meet the requirements of changing
conditions, it was not permissible to touch the foundation or to alter the basic institutional
pattern. Therefore, the words 'amendment of the Constitution' in spite of the width of their
sweep and in spite of their amplitude, could not have the effect of empowering the
Parliament to destroy or abrogate the basic structure or framework of the Constitution.
This gave birth to the basic structure doctrine, which has been considered as the
cornerstone of the Constitutional law in India.

7. KULDIP NAYAR V. UNION OF INDIA, (2006) 7 SCC 1

FACTS:
In Kuldip Nayar v Union of India, the person who brought the matter to court, Kuldip
Nayar, filed a legal petition under Article 32 of the Indian Constitution. This petition
aimed to challenge changes made to the Representation of People Act, 1951, specifically
Amendment 40 of 2003, which became effective on August 28, 2003.
The amendment had two main parts. First, it removed an important rule related to the
requirement for a state representative of a particular council of states to be from that state.
The petitioner argued that this change went against the idea of federalism, which is an
important part of India’s Constitution.
Second, the amendment altered sections 59, 94, and section 128 of the Act, introducing a
new way of conducting elections using an open ballot system. This change was seen as
undermining the principle of secret voting, which is essential for fair elections. It also
interfered with the voter’s freedom of expression, as guaranteed by Article 19 of the
Indian Constitution, another fundamental aspect of the Constitution.
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319. The Union of India has also submitted copy of the First Report of the Ethics
Committee of Parliament, as adopted on 15-12-1999 and published by the Rajya Sabha
Secretariat, under the Chairmanship of Shri S.B. Chavan, which had recommended the
open ballot system as follows:
“19. The Committee has also noted the emerging trend of cross-voting in the elections
for the Rajya Sabha and the Legislative Councils in the States. It is often alleged that
large sums of money and other considerations encourage the electorate for these two
bodies to vote in a particular manner leading sometimes to the defeat of the official
candidates belonging to their own political party. In order not to allow big money and
other considerations to play mischief with the electoral process, the Committee is of
the view that instead of secret ballot, the question of holding the elections to the Rajya
Sabha and the Legislative Councils in the States by open ballot may be examined.”

JUDGEMENT:
Firstly, the court in Kuldip Nayar v Union of India looked into the question of whether
domicile restricts or whether it is unconstitutional or not. With respect to the same, it
observed that the amendment to the act of 1951 has further widened the scope and choice
of an elector outside the state and shall be elected from the state to the council of state.
The court stated that this amendment under section 3 had restricted the qualification of a
member to the council of states. But, this restriction is not to any citizens of India, rather
the restriction is with respect to non-citizens, and this is significant as per the court’s
opinion. So, even after the amendment, the qualification is in line with the requirement
under Article 84 of the Indian Constitution.
Another important thing that the court stated was that even after the amendment, the state
legislative assembly should be the body that will elect the representative for the council of
states as the MLAs shall have their right to elect the member. Thus, as the MLAs of the
state elect the member to the council of state, the contention that the non-resident person
will not be the person of domicile shall be rejected.
Secondly, the question of whether secrecy was infringed through the Amendment Act in
2003 or not was answered by distinguishing the ordinary constituency election from that
of proportional representation.
Court in Kuldip Nayar vs Union of India noted that proportional representation takes
place when the representatives of the states shall elect the members to parliament. On the
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other hand, in constituency elections, it will be the citizens who elect their
representatives. Thus, this contention shall not be held unconstitutional as it does not take
away the freedom of expression under Article 19(1) (a) of the Indian Constitution even
after the amendment. Thus, open ballot election as part of indirect elections shall not
require secrecy, and taking away the secrecy shall no way affect the right to vote.
Hence, the petitioner’s arguments in Kuldip Nayar vs Union of India were rejected, and
hence the case was dismissed.

8. M. P. JAIN
There is no rule that unless a right is expressly stated as a Fundamental Right it cannot be
treated as one. Over time, the Supreme Court has been able to imply by its interpretative
process, several Fundamental Rights, such as, freedom of press, right to privacy, out of
the expressly stated Fundamental Rights.

District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 : AIR 2005 SC 186.
The A.P. Amendment permits inspection being carried out by the Collector by having
access to the documents which are in private custody i.e. custody other than that of a
public officer. According to the Court it is clear that this provision empowers invasion of
the home of the person in whose possession the documents “tending” to or leading to the
various facts stated in Section 73 are in existence. Section 73 being one without any
safeguards as to the probable or reasonable cause or reasonable basis or materials violates
the right to privacy both of the house and of the person. Under the garb of the power
conferred by Section 73 the person authorized may go on rampage searching house after
house i.e. residences of the persons or the places used for the custody of documents. The
possibility of any wild exercise of such power may be remote, but then on the framing of
Section 73 the possibility cannot be ruled out. Any number of documents may be
inspected, may be seized and may be removed and at the end the whole exercise may turn
out to be an exercise in futility. The exercise may prove to be absolutely disproportionate
to the purpose sought to be achieved. A reasonable nexus between stringency of the
provision and the purpose sought to be achieved must exist.

In Leonard Hector v. Att. Gen. of Antiqua and Berbuda, (1990) 2 AC 312, the Privy
Council has observed:

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“In a free democratic society, it is almost too obvious to need stating that those who
hold office in government and who are responsible for public administration must
always be open to criticism. Any attempt to stifle or fetter such criticism amounts to
political censorship of the most insidious and objectionable kind. At the same time, it
is no less obvious that the very purpose of criticism levelled at those who have the
conduct of public affairs by their political opponents is to undermine public
confidence in their stewardship and to persuade the electorate that the opponents
would make a better job of it than those presently holding office. In the light of these
considerations their Lordships cannot help viewing a statutory provision which
criminalises statements likely to undermine public confidence in the conduct of public
affairs with the utmost suspicion.”
The question is how far the principles stated in the above cases are applicable in India.
The Supreme Court has answered this question as follows:
“So far as the freedom of press is concerned, it flows from the freedom of speech and
expression guaranteed by Article 19(1)(a). But the said right is subject to reasonable
restrictions placed thereon by an existing law or a law made after the commencement
of the Constitution in the interests of or in relation to the several matters set out
therein. Decency and defamation are two of the grounds mentioned in clause (2). Law
of Torts providing for damages for invasion of the right to privacy and defamation
and sections 499/500, I.P.C. are the existing laws saved under clause (2). But what is
called for today—in the present times—is a proper balancing of the freedom of press
and said laws consistent with the democratic way of life ordained by the Constitution.
Over the last few decades, press and electronic media have emerged as major factors
in our nation’s life. They are still expanding—and in the process becoming more
inquisitive. Our system of government demands—as do the systems of Government of
the United States of America and United Kingdom—constant vigilance over exercise
of governmental power by the press and the media among others. It is essential for a
good Government. At the same time, we must remember that our society may not
share the degree of public awareness obtaining in United Kingdom or United States.
The sweep of the First Amendment to the United States Constitution and the freedom
of speech and expression under our Constitution is not identical though similar in their
major premises. All this may call for some modification of the principles emerging
from the English and United States decisions in their application to our legal system.”
One principle which the Court did lay down is that the State or its officers cannot
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impose any prior restraint or prohibition on any publication because they apprehend
that they may be defamed. Their remedy, if any, would arise only after the
publication.

9. M. RAMAKRISHNA V. HINDUSTAN PETROLEUM CORPN. LTD., (2005) 10

SCC 674
This appeal is against an interim order of the High Court whereby in a pending Second
Appeal the High Court directed the respondent to deposit the rent at the rate of Rs.1250/-
per month from 1.5.1993 and at the rate of Rs.2000/- per month with effect from January
1, 1999 till the disposal of the Second Appeal.
The grievance of the appellant is that the land which was leased out in the year 1973 for a
period of 20 years for setting up a Petrol Station is being utilised by the respondent for
parking of vehicles which gives to the respondent an earning of Rs.1000/- per day.
Therefore, the appellant prayed before the High Court that during the pendency of the
appeal respondent should be directed to deposit by way of rent a sum of Rs.10,000/- per
month. The prayer, as noticed above, was only partly allowed with the direction to deposit
rent at the enhanced rates noted above.
This being an interim order, we do not wish to interfere in exercise of our discretion under
Article 136 of the Constitution of India. We, therefore, dismiss the appeal. However, the
dismissal of this appeal will not prevent the appellant from making an appropriate prayer
before the High Court to fix a higher rent at the time of the final disposal of the Second
Appeal. We should not be understood to have expressed any opinion on the merit of the
claim of the appellant, and it will be open to the High Court to pass an appropriate order
in accordance with law.
No costs.

10. MINERVA MILLS LTD. V. UNION OF INDIA, (1980) 3 SCC 625

FACTS:
Minerva Mills Ltd. is a limited company dealing in textiles. On August 20, 1970 the
Central Government appointed a committee under section IS of the Industries
(Development Regulation) Act, 1951 to make a full and complete investigation of the
affairs of the Minerva Mills Ltd as it was of the opinion that there had been or was likely
to be substantial fall in the volume of production. The said Committee submitted its
report to the Central Government in January 1971, on the basis of which the Central
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Government passed an order dated October 19, 1971 under section 18A of the 1951 Act,
authorising the National Textile Corporation Ltd., to take over the management of the
Mills on the ground that its affairs are being managed in a manner highly detrimental to
public interest. Undertaking was nationalised and taken over by the Central Government
under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. The
petitioners challenged the constitutional validity of certain provisions of the Sick Textile
Undertakings (Nationalisation) Act, 1974 and of the order dated October 19,
1971, the constitutionality of the Constitution (Thirty Ninth Amendment) Act
which inserted the impugned Nationalisation Act as Entry 105 in the Ninth Schedule to
the Constitution, the validity of Article 31B of the Constitution and finally the
constitutionality of sections 4 and 55 of the Constitution (Forty Second
Amendment) Act, 1976 on the ratio of the majority judgment in Kesavan Anda
Bharati’s case, namely, though by Article 368 of the Constitution Parliament is given the
power to amend the Constitution, that power cannot be exercised so as to damage the
basic features of the Constitution or so as to destroy its basic structure. Opining that
sections 4 and 55 of the Constitution (Forty Second Amendment) Act are void and
beyond the amending power of the Parliament, the Court by majority (Per Chandrachud.
C.J., on behalf of himself.

The significance of the perception that Parts III and IV together constitute the core of
commitment to social revolution and they, together, are the conscience of the Constitution
is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville
Austin's observation brings out the true position that Parts III and IV are like two wheels
of a chariot, one no less important than the other. You snap one and the other will lose its
efficacy. They are like a twin formula for achieving the social revolution, which is the
ideal which the visionary founders of the Constitution set before themselves. In other
words, the Indian Constitution is founded on the bed-rock of the balance between Parts III
and IV. To give absolute primacy to one over the other is to disturb the harmony of the
Constitution. This harmony and balance between fundamental rights and directive
principles is an essential feature of the basic structure of the Constitution.
This is not mere semantics. The edifice of our Constitution is built upon the concepts
crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State
which carried with it the obligation to secure to our people justice-social, economic and
political. We, therefore, put part IV into our Constitution containing directive principles
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of State policy which specify the socialistic goal to be achieved. We promised to our
people a democratic polity which carries with it the obligation of securing to the people
liberty of thought, expression, belief, faith and worship; equality of status and of
opportunity and the assurance that the dignity of the individual will at all costs be
preserved. We, therefore, put Part, III in our Constitution conferring those rights on the
people. Those rights are not an end in themselves but are the means to an end. The end is
specified in Part IV. Therefore, the rights conferred by Art III are subject to reasonable
restrictions and the Constitution provides that enforcement of some of them may, in stated
uncommon circumstances, be suspended. But just as the rights conferred by Part III
would be without a radar and a compass if they were not geared to an ideal, in the same
manner the attainment of the ideals set out in Part IV would become a pretence for
tyranny if the price to be paid for achieving that ideal is human freedoms. One of the
faiths of our founding fathers was the purity of means. Indeed, under our law, even a
dacoit who has committed a murder cannot be put to death in the exercise of right of self-
defence after he has made good his escape. So great is the insistence of civilised laws on
the purity of means. The goals set out in Part IV have, therefore, to be achieved without
the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV
together constitute the core of our Constitution and combine to form its conscience.
Anything that destroys the balance between the two parts will ipso facto destroy an
essential element of the basic structure of our Constitution.

JUDGEMENT:
(5) For the removal of easy doubts, it is hereby declared that there shall be no limitation
whatever on the constituent power of Parliament to amend by way of addition, variation
or repeal the provisions of this Constitution under this article.
The above clauses were unanimously ruled as unconstitutional. Chief Justice Y. V.
Chandrachud explained in his opinion that since, as had been previously held
in Kesavananda Bharati v. State of Kerala, the power of Parliament to amend the
constitution was limited, it could not by amending the constitution convert this limited
power into an unlimited power (as it had purported to do by the 42nd amendment).
Since the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very power into
an absolute power. Indeed, a limited amending power is one of the basic features of our
Constitution and therefore, the limitations on that power cannot be destroyed. In other
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words, Parliament cannot, under Article 368, expand its amending power so as to acquire
for itself the right to repeal or abrogate the Constitution or to destroy its basic and
essential features. The done of a limited power cannot by the exercise of that power
convert the limited power into an unlimited one.
Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to
accord precedence to the Directive Principles of State Policy articulated in Part IV of the
Constitution over the Fundamental Rights of individuals articulated in Part III of Indian
Constitution. By a verdict of 4-1, with Justice P. N. Bhagwati dissenting, the court held
section 4 of the 42nd Amendment to be unconstitutional. Chief Justice Chandrachud
wrote:
Three Articles of our Constitution, and only three, stand between the heaven of freedom
into which Tagore wanted his country to awake and the abyss of unrestrained power.
They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden
triangle which affords to the people of this country an assurance that the promise held
forth by the preamble will be performed by ushering an egalitarian era through the
discipline of fundamental rights, that is, without emasculation of the rights to liberty and
equality which alone can help preserve the dignity of the individual, added art 368(4) &
art 368(5) in Indian constitution.

11. NARPAT SINGH V. JAIPUR DEVELOPMENT AUTHORITY, (2002) 2 SCC 666

FACTS:
Notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 was published
in the State Gazette in June 1960, acquiring land in the localities of Bhojpura and Chak
Sudershanpura, Tehsil Jaipur, adjacent to Jaipur city for urban development, viz. for
multipurpose project of constructing legislative assembly, MLA quarters and planned
development of city, popularly known as 'Lal Kothi Scheme'. The exact public purpose
for acquisition is not discernible from the record but that is immaterial for our present
purpose. The Notification under Section 4 was followed by declaration under Section 6 in
May 1961. The persons whose land was acquired under the scheme include the four
appellants before us. On 9.1.1964, the Land Acquisition Officer passed an award fixing
monetary compensation at the rate of Rs.1800/- per bigha, i.e. approximately 60 paise per
sq. yard. In addition to the amount of compensation, the Land Acquisition Officer also
directed plots of 2000 or 1000 sq. yards to be allotted to the appellants in the very scheme
for which the land was acquired. Dissatisfied with the quantum of compensation, the
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claimants and the State Government both sought for reference to the Civil Court. The
reference Court modified the quantum of compensation by increasing the same to
Rs.4.50p. per sq. yard while upholding the allotment of residential plots. The State
Government preferred appeals questioning the enhancement. On 17.8.1971, a tripartite
settlement was arrived at as amongst the claimants, the State Government and the Urban
Improvement Trust (the predecessor of Jaipur Development Authority) according to
which it was agreed (a) that the claimants accept the amount of compensation awarded by
the Land Acquisition Officer; (b) that the allotment of residential plots to the claimants
measuring 2000 or 1000 sq. yards each in the same scheme shall stand subject to payment
of price by the allottees @ Rs.8/- per sq. yard which price shall be paid by the allottees to
the UIT deducting therefrom the amount of compensation awarded by the Land
Acquisition Officer; and (c) that the contest on the amount of compensation is given up
and the State of Rajasthan and the UIT shall not prosecute the appeal. A compromise
petition, incorporating the terms of settlement, was filed in the High Court and taken on
record disposing of the appeal in terms of settlement. On 12.10.1982, UIT was dissolved
and was replaced by Jaipur Development Authority which took over the assets and
liabilities of UIT.
The appellants filed execution application seeking implementation of the award made by
the High Court based on the compromise. For want of contest before the executing Court,
warrants of possession were directed to be issued and in pursuance thereof possession
over the residential plots allotted to the respective appellants was delivered on 29.5.1984.
Laying challenge to the order of executing Court, the State of Rajasthan and JDA
preferred revision petitions before the High Court which were dismissed. In the special
leave petition preferred before this Court, by order dated 15.2.1988, it was directed that
the judgment debtors shall have the liberty of raising their objection to the execution
application before the executing Court which shall be decided after hearing the parties
and in accordance with law. On 1.6.1990, the executing Court rejected the objections
filed by the respondents and upheld the maintainability of the execution application. In
civil revisions preferred by the respondents, the High Court formed an opinion that the
judgment of the High Court, based on the compromise and directing plots to be allotted to
the appellants in addition to the monetary compensation, suffered from inherent lack of
jurisdiction and, therefore, was inexecutable. The revision petitions were decided ex-
parte. Armed with the order of High Court, on 12.8.1996, JDA resumed possession over
the residential plots. Since then, the plots are in possession of JDA excepting plot No.C-
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89 and C-90 out of the total area whereof, 555 sq. mts. area has been allotted by JDA to
Rajasthan State Mines and Minerals Limited which has constructed a full-fledged
building of its own over the land allotted to it.

JUDGEMENT:
Without entering into the question whether it is permissible for Land Acquisition Officer
or Reference court or the High Court hearing an appeal against an award made by the
Reference Court to record a compromise whereunder the beneficiary of land acquisition
agrees to offer land in lieu of monetary compensation and whether such a compromise
would be legal and not opposed to public policy, we are of the opinion that the facts and
circumstances of this case are enough to decline exercise of jurisdiction by this Court
under Article 136 of the Constitution to the appellants. The exercise of jurisdiction
conferred by Article 136 of the Constitution on this Court is discretionary. It does not
confer a right to appeal on a party to litigation; it only confers a discretionary power of
widest amplitude on this Court to be exercised for satisfying the demands of justice. On
one hand, it is an exceptional power to be exercised sparingly, with caution and care and
to remedy extra-ordinary situations or situations occasioning gross failure of justice; on
the other hand, it is an overriding power whereunder the Court may generously step in to
impart justice and remedy injustice. The facts and circumstances of this case as have
already been set out do not inspire the conscience of this Court to act in the aid of the
appellants. It would, in our opinion, meet the ends of justice, and the appellants too ought
to feel satisfied, if monetary compensation based on the principles for assessment thereof
in land acquisition cases is awarded and in addition they are given each a plot of
reasonable size to rehabilitate themselves so as to meet the demands of reasonability and
consistency.
For this reason, the appeals are held liable to be dismissed. Still in exercise of jurisdiction
conferred by Article 142 of the Constitution two directions are warranted for doing
complete justice in the case and not to leave the appellants in lurch remediless. And those
directions we hereby make. Firstly, the appeals preferred by the State Government in the
Rajasthan High Court were disposed of in terms of compromise and the monetary
compensation was reduced in consideration of the awardees having been allotted plots.
As we are holding the compromise to be vitiated it would be in the interest of justice that
the appeals filed by the State Government are restored for hearing on merits. The High
Court shall hear and decide the appeals appointing the quantum of monetary
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compensation excluding, from its consideration, the allotment of plots to the awardees.
Secondly, though the allotment of 1000 and 2000 square yards of land in Lal Kothi
Scheme as a term of the compromise has been set aside by the High Court it is directed
that the appellants shall be allotted each a residential plot of an area about 250 square
yards in some other scheme of the JDA at the rates effective and applicable on 17.8.1971,
the date on which the compromise was arrived at. Such allotment shall be made and
possession given within a period of three months from today. This direction we make in
order to maintain consistency and uniformity inasmuch as we find almost all the awardees
having been allotted plots and similar directions were made by this Court also in Daulat
Mal Jain's case (supra), vide para 31. In case of any dispute arising in the matter of
allotment of plots in terms of this direction, we allow liberty to the parties to approach the
High Court of Rajasthan and seek directions preferably by the same Bench which will be
hearing the appeals against the award made by the Reference Court.
It was vehemently contented on behalf of the respondents that the allotment of plots
forming part of compromise should be sustained because the appellants have, in view of
the plots having been allotted to them, followed by delivery of possession, alienated the
plots or created third-party interest therein and they would be put to serious
inconvenience or placed in an awkward situation as the third-parties would be after them
while the allotted plots are lost by them. We are not inclined to agree. If the appellants
have just alienated the plots allotted to them then securing of such plots was their
adventure for profit and not a need for rehabilitation. Then, though they may lose the
plots but they would be getting monetary compensation, solatium and interest in lieu of
the land of which they have been expropriated. This must satisfy them. It was also
submitted that the policy decision dated December 6, 2001 of the State of Rajasthan
recognises encroachers being settled in other schemes of JDA and if the encroachers
enjoy the patronage of the State Government why not the appellants who should not be
compared with encroachers who are law-breakers. We need not comment on the policy of
the State Government recognizing an encroacher's right to allotment of land. It is the
wisdom of State and we are not aware whether the policy is guided by socially beneficial
consideration of providing roof over the head of the deprived and poor or is a politically
motivated policy of appeasement. For our purpose the relevant consideration is the
decision of this Court directing allotment of 250 square yards plot elsewhere to some such
allottees whose allotment of plots in Lal Kothi Scheme was not upheld and maintaining
consistency therewith. May be some awardees unscrupulously or by connivance or
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collusion and by lapse of time have succeeded in retaining allotment of larger plots in this
very scheme but such arbitrary or unreasonable allotments cannot be cited as precedent in
support of misguided plea of equality. Appellants' prayer for upholding the compromise-
based allotment of plots or in the alternative plots of lesser size being allotted out of the
land acquired for this very scheme cannot be entertained much less allowed as that would
be to some extent destructive of the purpose of acquisition. The land acquired must be
used for the public purpose for which it has been acquired.

12. R V. CANADA (ATTORNEY GENERAL), [2010] 1 S.C.R. 339

Since voting is a fundamental political right, and the right to vote is a core tenet of
Canadian democracy, any limit on the right to vote must be carefully scrutinized and
cannot be tolerated without a compelling justification. Intrusions on this core democratic
right are to be reviewed on a stringent justification standard. Reviewing courts must
examine the proffered justification carefully and rigorously rather than adopting a
deferential attitude. Two central criteria must be met for a limit on a Charter right to be
justified under s. 1. First, the objective of the measure must be pressing and substantial.
Second, the means by which the objective is furthered must be proportionate; this requires
a rational connection to the objective, minimal impairment of the right, and
proportionality between the effects of the measure and the objective. The proportionality
inquiry is both normative and contextual, and requires that courts balance the interests of
society with those of individuals and groups.

13. S.D.S. SHIPPING PVT. LTD. V. JAY CONTAINER SERVICES CO. PVT. LTD.
AND ORS., (2003) 9 SCC 439
FACTS:
According to the plaintiff it is a private limited company engaged amongst others in the
business of supply of containers for the ships to carry goods from one place to another. It
supplied containers to the present appellant from time to time. There was a lease
agreement entered into between the parties for use of leased containers. The agreement
expired on 30th March, 1996; but was further extended by one month. Even during the
extended period and thereafter the containers were not returned by the defendant no.
1. It entered into correspondence with defendant no.l calling up it to return the containers
and to pay the lease charges. Cheques issued by the said defendant bounced on
presentation. The defendant no.l by letter dated 26th April, 1996 addressed to the
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attorneys of the plaintiff informed that efforts were on to look for a suitable vessel to
bring those containers from Port Louis to Bombay. But the containers were not returned.
Prior to the said letter dated 26th April, 1996 by two communications dated 10th January,
1996, it had been communicated that out of the total lot of 92, 35 containers could not be
returned. It was stated that those containers were lost leaving a balance of 57 containers.
The containers were given on lease basis and since there was no dispute about non-return,
demands were made for payment. There was also no dispute regarding lease rental.
Ultimately, when the plaintiff found that the containers were not returned and also the
lease charges were not paid, the suit No.4794 of 1997 was filed seeking a sum of
Rs.1,61,13,173.14. This included the claim for non-return of the containers and the claim
for outstanding rental. After the suit was filed, plaintiff took out a motion, being Notice of
Motion No. 378 of 1998 for Receiver and injunction for the containers which were not
returned. The learned Single Judge by order dated 11th August. 1999, took the view that
there was no case for appointing a Receiver for the properties by way of security for the
amounts which may be due. He also held that no irreparable loss will be caused if interim
relief was not granted. While rejecting this motion, however, liberty was granted to the
plaintiff to take out the appropriate proceedings for a direction to defendant no.l to
deposit the arrears of rent, if any, due. Order of the learned Single Judge was upheld by
the Division Bench. While disposing of the appeal, however, it was observed by it that the
view expressed by learned Single Judge were of prima facie nature and were intended to
dispose of the motion. It was further observed that if the plaintiff moves "application for
attachment before judgment, observations made in the order of learned Single Judge as
well as the Division Bench will not prejudice the application.
Thereafter another notice of motion was taken where it was prayed that defendant no.l be
directed to deposit the amount of Rs. 81,77,632.50 being the amount towards arrears of
rental and also for a direction that per month an amount of Rs. 1,78,020 be deposited
from time to time. Learned Single Judge took the view that the power of the Court under
Order 12 Rule 6 of Civil Procedure Code, 1908 (in short 'the Code') dealing with decree
on admission could not be invoked in the matter. It was held that Section 151 of the Code
was not available to the plaintiff to invoke the inherent jurisdiction on the facts of the
case.
The orders were challenged by the plaintiff before the Division Bench which by the
impugned order directed defendant no.l to deposit an amount of Rs.81,77,632.50
(rounded off to Rs. 82,00,000) within 12 weeks period. It was further directed that the
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amount was to be deposited in a nationalized bank for a period of 37 months and the
deposit was to be renewed at a time by 13 months until the suit was decided. This order is
under challenge.

14. Even if it is accepted for the sake of arguments that there was some faulty conclusion
in law, the impugned order being an interim one, we do not consider this to be a fit case
for interference in exercise of jurisdiction under Article 136. But, taking note of the
peculiar facts, the ends of justice would be best served if the appellant is directed to
deposit rupees fifty lakhs instead of rupees eighty-two lakhs by the end of June 2003.

JUDGEMENT:
By way of reply to the submissions made by Mr. Venugopal, Mr. Nariman submitted that
the scope and ambit of Article 136 is too well known and, therefore, where substantial
question of law relating to jurisdiction of a commercial court is raised, 'he Court has to
see whether the impugned judgment meets the requirement of law. According to him, it is
too futile to contend that Article 136 will not be exercised in a case of this nature where
the Division Bench of the High Court clearly acted contrary to well settled principle of
law.
Few facts of relevance need to be noted in view of the rival stands. Undisputedly, the
order impugned is an interim order. The direction is for deposit and no liberty has been
granted to the plaintiff for withdrawal after the deposit. As noted supra, there was no
serious dispute relating to the claim for arrears of rentals. Admittedly, 92 containers were
leased out by the plaintiff to the defendant no.l according to whom some of the containers
were not traceable and were lost. We may add here that subsequent to the filing of the
suit; it was contended that all the 92 vessels were lost. In view of the factual scenario
unfolded above, it does not appear to be a case where interference under Article 136 of
the Constitution is called for. That power is exercised only on showing substantial
injustice, and not for merely technical flaws in a proceeding, (See Shahoodul Haque v
The Registrar, Co-operative Societies, Bihar and Anr., [1975] 3 SCC 108 The position
was illuminatingly stated in Rashpal Malhotra v. Mrs. Satya Rajput and Anr., [1987] 4
SCC 391. This Court in Heavy Engineering Corporation Ltd v. K. Singh and Co., Ranchi,
AIR (1977) SC 2031 e-pressed the opinion that although the powers of this Court were
wide under Article 136, it could not be urged that because leave had been granted the
court must always in every case deal with the merits, even though it was satisfied that the
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ends of justice did not justify its interference in a given case. It is not as if, in an appeal
with leave under Article 136, this Court was bound to decide the question if on facts at
the later hearing the Court felt that the ends of justice did not make it necessary to decide
the point. Similarly, in Baigana v Deputy Collector of Consolidation, [1978] 3 SCR 509 it
was held that this Court was more than a court of appeal. It exercises power only when
there is supreme need. It is not the fifth court of appeal, but the final Court of the nation.
Therefore, even if legal flaws might be electronically detected, it may not interfere save
manifest injustice or substantial question of public importance.
In Taherakhatoon (D) By Lrs. v. Salambin Mohammad, [1999] 2 SCC 635 it was noted
that even in cases where leave has been granted, the Court might after declaring the
correct legal position decline to interfere saying that it would not exercise discretion to
decide the case on merits and that it would decide on the basis of the equitable
considerations in the facts and circumstances of the case and mould the final order.
Even if it is accepted for the sake of arguments that there was some faulty conclusion in
law, the impugned order being an interim one, we do not consider this to be fit case for
interference in exercise of jurisdiction under Article 136. But, taking note of the peculiar
facts, ends of justice would be best served if the appellant is directed to deposit Rupees
Fifty lacs instead of Rupees Eighty two lacs by end of June, 2003.
The appeal is accordingly disposed of leaving the parties to hear their respective costs.

14. SELVI V. STATE OF KARNATAKA, AIR 2010 SC 1974

FACTS:
In this case, the Supreme Court allowed a special leave petition in the context of cases
where objections were raised where the accused, suspects and witnesses in the
investigation were subjected to neuro-scientific tests without their consent. The Court
considered the constitutionality of the usage of neuro-scientific tests to gather evidence,
including narcoanalysis, BEAP or ‘brain mapping’, and polygraph tests. The polygraph
test measures the physiological responses including respiration, blood pressure, pulse and
galvanic skin resistance to measure lying or deception. The narcoanalysis test involves
the intravenous administration of the drug sodium pentothal, which causes a hypnotic
trance allowing a subject to become less inhibited. The BEAP measures activity in the
brain in response to selected stimuli, to determine if the subject is familiar with certain
information.

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165. In light of the preceding discussion, we are of the view that the results obtained from
tests such as polygraph examination and the BEAP test should also be treated as ‘personal
testimony’, since they are a means for ‘imparting personal knowledge about relevant
facts. Hence, our conclusion is that the results obtained through the involuntary
administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph
examination and the BEAP test) come within the scope of ‘testimonial compulsion’,
thereby attracting the protective shield of Article 20(3).
II. Whether the involuntary administration of the impugned techniques is a reasonable
restriction on ‘personal liberty’ as understood in the context of Article 21 of the
Constitution?
203. Such a possibility had been outlined by the National Human Rights Commission
which had published `Guidelines relating to administration of Polygraph test (Lie
Detector test) on an accused (2000). The relevant extract has been reproduced below:
“... The lie detector test is much too invasive to admit of the argument that the authority
for Lie Detector tests comes from the general power to interrogate and answer questions
or make statements. (Ss. 160-167 CrPC) However, in India we must proceed on the
assumption of constitutional invasiveness and evidentiary impermissiveness to take the
view that such holding of tests is a prerogative of the individual, not an empowerment of
the police. In as much as this invasive test is not authorised by law, it must perforce be
regarded as illegal and unconstitutional unless it is voluntarily undertaken under non-
coercive circumstances. If the police action of conducting a lie detector test is not
authorised by law and impermissible, the only basis on which it could be justified is, if it
is volunteered. There is a distinction between: (a) volunteering, and (b) being asked to
volunteer. This distinction is of some significance in the light of the statutory and
constitutional protections available to any person. There is a vast difference between a
person saying, ‘I wish to take a lie detector test because I wish to clear my name’, and
when a person is told by the police, ‘If you want to clear your name, take a lie detector
test'. A still worse situation would be where the police say, `Take a lie detector test, and
we will let you go’. In the first example, the person voluntarily wants to take the test. It
would still have to be examined whether such volunteering was under coercive
circumstances or not. In the second and third examples, the police implicitly (in the
second example) and explicitly (in the third example) link up the taking of the lie detector
test to allowing the accused to go free.”

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JUDGEMENT:
The Court first assessed in detail the evolution and specific uses of the impugned
techniques, including their usage within the criminal justice system, foreign jurisprudence
regarding their usage, and the limitations of these techniques.
The Court then analysed the right against self-incrimination, and held that the compulsory
administration of neuroscientific tests amounted to testimonial compulsion and violated
the rule against self-incrimination guaranteed under Article 20(3). The Court held that in
addition to the standard under Article 20(3), the compulsory administration of such
neuroscientific tests would also have to meet the standard of 'substantive due process' for
placing restraints on personal liberty. The Court noted that the purpose of the right against
self-incrimination was to ensure that testimony considered during trial was reliable, since
involuntary statements were more likely to be inaccurate, while also violating the dignity
and integrity of the person.
The Court stated that “(t)he interrelationship between the 'right against self- incrimination'
and the 'right to fair trial' has been recognised in most jurisdictions as well as international
human rights instruments”. In India, Maneka Gandhi vs. Union of India ((1978) 1 SCC
248) held while considering Article 20(3), that the right against self-incrimination should
be construed with due regard for the inter-relationship between rights, namely the various
dimensions of the right to personal liberty under Article 21, such as the right to fair trial
and substantive due process.
The Court also reaffirmed the decision of M.P. Sharma vs. Satish Chandra ((1954] SCR
1077), in holding that the right against testimonial compulsion under Article 20(3) was
not confined to the courtroom, but would apply to all persons against whom a charge,
which could end in prosecution, had been levelled. It clarified that the right against self-
incrimination protects persons who have been formally accused, those who are examined
as suspects in criminal cases, and witnesses who apprehend that their answers could
expose them to criminal charges in an ongoing investigation or even in cases other than
the one being investigated.
The Court further noted from the M.P. Sharma case that the act of being a witness was
not restricted only to cases of oral testimony but all volitional acts. The Court also
considered the test laid down in State of Bombay vs. Kathi Kalu Oghad & Others,
([1962] 3 SCR 10) which suggested that “imparting knowledge in respect of relevant fact
by means of oral statements or statements in writing, by a person who has personal
knowledge of the facts to be communicated to a court or to a person holding an enquiry or
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investigation” would touch the right under Article 20(3). The Court finally held that the
results of involuntary usage of neuroscientific techniques would amount to testimonial
responses for the purpose of invoking the right under Article 20(3).
In the context of privacy specifically, the Court held that while laws of evidence could be
used for interference with physical privacy, they could not form the basis for compelling
a person “to impart personal knowledge about a relevant fact”. The Court looked into the
interrelationship of rights to read the right against self-incrimination as a component of
'personal liberty' under Article 21. It consequently observed that the right to privacy
would also intersect with Article 20(3), especially in respect to a person's autonomy to
choose between speaking or remaining silent. The Court opined that the use of such
techniques in an involuntary manner would violate the individual privacy.
The Court traced the history of the right to privacy, starting from the case of MP Sharma,
which noted that the Indian Constitution did not explicitly include a 'right to privacy' in a
manner akin to the Fourth Amendment of the U.S. Constitution and thus upheld the
validity of search warrants, which were issued for documents in a case of
misappropriation and embezzlement. Similar issues were discussed in the case of Kharak
Singh vs. State of Uttar Pradesh (AIR 1963 SC 1295), where the Court considered the
validity of police regulations authorizing the police to maintain lists of 'history-sheeters'
and conduct surveillance on them. While the majority opinion held that these regulations
did not violate personal liberty, except for those which permitted domiciliary visits,
Justice S. Rao in his minority opinion held that the right to privacy “is an essential
ingredient of personal liberty' and that the right to 'personal liberty is 'a right of an
individual to be free from restrictions or encroachments on his person, whether those
restrictions or encroachments are directly imposed or indirectly brought about by
calculated measures”. The Court also reviewed other seminal cases developing the right
to privacy, including Govind vs. State of Madhya Pradesh ((1975) 2 SCC 148), R. Raj
Gopal vs. State of Tamil Nadu ((1994) 6 SCC 632) and People's Union for Civil Liberties
vs. Union of India (AIR 1997 SC 568).
In examining the right to privacy, the Court made reference to the case of Sharda vs.
Dharampal ((2003) 4 SCC 493). In this case, a civil court was allowed to mandate a
medical test which was considered necessary for ascertaining the mental condition of one
of the parties. The case of Sharda vs. Dharampal also surveyed the cases mentioned
above, holding that a person's right to privacy could be curtailed in light of competing
interests. The Court however differentiated this from the present facts, focusing on the
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distinction between testimonial acts and physical evidence; being a civil case, Sharda vs.
Dharampal did not discuss Article 20(3) of the Constitution.
The Court held that while the understanding of privacy was primarily based on the
protection of the body and physical spaces from intrusive actions by the State, the right to
privacy should account for its intersection with Article 20(3). Subjecting a person to the
impugned techniques was held to be a violation of the prescribed boundaries of privacy. It
further held that even in a case where the individual does not face criminal charges, such
tests being involuntarily administered would still violate a person’s right to liberty under
Article 21, as such administration would constitute cruel, inhuman and degrading
treatment.
The Court therefore ordered that no tests could be administered unless by consent of the
accused, obtained before a Judicial Magistrate in the presence of their lawyer. The
statement made would also have the status of a statement made to the police and not a
confessional statement. The test would be conducted by an independent agency, in the
presence of a lawyer, and would be duly recorded.

15. STATE OF H. P. V. KAILASH CHAND MAHAJAN, AIR 1992 SC 1277

FACTS:
The first respondent (Mr. Kailash Chand Mahajan) retired from the post of Chief
Engineer from the State of Punjab. On 24.7.81, he was appointed as a member of
Himachal Pradesh State Electricity Board and thereafter appointed as Chairman of the
said board for a period of two years. On 13.8.82, the following notification came to be
issued:-
No. 8-155/73-DP (Apptt. II) Dated Shimla- 2, the 13th Aug. 1982 NOTIFICATION In
exercise of the powers conferred by Section 5 of the Electricity (Supply) Act, 1948, the
Governor, Himachal Pradesh, is pleased to appoint Shri Kailash Chand, Retd. Chief
Engineer (Irrigation) Punjab, whose appointment as Member, H.P. State Electricity
Board, has been notified vide Notification of even number, dated the 24th July, 1981, as
Chairman, H.P. State Electricity Board for a period of five years, with effect from 25th
July, 1981. Detailed terms and conditions of his appointment has already been issued
separately.
This is in supersession of this deptt. Notification of even number, dated the 24th July,
1981.
By Order K.C. Pandeya Chief Secretary to the Government of Himachal Pradesh"
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On 12.5.86, the term as Chairman was extended for another period of three years in the
following terms :-
"No. 8-155/73 - DP (Apptt. II), dated Shimla 2, the 12th May, 1986.
Notification In continuation of this Department's Notification of even number, dated
13.8.1982, the Governor, Himachal Pradesh is pleased to extend the appointment of Shri
Kailash Chand Mahajan as Chairman of the H.P. State Electricity Board for a further
period of three years with effect from 25th July, 1986, on the existing terms and
conditions of his appointment as Chairman.
By Order (P.K. Mattoo) Chief Secretary to the Government of Himachal Pradesh".
There was a further extension on 12.6.89 for a period of 3 years and that notification read
as under :-
"No. 8-155/73 -DP (Apptt. II) dated Shimla -2 the 12th June, 1989.
Notification In continuation of this Department's Notification of even number, dated 12th
May, 1986, the Governor, Himachal Pradesh is pleased to extend the appointment of Sh.
Kailash Chand Mahajan as Chairman of the H.P. State Electricity Board for a further
period of three years with effect from 25th July, 1989, on the existing terms and
conditions of his appointment as Chairman.
2. The Governor, Himachal Pradesh is further pleased to order that Shri Kailash Chand
Mahajan, Chairman, H.P. State Electricity Board shall also continue to function as
Secretary (M.P.P. and Power) to the Government of Himachal Pradesh.
In January, 1990, elections to the Legislative Assembly of the State of Himachal Pradesh
were scheduled to take place. The respondent in his affidavit would aver that the third
respondent (i.e.. Mr. Shanta Kumar, the Chief Minister of Himachal Pradesh) is alleged to
have made speeches that should he come to power he would have the first respondent
removed from the chairmanship of the Electricity Board. On 5.3.90, the third respondent
became the Chief Minister. A notification dated 6.3.90, came to be issued in supersession
of the notification dated 12.6.89 that the appointment of the first respondent as Chairman
of the Himachal Pradesh State Electricity Board is extended from 25.7.89 to 6.3.90.
Being aggrieved by the above show cause notice and the order of suspension, the first
respondent filed CWP 303 of 1990 on 12.6.90. The High Court while admitting the writ
petition granted interim stay of the order of suspension.

JUDGEMENT:

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"We are inclined to accept the contention of Mr. Setalvad, that there is no justification for
the impugned legislation resulting in a classification of the Vice Chancellors into two
categories, viz. the appellant as the then existing Vice Chancellor and the future Vice
Chancellors to be appointed under the Act.
In our view, the Vice Chancellor, who is appointed under the Act, or the Vice Chancellor
who was holding that post on the date of the commencement of the Second Amendment
Act, from one single group or class. Even assuming that the classification of these two
types of persons as coming under two different groups can be made nevertheless, it is
essential that such a classification must be founded on an intelligible differentia which
distinguishes the appellant from the Vice Chancellor appointment under the Act. We are
not able to find any such intelligible differentia on the basis of which the classification
can be justified.
"While a Vice Chancellor appointed under s.12 of the Act can be removed from office
only by adopting the procedure under s.12(2), the services of the appellant, who was also
a Vice Chancellor and similarly situated, is sought to be terminated by enacting s.13A of
the Act. We do not see any policy underlying the Act justifying this differential treatment
accorded to the appellant. The term of office of the Vice Chancellors has been no doubt
reduced under the First Amendment Act and fixed for 3 years for all the Vice
Chancellors. But, so far as the appellant is concerned, by virtue of s.13A of the Act, he
can continue to hold that office only until a new Vice Chancellor is appointed by the
Chancellor, and that appointment is to be made within 90 days. While all other Vice
Chancellors, appointed under the Act, can continue to be in office for a period of three
years, the appellant is literally forced out of his office on the expiry of 90 days from the
date of commencement of the Second Amendment Act. There is also no provision in the
statute providing for the termination of the services of the Vice chancellors, who are
appointed under the Act, in the manner provided under s.13A of the Act. By s.13A, the
appellant is even denied the benefits which may be available under the provision to sub-
s.(1) of s.13 of the Act, which benefit is available to all other Vice chancellors."
It will be clear from the above extract on its own terms the legislation applied only to one
individual and nobody else, even in principle, to a future Vice Chancellor. There was no
basis for making a distinction between the then existing Vice Chancellor and the future
Vice Chancellors, who are to be treated differently. Further, the existing Vice Chancellor
was subject to a disability for which there was no rational basis.

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16. STATE OF KERALA AND ORS. V. MARAPPRAEM KURI COMPANY LTD. AND
ANR., AIR 2012 SC 2375
FACTS:
6. The lis in the present case arose under the following circumstances. Many of the
private chitty firms remained out of the regulatory mechanism prescribed in the Kerala
Chitties Act, 1975 by registering themselves outside the State but continued to operate in
Kerala. Because of this, investor protection became difficult. Consequently, Section 4 of
the said 1975 Act was amended vide Finance Act 7 of 2002. By the said amendment, sub-
section (1a) was inserted in Section 4. This amendment intended to bring in chitties
registered outside the State having 20% or more of its subscribers normally residing in the
State within the ambit of the said 1975 Act. Being aggrieved by the said Amendment, the
private chitty firms challenged the vires of Section 4(1a) of the 1975 Act as repugnant
under Article 254(1) to the Central Chit Funds Act, 1982.

JUDGEMENT:
28. To sum up, our conclusions are as follows :-
i) On timing, we hold that, repugnancy arises on the making and not commencement of
the law, as correctly held in the judgment of this Court in Pt. Rishikesh and Another v.
Salma Begum (Smt) [(1995) 4 SCC 718].
ii) Applying the above test, we hold that, on the enactment of the Central Chit Funds Act,
1982, on 19.08.1982, which covered the entire field of “chits” under entry 7 of List III of
the Constitution, the Kerala Chitties Act, 1975, on account of repugnancy as enshrined
in Article 254(1), became void and stood impliedly repealed. That, on the occupation of
the entire field of “chits”, the Kerala Legislature could not have enacted the State Finance
Act No. 7 of 2002, inserting Section 4(1a) into the Kerala Chitties Act, 1975, particularly
on the failure of the State in obtaining Presidential assent under Article 254(2).
iii) That, the Central Chit Funds Act, 1982 though not brought in force in the State of
Kerala is still a law made, which is alive as an existing law. By reason of Article 367 of
the Constitution, the General Clauses Act, 1897 applies to the repeal. Section 6 of the
General Clauses Act, 1897 is, therefore, relevant, particularly Sections 6(b) and 6(c) and
consequently, the previous operation of the Kerala Chitties Act, 1975 is not affected nor
any right, privilege, obligation or liability acquired or incurred under that repealed State
Act of 1975. Thus, after 19.08.1982, the Kerala Chitties Act, 1975 stands repealed except
for the limited purposes of Section 6 of General Clauses Act, 1897. If and when the
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Central Government brings into force the Chit Funds Act, 1982 by a notification in State
of Kerala, under Section 1(3), Section 90(2) will come into play and thereby the Kerala
Chitties Act, 1975 shall continue to apply only to chits in operation on the date of
commencement of the Central Chit Funds Act, 1982 in the same manner as the Kerala
Chitties Act, 1975 applied to chits before such commencement.

17. STATE OF U.P. V. RAJ NARAIN, (1975) 4 SCC 428

FACTS:
Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli
was summoned along with inter alia the following (a) all documents relating to the tour
program of Shkimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February,
1971; (b) all the documents relating to arrangement of Police and other security measures
adopted by the Police and all documents relating to expenses incurred on the Police
personnel, arrangements of the Police, arrangements for constructions of Rostrum,
fixation of loudspeakers and other arrangements through Superintendent of Police,
District Rae Bareli. On 3 September, 1973 the summons was issued to the Secretary,
General Administration. The summons was endorsed to the Confidential Department by
the General Department on 3 September, 1973 as will appear from paragraph 5 of the
affidavit of R. K. Kaul, Commissioner and Secretary in- charge. On 5 September, 1973
there was an application by the Chief Standing Counsel on behalf of the Chief Secretary,
Uttar Pradesh, Lucknow for clarification to the effect that the Chief Secretary is not
personally required to appear pursuant to the summons. The learned Judge made an order
on that day that the Chief Secretary need not personally attend and that the papers might
be sent through some officer. On 6 September, 1973 S. S. Saxena, Under Secretary,
Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as
Secretary, Confidential Department, to go to the High Court with the documents
summoned and to claim privilege. This will appear from the application of S. S. Saxena
dated 19 September, 1973.
In paragraph 4 of the said application it is stated that in compliance with the summons
issued by the High Court the Home Secretary deputed the applicant Saxena to go to the
Court with the documents summoned with clear instructions that privilege is to be
claimed under section 123 of the Evidence Act in regard to the documents, namely, the
Booklet issued by the Government of India containing Rules and Instructions for the
protection of the Prune Minister when on tour and in travel, and the correspondence
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exchanged between the two Governments and between the Chief Minister, U.P. and the
Prime Minister in regard to the Police arrangements for the meetings of the Prime
Minister. Saxena was examined by the High Court on 10 September, 1973. On 10
September, 1973 there was an application on behalf of the Election Petitioner that the
claim of privilege by Saxena evidence be rejected. In the application it is stated that
during the course of his statement Saxena admitted that certain instructions were. issued
by the Central Government for the arrangement of Prime Minister's tour which are secret
and hence he is not in a position to file those documents. The witness claimed privilege in
respect of that document. It is stated by the election petitioner that no affidavit claiming
privilege has been filed by the Head of the Department and that the documents do not
relate to the affairs of the State.
On 11 September, 1973 there was an order as follows. The application of the election
petitioner for rejection of the claim for privilege be put up for disposal. The arguments
might take some time and therefore the papers should be left by Saxena in a sealed cover
in the Court. In case the objection would be sustained, the witness Saxena. would be
informed to take back the sealed cover.
On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit
that the Superintendent of Police. Rae Bareli claimed privilege under-section 123 of the
Evidence-Act. The witness was discharged. On behalf of the election petitioner, it was
said that an objection would be filed to make a request that the Superintendent of Police,
Rae Bareli be produced before the Court for cross examination. The election petitioner
filed the objection to the affidavit claiming privilege by the Superintendent of Police, Rae
Bareli.
On 13 September, 1973 the learned Judge ordered that arguments on the question of
privilege would be heard on 19 September, 1973. S. S. Saxena filed an application
supported by an affidavit of R. K. Kaul. The deponent R. K. Kaul in his affidavit affirmed
on 19 September,1973 stated that the documents summoned are unpublished official
records relating to affairs of the State and their disclosure will be prejudicial to public
interest for the reasons set out therein. The secrecy of security arrangement was one of the
reasons mentioned. Another reason was that arrangements of the security of the Prime
Minister, the maintenance of public order and law and order on the occasion of the visits
of the Prime Minister are essentially in nature such that to make them public would
frustrate the object intended to be served by these Rules and Instructions.

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On 20 September 1973 the case was listed for arguments for deciding preliminary issues
and on the question of privilege. on 20 September, 1973 an objection was made that the
Chief Standing Counsel had no locus standi to file an objection claiming privilege. on 21
September, 1973 the arguments in the matter of privilege were heard. On 24 September,
1973 further arguments on the question of privilege were adjourned until 29 October,
1973. 23 October, 1973 was holiday. On 30 October, 1973 arguments were not
concluded. On 30 October, 1973 the Advocate General appeared and made a statement
regarding the Blue Book to the effect that the witness Saxena was authorised by the Head
of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and
the documents summoned by the Court and the Head of the Department did not permit
Saxena to file the same. The witness was permitted to show to the Court if the Court so
needed. Further arguments on the question of privilege were heard on 12, 13 and 14 days
of March, 1974 The judgment was delivered on 20 March, 1974. The learned Judge on 20
March, 1974 made an order as follows "No privilege can be claimed in respect of three
sets of paper allowed to be produced. The three sets of papers are as follows. The first set
consists of the Blue Book, viz., the circulars regarding the security arrangements of the
tour programme of Shrimati Indira Nehru Gandhi and instructions received from the
Government of India and the Prime Minister's Secretariat on the basis of which Police
arrangement for constructions of Rostrum, fixation of loudspeakers and other
arrangements were made, and the correspondence between the State Government & the
Government of India regarding the police arrangements for the meetings of the Prime
Minister. The second set also relates to circulars regarding security and tour arrangements
of Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and
correspondence regarding the arrangement of police for the meetings of the Prime
Minister. The third set summoned from the Head Clerk of the Office of the
Superintendent of Police relates to the same." The learned Judge expressed the following
view. Under section 123 of the Evidence Act the Minister or the head of the department
concerned must file an affidavit at the first instance. No such affidavit was filed at the
first instance. The Court cannot exercise duty under section 123 of the Evidence Act suo
motu. The court can function only after a privilege has been claimed by affidavit. It is
only when permission has been withheld under section 123 of the Evidence Act that the
Court will decide. Saxena in his evidence did not claim privilege even after the Law
Department noted in the file that privilege should be claimed Saxena was allowed to bring
the Blue Book without being sealed in a cover. The head of the department should have
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sent the Blue Book under sealed cover along with an application and an affidavit to the
effect that privilege was being claimed. No privilege was claimed at the first instance.

69. In Sodhi Sukhdev Singh case this Court held that there are three views possible on the
matter. The first view is that it is the head of the department who decides to which class
the document belongs. If he comes to the conclusion that the document is innocent, he
can give permission to its production. If, however, he comes to the conclusion that the
document is noxious, he will withhold that permission. In any case, the Court does not
materially come into the picture. The second view is that it is for the Court to determine
the character of the document and if necessary to enquire into the possible consequence of
its disclosure. On this view, the jurisdiction of the Court is not very much wider. A third
view which does not accept either of the two extreme positions would be that the court
can determine the character of the document and if it comes to the conclusion that the
document belongs to the noxious class, it may leave it to the head of the department to
decide whether its production should be permitted or not, for, it is not the policy of
Section 123 that in the case of every noxious document the head of the department must
always withhold permission. The Court seems to have accepted the third view as the
correct one and has said: …

JUDGEMENT:
Justice Alagiriswami and Untwalia delivered the opinion of the Supreme Court of India.
The first issue before the Court was whether the Blue Book was an unpublished
government record within the meaning of Section 123 of the Evidence Act. According to
the Court, the underlying purpose of the section is to prevent “injury to public,” through
disclosure or production of government documents, and it is the function of the judiciary
to balance that interest “against the public interest in the administration of justice that
courts should have the fullest possible access to all relevant materials.” [p. 2] In general,
“State papers, confidential official documents and communications between
the Government and its officers or between such officers are privileged from production
on the ground of public policy or as being detrimental to the public interest or service.”
[p.2] And Section 123 imposes the obligation on the government to timely claim such
privilege in an affidavit. [p. 2]
In this case, the Court, while acknowledging the government’s failure to file an affidavit
in the first instance, proceeded with its analysis of the Blue Book in light of the above-
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mentioned standards. It ruled that the document could not be considered a published
government record merely based on the fact that some of its part had been disclosed by
other government entities. [p. 4] Accordingly, the Court had to consider whether the
document related to government confidential information and whether its non-disclosure
was in the public interest. [p. 3] It first held that the Court “has the overriding power to
disallow a claim of privilege raised by the State in respect of an unpublished document
pertaining to matters of State, but in its discretion[,] the Court will exercise its power only
in exceptional circumstances when public interest demands, that is, when the public
interest served by the disclosure clearly outweighs that served by the nondisclosure.”
[p.6] As applicable in this case, the Supreme Court also noted that under Section 162 of
the Evidence Act, an objection to disclosure of a privileged government record “should be
filed on the date which is fixed for the production of document so that the Court may
decide the validity of such objection.” [p.6]
In the present case, the Court without further analyzing the interest of public in non-
disclosure of the Blue Book, affirmed the High Court’s judgment based on the
government’s failure to timely raise its privilege in form of an affidavit. It found that
the High Court “was right in drawing inference from non-filing of the affidavit” that no
privilege was claimed. [p. 5] And that it had the judicial authority “to look to the
document itself and take a decision as to whether the document concerned was such
which at all related to any affairs of the State.” [p.6]
Justice Matthew delivered the Court’s concurring opinion. He noted that privilege existed
with respect to the government document and the right to waive such privilege. He
recognized that the right of a party to waive privilege does not extend to cases which may
harm public interest. Therefore, the Court was obligated to examine reasons submitted in
an affidavit and that it could not decide on such matter without adequate inquiry.

18. THE CONSTITUTIONAL COURT OF SOUTH AFRICA V. PRESIDENT OF THE

REPUBLIC OF SOUTH AFRICA, 1995 (4) SA 631 (CC)
FACTS:
[ 2 ] The constitutionality of the provisions was first challenged in the Eastern Cape.
Shortly after the interim Constitution came into operation, the applicant in
the Matiso case, who had been imprisoned in terms of these provisions, applied to the
South Eastern Cape Local Division of the Supreme Court for an order for his urgent
release from the Port Elizabeth Prison. The applicant was soon followed by a number of
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other judgment debtors in the same predicament. The foundation of the applications was
that the statutory authority of the orders committing the particular debtors to prison had
been vitiated by sections 11(1) and 25(3) of the Constitution. Those subsections, it was
argued, made imprisonment without a fair trial unconstitutional. Although they cited the
commanding officer of the prison and their respective judgment creditors as respondents,
there was no opposition.
[ 3 ] The judges who heard the applications (Melunsky and Froneman JJ) ordered the
immediate release of the prisoners and referred the challenge to the constitutionality of
the allegedly offending provisions of the Magistrates Courts Act to this
Court. Melunsky J delivered an ex tempore judgment and Froneman J subsequently
furnished detailed reasons for the order he made.
[ 4 ] Sometime after the grant of the orders in the Eastern Cape the applicant in
the Coetzee case applied to the Cape of Good Hope Provincial Division for similar relief,
citing the Government of the Republic of South Africa, the Minister of Justice and the
judgment creditor as respondents. The Court (per Van Reenen AJ) stayed committal
proceedings pending against Ms Coetzee and referred the constitutional validity of
sections 65A to 65M to this Court for determination. Although the formulation of the
constitutional issues in the orders in the Eastern Cape case differs somewhat from that of
Van Reenen AJ, the essential issue is one and the same: Is the procedure in the sections
mentioned wholly or partially invalid for inconsistency with one or more of the rights
guaranteed in Chapter 3 and circumscribed by section 33(1) of the Constitution?

[30] LANGA J: The matter referred to the Court is the constitutionality of certain of the
provisions of sections 65A to M of the Magistrates Courts Act (the Act) in so far as they
authorise the imprisonment of defaulting judgment debtors. Inevitably, this raised the
question of whether the imprisonment of defaulting judgment debtors can ever be
justifiable in an open and democratic society based on freedom and equality. It is
important to make a clear distinction between what has been decided and what has not
been decided in this case.
[45] Yet the second, and for our purposes, crucial step of the investigation, is by no
means unrelated to the first. Although notionally the court proceeds in two distinct
analytical stages,[41] there is clearly a relationship between the two curial enquiries. The
more profound the interest being protected, and the graver the violation, the more
stringent the scrutiny; at the end of the day, the court must decide whether, bearing in
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mind the nature and intensity of the interest to be protected and the degree to which and
the manner in which it is infringed, the limitation is permissible. The President of this
Court has outlined the basic balancing process in the following words:
The limitation of constitutional rights for a purpose that is reasonable and necessary in
a democratic society involves the weighing up of competing values, and ultimately an
assessment based on proportionality. This is implicit in the provisions of Section
33(1). The fact that different rights have different implications for democracy, and in
the case of our Constitution for an open and democratic society based on freedom
and equality, means that there is no absolute standard which can be laid down for
determining reasonableness and necessity. Principles can be established, but the
application of those principles to particular circumstances can only be done on a case-
by-case basis. This is inherent in the requirement of proportionality, which calls for
the balancing of different interests. In the balancing process, the relevant
considerations will include the nature of the right that is limited, and its importance to
an open and democratic society based on freedom and equality; the purpose for which
the right is limited and the importance of that purpose to such a society; the extent of
the limitation, its efficacy, and particularly where the limitation has to be necessary,
whether the desired ends could reasonably be achieved through other means less
damaging to the right in question. In the process regard must be had to provisions of
Section 33(1), and the underlying values of the Constitution, bearing in mind that, as a
Canadian Judge has said, the role of the Court is not to second-guess the wisdom of
policy choices made by legislators.

JUDGEMENT:
[ 73 ] In the light of the above evaluation of the use of committal proceedings for non-
payment of judgment debts, I proceed to answer the question raised at the beginning of
this judgment, namely, whether or not this Court should use its powers in terms of
Section 98(5) to keep such proceedings alive. If my overall assessment is correct, then the
necessity for retaining what amounts to a sanitized form of civil imprisonment has not
been established. There accordingly seems to be little reason for pressurizing Parliament
into considering these questions as a matter of priority, which use of Section 98(5)
powers would require it to do. The Association of Law Societies did suggest a course of
action which would result in the coming into existence of such a reason. They argued that
the committal procedures were so bound up with and central to the application of the
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remaining debt collecting provisions, that removing imprisonment and the threat of prison
would lead to the collapse of the entire system. They accordingly urged us to strike down
Sections 65A to 65M as a whole and, then, in order to avoid a chaotic situation from
arising in the entire area of debt-collection, to use our powers in terms of Section 98(5) to
put Parliament on terms to correct the defects. Committal proceedings would then
continue, pending appropriate remedial action by Parliament.
[ 74 ] This raised the question of severability, namely, whether the impugned provisions
could be excised from the rest of Sections 65A to 65M, or whether these sections must
fall in their totality. If we were to follow the proposal of the Association of Law Societies,
(surprisingly, in this respect, supported by the Applicants), then no debt-collecting
procedures in the Magistrates Court would remain, and the need to exercise our life-
saving discretion would indeed be great.
[ 75 ] Severability is an important concept in the context of the relations between this
court and Parliament; like reading down, it is an instrument of judicial restraint which
reduces the danger of producing an overbroad judicial reaction to overbroad legislation. I
agree with Kriegler Js analysis of the matter, subject to one methodological
qualification I feel worth mentioning. It is the following: in deciding whether the
legislature would have enacted what survives on its own, we must take account of the
coming into force of the new Constitution in terms of which we receive our jurisdiction,
and pay due regard to the values which it requires us to promote. We must, accordingly,
posit a notional, contemporary Parliament dealing with the text in issue, paying attention
both to the constitutional context and the moment in the country's history when the choice
about severance is to be made. It is in this context that we must decide whether the good
can be separated from the bad. In the instant case, the excisions which my colleague
proposes would leave a statutory provision that in my view is linguistically sustainable,
conceptually intact, functionally operational and economically viable; I agree with them.
[ 76 ] Having separated the good from the bad, would it then be in the interests of justice
and good government to keep the bad in existence to give it a chance to become part of
the good? The words in the interests of justice and good government are widely
phrased and, in my view, it would not be appropriate, particularly at this early stage, to
attempt a precise definition of their ambit. They clearly indicate the existence of
something substantially more than the mere inconvenience which will almost invariably
accompany any declaration of invalidity, but do not go so far as to require the threat of
total breakdown of government. Within these wide parameters, the Court will have to
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make an assessment on a case-by-case basis as to whether more injustice would flow

from the legal vacuum created by rendering the statute invalid with immediate effect, than
would be the case if the measure were kept functional pending rectification. No hard and
fast rules can be applied. In the present case, we are dealing with one of the core values of
the Constitution. As I have endeavoured to show at some length, we cannot say with
confidence that all that is needed to rectify the defect in the sections concerned is a simple
set of technical amendments. It is intolerable, once the unconstitutionality of
imprisonment of judgment debtors has been established, that persons should continue to
be detained under the impugned provisions. It has not been established that ending
committal proceedings will impair justice or interfere with good government in any
drastic or irreparable way. The other remedies provided for in Sections 65A to 65M
remain available to creditors. There is no reason why we should insist on a rapid decision
by Parliament, one way or the other, either to accept the continuance of Sections 65A to
65M in their truncated form, or else to modify them in the light of the principles
enunciated by this Court. Many issues which were raised before us could be considered at
the appropriate time in that forum, basing itself on the kinds of broadly-based enquiry we
are not in a position to undertake: for example, whether or not the whole area should be
decriminalized,[92] or whether a procedure should be developed in terms of which failure
to attend a debt enquiry hearing, or the deliberate concealment of assets, should be made
criminal offences to be prosecuted in the ordinary way.[93] Policy choices of this kind,
provided they are resolved within constitutional limits, belong to Parliament, not to this
Court, and it would be invidious for us to pre-empt the issue by making an order keeping
the present system alive pending legislative modifications. I accordingly do not think it
right to accede to Mr Du Plessis request, and for the reasons advanced above, agree
fully with the order proposed by Kriegler J.
AL Sachs
[ 77 ] MOKGORO J: I have had the opportunity to read the judgments of Kriegler J,
Didcott J, Langa J and Sachs J. I respectfully agree with the order proposed by Kriegler J.
To the extent that he articulates the values which underlie the fundamental rights and
interests at stake in the circumstances of the issue before us, I concur in the approach and
conclusions of the judgment of Sachs J.

19. THE STATE OF WEST BENGAL V. KESORAM INDUSTRIES LTD. AND ORS.,
[2004] 1 SCC 10
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FACTS:
We would first set out the facts in brief and so far as relevant for appreciating the Issues
arising for decision and thereafter deal with the same.
(A) Coal Matters A Division Bench of the Calcutta High Court has, vide its judgment
dated 25.11.92 reported as Kesoram Industries Ltd. (Textiles Division) v. Coal India
Ltd.., struck down certain levies by way of cess on coal as unconstitutional for want of
legislative competence in the State Legislature. Feeling aggrieved, the State of West
Bengal has come up in appeal by special leave The levies which are the subject matter of
challenge are as under:
This Cess Act, 1980 "Section 5 All immovable property to be liable to a read case and
public works cess... From and after the commencement of this Act in any district or part
of a district, all immovable property situate therein except as otherwise in (Section 2)
provided, shall be liable to the payment of a road cess and a public works cess."
"Section 6 Cesses how to be assessed.
The road cess and the public works cess [shall be assessed--
(a) in respect of lands on the annual value thereof,
(b) in respect of all mines and quarries, on the annual dispatches therefrom, and,
(c) in respect of tramways, railways and other immovable property, on the annual net
profit thereof, ascertained respectively as in this Act prescribed) and the rates at which
such cesses respectively shall be levied for each year shall be determined for such year in
the manner in this Act prescribed:
Provided that--
(1) the rates of such road cess and public works cess shall not exceed six paise and
twenty-five paise respectively on each rupee of such annual value;
(2) the rates of each of such road cess and public works cess shall not exceed--
(i) fifty paise on each tonne of coal, minerals or sand of such annual dispatches, and
(ii) six paise on each rupee of such annual net profits, Explanation. For the purposes of
this proviso, one tonne of coke shall be counted as one and a quarter tonne of coal."

JUDGEMENT:
Under the Nationalization Acts, except some collieries which belong to the companies
engaged in the business of manufacture of steel, all other mines for all intent and purport
belong to the public sector companies which are subsidiaries of Coal India Limited. It

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will be a matter of great concern if the price of coal becomes higher in the State of West
Bengal than in other States.
Despite India Cement (supra) and Orissa Cement (supra) as also various decisions of this
Court, tax has not been imposed taking the land as a unit. An endeavour has been made to
levy cess only by changing the measures thereof. The State has not taken recourse to
measures for removing the deficiencies in the Acts pointed out by this Court. By reason
of the impugned amendment, the State could not have ignored various decisions of this
Court, as has been pointed out in The Workmen of Firestone Tyre & Rubber Co. of India
P Ltd. and others v. The Management and Ors. wherein it was held that despite insertion
of the proviso appended to Section 11-A of Industrial Disputes Act the right of the
employer to adduce evidence justifying his action for the first time in such a case is not
taken away by the proviso to Section 11-A. It was held that legal position as existing prior
thereto and changes thereby shall continue stating:
"Another aspect to be borne in mind will be that there has been a long chain of decisions
of this Court, referred to exhaustively earlier, laying down various principles in relation to
adjudication of disputes by industrial courts arising out of orders of discharge or
dismissal. Therefore, it will have to be found from the words of the section whether it has
altered the entire law, as laid down by the decisions, and, if so, whether there is a clear
expression of that intention in the language of the section."
A Bench of this Court in Dharam Dutt and Ors. v. Union of India and Ors. (2003 (10)
SCALE 141) observed:
"65. Welfare Association A.R.P., Maharashtra and Anr. v. Ranjit P. Gohil and Ors., is a
decision to which both of us are parties. Therein we have held that it is carmissible for the
legislature, subject to its legislative competence otherwise, to enact a law which will
withdraw or fundamentally alter the very basis on which a judicial pronouncement has
proceeded and create a situation which, if it had existed earlier, the Court would not have
made the pronouncement. Very recently in People's Union for Civil Liberties (PUCL) and
Anr. v. Union of India and Anr., in the leading opinion recorded by M.B. Shah, J. (the
other two learned Judges having also recorded their separate but concurring opinions), the
legal position has been summarized thus:-
"the Legislature can change the basis on which a decision is rendered by this Court and
change the law in general. However, this power can be exercised subject to constitutional
provisions, particularly legislative competence and if it is violative of fundamental rights
enshrined in Part III of the Constitution, such law would be void as provided
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under Article 13 of the Constitution. The legislature also cannot declare any decision of a
court of law to be void or of no effect."
Keeping in view that the State has no legislative competence to impose cess on mineral,
the ratio of the said decision shall apply in the instant case also.
This Court while interpreting binding judgments cannot in effect and substance overrule
the same or read down the principles of law enunciated therein.

20. UNITED STATES V. LOPEZ, 514 U.S. 549 (1995)

FACTS:
Alfonso Lopez, Jr., was a 12th-grade student at Edison High School in San
Antonio, Texas. On March 10, 1992, he carried a concealed .38 caliber revolver, along
with five cartridges, into the school. The gun was not loaded; Lopez claimed that he was
to deliver the weapon to another person, a service for which he would receive $44. School
authorities received an anonymous tip that Lopez was carrying the weapon, to which
Lopez admitted when confronted. The next day, he was charged with violating the
federal Gun-Free School Zones Act of 1990 (the "Act"), 18 U.S.C. § 922(q).
Lopez moved to dismiss the indictment on the ground that §922(q) of the Act was
"unconstitutional as it is beyond the power of Congress to legislate control over our
public schools." The trial court denied the motion, ruling that §922(q) was "a
constitutional exercise of Congress' well defined power to regulate activities in and
affecting commerce, and the 'business' of elementary, middle and high
schools...affects interstate commerce."
Lopez was tried and convicted and served in prison for 6 months and 2 years supervised
release. He appealed to the Fifth Circuit Court of Appeals, claiming that §922(q)
exceeded Congress's power to legislate under the Commerce Clause. The Fifth Circuit
agreed and reversed his conviction, holding that "section 922(q), in the full reach of its
terms, is invalid as beyond the power of Congress under the Commerce Clause." The
Court of Appeals noted that the legislative history of the Act did not justify it as an
exercise of the Commerce Clause power of Congress, suggesting that a new version of
the Act which recited more of a nexus with interstate commerce might be devised,
although what that nexus might be, is difficult to harmonize with the text of the decision,
as the Court clearly stated that the situation posed only a "trivial impact" upon
commerce. Justice Harlan's claim of non-triviality was made despite the contention
in Wickard v. Filburn stemming from an alleged alteration of national wheat prices
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caused by harvesting an excess 239 bushels of wheat grown as feed for livestock;
[11]
relative to 941,970 bushels of wheat produced domestically in 1941.
The United States government filed a petition for certiorari, whereby the Court has
discretion to hear or to decline a particular case, for Supreme Court review and the Court
accepted the case.
To sustain the Act, the government was obligated to show that §922(q) was a valid
exercise of the Congressional Commerce Clause power, i.e. that the section regulated a
matter which "affected" (or "substantially affected") interstate commerce.
The government's principal argument was that the possession of a firearm in an
educational environment would most likely lead to a violent crime, which in turn would
affect the general economic condition in two ways. First, because violent crime causes
harm and creates expense, it raises insurance costs, which are spread throughout the
economy; and second, by limiting the willingness to travel in the area perceived to be
unsafe. The government also argued that the presence of firearms within a school would
be seen as dangerous, resulting in students' being scared and disturbed; this would, in
turn, inhibit learning; and this, in turn, would lead to a weaker national economy since
education is clearly a crucial element of the nation's financial health.

“Just as the separation and independence of the coordinate branches of the Federal
Government serve to prevent the accumulation of excessive power in anyone branch, a
healthy balance of power between the States and the Federal Government will reduce the
risk of tyranny and abuse from either front.”

JUDGEMENT:
In a 5–4 decision, the Supreme Court affirmed the decision of the Court of Appeals. It
held that while Congress had broad lawmaking authority under the Commerce Clause, the
power was limited, and did not extend so far from "commerce" as to authorize the
regulation of the carrying of handguns, of aggregate effect.
Chief Justice Rehnquist, delivering the opinion of the Court, identified the three broad
categories of activity that Congress could regulate under the Commerce Clause:
 The use of channels of interstate commerce
 The instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate activities
 Activities that substantially affect or substantially relate to interstate commerce
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He said they had summarily dismissed any consideration of the first two categories and
concluded that the resolution of the case depended only on consideration of the third
category—regulation of activities that substantially affect interstate commerce. The Court
essentially concluded that in no way was the carrying of handguns a commercial activity
or even related to any sort of economic enterprise, even under the most extravagant
definitions.
The opinion rejected the government's argument that because crime negatively impacted
education, Congress might have reasonably concluded that crime in schools substantially
affects commerce.
The Court reasoned that if Congress could regulate something so far removed from
commerce, then it could regulate anything, and since the Constitution clearly creates
Congress as a body with enumerated powers, this could not be so. Rehnquist concluded:
To uphold the Government's contentions here, we have to pile inference upon inference in
a manner that would bid fair to convert congressional authority under the Commerce
Clause to a general police power of the sort retained by the States. Admittedly, some of
our prior cases have taken long steps down that road, giving great deference to
congressional action. The broad language in these opinions has suggested the possibility
of additional expansion, but we decline here to proceed any further. To do so would
require us to conclude that the Constitution's enumeration of powers does not presuppose
something not enumerated, and that there never will be a distinction between what is truly
national and what is truly local. This we are unwilling to do.
The Court specifically looked to four factors in determining whether legislation
represents a valid effort to use the Commerce Clause power to regulate activities that
substantially affect interstate commerce:
1. Whether the activity was non-economic as opposed to economic activity; previous
cases involved economic activity
2. Jurisdictional element: whether the gun had moved in interstate commerce
3. Whether there had been congressional findings of an economic link between guns and
education
4. How attenuated the link was between the regulated activity and interstate commerce
Although the ruling stopped a decades-long trend of inclusiveness under the commerce
clause, it did not reverse any past ruling about the meaning of the clause. Later, Rehnquist
stated that the Court had the duty to prevent the legislative branch from usurping state
powers over policing the conduct of their citizens. He admitted that the Supreme Court
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had upheld certain governmental steps towards taking power away from the states, and
cited Lopez as a decision that finally stepped in to check the government's authority by
defining clearly between state and federal powers.
Justice Thomas filed a separate concurring opinion. In it, Thomas describes the
importance of maintaining the traditional sense of the word "commerce" as it appears in
the Constitution: "...interjecting a modern sense of commerce into the Constitution
generates significant textual and structural problems. For example, one cannot replace
'commerce' with a different type of enterprise, such as manufacturing..." Furthermore,
Justice Thomas calls for further revaluation of the "substantial effects" test, arguing that
under the Court's understanding, it would allow for Congress to control every aspect of
national life:
The substantial effects test suffers from this flaw, in part, because of its "aggregation
principle." Under so-called "class of activities" statutes, Congress can regulate whole
categories of activities that are not themselves either "interstate" or "commerce." ... The
aggregation principle is clever, but has no stopping point. ... Under our jurisprudence, if
Congress passed an omnibus "substantially affects interstate commerce" statute,
purporting to regulate every aspect of human existence, the Act apparently would be
constitutional.

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