const_prbms

8/12/2019 const_prbms

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Constitution I Problems

A university of Punjab prescribed Punjabi in Gurumukhi script as the sole and exclusivemedium of instruction. Arya Samajists a Religious and linguistic minority, residing in the stateapproached the Supreme ourt as it violative of their fundamental rights. !hether the "rit

petition is maintainable # Refer$ %A& ollege 'hatinda v State of Punjab

Issues 1) Whether university has power to impose a script and language to minority run edn institution2) By prescribing medium is state going ultravires and encroaching central govt power in entry 66 ofpart I of concurrent list )

Cases! 1) "tate of Bombay v# Bombay educational society$ 2) %ingustic minorities protection committeev &arnata'a

(he supreme court declared that it violated the right of rya "ama*ists to use their ow n script incolleges run by them and compulsorily affiliated to the +niversity

(he court emphasi,ed that if the +niversity compulsorily affiliated minority colleges to itself andprescribesthe medium of instruction and e-amination to be in a language which is not their mothertongue$ or re.uires e-amination to be ta'en in a script w hich is not their ow n$ then it w ould interfere

w ith theirfundamental rights# /o linguistic minority can$ ofcourse$ insist that a university must conductits e-amination in the language or script of the minority$ but$ at the same time$ the +niversity alsocannot force the minority institution compulsory affiliated themselves to it and impose on them amedium of instruction w hich is different from the minorities0 language or script# (he "tate has toharmonise its power to prescribe themedium of instruction w ith the rights of the religious or linguisticminorities have the medium of instructionsand script of their ow n choice#

(he "tate can therefore either provide for instruction in the media of these minorities$ or allow their

institution to get affiliated to such other +niversity outside the "tate as have same media of instructionas the minority institutions#

A 'ombay Government order directing the schools "ith (nglish medium to admit only Anglo)*ndians and iti+ens of non)Asiatic descent in the classes taught in (nglish language "aschallenged as violative of Art - / of the onstitution. %ecide.

efer!0he State 1f 'ombay vs 'ombay (ducation Society Andrs3acts! (he "ociety and its two 4irectors presented an pplication under article 226 of theConstitution in the 5igh Court of Bombay praying for the issue of a Writ in the nature of andamusrestraining the "tate of Bombay and its officers from enforcing the said order and to allow the

petitioners to admit in the school any children of non7nglo7Indian citi,ens or citi,ens of the siaticdescent and to educate them through the medium of 8nglish#

5eld! 91) that the impugned order denying the right of students who are not nglo7Indians or are ofsiatic descent to be admitted to a recognised nglo7Indian "chool 9in this case the Barnes 5igh"chool) which receives aid from the "tate and which imparts education through the medium of8nglish is void and unenforceable as it offends against the fundamental right guaranteed to all citi,ensby article 2:92) ofthe Constitution$ because

9a)(he language of article 2:92) of the Constitution is wide and un.ualified and covers all citi,enswhether they belong to the ma*ority or minority group#

9b)(he protection given by the said article e-tends against the "tate or anybody who denies the rightconferred by it# 9a)(he said article confers a special right on citi,ens for admission into the educational


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institutions maintained or aided by the "tate#

9d)(he marginal note referring to minorities does not control the plain meaning of the language inwhich article 2:92) has been couched#

(he word ; namely ; imports enumeration of what is comprised in the preceding clause# In other

words it e.uates what follows with the clause described before#

92)Barnes 5igh"chool at 4eolali and other nglo7Indian "chools ave a right to admit non7nglo7Indian students and students of siatic descent inasmuch as article < proviso 2 imposes anobligation on the nglo7Indian "chools to ma'e available at least => per cent# of the annual admissionsto non7nglo7Indian students as a condition precedent of their receiving grant from the ?overnmentand the impugned order is unconstitutional as it prevents the nglo7Indian schools from performingtheir constitutional obligation and e-poses them to the ris' of forfeiting their constitutional right tothe special grant# In view of the fundamental right guaranteed to a minority li'e the nglo7Indian

community under article 2:91) to conserve its own language$ script and culture and the right toestablish and administer educational institutions of its own choice under article >91) there is implicit

therein the right to impart instruction in its own institutions tothe children of its own community in itsown language and the "tate by its police power cannot determine the medium of instruction inopposition to such fundamental right#

2A2 an accused committed a heinous crime and it "asproved. 0he 3igh ourt of Rajasthanimposed capital punishment that too public hanging. ', the "ife of the convict appealed to theSupreme ourt that public hanging "ould be against the spirit of Article 4. %ecide "hetherthe appeal maintainable or not #

efer ! ? of India v %achma 4evi3acts! a*astan 5C ordered public hanging of a lady %achma 4evi in a dowry death in 1:@6$ "C held

that a barbaric crime cannot be dealth with barbaric penalty on any public ground# (he death sentenceis due to anger than reasons#

"C held that public hanging is not presecribed in prison rules and hence unconstitutional#efer 4eena v +nion of India (he "#C# held that public hanging even if permitted under the rules

would violate rticle 21 of the Costitution#

A social activist gets some information that several under trial prisoners "ere put in prison formore than the actual period,if the offences "ere proved and imprisonment "ould be imposedby the court. 3e filed a "rit petition before the Supreme ourt under Article 5 as it violative

ofArticles and 5-)A respectively. %ecide.

efer ! 5ussainara &hatoon A rs vs 5ome "ecretary$ "tate f Bihar

3acts! (he case dealt$ inter alia$ with the rights of the under trial prisoners on habeas corpus petitionswhich disclosed a shoc'ing state of affairs in regard to administration of *ustice in the "tate of Bihar#n alarmingly large number of men and women$ children including$ were behind prison bars for yearsawaiting trial in courts of law# (he offences with which some of them were charged were trivial$ whicheven if proved$ would not warrant punishment for more that a few months$ perhaps a year or two$ andyet they remained in *ail$ deprived of their freedom$ for periods ranging from three to ten years without

even as much as their trial having commenced# (he Court ordered immediate release of these undertrials many of whom were 'ept in *ail without trial or even without a charge#


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uling! 3airness under rticle 21 is impaired where procedural law does not provide speedy trial ofaccused does not provide for his pre7trial release on bail on his personal bond$ when he is indigent andthere is no substantial ris' of his absconding if an under7trial prisoner is 'ept in *ail for a period longerthan the ma-imum term of imprisonment which could have been awarded on his conviction and if heis not offered free legal aid$ where he is too poor to engage a lawyer$ provided the lawyer engaged bythe "tate is not ob*ected to by the accused#

Where the petitioner succeeds in establishing his case$ the Court would grant him any relief which isnecessary to afford proper *ustice$ or to prevent manifest in*ustice regardless of technicalities such as toissue directions to the ?overnment and other appropriate authorities$ as may be necessary$ to secure toa prisoner his constitutional rights#

(he "upreme Court 9per Bhagwati ) 9at 1>) held that the state cannot be permitted to denythe constitutional right of speedy trial to the accused on the ground that the "tate has no ade.uatefinancial resources to incur the necessary e-penditure needed for improving the administrative and*udicial apparatus with a view to improving speedy trial#

Sukumaran, an undertrial prisoner "as brought to the court "ith hand cuffing by the police.Sukumaran "ants to challengeit as violative of his fundamental right under Article 4. Providelegal advise to Sukumaran.

efer ! Prem "han'ar "hu'la v# 4elhi dministration

Prem "han'er "hu'la v# 4elhi dministration the petitioner was an under7trial prisoner in (ihar *ail#5e was re.uired to be ta'en from *ail to magistrate court and bac' periodically in connection withcertain cases pending against him# (he trial court has directed the concerned officer that whileescorting him to the court and bac' handcuffing should not be done unless it was so warranted# Buthandcuffing was forced on him by the escorts# 5e therefore sent a telegram to one of the *udges of

"upreme Court on the basis of which the present habeas corpus petition has been admitted by thecourt# (o handcuff is to hoop harshly and to punish humiliatingly# (he minimum freedom ofmovement$ under which a detainee is entitled to under rt#1:$ cannot be cut down by the applicationof handcuffs# 5andcuffs must be the last refuge as there are other ways for ensuring security#

"upreme Court 4irectives (he minimum freedom of movement$ under which a detainee is entitled tounder rt#1:$ cannot be cut down by the application of handcuffs# 5andcuffs must be the last refugeas there are other ways for ensuring security# (here must be material and sufficiently stringent groundsto satisfy a reasonable mind that there is clear and present danger of escape of the prisoner who isbeing transported by brea'ing out of police control# 8ven when in e-treme circumstances handcuffshave been put on the prisoner$ the escorting authority must record the reasons for doing so in the 4aily

4iary eport# (hey must also be shown to the court#

Solitary onfinement$

"unil Batra v# 4elhi dministration In the case the petitioner$ a convict under a death sentence$challenged his punishment of solitary confinement as provided under "ection >92) of the Prisons ct1@:=# (he petitioner contended that "ection D6 of the Prisons ct$ which confers arbitrary powers onthe "uperintendent to confine a prisoner in irons$ violates rticles 1= and 21 of the Constitution

(he "upreme Court again in a separate writ petition filed by "unil Batra and Charles "obhara*$ twopriso7ners in 4elhiEs (ihar *ail$ made an effort to humani,e *ail conditions# (he .uestion before the

Court was! ;4oes a prison setting$ ipso facto$ outlaw the rule of law$ loc' out the *udicial process fromthe *ail gates and declare a long holiday for human rights of con7victs in confinement F nd if there isno total eclipse what luscent segment is open for *udicial *usticeF "unil Batra$ sentenced to death had


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challenged his incarcera7tion in solitary confinement and Charles "obhra* had challenged hisconfinement with bar7fetters#

(he "upreme Court held that there is no total deprivation of a prisonerEs rights of life and liberty# (he;safe 'eeping; in *ail custody is the limited *uris7diction of the *ailer# ;(o desort safe7'eeping into ahidden opportunity to care the ward and to traumati,e him is to betray the custodian of law$ safe

custody does not mean deprivations$ violation$ banishment from the lanter barguet of prison life andinflictionEs of tra7vails as if guardianship were best fulfilled by ma'ing the ward suffer near insanity#;

(he court held that "unil BatraEs mercy petition to the PresidentG?overnor had not been disposed offand Batra was not ;under sentence of death#; 5is solitary confinement was .uashed# In the case ofCharles "obh7ra$ it was held that there was no arbitrary power to put an undertrial under bar7fetters#

(he discretion to impose ;irons; is a .uasi7*udicial decision and a previous hearing is essential beforeputting a prisoners in fetters# (he grounds for imposing fetters would be given to each victim in hislanguage# It was further laid down that no ;fetters; shall continue be7yond day time and a prolongedcontinuance of bar7fetters shall be with the approval of the Chief udicial agistrate or a "essions

udge#

In another case of ;Prem "han'ar "hu'la Hs# 4elhi dministration$; the "upreme Court struc' downthe provisions of the Pan*ab Police rules which discrimina7ted between the rich and the poor prisonerin deter7mining who was to be handcuffed# (he Court also held that in the absence of the escortingauthority re7cording why the prisoner is being put under handcuffs$ the procedure of handcuffing is a

violation of rticle 21

r was supplied with two grounds for his detention# But later on$ the detaining authority revo'edone of the grounds communicated to him earlier# challenges the detention as illegal74ecide#

efer!"hibban %al "a'sena vs (he "tate f +ttar Pradesh

Court held that$ What the ?overnment has done in this case is to confirm the detention order and atthe same time to revo'e it under one of the sub7clauses of section 91) 9a) of the ct# (his isnot what the section contemplates# (he ?overnment could either confirm the order of detention madeunder section or revo'e it completely and there is nothing in law which prevents the ?overnmentfrom ma'ing a fresh order of detention if it so chooses# (he detention of the petitioner isconse.uently illegal#(he application is allowed and the petitioner is directed to be set at liberty#

%ater the law was amended in 1:@= by adding a section D has been made to remove any bar of anotherdetention order being issued against same person#

& oy v +nion of India 9/" case) $ upholding /" some directions were issued to safeguardintersts of detenue which include 1) inform 'ith and 'in about detention 2) llow food$readingmaterial$ visit from friends or attorneys ) /o treatment of punitive character# =) 4etained in a place

where detenue habitually live# D) must be 'ept separated from convicts#

(he abalpur City unicipal Corporation issued a notification specifying anmashtami# amanavamiand ahaveer avanthi as holidays7for slaughter houses# Butchers challenge the order on the groundthat Epublic interestE in article 1:9b) did not e-tend to the religious sentiments of the ma*oritycommunity# 4ecide#

Refer $ 6unicipal orporation 1f 'ombay ... vs 7an 6ohammed 8smanbhai

5is contention was that standing orders put an unreasonable restriction on the petitionerEs right tocarry on his trade or business as a beef dealer and that restriction was not in the interest of the general


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public but was based on e-traneous considerations that the standing orders single out the petitionerand other butchers li'e him$ who slaughter only cattle and not sheep or goat$ for hostile discriminationinasmuch as the standing orders effect only the butchers who slaughter cattle and not those who deal inmeat of goat and sheep#

(he e-pression ;in the interest of general public; is of wide import comprehending public order$

public health$ public security$ morals$ economic welfare of the community and the ob*ects mentionedin Part IH of the Constitution# /o body can dispute a law providing for basic amenities# If theunicipal Commissioner declares certain days as holidays for the slaughter house in order to givefacilities to the municipal staff wor'ing in the municipal slaughter house$ no body could have anyob*ection to such a standing order#

It is now well7established that while rt# 1= forbids class legislation it does not forbid reasonableclassification for the purposes of legislation and that in order to pass the test of permissibleclassification two conditions must be fulfilled$ namely$ 9i) the classification must be founded on anintelligible differentia which distinguishes persons or things that are grouped together from others leftout of the group and 9ii) such differentia must have rational relation to the ob*ect sought to be achieved

by the statute in .uestion#

(here is always a presumptionin favour of constitutionality of an enactment and the burden isupon him$ who attac's it$ to show that there has been a clear violation of the constitutional

principles# uncipality decision is valid#"heela Barse v# +nion of India 91:@6) "CC D:6J

3acts! s#"heela Barse$ a dedicated social wor'er too' up the case of helpless children belowage of 16 illegally detained in *ails# "he petitioned for the release of such young children from*ails$ production of information as to the e-istence of *uvenile courts$ homes and schools andfor a direction that the 4istrict *udges should visit *ails or sub7*ails within their *urisdiction toensure children are properly loo'ed after when in custody#

uling! (he Court held that it is the right of a public minded citi,en to bring an action forthe enforcement of fundamental rights of a disabled segment of the citi,enry# Where the Court comes to a conclusion that the right to speedy trail of an accused has beeninfringed$ the charge or the conviction$ as the case may be$ shall be .uashed# (he Court directed that surprise visits should be paid to the police loc'7ups by a *udge of theCity court appointed by the Principal *udge# (he Court observed that children in *ail are entitled to special treatment# Children arenational assets and they should be treated with special care# (he Court urged the setting up ofremand and *uvenile homes for children in *ails#

With the ob*ect of providing more labour for agriculture$ so as to help grow more food$ a state laiddown that in a certain Bidi manufacturing area no person shall$ during agricultural seasons$ beemployed as Bidi ma'ing# (he law is claimed to be invalid in violating freedom to follow any trade oroccupation# 4ecide#

efer ! Chinthamon ao vs "tate of adhya pradesh

(he phrase ;reasonable restriction; connotes that the limitation imposed on a person in en*oyment ofthe right should not be arbitrary or of an e-cessive nature$ beyond what is re.uired in the interests ofthe public# (heword ;reasonable; implies intelligent care and deliberation$ that is$ the choice of acourse which reason dictates# %egisla7 tion which arbitrarily or e-cessively invades the right cannot be

said to contain the .uality of reasonableness and unless it stri'es a proper balance between thefreedom guarnteed in rt# 1: 91) 9g) and the social control permit7 ted by el# 96) of rt# 1:$ it must beheld to be wanting in that .uality#


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"uch a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoeverto the ob*ect which the legislation see's to achieve and as such cannot be said to be a reasonablerestriction on the e-ercise of the right# 3urther the statute see's to prohibit all persons residingin the notified villages during the agricultural season from engaging themselves in the manufacture ofbidis# It cannot be denied that there would be a number of infirm and disabled persons$ a number of

children$ old women and petty shop 'eepers residing in these villages who are inca7 pable of beingused for agricultural labour# ll such persons are prohibited by law from engaging themselvesin the manufacture of bidis and are thus being deprived of earning their livelihood# It is a matterof common 'nowledge that there are certain classes of persons residing in every village who do notengage in agricultural operations# (hey and their womenfol' and children in their leisure hourssupplement their income by engaging themselves in bidi business# (here seems no reason forprohibiting them from carrying on this occupation# rbitrary nature of order hence invalid#

(est of reasonableness fails#

8"8H(I/ C"8"

(he "upreme Court delivered its *udgment in Indira "awhney and others Hs# +nion of India andthers 9I 1:: "C =


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Single post reservation

(he rationale of reservation under rticle 169=) of the constitution is founded on the inade.uacy ofrepresentation of a class in the service under the state# (he .uestion of ade.uacy of representationdoes not and cannot arise in a single post cadre because only one person can be accommodatedagainst the single post$ leaving no scope for ade.uate representation of any particular class in such

single post#

4efence council submitted that has submitted that the mechanism of roster has been evolved tobalance *ustice for all segments of the society so that in the higher echelons of service$ a single post isalso made available to the bac'ward classes by reserving such post only periodically on the basis ofrotation of the roster point# "uch mechanism does not offend any provision of the Constitution#

In a single postcadre$ reservation at any point of time on account of rotation of roster is bound tobring about a situation where such single post in the cadre will be 'ept reserved e-clusively for themembers of the bac'ward classes and in total e-clusion of the general embers of the public# "uch totale-clusion of general members of the public and cent percent reservation for the bac'ward classes is

not permissible within the constitutional frame wor'# (he decisions of this Court to this effect over thedecades have been consistent#

efer !P"( ?4+(8 I/"(I(+(8 3 84IC% 84+C(I/ /4 8"8C5C5/4I?5 vs# 3C+%(L ""CI(I/ /4 " 1::@

0he post of %irector in an engineering college run by a minority religious group falls vacant.Ahmed Patel, the senior)most professor belonging to the religious group, "as not appointed.Ahmed Patel feels aggrieved. Advise him.

Refer$Secretary, 6alankara Syrian atholic ollege vs 0.7ose 9 1rs.

( Pai 3oundation v# "tate of &arnata'a 2>>2 9@) "CC =@1J has held that receipt of aid by aminority institution removes the protection under rticle >91)$ by ta'ing away its right to claimimmunity from interference and therefore all regulations made by the "tate$ governing the manner ofma'ing appointments and removal$ as also the conditions of service of Principals and %ecturers$ will bebinding on such aided institution# (he 5igh Court held that aid carries the EpriceE of surrender of a partof its freedom and independence in matters of administration#

(he appellants contend that the right to appoint Principal and teachers is the most important facet ofminorityEs ;right to administer; under rticle > 91) of the Constitution# (hey submit that receipt ofaid by minority institutions$ does not$ in any way$ fetter or abridge their constitutional right to

administer educational institutions$ and therefore "ection D< 9) of the ct re.uiring the appointmentof only the senior7most of lecturers as Principal is violative of rticle > 91) of the Constitution#

(he appellant contends that the protection e-tended by rticle > 91) cannot be used against a memberof the teaching staff who belongs to the same minority community# It is contended that a minorityinstitution cannot ignore the rights of eligible lecturers belonging to the same community$ senior to theperson proposed to be selected$ merely because the institution has the right to select a Principal of itschoice# But this contention ignores the position that the right of the minority to select a Principal of itschoice is with reference to the assessment of the personEs outloo' and philosophy and ability toimplement its ob*ects# (he management is entitled to appoint the person$ who according to them ismost suited$ to head the institution$ provided he possesses the .ualifications prescribed for the posts#

(he career advancement prospects of the teaching staff$ even those belonging to the same community$should have to yield to the right of the management under rticle > 91) to establish and administereducational institutions#


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A 7ain temple "as o"ned by the State. 0he %istrict ollector took steps to install a Shivlinginside the temple for 3indu devotees "ho fre:uented the temple. 0he 7ain devotees feelaggrieved. Advise them.

efer! (e*ra* Chhogalal ?andhi nd nr# vs "tate f adhya Bharat 1:D and 4?. %ecide#

Refer$ 7agdish Saran 9 1rs vs 8nion 1f *ndia

(he petitioner in his writ petition under rticle 2 challenged the rule as violative of rticles 1=

and 16 of the Constitution and sought the courtEs writ to direct the +niversity to admit him to the #4#Course in 4ermatology# It was contended that the +niversity was sustained by Central?overnment finances$ collected from the whole country and the benefits must li'ewise belongtoall .ualified students from everywhere# (he +niversity *ustified the reservation on the ground ofe-clusivism practised by every other +niversity by forbidding 4elhi +niversity graduates from gettingadmission in their colleges and also on account of the reasonableness of institutional continuity ineducational pursuits for students who enter a university for higher studies#

(he class which en*oys reservation must be educationally handicapped# (he reservation must begeared to getting over the handicap# (he rationale of reservation must be in the case of medicalstudents$ removal of regional or class inade.uacy or li'e disadvantage# (he .uantum of reservation

should not be e-cessive or societally in*urious$ measured by the over7all competency of the end7product$ vi,# 4egree7holders#

(he basis of the reservation is that the candidate for admission to the post7graduate classes is a medicalgraduate of the same university# (he relation7ship is institutional# (here is sufficient validity in thatcriterion as a basis of classification under rticle 1=#

(he honourable "upreme Court of India$ stated that reserving per cent seats for institutionalcandidates was in effect 1>> per cent reservation for sub*ects$ which was declared ultra vires theConstitution$ and$ hence$ was struc' down

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