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ARTICLE 21

 Proposal – we’ll include the American due process clause; very wide covering

procedural and substantive law; BR Ambedkar was against it.

 AK GOPALAN V. STATE OF MADRAS

1. Deals with preventive detention; to be read with Art 19, 21 and 22.

2. There was a communist leader in the south; he was kept in preventive

detention.

3. Preventive Detention Act 1950 – 7th schedule had lists 1 and 3; as far as Art 22,

all FR are separate; need not go into questioning whether preventive detention

violates Article 19 or 21; it is subject matter of Art 22.

4. Even if we were to consider that it violates 21, it states ‘procedure est by law’;

no violation of art 21 as procedure of above act has been followed; not

violative of 21.

5. Lex = legislation(court); jus = law being used in a higher sense (MK Nambiar).

 MANEKA GANDHI V. UOI

1. Read Art 14, 19 and 21 together; going abroad is part of Art 21; golden

triangle est; all procedure must be just and fair.

2. J. HR Khanna – Art 21 cannot be restricted; however there was dissenting

opinion as the Emergency must be considered.

3. DK Basu guidelines – arrest must be attested by one victim; near relative must

be informed; legal rep; magistrate req of 24 hrs; rt to be checked by a doctor

within 48hrs.
 MC MEHTA V. UOI (ENVIRONMENTAL LAW JURISPRUDENCE)

1. Oleum Gas(conc sulphuric acid) Leak case – Right to a clean environment is a

horizontally enforceable FR; the principle of absolute liability was est by J.

Bhagwati.

2. Leakage of gas lead to the death of many; there is no defence to absolute

liability; no need to est negligence.

3. Union Carbide Corp – Bhopal Gas Tragedy : same principle applied.

4. Rio Declaration:

 Necessary to take precautions if you are handling any hazardous industry

which may deplete the env.; proper disposal of waste.

 Polluter pays.

 INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UOI

1. ICELA is an NGO in Rajasthan.

2. Hindusthan Agro Chemicals Ltd., Silver Chemical Ltd. And Jyoti Chemicals

Ltd used to prouduce H-acid which was banned in western countries as it

releases a toxic sludge.

3. The toxic sludge polluted all underground wells and several acres of land

became barren.

4. There was an order for such industries to compensate for restoration of water

in this area.

5. It had a horizontal enforcement under Art 21.

 VELLORE CITIZENS WELFARE FORUM V. UOI – TANNERIES CASE

1. Leather industry was releasing toxic materials and polluting the env.

2. Palar river was polluted and the land became barren in that region.
3. Using the polluter pays principle, compensation of Rs. 10,000 was handed

over to the Env. Protection Fund.

 MC MEHTA V. KAMAL NATH (ENV MIN)

1. Public trust doctrine – state is the trustee of the natural resources and it is an

obligations of the state to safeguard the env.

2. The Span Motels and Resorts Ltd was located o the banks of the river

Vyas(Indus) in Himachal Pradesh.

3. They altered the course of the river to avoid future floods; this led to severe

damage to the ecology; several species died; water scarcity is many regions;

flood-like situation in diverted regions.

4. Since it was the env. Min in consideration, the pollution control board did

nothing to ensure the clean env. As he held such a position.

5. State has an obligation for a clean and healthy env.; Sustainable dev, inter-

generational equity dev should not take place at the cost of env.

 MOHINI JAIN V. STATE OF KARNATAKA (RIGHT TO EDUCATION)

1. A private medical college was receiving some aid from the govt and had govt

reserved seats.

2. Tuition fee for the govt reserved seats was Rs. 2,000; other candidates had to

pay Rs. 60,000.

3. Mohini did not get seat against govt reservation; paid Rs. 60,000; father was

not affluent and thus could not guarantee payment in subsequent years.

4. Admission was denied; this was challenged due to disparity of fees.

5. Court said acc. to DPSP such excess fees cannot be charged by Pvt

Institutions; they cannot make education inaccessible.


 UNNI KRISHNAN V. STATE OF ANDHRA PRADESH

1. They do need to charge excess fees; education is not a business it is an

occupation.

2. Excess amount should be reasonable - enough to run the institute.

3. If it is used for profits, it is called capitation fees; prohibited by SC.

4. Right to primary edu declared as a FR.

 VISHAKHA V. STATE OF RAJASTHAN

1. Rape at workplace; sexual harassment – defined as unwelcomed comments,

verbal advances, lewd comments etc, despite objection expressed by women;

S. 2 (d) of HR Act 1993 – sexual harassment violates HR.

2. Protesting against child marriage; Anganwadi worker.

3. Responsibility of employers and organisation to take preventive measures and

create awareness.

4. Mandatory for employers to print and paste guidelines in visible places.

5. Govt follows the Industrial Employment (Standing Order) Act, 1946 for

disciplinary rules; employer to assist the victim in all possible manners.

6. Committee headed by women(plus atleast half members must be women)

must be there for accepting complaints; responsible to make necessary inquiry

and keep information confidential.

7. If it is a third person, outside the organisation, employer must give legal

assistance to employee; S. 294, 354 and 509 of IPC; Sexual Harassment

Prevention Act; Indecent Representation of Women Act.

8. SC recognised violation of Art 21 rights.


 CHAIRMAN OF RAILWAY BOARD V. CHANDRIMA DAS

1. A Bangladeshi woman was waiting for the train to arrive and was raped;

Chandrima Das filed a PIL on her behalf; as per the principle of vicarious

liability, it is the responsibility of the Railways to ensure safety of the people.

2. Railways were held liable; Art 21 was available irrespective of the fact

whether you are a citizen or not; Rs. 10,000 compensation was paid.

 BODHISATTWA GAUTAM V. SUBHRA CHAKRABORTY

1. The accused sexually exploited the victim by tricking the victim into a fake

marriage.

2. This was a case of consent; the woman agreed to sexual exploitation believing

that she was married to the accused and and in reality she was not; her consent

was not consent at all; this amounted to rape.

3. The accused was liable to pay Rs. 1,000 every month as interim compensation

till the proceedings ended.

 OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION (RIGHT TO

LIVELIHOOD)

1. Pavement dwellers will be deprived of livelihood if evicted; can be evicted

only after monsoon season and State must make provision for housing.

2. But this decision does not impose a positive obligation on the State to provide

work to those who do not have work.

 SHANTISTAR BUILDERS V. NARAYAN TOTAME

1. Urban Land (Ceiling and Regulation) Act, 1976 placed the maximum limit on

amount of land owned.


2. Exception was granted to Shantistar Builders provided they make small flats

on the excess land which the weaker sections of society can afford.

3. They built big flats; misused the grant; court recognised the right to shelter

and asked for demolition of big flats and construction of affordable ones.

4. However, no obligation of State to follow a housing policy that ensures

housing for all.

 PASCHIM BANGA KHET MAZDOOR SAMITI V. STATE OF WB (RIGHT TO

MEDICAL CARE)

1. A Hakim Sheikh fell from a moving train and sustained severe head injuries;

he was denied admission in Govt. hospitals due to lack of beds.

2. Court asked the State to compensate him as State had responsibility to provide

medical care – Rs 25,000 awarded as compensation.

 PARMANAND KATARA V. UOI

1. Without taking into consideration the jurisdiction of where the accident took

place, whether the police report had been made or not, the primary job of the

doctor is to provide medical care.

 KHARAK SINGH V. STATE OF UP (RIGHT TO PRIVACY)

1. Kharak Singh was a habitual offender; he was under constant surveillance.

2. He was often visited at odd hours of the night to be checked.

3. He approached the court that his right to personal liberty was being violated.

4. The court held that visits at odd hours was objectionable and struck them

down; rest was upheld.


5. Minority opinion(J. Subbarao) : Right to privacy cannot be separated from the

right to personal liberty; constant surveillance and domiciliary visits were

violative of the right.

 GOVIND V. STATE OF MP

1. Regulations 855 and 856 of the MP Police Regulations: registered habitual

offenders will be under constant surveillance; domiciliary visits.

2. Challenged; right to privacy recognised.

 R RAJAGOPAL V. STATE OF TN

 PUCL V. UOI – TELEPHONE TAPPING CASE

1. S. 5 (3) of the Telegraph Act, 1885 is subject to some restrictions; permission

of Home Secretary of State or Centre is required due to right to privacy;

telephone tapping is done for national security.

2. Maximum period is 2 months; extendable to 6 in emergency cases.

3. Review committee decides if the tapping is legitimate or not.

 MR X V. HOSPITAL Z

1. X was suffering from HIV; hospital disclosed this to X’s fiancee; X argued

that his right to privacy had been violated.

2. Court held that it was done in the interest of his fiancee and was necessary.

 RUDULIA SHAH V. STATE OF BIHAR – RIGHTS AGAINST ILLEGAL DETENTION

1. A person was illegally detained in prison for 14 yrs.

2. He was awarded compensation of Rs. 30,000 in addition to Rs. 5,000 given by

the state.
 KHATRI V. STATE OF BIHAR – BHAGALPUR BLINDING’S CASE

1. Accused were blinded by the acid used by the police to extract confessions.

2. State was directed to pay compensation and help in the rehabilitation of the

victims.

 DK BASU V. STATE OF WEST BENGAL

1. DK Basu was the chairman of a legal aid committee; approached the court

with a PIL.

2. Court formed certain guidelines applicable in cases of arrest; person arresting

must have proper indentification with name tags and designations; memo of

arrest must be prepared and attested by a family member or respectable person

in that area.

3. First duty of police is to inform a friend or family of the arrest and place to

which he is being taken; inform the arrestee that he has the right to contact is

family and inform them.

4. The arrestee must be given his reason for arrest; medical inspection after 24

hrs of arrest; after 48 hrs of arrest he has the right to prevent custodial violence.

5. All these reports must be presented and submitted to a judicial magistrate.

6. Right to meet his lawyer during interrogation if requested; police control

rooms to be est and records of his whereabouts to be kept.

 HUSSAINARA KHATOON V. HOME SECRETARY OF BIHAR – 7 CASES

1. People were imprisoned without even a charge against them for trivial matters,

for a time longer than their actual sentences.

2. Women and children were imprisoned as they might prove to be good

witnesses; people were handcuffed even when in court.


3. Court held that handcuffing them was inhuman; released the illegally

detained; awarded compensation.

 SUNIL BATRA V. DELHI ADMINISTRATION – 1

1. Charles Sobhraj was kept in solitary confinement; he was in bar fetters and

couldn’t even move.

2. A fellow prisoner Sunil Batra wrote a postcard to the SC which was admitted

as a PIL.

3. Solitary confinement and bar fettered were inhuman; they were banned.

 SUNIL BATRA V. DELHI ADMINISTRATION – 2

1. Speedy trials and better living conditions within prisons needed.

 Consitutionality of death penalty – if the state cannot give life it cannot order

for it to be taken away; deterrant theory – when one person is awarded a

punishment, it sets an example for others; reformant theory – the aim is to

reform the convict thus capital punishment is of no use.

 JAGMOHAN SINGH V. STATE OF UP

1. Validity of S. 302 of IPC challenged; punishment for murder.

2. Violative of Art 21 and 14(no guidelines as to when to award death penalty) –

unfettered judicial discretion.

3. Court said death penalty has to be confirmed by HC, considered by the SC and

the President has pardoning powers; thus it isnt unfettered judicial discretion;

it is guided at every step.

 BACHAN SINGH V. STATE OF PUNJAB

1. S. 306 of the IPC was challenged.


2. The court held that it cannot be done away with due to the situation of the

country, but it can be monitored.

3. Capital punishment can be awarded only in the rarest of rare cases – doctrine.

 MITHU V. STATE OF PUNJAB

1. S. 303 of IPC challenged – a convict serving sentence for life and commits

murder must be awarded death penalty.

2. Unfair as judiciary is not allowed to take into consideration other factors; the

section was struck down.

 P RATTINAM V. UOI – RIGHT TO DIE

1. S. 309 of the IPC was challenged – it prescribed punishment for attempt to

commit suicide.

2. Majority opinion – right to life includes the right to die; punishing someone

who is already troubled and depressed is unjust; Section was struck down.

 GIAN KAUR V. STATE OF PUNJAB

1. She was driven to commit suicide by her in-laws; if S. 309 wasn’t a crime,

then driving the person to attempt it shouldn’t be a crime – family.

2. Court overruled above case and re-inserted S. 309.

 ARUNA SHANBAUG V. UOI

1. She was a nurse in KEM Hospitals; was raped brutally and left in a vegetative

state for 30+ yrs.

2. Passive euthanasia is the withdrawal of the life sustaining mechanism; Active

euthanasia is a crime in many countries and is allowed in others.

3. Do Not Resucitate signed by her; in unconscious state – close friends must

give the consent.


4. KEM Hospital was the considered friend; it didn’t give consent for passive

euthanasia.

5. If consent is given, division bench of HC has to decide after hearing a panel of

doctors.