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Fundamental Rights And Judicial Review

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Case List For LLB 1st SemesterConstitutional LawCase ReferenceCase DetailsTopicFundamental Rights and Judicial ReviewP D Shamdasani vs. Central Bankof IndiaSC AIR 1952Rajasthan Electricity Board vs.Mohan LalSC AIR 1967Sukhdev vs. BhagatramSC AIR 1975Marbury vs. MadisonUS SC 1800L Chandra Kumar vs. Union ofIndiaSC AIR 1997AK Gopalan vs. State of MadrasSC AIR 1950Bhikaji vs. State of MPSC AIR 1954Deep Chand vs. State of UPSC AIR 1959State of Gujarat vs. Ambica MillsSC AIR 1974rdDulare Lodh vs. 3 AdditionalDistrict JudgeSC AIR 1984Basheshar Nath vs. Income TaxCommissionerSC AIR 1959Keshavanand Bharti vs. State ofKeralaSC AIR 1973Bank confiscated property on loan default. SC held that fundamentalrights are available against the state and not against privateindividuals because there already are enough safeguards underordinary laws for such disputes.Definition of State is not narrow. It includes all such entities that areconstituted by the State. Electricity Board and a University are States.Overruled Univ. of Madras vs. Santa Bai.ONGC, LIC, Industrial Finance Corp. are all states because the rulesand regulations made by them have the force of law.US SC held that the judiciary has the power to review actions of thelegislature. The concept of Judicial Review started from here.The power of judicial review of legislative action as vested in SC by art32 and in HC by art 226 is a basic feature of the constitution andcannot be curtailed even by constitutional amendment.Only Section 14 of Preventive Detention Act 1950 was heldunconstitutional. Whole act except this section is valid.In Romesh Thaper vs. State of Madras, SC held that only if theunconstitutional portions cannot be removed then the whole act will beutra vires and thus unconstitutional.Govt. of Central Province monopolized motor transport by an act. SCheld that the pre-constitutional law that violates fundamental rights isnot void ab initio. It is merely eclipsed. When Art 19 was amended toallow state to monopolize any business, the said act becameconstitutional again.Doctrine of Eclipse does not apply to Post-Constitutional law becausesuch a law is void ab initio.Overruled Deep Chand’s case and held that Doctrine of Eclipse isapplicable to non-citizens.Held that Doctrine of Eclipse to post-constitutional law is applicable tocitizens as well.The appellant had reached a settlement with IT dept. to pay 3 lac permonth for taxes that he owed under IT act. However, later that act wasdetermined to be unconstitutional. So he challenged the settlement. ITdept argued that he had waived his right by reaching a settlement.SC held that, unlike USA, Indian constitution does not follow Doctrineof Waiver. Fundamental rights are an obligation imposed upon thestate by the constitution. It is the court’s duty to enforce them.SC held that constitutional amendments do not fall under “laws” asmeant in art 13. It held that “Law” in art 13 means rules andregulations made under ordinary legislative powers and notamendments made under constitutional powers. Thus, Constitutionthth(24 Amendment Act) Act 1971 by which the 4 clause was added toart 13 was valid. Art 13(4) says, “Nothing in this article shall apply toany amendment of the constitution made under art 368.”Fundamental rights areagainst State.Art 12What is State.Art 13Judicial ReviewArt 13Art 13Doctrine of Severability.Art 13Doctrine of EclipseArt 13Doctrine of EclipseArt 13Doctrine of EclipseArt 13Doctrine of EclipseArt 13Doctrine of WaiverArt 13Meaning of “law”.Equality and Classification (See Compensatory Discrimination)Protection of Life and Personal LibertyA K Gopalan vs. State of MadrasSC AIR 1950A communist leader was detained under Preventive Detention Act,1950.1. Fundamental Rights are not absolute.2. Rights in Part III are mutually exclusive and that liberty in Art 191 of 26Art 14/19/21

and 21 are different things. (Overruled in Menaka Gandhi)Held that “law” means state made law and not jus naturale(principles of natural justice).Rejected that “procedure established by law” is same as “dueprocess of law” of the US constitution.Held that 21 protects against loss of personal physical liberty and19 deals with unreasonable restrictions on specific freedoms.3.4.5.Kharak Singh vs. State of UPSC AIR 1963Satwant Singh vs. Asst. PassportOfficerSC AIR 1967Govind vs. State of MPSC AIR 1975Menaka Gandhi vs. Union of IndiaSC AIR 1978UP Police performed domiciliary visits to make sure that he was athome in the nights. This was challenged. SC held the following.1. Personal liberty is not confined only to bodily restraint orconfinement in prisons but includes all those things through whichlife is enjoyed.2. Personal Liberty means much more that mere animal existence.3. Art 19 gives some of the freedoms required to enjoy personalliberty, while art 21 constitutes the rest.4. Since there was no law which could justify domiciliary visits, theywere held to be an unauthorized intrusion into a person’s life andwere held to be in violation of art 21.Right to travel abroad.Domiciliary visits were held valid because there was a law and so hadthe force of law.Passport was confiscated without providing any reason.Art 21Art 21Art 21Art 14, 21.Prior to this case, Art 21 guaranteed protection against arbitrary actiononly of executive and not from legislative action. After this case:A person can be deprived of life and personal liberty only if1. There is a law.2. The law must provide a procedure.3. The procedure is just, fair, and reasonable.4. The procedure must satisfy Art 14.Important Points1.2.3.4.5.Fundamental rights represent the values cherished by peoplesince Vedic ages and are calculated to provide dignity tohuman beings and to create conditions that enable a humanbeing to develop his personality to fullest extent. (J Bhagvati)Provisions of Part III should be given widest possibleinterpretation.Rights in Part III are not mutually exclusive but form a singlescheme.Laws under Art 21 must satisfy the test of reasonability underArt 14 and also stand the test of Art 19.SC has accepted that “law” should be reasonable law and notjust an enacted law. To be fair and just, it should follow theprinciples of natural justice. Thus, even if “due process oflaw” is not explicitly mentioned, the effect is same.Although Art 21 uses negative words, it has a positive dimension aswell. Thus, it does not just mean right to mere existence but a right tolive with human dignity.Compensation for violation of Art 21.thMH Hoskot vs. State of Mah.SC AIR 1978Hussainara Khatun vs. State ofBiharSC AIR 1979Olga Tellis vs. BMC(Pavement Dweller’s case)SC AIR 1986Paramand Katara vs. U of ISC AIR 198944 amendment, Emergency, and Art 21. Art 21 cannot be suspendedon presidential order under art 359.Right to free legal aid.Art 21Right to speedy trial.Art 21Right to livelihood.Art 21Right to health and medical assistance.Art 212 of 26

Subhas Kumar vs. State of BihSC AIR 1991Mohini Jain vs. State of Kar.(Capitation fee case)SC AIR 1992Chameli Singh vs. State of UPSC AIR 1996PUCL vs. Union of India(Telephone Tapping case)SC AIR 1997Murli Deora vs. Union of IndiaSC AIR 2002re Noise PollutionSC AIR 2005Right to pollution free air and water.Art 21Right to educationArt 21Right to shelter.Art 21Right to privacy.Art 21Ban on smoking in public places.Art 21Right to freedom from noise.Art 21Freedom of Speech and ExpressionRomesh Thaper vs. State ofMadrasSC AIR 1959Romesh Thaper was the publisher of Cross Roads, a left leaningpaper, critical of Govt. State of Madras banned its entry and circulationin Madras on the grounds of public safety.SC held freedom of circulation is covered under freedom of speechand that public safety is out of scope of Art 19 (2).stAfter this, in Constitution 1 Amendment, Art 19 (2) was amended toinclude public order, security of state, incitement of offence as groundsfor restricting the freedom of speech and expression.Art 19 (1) (a)Art 19 (2)Freedom of Speech andExpressionPrabhu Dutt vs. U of ISC AIR 1982Association for DemocraticReforms vs. U of ISC AIR 2002LIC vs. Manubhai D ShahAIR SC 1992People have right to know news and functioning of the govt.Art 19 (1)People have right to know about the assets, liabilities, wealth,education of the candidate before voting.Art 19 (1)Manubhai wrote an article in LIC's magazine about the problems withLIC that affected policy holders.LIC published a response to that but did not give a chance to publish arejoinder. SC held that LIC being a State as per Art 12, must publishhis response. It also held that it does not mean every body has a rightto publish in a magazine and this right should be determined on acase by case basis.Commercial adverts are protected under freedom of speech.Art 19 (1)Tata Press Ltd. vs. MTNLSC SCC 1995Ministry of I& B vs. CABSC AIR 1995CPI (M) vs. Bharat KumarSC AIR 1998Ranjit Udeshi vs. State of Mah.SC AIR 1965Hamdard Dawakhana vs. U of ISC AIR 1960Art 19(1)SC has held that one has the right to publicize his expression as well.A game of cricket is an expression and the organizers have a right topropagate it every where in the world. So Doordarshan must provideits up linking facilities to CAB for transmitting the signals out ofcountry. Art 19 (2) does not allow restrictions on 19 (1) (a) on thegrounds of creating monopoly of the govt.Art 19(1)Bundhs are illegal.Art 19 (1)Bookseller banned for selling obscene books.Art 19 (1)Obnoxious and Fraudulent advertising is not protected.Art 19 (1)Secularism/Minority RightsSR Bommai vs. Union of IndiaSC AIR 1994SC held that secularism is a basic feature of the constitution. Indiansecularism is different from American secularism.Santosh Kumar vs. Ministry of HRDSC AIR 1995Church of God vs. KKRMC Welfareassoc.SC AIR 1999Aruna Roy vs. Union of IndiaSC AIR 2002Rev Stainislaus vs. State of MPSC AIR 1977Teaching of Sanskrit language is not anti-secular because it is themother of all Aryan languages.Noise pollution in the name of religion not allowed.Study based on all religions in school is not anti-secular. Must keeps”sarva dhrama samabhav” and not “sarva dharma abhav”.Forcible conversions not allowed.3 of 26Art 25-28

Javed vs. State of HaryanaSC AIR 2003Md Hanif Quareshi vs. State ofBiharSC AIR 1958Ashutosh Lahiri vs. State of WBSC AIR 1995State of Bombay vs. VarasuBapamaliSC AIR 1953DAV College, Jullundher vs. Stateof PunjabSC AIR 1971St. Xavier’s College vs. State ofGujaratSC AIR 1974Two children norm not a violation of art 25.Ban on cow slaughter does not violate art 25 because cow slaughter isnot an essential part of Islam.Exemption on cow slaughter on Bakarid day invalid because it is notan essential to the religion.An act that banned bigamy held valid because bigamy is not anessential part of Hinduism.Guru Nanak Univ directed the state to make provision for study andresearch on life and teachings of Guru Nanak. This was challenge onthe ground that it violates Art 28.SC held that it did not violate because the study was only academicand did not amount to religious instruction or promotion of any religion.Art 28.Relation between Art 29(1) and 30(1). SC held the following fourdistinctions:29(1)30(1)Gives right to all citizensGives right to minorities tohaving a distinct language,establish and administerscript, or culture, to preserveeducational institutions.the same.Provides right to all citizens.Provides right to minorities.Deals only with language, script, Deals with language andand culture.religion.Concerned with right toGives right to establish andconserve language, script, andmanage educational institutionsculture.of their choice to minorities.Does not necessarily meanDeals only with establishmenteducational institutes.and administration ofeducational institutions.Art 29, 30In this landmark case, some sections of Gujarat Univ. Act imposedseveral restrictions that affected its managerial rights on the college.SC held that provisions that effectively take control of themanagement of an educational institution are not applicable tominority institutions.JudiciaryUnion of India vs. SankalchandShethSC 1977S P Gupta vs. Union of India(Judges Transfer Case – I)AIR SC 1982SC Advocate on Record Assoc. vs.Union of IndiaSCC 1993re Presidential Reference 1999V Ramaswamy’s Impeachment1990Sankalchand Seth was transferred from one HC to another withoutCJ’s approval, under art 222, which says, “(1) The President may,after consultation with the Chief Justice of India, transfer a Judge fromone High Court to any other High Court.”In this case, SC held that consultation does not mean that the adviseof the constitutional functionaries is binding on the President and thata Judge can be transferred without his consent.SC unanimously with the meaning of the term “consultation” asdetermined in Sankalchand’s case and held that only ground on whichthe decision of the govt. regarding appointment and transfer of aJudge can be challenged is that if it is based on mala fide or irrelevantconsideration.This hugely affected the independence of the judiciary because thecontrol over appointed of the judges went completely to the executivebranch.Overruled SP Gupta case and held the following:Judges of SC and HCs must be appointed in consultation with CJI.The consultation must be effective. The opinion of CJI has primacy.The CJI must be appointed on the basis of seniorityThe President requested the opinion of the SC when the CJI gave hisrecommendation without consulting other judges of the SC.SC held that recommendation given without consulting other judges isnot binding on the President.V Ramaswamy was in financial irregularities.Proceedings were started but did not succeed because congressabstained from voting.4 of 26Art 222Independence of theJudiciaryArt 124(2)Independence of theJudiciaryArt 124(2)Independence of theJudiciaryArt 124(2)Independence of theJudiciaryArt 124(4)Removal of a Judge ofSC or HC

C Ravi Chandran Iyer vs. A MBhattacharjeeSCC 1995Delhi Judicial Services Assoc. vs.State of GujaratSCC 1991Ayodhya CaseMohd. Aslam vs. Union of IndiaSCC 1994State of Karnataka vs. Union ofIndiaSCJ 1978Union of India vs. State of Raj.SCC 1984Krishnaswamy vs. Gov. General-inCouncilAIR 1947Madan Gopal vs. State of OrrisaAIR 1956Kiranmal vs. DynanobaAIR 1983Siddheshwar Ganguly vs. State ofW.B.AIR 1958Ramakant Rai vs. Madan RaiAIR 2004Pritam Singh vs. StateAIR 1950Union Carbide Corp. vs. Union ofIndiaSCC 1991Union of India vs. ShiromaniGurudwara Prabandhak CommitteeSCC 1986Bengal Immunity Co. vs. State ofBiharAIR 1955re Kerala Education Bill1953re Special Courts Bill1979Bar Assoc. tried to pressurize the judge to resign for alleged financialmisbehavior. SC held that any such coercion is invalid, affects theindependence of the judiciary and amounts to contempt court. Onlyprocedure to remove a judge is given in 124(4) and (5).It further held that if the misconduct of a judge falls short ofimpeachment, an action could be taken in-house within the judiciary.Further, only the CJI, being the first among the judges can be theprime mover of such an action.5 policemen were held guilty of criminal contempt of court forharassing and handcuffing the Chief Judicial Magistrate in Nadiad,Gujarat.SC held that it has power to punish for contempt of itself as well asany subordinate court under art 129.UP CM Kalyan Singh was convicted of contempt of court for failing tokeep his promise of not letting any construction on disputed land.Center appointed a commission of inquiry under Commissions ofInquiry Act 1952 to investigate the charges of corruption, nepotism,etc. against the CM of Karnataka. State of Karnataka filed a suite inSC under original jurisdiction charging that Center does not have thepower to appoint such a commission because it is in the sphere ofState legislative and executive powers and that it violates the federalcharacter of the constitution.Center contended that since the commission is against the CMpersonally and not against the State of Kar, the suit cannot be broughtunder Art 131, which prohibits personal suites.SC held that the suit is maintainable because the State acts throughits ministers and any action against the ministers affects the State. SoState has sufficient interest in the case to file the suite.It further held that the commission does not violate the federalcharacter of the center-state relations.SC held that State’s suit against Union of India to recover damagesunder railways act 1890 is not a dispute falling under 131 andtherefore not maintainable. Such ordinary commercial disputes are notunder SC’s jurisdiction.If there is difference of opinion among HCs and there is no directdecision of SC on that point, it is a substantial question of law topermit appeal in SC.The pecuniary(monetory) value of the subject matter of the case is ofno importance. There may be matters which cannot be measured interms of money but the decision may still have far reaching impact.High Court dismissed the appeal by one word order “Dismissal”. SCheld that to be invalid and remitted to HC for disposal on merits.In case SC has given guidelines to be followed by HC to givecertificates. HC cannot issue a certificate under 134-A on merequestion of fact. The case must involve a substantial question of law.Private party can file appeal under Art 136 challenging acquittal. SCcannot refrain from doing its duty just because a private party and notthe state has not appealed against the acquittal by HC.SC explained how the discretionary power under Art 136 will be usedby SC in this case:Since the power is exceptional and very wide, it must be usedsparingly and in exceptional circumstances. Beyond this it is notpossible to fetter the exercise of this power by any set formula or rule.SC held that under Art 136, the court has inherent power to transferthe cases from District court of Bhopal and dispose of the same. SChas wide powers under 142 and the court can do so if it is necessaryto do complete justice.SC may transfer the case from one HC to another if it feels that thecase cannot be dealt with fairly in one HC due to exceptionalcircumstances.SC held that there is nothing in the constitution that prevents SC fromdeparting from its previous decision. If SC finds that a previousjudgment made a erroneous, it should admit it and not to perpetuate it.SC interpreted the word "may" in clause 1 as it is not bound to give itsopinion. If it has a good reason, it may refuse to express its opinion.SC held that opinions given by it under this jurisdiction are binding onall courts in the country.5 of 26Art 124(4)Removal of a Judge ofSC or HCArt 129Court of RecordArt 129Court of RecordArt 131Original Jurisdiction ofSCArt 131Original Jurisdiction ofSCArt 132Appellate Juris – ConstArt 132Appellate Juris – CivilArt 132Appellate Juris – CivilArt 134Appellate Juris – Crim.Art 136Special Leave to AppealArt 136Special Leave to AppealArt 136Special Leave to AppealArt 139 AArt 141Decision of SC is bindingon all courts.Art 143Advisory JurisArt 143Advisory Juris

re Cauvery Disputes TribunalAyodhya Dispute and advisoryopinion1994L Chandra Kumar vs. Unon of IndiaSC AIR 1997ABSK Sangh(Rly) vs. Union ofIndiaAIR 1991Chairman, Rlwy Board vs.Chandrima DasAIR 2000Basappa vs. NagappaAIR SC 1954Union of India vs. RK SharmaAIR 2001Mohan Pandey Vs. Usha RaniRajgariaSCC 1992Election Commision vs. VenkataRaoAIR 1975ONGC vs. Utpal Kumar BasuSCC 1994Vellaswamy vs. IG Police MadrasAIR 1982SC held that the ordinance passed by the State of Kar. to not followthe order of the tribunal to release water to TN, is unconstitutional.SC refused to express its opinion on whether a temple existed on thedisputed location because it was superfluous, unnecessary, andfavors a particular religion.Power of HC over legislative action is basic feature of the constitutionand cannot be curtailed by constitutional amendment.Unregistered union has a right to file a writ petition for a publicgrievance.Art 143Advisory JurisArt 143Advisory JurisArt 226Writ Juris. of HC.A

Equality and Classification (See Compensatory Discrimination) Protection of Life and Personal Liberty A K Gopalan vs. State of Madras SC AIR 1950 A communist leader was detained under Preventive Detention Act, 1950. 1. Fundamental Rights are not absolute. 2. Rights in Part III are mutually exclusive and that liberty in Art 19 Art 14/19/21