Showing posts with label Democracy. Show all posts
Showing posts with label Democracy. Show all posts

Introduction

 The world is experiencing a time which nobody could have ever wondered in their lives. The human population is facing the tremendous effects of pandemic every single day with skyrocketing active cases and deaths all around. The Covid-19 waves have not just impacted the regular lives of individuals, but also the legal dimensions of the nations. 

The media and other news providers have contended a crucial role in spreading information and data regarding COVID-19 and associated measures, consequence of which the consumption of news has drastically increased. At constant time, the pandemic has paved way to amplify the pre-existing challenges of expression and speech in the society. The success of efforts to contain and curb the disaster of the virus is basically enthusiasm about the access to correct, reliable and timely information by all the public authorities, medical and media people. A free open ended debate in this regard is crucial for the understanding of public so that they can form educated choices, limit rumours, recognise misinformation and foster solidarity  in measures taken to deal with the crisis[1].

Expression and media are an eminent pillars for the smooth functioning of a democracy. However, this very reality has been undermined in the recent year with regard to Covid-19 pandemic and the situation around. This sort of unprecedented crisis has eventually led to an intense social debate on various issues ranging from healthcare, medicine to economics, education and politics. In such situations, digital media, print and broadcast take an important position in the society, therefore, it is of utmost significance to provide these key workers i.e. journalists and media persons, a distinguishing power to collect  data  and publish all the relevant data and information, while working under the bracket of highest standards of ethics .However, this sort of lockdown has some obligatory restrictions on a large array of activities, extending additionally to the media i.e. the limitations on freedom to move that has resulted in making it tougher for journalists to do their duty of moving around and gathering information and measures to combat misinformation have impacted on what the media can publish[2].

The present situation of  pandemic has undoubtedly given a wide arena for censorship of speech and expression of the individuals by the government and concerned authorities. China’s battle against the Coronavirus eruption, that resulted in not solely China getting affected, but also the world paying a high worth for it is a significant issue[3].This study aims at analyzing the impact of covid-19 on the fundamental right of human beings that accounts for freedom of speech and expression enshrined in the Constitution.

Freedom of Expression

The constitution of India is the most prominent document of the nation. It is not just the document that mentions the roles of Executive, legislature and judiciary But also basic documents that set the right obligations freedom available to the citizens of India.These rights and privileges were considered as inalienable Provision for a human life by the constitution makers, therefore, article 19(1)(a) of the Constitution of India specifies that, “All citizens shall have the right to freedom of speech and expression”. However, article 19(2) expressly states that, “ Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

 After reading both the provisions in a combined manner, the results are such each one of the voters of the state are entitled to the very crucial freedom of speech and expression however solely to the extent that it doesn't violate the restrictions that are set down on the same freedom[4].The above mentioned freedom is vastly vital and therefore the same is discovered considering that media that has been considered the “Fourth Pillar of Democracy” has in much sense been equipped with this very freedom that even major sorts of media , such as electronic and print media have evolved as a culture of social media by being surrounded with these freedoms while also acting their duty[5].

Information and its Access in the times of Covid-19

During such times of pandemic prevailing all over the World, access to general and pandemic related information becomes very crucial. To meet the demand for checking the veracity of  information, governments in most member states hold regular press conferences. Governments additionally created websites that provided recorded data  of infection rates, the quantity of tests conducted and fatalities. This sort of record is a dynamic record which keeps on changing from time to time. Such conferences are a great way to telecast the actual and verified information, however, in some countries, these conferences have used it in a negative manner using them as opportunities to create announcements but at the same time not giving full scope to the journalists and media people an opportunity to question the data and information posted or the steps taken as a measure by the authorities. For example, in Hungary, Spain and Serbia, journalists have recorded the complains that they had to submit questions well in advance and were reviewed by the government and then were pre- selected.

Some countries objected to the publication of any data or information related to COVID-19 from non verified sources. For example- In Armenia there were regulations implemented threatening a €1,000 fine if there was any publication from any non official sources[6].

Restrictions on Fake News: Medium of Panic

Several countries in the current situation have faced the concern of panic and related anxiety among the individuals as a result of circulation of “fake news” or mis-information.In the year of February 2020, World Health Organisation announced that this pandemic was also accompanied by an “infodemic” of mis- information that had the potential to mislead people and create a scope of risk to public action and health.A prominent question raised here is “how” and “who” decides what is false or mis-information.It is argued that any sort of provisions implemented legally that impose restrictions and sanctions on right to freedom of expression should be “clear” and “foreseeable”. Moreover, due to the extreme times of emergency, it's been stressed that  emergency situations bring an exceptions to freedom of expression by making it narrowly construed and subject to parliamentary control to make sure that the free flow of data is not too obstructed. More importantly, the restrictions of any sort on the fundamental right of freedom of expression or any circulation of information should be imposed only for the time it is essential for .Restrictions imposed throughout crisis things,  prompt government action which is needed to some extent, based on the limited information and are stressed to stop presumably devastating damage, ought to be reviewed frequently and in light of the evolving situation. This situation presents a question of whether or not these sanctions or restrictions that were implemented in the period of pandemic are consistent with the principles of necessity and proportionality or not.

It is extremely crucial to understand how the crisis has aggravated the already existing challenges to free expression and speech in society. Restrictions seem to have been implemented in those states where this freedom of speech was declining day by day already. There are many nations that have witnessed a concerning variety of incidents of violence against these media journalists. Moreover, while on one hand, the demand for good quality news has somewhat increased, the flexibility of the media to exhibit the data has been supremely decreased. The financial and economic effects of the pandemic has meant a collapse of advertising and different financial gain, striking all media however particularly little and local outlets, a number of that are forced to close[7].

Conclusion

In order to push independent media and create an atmosphere that fosters analysis, reasoning, opinions over polarizing content coming to the surface , protecting the right of freedom of expression should be maintained. To ensure that our right to speak and express ourselves is protected in these hard times, the sole approach needed in this time is to create a link between freedom of free speech and expression (Article 19 (1)(a)) and the set restrictions under Article 19(2) so that preservation of civil liberties and rights of individuals is upheld[8].

 

 

BY- SWASTIKA SAXENA




[2]Peter Noorlander, COVID AND FREE SPEECH, https://rm.coe.int/covid-and-free-speech-en/1680a03f3a,(visited on 29th April,2021).

[4] A STUDY ON FREEDOM OF SPEECH & EXPRESSION WITH REFERENCE TO SOCIAL & ELECTRONIC MEDIA,http://dspace.hmlibrary.ac.in:8080/jspui/bitstream/123456789/1401/19/19-Synopsis.pdf , (visited on 29th April,2021).

[5] Ibid.

[7] Ibid.

[8] Supra n 3.

 Introduction

Our legal system is based on a very well-known principle i.e. Presumption of Innocence. This basically means until and unless an accused is proven guilty he/she will not be regarded as a Criminal and will be called under trial. 

This is what the concept of “Innocent until Proven Guilty” is. Keeping all these things in mind, even an arrested person is provided with certain legal rights and cannot be taken away under any circumstances. This small piece of writing gives a brief overview of the rights enjoyed by an arrested person. So here it is.

Right to know the Grounds of arrest

Just suppose an individual has committed a crime and has been arrested by Police without any arrest warrant. So here that individual has full right to know on what grounds his/her arrest is made. This right is clearly mentioned in Section 50(1) of CrPC. 1973, which states, “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.”

Now if that arrest has been made by any Subordinate Officer under the provisions of Section 55 of Cr. P.C. 1973, so before making an arrest the officer must show order to an accused which mentions that his Senior officer has designated him to make an arrest. In case that Subordinate officer fails to show that order then that arrest will be regarded as an illegal arrest.

If an arrest is made using an Arrest warrant even then the arrested person is entitled to know the grounds on which arrest is made. In the language of Section 75 of CrPC., “The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.”

Even the Supreme law of the land i.e. Constitution confers this right as a fundamental right. Article 22(1) states, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”

These all provisions make it very clear that every arrested person has a right to know the grounds on which an arrest is made.

Right against Self – Incrimination (Right to Silence)

It is obvious that when a person is arrested he/she is going to be interrogated by Police in Police custody and by Prosecution in the court of law. It completely depends on an arrested person whether to hold silent or answer those questions at the time of interrogation. His silence cannot be used against him he can either be innocent or guilty. In short, he has all the right to keep silent and not answer those questions. The same has been stated in Article 20(3) of the Constitution of India, “No person accused of any offense shall be compelled to be a witness against himself.”

Right to be informed regarding The Right to be released on Bail

It is not necessary that all accused are well aware of the law and are aware that the crime done by them is bailable. So it is the duty of the Police to inform the accused that he/she can apply for bail. This has been clearly mentioned in Section 50(2) of CrPC which states “Where a Police Officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”
In simple words, Accused is entitled to know whether the crime committed by him/her is bailable or not.

Right to be taken before a Magistrate without any Delay

No matter whether an arrest is made with or without a warrant, it is the duty of the concerned Police Officer to take that accused before a magistrate without any unnecessary delay. No accused can be detained for more than 24 hours without any Judicial Scrutiny. This has been clearly mentioned in Section 56 and 76 of the Criminal Procedure Code, 1973.

Right to consult a Legal Practitioner

A trial is not possible without a proper representation of the accused and proper representation is not possible without an Advocate. So our legal system gives the right to the accused to hire any legal practitioner of his/her choice. This has been enshrined in Article 22(1) of the Indian Constitution which states, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”The same has been provided in Section 50(3) of the CrPC.

Right to free legal aid

Not everyone has their pockets full of bucks to hire their lawyer. Keeping all these things in mind there is a provision for providing free legal aid and can also be provided before the court trial begins. This free legal aid is provided by Legal Service Authority.

Right to a fair and speedy trial

Ideas of equality before law find a designated place in both in Preamble and Fundamental Right (Article 14) enshrined in our Constitution. It means that all individuals are equal in the court of law and are entitled to have a fair trial. CrPC says that there should be an open court trial in order to have a fair trial. However, there are certain exceptions where in-camera proceedings are held.

As far as the Speedy trial is concerned, it is necessary that investigation must be done as early as possible. If the accused has done a crime in which the maximum punishment is of 2 years of Imprisonment then it is necessary that the investigation must be completed within 6 months however the same can be extended at the will of the Magistrate.

Right to be examined medically

If an arrested person is of the notion that he/she should be medically examined then it is his/her right to be examined by a medical practitioner. This has been provided in Section 54(1) of CrPC which states, “When any person is arrested, he shall be examined by a medical officer in the service of central or state government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made.” These are some legal rights that are provided to each and every arrested person. However, there are many who in the darkness of illiteracy or unawareness fails to enjoy these rights.
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 INTRODUCTION

“Dissent is the safety valve of democracy. If dissent is not allowed, it might lead to a burst of the pressure cooker of democracy”, the Supreme Court said in a recent case. Labeling dissent as anti-national behavior strikes at the core of democracy.
Dissent can be defined as the expression of opinions that are against the policies of the government. It can also be termed as a sentiment of non-agreement with the existing government. It plays a vital role not only in our moral education but also in the democracy of the nation. The success of a democracy depends upon the right of every citizen to criticize the acts of a government freely. Hence, it is necessary for a country like India to protect its right to dissent, but the history is evident that the government has always tried to curb dissent in the name of nationalism. This article is going to shed light on some of the laws that have been used by the governments to curb dissent.

THE INDIAN SEDITION LAW:

Section 124(A) of the Indian Penal Code deals with the sedition law in India. It was introduced by the British government in the colonial era of 1870 especially to control the growing revolt against the English government. It defines sedition as an act (by words, either spoken or written, or by signs, or by visible representation, or otherwise), brings or attempts to bring hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India. But according to this law, it is subjective as to what can be used to incite hatred or contempt or disaffection towards the government. Though freedom of speech can never be absolute and should be regulated in order to maintain public order, it should never be misused. It is quite possible that acts of healthy disagreement or criticism of the government might be termed as sedition as the government would not like to risk even a single vote just for the sake of an ideal democracy. This possibility has often been used to curb dissent in the past.

Kedar Nath Singh vs. State of Bihar (1962) -

This landmark case was the first-ever case of sedition in the post-independent era. Kedar Nath Singh, a member of the Forward Communist Party in Bihar had commented on the Congress Party that was in power during that time. His extreme speech had angered the government and thus a case of sedition was filed against him in the Supreme Court of India. The court said that there lies a huge difference between inciting disaffection to the country through a seditious act aimed against the government and a mere criticism against the party in power.

Dr. Binayak Sen vs. State of Chhattisgarh (2007) -

This case emerged at a time when there were growing insurgencies in the state of Chhatisgarh. Dr. Binayak, who was a famous human rights activist other than a paediatrician, was charged under sedition stating that he had passed on letters from a Maoist prisoner outside the jail. But Dr. Sen, in his defence, said that he had been charged only because of his heavy criticism against a vigilante group that killed tribals and villagers to clear lands that were rich in iron and bauxite ores in the name of Maoist activities. In fact, he was under constant surveillance during his hours of treatment of the prisoners. Salwa Judum, the group he referred to, was supported by the state government of Chhatisgarh who contested that the group was only trying to reduce the number rising number of insurgencies in the state.

Dr. Sen was arrested but in 2008 was awarded the Jonathan Mann Award for global health and human rights. This led to worldwide criticism against the government of Chhatisgarh. Later, 22 Nobel laureates wrote to the Indian Government requesting to release Dr. Sen so that he could receive the award he deserved well.

Shreya Singhal vs. Union of India (2012) -

This is one of the landmark cases that shook the entire country. In 2012, after the death of Bala Saheb Thackrey, a college student from Mumbai posted on Facebook criticizing the shutdown of the city to mark the death of the Shiv Sena leader. One of her friends had just liked her post. Later, both the girls were charged under the sedition law along with Section 66A of the IT Act.

Shreya Singhal, a law student, had filed a petition to scrap down Section 66A of the IT Act which sought to be in violation of Article 19 (1) of the Constitution of India. The Supreme Court struck down the law, and stated that no person can be tried for sedition for the sake of unpopular speech which is not actually offensive or does not incite violence or disaffection in any case. There’s a difference between ‘advocacy’ and ‘incitement’ and one cannot be tried for mere advocacy.

THE UNLAWFUL ACTIVITIES PREVENTION ACT (UAPA):

The Unlawful Activities Prevention Act was brought into force in 1967 after the recommendation of the Committee on National Integration and Regionalism in 1963. This law barred unlawful activities and associations in India. Its main objective was to obtain power for coping with activities directed against the integrity and sovereignty of the nation. But even after several amendments in the law, it still remains subjective as to what constitutes ‘unlawful activity’. The use of words, ‘like to threaten’ or ‘likely to strike terror’ can easily be misused as a weapon in the hands of the government to curb dissent. Further, the pre-charge sheet time given to the police to investigate a case, failing which a default bail can be granted, is extended to 180 days.
There have been many such cases in the recent past where the UAPA has been misused. Activists like G.N. Saibaba, Sudhir Dhawale, Mahesh Raut, Shoma Sen, Rona Wilson, Sudha Bharadwaj, Varavara Rao, Vernon Gonsalves, Gautam Navlakha, and Akhil Gogoi are some of the names that have been arrested under this draconian law just because they had the guts to raise their voice against the injustice done by the government.

 Umar Khalid -

This is one very famous name that has been tagged as a terrorist even without any single evidence proving him to be so. A student activist from JNU, had been earlier arrested on the charges of sedition when he along with his batch-mates raised slogans criticizing the government. In the recent event, where he has been booked under UAPA, he has also been charged with IPC Sections 302 (murder) 153A (promoting enmity between different groups on grounds of religion, etc.), 124A (sedition). According to the police, he along with his friends played a major role in inciting the Delhi riots of February 2020. 

He had been accused of planning the riot and giving provocative speeches against the government. But according to him, he was only leading a peaceful protest against NRC and CAA. While those criticizing his arrest argue that dissenting or protesting peacefully against the government does not amount to causing “disaffection against India”, the police have contested that the riots were a result of a conspiracy to “overthrow the government machinery in the state”.
This shows how time and again the draconian laws which were made with an objective to control any such behaviour that provokes disaffection against the law, has instead been used as a weapon to curb dissent of the citizens.

While delivering the 15th P D memorial lecture, Justice Chandrachud said, “A legitimate government committed to deliberate dialogue does not seek to restrict political contestation but welcomes it…A state committed to the rule of law ensures that the state apparatus is not employed to curb legitimate and peaceful protest but to create spaces conducive for deliberation”. This entirely sums up the purpose of the right to dissent in a democratic nation. Even though the governments in the past as well as present, have been seen to use the laws in every possible way to curb dissent, we can only hope that a change will be made in such affairs in the future, or rather we can be the change that we want to see. The decision is ours.

REFERENCE:

1. https://indianexpress.com/article/india/justice-d-y-chandrachud-caa-protest-democracy-anti-national-6269831/
2. https://blogs.lse.ac.uk/southasia/2019/10/04/long-read-the-art-of-dissolving-dissent-indias-sedition-law-as-an-instrument-to-regulate-public-opinion/
 3. https://homegrown.co.in/article/47919/5-landmark-cases-that-changed-the-way-we-look-at-indias-sedition-law
4. https://www.livelaw.in/news-updates/prof-gn-sai-baba-bail-rejected-bombay-hc-143836
7. https://thewire.in/caste/meet-the-five-arrested-in-the-bhima-koregaon-case
8. https://thewire.in/law/unwilling-to-give-delhi-high-court-details-of-navlakhas-hasty-transfer-nia-gets-sc-stay
8. https://indianexpress.com/article/explained/umar-khalid-uapa-in-delhi-riots-arrest-jnu-pota-tada-6597705/
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Author: Smruti Das



 Introduction

The Kesavananda Bharati v. State of Kerala also known as the Kesavananda Bharati case is the most important landmark judgment of the Supreme Court of India. This case outlined the Basic Structure Doctrine of our Indian Constitution. It is also called the case which saved India’s Democracy. The case proceedings and arguments of this case were heard for 68 days and more than 100 cases were sidelined. Moreover, to understand the actual difference between right and wrong, the constitution of more than 70 countries was compared. This is a case with a judgment of 703 long pages. Every individual related to law either it is a law student, lawyer, advocate, judge, law faculty, etc. will have knowledge about this case.

Background

After independence, each and every state was trying to rebuild its social and economic conditions. The constitution was also formulated which gave fundamental rights to the citizens of the country. Henceforth it was realized by all Indians that “Equality” is a fundamental right and they shall have it.

In the pre-independence and pre-constitutional era, the resources and the means of production were only limited to certain people. Eventually, it was understood by the government and the citizens that the income inequality and concentration of wealth only to certain people is inapposite. Thus, in order to change the existing system of income inequality, all the states began to make changes in their existing laws and other systems.

The state government of Kerala also undertook a similar approach to reduce income inequality in its state. The Kerala government enacted the Kerala Land Reforms Act, 1963 for rebuilding the social and economic conditions of the state. This Act was applicable to the Zamindari system, Land ownership, and the Tenancy laws.

The Kerala Land Reforms Act, 1963 imposed various restrictions on the ownership of land by every individual. It laid down provisions relating to how much land can be owned by an individual which was restrictive towards the property rights of a citizen.

Under the usage of this Act, the Kerala government acquires and takes over the land of Edneer Mutt of Kasargod district. Due to this takeover by the Kerala government, the income of Edneer Mutt was totally affected, and managing all the chores and daily works became a huge problem due to the deteriorating financial condition of the Mutt.

The head of Edneer Mutt, Shri Kesavananda Bharati challenged this land acquisition by the Kerala government and the case was represented in the Supreme Court by Nana Bhai Phalkivala.

The conflict between the Parliament and the Supreme Court on Power struggle.

At that time many other similar cases were filed and ongoing in the Supreme Court such as Bank Nationalisation Case (1970), Madhav Rao Scindia Case (1971), and Golaknath Case (1967). In all these cases including the Kesvananda Bharati case, it is evident that India’s two strongest bodies were struggling with powers namely, Parliament and Supreme Court.

On one hand, Parliament stated that under Article 368 it holds unlimited powers to amend the Indian Constitution.

On the other hand, Supreme Court did not agree with this statement given by the Parliament and imposed various restrictions on its amending power of the Constitution in the judgment of Golaknath v. State of Punjab. In the Golaknath case, there was a bench of 11 judges of the Supreme Court. The question in the picture was that does parliament has unlimited powers to amend the constitution and change the fundamental rights according to their will? The Supreme Court answered this question and imposed various restrictions on its amending power of the Constitution.

Again, the Parliament introduced 24th, 25th, and 29th Amendment Act to remove these restrictions imposed by the Supreme Court and regain its powers.
24th Amendment

The 24th Amendment Act gives the Parliament the powers to amend the fundamental rights. It states that the Parliament has powers to amend any provisions of the Indian Constitution.
25th Amendment

The 25th Amendment Act stated that restrictions can be imposed on the Right to Property and this right can be curtailed. It further stated that the government has the power to acquire private property for public use and the compensation to be given for such acquiring and take over will be decided by the Parliament and not the Court.
29th Amendment

The 29th Amendment Act transferred the Land Reforms Act under the 9th schedule. The 9th schedule is a special schedule because the laws which go under the 9th schedule cannot be questioned and the Court cannot review those laws. Thus, Land Reforms Act gained immunity after they were transferred under the Land Reforms Act.

Questions on the Kesavanada Bharati case

Can Parliament amend the Fundamental Rights of the Constitution?

If yes, then to what extent Parliament can amend the Constitution, and which provisions it can amend in the Constitution?

Facts of the case

In March 1970, Shri Kesavanada Bharati filed a writ petition in the Supreme Court of India that opposed and challenged the Kerala Land Reforms Act, 1963 as it imposed restrictions on the citizens’ “Right to Property”. It also challenged the 3 constitutional amendments namely, 24th, 25th, and 29th. The petition further stated that the Kerala Land Reforms Act, 1963 is violative of his fundamental rights under Article 14, Article 19(1)(f), Article 25, and Article 26 of the Constitution of India, 1949.
He stated that to own and manage land is a fundamental right of a citizen and such fundamental rights shall be protected.

Petitioner’s argument

Firstly, the petitioner argued that the powers given to the Parliament under Article 368 of the Constitution are not absolute power but limited power. Thus, Parliament cannot change the provisions of the Constitution according to its own will.
Secondly, the petitioner’s argued that the fundamental rights given in the Constitution are for the protection of the citizens such as Article 19(1)(f) which talks about the “Right to Property”. But the petitioner states that 24th and 25th Amendment Act via which Article 31C was inserted puts restrictions on the fundamental rights of the citizens and curtails their rights which is an inapposite Act.

Respondent’s argument

The respondents argued that the Parliament had absolute and unlimited power to amend the Indian Constitution. They further stated that every state has to better its social and economic conditions so in such a situation no restrictions should be imposed on the powers of the Parliament. Because their powers are restricted then they will never be able to fulfill the needs of society on a timely basis. Lastly, as per the respondent’s the Parliament had the right to impose restrictions on the fundamental rights of citizens such as Freedom of Speech and Expression, Freedom to Form Association, and Freedom of Religion.

Judgment

The judgment of this case was delivered by the largest bench in Indian history that is a bench of 13 judges of the Supreme Court and the judgment was in the ratio of 7:6.

Here, the judgment delivered in the case of Golaknath v. State of Punjab was overruled where it was held that Parliament cannot amend the fundamental rights.

Moreover, the 24th Amendment Act which states that states the Parliament has powers to amend any provisions of the Indian Constitution was held valid. It further stated that under Article 368 the Parliament holds absolute power to amend any provision of the Indian Constitution.

However, the Supreme Court further stated that although the Parliament has the power to amend any provision of the Constitution but only to an extent that it cannot interfere with the basic and essential features. This is called the “Basic Structure Doctrine”.

The Supreme Court also held the 25th and 29th Amendment Act as valid and also stated that if there is any such law which has been put under Schedule 9 but violates the basic feature of the Constitution then that laws can be judicially reviewed and challenged in the Court of law.

Thus, on 24th April 1973, this landmark judgment was delivered and introduced the concept of Basic Structure Doctrine. Although no exhaustive list was given stating the basic features of the Constitution. However, an indicative list was given that consists of the basic elements of the Constitution such features are Supremacy of the Constitution, Rule of Law, Separation of Powers, Judicial Review, Federalism, Secularism, Independence of the Judiciary, Sovereign, Democratic, Republic, Freedom and Dignity of the Individual, etc. The Supreme Court also stated that many more basic features can be added to this list in coming years. And, if an element is a basic feature or not is up to the Court’s discretion on a case by case basis.

Conclusion

Hence, this case is the most important case that saved India’s Democracy because in this case the Supreme Court used its creativity and introduced a Basic Structure Doctrine. Moreover, on one hand, it gave Parliament unlimited powers to amend the Indian Constitution, and on the other hand, it restricted its powers to the extent of interference with the basic features of the Indian Constitution. This case guarded the democracy of India for many upcoming years in the future.

References

https://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-democracy/article12209702.ece
https://blog.finology.in/constitutional-developments/doctrine-of-basic-structure#:~:text=A%20Case%20that%20saved%20Indian,vs%20State%20of%20Kerala%20case.&text=Kesavananda%20Bharti%20filed%20a%20petition,religious%20property%20under%20Article%2026
https://economictimes.indiatimes.com/news/politics-and-nation/kesavananda-bharati-petitioner-in-landmark-judgement-on-basic-structure-of-constitution-is-dead/articleshow/77962137.cms

AN OVERVIEW OF THE EVENTS THAT UNFOLDED

On account of what happened on the evening of 26th of January and the intensification of the farmer protests, a number of Twitter accounts became inaccessible in India, making it necessary for the general public to ponder as to why that happened. The accounts or handles that were blocked among many included those of the Caravan magazine, the Kisan Ekta morcha, and the actor Sushant Singh.

At first, it was ambiguous as to why Twitter blocked these seemingly genuine accounts or handles that only chronicled these protests, with the sole intention of letting the farmers' side be heard by the people of the country. It was unclear whether twitter did that because these handles didn’t adhere to its guidelines and terms of service or because they followed the government’s order to do so. After this move, the next thing that happened was a clear outrage from journalists, the media, fundamentalists, and liberals from all across the world, and they contended that shutting down social media handles amounted to a violation of the right to free speech and expression and expressing one’s opinions freely and democratically, after which the government was forced to clarify that it invoked section 69A of the information and technology act, and also ordered Twitter to block access to these accounts.

Section 69A of the Information and Technology act(IT act) grants the government of India the power to issue directions to intermediaries for blocking access or temporarily not granting access to any information that it considers prejudicial to, among other things, the sovereignty and integrity of India, national security and public order. Section 69A(3) envisages a jail sentence of up to seven years for intermediaries who fail to comply with the aforementioned rules.

Now the reason that apparently appeared was the usage of similar hashtags such as #modiplanningfarmergenocide which was deemed as a threat to public order, now the point in question that hereby arises is, authentic sources that provide true facts to the public such as the caravan magazine were never found to be using this or similarly any other such hashtags, then why was they denied access?

TWITTER’S RESPONSE

Twitter has on several accounts, made it apparent that it believes in freedom of speech internationally and that its users are considerably free to express their views and opinions through the medium of Twitter as their platform to do so. Considering the company’s ideology and the outburst followed by the blocking of access, it decided to restore the access of the handles whose access was temporarily blocked. This prompted a sharp reaction from the government of India that in turn prompted a non-compliance notice and potentially threatened to prosecute twitter’s officials specifically those that were ambassadors to India, for violating section 69A and not abiding by the rules. Days later a meeting between Twitter officials and the government settled to resolve the issue temporarily by entering into an uneasy truce.

On the 10th of February, Twitter through its own platform published a blog post that I believe indirectly and subtly was headed towards discussing the state of affairs of the laws that continuously are on a trend to be used to curb freedom of speech and expression, therefore, contending that the current government’s own actions in directing twitter to withhold access to the accounts of journalists, activists, and politicians, violates Indian law thereby violating the provisions that guarantee freedom of speech and expression.

VIOLATION OF KEY RIGHTS

There are a number of problems with section 69A of the IT act, and as to how it's legally structured.
The first is that it makes it a convenient, easy, and almost costless option for the government to slap censorship on ideas and information freely being published and accessed.

The second is that instead of having to go to the court and prove the violation of the law prima facie, the government has an alternate and a better option to simply direct the intermediaries to either block content or temporarily make it inaccessible to the general public, thereby placing the burden of going to the court and filing a case, upon the end-users. Basically, instead of the government giving an alibi or proof of any wrongful conduct by the users, the users now hold the burden to prove themselves in the court of law.

The third as it stands to reason is that, the easier it is to censor speech through laws that conveniently allow the government to do so, the more likely it is that the government- or any government for that matter, will in most possibilities resort to that option. Furthermore, the confidentiality requirement implies that the user will not and cannot even know, based on what actions was the government prompted to take action, thereby being in absolutely no position to challenge the order passed against him/her, legally.

This rings a bell back to the landmark judgment passed in the case of Maneka Gandhi vs Union of India. The court broadened the scope of article 21, which is the right to life and personal liberty, by ordering the Airport Authority of India(AAI) to remove the confidentiality clause and specify reasons as to why it confiscated the plaintiff’s passport. This judgment thereby bought transparency into the process, by making the authorities answerable for their actions. Similar judgments should be adopted for the users whose right to free speech is snatched away from them by the government, and yes the word being used here refers to snatching away because the confidentiality provision makes it inaccessible to know the legitimate reasons behind these actions taken by the govt.

Looking at the circumstances that prevail today, it becomes of substantial importance for the judiciary to step in and create accountability while also doing so in a manner that is responsive to the executive. Unfortunately, while the judgment of the famous Shreya Singhal case was being passed along with striking down section 66A of the IT Act, the scope of section 69A and the blocking rules were also in question before the Supreme Court, but it missed the opportunity to guide the law in a free speech direction as it had with section 66A. Without engaging in any brief analysis of the point in question the supreme court largely endorsed the legal regime, as it stood.
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INTRODUCTION

Freedom of speech, often classified as a First generation right, is one of the most cherished constitutional rights in liberal democracies. Free speech,being the foundation stone to liberal values, has been ingrained in most of the contemporary constitutions as well as in International Human Rights Treaties. 
“If freedom of speech is taken away, then dumb and silent we may be led like sheep to the slaughter” -George Washington[i] 

Free speech or freedom of speech can be defined as the privilege of a person or community to express the ideas and opinions without any censorship or legal sanction. As commented by Rachel Jolley[ii], “Free Speech has always been important throughout history because it has been used to fight for change”.Freedom of speech has been recognized as a human right under various International forums such as in Article-19 of the UDHR[iii] and Article- 19 of International Human Rights law in the ICCPR[iv]. India, being a democratic nation, since visualizes free speech as a bulwark of an effective democracy also guarantees freedom of speech as one of its six freedoms under Art-19 of the Constitution as a primal and preeminent right of an individual.

Democratic nations in order to strengthen their foundation guaranteed free speech to all but it was viewed by people only as a mere right to be used, so people over the years have been exploiting the right.The notion of free speech has always been a topic of intense contestation in the contemporary world. Since the advent of social structures and primitive democracies, the conflict between a person’s free speech and the laws and norms curbing it has always been a perennial issue. Since Individual’s autonomy is the foundation of this freedom, any reasonable restrictions may be imposed for its effective exercise and equal availability to all the citizens. In light of this, Indian constitution has laid down reasonable restrictions to curb the misuse of such rights. One such controversial restrictions, whose relevancy has always been in question is SEDITION

WHAT IS SEDITION?

Section124-A[v] of the IPC defines the offence of ‘Sedition’ as – “ Whoever by words, either spoken or written or by signs or by visible representation or otherwise brings or attempts to bring into hatred or contempt , or exists or attempts to bring into hatred or contempt , or excites or attempts to excite disaffection towards the government established law shall be punished with imprisonment for life, to which fine may be added or with imprisonment which may extend to 3 years to which fine may be added or with imprisonment which may extend to 3 years to which fine may be added or with a fine.” Alongwith the section- 124 A of IPC, the provision of sedition has also been led down in:
i. Section-95[vi] of the Code of Criminal Procedure, 1973.
ii. (Sec-2(o) iii) of The Unlawful Activities (Prevention) Act, 1967.
iii. The Seditious Meetings Act, 1911.

HISTORY OF SEDITION

This sedition law was originally a creation of the colonial government in 1870 to stifle any voices of dissent at that time. The Britishers after enacting the sedition law, used it to suppress the Indian freedom struggle by charging people like M.K Gandhi and Bal Gangadhar Tilak. In the Bal Gangadhar Tilak case, the sedition law was amended which gave a wide interpretation of the word – ‘Disaffection’ as – it includes, hatred, enmity, dislike, hostility, contempt and every form of ill will of the government.There were certain cases which even invoked the law more. The first among them was in 1891, the trial of editor of the newspaper, ‘Bangobasi’, named Jogendra Chandra Bose. Throughout this time, Sedition law was always a conflicted law, its constitutionality was always a burning issue. It was prior independence but in the Post-Independenceperiod of India, the sedition law became a,matter of Dispute. But the case of Kedar Nath Singh[vii], gave the law a different pedestal, and upheld the constitutional validity of Sec- 124A. 

MISUSE OF THE SUBTLE CONTRARIETY

Freedom of Speech, considered as the mother of all liberties has been provided to the people to strengthen the democratic structure. But everything seems to be worthy when used in a limit, used in a bona-fide manner. These terms – ‘Freedom of Speech, and ‘Sedition’ have such a thin line disparity, that these terms have often been misinterpreted. This would be very clear by the JNU incident where Kanhaiya Kumar[viii], a student at JNU University was, arrested for voicing anti-national slogans but in actuality, they were organizing a march for celebrating Afzal Guru’s death anniversary. In-spite of highlighting in the State of Assam Case[ix] that Speech and Words amounting to “incitement to imminent action can only be criminalised and mere using of words that are distasteful do not constitute sedition”, citizens of India have not been able to understand the true essence of Sedition law.

Even after the Supreme Court highlighted criterion to attract Sedition, still there have arisen a spate of cases where the police authorities or government have slapped the charge of sedition against persons who have voiced their criticism not with an intention to use violence or create disorder. This has given rise to a legitquery,whether the Government has some powers to control our speech, in whatever way they want, in the name of protecting feelings of people or safeguarding national security? Answer to this question is yes. However, our Indian Constitution hasn’t empowered, not even the government to misuse the power, and completely cowdown the right to free speech. It is only the misinterpretation of sedition law that has created a negative view regarding it but in the real sense, everything is dependent upon the fact- how it is used.

The law of Sedition has been a lot useful in:
i. Combating anti-national, successionist and terrorist elements.
ii. Giving protection to the elected government from attempts using illegal means.
iii. If contempt of court invites penal action, contempt of government should also attract punishment.

Even in the judgement of the federal court, in the Niharendu Dutt Majumdar case[x], it was held that, “Sedition is not made an offence in order to minister to the wounded vanity of the government, but because government and law ceases to be obeyed and then only anarchy can follow”, it was argued that every dissent or criticism shouldn’t amount to sedition.

Time and again, it has been made clear that the sedition law would be attracted only when the act has the capacity to threaten the very existence of the society and create chaos. There has been series of cases where the court has tried to give a clear picture of the fact that where a free speech can’t be overshadowed by the sedition, which opinions of the people is not punishable in the name of sedition. Allahabad High Court in the case of Arun Jaithley v. State of U.P[xi]., viewed that a writer’s critique on any Judgement of the Supreme Court on National Judicial Appointment, is only a mere criticism, so it shouldn’t be charged under Sedition Law.

CONCLUSION

At present, it is very necessary to get clarified that, in a democracy, criticism is an essential feature. For the proper functioning of democracy, citizen must indulge in constructive debates and point out the loopholes of the government policies. Voicing of dissent or discontent is a valuable consequence which must be exercised.It is to be kept in mind that words if said with an intention to create pernicious tendency and incite a large public, creating threat, then only it would amount to sedition. I t is to be always kept in mind that any speech which has the effect of creating conjectural or remote danger to the public, can only be punished with sedition, as held by the court in the case of Jagjivan Ram[xii]. Citizens do have the freedom to express their thought even though they are not in consonance with the government policies, without thinking that whether they would get charged with sedition.

In the present scenario, it has become imperative to narrow the interpretation of Section 124A so as to limit its arbitrary or frivolous use, or else this section will always have a “chilling effect” on sec 19(1). Section 124A and 19(1) is always to be taken hand in hand to maintain peace and tranquillity in our democratic society. 


[i] George Washington, “Newburg Address”, March 15, 1783; 1st President of the United States of America.
[ii]Rachel Jolley, Editor of the Index on Censorship Magazine.
[iii]Article 19 of The Universal Declaration of Human Rights, 1948.
[iv] Article 19 of The United Nations International Covenant of Civil and Political Rights, 1966.
[v]Section 124-A of the Indian Penal Code, 1860.
[vi]Section 95 of the Code of Criminal Procedure, 1973.
[vii]Kedar Nath Singh v. State of Bihar: 1962 AIR SC 955. [viii]Kanhaiya Kumar v. State of Delhi:
[ix]Indra Das v. State of Assam: (2011) 3 SCC 380.
[x]NiharenduDutt Majumdar v. King-Emperor: 1942 FCR 38.
[xi]Arun Jaitley v. State of U.P.,2016 (1) ADJ 76
[xii] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574. 
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Author: Srestha Das, University Law College, Bhubaneswar, Odisha.


What does contempt mean?

It’s the “disregard for something that should be considered”, so ‘contempt’ is a word for any harsh, strong disrespectful act against anybody. Legally, the word contempt is used as an offence of being “disrespectful of a court of law and its officers”; it is termed as ‘contempt of court’. Looking at the meanings of contempt, not all ‘views’, ‘comments’ or ‘statements’ come under its definition. So what comes under contempt of court? 
“Ethics Is, Knowing The Difference Between What You Have A Right To Do And What Is Right To Do” ~Potter Stewart 

Provisions of Contempt of court:

There are two kinds of contempt of court; civil contempt and criminal contempt:
Civil contempt means any disrespect or disobedience to any judgement, decree, direction, order, writ or other processes of a court or breach of any undertaking given by the court.[i]Contempt of court act 1971. Criminal contempt means any publication or action or act that scandalises or tends to scandalise any court authority or interferes or tend to interfere into any judicial proceeding or obstructs or tend to obstruct the administration of justice in any other manner. Contempt of court act 1971.

Thus contempt of court can only be concluded when one;[ii]

1. Scandalises a judge.
2. Creates disbelief among the people on the administration of justice.
3. Questioning the authority of the judge.
4. Creates disrespect towards the court.
5. Scandalously attacks the judge.

Along with what constitutes as contempt, there are provisions that provide when the case is not contempt of court: Contempt of court act 1971.

1. Innocent publication of matter.
2. Fair and accurate report of the proceeding.
3. Fair criticism of judicial act not contempt.
4. Complain against presiding officers of subordinate courts.

According to the constitution of India, all the citizens have the right to free speech and expression. The constitution has also laid down certain provision that restricts the right to freedom of speech in order to maintain peace and harmony and in order to protect the right of the people. Freedom of expression gives the people in Indian the right to express their views openly, by printing, writing or cartoons etc.

Is Contempt of court a restriction on freedom of speech?

The courts have the authority to charge someone of contempt of court when they disrespect the court according to the provision. As the provision says constructive or fair criticism cannot be contempt of court, but the decision whether the statement was constructive or not, lies in the hand of the judiciary, which sometimes directly affects the fundamental rights of speech.

Case Analysis:

Restrictions on the right to speech and expression are very important, but there are certain cases where the use of contempt was not satisfactory. In a recent contempt of court case against Rachita Taneja a cartoonist, who drew a cartoon regarding Arnab Goswami’s bail and the Supreme Court, Attorney Gerneral KK Venugopal said that those cartoons affected the mindset of the people and the belief on the justice system. But this contempt of court was highly criticised by the people of the country. Why is it being criticised? Because merely a cartoon, which can be a constructive criticism, and which was also given after the case was over in the court, which did not interfere into the court’s proceeding, was still considered to be scandalous towards the court. The question, is comedy or joke scandalous against the court? Can the fundamental right to expression and speech be denied for criticising? The debate still remains as the Supreme Court felt that, such kind of mockery tend to create disrespect of the court among the people. AG Venugopal 'Fed Up'

Activist lawyer ‘Prasahant Bhushan’ said that contempt of court is ‘very dangerous’ and shall be removed. In the case of Prashant Bhushan, he tweeted against the chief justice of India, and the working of the chief justices targeting on how they are not providing the people justice that they need. For which he was given the contempt of court order. Earlier too Prashant Bhushan had written and said things criticising the supreme court judges, which was also taken into account. But Prashant Bhushan said that he was apologetic for the tweets against CJI Arvind bobde and also apologised about it publically in tweeter, but he said he will not regret his other comments on the judges because that were just mere constructive and fair comment. This case was also highly discouraged by many lawyers. Prashant Bhushan also said that the concept of contempt of court is very complex. AG Venugopal 'Fed Up'

But along with the criticism to the cases there were also certain people who found cases like of Swara Bhaskar where she commented that the Supreme Court hasn’t functioned constitutionality in the case of Babri masjid case as contempt of court, though the petition was declined. Also there are endless contempt of court cases against many journalists. So is there a procedure of criticism that the Supreme Court is trying to implement?

The concept of freedom of speech and contempt of court is hard to go parallel. What is right to say and what is not right to say is not defined. The words like “scandalous actions”, “derogatory statements”, “offending statements” etc leaves us with a wide spectrum and confusion as to what to include? And who will decide what includes? The main solution lies within the balance. Sometimes people tend to speak their mind but they do it in a wrong way. Also there are times where constructive criticism is considered scandalous the right to order “contempt” is misused, that’s where the chaos occurs. Right to offend comes under right to speech and expression, but restriction on creating hatred is also important.

Conclusion

The debate as to what comes under contempt is still a burning issue. It’s true that the provision in the book and in the practical situation give out different meanings. The main thing is the fundamental pillar (Right to speech) and the trust of the people in the judiciary system needs to be achieved at the same time. There is a need of a proper definition\law about “scandalising” the court.

Introduction

India is a land of cultures. From Kashmir to Kanyakumari and Kutch to Arunachal Pradesh, various religions glorify its tradition. She is known around the globe for its religious practices and customs. It is the oldest civilization preached for its values and beliefs. There are 28 states and 8 Union Territories having different religions living in harmony and imitating a beautiful picture of unity in diversity. Unlike western countries where whole nation is seen as a single feather India is a bird with myriad feathers. The religious diversity is the soul of the country and introduction of Uniform Civil Code would be an encroachment to it in all spirits. The different states displaying different cultures eventually fused through a common bond to showcase a national cultural identity.
"India is the cradle of the human race, the birthplace of human speech, the mother of history, the grandmother of legend, and the great grandmother of tradition. Our most valuable and most artistic materials in the history of man are treasured up in India only!" 
- Mark Twain 

A move to ignite fire

A place where religion varies every 50kms, introducing a uniform code is a daunting task. It will bring an outrageous uproar disturbing the peace and tranquility in the country. Religion is a sensitive subject and connected with the faith and belief of people. Any action against one’s religion is an outbreak on sentiments and feelings associated with the religious dogmas. It may seem to be an audacious and reassuring move but it will lead to a wave of war and conflicts among various religions. A country where there are frequent revolts between the Hindus and Muslims UCC will ignite the spark and lead to a wildfire burning away the brotherhood amongst individuals of various religious groups.

Attack on Secularism

India is a secular country with a number of traditions, cultures, customs and beliefs deep enrooted. The introduction of UCC is an attack on the secularism by imposing a set of rules and barring from practicing the religious practices of one’s own choice. It is also against the Article 25 of India Constitution providing Freedom of Religion. The founding fathers while laying down the provisions of the constitution had in mind the regional diversity of the country and preserved its diverse nature. The UCC oversteps the principles and erodes the secularism, one of the pillars of Indian Constitution.

Conflict over Inclusion and Exclusion

There is a conflict over the matter as to what laws to be incorporated and what to be omitted. It is a challenging task to decide as to which practice of marriage custom should be included and what practices should not be allowed. This will lead to a debate as to which religion should be prioritized leading to a tug of war between various religions. It is hard to make people forgo their customs and beliefs and adopt UCC.
There has to be a set of laws accept by all the communities. There should not be imposition of majority beliefs on minority as it will be do an irreversible harm to the minority religion. The minority should not be neglected on the whims and fancies of the majority to bring their religion in the realms.

Introduction of Gender neutral laws

The major conflict with the personal laws lies in the discriminating laws for women. Therefore, there lies a need to introduce gender neutral laws rather than implanting Uniform Civil Code. The ill practices which puts women on a lower pedestrian with men should be abolished leading to an equal society. This in turn will also help to achieve the constitutional goal under Article 14 i.e. Equality before law.

It is a long and hard way to go. Since ancient times the women has been treated inferior to men. With passage of time there has been changes in various personal laws to empower women such as The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was enacted to remove gender discriminatory provisions in the Hindu Succession Act, 1956. Under the amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son.

Infringement of Personal Laws

The right guaranteed by Constitution under Article 25 would be infringed with the introduction of UCC. This is the very reason the draft bill for the law is under debate and discussions and not been implemented yet. There has to be an approach so that no community is discouraged but there is no comprehendible way in which this can be done.

Comparative Analysis

There are various countries around the globe those have overcome the hurdle and successfully implemented Uniform Civil Code. The reason behind the success lies in the fact that they had no diverse cultural background as in the case of India. The countries with Uniform Civil code are either western or Islamic countries have less or no religious diversity. In Islamic countries the religion which is preached is Islam which makes it easy for the state to implement the UCC and carry out its function smoothly. Also, in France the Uniform Civil Code exists since Napoleon’s time and reforms were brought to make it gender neutral.

Therefore, it is clear from the discussion that such code cannot be implemented in India where the unity lies in the diversity. There will be riots and conflicts and people will have no acceptability for a code which prohibits them for practicing their generations old customs and practices. It will shake the religious conscience of the countrymen, a country where religion is given utmost importance. India gives so much importance to religion that name of god is preached before starting any new venture or onset of new adventure.

Conclusion

The need of UCC arose from the humanitarian ground and the need of codification to resolve the conflicts between various personal laws. The social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. Despite all the arguments in favour of UCC, the discussion above made it quite clear that there should not be such code. It will take away the religious freedom and crush the spirit of our national diversity.

The current institutions need to be modernized, democratized and strengthened for this change. Sincere efforts towards women empowerment have to be taken for women of all religions. There are various points of arguments on both the sides of the debate but such move should not be a sheer political motive to fulfill the desire of those with power at the stake of minority. The need for an umbrella legislation has not yet emerged in India.
The steps should be taken to strengthen the personal laws and fetching in the picture gender neutral laws for the betterment and upliftment of society leading to a progressive nation. 
Author: Gunjan Agarwal, Jaipur National University 

Introduction

India which is the largest democracy of the world is governed by a written constitution. The Constitution of India is the highest law of the land and in accordance to which other laws are set. India being a secular, democratic and republic nation hold its people most important and thus through the constitution it guarantees certain rights to its citizens to protect them from the arbitrary acts of the legislature.

Article 21 of the Indian Constitution lays down the one of most important fundamental right which guarantees right to life and personal liberty to all persons, citizen or alien. But a person can be deprived of the same by a procedure established by a law provided the procedure must be fair, just and reasonable. However in the beginning there has been a lots of confusion over the scope of the Article 21 and in the meaning of the phrase ‘personal liberty’. These confusion were later cleared by the Supreme Court by landing series of judgements in different cases.

For the first time in the case of A.K Gopalan v. Union of India[1], the meaning of the word “personal liberty” came up for consideration of the Supreme Court. In this case A.K. Gopalan, a Communist Leader was detained under Preventive Detention Act 1950. The validity of the said act was challenged on the ground that it is violative of his right to freedom of movement under Article 19(1) (d) which is the very essence of the Personal Liberty guaranteed under Article 21 of the Indian Constitution. It was also argued that “procedure established by law” in Article 21 has the same meaning as the “due process of law” of the American Constitution, therefore similar to American ‘due process’ it also includes principles of natural justice. 

Rejecting the contentions of the petitioner, Supreme Court agreed to definition given by Prof. Dicey and held that the ‘personal liberty’ in the Article 21 means nothing more than the liberty of the physical body, i.e., freedom from arrest and detention without the authority of law. The majority took the view that Article 19 and 21 deal with different aspects of ‘liberty’. Article 21is guarantee against deprivation of personal liberty while Article 19 affords protection against unreasonable restrictions on the right of movement. Supreme Court interpreted the ‘law’ as the state made law and the plea that the term ‘law’ in Article 21 include jus natural, i.e., principles of natural law.

Preceding to this in the case of Kharak Singh v. State of U.P.[2], rejecting its previous view in of Gopalan Case Supreme Court held that the expression ‘Life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence. In this case, Kharak Singh, the petitioner has been charged in a dacoity case but he has been acquitted due to lack evidence. But he has been kept under the police surveillance under U.P. Police Regulation because police opened a history sheet for him. Police surveillance included secret picketing of his house by the police, domiciliary visits at night and verification of his movements and activities.

 It was held that domiciliary visits of the policemen and unauthorised intrusion into petitioner’s home is the violation of the personal liberty of the individual, and hence the Police Regulation authorising domiciliary visits was plainly violative of Article 21. However this view was later declined by the Supreme Court in the case of Govind v. State of M.P.[3], and held that these regulations were framed under Police Act and therefore it has force of law and thus they are valid.

With his decisions in the Gopalan, Kharak Singh and Govind’s case Supreme Court tried to give new dimension to the scope and meaning to the word ‘personal liberty’ in Article 21, but the major development in the field has been seen in the case of Maneka Gandhi v. Union of India[4]. In this case the passport of the petitioner was confiscated by the Central Government under Section 10(3)(c) of the Passport Act, 1967. The act authorized the government to do so if it was necessary in the interest of the general public and through the same the central government has declined to furnish the reason for its decision. The petitioner challenged the validity of the aid order and the provision of the following grounds:
1. That the section 10 (3) (c) is violative of article 14 as it does not provide for right to hear to the passport holder before the passport was impounded.
2. That the section 10 (3) (c) is violative of article 21 as it does not prescribe ‘procedure within the meaning of the article 21.
3. That section 10 (3) (c) is violative of article 19 (1) (a) and (g) since it permitted imposition of the restrictions not provided in the Article 19 (2) & (6).

The Supreme Court held that the order of the Government for impounding the passport of the petitioner was unreasonable and was not able to be justified. Delivering the majority judgement Justice Bhagwati held that the procedure envisaged in Article 21 should be fair and reasonable. This principle of reasonableness which is an essential element of Article 14, has suffused article 14 ubiquitously. 

Also the procedure envisaged in article 21 must answer the test of reasonableness in order to be in conformity with article 14. The power conferred upon the passport authority to impound passport under section 10 (3) (c) of the act is a quasi-judicial power and therefore the rules of natural justice will applicable to it. Therefore the order withholding the reason for impounding the passport was not only in breach of statutory provision but also violates the principle of natural justice embodied in the maxim audi alteram partem.
With his decision in the Meneka Gandhi case the Supreme Court has finally laid down following test for the Article 21:
1. There must be a valid law.
2. The law must provide a procedure which must be fair, reasonable and just.
3. The law must satisfy the requirement of Article 14 & 17. 

References     

[1] 1950 SC 27
[2] AIR 1963 SC 1295
[3] AIR 1975 SC 1379
[4] AIR 1978 SC 597