Contents 1.
Golaknath Golaknath v. State State of Punjab, Punjab, Natura Naturall justice, justice, Arbitrar Arbitrarines iness, s, Separatio Separation n of powers powers.............................4 .............................4
2.
In re !eru !ari "#$chan%e "#$chan%e of #$claves&.... #$claves&................... .............................. ............................. ............................. ............................................ ............................. .4
'.
Sa(ata Sa(ata v. v. State of )P, )P, *i%hts *i%hts of of +orest +orest wellers......... wellers........................ ............................. ............................. ........................................... ............................ 4
4.
Paschi( Paschi( !an%a !an%a -het a/oo a/oorr Sa(iti Sa(iti v. State of 0est 0est !en%al !en%al,, uties uties of the a(in a(inistra istration....... tion............... ........
.
-harak -harak Sin%h Sin%h v. v. State State of )P, )P, *i%ht *i%ht to to privac privac,, scope scope of survei surveillanc llancee b the the e$ecutiv e$ecutive........... e........... .......... ..
3.
unn v. Illinois, Illinois, re%ulatio re%ulation n of of busin business....... ess...................... ............................. ............................. ............................. ............................. .............................. ...............
.
#ntick #ntick v. 5arrin%to 5arrin%ton, n, rule of law..................... law.................................... .............................. ............................. ............................. .............................. ..........................3 ...........3
6.
0ilkes 0ilkes v. 0oos, oos, rule of law................... law.................................. ............................. ............................. .............................. ................................................ .................................
7.
Nanin Naninii Sunar Sunar v. State of 5hatti 5hattis%a s%arh, rh, control control over a(inist a(inistrat rative ive powers, powers, ele%ate ele%ate le%is le%islat lation ion,,
constitutionalit of e$tra constitutional boies............................................................................................ 18.
State State of ara arass v. 9G *ow *ow, a%nu( a%nu( :pus :pus on on freeo freeo( ( to for( for( associ associati ations ons...... .............. ................. ..................6 .........6
11. 11.
;a(at
12.
)SA v. v. Schenk, Schenk, 5lear an Present Present =an%er =an%er test....... test........... ......... .......... .......... .......... .......... .......... .......... ......... ......... .......... .............. .................. ...........6 ..6
1'.
)nion )nion 5arbie 5arbie v. )nion )nion of Inia, Inia, a(inistr a(inistrative ative powers powers an principles.... principles................... ....................................18 .....................18
14.
5haranlal 5haranlal Sahoo v. )nion )nion of Inia, Inia, powers powers of the the a(inist a(inistratio ration, n, relate relate to the union union carbie carbie case. ............................. ............................................ ............................. ............................. .............................. ............................. ............................. .............................. ............................. ....................... ......... 11
1.
>i((at >i((at ?al ?al Shah v. v. Police Police 5o((( 5o(((iss ission ioner er,, freeo( freeo( to to for( assoc associat iation ion,, for( asse( asse(bli blies........1 es........11 1
13.
Sarala Sarala u%al, u%al, for(ati for(ation on of a unifie unifie civil coe.... coe........ ......... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... ........... .............12 .......12
1. 1.
?il ?il @ho( @ho(as as v. )nio )nion n of Inia Inia,, jui juici cial al revie review w of acti action on of (e(be (e(bers rs of the a(in a(inis istr trat atio ion n or
e$ecutive.. e$ecutive................. ............................. ............................. ............................. ............................. .............................. ............................. ......................................................... ........................................... 12 16.
oha(( oha((a a Ah(e Ah(e -han -han v. Shah Shah !ano !ano !e%u(, !e%u(, )nifor )nifor( ( civil civil coe.... coe........ ......... .......... .......... .......... ............. ................1 ........12 2
17.
!alakotta !alakottaia ia v. )nion )nion of Inia, Inia, freeo( freeo( to for( associatio association.............. n............................. .............................. ............................ ............. 1'
28.
=even =evenra ra Appa Appa v. v. -arnat -arnataka aka S(all S(all Scare Scare Inus Inustri tries, es, freeo freeo( ( to for( asso associa ciatio tions...... ns............... ...............1' ......1'
21.
Shrea Shrea Sin%hal Sin%hal v. v. )nion )nion of of Inia Inia "referre "referre to )SA )SA v. Schenk Schenk an 0hitle 0hitle v. 5alifornia 5alifornia&, &, Principle Principle
of *easonable *easonableness ness............... .............................. ............................. ............................. ............................. ............................. .............................. ......................................... .......................... .... 1'
22.
0hitne 0hitne v. 5aliforni 5alifornia, a, freeo( freeo( of speech speech an e$pressio e$pression, n, also also see )S v. Schenk............... Schenk.........................14 ..........14
2'.
Air Inia v. Nar%is Nar%is eer/a, eer/a, =e
24.
P athur athur v. =elhi =elhi @ransp @ransport ort 5orporatio 5orporation, n, is
2.
9auo auoot ot 5ase< Inian Inian Airli Airlines nes :ffice :fficers rs Assoc Associat iation ion v. Inian Inian Airl Airline iness ?t, ?t, is
juriicali/ation.......... juriicali/ation.................... .................... ..................... ..................... .................... .................... .................... .................... ..................... ..................... .................... .................... .............. ....... ... 1 23.
Inra Inra Sawhne Sawhne v. )nion )nion of Inia, Inia, =e
2.
A- @hakur @hakur v. )nion )nion of Inia, Inia, =e
26.
@A Pai Pai +ouna +ounati tionv onv.. )nion of Inia, Inia, =e
27.
Nar(a Nar(aaa !achao !achao Anola Anolan, n, e
'8.
!ijoe !ijoe #((anu #((anuel el v. v. State State of -eral -erala, a, ri%ht ri%ht to re(a re(ain in silen silent t ri%ht ri%ht to to freeo freeo( ( of free free speech speech an an
e$pression e$pression.............. ............................. .............................. ............................. ............................. ............................. ............................. .............................. ............................. ............................. ............... 1 '1.
aneka aneka Ganh Ganhii v. )nion )nion of Inia, Inia, natural natural justic justice, e, separat separation ion of powers.. powers...... ........ ......... .......... .......... ............. ..............13 ......13
'2.
A- Gopalan Gopalan v. State State of aras, aras, a(inis a(inistra trativ tivee action, action, fairness. fairness..... ........ ......... .......... .......... .......... .......... ............ ................ ...........13 ..13
''.
?iversi%e ?iversi%e v. Anerson Anerson,, arbitra arbitrarine riness, ss, re li%ht li%ht theor theor,, arbitrari arbitrariness ness,, natural natural justice................. justice................. ....13
'4.
*i%e *i%e v. !alwin !alwin,, arbitr arbitrari arines ness, s, natural natural justic justice, e, re
'.
Naku Naku Ali Ali v. ;aaratne ;aaratne,, natural natural justice......... justice........................ .............................. ............................. ............................. ......................................17 .......................17
'3.
!ina Pani =evi v. State of :rissa, :rissa, natural natural justice......... justice........................ ............................. ............................. .....................................17 ......................17
'.
Sarjoo Sarjoo Prasa Prasa v. Genera Generall ana%e ana%er, r, natural natural justice. justice...... .......... .......... .......... .......... .......... ......... ......... .......... .......... .......... ............ ................ ...........17 ..17
'6.
A- -raipak -raipak v. )nion )nion of Inia, Inia, Natural Natural justice......... justice........................ .............................. ............................. ............................. ..........................17 ...........17
'7.
>iranath >iranath ishra ishra v. Principal Principal,, *ajenra *ajenra eical eical 5olle%e, 5olle%e, Natural Natural justice............. justice........................... .........................28 ...........28
48.
Achara Achara ;a%ishw ;a%ishwarana aranan n Ava Avahut hut v. Police Police 5o((iss 5o((issioner ioner,, ri%ht ri%ht to reli%ion reli%ion an an its its (ria (ria for(s. for(s. ............................. ............................................ ............................. ............................. .............................. ............................. ............................. .............................. ............................. ....................... ......... 28
41.
A= ;abal ;abalpu purr v. Shiva Shivakan kantt Shukla, Shukla, ri%h ri%htt to life, life, natural natural justi justice, ce, rule rule of law..... law.......... .............. ................. .............28 .....28
42.
Inira Inira Nehru Nehru Ganhi Ganhi v. *aj Narain, Narain, Separation Separation of Powers............... Powers.............................. ............................. ...............................21 .................21
4'.
P. Sa(ba(urth Sa(ba(urth v. State State of AP, AP, rule of law.................... law................................... ............................. ............................. ...................................21 ....................21
44.
So(raj So(raj v State State of >arana >arana,, rule rule of law..... law.......... .......... .......... ......... ......... .......... .......... .......... .......... .......... .......... ......... ......... .......... .............. .................22 ........22
4.
Sheela Sheela !arse v. State of aharashtra aharashtra,, rule rule of law, law, arbtrarine arbtrariness............ ss.......................... ............................. ............................ ............. 22
43.
State of P v. *a(shanker *a%huvanshi, rule of law, arbitrariness..............................................22
4.
*a( ;awaa -apur v. State of Punjab, Separation of Powers........................................................22
46.
In re =elhi ?aws Act, =ele%ate le%islation, separation of powers , a(inistrative action...........22
47.
;aantilal v. +N *ana, ele%ate le%islation...................................................................................24
8.
2G Sca(< P)5? v. )nion of Inia................................................................................................24
1.
+rancis 5oralie v. A(inistrator, )nion @erritor of =elhi............................................................24
2.
inerva ills v. )nion of Inia, a(inistrative action, %reen li%ht theor...................................24
'.
* v. ?e(on, freeo( of speech an e$pression.............................................................................24
4.
inerva @alkies v. State of -arnataka, AI* 1766 S5 4, a(inistrative action............................2
.
;a((u an -ash(ir State !oar of #ucation v. +ea/ Ara(o alik, AI* 2888 S5 18'6,
a(inistrative action.......................................................................................................................... ....... 2 3.
Superintenent of 5entral Prison v. *a( anohar ?ohia, freeo(e of speech an e$pression,
also see case of auto shanker..................................................................................................................... 2 .
!harat Alu(inu( ?i(ite 5o. "!A?5:& v. 0orkers )nion "=isinvest(ent&...............................23
6.
P athur v. =@5 "=isinvest(entB=ejuriicali/ation&................................................................23
7.
9auoot 5ase< Inian Airlines :fficers Association v. Inian Airlines ?t, "288& 18 S55 364
"=isinvest(entB=ejuriicali/ation&............................................................................................................23 38.
5hitralekha 5ase "=ereservation&..................................................................................................23
31.
#P *oappa v. State of @a(il Nau, octrine of arbtrariness.........................................................23
32.
ohenra Gill v. 5hief #lection 5o((issioner "0atershe< #lection&.........................................2
3'.
*o(esh @hapar v. State of aras, 178, freeo( of free speech an e$pression........................2
34.
Secretar of inistr of Infor(ation an !roacastin% v. 5ricket Association of 0est !en%al, S5
177, public propert, a(inistrative action..............................................................................................2 3.
* v. ?ancashire countr council, e$ p >uleston "A(ber ?i%ht @heor&.....................................2
1.
Golaknath v. State of Punjab, Natural justice, Arbitrariness, Separation of powers.
@he Parlia(ent cannot use Art.'36 to estro the 5onstitution. @he 1th 5onstitutional A(en(ent was challen%e. 11 ju%e bench. 3 (ajorit. @he (ajorit hel, overrulin% Shankari Prasad an SajjanSingh, that the +*s were not a(enable throu%h the constitutional a(enin% process set out in Article '36. @he 5ourt hel that law oppose arbitrariness. A(inistrative law believes in fairness in action. ?aw is there to protect the interest of the countr an preserve the past. With respect to Separation of Powers
@he 5onstitution brin%s into e$istence ifferent constitutional entities, na(el, the )nion, the State, an the )nion @erritories. It creates three (ajor instru(ents of powers, na(el, the ?e%islature, the #$ecutive an the ;uiciar. It e(arcates their jurisiction (inutel an e$pects the( to e$ercise their respective powers without oversteppin% their li(its. @he shoul function within the spheres allotte to the(. 2.
In re: eru ari !"#chan$e of "#claves%
5essation of lan fro( 0est !en%al to #ast Pakistan. @he powers of %iven to Parlia(ent to reor%ani/e States cannot be availe b it to cee an Inian territor to a forei%n countr. @he Supre(e 5ourt hel that Article ', broal state, Ceals with the internal ajust(ent inter se of the territories of the constituent States of the Inian )nionD. @he authorit of the Parlia(ent Eto i(inish the area of an StateD envisa%es takin% out a part of the area of a State an ain% it to another StateF the area i(inishe continues to be part of the Inian @erritor an it Eoes not conte(plate cession of national territor in favor of a forei%n countrD. @hus, Inian @erritor can be cee to a forei%n countr onl b enactin% a for(al a(en(ent of the 5onstitution uner Article '36 to (oif the 1 st Scheule of the 5onstitution. &.
Sa'ata v. State of (P, )i$hts of *orest +wellers
An NG: fro( >eraba file a PI? to protect tribal lan an natural resources an people also protecte b various Acts "See Article 244A&. It ealt with Scheule of the 5onstitution< protectin% the tribal people of the north
.
Paschi'an$a-heta/+oorSa'iti v. State of 0est en$al, +uties of the a+'inistration
A (a/oor while workin% fell own an was seriousl injure. >e was transferre fro( one %overn(ent hospital to another till he was a(itte to a private hospital where he was char%e ,888. A%%rieve, the (a/oor association file a petition to provie facilities in %overn(ent hospitals, @he S5 a%ain observe< “The Constitution envisages the establishment o a !elare State at the ederal level as !ell as the State level. "n a !elare State, the primary duty o the #overnment is to secure the !elare o the people.” 5itin% financial incapacit is not an e$cuse to escape the ut the state is boun to abie b. *i%ht to health an preserve ones life is a funa(ental ri%ht. +ailure to provie (eical assistance to the nee that approaches the( is a violation of article 21. @hus, the State is responsible to pa co(pensation for not proviin% (eical assistance. @he court also irecte the State to take steps to provie (eical facilities in %overn(ent hospitals. @he case state the e%alitarian nature of the state. .
-harak Sin$h v. State of (P, )i$ht to privac, scope of surveillance b the e#ecutive
In this case, the Supre(e 5ourt ha the occasion to consier the a(bit an scope of this ri%ht when the power of surveillance conferre on the police b the provisions of the ).P. Police *e%ulations ca(e to be challen%e as bein% violative of Articles 17"1&"& an Article 21 of the 5onstitution. @he 5ourt repelle the ar%u(ent of infrin%e(ent of freeo( %uarantee uner Article 17"1&"& of the 5onstitution, an the atte(pt to ascertain the (ove(ents of an iniviual was hel not to be an infrin%e(ent of an funa(ental ri%ht. @he (inorit ju%(ent, however, e(phasi/e the nee for reco%nition of such a ri%ht as it was an essential in%reient of personal libert.@he issentin% opinion of ;ustice Subba *ao was in favour of erivin% a Eri%ht to privacD fro( the funa(ental ri%ht %uarantee uner Article 21. 3.
unn v. Illinois, re$ulation of business
It was a )nite States Supre(e 5ourt case ealin% with corporate rates an a%riculture. @he $unn case opene the oor for states to re%ulate certain businesses within their borers, incluin% railroas, an was an i(portant case in the stru%%le for public re%ulation of private enterprise in post<5ivil 0ar A(erica. 5hief ;ustice 0aite ar%ue that the states (a re%ulate the use of private propert Hwhen such re%ulation beco(es necessar for the public %oo.H 0aite resurrecte a ?atin le%al octrine to support his view H0hen propert is affecte with a public interest, it ceases to be juris privati onl.H $unn was one of si$ cases, the so
e is not a ve%etable. >e has a (in, bo an soul, he shoul be %iven space for enhance(ent of his personalit.
4.
"ntick v. 5arrin$ton, rule of law
#ver (ans house is his own castle. It has eleterious effect if it ha(pers a persons phsical happiness an co(fort which is a violation of the ri%ht to privac. "this was followe in a case relate to Prianka Ganhi an her house in >arana&. It is a leain% case in #n%lish law establishin% the civil liberties of iniviuals an li(itin% the scope of e$ecutive power. @he case has also been influential in other co((on law jurisictions an was an i(portant (otivation for the +ourth A(en(ent to the )nite States 5onstitution. It is fa(ous for the ictu( of ?or 5a(en HIf it is law, it will be foun in our books. If it not to be foun there, it is not law.H Facts
:n 11 Nove(ber 132, the -in%s 5hief essen%er, Nathan 5arrin%ton, an three other -in%s (essen%ers, ;a(es 0atson, @ho(as Arran, an *obert !lack(ore, broke into the ho(e of the Grubalifa$, newl appointe Secretar of State for the Northern =epart(ent, Hto (ake strict an ili%ent search for . . . the author, or one concerne in the writin% of several weekl ver seitious papers intitle, The $onitor, or %ritish &reeholder H. #ntick sue the (essen%ers for trespassin% on his lan. Judgement
@he trial took place in 0est(inster >all presie over b ?or 5a(en, the 5hief ;ustice of the 5o((on Pleas. 5arrin%ton an his collea%ues clai(e that the acte on >alifa$s warrant, which %ave the( le%al authorit to search #nticks ho(eF the therefore coul not be liable for the tort. >owever, 5a(en hel that >alifa$ ha no ri%ht uner statute or uner preceent to issue such a warrant an therefore foun in #nticks favour. In the (ost fa(ous passa%e 5a(en state @he %reat en, for which (en entere into societ, was to secure their propert.
[2]
@hat ri%ht is preserve
nothin%F which is prove b ever eclaration in trespass, where the efenant is calle upon to answer fo >ence ?or 5a(en rule, as later beca(e viewe as a %eneral principle, that the state (a o nothin% but that which is e$pressl authorise b law, while the iniviual (a o anthin% but that which is forbien b law. Significance
@he ju%(ent establishe the li(its of e$ecutive power in #n%lish law the state can onl act lawfull in a (anner prescribe b statute or co((on law.
It was also part of the back%roun to the +ourth A(en(ent to the )nite States 5onstitution an was escribe b the Supre(e 5ourt of the )nite States as a H%reat ju%(ent, one of the lan(arks of #n%lish libert, one of the per(anent (onu(ents of the !ritish 5onstitution, Han a %uie to an unerstanin% of the +ourth A(en(ent. 6.
0ilkes v. 0oo+s, rule of law
0ilkes v. 0oo was a search an sei/ure case fro( the #n%lish 5ourt of 5o((on Pleas, 2 0ilson 28'F 7 #.*. 33. ?offt 1F 76 #.*. 467, that was ecie on =ece(ber 3, 13'. It provie (uch of the conceptual back%roun for what beca(e the +ourth A(en(ent in the !ill of *i%hts. 'ilkes v. 'ood was a suit for trespass that ;ohn 0ilkes brou%ht a%ainst *obert 0oo, the !ritish unersecretar of state, who ha assiste in the e$ecution of a search warrant at 0ilkess ho(e in ?onon. @he warrant was written in ver %eneral in nature. 7.
Nan+iniSun+ar v. State of 5hattis$arh, control over a+'inistrative powers, +ele$ate+ le$islation,
constitutionalit of e#tra constitutional bo+ies
State has beco(e a pillar of power. @he 5hattis%arh %overn(ent enacte a law in 288 Ethe chattis%arh police actD with a view to tackle the na$alite (ove(ent that authori/e the %overn(ent to create the Salwa;uu( b e(powerin% ouths uner 16 ears of a%e to fi%ht the na$alites that create a threat to the capitalist forces of 5hattis%arh. @he P an 2 others file a PI? challen%in% the constitutionalit of the Salwa;uu( because une(ploe unera%e ouths fro( villa%es were bein% recruite. @he court hel that it is a violation of Article 21, the appoint(ent of Salwa;uu( as unconstitutional an it was to be isbane i((eiatel. @wo i(portant cases a. (harak Singh v. State o )P "the IP5 case&< hel that the police re%ulations were unconstitutional an the act of police isturbin% the petitioner at o ti(es in the ni%ht an surveillance all his (ove(ents was a%ainst the constitution. b. &rancis Coralie v. )T o *elhi+ *i%ht to life oesnt (ean (ini(al ani(al e$istence. 18.
State of a+ras v. 9G )ow, a$nu' pus on free+o' to for' associations.
Section 1"2&"b&, 5ri(inal ?aw A(en(ent Act, 1786 as a(ene b the aras Act, 178 %ave wie iscretionar powers to the Stat %overn(ent to eclare an association as unlawful. @he 5ourt struck own this as unconstitutional because it allows the a(inistrative authorit to e$ercise this iscretion on subjective satisfaction without per(ittin% the %rouns to be juiciall teste. *easonable restriction on an %iven or%ani/ation will have to be clearl efine in the orer that int allow for(in% an association for proscribin% to continue an activit. @he State will have to specif the %rouns on which it issues a notification bannin% an for( of association relate activities.
11.
;a'at
Natural justice contents iel to chan%e with e$i%encies of ifferent situations an, therefore, o not appl in the sa(e (anner to situations which are not alike. @he are neither case in a ri%i (oul nor can the be put in a le%al strai%htjacket. @he are not i((utable an can be aapte, (oifie, an e$clue b statute, rules of the 5onstitutionF e$cept where such e$clusion is not char%e with the vice of unreasonableness an conseLuential voiness. @he S5 hel that the reLuire(ent of natural justice in a case of this kin "or%ani/ation has been eclare as ille%al& ha to be tailore to safe%uar public interest which (ust alwas wei%h over ever lesser interest. @he ri%hts to fro( an association are a funa(ental ri%ht an the freeo( of speech an e$pression is the (other of all ri%hts. 12.
(SA v. Schenk, 5lear an+ Present =an$er test
It is a )nite States Supre(e 5ourt ecision concernin% enforce(ent of the #spiona%e Act of 171 urin% 0orl 0ar I. A unani(ous Supre(e 5ourt, in a fa(ous opinion b ;ustice :liver 0enell >ol(es, ;r., conclue that efenants who istribute leaflets to raftol(es sai that e$pressions which in the circu(stances were intene to result in a cri(e, an pose a H clear an present an%er H of succeein%, coul be punishe. @he 5ourt continue to follow this reasonin% to uphol a series of convictions arisin% out of prosecutions urin% war ti(e, but >ol(es be%an to issent in the case of Abra(s v. )nite States, insistin% that the 5ourt ha eparte fro( the stanar he ha crafte for the(, an ha be%un to allow punish(ent for ieas. @he Hclear an present an%erH stanar re(ains the test of cri(inal prosecutions, but the 5ourt has set another line of preceents to %overn cases in which the constitutionalit of a statute is challen%e on its face. Background of the case
Schenck v. )nite States is the first in a line of Supre(e 5ourt 5ases efinin% the (oern unerstanin% of the +irst A(en(ent. Supre(e 5ourt ;ustice :liver 0enell >ol(es, ;r. wrote the often
an enlist(ent service, an convicte. 0hen a (ajorit of the 5ourt vote urin% their conference to affir( the conviction, >ol(es Luickl rafte an circulate a stron%l wore issentin% opinion *eal obstructions of the law, %ivin% real ai an co(fort to the ene(, I shoul have been %la to see punishe (ore su((aril an severel than the so(eti(es were. !ut I think that our intention to put out all our powers in ai of success in war shoul not hurr us into intolerance of opinions an speech that coul not be i(a%ine to o har(, althou%h oppose to our own. It is better for those who have unLuestione an al(ost unli(ite power in their hans to err on the sie of freeo(. [1] *ather than procee in the face of >ol(ess bitin% issent, 5hief ;ustice #war =ou%lass 0hite set the case asie an wor of the situation evientl reache the A(inistration, because the prosecution was abanone. 0hite then aske >ol(es to write the opinion for a unani(ous 5ourt in the ne$t case, one in which the coul a%ree, Schenck v. )nited States. >ol(es wrote that opinion, an wrote a%ain for a unani(ous court upholin% convictions in two (ore cases that sprin%, +rohwerk v. )nite States an =ebs v. )nite States, establishin% what re(ains the stanar for eciin% the constitutionalit of cri(inal convictions base on e$pressive behavior. >ol(es islike le%islativeol(es chan%e his (in an offere a ifferent view in his eLuall fa(ous issent in Abra(s v. )nite States. @he events leain% to the assi%n(ent of theSchenck opinion to >ol(es were iscovere when >ol(ess bio%rapher Shelon Novick unearthe the unpublishe !alt/er opinion a(on% >ol(ess papers at >arvar ?aw School. @he facts of the Schenck Case were as follows. 5harles Schenck an #li/abeth !aer were (e(bers of the #$ecutive 5o((ittee of the Socialist Part in Philaelphia, of which Schenck was General Secretar. @he e$ecutive co((ittee authori/e, an Schenck oversaw, printin% an (ailin% (ore than 1,888 leaflets to (en slate for conscription urin% 0orl 0ar I. @he leaflets ur%e (en not to sub(it to the raft, sain% H=o not sub(it to inti(iationH, HAssert our ri%htsH, HIf ou o not assert an support our ri%hts, ou are helpin% to en or ispara%e ri%hts which it is the sole(n ut of all citi/ens an resients of the )nite States to retain,H an ur%e (en not to co(pl with the raft on the %rouns that (ilitar conscription constitute involuntar servitue, which is prohibite b the @hirteenth A(en(ent After jur trials Schenck an !aer were convicte of violatin% Section ' of the #spiona%e Act of 171.M4 !oth efenants appeale to the )nite States Supre(e 5ourt, ar%uin% that their conviction, an the statute which purporte to authori/e it, were contrar to the +irst A(en(ent. @he relie heavil on the te$t of the +irst A(en(ent, an their clai( that the #spiona%e Act of 171 ha what toa one woul call a Hchillin% effectH on free iscussion of the war effort. [5] The Court's decision
@he 5ourt, in a unani(ous opinion written b ;ustice :liver 0enell >ol(es, ;r., hel that Schencks cri(inal conviction was constitutional. @he statute onl applie to successful obstructions of the raft, but co((on
prosecution for atte(pts that were an%erousl close to success. Atte(pts (ae b speech or writin% coul be punishe like other atte(pte cri(esF the +irst A(en(ent i not protect speech encoura%in% (en to resist inuction, because, Hwhen a nation is at war, (an thin%s that (i%ht be sai in ti(e of peace are such a hinrance to its effort that their utterance will not be enure so lon% as (en fi%ht, an that no 5ourt coul re%ar the( as protecte b an constitutional ri%ht.H[6] In other wors, the court hel, the circu(stances of warti(e allow %reater restrictions on free speech than woul be allowe urin% peaceti(e, if onl because new an %reater an%ers are present. @he opinions (ost fa(ous an (ost often Luote passa%e was this The most stringent protection o ree speech !ould not protect a man in alsely shouting ire in a theatre and causing a panic. ...- The uestion in every case is !hether the !ords used are used in such circumstance+s and are o such a nature as to create a clear and present danger that they !ill bring about the substantive evils that Congress has a right to prevent .[7] @he phrase Hshoutin% fire in a crowe theater H has since beco(e a popular (etaphor for an%ers or li(itations of free speech. 1&.
(nion 5arbi+e v. (nion of In+ia, a+'inistrative powers an+ principles
@he !hopal Gas tra%e case. In this, the whole event of the %as leak an its subseLuent evelop(ents were a co(plete breach of the principles as per the Inian A(inistrative ?aw. In this, the S5 Luote acbeth to the !hopal 9icti(s who ur%e that a settle(ent, which enies even a (oicu( of hearin% to the(, is le%all flawe b the ver jurispruence evelope b the Supre(e 5ourt. @heir ?orships sai, Cto o a %reat ri%ht after all, it is per(issible so(eti(es Cto o a little wron%. 1.
5haranlalSahoov. (nion of In+ia, powers of the a+'inistration, relate+ to the union carbi+e case
So on the (aterials available, the victi(s woul have to e$press their views. @he victi(s have not been able to show at all an other point or (aterial which woul %o to i(peach the valiit of the settle(ent. @herefore, in our opinion, thou%h settle(ent without notice is not Luite proper, on the (aterials so far available, we are of the opinion that justice has been one to the victi(s but justice has not appeare to have been one. In view of the (a%nitue of the (iser involve an the proble(s in this case, we are also of the opinion that the settin% asie of the settle(ent on this %roun in view of the facts an the circu(stances of this case keepin% the settle(ent in abeance an %ivin% notice to the victi(s for a post< ecisional hearin% woul not be in the ulti(ate interest of justice. It is true that not %ivin% notice was not proper because principles of natural justice are funa(ental in the constitutional set up of this countr. No (an or no (ans ri%ht shoul be affecte without an opportunit to ventilate his views. 0e are also conscious that justice is a pscholo%ical earnin%, in which (en seek acceptance of their view point b havin% an opportunit of vinication of their view point before the foru( or the authorit enjoine or obli%e to take a ecision affectin% their ri%ht. Oet, in the particular situations, one has
to bear in (in how an infraction of that shoul be sou%ht to be re(ove is accorance with justice. In the facts an the circu(stances of this case where sufficient opportunit is available when review application is hear on notice, as irecte b 5ourt, no further opportunit is necessar an it cannot be sai that injustice has been one. H@o o a %reat ri%htH after all, it is per(issible so(eti(es Hto o a little wron%H. In the facts an circu(stances of the case, this is one of those rare occasions. @hou%h enterin% into a settle(ent without the reLuire notice is wron%, in the facts an the circu(stances of this case, therefore, we are of the opinion, to irect that notice shoul be %iven now, woul not result in raina%e justice in the situation. In the pre(ises, no further conseLuential orer is necessar b this 5ourt. >a it been necessar for this !ench to have passe such a conseLuential orer, we woul not have passe an such conseLuential orer in respect of the sa(e. 1.
>i''at ?al Shah v. Police 5o''issioner, free+o' to for' association, for' asse'blies
@he !o(ba Police Act conferre powers on the 5o((issioner of Police for re%ulatin% asse(blies an processions on public places an e(powere hi( to refuse per(ission to hol an (eetin%. 0hether %ivin% such powers to the 5o((issioner to refuse %ivin% per(ission to hol public (eetin%s curbs funa(ental ri%hts uner Article 17"1&"c& of the 5onstitutionJ @he 5ourt hel that such a power conferre was actuall ultra vires the parent act an i violate the ri%ht of people uner Article 17"1&"c&. *ule uner Section 44 of the !o(ba Police Act, 171 %ave un%uie iscretionar power to the Police 5o((issioner to %rant or refuse to %rant per(ission for an public (eetin% to be hel on a public street. @he S5 struck own the rule as bein% an unreasonable restriction on the e$ercise of a funa(ental ri%ht. 13.
Sarala u+$al, for'ation of a unifie+ civil co+e
@his case was iscusse because a >inu (an, when he is alrea (arrie cannot re(arr an in this case there were several instances of >inu (en convertin% to Isla( an (arrin% a%ain in spite of bein% alrea (arrie to a >inu. In Inia, a )nifor( 5ivil 5oe is not a possibilit. An hence, a >inu (an cannot re(arr when he is alrea (arrie to a >inu wo(an. @his will (ake the a(inistration process all the (ore ifficult. 14.
?il @ho'as v. (nion of In+ia, ju+icial review of action of 'e'bers of the a+'inistration or e#ecutive
@he S5 of Inia, in its ju%(ent of the /ily Thomas v. )nion o "ndia case rule that an e(ber of Parlia(ent "P&, e(ber of the ?e%islative Asse(bl "?A& or e(ber of a ?e%islative 5ouncil "?5& who is convicte of a cri(e an aware a (ini(u( of two ear i(prison(ent, loses (e(bership of the >ouse with i((eiate effect. @his is in contrast to the earlier position, wherein convicte (e(bers hel on to their seats until the e$hauste all juicial re(e in lower, state an S5 of Inia. +urther, Section 6"4& of the *epresentation of the People Act, which allowe electe representatives three (onths to appeal their conviction,was eclare unconstitutional b the
bench of ;ustice A. -. Patnaik an ;ustice S. ;. ukhopahaa. @he ju%(ent is lar%el seen to cleanse politics fro( cri(inali/ation. 16.
oha''a+ Ah'e+ -han v. Shah ano e$u', (nifor' civil co+e
Facts of the Case •
Shah !ano (arrie Ah(a -han "avocate& 17'2
•
5hilren< ' sons 2 au%hters
•
After 14 ears he (arrie a oun%er wo(an
•
In 17 Ah(a khan rove out of her (atri(onial ho(e in 17. >er a%e was 32 ears
•
•
•
She file a petition for (aintenance in April 176 uner section 12 5rP5 because he ha stoppe %ivin% her (aintenance of *s 288 which he ha pro(ise. aintenance uner Section 12 5r.P.5. < law for wo(en . !asicall uBs 12 5rP5 a wife who is without an inco(e, has no source of inco(e an is ne%lecte b her husban is entitle to (aintenance, which inclues a ivorce wife who is not re (arrie. :n Nove(ber 176 her husban %ave an irrevocable talaL "ivorce& to her an took up the efence that since !ano ha cease to be his wife so he was uner no obli%ation to provie (aintenance for her.
•
@he a%istrate court irecte -han to pa *s 2 per (onth to Shah !ano.
•
@his a(ount was enhance b the revisional application to >i%h 5ourt in aha Praesh for *s 17
•
Ah(e -han however approache a%ainst the ju%(ent to Supre(e 5ourt.
Judgement
:n ' +ebruar 1761, the two ju%e bench first hear the (atter, in li%ht of the earlier ecisions of the court which ha hel that section 12 of the 5oe applies to usli(s also, referre -hans appeal to a lar%er !ench. usli( boies All Inia usli( Personal ?aw !oar an ;a(iat)le(ain joine the case as intervenor. :n 2' April 176, Supre(e 5ourt in a unani(ous ecision, is(isse the appeal an confir(e the ju%(ent of the >i%h 5ourt. 17.
alakottaia v. (nion of In+ia, free+o' to for' association
5ertain railwa e(ploees belon%in% to the workers association wante to paral/e the co((unication sste( because the %overn(ent was not sain% a es to their e(ans, especiall a raise in their pa. A char%esheet was file a%ainst the(. @he were also (e(bers of the co((unist part an were ter(inate fro( their services. @he S5 rejecte the ar%u(ent of the petitioners, statin% that the ha a funa(ental ri%ht to for( an association but not a ri%ht to be in %overn(ent service when the are involve in acts (entione in the )nlawful Activities Act. >owever, this was overrule in the case of *evendra0ppa v. (arnataka State Small "ndustries *evelopment Corporation.
28.
=even+raAppa v. -arnataka S'all Scare In+ustries, free+o' to for' associations
@he 5ourt hel that proceure (ust necessaril be followe. ?aw (ust not be arbitrar. @he proceure followe to i(ple(ent laws (ust be fair an not arbitrar. ?aws (ean just not le$. ?aws (eans what the law is an what the law ou%ht to be an this shall be ecie b the 5ourts. A person who le%iti(atel seeks to e$ercise his ri%hts cannot be tol to not e$ercise his ri%hts but then one shoul also be rea to face its conseLuences. !ut he cannot be kept awa fro( his funa(ental ri%hts on the cost of his e(plo(ent or %overn(ent service. Govern(ent servants have the ri%ht to for( associations in orer to show their %rievances a%ainst their e(ploees even thou%h the are (e(bers of a political part. >is service cannot be ter(inate on the %roun that he was relate to one or (ore other or%ani/ations. 21.
Shrea Sin$hal v. (nion of In+ia !referre+ to (SA v. Schenk an+ 0hitle v. 5alifornia%, Principle of
)easonableness
@he petitioner is a =) stuent who challen%e the constitutionalit an valiit of Section 33A of the I@ Act, 2888 after the arrest of two oun% %irls on the basis on their post on fb re%arin% the eath of Shiv Sena leaer, !al @hackre. @his section %ives wie powers to the %overn(ent to arrest anone who sens offensive, false, ero%ator or efa(ator (essa%es throu%h an co((unication service. @his also inclues (essa%es which incite violence an injur, ill will, hatre etc. @he petitioner Luestione whether this section curbe the libert of people. @he S5 iscusse various cases an finall ca(e to the conclusion that 33A oes take awa the libert of people an is therefore unconstitutional. It violates articles 14 an 21 an curbs the ri%ht of speech an e$pression of the people. It robs the libert of people. @he court hel that it is a curtail on the freeo( of people to post an (essa%e throu%h e<(ails an hence is unconstitutional. 22.
0hitne v. 5alifornia, free+o' of speech an+ e#pression, also see (S v. Schenk
It was a )nite States Supre(e 5ourt ecision upholin% the conviction of an iniviual who ha en%a%e in speech that raise a threat to societ. Anita 0hitne, a (e(ber of a istin%uishe 5alifornia fa(il, was convicte uner the states 1717 5ri(inal Snicalis( Act for alle%el helpin% to establish the 5o((unist ?abor Part of A(erica , a %roup the state char%e was evote to teachin% the violent overthrow of %overn(ent. 0hitne clai(e that it ha not been her intention, nor that of other or%ani/ers, that the parties beco(e an instru(ent of violence. @he Luestion before the court was whether the 1717 5ri(inal Snicalis( Act of 5alifornia violate the +ourteenth A(en(ents Eue processD an EeLual protectionD clauses. @he 5ourt, b a 7<8 vote, hel that it i not an uphel 0hitnes conviction. ;ustice Sanfor wrote for the sevenol(es test of Hclear
an present an%er H but went further. @he 5ourt hel that the state in e$ercise of its police power has the power to punish those who abuse their ri%hts to freeo( of speech Hb utterances ini(ical to the public welfare, tenin% to incite cri(e, isturb the public peace, or enan%er the founations of or%ani/e %overn(ent an threaten its overthrow.H In other wors, if wors have a H ba tenencH the can be punishe . 2&.
Air In+ia v. Nar$iseer/a, =e
@he S5 hel that certain re%ulations pertainin% to the conitions of service of air hostesses in Air Inia, an unertakin% of the 5entral Govern(ent, as iscri(inator uner Art.14 of the 5onstitution. @he re%ulations (ae b Air Inia provie for ter(ination of service of an air hostess on her first pre%nanc was hel to be the (ost unreasonable an arbitrar provision which is abhorrent to the notions of a civili/e societ. @he 5ourt is e(powere to enforce (oralit. 2.
P athur v. =elhi @ransport 5orporation, +is
@he 5ourt state that Conce public interest is accepte as a superior eLuit, it can overrie iniviual eLuit an if a%%rieve iniviuals coul be sai to have anticipate revision or chan%e in polic, the (a not crow the courts with a co(plaint either that their le%iti(ate e$pectations stan violate nor (a the clai( an pro(issor estoppels "both juiciall crafte IA? octrines&. A%%rieve iniviuals cannot challen%e %overn(ent policies (eant for econo(ic evelop(ents. @he facts of the case further su%%est that the creitor "Govern(ent of Inia& constraine in part the ebtor "=elhi @ransport 5orporation& to resile fro( an earlier beneficial polic an concurre further with the =@5 polic chan%e. 2.
9au+oot 5ase< In+ian Airlines fficers Association v. In+ian Airlines ?t+, +is
@he 5ourt hel that the e(ploees of the Inian Airlines were hel not enie of natural justice because of non< consultation with the(. @he S5 canil state< Cthe e(ploees of Inian Airlines i not an coul not have an sa in polic<(akin%D. #ven their ri%hts an interest (a be aversel affecte, the i not have an natural justice ri%ht to be hear prior to polic enunciation an even subseLuent to it. 23.
In+raSawhne v. (nion of In+ia, =e
5hallen%e to the anal 5o((ittee report an the subseLuent a(en(ents which allowe for reservation of the S5s, S@s an :!5s. @he 5ourt state that the reservation however shoul not be above 8Q. 24.
A- @hakur v. (nion of In+ia, =e
@he S5 has hel that private eucational institutions (a not as et, inee if ever, attract the iscipline of the newl announce re%i(e of :!5 reservations. @hat is, non<%overn(ental eucational institutions (a not i(ple(ent the reservation polic incorporate uner Articles 1 an 13.
@he 5ourt further hel that the sa(e shall also appl to N5s. 26.
@A Pai *oun+ationv. (nion of In+ia, =e
Private eucational institutions, not receivin% %rant or ai fro( the %overn(ent nee not follow reservation. @his (eans that a%ain a %ap is create between the rich an the poor. 27.
Nar'a+a achaoAn+olan, +e
NG: an activists file a PI? statin% that the a( will increase the water levels an will lea to the isplace(ent of a lot of people an will also a(a%e the ecolo%. 5ourt state that it is not the correct foru( to ecie polic (atters in respect of econo(ic evelop(ents. Principle of natural justice nee not be followe. >owever, the persons isplace (ust be rehabilitate or pai aeLuate co(pensation. &8.
ijoe "''anuel v. State of -erala, ri$ht to re'ain silent ri$ht to free+o' of free speech an+ e#pression
@he National Anthe( case. @he S5 invaliate the e$pulsion orer passe a%ainst ' chilren belon%in% to the sect of ;ehovahs 0itness for not joinin% in the sin%in% of the National Anthe(. @he chilren ha shown respect to the Anthe( b stanin% while it was bein% plae. @he freeo( of speech an e$pression inclues the freeo( to re(ain silent. &1.
aneka Gan+hi v. (nion of In+ia, natural justice, separation of powers
@his case touche new hei%hts in observin% principles of N; b a(inistrative authorities. @he 5entral %overn(ent, uner Section 18"'&"c& of the Passport Act, 1731 i(poune the passport of the P on the %roun of interest an securit of the nation. She was not %iven an opportunit to be char%eBhear an the +I* a%ainst her was va%ue an %eneral in nature, citin% C%eneral public interest. She challen%e the arbitrar action of the %overn(ent. #ver citi/en has the ri%ht to a passport. @he action of the %overn(ent is a violation of Article 14, 17 an 21. Section 18 of the )niversal =eclaration on >u(an *i%hts 1746 states that no persons passport can be i(poune without followin% the principles of N;. ;. -rishna Ier ?ife oesnt (ean (ere ani(al e$istence. 0henever there is conflict between international an national law, then to fill the %ap, international laws can be use to ecie the case accorin% to the rules followe uner international laws. @he court state that a(inistrative authorities shoul refrain fro( actin% juiciall an shoul act fairl, followin% the principles of N;.
&2.
A- Gopalan v. State of a+ras, a+'inistrative action, fairness
@he petitioner who was etaine uner the Preventive =etention Act "Act I9 of 178& applie uner Art. '2 of the 5onstitution for a writ of habeas corpus an for his release fro( etention, on the %roun that the sai Act contravene the provisions of Arts. 1', 17, 21 an 22 of the 5onstitution an was conseLuentl ultra vires an that his etention was therefore ille%al.
&&.
?iversi+$e v. An+erson, arbitrariness, re+ li$ht theor, arbitrariness, natural justice
It is a lan(ark )nite -in%o( a(inistrative law case which concerne the relationship between the courts an the state, an in particular the assistance that the juiciar shoul %ive to the e$ecutive in ti(es of national e(er%enc. It concerns civil liberties an the separation of powers. !oth the (ajorit an issentin% ju%(ents in the case have been cite as persuasive preceent b various countries of the 5o((onwealth of Nations. >owever, in #n%lan itself, the courts have %rauall retreate fro( the ecision in ?iversi%e. It has been escribe as Han e$a(ple of e$tre(e juicial eference to e$ecutive ecision<(akin%, best e$plaine b the conte$t of warti(e, an it has no authorit toa.H It is therefore (ainl notable for the issent of ?or Atkin . #(er%enc powers in *e%ulation 16! of the =efence "General& *e%ulations 17'7 per(itte the >o(e Secretar to intern people if he ha Hreasonable causeH to believe that the ha Hhostile associationsH. Sir ;ohn Anerson e$ercise this power in respect of a (an calle ;ack Perl/wei%,who use the na(e *obert ?iversi%e, co((ittin% hi( to prison but %ivin% no reason.M2 :n appeal, the case, joine with that of !en Greene, reache the Appellate 5o((ittee of the >ouse of ?ors , the hi%hest court of appeal.M' @he ha to ecie whether the court coul investi%ate the objective basis for the reasonable causeF in other wors, coul the evaluate the >o(e Secretars actions on an objective stanar, co(parin% the( to that which (i%ht be taken b a reasonable (an, or were the to (easure the( a%ainst the personal stanar of the Secretar 1udgment @he (ajorit of the ?aw ?ors hel that the le%islation shoul be interprete so as to (ake effect what Parlia(ent intene, even if that (eant ain% to the wors to %ive that effect. Althou%h Parlia(ent ha (ae the power subject to a reasonable belief the accepte the >o(e Secretars state(ent that he hel such a beliefF in otherwise that he believe he ha reasonable cause. 9iscount au%ha( sai that the court shoul Hprefer a construction which will carr into effect the plain intention of those responsibleH an ?or ac(illan that Hit is ri%ht so to interpret e(er%enc le%islation as to pro(ote rather than to efeat its efficacH. Accorin% to hi(, if the Secretar ha acte in %oo faith, he nee not isclose the basis for his ecision, nor were his actions justiciable in a court of law.
@he (ajorit of the ?ors appear to have been %reatl concerne with the fact that the were ealin% with a (atter of national securit. In their view, it was not appropriate for a court to eal with (atters of national securit, especiall as the were not priv to classifie infor(ation that onl the e$ecutive ha .
Dissent In a issentin% speech ?or Atkin state his view the (ajorit ha abicate their responsibilit to investi%ate an control the e$ecutive, an were bein% H(ore e$ecutive<(ine than the e$ecutiveH. Atkin proteste that theirs was Ha straine construction put on wors with the effect of %ivin% an uncontrolle power of i(prison(ent to the (inister,H an went on to sa: In #n%lan, a(ist the clash of ar (s, the laws are not silent. @he (a be chan%e, but the speak the sa I know of onl one authorit which (i%ht justif the su%%este (etho of construction. H0hen I use a wo ?or Atkins view was that the phrase Hreasonable causeH in the statute at han inicate that the actions of the Secretar of State were (eant to be evaluate b an objective stanar. As a result it woul be within the courts purview to eter(ine the reasonableness of those actions . @he potential power of this issentin% ju%(ent was clearl reco%nise even before it was publishe. @he ?or 5hancellor , 9iscount Si(on, wrote to ?or Atkin askin% hi( to a(en the propose ter(s of the speech. >e i not . In Inia, the /iversidge ecision was cite in #opalan v. State o $adras , where the court hel that the subjective test was to be applie. >owever, subseLuent ecisions such as &azal#hosi v. State o )ttar Pradesh have allowe so(e (easure of juicial intervention b holin% that the e$ecutives ecisions (ust be base on Hpertinent (aterialHF if it is foun that there is no such (aterial justifin% the ecision, the courts (a act. In so(e other 5o((onwealth countries such as alasia, it has been atte(pte to overrule the preceent of /iversidge b citin% Inian cases as persuasive preceentF in the case of (aram Singh, the Inian case of 1agannath$isra v. State o 2rissa, where the facts were si(ilar, was cite. ?e%al co((entators have note, however, that the alasian juiciar has been reluctant to accept Inian authorities, seekin% to istin%uish the( whenever possible. :ne alasian ju%e has su%%este that H#n%lish courts take a (ore realistic view of thin%s while Inian ju%es ... i(press (e as inefati%able, iealists seekin% valiantl to reconcile the irreconcilableH. &.
)i+$e v. al+win, arbitrariness, natural justice, re+
@he !ri%hton police authorit is(isse its 5hief 5onstable "5harles *i%e& without offerin% hi( an opportunit to efen his actions. @he 5hief 5onstable appeale, ar%uin% that the !ri%hton 0atch 5o((ittee "heae b Geor%e !alwin& ha acte unlawfull " ultra vires& in ter(inatin% his appoint(ent in 176 followin% cri(inal proceein%s a%ainst hi(.
*i%e also sou%ht financial reparation fro( the police authoritF havin% ecline to seek reappoint(ent, he sou%ht a reinstate(ent of his pension, to which he woul have been entitle with effect fro( 1738 ha he not been is(isse, plus a(a%es, or salar backate to his is(issal. @he >ouse of ?ors hel that !alwins co((ittee ha violate the octrine of natural justice, overturnin% the principle outline b the =onou%h(ore 5o((ittee thirt ears before that the octrine of natural justice coul not be applie to a(inistrative ecisions. HNatural justiceH is a le%al octrine which reLuires an absence of bias " ne(o iue$ in causa sua& an the ri%ht to a fair hearin% "auialtera(parte(&. 3idge was the first ti(e that the octrine ha been use to overturn a non
Naku+ Ali v. ;aaratne, natural justice
@he te$tile co((issioner of 5elon was %iven e$ecutive powers to cancel, revoke or suspen an license on his subjective satisfaction. ?or *acliff Subjective satisfaction e$ercise b 5ourt for license base on national securit is not subject to juicial control. @he P5 hel that in the absence of an e$press statutor reLuire(ent for hearin%, the rules of natural justice are not attracte, even when the power to cancel a license is couple with the fact that reasonable %rouns (ust e$ist for the e$ercise of the power. &3.
ina Pani =evi v. State of rissa, natural justice
@er(ination of service without prior notice an chance of bein% hear %oes a%ainst the principles of natural justice. If orer is a(inistrative in character leain% to civil conseLuences, then principle of natural justice (ust be followe. !ina Pani =evi was a octor in %overn(ent e(plo(ent. She ha state that her ate of birth was 18
th
April 1718 at the
ti(e of joinin% service. @he %overn(ent however, later ca(e to know that she has (isrepresente her =ate of !irth an it was actuall 18 th April 178. Actin% on this infor(ation, without an notice or hearin%, ter(inate her fro( service for (isrepresentation. She file a case in the :rissa >5 a%ainst her ter(ination. >owever, the court, followin% ?iversi%e v. Anerson, hel that a(inistrative orers are not subjecte to juicial review. She then went on appeal to the S5. &4.
Sarjoo Prasa+ v. General ana$er, natural justice
@he short point in this appeal is whether it was open to the responent to chan%e or alter the birth ate of the appellant, bein% 2th ;ul, 172, once accepte b the responent in 171, without %ivin% an opportunit to hi( to sustain the sa(e. It is a(itte that the alteration in the accepte birth<ate of appellant has been (ae without %ivin% an opportunit of hearin% to the appellant. Appellant clai(e that his ate of birth is ;ul 2th, 172 an this birth ate is entere in his >i%h School 5ertificate an this birth ate was accepte b the responent in 171. @he appellant uner the orers of this
5ourt continues to be in service an will continue to be in service. It will however be open to the responent if it so esires an consiers it necessar to hol the enLuir about the correct birth ate afresh after %ivin% notice an opportunit of hearin% an proucin% evience on either sie in this case. &6.
A- -raipak v. (nion of In+ia, Natural justice
In this case, the S5 hel that thou%h the action of (akin% selection for %overn(ent services is a(inistrative, et the selection co((ittee is uner a ut to act juiciall. @he iviin% line between an a(inistrative power an Luasi
>iranath ishra v. Principal, )ajen+ra e+ical 5olle$e, Natural justice
So(e stuents of a (eical colle%e cli(be the %irls hostel usin% pipes an behave inecentl with (an %irls. A co(plaint was lo%e an enLuir was (ae an the %irls were calle one b one an their state(ents were recore. @he bos were then e$pelle for a perio of one ear. A 0P was file b the bos to the S5 on two basic %rouns a. 5har%e (aeB recore state(ents were not (ae known to the( b. @he state(ents (ae b the %irls were not recore in the presence of the bos. @he concept of principles of N; is not infle$ible an in isciplinar (atters, it shoulnt be followe. @he court sai however unsavor the proceure (a look to a juicial (in, the %irls (a not have recore their state(ents in the presence of the bos. @hus, proceure has to be followe an there is no nee to strictl co(pl with the principles of N; because the contention of the bos that the state(ents were not recore in front of the( is not effective because otherwise the %irls woul not have co(e up boll an recore their state(ents. 8.
Achara ;a$+ishwaranan+Ava+hut v. Police 5o''issioner, ri$ht to reli$ion an+ its 'ria+ for's
@he petitioner file writ petition uner Art.'2 of the 5onstitution for a irection to the responent No.1 an the State to allow procession to be carrie in thepublic streets an (eetin%s to be hel in public places b the followers of the Ananaar%aacco(panie b the perfor(ance of @anava ance within the State of 0est!en%al. @he petitioner sub(itte that Anana ar%a was asocioel that Anana ar% is not a separate reli%ion b itself an hence provisions uBA 2 an 23 are not attracte.
1.
A= ;abalpur v. Shivakant Shukla, ri$ht to life, natural justice, rule of law
@he basic concept of rule of law is not a well<efine le%al concept. @he courts %enerall woul not invaliate an positive law on the %roun that it violates the contents of rule of law. >owever, in this case, an atte(pt was (ae to challen%e the etention orers urin% #(er%enc on the %rouns that it violates the principles of rules of law as the Cobli%ation to act in accorance with rule of lawRis a central feature of our constitutional sste( an a basic feature of our 5onstitution. Ille%al acts of the %overn(ent coul not be challen%e in a court because it was foun that the source of personal libert in Inia was Art.21 which ha been suspene b the Presiential Procla(ation, an not an co((on law of the people 2.
In+ira Nehru Gan+hi v. )aj Narain, Separation of Powers
See pa%e 23 of IP asse for the cru$ of the ju%(ents b the ju%es. In the Inian 5onstitution, the separation of powers is onl in a broa sense onl. A ri%i separation of powers like in )SA or Australia oes not appl to Inia. Ajuication of a specific ispute is a juicial function which the Parlia(ent, even actin% uner a 5onstitutional a(enin% power cannot e$ercise. ;ust as courts ou%ht not to enter into proble(s entwine in the political thicket, Parlia(ent (ust also respect the preserve of the courts. @he principle of separation of powers is a principle of restraint which has in it the precept nature in the pruence of self
P. Sa'ba'urth v. State of AP, rule of law
It cate%oricall state that Article '1= "& proviso of the 5onstitution clearl violate the rule of law which is a basic structure an essential feature of the 5onstitution. @his provision ha authori/e the Anhra Praesh State Govern(ent to
nullif an ecision of the a(inistrative service tribunal. =eclarin% the provision unconstitutional, the court (aintaine that it is a basic principle of the rule of law that the e$ercise of power b the e$ecutive or b an other authorit (ust not onl be conitione b the 5onstitution but (ust also be in accorance with law an the power of juicial review that the rule of law is (aintaine an ever or%an is kept within the li(its of the law. .
So'raj v State of >arana, rule of law
@he S5 observe that the absence of arbitrar power in the first postulate of the rule of law upon which the whole constitutional eifice is base. If the iscretion is e$ercise without an principle or without an rule, it is a situation a(ountin% to the antithesis of the rule of law. .
Sheela arse v. State of aharashtra, rule of law, arbtrariness
@he court insiste on fairness to wo(en in police lock
State of P v. )a'shanker)a$huvanshi, rule of law, arbitrariness
@he 5ourt secure fairness in public e(plo(ent b holin% that reliance on police report is entirel (isplace in a e(ocratic republic. 4.
)a' ;awaa-apur v. State of Punjab, Separation of Powers
@he Inian 5onstitution has not inee reco%ni/e the octrine of separation of powers in its absolute ri%iit but the functions of the ifferent parts or branches of the %overn(ent have been sufficientl ifferentiate an conseLuentl it can ver well be sai that our 5onstitution oes not conte(plate assu(ption, b one or%an or part of the State, of functions that essentiall belon% to another. 6.
In re: =elhi ?aws Act, =ele$ate+ le$islation, separation of powers, a+'inistrative action
@here were a few states which were uner the irect a(inistration of the 5entral Govern(ent an were classifie as Part 5 States. @hese States i not have a le%islature of their own an the Parlia(ent ha to le%islate for these States. As it was ver ifficult for the Parlia(ent to fin ti(e to le%islate for the(, it passe the Part 5 States "?aws& Act, 178. @he Act authori/e the 5entral Govern(ent to e$ten to an Part 5 State, with such restrictions an (oifications as it thou%ht fit, an enact(ent in force in a Part A State. 0hile oin% so, the Govern(ent coul repeal or a(en an corresponin% law "other than a 5entral ?aw& which (i%ht be operative at the ti(e in the Part 5 State concerne. @he powers of ele%ations were hence of sweepin% nature. @he S5 was calle upon to aju%e the valiit of this law. Seven ju%es participate in the ecision an seven opinions were elivere e$hibitin% a cleava%e of juicial views on the Luestion of li(its subject to which the le%islature in Inia shoul be per(itte to ele%ate le%islative power. Oet, on 2 points, there was a unit of outlook a(on%st all the opinions.
+irst, keepin% the e$i%encies of the (oern Govern(ent in view, Parlia(ent as well as State le%islatures in Inia nee to ele%ate le%islative power if the are to be able to face the (ultituinous proble(s facin% the countr, for it is neither practical nor feasible to e$pect that each le%islative bo coul turn out a co(plete an co(prehensive le%islation on all subjects sou%ht to be le%islate upon. @wo, since the ?e%islatures erives their power fro( the written constitution which creates the(, the coul not be allowe the sa(e freeo( as the !ritish Parlia(ent in the (atter of ele%ation, an that so(e li(its shoul be set on their capacit to ele%ate. @he ju%es however iffere on the Luestion as to what were to be the per(issible li(its within which the Inian ?e%islature coul ele%ate its le%islative powerJ :ne view propoune was that the Inian ?e%islature coul ele%ate its power to an e$tent subject to the li(it that it i not efface itself, or abicate its powers, which (eant that the ?e%islature shoul never %ive up its control over the ele%ateF that it (ust estro its own le%islative powerF that it (ust retain its hans the ulti(ate control over the authorit so as to be able to withraw the ele%ation whenever the ele%ate i so(ethin% wron% or foolish. @he other view which appro$i(ate to the A(erican approach, an which in theor at least is so(ewhat (ore restrictive than the first, was that the ?e%islature shoul not ele%ate its essential le%islative function which co(prise the for(ulation of polic an enactin% it into a binin% rule of conuct. @hat (eans the le%islative shoul la own stanars or polic in the ele%atin% Act an the ele%ate (a be left with the power to e$ecute the polic. ! a (ajorit, the 5ourt lai own that the le%islature shoul not ele%ate its essential le%islative function which co(prises the for(ulation of polic an enactin% it into a binin% rule of conuct. @he S5 propoune the thesis that the ?e%islature is the creature of the 5onstitution, the constitution<(akers have place their confience in the collective wiso( of the le%islature, an the constitution has chosen to vest le%islative power in the electe representatives of the people. It is inevitable that the ?e%islature shoul itself ischar%e the essential le%islative function, vi/., the le%islature shoul itself la own stanars or polic in the ele%atin% Act leavin% the ele%ate with the power to (ake rules to e$ecute the polic lai own b the ?e%islature. @he specific provision involve was hel vali b a (ajorit, subject to two riers a. @hat part of it was ba which authori/e the Govern(ent to repeal a law alrea in force b. @he power to effect (oification in a State law in its application to a Part 5 State envisa%e onl such (oifications as i not chan%e the unerlin% polic of the law sou%ht to be e$tene. @he case achieve two ens a.
It le%iti(i/e ele%ation of le%islative power b the le%islature to a(inistrative or%ans
b. It i(pose an outer li(it on ele%ation b the le%islature. No Inian ?e%islature can ele%ate unli(ite le%islative powers to the a(inistration. If the ele%ation is too broa, the courts can eclare the sa(e as e$cessive an hence invali. @he 5ourt further hel that inciental le%islative functions can be ele%ate. It was the first case in which separation of powers iscusse. S5 state that our constitution oesnt vest e$ecutive powers with the le%islature, applin% the octrine of constitutional li(itations an trust. 7.
;aantilal v. *N )ana, +ele$ate+ le$islation
#ssential le%islative functions cannot be ele%ate. 5onitional le%islation an confine(ent of suborinate le%islation short of ele%ation of inciental le%islative functions are vali. 8.
2G Sca'< P(5? v. (nion of In+ia
1.
*rancis 5oralie v. A+'inistrator, (nion @erritor of =elhi
@he ri%ht to life enshrine in Article 21 cannot be restricte to (ere ani(al e$istence. It (eans so(ethin% (uch (ore than just phsical survival. 2.
inerva ills v. (nion of In+ia, a+'inistrative action, $reen li$ht theor
@he Luestion before the 5ourt was whether the =PSPs are suborinate to +una(ental ri%htsJ @he 5ourt hel that the are supple(entar an co(ple(entar to each other. @he scope an e$tent of the octrine of basic structure was consiere. A petition was file challen%in% the takin% over of the (ana%e(ent of the (ill uner the Sick @e$tile )nertakin% "Nationali/ation& Act, 174 an an orer (ae uner Section 16A of the Inustrial "=evelop(ent an *e%ulation& Act, 171. @he petition also challen%e the constitutional valiit of clause "4& an "& of Article '36 introuce b the 42
n
A(en(ent. 5ourt< the Inian 5onstitution is foune on the berock of the balance of Parts III an I9. @o %ive absolute pri(ac to one over the other is to isturb the har(on of the 5onstitution. @his har(on an balance is an essential feature of the basic structure of the 5onstitution. &.
) v. ?e'on, free+o' of speech an+ e#pression
;a(es -irkups poe( @he ?ove that =ares to Speak its Na(e was publishe in the ' ;une 173 issue of Ga News. @he poe(, written fro( the viewpoint of a *o(an centurion, %raphicall escribes hi( havin% se$ with ;esus after his crucifi$ion, an also clai(s that ;esus ha ha se$ with nu(erous isciples, %uars, an even Pontius Pilate.
In earl Nove(ber 173, ar 0hitehouse obtaine a cop of the poe( an announce her intention to brin% a private prosecution a%ainst the (a%a/ine. ?eave to brin% this prosecution was %rante on 7 =ece(ber 173. @he char%es na(e Ga News ?t an =enis ?e(on as the publishers. A char%e a%ainst oore >arness ?t for istributin% was subseLuentl roppe. @he inict(ent escribe the offenin% publication as Ha blasphe(ous libel concernin% the 5hristian reli%ion, na(el an obscene poe( an illustration vilifin% 5hrist in his life an in his crucifi$ionH. @he Ga News +i%htin% +un was set up in =ece(ber 173. ;u%e Alan -in%<>a(ilton 5 hear the trial at the :l !aile on 4 ;ul 17, with ;ohn orti(er 5 an Geoffre *obertson representin% the accuse an ;ohn S(th representin% ar 0hitehouse. :n ona 11 ;ul, the jur foun both efenants %uilt. Ga News ?t was fine K1,888. =enis ?e(on was fine K88 an sentence to nine (onths i(prison(ent suspene. It ha been Htouch an %oH, sai the ju%e, whether he woul actuall sen =enis ?e(on to jail. ar 0hitehouses costs of K,3' were orere to be pai four fifths b Ga News ?t an one fifth b ?e(on. Ga News ?t an =enis ?e(on appeale a%ainst conviction an sentence. :n 1 arch 176, the 5ourt of Appeal Luashe =enis ?e(ons suspene prison sentence but uphel the convictions on the basis that the law of blasphe( ha been evelope before (ens rea, literall, a H%uilt (inH, beca(e an essential ele(ent of a cri(e. Ga News reaers vote b a (ajorit of 28 to 1 in favour of appealin% to the >ouse of ?ors. @he ?aw ?ors hear the appeal a%ainst conviction an elivere their ju%(ent on 21 +ebruar 177. At issue was whether or not the offence of blasphe(ous libel reLuire specific intent of co((ittin% such a blasphe(. ! a (ajorit of ' to 2, the ?ors conclue that intention was not reLuire. ?or Scar(an was of the opinion that blasphe( laws shoul cover all reli%ions an not just 5hristianit an sou%ht strict liabilit for those who Hcause %rave offence to the reli%ious feelin%s of so(e of their fellow citi/ens or are such as to ten to eprave an corrupt persons who are likel to rea the(H. [1] @he appeal was lost. .
inerva @alkies v. State of -arnataka, AI) 1766 S5 , a+'inistrative action
-arnataka 5ine(a *e%ulation Act of 1766 enable the e$ecutive to carr out the purpose of the act b (akin% laws an b
.
;a''u an+ -ash'ir State oar+ of "+ucation v. *ea/Ara'o+ alik, AI) 2888 S5 18&6, a+'inistrative
action
@he act conferre vast powers of the state eucation boar. @he boar ha to the powers to conuct e$a(inations throu%hout the state an if an institution was foun to be involve in (ass copin%, then the license of such an institution coul be cancelle b the boar. @he appeal was that schools an colle%es were (eant to i(part eucation an the powers went beon the parent act curbin% the ri%ht to eucation of stuents. @he court state that the (ain objective of such institutions were to i(part eucation an conuct e$a(inations. @his act was helpin% to achieve the object of these schools an colle%es an hence was not ultra vires. 3.
Superinten+ent of 5entral Prison v. )a' anohar ?ohia, free+o'e of speech an+ e#pression, also see case
of auto shanker
*estrictions (a be i(pose on freeo( of speech in the na(e of preservation of (orals but the (ust have a pro$i(ate ne$us between the restriction i(pose an the object sou%ht to be achieve. 4.
harat Alu'inu' ?i'ite+ 5o. !A?5% v. 0orkers (nion !=isinvest'ent%
ore than 8Q shares of the co(pan were owne b the 5entral Govern(ent. @he %overn(ent, b an e$ecutive orer wante to %o for isinvest(ent. @his was however challen%e b the workers of the co(pan. @he state that Article 4'A stipulates that workers (ust be consulte in the (ana%e(ent of an inustr. @he S5 state that the principles of natural justice are not suppose to be followe in the case of isinvest(ent. It further state that courts were not the co(petent authorit to ajuicate this case. @he parlia(ent is the correct foru( to solve such isputes. 6.
5hitralekha 5ase !=e
@his was before the 1 st 5onstitutional A(en(ent was carrie out. @his case was one of the (ajor reasons for the a(en(ent. @he 5ourt ha hel that reservation for Scc an S@ is a%ainst eLualit before law. 7.
"P )oappa v. State of @a'il Na+u, +octrine of arbitrariness
Service < enLuir < petition for irectin% responents to withraw an cancel :rer an ask for irection to re
38.
ohen+ra Gill v. 5hief "lection 5o''issioner !0atershe+< "lection%
#lection < power an ut < Article '24 "1& of 5onstitution of Inia an Sections 14, 33 an 1' of *epresentation of @he People Act, 178 < :rer of #lection 5o((ission in respect of countin% of ballot papers an orerin% re
)o'esh@hapar v. State of a+ras, 178, free+o' of free speech an+ e#pression
@he petitioner was the founer of weekl (a%a/ine 5rossroas. It was a (outhpiece of the co((unist part. It was banne entr an circulation uner the aras aintenance of Public :rer Act, 1747. @he act banne an (a%a/ine or newspaper if it was carrin% so(e news that was etri(ental to securit or public orer. @he case involve challen%in% this ban as repu%nant of Article 17"1&"a& freeo( of speech an e$pression inclues the freeo( of press. ;ustice PatanjaliShastri< @he bannin% of the (a%a/ine is incorrect an is in violation of Art 17. +reeo( of e$pression inclues the freeo( to print thou%hts. @hanjavur beca(e a focal point as the first leain% (a%a/ine Etana sihiD was publishe fro( @hanjavur an was also banne. 32.
Secretar of inistr of Infor'ation an+ roa+castin$ v. 5ricket Association of 0est en$al, S5 177, public
propert, a+'inistrative action
@he 5ourt state that there is no oubt that since airwas an freLuencies are public propert, the have to be use in the best interest of the societ, an this can be one b the (inistr b establishin% a broacastin% network. Generall, no restrictions are to be put on print or electronic (eia. @he re%ulations that are ever put on both of these can be slashe awa b usin% Article 17"1&"a&. If the %overn(ent is puttin% a re%ulator authorit, then it is unconstitutional. 3&.
) v. ?ancashire countr council, e# p >u++leston !A'ber ?i$ht @heor%
A new relationship has e(er%e between courts an those who erive their authorit fro( public laws. It is a partnership base on a co((on %oal, viz. fosterin% hi%hest stanars of public a(inistration. @he responent council ha faile to allocate a universit stuent %rant to the clai(ant an the principle was irecte at the ut of that authorit to state clearl the reasons for its refusal an the particular factors that ha been taken into consieration for the purpose.
>el 0hen a challen%e is (ae in court to a ecision of a public authorit, there is an obli%ation on a responent public authorit to put before the 5ourt the (aterial necessar to eal with the relevant issues. Sir ;ohn =onalstone set out the ut of canour applicable within the evelopin% area of juicial review C@his evelop(ent has create a new relationship between the courts an those who erive their authorit fro( public law, one of partnership base on a co((on ai(, na(el the (aintenance of the hi%hest stanars of public a(inistration . . @he analo% is not e$act, but just as the ju%es of the inferior courts when challen%e on the e$ercise of their jurisiction traitionall e$plain full what the have one an wh the have one it, but are not partisan in their own efence, so shoul be the public authorities. It is not iscreitable to %et it wron%. 0hat is iscreitable is a reluctance to e$plain full what has occurre an whJ 5ertainl it is for the applicant to satisf the court of his entitle(ent to juicial review an it is for the responent to resist his application, if it consiers it to be unjustifie.!ut it is a process which falls to be conucte with all the cars face upwars on the table an the vast (ajorit of the cars will start in the authorits hans.D Sir ;ohn =onalson * iscusse the evelop(ent of a(inistrative law sain% C@his evelop(ent has create a new relationship between the courts an those who erive their authorit fro( the public law, one of partnership base on a co((on ai(, na(el the (aintenance of the hi%hest stanars of public a(inistration . . @he analo% is not e$act, but just as the ju%es of the inferior courts when challen%e on the e$ercise of their jurisiction traitionall e$plain full what the have one an wh the have one it, but are not partisan in their own efence, so shoul be the public authorities. It is not iscreitable to %et it wron%. 0hat is iscreitable is a reluctance to e$plain full what has occurre an wh. . 5ertainl it is for the applicant to satisf the court of his entitle(ent to juicial review an it is for the responent to resist his application, if it consiers it to be unjustifie. !ut it is a process which falls to be conucte with all the cars face upwars on the table an the vast (ajorit of the cars will start in the authorits hans.
