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Authored by: Susmita Smrutirekha Date of judgement: 27 September, 2021 Bench: Division Bench led by Justice Hemant Gupta and Justice V. Ramasubramanian Court: Supreme Court of India Citation: 2021 SCC Online SC 803 Brief overview of the case: This case deals with an appeal made by New Delhi Municipal Council to the Supreme Court of India, after the High Court held that the Municipal Council could not enforce different policies on lands transferred to it by the government and the lands owned by it. Background of the case: In the subsequent case of New Delhi Municipal Council vs. Ganga Devi & Anr[1]., the respondent was an occupant of a stall located in Baba Kharag Singh Marg, for which she was issued a show cause notice for alleged sub-letting and unauthorized construction. The occupant claimed that she was the owner of the property and stated that the said shop was allotted to one Maheshi Dhoundiyal, and it was sublet to the occupant in the year 1999 which was later transferred to her in the year 2000. The occupant-respondent depended upon a Circular which was issued on Date 25th July1996 and also on a policy which was approved by the Government in pursuance of the Cabinet decision dated 31st August 2000 which would have granted ownership rights to the occupants of the shops of 14 specified markets. On the contrary an order was passed by the Estate Office, Directorate of Estates, New Delhi, for the eviction of the allottee of the stall. Whereas, the occupant-respondent had purchased the stall in question from the said allottee. Aggrieved from this the occupant appealed against the eviction notice to the Additional District Judge but the said appeal was dismissed. Occupant then filed an appeal before the High Court of Delhi, the learned Single Judge Bench held that only because the market in query i.e., Baba Kharag Singh Marg Market had been handed over to New Delhi Municipal Council with respect to the notification dated 24th March 2006, it did not mean that the policy regarding substitution/mutation of ownership for the said market could be different from all the other markets that are adopted and managed by the Council. And the High Court held that the Council could not treat both markets differently and the occupant was held to be entitled to regularization of allotment in accordance with the policy and was directed to the council to transfer the allotment in the favor of occupant within 2 months. Issues: 1)Whether the allottees of the said market be given the right of ownership? 2)Whether the order passed by High Court admissible? 3)Whether the Municipal council has the authority to evacuate the allotted stalls? 4)Whether the Municipal Council of Delhi is the licensee or owner of the land transferred by the Government? Arguments: Following are the contentions made by both parties: Contention by respondent- 1.The counsel on behalf of respondent stated that on 24th March 2006, the Ministry of Urban Development, Government of India had transferred some markets to the Council and Municipal Corporation of Delhi which would continue from 1st April 2006 and that the term of the policy stated the regularization/restoration of allotment might also be followed by the local bodies. 2.He argued that on date 25th July 1996, the Government of India permitted regulation of shops, stalls, flats which came into the occupation of the respective locations on or before 20th October 1989. 3.It was also argued by the counsel that the advertisement which was published by the Government of India in the Hindustan Times on 6th August 2001 provided ownership rights to the shopkeepers of 12 markets. Contention by appellant- 1.Counsel for the appellant argued that the license deed which was performed in the year 1998 barred leasing of premises and of partnership to carry on the business, which was done between the occupant and the predecessor of the occupant, so it was an utter violation of terms of the license. 2.He argued that the notice published on 6th August 2001 was not valid for the stalls of Baba Kharg Singh Marg market and that the decision of the cabinet of date 20th October 1989 had ceased to operate. 3.Counsel argued that the public notice which was published in The Hindustan Times dated 6th August 2001 was in respect of 14 markets and it didn’t include the market of Baba Kharag Singh Marg. 4.It was also submitted that the occupant was not in ownership of the said property on or before 20th October 1989 and the public notice dated 6th August 2001 specified that the earlier decisions of the cabinet shall cease to operate. Explanation: The Supreme Court observed that the letters dated 21st May 2008 and 8th July 2008 in which Director of Estates had communicated to the Council stating all the power to manage the markets shall be handed to Council/Municipal corporation of Delhi and that the Council may take appropriate action in this case by themselves, was interdepartmental statement and not any policy or circular that was meant for public. And those interdepartmental statements are not orders of Union or of Council. It was observed that the occupant clearly violated the terms of license, as the partnership was performed, which ended within 2 months. It stated that only the rights of Government of India in running the markets as a lessor or licensee was transferred to the council and not the land or the building, i.e., there was no transfer of rights to the council, and it was only to manage the markets as an agent of the Union and not as an owner. It was held that the markets transferred by the Government of India to the Council have to be dealt independently and distinctly than the other properties owned by the council. Verdict: The Hon’ble Supreme Court held that the orders passed by the High Court are erroneous in law and set it aside. And reinstated the order of eviction which was affirmed by the learned Additional District Judge. [1] [2021] SCC Online SC 803.

Pushkin Tandon Associate Editor, Legal WIND Date of Judgment: December 07, 2020 Bench: Honorable Justice Sanjiv Khanna and Honorable Justice A.M. Khanwilkar Court: Supreme Court of India Citation: [(2020) SCC Online SC 994] Introduction: The Constitution of India enshrines liberties and privileges on the pedestal of advancement and preservation of society. Reasonable restrictions bind every right and freedom available to citizens. These restrictions are safeguards against acts that tend to cause damage and harm to the feelings and safety of the citizenry. Freedom of press comes under Article 19(1) (a), which enables the propagation of an idea.[1] India's law commission suggests restrictions on the grounds of sedition, obscenity, defamation, and public order interest. These restrictions are supposed to be determined based on the content, context, and extent of abuse caused by speech. They are maintained to ensure that marginalized and weaker sections of the society are not demonized to the extent that they lose their status of equality with the majority. The Supreme Court tries to define hate speech through international agreements such as Article 20(2) of the International Covenant on Civil and Political Rights, 1966; Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (CERD); Article 10 of the European Convention of Human Rights. These definitions lay down the criminalization of propagating xenophobia, religious intolerance, and hatred, anything that degrades any identity's protection and dignity on cultural, religious, racial, and sexual grounds. While determining the contours of public duty and the proportionality of an act, the Court faces a challenge defining reasonable restriction, especially in a constantly evolving society. The collective mental state of society comprised of past and present experiences play a significant role in shaping and labelling criminality on speech. Therefore, constitutional and statutory treatment of 'hate speech' relies on the citizenry's morality and the values it seeks to promote. The prevailing conditions determine the morality of a society that dictates a nation's laws. Background and Facts: The Managing editor of News18 India, Amish Devgan, disparaged the Sufi saint Pir Hazrat Moinuddin Chishti while anchoring his Primetime news show . While debating the Places of Worship (Special Provisions) Act, which talks about religious conversion and the preservation of the religious character of shrines as they existed at the time of independence, the dialogue went astray. He called the multi-culturally revered saint a plunderer and a terrorist. He insinuates a mass religious conversion of Hindus to Islam purported by the holy saint. He was then threatened and intimidated through phone calls and social media by people across the nation. The actions were believed to be deliberate attempts to debase the Islamic community and incite hatred towards them. The news anchor claimed careless error as he mistakenly named the Sufi saint instead of Alauddin Khilji. The debate' Aar Par' was aired on June 15 2020; on June 17 2020, an apology video was posted on social media and aired on the same television network. Multiple FIRs were filed against the petitioner in the present case across various state jurisdictions under sections 295A, 153A, 505(2), and 34 of the IPC. The charges were of (i) deliberately outraging the religious feelings of any community and insulting their beliefs [Section 295A], (ii) Disruption of harmony and promotion of enmity between religious groups [Section153A] (iii) Publishing statements which conduce public mischief [Section 505(2)] (iv) committing acts performed by several persons in furtherance of a common intention [Section 34]. On June 22, 2020, the petitioner filed a writ to seek quashing of FIRs, or in its alternative, the transfer and clubbing of cases with the first FIR filed at Ajmer and to restrict any further complaints telecast. He further sought the protection of his family members and colleagues due to various death threats. The respondents contended that the accused intentionally made such statements as there was no context of Mughals or Allaudin Khilji during the debate. The apology furnished by the petitioner is not genuine, spoken in self-defence as a panelist on the debate reminded him of the piousness of the Sufi saint. The debate was a dramatized television show with no factual analysis and was published to malign Muslims and to spread hatred against them. Issues Raised: 1. While determining Mens Rea, the content and language must be judged from the standard of a sane, reasonable, and strong-minded person. Whether the speech made was due to malicious intention or callousness of the speaker? 2. The Constitutional and statutory validity of 'Hate Speech'. Is it a reasonable restriction under Article 19(2)? 3. Whether acts or words likely to promote alienation amongst members of different communities that undermine the nation's unity and integrity are punishable? 4. Whether indifference or neutrality aligns with tolerance and a targeted attack on the dignity of a group of people disrupts unity and promotes public disorder. Arguments Advanced: The contentions raised by both the parties are as follows: Petitioner: 1. The Court should quash multiple FIRs arising on the same action or transferring and clubbing them together. 2. The controversial speech should be taken as a whole and not in utterances or pieces as the complainants do. The context of the speech should not get overlooked. 3. Multiple FIRs were filed to intimidate the petitioner and to harass him. 4. No cause of action arises as the matter is a trifle and the words were a mistake, and the act lacks malicious intention. Respondent: 1. The petitioner commits a deliberate act done on multiple occasions to incite hatred against the Islamic community. 2. The petition under Article 32 should be dismissed as a remedy under §482 of CrPC available to the petitioner. 3. Allaudin Khilji had no reference on the show and no relation to Pir Chishti; both the personalities were separated by space and time. 4. Anti-social and communal elements used the footage to spread hatred against Muslims in Maharashtra. 5. The speech amounts to hate speech as it demeans a holy religious symbol. Explanation: The Court concludes that the freedom of speech and expression is not an absolute right as conferred under the first amendment of the USA after a detailed analysis of various tests and jurisprudence prevalent across the globe. The USA promotes individuality by preferring liberty over curtailment. Thinkers believe that freedom of speech works on the principle of Laissez-Faire and that a free market flow of ideas ensures a state's democratic nature. Further, social contract theory suggests that criticism is a path towards accountability and governments must constantly justify their actions to the citizenry based on the hypothetical contract. The jurisprudence has evolved from the pernicious tendency to harm public welfare to clear and present danger, which talks about proximity and degree of speech and violence or hatred that follows. The Canadian jurisprudence follows that hate speech perverse the mind of a targeted group through desensitization and undermines and insults the targeted groups, which results in weaker social cohesion. Propaganda erodes the tolerance and open-mindedness required for a multicultural society to survive that promotes and commits to the idea of equality.[2] The position in the UK has shifted from stressing the safety of the state against violence to preventing targets against racial harassment. There should be a specific intention to insult or vilify the feelings of a community, and this intention must be present.[3] There should be a reasonable and proportional nexus between the freedom and restriction imposed on it.[4] The contents of a message should express hostility against a group that might cause structural changes and intends to demean, vilify, and promote ideological warfare against any set of identities. The harm caused through hate speech is not limited to violence but extends to psychological harm caused by fear or insecurity cultivated in the minds of targeted groups through the propagation of hatred. The Court reiterates the golden triangle principle where the Court said that freedom of expression is sacrosanct for individual growth and progress of democracy. The rights of equality and dignity should get considered in issues of freedom of speech and expression.[5] Dignity here is defined as entitlement to constitutional rights and equality, specifically the prerogative of respect as a member of a society in good standing. The states should promote social harmony and tolerance by self-restraint, check, and correction through institutions or statutory regulations. Hate speech in the modern and global context of pluralism has nothing to contribute to democracy. It even alters equality for all populations. The reasonability of restriction is not determined based on the curtailment of freedom but on weakening the unity of a state. The judgment goes on to pronounce that freedoms and rights do not extend to causing public disorder and cannot protect those who challenge the integrity and unity of the country or incite violence. The right and the restriction both exist to maintain political, social, and representational equality, and thus, one justifies the other. The Court talks about the sedition cases, justifies dissent, and promotes the free flow of ideas with the disruption of public order as the only restriction.[6] In, Superintendent, Central Prison, Fatehgarh, and another v. Dr. Ram Manohar Lohia[7] defines public order as the bare modicum of tranquility required in society to pursue livelihoods and function regularly as its absence leads to curtailment of all other rights enshrined in the constitution. 'Law and Order,' 'Security of the State,' and 'Public Order' are three concentric circles, with state security being the narrowest and Law and Order the widest in scope. Breaches of public order are of local significance, caused by disagreement, annoyance, or unrest, whereas usurpations and rebellions undermine the security of the state. Verdict: The Honorable Court rejected the contention to quash FIRs under Secion 179 of the criminal procedure code, which allows filing an FIR at places where the consequence of the act reverberates. When conjoined with Section 156(1), the above provision rids the complaints of jurisdictional defects. The viewer base was in various towns and cities and was affected widely. Further, the complaints were clubbed together on the grounds of Section 186 CrPC and Section162 CrPC, which treats subsequent FIRs as a statement. The matter was transferred and clubbed at Ajmer as they ensued from the same act, and the Court relied upon precedents.[8] The defense of trifle as under Section 95 of the IPC cited through judgments of Veeda Menez, and Neelam Mahajan were rejected. The Court held that the section safeguards against penalizing negligible wrongs or offenses of a trivial character. The triviality of the act would depend on the knowledge or intention of the accused combined with injury or harm caused while considering evidence collated. Reasonability cannot be established by creating a causal linkage between the words spoken with the 'clear and present danger' and 'imminent lawless action.' When discussion or advocacy reaches the level of incitement and tends to incite or disrupt public order, Article 19(2) comes into action. The language of a speech determines intention, whether incitement or hatred is present, and the objective of the speech. The consequences of breach of tranquility are a natural consequence of the speech.[9] This restriction needs to stay balanced because restrictive measures are essential in preserving the integrity, sovereignty, and friendly relations with other states. The purpose of limitation should balance the limitation imposed on a constitutional right.[10] Some of the restrictions on speech and expression are often misused, mainly used to curb dissent and silence the opposition, although it is a necessary restriction as it exists to ensure the safety and security of the populace. Each case has a different factual matrix, and the nexus between speech and harm caused in light of context should be the criteria to impose criminality. The long terms effects of hate speech, when combined with imminent lawless action, degrades the compatibility of cultures. The unity of the nation is to be maintained through reasonable restriction and erudition. Hate speech is a hindrance to safety and survival. The element of hate speech is not limited to actual violence but extends to the tendency of a speech to incite. This incitement leads a sane-minded person to compromise the sense of security and belonging of a person who does not conform to the most acceptable identity standards in the nation. There should be a reasonable nexus of the speech with such vilification or imminent lawless action. The speech or action should result in a present and clear danger. Communal Pertinence: The Law finds contemporary relevance in an era where cyberbullying is widespread in a context where the world is more diverse and connected than ever owing to liberalization and globalization. The Law is pillared on the principles of nature, where action has an equal and opposite reaction. Reasonable restrictions are not only constitutional but also natural. If freedom or liberty is made absolute, it can often mislead ignorant persons and invite severe reactions. Incidents like hate speech, xenophobia, or even humanitarian crises are not an exercise of liberty as they tend to suppress the right of expression of other cultures and end up subjugating them. The judgment has significant value and ensures the protection of minorities from the desecration of one's ideals and values. In an age of state and corporate-controlled media, information usually loses its neutrality and serves the purposes of an agenda. This agenda exists to mobilize masses for gaining popular political support or fuel fascism behind the smokescreen of nationalism and unity of the majority. Incidents of violence against a minority in India are frequently based on false news spread through social media interfaces. These actions threaten not only Law and Order of a local jurisdiction but affect the public order across the nation. The concentric circle of Public Order was made evident by the mass protests across the nation against Citizenship Amendment Act and the violence that ensued in Delhi. The genuine incitement, in my opinion, is the generation of fear in the minds of a specific group of population. This fear extends from safety and security of life to the right to protect and gain resources for themselves. After a person's loss of dignity, they tend to take actions or steps to survive after enduring enough subjugation. The solution that comes to mind is stubbing the threat at the source, which may eventually create a vicious cycle of violence. The determination of hate speech is not affected by its veracity but includes resulting consequences. Conclusion: The Ratio Decideni of the case establishes procedural law, allowing clubbing cases when an offensive speech is propagated on national television. The FIRs are not quashed as the cause of action arose across regional state boundaries and hurt sentiments of religious communities spread across the country. The erudite honorable judges observed the evolution of crimes against the state to emphasize society's context or collective mindset. Hate speeches tend to cause mental health issues of constant anxiety, paranoia, and fear. It gets perceived considering harm and risk involved with the action and how it corrupts or degrades a particular sect of society. Therefore, the difficulty of coming to a standard definition is omnipresent. The only familiar and agreed-upon element is incitement to violence. The judgment ends up strengthening the freedom of speech and expression by promoting equality amongst disparity. The judgment upholds the ideals of inclusiveness and ensures nourishment of cultural diversity by identifying and labelling attacks on unity. The objective of hate speech is to demean and create inequality by popularizing hatred against the norms and values of a particular sect. The judgment is valuable as it imposes checks on restrictions to balance the right, liberty, and consequent duty. Tolerance towards indignity and oppression is a violation of Article 21, and intolerance towards different identities and their expression is oppressive and violates the freedom granted to the citizenry of a state. The acts are viewed in the context of society, and the public spirit or mood of society, the morality of society, and its reaction to statements are significant in establishing criminality. [1] Sakal Papers v. Union of India, AIR 1962 SC 305, Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC 106. [2] Canada (Human Rights Commission) v. Taylor, (1990) 3 SCR 892, Beauharnais v. Illinois 343 U.S. 250 (1952). [3] Ramji Lal Modi v. State of U.P, AIR 1957 SC 620. [4] Shreya Singhal v. Union of India, (2015) 5 SCC 1. [5] Rustom Cowasjee Cooper v. Union of India (1970) 2 SCC 298, Maneka Gandhi v. Union of India (1978) 1 SCC 248. [6] Kedar Nath Singh v. State of Bihar, 1962 AIR 955. [7] AIR 1960 SC 633. [8] Babubhai v. State of Gujarat, (2010) 12 SCC 254; T.T. Antony v. State of Kerala, (2001) 6 SCC 181. [9] Gopal Vinayak Godse v. Union of India AIR 1971 Bom 56, P.K. Chakravarty v. The King AIR 1926 Calcutta 1133 and Devi Sharan Sharma v. Emperor AIR 1927 Lah 594. [10] Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others, (2016) 7 SCC 353, Anuradha Bhasin v. Union of India and Others, (2020) 3 SCC 637.

Advait Thatikonda Senior Editor, Legal WIND Date Of Judgment: January 25, 1978 Bench: M.H. Beg, C.J., Y.V. Chandrachud, V.R. Krishna Iyer, P.N. Bhagwati, N.L. Untwalia, S. Murtaza Fazal Ali and P.S Kailasam Court: Supreme Court of India Citation: [(1978)1 SCC 248] Introduction The landmark ruling in Maneka Gandhi versus Union of India, which stands as a bulwark of the Right of Personal Liberty granted by Article 21 of the Constitution, started when the passport of the petitioner, in this case, was impounded by the authorities under the provisions of the Passport Act. This arbitrary act of impounding the passport eventually led to the pronouncement of a unanimous decision by a seven-judge bench of the apex court. Brief Facts This case is essentially about a woman journalist who had to fly to a different country on some official work. Maneka Gandhi (addressed as the petitioner) had applied for a Passport under the Indian Passport Act, 1967 which was also issued in due time. However, after being issued the passport, the regional passport officer has issued her a letter stating that her passport has been impounded or seized by the Government of India under certain provisions of the abovementioned Act. The said Act conferred powers on the administration to take certain actions in National Interest. The petitioner was prompt in replying to the letter seeking the reason/grounds under which her passport has been impounded as a response to which a reply letter was issued. This letter has stated that such an administrative step was taken in the larger interest of the public and that she shall not be furnished a copy of the statement of reasons. The petitioner had then filed a written petition under Art.21 of the Constitution on grounds that the administrative steps taken by the Government of India have violated her fundamental rights under Art.21. Political scenario during the proceedings A political tussle had arisen instantly during the period after an emergency when the Janata Party had assumed power in 1977. Mrs. Maneka Gandhi was the daughter-in-law of the former prime minister of India, Mrs. Indira Gandhi. She had included political bias in her writings and published them on a platform called Surya. She even went on to the extent of publishing the pictures of the son of the defense minister Jagjivan Ram engaging in sexual intercourse with a student of Delhi University. These state of affairs reflect that there was an intense political rivalry prevailing. Issues ● Whether the right to travel abroad is included under the ambit of Art.21 ● What is the scope of the Due Procedure established by law? ●Whether the procedure laid in the Passport Act, 1967 for the administration to take steps in the interest of national security is violative of Fundamental rights? ●Whether the letter issued by the regional officer violative of the principles of natural justice? Contentions by the Petitioners The primary contentions of the petitioner were that the Rights to travel abroad, life and personal liberty, freedom of movement, and expression were all curtailed by the impugned order issued by the regional passport officer. It was also contended that the rights under articles 14, 19, and 21 are not exclusive but have a mutual nexus. Furthermore, Section 10 (3) (c) of the Passport Act violates Article 21 of the Indian Constitution because it violates the right to life and personal liberty. The said section in the Passport Act restricted the petitioner from traveling abroad. This was unconstitutional as right to travel abroad was encompassed within the right to life and personal liberty under Article 21. Lastly, it was contended that any procedure established by law is required to be free of arbitrariness and must comply with the “principles of natural justice”. Contentions by the Respondents The primary contention of the respondents was that the ‘Right to Travel Abroad’ was never covered under any clauses of Article 19(1) and hence, Article 19 is independent of proving the reasonableness of the actions taken by the Central Government. Also, that the Passport Law was not made to blow away the Fundamental Rights in any manner. Moreover, the Government should not be compelled to state its grounds for seizing or impounding someone’s passport for the public good and national safety. The respondents also relied on the principles laid in the A.K Gopalan case[1] that word law under Article 21 cannot be comprehended in the light of fundamental rules of natural justice. Lastly, it was said that the principles of natural justice are vague and ambiguous. Therefore, the constitution should not refer to such vague and ambiguous provisions as a part of it. Judgment In regard to the right to travel abroad, the court relied on the principle followed in Satwant Singh Sawhney v. D Ramarathnam[2] where it was stated that “personal liberty” in its ambit, also includes the right of locomotion and travel abroad. Hence, no person can be deprived of such rights, except through procedures established by law and since the State had not made any law regarding the regulation or prohibiting the rights of a person in such a case, the confiscation of the petitioner’s passport violates Article 21 and its grounds being unchallenged and arbitrary, it is also violative of Article 14. Now, regarding the procedure established by law, it was held by the Apex court that any law or order shall be fair, just, and reasonable and shall not be arbitrary or oppressive. So, if a law does not conform to this permitted space under Art.21, the same shall be deemed violative of fundamental rights and therefore, unconstitutional. In the instant case too, the court held that the administrative step to impound the petitioner’s passport was arbitrary. So, the powers conferred under certain provisions of the Passport Act[3] were held to be not violative of any fundamental rights, especially Article 14. In the present case, the petitioner is not discriminated in any manner under Article 14 because the statute provided does not provide unrestricted powers to the authorities. On grounds of “in the interests of the public” is not vague and undefined, rather it is protected by certain guidelines which can be borrowed from Article 19. Lastly, A. K. Gopalan was overruled stating that there is a unique relationship between the provisions of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Earlier in Gopalan, the majority held that these provisions are mutually exclusive. Therefore, to correct its earlier mistake the court held that these provisions are not mutually exclusive and depend on each other. Analysis The above judgment was widely appreciated in the country because the dictum in the A.K Gopalan case was overruled. Also, by providing a liberal interpretation to Maneka Gandhi, the courts had set a benchmark for coming generations to seek their basic rights whether or not explicitly mentioned under part III of the constitution. Today, the courts have successfully interpreted different cases in order to establish socio-economic and cultural rights under the umbrella of Article 21 such as Right to Clean Air, Right to Clean Water, Right to freedom from Noise Pollution, Speedy Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment, etc. as a part of Right to Life & Personal liberty. The judgment opened new dimensions in the judicial activism and PIL’s were appreciated and judges took interests in liberal interpretation wherever it was needed in the prevailing justice. Conclusion The judgment’s most important feature was the interlinking it laid down between the provisions of Articles 19, 14, and 21. Through this link, the supreme court made these provisions inseparable and into a single entity. Now, any procedure has to meet all the requirements mentioned under these three articles to be held valid. As a result, this judgment enlarged the scope of personal liberty significantly and preserved the fundamental & constitutional right to life. This judgment, apart from protecting citizens from the unchallenged actions of the Executive, also preserved the sanctity of parliamentary law, when it refused to strike down the 1967 Act’s Sections 10(3)(c) and 10(5). [1] 1950 AIR 27 [2] 1967 AIR 1836 [3] Indian Passport Act, 1967.

Authored By: Srimayee Mohapatra – Proof Editor Tanushree Suman Ray – Associate Editor Date Of Judgement: May 12, 2021 Bench: Uday Umesh Lalit, Hon’ble Ms. Banerjee, K.M. Joseph Court: Supreme Court of India Citation: [SLP© No. 8630 of 2020] 1. Introduction: The Supreme Court of India in ‘Uttar Pradesh Power Transmission Corporation Limited v. CG Power and Industrial Solutions Limited’[1] and has held that the existence of an arbitration clause under a contract does not debar the court from entertaining a writ petition in an appropriate case. Further, the judge ruled upon the applicability of cess (Labour cess) under the Building and other Construction Workers’ Welfare Cess Act, 1996 (the cess Act) and Building and Other Constructions Workers (Regulation of Employment and Condition of Service) Act, 1996(the BOCW Act) in relation to supply contracts. According to the statement of Objects and Reasons for the BOCW Act, it is estimated that around 8.5 million workers in the country are engaged in building and other construction works. Building and other construction workers are one of the greatest and helpless segments of the unorganized labor in India. The Building and other construction works are characterized by their inherent risk of the life and limb of the workers. This work is also characterized by the casual nature, the temporary relationship between employer and employee, undetermined working hours, lack of basic amenities, and inadequacy of welfare facilities. The underlying Special Leave Petition under Article 136 of the Constitution of India was filed by Uttar Pradesh Power Transmission Corporation Limited (UPPTCL) against the final judgment and Order passed by the High court of Judicature at Allahabad (Lucknow Bench), which allowed the writ petition filed by CG Power and Industrial Solutions Limited. 2. The fact of the Case: The Special Leave Petition, under Section 136 of Constitution of India, filed by the Petitioner, which referred to as the UPPTCL, against a final Judgement and order dated 24th February 2020, passed by the High Court of Judicature at Allahabad (Lucknow Bench), allows the writ petition filed by Respondent No.1 and set aside the letters dated on 2nd of September 2016 and 29th of December 2018 issued by Executive Engineer, Unnao UPPTCL directing the Respondent No.1 to remit Labour Cess amounting to Rs.2,60,68,814, computed at 1% of the contract value, under section 3 sub-section (1) and (2)[2] read with Rules 3 and Rule 4 (1) (2) (3) and (4) of the Building and other Construction Workers Welfare Cess Rules, 1998, referred as the “Cess Rules” and also section 2(1)(d), (g) and (i) of the building and other Construction workers (Regulation of Employment and condition of Service) Act, 1996, referred to as the BOCW Act. The BOCW Act has been enacted to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health, and welfare measures and for other matters connected with or incidental. 3. Key contentions/ Issues raised: The following issues or contentions were raised by the parties involved: 1. Whether cess under Cess Act read with BOCW Act is leviable regarding a contract for supply and delivery of equipment and materials? 2. Whether the availability of an alternative remedy prevent the High Court from entertaining a writ petition? 4. Arguments given/ Stand: The argument presented by the petitioner- The petitioner to justify his submission relied upon Clause 8 of the special condition of the supply contract which states that prices of imported items shall be inclusive of all duties, taxes, fees, etc. as are legitimately pertinent might be paid by the contractor and no isolated claim shall be entertained by the purchaser. The argument presented by Respondent - Mr. Ramesh Singh, the learned counsel for the Respondent has appropriately pointed out that just for timely execution of performance all the four contracts are considered as a singular contract. For the other reason including levy of tax and expenses, the supply contract shall be treated as a divisible and separate contract that is well understood by both of the parties. UTTPL has very well understood that a supply contract would not come within the ambit of the Cess Act. Hence levy of labor cess amount is not applicable in the case of the supply contract. The respondent also argued that according to the terms and conditions of the contract the first contract was Supply and Delivery of apparatus and Materials. The first contract is separable, divisible, and distinct from the civil contract. Hence levy of cess in respect of the first contract was illegal and unwarranted. 5. Judgement: The Court was hearing a dispute between UPPTCL and CG power and Industrial Limited arising out of a framework agreement for the construction of a power substation. In this case, the action of UPPTCL in forcibly extracting building cess from Respondent No.1 in respect of the first contract, solely based on the CAG report, is over the power conferred on UPPTCL by law or in terms of the contract. It was observed by the Court that entirely on the premise of the CAG report UPPTCL demanded and partly obtained cess. In the view of the Court with no arbitration, it is inappropriate to obtain cess completely based on the CAG report. The Court emphasized the Judgement made in the case of ‘Arjun Kumar Agrawal v. Union of India and Others[3], where the Court held that CAG’s report is typically subjected to parliamentary debates and it’s for the parliament to decide on whether to acknowledge or dismiss the CAG’S Report. Reference was also made to the judgment of the Court in the case of ‘Centre of Public Litigation v. Union of India’[4], where the court held that it might be improper to refer to the findings and conclusion contained within the CAG’S report. As, noticeable by the court there is no conflict or contention between UPPTL and CG Power and Industrial Solution Ltd. And Others as to the true meaning, intent, construction of any of the clauses of the contract and to the execution of performance and also the way of payment for the same. UPPTCL changed its stand only after considering the CAG’s report. The Court also noticed that there is no special power or authority has been conferred upon UPPTL to withdraw the labor cess persuasively from Respondent no.1 under Cess Act in connection to the first contract. Aside from that, the Cess Act or the other statutory rules mentioned set down certain means and modes to recover unpaid cess under Cess Act and the cess could only be recovered in that manner endorsed by the law. UPPTCL has no authority to adopt any other means to recover cess coercively. The Court further clarified that having an arbitration clause in an agreement didn’t prevent the aggrieved party from pursuing its writ remedy under Article 226 of the Indian Constitution. The Apex Court rejected the Special Leave Petition filed by the petitioner and held that judgment passed by the High Court doesn’t call for interpretation under Article 136 of the Indian Constitution. 6. Provisions and precedents mentioned: 1.Provisions mentioned: Article 136 of the Constitution of India Article 226 of the Constitution of India Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act, 1996 Building and Other Construction Workers’ Welfare Cess Act, 1996 Section 192 of the Income Tax Act, 1961 2. Case laws mentioned as precedents: Dewan Chand Builders and Contractors vs. Union of India (2012) 1 SCC 101 Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat and Others (2014) 4 SCC 156 Arjun Kumar Agrawal v. Union of India and Others (2013) 7SCC 1 Centre of Public Litigation v. Union of India (2012) 3 SCC 1 Whirlpool Corporation V. Registrar of Trade Marks, Mumbai and Ors. AIR 1999 SC 22 Pimpri Chinchwad Municipal Corporation and Ors. V. Gayatri Construction Company and Ors (2008) 8 SCC 172) 7. Observation of the court: The decision of the Apex Court in the case of UTTPL v. CG Power and Industrial Solutions Ltd. made the provision of the BOCW Act clearer. The Court after considering the judgment given in the case of ‘A. Dewan Chand Builder clarified that building cess was payable only in respect of construction work for ensuring sufficient funds for the welfare of building and other construction workers and mere supply or erection work that didn’t involve construction work was not within the scope of the BOCW act to levy cess.[5] In this present case there were four different contracts of a single framework agreement, of which only the third contract specifically involves construction works, and as per the provisions of the BOCW Act cess is payable only in respect of the third contract which covers all civil works. Hence, UTTPL has no authority to forcibly extract cess from the respondent in research of supply contract which is not permissible by law. The Court, in this case, observed that the petitioner has demanded and partially obtained cess solely based on the CAG report. In the considered view of the court in absence of any statutory adjudication process, it was not permissible for the petitioner to issue the impugned communication to deduct cess solely based on the report of the CAG. As observed by the court even though the initial contract between the parties contained an arbitration clause, there is no mention of an arbitration agreement within the Counter Affidavit. UPPTCL didn’t address the maintainability of the writ petition on the ground of the presence of an arbitration clause. The Court was correct in its decision that the presence of alternative remedy doesn’t debar the High Court for entertaining writ petition and relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. The decision of the Apex Court Settled down the dispute between the two parties by ruling that the levy of cess under cess act read with BOCW Act excludes the contract of mere supply of equipment and materials within its scope. 8. Case Analysis: The judgment of the Supreme Court in Uttar Pradesh Power Transmission Corporation Ltd. Vs. CG Power and Industrial Solution Limited of 2020 held that BOCW Cess was payable only on the contract, which covered this civil works. Other contracts did not contemplate any civil works or construction works and did not attract a levy of BOCW Cess. The BOCW Cess can only be imposed upon the construction, repair, demolition, or maintenance, or any other work of construction. Bare supply, installation, and erection activities that did not involve construction work were not amendable to BOCW Cess. There could be no realization of BOCW Cess prior to an assessment by the concerned authorities. In the absence of any adjudication by the concerned department and in the absence of contractual right, it was not permissible for the owner to debut the BOCW Cess from the contractor’s bills. In addition to the above, the SC also clarifies that having an arbitration clause in an agreement did not preclude a concerned party from pursuing its writ remedy under Article 226 of the constitution of India. From now, the decision in UPPTCL seems to have settled the debate by ruling that ‘cost of construction’ would exclude design engineering supply and maintenance et cetera scope of works. However, it cannot be overlooked that in the present case, there were four different and distinct contracts for a single project with only one contract referring to construction work specifically. 9. Conclusion: The Supreme Court’s decision clarifies an important aspect of the coverage of Labour Cess under the Cess Act and the BOCW Act. The decision clarifies that the labor Cess is payable only on agreements pertaining to building and construction work, and not with respect to supply agreements. While this view is a logical consequence of the judgment of the Supreme Court judgment in Lanco Anpara, the clarification provided by the Supreme Court to consider the ambivalence created by certain High Court decisions. Further, despite being reiterative, the Judgement’s discussion on the jurisprudence of the scope of the judicial review is instructive. References/Bibliography: https://www.scconline.com/blog/post/2021/05/25/levy-of-building-cess-on-a-contract-for-supply-and-delivery-of-equipment-and-materials-impermissible-holds-supreme-court/ Thacker, Naresh. BOCWW cess is payable only in respect of the cost of construction and not on supply or erection scope of work. 24 – May 2021. Available at: [Accessed 4 July 2021] Bhardwaj, Prachi. Levy of building cess on a contract for supply and delivery of equipment and materials? Impermissible, hold Supreme Court.SCC Blog. [online] SSC Blog. Available from:< https://www.scconline.com/blog/post/2021/05/25/levy-of-building-cess-on-a-contract-for-supply-and-delivery-of-equipment-and-materials-impermissible-holds-supreme-court/ > [Accessed 5 July 2021] Administrator, Consultease.2021. Supreme Court Order in the case of Uttar Pradesh Power Transmission Corporation Ltd. [online] CONSULTEASE.COM. Available at: [Accessed 5 July 2021] https://primelegal.in/2021/05/14/statutory-scheme-of-the-bocw-act-1996-excludes-supply-contract-within-its-ambit-supreme-court [1] SLP© No. 8630 of 2020 [2]The Building and Other Construction Workers’ Welfare Cess Act, (1996) mentioned in “Cess Act.” [3] (2013) 7SCC 1 [4] (2012) 3 SCC 1 [5] A.Dewan Chand Builders and Contractors vs. Union of India [2012]1 SCC 101(SC)

Tanushri Sharma Proofreading Executive,Legal WIND Date of judgment: 5th May 2020 Bench: Arun Mishra, Indira Banerjee, Vineet Saran, M.R Shah Court: Supreme Court of India Citation: [(2020) 3 CTC 558] INTRODUCTION The securitization and reconstruction of financial assets and enforcement of security interest SARFAESI Act, 2002 was passed as supportive legislation for the Debt Recovery laws .This gave Banks and Financial Institutions (secured creditors) more freedom while undergoing bad debts, It can be said that Banks to proceed with Section 13 of the Act relating to the enforcement of a Secured Credit Lender after giving notice to credit unions within 60 days, otherwise banks and organizations are empowered to hold Auction Residential or commercial properties promised to Banks as collateral to lenders. CASE HISTORY The Central Government enacted the Deposit and Debt Retention (Amendment Act, which replaced the “Bank” amendment to the Banking Regulation Act, 1949, of the SARFAES Act. Pandurang filed the complaint, questioning Vishwasrao Patil Murugud Sahakari Bank Limited's action under the SARFAESI Act 2002, and while the matter was pending in a court of law, the Central Government enacted the Deposit and Debt Enforcement (Amendment) Act 2012, which changed the definition of Bank in the Banking Regulation Act, 1949of SARFAESI Act 2002, Also, amendments were made in SARFAESI Act 2002 for incorporating multi-state cooperative bank in SARFAESI Act 2002.[1] CONTENTIONS The Supreme Court established four issues of translation namely: 1. Entry 45 of the Union List or Entry 32 of the State List of the Seventh Constitution regulates the cooperative banks. 2. Whether the “Banking Company” defined in the Banking Regulation comprises Co-operatives registered in the Co-operative By-laws of the State and co-operative societies with a majority of employees. 3. Does section 5 (c) of the BR Act, 1949, include banks and multinational corporations? 4. Can cooperative banks at the national, and international levels apply SARFAESI law? ARGUMENTS It was argued that, since the central bank falls under the Union's jurisdiction and the Cooperative communities are subordinate to the State, the actions taken by the Central Legislature are colored law and the Union has no power to issue a notice. Also, because the very essence of the bank includes not only the transaction process, and there is a difference between co-operative societies and co-operative banks, the Delhi High Court ruled that mere financial involvement does not give organizations the title of banking. The term “Banking”, which was used in the Entry 45 list of the Union, was already examined before the High Court and it was found that ‘Banking’ has never had a definite definition and the only definition would be a consensus among the public on established banking practice.[2] The Supreme Court also ruled that, since the receipt of funds is an essential function of any banking institution, parliament may legislate under Entry 45 of the Union's list. In addition, a distinction was also made by the Court, applying the Harmonious Construction doctrine, stating that the inclusion, control, and closure of co-operatives are under the Entry 32 list and that the banking activities of that co-operative community will fall under the Entry 45 Union List. The Court is of the view that since the banks are jointly owned by corporations, banks cannot operate without complying with the Banking Regulation Act, 1949 and any other law applicable to those banks related to "Banking" in Entry 45 of Union list and the RBI Act. list I of Schedule Seven of the Constitution of India. EXPLANATION The Supreme Court has ruled that SARFAESI law applies to banks and civil society, at the levels of government and in many countries, to recover their debts. The Act defines a 'Banking Company' as any company operating primarily a banking business or any new related bank or sub-bank or multinational bank or other banks incorporated under the Act and the Court has ruled that co-operatives come under the scope of the Act because these banks operate commercially like other banks. And also deposit and receive money from the public issued by checks, drafts, and orders or refunds and because loans are only available to members, they cannot be withdrawn from the banking sector. However, the Court could not apply the same provisions because it did not work in partner banks like it, so they found a central location and read section 56 (a) as a 'banking company' rather than a 'company' or 'such company' to operate in co-operative banks. In Greater Bombay Bank Ltd v. United Yarn Tex (P) Ltd[3], the Court ruled that the BR Act, 1949, applies to co-operative banks and therefore the Act will apply in cases relating to co-operative banks to obtain loans. A law enacted under Act 45 of Schedule I govern the role of cooperative banks so the court found that the purpose of the SARFAESI Act was achieved and found no reason why Parliament was incapable of enacting legislation., it was concluded that the SARFAESI Act also deals with the activities of co-operative banks and is not unconstitutional. The Court upheld the decision in KC Gajapati Narayan Deo v. the State of Orissa[4]where it is held that the essence of the SARFAESI Act is important and if an important issue is beyond the power of the legislature, it will be dismissed as a violation of the constitution. CONCLUSION The Supreme Court in this landmark decision sought to uphold the notion that banks and co-operatives fall within the scope and scope of the SARFAESI Reimbursement Act. The Court also sought to establish its jurisdiction by pointing out the fact that although some functions of the federal bank fall within Entry 32 in Schedule VII, the Government eventually has the power to prosecute co-operative banking and banking organizations, under Entry 45. The five-judge constitutional bench also stated that the RBI has a ‘'deep and pervasive power over the major credit unions involved in banks and this regulation is more than just regulatory and administrative, so the Court changed some definitions under the existing category Which are not included in the Act. Therefore, co-operatives performing major banking activities may seek assistance under the SARFAESI Act to obtain loans from the borrower was held as a last resort. [1] Enforcement of Security Interest and Recovery of Debt Laws (Amendment) Act, 2012 [2] Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248 [3] (2007) 6 SCC 236 [4] AIR 1953 SC 375

Authored By: Samridhi Seth - Public Member Ruchi Agrawal - Associate Editor Name of the case : Anuradha Bhasin & Ors. v. Union of India Bench : N.V. Ramana, R. Subhash Reddy, and B.R. Gava Court: Supreme Court of India Citation: [AIR (2020) SC 1308] Introduction A prominent journalist Ms. Anuradha Bhasin, the executive editor of the "Kashmir Times Srinagar Edition" filed a petition. Aggrieved by the internet shut down for an indefinite time imposed by the state after passing the rule of abrogation of Article 370 in the state of Jammu & Kashmir, the petitioner argued the internet is vital for the operating of modern press and accessibility of the internet generates profession for many people including the press and the same is guaranteed by Article 19(1)(g) which permits the citizens of India the right to practice "any profession or to carry on any occupation, trade or business". This case deals with the validity of the internet shutdown and limitations on movement laid in the state of Jammu and Kashmir, which were after the political disorder and imposing Constitutional Order 272 by the President. Case History: Urged by the political unrest prevailing as an aftermath of abrogation of Article 370 in the state of J&K, the President of India issued Constitutional order 272 on 5th August 2019. This entailed several limitations being imposed by the government in J&K, for instance: on the means of online communication, and the freedom of movement. The chaos in the state began on August 2nd, 2019 after the tourists and the Amarnath Yatra Pilgrims were directed by the Civil Secretariat of the Home Department to leave the state as soon as possible. Soon after this, schools, offices, and other institutions have circulated an order to remain close until any further instructions were passed by the government. Followed by this, basic services like landline connection, internet, and mobile connectivity were closed down for an unspecified period.[1] Moreover, additional restrictions were imposed by the District Magistrate, curbing the right to movement by imposing Section 144 of the Cr.P.C. The petitioner contested that because of the shutdown being imposed on essential services like the internet, the operations of the press have come to a grinding halt and that she was unable to issue her newspaper since 06.08.2019. There were several other petitions filed, that argued issuance of a suitable writ to quash the orders and directions passed by the state to cut down the communication services. It further requested the court to pass an order to immediately restore all the communication services including landline and internet services in the state of Jammu & Kashmir. Contentions: 1. Whether the state can be exempted from imposing any orders under Section 144 Cr.pc as well as under the suspension rules? 2. Whether the Freedom of Speech and Expression and Freedom to practice any profession, or to carry any Occupation, Trade, or Business over the Internet is a part of the Fundamental Rights under Part III of the Constitution? 3. Whether the state's action of forbidding internet access is valid? 4. Whether the restriction imposed under Section 144 was valid? 5. Whether the Freedom of Press of the Petitioner in this Writ Petition was violated due to the restriction? Explanation: In line with the issues raised the Court opined that Section 144, Cr.PC. offers the state an apparatus to deal with imminent intimidations to the public by taking protective measures. The execution of this section requires an appraisal by a judge to assert that there is adequate reason to enforce the section. Likewise, the concerned subjects on whom the execution would be applied should be acknowledged and length of such limitation must be expressed. The apex court thought that Section 144 cannot be forced on the simple probability of peril but only to forestall an occasion that could prompt a threat. Uncertain limitations were additionally unlawful. Subsequently, the burden of Section 144 was invalid. Further, it referred to the precedent of Ram Jethmalani v. Union of India, 2011[2], where the Supreme Court held that "the state is obligated to disclose the document of the order of the restrictions. The right to information is an important part of the right to freedom of speech and expression guaranteed under Article 19." Thus, the court requested the state to deliver the said document before it. Considering the second issue at hand, the court held that freedom of expression through the internet is one of the "integral parts" of Article 19(1)(a). The Court highlighted its previous decisions where it has safeguarded the new medium of expression. The Court relied on the judgment given in K.S. Puttaswamy case[3] where it was held that on account of proportionality of action should be resolved while taking a gander at the limitations being forced by the State on the Fundamental Rights of the people. It should not only consider physical and legal restrictions but also take into consideration the fear that such limitations cause in the minds of the public. The Court added that " restriction, both territorially and temporally, must stand with what is necessary to combat an emergent situation." Furthermore, the Court went against the state's contention that web destinations cannot be prohibited because of the absence of technology. As, on the off chance that is acknowledged, the state presumes that it can complete blockage which is an unacceptable argument, without fail and which cannot be acknowledged. The Court would not just see it while guaranteeing harmony, but it should also see that there is no unnecessary weight on freedom of speech and expression. While dealing with issue three, The Supreme Court said that the public authority cannot legitimize the shutting under Section 69A of the Information Technology Act, 2000 read with Information Technology Rules, 2009 for impeding access of data as it obstructs entire of the web access. The Court again reiterated the point that "complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if 'necessary' and 'unavoidable'. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy."[4] While dealing with the fourth issue, the Court came to hold that Section 144 of Cr.PC. is exercisable if there is persistent danger and the apprehension of danger. Although, it cannot apply to stifle valid opinion or objection, or practice of any democratic rights. The principle of proportionality has been effectively applied to the limitations made to have balanced and reasonable rights, and a directive put out under Section 144 should convey considerable facts to allow for judicial review of the regulation passed.[5] It further said that recurring orders given under the same law would be an exploitation of power. Finally, managing the last issue, the Court said that the petitioner could not offer any solid proof that shows the limitations forced confined the freedom of press like publication and distribution of the papers. Since the petitioners were unsuccessful to produce any proof hence the Court was unable to determine whether the claim for chilling effect was valid or merely a futile argument for self-fulfillment. Findings: After having discussed all the issues broadly, the court came up with the following directions: 1. The Court recognized the internet as a medium to practice freedom of speech and expression and to facilitate freedom of practice any profession or carry on any trade, business, or occupation and it is now protected under the constitution. 2. The Court issued an order to revive the internet services after a thorough review and highlighted that suspension of internet of connectivity services for an indefinite period of time is violative of laws under Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The suspension of services should only be on a temporary basis.[6] 3. Issuance of any orders relating to the shutting of internet service must be in compliance with the principle of proportionality in order to prevent the abuse of power and any order moved under the Temporary Suspension of Telecom Services Rules are subject to judicial review. 4. Court ordered a Review Committee to be set up to review and rectify the suspension orders. 5. If any order that has been passed does not conform with the laws laid, it shall be revoked, and new orders may be passed that complies with the laws. 6. The state authorities were instructed to restore the essential internet services such as government websites, limited E-banking facilities, hospital services. 7. The power under Section 144 Cr.P.C.. should be implemented in cases of imminent danger and threat and should not be exercised to suppress the liberty or opinions of the citizens. 8. Any order issued under Section 144 Cr.P.C. must comply with proportionality test and reasonability and Magistrate is compelled to monitor the balance between the restrictions imposed and rights of the citizens. The Court in its judgment manages to give certain relaxations to the petitioners but they were not absolute in nature. The court criticizes and curbs the exclusive powers given to the state in the name of reasonable restrictions and national security which the state happens to apply arbitrarily ceasing the fundamental rights of the public. On the other hand, the Court in its judgment held that the government's action of prohibiting the internet is constitutionally invalid, yet it did not remove the internet restrictions. Even though the Supreme Court affirmed that the restrictions under Section 144 were invalid, it did not outrightly nullify the order of curfew but left it on the review committee to decide it is time limit and proportionality of actions. Thus, the decision may not give immediate relief to the petitioner by giving direct orders but had laid a procedure to be followed. Further, the court in its judgment has expanded the horizons of freedom of speech and expression by recapitulating "that internet access was integral to freedom of expression and could not be restricted indefinitely even in the name of national security." In other words, Freedom of expression and the freedom to practice any profession online are now being protected by part III of the Indian Constitution. [1] Karman Kaur, ANURADHA BHASIN v. UNION OF INDIA (Case Law) ANURADHA BHASIN v. UNION OF INDIA (Case Law) (lexsyndicate.com) [2] Ram Jethmalani Vs Union of India (2011) 8 SCC 1 [3] K.S Puttaswamy v. Unoin of India (2017) 10 SCC 1. [4] . ANURADHA BHASIN V. UNION OF INDIA: FREE CASE BRIEF - Prolawctor, last visited – 27/5/2021 [5] Ayush Verma, Anuradha Bhasin v. Union of India- Case Analysis, (Anuradha Bhasin v. Union of India- Case Analysis - iPleaders), last visited – 27/5/2021 [6] Anuradha Bhasin & ors. v. Union of India AIR 2020 SC 1308 www.scconline.com

Ashima Mishra Human Resource Executive, Legal WIND Date of Judgement: 30 April 2021 Bench: Single judge bench led by Justice Ajay Bhanot Court: Allahabad High Court Citation:[(2020) Allahabad HC 9594] INTRODUCTION: Law has been a savior, and a punishment given for an individual according to their deeds during their lifetime. Whether it is Indian law or International law, it has treated every individual equally. When the constitution was being drafted during the pre-independent era, many provisions were not inserted as there was no requirement during that time, but with due course of time, when society developed, things started changing according to the need to time, needs of the people increased, the crime rate rose to next level. As, a result of which many provisions were inserted, and along with it many legislations came into force. The same goes for children who are also referred to as juveniles.[1] They have been given a separate class under the Constitution of India by keeping in view their needs. The fundamental rights provided under the constitution of India are not only restricted to adults, but it is equally applicable to children. Indian laws have given birth to the legal provision especially for the children for four times followed by an ample amount of amendments in the years 1986[2], 2000[3], 2015,[4] and 2021[5]. The Juvenile Justice Act of 2015 has a provision which states that if a person is forced to reveal the details of his criminal prosecution as a juvenile then it would lead to violation of the right to privacy as well as it would conflict with the right to reputation of a child guaranteed under Article 21 of the Constitution of India. It also goes against the provisions mentioned under the Juvenile Justice Act of 2000 which speaks about the protection of a child. The interviewing authority cannot compel or ask any candidate to reveal the details of any criminal prosecution faced by him as a juvenile. BACKGROUND AND FACTS OF THE CASE In the following case, the Petitioner named Anuj Kumar filed a writ petition in the High Court of Allahabad as he was removed from the appointment of the post of constable in the PAC, Etah despite qualifying all the examinations. On 14 January 2018, the petitioner found out about the advertisement given by the Uttar Pradesh Recruitment & Promotion Board applied for the position of constable in Civil Police & Provincial Armed Constabulary. The Petitioner qualified for both the written test as well as the physical standard exam and got selected at the serial no. 1350 as per the list released by the concerned authority. Later the Petitioner was restraint from the appointment as it was found that as a result of an inquiry made by the Senior Superintendent of Police of Etah that the former has a criminal record in the past and the charges were registered under sections 3 and 4 of the Uttar Pradesh Public Examination (Prevention of Unfair Means) Act, 1998. This led to the aggrieved person to file a writ petition against the authority because of the unfair denial of appointment for the post of constable in PAC, Etah. ISSUES: 1.Whether the petitioner can be restraint from the appointment for the post of constable because of his previous criminal prosecution while he was a juvenile? 2. Whether the interviewing authority misinterpreted the law by compelling the Petitioner to disclose the details of his previous criminal antecedents? ARGUMENTS: The following arguments made by both sides are as follows: - The contention by the Petitioner- ● The learned counsel of the petitioner Mr. Arvind Kumar Singh submitted that the law was wrongly directed by the Respondent. ● The Respondent has removed the petitioner just because of the offense committed by the latter when he was a juvenile. ●The learned counsel has argued that the order of removal based on criminal antecedents during the juvenile period is purely arbitrary, illegal, and violates Article 21[6] of the Constitution of India. Contentions by the Respondent- ● The counsel on behalf of the Respondent contended that the pendency of the criminal case, as well as the suppression of the same in the attestation form by the Petitioner, has been admitted. ●He further submits that the charges framed against the petitioner are not petty in nature. ●The removal of the Petitioner has been lawfully done as he is not eligible for the appointment of such a disciplined job which plays a major role in serving society. EXPLANATION: This case has been in conflict with the existing laws of the Juvenile Justice Act of 2015. Section 24 of the said act states that if a child has faced any criminal prosecution shall not suffer from any disqualification and the child who has completed the age of sixteen, then the clause (i) of sub-section 1 under section 24 shall not apply to him. In this case, the petitioner was fifteen years eight months, and twelve days old when he faced such criminal prosecution, so this law can be applicable to him. Sub-section 2 of this provision also provided that the police or the children’s court shall be asked by the board to destroy the relevant record after the expiry of the period of appeal but in the heinous cases, such record shall be retained by the court. Similarly, section 74 and 99 of the said Act deals with protecting the child’s identity and to keep the record of the child confidential who have faced such criminal prosecution. Thus, all these sections have been in conflict as the respondent has misdirected by removing the petitioner from a reputed job on the basis of previous convictions as a child along with compelling him to reveal his identity which is an offense under the Juvenile Justice Act, 2015. The Court also referred to the case of K.S. Puttuswamy Vs. Union of India[7] where the court held that the right to privacy is also a child’s fundamental right. And Right to privacy also includes the right to deny information relating to his prosecution as a child for a heinous offense. In this case, many surveys were made based on the Juvenile Justice (Care and Protection of Children) Act, 2015 where it was found that the petitioner was a child in conflict with the law during the commission of the offense. Here the child in conflict with the law means a child who is yet to complete eighteen years of age. It was also found that there is a right of an employer to find about his employee’s criminal records before appointing him but the legal regimes of child rights also circumscribed it. The interviewing authority has functioned contrary to sections 24, 74, and 99 of the Juvenile Justice Act of 2015 which is clearly violating Articles 15 (2) and 21 of the constitution of India. VERDICT: In this case, the Hon’ble Allahabad High Court held that mere prosecution and imposition of a penalty for an offense cannot be a ground for restraining a person from appointment. The court issued the writ of mandamus and along with that implement certain orders. The Hon’ble Allahabad High Court directed for the re-appointment of the petitioner as he was removed despite posing all the required qualifications and caliber for the constable post. Further, the court also directed the concerned authority to issue an appointment letter along with providing a post as per his seniority which he would have received if his candidature was not canceled. Hence the court allowed the petition. The Court also held that if a candidate is juvenile and he faces any criminal charges that it will be unfair to judge his suitability based on that prosecution and it shall be a clear violation of Article 14[8] as it is arbitrary and illegal. CONCLUSION: It can be concluded that the juveniles and the adults form two different categories of people and judging an adult based on past criminal charges can be considered but in the case of a juvenile it cannot be a ground to judge. Hence the conviction as a juvenile by the Juvenile Board is to be kept secret and there is no requirement to disclose the details of his record during his employment and in any of his events during his life. [1] Juvenile means a child below the age of 18 years. [2] Juvenile justice Act, 1986 [3] Juvenile justice (Care and Protection of Children) Act, 2000 [4] Juvenile justice (Care and Protection of Children) Act 2015 [5] Juvenile justice (Care and Protection of Children) Act, 2021 [6] No person shall be deprived of his life or personal liberty except according to procedure established by law. [7] K.S. Puttuswamy Vs Union of India [ 2017]AIR SC 4161 [8] The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India

Authored By: Satyaroop Kar – Outreach Executive Rashmi Rekha – Proof Editor Date of Judgement: 5th May 2021 Bench: Justice Ashok Bhusan, Justice S. Abdul Nazeer, Justice L. Nageshwar Rao, Justice Hemant Gupta, and Justice S. Ravindra Bhat. Court: Supreme Court of India Citation: [Civil Appeal No.3123 of 2020] Brief Overview of the case: This case deals with the recent strike down of the Maratha reservation law which exceeded the 50% reservation cap set by the government. Facts of the case: The case of Jaishri Laxman Rao V. Chief Minister[1] also known as the Maharashtra reservation case deals with special provisions for the advancement of Socially and Educationally Backward Class (SEBC) citizens, provided in the Maharashtra State Reservation (of seats for appointment in educational institutions in the State and for appointment or posts for public services under the State) for Educationally and Socially Backward Category (ESBC) Act, 2014 and Maharashtra State Socially and Educationally Backward Class (SEBC) (Admission in Educational Institutions in the State and posts for appointments in public service and posts) Reservation Act, 2018. The above act provided 16% reservation to the Maratha community and classified them as Socially and Educationally Backward Class. The High Court upheld the Act except for the percentage of reservation provided under section 4(1)(a), 4(1)(b) of over and above 12% and 13% respectively as recommended by Maharashtra State Backward Class Commission chaired by M.C. Gaikwad. Issues raised: 1.Should the Maratha community be granted 16% instead of the amended 12% and 13% reservation in the SEBC Act 2018[2], and exceed the 50% social reservation which is given by Indira Sawhney’s case? 2.Should the case of the existence of extraordinary situations and exceptional circumstances within the state fall under the exceptions carved by Indira Sawhney’s case? 3.Whether the Constitution’s 102nd amendment denies the State Legislature of its ability to establish enactment that decides the Socially and Economically Backward Classes? Arguments presented: Arguments of petitioners: 1. The Petitioners raised contentions on the authenticity of the Report given by the Gaikwad commission. It was argued that the report was not based on the fiscal data and that the Gaikwad Commission did not have the power to go beyond the National Commission and State Committees’ findings, which indicates that Marathas are a forward class in Maharashtra till June 2013. 2. The Petitioners also raised the questions on the claim to refer Indira Sawhney Judgement[3] to a larger bench is baseless as the limit of 50% decided by the Sawhney judgment, is an integral part of Article 14, 15, and 16 of the Constitution. The Petitioner also stated that the extra-ordinary circumstances mentioned under the judgment are restricted only to far-flung and remote areas. 3. Petitioner also submitted that after the 102nd Constitution Amendment the states could not identify Socially and Educationally Backward Classes, however they can still decide the nature or extent of provision favoring Socially and Educationally Backward Classes identified according to Article 342A. Arguments of Respondents: 1. The Respondents questioned the 50% ceiling on the reservation decided by the Indra Sawhney case. They claimed that the article 15(4) and 16(4) did not mention any limitation when they were added. Moreover, the Indira Sawhney case provided extraordinary cases where the 50% ceiling can be exceeded. 2. The Respondents also argued that the validity cannot be challenged as the report was unanimously accepted which led to the 2018 Act. 3. The Respondents also claimed that the 102nd amendment curtailed the state’s ability to specify the Socially and Educationally Backward Classes, and that the article 15(4) and article 16(4) provide powers to the state to recognize SEBC and take appropriate actions regarding their welfare. Hence, the states should be allowed to specify SEBC. Provisions applied: 1. Article 14: States the equality of Law 2. Article 15: states the prohibition of discrimination on the grounds of religion, race, caste, gender, and place of birth. 3. Article 16: provides for equal opportunities in matters of public employment. 4. Article 342 and 366: state scheduled tribes. 5. Article 368 Power of the parliament to amend the constitution. Observations of the court: The Court observed that there are two issues concerning the legality of the 102nd Amendment Act's provisions. The first is a formal challenge in that the petitioner contends that the amendment is void unless it is approved or ratified by at least one-half of the legislative assemblies of all States, as specified in the proviso to Article 368(2). It is also worth noting that direct amendments to any of the legislative entries in the three lists of the Constitution's Seventh Schedule require ratification. Thus, the insertion of substantive provisions that may have an indirect effect on future legislation by the State would not violate the Constitution for failing to follow the procedure outlined in the proviso to Article 368(2). In Sajjan Singh (supra), the court held that: “The question which calls for our decision is: what would be the requirement about amending a constitutional provision in Part III if because Gaikwad, of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?”[4] Judgment of the court: The Hon’ble court decided to strike down the Act and mentioned the following reasoning to the judgment: 1.The Court decided that the Indira Sawhney case does not require to be referred to a larger bench and is constitutionally valid with regards to the subsequent constitutional amendments, judgments, and the different changes in the social dynamics of the country. 2.The Court also observed that the Gaikwad commission does not provide any exceptional or extraordinary circumstances which justify exceeding the 50% limit and hence the act is in direct violation of Article 14 and 16 of the Constitution. It was also concluded that the Maratha community had adequate and substantial representation in different sectors of the public services. 3.The Court also adjudged that the states no longer have the power to decide SEBC’s under 102nd amendment.[5] Article 342(A), added by the same Amendment, stipulates that it’s the President who has the final say in identifying SEBC. After that, the Parliament will finally decide on the last list. However, the states can still participate by giving suggestions via the existing mechanisms and Commissions under Article 338(B).[6] 4.The Court also held that the 102nd amendment was valid and granted constitutional status to the National Commission for Backward Classes. Case Analysis: All in all, it can be said that the Indira Sawhney case has stood the test of time and does not require to be reviewed by a larger bench and the precedent set by it, fixing the reservation quota at 50%, should remain unchanged. It can also be said that the Maharashtra Act violates the principle of equality embedded in Article 14 and 16 of the constitution by exceeding the reservation limit of 50% without there being any extraordinary circumstances. It was also established that the Maratha community was sufficiently represented in all grades of society and thus did not need any reservation. The 102nd amendment was also decided to be constitutionally valid and that the establishment of the National Commission for Backward Classes (NCBC) was constitutional. However, there was no unanimity in deciding whether the States should be empowered to identify the backward classes for granting quota. Conclusion: Based on the above judgment and observations of the court it can be safely said that the Bench has rightly ruled against the Maratha reservation. Looking at the statistical data from the reports of the national as well as state commissions it can be inferred that the Maratha community is adequately and sufficiently represented in both social and educational sectors. Furthermore, providing reservations is not the only way to improve and advance the welfare of any community. Another approach that can be taken is to provide free educational facilities to members of any community, as well as fee concessions to groups/communities for strategic intervention to improve their socioeconomic situation. However, there is a question that whether this judgment undermines the federal structure of the nation? Article 15(4) enables states to have affirmative policies for the interests of SEBC and article 16(4) enables states to have affirmative policies for the interests of SEBC. But after this judgment, practically all the powers related to SEBC get out of the states’ reach. Therefore, states have lost the ability to add and delete any backward community from the list. This could lead to many communities being excluded or overlooked and make it difficult for the National Commission for Backward Classes (NCBC) to make lists for the backward communities of all the states. This judgment may affect the nation’s federal structure in the future if a more holistic method of listing SEBC isn’t formulated which involves both the state and Centre. [1] Jaishri Laxmanrao Patil v. Chief Minister[2021]; (Diary No. 23618/2019):SC [2] Socially and Educationally Backward Classes Act, 2018 ('SEBC Act') [3] Indra Sawhney vs Union Of India And Others [1992]; AIR 1993 SC 477; SC [4] Sajjan Singh vs State Of Rajasthan [1964]; 1965 AIR 845; SC [5] The 102nd Amendment of the Constitution of India which granted constitutional status to the National Commission for Backward Classes (NCBC). [6] INDIA CONST. art. 342A and art. 366, inserted by the Constitution (One Hundred and Second Amendment) Act, 2018.

Satyaroop Kar Outreach Executive, Legal WIND Date of Judgment: on 4th March 2020 Bench: Justice Rohinton Fali Nariman, Justice Aniruddha Bose, Justice V. Ramasubramanian Court: Supreme Court of India Citation: [(2020) SCC online SC 275] A brief overview of the case: This case deals with the circular issued by the Reserve Bank of India (RBI) that directed banks not to deal with the transactions involving the trading of virtual currencies also called cryptocurrencies. 2. Facts of the case: The case of Internet and Mobile Association of India v. the Reserve Bank of India, also known as the cryptocurrency case deals with the prohibition of banks and other entities from trading in virtual currencies via a circular issued by the RBI on 6th April 2018.[1]Moreover, the circular also barred the banks from providing any services to any individual or entity dealing with virtual currencies. The reasoning behind the circular was that they were concerned about the security of transactions and hacking of the virtual currencies, which could lead to various problems in the economy such as- ● Loss to the economy. ● Money laundering. ● Promoting terrorist activities. The matter was challenged by the Internet and Mobile Association of India.[2] The Supreme court of India allowed the petition on the ground of proportionality. The appellant argued RBI does not have the legislative power to prohibit the trading of virtual currency beside it also violates article 19(1)(g) in The Constitution Of India which gives the right to practice any profession or to carry on any occupation, trade or business. 3. Issues Raised: A. Whether the Reserve Bank of India had the jurisdiction to disallow the trade of virtual currency? B. Whether the Respondent had the powers to regulate virtual currency as they were not equivalent to money or legal tender? C. Whether the circular which was issued by the RBI was proportional to supposed risks? 4. Arguments Raised: 1. Arguments of Appellant: 1. The appellant contended that the Reserve Bank of India does lack the jurisdictions to disallow the trade of virtual currency (cryptocurrency) moreover the ban imposed by RBI is based on the misunderstanding of RBI. 2. RBI does not have the power to prohibit the trading of virtual currency as virtual currency is not a legal tender but a commodity that does not come under the realm of the Reserve bank of India Act, 1934 or the Banking Regulation Act, 1949. The petitioner added that, since the virtual currency does not constitute the credit system of the country, the RBI has no authority to regulate it to its advantage. The Appellant also contended that Virtual currency or cryptocurrencies are not a kind of currency note or coin but a medium of exchange or a store of value. 3. Further, the appellant stated that many national and international economies of the world had tested cryptocurrency and have found none concerning issue. 4. The appellant also contended that the RBI’s circular was not reasonable or proportional to the threat and also the circular violated Article 19(1)(g) of the Indian Constitution which provides the right to practice any profession, or to carry on any occupation, trade or business and nor does it pass the test of reasonableness/ proportionality vis-à-vis the blanket prohibition imposed on the regulated entities. 2.Arguments raised by the Respondent: 1. The respondents disagreed with the fact that it does not have jurisdictions, moreover said that cryptocurrency is a mode of digital payment which RBI does holds the power to have control. 2. The respondent also contended that cryptocurrency is a stainless digital currency that is used for trading. They (RBI) further contended that since cryptocurrency operates independently and is immune to the government’s interference. 3. The RBI also said that there cannot be an unfettered fundamental right to do business on the network of entities regulated by the RBI. The respondent also said that the circular was issued in the public interest to protect the consumers against the exposure of high volatility of virtual currencies. Provisions Applied: Article 19(1)(g) of the Constitution of India- the right to practice any profession, or to carry on any occupation, trade, or business. Section 2 of the Banking and Regulation Act, 1949- Application of other laws not barred.—The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of the Companies Act, 1956 (1 of 1956), and any other law for the time being in force. Section 18 of the Banking and Regulation Act, 1949 Section 45(l) of the Banking and Regulation Act, 1949- Power of Reserve Bank to apply to Central Government for suspension of business by a banking company and to prepare a scheme of reconstitution or amalgamation. Section 22(1) of the Banking and Regulation Act, 1949- Save as hereinafter provided, no company shall carry on banking business in India unless it holds a license issued on that behalf by the Reserve Bank, and any such license may be issued subject to such conditions as the Reserve Bank may think fit to impose. Section 36(1)(a) of the Banking and Regulation Act, 1949- caution or prohibit banking companies or any banking company in particular against entering into any particular transaction or class of transactions, and generally give advice to any banking company. Section 18 of the Payment of Wages Act,1936 5. Observations of the court: After listening to both the parties the Court observed that the history of the role of the RBI and after discussing the Reserve Bank of India Act, 1934, the Banking Regulation Act, 1949, and the Payment and Settlement Act,2007, observed that RBI is vested with the power to regulate the the the monetary framework of the country.[3] The Court said the RBI derives its power from the RBI Act, 1934, and sources from the Banking Regulation Act, 1949. The Court observed that though virtual currency does not acquire the status of a legal tender, it can still be used as real money. The Court opined RBI can invoke its power irrespective of the fact that if something is a legal tender or has the four characteristics of being an actual currency. In different jurisdictions, the virtual currency was identified in terms of property, funds, commodities, and money. Therefore, if the property can act as money to some extent, the contention that RBI has no jurisdiction to deal with the same is nullified. The Court also observed that the impugned circular did not prohibit the use or trading of virtual currency altogether. The circular was only limited to the entities regulated by RBI and directed them not to deal or provide service to individuals and entities dealing with virtual currency. In the last contention the court observed that regarding proportionality, RBI could not showcase the injury or losses suffered by its entities. In addition, RBI could have adopted other alternative measures that were less damaging.[4] 6. Judgment: The Hon’ble Supreme Court after considering the factual matrix and the contentions of the parties held as under: The circular issued by RBI is unenforceable and unlawful on the ground of proportionality. The Court also ordered RBI to direct the Central Bank of India not to freeze the accounts and to repay the prize with the interest to the petitioner. The Court also stated that RBI must produce objectively reliable empirical data to establish the harm suffered by the traditional economy on account of the Virtual Currency’s trading in India.[5] RBI failed to show that any of the entities regulated by it have suffered any loss or impacted adversely due to Virtual Currency’s exchange. The SC held that a complete ban on trading was excessive and disproportionate. The Court said that such administrative orders should be backed by rationality and cannot be ambiguous. Therefore the Court quashed the RBI circular while ruling that it offended the doctrine of proportionality and was in violation of Article 19(1)(g). 7. Case Analysis: After considering all the arguments presented by the appellant and respondent, it can be said that a step in the right direction was taken by the Supreme Court of India, in the judgment of Internet and Mobile Association v. RBI. Even though RBI has the authority to regulate the functioning of currencies, it has to practice reasonableness and proportionality while imposing restrictions to not impinge on the rights granted by the Constitution of India. Since the lifting of this ban, a significant spike in the trading of virtual currencies has been recorded in India. While this decision is a welcome move for cryptocurrencies and exchange technologies across the nation to flourish, persistent risks of consumer and investor protection, money laundering and terrorist financing cannot be ignored. It must be borne in mind that SC quashed the RBI circular on grounds of being disproportionate to its purpose. This, therefore, does not rule out the persistent risks associated with trading in virtual currencies, which remain unregulated in India. Therefore, the government should introduce a sound regulatory framework to govern such transactions. The establishment of distinct legal regulations will aid in instilling confidence amongst traders and protect the interest of both the economy and the traders. 8. Conclusion Based on the matrix of facts, arguments, and observations it can be safely said that the judgment of the Court was reasonable and just as it was pronounced keeping in view the empirical data, and findings. According to the Court, RBI's contention regarding proportionality was unjust and the circular unenforceable. Due to the judgment, the businesses can rejoin the industry and hence can trade in Virtual Currencies (cryptocurrency). However, it is important to know that the Supreme Court in its judgment has only stuck down the circular issued by the RBI, but has not declared the virtual currencies as legal or illegal, moreover, since there is no legislation regarding the same therefore Virtual Currencies remain unregulated in India. [1] Reserve Bank of India, Prohibition on dealing in Virtual Currencies (VCs), RBI/2017-18/154 [2] Internet and Mobile Association of India vs. Reserve Bank of India, 2020 SCC Online SC 275. [3] Keshavlal khemchand & sons Pvt. Ltd. Vs. Union of India (2015) 4 SCC 770 [4] Modern Dental College vs. State of MP (2016) 7 SCC 353. [5] State of Maharashtra vs. Indian Hotel and Restaurants Association 2013) 8 SCC 51

Kartikey Gaur Chief Creative Officer, Legal WIND Date of Judgment: 19 May 1950 Bench: Kania, Hiralal J. (CJ) Court: Supreme Court of India Citations: [AIR 1950 SC 27; 1950 SCR 88; (1950) 51 Cri LJ 1383] INTRODUCTION AK Gopalan v State of Madras[1] has been noted as one of the significant judgments handed down by the Supreme Court of India. It is recalled as the first case in which the Indian judiciary delivered a judgment to interpret the fundamental rights of the Constitution under Article 19 and 21. After this judgment, the courts in India proceeded towards the fundamental rights of citizens and non-citizens comprehensively, and not to create fundamental rights in a way that restricts the human rights under fundamental rights such as the Right to Privacy, Right to Health, Right to Fight Death, etc. CASE HISTORY The petitioner AK Gopalan, a Communist leader, was arrested under the Preventive Detention Act 1950 in Madras Jail. The petitioner challenged the application of the Act on the grounds that it violated the freedom of movement under Article 19 (1) (d)[2] and personal liberty under Article 21 by writ petition of habeas corpus under Article 32 of the Constitution. In the petition, he gave various dates showing how he has been detained since December 1947. He was sentenced to imprisonment under ordinary criminal law, but the sentences were set aside. While he was under detention by one order of the Government of Madras, he was served with an order made under Section 3 (1) of the Preventive Detention Act, 1950. ISSUE Whether Preventive Detention Act 1950 violates fundamental rights as per Article 19 and 21 of the Constitution? CONTENTION ●A. K. Gopalan argued that the state's actions violated Article 13, 19, 21 of the Constitution of India. ●Also, it was argued that Section 3(1) of the Preventive Detention Act was not in consonants with Article 21 Indian Constitution. ● Also, the same order was said to be delivered with malafide intention. ARGUMENTS PETITIONER It was argued that by the confinement of the petitioner under the preventive detention order his right to move freely throughout the territory of India is directly abridged and therefore the State must show that the impugned legislation imposes only reasonable restrictions protecting the interests of any Scheduled Tribe, under Article 19(5) of the Constitution of India. RESPONDENT On behalf of the respondent, it is pointed out that Article 32 of the Constitution of India guarantees only the right to constitutional remedy to enforce the rights which are declared by the Constitution. If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive detention, no question of enforcing such rights by an approach to this Court at all arises. HELD ● The act was proclaimed to be intra wires to the Indian constitution. ● Article 21 applies to the provisions of this Act. ● Section 14 was declared Ultra vires of the Indian Constitution. ●As per Section 12 of the Act, a minimum of 3 months and a maximum of 1-year imprisonment is prescribed. ●Also, if it is not necessary for the parliament to determine the maximum term of detention. The verdict handed down by the judges was their attempt to define the jurisprudence of a new constitution law for the people who just got independent from colonial rule. They held that the law states that detention was preventive in the interest of the general public and therefore does not have to satisfy the test of reasonableness, even if overlapped the fundamental rights as provided for in the Constitution of India. CONCLUSION In the case of AK Gopalan, the Court interpreted Article 21 literally and went on to ensure that the expression procedure established by law meant any procedure prescribed in the statute by the competent legislature that may deprive a person of his or her life or personal liberty. Fundamental rights through the reasoning of procedural by the due process are now being studied separately, as explainedfrom A.K. Gopalan's case, which was condemned and understands the substantive due process which was brought in for future cases. In the case of Maneka Gandhi v Union of India,[3] the Apex court held that Article 21should be fair, just, and reasonable and should also be consistent with the principles of equality and freedom under Article 13 and 19 of the Indian Constitution, and therefore provisions of fundamental rights were established to be read together. [1] AK GOPALAN VS. STATE OF MADRAS, [1950] AIR 27 [2] CONSTITUION OF INDIA [3] Maneka Gandhi v Union of India [1978] AIR 597