Article 19

Required Readings:
1. Romesh Thapar v. Union of India, AIR 1950 SC 124.

Sastri, fazl: potential

2. Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305

modhgal

3. Bennet Coleman v. Union of India, AIR 1973 SC 106

ASG Nariman: citizens: company vs stakeholders, dissent by Mathew: limited resources

and indirect article 13 over 19(1)(a)

4. S. Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574

Standard test, USA is wider as india can be reasonably restricted , see the full and not one
scene, the cinematography act , movies emotional unlike newspapers

5. Shreya Singhal v. Union of India, AIR 2015 SC 1523

66A: offensive messages , Nariman: three parts only be held for incitement under 19(2), no
real connection between 66A and public order, annoynace messages cannot be held , vague
and broad

6. Union of India v. Naveen Jindal, AIR 2004 SC 1559

Writ petition,limited right unlike usa , confined expression

7. Anuradha Bhasin v. Union of India, AIR 2020 SC 1308: (2020) 3 SCC 637

Wifi and internet after article 370 , right to speech and share opinions through the
internet, 19(2) cannot excessive or disproportionate, German theory : proportionality:
restriction: should be legit, suitable fo further legitimacy , check if any other equal and
effected way with less restriction and where this effect the right

8. In Ram Manohar Lohia v. State of Bihar, the Supreme Court emphasized the
importance of a clear and proximate link between an act and the reason for preventive
detention under the Maintenance of Public Order Act. Dr. Lohia was detained for making a
speech urging people not to pay taxes. The State justified this under “public order,” but the
Court held that mere disobedience of law or breach of order does not
necessarily amount to a disturbance of public order. There must be a direct and
reasonable connection to the public order issue, not just a remote or hypothetical one.
The Court famously distinguished between "law and order," "public order," and "security
of the State," stating that the gravity and reach of the act matter. The detention was
struck down as unconstitutional.

9. Indibily Creative Pvt. Ltd v. Government of West Bengal, AIR 2019 SC 1918: (2020)

Bengali film allowed by the board but restricted by the state, harm principle not here ,
police not guardian of morality

10. In N. Radhakrishnan v. Union of India, AIR 2018 SC 4154, the Supreme Court
reiterated that fundamental rights are not absolute and can be subject to
reasonable restrictions under the Constitution. The case challenged certain restrictions
on freedom of speech and assembly, but the Court emphasized the need to balance
individual rights with public interest and security. It held that Article 19(1)
rights, including freedom of speech and peaceful assembly, must be interpreted in
harmony with Article 19(2), which allows the State to impose reasonable limits for
purposes like public order, decency, or morality. The Court thus upheld the restrictions in
question as constitutionally valid, reaffirming that democratic freedoms are essential
but not unfettered, and must be exercised within the bounds set by law.

Article 16:
Substantive equality: Caste and Affirmative Action
13. Indra Sawhney v. Union of India, AIR 1993 SC 477

11 rules , soci>edu>eco, reddy , pandian: no creamy layer and cap , thomasian : eco cant be
the sole factor and kuldip Singh : 15(4 ) and 16(4) not same

14. M. Nagaraj v. Union of India, (2006) 8 SCC 212

BSD: width: obliteration of the constitution and identity test, consquential seniority and
carry forward and catch up rule

15. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

Is 93rd Amendment and Article 15(5) which gave the state power to make reservations
for OBC/SEBC in educational institutions was challenged. unconstitutional?

TMA Pai judgment : educational institutes also an occupation,

15(4) includes minority and 15(5) excludes it Justices Raveendran, Payasat and Bhandari
supported but Bhandari said:no reservation in post graduation . also finds that this
amendment was unconstitutional as far as it related to the 19(1)(g) freedom of unaided
private institutions- minority view

16. Ram Singh v. Union of India, (2015) 4 SCC 697

Jatt as obcs, ncbc said no, cabinent said yes, socially not weak ,

17. Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396

Questioned m Nagaraj: data collection of sc/st, agreed and removed from the ruling
doctrine of severability
Nagaraj has also given a good method of applying the BSD and has been used in
subsequent cases like I R Coelho etc.

18. Dr Jaishree Laxmanrao Patil v. The Chief Minister, (2021) 8 SCC 1

Maratha: 16%, ncbc now only for central and not state, by the 102rd amendment

Justice nazeer and bhushan and Bhat Gupta, Rao said yes no Marathas

Justice nazeer and bhushan argued that state can form their autonomy not gone,through
342 A

, whereas Bhat, Gupta and Rao they said no only central which is wrong , 105th changed
this

19. Janhit Abhiyan v. Union of India, (2023) 5 SCC 1 (EWS Judgement)

EWS RESERVATION- 103rd, - 10% bsd?

Maheshwari: susbtaintial over formal,reservation, eco can be sole , this is differnet from
the others
Trivedi: yes and bsd need to be obliterated not just touched and agreed by PARDIWALA

Dissent by Bhat and Lalit: no need to go over 50% exclsuion of obcs and sc/sts under 15(6)
and 16(6 unconstitutional )

20. State of Punjab v Davinder Singh, 2024 INSC 562 (opinions of CJI DY Chandrachud,
Justice BR Gavai and Justice Bela M Trivedi)

the Supreme Court addressed the contentious issue of sub-classification within the
Scheduled Castes (SC) and Scheduled Tribes (ST) categories for reservation purposes. The
seven-judge bench delivered a 6:1 majority decision, with Chief Justice D.Y. Chandrachud
authoring the majority opinion, Justice B.R. Gavai providing a concurring opinion, and
Justice Bela M. Trivedi dissenting.

Chief Justice D.Y. Chandrachud, writing for the majority, held that sub-classification
within SCs and STs is constitutionally permissible. He emphasized that such sub-
categorization aims to achieve substantive equality by ensuring that the most marginalized
sub-groups within these categories receive adequate representation. The Chief Justice
reasoned that the Constitution's equality principle under Article 14 supports
measures that address intra-group disparities, and that the Presidential list
under Article 341 does not preclude the State from making such
classifications to distribute reservation benefits more equitably.

Justice B.R. Gavai, in his concurring opinion, underscored the necessity for States to
identify and exclude the 'creamy layer' within SCs and STs to prevent more
advanced sub-groups from monopolizing reservation benefits. He argued that this
approach aligns with the objective of reservations, which is to uplift the most
disadvantaged sections of society. His stance builds upon the principles established in
earlier cases like M. Nagaraj and Jarnail Singh, advocating for a dynamic understanding of
social and educational backwardness that evolves with time.

In contrast, Justice Bela M. Trivedi dissented, asserting that the SC and ST categories
are constitutionally recognized as homogeneous groups under Article 341, and any sub-
classification by States would amount to an impermissible alteration of the Presidential
list. She contended that such actions by the States exceed their legislative competence and
violate the constitutional framework, as only Parliament has the authority to modify the
list of SCs and STs. Justice Trivedi cautioned against judicial overreach and stressed that
affirmative action must operate within the boundaries set by the Constitution.

This judgment marks a significant shift in the jurisprudence surrounding affirmative

action in India, as it overrules the earlier decision in E.V. Chinnaiah v. State of
Andhra Pradesh (2004), which had held that sub-classification within SCs and STs was
unconstitutional. The majority's decision in Davinder Singh reflects an evolving
understanding of equality, one that recognizes the need for nuanced approaches to address
the layered nature of social disadvantage. Under article 341

In State of Kerala v. N.M. Thomas (1976), the Supreme Court held that equality under Article 14
allows for positive discrimination, recognizing that treating unequals equally perpetuates
inequality. The Court emphasized substantive equality and upheld reservations for backward
classes in promotion.

Later, in K.C. Vasanth Kumar v. State of Karnataka (1985), the Court questioned the continuing
basis of caste as a criterion for backwardness and suggested a time-bound revision of
reservation policies, advocating for economic and social indicators over static caste identities.

In Sarbananda Sonowal v. Union of India (2005), the Court struck down the Illegal Migrants
(Determination by Tribunals) Act, 1983, as unconstitutional, holding that it made the detection and
deportation of illegal immigrants in Assam nearly impossible, thereby endangering national
integrity and demographic balance. Following this, in Assam Public Works v. Union of India,
the Court ordered the updating of the National Register of Citizens (NRC) in Assam to identify
illegal immigrants, marking a signi cant judicial intervention in citizenship determination and
demographic management.

Article 15:
Non-discrimination: Gender
7. Vishakha v. State of Rajasthan 1997 AIR 1997 SC 3011
8. Anuj Garg v. Hotel Association of India, AIR 2008 SC 663
25 and women, cedew and Beijing declaration

Test:

Trade off?

Necessary

9. Air India v. Nergesh Meerza, AIR 1981 SC 1829

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AFP v. AH, 30 plus marriage , 35 + first pregnancy, 45 or third, guiding principles.Having
found that there was no discrimination based ONLY on the ground of sex and having
rejected the challenged to the regulations based on Articles 15 and 16, the court then
looked at whether it was not arbitrary and unreasonable for it to be violative of Article 14.

10. Indian Young Lawyer Association v. State of Kerala and Ors., (2019) 11 SCC 1
(Sabarimala Judgment)

The Supreme Court held by a 4:1 majority that the ban on entry of women between the ages of 10
and 50 into the Sabarimala temple was unconstitutional. The Court ruled that such exclusion
violated women's fundamental rights under Articles 14 (equality), 15 (non-discrimination),
19(1)(d) (freedom of movement), and 25 (freedom of religion). It rejected the temple’s claim that
the deity, being a "celibate", justi ed the restriction, and held that customs rooted in patriarchy
cannot override constitutional morality. Justice Chandrachud, in particular, emphasized that the
practice entrenched gender-based subordination. The judgment marked a signi cant af rmation
of individual rights over religious customs, though it later became subject to review and further
constitutional scrutiny.Justice Indu Malhotra, in her lone dissent, held that matters of religious faith
and temple entry practices are not subject to judicial review, and that constitutional morality should
not override the autonomy of religious denominations to manage their own affairs under Article 26.

11. National Legal Services Authority v. Union of India, AIR 2014 SC 1863

K radhakrishna: crossdress, Hijra , SRS and intersex, Britian , australia and new zealand,
psychology over biology took from Nepal, articles 15 and 16, sex: gender + bio

12. Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348:
2023 INSC 920 (Same-Sex Marriage Equality Judgment)

Kaul:

1. Amend
2. Agreed with dyc, Conti over morality

Bhat:
Queer not urban
Polygamy and incest
Not a FR
Civil union? NO as same as marriage
Cara ? No cant have - stable marital relationship
SMA? Gendered and interfaith

Narsima
Sides with Kohli and Bhat
Marriage social
Go to parliament

DYC:
Yes civil union, cant amend
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 criticized the CARA guidelines for discriminating against queer couples in adoption, modifying
them to prevent discrimination based on sexual orientation.
32 give power to enforce no FR to marriage
queer persons have a right to enter into civil unions, grounded in dignity, association, and non-
discrimination.
transgender persons have the right to marry in heterosexual unions,

In The Secretary, Ministry of Defence v. Babita Puniya & Ors. (2020) 7 SCC 469, the Supreme
Court condemned the systemic gender discrimination in the Indian Army, where women of cers
under the Short Service Commission (SSC) were denied permanent commission (PC) even
though male SSC of cers were granted it. The Court noted that despite the Delhi High Court’s
2010 directive mandating equality, the government failed to act for nearly a decade. Although the
2019 circular eventually allowed PC for women of cers, the Court criticised the delay and upheld
the circular, holding that all eligible women of cers must be given the choice to opt for PC and
those previously released must be considered for reinstatement. The judgment was a landmark
af rmation of gender equality in the armed forces, rejecting patriarchal notions of unsuitability.

In Lt. Col. Nitisha & Ors. v. Union of India (2021), the Supreme Court emphasized substantive
equality over formal equality, acknowledging that neutral criteria like medical tness and ACR
evaluations, when applied late in women’s careers, resulted in indirect discrimination. The Court
held that such systemic barriers, arising from historical denial of Permanent Commission (PC) to
Women Short Service Commission Of cers (WSSCOs), caused signi cant economic and
psychological harm. It directed the government to re-evaluate policies to ensure future fairness,
protect existing bene ts for women already granted PC, and ensure no disruption in their service or
bene ts until full implementation.

Formal equality: Classification doctrine.

State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75

Mahajan- real and substantice , Fazl Ali - we are wider than us - need to have some
guidelines for CrPC ,

Sastri dissent: we need to be wider like us

Kathi Raning Rawat v. Saurashtra, AIR 1952 SC 123

Geographical categorization

Sashtri and ali - agreed enough

MUJHERJEA: Legislation can classify persons for specific purposes, and as long as the
classification is reasonable and not arbitrary, it does not violate the principle of equality.

Mahajan - no

S.R. DAS- upheld the ordinance.

◦ N.C. AIYAR- struck down the ordinance.
◦ VIVIAN BOSE- struck down the ordinance.
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 Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404

Economic crimes post war

Sastri: yes fine classifications intelligible principle having a reasonable nexus

Vivian Bose dissented, arguing that the government's selective choice of A, B, and C over D, E,
and F, despite committing the same offense, re ects undue and unchecked discretion.

Maganlal Chhaganlal Ltd. v. Municipal Corporation of Greater Bombay, (1974) 2 SCC

402
Executives to evicting speedy
A. Alagiriswami distinguishes between statutes that make their own classi cation and those that
delegate classi cation to the executive, stating that the latter is valid if it provides guidance, which
may be inferred from the Preamble or surrounding circumstances; without such guidance, the Act
would be void, though the executive order is still subject to judicial review. The Acts in question
were upheld as they provided suf cient rationale for the classi cation, based on the need for a
speedier process concerning government property.

Formal equality: Arbitrariness

4. Raj Bala v. State of Haryana and Ors.

which added new disquali cations—such as lack of matriculation, arrears to cooperative banks or
electricity boards, and absence of a toilet—holding that while the right to contest is constitutional,
the classi cations were not arbitrary under Article 14. The Court emphasized it cannot strike down
laws merely for being 'arbitrary' without a constitutional violation and found a reasonable nexus
between the disquali cations and the objective of ensuring capable and responsible representatives
in local governance.

5. Shayara Bano & Others v. Union of India & Others, AIR 2017 SC 4609 (Triple Talaq
Judgment)

Justice KURIAN : Triple talaq is invalid under the 1937 Muslim Personal Law Act as it
violates the Quranic mandate of reconciliation and thus contravenes true Shariat.

Nariman : sunni , hanfis , condemn and allow - not a primary practice-manifestly arbitrary
under Article 14, as it allows whimsical dissolution of marriage without reconciliation, thus
violating the rule of law and making Section 2 of the 1937 Act void to the extent it
recognizes such practice.

Dissent by Khehar and Nazeer: personal laws , integral to them, rejects 14,15 and 21

6. Joseph Shine v. Union of India (Adultery Judgement), AIR 2018 SC 4898

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 Misra and KHANWILKAR: Section 497 IPC was arbitrary and violated Article 14 by
treating the wife as property and excluding her agency, and further infringed Article 21 by
denying women dignity—thus, even a gender-neutral reading could not salvage its
constitutionality.

Nariman J.: Traced the outdated context of the law, held it was manifestly arbitrary and violative
of Articles 14 and 15(1), with no rational nexus to its stated aim of protecting marriage (Para 24).
Hma pre divorce

Chandrachud J.: Found it unconstitutional for being arbitrary, perpetuating gender stereotypes,
and violating Articles 14, 15, and 21—including dignity, sexual autonomy, and privacy.

Malhotra J.: Highlighted irrational classi cations—only husbands could sue, only men could be
prosecuted—which failed Article 14 scrutiny. Also rejected the Article 15(3) defence as the law
lacked any protective element for women.

The rules for validating laws that discriminate against a single person are the same as for a class, as
established in the Sholapur Weaving case, where the government must demonstrate that speci c
circumstances justify treating the individual as a distinct class. However, in cases like the Nizam of
Hyderabad’s inheritance case, where the law denied women's legal rights without reasonable
justi cation, and the Bettiah Estate eviction case, where selective eviction was not justi ed for a
group of tenants, the Supreme Court held the laws unconstitutional due to lack of valid objects and
the absence of a reasonable nexus.

Article 13:
Keshava Madhav Menon v. State of Bombay, AIR 1951 SC 128 (Retrospective Effect)

(Fazl Ali and Mukherjea were in dissent)

State of Bombay v. F.N. Balsara, AIR 1951 SC 318 (The rule of severability)

Supreme Court upheld the Doctrine of Severability, holding that if the valid portions of a statute
are independent and separable from the unconstitutional parts, they can survive. It emphasized
determining the pith and substance of the legislation and allowed incidental transgressions into
another legislative eld, thereby saving the Bombay Prohibition Act despite striking down speci c
invalid provisions.holding that even if a law encroaches upon another legislative eld, such
encroachment can be incidental, and if the valid parts are independent and separable, they can
survive constitutional scrutiny.

Bhikaji Narain Dhakras v. State of M.P., AIR 1955 SC 781 (The rule of eclipse)

Vehicle permits

applied the Doctrine of Eclipse, holding that a pre-Constitution law inconsistent with fundamental
rights gets eclipsed, not void, and can revive upon constitutional amendment removing the
inconsistency.
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 1950-51: eclipsed

1st amendment : 1951: back again

State of Gujarat v. Shri Ambika Mills, (1974) 4 SCC 656 (Future Laws)
held that corporate entities, being non-citizens, cannot invoke citizen-speci c Fundamental
Rights, and laws violating such rights are void only to the extent they affect citizens, not non-
citizens—af rming a limited application of Article 13.

Basheshar Nath v. CIT, AIR 1959 SC 149 (Waiver of Fundamental Rights)

that a person cannot waive their Fundamental Rights, particularly those under Article 14, as it
imposes an absolute obligation on the State, ensuring equality and protection against both executive
and legislative breaches. This reaf rmed the non-waivability of rights that are fundamental to
democracy.

Kedarnath Singh v. State of Bihar, AIR 1962 SC 955 (Presumption of

Constitutionality)

the Supreme Court upheld the constitutionality of Sections 124A and 505 IPC by narrowly
interpreting them to apply only when speech incites violence or public disorder, thereby aligning
them with Article 19(2) and preserving their validity using the Doctrine of Severability.

Article 12:
1. Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857
If you read Bhargava’s opinion, there are two main factors for the EBR being held to be a ‘state’:
• EBR was created by statute.
• EBR had the power to make binding laws backed by the fear of punishment.

Shah: soverign power

2. Sukhdev v. Bhagatram, AIR 1975 SC 1331

Yes created by soverign power

Mathew
Dissent by Alagswami
3. R.D. Shetty v. Airport Authority, AIR 1979 SC 1628

Nomination

Termination

Power

Pro ts

Audited
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Employees

Regulations

4. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487: REC

Share capital

Financial assistance

Monopoly status

State control

Public functions

Department transfer

WIDER APPROACH

5. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111

whether CSIR, despite being a society and not a statutory corporation, could be considered part of
the "State" under Article 12 of the Constitution. The Court overruled previous judgments like
Sabhajit Tewary v. Union of India and clari ed that societies with substantial government control
and involvement could fall under "other authorities," thus being subject to constitutional protections
like Article 14. This case marked a shift in judicial reasoning, allowing for greater scrutiny of non-
statutory bodies as State instruments.

RUPA PAL + 4 : The SC held that a body acting as an instrumentality or agency of the government,
regardless of its legal form, is covered under Article 12, overruling Sabhajit Tewary.

In dissent, Lahoti and Raju JJ. argued that merely being created by the government isn't suf cient to
classify an entity as part of the 'State'; they proposed a more focused public test, asserting that CSIR
doesn't perform functions closely associated with the state and thus can't be seen as an extension of
it.

Zee Telefims v. Union of India, (2005) 4 SCC 649

MONOPOLY NOT BY THE GOVT PUBLIC FUNCTION, DISSENT MONOPOLY IS

ENOUGH, NOT 32 BUT 226

Board of Cricket Control of India v. Cricket Association of Bihar and others, (2015) 3
SCC 251 CL
SCI held that even though BCCI was not part of the ‘State’
under Article 12, it was still dispensing an important public function and would be open to an Art.32 WP.
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 Janet Jeyapaul v. SRM University, AIR 2016 SC 73: (2015) 16 SCC 530

The SC held that SRM University, a "deemed university," though not a "state," is still an "authority"
under Article 12 for purposes of Article 226, as it imparts education, a public function, and is
subject to UGC regulations.

Kaushal Kishor v. State of Uttar Pradesh, (2023) 4 SCC 1 (Horizontal application of

fundamental rights under Article 19 and Article 21)

The majority opinion emphasized that certain rights under Part III of the Constitution, like those in
Articles 15(2)(a), 17, 20(2), 21, and others, are enforceable against non-State actors, recognizing the
shift between common law rights and fundamental rights. It was concluded that fundamental rights
under Articles 19/21 can be enforced against non-State actors and that the State must af rmatively
protect personal liberty even when a non-State actor threatens it. However, the majority also
clari ed that a statement by a Minister, while inconsistent with constitutional rights, does not
automatically constitute a constitutional tort unless it results in an actionable harm through
government action.

The minority opinion, by J. B.V. Nagarathna, distinguished common law rights from fundamental
rights, stating that the latter regulates the relationship between citizens and the State, while the
former governs relations between citizens, with exceptions like habeas corpus under Article 21,
where the State has a duty to protect life and liberty.

the majority sees the State as responsible for protecting rights even from private wrongdoers,
while the minority limits the State's responsibility to preventing its own violations or failing to
uphold its duties under law.
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