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AL – AMEEN COLLEGE OF LAWMODEL ANSWER PAPER-DECEMBER 2014III SEM of 5 YEARS B.A.LL.ExaminationSUBJECT: CONSTITUTIONPrepared by:Ms. SAHANA FLORENCE.Lecturer,Al-Ameen College of LawAL – AMEEN COLLEGE OF LAWMODEL ANSWER PAPER- December- 2014Third Semester of Five Years B.A.LL. ExaminationSUBJECT: CONST...

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AL – AMEEN COLLEGE OF LAW MODEL ANSWER PAPERDECEMBER 2014 III SEM of 5 YEARS B.A.LL.B. Examination SUBJECT: CONSTITUTION

Prepared by: Ms. SAHANA FLORENCE. Lecturer, Al-Ameen College of Law 1

AL – AMEEN COLLEGE OF LAW MODEL ANSWER PAPER- December- 2014 Third Semester of Five Years B.A.LL.B. Examination SUBJECT: CONSTITUTION

Duration: 3 Hours

Max Marks: 100

Instruction to Candidates: 1. Answer Question No.09 and any five of the following questions 2. Q. No. 09 is carries 20 marks and the remaining questions carry 16 marks each. 3. Answer should be written either in Kannada or English Completely. Marks: 4X16=64 Q.No.1 “No person shall be deprived of his life or personal liberty except according to procedure established by Law”. Discuss with references to decided case. SYNOPSIS: 1. Introduction 2. Personal Liberty Meaning and Scope 3. Conditions Under Article-21 4. The Rights Are Held To Be Covered Under Article 21 Of The Constitution: 5. Conclusion.  INTRODUCTION : Article 21 deals with “Protection of life and Personal Liberty”. The inspiration of Article 21 is the 5th Amendment to the Constitution of USA which guarantees the fundamental right to life and personal liberty. Earlier Article 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary action of the executive and not from the legislative action. The state could interfere with the liberty of citizens if it could support its action by a valid law. Now Article 21 protects the right to life and personal liberty of citizens not only from the executive action but from the legislative action also. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable.

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 PERSONAL LIBERTY MEANING AND SCOPE: Prior to Maneka Gandhi Case Decision: The meaning of the term personal liberty came up for consideration of the Supreme Court for the first time in A.K. Gopalan v/s Union of India. In Maneka Gandhi v/s Union of India, the Supreme Court has overruled Gopalan Case and widened the scope of the word personal liberty. Prior to Maneka Gandhi Case Article 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary action of the Executive and not from Legislative action. The state could interfere with the liberty of citizens. But now after Maneka Gandhi case Article 21 now protects the right to life and personal liberty of citizens not only from the Executive action but also from the Legislative action. The right guaranteed under Article 21 is available to ‘Citizens’ as well as ‘Non-Citizens’. The object of this article is to give assurance for the safety of life and personal liberty of such person. Such assurance is subject to limitation, it is not an absolute guarantee. According to J. Mukarjee of Supreme Court “Personal liberty means liberty relating to the person or body of the individual”. Positive rights are well conferred under Article21. In Maneka Gandhi Case the Supreme Court has not only overruled Gopalan Case but has widened the scope of the Words ‘Personal Liberty’. The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19”.  CONDITIONS UNDER ARTICLE 21: Art.21 requires the following conditions to be fulfilled before a person is deprived of the property:1. There must be a valid Law 2. The Law must provide a Procedure. 3. The procedure must be just, fair and reasonable 4. The law must satisfy the requirements of Arts. 14 and 17 i.e., it must be reasonable  THE RIGHTS ARE HELD TO BE COVERED UNDER ARTICLE 21 OF THE CONSTITUTION: 1. RIGHT TO LIVE WITH HUMAN DIGNITY: In Maneka Gandhi case the Supreme Court gave the new dimension to Article 21. It held that right to live is not merely confined to physical existence but it also includes within its ambit the right to live with human dignity. The right to live is not confined to the faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes “the right to live with human dignity, and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter, facilities for reading. Writing

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and expressing ourselves in diverse forms, freely moving about and mixing with fellow human being. People Union for Democratic Rights v/s Union of India: In this Case it was held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative Article 21 of the Constitution 2. RIGHT TO LIVELIHOOD (securing the necessity of life): Under Article-21 “Life” includes the “right to livelihood” also Right to life does not mean merely that life cannot be extinguished for example, by the imposition and execution of death sentence, except according to procedure established by law. No person can live without the means of livelihood. If the right to livelihood is not treated as a part of the Constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood. In Olga Tellis v/s Bombay Municipal Corporation: This case is popularly known as the ‘Pavement Dwellers case’. It was held in this case that the word ‘life’ in Article 21 includes the ‘right to livelihood’ also. Sodan Singh v/s New Delhi Municipal Committee: In this case the Supreme Court held that the right to carry on any trade or business is not included in the concept of life and personal liberty. 3. RIGHT TO SHELTER: The right to shelter is a fundamental right under Article21 of the Constitution. In any organised society, the right to live as a human being is not ensured by meeting only the animals needs of man. It is secured only when he is assured of all facilities to benefit himself. Right to life guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. Shelter for human being, is therefore not a mere protection of his life. It is home where he had opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter therefore includes adequate living peace, safe and decent, structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenties like roads etc. The right to shelter therefore, does not mean a mere right to roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. 4. RIGHT TO PRIVACY: The right to privacy is a fundamental right under Article21. The right to privacy or the right to let alone is guaranteed under Article 21. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. No one can publish anything concerning the above matters without his consent whether truthful or otherwise and 4

whether laudatory or critical. If he does so, he would be violating the right of the person concerned and would be liable in an action for damages. This is subject to exceptions that, 1. If any publication of such matters are based on public record including court record it will be unobjectionable. If a matter becomes a matter of public record the right to privacy no longer exists and it becomes a legitimate subject for comment by press and media among others. 2. The right to privacy or the remedy action for damages is simply not available to public officials as long as the criticism concerns the discharge of their public duties. In Auto Shankar Case: The Supreme Court held that the “right to privacy” or the right to be let alone is guaranteed by Art.21 of the Constitution. In Mr. ‘X’ v/s Hospital ‘Z’: The Supreme Court held that by disclosing that the appellant was suffering from AIDS the doctors had not violated the right to privacy of the appellant guaranteed under Article 21. The Court held that although the right and restrictions can be imposed on it. The right to marry is an essential element of right to privacy but is not absolute. 5. RIGHT TO HEALTH AND MEDICAL ASSISTANCE: In Paramananda Katara v/s Union of India: Right to health and medical assistance is a fundamental right under Article21. Therefore it is the professional obligation of all doctors, whether Government or Private to extend medical aid to the injured immediately to preserve life without waiting for legal formalities to be complied with by the police. Article 21 casts obligation on the state to preserve life so that the innocent may be protected and the guilty may be punished. In a historic judgment in Consular Education and Research Centre v/s Union of India: The Supreme Court held that right to medical care is a fundamental right. In Paschim Bang Khet Mazdoor Samiti v/s State of W.B.: The Supreme Court held that denial of medical care by government’s hospitals to an injured person on the ground of non- availability of beds amounted to violation of right to life under Article 21 of Constitution. 6. RIGHT TO DIE: The question whether the right to die is included in Article-21 of the Constitution. State of Maharashtra v/s Maruty Sripati Dubal. The Court listed several circumstances in which people may wish to end their lives, including disease, cruel or unbearable condition of life, a sense of shame etc. The right to life under Article 21 also includes the “right not to live”, i.e., right to die or terminate one’s life 7. PRISONERS RIGHT & ARTICLE 21: Mahatma Gandhiji said “Hate the Sin don’t Hate the Sinners”. Article 21 is based on this principle. Article 21 not only gives the protection to the ordinary citizens but also it gives the protection to the prisoners. The protection under Article 21 is available even to convicts in jail. The convicts are not by mere reason of their 5

conviction deprived of all the fundamental rights which they possess. Even a convict is entitled to the precious rights guaranteed by Article 21 and he shall not be deprived of his life or personal liberty. 8. RIGHT TO FREE LEGAL AID: The right to free legal aid and speedy trial are guaranteed fundamental right under Article 21. Article 39-A provides equal justice and free legal aid. It means justice according to law. In a democratic policy governed by the rule of law, it should be the main concern of the state to have a free legal system. The crucial words are to “provide free legal aid, by suitable legislation or by schemes. So, that opportunities for securing justice are not denied to any citizen be reason of economic or other disabilities. In order to enable the State to afford free legal aid vast number of persons trained in law are needed. Legal aid is regarded in many forms for obtaining guidance, for resolving disputes in Courts, Tribunals or other authorities. The need for a continuing and well organised legal education is absolutely necessary. The legal education should be able to meet the ever-growing demand of the society. 9. RIGHT TO SPEEDY TRIAL: In Hussainara Khatoon v/s Home Secretary, State of Bihar: A petition for a writ of habeas corpus was filed by number of under trial prisoners who were in jail in the State of Bihar for years awaiting their trial. The Supreme Court held that “right to speedy trial” a fundamental right is implicit in the guarantee of life and personal liberty given Article 21 of the Constitution. Speedy trial is the essence of criminal justice. The right to speedy trial flowing from Article21 is available to accused at all stages namely in the stage of investigation, inquiry trial, appeal, revision and retrial. 10. RIGHT TO GET POLLUTION FREE WATER AND AIR: All are entitled to enjoy the right to get pollution free water and air as it is a fundamental right to life. The Supreme Court said that enjoyment of pollution free water and air which is included in the “right to live” under Article 21 of the constitution. 11. RIGHT TO EDUCATION A FUNDAMENTAL RIGHT UNDER ARTICLE 21-A: The Constitution 86th Amendment Act, 2002 has added a new Article 21- A after Article 21 and has made education for all children of the age of 6 to 14 a fundamental right. It provides that “the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the state may, by law determine”. It is well known that education is a basic human right for the success of democratic system of government; education is one of the elements. The framers of the Constitution realising the importance of education have imposed a duty on the state under Article 45 as one of the directive principle of state policy to provide free and compulsory education to all children. The object was abolish illiteracy from the country. But it is unfortunate that even after the lapse of somany years from the commencement of the constitution they did not take any concrete steps to implement this 40% of the population of the country is still 6

illiterate. The right to life under Article 21 and the dignity of the individual cannot be realised unless it is accompanied by the right of education. In Mohini Jain v/s State of Karnataka: The matter was raised by the petitioner that the right to education is a fundamental right under Article 21. The Court held that right to education in all level is a fundamental right under Article 21-A and charging the high fee for admission is illegal and amount to denial of citizen right to education. The education in India has never been a commodity. In Unni Krishna v/s State of A.P. : Where the Court specifically held that the right to education for the children of age of 6 to 14 is a fundamental right. Article 21-A makes it obligatory for the Government to enact a Central Legislation to give effects to the Constitutional amendments. The Legislation will create a mechanism by which a citizen who is aggrieved that the right to education has not been fulfilled should be able to get relief by filing writ petitions in the High Courts and the Supreme Court. Ultimately Right of Children to Compulsory Education Act, 2009 was passed by the parliament to give effect to the 86th Amendment Act, 2002. It provides the responsibility of the Central and State Government, teachers, parents and community members in ensuring that all children of the age of 6 to 14 years receive free and compulsory education.  CONCLUSION: Under Article 21 of the Constitution “No person shall be deprived of his life or personal liberty”. This fundamental right is the personal right which are given to both citizens and non-citizens therefore no State can interfere with the liberty of the citizens. Q.No.2. Who is a Citizen? How Citizenship may be acquired through domicile? Synopsis: 1. Introduction: 2. Fundamental Rights Available to the Citizens: 3. Meaning and Definition of Citizenship: 4. Significance of Citizenship: 5. Modes of Acquiring Citizenship: 6. Acquisition of Citizenship By Domicile: 7. Conclusion:  Introduction: The term citizen is used in many contexts in the constitution of India. So, it is necessary to have a detailed discussion of the term “Citizenship”. The population of a country can be divided into two classes namely 1. Citizens and 2. Aliens. 7

A citizen of a state is a person who enjoys full civil and political rights. Citizens are different from aliens who do not enjoy all these rights. Citizenship carries with it certain advantages conferred by the Constitution. Part- II Articles 5 to 11 of the constitution deals with the Citizenship.  Fundamental Rights Available to the Citizens: The following fundamental rights are available only to citizens: (1) The right not to be discriminated against any citizen on the grounds of religion, race, sex, or place of birth. (2) The right to equality of opportunity in the matter of public employment. (3) The six freedoms enumerated in Article 19, i.e., freedom of speech and expression; assembly; association; movement; residence; profession. (4) Cultural and educational rights. (5) There are certain offices under the constitution which can be occupied by citizens only e.g., office of the President, Vice-President, Judges of the Supreme Court or a High Court, Governor of a State etc…. (6) The right to vote for election to the House of the People and the Legislative Assemblies of States is available to the citizens.  The rights guaranteed by Articles 14 and 21 are available to aliens also.  Meaning and Definition of Citizenship: Citizenship is membership of a society living under the one Government. It confers the status and carries with it certain privileges of the state. According to Han’s Kelson, “Citizenship is a legal status determined by the specific rights and duties of which the statute is the condition. Citizen of a State is he who has political rights, the duty of military service and diplomatic protection afford by the state concerned”. Citizenship may also be defined as the legal relationship between an individual and the state under which an individual pledges his loyalty to the state, and the state offers protection to the individual. Citizenship is confined to only natural or physical persons. It is not extended to Corporations and juristic persons.  Significance of Citizenship: It determines the relationship between the state and the citizens. It signifies permanent commitment of an individual to the country. That is through citizenship, a citizen expresses his loyalty to the nation. In return, the nation provides protection to the citizen. Citizenship grants to a person the right to vote and the right to contest in the election. Citizenship provides certain special right i.e., fundamental rights to a person. It provides to a person an opportunity to hold public offices.  Modes of Acquiring Citizenship: 1. Citizenship at the commencement of the Constitution 1. Citizenship by Domicile 2. Citizenship of Migrants to India from Pakistan 3. Citizenship of Migrants of Pakistan. 8

4. Citizenship of persons of Indian residing outside India 2. Citizenship under the Citizenship Act- 1955 1. By Birth 2. By Descent 3. By Registration 4. Naturalization 5. By Incorporation of territory.  Acquisition of Citizenship By Domicile: Article-5 of the Constitution deals with the provisions relating to Acquisition of Citizenship by Domicile. Domicile of a person is his permanent home. No person can be without a domicile and no person may have more than one operative domicile. National boundaries do not constitute a hindrance in one’s choice of domicile. This implies that a person may be national of one country, but his/her domicile may be another country. Domicile denotes the connection of a person with a territorial system of law. There is only one citizenship, which is of the Union of India, there is no separate state Citizenship as in the United States of America. Persons domiciled in the territory of India as on 26 November 1949 automatically became Indian citizens by virtue of operation of the relevant provisions of the Indian Constitution coming into force, and most of these constitutional provisions came into force on 26 January 1950. According to Article-5 a person entitled to citizenship by domicile if he fulfills the following 2 conditions: 1. He must be at the commencement of the constitution, have is domicile in the territory of India. 2. such person must fulfill any one of the 3 conditions laid down in that article, namely:  He was born in India  Either his parents was born in India  He must have been ordinarily resident in the territory of India for not less than 5 yrs immediately before the commencement of the constitution. Therefore domicile in India is considered as an essential requirement for acquiring the status of Indian Citizenship. The civil status of a person, his legal rights and duties, capacity to marry are determined by the law of his domicile. The term ‘Domicile’ is not defined in the Co...