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Problem 1: The church bell rings once in a hour round the clock in a residential area. The residents of that area claimed that it causes nuisance to them. But church people contended that it is their religious right under the Constitution. Can they claim it as a matter of religious right? Decide.Sol...

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Problem 1: The church bell rings once in a hour round the clock in a residential area. The residents of that area claimed that it causes nuisance to them. But church people contended that it is their religious right under the Constitution. Can they claim it as a matter of religious right? Decide.

Solution: No, they cannot claim it as a matter of religious right as noise pollution in the name of Religion not allowed.

In Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare Association, AIR 2000 SC 2773 the Supreme Court held—In the exercise of the right to religious freedom under Arts. 25 and 26, no person can be allowed to create noise pollution or disturb the peace of others. The custom of religious prayer through the use of loudspeakers is not an essential element of any religion. The order of the authorities under the Madras Town Nuisance Act, 1889 and the Noise Pollution (Regulation and Control) Rules, 2000 is valid and constitutional. The direction given by the High Court to authorities to follow guidelines for control of noise pollution issued in 1995 AIHC 4168 and to make Church to keep speakers of lower level are legal in view of the pollution control provision.

Problem 2: A non-resident of Karnataka complains that he has to pay a greater capitation fee for admission to medical college in Karnataka. Is this complaint justified?

No, the complaint is not justified.

In D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334, the residents of Madhya Bharat were exempted from payment of a capitation fee for admission to the State medical college while the non-residents were required to pay the same. The Supreme Court negatived the plea of discrimination by the non-residents under Article 15(1) because the ground of exemption was ‘residence’ and not ‘place of birth’. Residence and place of birth are two distinct concepts with different connotations. Article 15(1) prohibits discrimination based on place of birth but not residence. In this case, the classification on the basis of ‘residence’ was held to be reasonable. Education is a State subject.

A State spends money on the upkeeping of educational

institutions. There is, therefore, nothing wrong in the State if it so orders the educational system that some advantage ensures for the benefit of the State. Some of the resident students after securing their degree may settle in the State as doctors and serve the community. Thus, the justification for the classification on the basis of residence rested on the assumption that the residents of the State would after becoming doctors settle down and serve the needs of the people of the State.

Problem 3: After due consideration and in order to provide employment opportunities to younger sections of the society. The Government by passing Public Employment (Regulation of Conditions of Service) Act reduced the age of retirement of all Government employees from 60 to 58 years. This was challenged as violative of Article 14 of the Constitution.

No, Government passing Public Employment (Regulation of Conditions of Service) Act is not violative of Article 14 of the Constitution.

Reduction of age of retirement of Government employees. Reference can be made to K. Nagaraj v. State of A.P., (1985) 1 SCC 523 the validity of A.P. Public Employment (Regulation of Conditions of Service) Ordinance was challenged on the ground that it was violative of Article 14 of the Constitution. By this Ordinance. the Government reduced the age of retirement of all Government employees from 58 to 55 years. It was urged that there was no basis for reducing the age of retirement. The Court held that the reduction of age of retirement was not arbitrary and unreasonable and violative of Article 14 as it was taken by the Government after due considerations and with a view to providing employment opportunities to younger sections of society. The balancing of the claims of different segments of society involves a question of policy which must be left to the judgment of the executive and the legislature.

Problem 4: A the petitioner was detained under Preventive Detention Act and was supplied with 2 grounds of his detention. But later the detaining authority revoked one of the grounds communicated to him earlier. The detenue challenged the detention as illegal though the state contended that the remaining ground was enough to sustain the detention. A challenged the action. Decide.

Yes, the detention is illegal. The grounds of detention must be in existence at the time of making the order. No part of such ground can be held back nor can new ground be added thereto.

In Shibban Lal v. State of U.P., AIR 1954 SC 179 the petitioner was supplied with two grounds of his detention. But later on the detaining authority revoked one of the grounds communicated to him earlier. The detenu challenged the detention as illegal. The State contended that the remaining ground was sufficient to sustain the detention. The Court held the detention illegal and observed, "To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute on objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these grounds was irrelevant for purposes of the Act or was wholly illusory and this would vitiate the detention order "as a whole".

Problem 5:

An Engineering College made admissions of candidates on the basis of oral

interview after a written test. High marks were allocated for oral test and candidates were interviewed only for 2 to 3 minutes. Suraj got high marks in written test but low marks in oral test. He wants to challenge this. Advice Suraj.

It is very much clear from the facts of the case that there is arbitrariness in selecting the students for the admission in Engineering College which is against the right to equality which is a fundamental right guaranteed under Article 14 of the Constitution.

The object of right to equality is to secure to the citizens equality in all its form. Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. Article-14 declares that the State shall not deny to any person equality before law and equal protection of law within the territory of India.

With reference to the present case where the Engineering College made admission of candidates on the basis of oral interview after a written test, high marks were allotted for oral test and candidates were interviewed only for 2-3 minutes. As a result of which Suraj got low marks in

oral test. It is clear from the facts of the case that there is arbitrariness in selecting the students for the admission in Engineering College.

Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted where equals are treated differently without any reasonable basis. In support of the present problem the leading case is Ajay Hasia v/s Khalid Mujib. In this case the Regional Engineering College admitted students on the basis of oral interview after a written test. The test of oral interview was challenged on the ground that it was arbitrary and unreasonable because high percentage marks were allotted for oral test and candidates were interviewed only 2-3 minutes. The Court struck down the rule prescribing high percentage of marks for oral test was plainly arbitrary and unreasonable and violative of Article 14 of the Constitution. It is said that the oral interview test cannot be regarded as a very satisfactory test for assessing and evaluating the capacity and caliber of candidates and oral test cannot be the exclusive test, it should be resorted only as an additional or supplementary test and must be conducted by persons high integrity, caliber and qualification. The Court said that an oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and caliber of the candidates because it is subjective likely to be abused. It was observed that allocation of more than 15 percent marks to interview will be arbitrary and unreasonable.

Thus as per the decision given in Ajay Hasia case the challenge made by Suraj is constitutionally valid as there was an arbitrariness in selecting the candidates for the admission to Engineering College.

Problem 6: The State of Kerala imposed taxes on cooked food sold in the luxury hotels, but exempted from tax on food sold in modest eating houses. The object of imposing tax was to raise revenue by taxing on sale of costlier food in luxury hotels. This was challenged by the hotel and restaurant association as discriminatory and arbitrary. Will they succeed?

Solution: In Kerala Hotel & Restaurant v. State Of Kerala And Ors, 1990 AIR 913, the Constitutional validity of similar provisions in the States of Kerala and Tamil Nadu which result in imposition of Sales Tax on cooked food sold only in luxury hotels while exempting the same from sales tax in modest eating houses was challenged by some hoteliers in both States on the ground that this amounted to hostile discrimination and therefore violative of Article 14 of the Constitution.

Held: It is well-settled that in order to tax something it is not necessary to tax everything. So long as those within the tax net can be legitimately classified together indicating an intelligible differentia vis-a-vis those left out and the classification so made bears a rational nexus with the object sought to be achieved, the classification is clearly permissible and it does not violate Article 14 of the Constitution.

The mere fact that a tax falls more heavily on some in the same category, is not by itself a ground to render the law invalid. It is only when within the range of its selection. the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14.

The object is to raise the needed revenue from this source, determined by the fiscal policy, which can be achieved by taxing the sale of costly food on the affluent (wealthy) alone in the society. The classification is made by grouping together only those places where costly food is sold leaving out the comparatively modest ones.

The extent to which the revenue is required from a particular source is a matter of fiscal policy and if the legislature chooses to be satisfied with the raising of that amount alone which can be recovered from the affluent (rich), it cannot be faulted for not dragging the impecunious (poor) also in the tax net.

The State also can reasonably recover taxes at higher rates from prosperous dealers than from impecunious ones. From the standpoint of the dealer also, there is justification for the varied

rates. Those who can afford the costlier cooked food, being more affluent, would find the burden lighter.

The State, in the exercise of its Governmental power, has, of necessity, to make laws operating differently in relation to different groups or class of persons to attain certain ends and must, therefore, possess the power to distinguish and classify persons or things.

Classifications based on differences in the value of articles or the economic superiority of the persons of incidence are well recognized. A reasonable classification is one which includes all who are similarly situated and none who are not.

The decisions of this Court does indicate that a classification made whereby the tax net covers only the sale of costlier cooked food in the posh eating houses while exempting the cooked food sold in the modest eating houses at lesser prices, thereby confining the burden to the more affluent in the society, satisfies the requirements of a valid classification. Moreover, the classification so made cannot be termed as arbitrary, being within the limits up to which the legislature is given a free hand for making classification in a taxing statute.

The classification is, therefore, rounded on intelligible differentia and has a rational nexus with the object sought to be achieved.

In Ganga Sugar Corporation Limited v. State of Uttar Pradesh and Ors., [1980] 1 SCC 223, Krishna lyer, J. speaking for the Constitution Bench held that a classification based, inter alia, on "profits of business and ability to pay tax" is constitutionally valid. Classification permissible in a taxing statute of dealers on the basis of different turnovers for levying varying rates of sales tax.

Problem 7: An order of Preventive Detention of a person was made. A person was arrested and detained for than 9 months, without furnishing reason for his detention. Is this justified?

No, the detention of a person is not justified on the grounds that Article 22 of the Constitution guarantees fundamental rights which protects the detenue from arbitrary detention. Article-22 provides safeguards against arrest and preventive detention.

Article 22 prescribes the minimum procedural requirements that must be included in any law enacted by the Legislature in accordance with which a person may be deprived of his life and personal liberty. Sometimes the Country is faced with the certain dangers.

Article 22 imposes certain rights to the person arrested under preventive detention laws, so that the authorities may not misuse their power.

Constitutional Safeguards against Preventive Detention Laws

Article 22 (4) to (7) guarantees the following safeguards to a person arrested under preventive detention law. Review by Advisory Board: After the 44th (Amendment) Act, 1978 - substituted a new clause for clause (4) which reduced the maximum period for which a person may be detained without obtaining the opinion of the Advisory Board from '3 months' to '2 months'. The detention of a person for a longer period than two months can only be made after obtaining the opinion of the Advisory Board.

(If the Advisory Board reports that the detention is not justified, the detained person must be released. If it reports that the detention is justified the detaining authority will determine the period of detention)

Communication of Grounds of Detention to Detenue: Article 22(5) gives two rights to the detenu : (a) the authority making the order of detention must "as soon as may be" communicate to the person detained the grounds of his arrest, that is, the grounds which led to be subjective satisfaction of the detaining authority,

In the present case, there is violation of Article 22 of the Constitution. The detenue was kept in detention from more 9 months was unreasonable. A person cannot detained without obtaining the opinion of the Advisory Board for more than 2 months. The clause (5) of Article 22 imposes an obligation on the detaining authority to furnish to the detenu the grounds for detention "as soon as possible ", which was not done in this case.

Problem 8: A Magistrate issues an order authorizing the investigating officer to take the specimen handwriting and fingerprints of Mr. ‘X’, an accused against his willingness. ‘X’ challenges the order stating that it violates his fundamental right under Article 20(3). Decide.

No, it does not violate the fundamental right of the accused under Article 20(3) of the Constitution.

Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself.

A confessional statement of the accused found to be involuntary is hit by Article 20(3) of the Constitution. This guarantee extends to any person accused of an offence and prohibits all kinds of compulsions to make him a witness against himself.

The protection is against compulsion "to be a witness". In State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 the Supreme Court held that the interpretation of the phrase "to be witness" given in Sharma's case was too broad and required a qualification. "To be a witness" is not equivalent to "furnishing evidence", that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

Self-incrimination can only mean conveying information based upon personal knowledge of the person giving information and cannot include merely the mechanical process of producing documents in court which may throw light on any point in controversy, but which do not contain any statement of the accused based on his personal knowledge.

Thus when a person gives his finger impression or specimen writing or signature, though, it may amount to furnishing evidence in the large sense is not included within the expression "to be a witness". In these cases, he is not giving any personal testimony. They are merely materials for comparison. Hence, neither seizures made under search-warrant, nor the compulsory taking of photographs, fingerprint or specimen writing of an accused would come within the prohibition of Article 20(3).

Problem 9: Haryana Panchayat Raj Act, 1994, provided that a person having more than two children is not eligible to contest in election for the post of sarpanch or panch in Gram Panchayats. However, this provision is not applicable to other institutions of local governance or for those contesting to the State Legislature. This was challenged by one Mr. Javed as discriminatory and violative of Article 14 of the Constitution. Decide.

Disqualifying the person having more than two children to be candidates in the Panchayat Election is not violative of Article 14 of the Constitution.

Article 14 permits classification but prohibits class legislation.

Classification to be reasonable must fulfil the following two conditions: 1. the classification must be founded on an Intelligible Differentia which distinguishes persons or things that are grouped together from others left out of the group; and 2. the differentia must have a rational relations to the object sought to be achieved by the act.

In Javed Vs. State of Haryana, the petitioner challenged the validity of Section 175(1)(g) of the Haryana Panchayat Raj Act, 1994 on the ground that it was violative of Article 14 of the Constitution. Section 175(1)(g) disqualifies a person having more than two children from contesting elections for sarpanch or panch in Gram Panchayats, but this does not apply to offices

in other institution of Local Self Government. The Supreme Court of India held that the provisions of section 175 (1)(g) is not discriminatory and the classification made is based on intelligible differentia having nexus with the object of popularization of family planning programme by the Government. The provision would serve the purpose of the Act and is, therefore, not violative of Article 14 of the Constitution. The instant case is also similar to that of Javed Vs. State of Haryana, hence applying the same principle given by the Supreme Court it is clear that the Act is not violative Article 14 of the Constitution.

Problem 10: The Central Government of India, passed an order known as News Print Control order 1972, which fixes the maximum number of pages to 10 which effected the distribution of newsprint. This was challenged by one of the Company by contending the order is violative of Article 19(1) (a). Decide.

Yes, the order passed by the Central Government is violative of Article 19 (1) (a) of the Constitution of India.

Article 19(1) (a) says that all citizens shall have the rights to freedom of speech and expression, but this right is subjected to limitations imposed under Article-19(2), which empowers the state to put ‘reasonable restrictions on following...