Legal Current Affairs for CLAT (June 2024) | Legal Reasoning for CLAT PDF Download

Right to Live with the Person of Choice

Why in News?

Recently, in the case of Naziya Ansari & Anr. v. State of UP & Ors., the Allahabad High Court held that no one can impose restrictions on an adult’s freedom to go anywhere, stay with a person of their choice, or solemnize marriage as per their will. This right flows from Article 21 of the Constitution of India, 1950 (COI).

Background of Naziya Ansari & Anr. v. State of UP & Ors. Case

First Petitioner:

• The first petitioner is a 21-year-old adult woman.

Marriage:

• She married the second petitioner, also an adult, of her own free will on 17th April 2024, as per Muslim rites.
• A marriage certificate was issued by the Telangana State Waqf Board on 25th April 2024.

Complaint:

• Aggrieved by her decision, the woman’s uncle lodged an FIR against her husband.

Police Action:

• The police arrested the second petitioner (her husband) and took the woman into custody, handing her over to her uncle.

Statement to Magistrate:

• When produced before the Magistrate, the woman stated categorically:
  • She had married the second petitioner of her own free will.
  • Her husband had been falsely implicated.
• She expressed fear for her life, alleging threats from her uncle.
• Despite her statements, the Magistrate directed that she be sent to her uncle’s home.

Legal Challenge:

• The petitioners filed a writ petition before the Allahabad High Court, challenging the FIR.

High Court Ruling:

• The High Court allowed the writ petition and quashed the FIR.
• The Court directed authorities to ensure the woman’s safety and prevent her uncle or any family member from harming her.

Court’s Observations

Rights of Adults:

• A bench of Justices J.J. Munir and Arun Kumar Singh Deshwal held that both petitioners are adults and have a right to live together or solemnize marriage.
• The woman’s uncle had no right to file the FIR, making the proceedings illegal.

Article 21 of the COI:

• The Court emphasized that no one can restrain an adult from:
  • Going anywhere of their choice.
  • Staying with a person of their choice.
  • Solemnizing marriage as per their will.
• These rights are protected under Article 21 of the COI.

What is Article 21 of the COI?

About Article 21

• Article 21 ensures the protection of life and personal liberty.
• It states: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

Scope of Right to Life

• The right to life is not limited to animal existence or survival.
• It includes:
  • Living with human dignity.
  • All aspects that make life meaningful, complete, and worth living.

Rights Secured Under Article 21

• Right to Life
• Right to Personal Liberty
  • It is often referred to as the Procedural Magna Carta for protecting life and liberty.
  • This fundamental right is available to all persons, including citizens and foreigners.
  • It is regarded as the Heart of Fundamental Rights and applies only against the State.

Rights Covered Under Article 21

• Right to Privacy
• Right to Go Abroad
• Right to Shelter
• Right Against Solitary Confinement
• Right to Social Justice and Economic Empowerment
• Right Against Handcuffing
• Right Against Custodial Death
• Right Against Delayed Execution
• Right to Doctors’ Assistance
• Right Against Public Hanging
• Protection of Cultural Heritage
• Right to Pollution-Free Water and Air
• Right of Every Child to Full Development
• Right to Health and Medical Aid
• Right to Education
• Protection of Under-Trials

Case Laws on Article 21

Francis Coralie Mullin v. The Administrator (1981): 

• Justice P. Bhagwati highlighted that Article 21 embodies a constitutional value of supreme importance in a democratic society.

Kharak Singh v. State of Uttar Pradesh (1963):

• The Supreme Court ruled that “life” under Article 21 means more than animal existence.
• It includes the integrity of all faculties and organs essential for a meaningful life.

Living Will

Why in News?

Justice MS Sonak of the Bombay High Court at Goa became the first individual in the state to register a ‘living will’ during an event organized by the Indian Medical Association (IMA), Goa branch.

What was the Background of the News?

• This development follows the Supreme Court of India’s 2018 recognition of passive euthanasia and advance directives, with guidelines simplified in 2023.
• Goa implemented these rules, requiring living wills to be attested by a notary or gazetted officer and stored by the State Revenue Department Office, setting an example for others to follow.

Euthanasia

About:

• Etymology: The term "euthanasia" originates from the Greek words “eu” (good) and “thanatos” (death), meaning "good death." It is often referred to as mercy killing.
• Historical Context: Francis Bacon first used the term in the 17th century to describe an easy, painless, and happy death. He emphasized that physicians have a duty to alleviate physical suffering in terminal patients.

Active vs. Passive Euthanasia:
Law Commission 241st Report:

• The Law Commission, in its 241st Report titled Passive Euthanasia – A Relook, proposed enacting legislation on Passive Euthanasia.
• It submitted a report on The Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006.
• However, the Ministry of Health and Family Welfare opposed the enactment of such legislation.

Global Position on Euthanasia:

• Cruzan v. Director of Missouri Department of Health (1990): 
  The U.S. Supreme Court recognized a constitutionally based right to refuse life-sustaining medical treatment, laying the foundation for passive euthanasia.
• Rodriguez v. British Columbia (Attorney General) (1993): 
  The Supreme Court of Canada distinguished between active and passive euthanasia based on intent, permitting passive euthanasia while deeming active euthanasia impermissible.
• Vacco v. Quill (1997): 
  The U.S. Supreme Court upheld the distinction between active and passive euthanasia, ruling that the right to refuse unwanted medical treatment (passive euthanasia) is allowed, whereas assisted suicide (active euthanasia) is not protected by the Constitution.

What is a Living Will?

Living Will (Advance Directive)

• A living will, also referred to as an advance directive, is a legal document enabling individuals to specify their preferences regarding end-of-life medical treatment.
• It outlines instructions on whether to withhold or withdraw life-sustaining measures under circumstances such as terminal illness or a persistent vegetative state.

Significance of a Living Will
Preserving Autonomy:

• Allows individuals to retain control over their medical care.
• Ensures personal values and preferences are honored during the final stages of life.

Preventing Unnecessary Suffering:

• Helps avoid prolonged suffering.
• Maintains dignity in the dying process by specifying desired interventions or refusals.

Alleviating Burden on Loved Ones:

• Reduces emotional strain on family members.
• Provides clear guidance, minimizes conflicts, and ensures adherence to the individual's wishes.

Landmark Cases in India on Euthanasia and Living Will

P. Rathinam v. Union of India (1994):

• The Supreme Court struck down Section 309 of the Indian Penal Code, 1869 (IPC), which criminalized attempted suicide.
• This decision facilitated discussions on the "right to die with dignity."

Gian Kaur v. State of Punjab (1996):

• The Supreme Court upheld the validity of Sections 309 and 306 of the IPC.
• It differentiated euthanasia from suicide, leaving the door open for the legal recognition of passive euthanasia.

Aruna Ramchandra Shanbaug v. Union of India (2011):

• Recognized the legality of passive euthanasia in specific situations.
• Provided guidelines for the withdrawal or refusal of life-sustaining treatments for terminally ill patients or those in a persistent vegetative state.
• Acknowledged the need for advance directives but did not establish guidelines for living wills.

Common Cause v. Union of India (2018):

• Affirmed the legality of passive euthanasia.
• Emphasized patient autonomy, self-determination, and human dignity under Article 21 of the Constitution.
• Offered detailed procedures for the execution, revocation, and implementation of living wills, requiring involvement from multiple authorities and medical boards.

Procedure for the Implementation of a Living Will

• Verification: Healthcare providers must verify the living will’s authenticity and validity with the Judicial Magistrate First Class (JMFC) before proceeding.
• Medical Board Review: A team of experienced medical professionals should evaluate the patient’s condition and confirm the applicability of the living will.
• Judicial Oversight: The JMFC should examine the patient, assess relevant aspects, and authorize the living will’s implementation if it meets all criteria.
• Revocation and Renewal: Provisions should allow for the revocation or renewal of living wills to accommodate changes in the individual’s circumstances or preferences.

Supreme Court Guidelines on Living Will

• Eligibility: Only adults with a sound mind can execute an advance directive voluntarily and without coercion.
• Content: The document must clearly and unambiguously specify the conditions under which medical treatment can be withheld or withdrawn.
• Revocation: The directive can be revoked by the executor at any time.
• Execution: It must be signed by the executor in the presence of two witnesses and countersigned by a judicial magistrate.
• Preservation: Copies of the directive must be preserved by the magistrate, district court, and local authorities.
• Implementation: Upon the executor’s terminal illness or entry into a persistent vegetative state, a medical board reviews the directive and makes decisions about its execution, taking into account the family’s views.

State under Article 12

Why in News?

Recently, the Allahabad High Court in the matter of Prem Chand v. State of UP & Ors., held that Kshetriya Gandhi Ashram, Meerut, is not a ‘State’ under Article 12 of the Constitution of India, 1950 (COI) as there is no statute regulating the functions of the Ashram or empowering the State to control its affairs.

Background of Prem Chand v. State of UP & Ors. Case

• The petitioner was employed as a Supervisor at Kshetriya Shri Gandhi Ashram, Garh Road, Meerut, and transferred to Shri Gandhi Ashram, Khadi Bhandar, Baraut, District Baghpat by an order passed by the Secretary of Kshetriya Shri Gandhi Ashram, Meerut.
• The petitioner claimed to be the elected Secretary of the Kshetriya Shri Gandhi Ashram Employees Union, Meerut.
• On 8th September 2023, the petitioner lodged a complaint before the Branch Manager of Union Bank and Canara Bank, where the accounts of Kshetriya Shri Gandhi Ashram, Meerut, are maintained. He alleged that a forged sale deed had been executed on behalf of Kshetriya Shri Gandhi Ashram, Meerut, in favor of Ranuka Ashiyana Private Limited and reported misuse of funds by the Ashram.
• Following the complaint, an inquiry was conducted, and the operation of the Ashram’s bank accounts was halted.
• The petitioner alleged that the Secretary of Kshetriya Shri Gandhi Ashram, Meerut, threatened him to withdraw his complaint, warning him of dire consequences.
• On 16th September 2023, the Secretary dismissed the petitioner from service without conducting any inquiry.
• On 25th September 2023, another order was issued asking the petitioner to vacate the house allotted to him as an employee.
• The petitioner subsequently filed a writ petition before the Allahabad High Court.
• The counsel for the respondent objected to the maintainability of the writ, arguing that Kshetriya Shri Gandhi Ashram, being a registered society, is not an instrumentality of the State.
• The High Court dismissed the petition.

Court’s Observations

• Justice J.J. Munir observed that Shri Gandhi Ashram, the parent body of Kshetriya Shri Gandhi Ashram, Meerut, is not a ‘State’ under Article 12 of the COI since the State has no statutory control over its functioning, making writ petitions against it non-maintainable.
• The Court relied on the judgment in Suresh Ram v. State of U.P. (2005), where the Allahabad High Court outlined six factors to determine whether a cooperative society qualifies as a ‘State’ under Article 12 of the COI.

Factors to Determine Whether an Entity is a ‘State’ Under Article 12

• If the entire share capital of the corporation is held by the Government, it strongly indicates the corporation is an instrumentality or agency of the Government.
• Significant financial assistance from the State, enough to cover almost the entire expenditure of the corporation, indicates a governmental character.
• Monopoly status granted or protected by the State may be a relevant factor.
• Deep and pervasive State control over the corporation indicates its status as a State agency or instrumentality.
• Functions of public importance closely related to governmental functions are a relevant factor in classifying the entity as a State instrumentality or agency.
• If a department of the Government is transferred to a corporation, it is a strong indicator of the corporation being an instrumentality or agency of the Government.

State under Article 12 of the Constitution of India (COI)

Meaning of State
Article 12 defines "State" as including:

• The Government and Parliament of India.
• The Government and the Legislature of each State.
• All local or other authorities within the territory of India or under the control of the Government of India.

The definition is inclusive and specifies the following:

• Government and Parliament of India: This includes the Union Executive and Legislature.
• Government and Legislature of each State: Covers the State Executive and Legislature.
• Local or Other Authorities: Refers to authorities within Indian territory or under the Government of India.

Government and Parliament of India

• The term "State" includes the Government of India, which encompasses the Union Executive and the Parliament.
• Departments or institutions controlled by the government (e.g., the Income Tax Department) fall within the definition of "State."
• The President, when acting in an official capacity, is also considered part of the "State."

Government and Legislature of Each State

• "State" includes the Executive and Legislature of each State.
• Union Territories are also included under this definition.

Local or Other Authorities Within the Territory of India

Local Authorities:

• Defined under Section 3(31) of the General Clauses Act, 1897.
• Includes municipal committees, district boards, bodies of commissioners, or any authority legally entitled or entrusted by the Government with control over local funds.
• Examples: Municipalities, District Boards, Panchayats, mining settlement boards, etc.
• Authorities performing public functions under State ownership, control, or management are also considered local authorities.

Other Authorities:

• The term "other authorities" lacks a specific definition and has been subject to varied judicial interpretation.
• In Union of India v. R.C. Jain (1981), the Supreme Court provided the following tests to determine if an entity qualifies as a "local authority":
  • Separate legal existence.
  • Functions in a defined area.
  • Has the power to raise funds independently.
  • Autonomy or self-rule.
  • Statutorily entrusted functions similar to municipalities.

Determining Whether a Body Falls Under Article 12

In R.D. Shetty v. Airport Authority of India (1979), Justice P.N. Bhagwati laid down a 5-point test to determine whether a body is an instrumentality or agency of the State:

• Financial resources: The body is funded primarily by the State, with the government holding the entire share capital.
• Pervasive control: The State exercises deep and pervasive control over the entity.
• Governmental function: The body performs functions of public importance or governmental character.
• Transferred functions: It is a government department transferred to a corporation.
• Monopoly status: The body enjoys monopoly status conferred or protected by the State.

This test is illustrative, not conclusive, and must be applied with care.

Does the Judiciary Fall Under Article 12?

• Article 12 does not explicitly include or exclude the judiciary.
• Including the judiciary under Article 12 creates the possibility of it infringing on fundamental rights, leading to confusion.
• In Rupa Ashok Hurra v. Ashok Hurra (2002), the Supreme Court ruled that judicial proceedings could not violate fundamental rights. Superior courts of justice are not "State" or "other authorities" under Article 12.

Relevant Case Laws

• University of Madras v. Shanta Bai (1950): The Madras High Court applied the ejusdem generis principle, stating that only authorities performing governmental or sovereign functions are included under "other authorities." For example, unaided universities are excluded.
• Ujjammabai v. State of UP (1961): The Supreme Court rejected the restrictive interpretation of the ejusdem generis rule, holding that the entities mentioned in Article 12 do not share a common genus and cannot be categorized on a single rational basis.

Article 16

Why in News?

In the matter of Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors., the Supreme Court upheld the promotion process implemented by the High Court of Gujarat for District Judge vacancies. It emphasized that there is no inherent right for government employees to demand promotion, and that promotion policies are primarily within the domain of the legislature or executive. Judicial review is limited to cases where there is a violation of equality principles under Article 16 of the Constitution of India (COI).

Background of Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors.

• The writ petition was filed, and a two-Judge Bench observed that the case of All India Judges’ Association v. Union of India & Ors. (2002) stressed the importance of merit-based criteria for promotions in the Higher Judicial Service.
• The Court ruled that promotion to the position of District Judge should follow a ‘Merit-cum-Seniority’ basis.
• The High Court of Gujarat issued a recruitment notice on April 12, 2022, announcing 68 vacancies for promotion to the District Judge cadre from Civil Judges (Senior Division), under a 65% quota. The promotions were to be based on ‘Merit-cum-Seniority’ and a Suitability Test as per Rule 5(1)(I) of the 2005 Rules.
• Along with the notice, a list of 205 judicial officers from the Civil Judge (Senior Division) cadre was issued, representing the ‘Zone of Consideration’ for filling the vacancies. This list included the senior-most Civil Judges (Senior Division), not exceeding three times the number of vacancies.
• The suitability of the 205 candidates within the zone of consideration was to be assessed using four components: a Written Test (Objective Type – MCQs), Evaluation of Annual Confidential Reports (ACRs) from the last five years, Assessment of the Average Disposal Rate over the past five years, and Evaluation of Judgments delivered in the past year.
• Candidates were required to score at least 40% in each component and an aggregate of 50% across all four components to be eligible for inclusion in the Select List for promotion.
• After the Written Test, 175 candidates passed by securing at least 40% marks.
• Following the evaluation of ACRs, judgments, and disposal rates, 149 candidates met the eligibility criteria for promotion.
• The High Court prepared the final Select List on March 10, 2023, promoting the senior-most 68 candidates from the pool of 149 eligible candidates to the position of District Judge.
• The petitioners filed the case under Article 32 of the Constitution, challenging the promotion process.

Court’s Observations

• The Supreme Court observed that government employees do not have a legal right to demand promotion. Judicial intervention in promotion policies should only occur in cases where there is a breach of the equality provision under Article 16 of the Constitution.
• On May 17, the Court upheld the validity of the Gujarat High Court’s 2023 recommendations for promoting Senior Civil Judges to the 65% promotion quota of District Judges, based on the merit-cum-seniority principle.
  • The Court stated that since the Constitution does not specify promotion criteria, government employees cannot claim promotions as an inherent entitlement.
  • The Court emphasized that promotion policies are generally within the domain of the legislature or the executive, and judicial review should be limited to cases where there is a violation of equality under Article 16 of the Constitution.
• The Court further noted that no government servant in India can claim promotion as a right, as the Constitution does not lay down criteria for filling vacancies in promotional posts.
  • The legislature or executive has the authority to determine the method of filling vacancies in promotional posts, considering the nature of employment and the duties to be performed by the candidates.
  • Courts cannot review whether the promotion policy is the best method for selecting candidates, except in cases where it breaches the principle of equal opportunity under Article 16 of the Constitution.
• In this case, the petitioners challenged the Select List issued by the Gujarat High Court for promoting Senior Civil Judges to the District Judge cadre (65% quota), alleging violations of Article 14 of the Constitution and Rule 5 of the Gujarat State Judicial Service Rules, 2005.
  • Rule 5 mandates that 65% of promotions to the District Judge cadre be based on merit-cum-seniority and passing a suitability test.
• The Court recommended that the Gujarat High Court revise its rules regarding the suitability test to align them with the Uttar Pradesh Higher Judicial Service Rules, 1975.
  • Key suggestions included adding a Viva Voce component to the test, raising the passing threshold for existing components, evaluating the quality of judgments from the past two years instead of one, and considering seniority in the test scoring when finalizing the merit list.

Article 16 of the Constitution of India, 1950

About:

• Article 16 of the Constitution guarantees equality of opportunity in matters of public employment under the State.
• It prohibits discrimination based on religion, race, caste, sex, descent, place of birth, residence, or any of these in relation to any employment or office under the State.
• Article 16 ensures equal access to opportunities in government employment, preventing unfair treatment based on specific characteristics.
• Additionally, Article 16 allows reservations in public employment for disadvantaged groups, such as Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC), to address historical and social inequalities.

Details of Article 16:

• Equal Opportunity (Article 16(1)): This guarantees equality of opportunity for all citizens in matters of public employment under the State.
• Equal Access to Public Employment (Article 16(2)): Prohibits the State from discriminating against citizens in public employment on the grounds of religion, race, caste, sex, descent, place of birth, residence, or any combination of these.
• Reservations (Article 16(4)): Empowers the State to provide reservations in appointments or posts for any backward class of citizens, who, in the opinion of the State, are not adequately represented in the services under the State.
• Special Provisions for Scheduled Castes and Scheduled Tribes (Article 16(4A)): Provides for the reservation of posts in public employment in favor of Scheduled Castes and Scheduled Tribes.
• Reservation in Promotions (Article 16(4B)): Allows for reservation in promotions for Scheduled Castes and Scheduled Tribes in public services.
• Reservation for Economically Weaker Sections (Article 16(6)): Permits the State to reserve posts for economically weaker sections of citizens, beyond the categories mentioned in clauses (4) and (4A), subject to a maximum of 10% of the posts in each category.

Evolution of Law Related to Promotions in India

• British Era: During the British Raj, promotions were primarily based on seniority, a practice followed by the East India Company and formalized in the Charter Act of 1793 until 1861.
• Indian Civil Service Act, 1861: This act introduced a system of promotions based on both seniority and merit, known as 'Seniority-cum-Merit'. It took into account integrity, competence, and ability.
• Introduction of Competitive Examinations (1854): Competitive examinations were introduced to replace the patronage-based system with a merit-based approach in civil services. The aim was to eliminate political influences and bias in appointments.
• Post-Independence Era: The First Pay Commission in 1947 recommended a combination of direct recruitment and promotions, advocating seniority for roles that required office experience, while merit was emphasized for higher positions.
• Subsequent Pay Commissions (1959 & 1969): These commissions supported merit-based promotions alongside seniority. Seniority was considered a marker of loyalty and helped deter favoritism.
• Seniority Principle: The principle of seniority in promotions was based on the idea that experience correlates with competence, and seniority helped to limit discretion and favoritism.
• Constitutional Context: Government employees do not have an inherent right to demand promotion, as the Constitution does not specify any criteria for promotions. Promotion policies are determined by the government or legislature based on the nature of employment, with limited judicial intervention, which occurs only when such policies violate the equality principle under Article 16 of the Constitution.

Relevant Case Laws Related to Article 16 of the Constitution of India

Indra Sawhney & Others v. Union of India (1993):

• A nine-judge bench ruled that Article 16(4) does not grant reservation in promotion, as it applies only to reservations in appointments. This ruling puts in jeopardy the continuation of reservations in promotions for SCs/STs in government employment.
• The Court allowed reservations in promotions to continue for another five years, until 16th November 1992.

M. Nagaraj v. Union of India (2006):

• The Supreme Court upheld the constitutional validity of amendments related to reservation in promotions for SCs and STs.
• The Court held that these amendments did not violate the basic structure of equality under Articles 14, 15, and 16 of the Constitution.
• The Court stated that the amendments are enabling provisions, allowing but not mandating the States to provide reservation in promotions, provided they identify backwardness, inadequate representation, and ensure overall efficiency.

Essential Religious Practice

Why in News?

A bench of Justice Rajesh S. Patil and Justice A.S. Chandurkar dismissed the writ petition filed by nine students challenging the dress code that prohibits them from wearing a hijab or a nakab. The Bombay High Court dismissed the writ petition in the case of Zainab Abdul Qayyum Choudhary & Ors v. Chembur Trombay Education Society’s NG Acharya and DK Marathe College and Ors.

Background of the Case

Nine students, pursuing second and third-year undergraduate courses at a college run by the Chembur Trombay Education Society, challenged the instructions requiring them to follow a prescribed dress code. The petitioners also challenged a notice-cum-WhatsApp message dated May 1, 2024, which instructed students to comply with the dress code.
The petitioners argue that the dress code, which prevents them from wearing a hijab or nakab, is arbitrary, discriminatory, and violates Articles 19(1)(a) and 25 of the Constitution of India, 1950 (COI).

Court’s Observations

• The Court referred to a similar matter before the Full Bench of the Karnataka High Court (Resham v. State of Karnataka), where the Court had held that the dress code was intended to treat students as one homogeneous class, which promotes constitutional secularism.
• The Bombay High Court concurred with the view taken by the Karnataka High Court’s Full Bench.
• The Bombay High Court observed that regulating the dress code is part of maintaining discipline within the institution, and this right stems from Article 19(1)(g) and Article 26 of the COI.
• The Court highlighted that the aim of the dress code is to ensure that a student’s religion is not publicly visible.
• It further noted that the college’s administration and management have the fundamental right to administer the institution under Article 19(1)(g). This right allows them to issue such instructions to ensure education is pursued seriously.
• Regarding the issue of the hijab being an essential religious practice, the Court concluded that, aside from stating that the hijab is an essential religious practice based on the English translation of Kanzul-Iman and Sunan Abu Dawud, no material had been presented to support the petitioners' claim that wearing a hijab or nakab is an essential religious practice.

What is Freedom of Religion?

• The right to freedom of religion is covered under Articles 25 to 28 of the Constitution of India.
• Article 25(1) guarantees that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality, and health, and other provisions of this part.
• Article 25(2) clarifies that the article does not affect existing laws or prevent the State from making laws that regulate or restrict secular activities associated with religious practice or promote social welfare and reform. It also allows for the opening of Hindu religious institutions to all classes and sections of Hindus.
  • Explanation I: The wearing and carrying of kirpans is considered part of the Sikh religion.
  • Explanation II: The reference to Hindus includes those of Sikh, Jain, or Buddhist religions, and references to Hindu religious institutions include those for these religions.
• Article 26 grants every religious denomination the right to:
  • Establish and maintain religious and charitable institutions.
  • Manage its own religious affairs.
  • Own and acquire movable and immovable property.
  • Administer such property in accordance with law, subject to public order, morality, and health.
• Article 27 ensures no one is compelled to pay taxes used to promote or maintain any particular religion or religious denomination.
• Article 28 deals with freedom regarding religious instruction or worship in educational institutions:
  • No religious instruction can be provided in educational institutions wholly funded by the State.
  • Institutions maintained by the State but established under specific endowments or trusts may provide religious instruction.
  • Students in State-recognized institutions or those receiving state aid cannot be forced to take part in religious instruction or worship unless they, or their guardian if a minor, give consent.

Concept of Essential Religious Practice

The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)

• The Supreme Court in this case held that the essential part of a religion must primarily be ascertained with reference to the doctrines of that religion itself.
• If the tenets of any religious sect of the Hindus prescribe:
  • Offerings of food should be given to the idol at specific hours of the day.
  • Periodical ceremonies should be performed in a particular manner at set times of the year.
  • There should be a daily recital of sacred texts or oblations to the sacred fire.
• These practices would be regarded as parts of religion.

Commissioner of Police and others v. Acharya J. Avadhuta (2004)

• In this case, the Court laid down the test to determine what constitutes an essential religious practice.

The Court stated:

• “The essential part of religion means the core beliefs upon which a religion is founded. Essential practice refers to those practices that are fundamental to following a religious belief.
• It is upon the cornerstone of these essential parts or practices that the superstructure of religion is built. Without them, a religion cannot exist.
• The test to determine whether a part or practice is essential to a religion is to assess whether the nature of the religion would change without that part or practice.
• If removing that part or practice could fundamentally alter the character or belief of the religion, then that part may be treated as essential or integral.
• There cannot be additions or subtractions to this part because it represents the very essence of the religion, and altering it would change its fundamental character.
• These permanent essential parts are protected by the Constitution.”

Development on Hijab Ban

Resham v. State of Karnataka (2022)

• On March 15th, a three-judge Bench of the Karnataka High Court upheld the hijab ban in state educational institutions.
• The Court ruled that wearing the hijab was not an ‘essential religious practice.’
• It further held that the ban would not violate the freedom of speech and expression, as it was a reasonable restriction aimed at maintaining discipline in public spaces.

Aishat Shifa v. State of Karnataka and others (2022)

• A bench consisting of Justice Hemant Gupta and Justice Sudhanshu Dhulia delivered a split verdict on the issue.
• Justice Dhulia declared the hijab ban unconstitutional, while Justice Gupta upheld the ban.
• The matter is set to be decided by a larger bench of the Supreme Court.

Types of Right in Law

Why in the News?

• The Madras High Court recently dismissed a writ petition in the case of Gokul Abhimanyu v. Union of India and Another, which sought a reduction in the application fee for the All-India Bar Examination (AIBE) conducted by the Bar Council of India.
• The bench ruled that there is no statutory provision prescribing the AIBE fee, unlike the enrolment fee under the Advocates Act.
• The Court determined that the current AIBE fee of Rs. 3,500 (Rs. 2,500 for SC/ST candidates) was not exorbitant and found no grounds for interference.
• The Court clarified that a Writ of Mandamus requires the demonstration of a legal right, which was absent in this case.
• This ruling emphasizes the distinction between statutory fees and examination fees in the legal profession.

Background of Gokul Abhimanyu v. Union of India and Another

• A writ petition was filed under Article 226 of the Constitution of India in public interest.
• The petition sought a Writ of Mandamus directing the Bar Council of India to reduce the application fee for the All-India Bar Examination (AIBE).
• The petitioner argued that the AIBE application fee should be reduced and had previously made a representation on 19th January 2024 regarding this issue.
• The petitioner's counsel reiterated the points in the supporting affidavit, but the Court was not persuaded by their arguments.
• The case involved an examination of the Advocates Act, 1961, particularly Section 24(1)(f), which outlines enrolment fees for State Bar Councils and the Bar Council of India.
• A separate writ petition regarding excessive enrolment fees charged by State Bar Councils is still pending before the Supreme Court (Gaurav Kumar V. Union of India, 2023).
• However, this case specifically addressed the issue of the AIBE examination fee, not the enrolment fee.

Court's Observations

• The Court distinguished between enrolment fees, which are prescribed under the Advocates Act, and the AIBE application fee, which lacks a statutory provision.
• The Court emphasized that a Writ of Mandamus requires the establishment of a legal right, which was not demonstrated in this case.
• Despite the lack of statutory violation, the Court acknowledged its authority to intervene if the fee was considered excessive.
• After examining the fee structure, the Court found that the current AIBE application fee of Rs. 3,500 (Rs. 2,500 for SC/ST candidates) was not unreasonable.
• The Court referred to Section 24(1)(f) of the Advocates Act, which sets the enrolment fees for State Bar Councils (Rs. 600) and the Bar Council of India (Rs. 150).
• Ultimately, the Court dismissed the writ petition, ruling there were no grounds to alter the existing AIBE application fee structure.

What are Rights in Law?

• Rights are legally recognized entitlements or freedoms that individuals or entities possess.
• They represent interests protected by law, allowing the right-holder to act in certain ways or require others to act in particular manners.
• Rights may derive from statutes, common law, or constitutional provisions, with varying levels of protection and enforcement.
• Rights are often subject to reasonable limitations and must be balanced against other competing rights or societal interests in certain cases.

Types of Rights in Law

• Constitutional Rights (Fundamental Rights): Rights guaranteed by a nation's constitution (e.g., right to life, liberty, and equality).
• Legal Rights: Enforceable rights recognized by the legal system.
• Statutory Rights: Rights created and defined by legislation or statutes.
• Common Law Rights: Rights developed through judicial decisions over time.
• Human Rights: Universal rights inherent to all human beings, often recognized internationally.
• Civil Rights: Rights ensuring citizens' political and social freedom and equality.
• Property Rights: Rights related to the ownership and use of property.
• Contractual Rights: Rights arising from agreements between parties.
• Intellectual Property Rights: Rights concerning creations of the mind (e.g., patents, copyrights).
• Consumer Rights: Rights protecting consumers in commercial transactions.
• Moral Rights: Rights based on principles of ethics or morality, which may or may not be legally recognized.

What is a Legal Right in India?

• Legal rights are enforceable claims or entitlements granted by law.
• They can arise from various sources, including the Constitution, statutes, judicial decisions, and contracts.
• Legal rights are backed by state authority and can be enforced through courts.
• They define relationships between individuals, and between individuals and the state.
• Examples of legal rights include property rights, contractual rights, and consumer rights.

What are Fundamental Rights in India?

• Fundamental Rights in India are constitutional guarantees enshrined in Part III of the Constitution.
• These rights include the Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, and Right to Constitutional Remedies.
• These rights are essential for individual liberty and dignity, protecting citizens from state overreach.
• However, they can be subject to reasonable restrictions for public interest in certain circumstances.

What is the Difference Between Legal Right and Fundamental Right?

• Source: Fundamental Rights are enshrined in the Constitution, while Legal Rights come from various laws, statutes, and judicial decisions.
• Permanence: Fundamental Rights are more permanent and difficult to change, requiring constitutional amendments. Legal Rights can be modified or repealed through normal legislative processes.
• Scope: Fundamental Rights are universal and apply to all citizens (with some exceptions), while Legal Rights may be specific to certain groups or situations.
• Enforceability: Fundamental Rights can be directly enforced by the Supreme Court, while Legal Rights are typically enforced through lower courts first.
• Nature: Fundamental Rights are considered essential for human dignity and democracy, whereas Legal Rights cover a broader range of civil, criminal, and regulatory matters.
• Constitutional Remedies: The right to approach the Supreme Court for enforcement is itself a Fundamental Right for Fundamental Rights, but not for Legal Rights.