30, Junaid Jan , Legal Method , Final Draft.docx

Assignment 1:

Kharak Singh vs the state of UP Facts:

The petitioner Kharak Singh is challaned for dacoit in 1941 but was released under section 169 CrPC on the ground of lack of evidence. The police then under the prevue of the UP police regulation chapter XX open a history sheet of class A criminal against the petitioner. The petitioner was kept on surveillance and he had to inform the police about his whereabouts , which the police would then inform to the police station of the place the petitioner is visiting. The chaukidars of village and police constables would knock and shout at his door at night, wake him up and compel him to accompany them to the police station . The petitioner then challenges the constitutionality of the UP police regulation under chapter XX that it violates the fundamental rights under article 19 and 21 conferred to him by the constitution.

Procedural history: The petitioner, Kharak Singh under article 32,filed a suit in the Supreme Court against the State of U.P.

Legal question: Whether surveillance under the impugned Uttar Pradesh police Regulation 236 ,in Chapter-XX infringes the Fundamental Rights guaranteed by Article 19 and Article 21 of the constitution?

Reasoning: In the majority judgement led by Ayyangar, held that the regulation under the chapter XX of the UP police violates article and 21 of the constitution and not article 19(1)(d) whereas Justice Subba Rao believes that regulation 236(b) of the UP police is unconstitutional, but further held that the entire Regulation is unconstitutional on the ground that it infringes both Art. 19(1)(d) and Art. 21 of the Constitution. Justice Ayyengar in his argument goes on to say that the police officials strictly conformed to the regulations of chapter XX of the UP police. He states that the petitioner admitted that he was charged with dacoit and was a class A criminal therefor according to the regulations, such action was bound to be taken for the general public good and public order. He then

states that that the state has two defence, either the state must prove that there was no infringement of part 3 of the constitution and the other being the reasonable restriction imposed for public order.Ayyanger then says that the the regulation placed by UP police has no statutory authority and are just mere executive or departmental orders which are meant to be used only for guidance, thus it is no law and won’t add any weight to the argument Justice Ayyangar then poses a question, whether surveillance under chapter XX (regulation 236) infringes the fundamental rights stated in the chapter 3 of the constitution? Ayyangar then explains each part of the regulation, in the light of the case at hand and the purpose behind it. For example, the purpose behind street picketing is to know the nature of the activities the suspect is involved in and hence it does not affect the right to move freely under article 19(1)(d) or deprives him of personal liberty under article 21. He also says that picketing infringes into the right to freedom of association as it prevents people from visiting the suspects house. The second question that Ayyengas asks is whether intrusion in the house, disturbing sleep and ordinary comfort violates article 19(1)(d) and article 21. Right to move freely (right to locomotion) is the right conferred by the constitution under article 19(1)(d), and the adverb freely implies that the restriction is absolute. Ayyengar completely manifests that knocking on the door, waking someone up from sleep ,etc, does not in any way restricts locomotion and the fact that the suspect has apprehension of someone surveilling him only inhabits a psychological barrier which is out of the scope of article 19(1)(d). On the contrary, Justice Subba Rao says that Secret Picketing which involves the police keeping a check on the activities that the suspect is involved in and also has the duty be incognito but since it is practically impossible to keep it hidden from the suspect and also the people nearby. The petitioner since he knows he is being surveilled is compelled do things against his will. Hence, the secret picketing conducted by the U.P. Police on the petitioner violates the fundamental right guaranteed to him by Article 19(1)(D) of the constitution. Justice Ayyengar then explains the scope of article 21, right to life and personal liberty ,and says that the law should be looked at with a broader perspective and not just mere animal existence. The fact that liberty is prefixed by the word personnel quantifies the argument and also avoids overlapping with article 19. He then brings in the tort argument which he rebuts as the case involves violation of fundamental rights. Justice Ayyengar argues that domiciliary visits, do not affect, in any way to the physical movement of the petitioner neither does it have effect on the psychology of the petitioner, hence it does not in any circumstances infringes article 19(1)(d) of the constitution. To justify his argument he states that in order to violate Article 19(1)(D), there must be a tangible cause which effects the physical movement of the petitioner ,which in the case at hand is missing, thus domiciliary visits at night does not come under the prevue of the said article ,hence he comes to a conclusion that there is no question of infringement of Article 19(1)(D) of the constitution. Justice Ayyengar then talks about infringement of Article 21 due to the domiciliary visits, this he brings into light the 4th Amendment of the U.S. Constitution and other precedents (Wolf vs Colorado 1949) which deals with the security of people from unauthoritative searches and concludes that privacy is basic to society. He goes on to say that although there is no such law in India but the act of domiciliary visits still violates the

fundamental right of life and personal liberty under Article 21 of the Constitution. He concludes by saying that the UP police regulation 236 violates article 21 if the constitution. Justice Subba Rao has a concurring opinion to that made by Justice Ayyengar regarding article 21, that the UP police regulation infringe upon the fundamental right of an individual. According to Subba Rao, domiciliary visits means inspecting the house of the suspect, which leaves no scope for the suspect not to know about the fact that he is on surveillance, thus affecting his mindset and influences his day to day activities and therefor violates article 19(1)(d). Regarding how domiciliary visits infringe Article 21, Justice Subba Rao urges the state to have a broader perspective regarding right to life and personal liberty, that the word privacy does not just mean freedom from restraints on movement but also freedom from intrusion in a person’s life. In his opinion, he says that the UP police regulation act as an intrusion in one’s personal life and hence is a clear infringement of the Article 21. Justice Ayyangar is supported by B.P. Sinha, J.R. Mudholkar and Syed Jaffar Imam, forming the majority. According to Ayyengar there was no measure under Regulation 236 of UP Police Regulations that violated Article 19(1)(D) of the Indian Constitution and only one measure, 236(B)-domiciliary Visits is violative Article 21 of the Indian Constitution. According to Justice Subba Rao, all measures violate Article 19(1)(D), Article 21 and Article 19(1)(A) and he is supported by J.C. Shah.

Holding: In accordance with the opinion of the majority, Regulation 236(B) which authorises Domiciliary Visits is struck down as unconstitutional on the grounds of violating Article 21. The petitioner is entitled to issue a writ of mandamus, directing the respondent not to continue Domiciliary Visits. The rest of the petition is dismissed.

Assignment 2 : Bowers vs Hardwick

Facts: The respondent was charged under anti sodomy laws of the state of Georgia. the petitioner then brings a case in the court challenging the constitutionality of the anti sodomy laws of Georgia.

Procedural history: 1) State district court: The district attorney did not present the case to the jury and dismisses it due to lack of evidence. 2)Respondent ,Hardwick then challenges the continuality of the Georgia state statute(O.G.C.A section 16-6-2) that criminalized consensual sodomy in the US Federal district court. The court granted the defendants motion for failure to state a claim. 3)The respondent then challenges it in the US court of appeals. The court reverses the order and stated that the Georgia state statute violated the 8th,9th, and the 14th amendment of the due process clause of the US constitution and the verdict was ruled in favour of Hardwick. 4)The attorney-general of Georgia(Bower) then through a writ of CERTIORARI to the United State court of appeal. The supreme court in a 5-4 ruling upheld the Georgia state sodomy laws and ruled in favour of attorney-general Bower .The eleventh circuit was reversed and remanded.

Legal issue: Whether the act of consensual sodomy is unconstitutional according to the constitution of the United States of America?

Reasoning: Justice Blackmun’s judgement on the anti-sodomy laws ,of the state of Georgia was very comprehensive and strong worded. Blackmun starts by saying that the case at hand is not just about the fundamental right to engage in homosexuality, but a rather more comprehensive right that is ,the right to be let alone(Olmstead v. united states-violation of the 4th and 5th amendment). he then goes on to say that the statute at hand is interfering with an individuals private and consensual activity. Blackmun then expresses that just because a law is old and has been followed for a long time does not mean that its gospel and also says that the grounds on which those laws were implemented have long vanished .He then insists everyone to look at the case as an infringement of Hardwicks constitutional right to privacy. Justice Blackmun then goes on to say that the language used in the Georgian legislature is very broad as the statute does not mention anything about the ‘sex’ and ‘status’ of the person(homosexual ,bisexual, etc),by which he implies that Georgia’s only willingness it to deter the homosexuals and turn a blind eye to the heterosexuals. He then goes on to say that the case involves unconstitutional; intrusion into the privacy of the respondent and also that the right to intimate association does not depend on ones sexual orientation. Blackmun then highlights the fact that people are entitled to make free of government interference in their personal lives and that the 8th ,9th and the 14th amendment of the equal protection clause should also be considered with the right to freedom of intimate association. He then recognises that freedom to choose is acceptance that different people would make different choices and their choices cannot be condemned because they are inconsistent and variable. He then sates that the fact that the incident occurred at the respondent, Hardwicks home infrings the heart of the constitutions 4th amendment, which is the “right to privacy”.

Holding: It was held in Blackmun’s opinion that the statute of the state of Georgia criminalizing sodomy was unconstitutional.

1984 – George Orwell Assignment No. 3

Written in 1948, 1984 was George Orwell's chilling prophecy about the future. And while 1984 has come and gone, his dystopian vision of a government . In a dystopian future where continuous war has divided the world into three repressive superstates. Winston Smith the protagonist works for the Ministry of Truth in the superstate of Oceania, in the city called Airstrip One (formerly London). He has no hope of escaping the watchful eye of Big Brother until he meets Julia, a younger woman who persuades him to sneak away with her and become her illicit lover. Even though he knows they will be caught, Smith cannot imagine what awaits him once he is captured and taken to the Ministry of Love for interrogation. The writer, George Orwell from the first chapter gives us a gist of what the novel is going to be about. The writer through the eyes of the protagonist, Winston Smith depicts the physical and mental cruelties faced by the people, by the acts of the government of Airstrip One, initially called England. The writer illustrates the dreadful totalitarian regime followed by the political structure of the country and compares it with other regimes of the early twentieth century such as Nazi Germany and Stalin's Soviet Union; The Ministry of Truth, rewrote history and manipulated it according to their will, the idea behind this was that, how could an idea survive if the past is not allowed to exist? Both Hitler and Stalin distorted the past and rewrote history to maintain the illusion of supreme power and thus it draws similarities to those regime; The Ministry of Peace, which functions to wage war; The Ministry of Love, which is concerned in upholding law and order; and the Ministry of Plenty coupled with the Thought Police which basically kept a check on the thought and action of a person with the use of a telescreen. The irony in the naming of each ministry is an obvious notation on the contradictory nature of the Party. Telescreens were installed everywhere accept for the proles, where the people are so impoverished and insignificant that the Party does not consider them a threat to its power. The telescreen was always on, spouting propaganda and the views of the government which they wanted to impose on the general public. Even the act of writing a diary was a crime and rebellious against the party. Freedom was an alien concept in Airstrip One: simply writing in a diary—an act of self-expression—is an unpardonable crime. Mandatory organized propaganda events such as the Two Minutes Hate and daily exercise routines in the morning were made compulsory by instilling the fear of the Thought Police. The Party exercised control over the citizens and maintained its law and order by the use of extensive psychological manipulation. Big Brother’s (the dictator) invisible omnipresence is introduced in the posters and on the telescreen. Although no one has seen him in person, he is the dictator of Oceania, and the innumerable number of his posters that carry the caption "Big Brother Is Watching You," instils and intensifies the feeling of fear, that every action committed by them is being watched and monitored. The thought of being watched all the time had also programmed the people in such a way that they had to keep control over their basic instincts and expression too. Winston also sees how

young minds can be programmed into the Party through organizations such as the Spies and the Youth League, which encourage kids to report to the party anyone they believed to be a criminal even if the suspect is their parents. The control and influence shown by the party over the youngest members of Oceanian society speaks magnitude of psychological control the Party holds over its citizens. The country as shown was in a serious state of urban decay due to continuous prolonged wars, to which, the Party simply turned a blind eye to and instead highlighted with a celebratory attitude on how content and plentiful the lives of Oceanian citizens were. Even the Party slogans exhibited similar contradictions: "War is Peace," "Freedom is Slavery," and "Ignorance is Strength." The Party thrives and functions upon such contradictions. Winston being a member of the party has reservations about the notions and the regime followed by the Party and hoped for a better future, where personal liberty and freedom is permitted and respected. By looking at the principles of Ingsoc (the ruling party) he feels like he is "wandering in the forests of the sea bottom, lost in a monstrous world where he himself was the monster." In order to be associated with the party the members had to learns the art of ‘doublethink’. The members knew that the past was distorted and regardless of this knowledge, as loyal Party members they had to succumb to the alterations made by the party as the truth. Winston cannot embrace doublethink. Basically, the government tried to impose hypocrisy on the public. In the ministry of truth, where Winston worked, had various departments and different people were assigned to each. For example, for tracking down and deleting all information of any vaporized person, as to remove their entire existence, production of "definitive texts,” where literature that the Party has thought to be ideologically offensive were corrected and retain if required. Another area was one that created and distributed fictional films, plays and text books, both for the party members and the proletariat, or proles. The regime was such that even the media was regulated and worked according to the govt. for example how the media praised the Ministry of Plenty's in its success in exceeding production goals whereas it was evident that it did not meet benchmark, but regardless of actual numbers, production will always be shown higher than the expected figures. By the protagonist’s sexual experience with a prostitute, we come to the understanding of the Party's sexual repression. The Party represses sexual acts they wanted the party members to channel all of their effort, energy and time for the benefit of the party. No marriage was legal without the approval of the party the party believed that sex should only be performed only for reproductive purposes and propagated that idea with the help of groups such as the Junior Anti-Sex League, the Party turns sex into a duty performed purely to continue the Party and propagate the human race rather than an act performed for personal pleasure. Another idea behind the party's sexual puritanism is that restraining sex allows one's energy focused into loyalty to the Party and hatred of its enemies. Moreover, removing the feeling of being a parent emotionally also removes any allegiance other than that to the Party. Personal loyalty did not exist anymore. The Party destroyed it by removing the sex instinct and family bonds. The citizens of Airstrip One never had any sort of interaction with foreigners which was again another method by which the party exercised control on Oceanian citizens on how life

outside their country is and also how it is under other forms of governance followed in other countries. The citizens had no choice other than to live the life they were living since there was nothing for them to compare to. Winston then gets a book from O’Brien place called the "The Theory and ractices of Oligarchical Collectivism by Emmanuel Goldstein (was a non-believer of the party policy and was a criminal according to them) after meeting him for the second time. He had invited Winston and Julia (Winston’s girlfriend) to his place. O’Brien was an inner party member and therefor lived in a much better and open area than the normal party members. In that book Goldstein explains the reason for prolonged and endless war. When a war is on, to meet the demands of the state massive production is required, but in a state of war, economic growth is impossible and that the continuous state of war has made the people indifferent. He argued that rather than moving forward, society moved backward, embracing concepts such as "imprisonment without trial, the use of war prisoners as slaves, public executions and mental and physical torture etc. The television and propagation of print media allows superstates to develop and maintain complete uniformity in opinion and to keep a check on one’s domestic life. Goldstein focuses on the word "doublethink," which implied "the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them." The author specifies that the Party tends to embrace contradiction - knowledge with ignorance, war with peace, truth and lies, gain with deficit, love with hate. In this way, the Party moved from the principle of Socialism and to totalitarian. Goldstein also discusses the pyramidical structure of the society, which consists of the High-class, who wish to remain high, the middle that wished to interchange places with the high, and Low class, who wish live in a society where there exists equality amongst all. After the arrest of Winston, and his experience in the Ministry of Love, the writer reveal Winston's torture process and the level of violence the prisoners are subjected to. They were electrocuted until they reach their break point and were beaten, deformed and starved until they reach their point of saturation. The broken body and mind is then sent for manipulation. After being subjected to such atrocities Winston is finally taken care of by O’Brien. after his recovery in The Ministry of Love Winston again begins to analyse his views and perspective on the world and to my surprize he realizes that he cannot be a rebel against the ideals of the Party. His perspective is a completely changed one believing that the party was correct and also thinks that surrender to the party is the only viable option. He then again writes on his slate, "Freedom is Slavery, Two and Two Make Five." In complete contradiction to his earlier philosophies. Winston who was once seen as a saviour and the one who could bring end to the totalitarian regime of the party on the contrary is broken and is subjected to complete psychological control by the party. What the writer George Orwell suggest at the end is that in the battle to achieve a utopian state by allowing totalitarian regimes and by placing the society on a path towards violent governance and absolute removal of individual thoughts and freedoms on the opposite leads towards dystopia.

Assignment No. 4

ISSUE ANALYSIS

AMELIORATING, REGULATING AND CRIMINALIZING POVERTY THROUGH LAW: ANTI BEGGARY LAWS AND ARTICLE 19(1)(A)

Q. Are Indian anti beggary laws violative of article 19(1)(a) of the Indian Constitution?

A. Freedom of expression as illustrated under article 19(1)(a) has been termed by the Supreme Court of India as the mother of all liberties and that a democracy cannot successfully function with a coercive legislative censorship.

The right to hold a view and express it publicly is enshrined in Article 19(1)(a) and also adopted by the Indian Supreme Court. The importance of this article has also been suitably addressed in the Maneka Gandhi case.

The Indian Supreme Court has in the Tata Press case has extended the application of this article to various other categories of non-political speech. In the same case the court has given judicial recognition to conduct and commercial speech under article 19(1)(a). The Supreme Court has also held in the Peoples Union case that in order to keep Constitution young and alive it is imperative to expand its ambit.

It is under this background that it must be examined whether the act of begging falls under he umbrella of article 19(1)(a).

Expression under 19(1)(a) includes opinions, beliefs etc. It has also been held by the Supreme Court in the Kameshwar Prasad case that speech need not be vocal. The rationale behind the above statement is that if interpreted otherwise, then every dumb person would remain bereft of rights under article 19(1)(a). Therefore an apt description of expression would be right to get and give information.

The contention can be raised that since begging is only a commercial transaction and therefore not an expressive activity, protection must not be given under article 19(1)(a). Another argument that can be raised is that since beggars while in their expression do not in any manner whatsoever disseminate any political ideology or participate in democratic mechanism, therefore they do not make any direct contribution to the market of ideas.

These contentions can be simply rebutted by the fact that the act and expression of begging is a reflection of the deeply rooted issues such as poverty, prevalent in our country. This is in fact clearly a form communicating failure of government policies for ameliorating poverty and the evils such as poverty and homelessness, which accompany it.

The right to ask for assistance in a peaceful manner is a basic right derived from freedom under article 19(1)(a). This right has also been upheld in the American jurisprudence in the case Loper Vs. NYPD and there exists no plausible reason to adopt it in our Indian jurisprudence as well.

Hence begging is not a criminal act as it simply a request for help in order to raise concern for and appeal to the sense of duty towards the needy section of the society.

Concluding, begging being a portrayal of plight through expression undoubtedly involves a communication or expression. Thus, since begging is under the domain of communication as it involves spoken words or actions committed, therefore it merits protection under right to speech and expression as elucidated under article 19(1)(a).

Q. Do Indian anti beggary laws act as a reasonable restriction under article

fffff19(2)?

A. The criminalization of begging is not a reasonable restriction as there is no compelling interest of the state in criminalizing begging. This can be solely justified by the fact that beggars do not possess any alternate means for pursuance of their expression.

It is a recognized fact that freedoms can be restricted under article 19(2) if they have an inherent tendency to cause public disorder. However another recognized fact is that indirect or unreal connections do not fall under the umbrella of article 19(2). This has also been affirmed by the Indian Supreme Court in the Ram Manohar Lohiya case.

The rationale behind such laws is that they may endanger public safety due to unwanted interactions with antisocial elements. This rationale is in pursuance of Directive Principles, which direct the governments to ensure public health and safety through Article 47. Although the stated article strengthens the reasonable restriction argument, however seeing through a pragmatic lens, it becomes apparent that anti-beggary laws do not distinguish between aggressive begging and passive begging. Also anti-beggary laws target individuals but not charitable organizations, which is a form of discrimination as they too can be equally aggressive in their dealings if not more.

Coming to the next problem that begging does not in any way help in the democratic functioning as is not a productive activity and thus is not worthy of protection under article 19(1) is also not just. This is solely due to the fact that negating any right by distinguishing between lawful and unlawful conduct based upon content-based restrictions is unjust. Also the fact that regulating an expressing without valid state interest is void.

The anti-beggary laws disregard constitutional guarantees by restricting beggars’ right to expression. Such laws may have a superficial objective; they are not sufficient to establish a compelling state interest. Even if there exists a compelling state interest, prohibitions cannot and should not extended to all forms. Such laws are also unnecessary, as there exist other laws relating to public safety and nuisance such as the IPC. Anti beggary laws should only to criminalize aggressive begging for the purpose of public safety, since threatening behavior is already covered by the IPC.