You are on page 1of 94

CHAPTER V

Fundamental Rights, Directive

r Principles & Fundamental Duties -


Nature and Scope - Changing
Constitutional Balance -
Reconciliation - Expansion in the
Nature and Scope of Rights - Equality
- Freedom - Right to Life & Personal
Liberty - Right to Religion -
Secularism - Social Justice.
Fundamental Rights - Nature & Scope :

The existence of certain basic rights is necessary in a free and


civilised society for creating the conditions for the best possible
development of each individual. These rights are nothing other than those
conditions of social life without which no man can seek what is best in him

Rights may be either statutory or constitutional. When a right is


enacted in an ordinary law of the land it is a statutory right. And when the
Constitution guarantees any right it assumes the status of constitutional
right.

In the modern age, the people have been yearning to get their
basic rights recognised by rules in order to make their lives better and
happier. This process started when the people of England demanded an
assurance from King John for respecting of their ancient liberties. So he
made the Magna Carta!, the first written document on Fundamental Rights
of citizens. Though it was basically a feudal charter, it marked the beginning
of the history of constitutionalism and rights of the people over the
absolutism of medieval monarchs.

In the U.S.A., the people suffered tremendously at the hands


of the British colonialists. Therefore they struggled hard to get their
cherished freedom. When they attained their goal, then a conference of
the representatives of various states was held, which was known as the
Continental Congress. It has adopted “the Declaration of Independence

Rights in U.K. and U.S.A. :

The Constitution of Britain is unwritten. But that does not


imply that Britain does not recognise those basic rights to her citizens

1. Magna Carta : The Great Charter of Liberty, 1215 A.D.


which are required for their fullest development. Those rights are secured
in Britain through different instruments. The Constitution of the United
States guarantees the basic rights of the citizens in the Bill of Rights
contained in the First Ten Amendments of the Constitution. The founding
fathers of the American Constitution were against guaranteeing rights in
the text of the Constitution on the ground that in such a case those rights
guaranteed in the Constitution would be treated as an exhaustive list of
the rights to be protected, thus leading to encroachment on the rights not
listed. Despite their unwillingness on the above grounds to incorporate the
rights in the Constitution, the founding fathers were, however, forced to
incorporate the basic rights in the first Ten Amendments adopted
immediately after the commencement of the Constitution of the United
States2.

The fundamental difference between U.K. and U S A. is that


while the English were quite apprehensive of the tyranny of the executive
and were anxious to preserve their liberty, the framers of the American
Constitution not only feared the arbitrary powers of the executive, but also
the legislature which might be swayed by the transient majority of the
ruling party. Therefore, the fathers of the American Constitution provided a
Bill of Rights which is binding upon the Legislature as well as Executive
So, it has become the duty of the Supreme Court of U.S.A. to protect the
Fundamental Rights enshrined in the Constitution from the onslaught of
both Congress (legislature) as well as the executive. As a result the
system of judicial review has been established. There were no
Fundamental Rights in England and the Parliament can amend the
constitutional as well as ordinary laws in the same manner. However, no
law of the British Parliament can be struck down by the courts. Though
legally it is true but in practice it is not so because due to the democratic
set up, the British Parliament cannot make any such law even though
there is no system of judicial review in England unlike USA; but still the
Individual Is not powerless before the executive excess or tyranny The

2. The 9in Amendment takes care of unlisted rights by declaring “The enumeration m :ti.)
Constitution of certain rights, shall not be construed to deny or disparage others retained l>y
the people”.
134

judiciary has become the guardian of the individual rights in England 1 hey
give protection to the citizens against the arbitrary powers of the executive
under the Magna Carta (1215), Petitions of Rights (1628), Bill of Rights
(1689) and Habeas Corpus Act (1679) and other Parliamentary Acts and
judicial decisions.

Rights in France, USSR, Canada, China and Japan :

The rights of man were incorporated in the Constitution of


France in the 18th century. Similarly in the 20th century also some very
important rights have been incorporated in the Constitutions of Nigeria
Canada etc.

The people of France made a "Declaration of the Rights of


Man” and laid emphasis on equality, liberty and fraternity. The Constitution
of France (1977), USSR (1982) and Japanese Constitution (1947) all
embody the Fundamental Rights. The Charter of Fundamental Rights and
Freedom incorporated in 1982 in the Constitution of Canada makes
Canada a fully democratic state and places it in the same line as of USA
and India.

The rights given by the Meiji Constitution in Japan were not


rights as they were not constitutionally safeguarded. The present
Constitution elaborately enunciated these rights and declares them
justiciable. The Fundamental Rights have been described in Chapter HI of
the Constitution. The inclusion of these rights is the crux of the new
political system of Japan.

The new Constitution of China like that of the old incorporates


the Fundamental Rights. Hence the Chinese boast of their Chapter of
Rights and call it most extraordinary Bill of Rights ever known to history

But rights in China as in the former Soviet Union are non-.justiciable.

Fundamental Rights in the Constitution of India :

There is a historical reason for the inclusion of Fundamental


Rights in our Constitution. The Indian National Congress had been, from
time to time, proclaiming its resolve to frame the Constitution of India on
the basis of human rights. The National Congress, in its Madras Session
in 1928 and in its Karachi Session in 1933 and on many other occasions
raised the question of securing Fundamental Rights to the people of India
but the British authorities did not show any inclination in this direction The
Congress leaders who got elected to the Constituent Assembly took it an
opportunity to include a chapter on Fundamental Rights in the
Constitution.
Our Constitution followed the American precedent and
enacted Fundamental Rights and also provided effective means for their
enforcement. It was done by way of equipping the Supreme Court and the
High Courts with the power to issue writs of Habeas Corpus, Mandamus
Prohibition, Certiorary and Quo-warranto etc. The Constitution went a step
further and by Article 32 made the right to move the Supreme Court for
appropriate writ as a Fundamental Right.
The Constitution of India incorporates the Fundamental Rights
which form Part III of the Constitution. The Part III of the Constitution
consists of 26 Articles which are arranged under the following sub­
headings :
(1) Articles 12 and 13, (2) Right to Equality (Articles 14 to 18), (3) Right to
Freedom (Articles 19 to 22), (4) Right against Exploitation (Article 2d &
136

24), (5) Right to Freedom of Religion (Articles 25 to 28), (6) Cultural and
Educational Rights (Articles 29 and 30), (7) Right to Property [Articles 31
31 A, 31B and 31C (now deleted)], (8) Right to Constitutional Remedies
(Articles 32 to 35).

To make Fundamental Rights more effective, Article 12


defines “the state” and Article 13(3)(a) defines “law" very widely.

Under Article 12 the “State" includes (i) the Government and


Parliament of India, (ii) The Government and the Legislatures of each of
the States, (iii) all local authorities like Municipalities, District Boards
Panchayats, Improvement trust etc. and (iv) the authorities within the
territory of India or under the control of Government of India. The last
category “other authorities” has been held to include all authorities
created, by the Constitution or statutes on whom powers are conferred by
law, for example, The Life Insurance Corporation, The Oil and Natural Gas
Commission and the Finance Commission have similarly been held to be
“State" under Article 12. The Supreme Court holding the authority in the
category of “other authorities" propounded that an agency of the
government would be regarded as an “authority” or “State” and also laid
down some tests to examine the same. In regard to judiciary, the Supreme
Court has held that even if a court is treated as “State” a writ under Article
12 cannot be issued to a High Court of competent jurisdiction against its
judicial orders, because such orders cannot be said to violate the
Fundamental Rights.

Article 13 has been considered in several cases and has been


the subject of conflicting decisions of our Supreme Court. Before
discussing these decisions, it is necessary to consider the meaning of
“law" and "law in force”. Article 13(3)(a) defines “law” very widely to
include (i) an ordinance, because it is made in the exercise of the
legislative powers of the executive, (ii) an order, bye law, rule, regulation
13/

and notification having the force of law, (iii) customs or usage having the
force of law because they are not enacted laws at all. The expression law
in force” is used in Article 13(1) and in Article 372 and is defined in
identical terms by Article 13(3)(b) and Article 372. The expression
"existing law” is used for example in Article 19(2) to 19(6) and the
difference in the definition of "existing law” and "law in force" has been
relied upon to support the argument that existing law narrower than law m
force for whereas by express definition “law in force” includes a law if it is
not in operation at all, or not in operation in a particular area, a law cannot
be said to exist if it is not in operation. Personal laws do not come within
the scope of “laws in force”3 - law includes any ordinance, order, bye law
rule, regulation, notification, custom or usage having the force of law4

In S.P. Singhdeo Vs. Union of lndia5 the Supreme Court


unanimously held that an amendment of the Constitution was not la w

within Article 13(3)(a) of the Constitution. In Golak Nath case6 that view
was overruled but the view expressed in Golak Nath's case was
subsequently overruled in Keshavananda Bharati’s case? and it was
reaffirmed by the Supreme Court that the expression “law" in Article 13 did
not include an amendment of the Constitution. The matter has, however
been set at rest by the Constitution (24th Amendment) Act 1972 which by
inserting a Clause (4) to Article 13 has expressly laid down that Article 13
shall not apply to any amendment of the Constitution made under Article
368. In Kesavananda Bharati's case it was laid down that though the
Fundamental Rights constituted no limitation on the amending power yet
there were other limitations, namely, that the amendment of the
Constitution could not alter the basic structure of the Constitution or to
make new Constitution. The Clause (4) and (5) of Article 368 of the
Constitution inserted by the 42nd Amendment Act 1976 have declared that
there are no limitations expressed or implied upon the amending power of
the Constitution under Article 368 (1) which is a constituent power and
3. State of Bombay Vs. Narain Appa Mali AIR 1952 Bom 84; Sheo Kumar Vs. Smt Sudama
Devi AIR 1962 Pat 125 (126)
4. Dasaratha Rama Rao Vs. State of AP AIR 1961 SC 564 (570-572)
5. Sankari Prasad Singh Deo Vs. Union of India AIR 1951 SC 458
6. Golak Nath Vs. State of Punjab AIR 1967 SC 1543; (1967)2 SCR 762, (1967)2 SCJ 586
7. Keshavananda Vs. State of Kerela AIR 1973 SC 1461; (1973)4 SCC 225
138

that a Constitution Amending Act shall not be subject to the judicial review
in any court on any ground. But in Minerva Mills Vs. Union of lndia8 the
Constitution Bench of the Supreme Court has declared Clause (4) and (5)
of Article 368 of the Constitution invalid on the ground that these
provisions introduced by 42nd Amendment Act 1976 sought to exclude
judicial review which was one of the basic features of the Constitution as

held in Keshavananda Bharati’s case and that so long as thqt decision


stands all Constitution Amendment Acts shall be open to judicial review by
the Supreme Court or High Court to see whether such Amending Act
affected any of the basic features or other procedural safeguards in Article
368.

The enforcement of Fundamental Rights by the courts is part


of the administration of justice. In guaranteeing Fundamental Rights and
in providing the means for their enforcement through courts of law. our

Constitution has not abrogated conditions relevant to the administration of


justice. The securing of justice is one of the objectives of our Constitution

Fundamental Rights are guaranteed under the C o n stitu tio n


and are incorporated in Part III.

Right to Equality :

Equality before the law prescribed in Article 14 of the


Constitution of India which states as below :

The state shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India.

The doctrine of equality before the law is a necessary


corollary to the high concept of rule of law accepted by the Constitution

8, Minerva Mills Vs. Union of India AIR 1980 SC 1789


39

Article 14 refers to "Equality before law" which is an expression of “ English


Common Law" and “Equal Protection of Laws” which owe its origin to the
14,h Amendment of the Constitution of United States of America. Article 14
indicates that these are separate concepts by the use of disjunctive "or'

“Equality before law” is a negative concept and "Equal


protection of law” is a positive one. The former declares that every one is
equal before law, that no one can claim special privilege and that all
classes are equally subjected to the ordinary law of land. The latter
postulates an equal protection under like situation and under like
circumstances. Therefore, the discrimination can be made either in the
privilege conferred or in the liabilities imposedg. Equal protection clause
aims at striking down hostile discrimination or oppression of inequality^

Scope : The Supreme Court in Dalmia's casen has considered all the
previous cases on the true meaning and scope of Article 14 and have
summarised the following propositions to see whether any law violates
Article 14 or not. The Supreme Court declares that Article 14 condemns
discrimination not only by substantive law, but also by the procedural law
that though it forbids classification and that permissible classifications
shall satisfy the following two conditions.

1. It must be founded on an intelligible differentia which


distinguishes persons or things which are grouped together from others
left out of the group; and
2. the differentia must have a rational relation to the object
sought to be achieved by the statute in question.

In Anwar Ali Sarkar’s case^, the Supreme Court has


however, cautioned that the differntia and object are different elements
and it follows that the objects by itself cannot be the basis of
classification. In Balsara's casei3, Fazal Ali Justice has observed that in
9. State of U.P. Vs. Deoman AIR 1960 SC 1125
10. Ram Prasad Vs. State of Bihar AIR 1953 SC 215, Lachaman Das Vs. State of Bombay AlH
1952 SC 235
11. Dalmla Vs. Tendolkar AIR 1958 SC 538; 1959 SCR'279
12. 1952 SCR 34
13. S tate o f B o m b a y Vs. F.N . B a ls a r a 1951 S C R 6 8 2; pp 7 0 9 - 7 1 0
1no

permissible classification mathematical nicety and perfect equality are not


required. In Dalmia’s case the Supreme Court has also laid down that the
classification may be founded on different bases, namely, geographical or
according to objects, occupations or the like. In Balsara’s case the
Supreme Court has observed that, if law deals equally with the members
of a well defined class, it cannot be struck down on the charge of denial of
equal protection on the ground that it has no application to other persons
In Dalmia's case the Supreme Court has also stated that even a single
individual may be a class by himself on account of some special
circumstances or reasons applicable to him and not applicable to others
and that the legislature is free to recognise degrees of harm and may
confine its restrictions to those cases where the need is deemed to be the
clearest.

Applicability of Article 14 :

Article 14 of the Constitution can have no application where


the source of authority of the Parliamentary and state legislation are
different14. Article 14 applies to the citizens as well as non-citizens found
in Indiais. The principle of discrimination laid down under Article 14 of the
Constitution should not be applied to a case under Article 19 unless it
involves identical situation, factual and legal^. What was once a perfectly
valid legislation may, in course of time, become discriminatory and liable
to challenge on the ground of its being violative of Article 14 of the
Constitution^.

Reasonable Classification :

The Supreme Court has also in several cases laid down that
the state can also be treated as a class by itself is
14. Bar Council, UP Vs. State AIR 1973 SC 231; (1973) 1 SCC 261
15. Dorai Rajan Vs. State of Madras AIR 1951 Mad 120 (FB)
16. Deena Vs. Union of India AIR 1983 SC 1155
17. Rattan Arya Vs. State of Tamil Nadu AIR 1986 SC 1444; Motor General Traders Vs State • (
AP AIR 1984 SC 121
18. Mannalal Vs. Collector of Jhalwar AIR 1961 SC 828; Lachman Das Vs. State of Punjab A i n
1963 SC 1234
The expression “equal protection of laws” means the right to
equal treatment in similar circumstances. Article 14 . ensures equality
among equals protecting persons similarly placed against discriminatory
treatment. A person challenging an act as discriminatory must establish
that between persons similarly placed some were treated to their
prejudice and the differential treatment has no reasonable relation to the
object sought to be achieved by the law19.

Reasonable classification of properties for conservancy


changes2o, reasonable classification for persons with reference to grant of
import Iicences2 i, reasonable classification for sales tax22l for income tax>3
etc. do not infringe Article 14 of the Constitution. But a fiscal law violates
Article 14 if it introduces unreasonable discrimination between persons or
property either by classification or lack of classification^. Even different
though parallel laws in different areas of the state can be permitted on the
ground that the difference apart from the historical reasons and such
geographical classification based on historical reasons is reasonable
classification^. Granting monopoly to state in respect of transport services
by preparing a scheme under Chapter VI A of the Motor Vehicle Act 1939
is not violative of Article 1426. Fixing different minimum wages for different
industries in a state or for different localities within the state is
permissible27 . Classification of direct recruits and promotees for the
purpose of promotion is reasonable28. Fixing of different minimum wages
for different industries having regard to different economic and local
conditions is reasonable2g. Treating pending cases as a class of different
from decided cases is pemissible30.

19. UP Electric Co. Vs. State of UP AIR 1970 SC 21


20. Anant Mills Co* Ltd. Vs. Aryodaya Spg & Wvg. Mills Co. Ltd. AIR 1975 SC 1234
21. J. Fernandes & Co. Vs. Dy. Chief Controller of Imports & Exports AIR 1975 SC 1208
22. State of Bombay Vs. United Motors AIR 1953 SC 252; East India Tobacco Co. Vs State o*

AP AIR 1962 SC 1733; C.K. Krishna Murthy Vs. State of Orissa AIR 1964 SC 1581
23. Sukhlal Vs. Income Tax Officer AIR 1959 Cal 4443; ITO Shillong Vs. NTR Rymbai AIR
1976 SC 670
24. N.M.C.S. Mills Vs. Municipal Corporation (1967)2 SCR 679; State of Kerela Vs Haji Alt-
1969 SC 378
25. Anant Prasad Lakshlnlvas Gunerlwal Vs. State of AP AIR 1963 SC B53
26. J.Y. Kondala Rao Vs. AP State Transport Corporation AIR 1961 SC 82
27. Chandra Boarding & Lodging Co. Vs. State of Mysore AIR 1970 SC 2042
28. C.A. Rajendra Vs. Union of India AIR 1968 SC 507
29 Anand Mills Co, Ltd, Vs, Aryodaya Spg ft Wvg. Mills Go I tri. AIR 1075 SO 1234
30. Anand Mills Co. Ltd. Vs. Aryodaya Spg ft Wvg. Mills Co. Ltd. AIR 1975 SC 1234
14?

Classification held to be not discriminatory :

Instances of some cases :

Distinction made between ex-servicemen re-empioyed prior to


1s’ January 1988 and those appointed thereafter is not discriminatory3.

The choice of date as a basis for classification cannot always


be dubbed as arbitrary even if no particular reason is forthcoming for the
choice unless it is shown to be capricious or whimsical in the
circumstances32.

The power of legislature in taking statutes to classify is of


wide range and flexibility so that it adjusts its system of taxation in all
proper and reasonable ways. Keeping the above principles in view, there
was no violation of Article 14 of the Constitution in treating pending cases
as a class different from the decided cases. So long as the classification
made by the state in the taxing statute is within the wide and flexible
range, the taxing statute does not transgress the fundamental principles
underlying the doctrine of equality. So, a taxing statute is not
unreasonable on the ground of discrimination merely because it taxes or
exempts from tax some incomes of objects and not others3 3 .

Two avenues of promotion for the members of the Scheduled


Castes and Scheduled Tribes while a single avenue of promotion is
available to other state Government servants would not violate Article 14
15 and 16 of the Constitutions,*.

A memorandum enabling the use of IAF aircraft by the Prime


Minister for non-official purposes is not violative of Article 14 because
such use is held to be in the public interest35 .

31. O.K. U daysankaran Vs. Union of India AIR 1996 SC 1901; (1996)8 SCC 271, 1996 SCt
(L&S) 893
32. U nion o f India Vs. P.M. W orks AIR 1974 SC 2349; U.G.C. Vs. S adhana (1996)10 SCC
536
33 ITO V, NTR Rymbal AIR 1976 SC fi/O
34. S.S. S harm a Vs. Union o f India AIR 1981 SC 588
35. P.V. S hastrl Vs. Union o f India A IR 1974 Del 1 (FB)
14 3

Indian Telegraph Rules 1951 provides that in the matter of


allotment of telephone connections the demands of certain categories of
applicants should be met on preferential basis. The applicants for
allotment of telephone connections have been divided into three
categories, namely : (1) D.Y.T. Scheme, (2) Special Category and ( 3)

General Category. Hence classification of the applicants who are entitled


to be registered as special category like medical profession, newspaper
small scale industries subserving the good of general public is not
violative of Article 14 of the Constitution36.

Non inclusion of Rajasthani language in Schedule VIII of the


Constitution while Manipuri, Kankani and Nepali were included therein
cannot be challenged as violative of Article 14 which is a part of basic
structure of the Constitutions/.

Coal India Limited introduced Leave Travel Concession


scheme for the employees once in a block of four years. The scheme was
modified by a resolution dated 14th September 1996 in which option of
encashment was provided which came into force prospectively from ' :t
January 1997. The cut off date has been challenged as arbitrary. The date
has been decided as a policy and was made applicable to all employees
uniformly. The choice of date is not arbitrary38. Plea of discrimination
cannot be sustained when a particular provision is a qualification as
distinguished from classification. When the Corporation introduced a
scheme for retirement facilities which could be availed of if the employees
concerned have completed minimum qualifying service in the Central
State Government / Public Sector Undertaking out of which a minimum
five years service shall be in NTPC it is not a classification but a
qualification. An employee not putting in five years of service in NTPC
cannot challenge the scheme as arbitrary39.

36. S hankar B arm lw al Vs. Union of India AIR 1982 Raj 187(FB)
37. K anhaya Lai S ethia Vs. Union o f India (1997)6 SCC 573
38. R abindranath M ukhopadhyaya Vs. C oal India Ltd. (1997)4 SCC 252; 1997 SCC (L&S) 8a;-
1997 (2) SLR 394
39. NTPC Ltd. V s. K.V. R am gaiah (1997)11 SCC 597
' 44

The Railways by their circular dated 14th October 1980 partly


treating temporary status service of open line casual labour on their
regularisation as qualifying service for pension. Project, casual labour was
not included in the scheme originally. But the scheme was extended to
them also with the approval of the Supreme Court but benefit was
extended from 1st January 1981. When the project casual labour raised
the plea of discrimination, the Supreme Court has negatived the plea on
the ground that when the scheme was introduced to them from 1st January
1981 only, the plea of discrimination cannot be sustained40.

Exemption from the import duty of edible oil granted to the


State Trading Corporation and not to private importers is in public interest
and the classification is reasonable and not violative of Article 144i •

The classification of newspapers into small, medium and big


newspapers for the purpose of levying concessional duty is not violative of
Article 1442,

The benefit conferred on a widow under S.14D of the Delhi


Rent Control Act 1958 applying for eviction of the tenant from her
premises is not violative of Article 14 because the widow is per se different
from the class whose rights have been protected by S.14(1)(e) of the
Act43.

Thus equality clause applies to every person, citizen or non­


citizen^. And the court’s interpretation of this clause seeks to ensure both
individual and social good.

Prohibition of Discrimination :

Article 15 of the Constitution of India states as follows.


40. U n io n o f In d ia V s. K .G . R a d h a k ris h n a P a n ik e r A IR 1998 SC 2 0 7 3 S 1998 L a b IC 1902
41. M. J h a n g ir B h a tn s h a V s. U n io n o f In d ia A IR 1 9 8 9 SC 1713
42. L .E . N e w s p a p e rs (B o m b a y ) (P) L td . V s. U n io n o f In d ia A IR 1 9 8 6 SC 515
43. K .L . M a lh o tra V s. P ra k a s h M e h ra A IR 1991 S C 99; (1 9 9 1 )4 S C C 512
44. N a tio n a l H u m a n R ig h ts C o m m is s io n V s. S ta te o f A ru n a c h a l P ra d e s h A IR 1996 SC 1234
145

Prohibition of discrimination on the grounds of religion, race


caste, sex or place of birth.

It is only a citizen who is entitled to the benefit of this article


Article 14 on the other hand is available to all persons.

The mandate of Article 15 clearly extends to political as well


as other rights. Therefore, the law of election on the basis of separate
electorates for members of different religious communities violates Article
1545. state cannot make classification of the socially and educationally
backward classes only on the consideration of caste46. But the
reservations of the members of a caste being a class of citizen can be
made if the caste as a whole is socially and educationally backward in
view of clause (4) of Article 1547. Discrimination based on place of birth
does not extend to provision on the basis of residence; so discrimination
on the ground of residence does not attract Article 1548. Reservation of
seats in a medical college for candidates of rural areas contravenes
Article 15, but reservation of candidates for the hill areas does not49 But
where reservation is made for candidates residing in a geographical area
socially and educationally backward, the same does not violate Article 15,
because of clause (4)so.

In Indra Sawhney Vs. Union of lndia51, the Supreme Court has


held the special provision contemplated by Article 15(4) is an emphatic
reference to the affirmative action which the state may adopt to improve
the conditions of the disadvantaged members of the backward classes of
citizens and that it significantly does not specifically speak about
reservation but it has been generally understood to include that power

The object of protective discrimination [Article 15(4)] is to


45. Nainsukh Vs. State of UP AIR 1953 SC 384; 1953 SCR 1184
46. Nanda Kishore Sharma Vs. State of Bihar AIR 1965 Pat 37?
A!. IJ. Hajendian Vs. State of Madras AIR 1968 SC 1012
48. R. Jacob Mathew Vs. State of Kerala AIR 1964 Ker 39; Biharilal Batra Vs. Chief Settlement
Commissioner AIR 1965 SC 134
49. State of UP Vs. Pradip Tandon, AIR 1975 SC 563
50. 8tate of Kerala Va. Rabla Rahim AIR 1 9/8 Ker 176
51. Indra Sawhney Vs. Union of India AIR 1993 SC 477
148

integrate the socially and educationally backward classes into the national
mainstream so as to establish an integrated social order with equal dignity
of person in which justice - social, economic and political - is enjoyed by
them in equal measures with general members of the society52 , Dalits
(SCs) and tribals are the victims of social injustice, such as practice of
untouchability and segregation from the mainstream of normal life.

Equality of opportunity :

Article 16 of the Constitution states as follows.

16. Equality of opportunity in matters in public employment

1) There shall be equality of opportunity for all citizens in


matters relating to employment or appointment to any office under the
state.
2) No citizen shall on grounds only of religion, race, caste, sex
descent, place of birth, residence or any of them, be ineligible for or

discriminated against in respect of, any employment or office under the


state.
3) Nothing in the Article shall prevent the state from making any
provisions for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the state, is not
adequately represented in the services under the state.
4) Nothing in this Article shall prevent the state from making any
provision of appointments or posts in favour of any backward class of

citizens, which, in the opinion of the state, is not adequately represented


in the services under the state.
16[(4A) Nothing in this Article shall prevent the state from making any
provision for reservation in matters of promotion to any class or classes of

posts in the services under the state in favour of the Scheduled Castes

52. Post Graduate Institute of Medical Education and Research Vs. K.L. Narasimhan (1997)6
SCC 283
14/

and the Scheduled Tribes which in the opinion of the states, are not
adequately represented in the services under the state]..
5) Nothing in this Article affect the operation of any law which
provides that the incumbent of an office in connection with the affairs of
any religious or denominational institution or any member of the governing
body thereof shall be a person professing a particular religion or belonging
to particular denomination.

In the case of Krishna Chander Nayar Vs. Chairman, CTOS3


the court held that in the matter of making application for employment
under the state, Article 16(1) guarantees to the citizens equal opportun ity
In another case of C.K. Achuthan Vs. State of Kerela, the court held that
“it also guarantees right for being considered for the post on merit"5 4 In its
application to government servants Article 16 has eroded the rule of
master and servant giving them constitutional protections- In Jagadish Lai
Vs. State of Haryana56, the court held that equality of opportunity is not
simply a matter of legal equality, its existence depends not merely on
absence of disabilities but presence of abilities and opportunities of
excellence in each cadre and grade.

The Supreme Court in Indra Sawhney Vs. Union of India.,?,


known as Mandal case has laid down the guiding principles for reservation
of backward classes in Government service in a writ petition seeking
proper implementation of Mandal Commission Report. The Mandal
Commission recommended 27 percent reservation for backward classes
The Supreme Court decided on 6th Nov., 1992 by a 6 to 3 majority that 27
percent reservation of posts for the socially and educationally backward
classes would serve the end of actual justice.

The Supreme Court held that creamy layer of backward


classes shall cease to have the right of reservation in employment The
Supreme Court in Ashok Kumar Thakur Vs. State of Biharss has struck
53. Krishna Chander Nayar Vs. Chairman, CTO AIR 1962 SC 602
54. C.K. Achuthan Vs. State of Kerela AIR 1959 SC 490
55. AIR 1979 SC 439
56. Jagadish Lai Vs. State of Haryana AIR 1997 SC 2366
57. AIR 1993 SC 477; (1993)1 SCJ 352
58. AIR 1996 SC 75
1 4 8

down the criteria for identification of creamy layer set out in E fih a r

Reservation of vacancies in posts and services for Scheduled Castes a n d

Scheduled Tribes and other Backward Classes (Amendment) O r d in a n c e

1995 and S.3(b) of U,P. Public Service Reservation of Scheduled C a s te s

and Scheduled Tribes and other Backward Classes Act 1994 as a r b itr a r y

and illegal and has approved the test laid down by the C e n tr a l

Government in office memorandum dated the 8th September, 1993.

Equal pay for equal work :

The principle of equal pay for equal work has not b e e n

specifically declared to be a Fundamental Right under the In d ia n

Constitution. But it certainly is a constitutional goal. The principle o f e q u a l

pay for equal work would be an abstract doctrine not attracting Article 1 4 if

sought to be applied to them. But equality clause will h a v e s o m e

substance if equal work means equal pay and such right is deducible fr o m

Article 14 and 16 in the light of Preamble to the Constitution a n d A c t

Article 39(d) of the Directive Principles of the Constitution. There c a n n o t

be any unequal scale of pay on the basis of no classification or ir r a tio n a l

classification when they do identical work under the same e m p lo y e r ^

Thus the court makes a liberal use of the equality clause to m a k e th e

directive of equal pay for equal work more authentically constitutional th a n

what it is.

Abolition of Untouchability :

Article 17 of the Constitution states as follows.


17. Abolition of untouchability, “untouchability” is abolished a n d

its practice in any form is forbidden. The enforcement of any d is a b ility

5 9 . R a n d h ir S in g h V s . U n io n o f In d ia A IR 1 9 8 2 S C 8 7 9
149

arising out of "untouchability” shall be an offence punishable in

accordance with law.

Protection of Civil Rights Act and Article 17 :

While interpreting Article 17 and the provisions of Protection


of Civil Rights Act, the Supreme Court has held that the Constitution has
removed the disabilities to which "Dalit members of Scheduled C a s te ’
were subjected and subjecting them again to such disabilities would be
crime against the Constitution as well as violation of the Protection of Givi'
Rights Act. It has also been observed that the thrust of A rticle 17
Protection of Civil Rights Acts is to liberate the society from blind and
ritualistic adherence to traditional beliefs which lost all legal or moral base
and that it seeks to establish a new ideal for society, that is, equ ality to
the Dalits on par with general public, absence of disabilities, restriction
and prohibition on the grounds of caste and religion, ava ila b ility of
opportunities and the sense of being a participant in the mainstream of the
national life. It has also been held that the disabilities to which the Dalits
have been subjected have been outlawed and denial thereof offends the
right to equality in Article 14 of the Constitution, that the scheme of Part
III, namely the Fundamental Right is to remove disabilities to which the
Dalits are subjected to and to provide positive discrimination in their
favour and Part IV, namely, the Directive Principles fasten on the state to
render socio-economic and political justice and protect them from all form s
of exploitation and injustice by operation of Article 38 and Article 46 of the
Constitution. In other words, the Constitution charges the state to im prove
the quality of their lives, socio-economic and cultural pursuits as part of
meaningful right to life guaranteed under Article 21.
Abolition of Titles :

Article 18 of the Constitution states as follows.


18. Abolition of Titles (1) No title, not being a military or academic
distinction shall be conferred by the state.
(2) No citizen of India shall accept any title from any foreign
state.
(3) No person who is not a citizen of India shall, while he holds
any office of profit or trust under the state, accept without the consent of
the President any title from any foreign state.
(4) No person holding an office of profit or trust under the state
shall, without the consent of the President accept any present, emolument
or office of any kind from or under any foreign state.

Quite a number of cases have been filed which indicates the


violation of the right to equality under Article 14 to 18. Instances of some
cases are given below.

A union of agricultural workers filed a petition under Article 32


of the Constitution and the second petitioner, Hakim Sheikh, a member of
the union was denied a seat in the government hospital on the ground that
no bed was availableeo- Two private hospitals refused his admission on the
ground that it was a medico-legal case and deposit of money was
prerequisite to treatment. Sheikh had severe head injuries and brain
haemorrhage. He managed to get a seat in a private hospital. The petition
invoked Article 14 and 21 of the Constitution and contended that the life of
the injured was threatened by delayed medical treatment. It demanded
that the action by the Government run hospitals be declared illegal and
unconstitutional, compensation to be given and the decision of the
Consumer Disputes Redressal Commission be set aside.

60. Pachlm Banga Khet Majdoor Samity and another Vs. State of West Bengal and another
(Civil) NO 796 of 1992
In an order dated 22/4/94 by the Chief Justice MN
Venkatachaliah, Justice R.M. Sahai and Justice S. Mohan, the Supreme
Court blamed the West Bengal Government for delaying the matter and
asked the State of West Bengal to pay Rs. 15,000/- within a period of
three weeks to Hakim Sheikh. The attitude of the West Bengal
Government in this case seems to be degrading as the health department
ignored the matter altogether which is shameful and serious offence
committed by them. It is a strict violation of Fundamental Rights and steps
should be taken so that such acts are prevented in future.

In the case of People’s Union of Democratic Rights (PUDR)


and another Vs. Ministry of Home Affairsei, a petition was filed under
Article 226 of the Constitution on behalf of the riot victims. The riots took
place after the assassination of Prime Minister Mrs. Indira Gandhi. The
petition demanded for an enquiry and an investigation into the role of
police. It invoked Article 14, 21 and 22 of the Constitution, Cr.PC 1993
and Section 3 of the Commissions and Inquiry Act, 1952.

However, the petition could not be entertained as none of the


rights mentioned have bed infringed. The court is not the only protector of
Fundamental Rights and it cannot direct Executive Magistrates to keep the
peace under the Cr.PC, 1973 as no Fundamental Right was attracted to
this request. After analysing and referring that the petitioners had not
approached the appropriate authority for the appointment of a commission
under the Commission of Inquiry Act, 1952. The court held they had no
locus standi to make this demand.

If the state fails to perform its duty, then the court can as well
interfere, but only to the extent to which it can give relief. When the court
can give complete relief, it is then that PIL should be entertained

61. People Union of Democratic Rights (PUDR) and another Vs. Ministry of Home Affairs CWij
No 2697 of 1984, Delhi
15?

In an another case, which is known as Sunil Batra’s 62 case a


letter was sent to the Supreme Court Judge by Sunil Batra describing
about a prisoner in Tihar jail who complained that a jail warden had
pierced a baton into the anus of another life time prisoner of Tihar jail in
order to extract money from him. The letter was registered as a Habeas
Corpus petition under Article 32 of the Constitution. An "amicus curiae
counsel was appointed who was authorised to visit the prison and assess
the situation.

In an order dated 20/12/79 by Justice V.R. Krishna Iyer


Justice R.S. Pathak (concurring) and Justice O. Chinnapaa Reddy the
court described how the “amicus curiae” advocate found that the prisoner
was kept in the punishment cell, where he had developed a cut in the anus
for which he was moved to a hospital and it was bleeding profusely The
court invoked Articles 14, 19 and 21 of the Constitution and provisions of
the Prisons Act, 1894, the Prisoners Act, 1906 and the Punjab Prison
Manual. The protection afforded by articles 32 and 226 of the Constitution
was upheld as the court allowed a case "in the nature of" Habeas Corpus
to be registered as a habeas corpus petition. The petition was allowed and
the court issued following guidelines.
1. The court held that a separation sexes must be upheld and
sexual excesses and exploitation both of which violate Article 19 must be
stopped.
2. Prisoners have the right to privacy, which cannot be denied
under Article 19 of the Constitution, but is subject to search and security
criteria.
3. The District Magistrates were asked to visit the cells so that
the prisoners can relate their grievances and if necessary habeas corpus
action could be initiated.
4. Grievance deposit boxes should be installed and were to be
opened as frequently as deemed fit.

62. Sunil Batra (II) Vs. Delhi Adm inistration, WP No. 1009 of 1979
153

5. A wall paper should be put up for the prisoner to write upon


and reduce stress.
6. The state should keep up the minimum standard rules for the
treatment of prisoners as recommended by United Nations.
7. The court noted the need for an amendment of the Prisoners
Act, 1894 and a total revision of the Prison Manual.
8. Free legal aid services were ordered to be made available to
prisoners. The District Bar was directed to keep a cell for prisoners’ relief
9. Justice Krishna Iyer suggested the institution of
transcendental meditation courses in prisons.

About the fate of the prisoner in question, the court directed


the Superintendent of the Tihar Jail to put a stop on such type of assaults
Suggestions were made for a CBI enquiry and the court criticised the
affidavit filed by the Under Secretary (Home), Delhi Administration which
shows the “affiants indifferent and omnibus approval to every officials
conduct”.

In an another case, filed by Indrajit Barua Vs. State of Assam


and a n o th e r who is a resident of Guwahati, the two notifications were
issued, declaring most areas of Assam to be “disturbed areas", allowing
the armed forces to be used in aid of civil power.

In an order dated 7/4/80 by Justice Hansaria, the court


passed an order staying the operation of the notification declaring areas of
Assam as "disturbed areas” and asked the respondent to show cause why
the petition should not be allowed. The state moved a Special Leave
Petition in the Supreme Court which was not admitted and the case was
transferred to Delhi High Court.

The petition filed by Indrajit Barua under Article 2 2 6 64 again


asked for a stay on the notification of the Government of Assam under the

63. Indrajit Baruah Vs. State of Assam and another, CR No. 182 of 1980, Guwahati
64. Indrajit Baruah Vs. State of Assam and another, CWP Nos. 332 to 834 of 1980 and LPA No
108 of 1980, Delhi
154

Assam Disturbed Areas Act, 1955 and Special Power Act, 1958. Similar
petitions were filed by two other persons and they not only challenged the
vires of the two Acts as violative of Article 14, 19 and 21 of the
Constitution, but also the legislative competence of the Assam Legislature
and the Lok Sabha in passing these legislations. The notification declaring
certain areas as disturbed is unjust and as the concept of "disturbed area
has not been defined, so such a declaration is irrational. It also challenged
the Armed Forces Special Powers Act, 1972.

By an order dated 3/6/83 by Chief Justice Prakash Narain and


Justice B.N. Kirpal, the court upheld the standing of petition on the ground
that because of the social purpose of the enactments to uphold the rule of
law, they are valid. It was stated that it is the state’s duty to see that the
rule of law enunciated by Article 21 is available to the greatest number
Allowing the petition partially, the court did provide a fresh interpretation
of parts of Section 4 and 5 of the Assam Disturbed Areas Act, 1955
regarding the powers of the officials. The parties were left to bear their
own costs. However, an appeal was filed under Article 136 of the
Constitution in Supreme Court against this judgement.

Right to Freedom (Articles 19 to 22) :

Right to freedom of speech is guaranteed under Article 19 of


the Constitution as follows.

19. Protection of certain rights regarding freedom of speech etc


(1) All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peacefully and without arena;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
1 55

(e) to reside and settle in any part of the territory of India and
(f) omitted;
(g) to practice any profession, or to carry on any occupation, trade or
business.

The following list of cases shows the scope of right to


freedom under Article 19.

In Anowar Vs. State of J & K6s. the court held that these rights
are included in the right to freedom and are available only to one who is a
citizen of India.

In the case of Jamuna Prasad Vs. Lachhi Ram66, the court


held that this Article refers to what are known as natural and inherent in
the status of a citizen of a free country. In Babulal Parate Vs State of
Maharastra67 , the court held that the right of a lawyer to practice before a
court or the right to hold a public office are statutory rights and do not
come within the purview of this Article. In another case of Shamdasam Vs
Central Bank of lndia68, the court held that this article does not cover
cases of violation of rights of property by individuals.

Although Article 19 guarantees all the seven freedoms to the


citizens, such guarantee does not confer any absolute or unconditional
right but is subject to reasonable restriction which the Legislature may
impose in public interest. It is, therefore necessary to examine whether
such restriction is meant to protect social welfare satisfying the need of
prevailing social values.

Freedom of Speech and Expression ;

The right of freedom of speech or expression is meant for the

65. Anowar Vs. State of J&K AIR 1971 SC 337


66. Jamuna Prasad Vs. Lachhi Ram AIR 1954 SC 686; State of West Bengal Vs Subodh oopa
Bose 1954 SCR 587
67. AIR 1954 SC 524; Babulal Parate Vs. State of Maliarastra AIR 1961 SC 884 (888)
68. Shamdasani Vs. Central Bank of India AIR 1952 SC 59
expression of free opinions to change political or social conditions or tor
the advancement of human knowledge. It is subject to reasonable
restrictions which may be thought necessary in the interest of general
public and one such is the interest of public decency and morality So in
this context one instance is the case of Ranjit D. Udeshi Vs State of
Maharastra69 , in which the Supreme Court cleared that law of obscenity as
laid down in S.292 of the Indian Penal Code clearly embodies such a
restriction. The restriction imposed by S.500 of the Indian Penal Code is a
restriction on that right70. So is the law of contempt of court.

Freedom of Press :

The freedom of press has no geographical barrier and this


freedom is exercisable not only in India but also abroad and if the state
action sets up barriers to the citizen’s freedom of speech and expression
in any country of the world it would violate Article 19(1)(a). This decision
was held by the Supreme Court in Maneka Gandhi Vs. Union of India?

In several decisions the Supreme Court has held that freedom


of press is an integral part of freedom of speech and expression and has
upheld such freedom against state action to abridge or curtail its
circulation, future growth or stop its entry in any particular state72 The
right of freedom of speech includes the right to propagate one's view
through print media or through any other communication channel, such as
video, television etc. which was held by the Supreme Court in LIC Vs
Munubhai73. In the Indian Express Newspaper case74, it has been
observed that if the levy of the tax on the newsprint transgresses into the
freedom of expression, it can be held to be unconstitutional. The ught
includes freedom of press, i.e. freedom of propagation of ideas and the
freedom ensured by the freedom of circulation.

69. Ranjit D. Udeshi Vs. State of Maharastra AIR 1965 SC 881


70. Kedar Nath Singh Vs, State of'B ihar AIR 1962 SC 955
71. Maneka Gandhi Vs. Union of India AIR 1978 SC 597
72. E.T. Sen Vs. E. Narayanan AIR 1969 Del 201
73. LIC Vs. Manubhai AIR 1993 SC 171
74. Indian Express Newspapers Ltd. Vs. Union of India AIR 1986 SC 515
ib/

In another case of Harijai Singh75, the court held that freedom


of press is an essential prerequisite of democratic form of government But
it is not absolute and unrestricted.

Right to Information :

The right to impart and receive information is a species of the


right of freedom of speech and expression guaranteed under Article
19(1)(g)• A citizen has Fundamental Right to use the best means of
imparting and receiving information and as such to have an access to
telecasting for that purpose. However, this right to have an access to
telecasting has limitations on account of the use of the public property
namely the air waves involved in the exercise of the right and can be
controlled and restricted by the public authority. This limitation imposed by
the nature of the public property involved in the use of electronic media as
in addition to the restrictions imposed on the right to freedom of speech
and expression under Article 19(2) of the Constitution.

While the freedom, guaranteed by Article 19(1)(g) does not


include the right to receive and impart information, no one can claim
Fundamental Right to do so by using or employing the public property
Only when the statute permits him to use the public property, then only
and subject to such conditions and restrictions as the law may impose he
can use the public property such as the air waves. In the case of Ministry
of Information and Broadcasting, Government of India Vs. CAB76, the
Supreme Court held that Article 19(1) (g) does not enable a citizen to
impart his information, views and opinions by using the air waves.

Another aspect of freedom of press Is that the proper


balancing between the right to privacy and the freedom of press is
nucuasary. Publications of life story ol a citizen exposing misdeeds of

75. In Re, Harijai Singh AIR 1997 SC 73


76. Ministry of information & Broadcasting, Government of India Vs. CAB AIR 1995 SC
1236
some public officials, cannot be prevented because the publisher has the
right to publish. But the public official or any other person may have
similar right against the publishers if they contain any defamatory or other
objectionable matters. But the remedy will only arise after the publication
It was held in a case of R. Rajagopal Vs. State of Tamil Nadu77.

In PUCL Vs. Union of lndia78, the Supreme Court has held


that right to transmit telephonic message or hold telephonic conversation
is privacy and covered by Article 19(1){a).

Right to Know :

The basis of the right to know by a citizen about government


decisions and actions is derived from freedom of speech which is a
Fundamental Right and is subjected to overriding interest of public
security and secrecy. When the Vohra Committee Report depicting nexus
between criminals and politicians, bureaucrats, media persons and some
members of the judiciary was tabled in the Parliament and the report that
was tabled was genuine, the Public Interest Litigation by Member of
Parliament along with an NGO to make public the report along with its
annexures, memorials and written evidence was, according to the
Supreme Court, against the Public Interest. In Dinesh Tribedy Vs. Union of
lndia79 , the Supreme Court, however directed that till an independent body
as suggested in the report is constituted a high level committee be
appointed by the President of India in consultation with the Prime Minister
and the Speaker of Lok Sabha.

77. R. R ajagopal V s. State of Tam il Nadu (1994)6 SCC 632


78. PUCL Vs. Union of India (1997)1 SCC 301
79. D inesh T ribe d y Vs. Union of India (1997)4 SCC 306
1S9

Right to Assemble Peacefully and without Arms :

In Kameswar Prasad Vs. State of Biharao, the court decided


that peaceful and orderly demonstration is a right guaranteed by Article
19(1)(b), but not violent and disorderly demonstration. In Babutal Parate
Vs. State of Maharastra8i, the court opined that the right of citizens to take
out processions or to hold public meetings flows from this right

Right to Form Association or Unions :

The right to form labour unions is a Fundamental RightB2 but


this right does not extend to the right to effect collective bargaining or to
strike83-

Right to Move Freely throughout India :

In Maneka Gandhi Vs. Union of lndia04l the Supreme Court


held that right to move freely within the territory of India does not extend
to the right to go abroad. Such right is not guaranteed under Article
19(1)(d) of the Constitution. Right under this clause is not available to the
foreigners.

Right to practice any profession and to carry out any occupation,


trade or business :

Article 19(1 )(g) guarantees to all citizens the right to practice


any profession or to carry on any occupation, trade or business subject to
reasonable restrictions by the state under Clause (6) of Article 1685

80. K am esw ar P rasad Vs. S tate o f B ihar A IR 1962 SC 1166


81. B abulal P arate Vs. S tate of M aharastra AIR 1961 SC 884
82. Raja K ulkarni Vs. State of Bom bay AIR 1954 SC 73 ■
83. All India Bank E m ployers' A sso cia tio n Vs. N ational Industrial T ribunal AIR 1962 SC 1 7 ■
84. M aneka G andhi Vs. Union o f India AIR 1978 SC 597
85. S aglr Ahm ed V s. State of UP AIR 1954 SC 728
u .o

Protection in respect of Conviction of Offences :

Article 20 of the Constitution of India states as follows :

20. Protection in respect of conviction of offences

1. No person shall be convicted of any offence except for


violation of a law in force at the time of the commission of the act charged
as an offence, not be subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of the commission of
the offence.

2. No person shall be prosecuted and punished for the same


offence more than once.

3. No person accused of any offence shall be compelled to be a


witness against himself.

Protection of Life and Personal Liberty :

The Fundamental Right to personal liberty in India has a long


history from British Raj to Swaraj. After independence, Fundamenfal
Rights were incorporated in the Constitution of India and the right to
personal liberty is confined to Article 21 of the Indian Constitution.

The legislatures in India have not paid attention for the growth
of right to personal liberty. It is the Indian judiciary which contributed to a
great extent for the expansion of personal liberty. For the concept of the
personal liberty incorporated in the Indian Constitution, a study of personal
liberty in England and America is very essential.
16’

Personal Liberty in England :

The earliest declaration of personal liberty is found in the


proclam ation of the Magna Carta which is "No freeman shall be taken
im prisoned, disseized, outlawed, banished, or in any way destroyed no
will we proceed against or prosecute him, except by the lawful judgemen
of his peers and by the law of the land (Clause 39, Magna Carta AD 121 5)

The demand of freedom from im prisonm ent and detention was


reiterated in the petition of Rights, 1628. From this principle, the rule o*
law in England was established. Again, the Bill of Rights, 1689, declarec
the right to petition the King. It says, "That it is the right of the subjects tc
petition the King and all com m itm ents and prosecution for such petitioning
are ille g a l'W

Blackstone defines personal liberty as "The power of


locom otion, of changing situation or removing one's person to
w hatsoever place one's own inclination may direct, w ith o u t
im prisonm ent or restraint, u n less by due course of law" 87.

Dicey defines personal liberty as follows :

"The right to personal liberty as understood in England


m eans in sub stance a person's right not to be subjected to
im prisonm ent, arrest or other physical coercion in any manner th a t
does not admit of legal ju stific a tio n '^

The concept of personal liberty in England means freedom


from unlawful arrest, detention or any other physical coercion by the
executive.

86. Basu, D.D. : Select C onstitutions of the w orld , 3ra Ed. (1990). 11
87. Blackstone : Com m entaries on the laws of E ngland, 16lh Edition, 1825, Vol I, 134
88. Dicey, A.V. : Supra, 207-208
Personal Liberty In U.S.A. :

In the Fifth Amendment of 1791, the Constitution of United


States provides the liberty clause as follows : ":No person shall be ...
deprived of his life, liberty or property, without due process of law".

From this it is clear that the Congress is not free to make any
process without a "due process of law". Moreover the courts cannot affect
the life and liberty of a person without complying with the procedural due
process. The expression "due process” has been mentioned nowhere in
the Constitution. It denotes proper procedure, and it was the meaning
primarily intended by the men who drafted the "Bill of Rights"89 .

Universal Declaration of Human Rights 1948 :

The object of the Human Rights Declaration, 1948 was to lay


down universal standard of such rights and expected to be followed by all
States by incorporating in their constitutions.

Personal Liberty in India :

The literature of ancient India reveals that in ancient India


liberty of one's person was respected under the negative right and positive
duty under the concept of Dharma.

In modern time, the Nehru Report, 1928 gave a systematic


approach to the Fundamental Right to the liberty. The Government of India
Act, 1935, did not contain any declaration of fundamental liberties The
flow of the Constitutions of United States, Eire, Japan gave the present
shape of personal liberty clause in India. The discussion in the Constituent

89. Schw artz B ernard : C onstitutional L a w , Second Edition, 1979, 203


163

Assembly on the right to personal liberty took almost one year wherein
nearly twenty amendments were moved. There were members from
minorities, capitalists, socialists, experts in constitutional law and social
sciences.

The Fundamental Right Sub-Committee considered three


notes given by three members of the Constituent Assembly. K.T. Shah's
note in clause 52 provided : No one should be deprived of life, limb or
property except under due process of law. K.M. Munshi in his draft
provided : No person shall be deprived of life, limb or property except
under due process of law. K.M. Munshi in his draft provided : No person
shall be deprived of his life, liberty or property. Again Dr. Ambedkar in his
draft included : The state shall not deprive any person of life, liberty or
property without the due process of law.

The sub-committee on the Fundamental Rights included two


clauses - 11 and 29 in its draft report and they are :
11. No person shall be deprived of his life, liberty or property
without due process of law.
29. No person shall be subjected to prolonged detention
preceding trial, to excessive bail or unreasonable refusal thereof or to
inhuman cruel punishment.

Sir B.N. Rau pointed out that there would arise difficulties in
defining the words "due process". So, the sub-committee recommended a
moderate view of except according to the procedure established by law
and this expression was borrowed from Article 31 of the Japanese
Constitution.

The Clause was replaced in Article 15 of the Draft


Constitution as follows : No person shall be deprived of his life and
personal liberty except according to procedure established by law nor
shall any person be denied equality before the law or equal protection of
the law within the territory of India.

After a long discussion in the Constituent Assembly about


Article 15, Dr. B.R. Ambedkar was asked to reply on his article His
expression on the Article 15 was as follows : "It is very difficult to come to
any definite conclusion. There are dangers of both sides. For myself I can
not altogether omit the possibility of a legislature packed by party men
making laws which may abrogate or violate what we regard as certain
fundamental principles affecting the life and liberty of an individual. At the
same time, I do not see how five or six gentlemen sitting in the Federal or
Supreme Court examining laws made by the legislature and by dint of their
own individual conscience or their bias or their prejudice be trusted to
determine which law is good and which law is bad. It is rather a case
where a man has to sail between Charybdis and Scylla and I therefore
would not say anything’W Dr. Ambedkar left the matter to be decided by
the House by vote. The Article was passed by the Drafting Committee and
was adopted by the constituent assembly and formed part of the
Constitution of India. The equality provision was separated from Article 15
and it was renumbered as Article 21. The Article 21 now is as follows No
person shall be deprived of his life or personal liberty except according to
procedure established by law.

Immediately after the commencement of the Constitution, the


Supreme Court interpreted the concept of personal liberty in Gopalan Vs
State of Madras case9i which is considered as the first case on
Fundamental Right. The judges of this case tried to give a concept of
personal liberty by different angles of British and American models Under
the "due process" clause of the American Constitution (5th and M lh
Amendment), the court has assumed the power of declaring
unconstitutional any law which deprives a person of his liberty. In England
the courts have no power to invalidate a law made by Parliament in

90. CAD, Vol. VII (1948) 1000-1001


91. Gopalan Vs. State of Madras, AIR 1950 SC 27
16b

England, personal liberty is a liberty confined and controlled by law In


Gopalan Vs. State of Madras, the majority view was represented in the
opinion of Kania, C.J. and Patanjali Sastri, M.C. Mahajan, B.K. Mukherjia
and S.R. Das, J.J. In that case the majority of the Supreme Court
propounded the view that by adopting the expression "procedure
established by law", Article 21 of our Constitution had embodied the
English concept of personal liberty in preference to that of American "due
process". The minority view in that case was that the result of the
interpretation of "procedure established by law" was to throw "the most
important Fundamental Right to life and personal liberty at the mercy of
legislative majorities'^. The minority view in Gopalan's case has come to
triumph in Maneka Gandhi Vs. Union of lndia93.

In the landmark judgement of this case the government had


confiscate the passport of the petitioner without giving any reason for its
decision. In this case Justice Bhagawati along with six justices held that
the right to travel abroad was included into the concept of personal liberty

In this case the Supreme Court held that the expression


“personal liberty" in Article 21 is of the widest amplitude and it covers a
variety of rights of which some have been included in Article 19 and given
additional protection. So, there may be some overlapping between Article
19 and 21. Justice Bhagawati expressed his view in the expanded
meaning to the right to personal liberty as follows : "The attempt of the
court should be to expand the reach and ambit of the Fundamental
Rights rather than attenuate their meaning and content by a process
of judicial construction’^ .

Chief Justice Beg said that Article 21 comprised Blackstonian


dual concept of "Personal security" and "Personal liberty". The Supreme
Court has in many significant judgements expanded the right to life and
personal liberty to include, not just a right of animal existence but right to

92. Gopalan Vs. State of Madras, AIR 1950 SC 27


93. Maneka Gandhi Vs. Union of India AIR 1978, SC 597
94. AIR 1978, SC 622
166

living with dignity which in turn includes right to reasonable means of


living, shelter, education, health etc. Thus the Supreme Court seems to be
inclined to the view that the right to life and personal liberty encompasses
almost all rights of civilised existence. A few relevant judgements may be
cited as follows.

Right to Live with Human Dignity :

The Supreme Court in the Maneka Gandhi's case held that


the "right to live" is not merely confined to physical existence but it
includes within its ambit the right to live with human dignity.

According to the Supreme Court there is close nexus between


the life and means of livelihood. In Olga Tellies Vs. Bombay Municipal
Corporationgs a Constitution Bench of five judges has held that the
meaning of the right to life conferred by Article 21 is wide and it means
something more than survival. Again in Ashok (Dr) Vs. Union of India ,t it
became clear that Right to life enshrined in Article 21 means the right
to have something more than survival and not mere existence or
animal existence. It includes all those aspects of life which go to
make man's life meaningful, complete and worth living.

Basic Human Rights :

Rights guaranteed under Article 21 are in the nature of basic


human rights. This article can be invoked not only by a citizen but also by
a non-citizen. Right to life 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 and facilities for reading, writing

95. Olga Tellies Vs. Bombay Municipal Corporation (1985)3 SCC 545
96. AIR 1997 SC 2298; (1997) 5 SCC 10
97. Francis Coralle Vs. Union Territory of Delhi, AIR 1978 SC 587
t fi7

and expressing oneself in diverse forms, freely moving about and mixing
and communicating with fellow human beings”g7.

Right to Education :

In Mohini Jain’s case98, the court held the right to get


education at all levels is included in right to life and personal liberty
Justice Kuldip Singh opines that the state is under an obligation to make
endeavour to provide educational facilities. Every children upto the age of
14 years has Fundamental Right to free education and the state is obliged
to follow the directives of Article 45. Article 21 is to be construed in the
light of Articles 41, 45 and 46 of the Constitution.

Right to Work :

* Though right to work is not a Fundamental Right, but after


employment to a post or office, be it under the state or its instrumentality,
juristic person or private entrepreneur, an employer must be dealt with as
per public element and in public interest assuring him equality under
Article 14 and all concomitant rights emanating therefrom99.

Right to Clean Environment :

Right to life guaranteed under Article 21 included the right to


clean environment. The right to live in peace, sleep in peace and right to
repose and health are all parts of right to live. The right of “enjoyment of
pollution free water and air” for full employment of life was included nto
“right to live”ioo-

98. Mohini Jain Vs. State of Karnataka AIR 1992 SC 1858


99. Air India Statutory Corporation Vs. United Labour Union AIR 1997 SC 645
100. T. Damodhar Rao Vs. municipal Corporation, Hyderabad, AIR 1987 AP 171; Subhas Kumar
Vs. State of Bihar AIR 1991 SC 420
168

Government as well as Municipality are obliged to m aintain


and protect environment - man made as well as nature madeioi Again in
Ashok (Dr.) Vs. Union of Indiana, the court held that the use of pesticides
and chemicals causing health hazards affects Article 21 of the
Constitution.

The Supreme Court has extended the doctrine of public trust


principle by holding public trust doctrine as part of Indian law and it
extends to natural resources such as rivers, forests, seashores, air etc for
the protection of ecology. The Supreme Court has issued various
directions for pollution control such as Vehicular Control of Delhi103, Air
Pollution of Delhiio4, protection of Tajmahal from pollution by organisers of
musical concerts 105, for protection of green belt106, Calcutta tanneries
discharging untreated noxious and poisonous affluent in Ganga river
polluting land and riverio7, noxious / hazardous industries operating in
Delhiio9-

Right to Privacy :

The right to privacy was brought at par with the American


jurisprudence by the court.

The privacy right was upheld by the majority judgem ent in


Khark Singh case 109. In this case the court struck down Regulation 236(b)
of the U.P. Police Regulations as violative of Article 2 1 . The majority court
along with justice Ayyangar, Chief Justice Imam, Justice Sinha and Justice
Mudholkar considered the domiciliary visit at night violative of right to
‘sleep’ and ‘comfort’ included in the personal liberty. “But as it did not
concede the right of privacy, an attempt to ascertain the movement of an
101. Virinder Gaur Vs. State of Haryana (1995)2 SCC 577
102. AIR 1997 SC 2298
103. M.C. Mehta Vs. Union of India AIR 1998 SC 2463
104. M.C. Mehta Vs. Union of India AIR (1998)5 SCC 720
105. M.C. Mehta Vs. Union of India AIR (1998)9 SCC 93
106. M.C. Mehta Vs. Union of India AIR (1997)3 SCC 715
107. M.C. Mehta Vs. Union of India AIR (1997)2 SCC 411
108. M.C. Mehta Vs. Union of India AIR 1996 SC 2231; (1996)4 SCC 750
109. Kharak Singh Vs. State of UP AIR 1963 SC 1295
169

individual" was considered validno. Justice Subba Rao in his opinion tried
to support the minority opinion in the Gopalan Case. In the opinion of
Justice Subba Rao it was true that our Constitution did not expressly
declare a right to privacy as a Fundamental Right, but the said right was
an essential ingredient of personal liberty (Id at 1306). He defined the right
to personal liberty as a right of an individual to be free from restrictions or
encroachment on his person, whether these restriction were directly
imposed or "indirectly brought about by calculated measures” (Id at 1306)

It was in Govind's casem where the court established the


right to privacy as a Fundamental Right implicit into Article 21. The action
of the police in entering the name of the petitioner in the surveillance
register was challenged in Malak Singh's casein. The court held that
intensive police surveillance encroaching on the privacy of a citizen so as
to infringe his Fundamental Right under Article 21 was impermissible

The right to privacy case again came up before the court in


R.M. Malkani Vs. State of Maharastran3. In this case the privacy of
conversation was claimed under Article 21. The court protected the
privacy of conversation of innocent people. The court conceded that it
would not protect the telephonic conversation of quality citizen and it
would be invalid by a valid law.

M.N. Mardikar’s casei,4 came up before the court in 1991


where the petitioner, a prostitute tried to protect herself from sexual
assault. In this case, a police inspector was dismissed from service on his
proved involvement in the act of rape. The High Court quashed his
dismissal on the ground that the woman, whom he was alleged to have
raped was a woman of easy virtue.

The Supreme Court on appeal held that a woman even of so


called easy virtue was initiated to protect herself against unwilling sexual

110 Kharak Singh Vs. State of UP AIR 1963 SC 1295


111. Govlnd Vs. S tate o f MP AIR 1975 SC 1378
112. Malak Singh Vs. State o f Punjab A IR 1981 SC 760 .
113. R.M. M alkani V s. State o f M aharastra AIR 1973 SC 157
114. State o f M aharastra Vs M.N. M ardikar AIR 1991 SC 207
170

assault. In this case, Justice Ahmadi observed - “Even a woman of easy


virtue is entitled to privacy and no one can invade her privacy as and
when he likes. So also it is not open to any and every person to
violate her person as and when he wishes”.

In Neera Mathur’s casen5, the right to privacy was extended


to protect the modesty and self respect of woman. Thus the privacy of
personal problem of women from disclosure was protected under personal
liberty, under Article 21.

Thus, in these cases, the Indian courts have allowed right to


privacy to operate.

Right of Working Women :

In Vishaka Vs. State of Rajasthan116, the court held that the


rights of working women including right to work with dignity and right
against sexual harassment in working place.

Right to Health and Medical Care :

In Consumer Educational and Research Centre Vs. Union of


India, 17 the Supreme Court has held that the right to health and medical
care is a Fundamental Right under Article 21 of the Constitution as it is
essential for making the life of the workman meaningful and purposeful
with dignity of a person. “Right to life" in Article 21 includes protection of
the health and strength of the workmen. The expression “life” in Article 21
does not connote mere animal existence. It has a much wider meaning
which includes the right to livelihood, a better standard of life, hygienic
conditions in the workplace and leisure.
115. Neera Mathur Vs. Life Insurance Corporation of India, AIR 1992 SC 392
116. Vishaka Vs. State of Rajasthan AIR 1997 SC 3011 ,
117. AIR 1995 SC 922
Right to Speedy and Open Trial :

In Hussainara Khatoon's (VII) caseus, the Supreme Court


held that the right to speedy and open trial are part of the Fundamental
Rights guaranteed under the Constitution.

When the criminal proceedings are pending in courts for long


the Supreme Court has issued necessary directions for release of some
accused on bail and for discharge of others, ,9.

Right to Shelter :

In Shiv Sagar Tiwari Vs. Union of India,20, the Supreme Court


held that right to shelter falls within the ambit of Article 21 of the
Constitution.

Thus, it is clear that our Constitution guaranteed the right to


life and personal liberty for the development of human personality in its full
vigour. The expanded interpretation of Article 21 has included many new
rights such as right to livelihood, right to shelter, right to education, right to
work, right to privacy etc.

Protection against Arrests and Detention :

Article 22 of the Constitution of India provides these


procedural requirements which must be adopted and included in any
procedure enactment by the Legislature.

The two separate matters dealt by Article 22 are - (1) persons


arrested under the ordinary law of crime, (2) persons detained under the

118. H ussainara Khatoon Vs. Home S e cre ta ry (1995)5 SCC 326; 1995 SCC (Cr) 913
119. Com m on Cause V s. Union o f India AIR 1996 SC 1619
120. Shiv S agar Tlw arl Vs. Union of India AIR 1997 SC 2725; (1997)1 SCC 44
law of “Preventive Detention".

The four rights guaranteed by clauses (I) and (li) of Article 22


on a person arrested for any offence under an ordinary law are as follows

(1) The first right is to be informed “as soon as may be” of the ground of
arrest.

The arrested person has the right to know the grounds of his arrest
and prepare for his defence. In Joginder Kumar Vs. State of U.P.1 2 1 , the
Supreme Court has laid down the following guidelines to be followed in
making an arrest of a person.
(a) An arrested person who is being held in custody is entitled, if he so
requests, to have a friend, relative or a person who is known to him
or one who is likely to take an interest in his welfare be told as far
as is practicable that he has been arrested and where he is been
detained.
(b) The police officer shall inform the arrested person of this right when
he is brought to the police station.
(c) An entry shall be required to be made in the police diary as to who
was informed of the arrest.
Thus Article 21 and 22 guarantee protection to a person from illegal
arrest.

(2) The second right guaranteed by clauses (I) and (II) of Article 22 is
the right to be defended by a lawyer of his choice. In Hussainara
Khatoon’s casei22, the Supreme Court has held that it is the constitutional
right of every accused person who is unable to engage a lawyer and
secure legal service on account of reasons such as poverty, indigence or
incommunicado situation, to have free legal services provided to him by
the state and the state is under a constitutional duty to provide a lawyer to

121. Joginder Kumar Vs. State of UP (1994)4 SCC 260


122. Hussainara Khatoon Vs. Home Secretary, Bihar AIR 1979 SC 1377
such a person if the needs of justice so require. If free legal services are
not provided the trial itself may be vitiated as contravening Article 21

The third right guaranteed by clauses (1) and (2) of Article 22


on a person is to be produced before a Magistrate within 24 hours of his
arrest. A case relating to the violation of Articles 21 and 22 came up in the
Gauhati High Court. People’s Union for Human Rights represented by
Ramesh Jain and others Vs. Union of India and others123 filed a petition
under Article 226 of the Constitution challenging the promulgation of
President’s Rule in Assam for the fourth time, Section 4 and 5 of the
Armed Forces (Special Power) Act 1958 and Section 3 of the Assam
Disturbed Areas Act 1955 were described as violative. Another petition
was filed by Nibaran Bora, a local journalist of an Assamese weekly
“Boodhbar” which challenged the vires of the 1958 Act and described
certain provisions of the enactment as violative. The order dated
20/3/91 124 by the Chief Justice A. Raghhubir and Justice S.N. Phukan
held that the notification of the Central Rule should be made applicable
only to the specified areas listed by the court and that the notification
enforcing both the Acts were to be reviewed after every two months
Moreover, any person arrested by the army should be produced before the
nearest Magistrate within 24 hours and only those who have committed
grave offences be arrested.

The total period of detention allowed in police custody is 15


days in the whole. After the expiry of the first period of 15 days, further
remand can only be in judicial custodyi25.

Preventive Detention Law :

Clauses (4) to (7) of Article 22 provide the procedure to be


followed if a person is arrested under the law of “Preventive Detention

123. Ramesh Jain and others Vs. Union of India and others, CR Nos, 2314, 2238, 2415 of 199u
and 11 of 1991 Guwahatl
124. Order dt. 20/3/91, as cited In Ahu|a, Sanglta in People, Law and justice, 158
125. CBI Vs. Anupan J. Kulkarni, (1992)3 SCC 141
Clause (5) of Article 22 makes some amendments for deprivation of
personal liberty. Under that clause the detenue must be informed as soon
as possible under the detention, the ground on which detention order has
been made and also must be given the earliest opportunity of making
representation against the order of detention. In the case of State of M P
Vs. Shobharam^e, the Supreme Court held that before a person can be
detained under Preventive Detention Law every bit of procedure must be
strictly followed. The detention order has to be specific and definite The
order of detention under a Preventive Detention Law is vitiated when the
grounds of order of detention are vague and indefinite127.

Preventive Detention is a necessary evil. The constitutional


mandate of clause (5) is that the detaining authority must afford a
reasonable opportunity to the detenue to make such representation Such
representation has to be dealt with as early as possible. In Raj Kishore
Prasad Vs. State128, the Supreme Court found inordinate delay of the
detaining authority in considering the representation and it has set aside
the order of detention.

There are some Preventive Detention Acts. The first


Preventive Detention Act was passed on 26th January 1950. It lapsed on
December 31, 1969. Maintenance of Internal Security Act, 1971 (MISA)
was the second Preventive Detention Act. This Act continued in operation
until 1977. It was repealed by the Janata Government in 1978.

Mr. Charan Singh of Janata Government enacted the


prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act.

In 1980 the National Security Act was enacted for Preventive


Detention of persons responsible for communal and caste riots and other
activities prejudicial to the country’s security. The constitutional validity of

126. State o f MP Vs. S hobharam A IR 1966 SC 1910


127. M otllal Jain Vs. State of B ihar A IR 1968 SC 1509
128. Raj K ishor Prasad Vs. State AIR 1983 SC 320
N.S.A, was challenged in the Supreme Court. The Supreme Court upheld
the constitutional validity of N.S.A. in A.K. Roy Vs. Union of In d ia n

Another Act known as Terrorist and Disruptive Activities Act,


1987 (TADA) was passed in 1987 with a view to deal with specific
situations of terrorism in Punjab and Kashmir and parts of the North East

Conservation of Foreign Exchange Prevention of Smuggling


Activities Act, 1974 (COFEPOSA) and Smugglers and Foreign Exchange
Manipulators (Forfeiture of Property) Act, 1976 were enacted by
Parliament to check activities of smugglers and foreign exchange
manipulators. In Navungal Palhumma Vs. Union of lndiai3 o, when a person
detained under the COFEPOSA Act was not informed of his right to make
representation at the time when he is served with the grounds; there is
denial of opportunity to make a representation against the order of
detention which is vitiated.

Right against Exploitation :

The right against exploitation guaranteed under Article 23 and


24 aims to provide protection against exploitation through traffic in human
beings, forced labour, employment of children in factories. This was done
so that the state or any institution or individuals could not compel anyone
to work against his will or to misuse him in anyway. Article 24 prohibits the
employment of children below the age of 14 in factories and mines since it
goes against the basic norm of human rights.

Traffic in human beings includes traffic in human beings and


children. In Gaurab Jain Vs. Union of In d ia n , the Supreme Court held
that the eradication of prostitution and rescue and rehabilitation of the

129. A.K. Roy V s. U nion of India AIR 1982 SC 710


130. N avungal Palhum m a Vs. Union of India (1998)7 SCC 287; 1998 SCC (Cr 1584), AIR 1 ( > 9 ‘ I

SC 142
131. G aurab Jain Vs. Union o f India AIR 1997 SC 3021; (1997)8 SCC 114
prostitutes is the obligation of the state. The prostitutes have the right to
enter into social mainstream.

In Bandhua Mukti Morcha Vs. Union of India,32, when the


public interest litigation alleging employment of children aged below 14
years in carpet industry in the State of Madhya Pradesh was made, the
Supreme Court has issued appropriate directions as to how gradually the
child labour has to be abolished.

The Supreme Court in M.C. Mehta Vs. State of Tamil Nadu,-<3 .


has considered the constitutional perspectives of the abolition of child
labour and children below 14 years of age in the notorious Sivakasi Match
Industry. Necessary directions have been issued and the court has also
expressed the need for their speedy implementation.

In S. Basudevan Vs. S.D. Mittali34, the court held that when


the Government or the persons in power exert service without giving
remuneration for the same, it is called beggar. The Supreme Court has
enlarged the scope of the expression “forced labour”. In Sanjit Roy Vs
State of Rajasthani3 5 , the workmen are held to be subjected to forced
labour when they have been employed by PWD Rajasthan in flood
affected areas at wages less than minimum wage. “Bonded labour" comes
within the scope of “forced labour”. In Neeraya Choudhury Vs State of
M.P.,3 6 , the Supreme Court held that the Bonded Labour System
(Abolition) Act, 1978 has been enacted pursuant to the Directive Principles
of State Policy and any failure on the part of the State Government m
implementing the provisions of the Act would be clear violation of not only
of Article 23 but also Article 21.

Article 24 of the Constitution is related to Article 39 and 45 of


the Constitution and S. 67 of the Factories Act 1948. There are numbers
of labour laws regulating the employment of child labour in different
132. B andhua M ukti M orcha Vs. Union of India AIR 1997 SC 2218
133. M.C. M ehta V s. State o f Tam il Nadu (1996)6 SCC 756
134. AIR 1962 Bom bay 53
135. S anjit Ray V s. State o f R ajasthan AIR 1983 SC 326; P eoples' Union fo r D em ocratic R i g h t s
Vs. Union o f India A IR 1982 SC 1473
136. N eeraya C houdhury Vs. State of MP AIR 1984 SC 1099
77

industries and occupation and the latest in the legislative field is the Child
Labour (Prohibition and Regulation) Act 1986. The object of this Act is to
translate into action the Fundamental Rights enshrined in Article 24 by
prohibiting engagement of children in certain employment and to regulate
conditions of work of children in certain other employments.

In Unni Krishnan J.P. Vs. State of A. P . 1 3 7 , the Supreme Court


held that children below 14 years cannot be employed in any factory or
mine or other hazardous work and has to be given education as mandated
by Article 45.

In M.C. Mehta (Child Labour matter) Vs. State of Tamil


Nadui38 , the Supreme Court has mandated that the employer must comply
with the provisions of Child Labour (Prohibition and Regulation) Act and
would be liable to pay compensation of Rs. 20,000 for every child
employed in contravention of those provisions. Several other directions
were issued to the State Government so that the constitutional goal of
Article 24 can be achieved.

In another case it was stated in the petition that the carpet


manufacturers in Mirzapur were employing children in the factories which
is violation of Article 24 of the Constitution. After reaffirmation, the
Supreme Court expressed deep regret about the plight of the children and
directed the Government of Uttar Pradesh to take effective steps and also
to finalise a scheme for their rehabilitation.

Right to Freedom of Religion :

Right to freedom of religion is prescribed under Articles 25


26, 27 and 28 of the Constitution of India.

137. Unni Krishnan Vs. State of AP (1993)1 SCC 645


138. M.C. Mehta Vs. State of Tamil Nadu (1996)6 SCC 756, 1997 SCC (L&S) 49
1 / ft

Article 25 lays down that all persons are entitled equally to


freedom of conscience and the rights to freely profess, practice and
propagate religion. The state would be free to regulate by law any secular
activity associated with religious practice and to provide for social welfare
The Supreme Court held that the right to practice religions does not
include any right to forced conversion of any individual, as it will disturb
the public order. In the famous case of Jagdiswaranand Vs. Police
Commissioneri3 9 , the right to perform tandav dance with weapon and
human skulls in a public procession was banned and certain restrictions
were imposed in the interest of “public order and morality”. Similarly
slaughtering of cows on Bakrid was held not to be an essential practice of
Islam and thus it was prohibited by law in the interest of public order in
Md. Hanif Quereshi Vs. State of Biharuo-

Article 26 is nothing but rather a continuation of Article 25


which emphasises on religious denominations to maintain tolerance
among all religious groups. Like Article 25, Article 26 is also subject to
public order, morality and health. Another important point is that both
Articles 25 and 26 are free to carry on their secular and religious activities
without interference from each other.

Article 27 says that no person shall be compelled to pay taxes


or expenses on promotion or maintenance of any particular religion This
is in consonance with the concept of secularism, which means equal
respect for all religions.

Article 28 strictly restricts any kind of instructions or religious


preaching in any educational institutions wholly maintained by state funds

There are various cases relating to the violation of right to


religion. In Shri Jagannath Temple, Puri Management Committee Vs
Chintamani Khuntia^i, the court held that although the state cannot

139. Jagdiswaranand Vs. Police Commissioner AIR 1984 SC 51


140. Mohd. Hanif Quareshl Vs. Stale of Bihar AIR 1958 pC 731
141. Shri Jaganath Temple, Puri Management Committee Vs. Chintamani Khuntia (1997)8 sc.c
422
interfere with the freedom of person to profess, practice and propagate his
religion the state, can, however, control the secular matters with all
activities, in or connected with the temple. The management of the temple
or maintenance of discipline and order inside the temple can be controlled
by the state. If any law is passed for taking over management of the
temple, it cannot be struck down as violative of Article 25 or Article 26 of
the Constitution.

In another case of Moulana Mufti Syed Md. Murur Rehman


Baskati Vs. State of W.B.U 2, the question of using microphones and
loudspeakers arose. When the authorities put on restriction on the use of
microphones and loudspeakers at the time of Azan at various mosques in
Calcutta, the petitioners being the Imams of the mosques filed a writ
petition challenging the same as violative of Article 25 of the Constitution
The Division Bench of the Calcutta High Court has held that such
restriction on use of microphones and loudspeakers during Azan is not
violative of Article 25 of the Constitution.

In the petition filed by Romesh S/o Chotalal Dalai Vs. Union of


lndia143 and others under Article 32 of the Constitution, the petitioner
asked the court to prevent the screening of tele-serial 'Tamas' by
Doordarshan, claiming that it depicts communal violence. It invoked Article
21 and 28 of the Constitution and the Cinematographic Act, 1952 An
appeal was also filed against the order of the Bombay High Court :n a
petition on the same issue.

After going through the facts, the court found that the events
depicted in the serial although may be communal, but may likely to
prevent such acts in the future by extremists and fundamentalists The
court finally held that there was no violation of Article 21 and 25 of the
Constitution by Doordarshan and the petition and the appeal was
dismissed.

142. M oulana M ufti Syed Md. M urur Rehman B askati Vs. State of WB AIR 1999 Cal 15 (DB)
143. Romesh S/o C hotalal D alai Vs. Union of India and others W P(C) No. 107 of 1988 with Si P
No. 3019 o f 1988
180

In this modern period, the Ayodhya dispute has virtually


paralysed the very concept of secularism enshrined in the Preamble to the
Constitution of India. There has been an age long controversy regarding
the site of the Babri Masjid in Ayodhya. But it took a serious turn, which
eventually led to the demolition of the Masjid on 6th December, 1992
There have been disputes, conflicts and debates between the two religious
groups for the ownership of the land. However, gradually it took the shape
of a major political and communal issue involving the entire nation After
the announcement of Viswa Hindu Parisad about the carrying of bricks to
Ayodhya to build a temple, the State of Uttar Pradesh petitioned the
Allahabad High Court. By an order, dated 14.8.89, the High Court
prevented anyone from interfering in any manner and from disturbing the
status quo. A further petition was filed by V.M. Tarkunde as puja was
allowed to take place. However, by June, 1992, Viswa Hindu Parisad
made up their final stand to demolish the mosque and build a temple It
was done so on 6.12.92 and the Supreme Court initiated suo-moto
contempt proceeding against those who vowed to protect the structures of
the site.

But an advocate and three others filed a petition under Article


32 of the Constitution indicating that there is a tendency that communal
riots may flow up in certain areas of some states because of Shila Nyash
Procession. It was also said that 9th November 1989 was fixed for laying
the foundation stone of Ram Jonam Bhoomi Mandir by the VHP activist
near the Babri Masjid. The court issued notice that the procession should
be stopped and not to let anyone even vehicles to go to Ayodhya carrying
bricks.

After the demolition of the mosque in December 1992 a


petition under Article 226 of the Constitution was filed in the High Court of
Mumbai by Advocate Ajit Narayan Jakhads. It challenged the decision of
the Government of India to rebuild the Babri Masjid at Ayodhya and stated
1H 1

that such an act will lead to the violation of Articles 14, 15, 26, 27 and 142
of the Constitution. The petition also stated that the decision of the centre
was against the secular character of India. An appeal was made to
constitute a trust comprising people from different religious groups to find
an amicable solution to the controversy.

Cultural and Educational Rights :

The cultural and educational rights are guaranteed under


Article 29 and 30 of the Constitution of India.

Article 29 guarantees to every section of the society, residing


anywhere in India having distinct language and culture, the right to
preserve the same. No citizen can be denied admission to any educational
institution maintained or aided by the state on grounds of religion, race
caste or language.

In Hindi Hastakshari Samiti Vs. Union of In d ia n , the


Supreme Court held that it could not, however, be said that in not holding
Entrance Examination in any particular language, be it in Hindi or regional
language, there was denial of admission on the ground of language so as
to violate Article 29(2) of the Constitution.

In E.M. Students Parents' Association Vs. State of


Karnatakaus, the Supreme Court held that the compulsion of study of
state regional language is not violate of Articles 29 and 30 of the
Constitution. Such compulsion can not be said to be throwing undue
burden on the students. As it is a policy matter of the state government it
cannot be interfered with by the court.

144. Hastakshari Samltl Vs. Union ot India AIR 1990 SC 851


145. E.M. Students Parents' Association Vs. State of Karnataka AIR 1994 SC 1702
Article 30(1) says that all minorities shall have the right to
establish and administer educational institutions of their choice. If property
of any institution is acquired, then proper and adequate compensation
should be paid so that the right given by the Article remains meaningful
Moreover, in the matter of giving aids, the state shall not discriminate
against minority managed institutions.
The Supreme Court held that a minority group can effectively
conserve its language etc. through educational institutions of its choice
and if such institution receives state aid then subject to limitation imposed
by Cl(2) of Article 29i46, may impart instruction to the children of their
community in their own language147. Regulation of admission to college on
the basis of religion, race or caste is bad148.
Whether the citizens belong to majority or minority group
Cl (2) of Article 29 offer protection to alli4g. The right to administer cannot
include the right to maladminister. It is well-settled that the educational
institutions protected under Article 30 have no right to maladminister and
the state has the power to regulate the management and administration of
such institution in the interest of educational need and discipline of the
institution. But in Bihar State M.E. Board Vs. Managing Committee M.H A
College15o, this power of the state does not extend to completely take over
the management of such minority institution.
In D.A. College Vs S tates, the Supreme Court held that in
order to constitute linguistic minority community they must have a
separate script for those who speak it. Anglo-Indian Community152, Jams
and Sikhs in the Union Territory of Delhi, Arya Samaj, Church of South
53,

lndia154, are religious minority. Article 29 provides for general protection to


conserve their language, script and culture. This is an absolute right and
not subject to any reasonable restriction's.
146. In Re, The Kerela Education Bill AIR 1958 SC 956
147. State of Bombay Vs. Bombay Education Society AIR 1954 SC 561
148. State of Madras Vs. Srimathi Champakan Dorairajan AIR 1951 SC 226
149. State of Bombay Vs. Bombay Education Society AIR (1955)1 SCR 568
150. Bihar State ME Board Vs. Managing Committee MHA College AIR 1971 SC 1737
151. D.A. College Vs. State AIR 1971 SC 1737
152. State of Bombay Va. Bombay Education Society AIR 1954 SC 561
153. Arya Samaj Education Trust Vs. Director of Education AIR 1976 Del 207
154. K.O. Verkey Vs. State of Kerela AIR 1969 Ker 191
155. Jagdev Singh Vs. Pratap Singh AIR 1965 SC 183
183

It was declared on April 26, 1974 by a special Constitution


Bench of the Supreme Court that the provisions of the Gujrat University
Act, 1949 amended in 1972 governing the affiliation of minority colleges
regulating the appointment of the staff and provisions for arbitration of
disputes violated the Fundamental Rights of the minorities to administer
educational institutions of their choice. Justice Mathew, reacted to the
allegations made by re-affirming that the rights of the minorities are
protected. The ruling by the court followed two writ petitions filed by the
Ahmedabad Saint Xaviers' College Society Vs. State of Gujrat156. Later
the Bench however held that regulatory measures which are for the
achievement of goal of making the minority educational institutions
effective for imparting education could not be considered to impinge upon
the right guaranteed by Article 30(1) of the Constitution. The judgement
made relates to payment of pay scales, allowances, medical facilities
Pension, Provident fund and other benefits to the employees of recognised
schools and colleges which are privately run at rates not less than those
given to the employees of government institutions.

In D.A.V. College, Bhatinda Vs. State of Punjab157 the


Supreme Court made it clear that the minorities have a right to establish
and administer educational institutions of their choice and to choose the
medium of instruction also. If any authority or university prescribes the
medium of language to be used under compulsion or pressure, then it will
violate the Fundamental Right to conserve their script and administer their
institutions.

Right to Constitutional Remedies :

Besides making provisions for various types of Fundamental


Rights, the Constitution of India has also provided for an effective
machinery for the protection and enforcement of these rights. Even the

156. A hm edabad S aint X a v ie r’s C ollege S ociety Vs. State of G ujrat, AIR 1974 SC 1939
157. DAV C ollege B hatinda Vs. State of Punjab AIR 1971 SC 1731
right to protect the Fundamental Rights of the citizens has itself been
made a Fundamental Right which is named as Right to Constitutional
Remedies. Article 32 guarantees this right to move the Supreme Court by
appropriate proceedings for the enforcement of Fundamental Rights
contained in part III of the Constitution.

Thus, the Indian Constitution has made the judiciary the


guardian of the Fundamental Rights of the people. The Supreme Court
has been bestowed with the right to issue writs in the nature of Habeas
Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari etc.

The Writ of Habeas Corpus means, "you may have the body"
This writ is used to preserve personal liberty against arbitrary arrest and
detention made by the executive.

The word “mandamus" means "We Command". Mandamus is


a writ which may be issued by the Supreme Court to some subordinate
authority asking it to perform an act which falls within its jurisdiction. Thus
the court command a public body or an official to perform a public duty

The Writ of Prohibition is issued by the higher court to the


lower courts in order to restrain the lower courts for exercising powers
beyond their jurisdiction.

Certiorari means "to be informed of". It is issued by a superior


court to an inferior court requiring the latter to send the records of a
particular case pending before it to the superior court.

The term quo warranto means "by what authority". A Writ to


quo-warranto is to prevent a person from continuing in an office which he
occupies unjustly.
185

Thus Article 32 provides for the enforcement of Fundamental


Rights by the Supreme Court. The people have got the right to move the
Supreme Court in case of enforcement of the Fundamental Rights by the
State. Article 32 grants power to the Supreme Court and Article 226 grants
powers to the High Courts also to issue various Writs. After the
emergence of the public interest litigation any member of the public can
through a letter or through any PIL agencies or firms can approach the
court for the violation of Fundamental Rights. PIL petition can’also filed on
behalf of a person or a group of people who is unable to approach the
court for financial or other conditions.

In Bar Council of Maharashtra Vs. M.V. Dabholkanss Justice


Krishna Iyer, in para 53 of the judgement has indicated the emergence of
PIL. It is pointed out being traditionally used to the adversary system we
search for individual persons aggrieved but a new class of litigation being
public interest litigation, where a section or whole of the community is
involved, such as consumer's organisation or National Association for
Advancement of coloured people has emerged. A Bar Council was also
regarded as such an organisation when a lawyer is involved and as such it
is also a person aggrieved to file appeal against the decision of the
Disciplinary Committee of the State Bar Council.

When a Writ under Article 32 was filed by people's Union for


Democratic Rightsi59 in the Supreme Court to enforce labour laws to large
number of people engaged by the Union of India, Delhi Administration and
Delhi Development Authority or other during Asian Games held in Delhi in
1982 alleging that they were not enforcing the Labour Laws which were
beneficial to these workers the Supreme Court entertained the writ petition
and granted appropriate relief. The Supreme Court has observed that the
public interest litigation is brought before the court not for purpose of
enforcing the right of one individual against another as happens in
ordinary litigation but it is intended to promote and vindicate the public

158. Bar Council of Maharastra Vs. M.V. Dabholkar AIR 1975 SC 2092
159. Peoples' Union for Democratic Rights Vs, Union of India (1998)8 SCC 485
interest which demands that the violation of Constitutional or legal rights
of large number of people who are poor, ignorant or in a socially or
economically disadvantaged position should not go unnoticed and
unredressed. So, when the voluntary organisation has come forward to
vindicate the constitutional and legal rights of large number of poor and
ignorant people, the Supreme Court cannot refuse to entertain the petition
on the ground of traditional concept "person aggrieved".

Another petition was filed by the Free Legal Aid Committee


Hazaribagh16o, Bihar on behalf of a prisoner for the violation of Article 32
The prisoner was given life term imprisonment by defining him as mentally
unstable. Later it was found that he is a normal man, but no action was
taken to release him. The petition invoked Article 21 of the Constitution
and referred to section 302 of the IPC, 1860.

The Supreme Court held that the prisoner Sant Bir be


released and sent home with adequate money for journey. The State
Government was also directed to prepare a list of all the undertrials who
have been detained in spite of being fit for discharge. The court decided to
give adequate compensation to them.

The petition filed by Mathew Areeparmtil and other Vs. State


of Bihar and o th e rs ^, on behalf of the undertrial Adivasi prisoners The
reports submitted stated that large numbers of people were detained in
jails for petty offences for many years without trial.

Referring to Section 169 of the Cr Pc 1973, the court directed


the release of the inmates on personal bond. It was also stated that
Section 144 of the Cr Pc, 1973 should not be misused and the orders
should be passed strictly according to principles laid. The Adivasis were
warned not to take law in their own hands, which might create havoc
among the government officers. They were asked to approach the

160. Sant Bir Vs. State of Bihar, W.P. (Cr l)IV 1052 of 1982
161. Mathew Areeparmtil and others Vs, State of Bihar and others, W.P (Cr I) No 371 of 1983
187

concerned authority if any of their rights are violated so that they can get
relief from it.

The Free Legal Aid Committee, Jamshedpur filed a petition 16?


under Article 32 of the Constitution stating the deplorable conditions of the
patients in Mahatma Gandhi Memorial College, Hospital. The court
emphasised that the primary duty of the state under Article 47 is to raise
the level of nutrition, the standard of living of the people and improvement
of public health.

Expansion of the Jurisdiction of the Supreme Court under Article 32


in recent years :

The jurisdiction of the Supreme Court is confined to the


enforcement of the Fundamental Rights under Article 32. But in recent
cases, the' Supreme Court has expanded this jurisdiction to a great extent
and it assumes the initiation or supervision of administrative action which
traditionally belongs to the jurisdiction of the executive. The following
measures were taken by the Supreme Court for the expansion of its
jurisdiction.

(1) The Supreme Court has very much liberalised and expanded the list of
Fundamental Rights falling under Article 21 in the following ways

Through the judgement of Mohini Vs. State of Karnataka,63


the Supreme Court included the right to free compulsory primary
education.

In Subhas Vs. State of Bihar164 , the Supreme Court held that


right to pollution free environment is another right which should be
included under Article 21.
162. F re e L e g a l A id C o m m itte e V s. M a h a tm a G a n d h i M e m o ria l C o lle g e , H o s p ita l S a kch i,
J a m s h e d p u r, W P (C r I) No. 50 o f 1982
163. M o h ln l V s. S ta te o f K a rn a ta k a A IR 1992 SC 1858; (1 9 9 2 )3 S C C 6 6 6
164. S u b h a s V s. S ta te o f B ih a r A IR 1991 SC 420
1 88

Another right to protection of cultural heritage is included in


the right to life and personal liberty under Article 21 by the decision of the
Supreme Court held in Ram Saran Vs. Union of Indians-

Apart from this, in delivering the judgement of Vishal Vs


Union of In d ia n , the Supreme Court included in Article 21 the right of
every child to full development.

Moreover, the Supreme Court included in Article 21, the right


of resident at hilly areas to have access to roads which was decided in
State of Himachal Pradesh Vs. Umedi67 -

Again the Supreme Court expanded the right falling under


Article 21 by including the right to privacy which was decided in the case
of people's Union Vs. Union of Indiaies-

(2) The Supreme Court has involved the positive duties and obligation
under each of the Directive Principles, in part IV and read them into
Fundamental Rights treating the directions of the state policy and
the Fundamental Rights as "supplementary and complementary to
each other"i69.

(3) By using public interest litigation liberally, the Supreme Court not
only acts as restraint upon the executive but issues appropriate
directions and guidance which has now emerged as the new
concept of judicial activism.

(4) In order to enforce the Fundamental Rights, the Supreme Court


under Article 32 of the Constitution has jurisdiction not only to issue
writ in the nature of habeas corpus, mandamus, prohibition
certiorary and quo-warranto but has made liberal use of the orders

165. Ram Saran Vs. Union of India AIR 1989 SC 549


166. Vishal Vs. Union of India (1990)3 SCC 318
167. State of HP Vs. Umed AIR 1986 SC 847
168. People's Union Vs. Union of India (1991)1 SCC 301
169. Muralidhar Vs. Biswanath 1995 Supp (2) SCC 549; Charan Vs. State of Punjab ( 1997)1
SCC 151
189

and directions which the Supreme Court is also empowered to issue


in terms of Article 32(2) of the Constitution.

Right to Property :

The right to property was originally incorporated at two places


in Article 19(1)(f) and Article 31 of the Constitution of India. Article 19(1)(f)
said that “all citizen shall have the freedom to acquire, hold and dispose
off their property". Article 31 laid down that : (a) no person could be
deprived of his property save by authority of law, i.e. the authority of a law
or rule having legislative force under the Constitution, (b) the state could
make a law for the acquisition and requisition of a person's property but
subject to two conditions. First, the acquisition or requisition must be for
public purposes. Second, the law must provide for compensation Thus
right to property represented a compromise between the line of liberalism
standing for the economic freedom of the individual in regard to the
acquisition, possession and disposition of property and that of socialism
desiring its regulation by the state in the public interest including its
expropriation for a public purpose on the payment of just compensation
The right to property in its original form had the following essential
features.

(1) No person could be deprived of his property saved by the authority of


law.
(2) No property, movable or immovable including any interest in any
commercial or industrial undertaking, could be taken possession of or
acquired for public purposes under any law authorising the making of
such acquisition, unless the law provided for the compensation for the
property taken possession of or acquired and either fixed the amount
of the compensation or specified the principles on which and the
manner in which the compensation was to be determined and given
100

(3) No law for compulsory acquisition of private property passed by the


state legislature could have effect unless it had been reserved for the
consideration of the president and had received his assent thereto
Any law of the state enacted not more, than 18 months before the
commencement of this Constitution, could within three months from
such commencement be submitted to the President for his
certification, and thereupon it the President by public notification so
certified, it could not be called in question in any court on the ground
that it contravenes the provisions of the Constitution.

Thus the Constituent Assembly though made the right to


property a Fundamental Right, practically it did not sanctify property it
only permitted the state to acquire any property if it was necessary in the
interest of the society. Justice H.R. Khanna gives his opinion by saying
that the approach adopted by the framers of the Constitution was to
subordinate the individual right to property for the social good17o

The conflict between the Fundamental Rights and the


Directive Principles of State Policy arose soon after the commencement of
the Constitution. While the Patna High Court in Kameswar Singh Vs State
of Bihar declared the Zamindary Abolition Act invalid, some other High
Court delivered judgement which were quite the opposite,?). The Supreme
Court held the view that it was unconstitutional to differentiate between the
rich and the poor in determining the compensation for property acquired
by the state. This led to the necessary amendment in the right to property
in 1951.

The First Constitution Amendment Act was made in 1951


which inserted Articles 31A and 31B in the Constitution. Article 31A
provided that no law, affecting the rights of any proprietor or intermediate
holder in any "estate" shall be deemed to be void on the ground that it is
inconsistent with or takes away or abridges the rights enshrined in Articles

170. H R. Khanna : Judicial Review or Confrontation p. 9


171. AIR 1951 p. 91
14, 19 and 31. Article 31 B Stated that any enactment which is placed in
the Ninth Schedule will not be liable to be challenged on the ground that it
abridges or takes away any of the Fundamental Rights.

Thus the difficulties which had arisen on account of the


contradictory judgements passed by the High Court, were covered by the
First Constitution Amendment Act.

But the matter of challenging the First Constitution


Amendment Act was taken to the Supreme Court in the case of Sankari
Prasad Vs. The Union of In d ia n . The Supreme Court held that although
Fundamental Rights imposed fetters and limitations on the powers of the
Legislature and the Executive, they were not inviolable or transcendental
but they were subject to the power of the Parliament to amend the
Constitution as provided in Article 368. The Supreme Court held that the
term "law" in Article 13(2) does not include constitutional law, i.e. exercise
of constituent power under Article 368. Thus the Parliament had the power
to amend Fundamental Rights. Though the courts were deprived of the
power of declaring a law ultra vires of the Constitution, they exercised
their power of judicial review in the name of looking into the very issue of
payment. In the famous Bela Banerji casei7 3 , the Supreme Court held that
(i) compensation meant a "just equivalent or "full market value" of what the
owner has been deprived of, and (ii) the adequacy of compensation was a
justiciable issue. In the cases of Subodh Gopah74 , Sholapur Spinning and
Weaving Co. Ltd.^s, Saghir Ahmed176, the Supreme Court held that even
the taking over of an industrial undertaking by the state for a temporary
period would amount to acquisition of property involving the duty to pay
compensation to the owner.

When the Supreme Court had held that the market value
should be the basis of determining the compensation, the government felt
that it would be impossible for it to implement its social welfare policies if it

172. Sankari Prasad Vs. The Union of India 1951


173. Smt. Bela Banerji and others Vs. The State of West Bengal AIR 1954 SC 170
174. Subodh Gopal AIR 1954 SC 170
175. Sholapur Spinning & Weaving Co. Ltd. AIR 1954 SC 92
176. Saghir Ahmed AIR 1954 SC 728
was required to pay huge amounts of compensation as determined by the
courts over and against the wishes of the Parliament. Thus to remove the
conflict which had arisen between the Fundamental Rights and Directive
Principles, the Fourth Constitution Amendment Act of 1955 came into
being. This Act defined the word compensation in the way that the
payment given to a person in return of his property became compensation
as determined by the law-making authority.

Thus, the problem of "due" or "fair" or reasonable payment as


to be determined by the courts was done away with. Moreover, it placed 7
more acts of the state governments into protected area of the IX schedule
making them immune form the scope of, judicial review. Article 31 A{2) was
inserted to expressly provide that a law which did not provide for a transfer
of ownership or right to possession of the property to the state or to a
corporation owned or controlled by the state could not be deemed to be a
law for the compulsory acquisition or requisition of property as
contemplated under 31 (2) of the Constitution.

Thus the question of adequacy of compensation was


withdrawn from the field of judicial determination and was left exclusively
with the legislature. Ram Gopal writes, "the 4th amendment was an ugly
patch in the Constitution. All it did was to make compensation non
justiciable. By a fragmentary amendment, the government crossed a
hurdle but exposed itself to basic objection. The judiciary has the
democratic right to interpret the Constitution if any executive or
parliamentary measure is challenged by a citizen as unconstitutional To
prevent the court from exercising that right militates not only against
democracy but also against the spirit of the Constitution itself" 1 7 7

After that the Seventeenth Constitution Amendment Act of


1964 came into being that enlarged the definition of the word "estate" in its
application to the ryotwari land as well as in respect of all provisions that
1 77 . R am G o p a l : U n d e m o c r a tic e le m e n ts in th e In d ia n C o n s titu tio n , p . 5 6
193

are normally made in land reform enactments. As a result of this


amendment, 44 Acts designed to achieve agrariam reforms, were added to
the Ninth schedule, barring the courts jurisdiction in regard to them.

Though the 4th Amendment resolved the issue relating to the


justiciability of compensation, the question of quantum of compensation
for the property acquired remained controversial. The amended Article
31(2) came up for consideration in a series of cases - Kochhuni case,;8
Vajravelu casei7 9 , Metal Corporation caseiao etc. The decision in the Metal
Corporation case was, however overruled by the Supreme Court in its
decision in State of Gujarat Vs. Shantilal Mangal DasiSi. In this case the
Supreme Court held that the quantum of compensation fixed by the
legislature was not liable to be canvassed before the court on the ground
that it was no just equivalent; and the principles specified for the
determination of compensation would also not be open to challenge on the
plea that the compensation determined by the application of these
principles was not just equivalent; and it would, however, be open to the
courts to strike down a law if they found that the compensation provided
by the law was illusory or no compensation at all.

The 25th Amendment of the Constitution redrafted Article


31(2) of the Constitution with a new provision Article 31(C). The amended
Article 31(C) substituted the word "amount" for "compensation". It also laid
down that any legislation passed for furtherance of two Directive
Principles [specified in clauses (b) and (c) of Article 39 concerning control
of material resources for common good and prevention of concentration of
wealth] could not be questioned on the ground of violation of Fundamental
Rights. After this amendment no law relating to the acquisition of property
could be challenged in a law court for not paying the market value After
that the 29th Constitution Amendment Act was made that placed some
laws made by the Kerala Government into the IX schedule of the
Constitution.

178. AIR I9 6 0 SC 1186


179. AIR 1965 SC 1017
180. AIR 1957 SC 637
181. AIR 1969 SC 614
194

The matter of the validity of the 24th, 25th and 29th Constitution
Amendment Acts was challenged in the Supreme Court in the
Fundamental Rights case of 1973. The Supreme Court held the 24th and
25th Constitution Amendment Acts as valid, but declared the provision of
clause c added to Article 31 as void. The Supreme Court held that the
Constitution Bench will decide whether the impugned Acts of Kerala take
away Fundamental Rights or only abridge them and in the latter case
whether they affect reasonable abridgement in the public interest. Justice
H.R. Khanna held that the Parliaments' power to amend the Constitution
was limited and it could not alter the basic structure of the Constitution
But he struck down part second of the Article 31(C) which " .... No law
containing a declaration that it was for giving effect to such policy shall be
called in question in any court on the ground that it did not give effect to
such policy"i8 2 .

The 24th Amendment Act of 1971 empowered the Parliament


to make any amendment and the Supreme Court held it valid in the
Fundamental Rights case of 1973. The 42nd Constitution Amendment Act
of 1976 deprived the courts of the power to look into the validity of a law
relating to Constitutional Amendment.

Chagla Commission on Property Right :

The justification forwarded for the inclusion of clauses A B


and C to Article 31 was the legislation directed towards economic justice
should not be liable to be challenged by resort to right to property as
guaranteed by the Constitution. The various clauses added to Article 31
and progressive extension of the IX schedule shows that the presence of
property right in the chapter on Fundamental Rights became an excuse for
the virtual emasculation of Fundamental Rights. Therefore, a proposal was
made for the deletion of Article 19(1) and Article 31(2) during the internal

182. Khanna, H R, : Judicial Review and Confrontation, p. 9


105

emergency by a committee appointed by J.P, Narayan which consisted


with some eminent jurists such as M.C. Chagla as the Chairman and V M
Tarkunde and Shanti Bhusan as the members. In its interim report dated
May 25, 1976, the Chagla Committee said, "It is said that the Fundamental
Rights to property contained in Articles 19(1) and 31 have been found
obstacles in the path of progressive legislation for implementing the
Directive Principles while the Committee is not convinced that these
Fundamental Rights have stood in way of progress, in order to remove
apprehensions in this regard, the committee recommends that
Fundamental Rights to property contained in Article 19(1) f and Article 31
be deleted altogether. The existence of these Fundamental Rights must
not be allowed to be used as an excuse for depriving the people of their
civil liberties or practising discrimination. If these Fundamental Rights
were deleted, no immunity to any legislation from the attack on the
grounds of the violation of other Fundamental Rights relating to equality or
civil Iiberties"i83.

After that the Janata Government amended the Constitution


and took away the right to property under the 44th Amendment Act of
1978. This act removed Article 19(1 )f - the right to acquire, hold and
dispose of property - from the list of Fundamental Rights and made it a
constitutional or legal right. It also dropped Article 31 which provided for

compensation for compulsory acquisition of property, and substituted it by


a new Article 300A. This new Article provides that no person shall be
deprived of his property saved by authority of law.

Directive Principles of State Policy - Nature and Scope :

Part IV of the Constitution of India deals with the Directive


Principles of State Policy which according to Dr. B.R. Ambedkar
"Constitutes a very comprehensive political, social and’ economic

183. The Chagla Committee Report, The Hindustan Times, June 3, 1976
196

programme for a modern democratic State184 . The Directive Principles of


State Policy have been borrowed from the Irish Constitution of 1937 which
contains a number of similar provisions called "Directive Principles of
Social policies"i85 . The source of some of the Directive Principles is the
Indian social system itself. Provisions relating to village Panchayats,
Cottage industries and scheduled caste and scheduled tribes etc are
purely Indian in content.

The makers of the Constitution had a dream to establish a


welfare state in India but did not find it possible to include economic rights
in chapter III which deals with the Fundamental Rights. Therefore to
include certain economic policies as instructions to be followed by the
administrators in the governance of the country, they made the Directive
Principles supplementary to the Fundamental Rights. The principles like
"adequate means of livelihood for the citizens", "equal pay for equal work
to both men and women", "provisions of public assistance in cases of
unemployment, old age, sickness and disablement", etc were included in
chapter IV of the Constitution. Thus, the directives are in the nature of
duties which the Constitution calls upon the state to perform to achieve
the ideals of welfare state, "if a chapter of Fundamental Rights is a
must for a state of the modern democratic type with a written
Constitution, a chapter on the Directive Principles of State Policy is a
must for a welfare state with a written Constitution" 186.

Political thinkers differ in their opinion with regard to the


Directive Principles of State Policy. Sir Ivor Jennings describes them as
"little more than a manifesto of aims and aspirations"187. Most of the
members of the Constituent Assembly were critical of the non-justiciable
character of the Directives. They thought that this is the greatest
weakness of the Directive Principles of State Policy and so they describe
the directives as "superfluous", "pious wishes" or "high sounding
principles"

184. Joshi, G IV : The Constitution of India, p, 112


185. Dubey, M.P. : Directive Principles and the Supreme Court
186. Markandan, K.C. : Directive principles in the Indian Constitution, p. 5
187. Jennings, Sir Ivor : Some characteristics of the Indian Constitution, p 13
197

Prof. K.T. Shah dubbed them as "pious superfluous and


compared them with a "cheque payable by a bank as per its
convenience"^. The severest charge directed against the Directive
Principles is that being purely directive in character without a binding
force, the principles are hardly inspiring.

It is true that there is no constitutional provision to hold the


government or any other authority responsible for not acting according to
these principles; but public opinion is the only sanction behind the
Directive Principles. Any government which disregards the Directive
Principles is bound to incur the wrath of the people leading to its defeat in
the next election. Therefore, no government can disregard the Directive
Principles because of fear of public opinion going against it. According to
Dr. B.R. Ambedkar, the Chairman of the Drafting Committee of the
Constitution, the aim of incorporation of certain principles in part IV of the
Constitution was to instruct the future executives and legislatures of India
to observe certain principles and he hoped that they would not disregard
these principles. In this regard Justice P.B. Gajendragadkar opines
"Whatever may be the political affiliation of the party, which would come
into power in future either in the states or at the centre, it is bound
recognise the fact that the principles laid down in part IV are intended to
be its guide, philosopher and friend in the matters of its legislative and
executive activities"18 9 -

Thus the Directive Principles constitute a very flexible and


also a very dynamic code that all organs of government must follow to
realise the goal of a social welfare state in our country. The judiciary has
also well understood the real significance of Directive Principles. The first
Chief Justice of the Supreme Court of India, H.L. Kania, in the Gopalon
case190 of 1950 visualised that being a part of the Constitution these
principles "represent not the temporary will of a majority but the deliberate
wisdom of the nation expressed through them to be fundamental in the

188. CAD IX, p .37 8


189. P.B. Gajendragadkar : The Constitution of India (Its philosophy and postulates) P. 11
190. Gopalan, A.K, Vs. The State of Madras (1951)
198

governance of the country". The Supreme Court has taken the view that
reasonable restrictions can be made to implement the Directive Principles
In the leading case of F.N. Bulsara Vs. the State of Bombay (1951)i91 the
Supreme Court held that the state was justified in prohibiting the
consumption of drugs and intoxicating materials for public purpose. Again
in Kameshwar Vs. the State of Bihar (1952)i92- Article 39 was invoked in
support of the contention that the abolition of zamindari had a legitimate
public purpose.

These principles have been honoured in drafting the 5 year


plans. In the First Five Year Plan it was stated that the Directive Principles
"make it clear that for the attainment of these ends, ownership and control
of the material resources of the country should be distributed as best to
subserve the common good, and that the operation of the economic
system should not result in the concentration of wealth and economic
power in the hands of a few. It is in this larger perspective that the task of
planning has to be envisaged". The Second Five Year Plan was based on
the ideal of socialist pattern of society.

One of the important achievement of the implementation of


the Directive Principles of State Policy is the establishment of Panchayati
Raj throughout the country. Panchayati Raj institutions have been set up
covering about 98% of the rural population and endowed with powers of
civic administration and elementary justice. Several statutory bodies like
All India Khadi and Village Industries Board, All India Handicarfts Board
All India Handloom Board, Small Scale Industries Board, Silk Board
National Small Industries Corporation, Khadi and Village Industries
Commission etc. have been set up.

Steps are also being taken for the development of Backward


Classes, Scheduled Castes and Schedule Tribes in all spheres of life
Special measures are taken for their welfare.

191. F.N. B ulsara V s.. The State o f Bom bay (1951)


192. K am esw ar V s. The State of B ihar (1952)
199

In some States, steps have been taken to provide free and


compulsory education to children upto the age of fourteen.

A law has been passed in 1973 to separate the executive


from the judiciary in the lower stages. In the economic field, references
may be made to various land reform laws relating to the abolition of
Zamindari, Jagirdari and Ryotwari system. Steps are also being taken to
solve the unemployment problem.

Thus though the Directive Principles of State Policy are not


enforceable by law, they are constitutionally significant. The Supreme
Court has often relied upon the Directive Principles while considering the
constitutionality of various laws. Land reforms in various States, a large
increase in progressive taxation, levies on wealth tax and gift tax the
enactment of Hindu Succession and Inheritance Acts, Organisation of
village Panchayats, laws making Primary Education free and compulsory
Nationalisation of banks and L.I.C. and Coal mines etc. have been justified
by the Supreme Court relying upon the Directives contained in part 'V of
the Constitution.

Relevant cases which dealt with the working of the Fundamental


Rights and Directive Principles :

The following cases will give us a clear idea about the actua
working of the Fundamental Rights and Directive Principles as enshrmec
in our Constitution.

In the case of Sheela Barse Vs. Secretary, Children's tega.


Aid Society and others,93, a letter dated 22.8.84 was sent to the High
Court of Mumbai by an activist and journalist Sheela Barse and it wa^
registered as Writ Petition under Article 226 of the Constitution. The lette

193. Cri A No. 300 of 1985


200

depicted the conditions in the New Observation Home at Mankhurd


managed by the Children's Aid Society, Mumbai. It was alleged that
children were illegally detained and harassed and were forced to take up
hazardous employment and the society made a huge profit of about
rupees four lakh each year. In its order, the High Court had found some of
the allegations to be without justification, while others were accepted The
direction of the High Court were considered to be inadequate as the court
failed to consider severity of the conditions and therefore an appeal was
made under Article 136 of the Constitution in the Supreme Court by the
petitioner. The appeal stated that the High Court had lost sight of the
provisions of the Bombay Children's Act 1948 and Articles 21, 24, 39(e)
and 39(f) of the Constitution and that the society should be treated as "the
state" under Article 12 of the Constitution, not as a voluntary organisation

In an order194 , Chief Justice P.N. Bhagawati and Justice R S.


Pathak (concurring) said that during the pendency of the petition the
Juvenile Justice Act, 1986 had been passed and the court directed that
Juvenile Courts be set up presided over by judicial officers with special
training according to the needs of the children. As the Chief Minister of
Maharshtra was the ex-officio president of the society, the society
received grants from the state and the court stated at 56: that the
respondent society should have been treated as a state within the
meaning of Article 12 as it is undoubtedly an instrumentality of the state
on the basis of the test laid down by this court. The respondent society
has, therefore, to regulate its activities not only in accordance with the
statutory requirements of the constitutional provisions in Article 21 and 24
but also with the Directive Principles of State Policy.

The High Court made some remarks about the petitioner,


Sheela Barse, regarding her lack of acquaintance with court procedure
However, the Supreme Court stated that the observations made against

194. Order dt. 20-12-86 as cited in Ahuja, Sangita, People. Law and Justice p. 247
201

her were totally unjustified. The state of Maharashtra was directed to pay
the appellant cost of Rs. 5,000/-.

In the Sheela Barse case on prisons, the scope of the


litigation was extended and the court too admitted the existence of
problem relating to children on a large scale. It is not only the
implementation of Supreme Court’s order that was monitored, but the
implementation of the existing statutory framework was also looked after
The Supreme Court directed that the Children's Acts be implemented
along with the Juvenile Justice Act, 1986.

In D.D. Vyas and others Vs. Ghaziabad Development


A u th ority^, the petition filed under Article 226 of the Constitution, claimed
that an open space should be used only for a public park and not for any
other purpose. The petition which was filed by the residents of the locality
invoked Section 9 and 17 of the Uttar Pradesh Urban Planning and
Development Act, 1973 and Section 2 of the Uttar Pradesh parks
playgrounds and open spaces (Preservation and Regulation) Act, 1975
together with Articles 12, 5lA(g) and 51 A(l) of the Constitution,

In an order dated 13.4.92 by Justice Om Prakash and Justice


M. Katju, the court while upholding the locus standing of the petitioner
stated that a Writ Petition under Article 226 of the Constitution for the
preservation of free air and for the protection of environment can always
be filed by the environmental activists either living in the same locality or
otherwise. Discussing the definition of parks, the court directed that the
park should be maintained properly and trees and flowers should be
planted. The court directed that no construction be allowed except in
relation to the maintenance of the park. The petition was allowed.

The People's Union for Democratic Rights (PUDR) and others


Vs. Union of India and othersige, a letter was sent to Justice Bhagawati by

195. D.D. Vyas and others Vs. G haziabad D evelopm ent A u th o rity , G haziabad arid anothei
CMW No. 24400 of 1991, A llahabad
196. P eop le ’s Union fo r D em ocratic R ight (PUDR) and others Vs. Union of India and o th e r,
W .P. No. 8143 o f 1981
202

a team of three social scientists, commissioned by the PUDR to enquire


into the condition of work on the various Asiad construction projects where
labour laws were being flouted. The president of the PUDR and an
advocate in the case noted that the labourers working at the construction
sites were not directly recruited by the contractors but were enlist by
Jamadars who either went to the village to recruit them or collect them
from the migrants who came to Delhi. Almost all the labourers were
migrants - recruited from Bihar, Orissa, Bengal, Tamil Nadu, Andhra
Pradesh, Madhya Pradesh, Rajasthan and they were mainly landless and
poor.

In an order dated 11.5.82 by Justice P.N. Bhagawati and


Justice Baharul Islam, the Delhi Development Authority was directed to
carry out weekly inspections and to ensure the payment of minimum
wages and implementation of other labour laws. It also directed the
appointment of two independent institution to act as ombudsmen for
protecting the interest of the workers and ensuring observance of the
contract labour. (Regulation and Abolition) Act, 1970, the Minimum Wage
Act, 1948, the Equals Remuneration Act 1976, the Employment of
Children Act 1938 and the Inter-State Migrant Workmen (Regulation of
i
Employment and conditions of Service) Act, 1979 by the contractors

The court conferred standing on the PUDR and stated that


where judicial redress is sought of a legal wrong suffered by a person or a
class of persons and who are at a disadvantaged position, unable to
approach the court, then the court should cast aside all technical rules of
procedure and entertain the letter as a Writ Petition on the judicial side
and take action upon it. The case in point shows how the workmen rights
were violated and due to poverty and illiteracy they were unable to
approach the courts for redress and hence the petitioners have under the
liberalised rule of standing, locus standi to maintain the present petition
espousing the cause of the workmen. It is not the case that the petitioners
•>03

are acting malafide or out of extraneous motives since PUDR is an


organisation dedicated to the protection and enforcement of Fundamental
Rights and making Directive Principles of State Policy enforceable and
justiciable.

The landmark judgement in people's Union for Democratic


Rights became popular and was later taken as example in many cases
The ruling of this case clarified the scope of Article 23 and used the
Directive Principles of State Policy.

In another case Sachidanand Pandey and another Vs State


of West Bengal and o th e rs ^, an appeal was filed against an order of the
Calcutta High Court in a petition filed under Article 226 of the Constitution
The two citizens who filed the petition were lovers of wild life They
alleged that the Government of West Bengal allotted lands for the
construction of a five star hotel by the Taj Group at the expense of the
zoo. The petition invoked Article 14, 31, 48A and 51A(g) of the
Constitution, together with the Bengal Public Parks Act, 1904.

After analysing the case law and the technicalities, it was held
that the provisions of 1904 Act were not attracted as claimed by the
petitioner. However, the court stated that Directive Principles of State
Policy and Fundamental Duties would be the principal consideration in a
case of this kind and stressed the need to take Articles 48A and 51A(g)
into account. As the principal consideration was to attract tourism and not
revenue, the court held that public interest is paramount in the allotment of
land and that the government did act with probity. The court suggested hat
guidelines be framed which would address the need for PIL litigants and
the courts to exercise self-restraint in the kind of issues and the cases
litigated as PILs.

197. Sachidanand Pandey and another Vs. State of West Bengal and others; WP No 8143 or
1981
204

In the case of Mathew Lukose Vs. Kerala State Pollution


Control Board198, a petition was filed under Article 226 of the Constitution
by the secretaries of the two associations formed to fight pollution The
petition detailed the Water Pollution emanating from the lime-slurry
discharged into local streams and the air pollution caused by the
Travancore Electro Chemicals Industries. The consent for the discharge
was given by the Kerala State Pollution Control Board, but the directions
as not to discharge effluents into the streams to construct draihs were not
adhered to. The petition invoked Article 21 and 51(g) of the Constitution,
the water (Prevention and Control of Pollution) Act 1974 and Rules, the Air
(Prevention and Control of Pollution) Act, 1981 and the Environment
(Protection) Act 1986.

In an order dated 27.8.90 by Justice Sankaran Nair, the court


stated that right to environment is part of the right to life. The Kerela State
Pollution Control Board served as an observer to see that the orders of the
courts were strictly carried out.

Similarly, in Rajiv Singh alias Lallan Singh Vs. State of Bihar


and othersigg, the petitioner alleged that one of the respondents, M/s
Shankar Chemicals Industries Pvt. Ltd., manufacture ethyl alcohol and
discharge the untreated effluents and wastes thereby polluting the
environment and affecting the crops and posing a health hazard The
petition invoked Articles 14, 21, 47 and 48A of the Constitution, sections
16 and 17 of the water (Prevention and Control of Pollution) Act and
Section 3 of the Environment (Protection) Act, 1986.

In an order dated 19.1.91 by Justice Satyabrata Sanyal and


Justice Aftab Alans, the court ordered an enquiry and a committee was
appointed to study the nature of the effluents. Ultimately, the petitions
were disposed of with no order for costs. In this case also, the courts felt
the necessity to preserve environment and at the same time to develop the

198. Mathew Lukose Vs. Kerela State Pollution Control Board, OP No. 3473 and 4622 of 1988
Kerela
199. Rajiv Singh alias Lalan Singh Vs. State of Bihar and others, CWJC No 6928 with CWJ(.
N o .9601, 1989, Patna
backward regions by way of installing industries and factories. But at the
same time, the court ensured that in the process, the environment should
not be polluted and crops and health of the people not to be affected
Thus the court ensured development but not at the cost of environmental
degradation or pollution.

In the case of George Mampilly and another Vs. State of

Kerela and another2oo. a petition was filed under Article 226 of the
Constitution asking the court to prevent the sale of arrack in polythene
sachets as it was injurious to health.

In an order dated 24.2.83 by Justice U.L. Bhatt and Justice


Fatima Beewi, the court held that grievances projected by the petitioner
could lead to serious damage to health and public order stating that the
Directive Principles of State Policy are fundamental to governance and
that the matter needed to be considered in the light of Article 47 of the
Constitution, the court held that government decision could have been
arrived only on serious considerations.

All the cases, discussed above clearly reveal that the


directives provided a basis for a new approach to the problem of

constitutional interpretation substituting new principles. They have been


placed in the Constitution and so they have to be read along with the other
parts of the Constitution. Article 37 States that it shall be the duty of the
state to apply the Directive Principles in making laws.

Fundamental Duties - Nature and Scope :

Fundamental Duties In other Constitutions :

The Constitution of western countries do not specifically


provide the duties and obligations of citizens. Among the democratic

200. G eorge M am pilly and an o th e r Vs. State o f K erela and another LOP No. 9814 of 1992 ;i
Kerela
?oh

Constitutions, certain duties are mentioned in the Japanese Constitution


In Britain, Canada and Australia the rights and duties of citizens are
governed largely by common law and judicial decisions. The French
Constitution makes only a passing reference to duties of citizens. The
American Constitution provides only for Fundamental Rights and does not
refer to duties of citizens. But the Constitutions of socialist states on the
contrary, give equal importance to the Fundamental Rights as well Duties
to their citizens. Among the socialist countries, the former Soviet Union s
Constitution contained a comprehensive chapter on the citizen duties
towards society and towards the state. Chapter 11 of the Constitution of
the Republic of China also lays down specific duties upon the people

Fundamental Duties in the Constitution of India :

The framers of the Constitution of India did not feel it


necessary to incorporate Fundamental Duties in the Constitution. It was
during internal emergency in 1975 that need and necessity of
Fundamental Duties was felt and accordingly Swaran Singh Committee
was appointed to make recommendations about Fundamental Duties
Thus Fundamental Duties were included in our Constitution as per the
recommendations of Swaran Singh Committee. The Committee proposed
that, "The Parliament may by law provide for the imposition of such
penalty or punishment as may be considered appropriate for any non-
compliance with or refusal to observe any of the duties. The committee
had also recommended that the duty to pay taxes should also be made
Fundamental Duty of he citizens. But these recommendations were not
accepted by the Congress party"2oi-

The 42nd Amendment Act, 1976 has added Part IV-A chapter
on Fundamental Duties for the first time in the Indian Constitution. Thus by
incorporating this chapter on the Fundamental Duties, the traditional

201. Hans Ra) : Indian Political System, p. 107-108


P07

duties have been given constitutional sanction. Giving emphasis on the


traditional duties, the Gita and the Ramayana exhort people to perform
their duties without caring for their rights or fruits.

Although the Fundamental Duties form a part of the


Constitution of India, there is no legal force behind them. Moreover, there
is no provision of punishment if these duties are not performed. But as
these duties constitute a part of the Constitution, they may have moral
impact upon the people.

Fundamental Rights, Duties, Directive Principle of State


Policy - whether each of these is a separate entity or together they
make one single package or charter of Rights of the people of India :

Although, according to political scientists there is very close


relationship between rights and duties, the Fundamental Rights and Duties
are not incorporated in the same chapter in the Indian Constitution in
other words Fundamental Duties do not form a part of chapter III. They are
added to chapter IV of the Constitution in Article 51 A. Since the
Fundamental Duties have been added to the part of Directive Principles of
State Policy, they have a non-justiciable character. Although these duties
are not enforceable, they are observed by the citizens because they feel a
moral responsibility to obey them.

Thus the Fundamental Duties are like Directive Principles and


not like Fundamental Rights so far as their juristic nature is concerned
The Directive Principles are like the advice given to the government while
the Fundamental Duties are obligations expected of the citizens.

Thus though the Fundamental Rights, Directive Principles of


State Policy and Fundamental Duties constitute an integrated scheme at
the same time they appear as separate entities of this integrated scheme
?08

The part III and part IV were made separate and distinct entities of the
Constitution owing to changes at the last moment202-

The Fundamental Rights, Directive Principles of State


Policy and Fundamental Duties outwardly resemble each other in so far as
they aim at securing the common good of the people of India but there are
some essential points of difference among them.

Question of an Inherent Conflict between Rights and Directives :

There are some important points of difference between the


Fundamental Rights and the Directive Principles of State Policy. In the
first place, Fundamental Rights are injunctions requiring the state not to
do certain things. They are the negative obligations of the state and are of
a prohibitive nature. Directive principles, on the other hand, are affirmative
directions dealing with the positive obligations of the state towards the
citizens. They emphasize the duty of the state to promote certain social
and economic objectives.

Secondly, the Fundamental Rights are justiciable and can be


enforced by the courts, while the Directive Principles are non-justiciable
The courts cannot declare a law as void on the ground that it contravenes
the Directive Principles. For example, if the state does not separate the
judiciary from the executive, or fails to introduce compulsory education,
the courts cannot help an aggrieved citizen. The right to constitutional
remedies, as enshrined in Article 32 of the Constitution, covers part III and
part IV of the Constitution.

The Constitution clearly confers upon the citizen the right to


move the Supreme Court for the enforcement of his Fundamental
202. As Granville Austin says "Although the fundamental rights and Directive Principles appeal
in the Constitution as distinct entitles, it was the Assembly that separated them, the
leaders of the Independence Movement had drawn no distinction between the positive
and the negative obligations of the state. Both types of rights had developed as a
common demand - products of the national and social revolutions of their almost
inseparable inter-twining, and the character of Indian Politics itself ’ The Indian
Constitution, p. 25
209

RightS203- On the other hand, the Constitution ordains that the Directive
Principles shall not be enforceable by any court204 - It follows that while the
Fundamental Rights are mandatory, the Directive Principles are just like
optional directives.

Thirdly, the Directive Principles unless otherwise determined


by law of the state, are subsidiary to the Fundamental Rights, the latter
being primary parts of the Constitution in relation to the former. In case of
conflict between the two, the Fundamental Rights get Precedence. For
instance, while Article 19 guarantees essential freedoms like carrying on
any trade or profession, and Article 47 desires prohibition, the court shall
attach importance to the former provision of the Constitution. Emphasising
this point, the Supreme Court observed in State of Madras Vs
Champakan Dorairajain2o5 , “The Directive Principles of State Policy have
to conform to and run as subsidiary chapter on Fundamental Rights In our
opinion that is the correct way in which the provisions found in part III and
IV have to be understood. However, as long as there is no infringement of
any Fundamental Rights, to the extent conferred by the provisions in part
III, there can be no objection to the state acting in accordance which the
Directive Principles set out in part IV, but subject again to the Legislative
and Executive powers and limitations conferred on the state under
different provisions of the Constitutions."

The working of the Indian Constitution has high lighted the


point that some of the Directive Principles of State Policy enumerated in
the Constitution are not quite consistent with certain provisions of chapter
III dealing with the Fundamental Rights. Thus Article 47 which makes it a
primary duty of the state to bring about prohibition and Article 48 which
requires the state to forbid cow slaughter may seem to clash with Article
19(f), (9) which confers upon citizens the right to practise any profession
Similarly, Article 39 which interalia calls upon the state to prevent the
concentration of wealth and means of productions and to ensure that the

203. The C o nstitution of India, A rticle 23


204. Ibid, A rticle 37
205. State o f M adras Vs. C ham pakan D orairajan (1951) SCJ 1931
P10

ownership and control of the material resources of the community are so


distributed as to subserve the common good may appear to run counter to
the right to property guaranteed by the Constitution206-

The Supreme Court could not be consistent in its judgement


in cases involving the question of relative importance of the Directive
Principle and Fundamental Rights. In its earlier decision in Champakam
Darairajan case, cow slaughter case, and the Kerela Education Bill it
enunciated the principle that in the event of a direct conflict between
individual's Fundamental Fights and social necessities, the social good
was preferable only if the individuals' Fundamental Rights were not
infringed. In State of Madras Vs. Champakan Dorairajan, the petitioner
was refused admission to a Medical College on the ground that she
belonged to the high caste Brahmin community. It was pleaded on her
behalf that the order of the Madras government involved an infringement
of her Fundamental Rights under Article 15(1) which has laid down that
the state "shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them”, and under Article
29(2) which provides that "no citizen shall be denied admission to an
educational institution maintained by the state or receiving aid out of state
funds on grounds only of religion, race, caste, language or any of them"
The order of the Madras Government had fixed a proportion of seats in the
Medical College for various castes and sections of community (Brahmins,
Non-Brahmins, Backward classes, and Muslims etc.). It was argued by the
defence council that the order of Madras Government was in accordance
with the Directive Principles of State Policy2o7 that the state shall promote
with special care the educational and economic interests of the weaker
sections of the people. The Supreme Court in its judgement declared that
"the Directive Principles of State Policy which are expressly made non-
enforceable by the Constitution cannot override the provisions of Chapter
III which are made enforceable by appropriate Writs, Orders or Directives

206. The Constitution of India, Article 31


207. The Constitution of India, Article 46
under Article 32. The Directive principles of State Policy have to conform
to and run subsidiary to the chapter on Fundamental Rights"2o8

In Quereshi Vs. The State of Bihar2o9, the Supreme Court held


that the Directive Principles of State Policy cannot override the specific
guarantees and restraints laid down in the Fundamental Rights as they
stand. The court held that the Constitution has to be so interpreted that it
means that the state should certainly implement the Directive Principles
but it must do so in such a way that its laws do not take away or abridge
the Fundamental Rights, for otherwise the protecting provision of Chapter
III will be a mere rope of sand".

But this theory of subordination could not hold good for long
In Kameswar Singh case the Supreme Court laid down a different
principle. It commented; "In the light of the new outlook, what, I ask, is the
purpose of the state in adopting measures for the acquisition of
Zaminadries and the interest of intermediaries. It is to subserve the
common good by bringing the land which feeds and sustains the
community and also produces wealth by its forests, minerals and other
resources, under state ownership or control. This state ownership or
control over land is necessary preliminary step towards the
implementation of Directive Principles of State Policy and it cannot but be
a public purpose". Thus the “doctrine of harmonious construction”
took the place of the 'theory of subordination".

After the enactment of 24th and 25th Amendments in 1972


substantial change was effected in the relationship between Directive
Principles and Fundamental Rights. The 24th Amendment provided that no
law shall be called in question on the ground that the amount fixed as
compensation for acquisition of property, is not adequate. It also accorded
subordinate position to Article 14, Article 19 and Article 31 in relation to
Directive Principles enshrined in clauses (b) and (c) of Article 32. It also

208. State of Madras Vs. Champakan Dorairajain <1951) SCJ 318


209. Qureshl Vs. The State of Bihar (1961) SCJ 983
212

curtailed the power of the courts to review such laws. But in


Keshavananda Bharati case2io of 1973 in which the 24th, 25th and 29th
Amendments of the Constitution were challenged, the Supreme Court
declared clause (c) added to Article 31 to the 25lh Amendment as ultra
vires, but upheld the constitutional validity of the 24th and 25th
Amendments. Thus the Supreme Court made a fine balancing exercise in
upholding the significance of the directives, without, at the same time,
subordinating the Fundamental Rights.

The Directive Principles were given a prominent position


under the 42nd Amendment and they were given precedence over
Fundamental Rights. The 42nd Amendment widened the scope of this
Article. It stated that no law passed to give effect to all or any of the
Directive Principles of State Policy enumerated in Part IV of the
Constitution could be challenged in any court even if it infringed Article 14.
19 and 31 - Articles dealing with the Right to equality, Right to freedom
and Right to property.

The provisions of 42nd Amendment were challenged in the


Supreme Court in Minerva Mill case and the court in 1980, struck down
amended Article 31(c) and newly inserted clauses (3), (4) and (5) in Article
368 of the Constitution on the ground that they violated the basic structure
of the Constitution. As a result of this judgement the Directive Principles of
State Policy once again assumed subordinate position to the Fundamental
Rights.

Changing Constitutional Balance and Reconciliation :

Some of the Amendments, particularly the 24th, 25th, 29th and


42 Amendments of Mrs. Indira Gandhi's regime, in which, the Directive
Principles were given primacy over Fundamental Rights, were criticised by
persons like Sriman Narayan and Dr. K.V. Rao. Persons like Chagla,

210. K eshavanand Bharati Vs. S tate of K erela AIR 1973 SC 1461


?13

Santhanam and Acharya Kripalini do not favour the idea of sacrificing


liberty for the sake of security, and find it repugnant to be basic concept of
the original Constitution.

The Janata Government in 1977 came to power and made an


attempt to restore the balance between the Fundamental Rights and
Directive Principles. The 45th Constitution Amendment Bill sought to
restore the constitutional position as it existed before the emergency with
regard to the Directive Principles. But it could not be possible due to the
Congress majority in the Rajya Sabha. But the Supreme Court in its
judgement of 9 May, 1980 in Minerva Mill case211 asserted that the
Parliament has no right to amend the basic structure of the Constitution

Though there is a conflict between the Directive Principles


and Fundamental Rights, it can be said that Fundamental Rights and
Directive Principles constitute the conscience of the Constitution
According to Supreme Court the Fundamental Rights and the Directive
Principles are supplementary to each other and the maintenance of
balance between them is essential for preserving the basic structure of the
Constitution of India. Therefore, the courts have adopted the view that in
determining the scope and ambit of Fundamental Rights, the Directive
Principles should not be completely ignored and that the courts should
adopt the principle of harmonious construction and attempt to give effect
to both as far as possible.

Thus it is felt that to achieve dignity of the individual, both


Part III and Part IV have to be balanced. Our Constitution makers did not
comtemplate any disharmony between the Fundamental Rights and the
Directive Principles. They were meant to supplement each other It can
therefore be said that the Directive Principles prescribed the goal to be
attained and the Fundamental Rights laid down the means by which that
goal was to be achieved.

211 Minerva Mill Vs. The Union of India (1980) SC 1789


Secularism :

Concept : " Secularism" often means a way of life and conduct guided by
materialistic considerations free from religion. Encyclopaedia Britannica
defines secularism as "non-spiritual, having no concern with religious or
spiritual matters, anything which is distinct, opposed to, or not connected
with religion or ecclesiastical things, temporal as opposed to spiritual
ecclesiastical''2i2- Shorter Oxford dictionary defines secularism as "the
doctrine that morality should be based solely on regard to the well being of
mankind of the present life to the exclusion of all consideration drawn from
belief in God or in a future state". D.E. Smith defines “The secular state is
a state which guarantees individual and corporate freedom of religion,
deals with the individual as a citizen irrespective of his religion, is not
constitutionally connected to a particular religion, nor does it seek either to
promote or interfere with religion. Upon closer examination, it will be seen
that the conception of a secular state involves three distinct but inter­
related sets of relationship concerning the state, religion and the
individual"2i3. Secularism "is materialistic in tone and holds that human
improvement can be sought through material means alone"2i4. In this
sense secularism means a "secular attitude" towards life.

The above definitions clearly reveals that the underlying


conception of secularism is that religion and the state function are two
different areas of human activity and posses their own objectives and tools
and they must refrain from interfering in the working of the other. This is
clearly included in the American Constitution where the individual is
assured religious freedom and the state is not permitted to deal with the
individual on the basis of religious considerations. The state also does not
recognise any particular religion as the religion of the state. Here though
the state and the religions have been separated the citizens do not enjoy
any religious freedom. But in U.K. even though the Church and the state
have not been separated, the individual enjoys complete freedom of
religion.
212. Encyclopaedia Britannica, Vol XX, 1967 Ptg, p. 264
213. Smith, D.E. : India as a Secular State, p. 4
214. Luthra, V.P. : The Concepts of Secular State and India, p. 19
?1 5

Indian Secularism :

History of India reminds us that the secularism has existed in


India since ancient times. The people enjoys religious freedom in ancient
India. As Max Webber has observed, "It is an undoubted fact that in India
religious and philosophical thinkers were able to enjoy perfect, nearly
absolute freedom for a long period. The freedom of thought in ancient
India was so considerable as to find no parallel in west before the most
recent age'^ts. Thus ancient India had a well established tradition of
secularism. It may however be noted that Islam, professed by about 10
percent of the Indian people is based on a totally different philosophy The
people who adopted Islam came to abandon the secular tradition

The British rule over two centuries also helped in


strengthening the roots of secularism in India due to the protection offered
by them to the various Indian religions. The Indian National Congress also
contributed to the strengthening of the secular tradition and adopted a
resolution at its Karachi Session affirming the ideals of religious liberty
and adequate protection to the minorities. These ideals were included into
the new Constitution of India.

Secularism and the Constitution of India :

Although the word “Secularism" was not included anywhere in


the Constitution of India yet the spirit of our Constitution is secular. Some
of the members of the Constituent Assembly described India as a secular
state which is clear from the observation of Pandit L.K. Mishra of West
Bengal when he said that by secular state ..... is meant that the state is
not going to make any discrimination whatsoever on the ground of religion
or community against any person professing any particular form of
religions faith ..... no particular form of religious faith ..... no particular
religion in the state will receive any state patronage whatsoever. The state

215. Quoted In Donald Engam Smith : India as a Secular State, p 61


;-lfi

is not going to establish, partronise or endow any particular religion, to the


exclusion of, or in preference to other, in the affairs, of the state, the
profession of any particular religion will not be taken into consideration at
all. This is considered to be the essence of secular state. At the same time
we must be very careful to see that in this land of ours we do not deny to
anybody the right not only to profess or practice but also to propagate any
particular religion. Thus Pandit L.K. Mishra observed about the nature of
secularism in India provided by the Constitution.

Provisions in the Constitution relating to Secularism :

The Indian Constitution envisages a secular state through the


following provisions included in the Articles 25, 26, 27, 28 and 31.

Article 25 : Article 25 which deals with the freedom of religion provides


that every citizen will have “freedom of conscience and free profession
practice and propagation of religion subject to public order, morality and
health .... All persons are equally entitled to freedom of conscience and
the right freely to profess, practice and propagate religion". The state can
also regulate the economic, financial, political and secular activities
associated with the religious practices. In Md. Hanif Quereshi Vs State of
Bihar2i6, the court upheld the right of the state to prohibit the slaughte* of
cow by law on the occasion of Bakrid and rejected the contention of rhe
petitioner that it was a violation of his right to practice religion.

In Golam Abbas Vs. State of U.P.217, the court held that the
rights of religious communities based on custom are also to be protected
The state can also make laws for the social welfare and social reform
provided these reforms do not effect the essence of any religion ^ he
courts have by and large taken the stand that where there is a conflict
between the need of social welfare and reform and religious practice
religion must yield.
216. Md. Hanif Quareshi Vs. State of Bihar AIR 1958 SC 731
217. Golam Abbas Vs. State of UP, AIR 1981 SC 2198 •
Article 26 : Article 26 grants right of religious freedom collective to a
religious denomination or a section thereof. But Article 26 does not create
in any denomination or a section which it never had. It merely safeguards
and guarantees continuance of a right which such denomination or sect
had. If the denominations never had the right to manage property in favour
of a denominational institutions as per reasonable terms on which the
endowment was created, it cannot be said to have it.

However, the existing rights of religious denominations are


protected by Article 26 and this Article contemplates not merely a religious
denomination but also a section thereof. The denominational section is
also bound by the constitutional goals and they are required to abide by
the law, they are not above the Iaw2i 8.

Maths or the spiritual fraternity established by it are included


in religious denominationaig. In Jagdishwaranand Vs. Police
Commissioner22o it was held that Ananda Marga is a separate religious
denomination. In Pithota Chinnamma Vs. Regional Director Dy DPI.
Guntur22i, the court held that Roman Catholic Mission is a religious
denomination. But in S.P. Mittal Vs. Union of India222, it was held that
neither Aurobindo Society nor Aurovilla are separate denominations

Article 27 : The secular character of the Indian polity is further evident


from Article 27 of the Constitution which provided that “no person shall be
compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of
any particular religious denominations”.

Article 28 : Article 28 provides that "no religious instruction shall be


provided in any educational institutions wholly maintained out of state
funds. No person attending any educational institution recognised by the
state or receiving aid out of state funds shall be required to take part in
218. Sri Adi Viswaswar Kashi Viswanath Temple Vs. State of UP (1997)4 SCC 606
219. Commissioner, H.R.E. Vs. Lakshminda Teerth Swaminar AIR 1954 SC 282
220. Jogdlswaranand Vs. Police Commissioner AIR 1984 SC 51
221. AIR 1964 AP 277
222. S.P. Mittal Vs. Union of India AIR 1983 SC 1
218

any religious instruction that may be imparted in such institution or to


attend any religious worship that may be conducted in such institution or
to attend any religious worship that may be conducted in such institution
or in any premises attached there to unless such person or, if such person
is a minor, his guardian has given consent thereto”.

Article 31 : The Constitution also contains provisions for the protection of


special rights of religious as well as linguistic minorities Article 31 gives
these minorities the right to establish and administer educational
institutions of their choice and the state is not expected to make any
discrimination while making grants to these institutions on the ground that
they are under the management of a minority, whether based on religion
or language.

The Directive Principles of state policy enumerated in part IV


of the Constitution also emphasise the secular character of the Indian
polity when it provides for the enactment of uniform civil code applicable to
all citizens of the state irrespective of their religious persuasion (Article
41).

Observing the above provisions of secularism, enumerated in


the Constitution of India, D.D. Basu asserts, “The sum total of the above
provisions makes our state more secular than even the United States of
America"223 .

Thus Indian secularism is a dynamic affair which is designed


to suit the requirement of a progressive nation.

Social Justice :

The concept of social justice is very wide and its meaning has
to be understood in the treatment of human beings in society. Social

223. Basu, D.D. : Introduction to the C o n stitu tio n o f India XII Ed., 1989
219

justice relates to the balance between an individual’s rights on the one


hand, and social control on the other. In modern times, social justice
implies the absence of discrimination on the basis of caste, colour, religion
etc. and creation of an environment in which everybody may prosper in the
society. Recognition of equality of all, protection of the weaker section of
the society from oppression of the more powerful sections and equitable
distribution of the necessities of life etc. constitute social justice. Social
justice also relates to the removal of social ills like those of
unemployment, ignorance pauperism, intemperance and squalor in the
developing countries.

In the west social justice implies the principle of equality


before law and independence of judiciary. The rights of the individual
should be reconciled with the interest of society.

Liberty is also one of the highest social values which stand us


the pre-condition for any just social order. The liberties of the people must
be based on social justice. The liberties of the people are justified only if
they are not opposed to social justice and morality.

The term social justice usually include three aspects of justice


in society which are - social, economic and political. Economic justice is
more important among these three aspects of social justice. Not only
economic justice, political justice is also very important as a politically
unjust society can never be socially just. Social justice is synthesis of

liberty, equality and fraternity. Thus social justice may be regarded as an


important factor of social transformation.

Social Justice under the Constitution of India :

The Constitution of a country reflects the hopes and


aspirations of the people. The framers of the Constitution of India
incorporated a number of provisions in the Constitution to achieve social
justice for the people of India. These provisions are mainly contained in
the Preamble, in the chapter on Fundamental Rights and in the chapter on
Directive Principles of State Policy. The preamble commits the country to
the ideal of a welfare state and aims at assuring socio-economic justice to
the people. The principles included in the preamble expanded into
Fundamental Rights in part III and Directive Principles of state policy in
part IV.

Thus the Indian Constitution promises not only political


justice, but also social justice. The ideal of social justice implies that
democracy should be extended to the social sphere also. The social
system should be based on the ideals of equality, liberty and fraternity
The Fundamental Rights guarantee each citizen right to equality, right to
freedom and right against exploitation.

Social justice prohibits discrimination on any artificial ground


It also prohibits forces creating artificial social barriers like those of
untouchability. Article 17 which deals with the right to equality under the
chapter on Fundamental Rights abolishes untouchability and makes its
practice in any form an offence punishable under the law. In their effort to
eradicate the evil of untouchability, the Congress government
supplemented this constitutional provision with legislative enactments it
passed “The untouchability offences Act" in 1955 to be amended into The
protection of Civil rights Act” in 1976. The Janata Government promised to
eradicate untouchability within five years.

Social justice demands equality along with liberty. In a


backward country like India, it is also required that the state must make
concerted efforts to improve the downtrodden and weaker sections of the
people. Thus the right to equality, in short, aims at establishing social
democracy.
221

Social justice demands non-exploitation of working class too


Apart from this, it demands harmony and co-operation between labour and
capital, a substantial minimum wage according to the capacity of each
industry and other benefits that improve the standard of living of the
general people of the country.

The preamble to the Constitution of India declares social


justice as one of its ideals and the Directive Principles of state policy are
nothing but restatement of the ideals stated in the preamble. They are
intended to serve, as institution to governments of the states and the
centre to act in a way so as to promote fraternity and equality and to
guarantee justice and liberty to the people. According to L.M. Singhvi,
“Directive Principles are the life giving provisions of the Constitution They
constitute the stuff of the Constitution and its philosophy of social
justice"224.

The term “Socialist” was added in the preamble by the 4 2 nd

Amendment of our Constitution. The concept is not completely new


because the Congress at its Avadi Session adopted "socialism" as its
policy and has been constantly working for the establishment of a
socialistic pattern of society. The significance of this change is that now
the government will be constitutionally bound to bring about socio­
economic changes to ensure decent life to the Indian citizens. It cannot be
denied that in a poor country like India only socialistic policies can ensure
justice - social, economic and political for all citizens.

Article 46 of the Constitution says that the state shall promote


with special care the education and economic interests of the weaker
section of the people, and in particular, of the scheduled castes and
schedule tribes, and shall protect them from social injustice and all forms
of exploitation.

224. S hingvi, L.M. : Journal o f C o n s titu tio n a l and P a rlia m e n tary S tu d ie s , June, 1975
Article 47 says that the state shall regard the raising of the
level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties, and, in
particular the state shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health. Though in persuasion of this direction,
many states in India adopted a policy of prohibition, but at present the
prohibition laws are being relaxed to make up the deficits in the State
Budgets. In State of Bombay Vs. F.N. Balsara22 5 , a reference was made to
the Directive Principles contained in Article 47.

Removal of right to property from the list of Fundamental


Rights is another step towards achieving social justice in India. Its removal
from part III of the Constitution conforms to the socialist philosophy It
makes it easy for any government to go ahead with radical programme m
the social and economic spheres. To improve the conditions of the Indian
women, the Dowry Prohibition Act was passed in 1961. After the Deorala
incident in Rajasthan the Parliament passed the Commission of Sati
(Prevention) Bill in 1987 providing for death sentence or life imprisonment
for abetment of sati, For the working women in India, several enactments
have been made since independence to ensure better working conditions
and to ensure equality with men. The Factories Act 1948, The Mines Act
1952 and the Plantation Labour Act, 1951 are some of the well-known
measures to ensure better working conditions.

Many other important changes have taken place in the sphere


of wages and social security. The Panchayats have been set up in most of
the villages to serve as primary units of administration. Agriculture has
been switching over from traditional to modern methods. Numerous
measures to improve the weaker sections of the society have been taken
by the government. To do away with the extreme concentration of wealth
in the land ownership, Zamindari Abolition Acts have been passed and

225. State of Bombay Vs. F.N. Balsara AIR 1951 SC 318


supplemented by ceiling on land holdings. Thus various steps have been
adopted to achieve social justice for the people of India.

Inspite of various measures taken by the government to


ensure social justice, the courts in India also have given various
judgement to establish social democracy in India. The High Court of
Bombay, while disposing off a case under the Bombay Prohibition Act
(State of Bombay Vs. F.N. Balsara226) took into consideration Article 47 of
the chapter on Directive Principles. Article 38 was referred to by the
Supreme Court in its decision regarding the State of Bihar Vs. Kameswar
Singh227- Again while upholding the constitutional validity of the Minimum
Wages Act, the Supreme Court took into consideration Article 43 and
declared in its judgement of Bijay Cotton Mills Vs. State of Ajmer22e that
the fixation of minimum wages for labourers was not a violation of freedom
of Trade under Article 19.

Now-a-days the citizens do not have to suffer more because


of the lack of judicial remedy. The Public Interest Litigation, known as the
courts' new found law tries to eliminate the lack of judicial remedy The
Supreme Court decided to liberalise the rules of locus standi and to take
up cases of persons who themselves did not suffer any injury but who are
complaining of the inequality and injustices suffered by others. The judicial
development in this respect is a reflection of the deep malady prevailing in
the society. In “Peoples Union for Democratic Rights Vs. Union of In d ia n
the petitioners moved at the plight of Asiad Labour, filed a petition before
the Supreme Court for compliance of various labour laws, namely, the
Contract Labour Act, 1970, Inter State Migrant Workmen Act, 1979, the
Minimum Wages Act, 1948, the Equal Remuneration Act, 1976.

The Indian Constitution tries to ensure justice which is


reflected in the Preamble to the Constitution of India. Granville Austin
opines, “The Indian Constitution is first and foremost a social document
226. State o f Bom bay Vs. F.N. B alsara AIR 1951 SC 318
227. The State of Bihar Vs. K am esw ar Singh 1962 SC 1166
228. B ijaya C otton Mills Vs. The S tate o f A jm er AIR 1955 SC 33
229. P eop le ’s Union for D em ocratic R ights Vs. The Union of India A IR 1982 SC 1473
The majority of its provisions are either directly aimed at furthering th e

guidelines of the social revolution, or attempt to foster this revolution by

establishing the conditions necessary for its achievement. Yet, despite th e

permeation of the entire Constitution by the aim of national renaissance,


the core of the commitment to the social revolution lies in Part III a n d iv,
in the Fundamental Rights and in the Directive Principles of State P o lic y

These are the conscience of the Constitution”230.

The Supreme Court of India has played a very significant ro le

in promoting and protecting social justice for backward classes, s c h e d u le d

castes and scheduled tribes, minorities, women, children, bonded

labourers and industrial workers. While dealing with reservation is s u e s

the court has rightly regarded that backwardness for the p u rp o s e of

discrimination must be decided strictly on economic considerations and

caste should not be the sole criteria.

With the expansion of the concept of social good and w e lfa r e

the judges should also consider the impact of their decisions on the s o c ia l

life of the community and blindly following the letter of the la w w ill n o t

serve the ends of social justice. Along with judiciary both the e x e c u tiv e

and legislature should act in unison for the fulfilment of the fo u n d in g

fathers’ dream to achieve social justice for the people of India.

230. Granville Austin : The Indian Constitution : Corner Stone of a Nation p. 56