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Part III of our constitution, which contains fundamental rights, has been described as the magna carta of India.
Fundamental Rights are certain secured and guaranteed rights, which are generally considered inherent in man 1
and cannot be taken away by the state. The fundamental rights are also called the natural rights which command
higher sanctity than other rights such as legal rights.
Nehru Report: the First demand of Fundamental Rights
When the Constitution of India was being drafted by the Constituent Assembly, it had already become clear that the
fundamental rights were going to be an integral part of Indian Constitution, because throughout the freedom struggle,
the demand for fundamental rights had been on the forefront.
In the Madras session of 1927, a resolution was adopted to draft a “Swaraj Constitution” for India. The Motilal Nehru
Report of 1928 thus came up with the following observation:
It is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will
not permit their withdrawal under any circumstances.
Thus, the Nehru Report demanded inalienable fundamental rights for the people of India. It was basically inspired
by the American bill of rights, which had a great impact on the thinking of Indian Leaders. The Nehru report was
discarded by Simon Commission.
Advisory Committee on Fundamental Rights
The Constitution assembly, when met for the first time on December 9, 1946, the idea of a dedicated Chapter on
Fundamental Rights was not opposed by any member. After adopting the 'Objectives Resolution', moved by Nehru, the
Constituent Assembly appointed an advisory committee under Sardar Vallabhbhai Patel on January 24, 1947. This
advisory committee dealt with the rights of citizens, minorities, tribal and excluded areas. Patel presented the
committee's recommendations on political safeguards for minorities sans separate electorates on August 27. The
recommendations were accepted in the Assembly the following day.
We should note here that Sardar Vallabhbhai Patel was the spirit behind some of the landmark provisions of Indian
principles such as Fundamental Rights, the position of the Prime Minister, the Election Procedure of the President and
the Status of Kashmir.
Sources of Fundamental Rights
The framers of the Indian Constitution were in a happy
position to examine the experience of a variety of Our experience with British rule was painful because basic
rights were dependent on the whim of the rulers. Hence
constitutions from different parts of the world to select the our constitution secures to the people certain basic rights
which cannot be trampled by the state. In this respect
appropriate rights to be safeguarded as fundamental rights. we have followed the American constitution. The
constituent assembly was determined to safeguard certain
Out of them, the Bill of Rights of American Constitution, rights and incorporated them in part III of the constitution.
Please note that wherever the word 'he' is used, it is used to indicate person, a office holder regardless of the gender in constitution of India
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French declaration of Rights of Man and the Irish Constitution of 1935 were most important. These three were from pre
WW-II era. Among those from post WW-II era, the Constitution of Japan and Myanmar attracted them most.
Then, at the same time, the Universal Declaration of Human Rights was on the final stage of drafting at the United
Nations.
Apart from these, the situation and circumstances at home had influenced the framing of the Fundamental rights.
• First of them was the special disability the people of India suffered during the British Rule.
• Second was the division of Indian society into various castes, creeds as a large section of Indian society was
“untouchables”
• Third was the presence of various religious minorities in India whose cultural and other rights had to be
safeguarded.
But the major issue for the constituent assembly was to arrive at selection of rights. The following questions needed
answers before a chapter was to be added to the constitution:
• What rights should be fundamental?
• If the right to life, liberty and property were fundamental, then what about employment and education?
• Are they going to be individualistic focussed?
• Are they going to be justifiable or not justifiable?
• To what extent, the state of India is capable to provide justification to those rights?
It was almost agreeable that at that point of time, it was not the capability of the Indian State to guarantee right to
employment and education to all. This means that it was not the lack of will but was the lack of resources that the state
could not guarantee of kinds of rights. Consequently, the rights were divided into two parts as follows:
1. Justifiable Rights
2. Non-justifiable rights
The Justifiable rights were those enforceable by a court of law. These enforceable rights were incorporated in the
Part III of the Constitution. The non-justifiable rights were incorporated as a directive to the state to take all measures
to provide those rights to individuals without any guarantee. They were incorporated in the part IV of the constitution
and were called Directive Principles of State Policy.
Importance of Fundamental Rights
Part III of the constitution covers all the traditional civil and political rights enumerated in the universal declaration of
human rights. Dr. Ambedkar described them as the most citizen part of the constitution. Fundamental rights were deemed
essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their
government.
These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and
they are calculated to protect the dignity of the individual and create conditions in which every human being can
develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights,
and impose negative obligations on the state not on encroach on individual liberty in its various dimensions.
These rights are regarded as fundamental because they are most essential for the attainment by the individual of his
full intellectual, moral and spiritual status. The object the inclusion of them in the constitution is to establish a
government of law and not of man. The object is to establish of law.
Classification of fundamental rights
The fundamental rights under the constitution can be classified under the following six groups:
1. Right to equality (Arts. 14-18)
2. Right to freedom (Arts. 19-22)
3. Right against exploitation (Arts. 23-24)
4. Right to freedom of religion (Arts. 25-28)
5. Cultural and educational rights (Arts. 29-30)
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6. Right to constitutional remedies (Arts. 32-35)
Fundamental Rights: Are they against the state or individual or both?
Fundamental rights available against state and not private individuals
The conflict between individuals and state is as old as our history. The individuals need personal liberty and state has
the power to decide those liberties. Thus, if the state has absolute power to cut down those liberties of an individual, it
would be tyranny. Thus, the individuals need constitutional protection against the state. The rights which are given to
the citizens by way of fundamental rights are a guarantee against state action as distinguished from violation by the
ordinary law of land. Thus, Fundamental rights are against the state for the protection of individual.
Are all fundamental rights self executory?
Please note that there are certain rights in Indian constitution which don’t need any legislation to make them
enforceable. For example there is no need to enact a separate legislation to make the Right to Equality enforceable.
These are called self executory. At the same time, there are certain rights which are imperfect in just being inscribed to
the constitution and need further legislation to make them enforceable. Such rights are Art. 17 (untouchables) Article
21A (right to free & compulsory education); Article 23 (traffic in human beings; and Article 24 (child labour).
Legal Rights versus Fundamental Rights
The legal rights are protected by an ordinary law, but they can be altered or taken away be the legislature by changing
that law. Fundamental Rights are protected and Guaranteed by the Constitution and they cannot be taken away by an
ordinary law enacted by the legislature. If a legal right of a person is violated, he can move to an ordinary court, but if a
fundamental right is violated the Constitution provides that the affected person may move to High court or Supreme Court.
Here we should note that the Rights to Property was a fundamental right before 1978. The Constitution (Forty-fourth
Amendment) Act, 1978, taken away the Right to property (Article 31) as a Fundamental Right and was made a legal
right under new Article 300 A.
An ordinary right generally imposes a corresponding duty on another individual (and, state in some cases) but a
fundamental right is a right which an individual possess against the state.
Fundamental rights are protected against invasion by the executive, legislature and the judiciary. All
fundamental rights are limitations on legislative power. Laws and executive actions which abridge or are in
conflict with such rights are void and ineffective.
Our constitution guarantees the right to move the Supreme Court for the enforcement of fundamental rights.
Thus the remedy itself is a fundamental right. This distinguishes it from other rights.
The Supreme Court is the guardian of fundamental rights.
Please note that all constitution rights not fundamental rights e.g. right not to be subjected to taxation without
authority of law (art. 265), right to property (art. 300a), and freedom of trade (art. 301).
• A fundamental right cannot be waived. An ordinary legal right can be waived by an individual.
Restrictions or suspension of fundamental rights
If the individual is allowed to have absolute freedom of speech and action, the result would be chaos and disorder. Thus,
absolute and unrestricted individual rights do not, and cannot exist in any modern state.
Our constitution permits reasonable restriction to be imposed on individual’s liberties in the interest of society. The
possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing
authority essential to the safety, health peace, general order and morals of the community. In fact, for the very
protection of these rights the society must arm itself with certain powers. What the constitution therefore attempts to
do by declaring the rights of the people is to strike a balance between individual liberty and social control.
Suspension of Fundamental Rights
The constitution of India provides for the suspension of fundamental rights in certain circumstances. Article 358
provides that when the proclamation of emergency is made by the president under Article 352, the freedoms
guaranteed by Article 19 (Freedom of Speech etc.) are automatically suspended for the period of emergency. Then,
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Article 33 empowers parliament to modify the application of fundamental rights to the armed forces or forces charged
with maintenance of public order, etc. In the interest of discharge of duties and maintenance of discipline, under art. 34,
parliament may by law indemnify any person for anything done in contravention of fundamental rights for
maintenance of order during the operation of martial law.
Article 12: What is a State?
Article 12 defines the “state”. The state includes the Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other authorities within the territory of India or under the control
of the Government of India.
Please note that this definition of an state is not exhaustive but is inclusive. This means that apart from those organs or
bodies which have been enumerated, others may also be covered by the expression state.
Thus, Article 12 is an interpretative article and has been interpreted by the Supreme Court at various times in various
ways.
According to various interpretations of the term state as given by Supreme Court, the State includes the following:
• Executive and legislature of union and states: It would obviously include; union and state government and
parliament and state legislatures. The acting president of India and governors of states, which form part of the
executive. The term government includes a department of government or any institution under the control of a
government department e.g. the I.T. or excise department; the forest research institute, Dehradun etc.
• Authorities: Authority means the power to make laws, orders, regulations, bye-laws, etc. Which have the force
of law and power to enforce those laws? For example the bye-laws made by a municipal committees.
• Local authorities: The expression as defined in sec. 3 of the general clauses act refers to authorities like
municipalities, district boards, Panchayats etc.
• Other authorities: The expression other authorities in art. 12 is used after mentioning the executive and
legislature of union and states, and all local authorities. Thus, it was held that it could only indicate
authorities exercising governmental or sovereign functions. It cannot include persons, natural or juristic e.g.
university unless it is maintained by the state. But, later it was held that ejusdem generis rule could not be
resorted to in interpreting this expression, as there is no common genus running through these named bodies
(in art. 12), nor can these bodies so placed in one single category on any rational basis. This leads us to dig into
various cases in which some bodies were declared other authorities. Here is a summary of what has been
judged as authority and what has been not judged as other authority by the court:
o What is State?
Statutory and non-statutory bodies that get financial resources from government , have deep
pervasive control of government and with functional characters as such as ICAR, CSIR, ONGC,
IDBI, Electricity Boards, NAFED, Delhi Transport corporation etc.
o What is not a state?
Statutory and Non-statutory bodies which are not substantially generally financed by the
government such as autonomous bodies, and government control is not very deeply
pervasive. Example are NCERT.
Is Judiciary a state?
In the constitution, the judiciary is not specifically mentioned in art. 12. The judicial view is that the judgements of
courts cannot be challenged on the ground that they contravene fundamental rights. The court has held that no judicial
proceeding could be said to violate any of the fundamental rights. However, many opine that the judiciary should be
included in the definition of the state and a judge acting as a judge is subject to the writ-jurisdiction of supreme court.
All laws should conform to Fundamental Rights: Article 13
Article 13 makes all laws in force in the country immediately before the commencement of the constitution void so far
they are inconsistent with the provisions of the part III. This means that if there was a law in action before the
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commencement of the constitution which in any ways did not conform to the fundamental rights, the law would stand
void.
Then, the same Article makes clear that in future, the State shall not make any law which takes away the Fundamental
Rights given by Part III. The law here does not only include the legislation but also an ordinance, order, bye-law, rule,
regulation, notification. This means that Parliament can not make any law which takes away the fundamental rights of
the individuals.
This also means that Article 13 provides for the judicial review of all legislations in India, past as well as future. All laws
whether made by a legislature or by a delegated authority and all executive acts must respect and conform to the
fundamental rights. The ordinances promulgated by the president under art.123 or by the governor under art. 213 must
also not be inconsistent with the implement the fundamental rights. Art. 13 imposes an obligation on the state to
respect and implement the fundamental rights and at the same time confers a power on the courts (Supreme and High
courts via 32 and 226 respectively) to declare a law/act void if it infringes a fundamental right. Art.13, thus, provides
teeth to the fundamental rights and makes them justiciable i.e. enforceable in the courts.
Equality before law: Article 14 & Doctrine of Reasonable Classification
Article 14 says that State shall not deny to any person equality before the law or the equal protection of the laws within
the territory of India. Equality before law as provided in the Article 14 of our constitution provides that no one is above
the law of the land. Rule of the Law is an inference derived from Article 14 of the constitution. The article 14 aims to
establish the “Equality of Status and Opportunity” as embodied in the Preamble of the Constitution.
However, Article 14 does not mean that all laws must be general in character or that the same laws should apply to all
persons or that every law must have universal application. This is because all persons are not, by nature, attainment or
circumstances in the same positions.
Thus, the State can treat different persons in differently if circumstances justify such treatment. Further, the identical
treatment in unequal circumstances would amount to inequality.
Thus, there is a necessity of the “reasonable classification” for the society to progress. The Supreme Court has maintained
that Article 14 permits reasonable classification of persons, objects, transactions by the State for the purpose of achieving
specific ends that help in the development of the society. However, Article 14 forbids “class legislation”. Class legislation
makes an improper discrimination by conferring particular privileges upon a class of persons.
However, some argue that the extensive use of device of “reasonable classification” by State and its approval by the
Supreme Court has rendered the guarantee of ‘fair and equitable” treatment under Article 14 illusory. Here comes the
role of “Test of reasonable classification”. The Test of Reasonable Classification says that the classification must be
based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of
the group. This differentia must have a rational relation to the object of classification. There should be a relation
between the differentiations to the object of the classification. If there are no such relations, the reasonable
classification would fail.
For example denial of grant to a private college teaching law while giving grant to other private colleges teaching other
subjects is not permissible. However, reduction of age from 58 years to 55 years is permissible.
Article 15: Prohibition of Discrimination
Article 15 prohibits the state from discriminating any citizen on ground of any religion, race, caste, sex, place of birth
or any of them. It provides that there shall be no restriction on any person on any of the above bases to access and use
the public places. The Article 15(3) empowers the state to make special laws regarding the women and children in the
context of discrimination.
2
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7. Incitement to offence
8. Sovereignty and integrity of India.
These 8 restrictions were embodied in their current form in the constitution First Amendment Bill 1951, this was
necessitated by Romesh Thapar v. State of Madras (1950). In this case the entry and circulation of the English journal
“Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The Supreme court held in
this case that, unless a law restricting the freedom of speech and expression were directed solely against the
undermining of the security of the state or its overthrow, the law could not be held a reasonable restriction though it
sought to impose a restraint for the maintenance of public order.
Please note that When a proclamation of emergency is made under article 352, article 19 itself remains
suspended.
Freedom of Speech and Expression
Article 19 of the constitution provides freedom of speech which is the right to express one’s opinion freely without any
fear through oral / written / electronic/ broadcasting / press.
The Constitution does not make any special / specific reference to the Freedom of Press. The protagonists of the “free
Press” called it a serious lapse of the Drafting committee. However, the freedom of expression includes freedom of
press. Dr. Ambedkar in this context had said on speaking behalf of the Drafting Committee that the press had no special
rights which are not to be given to an individual or a citizen. Dr. Ambedkar further said that the “editors or managers of
press are all citizens of the country and when they chose to write in newspapers they are merely expressing their right
of expression”.
Union of India v. Assn. for Democratic Reforms (2002): One-sided information, disinformation, misinformation and non
information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression
includes right to impart and receive information which includes freedom to hold opinions.
So, the word expression covers the Press. In modern times it covers the blogs and websites too.
Freedom of Assembly
The constitution guarantees right to hold meetings and take out processions. The processions and meetings should be
unarmed and peaceful. This right may be restricted in the interest of the public order or sovereignty and integrity of the
country.
This article has also been reviewed an interpreted by the Supreme Court many times. It’s worth note that section 144 of
the Sub-section (6), of the Code of Criminal Procedure can be imposed by the government in certain areas which makes
the assembly of 5 or more people an unlawful assembly. This section was challenged in the supreme court via Kamla
Kant Mishra And ors. vs State Of Bihar And ors. Case (1962), on the basis that it violates article 19(1) of the constitution
and thus is invalid. The Supreme Court in its judgment held that power conferred upon the State Government under
Section 144, Sub-section (6), of the Code of Criminal Procedure, is constitutionally valid.
Section 129 of the Code of Criminal Procedure authorizes the police to disperse any unlawful assembly which may
cause disturbance to public peace.
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Freedom of Association
The constitution declares that all citizens will have the right to form associations and unions.
Freedom of Movement
The freedom of movement is guaranteed by the constitution and citizens can move from one state to another and
anywhere within a state. A person free to move from any point to any point within the country’s territories. There are
certain exceptions such as Scheduled Tribes areas and army areas.
Freedom of Residence:
An Indian Citizen is free to reside in any state except Jammu & Kashmir. Again this is subject to certain restrictions.
Freedom of Trade & occupation:
The constitution of India guarantees each of its citizen to do trade , occupation or business anywhere in the country.
Article 20: Protection in respect of conviction for offences
⇒ Article 20(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, nor 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.
⇒ Article 20(2): No person shall be prosecuted and punished for the same offence more than once.
⇒ Article 20(3) No person accused of any offence shall be compelled to be a witness against himself.
This article embodies the fundamental principles of natural justice and provides protection against arbitrary and
excessive punishment to any person who commits an offense.
Article 21: Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
This article in the original drafted constitution used the words “no person is to be deprived of his life or liberty without
due process of law”.
The drafting committee changed it to “No person shall be deprived of his life or personal liberty except according to
procedure established by law" giving the reason that liberty should be qualified by the word personal, so that
unnecessary interpretation may be avoided.
The expression "Procedure established by law" is more definite phrase and this phrase finds the place in the Japanese
Constitution of 1946. It implies that life and personal liberty of a person cannot be encroached upon arbitrarily without
the proper sanction and provision of law.
Article 22: Preventive Detention
The Article 22 of the constitution of India is also a very important Article which has given rise to so many controversial
legislations. The issue related to this Article is “issue of preventive detention’. Our purpose is to get the basic idea of the
“preventive Detention” and related contemporary issues.
Article 22 of the constitution of India provides that :
1. A person cannot be arrested and detained without being informed about the grounds of such arrest.
2. This means that before a person is arrested, he/ she must be informed that he is being arrested and reason why he
/ she is being arrested.
3. A person who is arrested cannot be denied to be defended by a legal practitioner of his choice.
4. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
5. Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
6. The custody of the detained person cannot be beyond the said period by the authority of magistrate.
7. The Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are
not available to the following:
• If the person is at the time being an enemy alien.
• If the person is arrested under certain law made for the purpose of “Preventive Detention”
The first condition above is justified, because when India is in war, the citizen of the enemy country may be arrested.
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But the second clause was not easy to justify by the constituent assembly. This was one of the few provisions which
resulted in stormy and acrimonious discussions.
Rights against Exploitation: Article 23 & 24
Article 23 & 24 of Indian Constitution deal with the Right against Exploitation. Article 23 prohibits the traffic in human
beings and forced labor such as begar.
Begar was a system in which government (yes, the British Government officers) and Zamindars used to compel the
persons to carry their goods when they moved from one place to other place and this was a forced labor in which no
remuneration was paid.
The Human Trafficking is the illegal trade in human beings for the purposes of commercial sexual exploitation,
prostitution or forced labor. It is the modern form of slavery.
As per the provisions enshrined the constitution the government passed " The Immoral Traffic (Prevention) Act 1956
and " The Bonded Labour System
1. Even when the state takes up relief works such as famine or flood relief, it cannot
(Abolition) Act 1976. pay less than minimum wages.
What is Bonded Labor? 2. When the prisoners are sent for the rigorous imprisonment, they must be paid
reasonable wages. Please note that as per Supreme Court if a prisoner is not paid
Bonded Labour or Forced Labour is wages, it is NOT a violation of article 23. But if the under trials, persons sentences to
forbidden. The Forced Labour means not simple imprisonments and those who have been detained under preventive
detention can NOT be asked to do manual work. They can do work if they wish to do
only the physical and legal force but also out of their choice and it would require equitable wages.
arising out of the compulsion of the
economic circumstances.
In this context, the Supreme Court of India in People's Union for Democratic Rights and others Vs. Union of India and
others [1982] also known as "Asiad Workers Case" gave the following explanation:
"We are, therefore, of the view that when a person provides labour of service to another for remuneration which is less
than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words
"forced labour" under Article 23 (of the Constitution of India)."
Prevention of Child Labour: Article 24
Article 24 mandates that No child below age of 14 years shall be employed to work in any factory or mine or engaged in
any other hazardous employment.
Similarly Article 39(f) lays down certain directive principles of policy to be followed by the State:
Article 39 The State shall, in particular, direct its policy towards securing:
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Child Labour: Some Implications:
1. It’s worth note that The Employment of Children Act 1938 was among the first acts to prevent child labour.
2. The provisions of this act did not include the construction work on projects because the construction industry was not a
process specified in the Schedule to the Act. But construction work & projects were held equal to hazardous occupation
by the Supreme Court in the People’s Union for Democratic Rights v. Union of India (1982) case.
3. Similarly in the M.C.Mehta v. State of Tamil Nadu (1991) case, Supreme Court directed that children should not be
employed in hazardous jobs in factories for manufacture of match boxes and fireworks.
4. In Gaurav Jain v Union of India: [1997] case, the Supreme Court held that the children of the prostitutes have the right to
equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life
without any pre-stigma attached on them.
Right to Freedom of Religion: Article 25-28
Article 25. Freedom of conscience and free profession, practice and propagation of religion.
Article 26. Freedom to manage religious affairs.
Article 27. Freedom as to payment of taxes for promotion of any particular religion.
Article 28. Freedom as to attendance at religious instruction
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Article 25 to 28 of the constitution of India guarantees the right of Freedom of religion.
Though the Right to freedom of speech and expression (Article 19) envisages the philosophy of freedom of religion in
India because despite of the creation of Pakistan, a lot of Muslims were scattered all over India, part from Sikhs,
Parsees, Christians and others. Yet the constituent assembly made it explicit by incorporating a separate group of
Articles as per a agreement with / recommendation of Advisory Committee on Fundamental Rights, Minorities, Tribal
and Excluded Areas (Chairman: Vallabhbhai Patel) and Minorities Sub-Committee (Chairman: H.C. Mookherjee).
• Before the Constitution 42nd amendment Bill added the word “secular” in the constitution of India, the word
“secular” appeared only in “Article 25”.
• India is a secular country and there is no state religion. India also does not patronizes any religion.
• The Constitution 42nd amendment Act made the above thought “explicit” in the constitution.
Is being a Hindu means No secular?
In Our country, Hindus are in majority. However, secularism means that in India, state shall observe neutrality &
impartiality to all religions. Here, all religions are respected and all beliefs & methods of worship are accepted. All
minority religions enjoy full freedom and in certain cases protected. This is opposite in some neighbouring countries
such as Pakistan and Bangladesh which were part of India but later became Islamic countries. Secularism does not
mean that state is hostile to a particular religion. If a person is a Hindu, he / she do not cease to be a secular. The
Supreme Court in Pannalal Pitti v/s State of Andhra Pradesh mandated that while Article 25 and 26 grants religious
freedom to minority religions such as Islam and Christianity, yet they do NOT intend to DENY the same guarantee to
Hindus.
Article 25 mandates that subject to public order, morality and health, all persons enjoy the freedom of conscience
and have the right to entertain any religious belief and propagate it.
What is the meaning of subject to public order, morality and health?
This means that Article 25 & 26 are not absolute. No person can do such religious things which affect the public order,
morality and health. For example no one has right to conduct human sacrifice. No one can perform worship on busy
highway or other public places which disturb the community.
Is right to performing rituals protected?
Yes, it is protected. But the state by law may regulate the economic, financial, political, or other activity which may not
be a direct part of religion. For example management of Temples can be controlled by the state.
Does Constitution allow use of loudspeakers in temples / mosques etc.?
Using the loudspeakers for making noise is not guaranteed by the Constitution. The protagonists of this thought took
shelter of Article 19(1) freedom of speech and right to expression. However, nobody can claim a fundamental right to
create noise by amplifying the sound of his speech with the help of loudspeakers.
In this context, cracking of fireworks on Diwali & using loudspeakers for Ajan in the morning had also come under
Supreme Court’s scrutiny. The Court restricted the time of bursting the firecrackers, and it does not in any way violate
the religious rights of any person as enshrined under Article 25 of the Constitution.
The festival of Diwali is mainly associated with Pooja performed on the auspicious day and not with firecrackers. In no
religious textbook it is written that Diwali has to be celebrated by bursting crackers. Diwali is considered as a festival of
lights not of noises.
In this context, the Government of India framed and published Noise Pollution Control and Regulation Rules, 1999.
This legislation was amended in 2002 and empowered the State Governments to permit use of loudspeaker or public
address system during night hours (between 10 pm and 12 pm mid-night) on or during the cultural or religious
occasions for a limited period not exceeding 15 days.
The Supreme Court in Church of God in India v. K.K.R. Majestic Colony Welfare Assn.,(2000) held that the Court may issue
directions in respect of controlling noise pollution even if such noise was a direct result of and was connected with
religious activities. The mandate included the following lines:
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"Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it
preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name
of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or
during daytime or other persons carrying on other activities cannot be permitted".
Article 26: gives every religious group a right to establish and maintain institutions for religious and charitable
purposes, manage its affairs, properties as per the law. This guarantee is available to only Citizens of India and not to
aliens.
Article 27: This Article mandates that no citizen would be compelled by the state to pay any taxes for promotion or
maintenance of particular religion or religious institutions.
Article 28: This Article mandates that No religious instruction would be imparted in the state funded educational
institutions.
Freedom of Religion and Issue of Conversion
In India, religious conversion is a thousand year old phenomenon. The forced conversion started with the invasion of
Islamic adventurers, when Hindus were forcibly converted to Muslims. The Qaimkhani Muslims are such clan which
was Hindu Rajputs 600 years ago.
During the British Era, the forced conversion into the Christian belief started and was somewhat protected by the
governance. Before India's independence, Udaipur State Conversion Act of 1946 along with Raigarh State Conversion
Act of 1936 were some acts by the princely states which tried to make the forced conversion unlawful.
In this context, In 1954 Congress government in Madhya Pradesh set up Niyogi Committee. This committee was
chaired by Justice Bhawani Shankar Niyogi, a retired Chief Justice of the Nagpur High Court. This committee submitted
its report in 1956. The Committee was set up in response to the Bharatiya Jana Sangh's protest movement, "The Anti-
Foreign Missionary Week".
This committee found that 3 “schools and hospitals were being used as means of securing converts.”Reference was also
made to the practice of the Roman Catholic priests or preachers visiting newborn babies to give ‘ashish’ (blessings) in
the name of Jesus, taking sides in litigation or domestic quarrels, kidnapping of minor children and abduction of women
and recruitment of labour for plantations in Assam or Andaman as a means of propagating the Christian faith among
the ignorant and illiterate people"
The Congress government of Madhya Pradesh as well as Sangh Parivar alleged that Christian missionaries were
creating ‘a state within a state’ and observed that the ‘philanthropic activities of Christian missionaries are a mask for
conversions.
Consequently, in 1968, the Madhya Pradesh Government passed "The Madhya Pradesh Freedom of Religion Act of
1968".
This act required an affidavit from the convert that he was not under pressure, force or allurement.
In the same year, the Orissa state government passed "The Orissa Freedom of Religions Act of 1968" This act mandates
that
"No person shall convert or attempt to convert either directly or otherwise any person from one religious faith to
another by the use of force or by inducement or by any fraudulent means nor shall any person abet any such
conversion"
Both the above acts penalized the forced conversion. The move was later followed by Arunachal Pradesh, Tamil Nadu,
Gujarat and lately Rajasthan. The Government of Rajasthan has its own act which was passed in 2008.
Seven of 28 states in India have passed anti-conversion laws viz. Gujarat, Orissa, Madhya Pradesh, Chhattisgarh and
Himachal Pradesh, Arunachal Pradesh & Rajasthan.
Issue of Conversion in Supreme Court:
3
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Vindicated by Time: The Niyogi Committee Report (edited by Group:
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The act passed by the Madhya Pradesh Government was challenged in the Supreme Court. The landmark case was
Stanislaus versus the State of Madhya Pradesh. It was pleaded before the Supreme Court that the right to propagate
includes the right to convert. However, it was rejected by the Supreme Court and honorable apex court mandated that
forced conversions enjoy no protection under the provisions of Article 25. Similar pleas were admitted to Supreme
Court in case of Arunachal Pradesh and Gujarat and subsequently the pleas were rejected.
Implications of Article 25 & 26 not being absolute
1. Use of loudspeakers is not an integral part of the religions so the government can restrict on the use of loudspeakers for
Ajan and Bhajan Kirtans.
2. Followers of no religions have right to stop the processions of other religions on the ground that it is a nuisance.
3. State may abolish "Cow Slaughter" as sacrifice of Cow on Bakrid is not an essential part of the religion.
4. Possessing a Kirpan is an essential part of professing Sikkism and it is protected right of Sikhs. (Article 25 Explanation
I)
5. The Aligarh Muslim University was established under an act of parliament so Muslims can NOT claim to run this
university as per provisions of Article 26 & Article 29.
6. None of the rights guarantee that a Brahmin only can perform rituals of Hinduism.
Cultural & Educational Rights: Article 29-30
Both Article 29 and Articles 30 guarantee certain right to the minorities. Article 29 protects the interests of the
minorities by making a provision that any citizen / section of citizens having a distinct language, script or culture have
the right to conserve the same. Article 29 mandates that no discrimination would be done on the ground of religion,
race, caste, language or any of them.
Article 30 mandates that all minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.
• Article 30 is called a Charter of Education Rights.
• Madarsas are administrated by the Article 30.
Article 30 provides an absolute right to the minorities that they can establish their own linguistic and religious
institutions and at the same time can also claim for grant-in-aid without any discrimination.
Issues Related to Minority Institutions
Can a Madarsa 4 Can be acquired by the Government?
Yes, The article 30(1A) was inserted by the 44th Amendment Act 1978. This article provides that if while making any
law which provides for the compulsory acquisition of any property of any educational institution established and
administered by a minority, the State shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. This
clause makes it clear that such acquisition requires conformable compensation.
Can a Madarsa teach Computers?
In context with the Kerala Education Bill 1957, The supreme court of India said that:
Article 30 does not say that minorities based on religion should establish the educational institutions for teaching their
language / religion only. The minorities would desire that their children be eligible for higher university education, the
education institutions of minorities would also include the general secular education.
Article 31: Repealed
Article 19(1)(f) Right to acquire, hold and dispose of property and Article 31 were repealed by the Constitution 44th
Amendment Act 1978. A new part was inserted in Part XII of the Constitution and right to property has been
transferred as Article 300 A. This will be detailed when we study part XII. The main points are:
• Right to Property is not a fundamental right but a legal right
4
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• One can not approach supreme court for remedy under article 32 on violation of his / her right to property
because it is not a fundamental right.
Article 32: Right to Constitutional Remedies
Article 32 was called “the very soul of the constitution and the very heart of it” by Dr. B R Ambedkar.
Mere declaration of the fundamental right is meaningless until and unless there is an effective machinery for
enforcement of the fundamental rights. So, a right without a remedy is a worthless declaration. The framers of our
constitution adopted the special provisions in the article 32 which provide remedies to the violated fundamental rights
of a citizen.
Article 32 (1) says:
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this
Part is guaranteed.
Article 32 (2) says:
The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the
rights conferred by this Part.
Article 32(3) Says:
Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower
any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2).
And Article 32 (4) Says:
The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
All the 4 sections of article 32 are very important. Please note the following points:
1. Article 32(1): Guarantee to remedy
2. Article 32(2) : Power of supreme court (and high courts) to issue writs
3. Article 32(3) : Power of parliament to confer the power to issue writs to other courts (so far this power is not exercised.
4. Article 32(4) : Suspension of Fundamental Rights.
Supreme Court which is guardian of the fundamental rights in India has three kinds of jurisdiction viz. original,
appellate & advisory.
Article 32 uses the power of original jurisdiction of the Supreme Court by which any person who has a complaint
that his / her fundamental right has been violated within the territory of India may move directly to the Supreme Court.
He / She may move to the High Court does not imply that he/ she cannot move directly to the Supreme Court.
Original jurisdiction of the Supreme Court extends to any dispute between
• Government of India and one or more States
• between the Government of India and any State or States on one side and one or more States on the
other or between two or more States, if insofar as the dispute involves any question (whether of law or
of fact) on which the existence or extent of a legal right depends.
In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to
enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.
Types of Writ
A writ means an order. A warrant is also a type of writ. Anything that is issued under an authority is a writ. In this
sense, using the power conferred by Article 32, the Supreme Court issues directions, orders or writs.
As we know that Article 32(3) confers the power to parliament to make law empowering any court to issue these writs.
But this power has not been used and only Supreme Court by Article 32 (2) and High Courts (Article 226) can issue
writs.
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Meaning of habeas corpus, mandamus, prohibition, quo warranto and certiorari
Habeas corpus, mandamus quo warranto and certiorari are Latin words. They have different meaning and different
implications. Let’s understand one by one:
Writ of Habeas corpus
By Habeas corpus writ the Supreme Court or High Court can cause any person who has been detained or imprisoned
(this means violation of his fundamental right to liberty) to be physically brought before the court. The court then
examines the reason of his detention and if there is no legal justification of his detention, he can be set free.
Is body (physical presence) compulsory?
Ordinarily yes, but in Kanu Sanyal v/s District Magistrate (AIR) (1974) case the Supreme Court laid down that the
physical presence is NOT a part of the writ.
When the writ of Habeas corpus is issued?
• When the person is detained and not produced before the magistrate within 24 hours
• When the person is arrested without any violation of a law.
• When a person is arrested under a law which is unconstitutional
• When detention is done to harm the person or is malafide.
Who can file the petition?
A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas
corpus is an exception to that. This is because, a person detained or imprisoned may be severely handicapped. So
anybody on behalf of the detainee can file a petition.
Is it applicable to Preventive Detention?
Yes, it is applicable.
What is the core philosophy of Habeas corpus ?
To set at liberty a person who is confined without legal justification.
Can Habeas corpus issued against state and individuals?
Yes, the writ can be issued against authorities of states or individuals or organizations.
Writ of Mandamus
Mandamus means “we order”. The Supreme Court or High Court orders to a person, coropration, lower court, public
authority or state authority.
What order?
The order to do something. It’s a command or directive to perform something or some act.
What kind of act?
Performance of the ministerial acts or public duty. The Mandamus is also called a wakening call. It awakes the sleeping
authority to perform their duty. It demands an acivity and sets the authority in action.
Who can file a writ petition?
A person can file a writ petition against anybody who seeks a legal duty from that person.
What is legal duty?
Legal duty means some duty which is by a law viz. constitution, act, subordinate, legislation etc.
But did the person move to the authority?
Yes, the petition requires that the person moved to the authority and the authority refused to do this duty. This is
demand and refusal.
What is the core philosophy of Mandamus?
The core philosophy is that a person or authority despite of fulfillment of such conditions which demand an action
refuses to act then, the Supreme Court or High Court can ask the person or authority to perform that duty.
For example, if a person fulfills all the preconditions & formalities to be issued a license but still the authority refuses to
issue a license even after that person approaches to that particular authority, the person may seek writ petition.
What are essential conditions to file to request the court issue Mandamas writ?
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• The person must have a real or special interest in the subject matter.
• The person must have specific legal right
• No other equally effective remedy is there.
The third condition can be understood by the example:
A person fulfills all the conditions of an appointment and the authority has completed the selection procedure then he
must be issued an appointment letter. But when the authority refuses to do this duty, the person is eligible to file a writ
petition under Mandamus.
Writ of Prohibition
The writ of prohibition means that the supreme court and High Courts may prohibit the lower courts such as special
tribunals, magistrates, commissions, and other judiciary officers who are doing something which exceeds to their
jurisdiction or acting contrary to the rule of natural justice.
This implies that if a judicial officer has personal interest in a case, it may hamper the decision and the course of natural
justice. Writ of Prohibition means to be issued in this case.
Writ of Certiorari
Certiorari means a writ that orders to move a suit from a inferior court to superior court.
Quo Warranto
Quo warranto means “by what warrant”?
This means that Supreme Court and High Court may issue the writ which restrains the person or authority to act in an
office which he / she is not entitled to. This writ is applicable to the public offices only.
Power of parliament and Suspension of Fundamental Rights: Article 33 & 34
Article 33 & 34 maintain that parliament has the power to modify the application of the fundamental rights to the
members of armed forces and Police forces. This is required to make the proper discharge of their duty.
This article means that in cases of a disaster or other situations such as Martial law, Curfew etc. the parliament by law
may indemnify the persons of these forces for their acts.
Article 35 provides that the freedoms guaranteed under the article 19 automatically get suspended on the proclamation
of National Emergency. For this Article 359 empowers the president to suspend the fundamental rights given by other
articles also. However, Article 20 (protection in respect of conviction for offences) and Article 21 (Protection of life and
personal liberty) cannot be suspended by any order under article 359.
Article 33 empowers the Parliament to restrict or abrogate the application of the fundamental rights in relation to the
armed forces, paramilitary forces, police etc. But it does not mean that the article itself would abrogate any rights. The
operation of this article depends upon the parliamentary legislation, though these legislations don't need to refer
this article. Such legislation by parliament of India may restrict the operation of any fundamental rights such as
Equality, Freedom of Expression, Freedom of association, Personal Liberty etc. One such article is Police Forces
(Restriction of Rights) Act, 1966. This act was even challenged in Supreme Court but was held valid. Some acts such as
Army Act 1950, Navy Act 1950, Air Forces Act 1950 were the major acts enacted by parliament of India as per this
article 33 of constitution of India.
Now, the question is that why there is limitation of fundamental rights to these people who serve the nation?
The answer itself is in the question-because they are serving the nation. We can imagine that if the members of
armed forces are given right to demonstrations, strike, form association, form unions, what would have happened.
Even, the barbers, musicians, carpenters, mechanics etc. who are employees of the armed forces also don’t have all the
fundamental rights which are available to the citizens.
Parliament is empowered to make a law determining “to what extent any of the right shall, in their application to (a)
the members of the Armed forces or (b) the members of the armed forces charged with the maintenance of public
order", be restricted or abrogated so as to ensure the proper discharge of their duties. They need to maintain discipline
and that is what this article demands.
Story of Reservation
Introduction
Article 14 of our constitution says that the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. By clause (1) of article 15, the constitution says that State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
By Clause (2) of the Article 15, Constitution makes the accessibility to shops, public restaurants, hotels and places of
public entertainment, wells, tanks, bathing ghats, roads and other places of public use which are fully or partly funded
by the Government to all people belonging to any caste, creed, race, sex or whatever.
Then, Constitution makes further clarification by clause 3 of Article 15 that State is empowered to make special
provisions for women and children.
The constitution was enacted with the above three clauses in the article 15. At the same time, we find that Article 46,
which is one of the directive principles of state policy, says that state should promote with special care the educational
and economic interests of the weaker sections of the people and protect them from social injustice.
But, if the government had done so, it would have been challenged in the court to be discriminatory. So, in order that any
special provision that the State may make for the educational, economic or social advancement of any backward class of
citizens may not be challenged on the ground of being discriminatory, the government brought the first amendment of
the constitution in 1951 and added new clauses 15(4) and 15 (4) which became the foundation bricks of
Reservation Policy in India.
By article 15(4) & Article 15(5), the state was empowered to make special provisions for the advancements of any
socially and educationally backward classes of the citizens or for the SCs and STs.
While the Article 15 is general in its scope, in the Article 16, the equality of opportunity has been emphasised. Article
16 says that no person will face discrimination in the matter of opportunity. Then this Article mentions seven
prohibited grounds viz. religion, race, caste, sex, descent, place of birth, residence or any of these seven, on which
discrimination is disallowed in India.
Discrimination on the basis of residence
Article 16(3) says that only the parliament can make any law prescribing employment or appointment for a
government job on the basis of residence. This means that if parliament finds it suitable, it can discriminate on the
ground of residence. Here, you should note that parliament is empowered to make a recruitment within a state or union
territory in which person's "residence" may get preference. But at the same time, the State Governments are NOT allowed
to make such a recruitment in which residence of a person gets preference in state government jobs.
For example, in October 2011, the Bengal Police had given a recruitment notification in which provides for jobs for not
only specific districts but even particular areas. This was against the article 16(3) of the constitution. In "Kailash
Chandra Sharma versus the State of Rajasthan and others”, the Supreme Court observed that residence within a district
or rural areas of that district should not be a valid basis for classification for the purpose of public employment.
Right to Education
Children in our constitution
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At present, there are five articles in the constitution of India which have Children as their special focus. These articles are
Article 21A, 24, 39 & 45 and 51A (k). Thus special provisions for children find place in our constitution in Fundamental
Rights, Directive Principles as well as Fundamental Duties.
Article 21A: The Right to Education inserted in constitution via 86th amendment act.
Article 24: No child below the age of 14 years shall be employed to work in any factory or mine or engaged in
hazardous employment.
Article 39 (f): The State shall, in particular, direct its policy towards securing—
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against moral and
material abandonment.
Article 45 : The State shall endeavour to provide, within a period of ten years from the commencement of this
Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
Article 51A(k): who is a parent or guardian to provide opportunities for education to his child or, as the case
may be, ward between the age of six and fourteen years.
th
The changes in constitution by 86th amendment Act
The 86th Amendment Act 2002 had made the following changes in our constitution:
Change in Fundamental Rights:
A new article 21A was inserted below the Article 21 which made Right to Education a Fundamental Right
for children in the range of 6-14 years. This article reads:
“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such
manner as the State may, by law, determine”
Change in DPSP:
Article 45 which originally stated:
The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free
and compulsory education for all children until they complete the age of fourteen years.
Was substituted as
The State shall endeavor to provide early childhood care and education for all children until they complete the age of six
years 1."
Change in Fundamental Duties
Article 51A was also amended and after clause (J), the clause (k) was added which says:
"who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the
age of six and fourteen years.".
As per the above amendments, the 86th Amendment Act came up with the following:
x It made Right to Education a Fundamental Right for Children from Age 6-14.
x It made education for all children below 6 years a Directive Principle for State Policy (DPSP).
x It made the opportunities for education to child a Fundamental duty of the parents of
the children.
Thus, we see that Right to Education is acquired by a child when he / she attains the age of 6 years. The day this 86th
Amendment Act was passed, a huge crowd of 70,000 people gathered at the capital and demanding that education be
made a fundamental right also for children up to six years of age.
Background to RTE
9 The 1986 National Policy of Education DID NOT make the education compulsory.
9 The first official document on the education right of children was Ramamurti Committee Report in 1990
which reviewed the National Education Policy 1986. This committee mentioned that not paying attention to
1
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the right to education was the most fundamental problem of our education system. Ramamurti Committee
also noted that “the time has come to recognize “Right to Education’ as a fundamental right of the Indian
Citizens.
9 In 1991, a book by Myron Wiener titled “ The Child and State in India: Child labour & Education in
comparative perspective” noted states failure to eradicate child labour and enforce compulsory education.
9 In 1992, India became signatory to the UN Convention on Rights of the Child. Article 28 of this Convention
“asks the states to recognize right of education for every child and make primary education compulsory”. At
that time, it was not in line with the constitution’s provision in article 51(c) which says: State shall endeavor
to foster respect for international law and treaty obligations. (DPSP)
9 In 1993, Supreme Court Gave its landmark judgment in the Unnikrishnan JP vs State of Andhra Pradesh &
Others. In this case, SC held that Education is a Fundamental right flowing from Article 21.
9 In 1994, The United Front Government set up Saikia Committee to examine the proposal of making right to
free and compulsory education.
9 In 1997, the Saikia Committee Reported that Constitution of India should be amended to make the right to
free education up to 14 years of age a compulsory right. It also recommended making an explicit fundamental
duty of every parent to provide opportunities for elementary education.
9 In 1997, the United Front Government introduced 83rd Amendment Bill, 1997 which encompassed insertion
of article 21A & omitting article 45 of the Constitution. This amendment bill had an additional financial
memorandum that outlined the costs that would go into making education for children in the six to 14 age
groups a fundamental right for a 10-year period.
9 Tapas Majumdar Committee was set up by the NDA Government in 1999 to look into the financial
implications of operationalising the 83rd Amendment Bill introduced by the United Front government in
1997, seeking to make the right to free and compulsory education up to the age of 14 a fundamental right.
The 83rd Amendment Bill was renamed the 93rd Amendment Bill and significant changes were incorporated
in it. The tapas majumadar committee recommended that even children belonging to the poorest sections of
society must receive education that was comparable in quality with the best. It did not advocate low-cost
alternatives.
9 The 93rd Amendment Bill was discussed and passed By Lok Sabha on 27 November 2001 and Rajya Sabha on
14th May 2002. The date of the bill was to amended from 2001 to 2002 so it again went to Lok Sabha.
9 After ratification by the President, it became Constitution 86th Amendment Act.
9 In pursuance with article 21A, which says that “The State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as the State may, by law, determine” and
Constitution 86th amendment act, it was now up to the state (means central government) to determine how
and in which manner the Free & compulsory education is to be provided.
9 The 86th amendment provided for a follow-up legislation, which culminated in Right to Education Bill 2005,
Right to Education Bill 2008 and finally Right to Education Act 2009.
Right to Education Act: Main Features
Education as Fundamental Right:
" Every Child of the age group of 6-14 years shall have right to free and compulsory Education.
" No child is liable to pay any kind of fee/ capitation fee/ charges. A collection of capitation fee invites a fine up to 10
times the amount collected.
Children from Disadvantaged Group:
" This right provides that “ child belonging to disadvantage group” means a child who
1. Belongs to SC & ST
2. Socially backward class.
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3. Geographical, Linguistic, Gender or such other matters.
4. Is differentially abled.
The Right to Education Act 2009 did not initially talk about “Physically disabled” children. To enable such provisions,
the Right of Children to Free & Compulsory Education (Amendment) Bill 2010 was introduced in the Rajya Sabha on
April 16, 2010. This bill was later referred to a standing committee on Human Resource Development. The bill was
passed in both the houses of the parliament by May 2012 thus expanding the definition of “Child belonging to
disadvantaged group”. Now this group shall also include the children with disability. Disability means blind, leprosy
cured, hearing impaired, locomotor disabled and mentally ill. It also includes autism, cerebral palsy, mental
retardation & multiple disabilities. These children have the same right as of other children. Please note that Right to
Education of persons with disabilities until 18 years of age is laid down under a separate legislation- the Persons
with Disabilities Act. A number of other provisions regarding improvement of school infrastructure, teacher-student
ratio and faculty are made in the Act.
Teachers:
This act provides that the states will ensure that no non-teaching work is given to the teachers. The act recommends
quality teachers and mandates that untrained teachers will have to upgrade themselves in 5 years.
Schools:
The act has listed minimum infrastructure requirements as a part of the schools and mandates the states to ensure
that schools have these requirements. The schools which don’t conform to the quality standards as mentioned in the
act, will upgrade themselves in 3 years or face derecognition.
Reservation:
The act mandates 25% reservation for disadvantage sections of the society as defined by the act.
Management Committees:
The act mandates that parents are to constitute the 75% members in the management committees. The School
management committees are to have 50% women members.
Screening:
This act makes the screening of students / parents unlawful. It invites fine up to ` 25000 in the first instance and
double in every successive violations.
Examinations:
No child can be put through any exam, not even class V & Class VIII board examinations.
Number of Teachers:
The act mandates number of teachers as follows: (please note that in newspapers, different news have written
different ratios. The following list is reproduced from the official document 2)
Class I to Class V
9 Up to 60 children : 2 teachers (Pupil Teacher Ratio: 30:1)
9 61 to 90 children : 3 teachers (Pupil Teacher Ratio: 30:1)
9 90 to 120 : 4 teachers (Pupil Teacher Ratio: 30:1)
9 121-200 : 5 teachers (minimum Pupil Teacher Ratio: 40:1)
Class VI to Class VIII
9 One teacher per class each for 1. Science and math 2. Social Studies 3. Languages.
9 One teacher for 35 children
9 If there are more than 100 children then 1. A full time teacher 2. Part time instructors for Art, Health and
Physical Education, Work Education.
Corporal punishment:
The Right to Education Act 2009 makes corporal punishment unlawful.
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Private Teaching / Tuitions:
Clause 28, Chapter 28 of the act mandates that no teacher shall engage himself / herself in private teaching.
Monitoring:
The act states that National & State Commissions for protection of Child rights would monitor the effective
implementation of measures in this act and inquire into complaints.
National Advisory Council:
The act provides that the central Government shall constitute a National Advisory Council of maximum 15 members
which shall advise the central government on implementation of the various provisions of the act.
RTE Implementation Issues: Share of Burden
The Right to Education Act has made state and local bodies accountable for its implementation by 2013. Right from the
day one of its enactment, the states have been clamouring that these bodies do not have the financial capacity to cover
all the schools needed for universal education. Thus it was clear that the central government (which collects most of
the revenue) will be required to subsidize the states.
Consequently, the Anil Bordia Committee was set up by the HRD ministry in 2009-10 to harmonise the Sarva
Shiksha Abhiyan and the RTE.
The Anil Bordia committee was asked to study the funds requirement and funding initially estimated that Rs 171,000
crores would be required in the next five years to implement the Act. This committee argued for a higher financial
burden for the centre. The committee said that said that sharing ratio of 55:45 (for the current year) and 50:50 (in
2011-12 ) would be unfavourable to the states as they would have to practically double their allocation.
However, in April 2010 the central government agreed to share the funding for implementing the law in the ratio of 65 to
35 between the centre and the states, and a ratio of 90 to 10 for the north-eastern states.
However, later, this figure was upgraded to Rs. 231,000 crores. When the ` 24,000 crore awarded by the Finance
Commission is also taken into account, the centre's share effectively works out to 68% while that of the states' 32%.
A report on the status of implementation of the Act was released by the Ministry of Human Resource Development on
the one year anniversary of the Act. The report admits that 8.1 million children in the age group 6-14 remain out of
school and there’s a shortage of 508,000 teachers country-wide.
A RTE Forum report representing the leading education networks in the country, however, challenging the findings
pointing out that several key legal commitments are falling behind the schedule. The Supreme Court of India has also
intervened to demand implementation of the Act in the Northeast. It has also provided the legal basis for ensuring pay
parity between teachers in government and government aided schools.
RTE Challenged by Private Schools
This Right to Education Act defines the schools 3 as recognized schools-
9 that are aided by the government and local authorities.
9 that are not aided by the government and school authorities.
This means that private schools have not been ruled out by the act. This mandate is for all schools without exception.
The private schools are for making profits. Those who are anti this act can say there this affects their business and their
fundamental right provided by article 19 (1g) (to practice any profession, or to carry on any occupation, trade or
business). When we analyse this issue we can easily figure out that the above clause (g) to practice any profession or
business is virtually controlled by article 19 (6) which says that nothing in sub-clause (g) of the said clause shall affect
the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right conferred. Still the RTE was
challenged in the Supreme Court as an unconstitutional infringement on the rights of private and minority
schools. An association of schools had challenged the constitutional validity of RTE Act in the Supreme Court saying
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the government was trying to enforce reservation and regulate affairs of private unaided and minority educational
institutions.
On 12 April 2012, a three judge bench of the Supreme Court delivered its judgement by a majority of 2-1. Chief Justice
SH Kapadia and Justice Swatanter Kumar held that providing such reservation is not unconstitutional, but stated
that the Act will not be applicable on unaided private minority schools and boarding schools. However, Justice KS
Radhakrishnan dissented with the majority view and held that the Act can not apply to both minority and non
minority private schools which do not receive any aid or grant from the government.
Admission Issues
The Model Rules don't provide many details on the implementation of 25 per cent reservation in private schools. It
does not specify the definition and verification of the weaker and disadvantaged sections. How to select the children
and in which class they shall be admitted. How they will gap the admission demand and seats available? What can be
the vigilance mechanism? How the schools (private) would be reimbursed? etc. There is no clear instruction for
private schools for formation of the school management committee.
Free Education
This is the most basic issue, which caused lot of confusion. It was earlier stated by Kapil Sibal that “ It could mean free
books, free uniform or anything as defined by the states”. This confusion prevails because of the hastily framed
document.
Madarsa and Vedic Pathshalas
Madarsas & Vedic Pathshalas have been clearly kept out of the purview of the Right of Children to Free and
Compulsory Education Act.
Extension to Class X
In 2011, it was reported that entre is keen on extending the provisions of the Right of all Children to Free and
Compulsory Education Act to Class X (age 16) instead of VIII. Nothing substantial has been decided in this context so
far.
Abolition of untouchability
Article 17 of the constitution of India “Abolishes untouchability” and forbids its practice in any form. As per this,
untouchability was made an offence punishable in accordance with law. The law includes a law passed before the
coming into force the constitution.
Defining Untouchability
Untouchability is neither defined in the constitution nor in the subsequent act by the parliament. It refers to a social
practice which looks down upon certain depressed classes solely on account of their birth and makes any
discrimination against them on this ground.
The untouchables were not supposed to draw water from the same wells, or use the pond/tank which is being used
by the higher castes. They were not allowed to enter some temples and suffered many other disabilities.
By virtue of Clause (2) of the Article 15, Constitution makes the accessibility to shops, public restaurants, hotels and
places of public entertainment, wells, tanks, bathing ghats, roads and other places of public use which are fully or
partly funded by the Government to all people belonging to any caste, creed, race, sex or whatever. But the grave
situation of the social stigma of “untouchability” led the framers of the constitution to put a dedicated article for this.
Please note that while other rights are against the state, this right is directed against private persons. The nature of
untouchability is such that it is not possible to conceive where the state may practice untouchability.
It was later held by the Supreme Court that whenever a fundamental right contained in arts. 17, 23 or 24 was being
violated by a private individual, it would be the constitutional obligation of the state to take necessary steps to interdict
such violation and ensure that such person should respect the right. Merely because the aggrieved person could himself
protect or enforce his invaded fundamental rights, did not absolve the state from its constitutional obligations.
Protection of Civil Rights Act, 1955
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Based upon the power of Article 35 and Article 17, parliament enacted the Untouchability (Offences) Act, 1955. In
1976, it was made more stringent and was renamed The Protection of Civil Rights Act, 1955.
9 It defines civil right as any right accruing to a person by reason of the abolition of untouchability by Art. 17 of
the constitution.
9 All offences under the act have been made non-compoundable. Compoundable offences are those which can
be compromised by the parties to the dispute. The permission of the court is not necessary. When an offence is
compounded, the party, who has been aggrieved by the offence, is compensated for his grievance. Non-
compoundable offences are those in which compromise can take place only with the permission of court.
9 The act prescribes punishment (1-2 years imprisonment ) for preventing any person from entering any
place of public worship or from worshipping or from worshipping or denying access to any shop, public
restaurants, hotels or places of public entertainment or refusing to admit persons to hospitals and refusing
to sell goods or render services to any person.
9 Also, insulting a member of scheduled caste on the ground of untouchability or preaching untouchability or
justifying it on historical, philosophical, religious or other grounds is a crime.
9 Under the act, it has been declared a duty of the public servants to investigate offences relating to
untouchability. If a public servant wilfully neglects the investigation of any offence punishable under this act,
he shall be deemed to be an abettor.
9 The state governments have been empowered to impose collective fines on the inhabitants of an area
involved in or abetting the commission of offences under the act.
Prevention of Atrocities Act 1989
To prevent the commission of offences or atrocities against the members or the Scheduled Castes and Scheduled
Tribes, the parliament also enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, 1989.
9 The act provides for special courts for the trial of offence under the act and for the relief and rehabilitation of
the victims of such offences.
9 The act excludes the application of sec. 438, Cr. P.C. (granting of anticipatory bail in case of anticipated
accusation of non-boilable offences) to cases arising under the act.
9 Atrocities committed against a Hindu SC or ST, who had converted to another religion, can be prosecuted
under the act, if the victim is still suffering from social disability.
Abolition of titles
England is a monarchy where one finds Marquis, Barons, Lords And Knights, etc. Prior to independence, India also had
his highness, Nawab, Raja, Maharaja, Dewan Bahadur and similar titles some of which were hereditary. Via article 18(1)
, the constitution has abolished all the titles.
Constitutional Provisions
9 Article 18(1) prohibits the state to confer titles on any body whether a citizen or a non-citizen. Military and
academic distinctions are, however , exempted from the prohibition. Thus, a university can give title or
honour on a man of merit.
9 Clause (2) prohibits a citizen of India from accepting any title from any foreign state.
9 Clause (3) prohibits a person not being a citizen of India, but holding any office of profit or trust under the
state, from accepting any title from any foreign state without the consent of the president.
9 Clause (4) further prohibits such a person from accepting present, emolument or office of any kind from or
under any foreign state without the consent of the president.
9 Clause (3) and (4) have been added to ensure that a non-citizen should remain loyal to the state i.e. do not
commit the breach of trust reposed in him.
Please note that Article 18 does not secure any fundamental right but imposes a restriction on executive and
legislative power. Further, conferring of titles offended against the fundamental principle of equality of all citizens
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guaranteed by art. 14. Further, you should not that Article 18 is merely directory because there is no penalty
prescribed for infringement off the prohibition.
Please further note that conferment of titles of Bharat Ratna, Padma ,Vibhushan , Padam Shri, etc. (Introduced in
1954) are said to be not prohibited under art. 18 as they merely denote state recognition of good work by citizens in the
various fields of the activity. The opponents say that these awards though may not be used as titles, the decorations
tend to make distinctions according to rank, contrary to the preamble which promises equality of status. Moraji desai
during his prime minister ship (1977-79) discontinued these decorations.
Introduction
Constitution in Part V deals with the Union. The articles in Part V can be summarized as below:
• President and Vice President : Article 53-73
• Council of Ministers: Article 74-75
• Attorney General of India: Article 76
• Conduct of Government Business: Article 77-78
• Parliament of India: Article 79-122
• Legislative Power of the President : Article 123
• Union Judiciary : Article 124-147
• Comptroller and Auditor General of India : Article 148-151
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For example, assuming the total value of valid votes polled by all candidates is 1,00,001. The quota required for getting
elected is:
100,001
+1 = 50,000.50 +1 (ignore .50)
2
=50001
If any candidate has secured the above quota of votes, he/ she is declared elected. If none of them secures the above
data then following process is followed:
Returning Officer proceeds further to second round of counting during which the candidate having lowest
value of votes of first preference is excluded and his votes are distributed among the remaining candidates
according to the second preference marked on these ballot papers.
The other continuing candidates receive the votes of excluded candidate at the same value at which he/she
received them in the first round of counting.
The Returning Officer will go on excluding the candidates with lowest number of votes in subsequent rounds of
counting till either one of the continuing candidates gets the required quota or till only one candidate remains
in the field as the continuing candidate and shall declare him/her as elected.
Number of Electors
The last Presidential elections in India were held in 2012. The total number of members in the Electoral College for the
Presidential election in 2012 was 4896, as follows:
1. Rajya Sabha = 233
2. Lok Sabha = 543
3. State Assemblies = 4120
4. Total = 4896
Value of Each MLA Votes
The following table shows the value of each state elector (MLAs) from state assemblies.
2
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o Bill that seek to alter the boundaries of the states and names of the states. (Article 3, we
have already discussed this in our Union and Its territory Module)
o Money Bill (as per Article 110) & Finance Bill.
o Any bill which affects the taxation in which the states are interested (Article 274)
o State Bills which impose restriction upon freedom of trade (Article 304).
Analysis: Executive Power of the President
The president must exercise powers according to the constituent. Article 53(1) which vests the executive power of the
union in the president provides that the power
Is President a Rubber Stamp?
may be exercised by the president either directly Article 77 expressly mentions that all executive actions of the Government of
India shall be expressed to be taken in the name of the president. This article
or through officers subordinates to him. For this provides that the orders and other instruments shall be authenticated in such a
manner as may be specified in rules by the president. But the rules made by the
purpose, ministers are deemed to be officers President do NOT require the president to act ONLY through the Ministers. It
expressly mentions that the President is not a Rubber stamp.
subordinate to him. Duties of Prime Minister towards President?
Article 78 deals with the duties of the Prime Minister towards the President of
Confidential Relation between President and India. The duties of the Prime Minister towards President are:
Council of Ministers - To communicate to the President all decisions of the Council of
Ministers Regarding the administration and legislation of India.
Then the Article 74 (1) provides that there shall - To furnish such information as the President may call for.
- To submit for the Consideration of the Council of Ministers as desired
be a council of ministers with prime minister at by the President.
the head, to aid the advice president in exercise of his functions. Article 74 (2) lays that question whether any, and if so,
what advice was tendered by minister to the president shall not be inquired into in any court. Thus, relation between
president and council of ministers are confidential.
Real Executive Power in Council of Ministers
The executive powers vested in the president have to be exercised in accordance with the advice of the Council of
Minister as per Article 74(1). This provision was implicit but was made explicit and obligatory for the president via
Constitution 42nd amendment act 1976. Later the 44th amendment act gave him the power to send back
advice received from council of Ministers to reconsider. At present, the president exercises the executive
powers as per the advice of the Council of the Ministers. However, he has the power to send back the advice
to council of Ministers for reconsideration. If the council of Ministers adheres to the previous advice, the
president has to act as per this advice. So, Council of Ministers exercises the real executive power in the
name of the president. All executive decisions are taken in the name of the President (Article 77).
Discretionary Powers of the President: Critical Analysis
The role of the president in Indian polity as a figurehead is reflected in his indirect election. Further, the constitution
nowhere uses the terms like “Discretion” and individual judgement” for the president which were used for the
governor-general under the government of India act, 1935. Except in certain marginal cases, president shall have no
power to act in his discretion in any case:
India’s Council of ministers is responsible to Lok Sabha. If the president ignores the advice of ministers
enjoying the confidence in Lok Sabha, it may resign and thus create a constitutional crisis. So, it is obligatory on
the president to have always a council of ministers.
If he dismisses any ministry having support of Lok Sabha, they may bring impeachment proceeding against
him. This serves as a deterrent against the president assuming real powers
In the appointment of prime minister, the president’s discretion is limited. Thus when a single party gains an
absolute majority and has an accepted leader, president’s choice of selecting prime minister is a mere
formality, similarly, if on the death or resignation of a prime minister , the ruling party elects a new leader,
president has no choice but to appoint him as prime minister.
However, if no single party gains majority and a “coalition government” is to be formed, president can exercise
a little discretion and select the leader of any party who, in his opinion, can form a stable ministry. However,
even in such a situation, his action should be guided by certain conventions. President may first invite a person
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and appoint him the prime minister and then ask him to prove his majority or seek a vote of confidence in the
Lok Sabha within a reasonable time.
The individual ministers hold the office during the pleasure of the president, but president is bound to exercise
his pleasure in accordance with prime minister ‘s advice. Thus, it is a power of prime minister against his
(Undesirable) colleagues.
So long as prime minister and his cabinet enjoy confidence, the president is bound to dissolve Lok Sabha only
when advised by prime minister. But, this advice will not be binding on the president, when prime minister
loses his majority or unable to prove his majority or a vote of non-confidence passed against him or when he is
not facing the parliament, but president has proof that ruling does not have a majority. In such circumstances,
the president must try to find out whether any alternative ministry can be possible. He should make all
possible efforts to avoid a mid-term poll.
Article 78 provides that it shall be the duty of prime minister to communicate to the president all decisions of
council of ministers relating to administration of affairs of union and proposals for legislation; to furnish
such information relating to administration as president may call for; and if the president so requires to submit
for the consideration of council of ministers any matters on which’s decision has been taken by a minister but
which has not been considered by the cabinet.
The president has a right to know what his government is doing or proposes to do. But the question how much
information is to be furnished by prime minister to the president is his prerogative. This should be a matter to
be resolved by mutual confidence and cooperation between the two.
Thus, India has a president but not a presidential form of government, as found in America. The American president is
the real executive head and is directly responsible to the people, who elect president. American president is the chief
head of executive, and administration is vested in him, and he appoint members of cabinet who are responsible to him.
While, Indian president is head of the state but not the real executive. He represents the nation but does not rule the
nation, as India has a Parliament system of government.
Is President a Puppet?
It is submitted that it would have never been the intention of the framers of constitution to make the president a
puppet or a passive spectator. In view of the oath taken by the President ……… to preserve, protect and defend the
constitution and law, and that……….. devote myself to the service of people of India, President is duty bound to advice to
guide and exert his influence on decisions taken by the prime minister. Thus the president can exercise a persuasive
influence. His role is at best advisory.
Is Presidential Office superfluous?
Weak position of president doesn’t mean that his office is superfluous. President of India is the symbol of Indian
national unity. Being impartial and above the party politics, he exerts his influence on the decisions of prime minister.
The influence, however, will depend on his sterling character, magnetic personality and selfless devotion to the nation.
Mr. Nehru the first prime minister of the country observed: We want to emphasise the ministerial character of the
government and that power really resided in the ministry and in the legislature and not in the president. At the same
time, we did not want to make the president just a mere figurehead……….. we did not give him any real power but we have
made his position one of the great authority and dignity. He is also the commander-in-chief of the defence forces…….
Indian constitution envisages not a dictatorial but a democratic president who was uses his judgement to keep
the democratic and representative government functioning and not to thwart or to subvert the same.
President R. Venkataraman in his autobiography has expressed the view that advice of the cabinet violative of
the constitutional provisions is not binding on the president. He meant that recommendations of the cabinet
violative of the provisions of the constitution could be legally and constitutionally stalled by the president.
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National Emergency:
The National Emergency can be declared due to a war, external aggression, armed rebellion in whole of India. This has
been declared in India since independence for 3 times as follows:
Between 26 October 1962 to 10 January 1968 during the India-China war on account of "the security of
India" having been declared "threatened by external aggression".
On 3 December 1971 originally proclaimed during the Indo Pakistan war, and later extended on account
of "the security of India" having been declared "threatened by external aggression".
Between 26 June 1975 to 21 March 1977 under controversial circumstances of political instability under
the Indira Gandhi's prime ministership on account of "the security of India" having been declared
"threatened by internal disturbances".
Emergency: the coordination of President, CoM and Parliament
The president can declare such emergency only on the basis of a written request by the council of Ministers headed by
Prime Minister. It must be approved by the parliament within 1 month. It can be imposed for 6 months and subject to
extensions by repeated parliament approvals. In the event of National Emergency 6 freedoms gets suspended, however,
Right to Life and personal liberty don't suspend.
State Emergency:
State Emergency is called President's Rule. In India almost all states have tasted this emergency. This is declared on
account of " failure of Constitutional Machinery in the state' and is declared on the basis of report of Governor or other
sources. It must be approved by parliament within 2 months. It is imposed for 6 months subject to maximum
extension of 3 years. Beyond three years, the constitution would be required to amend for the extension 3. During such
emergency Governor administers the state in the name of the president. During the state emergency, all money bills
of the state are referred to parliament for approval. During the state emergency, parliament makes laws on “subjects of
state list” for particular state.
Financial Emergency:
If the President of India is satisfied that there are circumstances in which the financial stability or credit of the country
is threatened he / she may declare financial emergency as per article 360. It has not been declared in India ever. In the
financial emergency, almost all financial powers are assumed by the president.
Vice President of India
Who can be Vice President of India?
The eligibility criteria to become a Vice President of India are laid down by Article 66 (Election of Vice President). The
article says that the candidate to become Vice President of India should:
Be a Citizen of India
Completed the age of 35 years
Qualified for election as member of Council of State.
Here is the first difference between the President and Vice President Candidature. The Presidential candidate
must be qualified for election as a member of the House of the People (Lok Sabha) while the Vice President
should be qualified for election as a member of the Council of States (Rajya Sabha). Please note this.
Can not hold an office for profit.
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or otherwise, the Vice President shall carry out functions of the President. In such case, he/ she shall be entitled for
the salary, allowance and all privileges of the President.
Election, term of office, removal, Oath
The Vice President of India is elected by both the houses of the parliament i.e. Lok Sabha and Rajya Sabha. The MLAs
have no role to play in election of the Vice President. The Vice President functions a President of the whole country, when
the president is not available, but in his election, State electors have no role to play and this is a big anomaly in the
constitution.
The original constitution laid down the method of election of Vice President of India by members of both Houses of
Parliament assembled at a joint meeting. However, later it was felt that the requirement that both houses should
assemble at a joint sitting for the election of the Vice-President, is unnecessary and has practical difficulties. So, this
difficulty was done away with Constitution 11th Amendment Act 1961. Now the election of the Vice President takes
place on the basis of a electoral college consisting of the members of both Houses of Parliament in accordance with the
system of proportional representation by means of the single transferable vote.
The doubt and dispute arising out of election of President and / or Vice President can be challenged in the
Supreme Court.
The term of office of the Vice President is 5 years. The term may terminate earlier by resignation which
should be addressed to the President. The term may also terminate earlier by removal.
The Vice President can be removed by a resolution by the members of the Rajya Sabha. To move such
resolution, a 14 days’ notice is to be given. Such a resolution, though passed by the Rajya Sabha only, but
must be agreeable to the Lok Sabha. There is no need of impeachment of Vice President.
While the president takes the oath of office to preserve, protect and defend the Constitution and the law, the
Vice President takes oath of true faith and allegiance to the Constitution of India as by law established.
Council of Ministers
Summary of Articles
Article 74 & 75 of the constitution of India deal with the Council of Ministers and Prime Minister. Here is the summary
of these articles:
Article 74(1): There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with such advice. The president may
require the council of ministers to reconsider such advice and president shall act in accordance with such
advice reconsidered.
Article 74(2): What advice was tendered to the president cannot be inquired into any court.
Article 75(1): The Prime Minister shall be appointed by the President and the other Ministers shall be
appointed by the President on the advice of the Prime Minister.
Article 75(2): The Ministers shall hold office during the pleasure of the President.
Article 75(3): The Council of Ministers shall be collectively responsible to the House of the People.
Article 75(4): Before a Minister enters upon his office, the President shall administer to him the oaths of office
and of secrecy according to the forms set out for the purpose in the Third Schedule
Article 75(5): A Minister must be a member of any of the houses within 6 months.
Article 75(6): Parliament will decide the salary and allowances of the Ministers and until parliament decides,
so shall be as specified in the Second Schedule.
The Council of Ministers is Real Executive
The article 74(1) makes the Council of Ministers real executive in our country. This article mentions that the
President shall act in accordance with the advice tendered by the council of Ministers. The president may ask
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Article 108: Joint sitting of both Houses in certain cases.
Article 109. Special procedure in respect of Money Bills.
110. Definition of "Money Bills."
111. Assent to Bills.
The first step in the legislation procedure is the introduction of a Bill which embodies the provisions of the proposed
law which is accompanied by “Statement of Objects and Reasons”. The bill may be an ordinary bill or a money bill.
Article 107 says that an ordinary bill can be introduced in any house of the parliament. A Money Bill can be introduced
in Lok Sabha only.
How an Ordinary Bill becomes an Act?
A Bill can be introduced either by a Minister or by a Private Member. If a bill is introduced by a Minister, it will be called
“Government Bill”. If a bill is introduced by a private member, it will be called a “Private Bill. Please note that if a
private member desires to introduce a bill, he/ she must give notice of his intention to the speaker. For every bill it is
necessary to ask for leave of the House to introduce a Bill. If leave is granted, the Bill may be introduced. After a Bill has
been introduced, it is published in the Gazette.
However, before introduction, a bill may be published in the Gazette with the permission of the Speaker of Lok Sabha,
Deputy Chairman of Rajya Sabha. No leave is required to introduce bill in such as case.
First Reading:
Generally, there is no debate on introduction of a bill. The person (Minister or MP) who is given a leave to introduce a
bill may present some broad idea to introduce the bill. This is called moving the bill or motion for introduction of the
bill. The moving of the ordinary bill can be opposed by the opposition. If the introduction of the bill is opposed, speaker
may allow one of the opposing members to cite the reasons. After that Speaker will put the question to vote. If the
House is in favor of Introduction of the Bill, then the Bill is introduced and passes for the next stage. . Please note that
the motion for introduction of a Finance Bill or an Appropriation Bill is not opposed. This introduction is called
“First Reading”.
Second Reading:
After introduction, the bill is open for 4 alternative courses of action in the second stage:
It may be taken into consideration.
It may be forwarded to a Select Committee of the House.
It may be referred to a Joint Committee of both the houses i.e. Rajya Sabha and Lok Sabha.
It may be circulated / put on website for purpose of eliciting the public opinion on it.
Please note that the last alternative is resorted only in a case when the proposed legislative measure may arouse a
public controversy. However, if a bill is of emergent nature, any of the upper 3 alternatives is taken.
The Select Committee or the Joint committee is expected to give its report in a stipulated time.
The Select Committee or Joint Committee members are selected on the basis of expert knowledge.
The Select Committee or Joint Committee members also include the Opposition Members.
If it is a Joint Committee of the Both the Houses, the 2/3 members are from Lok Sabha and 1/3 are from the Rajya
Sabha.
The report of this committee may be unanimous or majority opinion. If it is a Majority Opinion, the minority is
allowed to give the “Minutes of Dissent” in the report.
The submission of the Report by the Select Committee or Joint Committee members is followed by a detailed
“Clause to Clause” discussion on the bill. Each Clause is taken up by the House and amendments are moved,
discussed and disposed off.
This stage is very important. The amendments which are related and pertain to the bill are moved and the Bill goes
substantial changes in this stage. This is one of the most time consuming (of the house) stage of a legislative
procedure.
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A bill is considered “clause by clause” and when every clause is voted , this is called “Second Reading”.
The above discussion makes it clear that the first two readings of the Bill actually refine the subject matter of the
bills.
Third Reading:
After the second Reading, the house is given sufficient time to study the clauses of the bill. After that the MP or Minister
who had moved this bill moves that “the bill is passed”. This is called Third Reading. Please note that most of the
amendments in the third reading are just formal and normally verbal in nature. The discussion is limited and quick. The
Bill is finally passed as a whole and this marks the work of one house coming to end. The bill is sent to another house.
This means that after the third reading, the ordinary bill is sent for action from Lok Sabha to Rajya Sabha or
from Rajya Sabha to Lok Sabha.
The same three reading procedure is followed in second house of the parliament. In the second house, there are three
courses for the bill:
It is passed as it was passed in the originating house.
It is to be amended
It is to be rejected.
In case the course is as per the course of action 2 & 3 given above, the bill is returned to the originating house.
Please note that if the second house does not return it for 6 months to the originating house it is deemed to be
rejected.
Once it is returned to the originating house, the amendments suggested by the other house are considered.
Here two options arise:
o The amendments are accepted. In this case, the originating house sends a message to the other house
that the amendments are accepted.
o The amendments are NOT accepted. In this case again the originating house sends a message to the
other house that the amendments are not accepted.
In the second option given above, means when both the houses are not in agreement, a joint sitting of
the two houses is called by the president.
Joint Sittings:
Joint Sitting of the houses is mentioned by Article 108. As per this article, a Joint sitting is notified by the President as
his/ her intention to summon the both the houses for the purpose of voting and deliberating on the bill in the following
situations:
Bill has been passed by one House and transmitted to the other House and it is rejected by the other
House
Both houses have finally disagreed as to the amendments to be made in the Bill
More than 6 months elapse from the date of the reception of the Bill by the other House without the Bill
being passed by it.
Please note that if there is a deadlock between the two houses on a Constitution amendment
Bill, there can not be a joint sitting.
Here please note that
A bill pending in other house for more than 6 months is deemed to be rejected but does not
mean that a bill gets lapsed.
The bill which gets lapses due to dissolution of the Lok Sabha, gets Lapses and in such case no joint
sitting is called.
Further course of action is as follows:
In the joint sitting, the disputed provisions are either fully accepted or fully rejected.
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Purpose of Delimitation
In India, the main basis for allocation of seats to various States in the Lok Sabha is Population of the state. The division
of each state into the territorial constituencies is to be readjusted after the completion of a census so that the
Population-Seat ratio is maintained within the state and throughout the Union. So the purpose is the Rationalization
of the structure and composition of the electoral constituencies, on the principle of “ One vote and one value”.
First Delimitation Commission
When the constitution came in existence, it had fixed the number of Seats to Lok Sabha as not more than 500. For the
First General Elections for Lok Sabha as well as legislative Assemblies for 1951-52, the Election Commission had
divided the entire country into viable territorial divisions of parliamentary / assembly Constituencies. However, after
that this task was given to the Independent Delimitation Commission.
Accordingly, separate delimitation commissions were set up in 1952 (basis of 1951 census), 1962 (basis of
1961 census), 1972 (basis of 1971 census).
Ban on Delimitation
The 42nd Amendment Act 1976 had put a ban on any further delimitation of the Constituencies till the year
2000. So after the 42nd amendment act 1976, the total number of seats in Lok Sabha and Rajya Sabha has
remained the same.
This ban was imposed mostly on the account of the fear that a few states to get more seats in the Lok Sabha on
the basis of a large population may not take much interest in the family planning. So, indirectly this was
done so that states may not be biased towards the family planning measures.
Delimitation and 84th Amendment Act 2002
The 84th Amendment Act 2002 extended the freeze till the year 2026. This was based upon the calculations of
the population planners that by 2026 India will be able to stabilize the population.
So next allocation of seats would be carried out on the basis of the Census after 2026 and the number of seats
will not change by then.
By enacting the 84th amendment Act,2002, it was also decided to undertake readjustment and
rationalization of territorial constituencies in the States, without altering the number of seats allotted
to each State in the House of the People and Legislative Assemblies of the States, including the Scheduled
Castes and the Scheduled Tribes constituencies, on the basis of the population ascertained at the census for the
year 1991, so as to remove the imbalance caused due to uneven growth of population/electorate in different
constituencies.
So 84th amendment Act did two things:
1. Freeze the fresh delimitation till 2026
2. Allowed to readjust the seats.
The year 1991 was later altered to 2001 by 87th amendment act 2003.
Delimitation Act 2002
In pursuant with the 84th Amendment Act 2002, the Delimitation Act 2002 was passed. Under this act Delimitation
Commission was constituted in July 2002. The Chairman of this commission was Justice Kuldeep Singh.
Justice Kuldeep Singh was a retired Judge of the Supreme Court of India. The Ex-officio members of this Commission
were an election commissioner of India and state election commissioners. So this commission started working on the
basis of 1991 census data. But later in 2003, the word “1991” in the article 82 of the constitution was removed and
replaced by 2001. This means that the work done till then by the commission became obsolete. The commission later
restarted the work as it was now entrusted with the task of readjusting all parliamentary and assembly constituencies
in the country in all the states of India, except the state of Jammu and Kashmir, on the basis of population
ascertained in 2001 Census.
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The Judicial Review is also relevant in the sense that Legislature may not possess the impartiality which is
needed to explain the meaning and implications of a particular law and an independent impartial judiciary
body alone can do it aptly.
The State can put restrictions of the Fundamental rights of the citizens in the name of security of the state and
in public interest, but only court can decide whether the restrictions imposed are reasonable or not.
What is Judicial Activism?
By Judicial Activism, we refer to the process by which the judiciary uses the concept of Judicial Review to iterate the
unconstitutionality of the legislative and executive orders.
Concept of Judicial Activism originated in United States, from the “Due Process of Law” clause of its
constitution.
In Indian constitution, it corresponds to the “Procedure established by Law” and not the “Due process of the
law”
The phenomenon of Judicial Activism has not developed in India spontaneously. It has evolved because of the inaction
or over action of the other two organs of the government in the country viz. the Legislature and the Executive.
In the first two decades of the adoption of the constitution, the country saw a series of tensions between the
courts and parliament on the decisions of the Supreme Court in context with the protection of the fundamental
rights of the citizens. One of them was right to property which was under the sword of the socialist
Government of that time.
The very first amendment of the Constitution was a response to the Supreme Court's decision that had
invalidated the state laws to abolish Zamindari estates on the basis of equal protection clause of the
constitution. The result of this amendment was that the court lost the power to declare the Government
acquisition of property invalid only on the ground that it abridges the fundamental rights.
Public Interest Litigation: Current form of Judicial Activism
The present form of judicial activism got birth in 1980s when Justice P N Bhagwati turned a postcard written to him by
an aggrieved citizen into a Public Interest Litigation.
Prior 1980s only the aggrieved party could approach the courts for justice.
The Indian legal system which was more or less with colonial nature saw the state of deprivation of civil and political
rights particularly during the emergency era. After the emergency got ended in 1977, the 2 judges of the honorable
Supreme Court Justice V. R. Krishna Iyer and P. N. Bhagwati recognized the possibility of providing access to justice to
the poor and to reach out to the people. Hence Public Interest Litigation was devised an innovative way wherein a person
or a civil society group could approach the supreme court seeking legal remedies in cases where public interest is at stake.
Thus, Justice V. R. Krishna Iyer and P. N. Bhagwati were the first judges to accept PIL.
Judicial activism earned a human face in India by liberalizing access to justice and giving relief to disadvantaged groups
and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. In S. P. Gupta v. Union of
India, 1981 case, Justice P. N. Bhagwati articulated the concept of PIL.
Hussainara Khatoon v. State of Bihar was the first such PIL case. This case was filed by an advocate and
focused on the inhuman conditions of the prisons. The case led to release of more than 40, 000 under trial
prisoners.
In S. P. Gupta v. Union of India, 1981 case, Justice P. N. Bhagwati provisioned that if an injury is caused to a
person or class of person or a legal right of the person/class of person is violated, and such person or class of
person by reasons of poverty, helplessness or disability or social/economical disadvantageous position cannot
approach the court, then a member of the public can maintain an application for an appropriate direction /
order/ writ in the High Court under article 226 and in case any breach of the fundamental rights the person or
class of person can seek judicial redress in Supreme court under article 32.
Remedial nature of PIL:
A society which gives to itself a robust local government and an independent judiciary is apt to be democratic in
its behaviour regardless of the form of constitutional arrangement that is adopted. Part IX and IXA of the
Constitution of India deal with the local governments. The local governments in India can be divided into two
wings viz. Rural Local Government and Urban Local Government. The Constitution 97th Amendment Act has
added a new part IXB in the constitution which deals with cooperatives.
Constitution Part IX : Panchayats
Despite the fast rate of urbanization, India continues to be predominantly rural. While in 1901, the rural
population of India constituted 89 percent of the total population its share in 2011 is nearly 61.3 percent, which
in absolute numbers would be as large as nearly 74.25 crores.
Why a strong Rural Government is needed?
Rural progress is a pre-condition for urban happiness. The presently disturbing pace of rural migration to cities and
towns is a direct consequence of neglect of rural India. This must be checked even in the interest of urban
dwellers. The slums and over-crowding which are presently disfiguring all major cities in India, makes a strong
rural local government very essential for the happiness and integrity of the whole society including the urban one.
Decentralization – The core Philosophy of democratic governance
A strong, vibrant local government is a means of political decentralization. There are several advantages of the
Decentralization. Decision-making being closer to the people, decentralization ensures decision-makers more
effective accountability to the governed. This also ensures more realistic programming, for local problems are apt
to receive urgent attention. Local vigilance also increases; thereby reducing the room for corruption. This
certainly goes a long way towards maximising returns on every rupee spent on development. These are some of
the tangible advantages of decentralization.
The Community Development Programme
On 15 August 1947, India got an opportunity of redeeming the pledges made to the people during the long-drawn
freedom movement. Among the first tasks that India had to assume was the formulation and execution of the first
five year plan in the fifties.
Post Independence, the first major development programme launched in India was Community Development
Programme in 1952. Core philosophy was overall development of rural areas and people’s participation.
• This programme was formulated to provide an administrative framework through which the government
might reach to the district, tehsil / taluka and village level.
• All the districts of the country were divided into "Development Blocks" and a "Block Development Officer
(BDO)” was made in charge of each block.
• Below the BDO were appointed the workers called Village Level Workers (VLW) who were responsible to
keep in touch with 10-12 villages. So, a nationwide structure was started to be created.
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• Thousands of BDOs and VLW's were trained for the job of carrying out array of government programmes
and make it possible to reach the government to villages. Top authority was "Community Development
Organization" and a Community Development Research Center was created with best academic brains of
the country at that time.
This programme was not successful. It’s failure was directly attributed to inadequacy of avenues of popular
participation in local level programmes of rural development. This was the finding of the team for the study of
community projects and national extension service under the chairmanship of Balwant Rai Mehta, reporting in
1959.
Balwant Rai Mehta Committee Report
As we read above, the Community Development Programme was formulated to provide an administrative
framework through which the government might reach to the district, tehsil / taluka and village level. All the
districts of the country were divided into “Development Blocks” and a “Block Development Officer (BDO)” was
made in charge of each block. Below the BDO were appointed the workers called Village Level Workers (VLW)
who were responsible to keep in touch with 10-12 villages. So, a nationwide structure was started to be created.
Thousands of BDOs and VLW’s were trained for the job of carrying out array of government programmes and
make it possible to reach the government to villages. Top authority was “Community Development Organization”
and a Community Development Research Center was created with best academic brains of the country at that
time.
• But this programme could not deliver the results. The programme became an overburden on the
Government.
• Further, in 1953, the National Extension Services were started under which the entire country was
divided into Blocks. These Blocks were envisaged as smallest division for development work.
In 1957, the Balvant Rai Mehta Committee was appointed to study the Community Development
Programmes and National Extension Services Programme especially from the point of view of assessing the
extent of people’s participation and to recommend the creation of the institutions through which such
participation can be achieved.
Balwant Rai Mehta was one of the legendry freedom fighters of the country who participated in the Bardoli
Satyagraha. He is best known as second Chief Minister of Gujarat. Balwant Rai Mehta was a parliamentarian
when the committee was established.
• He is credited for pioneering the concept the Panchayati Raj in India and also known as Father of
Panchayati Raj in India.
Following were the landmark recommendations of the Balwant Rai Mehta Committee:
• Panchayati Raj Institutions should be composed of elected representatives and should enjoy enough
autonomy and freedom.
• The Balwant Rai Mehta committee recommended a 3-tier Panchayati Raj System which includes
o Zila Parishad at the District Level
o Panchayat Samiti at the Block/ Tehsil/ Taluka Level
o Gram Panchayat at the Village Level
• But the committee did not insisted on a rigid pattern. It recommended that the states should be given
freedom to choose and develop their own patterns as per the local conditions. The committee
recommended that the above 3 tiers should be organically linked together through an instrument of
indirect election.