Constitution of India

SUBMITTED BY:
Dolly Parikh
Roll No: 418
MBA(TECH) TELECOM
 Table of Content

Sr. No. Particulars Page No.

1. Introduction 3
2. Fundamentals Rights 3
3. Significance of the Fundamental Rights 4
4. Article 19 6
5. Article 19 (1)(g) 7
6. Fertilizer corporation kamgar v/s union of India and others 8
Overview
7. The Case 8
8. Issues 9
9. Judgements 9

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Introduction
CONSTITUTION OF INDIA

Constitution of India is the supreme law of India. It lays down the framework defining
fundamental political principles, establishing the structure, procedures, powers and
duties, of the government and spells out the fundamental rights, directive principles and
duties of citizens. Passed by the Constituent Assembly on 26 November 1949, it came
into effect on 26 January 1950. The date 26 January was chosen to commemorate the
declaration of independence of 1930. It declares the Union of India to be a sovereign,
socialist, secular, democratic republic, assuring its citizens of justice, equality, and
liberty and, to promote among them all, fraternity. The words "socialist", "secular",
"integrity" and "to promote among them all fraternity" were added to the definition in
1976 by constitutional amendment. India celebrates the adoption of the constitution on
26 January each year as Republic Day. It is the longest written constitution of any
sovereign country in the world, containing 444 articles in 22 parts, 12 schedules and
108 amendments, for a total of 117,369 words in the English language version. Besides
the English version, there is an official Hindi translation. After coming into effect, the
Constitution replaced the Government of India Act 1935 as the governing document of
India. Being the supreme law of the country, every law enacted by the government must
conform to the constitution. B. R. Ambedkar , as chairman of the Constitution Drafting
Committee, was the chief architect of the Indian Constitution.

FUNDAMENTAL RIGHTS IN INDIA

Fundamental Rights is a charter of rights contained in the Constitution of India. It

guarantees civil liberties such that all Indians can lead their lives in peace and harmony
as citizens of India. These include individual rights common to most liberal
democracies, such as equality before law, freedom of speech and expression, freedom of
association and peaceful assembly, freedom to practice religion, and the right to
constitutional remedies for the protection of civil rights by means of writs such as
habeas corpus. Violations of these rights result in punishments as prescribed in the
Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are

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defined as basic human freedoms which every Indian citizen has the right to enjoy for a
proper and harmonious development of personality. These rights universally apply to
all citizens, irrespective of race, place of birth, religion, caste, creed, color or Gender.
They are enforceable by the courts, subject to certain restrictions.

The six fundamental rights recognised by the constitution are

1. The right to equality

2. The right to freedom
3. The right to freedom from exploitation
4. The right to freedom of religion
5. Cultural and educational rights
6. The right to constitutional remedies

Rights mean those freedoms which are essential for personal good as well as the good of
the community. The rights guaranteed under the Constitution of India are fundamental
as they have been incorporated into the "fundamental Law of the land" and are
enforceable in a court of law. However, this does not mean that they are absolute or that
they are immune from Constitutional amendment.

Fundamental rights for Indians have also been aimed at overturning the inequalities of
pre-independence social practices. Specifically, they have also been used to abolish
untouchability and hence prohibit discrimination on the grounds of religion, race, caste,
sex, or place of birth. They also forbid trafficking of human beings and forced labour.
They also protect cultural and educational rights of ethnic and religious minorities by
allowing them to preserve their languages and also establish and administer their own
education institutions.

SIGNIFICANCE OF THE FUNDAMENTAL RIGHTS

 The fundamental rights were included in the constitution because they were
considered essential for the development of the personality of every individual
and to preserve human dignity.

 The writers of the constitution regarded democracy of no avail if civil liberties,

like freedom of speech and religion were not recognized and protected by the
State. According to them, "democracy" is, in essence, a government by opinion
and therefore, the means of formulating public opinion should be secured to the
people of a democratic nation.

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  For this purpose, the constitution guaranteed to all the citizens of India the
freedom of speech and expression and various other freedoms in the form of the
fundamental rights.

 All people, irrespective of race, religion, caste or sex, have been given the right to
move the Supreme Court and the High Courts for the enforcement of their
fundamental rights. It is not necessary that the aggrieved party has to be the one
to do so.

 Poverty stricken people may not have the means to do so and therefore, in the
public interest, anyone can commence litigation in the court on their behalf. This
is known as "Public interest litigation" .In some cases, High Court judges have
acted on their own on the basis of newspaper reports.

 These fundamental rights help not only in protection but also the prevention of
gross violations of human rights. They emphasize on the fundamental unity of
India by guaranteeing to all citizens the access and use of the same facilities,
irrespective of background.

 Some fundamental rights apply for persons of any nationality whereas others are
available only to the citizens of India. The right to life and personal liberty is
available to all people and so is the right to freedom of religion.

 Freedoms of speech and expression and freedom to reside and settle in any part
of the country are reserved to citizens alone, including non-resident Indian
citizens. The right to equality in matters of public employment cannot be
conferred to overseas citizens of India.

 Fundamental rights primarily protect individuals from any arbitrary state

actions, but some rights are enforceable against individuals. For instance, the
Constitution abolishes untouchability and also prohibits begar. These provisions
act as a check both on state action as well as the action of private individuals.

 However, these rights are not absolute or uncontrolled and are subject to
reasonable restrictions as necessary for the protection of general welfare. They
can also be selectively curtailed.

 The Supreme Court has ruled that all provisions of the Constitution, including
fundamental rights can be amended. However, the Parliament cannot alter the
basic structure of the constitution. Features such as secularism and democracy
fall under this category.

 Since the fundamental rights can only be altered by a constitutional amendment,

their inclusion is a check not only on the executive branch, but also on the
Parliament and state legislatures.

 A state of national emergency has an adverse effect on these rights. Under such a
state, the rights conferred by Article 19 (freedoms of speech, assembly and

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 movement, etc.) remain suspended. Hence, in such a situation, the legislature
may make laws which go against the rights given in Article 19. Also, the
President may by order suspend the right to move court for the enforcement of
other rights as well.

ARTICLE 19

Article 19 of the Constiution of India is responsible for the Protection of certain rights
regarding freedom of speech, etc.

 (1)All citizens shall have the right

(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practice any profession, or to carry on any occupation, trade or business.

 Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-
clause in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offence.

 (3) Nothing in sub-clause (b) 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 interest of the sovereignty and integrity of India or public order,
reasonable restrictions on the right conferred by the said sub-clause.

 (4) Nothing in sub-clause (c) 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 the sovereignty and integrity of India or public
order or morality, reasonable restrictions on the exercise of the right conferred
by the said sub-clause.

 (5) Nothing in sub-clause (d) and (e) 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, reasonable restrictions on the exercise of any of the rights

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 conferred by the said sub-clauses either in the interests of the general public or
for the protection of the interests of any Schedule Tribe.

 (6) 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 by the said sub-clause, and, in particular, nothing
in the said sub-clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to:
(i) the professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.

ARITCLE 19(1)(G)

Freedom to practice any profession or to carry on any occupation, trade or business on

which the State may impose reasonable restrictions in the interest of the general public.
Thus, there is no right to carry on a business which is dangerous or immoral. Also,
professional or technical qualifications may be prescribed for practicing any profession
or carrying on any trade.

THE CONSTITUTION (FIRST AMENDMENT) ACT, 1951

Statement of Objects and Reasons appended to the Constitution (First Amendment) Bill,
1951 which was enacted as the Constitution (First Amendment) Act, 1951

The citizen's right to practise any profession or to carry on any occupation, trade or
business conferred by article 19(1)(g) is subject to reasonable restrictions which the
laws of the State may impose "in the interests of general public".

Examples of the Article 19(1)(g) in Cases

 Ashoka Kumar Thakur v/s Union Of India & Ors on 10 April, 2008
 M. Sambasiva Rao Alias Sambaiah v/s Osmania University, Rep. on 28 January,
1997
 Pramod Gupta & Anr. vs Anz Grindlays Bank & Anr. on 11 March, 1999
 K. Pratap Reddy vs Institute Of Rural Management on 30 August, 2005
 Sindhi Education Society & Anr. vs Chief Secretary,Govt.Of Nct of on 8 July, 2010
 T.M.A.Pai Foundation & Ors vs State Of Karnataka & Ors on 31 October, 2002
 Indian Systems of Medicine practitioners can also practice modern medicine
 The Bengal Immunity Company v/s The State Of Bihar And Others on 4
December, 1954
 J. Sampath Kumar v/s Bar Council Of India Represented on 28 September, 1994
 Kashi Prasad Sinha vs State Of Madhya Pradesh And Ors. on 17 July, 1958
 Mahatama Gandhi National v/s State Of Rajasthan And Ors. on 23 April, 2002

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  Vasantha R. v/s Union Of India (Uoi) And Ors. on 8 December, 2000
 Tamil Nadu Tamil & English Schools v/s The State Of Tamil Nadu Rep. By Its on
20 April, 2000
 The Workmens Compensation Act, 1923

FERTILIZER CORPORATION KAMGAR V/S UNION OF INDIA AND OTHERS

BRIEF OVERVIEW OF THE CASE –

The case was filed by the Union members which are the factory members and they have
filed a case against the Government of India. The workers had challenged the legality of
sale of plants and equipment of the Sindri Fertilizer Factory. The government is
expected to follow a practice of asking for bids, or contracts and tenders. The Union felt
that the company finalised to sell these plants had not followed the procedure. They
doubted that the government had done it officially or they had manipulated and used
unfair means. The Union also had problems as loss of machinery inturn implied loss of
jobs, around 11000 jobs were lost. Article 14 of the Constitution of India says that the
government treats every individual equally. The Union asked why only some workers
lost their jobs. Also Article 19(1)(g) which allows them the freedom to practice their
profession.

THE CASE –

The petitioners (workers) challenged the legality of the sale of certain plants and
equipment of the Sindri Fertilizer Factory, whereby the highest tender submitted by
respondent No. 4 was accepted by the Tender Committee and approved by the Board of
Directors. The petitioners, amongst others, contended that (i) that the decision to sell
the plants and equipment of the Factory was taken without calling for any report;(ii) the
original tender of Rs. 7.6 crores was unaccountably reduced to Rs. 4.25 crores; (iii) the
price of the plants and equipment, which was ultimately realised in the sale was
manipulated with ulterior purposes; (iv) the decision to restrict fresh offers, in respect
of the reduced equipment, to the tenderers who had submitted tenders for more than
Rs. 4 crores was unfair and arbitrary; (v) the said decision resulted in a huge loss to the
public exchequer and (vi) the sale had jeopardised the employment of 11000 odd
workers who faced retrenchment as a result of the sale.

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On behalf of petitioners 3 and 4 it was further contended that the sale will deprive them
of their fundamental right under Article 19(1) (g) to carry on their occupation as
industrial workers and that the sale is in violation of the provisions of Article 14 of the
Constitution being arbitrary and unfair. The respondents raised a preliminary objection
to the maintainability of the writ petition on the ground that the petitioners have no
locus standi and that the impugned sale did not violate any of the fundamental rights of
the petitioners.ACT - Constitution of India-Article 19(1)(g)-Sale of redundant/retired
plants & equipment-Occupation of an industrial worker-Whether affected by such sale-
Article 14- Whether violated-Article 43A-Wrongs committed by management in public
sector whether can be remedied-Article 32-Access to Justice-Public Property
by sale-When and by whom can the sale be set aside.

ISSUES

1. To understand whether the Government of India had violated Article 19(1)(g) i.e
the right to practice the trade of the Union members
2. To understand whether the Government of India had violated the right to
Equality under Article 14
3. To understand whether the Government of India had acted arbitrarily

JUDGEMENTS

The Government of India won the case.

The following are judgements related to Article 19(1)(g)

 The petitioners' right under Art. 19(1)(g) to carry on their occupation as

industrial workers was not affected by the sale, nor was their fundamental right,
if any, under Article 14 of the Constitution violated.

 There is no substance in the grievance that the petitioners' right under Article
19(1)(g) is violated or is in the imminent danger of being violated by the
impugned sale, since not only did the sale not affect the employment of the
workers employed in the Factory, but those of them who were rendered surplus
from time to time on account of the closure of the plants were absorbed in
alternate employment in the same complex.

 The right of petitioners 3 and 4 and of the other workers is not, in any manner,
affected by the
impugned sale. The right to pursue a calling or to carry on an occupation is not
the same thing as the right to work in a particular post under a contract of
employment. If the workers are retrenched consequent upon and on account of
the sale, it will be open to them to pursue their rights and remedies under the

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 Industrial Laws. The closure of an establishment in which a workman is for the
time being employed does not by itself infringe his fundamental right to carry on
an occupation which is guaranteed by Article 19(1)(g) of the Constitution.

 Article 19(1)(g) confers a broad and general right which is available to all
persons to do work of any particular kind and of their choice. It does not confer
the right to hold a particular job or to occupy a particular post of one's choice.
Even under Article 311 of the Constitution, the right to continue in service falls
with the abolition of the post in which the person is working. The workers in the
instant case can no more complain of the infringement of their fundamental right
under Article 19(1)(g) than can a Government servant complain of the
termination of his employment on the abolition of his post. The choice and
freedom of the workers to work as industrial workers is not affected by the sale.
The sale may at the highest affect their locum, but it does not affect their locus, to
work as industrial workers.

 The sale has jeopardised the employment of 11000 odd workers who face
retrenchment as a result of the sale. Petitioners 3 and 4 support this petition
under Article 32 of the Constitution by contending that the sale will deprive them
of their fundamental right under Article 19(1)(g) to carry on their occupation as
industrial workers. They contend further that the sale is in violation of the
provisions of Article 14, since it is arbitrary and unfair. The learned Attorney
General, who appears on behalf of the Union of India, has raised a preliminary
objection to the maintainability of the writ Petition on the ground that in the first
place, the petitioners have no locus standi to file the petition and secondly, that
the impugned sale does not violate any of the fundamental rights of the
petitioners.

 The grievance of the petitioners is that two of their fundamental rights are
violated by the sale, one under Article 19(1) (g) and the other under Article 14 of
the Constitution. We find no substance in the grievance that the petitioners' right
under Article 19(1)(g) is violated or is in the imminent danger of being violated
by the sale. That Article confers on all citizens the right to practise any profession
or to carry on any occupation trade or business. The right of the petitioners to
carry on an occupation is not infringed by the sale mediately or immediately,
actually or potentially, for two reasons. In the first place, Shri R. C. Malhotra, who
is the Chief Engineer of the Sindri Unit, says in paragraph 5 of the counter-
affidavit filed by him on behalf of the FCI, that although the old plants and
equipment had to be shut down from 1976 to 1979 because they had become
redundant, unsafe or unworkable, no employee was deprived of his employment
on that account. Shri Malhotra says further in the same paragraph and in
paragraph 6 of the counter-affidavit, that the management of the FCI had decided
to deploy the workmen working in the plants that had to be shut down in various
other plants set up under the scheme of modernisation and rationalisation and in
the various facilities that had been renovated in the Sindri complex itself. Thus,
not only did the sale not affect the employment of the workers employed in the
Factory, but those of them who were rendered surplus from time to time on
account of the closure of the plants were absorbed in alternate employment in

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 the same complex. Secondly, the right of Petitioners 3 and 4 and of the other
workers to carry on the occupation of industrial workers is not, in any manner
affected by the impugned sale. The right to pursue a calling or to carry on an
occupation is not the same thing as the right to work in a particular post under a
contract of employment. If the workers are retrenched consequent upon and on
account of the sale, it will be open to them to pursue their rights and remedies
under the Industrial Laws.

 The closure of an establishment in which a workman is for the time being

employed does not by itself infringe his fundamental right to carry on an
occupation which is guaranteed by Article 19(1)(g) of the Constitution.
Supposing a law were passed preventing a certain category of workers from
accepting employment in a fertiliser factory, it would be possible to contend then
that the workers have been deprived of their right to carry on an occupation.
Even assuming that some of the workers may eventually have to be retrenched
in the instant case, it will not be possible to say that their right to carry on an
occupation has been violated. It would be open to them, though undoubtedly it
will not be easy, to find out other avenues of employment as industrial workers.

 Article 19(1) (g) confers a broad and general right which is available to all
persons to do work of any particular kind and of their choice. It does not confer
the right to hold a particular job or to occupy a particular post one's choice. Even
under Article 311 of the Constitution, the right to continue in service falls with
the abolition of the post in which the person is working. The workers in the
instant case can no more complain of the infringement of their fundamental right
under Article 19(1)(g) than can a Government servant complain of the
termination of his employment on the abolition of his post. The choice and
freedom of the workers to work as industrial workers is not affected by the sale.
The sale may at the highest affect their locum, but it does not affect their locus, to
work as industrial workers. This is enough unto the day on Art. 19(1)(g).

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