MODULE 1

FUNDAMENTAL RIGHTS (ARTICLE 12-13):

1. Concept of Fundamental Rights:
• Part III of the Constitution of India, titled as “Fundamental Rights” secures to the people of
India, certain basic, natural and inalienable rights. These rights have been declared essential
rights in order that human liberty may be preserved, human personality developed and an
effective social and democratic life promoted.
• The aim behind having a declaration of fundamental rights is to make inviolable certain
elementary rights appertaining to the individuals and to keep them unaffected by the shifting
majorities in the Legislatures. It is to preserve certain basic human rights against interference
by the State.
• The inclusion of this Chapter on Fundamental Rights, in the Constitution is in accord with the
trend of modern democratic thought. These rights are basic to a democratic party. The
guarantee of certain basic human rights is an indispensable requirement of the free society.
• The origin of the concept of fundamental rights may be traced to the 13th Century England. It
was in 1215 that the people England revolted and enforced their demand for reiteration of
their claims against the Royal Absolutism. The King was made to acknowledge that there
were certain rights of the subjects which could not be violated even by the sovereign in
whom all power was legally vested.
• In 1628, the Petition of Rights was presented to King Charles I, which was the first step in the
transfer of sovereignty from the King to Parliament. It was passed as the Bill of Rights, 1689
which dealt with the rights and liberties of the British people.
• The Constitution of England is unwritten and the supremacy of Parliament is its dominant
characteristics. There is no formal declaration of fundamental rights of the people in England.
The concept of “Rule of Law” is the very bed-rock of British Constitution which explains that
an individual in England has the right and freedom to take whatever action he likes, so long
as he does not violate any rule of the ordinary law of the land.
• The Americans adopted the Constitution making for securing their Bill of Rights. The original
constitution framed in 1787 and brought into force in 1789 did not contain any fundamental
rights for the Americans. It was met with serious condemnation and subsequently the first
ten amendments were enacted in 1791, incorporating the fundamental rights.
2. Fundamental Rights in India (Article 12):
• The framers of the Indian Constitution followed the American model in adopting and
incorporating the fundamental rights for the people of India. The Constitution not only
secures the fundamental rights but also provides a speedy and effective remedy for their
enforcement.
• Part III of the Constitution is said to contain the Bill of Rights for the people of India. These
rights are similar to the Bill of Rights in the US Constitution. These Rights are the necessary
consequences of the declaration contained in the Preamble of the Constitution, wherein
People of India solemnly resolved to constitute India into a sovereign, socialist, secular,
democratic republic and to secure to themselves justice, liberty, equality and fraternity.
• In I.R Coelho v. State of Tamil Nadu, AIR 2007 SC 861, it has been held that the Rights were
not limited, narrow rights, but provide a broad check against the violations and excesses by
 the State authorities. These rights have proved to be the most significant constitutional
control on the Government, particularly legislative power.
• The Fundamental Rights guaranteed by Part III are more specific and detailed. They have to
be exercised to the limitations embodied in that very Part itself. The rights are not absolute
or unrestricted.
• In A.K Gopalan v. State of Madras, AIR 1950 SC 27, it has been held that an organised society
is a pre-condition for civil liberties. The possession and enjoyment of all rights are subjected
to such reasonable conditions as may be deemed, by the governing authority of the country,
essential to the safety, health, peace, general order and morals of the community.
• It has been emphasized that Fundamental Rights are not to be read in isolation. They have to
be read along with the Chapter on Directive Principles of State Policy and the Fundamental
Duties enshrined in Article 51A. The restrictions imposed on Fundamental Rights, in the
interest of achieving the lofty ideals contained therein would be permissible as imposed in
the national interest or for the purpose of purity of public life or for providing social and
economic justice to the people of India.
• The Fundamental Rights have not been declared immutable but these are to be kept in
conformity with the changing socio-economic conditions. For the purpose, the Constitution
confers power on the State, the constituent power, the power to amend the Constitution
including the Fundamental Rights.
A. Suspension, Amendment or Denial of Fundamental Rights:
* The rights contained in Part III are not absolute. In the larger interest of the society,
these rights can be curtailed or suspended in the following cases:

Under Article 33, Parliament may by law restrict or abrogate any of the
fundamental rights in their application to the members of the Armed Forces or
Forces charged with maintenance of public order or other analogous forces.

Article 34 authorizes Parliament to make law to grant immunity in respect of acts
done by any person during the operation of martial law in the country.

While Proclamation of Emergency issued under Article 352(1) is in operation, the
rights contained in Article 19(1) stand automatically suspended.
B. Fundamental Rights As Available Against the State:
* According to the philosophy behind the Fundamental Rights, they are available only
against the State, for they are limited upon the powers of the Government, legislative as
well as the executive. It is against the might of the State that an individual needs
constitutional protection. Private action is sufficiently guarded against under the
ordinary law of the land.
* In P.D Shamdasani v. Central Bank of India, AIR 1952 SC 59, it has been held that the
language and structure of Article 19 and its setting in Part III of the Constitution, clearly
shows that the Article was intended to protect those freedom against State action other
than in the legitimate exercise of its power to regulate rights in the public interest.
* The Fundamental Rights are available only against the State. However there are
provisions in Part III of the Constitution, which imposes limitations upon the actions of
private individuals as well.
* Article 12 defines the term “State” for the purposes of Fundamental Rights. It provides
that unless the context otherwise requires 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.
 * In Rajasthan State Electricity Board v. Mohan Lal, AIR 1967 SC 1857, it has been held that
the expression ‘other authorities’ in Article 12 would include all constitutional or
statutory authorities on whom powers were conferred by law. It was not necessary that
the statutory authority to be included in the term “State” under Article 12 should be
engaged in performing governmental or sovereign functions.
* In Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331, it has been held that of a body or
authority was found to be an agency or instrumentality if the Government, it might be
included in the term ‘State’ under Article 12 falling under the expression ‘other
authorities’.
* A co-operative society is nothing but a body created and registered in accordance with
and governed by the provisions of the Co-operative Societies Act with certain aims and
objects, subjected to certain rules, regulations and directions under the provisions of the
Act. Such a society is not created by the provisions of the Act itself, nor the State
exercised any control over such a society, has been held not to be an authority within
the expressions “State” under Article 12.
3. Justiciability of Fundamental Rights (Article 13):
A. Fundamental Rights and State Action:
• Article 13 provides each teeth to the fundamental rights. It makes these rights justiciable
i.e., enforceable in the Courts. It declares all laws, whether pre-Constitutional or post-
Constitutional, void if they are inconsistent with or abridged or violate the fundamental
rights. Article 13 deals with the impact of Fundamental Rights on the State action.
• Article 13, in fact provides for the judicial review of all laws, whether past or future. It is
said to be the Character for judicial review. This power is exercisable by the Supreme
Court as well as by the High Court under Article 32 and 226 respectively.
• In Renu v. District & Sessions Judge, Tis Hazari, AIR 2014 SC 2175, the power of judicial
review over legislative action has been declared to be an integral and essential feature,
constituting part of basic structure of the Constitution.
B. Fundamental Rights are Prospective in Operation- Doctrine of Void Ab Initio:
• Fundamental rights are secured by the Constitution when it came into force on 26th
January 1950. Thus no fundamental right was available to the people of India prior to the
commencement of the Constitution.
• The acts done or transactions completed before the commencement of the Constitution,
fundamental rights cannot be invoked and their validity cannot be determined at the
touchstone of the fundamental rights, but according to the laws which were in force at
the time of the commission of the acts or completion of the transactions.
C. Doctrine of Severability:
• Clause (1) of Article 13 provides that all laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as they are inconsistent with the
provisions of the Part, shall to the extent of such inconsistency, be void.
• Clause (2) of Article 13 provides that the State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of this
Clause shall to the extent of the contravention be void.
• Where only a part of the law is inconsistent with or contravenes the fundamental right, it
is only part which shall be void under Article 13 and not the whole of the law. The Courts
apply the doctrine of severability or separability to separate the valid portion of the law
from the invalid portion.
 • When a statute was in part, void, it would be enforced as regard the rest, if that part was
severable from what was invalid. If the offending portion of a statute could be severed
without doing violence to the remaining part thereof, then such a course would be
permissible.
• The Supreme Court of India has summarized the rules of doctrine of severability as
follows:
* In determining whether the valid parts of a Statute are separable from the invalid
parts thereof, it is the intention of the Legislature that is the determining factor.
The rest is whether the Legislature would have enacted the valid parts, had it know
that the rest of the Statute was invalid.
* If the valid and invalid provisions are so inextricably mixed up that they cannot be
separate from one another, then the invalidity of a portion must result in the
invalidity of the Act in its entirety.
* If the valid and invalid provisions are so distinct and separate that after striking out
what is invalid what remains is, in itself, a complete code, independent of the rest,
then it will be upheld notwithstanding that the rest has become unenforceable.
* Even when the provisions which are valid are distinct and separate from those
which are invalid, if they all form part of a single scheme, which is intended to be
operated as a whole, then the invalidity of a part will result in the failure of the
whole.
* When the valid and invalid parts of a Statute are independent and do not form part
of the scheme, but what is left after omitting the invalid portion is so thin and
truncated, as to be in substance different from what it was when it emerged out of
the Legislature, then also the Statute will be rejected in its entirety.
* If after the invalid portion is expunged from the Statute, what remains cannot be
enforced without making alterations and modifications therein, then the whole of it
must be struck down as void, as otherwise it will amount to judicial legislature.
• The doctrine of severability has been applied by the Supreme Court in case of challenge to
the validity of an amendment of the Constitution, on the ground of disregard of the
substantive limitation on the amending power of Parliament, namely, alteration of the
basic structure of the Constitution.
• In Kihota Hollohon v. Zachilhu, AIR 1993 SC 412,¸it has been ruled that the principle of
severability could be equally applied to a composite amendment which contained
amendments in provisions which did not require ratification by States as well as
amendments in provisions which required such ratification.
D. Validation of Void Laws- Doctrine of Eclipse:
• In Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128, it has been held that a
law in force before the commencement of the Constitution, if inconsistent with a
fundamental right, did not become void ‘in toto’ or for all purposes or all times or for all
persons then such law becomes void only to the extent of its inconsistency with the
fundamental right. This law became void qua persons, whose fundamental right, it
violated.
• The only effect of Article 13(1) on the inconsistent law was that qua persons entitled to
the fundamental right, the law became ineffective or inoperative for the time being. The
law got into a dormant or moribund state or that it was shadowed by the fundamental
right it violated or that it was so eclipsed.
 • If by an amendment of the fundamental right, enacted subsequent to the commencement
of the Constitution, the shadow cast o that law was removed, the law would get revived
and operative and to achieve this effect, courts apply the doctrine of eclipse.
• The doctrine means that the inconsistent law did not become a dead law but was eclipsed
for the time being by the fundamental right. The effect of the subsequent amendment
was to remove the shadow and to make the law free from all blemish or infirmity.
• In view of the express prohibition against the State, not to make a law which abridges or
takes away a fundamental right, contained in Clause (2) of Article 13, it is a known fact
that post-Constitutional Law contravening a fundamental right, would be ultra vires the
State and hence void ab ignition. It is a stillborn law and therefore cannot be revived by a
subsequent amendment of the fundamental rights. Hence the doctrine of eclipse is not
applicable to post-Constitution law.
• In Deep Chand v. State of U.P, AIR 1959 SC 648, the Supreme Court distinguished between
Clause (1) and (2) of Article 13. It has been held that while under Clause (1), a pre-
Constitution law subsisted except to the extent of its inconsistency with the provision of
Part III, no post-Constitutional law could be made contravening the provisions of Part III
and therefore the law to the extent of the contravention, would be nullity from its
inception.
E. Doctrine of Waiver and Fundamental Rights:
• The “Doctrine of Waiver” explains that a person, entitles to a right or privileges is free to
waive that right or privilege. It is voluntary relinquishment or abandonment of a known
existing legal right or privilege.
• Waiver is an agreement between the parties and a party fully knowing of its rights agrees
not to assert a right for a consideration. Once a person has so waived his right, he would
not be allowed to claim it afterwards. The question arises as to whether the doctrine of
waiver is applicable to fundamental rights also.
• In Basheshar Nath v. Commissioner of Income Tax, AIR 1959 SC 149, it has been held that
fundamental rights could not be waived. As regards Article 14, the Court held that it was
in form an admonition addressed to the State and therefore imposed an obligation on the
State, as a matter of public policy, with a view to implement its object of ensuring the
equality of status and opportunity, which every Welfare State such as India, was by her
Constitution, expected to do.
F. Definition of the terms “Law” and “Laws in Force”:
• Article 13(3)(a) provides that the term law includes any Ordinance, order, bye-law,
regulations, notification, custom or usage having in the territory of India the force of law.
The object is to ensure that fundamental rights should not be infringed or violated, not
only by the State, its legislative or executive organs but also by its instrumentalities or
agencies.
• The term “law” not only refers to enacted law or legislation but includes even the
administrative order issued by an executive officer. Ordinances issued by the President or
the Governor in the exercises of powers conferred by the Constitution, delegated
legislation, which may b made under other names such as ‘Scheme’, ‘resolution’, etc
would be included within the purview of the term law and includes sub-delegations too.
• Statutory rules and the rules framed under Article 309 fall within the ambit of law under
Article 13. A Government Notification issued under a Statue are also under law within the
meaning of Article 13.
 • Article 13(3)(b) provides that the expression ‘laws in force’ used in Clause (1) thereof,
includes laws passed or made by a Legislative or other competent authority in the
territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas.
G. Whether Amendment under Article 368 to be included as Law under Article 13:
• In Shankari Prasad v. Union of India, AIR 1951 SC 458, it has been held that an
amendment under Article 368 was enacted by the Parliament in the exercise of its
constituent power, while the term ‘law’ used in Article 13 referred to the exercise of
ordinary legislative power conferred on Parliament by provisions of the Constitution other
than Article 368.The amendment is not included in the terms ‘law’ under Article 13.
• In Golaknath v. State of Punjab, AIR 1967 SC 1643, it has been held that the term “law” in
Article 13 did include an amendment of the Constitution passed under Article 368. This
led to the Constitution (24th Amendment) Act, 1971 which inserted Clause (4) in Article 13
and Clause (3) in Article 368 to the effect that nothing in Article 13 shall apply only to any
amendment of this Constitution made under Article 368.

RIGHT TO EQUALITY (ARTICLE 14-18):

1. Introduction:
• The first Fundamental Right secured to the People of India is the ‘Right to Equality’. It is
contained in Article 14 to 18. It has been said that Article 14 to 21 read with the Preamble,
which prohibit discrimination on the basis of caste, color, creed, religion or gender form the
heat and soul of the Constitution.
• The concept of equality has been held basic to the rule of law and is regarded as the most
important postulate of republicanism. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC
2299, it has been held that the right to equality conferred by Article 14 is a Basic Structure of
the Constitution and an essential feature of democracy or rule of law. It is a right which more
than any other is a basic postulate of our Constitution.
• Equality clauses, embodied in Article 14 does not speak of mere formal equality before the
law but embodies the concept of real and substantive equality which strikes at the
inequalities arising in account of vast social and economic differentiation and is thus
consequently an essential ingredient of social and economic justice.
2. Equality Before Law and Equal Protection of Laws (Article 14):
• Article 14 provides that the State shall not deny to any person equality before the law or
equal protection of laws within the territory of India. The term ‘State’ in Article 14 means as
defined by Article 12. It includes not only the legislative as well as the executive organs if the
State but also the local authorities, the instrumentalities and agencies of the Government.
• The obligation imposed on the State by Article 14 is for the benefit of all persons, within the
territory of India. The benefit of Article 14 whether he is a citizen or an alien, is entitled to
the protection of this Article.
• An alien or a foreign national cannot claim equal rights under Article 14 with that of the
Indian nationals, so far as the grant of Citizenship of India is concerned. In David John Hopkins
v. Union of India, AIR 1997 Mad 366, it has been held that foreign national did not have any
fundamental right guaranteed for the grant of Citizenship of India, which matters, the
Government of India had got unrestricted power under the Citizenship Act, 1955 to refuse
 citizenship without assigning any reason whatsoever and that a foreign national could not
claim equal rights under Article 14 with that of the Indian nationals.
• Equality before law finds place in almost all written Constitutions that guarantee
fundamental rights. It is English in origin. It is a familiar feature of the what Dicey called the
Rule of Law which means that no man is above the law and that every person whatever be
his rank or condition, is subjected to the ordinary law of the lad and is amenable to the
jurisdiction of the ordinary tribunals.
• The phrase ‘equal protection of laws’ is based on Section 1 of the Fourteenth Amendment of
the Constitution of the United States of America adopted in July 28,1868. This phrase is
interpreted to means subjection of equal laws applying to all in the same circumstances.
• Article 7 of the Universal Declaration of Human Rights proclaimed on December 10, 1948
uses both the expression. It says that all are equal before the law and are entitled without
any discrimination to equal protection of the law.
• The rule of equality is however not an absolute one and there are a number of exceptions to
it. Equality secured by Article 14 does not means absolute equality, which is a human
impossibility. It is a comparative concept and does not means that the same laws should
apply to all persons. Article 14 does not make it incumbent on the Legislature always to make
laws applicable to all persons generally.
• Article 14 permits classification which is merely a systematic arrangement of things into
groups or classes usually in accordance with some definite scheme. The classification
permitted by Article 14 must rest upon reasonable grounds of distinction. It must not be
arbitrary, artificial or evasive. It must be a reasonable classification.
• Article 14 prohibits class legislation. The term ‘class legislation’ means legislation
differentiating between the same class of persons. When person belong to the same class or
that they are equal among themselves in certain respects, they have to be treated equally in
such matters. Law would be violative of Article 14 if it treats these persons differently.
• In Satyawati Sharma v. Union of India, AIR 2008 SC 3148, it has been ruled that the Court
might strike down a legislation in subsequent litigation although it was held to be reasonable
and rational at the time of its enactment.
• In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Supreme Court emphasized on the
content and reach of the great equalizing principle enunciated in Article 14. Warning against
any attempt to truncate its all embracing scope and meaning which might violates its activist
magnitude and equality is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrine limits.
• Discrimination arising out of judicial adjudication is not violative of Article 14. Article 14 has
acquired new and dynamic meaning. It is a facts that Article 14 requires not only reasonable
classification but also that the classification must be just, fair and reasonable. The
classification would not be reasonable if it is made without observing the rules of natural
justice.
• Basis of Classification:
* Geographical Basis: Article 14 requires that uniform laws be enacted for the whole of the
territory on India. A law may be applicable to one part of the territory of India and not to
the other parts depending on particular circumstances and peculiar geographical conditions
pervading in that area. A classification may therefore be properly made on geographical
basis.
 * Historical Consideration: A classification may be made on the basis of historical reasons.
Section 87B of the Civil Procedure Code, 1908 granted immunity from civil process to the
ex-Rulers of Indian Princely States.
* A classification may be made depending upon the nature of business. In Harakchand
Ratanchand Banthia v. Union of India, AIR 1970 SC 1453, it has been held that the Gold
(Control) Act, 1968 was not violative of Article 14 since the licensed dealers were traders
doing business of buying and selling ornaments, while the goldsmiths were essentially
craftsmen doing the actual manufacture of ornaments.
* Time Based: A classification may be made with reference to time. A law may exempt the
houses built after a particular date from the operation of the Rent Control Act, for
encouraging the construction of new houses.
* Nature of Persons: Public officials and non-public officials belong to different classes.
Section 197 of CrPc which requires prior sanctions from the appropriate authority before a
public servant is prosecuted, while no sanction is needed for prosecuting private persons is
not violative of Article 14.
* Nature of Offences: Gravity of the offences can form the basis of valid classification. The
offences excluded from the benefit of remission under the impugned Notification had been
properly classified which classification in the opinion of law is valid classification for the
purpose of making the convicts ineligible for grant of remission.
* Educational Qualification: Classification on the basis of educational qualification is
reasonable as it satisfy the doctrine of equality as adumbrated in Article 14. The State, as an
employer, therefore is entitled to fix separate quota of promotion for the degree holders,
diploma-holders and certificate holders, separately in the exercise of its rule making power
under Article 309.
* In Favor of State: The term ‘person’ in Article 14 does not include ‘State’. Therefore a
classification which treats the State, differently from persons may not be violative of the
rule of equal protection of law.
• Article 14 requires that classification to be constitutionally valid, it must be reasonable not
only substantially but also from the procedural stand-point. Thus law setting or authorizing
the setting up of special courts, applying a special procedure for trial of offences is tested at
the touchstone of Article 14.
• It is a legal position that the policy decision taken by the State or its
authorities/instrumentalities is beyond the purview of the judicial review unless the same is
found to be arbitrary, unreasonable, in contravention with statutory provisions or violates
the rights of the individual guaranteed under the statute.
• Admission to educational institutions has been consistently a subject of judicial scrutiny and
review, for more than three decades. In the context of admission to institutions imparting
education in professional courses, the question as to giving preferential treatment to
candidates on various grounds has been considered by the Courts and the approach of the
Courts, has been that such preferential treatment must be consistent with the mandate of
Article 14.
3. Prohibition of Discrimination against Citizens (Article 15):
• Article 15 titled as Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth contains provisions for a particular application of the general principle of
equality of treatment embodied in Article 14. Article 15 secures the right against
discrimination, only to citizens and for that non-citizens cannot invoke the provisions of this
Article.
 • Clause (1) of Article 15 provides that the State shall not discriminate against any citizen on
ground only of religion, race, caste, sex, place of birth or any of them. The word ‘discriminate
against’ means to make an adverse distinction with regard to distinguish unfavorably from
others.
• In State of Rajasthan v. Thakur Pratap Singh, AIR 1960 SC 1208, a Notification issued under
the Police Act, 1851 provided that in a disturbed area, the expenses incurred by the State for
stationing additional police force were to be borne by the inhabitants of that area but
exempted the Harijan and Muslim inhabitants from the payment. The exemption granted on
the basis of the caste and religion, the prohibited grounds, was struck down as violative of
Article 15(1).
• In Article 15(1), the emphasis seems to be on the word ‘only’ running with the prohibited
grounds. It indicates that it is only where the discrimination rests solely on the ground of
religion, race, caste, sex or place of birth that Article 15 comes into play.
• Clause (2) of Article 15 is a particular application of the general principle against
discrimination embodied in Clause (1). While Clause (1) forbids discrimination against citizens
in all matters, Clause (2) deals only with cases of discrimination as regards to the use or
access to public places mentioned therein.
• In Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473, it has been held
that whenever any fundamental rights which was enforceable against private individuals was
being violated, it would be the constitutional obligation of the State to take necessary steps
for the purpose of interdicting such violations and ensuring observances of the fundamental
right by the private individual who was transgressing the same.
• Clause (3) of Article 15 provides that nothing withstanding to this article shall prevent the
State from making any special provision for women and children. This Clause is an exception
to the rule against discrimination embodied in Clause (1) as well as Clause (2).
• In M.R Balaji v. State of Mysore, AIR 1963 SC 649, it has been held that ratio is confined to
the reservation under Article 15(4) and 16(1) and that it would not be applicable in case of
special provisions made for women under Article 15(3).
• Clause (4) of Article 15 contains that nothing in this article of in clause (2) of Article 29 shall
prevent the State from making any special provisions for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes.
• Clause (5) of Article 15 added vide Constitution (Ninety-Third Amendment) Act, 2005 enables
the State to make, by law, special provisions for the development of ay socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational institutions,
including the private educational institutions whether aided or unaided by the State other
than the minority educational institutions referred in Clause (1) of Article 30.
4. Equality of Opportunity in Matters of Public Employment (Article 16):
• Another particular application of the general principle of equality or protection clause
enshrined in Article 14 is contained in Article 16 which secures to every citizen equality of
opportunity in matters relating to public employment.
• Clause (1) of Article 16 guarantees to all citizens, equality of opportunity in matters relating
to employment or appointment to any office under the State. Clause (2) further strengthens
the guarantee contained in Clause (1) by declaring that no citizen shall on grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or
discriminated against in respect of any employment or office under the State.
• In Nihal Singh v. State of Punjab, AIR 2013 SC 3547, it has been held that Article 16 is
applicable only in case of employment or appointment to an under the State ad making of
appointment to a public office is a prerogative of the particular Government.
• Article 16 does not prevent the State from prescribing the requisite qualifications and the
selection procedure for recruitment or appointment. It is for the employer to decide and it is
further open to the appointing authority to lay down such pre-requisite conditions of
appointment as would be conducive to the maintenance of proper discipline amongst
government servants.
• The qualifications or the selective test must not be arbitrary. These must be based on
reasonable ground and must have nexus with the efficient performance of the duties and
obligations of the particular office or post.
• In the matter of appointment, it is essential that the authority concerned has unfettered
powers and in such matters, the Court should refrain from interfering unless the
appointments so made, or the rejection of a candidate is found to have been done at the cost
of fair play, good conscious and equity.
• In State of Gujrat v. Arvind Kumar T. Tiwari, AIR 2012 SC 3281, the father of the respondent
was working as ASI of Police and died in harness and immediately thereupon, the respondent
filed an application on compassionate ground for the post of peon. The eligibility criteria was
passing of 10th Standard class however the respondent was only 7th Standard class pass and
hence his claim was rejected even on humanitarian ground.
• Denial of equality of treatment on the sole ground of drawing a particular amount of salary
on a particular date, while the other conditions relating to qualifications and requisite
experience being equal, would amount to violation of the guarantee in Article 16(1) and a
person’s past political affinities cannot be a ground for denying him the guarantee of Article
16(1).
• Public employment is held to be a facet of right to equality envisaged under Article 16.
Recruitment rules are framed with a view to give equal opportunity to all the citizens entitled
for being considered for recruitment in the vacant posts. When the rules have been made,
then the Government can make the appointment only in accordance with the rules.
• In State of M.P v. Ramashanker Raghwanshi, AIR 1983 SC 374, it has been held that politics is
held to be no crime and therefore denial of employment to an individual because of his
political affinity would be offending Fundamental Rights under Article 14 and 16.
• Recruitment to public services should be held strictly in accordance with the terms of
advertisement and the recruitment rules, if any. Deviation from the rules allows entry to
ineligible persons and deprives many others who could have competed for the post.
• In Lila Dhar v. State of Rajasthan, AIR 191 SC 1777, it has been held that the object of any
process of selection for entry into public service was to secure the best and the most
suitable person for the job, avoiding patronage and favoritism.
• The appointment made on contract basis or on daily wages or in violation of Rules being void
ab initio cannot be regularized. The regularization can only be done in accordance with the
Rules and not dehors the Rules.
• In State of UP v. Ram Adhar, AIR 2008 SC 3243, it has been held that a temporary employee
had no right to the post. There was no principle of law that a person appointed in a
temporary capacity has a right to continue till regular selection. Long continuation of such
employment on irregular basis would not entitle them, to claim equality with regularly
recruited employees.
• To claim the protection of Article 16(1), the person must not be guilty of adopting any
wrongful means. It is a fact that a person, who indulges in suppresso veri and suggestion falsi
and obtains employment by false pretence does not deserve any public employment.
• Clause (2) of Article 16 declares that no citizen shall on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated
against in respect of any employment or office under the State.
• Clause (3) empowers the Parliament to make any law prescribing in regard to a lass or classes
of employment or appointment to an office under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to the residence within that
State or Union territory prior to such employment or appointment.
• Clause (4) of Article 16 expressly permits the State to make provisions for the reservation of
appointments or posts in favor of any backward class of citizens which in the opinion of the
State is not adequately represented on the services under the State.
• Article 16(4) does not say that only such Scheduled Castes/Tribes which are mentioned in the
Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution issued for
a particular State, alone would be recognized as backward classes of citizens and none else.
• In Indra Sawhney v. Union of India, AIR 1993 SC 477, it has been held that Clause (4) of Article
16 is not a exception to Clause (1) rather it is an enabling provision, an instance of
classification implicit in and permitted by Clause (1).
A. Mandal Commission:
* The law relating to the reservation has been laid down in a series of landmark judgments
of the Supreme Court. With a view to settle the law, in an authoritative way, a special
Bench of nine Judges of the Supreme Court was for the first time constituted in this
case.
* The main opinion on various aspects of reservations are as follows:

Until a law is made or rules are issued under Article 309 with respect to reservation
in favor of backward classes, it would always be open to the Executive to provide
for reservation of appointment/posts in favor of the Backward Classes by an
executive order.

Clause (4) of Article 16 is not an exception to Article 16(1). It is an instance of
classification implicit in and permitted by Article 16(1).

The word ‘provisions for the reservation of appointments/posts’ in Article 16(4)
does not contemplate only one form of provisions namely reservation simpliciter.

Article 16(4) is exhaustive of the special provisions that can be in favor of the
backward class of citizens.

Article 16(4) is not exhaustive of the concept of reservations. It is exhaustive of
reservations in favor of backward classes alone.

For identification of backward classes one has to begin somewhere with some
group, class or section.

It is not necessary for a class to be designated as a backward class that it is situated
similarly to the Schedules Castes/Tribes.

The backwardness contemplated by Article 16(4) is mainly social backwardness.

A backward class cannot be determined only and exclusively with reference to
economic criterion.

It is permissible for the Government or other authority to identify a backward class
of citizens on the basis of occupation-cum-income without reference to caste.

There is no constitutional bar to classify the backward classes of citizens into
backward and more backward categories.

The reservation contemplated in Article 16(4) should not exceed 50%.

The rule of 50% shall be applicable only to reservations proper, it shall not be
indeed, cannot be applicable to exemptions, concessions or relaxations, if any,
provided to Backward Classes under Article 16(4).

Article 16(4) does not contemplate or permit reservations in promotions as well.

Reservations for backward classes should not be made in services and positions
where merit alone stands.
B. Justice Ram Nandan Committee (Creamy Layer):
* In Indra Sawhney v. Union of India, AIR 1993 SC 477, the Supreme Court directed the
Government of India to specify the basis of exclusion whether on the basis of income,
extent of holding or otherwise of ‘creamy layer’.
* In accordance with the direction of the Supreme Court, the Government of India
appointed an expert committee known as “Justice Ram Nandan Committee”, to identify
the creamy layer among the socially and educationally backward classes.
* The Committee submitted its report on 16th March 1993 which was accepted by the
Government. It was published in Column 3 of the Schedule to the Government of India,
Ministry of Personnel Department Office Memorandum, dated 8-9-1993.
* In Ashok Kumar Thakur v. State of Bihar, AIR 1996 SC 75, the Supreme Court quashed
the criteria laid down by the State of Bihar and Uttar Pradesh for identifying the “creamy
layer” and excluding the affluent sections of the Backward Classes for the purposes of
job reservations.
* The Supreme Court has declared that the additional conditions laid down by the States
had no nexus with the object sought to be achieved and were arbitrary and hence
violative of Article 16(4) and 14 as also against the law laid down in Mandal Case.
* The non-exclusion of creamy layer in backward classes was violative of Article 14 ad
16(1) and also Article 16(4). It would be a breach not only of Article 14 but of the basic
structure of the Constitution. Lack of adequate representation of a particular backward
class in services of the State, cannot be the sole ground for continuance of creamy layer.
• In Kuldeep Kumar Gupta v. H.P.S.E.B, AIR 2000 SC 308, it has been rules that providing quota
for specified category of personnel, whenever feeder category consisted of different category
of persons, did not amount to reservation in promotional cadre within the ambit of Article
16(4). Such a provision actually effectuated the mandate engrafted in Article 16(1) since each
category of persons in feeder category would get the opportunity of being considered for
promotions, making the promotional cadre equi-balanced.
• Clause (5) of Article 16 is the third exception to the general rule of equality of opportunity
contained in Article 16(1). Clause (2) prohibits discrimination in the matters of employment
under the State, on the ground of religion.
C. Equality at Work:
* The right of equal pay for equal work has been held to have assumed the status of a
fundamental right in service jurisprudence having regard to the Constitutional mandate
of equality is Article 14 and 16.
* Equal pay for equal work is not an abstract principle and not always easy to apply. It
requires, for its application, complete and wholesale identity between the employees
claiming identical pay scale with those who have already earned such pay scale.
 * The principle has no mechanical application in every case of similar work. It is invoked to
correct irrational and inexplicable pay differentiation such as discriminated group sex-
based, color-based and caste-based.
* The principle cannot always be translated into a mathematical formula. A mere
nomenclature is not enough to come to a conclusion that the claimant is doing the same
work as done by the others. Equality is not based on designation or the nature of work
done but based on several factors.
* Not just a comparison of physical activity, the principle requires consideration of various
dimensions of a given job. Accuracy/dexterity required, may differ from job to job. It
must be left to be evaluated and determined by an expert body.
* It is for the claimant to substantiate a clear-cut basis of equivalence and a resultant
hostile discrimination. A scale of pay is attached to a definite post. The rule of equal pay
for equal post is not applicable to contract laborer, since it is the contract under which
he is employed containing the terms and conditions, which will govern him.
* A daily wager holds no posts and cannot be equated with regular workman for the
purpose of wages. A daily wager is not required to possess the qualification prescribed
for regular workers nor does he have to fulfill the requirements as age, nor selected in
the manner in which regular employees are selected.
* A daily wager cannot claim the minimum of the regular pay scale of the regularly
employed. He is entitled to be paid minimum wages admissible to such employees as
prescribed.
5. Abolition of Untouchability (Article 17):
• Article 17 abolished the untouchability and forbids its practice in any form. It further declares
that the enforcement of any disability arising out of untouchability shall be an offence
punishable in accordance with law.
• The Protection of Civil Rights Act, 1955 has made significant changes in the original the
Untouchability (Offences) Act,1955. All offences relating to the practice of untouchability has
been made non-compoundable. It has been declared a duty of the public servants to
investigate the offences relating to untouchability.
• The State governments are empowered to impose collective fines on the inhabitants of an
area involved in or abetting the commission of offences under the Act. The punishments for
offences relating to untouchability has been enhanced.
• The word “untouchability” in the Protection of Civil Rights Act, 1955 has been used in the
same sense as in the Article 17 of the Constitution but this term has not been defined wither
in the Constitution of the Act.
• Article 17 places the term “untouchability” in inverted commas and accordingly the subject-
matter of this Article is not untouchability in its literal or grammatical sense, but the practice
as it has developed historically in India.
• In State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126, it has been held untouchability
was an indirect form of slavery and only an extension of caste system. Caste system and
untouchability, has stood together and would fall together.
• Article 17 has been held to be a very significant provision from the point of view of equality
before the law. It guarantees social justice and dignity of man, the twin privileges which were
denied to a vast section of the Indian society for centuries together.
• Article 17 declares the practice of untouchability in any of its form as an offence punishable
according to law. The term law in Article 17 includes a law passed before the coming into
force of the Constitution.
 • In People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473, it has been held
that whenever a fundamental right contained in Article 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.
6. Abolition of Titles (Article 18):
• Clause (1) of Article 18 abolished titles. It prohibits the State from conferring titles except
military or academic distinctions on any person whether a citizen or non-citizen. Clause (2) of
Article 18 prohibits a citizen of India from accepting any title from a foreign state.
• 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.
• Clause (4) further prohibits such a person from accepting any present, emolument or office
of any kind from or under any foreign State, without the due consent of the President of
India.
• It was realized in the Constituent Assembly that conferring of titles offended against the
fundamental principles of equality of all citizens, so solemnly sought to be enshrined in the
Constitution. In Dr. Dasarathi v. State of Andhra Pradesh, AIR 1985 AP 136, it was held that
the constitutional government consistent with its obligations under Article 14 and 18 could
not confer the title of Poet Laureateship on anyone. It was also held that the Institution of
Poet Laureateship could not be regarded as consistent wither with the nature of poetry with
the nature of poetry or with the democratic polity.
• Article 18 does not provide for any penalty for the violation of the prohibition contained
therein. Article 18 does not prohibit the State from conferring military or academic
distinction on any person. The conferment of titles like Bharat Ratna, Padma Vibhushan,
Padma Shri which are conferred in recognition of good work done by citizens in various field s
of activity are covered by this exception.
• In Balaji Raghavan v. Union of India, AIR 1996 SC 136, it has been held that the National
Awards do not amount to be titles within the meaning of Article 18(1). They should however
not be used as suffixes or prefixes. It was directed that a high level committee should be
appointed to look into the existing guidelines for conferring these National Awards.

RIGHT TO FREEDOM (ARTICLE 19):

1. Introduction:
• Article 19 guarantees to every Citizen of India the six basic fundamental rights. Article 19(1)
expressly secures the freedom to the citizens of India only. In State Trading Corporation v.
Commercial Tax Officer, AIR 1963 SC 1811, it has been explained that rights under Article
19(1) were conferred only on citizen and therefore the petitioner corporation not being a
citizen could not invoke Article 19.
• In R.C Cooper v. Union of India, AIR 1970 SC 564, it has been held that fundamental rights of
the shareholders as citizens were not lost when they associated to form a company. It has
been ruled that if the action of the State impaired the rights of the citizens of the Company,
thereby affecting the rights of the shareholders, who were citizens of India, the protection of
Article 19 would be available to them.
• Though the great and basic freedoms enumerated in Article 19(1) have been recognized as
the natural rights, inherent in the status of a citizen, but none of these freedoms is absolute
 or uncontrolled. Each freedom is liable to be restricted by laws made by the State under the
respective Clause (2) to (6) of Article 19.
• The drafting of Clause (2) to (6) makes it clear that the framers of the Constitution did not
make a common draft of the restrictions, permissible to be imposed on the operation of the
listed rights. The common thread that runs throughout Sub-Clauses (2) to (6), it is explained
that the operation of any existing law or the enactment by the State of any law, which
imposed reasonable restrictions, to achieve certain objects, is saved.
• The restriction which may be imposed on the freedoms guaranteed under Article 19(1) must
satisfy the following three broad tests:
 A restriction can be imposed only by the or under the authority of a law duly enacted
by the appropriate Legislature.
 The restrictions must be imposed in the interests of or for the particular purpose
mentioned in the Clause permitting the imposition of the restrictions on that particular
freedom.
 The restriction must be reasonable.
• The requirement that a restriction which may be imposed on the freedoms guaranteed under
Article 19(1) must be reasonable, incorporates the concept of judicial review, for nowhere
the Constitution defies the expression ‘reasonable restrictions’. It thus for the Courts to
determine the reasonableness of a restriction.
• The expression ‘in the interest of occurs in all the Clause (2) to (6) of Article 19 which
empowers the State to impose restrictions on the freedoms guaranteed under Article 19(1).
The expression ‘in the interest of’ also requires that the limitation imposed should be one
which have approximate or reasonable nexus with mischief sought to be contained.
• When a citizen challenges a restriction on the exercise of fundamental right under Article
19(1), the onus of proving its reasonability to the satisfaction of the Court lies upon the State
or authority concerned. On the State, succeeding in bringing the restriction within the scope
of any permissible limits, the onus would shift to the petitioner to show that the restriction
was unreasonable.
2. Freedom of Speech and Expression [Articles 19(1)(a) and 19(2)]:
• Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression.
Freedom of speech and expression is basic and indivisible for a democratic polity, the
citizen’s most cherished and sacred right and the prized privilege. It is the foundation of a
democratic society and is essential to the rule of law and liberty of citizens.
• The freedom of speech and expression guaranteed under Article 19(1)(a) means the right to
speak and to express one’s opinion by words of mouth, writing, printing, pictures or in any
other manner.
• It is to express one’s convictions and opinions or ideas freely, through any communicable
medium or visible representation, such as gestures, signs and the hike. It means to freely
propagate, communicate or circulate one’s opinion or views.
• The different facets constituting the scope and content of the freedom of speech and
expression are as follows:
A. Right to Know and to Obtain Information:
* The right of information is undisputedly a fundamental right, a facet of speech and
expression as contained in Article 9(1)(a) . It has been said that in a Government of
responsibility, it is elementary that citizens ought to know what their government is
doing.
 * The concept of open government is said to be the direct emanation from the right to
know which seems to be implicit in the right of free speech and expression guaranteed
under Article 19(1)(a). The citizens have the right to decide by whom and by what rules,
they shall be governed and they are entitled to call on those who govern on their behalf,
to account for their conduct.
* The freedom of speech and expression includes the right to educate, to inform and to
entertain and also the right to be educated, informed and entertained. It also includes
the right of the consumer to be appraised of the ingredients of food products, cosmetics
and drugs, so that he may make a right choice as per his relief and opinions.
* In People’s Union for Civil Liberties v. Union of India, AIR 2004 SC 1442, it has been held
that the right of information like other rights is held subject to several
exemptions/exceptions indicated in broad terms.
B. Right of Examinee to have Access to Evaluated Scripts:
* In Secretary, West Bengal Council of Higher Secondary Education v. Ayan Das, AIR 2007
SC 3098, it has been the ruled the Courts should not normally direct the production of
answer scripts, to be inspected by the examinees unless a case was made out to show
that either some questions had not been evaluated or that the evaluation had been
done contrary to the norms fixed by the examining body.
* In Prita Rooj v. University of Calcutta, AIR 2008 Cal 118, it has been ruled that denial of
inspection of answer scripts to examinee would amount to the violation of the
examinee’s constitutional right to expression and information available under Article 19
read with the Right to Information Act 2005.
C. Right of the Citizens to Know the Antecedents of the Candidates at Election:
* Article 19(1)(a) which guarantees the right to speak and express oneself has been held
to include voter’s speech or expression, in case of elections, in a democracy. It has been
said that the voters speaks out or expresses by casting votes.
* To maintain the purity of elections and in particular to bring transparency in the process
of election, the Supreme Court has directed the Election Commission of India, to call for,
on affidavit by issuing necessary order in exercise of its power under Article 324, from
each candidate seeking election to Parliament or a State Legislature, as a necessary part
of his nomination paper, information regarding his assets, educational qualifications and
criminal past as well as present criminal record.
D. Right to Reply or Answer the Criticism Against One’s Views:
* The right to reply i.e., the right to get published one’s reply in the same news media in
which something was published against or in relation to a citizen was a part of the
freedom of speech and expression guaranteed under Article 19(1)(a).
E. Freedom of Silence:
* No person could be compelled to sing the National Anthem if he has genuine
conscientious objections based on his religious belief. In Bijoe Emmanuel v. State of
Kerala, AIR 1987 SC 748, it has been held that expulsion of someone for not singing the
National Anthem is violation of fundamental rights guaranteed under Article 19(1)(a).
F. Right to Choose Medium of Instructions:
* The State could not impose the language considered to be the mother tongue as the
medium of instructions in primary schools. The children of linguistic minorities would be
at liberty to choose their medium of instructions.
* The State could impose its Official language as the medium in government, government-
aided and recognized primary schools. The private unaided schools, linguistic as well as
 religious minority educational institutions would remain outside the purview of mother
tongue as medium of instructions.
* In State of Karnataka v. Associated Management of P&S Schools, AIR 2014 SC 2094,
striking down the decision of the Karnataka State imposing Kannada as medium of
instructions in primary schools from classes I To IV, it has been rules that the right to
freedom of expression guaranteed under Article 19(1)(a) included the right of the child
or on his behalf, his parent or guardian to choose the medium at the stage of primary
schools.
G. Right of the Convict to Express Himself:
* The refusal to journalists and videographer’s seeking the interview of the condemned
prisoners amounts to deprivations of citizen’s fundamental right to speech and
expression under Article 19(1)(a).
* In M. Hasan v. Government of Andhra Pradesh, AIR 1998 AP 35, it has been ruled that as
far the exercise of fundamental rights are concerned, the position of a condemned
prisoner is on par with a free citizen. He had a right to give his ideas and in entitled to be
interviews or to be televised.
H. Freedom of Press:
* Article 19(1) does not specifically or separately provide for liberty of the press. The
freedom of press thus means the right to print and publish what one pleases, without
any previous permission. Imposition of pre-censorship on publication is therefore
violative of the freedom of the press unless justified under Clause (2) of Article 19.
* In Brij Bhushan v. State of Delhi, AIR 1950 SC 129, the extension of the Section 7(1)(c) of
the East Punjab Public Safety Act, 1949 to the Province of Delhi was held to be violative
of Article 19(1)(a).
* In Virendra v. State of Punjab, AIR 1957 SC 896, it was held that the banning of
publication in the newspapers of its views or the views of the correspondents about the
burning topic of the day was a serious encroachment on the valuable and cherished
right to freedom of speech and expression.
* The right to publish the life story of a condemned prisoner, in so far as, it appears from
the public records, even without his consent or authorization is included in the freedom
of press guaranteed under Article 19(1)(a) and no prior restraint can be imposed upon
such publications.
* Freedom of speech and expression include the freedom of propagation of one’s ideas or
views and this freedom is ensured by the freedom of circulation. Liberty of circulation is
an essential to that freedom as the liberty of publication.
* Without circulation, the publication would be of little value. There would be violation of
the liberty of the press not only when there is a direct ban on the circulation of a
publication but also when some action on the part of the government adversely affects
the circulation of the publication.
* It is essential that the government should be more cautious while levying taxes on
matters concerning newspaper industry than while levying taxes on other matters. The
imposition of tax like customs duty on newsprint is imposition of a tax on knowledge
and would virtually amount to a burden imposed on a man for being literate and for
being conscious of his duty as a citizen to inform himself of the world around him.
* The policy of the Government of allotting the advertisements, discriminating against
certain newspaper, violates not only the freedom of the press but also the equality
clause contained in Article 14 and such policy affects the formation of healthy public
opinion, necessary for good democracy.
 * The freedom of the press includes the freedom of employment or non-employment of
the necessary means of exercising the right and therefore any limitation on the choice of
employment in the editorial force of a newspaper may undermine the independence of
the press.
I. Demonstration, Picketing, Strikes:
* Demonstration or picketing are visible, manifestation of one’s ideas and in effect a form
of speech and expression. In order to be protected under Article 19(1)(a), the
demonstration or picketing must not be violent and disorderly. Picketing which does not
ho beyond the limits of persuasion or inducement and which does not restrain others
from doing what they please, would be saved under Article 19(1)(a).
* The right to go on strike is not included within the scope and ambit of the freedom of
speech and expression. In T. K Rangarajan v. Government of Tamil Nadu, AIR 2003 SC
3032, it has been held that apart from the statutory rights, the government employee
cannot claim that they can hold society to ransom by going on strike. If they presumed
that injustice has been done to them then there is a machinery provided in a welfare
State for the redressal of their grievances.
* In Harish Uppal v. Union of India, AIR 2003 SC 739, it has been held that as regards the
lawyers are concerned, they have no right to go on strike or give a call for boycott, not
even a token strike. The lawyers who are officers of the Court cannot use strike as a
weapon against the Court or against the client.
J. No Right to Call or Enforce Bandh, Hartals, Blockades:
* The expression ‘hartal’ is of Indian origin which means a temporary cessation of
commercial activity especially as a type of organised passive resistance. A hartal,
unaccompanied by violence or coercion can be understood to be a legitimate form of
protest or signification of mourning in the wake of a tragedy, national or local.
* The moment it comes out of the concept of hartal strictly so-called and seeks to impinge
on the rights of others it ceases to be a hartal and really becomes a violent
demonstration affecting the rights of others then it would amount to be
unconstitutional act.
* A boycott simply speaking is refusal to work and means to combine in refusing to work
for, or deal with it, in order to intimidate or coerce to refuse to buy form or use the
services of and if it is unaccompanied by violence then it is legal.
* No one has a right to call for a blockade of the office of the local authority so as to
prevent people from approaching the authority in exercise of their rights of free
movement.
* In Destruction of Public and Private Properties v. State of A.P, AIR 2009 SC 2266, taking
note of various instances where there was large scale destruction of public and private
properties in the name of agitations, bandhs, hartals and the like and after considering
an daccepting the recommendations made by the two Committees set up by the Court,
the guidelines for effectuate modalities for preventive action and for adding teeth to
investigation, inquiry and for assessing damages was issued.
K. Trial by Media:
* A journalist has the right under Article 19(1)(a) to publish as journalist a faithful report of
the proceedings witnessed and heard in the Court however in certain matters it may
lead to miscarriage of justice.
* In State of Maharashtra v. Rajendra Jawanmal Gandhi, AIR 1993 SC 3986, it has been
held that trial by press, electronic media or public agitation is the very antithesis of the
rule of law.
 * Open justice which is a facet of freedom of expression permits fair and accurate reports
of Court proceedings to be published. It is a fact that the media, has a right to know
what is happening in Courts and to disseminate the information to public which
enhances the public confidence in the transparency of the Court proceedings.
* Fair and accurate reporting of the trial might sometimes give rise to substantial risk of
prejudice not in the pending trial but in the later or connected trials. The Court can
prohibit the temporary publication of the Court proceedings which is permissible under
Article 19(2) read with Article 21.
L. Reasonable Restriction on Freedom of Speech and Expression:
* The freedom of expression like all other freedoms under Article 19(1) is subject to
reasonable restrictions. It is a known fact that an action tending to violate another
person’s right to life guaranteed under Article 21 or putting the National Security in
jeopardy can never be justified by taking the plea of freedom of speech and expression.
* Clause (2) of Article 19 specified the purpose or grounds in the interest of which or in
relation to which reasonable restrictions can be imposed on the freedom of speech and
expression.
* Restriction on the freedom of speech and expression can be imposed in the interest of
decency or morality. The purpose is to restricting speeches and publications which tend
to undermine public morals.
* The right to freedom of speech and expression does not entitle a person to commit
contempt of court. It cannot be held as law that in view of the constitutional protection
of freedom of speech and expression, one can be proceeded with for the contempt of
court on the allegation of scandalizing or intending to scandalize the authority of any
Court.
3. Freedom of Assembly [Article 19(1)(b) and 19(3)]:
• Sub-clause (b) of Clause (1) of Article 19 guarantees to all citizens the right to assemble
peacefully and without arms. Clause (3) of Article 19 empowers the State to impose
reasonable restrictions on the right to assemble in the interest of the sovereignty and
integrity of India or public order.
• The right of assembly guaranteed by Article 19(1)(b) is a corollary of the right to freedom of
speech and expression guaranteed under Article 19(1)(a), for the very purpose of holding an
assembly is to hold consultations to express one’s views in respect of public affairs.
• The right to hold assembly conferred by Article 19(1)(b) is however not absolute and is
subjected to certain limitation like the assembly must be peaceful and unarmed and the
State may impose restriction under Clause (3) of Article 19 in the interest of public Order or
Sovereignty and Integrity of India.
• In Himmat Lal v. Police Commissioner, Bombay, AIR 1973 SC 87, it has been held the State
could only make regulations in aid of the right of assembly of citizens and could impose
reasonable restrictions in the interest of public order however no rule could be prescribed
prohibiting all meetings or processions.
• The right to hold assembly does not include the right to hold meetings on private property
belonging to others. Procession, demonstrations and agitations on busy roads cause
obstruction to free flow of traffic, apart from creating huge loss to public therefore a ban
imposed on such activity would only be a reasonable restriction.
4. Freedom to form Associations or Unions or Co-operative Societies [Articles 19(1)(c) and (4)]:
• Sub-clause (c) of Clause (1) of Article 19 guarantees to the citizens of India the freedom to
form associations or unions or cooperative societies. Article 19(4) provides that the State
 may impose reasonable restrictions on the exercise of this freedom in the interest of public
order, morality or the sovereignty and integrity of India.
• The ground of sovereignty and integrity of India was inserted in Article 19(4) by the
Constitution (Sixteenth Amendment) Act, 1963. The right to form association may e said to
be a corollary of the right to free speech contained in Article 19(1)(a). This freedom is as
essential to democracy as the free discussion or the freedom to meet for consultation with
others.
• An association means a collection of persons who have joined together for a certain object
which may be for the benefit of the members or the improvement, welfare or advantage of
the public or some scientific, charitable or similar purposes.
• The right to form association or unions guaranteed by Article 19(1)(c) includes the right to
form companies, societies, partnership firms, trade unions, clubs, political parties and the like
body of persons.
• In Zorastrian Co-op Hsg. Society Ltd. v. District Registrar, AIR 2005 SC 2306, it has been held
that in the absence of any provision in the Constitution of trade union, for automatic
cessation of membership as a result of cessation of employment, an employee in such an
eventuality would not cease to be a member of the Union and there may be an association or
a society consisting of persons belonging to a particular religion, a particular mode of life or a
particular persuasion.
• In State of U.P v. CODCE Cooperative Society Ltd., AIR 1997 SC 1413, it has been held that
Article 19(1)(c) does not prohibit the State form making reservations or nominations of
weaker sections into the Cooperative Societies and their Managing Committees.
• The right guaranteed under Article 19(1)(c) is not absolute. Article 19(4) specially empowers
the State to make any law to fetter, abridge or abrogate the right by imposing reasonable
restrictions.
• In Peoples Union for Civil Liberties v. Union of India, AIR 2004 SC 456, it has been held that the
Prevention of Terrorism Act, 2002 was enacted, inter alia, to protect sovereignty and
integrity of India from the menace of terrorism. Declaring any organization as a terrorist
organization under the Act was permissible under Article 19(4).
• The doctrine of guilt by association makes offence mere membership of a banned
association. It says of a law which applies to membership without the specific intent to
further the illegal aims of the organization and infringes unnecessarily on protected
freedoms.
• In P. Balakotiah v. Union of India, AIR 1958 SC 232, the Supreme Court has distinguished
between the right to be a member of an association and the right to continue in the
government service.
• The right to the recognition of the association or the union by the Government is not held to
be a fundamental right. In Delhi Police Non-Gazetted Karmachari Sangh v. Union of India,
(1987) I SC 115, it has been held that under the Statutory Rules, the Government was
empowered to revoke the recognition granted to an association.
5. Freedom of Movement and Residence [Articles 19(1)(d), 19(1)(e) and 19(5)]:
• Sub-clause (d) of Clause (1) of Article 19 guarantees to every citizen of India the right to move
freely throughout the territory of India means the right of locomotion which connotes the
right to move whenever one likes and however he likes.
• Article19(1)(d) guarantees the right to move freely not merely from one State to another
State, but also from one place to another within the same State. The right is not absolute in
the sense that Clause 5 of Article 19 enables the State to impose reasonable restrictions.
 • The right to move freely secured under Article 19(1)(d) includes the right to use roads or
highways and therefore road blockades which obstruct free flow of traffic on roads amounts
to infringement of the fundamental right to move freely.
• Article 19(1)(e) guarantees to every citizen of India, the right to reside and settle in any part
of the territory of India. This right is subjected to a reasonable restriction which may be
imposed by the State, by law, under Article 19(5) in the interest of general public or for the
protection of the interest of any Scheduled Tribe.
• The two rights contained in Article 19(1)(d) an 19(1)(e) are parts of the same right and are
complementary and often go together. Most of the cases considered under Article 19(1)(d)
are relevant to Article 19(e).
• The object behind the guarantee contained in Article 19(1)(d) and 19(1)(e) is to make Indian
citizens national minded. It is to put an end to petty and parochial considerations. These
provisions have thus removed all internal barriers within the territory of India or any of its
parts.
• In U.P Avas Evam Vikas Parishad v. Friends Co-op Housing Society Ltd., AIR 1996 SC 114, it has
been held that right to residence assured in Article 19(1)(e) and right to life under Article 21
included the right to shelter and to construct houses for that purpose however subject to the
building rules.
• In Dhan Bahadur Ghorti v. State of Assam, AIR 1953 Ass 61, a custom has been upheld which
was prevailing in the tribal area and according to which no Nepali or foreigner could stay in
the area without the permission of the Deputy Commissioner and it was held to be covered
by Article 19(5) as being a reasonable restriction for the protection of the interest of the
Scheduled Tribes.
6. Freedom of Profession, Occupation, Trade and Business [Article 19(1)(g) and 19(6)]:
• Sub-clause (g) of Clause (1) of Article 19 guarantees to every citizen the right to practice any
profession or to carry on any occupation, trade or business. The right is subjected to the
provisions of Clause (6) of Article 19.
• The term ‘occupation’ means some activity by which a person is occupied or engaged. It
would be an activity of a person undertaken as a means of livelihood or a mission of life. The
term ‘profession’ has been interpreted to mean an occupation requiring the exercise of
intellectual skill, often couples with manual skill.
• The term ‘business’ means any activity involving the production, distribution and
consumption of wealth and the production and availability of material services. The word
‘trade’ is an activity concerning the same and purchase of goods.
• The right to carry on a business includes the right not to start any business or I he chooses,
he has the right to close it down at any time he likes. The State cannot compel a citizen to
carry on a business against his will. A citizens cannot insist upon the government or any other
individual for doing business with him.
• The right to close down a business is not an absolute right and can be restricted, regulated or
controlled by the State in the interest of general public. The right to close down a business
cannot be equated or placed at par as high as the right not to start and carry on business.
• In Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344, it has been held
that 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.
• Article 19(1)(g) guarantees the right to practice any profession or to carry on an business,
trade or occupation. The activity to be carried on, must of course be legitimate and not anti-
social like gambling, trafficking in women.
• It does not entitle citizens to carry on trade or business in activities which are inherently
vicious and pernicious and are condemned by civilized societies and in articles or goods
which are obnoxious and injurious to health, safety and welfare of the general public.
• Whether an activity of business comes within the purview of Article 19(1)(g) should not be
determined by applying the standards of morality obtaining at a particular time in the
country. The standards of morality can afford a guidance to impose restrictions, but cannot
limit the scope of the right.
• In State of A.P v. Mcdowell & Co., AIR 1996 SC 1627, it has been held that there is no
fundamental right under Article 19(1)(g) to carry on trade or business in intoxicating liquiors.
The State can create monopoly in such business either in itself or in some agency created for
this purpose.
• No person can claim a fundamental right to carry on business with the Government. All that
he can claim is that in competing for the contract, he should not be unfairly treated and
discriminated against, to the detriment of public interest.
• In Fateh Chand v. State of Maharashtra, AIR 1977 SC 1825, it has been held that anti-social
and unscrupulous money-lending to economically weaker sections of the society was not
eligible for legal recognition as trade within the meaning of Article 19(1)(g).
• In Unni Krishnan v. State of A.P, AIR 1993 SC 2178, it has been observed that imparting of
education was not and could not be allowed to become commerce. Teaching might be a
profession, but establishing an institution, employing staff, procuring the necessary
infrastructure , etc was not practicing profession. Thus the activity of establishing an
educational institution could neither be a trade or business nor could it be a profession
within the meaning of Article 19(1)(g).
• Right to establish and administer an educational institution, including a professional
institution, is a fundamental right guaranteed under Article 19(1)(g) and of course reasonable
restrictions can be imposed on such rights under Article 19(6).
• In Vishaka v. State of Rajasthan, AIR 1997 SC 3011, it has been observed that sexual
harassment of working women in work places would be violation of the victim’s fundamental
right under Article 19(1)(g). In the instant case, a social worker was brutally gang raped in a
village of Rajasthan. The Court took a serious note of the matter and issued binding direction
for the prevention of such incidents. The directions were to be applicable to both public and
private sector.
• The right to carry on business, trade, etc is subject to compliance of constitutional obligations
as also limitations provided for in the Constitution. The right to practice any profession or to
carry on any business or trade guaranteed by Article 19(1)(g) may be restricted in two ways
namely by reasonable restriction which might be imposed by State by law in the interest of
the general public and then the State may itself or through a corporation owned or
controlled by it, carry on any trade or business and thus excluding citizens completely or
partly from carrying on such trade or business.
FUNDAMENTAL DUTIES (ARTICLE 51A):
1. Introduction:
• Part IV-A of the Constitution, which contains the Fundamental Duties of the Citizens of India,
was added by the Constitution (42nd Amendment) Act, 1976. It contains Article 51A which
lays down that it shall be the duty of every citizen of India :
* To abide by the Constitution and respect its ideals and institutions, the National Flag
and the National Anthem;
* To cherish and follow the noble ideas which inspired our national struggle for freedom;
* to uphold and protect the sovereignty, unity and integrity of India;
* to defend the country and render national service when called upon to do so;
* to promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women;
* to value and preserve the rich heritage of our composite culture;
* to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures;
* to develop the scientific temper, humanism and the spirit of inquiry and reform;
* to safeguard public property and to abjure violence;
* to strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievement.
* to provide opportunities for education by the parent the guardian, to his child, or a
ward between the age of 6-14 years as the case may be.
• These Duties have been added to implement the recommendations of the Swaran Singh
Committee reported in 1976. None of the Constitutions of the Western Countries specifically
provides the duties of the citizens.
• The Swaran Singh Committee has suggested that Parliament should have power to pass laws
under which penalties and punishment could be imposed for non-compliance with or refusal
to observe the duties but the suggestion was rejected.
2. Objects and Importance of the Fundamental Duties:
• The fundamental duties have been incorporated in the Constitution with the mere object to
remind every citizen that while enforcing his fundamental rights, he must also be conscious
of his fundamental duties and he cannot enforce his fundamental rights without adhering to
the fundamental duties prescribed in Article 51A.
• In Chandra Bhawan Boarding and Lodging v. State of Mysore, AIR 1970 SC 2042, it was held
that it is fallacy to think that under our Constitution, there are only rights and no duties.
These duties would help to strengthen our democracy. These provisions are made for dealing
with the anti-national activities, whether by individual or associations.
3. Enforcement of Fundamental Duties:
• Article 51A merely declares the fundamental duties of the citizens of India. It does not say of
the enforcement of these duties. In Surya Narain v. Union of India, AIR 1982 Raj 1, it has been
held that the duties under Article 51A were the duties of the individual citizens and they cast
no public duties and therefore a mandamus could not be sought against an individual who
did not observe his duties under Article 51A.
• The duties are imposed on the citizens and not upon the State and a legislation is necessary
for their implementation. In Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 478, it has been
held that proper respect was shown by the students to the National Anthem by standing up
 in silence when the National Anthem was being sung. Not joining in singing the National
Anthem did not amount to committing disrespect to the National Anthem.
• In Shri Sachidanand Pandey v. State of W.B, AIR 1987 SC 1109, it has been held that
whenever a problem of ecology was brought before the Court the Court was bound to bear
in mind Article 48A ad Article 51A(g). It has been said that the Fundamental Duties must be
used by the Courts as a tool to tab, even a taboo on State action drifting away from
Constitutional values.
• The duties may also be enforced by the Courts while balancing and harmonizing them with
the fundamental rights. In M/s Abhilash Textile v. Rajkot Municipal Corporation, AIR 1988 Guj
57, the Court relied upon Article 51(g) duty and held that notices asking the petitioners to
stop discharging the effluents from the factory on public road or drainage, harming natural
environment, on the pain of closing the factory were valid.
• Clause (j) of Article 51A lays down the duty to strive towards excellence in all spheres of
Individual and collective activities. Referring to this duty, it is an essential nature that the
Chief Justice must be guided by objective consideration while selecting the best available
talent for appointing High Court Judges.
• In Government of India v. George Philip, AIR 2007 SC 705, it has been held that it shall be the
duty of every citizen to strive towards excellence. This cannot be achieved unless the
employee maintain discipline and devotion to duty unless the employees maintain discipline
and devotion to duty. Courts should not pass such orders which instead of achieving the
underlying spirit and objects of Part IV-A has the tendency to negate or destroy the same.
• In AIIMS Students Union v. AIIMS, AIR 2001 SC 3262, it has been held that the Fundamental
Duties, though not enforceable by a writ of the Court yet provide a valuable guide and aid to
the interpretation of constitutional and legal issues.
• In Sanjeev Bhatnagar v. Union of India, AIR 2005 SC 2841, the Apex Court impressed on the
nature and importance of the National Anthem and observed that National Anthem is
immortal and inalienable and cannot be changed. Rejecting the demand for the deletion of
the word “Sindh” from National Anthem, it has been held that the term “Sindh” had cultural
connotation and in no way referred to the territory of “Sindh”.
 MODULE 2

RIGHT TO FREEDOMS (ARTICLES 20-22):

1. Protection In Respect of Conviction for Offences (Article 20):
A. Introduction:
• Article 20 provides protection in respect of conviction for offences. It constitutes a
limitation on the legislative power of the Parliament or the State Legislatures under
Article 246 read with the three Legislative Lists contained in the Seventh Schedule to the
Constitution.
• The protection contained in Article 20 is available to all persons, citizens or non-citizens.
The term person in Article 20 includes a corporation which is accused, prosecuted,
convicted or punished for an offence.
B. Ex-Post Facto Laws [Article 20(1)]:
• An ex-post facto law is a law which is enacted subsequent to some occurance. It is
generally of three kinds i.e., a law which declares some act or omission as an offence, a
law which enhances the punishment or penalty for an offence and a law which prescribes
a new and different procedure for prosecution of an offence.
• Article 20(1) provides that 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.
• The first part of Clause (1) of Article 20 relates to the first category of ex-post facto laws. It
says that no person shall be convicted of any offence except for the violation of a law in
force at the time of the commission of the act charged as an offence.
• In Soni Devrajbhai Babubhai v. State of Gujrat, AIR 1991 SC 2173, it was held that Section
304B inserted in the Indian Penal Code, 1860 on 19th November 1986 creating a distinct
offence of dowry death and providing a minimum sentence of seven years imprisonment
could not be applied to such death cause before the insertion of the Section due to the
prohibition contained n Article 20(1).
• Second part of Clause (1) of Article 20 prohibits the enhancement of punishment or
penalty subsequently. It provides that no person shall be subjected t a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.
• Clause (1) of Article 20 does not prohibit the trial of offences under the ex-post facto laws.
A law enacted subsequent to the commission of the offence, prescribing a new
procedure, different from the ordinary procedure for prosecution or trial is not hit by
Article 20(1).
• In J.Jayalalitha v. Union of India, AIR 1999 SC 1912, it has been held that a law which
retrospectively changes the venue of trial of an offence from a criminal court to a
administrative tribunal has been held not falling within the prohibition of Article 20(1).
• The term ‘penalty’ in Article 20(1) indicates that the prohibition contained therein applies
only where punishment imposed for offences is criminal in nature. It does not therefore
prohibit the imposition of a civil liability retrospectively.
C. Double Jeopardy [Article 20(2)]:
• Clause (2) of Article 20 provides protection against double jeopardy. It provides that no
person shall be prosecuted and punished for the same offence more than once. This
clause enacts the well known principle of criminal jurisprudence that no one should be
put in jeopardy twice for the same offence.
• The term ‘prosecution’ means initiation or starting of any proceeding, criminal in nature,
before a court or a judicial tribunal. It means that Article 20(2) would have no application
where the proceedings are held under the revenue authorities.
• The protection against double jeopardy contained in Article 20(2) would be available only
when the accused has been not only prosecuted but also punished for such prosecution. If
there is no punishment for the offence as a result of the prosecution, Clause (2) would
have no application.
• Article 20(2) would have no application where the person is prosecuted and punished for
the second time, but the subsequent proceedings in merely the continuation of the
previous proceedings as is the case of an appeal against acquittal or an appeal against
conviction.
• In Suba Singh v. Davinder Kaur, AIR 2011 SC 3163, the accused was punished under
Section 304, IPC and the wife of the deceased asking for compensation filed a suit
claiming damages for the death of her husband a decree of damages was passed in her
favor. It was held that neither the action for civil damages was prosecution nor decree of
damages was punishment within the meaning of Article 20(2) and did not constitute
double jeopardy.
• In State of Haryana v. Ghaseta Ram, AIR 1997 SC 1868, the respondent while undergoing
sentence for life imprisonment, committed an offence under the Prisons Act, 1894. He
was prosecuted by trial court as well as by the jail authority. It was held that the
punishment imposed by the jail authority is not permissible.
D. Self Incrimination [Article 20(3)]:
• Clause (3) of Article 20 provides that no person accused of an offence shall be compelled
to be a witness against himself. This clause is based on the maxin nemo tenetur prodere
accussare seipsum which means that no man is bound to accuse himself. It is also known
as Miranda Rights.
• The protection is available to a person accused of an offence and is a protection against
compulsion to be a witness and is a protection against such compulsion as resulting is his
giving evidence against himself.
• A person accused of an offence means a person against whom a formal accusation
relating to the commission of an offence has been leveled, which in the normal course,
may result in a prosecution.
• It is only on making of such formal accusation that Clause (3) of Article 20 becomes
operative covering that person with its protective umbrella against testimonial
compulsion. A person cannot claim the protection if at the time he made the statement,
he was not an accused but becomes an accused thereafter.
• In Srikant Upadhaya v. Union of India, AIR 1963 Pat 38, it has been held that a person
charged of contempt of court has been held not be accused of any offence within the
meaning of Article 20(3) and it does not apply to departmental inquiries into allegations
against a government servant since there is no accusation of any offence within the
meaning of Article 20(3).
 • The administration of caution to a person summoned in the Court that not making
truthful statement would be an offence, does not amount to use of pressure within the
meaning of Article 20(3). Administration of such a caution is in the interest of the person,
who was making the statement.
• Self-incrimination in the context of Article 20(3) only means conveying information based
personal knowledge of the person giving information. Where an accused is compelled to
produce documents in his possession, which is not based on the personal knowledge of
the accused, there is no violation of Article 20(3) as he does not become witness by the
mere fact that he has produced it.
• In V.S Kuttan Pillai v. Ramakrishanan, AIR 1980 SC 185, it has been held that search of the
premises occupied by the accused without the accused being compelled to be a party to
such search would not be violative of the constitutional guarantee enshrined in Article
20(3).
• The protection against Article 20(3) is available only against compulsion of the accused to
give evidence against himself. If the accused voluntarily makes an oral statement or
voluntarily produces documentary evidence, incriminating in nature the Article
20(3)would not be attracted.
• Tape recording of statements made by the accused, though without the knowledge of the
accused but without use of force or oppression, is not hit by Article 20(3) as there is no
element compulsion within the meaning of this clause.
• The protection under Article 20(3) is confined to an accused in a criminal proceeding and
does not apply to the witnesses or to civil proceedings or proceedings other than the
criminal.
2. Right to Life and Personal Liberty (Article 21):
A. Introduction:
• Article 21 provides that no person shall be deprive of his life or personal liberty except
according to procedure established by law. This right has been held to be the heart of the
Constitution, the most organic and progressive provision in our living Constitution, the
foundation head of our laws.
• Article 21 secures two rights i.e., Right to Life and Right to Personal Liberty. Article 21
prohibits the deprivation of the above principles except according to procedure
established by law.
• Article 21 can be claimed only when a person is deprived of his life or personal liberty by
the State as defined by Article 12. It only refers to the necessisity to comply with
procedural requirements but also substantive right of a citizen. Violation of the right by a
private individual is not within the purview of Article 21.
• The right secured by Article 21 is available to every person, citizen or non-citizen. Thus
even a foreigner can claim this right. Article 21 applies only to natural persons. It has no
application to the corporate odies.
• The expression ‘person’ includes dead person in a limited sense. The right to life under
Article 21 extends to treating the dead body of the person with respect, which he would
have deserved had he been alive, subject to his tradition, culture and religion which he
possessed.
• An alien can claim the protection of Article 21. It does not include the right to reside and
settle in India as mentioned in Article 19(1)(e) which is applicable only to the citizens of
India.
 • Article 21 does not engulf into its ambit a right of a foreign national to compel the Central
Government either to allow him to enter into India or to afford an opportunity to make
representation or to state the reasons for such a ban.
• In view of the U.N International Covenant on Civil and Political Rights, 1966 and in view of
Article 51 of the Indian Constitution, which enjoins the Central Government to foster
respect for International Law and Treaty Obligations, it has been declared that in the
matter of expulsion of a foreign national who was already been allowed to be in India, a
notice and an opportunity should be given to him before expelling him.
B. Right to Life:
• The right to life does not merely mean the continuance of a person’s animal existence, but
a quality of life. It means the fullest opportunity to develop one’s personality and
potentiality to the highest level possible in the existing stage of our civilization. The right
implies a reasonable standard of comfort and decency.
• In Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, it has been held that right to life
included the right to lead a healthy life so as to enjoy all faculties of the human body in
their prime conditions. It would also include the right to the protection of a person’s
tradition, culture, heritage and all that gives meaning to a man’s life. It also includes the
right to live in peace, to sleep in peace and the right to repose and health.
• The different facets of Right to Life are as follows:
a. Right to Live with Human Dignity:
* In Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746, the Apex Court struck
down Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 as violative of Article 14 and 21.
* The non-payment of minimum wages to the workers is violative of the right to life. A
provision of Subsistence Allowance made in the Service Rules only ensures non-
violation of the Right to life of the employee.
b. Right to Reputation:
* Reputation is an important part of one’s life. When reputation is hurt, a man is half-
dead. It is fundamentally a glorious amalgam and unification of virtues which makes a
man feel proud of his ancestry and satisfies him to bequeath it as a part of
inheritance on the posterity.
* It equally covers the reputation of a person during his life and after. This any wrong
action of the State or its agencies which sullies the reputation of a virtuous person
would certainly come under the scope of Article 21.
c. Right to Livelihood:
* Article 21 had failed to focus the attention of the judiciary and the right to earn
livelihood remained unnoticed until recently. In Olga Tellis v. Bombay Municipal
Corporation, AIR 1986 SC 180, it has been held that the right to life included the right
to livelihood however no person can claim the right to livelihood by the pursuit of an
opprobrious occupation or a nefarious trade or business.
* In Narendra Kumar Chandla v. State of Haryana, AIR 1995 SC 519, it has been held
that Article 21 protected the right to livelihood as an integral facet of life. An
employee affected with unfortunate disease due to which he could not perform the
duties of his job, should be adjusted in a post which the employee would be suitable
to discharge and he would be entitled to be protected as far his earlier salary was
concerned.
 d. Sexual Harassment of Women at Workplaces:
* Sexual violence apart from being a dehumanizing act, is an unlawful intrusion of the
right of privacy and sanctity of a female. It is a serious blow to her supreme honor
and offends her self-esteem and dignity. It is a crime against the entire society a
crime against basic human rights.
* In State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, sexual harassment of women
at workplace has been held to be violative of the victim’s mist cherished of the
Fundamental Rights namely the Right to Life contained in Article 21.
e. Right to Shelter:
* The right to shelter has been held to be a fundamental right which springs from the
right to residence secured in Article 19(1)(e) and the right to life guaranteed by
Article 21. To make the right meaningful to the poor, the State has to provide
facilities and opportunities to build house.
* The right to shelter does not mean a mere right to a roof over one’s head but right to
all the infrastructure necessary to enable him to live and develop as a human being.
It includes the right to basic facility.
f. Right to Education:
* In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, while interpreting the
scope of the right to life under Article 21, it has been held that it includes the right to
educational facilities.
* In Mohini Jain v. State of Karnataka, AIR 1992 SC 1858, it has been held that the right
to life was the compendious expression for all those rights which the Courts must
enforce as they were basic to the dignified enjoyment of life. It was also declared that
right to life and dignity of an individual could not be assured unless it is accompanied
by the right to education.
* In Unni Krishanan v. State of A.P, AIR 1993 SC 2178, it has been held that right to
education is a fundamental right under Article 21 and the right was however not an
absolute right and that its content and parameters had to be determined in the light
of Articles 41 and 45.
* Raagging in educational institutions has been a matter of concern. It is in essence of
human rights abuse, denial of the right to life secured by Article 21. It is said to be a
set of undisciplined activities undertaken by the seniors to break the ice with the
juniors who have been suddenly thrown into a totally new environment.
* In Vishva Jagriti Mission v. Central Government, AIR 2001 SC 2793, the Supreme
Court has issued guidelines to the educational institutions whether Central, State or
Private Institutes.
g. Right to Information:
* In the broader horizon of the right to live, in this age of our land under Article 21, the
right to know has been held to be a basic right, which citizens of a free country may
aspire.
* In R.P Ltd. v. Proprietors Indian Express Newspaper, Bombay Pvt. Ltd., AIR 1989 SC
190, it has been declared that if the democracy had to function effectively, people
must have a right to know and to obtain information about the affairs of the State.
C. Right to Personal Liberty:
• In A.K Gopalan v. State of Madras, AIR 1950 SC 27, the Apex Court took a literal view of
the expression ‘personal liberty’ and held that since the word ‘liberty’ was qualified by the
word ‘personal’ which was a narrower concept, the expression ‘personal liberty’ did not
 include all that was implied in the term ‘liberty’. The expression meant nothing more than
the liberty of the physical body.
• In Kharak Singh v. State of U.P, AIR 1963 SC 1295, it was observed that personal liberty is
used in Article 21 as a compendious term to include within itself all the varieties of rights
which go to make up the personal liberty of a man other than those dealt in the several
Clause of Article 19(1).
• In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the expression ‘personal liberty’ in
Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute
the personal liberty of a man and some of them have been raise to the status of distinct
fundamental rights and given additional protection under Article 19.
• The different facets of personal liberty are as follows:
a. Right to Privacy:
* Privacy is defined as the state of being free from intrusion or disturbance in one’s
private life or affairs. Right to privacy is not enumerated as a fundamental right in our
Constitution but it can be inferred from Article 21.
* In Govind v. State of M.P,AIR 1975 SC 1378, it was held that the right to personal
liberty and the right to move freely and speech could be described as contributing to
the right to privacy.
* In R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, it was explained that the
scope of the right to privacy which was held to be implicit in the right to life and
personal liberty guaranteed under Article 21.
* In State of Maharashtra v. Amdhulkar Narain, AIR 1991 SC 207, it has been held that
even a woman of easy virtue was entitled to the right to privacy under Article 21 and
that no one could invade her privacy as and when he liked.
* Allegations of political opponents and even colleagues being under surveillance has
been endemic and unless permitted under the law, it has been held to be a serious
inroad into the right to privacy, a facet of the right to personal liberty.
* In People’s Union for Civil Liberties v. Union of India, AIR 1999 SC 495, the Court has
laid down certain procedural safeguards to be observed resorting to telephonic
tapping under the Section 5(2) of the Indian Telegraph Act, 1885.
* It is a well settled fact that right to privacy is not treated as absolute and is subject to
such action as may be lawfully taken for the prevention of crime or disorder or
protection of health or morals or protection of rights and freedoms of others.
* In Surjit Singh Thind v. Kanwljit Kaur, AIR 2003 P&H 353, it has been held that an
order allowing the medical examination of woman to prove her virginity would
amount to violation of her right to privacy and personal liberty enshrined in Article 21
and the virginity test could not constitute the sole basis to prove the consummation
of marriage.
* A woman’s right to make reproductive choices includes the woman’s right to refuse
participation in sexual activity or alternatively the insistence on the use of
contraceptive methods, use of birth control method, to give birth and to raise
children.
* Right was dimension of personal liberty as understood under Article 21 and it is
important to recognized that reproductive choices could be exercised by the woman
to procreate as well as to abstain from procreating.
* The right to privacy is not an absolute right. It is said to be subservient to security of
State. In State of Gujrat v. Anirudh Singh, AIR 1997 SC 2780, it has been observed that
 it was the salutary duty of every witness who has the knowledge of the commission
of the crime to assist the State in giving evidence.
b. Right to go Abroad:
* The right to move freely is an attribute of personal liberty the right to travel abroad
has been included within the expression personal liberty within the meaning of
Article 21.
* Article 21 required a procedure established by law for depriving the right of personal
liberty and the procedure contemplated in Article 21 could not be arbitrary, unfair or
unreasonable.
* If a law depriving a personal liberty and prescribing a procedure for that purpose
within the meaning of Article 21 had to stand the test of one or more of the rights
conferred by Article 19 which may be applicable in a given situation ex hypothesi it
must be liable to e tested with reference to Article 19.
c. Right Against Illegal Detention:
* In Joginder Kumar v. State of U.P, AIR 1998 SC 1349, the petitioner was detained by
the police officers and his whereabouts were not told to his family members for a
period of five days. Taking a serious note of the police high-hardness and illegal
detention of a free citizen, the Supreme Court laid down the following guidelines
governing arrest of a person during the investigation:

An arrested person being held in custody is entitled, if he so requests to have
one friend, relative or other person who is known to him or likely to take an
interest in his welfare told as far as is practicable that he has been arrested and
where he is being detained.

The police officer shall inform the arrested person when he is brought to the
police station of this right.

An entry shall be required to be made in the diary as to who was informed of
the arrest.
* These protections from power must be held to flow from Article 21 and 22(1) and
enforced strictly. No arrest can be made merely because it is lawful for the Police
Officer to do so.
* The police officer must be able to justify the arrest apart from his power to do so.
Any form of torture or cruel inhuman or degrading treatment falls within the
inhibition of Article 21.
* In D.K Basu v. State of W.B, AIR 1997 SC 610, the Supreme Court laid down the
detailed guidelines to be followed by the Central and State investigating and security
agencies in all cases of arrest and detention till legal provisions are made in that
behalf as preventive measures.
D. Prisoner’s Rights:
• A prisoner, be he a convict or under trial or a detenu, does not cease to be a human being.
Even when lodged in the jail, he continues to enjoy all his fundamental rights including the
right to life. On being convicted of crime and deprived of their liberty in accordance with
the procedure established by law, prisoners still retain the residue of constitutional rights.
• In A.R Antulay v. R.S Nayak, AIR 1988 SC 1531, it has been held that the right to appeal
was a valuable right and the loss of such a right would be violative of Article 14 of the
Constitution.
• In M.H Hoskot v. State of Maharashtra, AIR 1978 SC 1548, the Supreme Court laid down
that right to free legal aid at the cost of the State to an accused who could not afford legal
services for reasons of poverty, indigence or incommunicado situation was part of fair,
 just and reasonable procedure implicit in Article 21. Free legal aid to the indigent has been
declared to be a State’s duty and not government charity.
• Article 21 imposes a positive obligation on the Magistrate or the committing Judge to
inquire as to whether the accused is not in a position to engage a lawyer on account of his
poverty or indigence. If so, then the accused must be provided with a lawyer at the State
cost.
• The right to speedy trial though not specifically enumerated as a fundamental right but
the Court had interpreted it to be implicit in the broad sweep and content of Article 21.
Article 21 requires that a person deprive of his liberty only in accordance with procedure
established by law which should be a just, fair and reasonable procedure.
• In Common Cause, a Registered Society v. Union of India, AIR 1996 SC 1619, holding that
the very pendency of criminal proceedings for long periods by itself operated as an engine
of oppression, the Supreme Court issued appropriate guidelines for the release on bail or
the discharge of the accused persons and closure of such cases.
• The right to speedy trial does not include the right of the litigant to claim, a fundamental
right to have the High Court located within proximal distance of his residence. The right to
speedy trial however is subject to the fact that lapse of time is no bar to Crown in
proceedings against offenders.
• Free and fair trial has been said to be the sine qua non of Article 21. It is said that justice
should not be done but it should be seen to have been done. Investigation though within
the Police powers and the powers are not unlimited should be exercised within the limits
prescribed by the CrPC.
• A fair trial which entails triangular interest of the accused , the victim and the society
would obviously mean a trial before an impartial judge, as fair prosecutor and in
atmosphere of judicial caln, that in which bias or prejudice for or against the accused, the
witnesses or the cause which was being tried was eliminated.
• In Babu Singh v. State of U.P, AIR 1978 SC 527, it has been held that the refusal to grant
bail to an accused person without reasonable grounds would amount to deprivation of his
personal liberty under Article 21.
• The right to bail is included in the personal liberty under Article 21 and its refusal would
be deprivation of that liberty which could be authorized in accordance with the procedure
established by the law.
• Section 438 of CrPC empowers the Court of session and High Court to grant bail in cases
of anticipated accusation of non-bailable offences. Section 18 of the SC/ST Act excludes
the application of Section 438 of CrPC to offences committed under the Act.
• Handcuffing is prime facie inhuman and therefore unreasonable, over-harsh and at the
first flush, arbitrary. It is unwarranted and violative of Article 21. In Prem Shankar v. Delhi
Administration, AIR 1980 SC 1535, the Court has directed the Union of India to issue
appropriate guidelines in this regard.
• The right to personal liberty under Article 21 included the right to write a book and get it
published. When a detenu exercises this right, its denial without the authority of law
would violate Article 21.
• Torture in custody is held to be violation of the basic rights of the citizens and is an affront
to human dignity. Torture is such a terrible thing that when a person is under torture, he
will confess to almost any crime. Custodial violence is treated as a calculated assault on
human dignity.
3. Protection Against Arrest and Detention (Article 22):
A. Introduction:
• Article 21 requires some procedure established by law to deprive a person of his life or
personal liberty. The procedure must not only be provided by a valid law, but it must also
be just, fair and reasonable.
• Article 22 is titles as protection against arrest and detention in certain cases and it
embodies the procedural safeguard against arrest or detention which are available in
cases where the arrest or detention is made under the ordinary law relating to
committing of an offence and where the detention is made under a law providing for
preventive detention.
• The safeguards are provided with a view to avoid any miscarriage of justice. It is to correct
or check the use of power by the executive in arresting or detaining person. The safeguard
contained in Article 22 can be claimed by every person whether a citizen or a non-citizen.
• Article 22 would not apply where there is no allegation or accusation of any actual or
apprehended commission by a person of any offence. In Raj bahadur v. Legal
Remembrancer, AIR 1953 Cal 522, it has been held by the Court that removal of a minor
girl from a brothel and detaining her in police custody under Section 13 of the Bengal
Suppression of Immoral Traffic Act, 1923 did not constitute arrest and detention within
the meanings of Article 22.
B. Safeguards Against Arrest or Detention Made Under Ordinary Law:
• Article 22 guarantees certain safeguards like right to be informed of the grounds for the
arrest or detention. Clause (1) of Article 22 requires that any person who is arrested
should be informed of the grounds for such arrest. It is an imperative requirement.
• Clause (1) of Article 22 further provides that the person arrested shall not be denied the
right to consult and to be defended by a legal practitioner of his choice. The right to
consult and be defended by a legal practitioner of his choice is guaranteed with a view to
enable the detenue to prepare for his defense.
• In Joginder Sharma v. State of U.P, AIR 1994 SC 1349, it has been that the right of arrested
person to have someone informed about his arrest and to consult privately with his
lawyers were inherent in Articles 21 and 22.
• Clause (2) of Article 22 provides that every person who is arrested and detained in
custody shall be produced before the nearest Magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey from the place of arrest
to the Court of the Magistrate.
• The right to be produced before the nearest Magistrate is guaranteed with a view to avoid
any miscarriage of justice. It is with the object to correct and approve the executive action
of arresting a person.
• The nearest Magistrate means the Magistrate found to be nearest to the place of arrest. It
is immaterial whether the Magistrate has or does not have jurisdiction to try the case or
that the Magistrate sits in a Court or not, at the time the arrested person is produced
before him.
• Clause (2) of Article 22 mandates that the arrested person shall not be detained in
custody beyond the said period of 24 hours without the authority of the Magistrate. It
would mean that if there is failure to produce the arrested person before the nearest
Magistrate within 24 hours then it would make the detention illegal.
C. Preventive Detention:
• Preventive detention means the detention of a person without trial in such circumstances
that the evidence in possession of the authority is not sufficient enough to make a legal
charge or to secure the conviction of the detenu by legal proof but may still be sufficient
to justify the detention.
• Preventive detention differs from imprisonment on conviction or during the investigation
of the crime of an accused which permits separate classification of the detenu under
preventive detention. It is to prevent the breach of law while imprisonment on conviction
during investigation is subsequent to the commission of the crime.
• The justification for preventive detention is suspicion or reasonable apprehension,
reasonable probability of the impending commission of an act prejudicial to the State. The
object is to prevent the abuse of freedom by the anti-social and subversive element.
• Both the Union Parliament and the State Legislatures are vested with the power to make
laws providing for preventive detention. Entry 9 in List I of the Seventh Schedule reads as
‘Preventive detention for reasons connected with Defense, Foreign Affairs or the security
of India, persons subjected to such detention.’
D. Safeguards Against Arrest or Detention For Preventive Detention [Articles 22(4) to (7)]:
• Clause (4) to (7) of Article 22 contains the procedural requirements which are complied
with when a person is detained under a law providing for preventive detention. These are
as follows:
a. No Detention Beyond Three Months Without Review by Advisory Board:
* Sub-clause (a) of Clause (4) of Article 22 provides that a law providing for preventive
detention shall not authorize the detention of a person for a longer period than three
months without sufficient cause or without any provision of any law made by the
Parliament under sub-clause (a) and (b) of Clause (7).
* Clause (4)(a) provides a limitation on legislation power as to the period of preventive
detention. It prohibits against any law providing for detention for more than three
months without a provision for an advisory board.
* In case the detention is to continue for more than three months, Clause (4)(a) of
Article 22 requires that the detention must be confirmed by Advisory Board saying
that there is sufficient cause for such detention.
* A detention order can be issued in respect of a person already in custody in respect
of a criminal case, provided the detaining authority was aware of this fact and
satisfies that there is very likelihood of he being released on bail.
* The function of the Advisory Board is merely to report on the point whether there is
sufficient cause for the detention. It is to provide a safeguard against misuse of the
power of preventive detention.
* Clause (4)(a) of Article 22 provides that the Advisory Board shall consist of persons
who are or have been qualified to be appointed as Judges of a High Court. It is left for
the executive to constitute the Advisory Board.
* In Common Cause v. Union of India, AIR 2003 SC 449, it has been held that it was for
the Executive to decide as to when the changes should be brought into force. No
mandamus can be issued against the Executive to take immediate measures to issue
the Notification for the said purpose.
* The Parliament by law, prescribe the procedure to be followed by the Advisory Board
in an inquiry under Article 22(4)(a) however the Board submitting its report without
hearing the detenu and examining the witness violates Article 22.
b. Right of Detenu to be Informed of the Grounds of Detention:
* Clause (5) of Article 22 imposes an obligation on the Government to communicate to
the detenu the grounds of detention. For the compliance of this requirement, the
grounds of detention should be very clear and easily understandable.
* In Tarannu v. Union of India, AIR 1998 SC 1013, the Supreme Court distinguished
between maintenance of public order and maintenance of only law and order.
Holding that the acts of looting gold and cash were not prejudicial to maintenance of
public order but merely relating to only law and order, the order of detention made
under the National Security Act, 1980 was quashed.
* If the grounds of detention are only verbally explained and nothing in writing is left
with the detenu in a language which he understands, then the purpose of Article
22(5) is not served.
* Where a detenu is totally illiterate, it is necessary that the grounds of detention
should be explained to him as early as possible in the language he understands so
that he can avail of the statutory right of making representation under the provisions
of Article 22(5).
c. Right of the Detenu to Make a Representation against the Order of Detention:
* Clause (5) of Article 22 enjoins the detaining authority to afford the detenu the
earliest opportunity to make a representation against the order of detention. The
right to make a representation implies that the detenu should have such information
as will enable him to make a representation.
* If there are any statements and documents referred to in the grounds, they must also
be communicated to him. Unless such information is furnished to him, it is not
possible for the detenu to make the representation.
* Non-communication to the detenu that he has right to make representation to the
detaining authority amounts to infraction of his right under Article 22(5). Article 22(5)
mandates that the detention order must be executed and served to the detenu,
without delay.
* In Khudiram Das v. State of W.B, AIR 1975 SC 550, it was ruled that all basic facts and
particulars, which influenced the detaining authority in arriving at the requisite
satisfaction leading to the making of the order of detention, must be communicated
to the detenu.
* The right to make a representation does not carry with it the right to be heard by an
independent judicial administrative or advisory tribunal. It also does not include in it
the right to be heard orally or an oral interview in respect of the representation.
* Article 22(5) permits the detenu to make a representation but the Constitution is
silent as to the person to whom it has to be made or how it has to be dealt with. A
law of preventive detention which makes no provision in these points is not
therefore unconstitutional.
* The representation made to the President or to the Governor, as the case may be
would not be deemed to be made to be indicated authorities. Where the detenu is
appraise of his right to make representation to the appropriate Government and he
chooses to address the representation to the Advisory Board alone, even without a
request to send its copy to the authorities concerned, the appropriate Government
would be justified in confirming the order of detention on perusal of record and
documents excluding the representation made to the advisory board.
 * Where the detention is made by State Government, the non-communication to the
detenu that he could make a representation to the State Government but to the
detaining authority, would not be infraction of Article 22(5).
* Article 22(5) imposes a legal obligation on the Government to consider the
representation of the detenu as expeditiously as possible and without inordinate
delay. Being a constitutional mandate, it commands the concerned authority to
whom the detenu submit his representation, to consider it, and dispose of the same
as expeditiously as possible.
* In Prem Lata Sharma v. District Magistrate, Mathura, AIR 1998 SC 2212, it was held
that when the detenu has the right to make a representation to the Central
Government and the same was refused to be sent by the detaining authority, results
to denial of right conferred on him under Article 22(5).
* In Abdul Nasar Adam Ismail v. State of Maharashtra, AIR 2013 SC 1376, holding that
on account of delay in disposal of the representation of the detenu, the continued
detention of the detenu was rendered illegal and the Court said that Article 22(5)
cast a legal obligation on the Government to consider the detenu’s representation as
early as possible.
* Clause (6) of Article 22 is an exception the Clause (5). It provides that nothing in
Clause (5) shall require the authority making such order as s referred to in that clause
to disclose facts which such authority considers to be against the public interest to
disclose.
d. No Detention Beyond Maximum Prescribed Period under the Law:
* Proviso to Clause 4(a) of Article 22 provides that a person detained under a
preventive detention shall not be detained beyond the maximum period prescribed
by any law made by the Parliament under Article 22(7)(b).
* Clause (7) of Article 22 confers power on Parliament to make a law prescribing the
maximum period for which any person may, in any class or classes for cases, be
detained under any law providing for preventive detention.
* In Sambhu Nath Sarkar v. State of W.B, AIR 1973 SC 1425, it has been held that the
Parliament is required to prescribe both the circumstances under which and the class
of cases in which only the reference to the Advisory Board could be dispensed with.
Article 22(7)(a) empowers only the Parliament and not a State Legislature.

RIGHT AGAINST EXPLOITATION (ARTICLES 23 & 24):

1. Introduction:
• Article 23 and 24 guarantees the fundamental right against exploitation. This rights is secured
by every person, whether citizen, non-citizen or alien. The protection contained therein is
available not only against the State but also against private individuals.
• Article 23(1) provides that Traffic in human beings and beggar and other similar forms of
forced labor are prohibited and any contravention of this provision shall be an offence
punishable in accordance with law.
• It prohibits traffic in human beings , beggars and other similar forms of forced labor. It also
declares that any contravention of this prohibition shall be an offence punishable by law.
2. Traffic in Human Beings:
• The expression traffic in human beings has been held to be a very wide expression and
means any dealings in human beings like chattels. It means selling and buying, men or
 women like goods and includes immoral traffic in women or girls or subjecting children to
immoral or such like practices.
• To enforce the constitutional prohibition against traffic in human beings, Parliament in the
exercise of powers under Article 35enacted the Suppression of Immoral Traffic in Women
and Girls Act, 1956. The law is renamed as the Immoral Traffic (Prevention) Act, 1956.
3. Begar:
• The term ‘begar’ is of Indian origin. It means voluntary work without payment. Generally
beggar constitute two elements i.e., to compel a person to work against his will and is not
paid any remuneration for that work. Begar thus means labor or service exacted by
Government or a person in power without giving remuneration for it.
• In Chandra v. State of Rajasthan, AIR 1959 Raj 186, the Sarpanch of the village ordered every
household to send one man, along with a spade and an iron pan to render free service for the
embankment of the village tank. It was held that the order of the Sarpanch was clearly
against Article 23(1) which forbade beggar.
• In Suraj Narayan v. State of Madhya Pradesh, AIR 1960 MP 303, it was held that non-
payment of salary to a teacher for unsatisfactory work offended against the spirit of Article
23 and amounted to beggar. However denial of salary on the ground of no work no pay
cannot be treated as a penalty and therefore it would not be beggar within the meaning of
Article 23.
• An agreement to render service for remuneration does not amount to forced labor within the
meaning of Article 23(1). A law punishing a person for refusing to render personal services
solely on the ground of caste or class is not hit by Article 23(1).
• Begal is held to be a form of forced labour and to constitute beggar, the person who is
compelled to render services is not paid any remuneration. In People’s Union for Democratic
Rights v. Union of India, AIR 1982 SC 1473, it has been held that payment of less than
minimum wages is included in the practice of beggar.
4. Forced Labor and Compulsory Service for Public Purpose:
• It is not merely the practice of beggar which is prohibited rather every other similar form of
forced labor is declared punishable by Article 23(1). In Bandhua Mukti Morcha v. Union of
India, AIR 1984 SC 802, it has been observed that the failure of the State to identify the
bonded laborers, to release them from their bondage and to rehabilitate them as envisaged
by the Bonded Labor System (Abolition) Act, 1976 violated Article 21 and 23 and it was held
that bonded labour which is a crude form of forced labor is prohibited by Article 23.
• Clause (2) of Article 23, en exception to Clause (1) enable the State to impose compulsory
service for public purpose however while imposing such compulsory service, the State is
prohibited from making any discrimination on the ground only of religion, race, caste or class
or any of them.
• In State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, it was held that the expression public
purpose includes any object or aim in which the general interest of the community as
opposed to the particular interest of individuals is directly and essentially concerned and it
would include the social or economic objectives enshrined in Part IV of the Constitution
relating to Directive Principles of State Policies.
• In State of H.P v. Jorawar, AIR 1955 HP 18, it was held that conscription for the defence or for
the social services, are held in the nature of compulsory service, which can be imposed by
the State for public purposes, under Clause (2) of Article 23.
5. Employment of Children:
• Article 24 provides no child below the age of fourteen years shall be employed to work in ay
factory or mine or engaged in any other hazardous employment. This provision read with the
Directive Principles of State Policy contained in Article 39(e) and 39(f) provides for the
protection of the health and strength of children below the age of fourteen years.
• In People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473, it was held that
building construction work was such hazardous employment where children below 14 years
should not be employed and the prohibition contained in Article 24 could be plainly and
indubitably enforced against everyone, whether State or private individual.
• In Bandhua Mukti Morcha v. Union of India, AIR 1997 SC 2218, the Supreme Court gave the
directions to the Government of India to convene within two months from the receipt of
order, a meeting of the concerned Ministers of the respective State Government and their
Principal Secretaries, holding concerned departments to evolve the principles and policies for
progressive elimination of employment of the children below the age of 14 years in all
employments and provide compulsory education to all children, periodical health check-up,
nutrient food and entrust the responsibilities of implementation of the principles.
• In pursuance of the obligation, contained in Article 24, Parliament enacted the Child Labor
(Prohibition and Regulation) Act, 1986 which specifically prohibits the employment of
children in certain industries. In addition to this legislation, many other laws enacted before
and after the commencement of the Constitution prohibit child labor.

RIGHT TO FREEDOM OF RELIGION (ARTICLES 25-28):

1. Introduction:
• The right to freedom of religion is contained in Articles 25 to 28 of the Constitution. It is
made explicit in the very Preamble that India is a Secular State. The concept of secularism to
put in a nutshell is that the State will have no religion. It does not means that it is atheistic
State or anti-religious State.
• The Constitution ensure equal freedom to all religions. At the same time, it is declared that
the religion of a person has nothing to do in the matters relating to the social and economic
welfare of the people, which matters can be regulated or restricted by the State, by law.
• The right to freedom of religion, its scope and significance is to be studied in view of the
Secular Democracy established under the Constitution. In St. Xavier’s College v. State of
Gujrat, AIR 1974 SC 1389, it was held that secularism is neither anti-God nor pro-God and it
treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of
the State and ensures that no one shall be discriminated against on the ground of religion.
2. Definition of Religion:
• The term religion is not defined in the Constitution and it is not susceptible of ay rigid
definition. A religion is not merely an opinion, doctrine or belief. It has its outward expression
in acts as well. Religious practices or performances of acts in pursuance of religious belief are
a party of religion.
• Religion is the belief which binds the spiritual nature of men to supernatural being. It
includes worship, belief, faith, devotion, etc and extends to rituals. The word religion has
different shades and colors.
• It is a well settled proposition of law that the protection of Article 25 and 26 is not limited to
matters of doctrine. They also extend to acts done in furtherance of religion, and therefore
 they contain a guarantee of rituals and observances, ceremonies and modes of worship
which are integral parts of the religion.
• In Ratilal v. State of Bombay, AIR 1954 SC 388, the Apex Court has explained that religious
practices or performance of acts in pursuance of religious belief were as much a part of
religion as faith or belief in particular doctrines. It was also held that no outside authority had
any right to say that those were not essential parts of religion and it was not open to the
secular authority of the State to restrict or prohibit them in any manner they liked under the
guise of administering the trust estate.
• In Lily Thomas v. Union of India, AIR 2000 SC 1650, it was held that religion was a matter of
faith stemming from the depth of the heart and mind and that religion, faith or devotion
were not easily interchangeable. It was also held that if the person feigned to have adopted
another religion just for some worldly gain or benefit, it would be religious bigotry.
3. Freedom of Conscience and Right to Profess, Practice and Propagate Religion:
• Clause (1) of Article 25 provides that subject to public order, morality and health and to the
other provisions of this part, all person are equally entitled to freedom of conscience and the
right freely to profess, practice and propagate religion.
• The expression ‘freedom of conscience’ means the inner freedom of a person to mould his
relations with his God I whatever manner he likes. It connotes a person’s right to entertain
beliefs and doctrines, concerning matters which are regarded by him to be conducive to his
spiritual well-being.
• In Stainslaus v. State of MP, AIR 1975 MP 163, it was held that freedom of conscience has no
necessary connection with any particular religion or any faith in God and it also implies the
right of a person not to be converted into another man’s religion or to belong to any religion
at all.
• Article 25(1) guarantees the right to profess religion. To ‘profess’ means to avow publicity to
make an open declaration of and to declare one’s belief in or to accept into religious order.
Thus to profess a particular religion means to declare freely and openly one’s faith or belief
in.
• To practice religion means to perform religious duties, rites or rituals. The protection is thus
not limited to the matters of doctrines but extends to rituals and observances. The
expression practice of religion signified acts done in pursuance of religion.
• Religious practices to which Article 25(1) refers, includes practices which are an integral part
of the religion itself. Practices which though religious, have sprung from merely superstitious
beliefs may in that sense be extraneous and unnecessary accretion to religion itself. In John
Vallamattom v. Union of India, AIR 2003 SC 2902, it was held that disposition of property for
religious or charitable uses is not an integral part of Christian religion.
• To propagate religion means to spread and publicize one’s religious views. Holding public
meetings by persons for propagating their religion is held to be guaranteed under Article
25(1). It also means the persuasion and exposition without any element of coercion.
• In Rev Stainslaus v. State of Madhya Pradesh, AIR 1977 SC 908, while upholding the Madhya
Pradesh Dharma Swatantratya Adhiniya,, 1968 and the Orissa Freedom of Religion Act,1967,
which prohibited the forcible conversion of any person to one’s own religion, it was held that
the right to propagate religion did not grant the right to converts another person to one’s
own religion. It merely meant the right to transmit or spread one’s religion by an exposition
of its tenets.
 A. Restriction on the Freedom of Religion:
* The freedom of conscience and the right to profess, practice and propagate religion
guaranteed by Article 25(1) is subject to the following:
i. Freedom of Religion Subjected to Public Order, Morality and Health:

The free exercise of religion is subjected to State regulation imposed to secure
order, public health and morals of the people. It means the fundamental right to
freedom of religion must yield to the maintenance of public order, morality and
health of the people.

In N.Adithayan v. T D Board, AIR 2002 SC 3538, it has been held that any custom
or usage, irrespective of even any proof of their existence in pre-Constitutional
days, cannot be countenanced as a source of law, to claim any right when it is
found to be violative of human rights, dignity, social equality and the specific
mandate of the Constitution and law made by the Parliament.
ii. Regulation of Economic or other Secular Activities:

Clause (2) of Article 25 enables the State to regulate or restrict the economics,
financial, political or other secular activities associated with religious practice. A
law which falls within Articles 25(2)(a) or (b) will be constitutionally valid even if t
is found to be inconsistent with the right guaranteed by Article 25(1).

In S.P Mittal v. Union of India, AIR 1983 SC 1, the constitutionally of the Auroville
(Emergency Provision) Act,1980 which was enacted for taking over the
management of Auroville for a limited period was upheld.

In Remya Raju v. State of Kerala, AIR 2008 Ker 192, it was held that the scheduling
of examination on a day, not acceptable to a class of citizens professing a
particular religion, does not infract the fundamental right guaranteed by Article
25(1).
iii. Social Welfare and Reforms:

Sub-clause (b) of Clause (2) of Article 25 empowers the State to make laws for the
social welfare and reforms. It therefore explains that where there is a conflict
between a social welfare and reforms and a religious practice, religion must yield.

Social reform means the eradication of practices or dogmas which stand in the
way of the country’s progress as a whole and which do not constitute integral and
essential part of the religion.
B. Throwing Open Hindu Religious Institutions:
* Article 25(2)(b) further empowers the State to make law for throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindu. The
expression ‘Institution of a public character’ means an institution which is dedicated to
the public as a whole and to sections thereof.
* In Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, it was held that though
the temple was a denominational one but it was a public institution hence it was held
that the appellant could not claim exclusive right for the members of their community to
worship on the temple and to exclude all others from the entry to the temple as it would
be hit by Article 25(2)(b).
4. Freedom of Religion of Religious Denominations:
• Article 26 provides that subject to public order, morality and health, every religious
denomination or any section thereof shall have the right to establish and maintain
institutions for religious and charitable purposes, to manage its own affairs in matters of
religion, to own and acquire movable and immovable property and to administer such
property in accordance with law.
 • In S.P Mittal v. Union of India, AIR 1983 SC 1, it was held that the word religious
denomination in Article 26 must take their color from the word religion and if this is, then the
expression religious denomination must also satisfy the conditions that it must be a
collection of individuals who have a common faith and a common organization and must be
designated by a distinctive name.
• For a community to be a religious denomination, the common faith of the community should
be based on religion and in that they should have a common religious tenets and the basic
cord which connects them, should be region and not merely considerations of caste or
community or social status.
A. Right to Establish and Maintain Institutions:
* Clause (a) of Article 26 guarantees to every religious denomination or any section
thereof the right to establish and maintain institutions for religious and charitable
purposes. The right under Article 26(a) is a group of rights available to every religious
denomination or any section thereof, be it of majority or any section thereof.
* Article 26(a) thus gives the right both to the majority as well as the minority
communities to establish and main institutions for charitable purposes, which would
inter alia include educational institutions.
* The right to maintain an institution for religious and charitable purposes includes the
right to exclude the profession or practices belonging to other religions. In Sanjib Kumar
v. Principal, St. Paul College, AIR 1957 Cal 524, it was held that the Principal was entitled
to refuse the performance of any religious practice in the exercise of his right to
maintain the institution under Article 26(a).
B. Right to Manage Matters of Religion:
* Clause (b) of Article 26 guarantees to every religious denomination the right to manage
its own affairs in matters of religion. The expression matters of religion includes religious
practices, rites and ceremonies essential for the practicing of religion.
* In Commissioner of Police v. Acharya J. Avadhutta, AIR 2004 SC 2984, the Apex Court
41lucidated the expression an essential part or practice of a religion to mean those
practices that were fundamental to follow a religious belief.
C. Right to Own and Administer Property:
* Clause (c) of Article 26 secures to a religious denomination or any section thereof the
right to own and acquire movable and immovable property. Clause (d) further
strengthens this right by guaranteeing to the denomination the right to administer such
property in accordance with law.
* Article 26(c) and 26(d) do not create rights in any denomination or its sections, which it
never had, they merely safeguard and guarantee the continuance of rights which such
denomination or its section had.
* A law which takes away the right of administration altogether from the religious
denomination and vests it in some secular authority would be violative of the guarantee
contained in Article 26(d).
* A law which empowers empowers the Commissioner of Endowments to deprive the
mahant, at any moment he choose, of his right to administer the trust property, even if
there was no negligence or maladministration on his part, would be opposed to the
guarantee contained in Article 26(d).
5. Freedom from Payment of Taxes for Promotion of any Particular Religion:
• Article 27 provides that no person shall be compelled to pay any taxes the proceeds of which
are specifically appropriated I payment of expenses for the promotion or maintenance of any
particular religion or religious denominations.
 • The object behind Article 27 is to protect the secular characteristic of the Constitution of
India which prohibits the promotion or maintenance of any particular religion by the State or
at State’s expenses. Therefore if sc a tax is imposed then no person can be compelled to pay
it.
• In Sri Jagannath v. State of Orissa, AIR 1954 SC 400, the Supreme Court upheld the levy and
observed that the annual contributions so imposed was in the nature of a fee and not a tax.
• Article 27 not only prohibits the imposition of tax but it also prohibits the utilization of public
funds for the promotion r maintenance of a particular religion or religious denomination but
the reconstruction of the religious and educational places damaged during communal riots at
the cost of the Government is valid.
6. Prohibition of Religious Instructions in Educational Institutions:
• Clause (1) of Article 28 provides that no religious instruction shall be provided in any
educational institution wholly maintained out of State funds. Clause (3) further provides that
no person attending any educational institution recognized by the State or receiving aid out
of State funds shall be required to take part in any religious instruction that may be imparted
in such institutions or in any premises attached thereto unless such person or if such person
is a minor, his guardian has given his consent.
• In Aruna Roy v. Union of India, AIR 2002 SC 3176, it was held that Article 28(1) did not
prohibit education of religion dissociated from tenets, the rituals, observances, ceremonies
and modes of worship of a particular sect or denomination.
7. Religious Freedom and Proselytisation:
• Proselytisation literally means conversion from one opinion, creed or party to another. In
Robasa Khanum v. Khodadad Irani, AIR 1947 Bom 34, it has been held that the conduct of the
husband would be judged on the basis of the rule of justice, equity and good conscience
although the Hindu husband had a right to embrace Islam as his religion but he had no right
to marry again without getting hi earlier marriage dissolved.
• In Lily Thomas v. Union of India, AIR 2000 SC 1650, it has been held by the Supreme Court
that the prosecution of the apostate-husband under Section 494 of Indian Penal Code, 1860
did ot violate freedom of religion.
 MODULE 3

CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29 & 30):

1. Introduction:
• Article 29 and 30 guarantees cultural and educational rights. Article 29(1) secures to every
section of citizens, residing in the territory of India, the right to conserve its own language,
script or culture and Article 30(1) guarantees to every religious or linguistic minority the right
to establish and administer educational institutions of their choice.
• In T.M.A Pai Foundation v. State of Karnataka, AIR 2003 SC 355, it has been explained that
Article 29 and 30 do not more than seek to preserve the differences that exist, and at the
same time, unite the people to form one strong nation.
• Protection under Articles 29 and 30 is not a privilege but is a protection to the
religious/linguistic minority communities to attain equality with other religious/linguistic
groups of India.
2. Right to Conserve Language, Script or Culture:
• Clause (1) of Article 29 provides that any section of the citizens residing in the territory of
India or any part thereof having a distinct language, script r culture of its own shall have the
right to conserve the same.
• The right to conserve means the right to preserve or the right to maintain. The right to
conserve one’s own language, script or culture thus means and includes the right to preserve
and to maintain or to work for one’s own language, script or culture.
• In Jagdev Singh Sidhati v. Partap Singh Daulta, AIR 1956 SC 183, it has been held that making
promises by a candidate to work for the conservation of the electorate’s language did not
amount to corrupt practice. Unlike Article 19(1), Article 29(1) is not subjected to any
reasonable restriction.
• Article 29(2) provides that no citizen shall be denied admission into any educational
institution by the State or receiving aid out of State funds on grounds only of religion, race,
caste, language or any of them.
• In State of Madras v. Chamoakam Dorairajan, AIR 1951 SC 226, it has been held that right
contained in Article 29(2) is available to every citizen of India whether belonging to a
minority or majority group. It is a right of a citizen as a citizen and not as a member of any
community or class.
• Article 29(2) prohibits denial of admission into educational institutions maintained or aided
by the State on the ground only of religion, race, caste or language or any of them. It is not
attracted in cases where the admission is denied on the ground other than those specified
herein.
• Article 29(2) cannot be invoked for seeking admission into educational institutions getting no
grants-in-aid from the State. The term aid in Article 29(2) covers grants made by the
Government including the grants made under Article 337.
• In Naseem v. State of Haryana, JT 2003 (3) SC 238, it has been held that the Court cannot
compel an autonomous institution to grant admission to a candidate not holding the
requisite eligibility qualifications from an institution recognized by it.
3. Right of Minorities to Establish and Administer Educational Institutions:
• Article 30(1) provides that all minorities whether based on religion or language, shall have
the right to establish and administer educational institutions of their choice. Clause (2) of
Article 30 further provides that the State shall not in granting aid to educational institutions,
discriminate against any educational institution on the ground that it is under the
management of a minority whether based on religion or language.
• Article 30 should be read alongwith other Fundamental Rights particularly those secured by
Articles 25, 26 and 29. Therefore it may be stated that Article 30 provides the means by
which the rights secured by these Articles might be effectively exercised.
A. Minority:
* The term minority is not defined in the Constitution. Literally it means a non-dominant
group. It is a relative term and is referred to, to represent the smaller of two numbers,
sections or groups.
* In Re The Kerala Education Bill, AIR 1958 SC 956, it was held that while it was easy to say
that the minority means a community which was numerically less than 50%. Subsequent
to this case, the Supreme Court has consistently held that with regard to a State law the
unit to determine a religious or linguistic minority can only be the State.
* In T.M.A Pai Foundation v. State of Karnataka, AIR 2003 SC 355, it has been held that
since the reorganization of the States in India has been on linguistic lines, for the
purpose of determining the minority, the unit will be the State and not the whole of
India.
* A linguistic minority for the purpose of Article 30(1) is one which must have a separate
spoken language and that language need not have a distinct script. In India, a number of
languages are spoken having no script of their own. People speaking such a language
having no script of its own constitute the linguistic minority.
* A minority based on religion means that the only and principal basis of the minority
must be adherence to one of the many religions and not a sect or part of the religion. A
minority based on religion should be restricted only to those religious minorities.
* In Bramchari Sidheswar Shai v. State of West Bengal, AIR 1995 SC 2089, it has been held
that Ramakrishna religion was not distinct and separate from Hindu religion and not
minority religion. Therefore citizens of India, who are the followers of Ramakrishna
religion could not claim to belong to a minority based on religion and as such were not
entitles to the fundamental rights under Article 30(1).
* In St. Stephen’s College v. University of Delhi, AIR 1992 SC 1630, it has been held that
minority under Article 30(1) would not necessarily means those who formed a distinct
and identifiable group of citizens of India.
B. Right to Claim Minority Status:
* In order to claim minority status for an institution in any State, the authorities must be
satisfied firstly that the institution has been established by the persons who are minority
in such State and secondly the right to administration of the said institution is also
vested in those persons who are minority in such State.
* In D.A.V College T&M Socy. V. State of Maharashtra, AIR 2013 SC 1420, it has been held
the trust registered in the State of Maharashtra where minority language is Hindi and all
trustees were living the State where Hindi is a majority language could not claim
minority status in respect to such institutions.
 * Article 30(1) confers the following two rights on the minorities:
i. Right to Establish Educational Institutions:

Article 30(1) guarantees to the minorities the right to establish educational
institutions of their choice. The word “establish” means to bring into existence. It
does not necessarily connote construction of the institution by the minority.

In Socio Literati Advancement Society, Bangalore v. State of Karnataka, AIR 1979
Kant 217, it has been held that the right to establish under Article 30(1) means the
right to establish real institutions which will effectively serve the need to their
community and the scholars who resort to them. The minority is not required to
seek prior permission for the establishment of an educational institution.
ii. Right to Administer Institutions Established by the Minority:

The word “establish” and “administer” for the purpose of Article 30(1) must be
read conjunctively. It means that the minority shall have the right to administer
the educational institutions only if that institution was established by it.

The right to administer the educational institution has been held to mean the
right to effectively manage and conduct the affairs of the institution. In T.M.A Pai
Foundation v. State of Karnataka, AIR 2003 SC 355, it has been held that any
regulation framed in the national interest or for the welfare of the students and
teachers must necessarily apply to all institutions whether run by the majority or
the minority.
C. Acquisition of Property of Minority Educational Institutions:
* Prior to the Constitution (Forty-fourth Amendment) Act, 1978. Omitted Article 31 which
guaranteed the fundamental right to property and it also provided for compulsory
acquisition of property by the State for public purpose. With a view to safeguard the
right to property belonging to an educational institution establishes and administered by
an authority, the Forty-fourth Amendment inserted Clause (1-A) after Clause (A) of
Article 30.
* In Society of St. Joseph’s College v. Union of India, AIR 2002 SC 195, for the first the
provision of Clause (1-A0 of Article 30 was presented and it was held that the provisions
of a statute that provided for acquisition of property were not adequate for the
compulsory acquisition of minority institution property.
D. No Discrimination in Granting Aid to Educational Institution:
* Clause (2) of Article 30 provides that the State shall not in granting aid to educational
institutions, discriminate against ay educational institution on the ground that it is under
the management of a minority whether based on religion or language.
* In T.M.A Pai Foundation v. State of Karnataka, AIR 2003 SC 355, it has been held that the
absence of aid does not make the right under Article 30(1) illusory. Article 30(2) only
means that a minority institution shall not be discriminated against when aid to
educational institutions is granted.
RIGHT TO PROPERTY (ARTICLES 31A-31D AND 300A):
1. Introduction:
• The right to property or right to own property is often classified as a human right for natural
persons regarding their possession. A general recognition of a right to property is found more
rarely and in typically heavily constrained in so far as property is owned by legal persons and
where it is used for production rather than consumption.

• A right to property is recognized in Article 17 of the Universal Declaration of Human Rights.

The European Convention on Human Rights in Protocol 1 of Article 1 acknowledges a right for
natural and legal persons to peaceful enjoyment of his possession subject to the general
interest or to secure the payment of taxes.
• Property, as a legal and social institution has different forms in different cultures and legal
systems. However only a definition of constitutional property is common in all democratic
countries. Most of the modern Constitutions except those of communists countries have
recognized the right to property. Therefore citizens have right to own and possess the
property.
• The Constitution of India originally provided for the right to property under Article 19 and 31.
Article 19 guaranteed to all citizens the right to acquire, hold and dispose the property.
Articles 31 provided that no person shall be deprived of his property save by the authority of
law. It also provided that compensation would be provided to a person whose property has
been taken for public purposes.
• In India, no fundamental right has given rise to so much of litigation than property right
between State and Individuals. Though the Supreme Court of India sought to expand the
scope and ambit of right to property but it has been progressively curtailed through
constitutional amendments.
2. Repealed Fundamental Right To Property:
• Prior to the enactment of the Constitution (Forty-fourth Amendment) Act, 1978, Article 31
guaranteed to the people of India the fundamental right to property. This article originally
provided that no person shall be deprived of his property save by the authority of law.
• Article 31 however permitted the acquisition of the private property by the State for some
public purposes by paying compensation to the owner. It also exempted the zamindari
abolition and agrarian reform laws from requirement of compensation and public purpose.
• In Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91, Article 31 came to be interpreted for
the first time by the Patna High Court. In this case the Bihar land Reforms Act, 1950 was held
invalid by the High Court as it contravened Article 14. It was also rules that Article 31(4)
would not prevent the Zamindari abolition laws from being challenged in a court on the
grounds other than those mentioned in Clause (2) of Article 31.
• The interpretation of Article 31 gave rise to unanticipated difficulties and the Government
felt that whole zamindari abolition programme was endangered. To overcome the difficulty,
the Constitution (First Amendment) Act, 1951 was passed which added Article 31A with an
aim at removing social and economic disparities in agriculture sector.
• Article 31(2) provided that a person deprived of his property would be paid compensation. In
State of West Bengal v. Bela Banerjee, AIR 1954 SC 170, it has been held that the principles
laid down by the Legislature for the determination of the amount to be given to the owner
for the property appropriated, must ensure that what was determined as payable must be
compensation that meant just equivalent of what the owner had been deprived of. This
judgment actually led to the Constitution (Fourth Amendment) Act, 1955.
 • To nullify the effect of judicial pronouncements, Article 31(2) was again amended by the
Constitution (Twenty-fifth Amendment) Act, 1971. The amendment dropped the word
compensation and instead inserted the word amount in Article 31(2). It was done in order to
avoid judicial review of the term compensation as just compensation.
• In Kesavananda Bharati v. State of Karela, AIR 1973 SC 1461, the validity of the 25th
Amendment was upheld and it was said that there is no scope for the judicial review on the
ground of inadequacy of compensation but the Court can still interfere on the ground that
legislature had not fixed an y amount or specified any principles according to which it could
be determined or if the principles laid down for determining the compensation resulted in
non-payment of compensation or in paying an illusionary compensation which would shock
the conscience of a reasonable man.
• The Constitution (Forty-fourth Amendment) Act, 1978 ultimate took away the right to
property from the chapter on Fundamental Rights and also omitted Article 31 and Article
19(1)(f) and inserted in their place Article 300A which provides that no person shall be
deprived of his property save by the authority of law.
• In I.R Coelho v. State of Tamil Nadu, AIR 1999 SC 3179, it has been ruled that right not to be
deprived of property save by the authority of law is no longer a fundamental right but only a
Constitutional right which has never been treated as part of the basic structure of the
Constitution.
3. Constitutional Right to Property- A Legal Right:
• The object behind the Constitution (Forty-fourth Amendment) Act, 1978 was to reduce the
right to property from the status of fundamental right to that of a legal right. This right to
property secured under Article 300A will be available against the executive interference and
not against the legislative action. Article 300A has given the right to property a status of basic
human right and a Constitutional right.
• In Chairman, I.V Pradhikaran v. Puri International Cock and Chemicals Limited, AIR 2007 SC
2458, referring to Article 17 of the Declaration of Human Rights, 1789, it has been held that
the right to property being inviolable, legally ascertained, obviously required it and just and
prior indemnity had been paid.
• Article 300A does not permit the deprivation of priority in a manner unknown to law. In State
of Uttar Pradesh v. Manohar, AIR 2005 SC 488, it has been held that where there is utter lack
of legal authority for such deprivation, the court may not only grant compensation but also
impose exemplary cost on the state authorities. Therefore merely on the basis of some
Government order, the property of a person cannot be taken over by the Government.
• In Alok Mohan Das v. State of Bihar, AIR 2009 Pat 64, the Patna High Court quashed the
notice issued by Nagar Parishad to the petitioner, the owner of land, not to sell land as it was
used by general public in the form of road. It was held to be violative of right conferred by
Article 300A.
• In State of Jharkhand v. Jitendra Kumar Srivastava, AIR 2013 SC 3383, it was held that word
property used in the Article 300A must be understood in the context in which the Sovereign
power of eminent domain is exercised by the State. It is held to include an undertaking which
is a going concern. The expression right to property includes the right to use, enjoy, manage,
consume and alienate the same. It thus includes the right to receive pension.
• The expression deprivation of the property must equally be considered in the fact situation
of any case. It means different things under different situations. It includes confiscation,
destruction, seizure of goods or revocation of proprietary rights.
 • In Jilubhai nanbhai Khachar v. State of Gujrat, AIR 1995 SC 142, it has been held that
deprivation for the purpose of Article 300A means acquisition or taking possession of
property for public purpose, in accordance with the law made by Parliament or a State
Legislature, a rule or a statutory order having force of law. Deprivation by any other mode is
not acquisition or taking possession under Article 300A.
• In Ramesh Shriram Wani v.. State of Maharashtra, AIR 2012 (NOC) 388 (Bom), it has been
held that the possession taken by the State o land of the party without following due process
of law contained in Land Acquisition Act, 1894 would amount to illegality.
4. Conclusion:
• The right to property is now considered to be, not only a Constitutional right, but also a
human right. In Tukaram Kana Joshi v. M.I.D.C, AIR 2013 SC 565, it has been held that though
not a basic feature of the Constitution or a Fundamental right, the right to property being a
human right had been considered to be in the realm of individual rights such as the right to
health, the right to livelihood, the right to shelter and employment, etc.
• The legitimate rights of a citizen to have his property restored or its marked value
reimbursed could not be denied on the plea that there was no specific statutory provision for
such restitution or reimbursement. The right of a citizen in this regard is secured under the
Constitution in the form of guarantee under Article 19(1)(g) and Article 300A.
• According to statutory provisions, illegal seizure of the forest produce is deprivation of
property, violative of Article 300A. The recovery of debts due to banks or seizure of vehicles,
done by hiring agents, muscleman, etc is violative of Article 300A.
• In Biswanath Bhattacherya v.Union of India, AIR 2014 SC 1003, it has been held that the
deprivation of illegally acquired property would not be violative of the right conferred by
Article 300A or Article 14. Therefore according to Article 300A, no person shall be deprived of
his property save by the authority of law.

RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLES 32-35):

1. Right to move the Supreme Court for Enforcement of Fundamental Rights:
• Article 32 confers one of the highly cherished rights. It is the right to move the Supreme
Court for the enforcement of the fundamental rights. This right has been held to be an
important and integral part of the basic structure of the Constitution.
• Article 32 has been described as the corner stone of the democratic edifice raised by the
Constitution. The power under Article 32 has been described as the heart and soul of the
Constitution and due to this Article only the Supreme Court has been declared as the
protector and guarantor of the fundamental rights.
• Clause (1) of Article 32 declares that the right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this part is guaranteed. Thus the
right to move the Supreme Court for the enforcement of the fundamental rights is itself
declared to be a fundamental right guaranteed by Article 32.
• In State of West Bengal v. C.P.D.P,WB, AIR 2010 SC 1476, it has been held that being a
fundamental right, it is the duty of the Supreme Court to ensure that no fundamental right is
contravened or abridged by any statutory or constitutional provision.
A. Appropriate Proceedings:
* The expression ‘appropriate proceedings’ in Clause (1) of Article 32 denotes that only
those proceedings can be taken under Article 32 which are considered appropriate and
not all sorts of proceedings.
 * The requirement of appropriateness must be judged in the light of the purpose for
which the proceedings is to be taken namely the enforcement of fundamental right. In
N.D Jayal v. Union of India, JT 2003 (Supp 2) SC 1, it has been held that the proceedings
arising under Article 32 not always be dealt with the Supreme Court alone. In
appropriate cases, suitable directions including transfer of the matter to the High Court
or other authorities can be issued to deal with such matters.
* In Nirmal Singh Kahlon v. State of Punjab, AIR 2009 SC 984, it has been held that in PIL,
the court need not strictly follow the ordinary procedure. It may not only appoint
committees but also issue directions upon the State from time to time.
B. Rule of Locus Standi:
* According to the traditional rule f locus standi, the right to move the Court for judicial
redressal, is available only to those, whose legal right or legally protected interest has
been infringed. This rule results in the denial of equal access to justice to those who can
because of their poverty or socially or economically disadvantageous position, are
unable to approach the Court for relief.
* In People’s Union for Democrtic Rights v. Union of India, AIR 2009 SC 984, the Supreme
Court took a dynamic approach and pioneered the concept of Public Interest Litigation
permitting litigation at the instance of public spirited persons for the enforcement of
rights of any other person.
* In A.B.S.K Sangh (Rly.) v. Union of India, AIR 1981 SC 298, the Supreme Court declared
that access to justice through class action, public interest litigation or representative
proceedings was the present constitutional jurisprudence.
* In S.P Gupta v. Union of India, AIR 1982 SC 149, the Supreme Court explained the
concept of public interest litigation and held that any member of the public or social
group acting bonafide could invoke the writ jurisdiction of the High Courts or the
Supreme Court seeking redressal against violation of legal or constitutional rights of
persons who owing to their poverty or social or economic or other disability could not
approach the Court for relief.
* Pro bono public constitutes a significant state in the present day judicial system. The
rule of locus standi has been dilutes and in place of disinterested and dispassionate
adjudicators, the Courts have become active participant in the dispensation of justice.
They have evolved a jurisprudence of compassion. This jurisdiction has been created and
carved out by the judicial creativity and craftsmanship.
* The emergency of the PIL led to other landmark innovations. The courts started
denouncing the adversarial procedure. With a view to making themselves more
accessible to disadvantaged sections of the society, they have introduced processual
innovations.
* In Union of India v. R.Padmanabhan, JT 2003 (7) SC 20, it has been held that mere letters
addressed to the Court are also considered as writ petitions in cases of gross violation of
fundamental rights thus leading to the evolution of Epistolary jurisprudence.
C. Appointment of Commissions:
* Mere relaxation in the rule of locus standi is not enough. In case the Court finds that
there has, in fact been violation of this right of any person, it would be the Court’s
burdened duty to directly step in and examine the matter, to protect it against the
unlawful onslaught by the State.
* The power to appoint a Commission or an investigating body for making enquiries I
terms of directions given by the Court, the Court must be considered to be implied and
inherent in the powers that the Court had under Article 32.
 * In Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622, it has been held that the
primary duty of the courts is to ensure that all Government agencies, entrusted with the
duty, to discharge their functions and obligations in accordance with law.
2. Writs, Directions or Orders:
• Clause (2) of Article 32 provides that the Supreme Court shall have the power to issue
directions or orders or writs including writs in nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari which ever may be appropriate for the enforcement
of the rights conferred by this part.

• The writs which the Supreme Court can issue are as follows:
A. Writ of Habeas Corpus:
* Habeas Corpus is a Latin term which means ‘you may have the body’. This writ is, in
form, an order, issued by the Court calling upon the person by whom another person is
detained, to bring that person before the Court and to let the Court know, by what
authority, he has detained that person.
* If the detention is found to be without legal justification, the person is ordered to be
released. The main object of the writ is to provide a quick and immediate remedy for the
release of the person from unlawful detention.
* In Abdul Nasar Adam Ismail v. State of Maharashtra, AIR 2013 SC 1376, it has been held
that a habeas corpus petition cannot be dismissed on the ground of imperfect pleadings.
B. Writ of Mandamus:
* The term ‘mandamus’ means ‘the order’. The writ is thus a command issued by a Court
asking a public authority to perform a public duty belonging to its office. It is issued
against a public authority who is under a legal duty to do or forbear to do something, in
the performance of which the petitioner has a legal right.
* In Union of India v. Namit Sharma, AIR 2014 SC 122, it has been held that no mandamus
can be issued to the rule making authority to make rules to carry out the provisions of
the Act when it is discretionary for the authority to make or not to make the rules.
* Where the issuance directing the investigating agencies to investigate into offences was
found futile, the Court forged out a new tool of continuing mandamus, requiring the
agencies to report the progress to the Court so that monitoring by the Court could
ensure continuance of the investigation.
C. Writ of Prohibition:
* The writ of prohibition is issued primarily to prevent an inferior Court or tribunal from
exceeding its jurisdiction. It is to prohibit the inferior courts or tribunals from exercising
power or authority not vested in them.
* The writ is issued against judicial or quasi-judicial authorities, on the ground of excess of
jurisdiction, absence of jurisdiction or for acting in violation of the principles of natural
justice. It is a prohibitive writ and forbids the authority from continuing the proceedings
beyond its jurisdiction and is a jurisdictional writ.
D. Writ of Certiorari:
* Certiorari literally means ‘to certify’. Like prohibition, the writ of certiorari is also a
jurisdictional writ and is issued against judicial or quasi-judicial authorities on similar
grounds.
* Certiorari is a remedial writ and is issued to quash an order or decision which has been
made without jurisdiction or in violation of the principles of natural justice. It is
therefore issued after the completion of the proceedings.
 E. Writ of Quo Warranto:
* Quo Warranto means ‘what is your authority’. The writ is issued to call upon the holder
of a public office to show to the Court, under what authority he is holding that office.
The purpose of the writ is to prevent a person from holding an office, which he is not
legally entitle to hold and it is issued against the usurper of an office.
3. Petition under Article 32:
• The Supreme Court, as a Constitutional Court, the exercise of powers conferred by Article 32
seeks to preserve the balance between the competing interest of personal liberty and public
safety as reflected in the text of the Constitution and its subsequent interpretation.
• The power of the Supreme Court under Article 32 is not only injunctive n ambit but is also
remedial in scope and empower the Court to grant relief against a breach of fundamental
right already committed.
• In Union of India v. Association of Democratic Rights, AIR 2002 SC 2112, it has been held that
when the Acts or Rules are silent on a particular subject and the Authority implementing the
same has constitutional or statutory power to implement it, the Court can necessarily issue
directions or orders on the said subject to fill the vacuum or void till the suitable law is
enacted.
A. Petition under Article 32 and Res Judicata:
* The rule of res judicata explains that there should be finality to binding decisions of
courts of competent jurisdiction and that parties to the litigation should not be vexed
with the same litigation again. It is a principle of civil law and it is embodied in Section 11
of the Code of Civil Procedure,1908.
* In Daryao v. State of U.P, AIR 1962 SC 1457, it has been held that the general principle of
res judicata applies to writ petitions filed under Article 32. The rule of res judicata is not
a technical rule of procedure but is based on consideration of public policy.
* The binding character of judgments of courts of competent jurisdiction is in essence a
part of the rule of law which the administration of justice, so much emphasized by the
Constitution is founded and a judgment of the High Court under Article 226 passed after
a hearing on the merit must bind the parties till set aside in appeal as provided by the
Constitution and cannot be permitted to be circumvented by a petition under Article 32.
B. Petition under Article 32 and Laches or Delay:
* One of the fundamental principles of administration of justice is that the courts will help
those who are vigilant about their rights and who do not sleep on their rights. Laches or
inordinate delay on the part of the petitioner may disentitle him to more a writ petition
under Article 32 to enforce his fundamental rights.
* The rule is that the Court should not examine state cases and that it should help the
vigilant and not the indolent. It is a rule of judicial circumspection and has to be applied
with caution.
* In K. Prasad v. Union of India, AIR 1988 SC 535, it has been held that it is a rule of
practice based on sound and proper exercise of discretion and there is no inviolable rule
that whenever there is delay the Court must necessarily refuse to entertain the petition.
Each case is to be decided on its facts and circumstances.
4. Curative Petitions-To Assail Final Judgments/Orders:
• A curative petition is a petition, filed for reconsideration of a final judgment/order passed by
the Supreme Court after exhausting the remedy of review under Article 137. In Rupa Ashok
Hurra v. Ashok Hurra, AIR 2002 SC 1771, it was held that jurisdiction of the Supreme Court
under Article 32 could not be invoked to challenge the validity of a final judgment/order
 passed by the Supreme Court after exhausting the remedy of review under Article 137 read
with Order XI of Rule 1 of the Supreme Court Rules, 1966.
• A curative petition ought to be treated as a rarity rather than regular, stating that the
appreciation of the Court shall have to be upon proper circumspection having regard to the
three basic features of justice deliver system, namely the order being in contravention of the
doctrine of natural justice or the order being without jurisdiction or non-disclosure on the
part of the Judge of his connection with the subject-matter or parties, giving scope for
apprehension of bias and that the judgment adversely affected the petitioner.
• In Zakarius Lakra v. Union of India, AIR 2005 SC 1560, it was held that appropriate remedy is
available only to file a curative petition and permitted the conversion of the petition under
Article 32 into a curative petition.
5. Judicial Review of Legislation:
• The power of judicial review over legislative action has been held to be an integral and
essential feature constituting part of the basic structure of the Constitution. It is a plenary
power and it is the duty of the Court to test the law of the land on the touchstone of the
Constitution and to provide appropriate remedy, if and when called upon to do so.
• In Government of Andhra Pradesh v. P.L Devi, AIR 2008 SC 1640, after discussing the opinions
and writings of the eminent American jurists and judges, it has been observed that the power
of invalidating a Statute prevents the full play of the democratic process and that invalidation
of a Statute made by the Legislature elected by the people is a grave step and it should be
exercised with rigorous self-restraint.
• The doctrine of Basic Structure did not apply to ordinary legislation which had only a dual
criteria to meet namely it should relate to a matter within its competence and it should not
be void under Article 13 as being an unreasonable restriction on fundamental right or as
being repugnant to an express constitutional remedy. The Constitutional validity of any
Central law can be challenged before the High Court of a State under Article 226 and before
the Supreme Court of India under Article 32.
• In State of WB v. CPDR,WB, AIR 2010 SC 1476, it has been held that in a federal Constitution,
the distribution of legislative powers between the Parliament and the State Legislatures
involves limitation on legislative powers and there requires an authority other than the
Parliament to ascertain whether such limitations are transgressed.
6. Doctrine of Presumption of Constitutionality:
• The doctrine of presumption of constitutionality of legislation is founded on the premise that
the Legislature being a representative body of the people and accountable to them, is aware
of their needs and acts in their best interest within the confines of the Constitution.
• In Suresh Kumar v. NAZ Foundation, AIR 2014 SC 563, it has been held that the last resort
taken by the Courts is to declare the law unconstitutional. The doctrine of severability and
the practice of reading down a Statute arise out of the principle of presumption of
constitutionality and are specifically recognized in Article 13 of the Constitution.
7. Suspension of Rights Conferred by Article 32:
• Clause (4) of Article provides that the right guaranteed by this article shall not be suspended
except as otherwise provided by this Constitution. The right to move the Supreme Court
under Article 32 cannot be taken away or whittles down by an ordinary law and that is
beyond the challenge of the Legislature ad a fortiori of the Executive.
• The jurisdiction is conferred on the Supreme Court by the Constitution under Article 32 and
therefore limitation cannot be placed on it except by the Constitution itself. It therefore
follows that the right to move the Supreme Court under Article 32 can be suspended in
accordance with the provision of the Constitution.
A. Proclamation of Emergency and Fundamental Rights (Article 359):
* Article 359 refers to a situation when the right guaranteed by Article 32 can be
suspended. It is given when a Proclamation of Emergency made under Article 352 is in
operation. Under such a circumstance, Article 359 empowers the President to suspend
by order the enforcement of the fundamental rights.
B. Members of Armed Forces and Fundamental Rights (Article 33):
* Article 33 provides that Parliament may by law determine to what extent any of the
fundamental rights shall be applicable to the members of the armed forces or the
member of the forces charged with the maintenance of public order or persons
employees in any bureau or other organization established by State for the purpose of
security issues or any persons employed for the telecommunication setup for the use of
the above persons.
* Article 33 enables the Parliament to modify fundamental rights in relation to military
and para-military forces, police forces and analogous forces. The restrictions on
fundamental rights under Article 33 can be imposed only by the Parliament by law.
* The object behind Article 33 is to ensure that proper discharge of duties and
maintenance of discipline among the members of these forces and the provision has
been considered to be of paramount importance in the national interest.
* In Prithi Pal Singh v. Union of India, AIR 1982 SC 1413, it has been held that Parliament
need to specify in detail as to which fundamental right and to what extent is curtailed by
a law relating to the forces mentioned in Article 33.
C. Restriction on Fundamental Rights during Martial Law (Article 34):
* Article 34 provides that nothing withstanding anything in the foregoing provisions of this
Part, Parliament may by law indemnify any person in the service of the Union or of a
State or any other person in respect of any act done by him n connection with the
maintenance or restoration of order in any area within the territory of India where
martial law was in force or validate any sentence passed, punishment inflicted,
forfeiture ordered or other act done under martial law such area.
* The Constitution does not have the provision of authorizing proclamation of martial law.
However it s implicit in the text of Article 34 and the Government may declare martial
law in any part of the territory of India.
* According to Dicey, the expression ‘martial law’ is more often used as the name for the
government of a country or a district by military tribunals which more or less, supersede
the jurisdiction of the Courts.
* Martial law thus is the action of the military authorities imposing restrictions and
regulations on civilians in order to deal with the situation amounting to war or
insurrection or rebellion in any part of the Country.
* Article 34 visualizes a situation of martial law. It envisages that fundamental rights will
have to be infringed during such a situation. Except Article 34, which refers to martial
law, there is no other provision in the Constitution authorizing the proclamation of
Martial law.
D. Legislation to Give Effect to Provision of Part III (Article 35):
* Article 35(a)(i) empowers Parliament to make laws with respect to any of the matters
which under Clause (3) of Article 1, Clause (3) of Article 32 and Article 33 and Article 34
may be provided by the law made by the Parliament. Article 34 enables the Parliament
 to make laws for indemnifying any person in the service of the Government in respect of
acts done during the operation of martial law.
* Clause (a) of Article 35 confers power on Parliament and expressly excludes the
Legislatures of the States from making laws with respect to matters mentioned therein.
The object is that fundamental rights both as to their nature and as to the punishment
involved in their violation shall be uniform throughout India.
* Clause (b) of Article 35 lays down that nay law existing in the date of the
commencement of the Constitution and dealing with the matters mentioned in Sub-
clause (i) and (ii) of Clause (a) of Article 35 shall remain in force until repealed, altered or
abrogated by Parliament.

DIRECTIVE PRINCIPLES OF STATE POLICY:

1. Introduction:
• Part IV of the Constitution relates to the Directive Principles of State Policy. It sets forth the
ideals and objectives to be achieved by the State for setting up in India a Social Welfare State.
The basic aim of the Welfare State is the attainment of substantial degree of social, economic
and political equalities, the assumption by community acting trough the State as its
responsibility to provide the means whereby all its member can reach minimum standards of
economic security, civilised living, capacity to secure social status and culture to keep good
health.
• The founding fathers of the Constitution were aware of the drawbacks the country had been
suffering from and in order to eradicate these evils, set forth in the very Preamble the ideals
and objectives to be achieved. The intention of the makers of the Constitution was to
establish in India a democracy- political, economic and social.
• To achieve the cherished goals the framers were unanimous to secure to the people
practically all the prevailing political, social and economic rights. These rights were broadly
divided into two categories i.e., political and civil rights & social and economic rights.
• The Directive Principles contain the social, economic, cultural and educational objectives of
the State. These provide a motivation for a peaceful political revolution. These also provide a
programme for social reconstruction and economic upliftment of the people of India.
• Directives are means to be the fundamental principles which should necessarily be made the
basis of all executive and legislative action that may be taken in the governance of the
country. These must be regarded as the objective of national activity and it must be the
endeavor of every State as well as the Union to give effect to them.
• Article 37 expressly declares that the Directive Principles shall not be enforceable by any
court but this non-enforceable nature does not reduce the importance of the Directive
Principles, for the Directives have been the same time, declared as fundamental in the
governance of the country.
• In Air India Statutory Corpn. V. United Labour Union, AIR 1997 SC 645, it has been observed
that these Directives are fore-runners of the UN Convention on Right to Development and
these Principles are embedded as integral part of the Constitution and that these now stand
elevated to inalienable fundamental human rights and these Principles are justiciable by
themselves.
2. Relationship Between Directive Principles and Fundamental Rights:
• The Directive Principles differ from Fundamental Rights on the point of Justiciability. While
Fundamental Rights are justiciable, Directive Principles have been expressly declared non-
justiciable.
• The Directive Principles are required to be implemented by legislation and so long as there is
no law carrying out the policy contained in these Directives neither the State not an
individual can violate any existing law or legal right under color of following a Directive.
• The Courts cannot declare any law as void on the ground that it contravenes any of the
Directive Principles whereas the contravention of any Fundamental Rights can be rescinded
by the Court.
• The Courts are not competent to compel the Government to carry out any Directive
Principles whereas the Courts can strike down an act of the Government violative of any
Fundamental Right and can enforce the Right against the Government.
• The Directive do not confer upon or take away any legislative power from the appropriate
Legislature. The Legislative competence must be sought from the Legislative List contained in
the Seventh Schedule to the Constitution.
• In Re Kerala Education Bill, AIR 1958 SC 956, it has been observed by the Court that tough the
Directive Principles cannot override the fundamental rights, nevertheless, in determining the
scope and ambit of the fundamental rights, the Courts should not entirely ignore the
directive principles, but should adopt the principles of harmonious construction and should
attempt to give effect to both as much as possible.
• It was in 1971 that the first step was taken towards implementation of the Directive
Principles in the form of Article 31C which was added to the Constitution by the Constitution
(25th Amendment)Act, 1971. The insertion of Article 31C was to provide supremacy for
Directive Principles contained in Article 39(b) and 39(c) over Fundamental Rights contained in
Articles 14, 19 and 31.
• The term State has been defined by Article 36 to have the same meaning as is given to this
term in Part III of the Constitution relating to Fundamental Rights. It thus means that the
term State not only includes the Legislature and the Executive organs of the Government, but
it also includes its agencies and instrumentalities.
3. Promotion of Social Order (Article 38):
• Article 38(1) provides that the State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice shall inform all
the institutions of the national life.
• Clause (2) of Article 38 states that the State shall on particular strive to minimize the
inequalities in income and endeavor to eliminate inequalities in statues, facilities and
opportunities not only amongst individuals but also amongst groups of people residing in
different areas or engaged in different vocations.
• Article 38 has been the keystone of the Directive Principles. It is the star by which we are
expected to chart our course and it is to achieve the goals echoed in Article 38 that Part IV
contains various provisions.
• The concept of social justice which the Constitution engrafted consists of diverse principles
essential for the orderly growth and development of personality of every citizen. Thus social
justice is an integral part of justice in the generic sense.
4. Certain Principles of Policy to be followed by the State (Article 39):
• Article 39 provides that the State shall in particular direct its policy towards that the citizens,
men and women equally have the right to an adequate means of livelihood, that the
ownership and control of the material resources of the community are so distributed as best
to subserve the common good, that the operation of the economic system does not result in
concentration of wealth and means of production to the common detriment.
• The right to livelihood was not given much importance earlier. In Olga Tellis v. Bombay
Municipal Corporation, AIR 1986 SC 180, it has been declared to be a part of the right to life
guaranteed by Article 21
• The expression material resources includes not only those which are already vested in the
State, but also the resources in the hands of private persons. The word distribution in Article
39(b) is to be given a wider interpretation and does not only mean that the property of one
should be taken over and distributed to others.
5. Equal Justice and Free Legal Aid (Article 39A):
• Article 39A obligates the State to secure that the operation off the legal system promotes
justice, on a basis of equal opportunity and shall in particular provide free legal aid by
suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason o economic or other disability.
• It imposes a imperative duty upon the State to provide free legal aid to the poor. It is with a
view to enable the poor litigant to have an easy access to a Court of Law to invoke legal right
and to secure him equal protection of law against the well-to-do opponent.
6. Village Panchayats (Article 40):
• Article 40 commands that the State shall take steps to organize village panchayats and
endow them with such powers and authority as may be necessary to enable them to
functions as units of self government.
7. Right to Work, Education and Public Assistance:
• Article 41 requires that the State shall within the limits of its economic capacity and
development make effective provisions for securing the right to work, to education ad to
public assistance in cases of unemployment, old age, sickness and disablements and in other
cases of undeserved want.
• In Unni Krishnan v. State of A.P, AIR 1993 SC 2178, the Court has emphasized on the right to
education. Reading Article 41 and 45 together, the Court has laid down that while right to
free and compulsory education upto age of 14 years constitutes a fundamental right forming
a part of the right to life contained in Article 21 but subject to its economic capacity and
development.
8. Just and Humane Conditions of Work (Article 42):
• Article 42 requires that the Stat shall make provisions for securing just and humane
conditions of work and for maternity relief. This Article exhibits the concern of the framers of
the Constitution for the welfare of the workers and the Courts may not enforce the Directive
Principle as such.
• In M.C Of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274, the Maternity Relief has
been extended to women (muster roll) employees working on daily wages. The enforcement
of discipline and obedience to authority in the working place has been held as no violation of
Article 42.
9. Living Wages for Workers (Article 43):
• Article 43 provides that the State shall endeavor to secure by suitable legislation or
economic organizations or in any other way, to all workers a living wage, conditions of work
ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities and the State shall also promote the cottage industry.
• It has been held to furnish the principle by which unfair labour practice can be judged. It is
not possible to lay down an exhaustive test of unfair labor practice but it can be said that
unfair labour practice violates the Principles of Article 43.
10.Participation of Workers in Management of Industry (Article 43A):
• Article 43A obligates that the State shall take steps by suitable legislation or in any other way
to secure the participation of workers in the management of understandings, establishments
or other organizations engaged in any industry.
• In Hindustan Tin Works v. Its Employees, AIR 1979 SC 75, it has been observed that since
Article 43A had made labour a partner in industry, industry being regarded as a common
venture of capital and labor, it would follow if a sacrifice would be equitably shared by both.
11.Promotion of Co-operative Societies (Article 43B):
• Article 43B requires the State to endeavor to promote voluntary formation, antonymous
functioning, democratic control and professional management of co-operative societies.
12. Common Civil Code (Article 44):
• Article 4 directs the State shall endeavor to secure for the citizens a uniform civil code
throughout the territory of India. Article 44 directs, in order to cut across religion, caste and
tribes and to build up a homogeneous nation that the State shall endeavor to secure for the
citizens a uniform civil code throughout the territory of India.
• In Sarla Mudgal v. Union of India, AIR 1995 SC 1531, the Court directed the Central
Government through the Prime Minister to take a fresh look at Article 44.
• In Ahmedabad Women Action Group (AWAG) v. Union of India, AIR 1997 SC 3614, while
rejecting the plea for the enactment of a Common Civil Code, it has been ruled that the issue
was for the Legislature to deal with it.
• In John Vallamattom v. Union of India, AIR 2003 SC 2902, the Court regretted that Article 44
had not been given effect to and held that a common civil code would help the cause of
national integration.
13.Free and Compulsory Education for Children (Article 45):
• Article 45 as originally stood required that the State shall endeavor to provide within a period
of ten years from the commencement of this Constitution free and compulsory education for
all children until they complete the age of fourteen years.
• The principles enshrined in Articles 41 and 45 are not only necessary but also desirable for
the performance of the State’s ultimate duty and responsibility to provide education to all its
citizens for an intelligent understanding of social and political problems by every citizen in a
democracy.
14. Promotion of Educational and Economic Interest of Weaker Sections (Article 46):
• Article 46 enjoins that the State shall promote with special care the educational and
economic interest of the weaker sections of the people and in particular of the Scheduled
Castes and the Scheduled Tribes and shall protect from social injustice in all forms of
exploitation.
• In Bhanu Ram v. Commissioner Hills Div., AIR 1957 Ass 182, it has been held that giving of
preference to a tribal over a non-tribal in the matter of granting of a liquor license is justified
under Article 46.
15.Duty to Raise the Level of Nutrition and Standard of Living (Article 47):
• Article 47 lays down that the State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health among the primary
duties.
• Article 47 has been relied in by the Courts while determining the reasonableness of
restrictions on the freedom of carrying in trade guaranteed by Article 19(1)(g). In State of
Kerala v. Surendra Das, AIR 2014 SC 2762, the Court has emphasized that as to prohibition,
the Government must behave in conformity with the mandate of Article 47.
16.Organization of Agriculture and Animal Husbandry (Article 48):
• Article 48 requires that the State shall endeavor to organize agriculture and animal
husbandry on modern and scientific lines and shall, in particular take steps for preserving and
improving the breeds and prohibiting the slaughter of cows and calves and other milk and
draught cattle.
• Being a Directive Principle, it can be implemented by the State while making a law. It being a
matter of policy for the Government to decide, no mandamus can be issued by the Court for
its implementation.
17.Protection and Improvement of Environment and Wildlife (Article 48A):
• Article 48A requires that the State shall endeavor to protect and improve the environment
and safeguard the forests and wildlife of the country. Article 48A and Article 51A(g)
respectively enjoin on the State and the citizens the duty not only to protect but also to
improve the environment and to preserve and safeguard the forests, flora and fauna.
• In M.C Mehta v. Union of India, AIR 1987 SC 1086, the Court relied on Article 48A and gave
direction to the Central and State Governments and other local Bodies and Boards to take
appropriate steps for the prevention and control of pollution of water.
18.Protection of Natural Resources-Doctrine of Public Trust [Articles 48A and 51A(g)]:
• The Courts have, time and again invoked the public trust doctrine for giving judicial
protection to environment, ecology and natural resources. These resources have been held
by the Government as trustee of the people.
• Doctrine of the Public Trust as developed during Roman Empire is founded on the premise
that certain properties are of immense importance to the people in general public and it
would be wholly unjustified to make them a subject of private ownership.
• In M.I Builders Pvt. Ltd. v . Radhey Shayam Sahu, AIR 1999 SC 2468, the Court invoked the
doctrine directing the demolition of an underground shopping complex on the park land.
Natural resources including forest, water bodies, rivers, sea-shores, etc were held by the
State as a trustee on behalf of the people and especially the future generations.
19.Protection of Monuments (Article 49):
• Article 49 provides that it shall be the obligation of the State to protect every monument or
place or objects of artistic or historic interest, declared by or under law made by Parliament
to be of national importance from or under law made by Parliament to be of national
importance from any kind of damage.
20.Separation of Judiciary from Executive (Article 50):
• Article 50 provides that the State shall take steps to separate the judiciary from the executive
in the public services of the State. The object behind Article 50 is to provide for
independence of judiciary which is one of the basic tests and a fundamental requirement of
our Constitution.
 • In M.M Gupta v. State of J&K , AIR 1982 SC 1579, relying upon Article 50, the Court set aside
the appointment of certain persons as District Judges by the State Government against the
persons recommended by the High Court.
21.Promotion of International Peace and Security (Article 51):
• Article 51 requires that the State shall endeavor to promote international peace and security,
maintain just and honorable relations between nations foster respect for international law
and treaty obligations in the dealings of organised peoples with one another and encourage
settlement of international dispute by arbitration.
• Article 51 obliges on the State to foster respect for International Law and treaty obligations
but International Law has no supremacy over Municipal Law under the Indian Constitution. It
is essential that a Statute should be interpreted in the light of International Treaties and
Conventions.
 MODULE 4

FREEDOM OF TRADE, COMMERCE AND INTERCOURSE:

1. Introduction:
• Part XIII of the Constitution contains provisions relating to the freedom of trade, commerce
and intercourse within the territory of India. Article 301 in general terms declares that trade,
commerce and intercourse throughout the territory of India shall be free.
• The term ‘trade’ means buying and selling of goods. The word ‘commerce’ is wider than
trade. Technically it also means buying and selling of goods. The expression ‘intercourse’ if
read in the context in which it occurs in Article 301 means commercial intercourse. In wider
sense it includes not merely trade and commerce but also activities such as movement of
persons for the purpose of friendly association with one another.
• In State of Bombay v. R.M.D Chamarbaugwala, AIR 1957 SC 699, it has been held that the
protection of Article 301 was available in respect to such activities as would be regarded as
lawful trading activities and that it did not extend to activities which is their very nature and
in essence were res extra commercium.
• Freedom of trade, commerce and intercourse means the free movement and exchange of
goods. It means that there shall be no prior restraint upon trade and commerce. In a
federation, it is necessary to minimize the inter-State barriers as much as possible so as to
inculcate in the minds of the people the feeling that they are members of one nation, though
residing in different geographical divisions of the country.
• The progress of the Nation further requires that there should be free flow of trade,
commerce and intercourse as between different parts without any barriers so that the
economic resource of the country, of its various parts, may be utilized to the common
advantage of the entire nation.
• Article 301 is an adaptation from Section 92 of the Australian Constitution which declares
that trade, commerce and intercourse among the States, whether by means of internal
carriage or ocean navigation, shall be absolutely free.
• The freedom assured by Article 301 is not confined to freedom from such laws as the
Legislature may pass in the exercise of its legislative power under those Entries in the
Legislative Lists in the Seventh Schedule which relate to trade and commerce.
• The expression ‘throughout the territory of India’ in Article 301 means throughout the
various regions comprising the territory of India. Article 301 will therefore be violated
whether restrictions are imposed at the frontiers of a State or at any stage prior or
subsequent thereto.
• In Automobile Transport Ltd. v. State of Rajasthan AIR 1958 Raj. 114, it has been held that it
may be taken as a settled law that the restriction or impediments which directly and
immediately impede or hamper the free flow of trade, commerce and intercourse fall within
the prohibition imposed by Article 301.
2. Non-Discriminatory Restriction Imposed in Public Interest (Article 302 and 303):
• Article 302 provides that the Parliament may impose such restriction on the freedom of
trade, commerce and intercourse between one State and another or within any part of the
territory of India as may be required in the public interest.
 • Restriction under Article 302 may be imposed by the Parliament by law in the exercise of its
legislative power. No restriction can be imposed upon the freedom by a mere executive
action. Restriction may be imposed by an executive action if taken in the exercise of power
delegated by the Parliament.
• In Prag Ice & Oil Mill v. Union of India, AIR 1978 SC 1296, it has been held that although
Article 302 did not speak of reasonable restriction yet, it was evident that restrictions
contemplated by it must bear a reasonable nexus with the need to serve public interest.
A. Limitation Upon Power of Parliament under Article 302 (Article 303):
* The power conferred by Article 302 which empowers Parliament to impose restrictions
on the freedom in the public interest, is subjected to a limitation contained in Article
303(1). Clause (1) of Article 303 provides that the Parliament shall have no power to
make any law under Article 302 giving or authorizing the giving of any preference to one
State over another or allowing any entry relating to trade and commerce in any of the
Lists in the Seventh Schedule.
* In Automobile Transport Ltd. v. State of Rajasthan, AIR 1962 SC 1406, it has been held
that the expression “relating to trade and commerce” was capable of a liberal
interpretation as to include any law made under any entry in the Seventh Schedule, if
such law directly and immediately impeded the free flow of trade and commerce.
B. Parliamentary Legislation for Meeting Scarcity of Goods [Article 303(2)]:
* Clause (2) of Article 303 authorizes the Parliament to make a law relating to trade and
commerce, which may give preference to one State over another or discriminate
between one State and another, provided such a law declares that it is necessary to do
so for the purpose of dealing with a situation arising from scarcity of goods in any part of
the territory of India.
3. Restriction on Freedom of Trade and Commerce under State Law(Article 304):
• It has been realized that some local control is necessary in order to safeguard the particular
interest of each State, without unduly burdening the freedom so declared. With this
objective, Article 304 empowers the State Legislature to regulate trade and commerce by
way following ways:
A. Limitation on State’s Power under Article 303(1):
* Article 300(1) prohibits the State Legislature from making any law, by virtue of any entry
relating to trade or commerce in any of the Lists in the Seventh Schedule which may give
or authorize the giving of any preference to one State over another or discriminate
between one State and another.
B. State’s Power to Impose Tax on Imported Goods [Article 304(2)]:
* Clause (a) of Article 304 provides that the Legislature of a State may by law impose on
goods imported from other States or the Union Territories any tax to which similar
goods manufactured or produced in that State are subject so however as not to
discriminate between goods so imported and goods so manufactured or produced.
* The object behind Article 304(a) is to prevent discrimination against imported goods by
imposing tax on such goods at a rate higher than that borne by local goods, since the
difference between the two rates would constitute a tariff wall or fiscal barrier and thus
impede the free flow of inter-State trade and commerce.
* In M/s. Widia (India) Ltd. v. State of Karnataka, JT 2003 (7) SC 37, it has been held that
Article 304(a) involves an element of intentional and purposeful differentiation creating
economic barrier and an unfavorable bias.
 * In Video Electronics Pvt. Ltd. v. State of Punjab, AIR 1990 SC 820, it has been held that
there may be justiciable and rational reasons for differentiation between the rates of tax
imposed on goods manufactured within the State and identical goods imported outside
the State.
C. State’s Power to Impose Restrictions on Trade and Commerce [Article 304(b)]:
* Clause (b) of Article 304 empowers the State Legislature to impose such reasonable
restrictions on the freedom of trade, commerce or intercourse as may be required in the
public interest.
* Proviso to Article 304(b) provides that no bill or amendment for this purpose shall be
introduced or moved in the Legislature of the State without the previous sanction from
the President.
* If the prior assent of the President is not secured, the infirmity can be cured subsequent
assent of the President after the Bill has been passed by the State Legislature by virtue
of the provisions of Article 255.
* In Tata Steel Ltd. v. State of Jharkhand, AIR 2012 Jhar 83, Section 3 of the Jharkhand
Entry Tax on Consumption or use of Goods Act, 2011 imposing entry tax on the value of
scheduled goods was held unconstitutional as in conflict with Article 301 and not saved
by Article 304(b).
* Article 304(b) requires that restrictions which may be imposed on the freedom of trade
and commerce under a State Law must be reasonable and must have to be imposed in
the public interest. The two elements reasonableness and public interest make the issue
justiciable.
* It is a trite that measures which do not impede the movement of goods but only
facilitate their passage are not violative of Article 301 and 304. In such cases, there is no
need to comply with the requirement of obtaining the previous sanctions of the
President contained in the Proviso to Clause (b) of Article 304.
4. Saving of Existing Laws (Article 305):
• Article 305 saves the existing law from the operation of Article 301 and 303 except in so far
as the President may by order otherwise direct. The expression existing law is defined in
Clause (10) of Article 366 of the Constitution.
• An Act passed before the commencement of the Constitution is included within the
expression ‘existing law’ even though the Act has been brought into force after the
commencement of the Constitution.
• In Bangalore Wollen Mills v. Corpn. Of Bangalore, AIR 1962 SC 562, it has been held that
where an existing la authorized the imposition of a tax, the resolution passed after the
commencement of the Constitution to levy such tax would be covered by the expression
‘existing law’ but if any by-law, rule , order, notification or resolution made after the
commencement of the Constitution enhances or alters the rate of tax or duty authorized by
the existing law, such subsequent by-law, rule or resolution would not be existing law within
the meaning of Article 305.
5. Saving of Laws Providing for State Monopoly:
• Clause 6(ii) of Article 19 which was added by the Constitution (1st Amendment) Act, 1951
empowers the State by law to create monopoly in its favor in repect to any trade, business,
industry or service.
• By the authority of law, the State may undertake either directly or through a corporation
owned or controlled by it, any trade, business, industry or service whether to the exclusion,
 complete or partial, of citizens or otherwise. Such a law would not be challenged as violative
of the citizens freedom guaranteed by Article 19(1)(g).
6. Authority for Carrying out Purposes of Article 301-304 (Article 307):
• The purpose behind the drafting of the provisions of the Part XIII had been the preservation
of economic unity and integration of the country which was considered absolutely essential
for the stability and progress of federal polity which had been set up under the Constitution
of India.
• Article 307 empowers the Parliament to appoint by law such authority as it considers
appropriate for carrying out the purposes of Articles 301 to 304 and confers on the authority
so appointed such powers and such duties as it thinks necessary. The exact composition of
the authority to be established is left to the Parliament.

SAFEGUARD TO CIVIL SERVANTS (ARTICLES 309-311):

1. Recruitment and Conditions of Service of Persons Serving the Union or a State (Article 309):
• Article 309(1) provides that acts of the appropriate Legislature may regulate the recruitment
and conditions of service of persons appointed to public services and posts in connection
with the affairs of the Union or of any State.
• Article 309(1) however does not make it mandatory for the Parliament or a State Legislature
as the case may be to make laws for the said purposes. Until the appropriate Legislature
makes such laws, the Proviso to Article 309 authorizes the President or such person as he
may direct and the Governor of the State or such persons as he may direct, to make rules for
the aforesaid purpose in relation to the services under the Union or the State respectively.
• Article 313 further says that if neither the appropriate Legislature has made a law nor the
Executive has framed rules, then all the laws in force immediately before the
commencement of the Constitution and applicable to any public services or any post which
continues to exist shall continue in force so far as consistent with the provisions of the
Constitution.
A. No duty to Legislate or make Rules:
* Article 309 is an enabling provision conferring power on the Legislature. It does not
impose on the Legislature a duty to enact provisions in regard to recruitment and
conditions of services of persons appointed to public services.
* Article 309 does not abridge the power of the Executive to act under Article 73 or 162
without a law. Therefore so long as provisions under Article 309 are made, the
recruitment of conditions of service may be regulated by executive orders or by
executive instructions.
* The settled position of law is that no government order, notification or circular can be a
substitute of the statutory rules framed with the authority of law. A scheme or a policy
decision issued under Article 162, therefore cannot prevail over statutory rules or rules
framed under Proviso to Article 309.
* In Vineet Narain v. Union of India, AIR 1998 SC 889, where there was inaction even by
the Executive, it was held that Article 32 read with Article 141 conferred ample powers
on the judiciary to issue directions, guidelines to fill the void in the absence of suitable
legislation to cover the field.
B. Scope of Article 309:
* Article 309 speaks of Rules for appointment and general conditions of service. The
expression conditions of services is substantially wide in a amplitude and would inter
 alia include matters relating to salary, time scale of pay or grades, provides funds,
compulsory or contributory, dearness allowences, etc.
* The rules dealing with functions of a Public Service Commission are also not rules
relating to recruitment and therefore do not fall within the scope of Article 309. The
rules laid down by the Government for making grant to a private educational institutions
cannot be said to be prescribed under Article 309.
* In Government of A.P v. P.B Vijaykumar, AIR 1995 SC 1648, it has been held that the
rules made for the recognition of association of government servant, rule relating to
compulsory retirement or a rule relating to reducing the age of superannuation, rules
providing reference to women I direct recruitment of services under the Government
are covered under proviso to Article 309.
* The legislative power or the rule-making power under Article 309 is subjected t the
provisions of the Constitution. Therefore the conditions of service so laid down must
conform to the mandatory provisions of the Constitution.
2. Tenure of Office- Doctrine of Pleasure (Article 310):
• Article 310(1) provides that except as expressly provided by this Constitution every person
who is a member of the defense service or of a civil service of the Union or of an all India
service or holds any post connected with defense or any civil post under the Union, holds the
office during the pleasure of the President, and every person who is a member of a civil
service of a State or holds any civil post under a State holds the office during the pleasure of
the Governor of the State. Generally Article 310 (1) embodies the Common law ‘Doctrine of
Pleasure’.
A. The Common Law “Doctrine of Pleasure”:
* The ‘doctrine of pleasure’ had its origin in the Common Law in England. The expression
‘doctrine of pleasure’ is drawn from the Latin phrase ‘durante ben placito’ which means
during pleasure.
* In England, a servant of the Crown holds office during the pleasure of the Crown. The
Crown is not bound by any contract between it and a civil servant and therefore the civil
servant can neither enforce in a court of law any of the conditions of his service.
* In the past, the civil servant could have no remedy against the Crown. Neither he could
not even claim arrear of his salary due to him nor he could claim any damages for his
wrongful dismissal. The Common Law rule of pleasure was however subject to one
exception that it could be excluded by a Statute of Parliament for the Crown being a
party to every Statute.
* The doctrine of pleasure is based on public policy. That a public servant who continues
in office is not in or is against the public interest should be relieved of his office. The
Crown should not be bound to continue in public service any person with conduct
unsatisfactory.
* The Common Law ‘rule of pleasure’ is embodied in Article 310(1) of the Indian
Constitution. It is held that the doctrine is not based upon any special prerogative of the
Crown but upon the public policy. The Government has a right to expect that each of its
servants will observe certain standards of decency or morality not only in his public but
also private life.
* In Union of India v. Tulsiram Patel, AIR 1985 SC 1416, it has been held that for a
government servant to discharge is duties faithfully and conscientiously, he must have a
feeling of security of tenure.
 B. Doctrine of Pleasure in India:
* The Common law ‘doctrine of pleasure’ was borrowed in India under the Government of
India Act, 1858. Section 16 of this Act provided that all the servants and officers of the
Government of India held their office subject to the Royal Pleasure.
* The Government has the right to regulate or determine the tenure of its employees at
pleasure, notwithstanding anything in their contract to the contrary provided that the
mandatory provisions of Article 311 have been observed.
* The Government has power to punish any of its servants for misconduct committed not
only in the course of official duties but even for that committed in private life. This
pleasure is not fettered by ordinary legislation.
* The Parliament or the State Legislature under Article 309 can make a law regulating the
conditions of service of its servants without affecting the power of the President or the
Governor under Article 310(1) read with Article 311. Article 309 is therefore to be read
subject to Article 310(1).
* The pleasure conferred by Article 310(1) can be exercised by the President or the
Governor either with the aid and on the advice of the Council of Ministers or by the
authority specified in the Acts or Rules made under Article 309.
C. Limitations on the “Doctrine of Pleasure”:
* A public servant though works at the pleasure of the President or the Governor as the
case may be, but he does not work at his mercy. In view of the opening words ‘except as
expressly provided by this Constitution in Article 310(1), the doctrine of pleasure admits
of certain limitations and exceptions as discussed below:

Clause (2) of Article 310 exempts a person having special qualification not being a
member of a defense service or of an all-India service or of a civil service of the Union
or a State appointed to a civil post for a fixed term.

Article 311(2) controls the pleasure of the President or the Governor, as the case may
be, in regard to the civil servants of the Government.

The pleasure of the President or the Governor is controlled by the fundamental rights
contained in Part III of the Constitution. The pleasure is done away with as regards to
the holders of specified offices.

Article 320(3) (c) restricts the pleasure in so far as it requires that the respective
Public Service Commission shall be consulted on all disciplinary matters affecting a
person serving under the Government of India or the Government of the State in a
civil capacity.

In Pratap Singh v. State of Punjab, AIR 1964 SC 72, it has been held that doctrine of
pleasure does not confer a power on the President or the Governor, to compel a
government servant to continue in service against his will, after reaching the age of
superannuation except where the services of such a person are required in the public
interest.

The pleasure of the President or the Governor may be done away with the repealing
of Article 310(1) by the Parliament in the exercise of its power to amend the
Constitution under Article 368.
3. Constitutional Safeguards for Civil Servants (Article 311):
• Article 311 secures to the civil servants of the government to procedural safeguards in
relation to their tenure of office. These includes that there will be no removal or dismissal by
an authority subordinate to the appointing authority and there will be no removal or
dismissal or reduction in rank, except after an inquiry affording reasonable opportunity of
hearing.
• Clause (1) o Article 311 provides that the persons who can claim safeguards are members of
the Civil Service of the Union, members of all-India services, members of the civil services of
the States, persons holding Civil Post under the Union or States. The members of the defense
services are thus excluded from the scope of Article 311.
• The term civil post means a post, an appointment or office or employment on the civil as
distinguished from the defense side of administration and includes an office or a situation
created for the performance of any function other than military.
• An employee of a statutory corporation does not hold a civil post under the State. The
employees of government companies registered under the Companies Act, 1956 or of
industrial establishment or of a registered Society, or of the Universities or of the other
Statutory Bodies are not the holders of civil post and therefore do not fall within the term
civil servants within the meaning of Article 311(1).
A. No Removal or Dismissal by an Authority Subordinate to Appointing Authority:
* Clause (1) of Article 311 provides that the civil servants of the Union or the State cannot
be removed or dismissed by any authority subordinate to the appointing authority. An
order of termination of service passed by an authority without the jurisdiction would be
non est in the eyes of law and is held to be coram non judice.
* For the purpose of Clause (1) of Article 311, the post which the government servant
holds substantively is to be taken into consideration. The temporary or quasi-permanent
appointment of the servant earlier to his appointment to the substantive post, cannot
be taken into consideration.
* In Union of India v. Gurbaksh Singh, AIR 1975 SC 641, it was held that a person
appointed by the Central Government cannot be dismissed by the State Government.
B. Removal or Dismissal by Authority Equal in Rank or Superior to Appointing Authority:
* Article 311 (1) prohibits removal or dismissal by any authority subordinate to the
appointing authority. It however does not mean that the removal or dismissal must be
done by the very same authority who made the appointment or by the direct superior.
* In Mahesh Prasad v. State of Uttar Pradesh, AIR 1955 SC 70, the appellant was
appointed a clerk in the East India Railway by the DPO and was dismissed by the
Superintendent power. It was held that the dismissal was in compliance with the
provisions of Article 311(1) and valid as both the officers were of the same rank and
grade.
* An appointing authority cannot delegate its power of removal or dismissal to its
subordinate officer. Such a delegation would render nugatory the protection afforded
under Article 311 (1) except when the Constitution itself authorizes such delegation of
by other provisions.
* The underlying idea behind Clause (1) of Article 311 is to ensure to a civil servant a
certain amount of security of tenure. The government servant is entitled to the
judgment of the authority by which he was appointed or some superior authority to that
authority. He should not be dismissed or removed by a subordinate authority into
whose judgment he may not have the same faith.
* Article 311(1) does not mandate that the disciplinary proceedings may not be initiated
against the delinquent by the authority lower that the appointing authority.
C. No Dismissal, Removal or Reduction in Rank Except After Inquiry:
* Clause (2) of Article 311 secures the second safeguard to the civil servants of the Union
or a State. It provides that no such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been informed of the charges
 against him and given a reasonable opportunity of being heard in respect of those
charges.
* The term ‘dismissal’, ‘removal’ and ‘reduction in rank’ have not been defined in the
Constitution. They carry the same meaning as they have under the Civil Services
(Classification, Control and Appeal) Rules, 1965 which mention seven penalties to which
the members of the Civil Services may be subjected to for misconduct.
D. Application of Article 311(2) to Dismissal and Removal:
* In P.L Dhingra v. Union of India, AIR 1958 SC 36, it has been ruled that Article 311(2_
would be attracted only if dismissal, removal or reduction in rank was imposed in the
civil servant by way of punishment. It protects the government servants against
arbitrary action of the government.
* As per the Service Rules, persons appointed substantively to permanent posts, persons
holding posts in a quasi-permanent capacity, persons appointed for a fixed term have
the right to hold their post and cannot be removed or dismissed except after complying
with the requirement of Article 311(2).
* The persons appointed to a permanent post on probation, person appointed to officiate
in a permanent post and a person appointed to a temporary post in a substantive
capacity or on probation or on officiating basis have no right to hold their post or ranks.
* The termination of services would be with penal consequences if stigma is attached to
the order. It may disentitle the delinquent for future employment under the
Government. A stigma is understood to be something that is detraction from the
character or reputation of a person. It is held to be blemish imputation, a mark or label
indicating a deviation from a norm.
* A permanent government servant acquires the right to hold the post. It therefore
follows that a permanent government servant cannot be removed except complying
with the provisions of Article 311(2).
* Like a permanent government servant, a temporary servant, as soon as he acquires the
quasi-permanent status under the relevant service rules, can be removed only in the
manner as followed in the case of a permanent servant.
* When a person is appointed to a post for a fixed term, his appointment comes to an end
on the completion of the tenure and such an employee is considered to have a right to
hold the post till the stipulated period comes to an end. The concept of security of
tenure does not applies to such appointment.
* Suspension of a government servant may be ordered precedent to or pending an inquiry
against him but it does not amount to dismissal or removal or reduction in rank within
the meaning of Article 311(2) as suspension does not put an end to his service.
* The government servant continues to be in government service even if he has been
suspended but he is not allowed to perform his duties and the orders of suspension may
be passed by the appointing or any subordinate authority vested with such powers.
* In Krishnakant Raghunath Bibhavanekar v. State of Maharashtra, AIR 1997 SC 1434, t
has been held that on acquittal and reinstatement in service, the person would not be
entitled to consequential benefits including pensionary benefits since he would not be
treated on duty during suspension.
E. Reasonable Opportunity of Being Heard:
* Article 311(2) secures a civil servant a reasonable opportunity of being heard before he
is dismissed or removed or reduced in rank. It has been observed that Article 311 (2)
incorporated the principles of natural justice that no man can be condemned unheard.
There should be an effective opportunity of hearing.
 * In K.L Shinde v. State of Mysore, AIR 1979 SC 1080, it has been held that it is settled that
the provisions of the Evidence Act, Criminal Procedure Code or Civil Procedure Code do
not apply to the departmental inquires held under Article 311(2).
* Article 311(2) specifically requires that the delinquent servant must be informed of the
charges against him. For an effective opportunity of hearing the charges must be clear,
precise and accurate. The charges must not only be specific but should also contain
allegations on which they are based with complete particulars and details.
* Second proviso to Clause (2) of Article 311 contains the following three exceptions to
the rules of holding inquiry if the civil servant is dismissed or removed or reduced in
rank:

If he is dismissed or removed or reduced I rank on the ground of conduct which
had led to his conviction on a criminal charge;

Where the authority empowered to dismiss or remove or reduce rank is satisfied
that for some reason, to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry;

Where the President or the Governor as the case may be is satisfied that in the
interest of the security of State it is not expedient to hold such inquiry.
F. Quantum of Punishment- Doctrine of Proportionality-Judicial Interference:
* It is trite that it is the disciplinary authority to decide as to what kind of punishment is to
be imposed on the delinquent. However this discretion is to be exercised objectively,
keeping in mind the nature and gravity of charge, other host of factors, the discipline
required to be maintained as well as the extenuating circumstances, if existed.
* In the exercise of power of judicial review, the court can interfere with the punishment
imposed on delinquent when it is found to be totally irrational or is outrageous in
defiance of logic.
* In Deputy Commissioner, KVS v. J.Hussain, AIR 2014 SC 766, it has been held that court
could not interdict with punishment on ground that it would result in hardship to the
delinquent. It has been emphasized that the courts should not be guided by misplaced
sympathy or continuity ground as a factor in judicial review while examining the
quantum of punishment.
* In Vijay Singh v. State of U.P, AIR 2012 SC 2840, it has been held that holding
departmental proceedings and recording a finding of guilt against any delinquent and
imposing the punishment for the same, is a quasi-judicial function and not
administrative one and therefore while performing this function, the authority is not
permitted to ignore the Statutory Rules under which the punishment is being imposed.
G. Doctrine of Legitimate Expectation:
* It is expected that the Government and its departments honor their statements of policy
or intention and treat the citizens with full personal consideration without any iota of
abuse of discretion.
* The policy statement cannot disregarded unfairly or applied selectively. It was in this
context that the doctrine of legitimate expectation was evolved by the courts which has
today become the source of substantive as well as procedural rights.
* The expectation may be based on some statement or undertaking by or on behalf of the
public authority which has the duty of making the decision, if the authority has through
its officers, acted in a way that would make it unfair or inconsistent with goods
administration for him to be denied such an inquiry. In such cases the Court may not
insist an administrative authority to act judicially but may still insist it to act fairly.
 * In Confederation of Ex-Servicemen Association v. Union of India, AIR 2006 SC 2945, it has
been held the doctrine is based on the principle that good administration demands
observance of reasonableness and where it has adopted a particular practices for a long
time, even in the absence of a provision of law, it should adhere to such practice without
depriving its citizens of the benefit enjoyed or privilege exercised.
* In Jitendra Kumar v. State of Haryana, 2008 AIR SCW 322, it has been held that a
legitimate expectation is grounded in the rule of law as requiring regularity,
predictability and certainty in the Government’s dealing with the public and the doctrine
operates both in procedural and substantive matters.
* The representation must be clear and unambiguous. It could be a representation to the
individual or generally to class of persons. The Supreme Court has observed the
following conditions to determine to which extent the principle of legitimate
expectation was accepted in India:

that the authority was not entitled to defeat the legitimate expectation of a
person without some overriding reasons of public policy as to justify change in the
criterion;

that if the authority proposes to defeat a person’s legitimate expectation, it should
afford him an opportunity to make a representation in the matter;

that claims on legitimate expectation required reliance on representation ad
resultant detriment in the same as claims based on promissory estoppels.
* The doctrine of legitimate expectation would apply in cases where the decision taken by
the authority is found to be arbitrary, unreasonable and not taken in public interest.
Change in public policy however can defeat the legitimate expectation and in such a
case, even by way of change of old policy, the Courts would not intervene with the
decision.

PUBLIC SERVICE COMMISSIONS (ARTICLE 315-323):

1. Introduction (Article 315):
• Clause (1) of Article 315 provides that there shall be a Public Services Commission for the
Union and a Public Service Commission for each State. The former is known as Union Public
Service Commission and the later is known as State Public Service Commission.
• Clause (2) of Article 315 empowers the Parliament to make law for the appointment of a
Joint State Public Service Commission. A law for this purpose may be passed by the
Parliament on receiving a resolution to that effect, passed by the House or where there are
two Houses, by each House of Legislature of each of those States who agree to have a Joint
Commission.
• Clause (4) of Article 315 provides that the Union Public Service Commission may with the
approval of the President, agree to serve all or any of the needs of a State, if requested to do
so by the Governor of that State.
2. Constitution of Public Service Commission (Article 316-318):
• A Public Service Commission consists of a Chairman and a number of other members. The
Constitution does not prescribe the number of members which a Commission shall consist of.
Article 318 for that provides that in case of Union Commission or Joint Commission, the
President and in case of a State Commission, the Governor of that State may by regulations
determine the number of members of the Commission.
 • The Constitution does not prescribe any qualifications for the Chairman or other Members of
a Public Service Commission however proviso to Clause (1) of Article 316 requires that as
nearly as may be one-half of the Members of every Public Service Commission shall be
persons who at the dates of their appointment have held office for atleast 10 years either
under the Union Government or the State Government.
• In Jai Shankar Prasad v. State of Bihar, AIR 1993 SC 1906, it has been held that the
requirement of the proviso to Article 316(1) was only directory and that the said proviso did
not in terms say that in no case and at no point of time, the said proportion should either go
above or fall below 50%.
• Clause (2) of Article 316 lays down that a member of the Union Public Service Commission
holds office for a term of six years from the date on which he enters upon his office or until
he attains the age of sixty-five years, whichever is earlier.
• A member of the State Public Service Commission or a Joint Commission hold the officer for a
term of six years or until he attains the age of sixty-two years, whichever is earlier. In Re Shri
Ravinder Pal Singh Sighu, AIR 2003 SC 788, it has been held that if the incumbent has
resigned his office, the inquiry against him would become futile.
• Clause (b) of Proviso to Clause (2) of Article 316 provides that a members of a Public Service
Commission may be removed from his office in the manner provided in Clause (1) or Clause
(2) of Article 317. It may be done in the following two ways:
* Clause (1) of Article 317 lays down that the President shall by order remove the
Chairman or any other member of a Public Service Commission on the ground of
misbehavior;
* Clause (3) of Article 317 provides that the President may by order remove from the
office the Chairman or any other member of a Public Service Commission if such
person is adjudged as insolvent or engages during his term of office in any paid
employment outside the duties of his office or if in the opinion of the President, he
is unfit to continue in office by reason of his infirmity of mind or body.
• Article 317 does not define misbehavior nor does it enumerate what acts would constitute
misbehavior and it is only after a fact finding inquiry is held that it can be said whether the
alleged acts committed by the person amount to misbehavior.
• Article 317 makes it amply clear as to how the Chairman, Members of the Public Service
Commission are liable to be removed from office. The founding fathers of our Constitution
incorporated this procedure in order to secure them security of tenure to safeguard them
against motivated or wrong charges of misbehavior.
• Article 317 (2) provides that the President in the case of the Union Commission or a Joint
Commission and the Governor is the case of a State Commission may suspend the Chairman
or a member in respect of whom a reference has been made to the Supreme Court until the
passing of the final orders on receipt of the report of the Court.
• The Chairman or members of a Public Service Commission are not entitled to an opportunity
to show cause or to be heard before the point of time that the orders of suspension are
passed under Article 317(2) after the President had referred the matter to the Supreme
Court.
3. Functions of Public Service Commission (Article 320):
Article 320 lays down the following duties and functions of a Public Service Commission-
• It is the duty of the Union and the State Public Service Commission to conduct examinations
for the appointment to the services of the Union and the services of the State respectively.
 • It shall be the duty of the Union Public Service Commission, if requested by two or more
States, to assist the States in framing and operating schemes of joint recruitment for any
services for which candidates possessing special qualifications are required.
• Clause (3) of Article 320 lays don many advisory function of the Public Service Commission
and it provides that the Union Public Service Commission or the State Public Service
Commission as the case may be, shall be consulted in the following manner:
* All matters relating to methods of recruitment to civil services and for civil posts.
* The principles to be followed in making appointments to civil services and posts and
in making promotions and transfers from one service to another and on the
suitability of candidate for such appointments, promotions or transfers.
* All disciplinary matters affecting a person serving under the Government of India or
the State Government in a civil capacity.
* Any claim by or in respect of a person who is serving or has served in Government
service, in a civil capacity at any costs incurred by him in defining legal proceedings
instituted against him in respect of acts done or purported to be done in execution
of his duty should be paid out of the Consolidated Fund of India or that of the State,
as the case may be.
* Any claim for the award of pension in respect of injuries sustained by a person
while in a government service in a civil capacity and any question as to the amount
of any such award.
• Proviso to Clause (3) of Article 320 empowers the President to frame regulations specifying
the matters in which either generally or in any particular class of cases or in any particular
circumstances, it shall not be necessary for the Public Service Commission to be consulted.
4. Reports of Public Service Commission (Article 323):
• Article 323 (1) provided that it shall be the duty of the Union Public Service Commission to
present annually to the President a report as to the work done by the Commission. The
report is required to be laid before each House of the Parliament together with the
Government’s memorandum explaining the cases where the Commission’s advise was not
accepted and the reasons for such non-acceptance.
• Clause (2) of Article 323 provides that the State Public Service Commission would present
annually to the Governor, the report as to the work done by it, which shall be laid together
with the Government’s memorandum explaining that the cases where the Commission’s
advice was not accepted alongwith the reasons for such non-acceptance before the
Legislature of the State.