AL-AMEEN COLLEGE OF LAW

IMPORTANT QUESTION WITH

ANSWERS DECEMBER -2018
V SEM 5 YEARS B.A. LL.B.

SUBJECT: CONSTITUTION-i

PREPARED BY:

Ms. Sahana Florence. Asst. Prof.

Al-Ameen College of Law

Bangalore.

Q.No.1. Discuss the Salient Features of Indian Constitution.

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Synopsis:
Introduction
Meaning of Constitution
Salient Features of Indian Constitution.

Introduction:
The Constitution of India is the supreme law of India. It is a living document, an
instrument which makes the government system work. It lays down the framework defining
fundamental political principles, establishes the structure, procedures, powers and duties of
government institutions and sets out fundamental rights, directive principles and the duties of
citizens. It is the longest written constitution of any sovereign country in the world, containing
448 articles in 25  parts, 12 schedules, 5 appendices and 101 amendments (out of
120 Constitution Amendment Bills). Dr. Bhimrao Ramji Ambedkar is widely regarded as the
architect of the Indian Constitution. The Constitution follows parliamentary system of
government and the executive is directly accountable to the legislature. The Constitution was
adopted by the India Constituent Assembly on 26 November 1949, and came into effect on 26
January 1950. 

Meaning of Constitution:
A constitution is a set of fundamental principles or established precedents according to
which a state or other organization is governed. A Constitution means a document having a
special legal sanctity which sets out the framework and the principal functions of the organs of
the Government of a State and declares the principles governing the operation of those organs.

Salient Features of Indian Constitution:

1. A Written Constitution
The Indian Constitution is mainly a written constitution. A written constitution is
framed at a given time and comes into force or is adopted on a fixed date as a document.
As you have already read that our constitution was framed over a period of 2 years, 11
months and 18 days, it was adopted on 26th November, 1949 and enforced on January
26, 1950. Certain conventions have gradually evolved over a period of time which have
proved useful in the working of the constitution. The British Constitution is an example
of unwritten constitution. It is to be noted though, that a written constitution is ‘mainly’
an enacted document, there could be bodies or institutions which may not be included in
the constitution but form an important part of governance.

2. The lengthiest Constitution in the World:

The Indian constitution is the lengthiest in the world. The original constitution
had 395 Articles divided into 22 Parts and 12 Schedules, while, the constitution of USA
has only 7 Articles. The framers of the Indian Constitution have gained experience from
the working of all the known Constitution of the world. They were aware of the

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 difficulties faced in the working of this Constitution. The Indian Constitution lays down
the structure not only of the Central Government but also of the State. The vastness of the
Country and peculiar problems relating to the language have added to the bulk of the
constitution. The Constitution contains a long list of Fundamental Rights and also a
number of Directive Principles.

3. Parliamentary form of Government

India has a parliamentary form of democracy. This has been adopted from the
British system. In a parliamentary democracy there is a close relationship between the
legislature and the executive. The Cabinet is selected from among the members of
legislature. The cabinet is responsible to the latter. In fact the Cabinet holds office so long
as it enjoys the confidence of the legislature. In this form of democracy, the Head of the
State is nominal. In India, the President is the Head of the State. Constitutionally the
President enjoys numerous powers but in practice the Council of Ministers headed by the
Prime Minister, which really exercises these powers. The President acts on the advice of
the Prime Minister and the Council of Ministers.

4. A Combination of Rigidity and Flexibility:

The Indian Constitution is a unique example of combination of rigidity and
flexibility. A constitution may be called rigid or flexible on the basis of its amending
procedure. In a rigid constitution, amendment of the constitution is not easy. The
Constitutions of USA, Switzerland and Australia are considered rigid constitutions.
While, the British Constitution is considered flexible because amendment procedure is
easy and simple. The Constitution of India provides for three categories of amendments.
In the first category, amendment can be done by the two houses of Parliament simple
majority of the members present and voting of before sending it for the President’s
assent. In the second category amendments require a special majority. Such an
amendment can be passed by each House of Parliament by a majority of the total
members of that House as well as by the 2/3rd majority of the members present and voting
in each house of Parliament and send to the President for his assent which cannot be
denied. In the third category besides the special majority mentioned in the second
category, the same has to be approved also by at least 50% of the State legislatures. Thus,
you see that the Indian Constitution provides for the type of amendments ranging from
simple to most difficult procedure depending on the nature of the amendment.

5. Fundamental Rights and Fundamental Duties

Every human being is entitled to enjoy certain rights which ensure good living. In
a democracy all citizens enjoy equal rights. The Constitution of India guarantees those
rights in the form of Fundamental Rights. Fundamental Rights are one of the important

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 features of the Indian Constitution. The Constitution provides for six Fundamental Rights
about which you will read in the following lesson. Fundamental Rights are justiciable and
are protected by the judiciary. In case of violation of any of these rights one can move to
the court of law for their protection. Fundamental Duties were added to our Constitution
by the 42nd Amendment. It lays down a list of ten Fundamental Duties for all citizens of
India. While the rights are given as guarantees to the people, the duties are obligations
which every citizen is expected to perform.

6. Directive Principles of State Policy

The Directive Principles of State Policy which have been adopted from the Irish
Constitution, is another unique feature of the Constitution of India. The Directive Principles
were included in our Constitution in order to provide social and economic justice to our
people. Directive Principles aim at establishing a welfare state in India where there will be no
concentration of wealth in the hands of a few.

7. Independence of Judiciary
India has a single integrated judicial system. The Supreme Court stands as the
apex court of the judicial system. Below the Supreme Court are the High Courts. The
High Courts control and supervise the lower courts. The Indian judiciary, thus, stands like
a pyramid with the lower courts as the base, High Courts in the middle and the Supreme
Court at the top. Indian judiciary is independent an impartial. The Indian judiciary is free
from the influence of the executive and the legislature. The judges are appointed on the
basis of their qualifications and cannot be removed easily

8. Single Citizenship
In a federal state usually the citizens enjoys double citizenship as is the case in the
USA. In India there is only single citizenship. It means that every Indian is a citizen of
India, irrespective of the place of his/her residence or place of birth. He/she is not a
citizen of the Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which
he/she may belong to but remains a citizen of India. All the citizens of India can secure
employment anywhere in the country and enjoy all the rights equally in all the parts of
India.

9. Universal Adult Franchise

Indian democracy functions on the basis of ‘one person one vote’. Every citizen
of India who is 18 years of age or above is entitled to vote in the elections irrespective of
caste, sex, race, religion or status. The Indian Constitution establishes political equality in
India through the method of universal adult franchise.

10. Emergency Provisions

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 The Constitution makers also foresaw that there could be situations when the
government could not be run as in ordinary times. To cope with such situations, the
Constitution elaborates on emergency provisions. There are three types of emergency; a)
emergency caused by war, external aggression or armed rebellion; b) emergency arising out
of the failure of constitutional machinery in states; and c) financial emergency.

Q.No. 2. Discuss the legal position and significance of the preamble of the constitution of
India with decided cases.
Synopsis:

Introduction
Preamble of Indian Constitution
Significance of the Preamble
Leading Case-Laws on Preamble.

Introduction:
Every constitution begins with a preamble. Accordingly, our constitution also begins with a
preamble. The word preamble is a Latin term which means “to go before”, “introduction to
important statute”. Preamble says briefly about the objects, purpose intended to be served by the
statute. The preamble represents the aspirations of the people of India.

The preamble to an Act sets out the main objectives which the legislation is intended to achieve.
It is a sort of introduction to the statute and many a time very helpful to understand the policy
and legislative intent. In Berubari case, the Supreme Court observed “ the preamble to the
constitution is a key to open the minds of the makers and shows the general purpose for which
they made the several provisions in the constitution”.

In other words it reflects the aspiration of the framers of our constitution with regard to the
establishment of a welfare state in India, and embodies the urge of our people to unite
themselves to build up a new nation which will ensure justice, liberty, equality and fraternity to
its citizens.

The Preamble declares:

“ We the people of India, having solemnly resolved to constitute India into a Sovereign,
Socialist, Secular Democratic Republic and to secure to all its citizens:

Justice, Social, Economic and Political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and opportunity” and to promote among them all;

Fraternity assuring the dignity of the individual and the unity and the integrity of the Nation.

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In our constituent Assembly this twenty- sixth day of November- 1949 do hereby adopt, enact
and give to ourselves this constitution”.

SIGNIFICANCE OF THE PREAMBLE:

The significance of the preamble as follows:

1. We the people of India:

The phrase “we the people” has taken from the constitution of U.S.A. this means that the
constitution of India has been framed and enacted by the people of India. The power to make the
constitution had been achieved by the people of India with great efforts. It was not derived by
any authority under the constitution of India.

2. Sovereign State:

India declared by the preamble itself as ‘Sovereign’. The word sovereign means supremacy of
the nation. Sovereign power is also described as that power which is absolute and uncontrolled.
Both internally and externally India is sovereign. India at present is not under the control of any
other nation as it maintains its own sovereignty.

3. Socialistic:

This is a new term inserted in the constitutional 42nd Amendment Act 1976. The term socialist
used in the preamble of our constitution signifies that the constitution of India adopts socialistic
pattern of society. That is, a form of ownership and control of the means or factors of production
and distribution by the economy in the interests of the society as a whole and to ensure fair and
equitable distribution of the wealth of the country.

4. Secular:

Secularism is the basic structure of the constitution. Our Government respects all religions. It
does not uplift or degrade any particular religion. The word secular used in the preamble of our
constitution suggests that India is a secular state that is in India, no religion is recognised as
religion of the state.

5. Democracy:

The term ‘Democratic’ used in the preamble of our constitution, signifies that the government
gets authority from the will of the people. That is, the rulers are elected by the people, and are
responsible to the people. The real powers is in the hands of the people. Every citizen of India
who is aged 18 years and above, is entitled to vote, irrespective of his caste, religion, race,
economic position, language. Democracy is failed in our neighbouring countries, it is very
successful in our country.

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6. Republic:

The term Republic used in the preamble of our constitution signifies that India has elected
representatives as the head of the state. The president of India is the elected head of the state. The
President of India is not a hereditary monarch. He is an elected person, chosen for a limited
period, usually for 5 years.

7. Justice:

The preamble intends that the justice must be given to every citizen irrespective of poverty,
richness, caste, race, religion, sex, political power. Justice aims at the attainment of common
good. Justice includes social economic and political justice. Social justice implies that all citizens
are treated alike irrespective of their caste, creed, religion etc. economic justice means treating
the rich and the poor equally. Political justice means equal right to all citizen in the political
process without any discrimination.

8. Liberty:

Liberty implies the creation of conditions necessary for the fullest development of the
personality of an individual which is essential for social progress. Liberty is one of the pillars of
the democratic system. Liberty implies liberty of thought, expression, belief, faith and worship.

9. Equality:

Equality means equality of status and of opportunity. As all human beings are born equal, they
should be provided equal opportunity’s in all walks of life under equal circumstances. Equality
ensures equal protection of law.

10. Fraternity:

Fraternity means the spirit of brotherhood among all the sections of the people of India.
Fraternity is necessary to ensure both the dignity of the individual and the unity and integrity of
the nation.

SOME OF THE LEADING CASES RELATING TO SIGNIFICANCE OF THE

PREAMBLE:

1. In Beru Bari Case, the Supreme Court held that the preamble was not a part of the
constitution, and so, it could never be regarded as a source of any substantive powers. It has
limited application and can be resorted to where there is any ambiguity in the statute. If the terms
used in the constitution are ambiguous or capable of two meanings in interpreting them some
assistance may be taken from the objectives enshrined in the constitution.

2. In Keshavananda Bharati Case, the Supreme Court rejected the above view and held that
the preamble is the part of the constitution. All importance has to be attached to the preamble in

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a constitution should be read and interpreted in the light of the grand and noble vision expressed
in the preamble.

3. In Indira Gandhi V/S Raj Naraian

Indira Gandhi, the then Prime Minister and Raj Naraian were the rivals in a General Elections of
Parliament. Raj Narain filed a case against her contending that she misappropriated her power in
the elections. The Allahabad High Court quashed the election of Indira Gandhi as void. To
protect the seat of Prime Minister ship, the Parliament inserted Article 329-A protecting Prime
Minister and Speaker from any election disputes and guaranteed for their term. The Supreme
Court held that certain provision of Article 329- A is against the Basic Structure Theory, and it is
against the essential element of “Democracy” mentioned in the preamble. The Supreme Court,
therefore, struck down certain provisions Article 329- A as unconstitutional.

Q.No.3. Who is a Citizen? How Citizenship may be acquired through domicile?

Synopsis:
1. Introduction:
2. Fundamental Rights Available to the Citizens:
3. Meaning and Definition of Citizenship:
4. Significance of Citizenship:
5. Modes of Acquiring Citizenship:
6. Acquisition of Citizenship By Domicile:
7. Conclusion:

 Introduction:
The term citizen is used in many contexts in the constitution of India. So, it is
necessary to have a detailed discussion of the term “Citizenship”. The population of a
country can be divided into two classes namely
1. Citizens and
2. Aliens.
A citizen of a state is a person who enjoys full civil and political rights. Citizens are
different from aliens who do not enjoy all these rights. Citizenship carries with it certain
advantages conferred by the Constitution. Part- II Articles 5 to 11 of the constitution
deals with the Citizenship.
 Fundamental Rights Available to the Citizens:
The following fundamental rights are available only to citizens:
(1) The right not to be discriminated against any citizen on the grounds of religion, race,
sex, or place of birth.
(2) The right to equality of opportunity in the matter of public employment.
(3) The six freedoms enumerated in Article 19, i.e., freedom of speech and expression;
assembly; association; movement; residence; profession.

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 (4) Cultural and educational rights.
(5) There are certain offices under the constitution which can be occupied by citizens
only e.g., office of the President, Vice-President, Judges of the Supreme Court or a High
Court, Governor of a State etc….
(6) The right to vote for election to the House of the People and the Legislative
Assemblies of States is available to the citizens.
 The rights guaranteed by Articles 14 and 21 are available to aliens also.
 Meaning and Definition of Citizenship:
Citizenship is membership of a society living under the one Government. It
confers the status and carries with it certain privileges of the state. According to Han’s
Kelson, “Citizenship is a legal status determined by the specific rights and duties of
which the statute is the condition. Citizen of a State is he who has political rights, the
duty of military service and diplomatic protection afford by the state concerned”.
Citizenship may also be defined as the legal relationship between an individual and the
state under which an individual pledges his loyalty to the state, and the state offers
protection to the individual. Citizenship is confined to only natural or physical persons. It
is not extended to Corporations and juristic persons.
 Significance of Citizenship:
It determines the relationship between the state and the citizens. It signifies
permanent commitment of an individual to the country. That is through citizenship, a
citizen expresses his loyalty to the nation. In return, the nation provides protection to the
citizen. Citizenship grants to a person the right to vote and the right to contest in the
election. Citizenship provides certain special right i.e., fundamental rights to a person. It
provides to a person an opportunity to hold public offices.

 Modes of Acquiring Citizenship:

1. Citizenship at the commencement of the Constitution
1. Citizenship by Domicile
2. Citizenship of Migrants to India from Pakistan
3. Citizenship of Migrants of Pakistan.
4. Citizenship of persons of Indian residing outside India
2. Citizenship under the Citizenship Act- 1955
1. By Birth
2. By Descent
3. By Registration
4. Naturalization
5. By Incorporation of territory.

 Acquisition of Citizenship By Domicile:

Article-5 of the Constitution deals with the provisions relating to Acquisition of
Citizenship by Domicile. Domicile of a person is his permanent home. No person can be
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 without a domicile and no person may have more than one operative domicile. National
boundaries do not constitute a hindrance in one’s choice of domicile. This implies that a
person may be national of one country, but his/her domicile may be another country.
Domicile denotes the connection of a person with a territorial system of law. There is
only one citizenship, which is of the Union of India, there is no separate state Citizenship
as in the United States of America.
Persons domiciled in the territory of India as on 26 November 1949 automatically
became Indian citizens by virtue of operation of the relevant provisions of the Indian
Constitution coming into force, and most of these constitutional provisions came into
force on 26 January 1950. According to Article-5 a person entitled to citizenship by
domicile if he fulfills the following 2 conditions:
1. He must be at the commencement of the constitution, have is domicile in the territory
of India.
2. such person must fulfill any one of the 3 conditions laid down in that article, namely:
 He was born in India
 Either his parents was born in India
 He must have been ordinarily resident in the territory of India for not less than 5
yrs immediately before the commencement of the constitution.
Therefore domicile in India is considered as an essential requirement for
acquiring the status of Indian Citizenship. The civil status of a person, his legal rights and
duties, capacity to marry are determined by the law of his domicile.
The term ‘Domicile’ is not defined in the Constitution. The domicile of a person
is in that Country in which he either has or is deemed by law to have his permanent
house. There is a distinction between Domicile and Residence. Residence alone in a place
is not sufficient to constitute domicile. It must be accompanied by the intention to make it
his permanent home. But it is basically a legal concept for the purpose of determining
what is the personal law applicable to an individual, and even if an individual has no
permanent home, he is invested with a domicile by law.
 Classes of Domicile:
1. Domicile of Origin: Domicile of Origin is attached to the individuals by birth.
2. Domicile by Choice: Domicile by Choice is acquired by the residence in territory
subject to a distinctive legal system, with the intention to reside there
permanently.

In Pradeep Jain v/s Union of India (AIR 1984 SC 142): In this case the
Supreme Court has held that in India Article-5 recognises only one domicile i.e., domicile
of India. It does not recognise the idea of state domicile. Domicile is not same thing as
residence. Mere residence in a place is not sufficient to constitute domicile. It must be
accompanied by the intention to make it his permanent home.

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 The concept of ‘domicile’ has relevance to the applicability of municipal laws
whether made by the Union of India or by the States. Two elements are necessary for the
existence of domicile: ---
(i) A residence of a particular kind, and
(ii) An intention of a particular kind.

The residence need not be continues but it must be indefinite, not purely fleeing.
The intention must be a permanent intention to reside forever in the country where the
residence has been taken up. Domicile is not the same thing as residence. Mere residence
in a place is not sufficient to constitute domicile. It must be accompanied by the intention
to make it his permanent home.

In Mohammad Raza v/s State of Bombay (AIR 1956 SC 1436):

The Supreme Court held that though he was original resident, he did not acquire Indian
Citizenship because he did not have a domicile in India. Further it was held that there was
an insufficient to establish that there was a change in his mind of the kind necessary to
acquire a new domicile.
A minor married woman is not independent person, neither of these classes has
the legal capacity to make a change of domicile. Therefore, the domicile of an infant
generally follows the domicile of his father, while a married women takes the domicile of
her husband. A widow retains the domicile of her husband until changed by her own act.
Intention is an important element in determining the domicile of a person. It can
be inferred from the conduct of the persons. Thus a person in Government Services, who
was given the choice for opting for India or Pakistan, who opted for Pakistan, actually
went to Pakistan, served there under the Government of Pakistan, but who subsequently
resigned his job there and came to India cannot claim the benefit of Article-5 for he never
became the citizen of India.
 Conclusion:
Citizenship constitutes the indispensable foundational principle of democratic
polity. A citizen means a person owing commitment to and entitled to the protection of a
sovereign state. Citizenship provides rights such as right to vote, and are also subjected to
duties or obligation, such as paying taxes.

Q.No.4. Explain “State” as provided under Art.12 of the Constitution with reference to
decided cases.

Synopsis:

Introduction
Meaning and Definitions
Analysis of Concept of State with Decided Cases
Conclusion

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Introduction
Article 12 OF the constitution defines the term State, It lays down, In this part, 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.”
Meaning and Definition of State as per Constitution of India-Article 12

Article 12 of Constitution: The word "State" has different meanings depending upon the
context in which it is used. The expression "The State" when used in Parts III & IV of the
Constitution is not confined to only the federating States or the Union of India or even to both.
By the express terms of Article 12, the expression "the State" includes :

1. The Government and Parliament of India, i.e., Executive and Legislature of union of
India.

2. The Government and the Legislature of each State i.e., Executive and Legislature of
States.

3. All local or other authorities within the territory of India.

4. 4. All local and other authorities under the control of the Government of India.

The term state thus includes executive as well as legislative organs of the Union and
States. It is, therefore, the actions of these bodies that can be challenged before the Courts as
violating fundamental rights.

Analysis of Article-12 of the Constitution with Decided Cases

(a) Authorities: According to Webster’s Dictionary, “Authority” means a person or body

exercising power to command. In the context of art.12, the word ‘authority’ means the
power to make laws, orders, regulations, bye-laws, notifications etc. which have the force
of law and power to enforce those laws.
(b) Local Authorities: Local authorities as defined in section-3 (31) of the General clauses
Act refers to authorities like: Municipalities, District Boards, Panchayats, improvement
Trust and Mining Settlement Boards.
(c) Other Authorities: In Art-12 the expression ‘other authorities’ is used after mentioning a
few of them, such as, the Government, Parliament of India, the government and
legislature of each states and all local authorities.
In University of Madras vs. Santa Bai, the Madras high court held that the
‘other authorities’ could only indicate authorities of a like nature i.e., ejusdum generis.
So construed, it could be only mean authorities exercising governmental or sovereign
functions. It cannot include persons, natural or juristic, such as, a University unless it is
maintained by the State.

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 But in Ujjammbai vs. State of U.P., the court rejected this restrictive
interpretations of the expression ‘other authorities’ given by the Madras High Court and
held that the ejusdum generis rule could not be resorted to in interpreting this expression.
In Article 12 the bodies specifically named are the Government of the Union and the
States, the Legislature of the Union and the States and Local Authorities.
In Electricity Board, Rajasthan vs. Mohan Lal, the Supreme Court held that the
expression ‘other authorities’ is wide enough to include all authorities created by the
Constitution or Statute on whom powers are conferred by law. It is not necessary that the
statutory authority should be engaged in performing governmental or sovereign function.
In Rajasthan Electricity Boards, decision the Supreme Court overruled the decision of
Madras High Court in Santa Bai case, holding a University not be ‘the state’. And finally,
the Patna High Court, following the decision of the Supreme Court, has held the Patna
University is ‘a State’.
In one of the case it has been held that Oil and Natural Gas Commission, Life
Insurance Corporation and Industrial Finance Corporation, are authorities under Article
12 of the Constitution and therefore they are State.
In Airport Authority’s Case, it has been held that if a body is an agency or
instrumentality of government it may be an ‘authority’ within the meaning of Article 12
whether it is a statutory corporation, a government company or even registered society.
Accordingly it was held that the International Airport Authority which had created by an
Act of Parliament was the ‘State’ within the meaning of Article 12.
In Ajay Hasia vs. Khalid Mujib, it has been held that a Society registered under the
Societies Registration Act, 1898, is an agency or ‘instrumentality of the state’ and hence
‘state’ within the meaning of article 12.

Q. NO. 5. Discuss the principles of equality as laid under Article 14 of the India
Constitution.

Synopsis:

Introduction
Right to Equality under Article 14
Principles laid under Article 14
Article 14 permits classification but prohibits Class Legislation

Introduction:

The constitution of all countries gives to their citizens certain rights called fundamental rights.
Indian constitution also has conferred a number of fundamental rights on the citizens of the
country, and which are essential for a man to lead a decent and respectable life and to attain the
fullest development of human personality. Part- III of the constitution deals with fundamental

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rights from Articles 14 to 35. The fundamental rights are conferred to every citizen against the
Government. If any of the fundamental rights are violated, the citizen of India can sue the state.

The right to equality under article 14:

Equality is one of the basic elements of democracy. Right to equality means equality in all its
forms i.e. legal civil and social. The object of right to equality is to secure to the citizens equality
in all its form. An article 14 to 18 of the constitution guarantees the right to equality to every
citizen of India. Article 14 embodies the general principles of equality before law and prohibits
unreasonable discrimination between persons. Article 14 embodies the idea of equality expressed
in the preamble. Various rights are included in the right to equality.

Principles laid under Article 14:

Article 14 declares that the state shall not deny to any person equality before the law or equal
protections of the laws within the territory of India. Thus Article 14 uses two expressions
“equality before law” and “equal protection of law”. Article 14 is based upon the principles of
natural justice. Equals have to be treated equally and unequal ought not to be treated equally.

1. Equality Before Law:-

Equality before law in Article 14 is based on the principles of Rule of law. No man is above the
law of the land. There is no distinction before the law. The concept of equality before law does
not mean absolute equality among human beings which is physically not possible to achieve. It is
a concept implying absence of any special privileges by reason of birth, creed or like in favour of
any individual and also the equal subjects of all individuals and classes to the ordinary law of the
land.

Equality before the law means that among equals the laws should be equal and should be equally
administered, that like should be treated alike. The right to sue and be sued, to prosecute and be
prosecuted for the same kind of action should be same for all citizen of full age without
distinctions of race, religion, wealth, social status or political influence.

2.Equal Protection of Laws:-

Equal protection of law is a positive concept, implying equality of treatment under equal or
similar circumstances. No one can be favoured more and no one can be unfavoured more. Equal
law should be applied to all persons in the same situation. There should not be any
discrimination between one person to another. Equality must becomes a living reality for the
large masses of people. Article 14 applies to citizens and non- citizens of India. It only means
that all persons similarly circumstanced shall be treated alike both in privilages conferred and
liabilities imposed by the laws. Equal law should be applied to all in same situation, and there
should be no discrimination between one person and another.

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Exceptions to the Rule of law:

The rule of equality is, however not an absolute rule and there are number of exceptions.

Firstly, equality before law does not mean the “powers of the private citizens are the same as the
powers of the public officials

Secondly, the equality before law does not prevent certain classes of persons being subject to
special rules.

Thirdly, today ministers and other executive bodies are given very wide discretionary powers by
statute.

Fourthly, certain members of society are governed by special rules in their professions i.e.
Lawyers, Doctors, Nurses, Members of Armed forces and Police such classes of people are
treated differently from ordinary citizens.

Article 14 permits classification but prohibits class legislation:-

The equal protection of laws guaranteed by Article 14 does not mean all laws must be general in
character. It does not mean that same law should apply to all persons. It does not mean that every
law must have universal application for. Thus Article 14 forbids is class- legislation but it does
not forbid reasonable classification. The classification, however, must not be “arbitrary, artificial,
or evasive” but must be based on some real substantial distinction bearing a just and reasonable
relation to the object sought to be achieved by the legislation.

Leading Case- laws on right to Equality:

1. Ramakrishna Dalmia v/s Justice Tedndolkar [ AIR1958 SC 538]

In this case the Supreme Court held that Article 14 protects all persons from
discrimination by the legislative as well as the executive organ of the state. Article 14
forbids class legislation it does not forbid reasonable classification for the purpose of
legislation.
2. Air India V/S Nargesh Meerza and others [AIR 1981 SC 335]
In this case was filed by the Air hostesses of Air India who challenged the rules of Air
India contending that there was too much gender discrimination between the male crew
and air hostesses from the appointment stage to the retirement stage, promotions,
emoluments etc.
The Supreme Court gave the judgement in favour of the petitioners, i. e. air hostesses,
holding that too much discrimination was shown by Air India. The Supreme Court also
held that the clauses regarding retirement and pregnancy were unconstitutional and struck
them down. As a result of the Supreme Court judgement, the period
of retirement of air hostesses was extended upto 45 years.
3. State of Madras V/S Champakam Dorairajan

15 | P a g e
 The Madras Government had reserved seats in state medical and engineering colleges for
different communities in certain proportions on the basis of religion, race and caste. The
state defended the aw on the social justice for all sections of the people. But the Supreme
Court held the view that the law is void because it classified students on the basis of caste
and religion.

Q.No.6. Discuss the Freedom of Speech and Expression with the help of deiced Cases.

SYNOPSIS:

1. Introduction
2. Provisions under Article 19of the Constitution:
3. Freedom of Speech and Expression under Article 19 (1) (g):
4. Meaning and Scope of Speech and expression:
5. Article 19 (1) (a) has 4 Broad Special Purposes to Serve:
6. Freedom of press
7. Grounds for Restrictions Under Article 19(2):
8. Conclusion.

Introduction:

Personal liberty is the most important of all fundamental rights. Articles 19 to 22 deals
with the different aspects of basic rights. Taken together these four Articles from a chapter of
personal liberties which provides the backbone of the fundamental rights. The foremost
amongst these are the six fundamental rights in the nature of freedoms which are guaranteed
to the Citizens by Article-19 of the Constitution.

Provisions under Article 19of the Constitution:

Among all the six fundamental rights Article-19 is the most important one. This Article
contains 6 freedoms. Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business.

Freedom of Speech and Expression under Article 19 (1) (g):

Freedom of speech and expression is indispensable in a democracy. Article 19(1) (a)
says that all citizens shall have the rights to freedom of speech and expression, but this right is
subjected to limitations imposed under Article-19(2), which empowers the state to put

16 | P a g e
‘reasonable restrictions on following grounds. Eg: security of a State, Friendly relations with
foreign States, Public Order, Decency and Morality, Contempt of Court, Defamation offences
against integrity and Sovereignty of India.

Meaning and Scope of Speech and expression:

The term freedom of Speech and Expression includes---
a. Right to have opinions
b. Right to express them freely
c. Through the medium of writing, print, television, radio, Internet etc…..
d. Restricted to the extent of not adversity affecting freedom of others to live with peace and
harmony.
Thus from the above freedom of speech and expression means the right to express
one’s own opinions freely by word of mouth, writing, printing, pictures or any other mode. It
thus includes the expression of one’s ideas through any communable medium or visible
representations, such as, gesture, signs and the like.

Article 19 (1) (a) has 4 Broad Special Purposes to Serve:

The freedom of speech and expression has four broad principles to serve:
1. It helps an individual to attain self- fulfillment;
2. It assists in the discovery of truth
3. It strengthen the capacity of an individual in participating in the decision making
4. It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
All members of society should be able to form their own beliefs and communicate them
freely to others. In sum, the fundamental principle involved here is the people’s right to know.
Freedom of speech and expression should, therefore, receive generous support from all those
who believe in the participation of people in the administration. It is an account of this special
interest which society has in the freedom of speech and expression that the approach of the
Government should be more cautious while levying taxes on matters of concerning newspaper
industry than while levying taxes on other matter.
In Prabhu Dutt v/s Union of India: In this case the Supreme Court of India has held that
the right to know the news and information regarding administration of the government is
included in the freedom of press. But this right is not absolute reasonable restrictions can be
imposed on it in the interest of the society.
The Right to Information Act, 2005 repeals the Freedom of Information Act, 2002 which was
passed by the previous NDA Government. This legislation entitles every citizen to have access to
information controlled by public authorities. Under this Act, it is obligatory upon authority to
provide information and maintain records consistent with its operational needs. The object of this
Act is to promote openness, transparency and accountability in administration.
Apart from Right to Information Act, 2005, a right to vote being a fundamental right every voter
has got the right to know about their candidates.
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Freedom of press
The fundamental right of the freedom of the press implicit in the right the freedom of speech
and expression is essential for political liberty and proper functioning of democracy. Article
19(1) (a) of the constitution does not expressly mentioned the liberty of press but it has been held
that liberty of press is included in freedom of speech and expression. Freedom of the press is
essential to political liberty. When man cannot freely convey their thoughts to one another, no
freedom is secured, where freedom of expression exists the beginning of a free society and
means for every retention of liberty are already present.
The liberty of press means liberty to print and publish what one pleases, without previous
permission. The freedom of the press is not confined to only newspapers and periodicals. It
includes also pamphlets and circulars and every sort of publication which affords a vehicle of
information and opinions.
In State v/s Charita: The Supreme Court has held that the press do not have an unfettered
right to interview an under trial prisoner in jail. Thus where the trial of the accused was pending
before the Additional Session Judge, he had the authority to grant permission to the press to
interview the under trial inside the jail. The court while granting permission, will have to weigh
the competing interest between the right to press and the right of the authorities prohibiting such
interview in the interest of administration of justice.
Indian Express Newspapers v/s Union of India: speaking about the utility of freedom of
press the Court observed “The expression Freedom of Press” has not been used in Article 19 but
it is comprehended within Article 19(1) (a)
Freedom of press has always been a cherished right on all democratic countries. The
newspaper not only survey news but also ideas, opinion and ideologies, besides much else. They
are supposed to guard public interest by bringing to force misdeeds, failings and lapses of the
government and other bodies exercising governing power.
Bennet Coleman and Company v/s Union of India [Freedom of Press News Print Case]:
The validity of the newsprint Control Order which fixed the maximum number of pages (10
pages) which a newspaper could publish was challenged as violative of fundamental rights
guaranteed under Article 19 (1) (a) and Article 14 of the Constitution. The Court held that the
newsprint policy was not reasonable restriction within the ambit of Article 19(2).
R. Rajagopal v/s State of T.N. (Auto Shankar Case): The Supreme Court has held that the
Government has no authority in law to impose a prior-restraint upon publication of defamatory
materials against its officials. Public authorities who apprehended that they or their colleagues
may be defamed could not prevent the press from publication of such materials, could take action
for damages after the publications of such materials if they prove that the publication was based
on false facts. The court held that no action could be initiated against the press if the publication
was based on public records including court records.
Freedom of speech includes freedom of silence. In Bijoe Emmanuel v/s State of Kerala
[National Anthem Case] the Supreme Court held that no person can be compelled to sing
National Anthem, “If he has genuine conscientious objections based on his religious faith”.

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Grounds for Restrictions under Article 19(2):
Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of
speech and expression can be imposed:-
 Security of the State:
Under Clause (2) of Article 19 reasonable restrictions can be imposed on freedom
of speech and expression in the interest of Security of State. The term security of state
means only serious and aggravated forms of public disorder, e.g., rebellion, waging war
against the state breach of public peace.
 Friendly relation with Foreign States:
The object behind this restriction is to prohibit unrestrained malicious propaganda
against a foreign friendly State which may jeopardize the maintenance of good relations
between India and that State.
 Public Order:
Public order is something more than ordinary maintenance of law and order.
‘Public order’ is synonymous with public peace, safety and tranquility. In the interest of
public order restrictions can be imposed on freedom of speech and expression.
 Decency of Morality:
The restrictions can be imposed on the freedom of speech and expression in the
interest of decency of morality. Publication of obscene if it tends to produce lascivious
thoughts and arouses lustful desire in the minds of substantial numbers of that public into
whose hand the book is likely to fall.
 Contempt of Court.
Restriction on the freedom of speech and expression can be imposed if it exceeds
the reasonable and fair limit and amounts to contempt of court.
 Defamation:
A statement which injures man’s reputation amounts to defamation. Defamation
consists in exposing a man hatred, ridicule or contempt.
 Incitement of an offence[motivating to commit offences]:
This ground was added by first amendment Act, 1951. Obviously freedom of
speech and expression cannot confer a licence to incite people to commit offences.
 Sovereignty and Integrity of India:
The freedom of speech and expression can be restricted so as not to permit to anyone
to challenge the integrity or sovereignty of India or to preach cession of any part of India
from the Union.

Conclusion:
Freedom of speech and of the press lay at the foundation of all democratic organisations,
for without free political discussion no public education, so, essential for the proper functioning
of the process of popular Government, is possible.

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Q.No.7. “No person shall be deprived of his life or personal liberty except according to
procedure established by Law”. Discuss with references to decided case.

SYNOPSIS:
1. Introduction
2. Personal Liberty Meaning and Scope
3. Conditions Under Article-21
4. The Rights Are Held To Be Covered Under Article 21 Of The Constitution:
5. Conclusion.

 INTRODUCTION :
Article 21 deals with “Protection of life and Personal Liberty”. The inspiration of Article
21 is the 5th Amendment to the Constitution of USA which guarantees the fundamental
right to life and personal liberty. Earlier Article 21 guaranteed the right to life and
personal liberty to citizens only against the arbitrary action of the executive and not from
the legislative action. The state could interfere with the liberty of citizens if it could
support its action by a valid law. Now Article 21 protects the right to life and personal
liberty of citizens not only from the executive action but from the legislative action also.
A person can be deprived of his life and personal liberty if two conditions are complied
with,
first, there must be a law and
secondly, there must be a procedure prescribed by that law, provided that the
procedure is just, fair and reasonable.

 PERSONAL LIBERTY MEANING AND SCOPE:

Prior to Maneka Gandhi Case Decision: The meaning of the term personal
liberty came up for consideration of the Supreme Court for the first time in A.K.
Gopalan v/s Union of India. In Maneka Gandhi v/s Union of India, the Supreme
Court has overruled Gopalan Case and widened the scope of the word personal
liberty. Prior to Maneka Gandhi Case Article 21 guaranteed the right to life and
personal liberty to citizens only against the arbitrary action of the Executive and not
from Legislative action. The state could interfere with the liberty of citizens.
But now after Maneka Gandhi case Article 21 now protects the right to life and
personal liberty of citizens not only from the Executive action but also from the
Legislative action. The right guaranteed under Article 21 is available to ‘Citizens’ as well
as ‘Non-Citizens’. The object of this article is to give assurance for the safety of life and
personal liberty of such person. Such assurance is subject to limitation, it is not an
absolute guarantee. According to J. Mukarjee of Supreme Court “Personal liberty means
liberty relating to the person or body of the individual”. Positive rights are well conferred
under Article21.

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 In Maneka Gandhi Case the Supreme Court has not only overruled Gopalan Case but
has widened the scope of the Words ‘Personal Liberty’. The expression ‘personal liberty’
in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute
the personal liberty of man and some of them have raised to the status of distinct
fundamental rights and given additional protection under Article 19”.
 CONDITIONS UNDER ARTICLE 21:
Art.21 requires the following conditions to be fulfilled before a person is deprived
of the property:-
1. There must be a valid Law
2. The Law must provide a Procedure.
3. The procedure must be just, fair and reasonable
4. The law must satisfy the requirements of Arts. 14 and 17 i.e., it must be
reasonable
 THE RIGHTS ARE HELD TO BE COVERED UNDER ARTICLE 21 OF THE
CONSTITUTION:
1. RIGHT TO LIVE WITH HUMAN DIGNITY:
In Maneka Gandhi case the Supreme Court gave the new dimension to
Article 21. It held that right to live is not merely confined to physical existence
but it also includes within its ambit the right to live with human dignity. The right
to live is not confined to the faculty or limb through which life is enjoyed or the
soul communicates with the outside world but it also includes “the right to live
with human dignity, and all that goes along with it, namely, the bare necessities of
life such as adequate nutrition, clothing and shelter, facilities for reading. Writing
and expressing ourselves in diverse forms, freely moving about and mixing with
fellow human being.
People Union for Democratic Rights v/s Union of India: In this Case it
was held that non-payment of minimum wages to the workers employed in
various Asiad Projects in Delhi was a denial to them of their right to live with
basic human dignity and violative Article 21 of the Constitution

2. RIGHT TO LIVELIHOOD (securing the necessity of life):

Under Article-21 “Life” includes the “right to livelihood” also Right to life does
not mean merely that life cannot be extinguished for example, by the imposition and
execution of death sentence, except according to procedure established by law. No person
can live without the means of livelihood. If the right to livelihood is not treated as a part
of the Constitutional right to life, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood.
In Olga Tellis v/s Bombay Municipal Corporation: This case is popularly
known as the ‘Pavement Dwellers case’. It was held in this case that the word ‘life’ in
Article 21 includes the ‘right to livelihood’ also.

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 Sodan Singh v/s New Delhi Municipal Committee: In this case the Supreme
Court held that the right to carry on any trade or business is not included in the concept of
life and personal liberty.

3. RIGHT TO SHELTER:
The right to shelter is a fundamental right under Article21 of the Constitution. In
any organised society, the right to live as a human being is not ensured by meeting only
the animals needs of man. It is secured only when he is assured of all facilities to benefit
himself. Right to life guaranteed in any civilised society implies the right to food, water,
decent environment, education, medical care and shelter. Shelter for human being, is
therefore not a mere protection of his life. It is home where he had opportunities to grow
physically, mentally, intellectually and spiritually. Right to shelter therefore includes
adequate living peace, safe and decent, structure, clean and decent surroundings,
sufficient light, pure air and water, electricity, sanitation and other civic amenties like
roads etc. The right to shelter therefore, does not mean a mere right to roof over one’s
head but right to all the infrastructure necessary to enable them to live and develop as a
human being.

1. RIGHT TO PRIVACY:
The right to privacy is a fundamental right under Article21. The right to privacy
or the right to let alone is guaranteed under Article 21. A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood,
child-bearing and education among other matters. No one can publish anything
concerning the above matters without his consent whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right of the
person concerned and would be liable in an action for damages.
This is subject to exceptions that,
1. If any publication of such matters are based on public record including court
record it will be unobjectionable. If a matter becomes a matter of public record the
right to privacy no longer exists and it becomes a legitimate subject for comment by
press and media among others.
2. The right to privacy or the remedy action for damages is simply not available to
public officials as long as the criticism concerns the discharge of their public duties.
In Auto Shankar Case: The Supreme Court held that the “right to
privacy” or the right to be let alone is guaranteed by Art.21 of the Constitution.
In Mr. ‘X’ v/s Hospital ‘Z’: The Supreme Court held that by disclosing
that the appellant was suffering from AIDS the doctors had not violated the right
to privacy of the appellant guaranteed under Article 21. The Court held that
although the right and restrictions can be imposed on it. The right to marry is an
essential element of right to privacy but is not absolute.
2. RIGHT TO HEALTH AND MEDICAL ASSISTANCE:

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 In Paramananda Katara v/s Union of India: Right to health and medical
assistance is a fundamental right under Article21. Therefore it is the
professional obligation of all doctors, whether Government or Private to extend
medical aid to the injured immediately to preserve life without waiting for legal
formalities to be complied with by the police. Article 21 casts obligation on the
state to preserve life so that the innocent may be protected and the guilty may be
punished. In a historic judgment in Consular Education and Research Centre
v/s Union of India: The Supreme Court held that right to medical care is a
fundamental right.
In Paschim Bang Khet Mazdoor Samiti v/s State of W.B.: The Supreme
Court held that denial of medical care by government’s hospitals to an injured
person on the ground of non- availability of beds amounted to violation of right to
life under Article 21 of Constitution.
3. RIGHT TO DIE:
The question whether the right to die is included in Article-21 of the Constitution.
State of Maharashtra v/s Maruty Sripati Dubal. The Court listed several
circumstances in which people may wish to end their lives, including disease, cruel or
unbearable condition of life, a sense of shame etc. The right to life under Article 21
also includes the “right not to live”, i.e., right to die or terminate one’s life
4. PRISONERS RIGHT & ARTICLE 21:
Mahatma Gandhiji said “Hate the Sin don’t Hate the Sinners”. Article 21 is
based on this principle. Article 21 not only gives the protection to the ordinary
citizens but also it gives the protection to the prisoners. The protection under Article
21 is available even to convicts in jail. The convicts are not by mere reason of their
conviction deprived of all the fundamental rights which they possess. Even a convict
is entitled to the precious rights guaranteed by Article 21 and he shall not be deprived
of his life or personal liberty.
5. RIGHT TO FREE LEGAL AID:
The right to free legal aid and speedy trial are guaranteed fundamental right under
Article 21. Article 39-A provides equal justice and free legal aid. It means justice
according to law. In a democratic policy governed by the rule of law, it should be the
main concern of the state to have a free legal system. The crucial words are to “provide
free legal aid, by suitable legislation or by schemes. So, that opportunities for securing
justice are not denied to any citizen be reason of economic or other disabilities. In order
to enable the State to afford free legal aid vast number of persons trained in law are
needed. Legal aid is regarded in many forms for obtaining guidance, for resolving
disputes in Courts, Tribunals or other authorities. The need for a continuing and well
organised legal education is absolutely necessary. The legal education should be able to
meet the ever-growing demand of the society.
6. RIGHT TO SPEEDY TRIAL:

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 In Hussainara Khatoon v/s Home Secretary, State of Bihar: A petition for a
writ of habeas corpus was filed by number of under trial prisoners who were in jail in
the State of Bihar for years awaiting their trial. The Supreme Court held that “right to
speedy trial” a fundamental right is implicit in the guarantee of life and personal
liberty given Article 21 of the Constitution. Speedy trial is the essence of criminal
justice. The right to speedy trial flowing from Article21 is available to accused at all
stages namely in the stage of investigation, inquiry trial, appeal, revision and retrial.
7. RIGHT TO GET POLLUTION FREE WATER AND AIR:
All are entitled to enjoy the right to get pollution free water and air as it is a
fundamental right to life. The Supreme Court said that enjoyment of pollution free
water and air which is included in the “right to live” under Article 21 of the
constitution.
8. RIGHT TO EDUCATION A FUNDAMENTAL RIGHT UNDER ARTICLE 21-A:
The Constitution 86th Amendment Act, 2002 has added a new Article 21- A after
Article 21 and has made education for all children of the age of 6 to 14 a fundamental
right. It provides that “the State shall provide free and compulsory education to all
children of the age of 6 to 14 years in such manner as the state may, by law determine”. It
is well known that education is a basic human right for the success of democratic system
of government; education is one of the elements. The framers of the Constitution
realising the importance of education have imposed a duty on the state under Article 45
as one of the directive principle of state policy to provide free and compulsory education
to all children.
The object was abolish illiteracy from the country. But it is unfortunate that even
after the lapse of somany years from the commencement of the constitution they did not
take any concrete steps to implement this 40% of the population of the country is still
illiterate. The right to life under Article 21 and the dignity of the individual cannot be
realised unless it is accompanied by the right of education.
In Mohini Jain v/s State of Karnataka: The matter was raised by the petitioner
that the right to education is a fundamental right under Article 21. The Court held that
right to education in all level is a fundamental right under Article 21-A and charging the
high fee for admission is illegal and amount to denial of citizen right to education. The
education in India has never been a commodity.
In Unni Krishna v/s State of A.P. : Where the Court specifically held that the
right to education for the children of age of 6 to 14 is a fundamental right. Article 21-A
makes it obligatory for the Government to enact a Central Legislation to give effects to
the Constitutional amendments. The Legislation will create a mechanism by which a
citizen who is aggrieved that the right to education has not been fulfilled should be able
to get relief by filing writ petitions in the High Courts and the Supreme Court.
Ultimately Right of Children to Compulsory Education Act, 2009 was passed by
the parliament to give effect to the 86th Amendment Act, 2002. It provides the
responsibility of the Central and State Government, teachers, parents and community
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 members in ensuring that all children of the age of 6 to 14 years receive free and
compulsory education.

 CONCLUSION:

Under Article 21 of the Constitution “No person shall be deprived of his life or personal liberty”.
This fundamental right is the personal right which are given to both citizens and non-citizens
therefore no State can interfere with the liberty of the citizens.

Q.No.8. Explain the Safeguards available against the arbitrary arrest and detention under
Article-22 of the Indian Constitution.
Synopsis:

1. introduction
2. Article 22 of the Constitution
3. Safeguards Available against the Arbitrary Arrest and Detention
4. Conclusion

Introduction

Article-22 provides safeguards against arrest and preventive detention. Article 22 prescribes
the minimum procedural requirements that must be included in any law enacted by the
Legislature in accordance with which a person may be deprived of his life and personal liberty.

Article 22 deals with two separate matters:

1. Person arrested under ordinary law of crimes and

2. Person detained under the law of preventive detention.

Safeguards Available against the Arbitrary Arrest and Detention;

 Rights Of Arrested Person: Article 22(1) and (2) guarantees four important rights to on
a person who is arrested for any offence under an ordinary law. These fundamental rights
guaranteed to arrested persons both to the citizens as well as non-citizens And not to the
persons arrested and detained under any law providing for preventive detention.
1. The rights to be informed on grounds of arrest: this is necessary to enable the
arrested person to know the grounds of his arrest and to prepare for his defence.
Art-22 is in the nature of directive to the arresting authorities to disclose the
grounds of arrest of a person immediately.art-22(1) provides that no person who
is arrested shall be denied in custody without being informed, as soon as may be,
of the grounds for such arrest nor shall be denied the right to consult, and to be
defended by, a legal practitioner of his choice.

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 2. The right to consult and be defended by a legal practitioner of his choice: art-
22 (1) gives another important right to the person arrested to consult and to be
defended by a legal practitioner of his choice. This right is informed by a legal
practitioner of his choice. This right is conferred to everyone, whether he is
arrested by the general laws or specific laws.
3. Right to be produced before a Magistrate within 24 hours of his arrest:
According to Art-22(2) that every person who is arrested and detained inc ustody
shall be produced before the nearest magistrate within a period of 24 hours of
such arrest excluding the time necessary for the journey from the place of arrest to
court of the magistrate and such person shall be detained in custody beyond the
said period without the authority of a magistrate. The object of this is not to give
the time to the police to harass the person arrested. This object is also achieved by
section 57 of Cr.P.C.
4. Not to be detained beyond 24 hours without Magistrates authority: Art-22(2)
strictly prohibits the police or any authority to detain the arrested person under his
authority beyond the 24 hours period without the magistrate authority. This would
enable the arrested person to get a speedy trial. This means that if there is failure
to produce the arrested person before the nearest magistrate within 24 hours it
would make the arrest illegal.

 Preventive Detention Laws U/A 22: Sometimes the Country is faced with the
certain dangers. To safeguard the interest of the country the Central Government is
entitled to declare certain areas and certain persons to detain them under prevention
of the breach of peace.
 Ex: 1. Preventive Detention Act, 1950

2. Terrorist and Disruptive Activities Prevention Act, 1987.

Which imposes certain rights to the person arrested under preventive detention laws, so
that the authorities may not misuse their powers. Article 22 (4) to (7) provides the procedure
which is to be followed if a person is arrested under the law of “Preventive Detention” in Indian
law. While the object of the preventive detention is not to punish a man for having done
something but to intercept him before he does it and to prevent him from doing it. Preventive
detention laws are necessary to democratic Constitution and they are not found in any of the
democratic countries of the world. No country in the world has made these laws as integral part
of the Constitution as has been done in India.

 Constitutional Safeguards against Preventive Detention Laws: Article 22 (4) to (7)

guarantees the following safeguards to a person arrested under preventive detention law.

1. Review by Advisory Board: the 44th amendment Act, 1978 has substituted a new
clause for clause (4) which reduces the maximum period for which a person may be

26 | P a g e
 detained without obtaining the opinion of the advisory board from 3 months to 2
months. The detention of a person for a longer period than two months can only be
made after obtaining the opinion of the advisory board. The advisory board shall now
be constituted in accordance with the recommendation of the Chief Justice of the
appropriate high court. If the advisory board reports that the detention is not justified,
the detained person must be released.

2. Communication of Grounds of Detention to Detenue: the authority making the

detention must as soon as possible be communicated to the person detained the
grounds of his arrest, that is, the grounds which led to be subjective satisfaction of the
detaining authority and to give the detenue the earliest opportunity of making a
representatives against the order of detention that is, to be furnished with sufficient
particulars to enable him to make a representation.

3. Detenue’s Right of Representation: the other right given to the detenue is that he
should be given the earliest opportunity of making a representation against detention
order. It means that the detenue must be furnished with sufficient particular of ground
of his detention to enable him to make a representation which on being considered
may give him relief.

Q.No.9. Discuss the relative importance of the Fundamental Rights and Directive
Principles of State Policy with the help of decided cases.

Synopsis:

Introduction
Purposes for insertion of Part III and IV in the constitution of India
Relation between Directive Principles of State Policy and Fundamental Rights
Conclusion

Introduction

An individual to lead a life requires some rights. Rights have been described as those claims
of an individual that are necessary for the development of his oneself and recognized by society
or state. Some of rights that are recognized by the state and enshrined in the constitution are
called fundamental rights. Fundamental rights are those rights of an individual that are
enforceable through courts of law.

The fundamental rights that are provided in the constitution can be divided into six categories are
as follows;

1. Right to Equality (Articles 14 to)

2. Right to Freedom (Articles 19-22)

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 3. Right against Exploitation (Articles 23-24)
4. Right to Freedom of Religion (Articles 25-28)
5. Cultural and Educational Rights (Articles 29-30)
6. Rights to constitutional remedies. (Article-32-35)

Directive principles of state policy are included in part IV of the Indian constitution. Indian
constitution is one among few constitution of the world that has incorporated such provisions as
a part of the main body of the constitution. The constitution makers were inspired to include
directive principles of state policy in the constitution by the constitution of Ireland.One of main
objectives of the constitution makers in including such a provision in the constitution was to lay
down certain principles for the guidance of the governments. While formulating their policies the
Governments are expected to according to these principles.

During the freedom struggle of India our national leaders had made promises regarding the
fundamental rights that the citizens of free India should get, these fundamental rights included
not only civil & political rights but also social & economic rights. But when India got
Independence the leaders realized that it would not be possible for them to grant immediately
some of the social & economic tights that they had promised in the past. But at the same time
they did not want to go back on hurdle. They assigned this task to a sub – committee of the
constituent assembly. The sub-committee suggested that the fundamental rights should be
divided into two categories. Some rights could be granted immediately and others may be
granted in future, if and when the country was in position to grant them. This was the genesis of
the two parts of the constitution. Part three of the constitution deals with fundamental rights
while part IV relates to directives principles of state policy.

The Fundamental Rights are defined as the basic human rights of all citizens. These rights,
defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste,
creed or gender. They are enforceable by the courts, subject to specific restrictions. The
Directive Principles of State Policy are guidelines for the framing of laws by the government.
These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the
principles on which they are based are fundamental guidelines for governance that the State is
expected to apply in framing and passing laws.

Purposes for insertion of Part III and IV in the constitution of India

The framers of the Indian constitution were aware that there were other constitutions
which had given expression to certain ideals as the goal towards which the country should strive
and which had defined the principles considered fundamental to the governance of the country.
The framers of the Indian constitution, therefore, headed the constitution of India with a
preamble which declared India’s goal and inserted parts III and IV in the constitution.

Relation between Directive Principles of State Policy and Fundamental Rights:

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 The genesis and objectives underlying part III and part IV have common desideratum in
responding to the social consciousness rest with the constitution making force. Which
fundamental rights focus on interests of personality, the Directives principles look on to the
welfare of society. Judicial remedies for fundamental rights and non justice able of directive
principles are the deliberate strategies of the constitution. The dichotomy between part III and
part IV and the supremacy of former over the latter a theory based on formalistic and too textual
an interpretation in Champakam Dorairajan did not last for long time.

A government order of the Madras government divided seats in colleges on the basis of
religion and caste. This was repugnant to article 29(2). But it was argued that the government
order could be supported on the basis of article 46 of the constitution which makes the state
responsible for promoting the education interests of the weaker sections of people. The Supreme
Court held that the fundamental rights under Article 29(2) over the Directive principle under
article 46. So the government order was struck down. It was held that in case of any conflict
between part III and part IV, the part III would prevail. These observations of the court were
based on the literal interpretation of the provision of article 37 which declares the directive
principle not justifiable. A remarkable change had come over in the judicial attitude on the
question of inter relationship.

In Inre Kerala Education bill The Supreme Court observed “though the directive
principles can not override the fundamental rights, nevertheless, in determining the scope and
ambit of fundamental rights the court could not entirely ignore the directive principle but should
adopt the principle of harmonious construction and should attempt to give effect to both as much
as possible. The Supreme Court began to assert that there is “no conflict on the whole” between
the fundamental rights and the directive principles. They are complementary and supplementary
to each other.

In Chandrabhavan and Kesavananda Bharati cases inaugurated a new era of integrationist

approach which could emphasis the under pinning of interrelated value of part III and part IV,
Kesavananda Bharati’s case stood for penetration of the notion of distributive justice under
Article 39(b) and (c) into the property relations by upholding the constitutionality of Article 31c.
the legislative contributions through agrarian and economic reforms, labor welfare and other
social justice statutes have by focusing on social welfare, ultimately enhanced the worth of
fundamental rights. Judicial review, by removing unreasonable provisions monitored this
process. In practice, the interconnections of rights are more sensitized when the government
takes the directive principles of state policy seriously.

In Minerva Mills Limited v/s Union of India The court observed that the constitution was
founded on the bed-rock of balance between part III and part IV. To give absolute primacy to
one over the other was to disturb the harmony of the constitution. This harmony and balance
between fundamental rights and the directive principles is an essential feature of the basic

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structure of the constitution. Both the fundamental and directive principles of the state policy are
embodying the philosophy of our constitution, the philosophy of justice social economic and
political. They are the two wheels of the chariot as an aid to make social and economic
democracy a truism.

In Bandhua Mukti Morcha v/s Union of India. The approach of sticking to strict legalism
in the implementation of laws enforcing directive principles, which in turn promote fundamental
rights, has increased the role of directive principles in the inter-relationship doctrine.
The integrative approach towards fundamental rights and directive principles or that the both
should be interpreted and read together has now come to hold the field. It has now become a
judicial strategy to read fundamental rights along with Directive principles with a view to define
the scope and the ambit of the former. Mostly, directive principles have been used to broaden
and to give depth to some fundamental rights and to imply some more rights therein for the
people over and what are expressly stated in the fundamental rights.

By reading article 21 with the directive principles, the Supreme Court has expanded the
horizon of article 21 and derived there from different rights of the citizen. Some of them are;
Right to life includes the right to enjoy pollution free water, air and environments. The court has
derived this right by reading article 21 with article 48A.
Right to health has been recognized as fundamental rights of the workers under article 21.
Article 23 and 24 deal with right against exploitation. Those articles reflect the principles of
article 39c. the directive principles that the tender age of children and not abused and the
children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment are supported by the post Maneka jurisprudence of rights of
children under article 21 and 24. In Asad and Salal Hydro project cases, the Supreme Court
applied article 24 along with article 21 to prohibit child labor being influence by the above
directive principles. Right to education under article 21A is to be understood with reference to
directive principles contained in article 41 and 45.

It is necessary to look into interrelationship between specific directive principles and

fundamental rights in active practice. The central theme of directive principles is human
development with distributive justice, aims at upward movement of the entire social system by
making more people better off without making others worse off. The interrelationship between
the two results in greater freedom and autonomy to all people, reduction of disparity in access to
resources and opportunities and sustainability of environment. Although directives principles is a
policy, because of its importance to human rights values, its elevation to principle has taken
place through the inter-relationship, at least in core areas.

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 I. Directive Principles of state policy, which are related to distributive justice, molded
the property relations by influencing the inter-relationship doctrine both directly
strive for promoting justice, social, economic and political, in the social order.
II. The inter-relationship doctrine is very much influenced by article 39A providing for
equal justice and free legal aid the justice delivery system. According to article 39A.
The state shall secure that the operation of 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 or
other disabilities. The role of this provision was pivotal in removing the impediment
of poverty in one’s access to grievance redressed system
III. The directive principles that the state shall strive to secure its citizens right to an
adequate means of livelihood and make effective provision for securing rights to
work article 41 provided a basis for the supreme court in olga tellis to locate right to
livelihood in right to life under article 21, at least the circumstance of deprivation of
that right. The post Maneka approach of just a fair and reasonable procedure become
a handy instrument in this regard similarly various positive rights of life like right to
food, health, environment and education were evolved by emphasizing on the
relevant directive principles of state policy. It is important to note that the language of
these provisions hinted the limitation of the scope of the positive rights also. This
enabled a pragmatic approach with regard to positive rights.
IV. The directive principle that “tender age of children are not abused” and article 39(f)
could give impetus to and also get supported by the post Maneka jurisprudence of
rights of children under articles 21 and 24. In Asiad construction and Salal hydro
project cases the Supreme Court applied Article 24 in collaboration with article 21 to
prohibit child labor being partly influenced by the above directive principles.
V. The directive principles of “Equal pay for equal work” and “participation of workers
in management” were received through right to equality under article 14 into part III
in Randhir Singh v/s UOI and national textile workers Union v/s P.R. Ramakrishna
cases, and in turn assisted freedom of occupation under article 19(1) or right to
livelihood under Article 21.
VI. The directive principles relating to uniform civil code has to potentiality of using the
interrelationship doctrine for its implementation. Application of articles 14, 19, 21 in
examining the constitutionality rights or right to maintenance has shown the
permeability of these noble principles into personal laws will be compelled to
conform to these standards, and hence uniform of constitutional spirit will persuade
for uniform standards.
VII. Articles 46 of DPSP provides a guidance for affirmative actions under articles 15(4)
and 16(4) and a pointer for resonant the tension between formal and substantive
equality by laying emphasis on infusing of strength and ability to compete, through
education and training to the weaker sections.

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 VIII. The directives principles that the state shall Endeavour to foster respect for
international law and treaty obligations articles 51 has a great potentiality of
absorbing the international principle relating to guarantee of human rights , and thus
influence the inter-relationship doctrine.

Conclusion:

The inter-relationship doctrine between fundamental rights and directive principles of

state policy is not only theoretical but also practical and rewarding. Fundamental rights provide
for political freedoms to the citizens by protecting them against excessive state action while
directive principles are to securing social and economic freedom by appropriated action both are
inspiration of reform legislation. The fundamental rights should be interpreted in the light of
directive principles to observe the limits set by directive principles in the scope of the
fundamental rights. For example article 39, 39-A can be interpreted with article 21 of the
constitution and article 46 can be interpreted with article 29 and 30 of the constitution.

Q.NO. 10. Explain the scope of the fundamental right to freedom of religion under the
Indian Constitution.

Introduction:

India is a secular country. Te concept of secularism is implicit in the preamble of the

Constitution which declares the resolve of the people to secure to all its citizens “liberty
of thoughts belief, faith and worship”. In matter of religion it is neutral. The Constitution
eliminates God from the matter of State and ensures that no one shall be discriminated
against on the ground of religion. The State can have no religion of its own. It should
treat all religion equally. In a secular state the state is concerned with the relation between
man and man. It is not concerned with the relation of man with god. It is left to the
individual conscience. Articles 25 to 28 of the Constitution guarantees the fundamental
right to religion.

 Freedom of Religion[ Article-25]

Article 25 guarantees to every person the freedom of conscience and the right to
profess, practice and propagate religion. This right is subject to public order, morality and
health and to the other provisions of part-III of the Constitution. The freedom of
conscience is absolute inner freedom of the citizen to mould his own relation with God in
whatever manner he likes. The right to profess a religion means to declare freely and
openly one faith and belief. He has a right to practice his belief by practical expression in
any manner he likes. To practice religion is to perform the prescribed duties rituals and to
exhibit his religious beliefs and ideas by such acts as prescribed by religious order in
which he believes. To propagate means to spread and publish his religious views for the
education of others. The right guaranteed in Article 25 like other Constitutional rights, is

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 not absolute. This right is subject to public order, morality and health and to the other
provisions of Part-III of the Constitution.

 Freedom to Manage Religious Affairs[ Article-26]

Article 26 says that, subject to public order, morality and health every religious
denomination of any section of it shall have the following rights:-
1. To establish and maintain institutions for religious and charitable purposes,
2. To manage its own affairs in matters of religion,
3. To own and acquire movable and immovable property,
4. To administer such property in accordance with law.

 Freedom From Taxes For Promotion Of Any Religion[Article-27]

Article-27 provides that no person shall be compelled to pay any tax for the
promotion or maintenance of any particular religion or religious denominations. This
Article emphasises the secular character of the State. The public money collected by way
of tax cannot be spent by the State for the promotion of any particular religion. The
reason underlying this provision is that India being a secular State and there being
freedom of religion guaranteed by the Constitution to pay out the public funds any money
for the promotion of the particular religion or particular religious denomination
 Prohibition Of Religious Instruction In State- Aided Institution[Article 28]
According to Article 28 (1) “ No religious instructions shall be imparted in any
educational institution wholly maintained by State funds. But this clause shall not apply
to an educational institution which is administered by the State but has been established
under any endowment or trust which requires that religious instructions shall be imparted
in such institution. Article 28 mentions 4 types of educational institutions:
1. Institutions wholly maintained by the State
2. Institutions recognised by the State
3. Institutions that are receiving aid out of the State fund
4. Institutions that are administered by the State but are established under any trust or
endowment.
Q.No.11. Discuss the rights of minorities to establish and manage the educational
institutions.
Article 29 of the Constitution provides the protection of interests of minorities to protect their
language, script or culture. It also guarantees them for the admission into any educational
institution maintained by the State or receiving aid out of State funds. Article 30 empowers the
minorities to establish and administer educational institutions.

 Protection Of Interest Of Minorities [Article-29]

According to Article 29(1), any section of the citizens residing in the territory of
India or any part thereof having a distinct language, script or culture of its own shall have

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 the right to conserve the same i.e., language, script r culture. A minority community can
preserve its language, script or culture by and through educational institutions.
According to Article 29(2), no citizen shall be denied admission into any
educational institution maintained by the State of receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them.
In State of Madras Vs. Champakam Dorairajan, an order of Madras Government
had fixed the proportion of students of each community that could be admitted into the
State Medical and Engineering Colleges. The order was challenged on the ground that it
denied admission to a person only on the ground of religion or caste. The petitioners in
this case were denied admission only because they were Brahmins. The Supreme Court
held that the order invalid for being violative of Article 2(2).
In State of Bombay Vs. Bombay Educational Society., the Supreme Court struck
down an order of the Bombay Government banning admission of those whose language
was not English into school having English as a medium of instruction because it denied
admission solely on the ground of language.
The protection of Article 29(2) does not apply where the student is expeked from
an institution on grounds of indiscipline or where he is refused to admission on grounds
of his not possessing requisite qualifications.

 Right Of Minorities To Establish & Manage Educational Institution[Article-30]

According to Article 30(1), All minorities whether based on religion or language

shall have the right to establish and administer educational institution of their choice.
Article 30(2) the State shall not in granting aid to educational institutions,
discriminate against any educational institutions on the ground that it is under the
management of a minority, whether based on religion or language. Article 30 is
incorporated for the upliftment of the minorities in the country. It is completely in
consonance with the “Secular” nature of our democracy and on the directives
contained in the Constitution itself. The object of this Article is to preserve and
develop their own language, script or culture of religious or linguistic minorities, for
which they are entitled to protection. Article 30 guarantees 2 important rights to
the religious or linguistic minorities:
1. Right to establish educational institution of their choice and
2. Right to administer the educational institution established by them.
In D.A.V. College, Bhatinda Vs, State of Punjab, the University declared that Punjabi
would be the sole medium of instruction in the affiliated colleges. The court held that the
right of the minority to establish and administer educational institution of their choice
includes the right to have a choice of medium of instructions also and the University
circular was directly infringing upon the rights of minorities to have instructions in
Punjabi as their own language and therefore was violative of Article 30(1).

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 Q.No.12. Discuss the Right to Constitutional Remedies under Article 32 and 226 of
the Constitution.
Part III of our Constitution provides for legal remedies for the protection of these
rights against their violation by the State or other institutions/individuals. It entitles the
citizens of India to move the Supreme Court or High Courts for the enforcement of these
rights. The State is forbidden from making any law that may be in conflict with the
Fundamentals Rights. Art. 32. Remedies for enforcement of rights conferred by this Part.

 (1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

 (2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any
of the rights conferred by this Part.

 (3) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under. 

 (4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

The Constitution of India provides various Fundamental rights to all its citizens. The
provisions for proper enforcement of these Fundamental rights are also given in the Constitution.
In simple terms, enforcement of the Fundamental rights is safeguarded with the help of 5
prerogative Writs. Writs are nothing but written orders of the court ordering a party to whom it is
addressed to perform or cease from performing a specified act. So Article 32 empowers the
Supreme Court while Article 226 empowers the High Courts to issue writs against any authority
of the State in order to enforce the Fundamental rights.Article 32 is the heart and soul of our
Constitution.Let us now understand the five types of Writs:

1. Writ of Habeas Corpus: 

One of the valuable writs for personal liberty is “Habeas Corpus” which means
“You may have the body”. If any person is detained in prison or a private custody
without legal justification; this writ is issued to the authority confining such person, to
produce him/her before the Court. The Court intervenes here and asks the authority to
provide the reasons for such detention and if there is no justification, the person detained
is set free. The applicant for this writ can either be the person in detention or any person
acting on his/her behalf to protect his/her liberty. This writ provides for immediate relief
in case of unlawful detention.

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 For instance : the first Habeas Corpus case in India was filed in Kerala where  P.
Rajan, a college student was arrested by the Kerala police and he died in custody unable
to bear the torture. His father Mr T.V. Eachara Warrier filed a Habeas Corpus writ and it
was proved that Rajan died in police custody.

2. Writ of Certiorari: 
The meaning of Certiorari is to be certified. This writ is issued when any lower
court or a tribunal exercises a wrongful jurisdiction and decides the case. The party
affected can move this writ to higher courts like the High Court or the Supreme Court. 
Writ of Certiorari can be issued to the quasi judicial or subordinate courts when they act:
 In excess or without any jurisdiction
 In contravention to the principles of Natural justice

 In violation of the prescribed procedure as established by law

 Resulting in an error of judgment apparent on the face of it.

 The writ of Prohibition and Writ of Certiorari are similar except for the
time of their issuance. The former is issued before the passing of the order
by the lower court while the latter is issued after passing of the order.

3.  Writ of Mandamus: 
The term “Mandamus” in Latin means “ We command”. This writ is issued to a
public official who refrains from performing his public duties which he is obliged to
do. This writ can also be issued to any public authority (including the government,
corporation and Court) commits an act which is detrimental to the welfare of the general
public. This writ however cannot be issued against the President and the Governor.

4. Writ of Quo-Warranto:
 “By what warrants?” is the literal meaning of the term Quo-Warranto. The
issuance of this writ takes place to restrain a person from acting in public office to which
he is not entitled. In simple words, if a person occupies a public office without being
qualified for the office, then this writ is issued to restrain the concerned authority from
discharging his duties. The High Court of that particular state has the authority to issue
this writ and direct the person to vacate the office in question. The writ of Quo-warranto
is issued in 3 instances when

 The office in question is a public office and is substantive in nature.

 The State or the Constitution has created the office

 The public servant (respondent) should have asserted a claim on the office.

5. Writ of Prohibition: 

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 Writ of Prohibition is issued to a subordinate to cease doing something which it is
not supposed to do as per law. Normally, this writ is issued by the superior courts to the
lower courts when the lower court tries to exceed the limit of jurisdiction vested in it.
Likewise, if the court acts in absence of jurisdiction, this writ can be issued. Once this
writ is issued the lower court is under an obligation to stop its proceedings. One cannot
issue this writ against a public official who does not have judicial or quasi judicial
powers. This writ is issued before the lower court passes an order.

13. Discuss the significance of Directive Principles of State Policy. Bring out the differences
between Fundamental Rights and Directive Principles of Sate Policy.

DIRECTIVE PRINCIPLES OF STATE POLICY-

[Part-IV Articles 36 To 51]

The Directive Principles of State Policy contained in Part IV of the Constitution

set out the aims and objectives to be taken up by the States in the governance of the
Country. The DPSP is borrowed from the Constitution of Ireland. The idea of welfare
state envisaged by our Constitution can only be achieved if the States endeavour to
implement them with a high sense of moral duty. Today we are living in an era of a
welfare state which has to promote the prosperity and well being of the people. The
DPSP lay down certain social, economic and political policies to be persuaded by the
various Governments in India.

 Objects of the DPSP:

The DPSP are the ideals which the union and the state government must keep in
mind while they formulate the policies or pass a law. They lay down certain social,
economic and political principles suitable to peculiar conditions prevailing in India. The
main object in enacting the DPSP appear to have been to set standards of achievements
before the Legislature and Executive, the local and other authorities. They lay down the
goals which may be achieved through various means which have to be devised from time
to time.

 Classification of DPSP
A. Social and Economic Charter:
1. Social Order Based On Justice:
Article 38 provides that 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- social
economic and political aspects can be achieved. The concept of ‘Social Justice’ consists
of diverse principles essential for the orderly growth and development of personality of
every citizen. Social justice is the integral part of justice. The aim of the social justice is

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 to attain substantial degree of social, economic and political equality. Social justice and
equality are complementary to each other so that both should maintain their vitality.

2. Principles Of Policy To Be Followed By The State For Securing Economic Justice:

Article 39 specifically requires the State to direct its policy towards securing the
following principles:-

a. Equal right of men and women to adequate means of livelihood.

b. Distribution of ownership and control of the material resources of the community

to the common good.

c. To ensure that the economic system should not result in concentration of wealth
and means of the production to the common detriment.

d. Equal pay for equal work for both men and women .

e. To protect health and strength of workers and tender age of children and to ensure
that they are not forced by economic necessity to enter avocations unsuited to
their age and strength.

f. That children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation.

B. Social Security Charter

1. Participation of workers in management of Industries(Art-43-A)
According to Article 43-A, that the State should take steps, by suitable legislation
or in any other way to secure the participation of workers in the management of
undertakings, establishments or other organisations engaged in any industry.

2. Right to work, education and public assistance in certain cases.(Art-41)

Article 41 directs the State to ensure the people within the limit of its economic
capacity and development: (a) employment, (b) education, and (c) public assistance in
cases of unemployment, old age, sickness and disablement and in other cases of
undeserved want.

3. Just and human conditions of work.(Art-42)

Article- 42 directs the State to make provision for securing just human conditions
and for maternity relief.

4. Living wages for workers(Art-43)

Article 43 requires that the State to try to secure by suitable legislation or
economic organisation or in any other way, to all workers, agricultural, industrial or

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 otherwise, a living wages, conditions of work ensuring decent standard of life and full
enjoyment of leisure and social and cultural opportunities.

5. Provisions for early childhood care and education to children below the age of 6 years
(Art-45) :
Article 45 required Provision for free and compulsory education for children The
State shall endeavour to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they complete
the age of fourteen years.

6. Duty to raise the standard of living and improvement of health.(Art-47)

Duty of the State to raise the level of nutrition and the standard of living and to
improve public health The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its
primary duties and, in particular, the State shall endeavour to bring about prohibition of
the consumption except for medicinal purposes of intoxicating drinks and of drugs which
are injurious to health

7. Promotion of educational and economic interest of weaker sections (Art-46)

Promotion of educational and economic interests of Scheduled Castes, Scheduled
Tribes and other weaker sections The State shall promote with special care the
educational and economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation.

8. Equal justice and free legal aid to economically backward classes(Art-39-A)

The State shall, in particular, direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means
to livelihood;
(b) that the ownership and control of the material resources of the community are
so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration
of wealth and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to
enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment.

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 C. Community Welfare Charter

1. Uniform Civil Code-Article 44

Uniform civil code for the citizens The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India. Article 44 of the Constitution
expressly directs that the State shall endeavour to bring a Uniform Civil Code throughout the
country; All Indians now have a common criminal law—the IPC and Cr.P.C— which are
uniformly applicable. ‘Personal’ law for the communities, however, differs, one common
denominator being the generally discriminatory gender adverse treatment of women.
Recently, the Supreme Court of India again called for a UCC. The Supreme Court first
directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan
v. Shah Bano Begum, popularly known as the Shah Bano case. In this case, a penurious Muslim
woman claimed for maintenance from her husband under Section 125 of the Code of Criminal
Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim
woman have a right to get maintenance from her husband under Section 125. The Court also held
that Article 44 of the Constitution has remained a dead letter.
The Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce)
Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the
Code of Criminal Procedure. The explanation given for implementing this Act was that the
Supreme Court had merely made an observation for enacting the UCC, not binding on the
government or the Parliament and that there should be no interference with the personal laws
unless the demand comes from within.
The second instance in which the Supreme Court again directed the government of
Article 44 was in the case of Sarla Mudgal v. Union of India. In this case, the question was
whether a Hindu husband, married under the Hindu law, by embracing Islam, can solemnise
second marriage The Court held that a Hindu marriage solemnised under the Hindu law can only
be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to
Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And,
thus, a second marriage solemnised after converting to Islam would be an offence under Section
494 of the Indian Penal
UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is
based on the concept that there is no necessary connection between religion and personal law in a
civilised society. Marriage, succession and like matters are of secular nature and, therefore, law
can regulate them. No religion permits deliberate distortion. The UCC will not and shall not result
in interference of one’s religious beliefs relating, mainly to maintenance, succession and
inheritance. This means that under the UCC a Hindu will not be compelled to perform a nikah or
a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to property,
maintenance and succession, there will be a common law.

2. Organisation of Agriculture and Animal Husbandry- Article 48

Organisation of agriculture and animal husbandry The State shall endeavour to

organise agriculture and animal husbandry on modern and scientific lines and

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 shall, in particular, take steps for preserving and improving the breeds, and
prohibiting the slaughter, of cows and calves and other milch and draught cattle

3. Protection and Improvement of Forests and Wild Life- Article 48-A

Protection and improvement of environment and safeguarding of forests and wild

life The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country

4. Protection of Monuments and Places and Objects of National Importance-Article 49

Protection of monuments and places and objects of national importance It shall be

the obligation of the State to protect every monument or place or object of artistic
or historic interests, declared by or under law made by Parliament to be of
national importance, from spoliation, disfigurement, destruction, removal,
disposal or export, as the case may be

5. Separation of Judiciary from Executive-Article 50

Separation of judiciary from executive The State shall take steps to separate the
judiciary from the executive in the public services of the State

6. Promotion of International Peace and Security- Article 51

Promotion of international peace and security The State shall endeavour to

(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of
organised peoples with one another; and encourage settlement of international
disputes by arbitration
7. Organisation of Village Panchayats-Article-40

Organisation of village Panchayats 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 function as units of self government.

Relation between Directive Principles of State Policy and Fundamental Rights:

The Constitutional balance and harmony between fundamental rights and DPSP policy is
itself an aspect of the basic structure of the Constitution. There is inter- relationship between
them. The provisions contained in part-IV (DPSP) shall not be enforceable by any Court. The
DPSP differ from fundamental rights in this respect that while Fundamental Rights are
justifiable, DPSP are not-justifiable. According to Article-37, the Directive Principles, though
they are fundamental in the governance of the country. It shall be the duty of the State to apply
this principles in making laws, but they are expressly made not justifiable. On the other hand,
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fundamental rights are enforceable by the Courts and the Courts are bound to declare as void any
law tat is inconsistent with the fundamental rights.

The DP are not enforceable by the Courts nor can the courts declare as void any law which is
otherwise valid on the ground that it contravenes any of the directives. If any Government
ignores them they will certainly have to answer for them before the electorate at the time of
election. The DPSP are not intending to be merely moral precepts. It is therefore, not correct to
criticise these principles as meaningless and useless. It is wrong to say that there is no sanction
behind them. Since the DPSP have been embodied in the Constitution, the Government are
bound to implement them. There may not be the legal force behind them but the highest
tribunals, the public opinion stand behind them. No Government can afford to ignore these
directions. In Kesavananda Bharati v/s State of Kerala: The Supreme Court has said that “
fundamental rights and DPSP aim at the same goal of bringing about a social revolution and
establishment of a welfare state and they can be interpreted and applied together. They are
supplementary and complementary to each other. It can well be said tat DPSP prescribed the goal
to be attained and the fundamental rights lays down the means by which goal is to be achieved

WRITE SHORT- NOTES:

1. Doctrine of Eclipse?

The Doctrine of Eclipse is based on Article- 13 (1). The word Eclipse means hide. Any law made
before the commencement of the constitution must be consistent with the Part- III of the
constitution, relating to Fundamental rights. If any statute is inconsistent with the provisions of
the part- III, such statute shall become void. At the same time such statute shall not be treated as
dead unless it is abolished by parliament. It will be treated as sleepy. After the commencement of
the constitution, the unconstitutional provisions of such statute may be removed, so that to bring
the statute into active, or any constitutional amendments may be made to remove the
unconstitutional provisions removed, the statute shall become free from all infirmity then only it
will become enforceable. This is called the Doctrine of Eclipse.

Features of Doctrine of Eclipse:

1. The doctrine of Eclipse is held to apply only to the pre- constitutional laws and not to the post-
constitutional laws. The reason for this is that the Act when made, before the constitution was
valid.

2. The impugned law was only eclipsed by the shadow of unconstitutionally. When the shadow
was removed by correcting the defects, the eclipse ceased and the state shown in its splendour.

3. The Articles 13, 32, and 226 conferred the Supreme Court and High Courts the power of
judicial review.

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4. The law when made must be a valid one.

2. Doctrine of Severability:

According to article 13, a law is void only “to the extent of the inconsistency or
contravention” with the relevant Fundamental Right. The above provision means that an
Act may not be void as a whole; only a part of it may be void and if that part is severable
from the rest which is valid, then the rest may continue to stand and remain operative.
The Act will then be read as if the invalid portion was not there. If, however, it is not
possible to separate the valid from the invalid portion, then the whole of the statute will
have to go. It is not the whole Act which would be held invalid by being inconsistent with
Part III of the Constitution but only such provisions of it which are violative of the
Fundamental Rights, provided that the part which violates the Fundamental Rights is
separable from that which does not isolate them.
But if the valid portion is so closely mixed up with invalid portion that it cannot
be separated without leaving an incomplete or more or less mingled remainder the court
will declare the entire Act void. This process is known as Doctrine of Severability or
reparability. The Supreme Court considered this doctrine in A.K. Gopalan v. State of
Madras, and held that the preventive detention minus section 14 was valid as the
omission of the Section 14 from the Act will not change the nature and object of the Act
and therefore the rest of the Act will remain valid and effective.
The doctrine was applied in D.S. Nakara v. Union of India, where the Act
remained valid while the invalid portion of it was declared invalid because it was
severable from the rest of the Act. In State of Bombay v. F.N. Balsara, it was held that
the provisions of the Bombay Prohibition Act, 1949 which were declared as void did not
affect the validity of the entire Act and therefore there was no necessity for declaring the
entire statute as invalid.
The doctrine of severability has been elaborately considered by the Supreme
Court in R.M.D.C. v. Union of India, and the following rules regarding the question of
severability has been laid down:

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 (1) The intention of the legislature is the determining factor in determining whether the
valid parts of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be
separated from the another, then the invalidity of a portion must result in the invalidity of
the Act in its entirety. On the other hand, if they are so distinct and separate that after
striking out what is invalid what remains is itself a complete code independent of the rest,
then it will be upheld notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those which
are invalid if they form part of a single scheme which is intended to be operative as a
whole, then also the invalidity of a part will result in the failure of the whole.
(4) Likewise when the valid and invalid parts of a Statute are independent and do not
form part of a 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
legislature, then also it will be rejected in its entirety.
(5) The severability of the valid and invalid provisions of a Statute does not depend on
whether provisions are enacted in same section or different section, it is not the form but
the substance of the matter that is material and that has to be ascertained on an
examination of the Act as a whole and of the setting of the relevant provisions therein.
(6) If after the invalid id 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 legislation.
(7) In determining the legislative intent on the question of severability, it will be
legitimate to take into account the history of legislation, its object, the title and preamble
of it.
3. Judicial Review:
The Judiciary plays a very important role as a protector of the constitutional values that
the founding fathers have given us. They try to undo the harm that is being done by the
legislature and the executive and also they try to provide every citizen what has been promised
by the Constitution under the Directive Principles of State Policy. All this is possible thanks to
the power of judicial review. All this is not achieved in a day it took 50 long years for where we
are right now, if one thinks that it is has been a roller coaster ride without any hindrances they

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are wrong Judiciary has been facing the brunt of many politicians, technocrats, academicians,
lawyers etc. Few of them being genuine concerns, and among one of them is the aspect of
corruption and power of criminal contempt.
The rule of law is the bedrock of democracy, and the primary responsibility for
implementation of the rule of law lies with the Judiciary. This is now a basic feature of every
Constitution, which cannot be altered even by the exercise of new powers from Parliament. It is
the significance of Judicial Review, to ensure that democracy is inclusive and that there is
accountability of everyone who wields or exercises public power. As Edmund Burke said: "all
persons in positions of power ought to be strongly and lawfully impressed with an idea that "they
act in trust," and must account for their conduct to one great master, to those in whom the
political sovereignty rests, the people".
India opted for parliamentary form of democracy, where every section is involved in
policymaking, and decision taking, so that every point of view is reflected and there is a fair
representation of every section of the people in every such body. In this kind of inclusive
democracy, the Judiciary has a very important role to play. That is the concept of accountability
in any republican democracy, and this basic theme has to be remembered by everybody
exercising public power, irrespective of the extra expressed expositions in the constitution. The
principle of Judicial Review became an essential feature of written Constitutions of many
countries. Seervai in his book Constitutional Law of India, noted that the principle of judicial
review is a familiar feature of the Constitutions of Canada, Australia and India, though the
doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the
functions of different organs of the Government have been sufficiently differentiated, so that one
organ of the Government could not usurp the functions of another.
The power of Judicial Review has in itself the concept of separation of powers an
essential component of the rule of law, which is a basic feature of the Indian Constitution. Every
State action has to be tested on the anvil of rule of law and that exercise is performed, when
occasion arises by the reason of a doubt raised in that behalf, by the courts. The power of Judicial
Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are
concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary
in India has come to control by Judicial Review every aspect of governmental and public
functions.

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 ‘Judicial Review’ is the power of courts to pronounce upon the constitutionality of
legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to
enforce such as they find to be unconstitutional and hence void. “Judicial Review” said
Khanna,J., in the fundamental rights case, “has thus become an integral part of our Constitutional
System and a power has been vested in the High Courts and the Supreme Court to decide about
the constitutional validity of the provisions of statutes. If the provisions of the statutes are found
to be violative of any of the articles of the Constitution which is the touchstone for the validity of
all laws the Supreme Court and the High Courts are empowered to strike down the said
provisions”. That power corrupts a man and a absolute power corrupts absolutely which
ultimately leads to tyranny, anarchy and chaos has been sufficiently established in course of
evolution of human history, and all round attempts have been made to erect institutional
limitations on its exercise.
A legislature, an executive and a judicial power comprehend the whole of what is meant
and understood by Government. It is by balancing each of these two powers against the other
two that the efforts in human nature towards tyranny can alone be checked and restrained and
any freedom preserved in the Constitution. Judicial Review is thus the interposition of judicial
restraint on the legislative as well as the executive organs of the Government. The concept has
the origin in the theory of limited Government and in the theory of two laws an ordinary and
supreme. From the very assumption that there is supreme law which constitutes the foundation
and source of other legislative authorities in the body polity, it proceeds that any act of the
ordinary law-making bodies which contravenes the provisions of the supreme law must be void
and there must be some organ which is to possess the power or authority to pronounce such
legislative acts void.
Judicial Review as a part of the Basic Structure: In the celebrated case of Keshavananda
Bharati v. State of Kerala, the Supreme Court of India the propounded the basic structure
doctrine according to which it said the legislature can amend the Constitution, but it should not
change the basic structure of the Constitution, The Constitutional bench in Indira Nehru
Gandhi v. Raj Narain held that Judicial Review in election disputes was not a compulsion as it
is not a part of basic structure.

4. Prohibition of Discrimination Article-15

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 Article 15 of the constitution states that no person shall be discriminated on the basis of
religion, race, caste, sex or place of birth. Every person shall have equal access to public places
like public parks, museums, wells, bathing Ghats and temples etc. However, the State may make
any special provision for women and children. Special provisions may be made for the
advancements of any socially or educationally backward class or scheduled castes or scheduled
tribes. Clauses 3 and 4 of Article 15 contains an exception to the general provisions of non-
discrimination. They empower the State to make special provisions to women and children, for
the advancement of socially, educationally and economically backward classes of citizens or for
SC’s and ST’s. The state is prohibited to discriminate between citizens on grounds only of
religion, race, caste, sex, and place of birth or any of them.

According to Article 15(1), the State is prohibited to discriminate between citizens on

grounds only on religion, race, caste, sex, place of birth or any of them. The word discrimination
means to make an adverse distinction or to distinguish unfavorable from others. If a law makes
discrimination on any of the above grounds it can be declared invalid.

According to Article 15(2), is a specific application of the general prohibition contained in

Article 15(1). Article (2) declares that no citizen shall be subjected to any disability, restriction
or condition on grounds only of religion, race, caste, place of birth or any of them with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment, or

(b) the use of wells, tanks, baths, roads and places of public resorts, maintained wholly or partly
out of the State funds or dedicated to the use of the general public.

According to Article 15(3) - Special Provisions for Women and Children:

Article-15(3) is one of the two exceptions to the general rule laid down in clauses (1) and
(2) of Article 15. It says that nothing in Article-15 shall prevent the State from making any
special provision for women and children. Women and children require special treatment on
account of their very nature. Article 15(3) empowers the state to make special provisions for
them. The reason is that ‘Women’s physical structure and the performance of maternal functions
place her at a disadvantage in the struggle for substances and her physical well-being becomes an
object of public interest and care in order to preserve the strength. Again it would not be is not

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violation of Article 15 if educational institutions are established by the State exclusively for
women. The reservation of seats for women in a college does not offend against Article 15(1).

According to Article 15(4) - Special Provisions for Advancement of Backward Classes):

Article 15(4) is another exception to clauses (1) and (2) of Article 15, it was added by the
Constitution (1st Amendment) Act, 1951, as a result of the decision in Sate of Madras V/S
Champakam Dorairajan. In that case the Madras Government had reserved seats in Sate
Medical and Engineering Colleges for different Communities in certain proportions on the basis
of religion, race and caste. The state defended the law on the ground that it was enacted with a
view to promote the social justice for all sections of the people. But the Supreme Court held the
view that the laws is said to be void because it classified students on the basis of caste and
religion.

In Balaji vs. State of Mysore: the Mysore Government issued an order under Article
15(4) reserving the seats in medical and engineering colleges in the State as follows: Backward
Classes 28%, more backward Classes 20%, Sc & ST 18%. Thus 66% of the seats available in the
colleges were reserved and only 34% was made available to the merit pool. The validity of the
order was challenged by the candidates who had secured more marks than those admitted under
the order. Though qualified on merit they had failed to get admission only be reason of the
Government order. The court held that the sub-classification made by the order between
“backward classes” and “more backward classes” was not justified under Article
15(4).backwardness as envisaged under Article 15(4) must be both social and educational and
not either social or educational. Though caste may be a relevant facto but it cannot be the sole
test of ascertaining whether a particular class is a backward class or not. Poverty, occupation,
place of habitation may all be relevant factors to be taken into consideration.

5. Freedom to Practise any Profession, or to Carry on any Occupation, Trade or Business-

Article 19(1) (g):
Article 19(1)(g) guarantees that all citizens shall have the right “to practice any profession, or
to carry on any occupation, trade or business”. However this right can be restricted under Article
19(6) imposing reasonable restrictions on this right in the interest of public. Prescribing

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professional or technical qualifications necessary for practicing any profession or carrying on
any occupation, trade or business .
The right to carry on a business includes a right to close it at anytime the owner likes. So,
the State cannot compel a citizen to carry on business against his will.
In Excel Wear v/s Union of India: the petitioner was a registered firm. It had a factory
at Bombay where it manufactured garments for exports. Due to serious labour trouble the factory
was running into a recurring loss. The petitioners finding it almost impossible to carry on
business of the factory served a notice on the State government for prior approval for its closure.
The Government refused approval in the public interest. The petitioners challenged the same by
stating that it is invalid and violates the Article 19(1)(g). the Court said that nobody has got to
carry on the business if he cannot pay even minimum wages to the labourers. He must them close
down his business.
In Khoday Distilleries Ltd v/s State of Karnataka: The Supreme Court has set rest the
controversy arising out of conflicting decisions of the Supreme Court on the matter whether a
citizen has fundamental right to trade or business liquor. . the Court has held that the rights under
Article 19(1) are not absolute but qualified and the State is authorised under clauses (2) to (6) of
Article 19 to impose reasonable restrictions on this right in the public interest. A citizen has no
fundamental right to trade or business in activities which are immoral and criminal and in the
articles or goods which are obnoxious and injurious to health, safety and welfare of general
public.
In Minerva Talkies, Bangalore v/s State of Karnataka: A Rule of the State
Government prescribing that no license would be allowed to exhibit more than 4 shows in a day
was held to be valid as imposing reasonable restrictions on the right to carry on business in there
interest of general public. There to regulate hours during which films may be exhibited, seating
arrangements in cinema house and other matters pertaining to public health, safety sanitation etc.
it was found that on account of exhibition of 5 shows in a day it was not possible for the
licensees to keep the theatre hygienically clean and thus was not conducive to the health of
cinegoers.
6. Ex-Post Facto Laws

Article 20(1) of the constitution says, “ 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

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offence, nor he subjected to a penalty greater than that which might have been inflicted under the
law in force at the time of commission of the offence.

Article 20(1) corresponds to the provisions against ex-post-facto laws of the  American
constitution. Ex-post-facto-laws are laws which impose and enhanced penalties upon acts already
done i.e. retrospectively. This means that person can only be convicted of an offence if the act
was charged against him was an offence under the law in force at the date of commission of the
act.  However it does not prohibit the imposition of civil liabilities retrospectively.  So a tax can
be imposed with effect from a past date.  This first part of art.20(1) simply means that if an act is
not an offence at the date of its commission, it cannot be made an offence at any date subsequent
to its commission. The second part of the clause provided that a person cannot 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.
In Shiv Bahadur singh v. State of U.P.-1958 : The prohibition :- it will  be noted, extends
not only to the passing of ex-post-facto laws but also the conviction or the sentence under such
laws. It was held that penalty means penalty for the offence committed. In Venkataraman v.
Union of India.1954: -such a trial under a procedure different from what obtained at the time of
the offence or by a court different from that which had the competence at the time cannot ipso
facto  be held to be unconstitutional. Protection of cause(1) or article 20 cannot be claimed in
cases of preventive detention. 

7.Double Jeopardy.
According to Article 20(2): “ No person shall be prosecuted and punished for the same
offence more than once”. Double Jeopardy means that no person shall be prosecuted and
punished more than once for the same offence. If he is prosecuted again for the same offence for
which he has already been prosecuted he can take complete defence of his former acquittal or
conviction. Under Article 20(2) the protection against double punishment is given only when the
accused has not only been ‘prosecuted’ but also ‘punished’ and is sought to be prosecuted second
time for the same offence.
The principle “A person once convicted or acquitted cannot be tried again”. Under
Article 20(2) is based on the following objects
(i) No man should be punished twice over for the same cause.
(ii) It is in the interest of the State that there should be an end to the litigation
(iii) A judicial decision must be accepted as correct.
Article 20 (2) will have no application where punishment is not for the same offence.
Thus if the offences are distinct the rule o double jeopardy will not apply.
In Maqbool Husain Vs. state of Bombay: the appellant brought some gold into India. He did not
declare that he had brought gold with him to the customs authorities on the airpotrt, the customs
authorities confiscated the gold under the Sea Customs Act. He was later on charged for having
committed an offence under the Foreign exchange regulation Act. The appellant contended that
second prosecution was in violation of Article 20(2) as it was for the same offence. The court

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held that the sea customs authorities were not a judicial tribunal nor a court and did not constitute
a judgement of judicial character.

8. Prohibition against Self- Incrimination: Article-20(3)

Article 20(3) of the Constitution provides that “no person accused of any offence shall be
compelled to be a witness against himself”. The accused must be presumed to be innocent till
the contrary is proved. It is the duty of the prosecution to prove the offences. Article 20(3) is
against self-incrimination. This guarantee extends to any person accused of an offence and
prohibits all kinds of compulsion to make him a witness against himself. Self-incrimination
means conveying information based upon personal knowledge of the person or giving
information involving himself to be the prime part taker in the offences. The object of Article-
20(3) recognises the privileges of an accused person to guard himself against self incrimination.
The accused can refuse to answer any question that is put to him with the intention to incriminate
him. The fundamental rule of criminal jurisprudence against self-incrimination has been raised to
a rule of constitutional law in Article-20(3). This guarantee extends to any person accused of an
offence and prohibits all kinds of compulsion to make him a witness against himself.

Essential elements of Article 20(3):

1. A person Accused of an Offence
2. No person shall be compelled to a witness
3. No compulsion to give Evidence against himself.
In M.P. Sharma Vs Sathish Chandra: The Supreme Court interpreted the expression “to be a
witness” very widely so as to include oral, documentary and testimonial evidence.
In Prashadi Vs. State of U.P.: an accused who was charged with committing a murder stated
to the police that he would give clothes of the deceased which he had placed in a pit and
thereafter he dug out the pit in presence of witness and took out the clothes which were identified
as the clothes belonging to the deceased. The Supreme Court held that the Statement of the
appellant was admissible in evidence.
Nandini Sathpathy Vs. Dani: Smt. Nandini Satpathy was the Ex- C.M. of Orissa. She was
involved in several criminal cases. The investigating officer during his investigation interrogated
her. She refused to answer. The police filed a case against her under Section 179 of IPC, which
was the offence to refuse to give the answers to a public officer. Nandini satpathy moved High
Court U/A 226 read with Article 20(3), praying protection from the police officer. It was
dismissed, she filed an appeal before the Supreme Court. The Supreme Court stayed the
prosecution proceedings against the petitioner and gave the clear directions to the police not to
ask such type of questions involving and incriminating her in the offence. At the same time, the
Supreme Court ordered the petitioner to give answers to the relevant questions.

9. Right to Privacy

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 The right to privacy is a fundamental right under Article21. The right to privacy or the right
to let alone is guaranteed under Article 21. A citizen has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood, child-bearing and education among
other matters. No one can publish anything concerning the above matters without his consent
whether truthful or otherwise and whether laudatory or critical. If he does so, he would be
violating the right of the person concerned and would be liable in an action for damages.

 This is subject to exceptions that,

1. if any publication of such matters are based on public record including court record it
will be unobjectionable. If a matter becomes a matter of public record the right to privacy
no longer exists and it becomes a legitimate subject for comment by press and media
among others.
2. the right to privacy or the remedy action for damages is simply not available to public
officials as long as the criticism concerns the discharge of their public duties.

 Auto Shankar Case: the Supreme Court has expressly held that ‘right to privacy” is
guaranteed by Art.21 of the Constitution.

 In State of Maharashtra v/s Madhukar Narain.: it has been held that although the “right to
privacy” is available even to a women of easy virtue and no one can invade her privacy.

 Mr. ‘X’ v/s Hospital ‘Z’: the Supreme Court has held that although the “right to ptivacy”
is a fundamental right under Art.21 of the constitution but it is not an absolute right and
restrictions can be imposed on it for the prevention of crime, disorder or protection of
health or morals or protection of rights and freedom of others.

11. Right to Education:

The Constitution 86th Amendment Act, 2002 has added a new Article 21-A after
Article 21 and has made education for all children of the age of 6 to 14 a fundamental right.
It provides that “the State shall provide free and compulsory education to all children of the
age of 6 to 14 years in such manner as the state may, by law determine”. It is well known that
education is a basic human right for the success of democratic system of government,
education is one of the elements. The framers of the Constitution realising the importance of
education have imposed a duty on the state under Article 45 as one of the directive principle
of state policy to provide free and compulsory education to all children. The object was
abolish illiteracy from the country. But it is unfortunate that even after the lapse of somany
years from the commencement of the constitution they did not take any concrete steps to
implement this 40% of the population of the country is still illiterate. The right to life under
Article 21 and the dignity of the individual cannot be realised unless it is accompanied by the
right of education.

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  In Mohini Jain v/s State of Karnataka: The matter was raised by the petitioner that the
right to education is a fundamental right under Article 21. The Court held that right to
education in all level is a fundamental right under Article 21-A and charging the high fee
for admission is illegal and amount to denial of citizen right to education. The education
in India has never been a commodity.

 In Unni Krishna v/s State of A.P. : Where the Court specifically held that the right to
education for the children of age of 6 to 14 is a fundamental right. Article 21-A makes it
obligatory for the Government to enact a Central Legislation to give effects to the
Constitutional amendments. The Legislation will create a mechanism by which a citizen
who is aggrieved that the right to education has not been fulfilled should be able to get
relief by filing writ petitions in the High Courts and the Supreme Court

Ultimately Right of a Children to Compulsory Education Act, 2009 was passed by the
parliament to give effect to the 86th Amendment Act, 2002. It provides the responsibility of
the Central and State Government , teachers, parents and community members in ensuring
that all children of the age of 6 to 14 years receive free and compulsory education.

12. Right to Religion:

India is a secular country. Te concept of secularism is implicit in the preamble of the

Constitution which declares the resolve of the people to secure to all its citizens “liberty of
thoughts belief, faith and worship”. In matter of religion it is neutral. The Constitution
eliminates God from the matter of State and ensures that no one shall be discriminated against on
the ground of religion. The State can have no religion of its own. It should treat all religion
equally. In a secular state the state is concerned with the relation between man and man. It is not
concerned with the relation of man with god. It is left to the individual conscience.

 Freedom of Religion[ Article-25]

Article 25 guarantees to every person the freedom of conscience and the right to
profess, practice and propagate religion. This right is subject to public order, morality and
health and to the other provisions of part-III of the Constitution. The freedom of
conscience is absolute inner freedom of the citizen to mould his own relation with God in
whatever manner he likes. The right to profess a religion means to declare freely and
openly one faith and belief. He has a right to practice his belief by practical expression in
any manner he likes. To practice religion is to perform the prescribed duties rituals and to
exhibit his religious beliefs and ideas by such acts as prescribed by religious order in
which he believes. To propagate means to spread and publish his religious views for the
education of others. The right guaranteed in Article 25 like other Constitutional rights, is
not absolute. This right is subject to public order, morality and health and to the other
provisions of Part-III of the Constitution.

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  Freedom to Manage Religious Affairs[ Article-26]
Article 26 says that, subject to public order, morality and health every religious
denomination of any section of it shall have the following rights:-
5. To establish and maintain institutions for religious and charitable purposes,
6. To manage its own affairs in matters of religion,
7. To own and acquire movable and immovable property,
8. To administer such property in accordance with law.

 Freedom From Taxes For Promotion Of Any Religion[Article-27]

Article-27 provides that no person shall be compelled to pay any tax for the
promotion or maintenance of any particular religion or religious denominations. This
Article emphasises the secular character of the State. The public money collected by way
of tax cannot be spent by the State for the promotion of any particular religion. The
reason underlying this provision is that India being a secular State and there being
freedom of religion guaranteed by the Constitution to pay out the public funds any money
for the promotion of the particular religion or particular religious denomination
 Prohibition Of Religious Instruction In State- Aided Institution[Article 28]
According to Article 28 (1) “ No religious instructions shall be imparted in any
educational institution wholly maintained by State funds. But this clause shall not apply
to an educational institution which is administered by the State but has been established
under any endowment or trust which requires that religious instructions shall be imparted
in such institution. Article 28 mentions 4 types of educational institutions:
5. Institutions wholly maintained by the State
6. Institutions recognised by the State
7. Institutions that are receiving aid out of the State fund
8. Institutions that are administered by the State but are established under any trust or
endowment.

13. Fundamental Duties

Part-IV-A which consists only one Article-51-A was added to the constitution by
nd
the 42 Amendment Act 1976. This Article for the first time specifies a code of eleven
fundamental duties for citizens. The object of the part-IV-A is to achieve national
integrity and respect. Its object is to make every citizen to realise that he has certain
duties towards the nation. Originally Fundamental Duties were ten in number; the
Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which
added a duty on every parent or guardian to ensure that their child or ward was provided
opportunities for education between the ages of six and fourteen years. Citizens are
morally obligated by the Constitution to perform these duties. However, like the
Directive Principles, these are non-justifiable, without any legal sanction in case of their
violation or non-compliance.

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 The Fundamental Duties noted in the constitution are as follows:
It shall be the duty of every citizen of India —
(a) to abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for
freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) 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;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;
h) to develop the scientific temper, humanism and the spirit of inquiry and
reform;
(i) to safeguard public property and to abjure violence;
(j) 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;
(k) who is a parent or guardian to provide opportunities for education to his child
or, as the case may be, ward between the age of six and fourteen years. which
added a duty on every parent or guardian to ensure that their child or ward was
provided opportunities for education between the ages of six and fourteen years.
Citizens are morally obligated by the Constitution to perform these duties. However, like the
Directive Principles, these are non-justifiable, without any legal sanction in case of their
violation or non-compliance.

14. Public Interest Litigation.

Public Interest litigation, itself says that this is a litigation for any public
interest. In the words of some learned people we can say that public interest litigation
is a litigation which can be file in any court of law by any public spirited person for
the protection of “public interest.” As it is said that this petition can file any public
spirited person so its mean that there should not be interest of only himself. There in
word only says that in can be possible that in that act for what he is filing a PIL there
in a small part of his benefit also hide But it's not mean that he cannot file. If he is
interest of public then he can file public interest litigation. There are some various
area where a public interest litigation can be filed.
1. Violation of basic human rights of the poor.
2. Content or conduct of government policy.
3. Compel municipal authorities to perform a public duty.
4. Violation of religious rights or other basic fundamental rights.

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 These are the main area where any public interest litigation can be filed
against State/Central Govt., Municipal Authorities, and not any private party.
However private party can be include in this as a respondent after making concern
state authority. This petition is filed in high court or Supreme Court just a same
manner as other writ petition filed. There is some fee for this purpose and its
hearing proceeds are also just like other cases.
M C Mehta is a very renowned name in the field of PIL his contribution in
this field especially in environment is remarkable which helped in the protection
of India natural and cultural treasures like Ganga (MC Mehta vs. Union of India)
and Taj Mahal. (M.C. Mehta (Taj Trapezium Matter) v. Union of India and Ors.)
He also advocated for alternate energy in transport system and his contribution in
curbing child labour is also commendable.
All these petitions are filed under the big banner of the public interest
litigation. The public interest litigation is an extremely important jurisdiction
exercised by the Supreme Court and the High Courts. The Courts in a number of
cases have given important directions and passed orders which have brought
positive changes in the country. The Courts' directions have immensely benefited
marginalized sections of the society in a number of cases. It has also helped in
protection and preservation of ecology, environment, forests, marine life, wildlife
etc. etc. The court's directions to some extent have helped in maintaining probity
and transparency in the public life. The courts while exercising its jurisdiction of
judicial review realized that a very large section of the society because of extreme
poverty, ignorance, discrimination and illiteracy had been denied justice for time
immemorial and in fact they have no access to justice.
Public interest litigation can be filed only in that case where any “public
interest” is affecting at large. Because if only one person is affecting then that is
not a ground for filing PIL. 

15. Uniform Civil Code:

Uniform civil code for the citizens The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India.

Article 44 of the Constitution expressly directs that the State shall endeavour to bring a
Uniform Civil Code throughout the country; Jawaharlal Nehru at the time of Hindu Code Bill
debate, saw it as the first step in securing a full national identity for the citizen. The issues really
relate not so much to caste or community, but to the uniform status of the individual in society,
and in particular to the place of women in a generally male-dominated society. Personal laws
ought not to divide the citizens based on considerations of community etc.; the separate identities
of caste, religion and ethnicity are gradually to be submerged to one of national identity—this
was the impulse that guided Article 44. Alas, the word ‘secular’, which would imply a
uniformity in personal laws, has been subverted in the past few decades—ironically and

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tragically, it has mostly been used to cynically exacerbate communal issues for vote bank
purposes rather than contribute to national identity.
All Indians now have a common criminal law—the IPC and Cr.P.C— which are
uniformly applicable. ‘Personal’ law for the communities, however, differs, one common
denominator being the generally discriminatory gender adverse treatment of women.
Recently, the Supreme Court of India again called for a UCC. The Supreme Court first
directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan
v. Shah Bano Begum, popularly known as the Shah Bano case. In this case, a penurious Muslim
woman claimed for maintenance from her husband under Section 125 of the Code of Criminal
Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim
woman have a right to get maintenance from her husband under Section 125. The Court also held
that Article 44 of the Constitution has remained a dead letter.
"A common civil code will help the cause of national integration by removing disparate
loyalties to law which have conflicting ideologies" After this decision, nationwide discussions,
meetings, and agitation were held. The then Rajiv Gandhi led Government overturned the Shah
Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which
curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of
Criminal Procedure. The explanation given for implementing this Act was that the Supreme
Court had merely made an observation for enacting the UCC, not binding on the government or
the Parliament and that there should be no interference with the personal laws unless the demand
comes from within.
The second instance in which the Supreme Court again directed the government of
Article 44 was in the case of Sarla Mudgal v. Union of India. In this case, the question was
whether a Hindu husband, married under the Hindu law, by embracing Islam, can solemnise
second marriage The Court held that a Hindu marriage solemnised under the Hindu law can only
be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to
Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And,
thus, a second marriage solemnised after converting to Islam would be an offence under Section
494 of the Indian Penal Code. Justice Kuldip Singh also opined that Article 44 has to be retrieved
from the cold storage where it is lying since 1949. The Hon’ble Justice referred to the
codification of the Hindu personal law and held, "Where more than 80 percent of the citizens
have already been brought under the codified personal law there is no justification whatsoever to
keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the
territory of India."
The Supreme Court’s latest reminder to the government of its Constitutional obligations
to enact a UCC came in July 2003 when a Christian priest knocked the doors of the Court
challenging the Constitutional validity of Section 118 of the Indian Succession Act. The priest
from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of
the said Act was discriminatory against the Christians as it imposes unreasonable restrictions on

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their donation of property for religious or charitable purpose by will. The bench comprising of
Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down
the Section declaring it to be unconstitutional. Chief Justice Khare stated that, "We would like to
State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform
civil code throughout the territory of India It is a matter of great regrets that Article 44 of the
Constitution has not been given effect to. Parliament is still to step in for framing a common civil
code in the country. A common civil code will help the cause of national integration by
removing the contradictions based on ideologies." Thus, as seen above, the apex court has on
several instances directed the government to realise the directive principle enshrined in our
Constitution and the urgency to do so can be inferred from the same.
UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on the
concept that there is no necessary connection between religion and personal law in a civilised society.
Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No
religion permits deliberate distortion. The UCC will not and shall not result in interference of one’s
religious beliefs relating, mainly to maintenance, succession and inheritance. This means that under the
UCC a Hindu will not be compelled to perform a nikah or a Muslim be forced to carry out saptapadi. But
in matters of inheritance, right to property, maintenance and succession, there will be a common law.

PROBLEM SOLVING

1) An Engineering College made admissions of candidates on the basis of oral interview

after a written test. High marks were allocated for oral test and candidates were
interviewed only for 2 to 3 minutes. Suraj got high marks in written test but low marks in
oral test. He wants to challenge this. Advice Suraj.

The challenge made by the Suraj is constitutional because. It is very much clear from the
facts of the case is that there is arbitrariness in selecting the students for the admission in
Engineering College which is against to the right to equality which is the most important
fundamental right guaranteed under Article 14 of the Constitution.

Equality is one of the basic elements of democracy. Right to Equality means equality in
all forms i. e., legal, civil and social. The object of right to equality is to secure to the citizens
equality in all its form. Article 14 embodies the general principles of equality before law and
prohibits unreasonable discrimination between persons. Article-14 declares that the State shall
not deny to any person equality before law and equal protection of law within the territory of
India. Article -14 is based upon the principle of natural justice. “Equals have to be treated
equally and unequal’s have to be treated unequally”. The equal protection of law guaranteed
by Article 14 does not mean that all laws must be general in character. Thus Article 14 forbids
class legislation but it is not forbid reasonable classification.

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 The Supreme Court has challenged the traditional concept of equality which was based
on reasonable classification and has laid down a new concept of equality. According to this new
concept of equality Article 14 cannot be determined on the basis of classification. The doctrine
of classification “is merely a judicial formula for determining whether the legislative or the
executive action is arbitrary and therefore constitutes denial of equality.

With reference to the above discussed matters in the present Case also where the
Engineering College made admission of candidates on the basis of oral interview after a written
test. High marks were allotted for oral test and candidates were interviewed only for -3 minutes.
As a result of which Suraj got low marks in oral test. It is very much clear from the facts of the
case is that there is arbitrariness in selecting the students for the admission in Engineering
College. The challenge made by the Suraj is constitutional because, the new concept of Equality
under Article 14 has rightly ensures the magnitude and it embodies a guarantee against
arbitrariness. If the action of the State is arbitrary it is implicit in it that it is unequal and
therefore violative of Article 14.

Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. It is attracted where equals are treated differently without any reasonable basis.

In support of the present problem the leading case is Ajay Hasia v/s Khalid Mujib. In
this case the Regional Engineering College on the basis of oral interview after a written test. The
test of oral interview was challenged on the ground that it was arbitrary and unreasonable
because high percentage marks were allotted for oral test, and candidates were interviewed only
2-3 minutes. The Court struck down the rule prescribing high percentage of marks for oral test
was plainly arbitrary and unreasonable and violative Article 14 of the Constitution. It is said that
the oral interview test cannot be regarded as a very satisfactory test for assessing and evaluating
the capacity and caliber of candidates oral test cannot be exclusive test it should be resorted only
as an additional or supplementary test and must be conducted by persons high integrity, caliber
and qualification. The Court said that an oral interview test is undoubtedly not a very satisfactory
test for assessing and evaluating the capacity and caliber of the candidates because it is
subjective likely to be abused. It was observed that allocation of more than 15 percent marks to
interview will be arbitrary and reasonable.

Thus as per the decision given in Ajay Hasia case the challenge made by Suraj is
constitutionally valid as there was an arbitrariness in selecting the candidates for the admission to
Engineering College.

2) An order of Preventive Detention of a person was made. A person was arrested and
detained for than 9 months, without furnishing reason for his detention. Is this justified?

No the detention of a person is not justified on the grounds that Article 2 of the Constitution
guarantees a fundamental rights which protects the detenue from arbitrary detention. Article-22
provides safeguards against arrest and preventive detention. Article 22 prescribes the minimum

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procedural requirements that must be included in any law enacted by the Legislature in
accordance with which a person may be deprived of his life and personal liberty. Sometimes the
Country is faced with the certain dangers. To safeguard the interest of the country the Central
Government is entitled to declare certain areas and certain persons to detain them under
prevention of the breach of peace. Under Article 22 of the Constitution where a person has been
detained he cannot be kept in detention for more than 3 months but in this case a person was
detained from more than 9 months which infringes his fundamental rights guaranteed under
Article 21 and 22 of the Constitution.

Article 22 imposes certain rights to the person arrested under preventive detention laws, so
that the authorities may not misuse their powers. Article 22 (4) to (7) provides the procedure
which is to be followed if a person is arrested under the law of “Preventive Detention” in Indian
law. While the object of the preventive detention is not to punish a man for having done
something but to intercept him before he does it and to prevent him from doing it. Preventive
detention laws are necessary to democratic Constitution and they are not found in any of the
democratic countries of the world. No country in the world has made these laws as integral part
of the Constitution as has been done in India.

Constitutional Safeguards against Preventive Detention Laws

Article 22 (4) to (7) guarantees the following safeguards to a person arrested under
preventive detention law.

1. Review by Advisory Board

2. Communication of Grounds of Detention to Detenue

3. Detenue’s Right of Representation.

In 1978, the maximum period of detention of a person could be detained after the
confirmation by the Advisory Board for a period of 6 months from the date of detention.
Again in 1980, the detention period was extended to 12 months . after the 44 th Amendment to
the Constitution the maximum period of detention was limited to 3 months. Clause (4) of
Article 22 provides that no law providing for preventive detention shall authorise the
detention of a person for a longer period than “three months”. The Advisory Board can
reduce the period of detention before the expiry of the 3 months if it thinks just and
reasonable. The detention cannot exceed in any case beyond the maximum period prescribed
by law. Again the Advisory Board has reduced the period of detention from 3 months to 2
months.

With the above discussed provision in the present case there is a violation of Article 22 of
the Constitution. In the instant case the detenue was kept in detention from more 9 months
was unreasonable therefore his interest must be protected and secured. The detention is not

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 justifiable the Advisory Board has to consider this matter and should render proper remedy
for his wrongful detention from 9 months.

3.A Magistrate issues an order authorising the investigating officer to take the specimen
handwriting and finger prints of Mr. ‘X’, an accused against his willingness. ‘X’ challenges
the order stating that it violates his fundamental right under Article 20(3). Decide.
Yes, it violates the fundamental rights of the accused under Article 20(3) of
the Constitution.
Because, as per Article 20 of the constitution it safeguards the rights of persons
convicted of offences. This Article is so important that the 44th constitutional
amendment provides that this right or protection cannot be suspended even during an
emergency.
According to article 20 (3) “No person accused of any offence shall be
compelled to be a witness against himself”.
This article gives protection of self- incrimination. Self- incrimination means
conveying, information based upon personal knowledge of the person giving
information involving himself to be the prime part taker in the offence. The object of
Article 20 (3) recognises that privileges of an accused person to gourd himself against
self- incrimination. The accused can refuse to answer any question that is put to him
with the intention to incriminate.
With respect to the above case the act done by the investigating officer is said to be
considered as unconstitutional and it violates the fundamental rights of an accused
person because, in a significant judgement in Selvi v/s State of Karnataka, the
accused have challenged the validity of certain scientific techniques namely, Narco-
analysis, Polygraph and Brain Finger Printing tests without their consent as violative
of Article 20 (3) of the constitution, they argued that these scientific techniques are
softer alternatives to the regrettable use of third degree methods by investigators and
violates right against self incrimination in Article 20 (3) of the constitution. The
Supreme Court unanimously held that these tests are testimonial compulsions and are
prohibited by Article 20 (3) of the constitution.
Thus, from the above it is clear that the accused person Mr. ‘X’ is entitled to
protection under Article 20(3) of the Constitution of India

4.An Engineering college made admissions of candidates on the basis of oral interview after
written test. High marks were allocated for oral test and candidates were interviewed only
for 2 to 3 minutes. ‘A’ got high marks in written test but low marks in oral test. He wants
to challenge this. Decide.
The challenge made by the ‘A’ is constitutional because. It is very much clear from the
facts of the case is that there is arbitrariness in selecting the students for the admission in
Engineering College which is against to the right to equality which is the most important
fundamental right guaranteed under Article 14 of the Constitution.

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 Equality is one of the basic elements of democracy. Right to Equality means equality in
all forms i. e., legal, civil and social. The object of right to equality is to secure to the citizens
equality in all its form. Article 14 embodies the general principles of equality before law and
prohibits unreasonable discrimination between persons. Article-14 declares that the State shall
not deny to any person equality before law and equal protection of law within the territory of
India. Article -14 is based upon the principle of natural justice. “Equals have to be treated
equally and unequal’s have to be treated unequally”. The equal protection of law guaranteed
by Article 14 does not mean that all laws must be general in character. Thus Article 14 forbids
class legislation but it is not forbid reasonable classification. Article 14 strikes at arbitrariness in
State action and ensures fairness and equality of treatment. It is attracted where equals are treated
differently without any reasonable basis.

In support of the present problem the leading case is Ajay Hasia v/s Khalid Mujib. In
this case the Regional Engineering College on the basis of oral interview after a written test. The
test of oral interview was challenged on the ground that it was arbitrary and unreasonable
because high percentage marks were allotted for oral test, and candidates were interviewed only
2-3 minutes. The Court struck down the rule prescribing high percentage of marks for oral test
was plainly arbitrary and unreasonable and violative Article 14 of the Constitution. It is said that
the oral interview test cannot be regarded as a very satisfactory test for assessing and evaluating
the capacity and caliber of candidates oral test cannot be exclusive test it should be resorted only
as an additional or supplementary test and must be conducted by persons high integrity, caliber
and qualification. The Court said that an oral interview test is undoubtedly not a very satisfactory
test for assessing and evaluating the capacity and caliber of the candidates because it is
subjective likely to be abused. It was observed that allocation of more than 15 percent marks to
interview will be arbitrary and reasonable.

Thus as per the decision given in Ajay Hasia case the challenge made by ‘A’ is
constitutionally valid as there was an arbitrariness in selecting the candidates for the admission to
Engineering College.

5.The Government by notification ordered the restriction of movement and settlement of

AIDS patients along with prostitutes. Is this restriction constitutional?
The restriction imposed by the Government is a valid restriction. Art 19 provides six
freedoms under which one such freedom is freedom of movement that has guaranteed under Art
19(1)(d). Art 19(1)(d) guarantees to all its citizen of India the right “to move freely throughout
the territory of India”. But this freedom is also subject to reasonable restrictions mentioned under
clause (5) of Art 19. The restrictions can be imposed on two grounds i.e., 1) in the interest of
general public 2) for the interest of protection of the interest of Scheduled Tribes.
In support of the present problem the leading case is State of Uttar Pradesh v.
Kaushalya, the Supreme Court has held that the right of movement of prostitutes may be
restricted on the grounds of public health and in the interest of public morals.

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 Thus as per the decision given in Kaushalya case the restriction imposed the Government
on movement and settlement of AIDS patients along with prostitutes is Constitutionally valid.

6. The State Government issued an order under Art.15(4) of the Constitution reserving
68% of seats to backward and more backward classes and 32% seats made available to the
merit pool in the Medical and Engineering Colleges. The validity of the order was
challenged by a student who had secured more marks than those admitted under the order.
Decide.

The order passed by the State Government under Article 15(4) of the Constitution reserving
68% of seats to backward and more backward classes and 32% seats made available to the merit
pool in the Medical and Engineering Colleges is invalid on the basis of following constitutional
provisions: A

Article 15 of the constitution states that no person shall be discriminated on the basis of
religion, race, caste, sex or place of birth. Special provisions may be made for the advancements
of any socially or educationally backward class or scheduled castes or scheduled tribes. Clause 4
of Article 15 contains an exception to the general provisions of non- discrimination. It empowers
the State to make special provisions for the advancement of socially, educationally and
economically backward classes of citizens or for SC’s and ST’s. The state is prohibited to
discriminate between citizens on grounds only of religion, race, caste, sex, and place of birth or
any of them.

Further Article 15(4) is another exception to clauses (1) and (2) of Article 15, it was added by
the Constitution (1st Amendment) Act, 1951, as a result of the decision in Sate of Madras V/S
Champakam Dorairajan. In that case the Madras Government had reserved seats in Sate
Medical and Engineering Colleges for different Communities in certain proportions on the basis
of religion, race and caste. The state defended the law on the ground that it was enacted with a
view to promote the social justice for all sections of the people. But the Supreme Court held the
view that the laws is said to be void because it classified students on the basis of caste and
religion.

In Balaji vs. State of Mysore: the Mysore Government issued an order under Article 15(4)
reserving the seats in medical and engineering colleges in the State as follows: Backward Classes
28%, more backward Classes 20%, Sc & ST 18%. Thus 66% of the seats available in the
colleges were reserved and only 34% was made available to the merit pool. The validity of the
order was challenged by the candidates who had secured more marks than those admitted under
the order. Though qualified on merit they had failed to get admission only be reason of the
Government order.

The court held that the sub-classification made by the order between “backward classes” and
“more backward classes” was not justified under Article 15(4).backwardness as envisaged under

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Article 15(4) must be both social and educational and not either social or educational. Though
caste may be a relevant facto but it cannot be the sole test of ascertaining whether a particular
class is a backward class or not. Poverty, occupation, place of habitation may all be relevant
factors to be taken into consideration.

From the above it is very much clear that any type of orders passed by the State Government
which are discriminatory in nature such orders are said to be considered as a unconstitutional.

7. The State Government detained large number of persons under Narcotic Drugs Act for a
long period without trial. The ‘Under trial Prisoners’ questioned the validity on the ground
of violation of Article 21 of the Constitution. Decide.

Under Article 21 of the Constitution speedy trial is the essence of criminal justice. The
right to speedy trial is a fundamental right which is implicit in the Constitution guarantee of life
and personal liberty enshrined in article 21 of the Constitution

In Hussainara Khatoon v/s Home Secretary, State of Bihar: A petition for a writ of habeas
corpus was filed by number of under trial prisoners who were in jail in the State of Bihar for
years awaiting their trial. The Supreme Court held that “right to speedy trial” a fundamental right
is implicit in the guarantee of life and personal liberty given Article 21 of the Constitution.
Speedy trial is the essence of criminal justice. The right to speedy trial flowing from Article21 is
available to accused at all stages namely in the stage of investigation, inquiry trial, appeal,
revision and retrial.

The right to speedy trial flowing from Article 21 is available to accused at all stages
namely the stages of investigation, inquiry, trial, appeal, revision and retrial. The detention of
under trial prisoners in jail custody to an indefinite period violates Article 21. Every person
detained or arrested is entitled to speedy trial. it looks that the appellants have to remain in jail
longer than the period of detention, if they are convicted. The under trials are presumably
innocent until convicted and if they are kept with criminals in jail it violates the Article 21 of the
constitution.

Thus from the above it is very much clear that the under trial prisoners are entitled to
speedy trial in all the stages under article 21 of the Constitution.

8. Haryana Panchayat Raj Act, 1994, provided that a person having more than two
children is not eligible to contest in election for the post of sarpanch or panch in Gram
Panchayats. However, this provision is not applicable to other institutions of local
governance or for those contesting to the State Legislature. This was challenged by one Mr.
Javed as discriminatory and violative of Article 14 of the Constitution. Decide.

Disqualifying the person having more than two children to be candidates in the
Panchayat Election is not violative of Article 14 of the Constitution.

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 Article 14 permits classification but prohibits class legislation. Classification to be
reasonable must fulfill the following two conditions:

i. the classification must be founded on an Intelligible Differentia which

distinguishes persons or things that are grouped together from others left out of
the group; and
ii. the differentia must have a rational relations to the object sought to be achieved
by the act.

In Javed Vs. State of Haryana, the petitioner challenged the validity of Section 175(1)(g)
of the Haryana Panchayat Raj Act, 1994 on the ground that it was violative of Article 14 of the
Constitution. Section 175(1)(g) disqualifies a person having more than two children from
contesting elections for sarpanch or panch in Gram Panchayats, but this does not apply to offices
in other institution of Local Self Government. The Supreme Court of India held that the
provisions of section 175 (1)(g) is not discriminatory and the classification made by it is based
on intelligible differentia having nexus with the object of popularization of family planning
programme. To carry out the Act as well as the mandate of the Constitution the legislature has
made this provision for making a person intelligible to either to contest for the post of Panch or
Sarpanch having more than two children. The provision would serve the purpose of the Act and
is, therefore, not violative of Article 14 of the Constitution.

The instant case is also similar to that of Javed Vs. State of Haryana, hence applying the
same principle given by the Supreme Court its clear that the Act is not violative Article 14 of the
Constitution.

9. The passport authorities have refused to issue the passport to “A”, a citizen of India, to
go abroad. Can the Authorities be compelled to issue the passport? Decide.
No, the authorities without the proper and reasonable ground cannot restrain a
person from going to abroad. The act of the Passport Authorities is a clear violation of
fundamental right to life guaranteed under Article 21 of the Constitution of India.
The Supreme Court of India extended the scope of Article 21 and held that the “right to
travel abroad” is a part of person’s personal liberty within the meaning of Article 21 of the
Constitution.
In Maneka Gandhi Vs. Union of India, the meaning and content of the words ‘personal
liberty’ came up for the consideration before the Supreme Court. In this case the Petitioners
passport was impounded by the Central Government under Section 10 (3)(c) of the Passport
Act, 1967. The Act authorised the Government of India to do so if it was necessary in the
interest of general public. The Government declined in the interest of the general public to
furnish the reasons for its decision. The petitioner challenged the validity of the said Act as
arbitrary since it did not provide for hearing the holder of the passport before it was
impounded.

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 The Supreme Court in this case held that the Government was not justified in withholding
the reasons for impounding the passport from the petitioner. Further the court held that the
any procedure which permitted impairment of individuals right to go abroad without giving
him a reasonable opportunity to be heard could not but be condemned as unfair and unjust.
it must be therefore, be held that the procedure established by the Act for impounding a
passport is in conformity with the requirement of Article 21 and is not violative of that
Article.
In the Instant Case also the passport authorities have refused to issue the passport to “A”,
a citizen of India, to go abroad without proper reasons hence, it’s a clear violation of right to
life guaranteed under Article 21 of the Constitution.

10. The Central Government of India, passed an order known as News Print Control order
1972, which fixes the maximum number of pages to 10 which effected the distribution of
newsprint. This was challenged by one of the Company by contending the order is violative
of Article 19(1) (a). Decide.

Yes, the order passed by the Central Government is violative of Article 19 (1) (a) of
the Constitution of India.

Freedom of speech and expression is indispensable in a democracy. Article 19(1) (a)

says that all citizens shall have the rights to freedom of speech and expression, but this right is
subjected to limitations imposed under Article-19(2), which empowers the state to put
‘reasonable restrictions on following grounds. Eg: security of a State, Friendly relations with
foreign States, Public Order, Decency and Morality, Contempt of Court, Defamation offences
against integrity and Sovereignty of India.

Freedom of Speech and Expression is indispensible in a democracy. In Romesh Thapper

Vs. State of Madras, its been observed that ‘ Freedom of speech and of the press lay at the
foundation of all democratic organisations, for without free political discussion no political
education, so essential for the proper functioning of the process of popular Government is
possible.

The fundamental right of the freedom of the press implicit in the right the freedom of
speech and expression, is essential for political liberty and proper functioning of democracy.
Article 19(1) (a) of the constitution does not expressly mentioned the liberty of press but it has
been held that liberty of press is included in freedom of speech.
Bennet Coleman and Company v/s Union of Indi [Freedom of Press News Print Case]:

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 Bennet Coleman and Co., was the company managing a newspaper. The Central
Government passed an order known as “Newsprint Control order 1972” which fixes the
maximum number of pages to 10 which affected the distribution of newsprint to the petitioner
company. Due to that order, the company was to put great loss, consequently it had to close its
magazine. The company challenged the said order before the Supreme Court under Article19(1)
(a). the writ petitions were filed by several readers, newspapers, editors and shareholders of
several other newspaper. The Supreme Court held that the fundamental rights of the readers,
shareholders, newspaper editions were badly affected by the said order. If their fundamental
rights has not been recognised and if the unreasonable restrictions are not removed, the freedom
of the press would be destroyed in the country. Therefore the Supreme Court admitted the
petitions of the newspaper companies, readers, shareholders and editors and quashed clauses
against freedom of press of the newsprint control order 1972.
from the above it is very much clear that the order passed by the Central government is
clear violation of Article 19 (1) (a) of the Constitution.

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