SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: BBA LLB

Batch: 2021-2026
Semester:2nd
Course Name: Constitution law
Seat No: 344529
PRN: 21010324016

INSTRUCTIONS
1. Mention your details only in the space provided above. If any other details
name, contact detail etc. are written anywhere else in the answer script it will
be treated as adoption of unfair means.
2. Submission will be done by the Google form provided by the examination
department and it will be in the word format only (.doc/.docx). Submission of
any other format will not be accepted.
3. Submission will not be accepted beyond the deadline given by the
examination department in each subject. Student will be marked absent in
case of late submission.
4. The answers need to be neatly typed. Formatting guidelines: Font size &
name: 12 & Times New Roman; Line spacing 1.5; Justified; Page size: A4; No
borders
5. Write your answer in your own words and do not copy paste from any source.
Read the question carefully and write your answer fulfilling the requirements
of the question.
6. Examiner may use plagiarism check software to find out the originality of the
assessment.
7. If the students copy from each other’s assignment, it will be considered as
unfair means case and performance will be treated as null and void for the
entire examination.
8. File name should be PRN and name of the Subject. (For Ex-12345678_Family
Law)
Q1A) Constitution can be termed as a framework, which establishes the fundamental law of the
land, i.e. nation. It not only establishes the three branches of the government, but also enumerates
the powers, responsibilities of the instrumentalities of the state but also their limitations. It is a
deliberate creation effected by some assembly or convention at a particular time and helps in the
regulation of relationship between the state and it’s population. It is usually referred to as a
document, which can be in written form, i.e. India or in unwritten form, i.e. Britain and is in line
with the changes in the society while being in it’s original form. Constitutionalism can be referred
to as a doctrine which governs the legitimacy of the government actions. Although limited
government is commonly associated with constitutionalism, that association is merely one meaning
of the term and is in no way the most prevalent one historically. Constitutionalism more broadly
refers to good governance, welfare of the state, political order with limited government power and
governed by laws and regulations. There are three essential attributes of constitutionalism:
Nationalism, Democracy and Self-Government.

Rule Of Law

The modern understanding of the Rule of Law is now so evolved that it offers the best environment
for any government to operate in. The Delhi Declaration of 1959, created by the International
Commission of Jurists, was later supported by the Lagos Declaration of 1961. The dignity of the
individual man is preserved by this law. It indicates that the rule of law should be enforced in a
way that fosters an environment where an individual's dignity should take precedence. In addition
to civil and political rights, an individual's dignity also includes acknowledgement of their social,
economic, educational, cultural, and developmental rights. The Kesavananda Bharati v. State of
Kerala, is regarded as the case that saved the constitution. In this case, it was proclaimed that rule
of law is a part of the basic structure of the constitution and that it cannot be destroyed even by the
parliament of India. Another important case is Som Raj vs the state of Haryana where it was
understood that the rule of law is what the constitutional structure depends upon. Thus, we can
conclude that the rule of law is a very important concept that governs the country and that it is the
antithesis of arbitrariness.
In order to ensure that the Rule of law is properly incorporated, a human rights system needs to be
in place. Human rights mechanisms are absolutely vital, especially in third-world nations like
India. Prof. Wade has modified the meaning of the Dicey in the context of today by including
effective control of and proper publicity for delegated legislation under the concept of Rule of Law,
particularly when it imposes penalties that should, to the extent possible, be defined; every man
should be accountable to, the ordinary laws whether he be a private citizen or public official; the
private man's right should be determined by impartial and independent tribunals and foundations.

In the case of, ADM Jabalpur v Shivkant Shukla Many people view the Emergency of 1975 as
one of the darkest periods in Indian democracy. The Union Government was operating according
to its own whims and fancies and taking away fundamental rights for partisan political advantage.
When the judiciary was asked to make a decision in this important issue, the case of Additional
District Magistrate, Jabalpur v. Shivkant Shukla and others came up. This case is well-known for
Justice H. R. Khanna's lone dissenting opinion, which was the only one to support the primacy of
Fundamental Rights. The remaining judges agreed, holding that fundamental rights would be
suspended as long as there was an emergency. The reality is that this judgement is a stain on the
Indian court, despite claims that it was simply a restricted interpretation of the law or that it was
motivated by fear of a very strong central government.
In Bachan Singh v State of Punjab, According to Bhagwati J, the Rule of Law prohibits
arbitrariness and unreasonableness. His ideas include the need for a democratic legislature that may
pass laws but whose authority should be limited and as well as the need for an independent
judiciary that can defend the public from abuses of executive and legislative power. Further in P
Sambamurthy v State of Andhra Pradesh, A clause allowing the administration to interfere with
tribunal justice has been found unconstitutional by the Supreme Court, which deemed it to be
"violative of the rule of law, which is a fundamental and important characteristic of the
Constitution." Thus the two important value of Rule of Law in modern times are No Arbitrary
Government and Upholding individual liberty.

This case demonstrates how judges can have diverse perspectives on the same issue. This choice
serves as an illustration of how complex a problem can be. However, it should also be noted and
criticised that the Court acted with egregious disregard in recognising Right to Life as an
unalienable human right. Justice H R Khanna's tenacity is commendable, and his rulings have
served as a model for current and prospective juries and policymakers. An even more expansive
reading of Article 21 was made possible by this case. In the end, it should be clear that, in order to
maintain proper delegation and separation of powers, Rule of Law must be given top priority.

Q2B) SCOPE OF ARTICLE 12

When the body is financially, functionally and administratively dominated by or under the control
of the government and such control is particular to the body and is pervasive, then it will be “State”
within Article 12. If the control is merely regulatory, it will not be a State.

UNLESS THE CONTEXT OTHERWISE REQUIRES

The Context of a provision in Part III may exclude the meaning given by Article 12 to the word
‘State’. For instance, the expression ‘security of the State’ in Article 19(2) refers not to the persons
carrying on the administration of the State but to the State as an organized political society.

INCLUDES
This word indicates that the definition is not exhaustive. Hence, even though the definition
expressly mentions only the Government and the Legislature, there might be other instrumentalities
of State Action within the sweep of the definition. The non-mention of the Judiciary does not,
therefore, necessarily indicate that the courts are intended to be excluded from the definition.

The author is definitely of the opinion that by reason of the word ‘includes’ the definition of
Article 12 enables the Indian Supreme Court to include within the definition all the three organs of
the State (executive, legislative and judicial) as well as all other authorities which have been
included within the concept of State action in U.S.A., and that any narrowing down of the ambit of
the definition would be defeating the object of inserting the definition of Article 12.

AUTHORITY
Literally ‘authority’ means a person or body exercising power or having a legal right to command
and be obeyed. An ‘Authority’ is a group of persons with official responsibility for a particular area
of activity and having a moral or legal right or ability to control others. If a particular cooperative
society can be characterized as a “State” under Article 12, it would also be “an authority” within
the meaning of Article 226 of the Constitution.

“Authority” means a public administrative agency or corporation having quasi-governmental

powers and authorized to administer a revenue producing public enterprise. It is wide enough to
include all bodies created by a statute on which powers are conferred to carry out governmental or
quasi-governmental functions.

“Authority” in law belongs to the province of power. The word “State” and “Authority” used in
Article 12 remain among “the great generalities of the Constitution” the content of which has been
and continues to be applied by Courts from time to time.

LOCAL AUTHORITIES WITHIN THE TERRITORY OF INDIA

Local authorities are under the exclusive control of the States, by virtue of entry 5 of List II of the
7th Schedule. That entry contains a list of some local authorities. This expression will, therefore,
include a Municipal Committee; a Panchayat; a Port Trust; Municipality is a “State” within the
meaning of Article 12. But that does not mean that the authorities are State Government or Central
Government and there is a distinction between State and Government.

Sukhdev Singh Vs Bhagatram is considered as an important case under this discussion. The issue
that was raised was that whether the statutory corporations for example the ones created “Oil and
Natural gas Commission Act in the year 1959”, “ The Industrial Finance Act in the year 1948”, and
“the Life Insurance Act of 1956 “ comes under the definition of State or not. However it was held
that yes, the above mentioned three were state as they were “created by statutes, had statutory
powers to make binding rules and regulations and wer subject to persuasive governmental control.
ii) Som Prakash Vs Union of India
iii) Umesh Chandra Vs Vn Singh

Basically, what is a state and what not is a state has always been a matter of discussion. In
“B.Hassan Ali Khan vs The Director of the Higher education, Andhra Pradesh 1987” it was
stated that there should be essential tests in order to determine if a specific body is a state within
the expression “other authority.”
Like in the case of Sukhdev Singh vs Bhagatram, the judgement was reiterated with approval in
the case of “RD Shetty vs International Airport Authority.” The court held that “the
corporations acting as an instrumentality or agency of the government would be subject to the
limitations in the field of constitutional and administrative law.”

In the case of R.D.Shetty v/s International Airport Authority, the Court laid down five tests to
be considered “other authority”:

1) Entire share capital is owned or managed by State.

2) Enjoys monopoly status.
3) Department of Government is transferred to Corporation.
4) Functional character governmental in essence.
5) Deep and pervasive State control.
6) Object of Authority.

The factors were further summarrised in the case of “Ajay Hassia vs Khalid Mujib.” They are:
• The government owns the whole share capital of the body, implying that it is a tool of the
government.
• If the body's whole spending is dependent on financial support supplied by the government, it
may suggest that the governmental character has been imprinted on the body.
• Where monopoly status has been bestowed by the state, it is one of the significant elements.
• The state may exert profound and extensive control over the specified body, indicating that the
body is a state tool.
• Furthermore, if the body performs functions of public importance in relation to governmental
functions, it may be an important factor in evaluating state instrumentality.

Q3A) Article 15(4) states that nothing in this article or in clause (2) of Article 29 shall prevent the
State from making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. In Jayasree v.
State of Kerala, the supreme court held that neither caste by itself nor poverty by itself is a
determining factor of social backwardness. 16(4) was interpreted by the Supreme court in the case
of C.A Rajendran Vs the Union of India, where the court opined that the Government must
maintain a balance between the claims of backward classes and the claims of other employees. The
court also concluded that article 15(4) or 16(4) does not confer any right on the members of
backward classes and that there is no constitutional duty imposed on the states to make reservation
for SCs or STs.
The Mandal Commission case altered this. The court concluded that
1. article 16(4) of the constitution is not an exception to clause (1) since it only apllies to a portion
of the society.
2. In addition, the court in this instance ruled that the socially and educationally backward classes
described in article 15(4) were distinct from the backward classes mentioned in article 16(4), and
further ordered that the creamy layer be disregarded when designating backward classes.
3. The court also interpreted article 16(4) in a broader sense, noting that it does permit the division
of backward groups into "more backwards" and "backward" categories.
4. The court imposed a 50 percent cap on reservations, ruled that they should not exceed 50 percent
in appointments, further ruled that they should not be permitted in promotions, and understood that
neither article 15(4) or 16(4) talk about the reservations in promotions.
After the Indira Sawney case, the 77 Amendment legislation led to a number of developments.
With this change, clause 4(a) of article 16 was inserted, giving the State the authority to reserve
seats for SC and ST employees during promotions in the public sector if such groups are not
sufficiently represented among those employed by the government. Additionally, in the case of M.
Nagaraj v. Union of India, the court upheld the validity of article 16(40) and outlined three
requirements, including that SC and St. be economically and educationally backward. The court
also stated that this article should only be used if ST SC are not adequately represented in public
employment and that it must not impair the administration's effectiveness. These cases and
developments has all dealt with the apllicabilty of articles 15(4) and 16(4) of the constitution int
erms of reservation. Therefore, in the given case seniaro, the reservation policy can be challenged
in court as in inherely goes against the limit set in Indira Awaney vs the Union of India.
If all the reserved posts are not filled in a year for want of suitable candidates from those classes,
then the shortfall is to be carried forward to the next year and added to the reserved quota for that
year, and this could be done for the next two years.

The Mandal Case resulted in significant changes to reservation policy, by increasing the
percentage of people who benefited from it. It undoubtedly caused problems for the general
population, as their opportunities were diminished, but the reservation policy was necessary to
uplift disadvantaged citizens out of the vicious cycle of poverty and discrimination. Numerous
amendments and rules were introduced following the Mandal Commission’s Report. Though the
report was not perfect, it was significantly improved after it was challenged in the Indira Sawhney
case, and a very beneficial reservation policy for OBCs in central government services began in
1992.

Moreover, no Union administration has made any significant efforts toward implementing the
Mandal Commission’s recommended structural changes. Agriculture, the rural economy’s bedrock,
has become economically unviable. So after the implementation of the reservation policy, some
important essence of the recommendation needs to be brought in for a more effective result. In
Indra Sahwney v UOI, the suprme court overruled Devdasan v Union of India held that the carry
forward rule valid so long as it did not in a particular year exceed 50% of vacancies.

Q4A) The term "minority" is not defined in the Constitution. It literally means "non-dominant
group." While drafting the laws, our constitutional framers had minorities' difficulties in mind and
enacted legislation to address them. They have passed legislation not just to safeguard the distinct
cultural and religious identities, but also to empower them. Laws protecting minorities' rights
• Article 14 - equality before the law.
• Article 15 - prohibits discrimination based on racial, ethnic, caste, sexual orientation, or place of
birth
• Article 16- Equal opportunity in areas of public employment
• Article 21- Life and personal liberty.
• Article 25- guarantees the right to freedom of conscience and the free exercise of one's faith.
• Article 26- The right to control one's own religious matters.
• Article 29- Minority interests are protected.
• Article 30 – Minorities have the right to create and run educational institutions.

Minorities are granted unique rights under both Articles 29 and 30. Every citizen or group of
citizens having a distinct language, script, or culture has the right to maintain it, according to
Article 29 of the Constitution, which protects the rights of minorities. Discrimination on the
grounds of religion, race, caste, language, or any combination of these factors would not be
permitted. Article 30 uses the terms "religious" or "linguistic" minority. The preposition " or"
implies the potential of a minority being either linguistic or religious; neither is required. Either
one, both, or neither is allowed. Article 30 of the Indian Constitution provides linguistic and
religious minorities the exclusive right to "build and control educational institutions of their
choice." As a result, no law may be enacted that would be discriminatory in the establishment and
administration of educational institutions in comparison to other educational institutions.

According to this article, everyone has the right to create or build educational institutions of their
choosing, as well as to efficiently manage and conduct the institutions' affairs. Minorities should be
free from unneeded constraints and controls while managing and operating institutions. It allows
the people who created the institutions to could them into what they believe will best serve and
safeguard the interests of the community as a whole. They have the freedom to enjoy their
constitutionally guaranteed rights, to maintain their different cultures, languages, and religions, as
well as to educate their children in their own languages.

Hidayatullah C.J. noted in the Kerala Education Bill case that while Article 30 may be a broad
protection over different languages and scripts, it is also legitimate to establish educational
questions of choice in institutions managed by minority populations. Therefore, even if an
institution's principal goal is not to preserve minority culture, this Act nonetheless applies to
institutions run and formed by minority populations that also allow students from other
backgrounds.

Q5B) Article 51A of the Constitution of India talks puts forth some fundamental duties that
every citizen of India must fulfil. This includes respecting the ideals of the Indian Constitution, the
National Flag and the National Anthem. The National Anthem of a nation is to encourage the
feeling of unity and nationalism amongst the citizens of the country. It tells us about the struggles
of our freedom fighters, our rich history and culture, our victories and our aims of as a country. It
invokes a feeling of familiarity and patriotism in the hearts of the citizens of the nation. In many
ways, it is a part of our identity as being an INDIAN. Therefore, the makers of the constitution
decided to insert the fundamental duty of respecting our national anthem. This is reinforced
through Art-19(1)(A), which gives freedom to the individual to fly the national flag and sing the
national anthem.
It is to therefore note that, the constitution mandates the respect of the National Anthem and not the
singing of the same. In the given case, the aggrieved children were expelled from school on the
ground of not singing the national anthem. This draws parallels to the case of Bijoe Emmanuel vs
State of Kerala, in which three students of a public school were expelled on the grounds of not
singing the national anthem. On their part, they followed the ideology of Jehovah’s Witnesses, in
which the followers are not allowed to acknowledge any other higher power other than their own
God. In this land mark judgement Justice Reddy, O. Chinnappa held that not singing national
anthem doesn’t amount to disrespect of the National anthem and no one can be apprehended for not
singing the national anthem as “The Right to Remain Silent” is also a part of The Right to
freedom of Speech and Expression under Art 19.
In this case, after the plaintiffs appealed to the supreme court, the court held that the children were
not guilty of not singing the national anthem. This was primarily because of Art-19(1)(A), which
guarantees the right to speech and expression, as well as the Right to Silence, and Art-25(1) which
guarantees freedom of propagation and practice of religion, and therefore, the children had the right
to follow their religious ideals as well as stay silent. Moreover, the court stated that there is no
concrete court order or legislation that mandates singing the national anthem, and only mandates
respecting it. It stated that standing up or putting hand over your chest while singing the anthem
can be seen as a mark of respecting the anthem and therefore, the plaintiff is not liable for
disrespecting the anthem. The Court determined that the children's rights to freedom of expression
and religion were infringed by their removal from school based on the analysis above. As a result,
it overturned the High Court's decision and mandated that the State of Kerala readmit them to
school. "Our tradition teaches tolerance, our ideology preaches tolerance, our Constitution
practices tolerance; let us not diluted it," it said in its conclusion.

Q6B) The Fundamental Rights are enshrined in Part III of the Constitution starting from Article
12 to Article 35 and it is believed that the framers of the Constitution in this regard have rightly
derived their inspiration from the Constitution of the United States i.e. Bill of Rights. The rights
thereby enshrined in Part III of the Constitution encompasses in itself an elongated and
comprehensive list of Justiciable Fundamental Rights that can be enforced by the ordinary courts of
the country. These Fundamental Rights contained in Part III of our Constitution are much more
extensive and elaborative than any other country of the world even more elaborative from where it
has been borrowed (USA).
  Firstly, these rights are guaranteed and protected by the Constitution of the Country which
is the fundamental law of the land.
 Secondly, they become fundamental in the sense that they are most essential for the all-
round material, intellectual, moral, and spiritual development of an Individual.

The Directive Principles of State Policy or the DPSP are encompassed in Part IV of the
Constitution of India from Article 35-51. It is evident at this very stage, that the makers of the
Constitution of India in respect to Part IV have derived and borrowed the idea and the concept of
having the Directive Principles from Section 45 of the Irish Constitution of 1937 which in turn
have copied it from the Spanish Constitution. These Directive Principles of the State Policy or
“Novel Features” as termed by Dr. B.R. Ambedkar symbolizes and directs the state (As defined in
Article 12 of the Constitution) with ideals and recommendations that should be kept in mind while
framing policies and enacting laws. The Directive Principle of State Policy or DPSP as enumerated
in Part IV of the Constitution as discussed formerly in this article are the constitutional directives
or recommendations to the State as far as the cases of Legislative, administrative and executive
matters to keep in mind the ideals therein mentioned while formulating and enacting laws.

Interplay between Fundamental Rights and DPSP

The Directive principles and Fundamental rights are not now regarded as exclusionary of
each other. They are regarded as supplementary and complementary to each other. In course
of time, the judicial attitude has veered from irreconcilability to integration of the
fundamental rights and the directive principles. The directive principles which have been
declared to be “fundamental” in the governance of the country cannot be isolated from
fundamental rights. The directive principles have got to be read into the fundamental rights.
An example of such relationship is furnished by the “right to education”.

Initially, the courts adopted a strict and literal legal position in this respect. The Supreme
Court adopting the literal interpretative approach to Art. 37 ruled that a Directive Principle
could not override a Fundamental right, and that in case of conflict between the two, the
Fundamental right would prevail over the Directive Principle

This point was settled by the Supreme Court in State of Madras v. Champakam
Dorairajan, where governments order in conflict with Art. 29 (2), a fundamental right, was
declared invalid, although the government did argue that it was made in pursuance of Art 46,
a Directive Principle. The court ruled that while the Fundamental rights were enforceable,
the Directive Principles were not, and so the laws made to implement Directive Principles
could not take away Fundamental rights. The Directive Principles should conform, and run as
subsidiary, to the Fundamental rights. The Fundamental rights would be reduced to ‘a mere
rope of sand’ if they were to be override by the directive principles. The court observed in
this regard. Further the courts also adopted the view that in determining the scope and ambit of
Fundamental rights, the Directive Principles should not be completely ignored and that the courts
should adopt the principles of harmonious construction and attempt to give effect to
both as far as possible. For example, as early as 1958, in Kerala Education Bill, DAS,
C.J., while affirming the primacy of fundamental rights over the directive principles,
qualified the same by pleading for a harmonious interpretation of the two.

directive principles have been used to broaden, and to give depth to some fundamental rights and to
imply some more rights there from for the people over and above what are expressly stated in the
fundamental rights. That biggest beneficiary of this approach has been Art 21. By reading Art. 21
with the directive principles, the Supreme Court has derived there from a bundle of rights. To name
a few of these:
 The right to live with human dignity. The Supreme Court has stated in Bandhua
Mukti Morcha, that right to live with human dignity enshrined in Art. 21 derive its
life breath from the directive principles of state policy.
 Right to life includes the right to enjoy pollution free water and air and
Environment.
 Right to health and social justice has been held to be a fundamental right of the
workers. It is the obligation of the employer to protect the health and vigor of his
employee workers. The court has derived this right by reading Art. 21 with Arts
39(e), 41, 43 and 48A.

Judicial view and Doctrine of Harmonious Construction

The doctrine of Harmonious construction as a new technique of interpretation was inducted

and innovated by the Supreme Court in the case of Quareshi Mohd. v. State of Bihar
where the court stated that the Constitution has to be construed harmoniously, the Directive
Principles must be implemented in such a way that it does not take away or encroach upon
the fundamental rights of citizens. The courts should adopt the principles of harmonious
construction and attempt to give effect to both Part III and Part IV of the Constitution.

The Supreme Court then began to proclaim that there exists no conflict between the
Fundamental Rights and Directive Principles both stand supplementary and complementary
to each other. The above stand was taken by the Apex Court in the case of Chandra
Bhavan Boarding & Lodging V. State of Mysore. Since then, the Supreme Court of India
in the plethora of cases started to reiterate the point that the judicial attitude towards both
DPSPs and Fundamental Rights is co-equal.

The approach of our judicial system towards the Fundamental Rights and Directive Principles have
been an integrative one and time and again, the judiciary in its judgment has employed the principle
of Harmonious Construction.