Subject 1 Introduction To Indian Legal

BLE-001 Introduction to the Indian Legal System
BLOCK 1: RULE OF LAW: PRINCIPLES AND CONCERNS
UNIT 1 Rule of Law 5
UNIT 2 Constitutional Values 21
UNIT 3 Democracy 33
Block 2: RIGHTS AND DUTIES
UNIT 4 Fundamental Rights 5
UNIT 5 Directive Principles of State Policy and Fundamental Duties 26
UNIT 6 Constitutional Remedies 41
Block 3: INSTITUTIONAL MECHANISMS
UNIT 7 Legislature and Executive 5
UNIT 8 Justice Delivery System 23
UNIT 9 Human Rights Protection Mechanisms 38
BLOCK 4: ACCESS TO JUSTICE
UNIT 10 Legal Aid 5
UNIT 11 Public Interest Litigation 17
UNIT 12 Informal Dispute Resolution Mechanisms 30
UNIT 13 Right to Information 43

Indira Gandhi
National Open University BLE-001
School of Law
Introduction to the
Indian Legal System
Block
1
RULE OF LAW: PRINCIPLES AND CONCERNS
UNIT 1
Rule of Law 5
UNIT 2
Constitutional Values 21
UNIT 3
Democracy 33
Expert Committee
Prof. (Dr.) N.R. Madhava Menon Ms. Vrinda Grover
Member, Commission on Centre-State Director, Multiple Action Research
Relations, New Delhi Group (MARG), New Delhi
Former Director, NLSIU, Bangalore and
National Judicial Academy, Bhopal Ms. Abha Joshi
Lawyer, New Delhi
Prof. B.B. Pande
Former Professor of Criminal Law Dr. Manik Chakrabarty
Law Faculty, University of Delhi Professor, Department of Law
The University of Burdwan, West Bengal
Mr. Babu Mathew Prof. Srikrishna Deva Rao
Country Director Director, School of Law, IGNOU
Action Aid India
New Delhi Prof. K. Elumalai
Professor, School of Law, IGNOU
Prof. S. Siva Kumar
Ms. Gurmeet Kaur
Research Professor
Asst. Prof., School of Law, IGNOU
Indian Law Institute
New Delhi Ms. Suneet Kashyap
Prof. M. R. K. Prasad
V.M. Salgaocar College of Law Mr. Anand Gupta
Panaji, Goa Asst. Prof., School of Law, IGNOU
Ms. Mansi Sharma
Ms. M. Roopa Asst. Prof., School of Law, IGNOU
Independent Scholar, Bangalore
Block Preparation Team

Programme Coordinator : Prof. Srikrishna Deva Rao and Mr. Anand Gupta
Unit Writers : Units 1 and 2 : Prof. M.R.K. Prasad

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Material Production
Mr. Yashpal
Section Officer (Publication)
IGNOU, New Delhi
November, 2009
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BLE-001 INTRODUCTION TO THE INDIAN
LEGAL SYSTEM
We begin our exploration of our laws and the legal system with the first course –
“An Introduction to the Indian Legal System”. A legal system comprises of
laws which set out our rights, duties and remedies and also the institutional
mechanisms by which these laws can be implemented and enforced. These include
administrative machinery, the judiciary and the police. The Constitution of India
is the fundamental law of the land and the content and functioning of our legal
system is governed by our constitutional values.
The basic premise underlying a legal system is the belief in the ‘rule of law’. In
the first block, we will locate the concept of ‘rule of law’ within our constitutional
framework and explain it. We will read about the values enshrined in our
constitution that inform our legal system. We will impart a working knowledge
of how we are governed and the role of citizens in democratic governance under
rule of law.
Our constitution guarantees us certain rights, but at the same time also imposes
some duties on us. This will form the subject matter of our second block. The
makers of our constitution have given us certain fundamental rights to enable us
to live a life of dignity, without any fear, and to realise our full potential. While
guaranteeing civil and political rights, the constitution provides a roadmap for
the state in the form of directive principles of state policy, for the progressive
realisation of social and economic rights. An activist judiciary, however, has
been interpreting the right to life, an omnibus fundamental right, to include rights,
such as, right to health and right to a clean environment.
In the third block, we will introduce you to institutions that have a mandate to
make, implement and enforce laws. Separation of power implies power sharing
between the different organs of the State, such that no one organ becomes all-
powerful. Our constitution sets out in detail the institutional arrangement for
this power sharing. The bulk of the Articles in the Constitution provide for various
institutions, such as, legislature, executive, judiciary, local governments, Election
Commission, Attorney General, and Comptroller and Auditor General. All these
institutions collectively provide the checks and balances so essential for the
success of our democracy.
Lack of access to the legal system undermines the citizen’s faith in the rule of
law and affects the credibility of our legal structures to deliver justice. This concern
has prompted many efforts by both state and civil society. In the fourth block, we
discuss some select experiences and innovations to facilitate access to justice.
Are we truly an inclusive society, where socio-economic status does not dictate
the extent of rights enjoyed by an individual? Is our system of governance people-
centric, transparent and accountable? As we proceed with this course, we want
you to approach it with a spirit of inquiry, with the Preamble to our Constitution
providing the point of reference.
Get yourself a copy of the Constitution and let us get started.

Rule of Law: Principles and
Concerns BLOCK 1 RULE OF LAW: PRINCIPLES
AND CONCERNS
The Constitution provides a dynamic value system, which is subjected to constant
interpretation and amendments. This block provides an overview of, and the
rationale for the constitutional system that we have adopted. It introduces the
values enshrined in our Constitution and the institutional mechanics for realising
these values. We will impart a working knowledge of how we are governed and
our role as citizens in democratic governance under rule of law.
A legal system comprises of laws setting out rights, duties, remedies and the
institutional mechanisms for enforcement of these laws, such as, administrative
machinery, judiciary, police and prisons. The basic premise underlying a legal
system is the belief in the ‘rule of law’. We will explore the concept of ‘rule of
law’ in the first unit. We will identify the requirements of this concept, its
application in our country, and the debates surrounding the concept.
The concept of rule of law needs to be understood in the Indian context and in
the light of our constitutional values. We will take you through the values
enshrined in our constitution in the second unit on ‘Constitutional Values’.
Our greatest strength is our democratic system. In the third unit, we will define
democracy and describe the democratic process in our country, including the
conduct of elections. We will see what democracy means for an ordinary citizen.
4
Rule of Law
UNIT 1 RULE OF LAW
Structure
1.1 Introduction
1.2 Objectives
1.3 Dicey’s Thesis on Rule of Law
1.3.1 Absence of Arbitrary Power
1.3.2 Equality before the Law
1.3.3 Supremacy of Law
1.4 Rule of Law in India
1.4.1 Rule of Law and the Constitution of India
1.4.2 Rule of Law and Administrative Law in India
1.5 The Wider Meaning of Rule of Law
1.6 Concerns
1.7 Summary
1.8 Terminal Questions
1.9 Answers and Hints
1.10 Glossary
1.11 References and Suggested Readings
1.1 INTRODUCTION
Do you believe that the law should protect everyone equally and punish the
wrongdoer, irrespective of his/her caste, race, religion, and status? Or should
there be different laws and procedures to govern different persons? These are a
few questions that might arise when you study any legal system. Learning the
concept of ‘Rule of Law’ enables you to address these questions in a positive
frame of mind.
Every country has a set of legal rules that apply to all citizens or a distinct set of
people. The fundamental principle of a democratic nation is that no one is above
the law, which is also known as Rule of Law. Rule of Law makes everyone
subordinate to the law, irrespective of his/her status in the society. Under Rule of
Law, the law does not recognize the status of a person for both protecting rights
and punishing for violations.
Therefore, Rule of Law is a fundamental value on which rests any democratic

political system. Rule of Law refers to a government subject to the law and a
system in which the law will prevail over the whims of government officials.
The officers of the Government are as equal before the law as any ordinary citizen.
It denotes equality before the law and absence of arbitrary powers with government
officials. Accordingly, no bureaucrat or minister, not even the King is above the
law. Every person, no matter what position she/he holds or what powers she/he
otherwise exercises, is equal before the law.
5
Rule of Law: Principles and The term ‘Rule of Law’ is derived from the French phrase la principe de legalite
Concerns
(the principle of legality), which refers to a government based on principles of
law and not of men. Thus, Rule of Law not only advocates equality in protection
and punishment, it also means absence of arbitrary exercise of power by
government.
Rule of Law subjects every governmental action to the test of legality. That is,
all official action should be legal. For instance, if a minister gives an arbitrary
order, it will be against Rule of Law and the Courts can quash such an order. The
minister, as in this example, will not be allowed to keep himself/herself above
the law and he/she will not be given any immunity as far as an illegal action is
concerned. Therefore, Rule of Law is a key index that determines the quality of
good governance in a country.
In this Unit, we will discuss the concept of Rule of Law and its principles, and
how it has been imbibed in the Indian Constitution and the legal system. We will
also explore the challenges faced by our nation in implementing Rule of Law.
1.2 OBJECTIVES
After reading this unit, you should be able to:
explain the concept of Rule of Law;
state the principles of Rule of Law;
explain the necessity and efficacy of Rule of Law;
demonstrate how Rule of Law has been imbibed in the Indian legal system;
and
identify the challenges in implementing Rule of Law in the present-day
context.
1.3 DICEY’S THESIS ON RULE OF LAW

The concept of Rule of Law is of old origin. Edward Coke is said to be the
originator of this concept, when he said that the King must be under God and
Law. This was against the age-old belief that the ‘King can do no wrong’ and
that the King makes the law and therefore is above the law. In India, the concept
can be traced to the Upanishads, which provide that “Law is the King of Kings.
It is more powerful than they (Kings). There is nothing higher than law.”
Professor A.V. Dicey developed this concept in the course of time and expounded
the concept of Rule of Law in his treatise, Law of the Constitution.
As per A.V. Dicey, the Rule of Law is based on three principles depicted in the
following figure:
Rule of Law
Absence of Arbitrary Equality before Law Predominance of Legal

Power Spirit/Judicial Review
6
1.3.1 Absence of Arbitrary Power Rule of Law
It is not possible for any government to function effectively unless government

officers are allowed to exercise discretionary power. ‘Discretionary power’ means
the power to act in the way the officer deems fit, which may result in the abuse of
power by administrative officers.
When Professor Dicey formulated the concept of Rule of Law, he was very well
aware of the harm that might result from the use of power by State officials.
Therefore, he advocated that arbitrary power shall not be conferred on any officer.
Arbitrariness denotes unreasonableness and is against all norms of law and justice.
The officers have to carry out the law made by Parliament and should not exercise
any more power.
Main features
No person could be punished or made to suffer in body or property except
for breach of law.
The State cannot punish any person except for violation of law.
Any wide discretionary power or arbitrary power vested in the State violates
Rule of Law.
In the most fundamental sense, this principle attempts to protect the citizens
from arbitrary and abusive use of government’s power.
The authorities who are empowered to act must do so in accordance with
the law.
For example, if a Transport Director is given uncontrolled discretionary power
to allow or refuse or cancel permits for running public transport buses, his power
may result in arbitrary cancellation as well as allotment of bus permits. He may
act as per his whims and interests, in any unreasonable or arbitrary way. So
Dicey suggested that the officers are not to be given any power that would lead
them to act arbitrarily. According to Dicey, wherever there was discretion, there
was room for arbitrariness.
Rule of Law is against any form of arbitrary action on the part of the government.
Any unreasonable or arbitrary action is considered to be illegal. Therefore it can
be nullified by a court of law.
Activity
Analyse the governmental action in the following instances and identify the
presence of arbitrary power, if any.
Government issues an order for acquisition of private property after paying
reasonable compensation to the property owners. The purpose for acquisition
is not mentioned in the order. The line of shops on one side of the Market
Road is accordingly ordered to be vacated within 15 days. The shopkeepers
are not given any chance to present their objection to the said order.
The Government notifies to withdraw the recognition of all primary
schools, which do not comply with the safety requirements, as specified
in a law passed by the Goa Legislature. The school authorities are given 6
months’ time to adapt to the requirements.
The Minister of Petroleum is given the power to allot petrol pump outlets
as he thinks fit. He makes all the allotments to his near friends and relatives.
7
Rule of Law: Principles and In the first illustration, the order is arbitrary and against Rule of Law because the
Concerns
government is exercising uncontrolled power. The shopkeepers are not even
allowed to voice their claims. In the second illustration, Government is merely
implementing the requirements as mentioned in the law made by the Legislature.
In the third illustration, the minister’s action is totally arbitrary and violates Rule
of Law.
Thus we can see that the principle underlying Rule of Law is that the government
(executive) must act under the law, and not by its own whims and fancies. The
Executive does not have and cannot have any power of its own. Whatever power
it exercises are given to it by a law made by the Legislature.
Self-assessment Questions
1) What is the meaning of ‘arbitrariness’?
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2) How does Rule of Law control arbitrariness?
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1.3.2 Equality before the Law

Rule of Law not only means that no person is above the law, but also that everyone,
irrespective of his/her rank or status, is subject to the ordinary law and to the
jurisdiction of ordinary court. It means universal subjection of all classes to one
law administered by ordinary court. ‘Universal subjection’ means that every
person from Prime Minister to clerk is under the same responsibility and liability
for violation of law. Every person is subjected to one and the same body of law.
In any polity, disputes may arise between individuals and also between individuals
and the government. According to A.V. Dicey, equality before law denotes
application of the same system of law and procedure to all such disputes,
irrespective of whether government is a party or not. Different laws and different
procedure to deal with disputes wherein government is a party violates Rule of
Law. Any such attempt would amount to protecting government officials.
Therefore, the legality of the acts of the government should be decided by the
same courts that are independent of the Executive.
8
Rule of Law
Main features
All are equal before the law.
Every person is liable for breach of law, irrespective of his/her status.
No special treatment or privileges for government officials.
Government officials are liable for breach of law, just like any ordinary
citizen.
No separate courts to deal with disputes between government and citizens.
All disputes are subjected to the jurisdiction of the same courts.
Courts must be independent of the Executive.
Illustrations
1) An university makes a rule allowing only persons working in the Government
sector to take admission in evening college. This would be violative of
equality before law as it discriminates between government servants and
non-government servants.
2) Government announces a policy to give preference to less educated persons
over more educated ones in the matter of appointing dealers for ration shops.
Thereafter, appointments are made exclusively on the basis of interview.
This policy violates the principle of equality before law, as the less educated
are given special treatment over those who are more educated.
3) Parliament passes a law stating that only graduates shall have the right to
vote for the Lok Sabha Elections. Such a law would be violative of equality
before law because a valuable right of the citizen is denied on the ground of
lack of educational qualification. Here, graduates and the undergraduates
are treated differently by the law. Such a differential treatment is against the
concept of treating everyone equally before the law.
3) What does the phrase “Equality before law” signify?
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1.3.3 Supremacy of Law

The general principles of British Constitutional law, which is unwritten, are
developed by the decisions of courts, especially individual rights. As these rights
are recognised by the courts and subsequently got Constitutional status, Dicey
viewed them as supreme and having higher protection from violation. He
described it as predominance of the legal spirit. The first two principles of rule
9
Rule of Law: Principles and of law become meaningless when they cannot be secured by courts. Therefore,
Concerns
the essence of the third principle is that the citizens should be able to enforce the
rights that are recognised and the courts must be sufficiently empowered for that
purpose.
Dicey opined that mere recognition of these rights by a written constitution would
not automatically promote Rule of Law as many written constitutions in the
world also enumerate exceptions wherein these rights cannot be enforced. Further,
the constitutions may also make it permissible for Parliament to amend these
rights. For example, Articles 358 and 359 of the Indian Constitution permit the
President of India to suspend certain Fundamental Rights during a national
emergency. Article 368 empowers Parliament to amend the constitution. Further,
to promote the supremacy of law, a system of strong, independent and impartial
courts is mandatory.
Main Features
Mere enumeration of rights is not sufficient.
Recognised rights should have proper remedies for violation.
Rights should be enforceable in Court.
Courts should have the power of judicial review.
Courts need to be empowered to protect the rights of the citizens.
4) What is the essence of the principle ‘Supremacy of Law’?
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5) Will a written Constitution automatically promote Rule of Law?
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6) Name the three principles on which the Rule of Law is based?
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10
Rule of Law
1.4 RULE OF LAW IN INDIA
1.4.1 Rule of Law and the Constitution of India
A state is generally viewed as just an independent political entity. In this narrow
view, the functions of the state are restricted to maintenance of law and order
and protection of the nation from external invasion. However, a modern state
has become more complex and carries out a wide range of functions. For example,
Government controls the economic, social and political relations of citizens.
Government carries out its activities through basic organs such as the Legislature,
Executive and Judiciary. These organs are governed by a fundamental law called
Constitutional law. Constitutional law being the fundamental and the highest
law of the land, all other laws in the nation need to be consistent with the
philosophy of the Constitution. Moreover, the three organs of the government
having been created by the Constitution are also subject to it. Therefore,
recognition of Rule of Law by the Constitution would automatically ensure Rule
of Law in the nation.
Rule of Law is amply imbibed in the Constitution of India. It runs as a golden
thread through the fabric of Indian Constitution. Several provisions in the Indian
Constitution apparently promote the idea of Rule of Law.
Absence of arbitrary power, the first principle of Rule of Law, can be traced
from the following provisions of the Constitution of India:
1) Right to Equality under Article 14 of the Indian Constitution includes right
against arbitrary use of power by the government. Supreme Court in E.P.
Royappa v State of Tamil Nadu (AIR 1974 SC 555) and Maneka Gandhi v
Union of India (AIR 1978 SC 597) held that Article 14 embodies a guarantee
against arbitrariness. Equality is antithetical to arbitrariness and any
government action that is unreasonable or arbitrary denies equality, and is
void. Article 14 not only strikes at arbitrariness in executive or administrative
action but also legislative action. Therefore, Article 14 imposes an obligation
on the government to act in a just, fair and reasonable manner.
2) Right to life and personal liberty under Article 21 requires the government
to act justly, fairly and reasonably in matters of life and liberty.
3) Article 245 read with Seventh Schedule of the Indian Constitution deals
with distribution of legislative power between Centre and State. This
Constitutional scheme prescribes three lists such as Central List, State list,
and Concurrent list. Under this scheme, Central Government can pass law
only on subjects mentioned in Central list, State government can pass law
only on State list and both Centre and State governments can pass a law on
the Concurrent list.
Equality before law, the second principle of Rule of Law, can be traced from
the following provisions of the Constitution of India.
1) The Preamble of the Constitution of India intended to secure equality of
status and opportunity.
2) Articles 14 to 18 in Part III of the Indian Constitution guarantee the
fundamental right of equality. Article 14 provides for equality in general
and states that every person is equal before the law and State shall provide 11
Rule of Law: Principles and equal protection to all persons. Article 15 prohibits the State from
Concerns
discriminating against its citizens on grounds of race, religion, caste, sex,
and place of birth. Article 16 guarantees all citizens equality of opportunity.
Article 17 prohibits the practice of untouchability whereas Article18 prohibits
titles.
3) In several cases the Supreme Court held that Right to Equality is a Basic
Structure of the Constitution and could not be abridged or amended. Even
though Article 14 confers equality as a Fundamental Right, it does not mean
absolute equality. Equality means equality among equals and like must be
treated alike.
4) Therefore, special treatment for different people is not a violation of Article
14. For example, reservations for backward classes, different tax slabs on
the basis of income is not against equality. Similarly, different courts to deal
with different cases do not violate equality as the special courts are also
under the supervisory jurisdiction of the ordinary courts.
Supremacy of the law, the third principle of Rule of Law, is well recognised by
the Indian Constitution under Articles 13, 32, and 226.
1) Article 13 expressly provides for judicial review over the legislations passed
by the legislature. Under this Article, no law, made before or after the
enactment of our Constitution, should violate Part III of the Constitution.
Any such law would be void. This protection was extended even to the
rules, regulation, executive orders and customs having force of law.
2) Article 32 confers writ jurisdiction on the Supreme Court under which the
court has power to issue any order or grant any relief for violation of
Fundamental Rights. This jurisdiction of the Supreme Court cannot be
restricted, except according to the provisions of the Constitution. Right to
approach the Supreme Court under Article 32 itself is a Fundamental Right.
3) Article 226 confers similar jurisdiction on High Courts. High Courts can
exercise writ jurisdiction.
Any law restricting the jurisdiction of the court under Articles 32 and 226 would
be null and void.
Self-assessment Question
7) How has supremacy of the judiciary in ensuring Rule of Law been enforced
in the Indian Constitution?
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1.4.2 Rule of Law and Administrative Law in India Rule of Law
In a welfare state, the Government has countless functions to perform. To mention

a few, it has to take care of law and order, protect the country from external
aggression, provide welfare services like healthcare, education and housing
schemes, provide public utility services like water supply and electric supply. It
also has to control the market to ensure quality of goods and make available
essential commodities at a fair price. There is, in fact, no end to the list of
governmental functions. To perform this huge task, the government confers
powers on its officers and imposes duties on them.
The chances of corruption and abuse of power are more when more powers are
given to the officers. Administrative Law is a branch of law that helps to control
governmental exercise of power. Administrative Law deals with the powers and
functions of Government officials, and control mechanisms over their use of
power. Therefore, we can see that the focus of Rule of Law and Administrative
Law is one and the same. Both aim at control of power and prevent arbitrary use
of power by officials.
However, it is noteworthy to mention here that when Dicey formulated his Rule
of Law, he thought that Administrative Law was against Rule of Law. Let us see
this conclusion drawn by Dicey in the form of a logical premise
Statement 1: Administrative law deals with giving of powers, that too

discretionary power, to officers.
Statement 2: Wherever there is discretion, there is scope for arbitrariness.
Statement 3: Rule of law is against arbitrariness.
Inference (Dicey’s): Administrative Law is opposed to Rule of Law.
This inference has been proved to be wrong because Administrative Law deals
not only with conferring of powers on the officers, but also focuses on controlling
the powers of the government. It is Administrative Law that makes it possible
for the Courts to strike down any arbitrary exercise of power by the Government.
Moreover, as Dicey thought, absence of arbitrary power need not necessarily

mean absence of discretionary power for the reason that a welfare state can
function effectively only if such powers are given to the executive officers. In
reality, Administrative Law does not infringe upon Rule of Law. On the contrary,
Administrative Law, being a system of control of administrative power, promotes
and strengthens Rule of Law.
As discussed, the scheme of the Constitution of India is based on the concept of

Rule of Law, wherein any authority is under the supremacy of law. Rule of Law
requires that any abuse of power by a public officer should be subject to control
of courts. The Supreme Court of India and the various High Courts are authorised
by the Constitution of India to strike down any arbitrary action on the part of the
Government.
The concept of Rule of Law is often invoked to challenge unreasonable

governmental action. The whole idea is that Administration cannot exercise
arbitrary powers and that it should function in accordance with the law. The
13
Rule of Law: Principles and obligation to act fairly on the part of administrative authorities was evolved by
Concerns
the Courts to ensure Rule of Law and to prevent failure of justice. It is a
fundamental norm of Rule of Law that every governmental action shall be fair.
Any action that is unfair tends to be arbitrary and the first principle of Rule of
Law, as we have already seen, is absence of arbitrariness. To ensure fairness in
governmental action, Courts have developed the principles of natural justice.
There are two main principles of Natural Justice, namely:
1) Rule against Bias
2) Audi Alteram Partem or Rule of Fair Hearing
‘Rule against Bias ‘means that no one shall be a judge in her/his own cause. This
aims at settlement of disputes by an impartial judge. It also means that any
governmental authority exercising a decision-making function should be impartial
and should not have any interest in the subject matter of the dispute; also s/he
should not be partial towards any party to the dispute. For example, if a member
of an ‘Interview-cum-Selection Committee’ is also a candidate, it would amount
to bias and therefore a violation of Natural Justice and Rule of Law
‘Audi Alteram Partem’ means ‘hear the other party’. That is, the judge shall not
decide a matter unless both the parties are given an opportunity to present their
case. Similarly, when any administrative authority is taking an action which affects
the rights and liabilities of a person, Natural Justice demands that the person
should be given a right to be heard. For example, if a government employee is
dismissed from service, s/he should be given an opportunity of being heard before
the dismissal order is passed. If such a chance was not given to the employee, the
dismissal order would be violative of Natural Justice and therefore against Rule
of Law.
Further, Rule of Law would be strengthened if the Executive were to be required

to formulate its reasons when reaching its decisions, and to communicate them
to the concerned party.
The Supreme Court of India has held in Maneka Gandhi v Union of India (AIR
1978 SC 597) and more clearly in Tulsiram Patel v Union of India (AIR 1985
SC 1416) that non-observance of the principles of natural justice in State action
is violative of Rule of Law.
Thus, the principles of Natural Justice aim at promoting fair governance, which
is the main concern of Rule of Law and of Administrative Law.
Thus, Indian Administrative Law has benefited from Rule of Law by way of
establishing judicial review of administrative action to ensure that administration
acts in accordance with law.
8) What are the two main principles of Natural Justice?
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14
Rule of Law
1.5 THE WIDER MEANING OF RULE OF LAW
Rule of Law can be understood and applied in two senses, i.e.
1) Formalistic/Narrow sense
2) Ideological /Wider sense.
In the formalistic sense, Rule of Law merely means that the government should
be subject to law, so that law will prevail and not government officials. Usually
Rule of Law is defined and understood to be a formalistic application of the
principle of equality, adequate control over governmental power and supremacy
of the Judiciary. However, in developing and under-developed countries, Rule
of Law means much more than these. Improving the quality of life and ensuring
safe and healthy living conditions all go towards securing a just democratic order.
Hence, the wider meaning of Rule of Law assumes significance.
In its ideological sense, Rule of Law represents an ethical code for the exercise
of governmental power. Such an ethical code would necessarily contain within
it accountability and respect for human rights. The holders of public power should
be made accountable for the exercise of their power. A government that fails to
respect and promote human rights would invariably be deviating from the concept
of Rule of Law.
The modern concept of Rule of Law was developed by the International
Commission of Jurists (ICJ). According to this formulation, the Rule of Law is a
dynamic concept and implies the following principles.
The individual is possessed of certain rights and freedoms and that she/
he is entitled to protection of these rights and freedoms by the State.
There is an absolute need for an independent judiciary for ensuring effective
machinery for the protection of fundamental rights and freedoms.
Equal access to justice: The primary obligation of the legal profession is to
use its best efforts to ensure that adequate legal advice and representation
are provided. This would include extending free legal aid to the poor.
The establishment of social, economic and cultural conditions would
permit all individuals to live in dignity and to fulfill their legitimate
aspirations. This would include recognition of civil and political rights as
well as the establishment of the social, economic, educational and cultural
conditions, which are essential for the full development of the individual’s
personality.
The modern concept of Rule of Law is especially important in Third World
countries, where, in reality, the principles of Rule of Law (Absence of arbitrariness,
Equality before law and Predominance of the legal spirit) will prevail only if the
government creates socio-economic and politico-cultural conditions in which
the dignity of individuals can be realised.
9) What is the modern concept of Rule of Law?
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15
Concerns 10) Explain how this modern view would be relevant for the Third World
countries?
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1.6 CONCERNS
Strict implementation of Rule of Law in a legal system like India poses several
serious challenges. The socio-economic and political conditions in India raise
many concerns on effective implementation of Rule of Law. Some of the concerns/
challenges are listed below. However, this list is not exhaustve.
1) Poverty: Offering special treatment by way of reservations may per se appear
to be a violation of Rule of Law. However, several decades of exploitation
and uneven distribution of wealth in India has resulted in rendering certain
sections of the people backward.
2) Fundamentalism and communalism: Religious intolerance, particularly
against minorities would seriously undermine the role of rule of law. Further,
this situation becomes even more complex due to special protection conferred
on minorities by the constitution.
3) Regionalism: Raise of regionalism endangers the unity of the nation. Demand
for special treatment on the basis of demographical area severely weakens
the rule of law.
4) Terrorism: Terrorism and terrorist attacks on the public life demands stringent
laws. Laws enacted to counter terrorism, particularly preventive detention
laws, would confer a lot of discretion on law-enforcement agencies. This
discretionary power might result in arbitrariness, and hence violates Rule
of Law.
5) State violence: Violation of law by law-enforcing agencies like the police
and armed forces, particularly in cases of arrest and detention, would have
a severe impact on Rule of Law. This is more so as the government may not
be interested in punishing these agencies as they form part of government
machinary and to uphold the law and order.
1.7 SUMMARY
Let us sum up what we have studied in this unit:
We discussed the concept of rule of law and how important it is in making
democracy meaningful. We also learned the three principles of Rule of law
as formulated by A.V. Dicey.
16
We further discussed the adoption of Rule of Law in India. Under this section, Rule of Law
we analysed how rule of law was imbibed in the Constitution of India.
Further, we also learned various provisions under the Indian Constitution
dealing with Rule of Law.
We saw how Rule of Law, though viewed as an objection to administrative
law, actually strengthened the administrative law. We also understood how
the principle of natural justice promotes Rule of Law in administrative law.
We then examined how the scope of Rule of Law widened, particularly in
the Third World context.
We also discussed the concerns and challenges that lie ahead for effective
implementation of Rule of Law.
1.8 TERMINAL QUESTIONS

1) Discuss the meaning of Rule of Law. Examine various principles of Rule of
Law as laid down by A.V. Dicey.
2) Does the Indian Constitution follow Rule of Law?
3) Is Rule of Law against administrative law? How far has Rule of Law
strengthened administrative law in India?
1.9 ANSWERS AND HINTS

1) Arbitrariness denotes unreasonableness and is against all norms of law and
justice. It means abuse of power by government officials.
2) Rule of Law is against any form of arbitrary action on the part of the
government. Any unreasonable or arbitrary action is considered to be illegal.
Therefore it can be nullified by a court of law. The principle underlying
Rule of Law is that the government (executive) must act under the law, and
not by its own likes and fancies. The Executive does not have and cannot
have any power of its own. Whatever power it exercises are given to it by a
law made by the Legislature, which is subject to judicial review.
3) ‘Equality before law’ signifies that no person is above the law and everyone
despite his/her rank or status is subject to the ordinary law and jurisdiction
of ordinary court. It means universal subjection of all classes to one law
administered by ordinary court. ‘Universal subjection’ means that every
person from Prime Minister to clerk is under the same responsibility and
liability for violation of law. Every person is subjected to one and the same
body of law.
4) The essence of the principle of supremacy of law is that the citizens should
be able to enforce the rights that are recognised and the courts must be
sufficiently empowered for that purpose.
5) Dicey opined that mere recognition of these rights by a written constitution
would not automatically promote Rule of Law as many written constitutions
in the world also enumerate exceptions wherein these rights cannot be
enforced. Further, the constitutions may also make it permissible for
Parliament to amend these rights. 17
Rule of Law: Principles and 6) The three principles on which the Rule of Law is based are:
Concerns
1) Absence of Arbitrary power
2) Equality before law
3) Predominance of legal spirit/ Judicial Review
7) Judicial review has been provided for in the Indian Constitution in Act.13,
32 and 226. Legislations passed by the legislature cannot violate Part III of
the constitution or else they can be declared null and void by the court. Also
a person can approach the Supreme Court & High Courts under Articles 32
& 226 respectively if his/her fundamental rights are violated.
8) The two main principles of natural justice are:
1) Rule against Bias: It means no one shall be a judge in her/his own cause.
2) Audi Alteram Partem: It means that the judge shall not decide a matter
unless both parties are given an opportunity to present their case.
9) The modern concept of Rule of Law was developed by the International
Commission of Jurists. According to this formulation, the Rule of Law is a
dynamic concept and implies the following principles.
The individual is possessed of certain rights and freedoms and that
she/he is entitled to protection of these rights and freedoms by the State.
There is an absolute need for an independent judiciary for ensuring
effective machinery for the protection of fundamental rights and
freedoms.
Equal access to justice: The primary obligation of the legal profession
is to use its best efforts to ensure that adequate legal advice and
representation are provided. This would include extending free legal aid
to the poor.
The establishment of social, economic and cultural conditions would
permit all individuals to live in dignity and to fulfill their legitimate
aspirations.
10) The modern concept of Rule of Law is especially important in Third World
countries, where, in reality, the principles of Rule of Law (Absence of
arbitrariness, Equality before law and Predominance of the legal spirit) will
prevail only if the government creates socio-economic and politico-cultural
conditions in which the dignity of individuals can be realised.
Terminal Questions
1) Rule of Law means that the government and the citizens are equally subject
to the same law. It implies absence of special privileges and immunities on
the government. The three principles of Rule of Law are: Absence of
Arbitrary Power, Equality before Law and Predominance of the Legal Spirit.
2) The Indian Constitution has adopted the concept of Rule of Law. Article 14
of the Constitution prohibits the State from denying to any person equality
before law and equal protection of the laws within the territory of India.
Articles 19 and 21, read with Article 14 envisage absence of arbitrariness in
18
governmental functions. Predominance of the legal spirit is made possible Rule of Law
by virtue of the power given to the Supreme Court and the High Courts to
strike down arbitrary and unconstitutional action by the Legislature and
Executive.
3) Dicey had projected Administrative Law as being opposed to Rule of Law,
because he thought that giving of discretionary power to government officials
would lead to arbitrariness. However, Administrative Law deals not only
with conferring powers on the government officials, but also prescribes
limitations on the governmental powers. It also provides remedies to the
citizens against unwarranted and arbitrary state action.
1.10 GLOSSARY
Rule of Law : A system in which the law will prevail over the
whims of government officials.
Discretionary power : The power to act in the way the officer deems fit.
Equality before the Law: Universal subjection of all classes to one law
administered by the courts.
Supremacy of Law : A legal system wherein the citizens are able to
enforce their rights and the courts are empowered
and independent, for that purpose.
Constitutional Law : Fundamental law governing the functioning of the
State.
Right of equality : Fundamental rights guaranteed by Articles 14 to
18 in Part III of the Indian Constitution
Judicial review : The power, provided under Article 13, of the
Supreme Court and High Courts to review the
constitutionality of legislations and executive
actions.
Writ jurisdiction : Article 32 confers writ jurisdiction on the Supreme
Court under which the court has power to issue
any order or grant any relief for violation of
Fundamental Rights
Administrative Law : Deals with the powers and funct ions of
government officials and control mechanisms over
their use of power
Rule against Bias : No one shall be a judge in her/his own cause and
aims at settlement of disputes by an impartial
judge; also means that any governmental authority
exercising a decision-making function should be
impartial and should not have any interest in the
subject matter of the dispute.
Audi Alteram Partem : Literally means ‘hear the other party’; the judge
shall not decide a matter unless both the parties
are given an opportunity to present their case.
19
Rule of Law: Principles and Modern concept of : Concept developed by the International Commission
Concerns
Rule of Law of Jurists, wherein, the individual is possessed of
certain rights and freedoms, t here is an
independent judiciary, there is equal access to
justice, and the establishment of social, economic
and cultural conditions would permit all
individuals to live in dignity.
1.11 REFERENCES AND SUGGESTED READINGS

A.V.Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis:
Liberty Fund, 1982).
M.P.Jain and S.N.Jain, Principles of Administrative Law (Lucknow: Eastern Book

Company, 5th ed. 2008).
I.P. Massey, Administrative Law (Lucknow: Eastern Book Company, 7th ed.
2008).
20
Constitutional Values
UNIT 2 CONSTITUTIONAL VALUES
Structure
2.1 Introduction
2.2 Objectives
2.3 Meaning of Constitution
2.4 Constitutional Values
2.4.1 Sovereignty of the People
2.4.2 Separation of Powers
2.4.3 Democracy
2.4.4 Constitutionalism
2.4.5 Republic
2.4.6 Socialist
2.4.7 Secular
2.4.8 Justice, Liberty, Equality and Fraternity
2.4.9 Federalism
2.4.10 Independent Judiciary
2.4.11 Fundamental Rights
2.4.12 Directive Principles of State Policy
2.5 Summary
2.8 Glossary
2.1 INTRODUCTION
The legal system of any country can be divided into laws governing the State
and laws by which the State governs its citizens. Constitution falls in the category
of the laws that govern the State. Since the Constitution governs the State and
also confers powers on the State, any law made by the State to govern its citizens
should be consistent with the values set out in the Constitution. Thus, the type
of legal system adopted by a State depends on the values and principles contained
in its Constitution..
The Constitution defines the structure, composition and powers of the basic organs
of the government of a country. The constitutional values determine the
relationship of these governmental organs with its citizens. They define the rights
of the citizens and vest obligations on the State to promote and protect those
rights. They also define the legislative (law-making) powers of the State.
2.2 OBJECTIVES
explain the meaning of ‘Constitution’;
explain the need, necessity and importance of a Constitution; 21
Rule of Law: Principles and describe the nature of the Indian Constitution; and
Concerns
identify the values in the Indian Constitution.
2.3 MEANING OF CONSTITUTION

According to HM Seervai, a ‘Constitution’ is a document that has a special legal
sanctity and sets out the framework and the principal functions of the organs of
the government or State. It also establishes principles that should govern the
operation of those organs in terms of the powers, functions and composition of
such organs. The constitution also regulates the relationship of these organs with
the people.
At this juncture we need to understand that the constitution generally contains
basic principles and not all the rules governing those organs. One way of viewing
a constitution is that it forms a skeletal framework for governance. In the same
manner that the human skeleton is the basic structure on which our bodies are
framed, a Constitution is the skeleton of a State on which all other laws, rules
and regulations must rest. Any law, rule or regulation framed by a government
that goes outside the framework is against the Constitution.
A modern state consists of three basic organs, namely, the Legislature, the
Executive, and the Judiciary. The Legislature makes laws. The Executive
implements the laws framed by the Legislature. The Judiciary interprets these
laws. Hence, in every modern country, the constitution deals with the powers,
functions, structure and limitations of these organs of the State.
Constitution
Legislature Executive Judiciary
Citizens
1) What is the role of a Constitution?
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22
2) Why must a citizen be aware of the Constitution and the values enshrined
in it?
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2.4 CONSTITUTIONAL VALUES

The Indian Constitution came into force on 26th January 1950. Before the
commencement of the Constitution, India was governed by the Government of
India Act, 1935. A Constituent Assembly was set up in 1946 to draft the Indian
Constitution. The Constituent Assembly adopted the Constitution of India on
November 26, 1949. The provisions of the Constitution were drafted after taking
into consideration the working of several constitutions in the world. The study
of different constitutions across the world and their working enriched the
experience and understanding of the constitution framers. As a result, India today
has a unique, elaborate and a modern Constitution. The rich cultural heritage,
diversity of languages and religion, and the problems of partition in our country
also immensely influenced the framers of the constitution on the constitutional
values that need to be adopted. Let us now briefly analyse those constitutional
values.
2.4.1 Sovereignty of the People

The Constitution grants powers to the government and sets rules for the
government to follow while using such powers. Though the Constitution provides
power to the government, it receives this authority to confer such powers from
the people. People are the source of the Constitution and the Constitution
emanates from them. Therefore, the ultimate source of validity and legitimacy
to the Constitution are the people.
The Preamble of the Constitution of India states: “We the people of India …do
hereby adopt, enact and give to ourselves this Constitution”. Therefore it is evident
that the people are sovereign and they hold the ultimate power. People rule
themselves through elected representatives who are bound by the constitution
created by the people. Thus, in India all the powers lie with the people. The
government can only govern the citizens in accordance with the power given by
the people through the Constitution. If the government abuses the power given
by the people, they have a right to overthrow the government, but only legal
means.
2.4.2 Separation of Powers

It is an old saying that “Power corrupts and absolute power corrupts absolutely”.
Concentration of power in one organ of the government would result in
23
Rule of Law: Principles and dictatorship. Therefore, one of the fundamental constitutional values is separation
Concerns
of powers amongst the three organs of the government. The Indian Constitution
divides the duties of government among its three branches. As stated earlier, the
Legislature is empowered to make law, the Executive implements the law and
the Judiciary interprets the law. In theory, each organ is independent and cannot
interfere with another. However, in a welfare state such as India, a strict adherence
to separation of powers is not possible and is also not advisable. Even though
the Constitution of India divided the powers amongst the Legislature, Executive,
and Judiciary; each of these organs, are empowered to exercise some control
over the others to ensure that the others function according to constitutional
values.
2.4.3 Democracy
Democracy means that people rule themselves by consensus. Democracy could
be of two kinds:
Direct Democracy: In a direct democracy all decisions are made by a majority
of the citizens. The people govern themselves through decisions that are reached
by either a referendum or polular vote. This method however, is possible only in
small countries or in areas where the population is less. In large countries or in
countries with a large population, the exercise of direct democracy is is tedious
and time consuming. For example, if in India, we had direct democracy and a
decision had to be reached on whether the voting age should be reduced from 18
years to 16 years, ensuring that all the millions of people voted would be extremely
difficult, time consuming and expensive. However, in a smaller country like
Bhutan, this exercise would be relatively faster and less expensive because also
of its lesser population.
Indirect Democracy: Whereas, in an indirect democracy, people first elect

representatives to form and run a government. These elected representatives then
take decisions relating to policy and governance of the country. Thus, the
Government would be run by the elected representatives. These representatives
are elected by the people for a fixed period. Indirect democracies are generally
of two types – a Parliamentary democracy or a Presidential democracy. In a
Parliamentary democracy, the nation would be ruled by the majority party in the
Parliament whereas in a Presidential democracy, people elect a person as
President.
The Indian Constitution establishes a Parliamentary form of government. The

basic feature of Indian democracy is that the government is responsible to the
Legislature. The President of India is a nominal head. The real executive power
is vested with the Prime Minister and Council of Ministers.
2.4.4 Constitutionalism
Constitutionalism implies limited government in accordance with constitutional
procedures and norms. The government should be based on, and should be
responsive to popular will, and should serve the public interest. A truly
constitutional regime requires rule of law, democracy and government by elected
representatives. The other feature of a constitutional regime is that public power
should be limited, that its exercise should not be arbitrary and that it should meet
certain normative standards, including prot ection of human rights.
24
Constitutionalism also requires separation of powers, independent courts, judicial Constitutional Values
review of legislative and executive action and a higher degree of openness and
accountability in government.
The Constitution not only prevents the concentration of power but also provides
checks and balances for the powers of each organ. This enables each organ to
check the abuse of power by other organs. Constitutionalism means control
over the power of the government to prevent any arbitrary action by the
government.
Under the Indian Constitution, the Legislature can make laws. Such laws cannot
violate fundamental rights. The Judiciary is empowered to decide the
constitutionality of the legislations passed by the Legislature. The Judiciary is
entitled to declare a law passed by the Legislature as void and unenforceable if it
violates fundamental rights or goes against the constitutional scheme of
distribution of powers.
The task of the Executive is to implement the laws passed by the Legislature. But
it is the Legislature that controls the appointment and tenure of the Executive.
Similarly, executive action could be reviewed by the Judiciary for violation of
fundamental rights and principles of natural justice. Every law passed by the
Legislature needs the President’s approval for implementation. Though the
Judiciary is involved in interpreting laws, matter of appointment, tenure, and
salaries of judges are controlled by the Executive and the Legislature. In addition,
if a judge of the High Court or the Supreme Court is guilty of misconduct, he can
be removed by Parliament through a vote on impeachment. This shows that all
three organs while generally independent of each other, also exercise a degree of
control over the other organs.
Main features
It insists upon limitations upon government.
It imposes checks and balances on the organs of the government.
Unfettered discretionary power is against the Constitutionalism.
It promotes rule of law.
The antithesis of constitutionalism is despotism.
3) Name the three basic organs of the state?
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4) Name two features of a truly constitutional government?
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25
Rule of Law: Principles and 2.4.5 Republic
Concerns
‘Republic’ means that the head of the State is an elected representative of the
people. The President is the head of the State in India. The President of India is
not a hereditary monarch like the Queen in Britain or the King in Thailand. The
President is elected indirectly by the Electoral College for a period of five years.
The Electoral College consists of members of the Parliament and members of
the Legislative Assemblies of the States and Union Territories.
2.4.6 Socialist
The word ‘Socialist’ was added to the Preamble of the Indian Constitution by
the 42nd Amendment to the Constitution in 1976. This word was added to ensure
that the goal of the Indian Constitution became clearer and more explicit. The
word ‘socialist’ indicates that the material resources of the country and the means
of production is either owned or controlled by the government. It also indicates
the government’s intention to bring economic equality and prevention of
concentration of wealth in few hands.
Economic equality and equal distribution of wealth are the prime concerns of
the Constitution. In Excel Wear v Union of India AIR 1979 SC 25 the Supreme
Court held that the addition of the word ‘socialist’ might enable the Courts to
lean more in favour of nationalisation and State ownership of the Industry. The
word ‘socialist’ has been translated into action by the Government be the
nationalisation of Banks, abolition of Privy Purses for hereditary kings, conversion
of the right to property from a Fundamental Right to a legal right.
2.4.7 Secular
The word ‘Secular’ was added to the Preamble of the Constitution by the 42nd
Amendment in 1976. This was done in order to make it clear that the nature of
Indian Constitution is secular. Even before the inclusion of this word, the
Preamble of the Constitution expressly mentions that the Constitution of India
was adopted to secure to all its citizens, “liberty of thought, expression, belief,
faith and worship”. Further, Articles 25 to 28 of the Constitution guarantees
freedom of religion as a fundamental right.
‘Secularism’ does not mean anti-God or pro-God. It means that the State does
not have a religion of its own. Thus, whether a person is devout, an atheist, or an
agnostic, all should be treated alike by the State. It eliminates God from matters
of the State and ensures that no one is discriminated against on the ground of
religion. As religion is a matter of personal faith and belief, a secular State
keeps away from religion and it is not concerned with religions. It maintains an
equal distance from all religions. Thus, in matters of religion, the State is
neutral. This principle applies to all organs of the State – the Legislature, the
Executive and the Judiciary. Thus, Government offices do not have pictures of
Gods on their walls. In S.R. Bommai v Union of India AIR 1994 SC 1918 Supreme
Court held that the secularism is one of the basic features of the Indian
Constitution. Religious pluralism is the cornerstone of Indian culture and religious
tolerance is the foundation of secularism in India. Indian secularism demands
equal respect for all religions.
26
5) What do you understand by the word ‘Secular’?
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2.4.8 Justice, Liberty, Equality and Fraternity

The Preamble to the Indian Constitution declares that the Constitution was
adopted to secure to all its citizens Justice, Liberty, Equality and Fraternity.
Justice Social, Economic and Political
Justice may be understood as harmonious reconcilement of individual conduct
with the general welfare of society.
Social justice aims at abolition of all kinds of inequalities, which may result
from the inequalities of wealth, opportunity, status, race, religion, caste, title and
the like.
Economic justice aims at distribution of material resources for the common good
and to prevent concentration of wealth. It also includes equal pay for equal
work and right against exploitation, etc.
Political justice means absence of any unreasonable or arbitrary distinction among
the people in political matters. It also includes single electorate and adult franchise.
In India, every citizen is entitled to contest in elections and also participate in
voting irrespective of race, religion, sex, caste, and place of birth.
Liberty: of thought, expression, belief, faith and worship.
Liberty means absence of undue and arbitrary interference with individuals’
freedom. Liberty of thought and expression was expressly guaranteed by the
Indian Constitution under Article19 (1) (a). This Article guarantees to all citizens
“freedom of speech and expression”. Articles 25 to 28 promote liberty of belief,
faith and worship. Under Article 25, every person has a “freedom of conscience
and the right freely to profess, practice and propagate religion”.
Equality: of status and of opportunity.
Equality means no person is above the law and that everyone, irrespective of
rank or status, is subject to the same law. Articles 14, 15, 17 and 18 of the Indian
Constitution provide equality of status. Article16 specifically deals with equal
opportunity in public employment. The concept of equality under the Indian
Constitution aims at abolition of all sorts of distinctions and discriminations.
Fraternity:
Fraternity means the spirit of brotherhood. It is a feeling that all people are children
of the same soil and the same motherland. This term was inserted by the Draft
Committee keeping in view the religious, linguistic and racial diversity in India. 27
Rule of Law: Principles and Several provisions in the Constitution, such as single citizenship, right to move,
Concerns
reside and settle anywhere in India, and freedom of trade and commerce
throughout the territory of India create a feeling of brotherhood among the Indian
citizens.
2.4.9 Federalism
The Indian Constitution provides for a federal set-up with a strong Union. A
Federal Constitution establishes a dual polity with the Union government at the
centre and State government at the regional level. Part XI of the Indian
Constitution provides for division of powers between Union and State
governments. Articles 245 to 255 deal with legislative relations between the
Union and State Governments. In Schedule VII of the Constitution of India, the
subjects of legislation are divided under three lists, namely Union, State and
Concurrent Lists. The Union List contains 97 entries on which Union government
can pass laws. The State List contains 66 subjects on which State government
can make laws. The Concurrent List enumerates 47 subjects, on which both
Union and State can make laws.
Similarly, Articles 256 to 263 embody Administrative relations between Union

and State governments. Further, the Constitution incorporates an elaborate
scheme of distribution of financial relations between Union and State
governments.
2.4.10 Independent Judiciary

Independence of the judiciary is one of the prerequisites for the successful
functioning of a democracy. The Constitution of India envisages several
safeguards to ensure the independence of the judiciary.
The judges of the Supreme Court and High Courts are appointed by the President
of India on the aid and advice of the Council of Ministers. However, the Chief
Justice of India is to be consulted in making any such appointment. In Supreme
Court Advocates on Record Association v Union of India and in re Presidential
Reference AIR 1999 SC 1 the Supreme Court held that the Chief Justice of India
shall be the senior most judge of the Supreme Court and in matters of appointment
of other judges to the Supreme Court and High Court, President is bound by the
recommendations made by the Chief Justice of India in consultation with other
senior judges. These two cases took away the discretionary power of the
Executive in appointing and transfer of judges of the Supreme Court and High
Courts.
The tenure of the judges is secured under the Constitution. Judges of the Supreme
Court and High Courts would retire only after reaching 65 years and 62 years
respectively. Judges cannot be removed before the expiry of the tenure except
by an order of the President by way of impeachment under the Indian
Constitution. According to Article 124, a judge of the High Court or Supreme
Court can be impeached only for proved misbehaviour or incapacity. The
impeachment proceedings require support of majority of total members and not
less than two-third of majority of those present and voting in each house of
Parliament. The salaries and allowances of the judges could be determined by
the legislature. But once they are determined, they cannot be altered to the
28
disadvantage of the judges during their tenure of office. The salaries and Constitutional Values
allowances could be enhanced but not diminished. The salaries, allowances and
expenditure of the court would be charged to the Consolidated Fund of India and
Consolidated Fund of States respectively and they are not subjected to vote of
the Legislature.
The Constitution of India prohibits the judges of Supreme Court from practicing
before any court after their retirement. Further, the Constitution also debars the
judges of the High Court from practicing before a Court where he/she had been
a judge. This ensures absence of bias or undue influence.
6) What are the safeguards that are provided in the Indian Constitution to
ensure the independence of the judiciary?
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2.4.11 Fundamental Rights

Recognising certain basic rights and giving them a Constitutional basis so that
these rights may not be violated by the government is one of the most important
features of modern democratic constitutions. The Indian Constitution is one
example of such a practice. Part III of the Indian Constitution secures certain
basic rights known as Fundamental Rights. These rights aim at individual liberty
and provide security against arbitrary action by the government. These rights
represent the cherished values of the people of India.
Main Features
Contain basic freedoms.
Prohibitions against State.
Beyond the reach of majority.
Limitations on the power of the government.
Object is to establish a government of law and not of persons.
These rights are justiciable rights.
Originally, the Constitution of India recognised seven fundamental rights. But

by the Constitution 44th Amendment Act, Right to Property was removed from
the list of fundamental rights. At present the Indian Constitution guarantees six
fundamental rights, namely:
1) Right to Equality - Articles 14 to 18
2) Right to Freedom - Articles 19 to 22
29
Rule of Law: Principles and 3) Right against Exploitation - Articles 23 &24
Concerns
4) Right to Freedom of Religion - Articles 25 to 28
5) Cultural and Educational Rights - Articles 29 to 30
6) Right to Constitutional Remedies - Articles 32 to 35
2.4.12 Directive Principles of State Policy

Articles 36 to 51 of the Indian Constitution contain the Directive Principles of
State Policy. These principles establish India as a welfare state. These principles
were included in the constitution with a view to secure socio-economic
democracy. They impose a positive obligation on the state to implement the
directives contained in it. They contain broad principles to govern and guide the
Legislature and the Executive in the governance of the country.
Main Features
Set out the aims and objectives of the government.
These principles must be kept in mind while passing laws and framing
policies.
They impose positive obligations on the government to implement the
directives
They constitute social and economic programmes for a modern
democratic State.
They are non-justiciable rights.
2.5 SUMMARY
In this unit, we learned about:
The meaning of a Constitution and how and why it is necessary in a modern
democracy.
The meaning of the different types of democracy.
The various values such as socialism, secularism, value for human rights
and human dignity that are emphasised in our Constitution.
The role and purpose of a Constitution in ensuring that the rights of the
citizens are protected.
The functions of the various organs of the State and how they are controlled
through mechanisms present in the Constitution.

1) How are the ideals contained in the preamble to our Constitution realised in
our country?
2) Discuss the concept of secularism of a constitutional value.
3) How does the constitution secures all its citizens justice, liberty, equality
and fraternity?
30
1) A ‘Constitution’ is a document that has a special legal sanctity and sets out
the framework and the principal functions of the organs of the government
or State. It also establishes principles that should govern the operation of
those organs in terms of the powers, functions and composition of such
organs. The constitution also regulates the relationship of these organs with
the people.
2) We need to be aware of the values enshrined in our Constitution:
i) In order to be able to protect our rights against any violation
ii) To enable us to participate effectively in the functioning of our
democracy
iii) To ensure that the government works towards realisation of our
constitutional ideals and does not deviate from the roadmap envisaged
for inclusiveness.
3) Legislative, Executive and Judiciary.
4) Rule of Law and Democracy are the two features.
5) ‘Secularism’ does not mean anti-God or pro-God. It means that the State
does not have a religion of its own. It eliminates God from matters of the
State and ensures that no one is discriminated against on the ground of
religion. As religion is a matter of personal faith and belief, a secular State
keeps away from religion and is neutral.
6) The constitution ensures that the salaries and allowances of the judges cannot
be altered during their tenure and secondly they can only be removed by a
special process called impeachment.
Terminal Questions
1) Refer to Section 2.4
2) Refer to Sub-section 2.4.7
2.8 GLOSSARY
Sovereignty of the People : People are the source of the Constitution and
the Constit ution emanat es from them.
Therefore, the ultimate source of validity and
legitimacy to the Constitution are the people.
Separation of Powers : The Legislature is empowered to make law, the

Executive implements the law and the Judiciary
interprets the law. Each one is independent and
cannot interfere with another.
31
Rule of Law: Principles and Constitutionalism : Constitutionalism implies limited government,
Concerns
in accordance with constitutional procedures
and norms.
Republic : The head of the State is an elected representative

of the people
Socialist : The State strives towards achieving economic

equality and prevention of concentration of
wealth in few hands
Secularism : Absence of a State religion

Federal Constitution : Establishes a dual polity with the union
government at the centre and state government
at the regional level

Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford:
Clarendon Press, 1996).
Granville Austin, Working a Democratic Constitution: The Indian Experience

(New Delhi: Oxford University Press, 1999).
Mahendra P. Singh ed, V.N. Shukla’s Constitution of India (Lucknow: Eastern

Book Company, 11th ed. 2008).
H.M. Seervai, Constitutional Law of India (New Delhi: Universal, 4th ed. 2005).
B. Siva Rao ed, The Framing of India’s Constitution (New Delhi: Universal,
2006).
32
UNIT 3 DEMOCRACY
Structure
3.1 Introduction
3.2 Objectives
3.3 What is Democracy?
3.4 What does Democracy mean for You and me?
3.5 The Role of a Constitution in a Democracy
3.6 Distribution of Powers in a Democracy
3.7 Sleeping?
3.8 The Future of Democracy
3.9 Summary
3.12 Glossary
3.1 INTRODUCTION
On 24 January 2009 activists belonging to certain group barged into a pub in
the city of Mangalore on India’s southern coast, and beat up young girls and
women for “violating traditional Indian norms”. They claimed that women and
girls should not go to places such as pubs, since this was against their idea of
what a ‘traditional Indian woman’ should be like.
Soon after that incident, on 6 February 2009 activists of the same group dragged
the daughter of a Kerala MLA (Member of the Legislative Assembly) and her
friend off a bus, and held them for some time before releasing them. The activists
seemed to be upset at the fact that unmarried, unrelated boys and girls were
traveling together.
It seems a little strange to start a discussion on democracy in this way, does it

not? We usually think of a democracy as a system where people elect their own
government, and everyone has the right to vote. Yet, as we shall see in the course
of this Unit, democracy means a whole lot more. The concept of democracy
includes not only the right to vote, and to have regular elections where everyone
can participate; it also includes the right to live a free and meaningful life, in the
manner that one sees the best. Seen from this perspective, events such as the
ones highlighted above become important to our understanding of democracy.
These events talk about unfair treatment meted out to women in our country.
How many other events can you think of from your recent reading of newspapers,
where other groups, such as people belonging to religious minorities, members
of the dalit community, or migrants to big cities have been treated in an unfair
manner? What impact does this have on your understanding of Indian democracy
and how it has functioned over the past six decades and more?
33
Rule of Law: Principles and Hopefully, reading this Unit will give you a better understanding of democracy
Concerns
so you can better answer these questions, and think through these questions in a
more informed manner. So let’s get started!
3.2 OBJECTIVES
After studying this unit, you should be able to:
explain the concept of democracy stands for, and how it has evolved over
the years;
describe how democracy functions in India;
describe the role of a constitution, and of various institutions in a democracy;
explain sharing of power in between the various participants in a democracy;
identify what democratic rights are, and how they are guaranteed and
implemented in a democratic country; and
identify the direction in which democracy is heading around the world, and
what the outcomes and future of democracy are.
3.3 WHAT IS DEMOCRACY?

At the beginning of this Unit, we mentioned an incident wherein citizens of our
country were not allowed to live their lives in the manner that they best saw fit.
Another group of citizens used force and violence to ensure that their own opinions
and views on life were foisted upon others. We would all agree that such incidents
and outbreaks of violence, especially against the exploited sections of society,
such as women, are unacceptable.
But is it not right to say that democracy stands for a system where we choose our
own government, and where the majority takes decisions on behalf of everyone,
including the minority, and those people who may have voted for the opposition
in the last elections? How do we reconcile both these concepts – of a rule by the
majority, and of the rights of each individual to live freely?
If we think about this question, it becomes obvious that our concept of democracy
must change. We now realise that democracy means not only the right to choose
a government, or that the majority rules over all of us. Democracy now seems to
us to have many different aspects. In addition to our initial understanding of
democracy, we now see that democracy also includes the idea that each individual
must have certain rights that are guaranteed and protected. If we put all these
notions together, and add a few more thoughts and ideas, we come up with the
following definition of democracy:
Democracy is a form of government that allows people to choose their rules. In

a democracy:
Only leaders elected by people should rule the country
People have the freedom to express views, freedom to organise and freedom
to protest.
34
In fact, democracy is not a very new concept: it has been talked about, and even Democracy
implemented in, certain countries for a long time now. The word ‘democracy’
was coined from a combination of the Greek words ‘demos,’ meaning ‘people,’
and ‘kratos,’ which means ‘rule or strength’. This word came into use around
the 4th or 5th century B.C. following the implementation of this system in some
of the Greek nation-states, notably, Athens.
Since the time democracy was introduced in Athens, it has spread across the
world, and today, most countries in the world proclaim themselves to be
democracies. But not all of them are true democracies in the sense that we
understand the term.
In the United States of America, for example, the President is directly elected by
the people, and does not even need the support of his party in their Parliament,
which is called the Congress: he can veto bills without any approval of the
Congress. The United State of America, therefore, is said to have a presidential
democracy. On the other hand, in our country, and in some other countries, like
the United Kingdom, representatives to Parliament are elected by us. These
representatives, in turn, choose the President, who is the head of state. In addition,
there is an Upper House of Parliament, the Rajya Sabha, which is composed of
nominees, mostly from the various states. The leader of the political party that
has the confidence of the Lower House, the Lok Sabha, is usually invited to
form the Government by the President. All decisions are taken by the Prime
Minister and the Council of Ministers. These ministers, however, only hold power
until the time they have the confidence of the Lok Sabha. If a majority of the
members of the Lok Sabha decide that they no longer have confidence in the
Government of the day, the Government has no choice but to resign. This is why
we say that India has a parliamentary democracy.
1) Define democracy.
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2) We follow the system of parliamentary democracy in India. Is this
statement true or false?
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35
Concerns 3.4 WHAT DOES DEMOCRACY MEAN FOR YOU
AND ME?
We have seen that democracy takes different forms throughout the world, and
some countries that call themselves democratic would not stand the test of true
democracy. The following portions of this Unit will help us better understand
this concept of a ‘true’ democracy.
Now that we have a more comprehensive understanding of what democracy

means, we can look at each of the parts of this definition in a little more detail.
The next few paragraphs will acquaint us with a few people from around the
country and help us to understand the concept of democracy from their
perspective.
My name is Ramani, and I am a

23-year-old woman. I live in
Bengaluru. Can I vote?
Ramani’s question seems very simple, and at first glance, even a little silly: why
should Ramani not be able to vote? There seems to be nothing wrong with what
she has told us about herself, and we all know that in our country, all adults have
the right to vote. This is known as ‘Universal Adult Suffrage’. When we view
the history of democracy in the past few decades, however, this question makes
more sense: did you know that many European countries that initially adopted
the democratic system of government did not allow women to vote? Women in
these countries struggled for their right to vote for a long time. This struggle was
known as the ‘Suffragist’ movement, and it was only after a long and hard struggle
that women were granted the right to vote in these countries.
My name is Pervez, and I am a Muslim by
religion. I live in Ahmedabad. Can I vote?
Even if I vote, what guarantee do I have that
my rights will be protected?
Pervez’s question also seems simple to answer: is there any reason why Pervez
should not be allowed to vote? But a second look at his question reveals a deeper
concern: even if Pervez does vote, what would happen if the party he voted for
in the elections loses? What if a party that is opposed to the interests of a religious
minority comes into power? Would that mean the people such as Pervez would
lose all their rights, and would have to fear for their rights?
Clearly not – we know that we have a Constitution, and that this Constitution
guarantees all of us certain rights. These rights remain constant no matter which
political party comes into power, and cannot be amended unless a huge majority
36 of the people elected to Parliament vote to do so. You will learn more about the
Constitution, and about these fundamental rights, in later units, but it is useful Democracy
for you to remember that the rule of a majority in a democracy is tempered by
certain unchanging rules that are set out in a Constitution.
My name is Baburao, and I belong to the Dalit caste.

I live in Latur. Can I vote? Even if I vote, I know that
people will violate my basic human rights. How will
this democracy help me in such a situation?
Now that you have met Ramani and Pervez, you would not jump to the conclusion
that Baburao’s question is also frivolous! Baburao has asked us two questions:
the first is whether he has the right to vote, and the second is what recourse he
has in the event that the government of the day does not protect his rights. Let us
answer these questions in turn.
Baburao is a Dalit, and this community has long had to suffer exploitation at the
hands of the more advanced sections of society. For a long time, Dalits were
denied basic human rights. They were not allowed to visit certain parts of a
village, or even to drink water from the common wells. If this sounds like a
history lesson, it is not: this is true even today, in large parts of our country.
Similarly, the African-American community in the United States of America
was not allowed to vote. Many of the members of this community were initially
brought to the United States of America as slaves, and exploited in the most
inhumane manner. Their struggle for their dignity even led to the American Civil
War, and finally, people of African-American descent were allowed the right to
exercise their vote in 1965. Our Constitution made no such differentiation, and
people of all castes, creeds, and religions are guaranteed the right to vote.
Now, let us move on to Baburao’s second question. If a Dalit does not have even
basic human rights, what use is the right to vote? Regardless of whichever
government comes into power, Baburao’s situation will not change – he will
continue to be exploited. But we know that that is not how a democracy functions:
even if the Government in power does not pass any laws, or take any action to
protect people like Baburao, he still has the right to approach a court of law to
ask for the rights that the Constitution has guaranteed people like him if the
court passes an order in his favour, the Government will have to obey it, and take
measures to protect Baburao.
Now we understand that aside from the right to vote, and the guarantee of
certain rights, democracy also means that power is shared between different
institutions – in this case, we saw how power is shared between the executive
(the Government’s ministers), the legislature (the elected Parliamentarians, who
pass laws), and the judiciary (the judges who decide disputes, and who are
entrusted with the task of protecting our Constitutional rights.)
37
Concerns My name is Ravi, and I am six years old. I work
fourteen hours a day in a restaurant in Delhi.
What difference does it make to me who gets
voted in or out?
At first glance, Ravi’s question leaves us dumbfounded. It does not seem as if

there is an answer to his question at all. After all, we do have universal adult
suffrage, but children do not have a right to vote. There are a lot of other people
in Ravi’s situation: not only children, there are also numerous other groups of
people who, for some reason or the other, are not able to vote. This could be, for
example, because a person lives in an area where the booths are routinely
‘captured’ during elections. That is, they are taken over by a political party, and
it is no longer possible for an ordinary citizen to approach these booths to cast
their vote; or it could arise because somebody feels that they do not like any of
the political parties that are standing for elections, and therefore do not have a
choice in the matter. What answer does democracy present for these people?
The answer to Ravi’s question is a combination of all the answers that we saw
earlier, when we spoke with Ramani, Pervez, and Baburao: in a participative
democracy, all those people who are considered mature enough to vote, must be
given the right to vote. Participative democracy assumes that people will cast
their vote in a sensible manner, so that only those rulers who are mature enough
to understand the situation of all members of society are elected – including
people like Ravi, who cannot vote. In addition, the inalienable rights enshrined
in the Constitution are guaranteed to all citizens – even those who are not old
enough to vote, and so, Ravi’s rights are guaranteed and protected. Furthermore,
the rights of children and other exploited sections of society are enforceable –
which means that one can approach a court of law to enforce these rights. In fact,
any citizen of India can write a letter to the National Human Rights Commission
to complain about the violation of their basic human rights. The National Human
Rights Commission is entrusted with the task of investigating such a violation,
and with approaching the courts to ensure that these rights are protected. In
addition to the National Human Rights Commission, there are also State Human
Rights Commissions in the country, and citizens can approach any of these if
their human rights have been violated. You will study about the National Human
Rights Institutions in Unit 12 under ‘Institutional Mechanisms’ (Block 3).
So, we see that a true participative democracy means much more than a system
where everyone has the right to vote at periodic intervals. It also includes certain
democratic rights, a constitution that guarantees and protects these rights, and
the distribution of powers between various institutions that ensures that nobody,
not even an elected representative, has unbridled authority to rule the country in
an arbitrary manner. Our study of the later units will show us a lot more about
each of these aspects, but it would be useful to look at each of these in a little
more detail now.
38
Democracy
3) A true participative democracy means that all adults above the age of 18
years have the right to vote. Do you agree with this statement?
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3.5 THE ROLE OF A CONSTITUTION IN A

DEMOCRACY
We, the people of India, having solemnly resolved to constitute ourselves

into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC
REPUBLIC…
Are these words familiar to you? These are the opening words of the Constitution
of India, and are taken from the Preamble to the Constitution. Have you ever
wondered about the first five words of the Preamble? Let us take a closer look at
them:
We, the people of India…
My name is Vishnu, and I am thirty-five years old. I was not

even born when the Constitution was drafted – and neither my
parents not my grandparents were members of the Constituent
Assembly! This is not my Constitution!
On face value, these words seem to imply that all of us, that is, the people of
India, sat down together and wrote the Constitution. If you are reading this,
chances are that you were not even alive when the Constituent Assembly sat
down to draft the Constitution! Then what do these words mean?
When the members of the Constituent Assembly sat down to draft the
Constitution, they intended it to be a set of rules and guiding principles that the
government of the day would follow, regardless of whichever political party
came into power. They thought that there should be some stability in the
government’s policies, and that these should not change at the whims and fancies
of the political party that came into power. Thus, we see that the Constitution
acts as a stabilising force in a democracy, and serves to temper the desires of the
party in power. With the Constitution as the supreme authority, the political party
39
Rule of Law: Principles and in power can only implement its policies in line with the overall policies of the
Concerns
Constitution. The Constitution is a living document, and if enough of us decide
that we want to amend the Constitution, we can. Therefore, the Constitution is
not set in stone, and can be modified to suit the changes in social and economic
policy that must necessarily come about with the evolution of India as a nation
over the years. Now it is clear to us that although we may not have been members
of the Constituent Assembly, the Constitution nonetheless belongs to each and
every one of us. It ensures the smooth functioning of democracy, and can be
changed if enough of us want it to. We will learn more about the Constitution in
later units.
My name is Dominic, and my friends from college and I want to change

the Constitution. We want the Constitution to guarantee all college
graduates a job with the Central Government. There are hundreds of us!
If we cannot change the Constitution, we do not accept it as ours!
Furthermore, these words also seem to imply that if we like, we can march up to
Parliament, and change the Constitution as we wish. A reading of one of the later
Units will show you that this is not possible – we cannot change the Constitution
according to our whims and fancies. A Constitutional amendment is a fairly
tough matter, and requires a majority of three-fourths of the members of
Parliament. Then, do these words have any meaning at all?
Although the Constitution can be changed, it cannot be amended merely because

a few of us feel it should. India is a large country, and it is certain that there will
be lots of groups who have opposing points of view on what the Constitution
should look like. For example, at the beginning of this Unit, we saw how there
was one group of people who felt that women going to bar was against Indian
culture, while the women in question thought quite otherwise! If a small group
of people could change the Constitution, it is likely that we would have not one,
but many hundreds of Constitutions, each serving the needs of a small interest
group. This is why the Constitution can only be amended through a three-fourths
majority of the members of Parliament. Since it is such an important document,
and carries such authority, it is only logical that it be changed only when there is a
clear mandate from the overwhelming majority of people in the country to do so.
But what if there is a situation where a political party comes into power that has
an overwhelming majority in Parliament? Imagine a situation where a political
party gains ninety per cent of the seats in Parliament. In their five years in power,
the members of this party may change the entire face of the Constitution! Chances
are that a visitor to India, who returns at the end of this party’s term, would not
be able to recognise the Constitution at all! What happens to the stabilising
function of the Constitution in such a situation?
In 1973, thirteen judges of the Supreme Court of India were presented with
exactly this question. In a landmark judgement, called Kesavananda Bharati v
State of Kerala1 , the Supreme Court of India held that there are certain parts of
1
40 (1973) 4 SCC 225.
the Constitution which Parliament cannot amend, regardless of how big a majority Democracy
of the members of Parliament may wish to do so. This un-amendable part was
named ‘The Basic Structure of the Constitution,’ and no government may alter
it. The Supreme Court judges also showed their wisdom in defining the Basic
Structure very loosely. It includes things such as the Fundamental Rights, the
Directive Principles of State Policy, and the distribution of powers between the
Centre and the State governments. We will read about these aspects in more
detail in later units, but for the moment, it is important to remember that just
because the Constitution can be amended, it is not the plaything of the government
of the day.
So, you see, although you cannot change the Constitution because a few friends
and you want to see it changed, it is still the best possible way to ensure that
democracy is not reduced to rule by the mob. Our study of the Constitution in
later units will explain this to us in much more detail.
Although we will learn about our fundamental rights in more detail in a later
unit, it would be useful to understand the basic nature of these rights at this
stage. Our Fundamental Rights are contained in Part III of the Constitution, and
are divided into the following categories:
Right against exploitation;
Cultural and educational rights;
Right to freedom of religion;
Right to equality;
Right to freedom; and
Right to Constitutional remedies.
A first glance at these categories would reveal to you that these rights are fairly
comprehensive. Just exactly how they work is a much bigger topic, and we will
examine this in the unit relating to Fundamental Rights, which appears later in
this course.
Before we leave this topic, let us sum up everything that we have learnt: while
all countries that have a Constitution need not necessarily be democracies, it is
most likely that all democracies will have a Constitution. The Constitution lays
down certain rights, rules, and policies that the government of the day will have
to follow, regardless of which political party comes to power. It ensures the
smooth functioning of a democracy, and prevents the rules of the mob. It helps
ensure that all interest groups and communities are fairly represented in a
democracy. We know that democracy is an imperfect system. With a strong
Constitution in place, however, it is a little easier to remove the ill effects of
these imperfections, and bring democracy closer to the ideal that we want it to be.
4) Can the Indian Constitution be amended easily?
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41
Concerns 5) How does a Constitution ensure a stable democracy?
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3.6 DISTRIBUTION OF POWERS IN A

DEMOCRACY
“Two crises of an unprecedented magnitude rocked India during the years 1974
to 1977. From January 1974 to June 1975 the country went through a turbulent
period marked by a series of agitations – bandhs and gheraos, strikes and
shutdowns, closures of colleges and universities, two massive popular movements
in Gujarat and Bihar, that demanded resignations of the state governments and
dissolution of the state assemblies. While the movement in Gujarat was successful
in achieving these twin objectives, that in Bihar, popularly known as the JP
movement (after its leader, Jayaprakash Narayan, popularly known as JP) failed
to do so. The latter, however, soon spread, especially in North India, and developed
into a movement for the ouster of the Prime Minister India Gandhi. This was
followed by the second ‘watershed’ in India’s recent history: the imposition of
the Emergency by Mrs. Gandhi on 26 June 1975. The step sent shock waves
across the nation and the trauma continued for nearly nineteen months. Political
observers, both at home and abroad, talked of a crisis of India’s political system
and its democracy, with many predicting that the dark night of a long-term
dictatorship had descended on the country.”
- Bipan Chandra, In the Name of Democracy, Penguin Books, 2003.
The passage above talks about two very important crises that shook India in the
1970s: one was the effect that a series of popular movements had on the country,
and the second, the proclamation of Emergency by the Government of the day.
A glance at the newspapers of the day will show you that we still have a number
of protests and uprisings across the country even today: there are different groups,
called ‘interest groups’, that strive to fight for the rights of different people or
causes. Some of these may relate to environmental causes, others relate to the
rights of minorities, and yet others may be striving for a separate state, or even
for complete independence from the country. Some of these causes may relate to
people spread across the country: for example, communal forces may be fighting
for what they think are the rights of the members of a particular religious
community. The members of this religious community may be spread across the
country. On the other hand, there were protests in Mumbai’s Borivali area on
February 4, 2009: residents of the area congregated upon the station at Borivali,
and shut down the suburban railway services there because they felt that there
42
were not enough trains servicing their station. This is an example of a protest Democracy
that relates to local causes.
The newspapers may also carry stories about how the police, or the army were
called in to quell protests in certain parts of the country. We also know that the
government passes laws from time to time, in order to provide for the interests
of certain communities, or causes. Sometimes, these laws are proposed in
Parliament, but enough members do not vote for them, and they do not see the
light of day. In other cases, these laws, even after they are passed by Parliament,
are vetoed by the President, who sends them back to Parliament for
reconsideration. Eventually, this bill may be passed, and turn into law. Even
then, however, the law may be challenged in a court of law, and it is up to the
judiciary to determine whether the law is valid, or not.
The instance that the passage above talks about is one where the emergency was
proclaimed in the country in 1975. We will study the implications of such a
proclamation in later units, but for the moment, it is enough for our purposes to
have a basic understanding of what an ‘Emergency’ means. When a proclamation
of Emergency is in effect in the country, some of your fundamental rights can be
suspended, and the Government effectively has the power to ‘rule by decree’.
All power rests in the hands of the Central Government, and even the authority
of the State Governments is severely diminished. Such a proclamation may only
be made within strict Constitutional limits, and only if a large majority of the
members of Parliament approve it. In the situation that the passage talks about,
there was a lot of apprehension in the country about whether the proclamation of
Emergency meant that we had moved away from a democratic system of
government to a dictatorship.
We know, however, that that is not the case - India is still, thankfully, a democracy,
and elections are held routinely. What, then, happened to ensure that we did not
become a dictatorship, and that the world’s greatest experiment in democracy
continues to exist? Let us find out!
Legislature Judiciary
Executive
(Makes laws and (Interprets laws and
(Governs the Country)
policy) decides disputes)
The diagram above may seem familiar – after all, we have already heard about
the division of powers amongst the Executive, the Legislature, and the Judiciary.
We know that this system ensures that no one branch of the government has
unfettered authority. Each of these institutions acts in a different manner, and
together, they ensure that there is a system of checks and balances. This ensures
that the country functions in the manner that the Constitution intends it to. This
separation of powers is very important in the context of a democracy: even if a
political party comes into power, it cannot implement its own wishes on the
people of the country. The people do, of course, have the power to vote the
government out of power in the next elections, but they also have the right to
challenge the actions of the government before the judiciary. The judiciary, since
it is independent of the executive and the legislature, is entrusted with the task of
taking decisions in line with the provisions of the Constitution. This is known as
a horizontal separation of powers.
43
Rule of Law: Principles and We know that the leader of the political party with the largest majority in
Concerns
Parliament is invited to form the Government. The Prime Minister, along with
the Council of Ministers, takes all decisions while in power. These ministers,
therefore, form the executive. In recent times, we have seen that no political
party has been able to muster a large enough majority in Parliament to form a
government on its own. These parties, therefore, join forces with a number of
other political parties to form a coalition. A coalition government comprises
representatives from all the political parties that provide the government support.
This, however, is only one part of the executive – what we could call the political
executive.
In addition to the Prime Minister and the Council of Ministers, there is also a
permanent executive. This comprises the large force of civil servants, police
force, and other executive authorities that are not appointed through popular
elections. These executives remain in office regardless of which political party
is in power. They continue to have powers, and discharge their functions
irrespective of when the elections take place.
Therefore, we see that even within the executive, there is a separation of powers
between the political executive and the permanent executive, to ensure that there
is no arbitrary exercise of power. This ensures the smooth functioning of
democracy.
Central Government
State Governments
Local Self-Government
(Gram Panchayats)
The division of powers amongst the Executive, the Legislature, and the Judiciary
that we saw is just one form of the separation of powers in a functioning
democracy. In addition, we know that in our country, power is divided amongst
various governments as well. The Central Government, which is in charge of the
administration of the Union as a whole, has certain powers granted to it under
the Constitution. These powers include matters such as the defence of the Union,
and foreign affairs. In addition, the Constitution also grants certain powers to the
government in each State. These include matters such as the police, and trade
and commerce.
In 1992, the Constitution of the country was amended to provide for local self-
government. This means that power has been decentralised, right down to the
district level. This was done because it is an obvious point that the people living
44
in each area know best how that area should be administered, and how the money Democracy
budgeted for the development of that area should be spent. We now, therefore,
have gram panchayats. The gram panchayats are comprised of elected
representatives from that village or district, and work under the supervision of
the gram sabha. The gram sabha is comprised of all the voters in the village. A
few gram panchayats are grouped together to form what is typically called a
panchayat samiti, or block, or mandal. The members of this body are elected by
all the members of the panchayats of that district. All the panchayat samiti or
mandal members of an area together comprise the zilla (district) parishad. Most
of these members are elected.
We now see that India has not only a horizontal separation of powers, but also a
vertical separation of powers. The Central Government, the state governments,
and the units of local-self government are each given certain powers and functions,
and thereby, we can ensure that no one body has unlimited authority, and that
people living in each part of the country have a say in how they are governed.
This is also known as federalism - a system that a lot of democratic governments

follow in differing measures. In the United States of America, for example, there
is a very strong federal structure, and each State that forms a part of the Union
has a vast range of powers. The Federal Government, on the other hand, has only
limited powers. In India, we follow a slightly less strict federal structure – the
Central Government’s powers are listed in Union List, which appears in the
Seventh Schedule to the Constitution; the state governments’ powers appear in
the State List in the Seventh Schedule; both, the Central and state governments,
may pass laws on matters listed in the Concurrent List, but a Central law would
prevail over a state law in case of a conflict; finally, the Central Government has
powers to pass laws on all residuary matters, that is, matters not set out in any of
the three lists. In India, therefore, the balance of power is tilted slight in favour
of the Central Government.
Power in the Indian democracy is also shared between different groups of people
and communities. For example, reservations to a certain percentage of seats in
each level of government – Central, state, and local self-government – are made
for women, for members of the Scheduled Castes and Scheduled Tribes, and
Other Backward Classes. This ensures that members of these exploited sections
of society have a voice in the democratic process, and that democracy does not
reduce to the dictatorship of the majority.
Finally, we see that in India, there are a lot of different political parties and
pressure groups that compete amongst themselves. This competition ensures
that each party of interest group is accountable to the people, and that no one
group or political party has power for too long. This is another form of power
sharing, one which all healthy and mature democracies have.
One of the major criticisms of democracy is that it encourages the rule of the
majority, and ensures that the elected representatives effectively become dictators
for their term of office. Now that we have seen how power is shared in a true
democracy, however, we can easily answer this criticism: democracy means not
only that everyone should have a right to vote, and that the people get the ruler
they choose. It also means that power is shared between various institutions and
groups of people, so that no one person or group or institution ever has too much
power, or for too long. 45
Concerns Self-assessment Question
6) Explain horizontal and vertical distribution of power and how this helps
to strengthen democracy.
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3.7 SLEEPING?
A crowd gathers outside a cinema theatre on a holiday. The film is clearly popular,
and the crowd is eager to get their tickets and watch the movie. A group of young
men appears, and starts going up to people in the crowd. They start asking
random people in the crowd why they are asleep, and tell them that they should
have a cup of tea to wake them up. People are confused, and when the leader of
the young men walks up to a lady, and asks her to have a cup of tea and wake up,
matters reach a head: the irritated young lady tells the youth that it is a holiday,
and that she wants to watch a movie – she is not asleep!
The young man pauses for a moment, and then tells her that if she is not voting
on election day, then she is asleep.
If all of us are asleep, then how will the country awake?
This is an advertising campaign being run on television, and on the Internet in
recent times by a private company. Though the company is trying to sell tea, it is
also trying to ensure that as many people as possible participate in elections. You
can find the website for the ‘Jaagore’ campaign, as it is called, in the ‘References
and Suggested Reading’ section of this Unit. The campaign is extremely popular,
and the website directs people on how they can register to vote in the elections.
Why do you think the campaign is encouraging people to vote in the elections?
What difference does it make whether only one per cent of the population votes
in elections, or if no one at all votes?
You must remember that the very basis of a participative democracy is the
participation of people in the government of the country. And the one way in
which people can participate most effectively is by voting in elections. A lot of
us complain constantly about the faults and drawbacks of our country, but many
among us do not bother to even vote in elections. And yet, we are proud of the
fact that India is a democracy!
But what exactly are elections, and how are they conducted? We know that
elections are a formal process through which people choose their rulers. In India,
elections are held at multiple levels, and at many different times. The ‘General
Elections’ are held to elect representatives to the Lower House of Parliament,
the Lok Sabha. A separate set of elections is held to choose members for the
Legislative Assembly in each state. Then, there are elections for various local
bodies, such as Municipal Corporations, and other governance bodies, such as
Panchayats.
46
Conducting these elections in a smooth, efficient, and above all, free and fair Democracy
manner, is the job of the Election Commission of India. The Election Commission
is a quasi-judicial body. This means that not only does the Commission conduct
the elections, it also sets down the rules that candidates and political parties
must follow (this is the called ‘the Model Code of Conduct’) in elections, and
even has some of the powers of a court to hear and decide matters relating to
elections. The Election Commission is a Constitutional body, and is headed by a
Chief Election Commissioner, and two other Election Commissioners. In addition,
each state and Union Territory also has its own election commission, which
works under the supervision of the Election Commission of India.
The Model Code of Conduct, which we just heard about, sets out the rules that
political parties and candidates must follow when participating in elections. These
rules cover the entire conduct of candidates and political parties, such as what
they can say in their campaign speeches, how much money they can spend in
their election campaigns, and that the party or candidate in power cannot use the
official governmental machinery, or public funds for campaign purposes.
You can view the Model Code of Conduct, Voters’ Guidelines, and other important
relating to elections, on the Election Commission’s website, the address of which
is: http://www.eci.gov.in
Any citizen of India who are 18 years of age as on first January of the year for
which the electoral roll is prepared are entitled to be registered as a voter in the
constituency where he or she ordinarily resides. Only persons who are of unsound
mind and have been declared so by a competent court or disqualified due to
‘Corrupt Practices’ or offences relating to elections are not entitled to be registered
in the electoral rolls. The rules relating to who can and cannot vote are set out in
the Representation of the Peoples Act, 1950.
The country is divided into 543 consituencies, and a member is elected to the
Lok Sabha from each constituency. The delimitation of constituencies, and the
allocation of seats is also governed by the Representation of Peoples Act, 1950
At the time of the last General Elections, conducted in 2004, there were over
670 million registered voters in India. Can you imagine what a colossal process
it would be to conduct an election on such a large scale? Thankfully, the Election
Commission introduced a novel machine, which helped ensure that the elections
went off as smoothly as possible: the Electronic Voting Machine (‘EVM’). With
the introduction of the EVM, elections in India are now conducted in a high-tech
manner, on par with the most advanced techniques in the world.
Electronic Voting Machine

Source: Elecion Commission of India 47
Rule of Law: Principles and The Election Commission announces the date of the elections, nominations, and
Concerns
other such matters. The Model Code of Conduct comes into force from the date
of that announcement. Campaigning must stop on the day before the day of
voting.
Names of eligible voters are included in the electoral rolls, and only those citizens
whose names appear in the rolls may vote. The Election Commission also
introduced a system of ‘Elector’s Photo Identity Card,’ popularly called a ‘Voter’s
Identity Card’ recently. This has helped streamline the process of identifying
registered voters, and ensuring that all eligible voters can participate in the
elections.
Once the votes have been collected, the EVMs are sealed, and sent for counting.
It is then the Election Commission’s responsibility to count the votes, tabulate
the results, and announce the successful candidates.
So you see, elections are a massive exercise, but are absolutely necessary to
ensure that we survive as a true democracy!
7) What is the ‘model code of conduct’ and whom does it apply to?
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3.8 THE FUTURE OF DEMOCRACY

Now that we have studied the concept and application of democracy in our country
in some detail, we are prepared to analyse whether this system has been successful,
and what course democracy is likely to take in our country, and in the world,
over the next decades.
We know that democracy has not achieved all the goals that the makers of our
Constitution thought it would. There are still some sections of our society that
are oppressed, and do not have access to basic democratic rights. Political parties
do not always do what they say they will at election time. Corruption in the
administration still exists at an unacceptably high level, and many sections of
society are still disenfranchised.
Does this mean democracy in our country has failed?
To answer this question, we must consider several factors: are elections held
regularly, and are these free and fair? What percentage of eligible voters actually
participates in such elections? Do we have public debates on major policies and
legislation? Do citizens have the guarantee that their fundamental rights and
other rights will be protected? Do we have a right to information, and to question
48 the government’s actions?
Next, compare the success of democracy in our country with other countries that Democracy
attained freedom and adopted democracy around the same time as us. These
would include not only our South Asian neighbours, but also a lot of African
countries. How do you think democracy has fared in India, especially when
compared with these other countries?
If you think through each of these questions carefully, chances are that you would
draw up a mixed report card for democracy’s success in our country.
We can only try and understand what the future of democracy will look like if we
take a long, hard look at what the outcomes of democracy in our country have
been. Although you can judge this against various factors, such as economic
development, and social progress, you must also consider whether democracy
and the rule of law in our country have resulted in greater participation of the
people in government.
The future of democracy also seems threatened at times by the rise of reactionary
and violent forces in parts of our country, and across the world. In a situation
where terrorism and the use of violence by foreign powers is a very real threat,
people sometimes tend to think that an authoritarian government, rather than a
democratic one, would be best equipped to handle such a situation. Nonetheless,
believers in democracy claim that an open, inclusive government is the only one
that will be able to bring the marginalised and the discontented into the public
space, and will encourage their participation in government.
Changes in society and technology, too, have encouraged the spread of democracy
in new forms: you may be aware of the spread of ‘social networking’ and
‘community’ websites on the Internet. These encourage the spread of information
and greater discussion amongst people spread out across the globe. This may
seem frivolous at first glance, but perhaps this next nugget of information will
change your mind: a gentleman called Macon Phillips was recently appointed as
the first New Media Officer for the White House by President Barack Hussein
Obama. If the President of the most powerful country in the world feels that
these forms of media are important, then perhaps we should reconsider our view
too!
In short, democracy faces many challenges in the current political and social
climate. Added to that, the current economic crisis has also made some people
change their preferences towards a more authoritarian, ‘in-control’ form of
government. At the same time, more countries are moving towards democracy –
we saw an instance of this in our neighbourhood recently when the people of
Nepal came together to overthrow the monarchy and establish a Constitutional
democracy.
The most important thing that you should remember, though, is that it is far
easier to live in a dictatorship than in a democracy. When you do not have any
powers and nothing to do, you can sit quietly and watch the wheels of government
roll unstoppably by; but when you are a citizen in a functioning participative
democracy, you are as responsible as anyone else to ensure that the government
is accountable, functional, and participative. Make sure you know what your
rights and duties are, and that you know exactly how you can participate in the
democratic process – if enough among us do that, democracy in this country has
a safe and bright future! 49
Concerns Self-assessment Questions
8) People often criticise democracy as a ‘soft’ form of government, which
cannot tackle problems such as terrorism or factionalism adequately. What
do you think? Explain how democracy can handle such situations, if at
all.
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9) How effective do you think the democratic process has been in this
country? Do you think democracy has a future in India?
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3.9 SUMMARY
Let us sum up what we have studied in this unit:
Democracy means much more than just the right to vote. Aside from the
fact that in a true participative democracy, all citizens have the right to vote,
and the people get to choose their own rulers, citizens must also be guaranteed
certain basic democratic rights. A democracy is also characterised by having
a Constitution that provides stability and guidance to the government’s
policies, and a division of powers among various institutions and groups,
so that no one person may ever have too much power, or for too long.
There are various forms of democracy in the world. In the United States of
America, for example, there is a presidential democracy. In India, we have
a parliamentary democracy. There are a number of countries that claim to
be democratic, but are not really democratic in the true sense.
A Constitution guarantees the citizens in a country certain basic rights, and
ensures that the overall growth and development of a nation stay on track.
This ensures that the nation cannot be held to ransom by the whims and
fancies of the government of the day. Our Constitution can be amended to
allow for changes in social and economic circumstances, but such changes
cannot affect the basic structure of the Constitution, nor can they be made
lightly.
Furthermore, a democracy is characterised by a separation of powers –
horizontal, vertical, and between various political parties and interest groups.
This ensures that the rule of law prevails in the country, and that no one
50
person or group can rule the country arbitrarily.
Democracy
1) Try and think of a few people in your society, or people that you routinely
come across in your daily life, who for one reason or the other, are not able
to participate in elections or cast their vote. Why do you think these people
are unable to vote? What solutions does our participative democracy offer
them? Try and think of at least five.
2) One morning, you are studying at home, when the phone rings – it is the
Chief Election Commissioner, and the Commissioner wants your advice!
The Commissioner wants you to write the text for a short advertisement,
which will explain to people why voting is important, and explaining, in
brief, how they can register as eligible voters. Conduct some research on
the Internet, and particularly, on the website of the Election Commission of
India, and gather all the information you need. Once you have this
information, think through what you want to say to people, and write the
text for the advertisement.

1) Democracy is a form of government where people choose their
representatives through free and fair elections.
2) True.
3) A true participative democracy means much more than a system where
everyone has the right to vote at periodic intervals. It also includes certain
democratic rights, a constitution that guarantees and protects these rights,
and the distribution of powers between various institutions that ensures that
nobody, not even an elected representative, has unbridled authority to rule
the country in an arbitrary manner.
4) No, it can be amended only when three fourths majority of the members of
the Parliament approve it.
5) While all countries that have a Constitution need not necessarily be
democracies, it is most likely that all democracies will have a Constitution.
The Constitution lays down certain rights, rules, and policies that the
government of the day will have to follow, regardless of which political
party comes to power. It ensures the smooth functioning of a democracy,
and prevents the rules of the mob. It helps ensure that all interest groups and
communities are fairly represented in a democracy.
6) The division of powers and functions between the Executive, the Legislature,
and the Judiciary is referred to as horizontal distribution of power. This
system ensures that no one branch of the government has unfettered authority.
Each of these institutions carries out its functions under the Constitution,
and together, they ensure that there is a system of checks and balances. This
ensures that the country functions in the manner that the Constitution intends
it to. Vertical distribution of power is a result of decentralised governance.
The Central Government, the state governments, and the units of local-self
51
Rule of Law: Principles and government are each given certain powers and functions, and thereby,
Concerns
ensuring that no one body has unlimited authority, and that people living in
each part of the country have a say in how they are governed.
7) The Model Code of Conduct sets out the rules that political parties and
candidates must follow when participating in elections. These rules cover
the entire conduct of candidates and political parties, such as what they can
say in their campaign speeches, how much money they can spend in their
election campaigns, and that the party or candidate in power cannot use the
official governmental machinery, or public funds for campaign purposes.
8) Although democracy is an inclusive form of government, it does not mean
it is the plaything of any group that wishes to enforce its wishes upon others
without their consent.
A true democracy provides for certain basic rights for all citizens. In order
to protect these rights, the elected government is given powers. Through
these powers, and in the manner that the people have chosen, the government
can take any actions necessary to fight terrorism or factionalism.
In fact, it is only through participation in the democratic process that
marginalised groups can be brought into the mainstream. This is the only
effective, long-term solution to such problems.
9) The makers of the Constitution took on a great challenge – effectively, the
first general elections in the country were a massive sociological experiment
– the largest-ever democratic elections in the world.
Since the first general elections, democracy has travelled a long way in India.
Popular participation in the general elections is still fairly high, with over half of
the registered voters regularly turning out to vote at elections. This number has
remained steady over the decades. The emergence of regional parties shows that
various groups who would not have been able to have their voice heard otherwise,
are now able to exert their influence at the national level.
Although India has not achieved the economic or social progress that it has the
potential to, it is an effective participative democracy, and one hopes that as
more people are brought within the folds of this process, such progress will be
achieved. If things progress along the logical path set over the past decades,
democracy does have a bright and stable future in the country.
Terminal Questions
1) Refer to Sections 3.4 and 3.5
2) Refer to the website of the Election Commission
3.12 GLOSSARY
Universal Adult Suffrage : All adults above a certain age have the right to
vote.
Participative Democracy : A democratic system that ensures certain rights,
a constitution that guarantees and protects
these rights, and the distribution of powers
52
between various institutions that ensures that Democracy
nobody, not even an elected representative, has
unbridled authority to rule the country in an
arbitrary manner
Coalition : A coalition go vernment comprises of
representatives from all the political parties
that provide the government support.
Political Executive : Comprises of the President, Prime Minister and
Council of Ministers.
Permanent Executive : Comprises of civil servants, police force, and
other executive authorities, who are appointed
and not elected.

B. Chandra, In the Name of Democracy: JP Movement and the Emergency (New

Delhi: Penguin, 2003).
Democratic Politics – I, National Council of Educational Research and Training,

New Delhi, 2006.
Democratic Politics – II, National Council of Educational Research and Training,

New Delhi, 2006.
Web Resources
http://www.eci.gov.in/
http://www.jaagore.com/
53
Indira Gandhi
School of Law
Introduction to the
Indian Legal System
Block
2
RIGHTS AND DUTIES
UNIT 4
Fundamental Rights 5
UNIT 5
Directive Principles of State Policy and
Fundamental Duties 26
UNIT 6
Constitutional Remedies 41
Expert Committee
Lawyer, New Delhi
Prof. B.B. Pande
Action Aid India
Prof. S. Siva Kumar
Ms. Gurmeet Kaur
Research Professor
Ms. Mansi Sharma

Unit Writers : Units 4,5 and 6: Rainmaker Training and Recruitment Pvt.Ltd.
Material Production
Mr. Yashpal
IGNOU, New Delhi
November, 2009
ISBN-978-81-266-4288-2
BLOCK 2 RIGHTS AND DUTIES
The Preamble of our Constitution states that “We, the people of India,having
solemnly resolved to constitute ourselves into a sovereign, socialist, secular,
democratic republic…”. The Preamble goes on to state of how ‘the people of
India’ also resolved to secure to its citizens, Justice, Liberty, Equality, and to
promote Fraternity.
The framers of our Constitution had been through a long and ardent struggle to
overthrow foreign rule, and many of them had been through many hardships.
They realised the impact that discrimination or arbitrary action could have on a
human being, and the long-lasting damage it could do to a person’s psyche.
Therefore, they drafted Fundamental Rights in Chapter III of our Constitution in
order to avoid just such hardships and discrimination in the new, independent
India. The fourth unit examines the nature of these Fundamental Rights, and
how you can enforce them.
Our Constitution imposes duties on both the State and the citizens. In the fifth
unit, we examine the ‘duties’ under our Constitution. The Directive Principles
are a set of ideals, or goals, that each government should try and fulfil, and also
a check on the arbitrary use of State power. A political party in power must act in
a manner consistent with these broad ideals, irrespective of its policies or plans.
The Directive Principles guide the government, and bring about a sense of stability
to the direction of the country’s progress.
The individual cannot just have rights and expect the State to abide by the
directives. He/she, as a good citizen must also protect and promote the integrity
and unity of a nation. This was the very purpose of the Fundamental Duties- to
impose on every citizen specific responsibilities as a natural extension of certain
freedoms.
A right without remedy is worthless. A right is meaningful only when it can be

effectively enforced through a court of law. For example, the right to move the
Supreme Court when your fundamental right has been vioated. is itself a
fundamental right. We examine the available constitutional remedies in the sixth
unit.
When we start our exploration of rights and duties under the Constitution, constant
reference to its text will enhance your ability to comprehend the contents of the
units covered in this block. So, do keep a copy of the Constitution with you and
let us get started.
Rights and Duties
4
Fundamental Rights
UNIT 4 FUNDAMENTAL RIGHTS
Structure
4.1 Introduction
4.2 Objectives
4.3 Nature and Scope of our Fundamental Rights
4.4 Watching the Watchmen: Whom do We have our Fundamental Rights Against?
4.5 Knowing our Rights: What Exactly are these Fundamental Rights?
4.6 Is Absolute Equality Desirable?
4.7 Be all You Want to be: The Various Freedoms
4.8 Breaking the Shackles: Protection against Exploitation
4.9 Higher Development: Religious, Cultural and Educational Rights
4.10 Ensuring Justice: Protection in Respect of Conviction for Offences
4.11 A Wholesome and Complete Life: The Protection of Life and Personal
Liberty
4.12 The Heart of our Fundamental Rights: The Right to Constitutional
Remedies
4.13 Summary
4.1 INTRODUCTION
The opening words of the Constitution of India are:
“We, the people of India having solemnly resolved to constitute ourselves into a
sovereign, socialist, secular, democratic republic…”
The Preamble goes on to talk of how ‘the people of India’ also resolved to secure
to its citizens, Justice, Liberty, and Equality, and to promote Fraternity. Keep
these words in mind, and consider the following situations:
Do you think it would be fair if you were forced to do any work, or profess
any occupation that you did not want to?
Do you think it would be fair if you were not allowed a job with the
Government, simply because of your religion, the colour of your skin, or
the language you speak?
Do you think it would be fair if the police marched into your house one
night, put you under arrest without giving you any reason for your arrest,
and then kept you away from your home, your family, and your work for
days on end without any explanation at all?
Presumably, your answer to each of these situations would be a resounding ‘No!’

It does not seem fair that you should be discriminated against in any way, and it
5
Rights and Duties does not seem fair that the Government should be allowed to take any sort of arbitrary
action against you at all, does it?
The framers of our Constitution had been through a long and bitter struggle to overthrow
foreign rule, and many of them had been through some of the hardships described in
the situations above. They realised the impact such discrimination or arbitrary action
could have upon a human being, and the long-lasting damage it could do to a person’s
psyche. It was with a view to avoid just such hardships and discrimination in the new,
independent India, that they drafted Chapter III of our Constitution. They wanted to
make sure that the citizens of India need never face the same hardships that they had,
and they provided us with a powerful tool to protect our basic human dignity, and to
ensure that we realise our full potential as human beings – the Fundamental Rights.
This Unit examines the nature of these Fundamental Rights, and how you can enforce
them. Before we get into the technicalities of the constitutional provisions, it is important
that you realise one basic concept: though the letter of the Constitution provides for
these fundamental rights, it is for you as an individual to understand, remember, and
enforce these rights for yourself, and for others. After all, it is citizens who must watch
the watchmen of the State!
4.2 OBJECTIVES
explain the basic nature and concept of the Fundamental Rights guaranteed
under the Indian Constitution;
identify how the Fundamental Rights and explain how they aid in the overall
development of an individual;
analyse whether Fundamental Rights are absolute or not, and when
restrictions can be placed on the Fundamental Rights.
4.3 NATURE AND SCOPE OF OUR

FUNDAMENTAL RIGHTS
Let us continue with the theme that we started this Unit with – by now, we know
that it is “We, the people of India,” who came together to create a State of our
own. We created our own governmental institutions, because we believed in the
inherent right of every individual to self-determination, that is, to live her life in
the manner that she thought best. We gave the State certain powers, such as:
The power to use force in certain situations. For example, for the defence of
the country, or to prevent outbreaks of crime and violence. This is why the
State has an army and a police force.
The power to collect taxes from the people to provide for things like roads,
electricity, education and health, so that we as individuals can develop and
the country can develop as a whole. This is why the State can impose all
manner of taxes, ranging from Income tax to Service tax.
The power to enact and implement laws, rules and regulations, so that the
country can realise the goals for which it was set up. This is why the State
can make rules, such as, that no person below a certain age can be employed in
6
any establishment. Fundamental Rights
While it is we who have given this power to the State, the unfortunate truth is that the
State may sometimes use these powers against us. When this is necessary for the
promotion of the constitutional ideals, or when it is exercised in the manner that the
Constitution permits, such use of power may be acceptable. However, at the end of
the day, the State is comprised of individuals who exercise power, and sometimes,
they may not exercise these powers for the purpose that they were given. Sometimes,
they may use these powers unfairly, and that is why we need a set of rights to protect
us. The Fundamental Rights play exactly such a role, and when you read about these
rights, you should remember that a delicate balance has to be maintained between the
powers of the State and the rights of the individual. It is our judiciary that has been
entrusted with the responsibility of maintaining this balance, and the entire situation
may look like this:
Individual State’s
Rights Powers
Judiciary
Figure 4.1: Role of Judiciary
Fortunately for us, and for the framers of our Constitution, there exists a rich tradition
of fundamental rights in many important legal documents from across the world. We
were able to draw upon these when drafting our own Chapter on Fundamental Rights,
and adopted many principles from across these documents. Some of these sources of
our Fundamental Rights are:
The Bill of Rights, 1869 from England;
The United States Bill of Rights, 1787;
The Declaration of the Rights of Man, 1789 from France; and
Constitutions of countries around the world, such as Canada.
The framers of our Constitution tried to think of every possible situation where an
individual’s rights may be affected, and used language that would cover the widest
possible situations. In particular, they made sure that:
The Fundamental Rights are made available to all citizens, and some basic Rights
are available to non-citizens as well – such Rights are available to all ‘persons’,
and not just all ‘citizens’.
The people have a way to ensure that they enjoy their Fundamental Rights – the
mechanism of writ actions was provided, to make sure that we can approach the
courts and ensure that we exercise our Fundamental Rights.
7
Rights and Duties The State can place restrictions on these Rights only in a reasonable manner,
and only in certain clearly defined situations.
The State cannot change or remove these Rights according to its whims. A
clear procedure has been set out for the amendment of the Fundamental
Rights, and indeed, thus far, only one Fundamental Right, the Right to
Property, has been deleted from Chapter III of the Constitution. Even then,
this right continues to exist as a Constitutional Right under Article 300A of
the Constitution. Furthermore, this Right was removed keeping in mind the
ideal of socialism and for equitable distribution of land, wealth, and other
resources, that are enshrined in the Preamble and the Directive Principles
of State Policy.
Given these broad ideals, Chapter III of the Constitution is a fascinating legal
document indeed. Let us understand better how it works.
1) What is the basic ideology behind the Fundamental Rights?
................................................................................................................
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4.4 WATCHING THE WATCHMEN: WHOM DO WE

HAVE OUR FUNDAMENTAL RIGHTS
AGAINST?
The framers of our Constitution realised that Fundamental Rights would have to
be enforced against the State, rather than against another individual. Hence,
Chapter III starts with Article 12, which provides a definition of ‘State’. This
definition of State includes:
The Government and the Parliament of India – which would include

legislative and executive wings of the union;
The Government and Legislature of each state – which would include

legislative and executive wings of the state;
Local Authorities within the territory of India – such as a zilla panchayat,

municipalities, the District Boards, Improvement Trusts, Port Trusts etc;
Other authorities within the territory of India and under the control of the
Government of India.
8
This last provision is intriguing: what does the expression ‘other authorities’ mean? Fundamental Rights
Who are these authorities that we can enforce our Fundamental Rights against?
In the case of Ramana Shetty vs. The International Airports Authority of India,
AIR 1979 SC 1628, the Supreme Court said that if a body is an ‘agency or
instrumentality’ of the State, then we can enforce our Fundamental Rights against
it. Let us consider some such ‘authorities’:
A Statutory Corporation, such as the Life Insurance Corporation of India;
A Government Company, such as the Steel Authority of India Limited; and
A Nationalised Bank, such as the State Bank of India.
In each of these cases, let us ask: Who controls the body? Who decides its policies?
Who set up that body? Who enjoys the profits that are generated by that body?
Who does that body report to? The answer to each of these questions would be:
‘The State’. Therefore, each of these ‘authorities’ is nothing but an agency or
instrumentality of the State. Furthermore, we can enforce our Fundamental Rights
against these authorities!
Let us ask ourselves one more question before we move on: would the judiciary
also be considered ‘State’? Can we enforce our Fundamental Rights against the
judiciary also? Suppose a judge passes a decision that we think is unfair, and
discriminatory. Can you then file a writ against that judge, because you think
your Fundamental Right has been violated?
The answer is no – if you feel that a judge’s decision is incorrect, or unfair, you
can file an appeal against that decision. Moreover, as we saw at the beginning of
this Unit, it is the judiciary that is entrusted with the responsibility of interpreting
our Fundamental Rights, and it is through the judiciary that we enforce our
Fundamental Rights. There are, however, some functions of the judiciary, such
as the appointment of judges to courts, and the prescribing of rules of procedure,
that may possibly violate of the Fundamental Rights – we can think of the judiciary
as ‘State’ for those narrow purposes only. It is important to note that these functions
are not judicial, but administrative in nature.
We must also keep one more fundamental concept in mind. If Parliament, and
the Legislatures of the states are also ‘State’, then we should also be able to
enforce our Fundamental Rights against these bodies. Think about how Parliament
or legislatures can violate our Fundamental Rights. Do you think this is possible
in any manner? Yes, you have it – lawmakers may violate our Fundamental
Rights by passing laws that are opposed to the Fundamental Rights, or that defeat
the purpose of the Fundamental Rights. Another way in which Parliament may
violate our Fundamental Rights is by amending them. The Twenty-fourth
Constitutional Amendment made Parliament competent to amend the
Fundamental Rights, under Article 368. In exercise of this authority, in 1978, the
Right to Property was deleted from the list of Fundamental Rights by the Forty-
fourth amendment. Thus, the right to property is no more a fundamental right,
though it is still a constitutional right under Article 300-A. As a result, if the
legislature makes a law depriving a person of his property, there would be no
obligation on the part of the State to pay anything as compensation. If the
government appears to have acted unfairly, citizens can challenge the action in a
court, but there is no right to move the court under Article 32. You will study more
9
Rights and Duties about Article 32 under Section 4.12 of this Unit.
Doctrine of severability
There are, however, limits to the exercise of these amending powers and the Parliament
may not alter the ‘basic structure’ of the Constitution. There are situations when certain
laws may at some point come into conflict with the fundamental rights. Our Constitution,
though, provides for such situations also. Article 13 says that if any law is passed in
violation of the Fundamental Rights, or that is contrary to the Fundamental Rights, it
will be null and void to that extent. For example, suppose a law is passed that contains
15 different sections, each talking about a different matter. If 5 of these sections violate
your freedom of speech, then those 5 sections will be struck off from the law, and only
the remaining 10 will have any effect.
This is called the doctrine of severability. But if such a separation is not possible then
the whole law stands void. But what would happen to the laws that were in force
immediately before the commencement of the Constitution and which were inconsistent
with the Fundamental Rights? Article 13 also makes it clear that the ‘past laws’ which
are inconsistent with the fundamental rights are rendered null and void to the extent of
such inconsistency.
2) Identify whether each of the following qualifies as ‘State’ under Article 12.
Simply put, identify whether the Fundamental Rights can be enforced against
each of the following:
i) The Indian Olympics Committee:
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ii) Air India:

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iii) The All India Institute of Medical Sciences:

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iv) The Indian Institutes of Technology (IITs):

...........................................................................................................
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10
Fundamental Rights
4.5 KNOWING OUR RIGHTS: WHAT EXACTLY
ARE THESE FUNDAMENTAL RIGHTS?
So far, we have talked about how we, as the people of India, gave ourselves certain
rights, which are necessary for the proper functioning of a democratic society. We
also agreed that these rights are enforceable against the State, and under certain
circumstances, even against individuals. But then, what exactly are these rights?
Fundamental rights include:

The right to be treated equally before the law
The right to freedom of speech and assembly
The freedom to form associations and unions
The freedom to move freely and reside in any corner of India
The freedom to carry on a profession or occupation or trade of one’s choice
The freedom to follow any religion
The right to know the charges that are brought against oneself in a criminal matter,
and the right not to be punished twice for the same offence
A person cannot be forced to give any evidence against himself/herself
Every person also has a right to life and personal liberty
Think about this, though: what use would any of these rights be if we did not have the
means to enforce them in case of a violation? Therefore, the right to enforce your
fundamental rights, the right to have remedies against the violation of your fundamental
rights, is an essential right in itself. The Constitution even contains a specific provision
for the enforcement of these fundamental rights. Let us now try to understand the
nature of these rights, and to see the extent of protection they provide.
4.6 IS ABSOLUTE EQUALITY DESIRABLE?

Have you ever had to face a situation where one of your classmates got better marks
than you in an examination, in spite of the fact that both of you wrote the same answers?
Consider another situation: two persons with the same ability and results have recently
graduated from school. They have both applied to an educational institution, and one
of them was refused admission because she was poor, or belonged to a particular
religion.
Do you feel such discrimination is fair? It is hard to say yes!
Do you feel then, that everyone should be treated equally? At first, we would say
‘Yes!’ But then, equality does not always mean that everyone must be treated
equally: suppose that you have suffered some disadvantage that is not your fault
- because of the colour of your skin, for example. In such cases, it would be fair
for you to be given some additional support, so that you can be brought to the
same level as people who have not had to suffer such disadvantages.
The concept of equality, which seems such an obvious part of the basic human
rights, is included in our Constitution in exactly that way. The Fundamental
11
Rights and Duties Right to Equality is provided to all ‘persons’ and not just ‘citizens’, and the Constitution
guarantees ‘equality before the law’ and ‘equal protection of law’ under Article 14 to
all persons. However, ‘equality before law’ does not mean absolute equality among
all humans. The concept of equality as it exists in our Constitution may be understood
as:
‘Equal treatment of equals and unequal treatment among unequals.’
The State cannot discriminate between two people merely because of the characteristics
that they were born with, or into – but if it needs to take some special measures to
provide for the well-being or upliftment of certain sections of society, it can. Such
sections may include people from the lower castes, or women, people who have had
to suffer social, economic, or political hardships over the centuries. It is in this way
that the Constitution seeks to achieve equality among all persons.
It seems sensible to treat unlike people in an unlike manner, but how do we determine
whether two people are ‘unlike’, and more importantly, how do we decide that the
State can take special measures for the upliftment of certain sections of society?
Unfortunately, there is no clear-cut, mathematical formula to determine this. Society
changes constantly, and so, the State can differentiate between sections of society if it
is ‘reasonable’ to do so. The judiciary acts as a check on this power of the State, and
often, laws have been struck down because they did not provide a ‘reasonable’ or
rational cause for treating different sections in an unlike manner.
For example, the judiciary once held that it was unreasonable to differentiate between
air-hostesses who had not had a child, and those who had. Therefore, it struck down
a regulation that required any air-hostess to retire from service on marriage, or on her
first pregnancy, since such a differentiation was unreasonable, and arbitrary. ‘Arbitrary’
here means that there was no rational reason for distinguishing between these groups1 .
On the other hand, we know that Indian society in the previous centuries was heavily
influenced by the ‘varna’, or caste system. People from lower castes were not allowed
access to common rivers, wells and tanks. There were various inhumane practices
like sati, child marriage, and untouchability prevalent in those times. As a result of such
practices being perpetrated down the centuries, certain sections of society were not
able to realise their full human potential, and the State can provide certain benefits for
these sections: such as reservations in Government jobs, or in Government-aided
educational institutions for these people. As far as educational institutions are concerned,
the Ninety-third Amendment to the Constitution, made in 2005, provided reservation
for Scheduled Castes, Scheduled Tribes and Backward Classes in private educational
institutions, under which the government came out with the law providing 27 per cent
quota in Centrally-aided institutions. The amendment nullified the effects of the following
cases:
T.M Pai Foundation v State of Karnataka2 , AIR 2003 SC 355, where the Supreme
Court held that the State cannot make reservation of seats in admissions to privately
run institutes.
Islamic Academy Foundation v State of Karnataka3 , AIR 2003 SC 3724, where

the court held that the State can fix quota for admissions to these educational
institutions but it cannot fix fee and also admissions can be done on the basis of
1
Air India v Nargiz Meerza, AIR 1981 SC 1829
12
common entrance test and on the basis of merit. Fundamental Rights
P.A. Inamdar v State of Maharashtra4 , AIR 2005 SC 3226, the court had overruled
the judgement in Islamic Academy case, ruling to the effect that the State could
fix the quota for admissions to private professional educational institutions. The court
also held that private unaided educational institutions were under no obligation to
provide for reservation of seats for backward classes.
This amendment too proved controversial. Recently in Ashoka Kumar Thakur v

Union of India (2008) the Supreme Court upheld this law providing for 27 per
cent quota for Other Backward Classes in IIT’s, IIM’s and other Central
educational institutions, but excluded the creamy layer from the benefit.
Figure 4.2: The Concept of Equality under our Constitution
The provisions relating to equality are contained in Articles 14-18 of the

Constitution, and together, these provide a fairly comprehensive guide for the
Special
State, to determine when Provisions
it may or may to bring disadvantagedbetween two sections of
not discriminate
people to an equal
society. One of these in particular, Article 17, status
abolishes untouchability, and one
can even take an action against an individual if this right is violated.
3) Look at the instances of discrimination that are provided in the left-hand column
of the following table. In the right-hand space, write down whether you think
this discrimination is ‘reasonable’ or ‘unreasonable’.
i) A higher income tax for people who earn more.
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2
AIR 2003 SC 355
3
AIR 2003 SC 3724
4
AIR 2005 SC 3226 13
Rights and Duties
.........................................................................................................
.........................................................................................................
ii) Preventing women from joining the armed forces in combat positions.
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iii) Providing for a reduction in the minimum marks required for admission
to college for people belonging to the Scheduled Castes/ Tribes.
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iv) A law that levies a special tax on only one individual.

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v) Preventing people below the age of 18 from voting in general elections.

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4.7 BE ALL YOU WANT TO BE: THE VARIOUS

FREEDOMS
Activity 1
Suppose there is a political party called ‘The Mahanagar Army’, which seeks
to prevent the movement of immigrants into the metropolis of Mahangar.
They seek a ban on the entry of any more immigrants, and also to have the
immigrants currently residing in the city removed from the city. Do you
think the party is right in its demands? Write your thoughts down before
proceeding with this Section.
We saw that we all have the Right to Equality, so that no unfair discrimination is made
among us, and so that we are all treated equally before the law. Suppose this ideal is
realised – or even if it is not – what do you think is necessary?
You are right – the freedom to enjoy this equality, or even the freedom to criticise the
State for not achieving this equality. One of the bedrocks of our system of Government
is democracy, and the participation of all sections of society in the political process.
Even aside from this, if we are to realise our full potential as human beings, then we
must have the freedom to express ourselves, the freedom to pursue the profession or
occupation of our choice, and other such freedoms.
14
Such civil liberties are provided under Article 19(1) of our Constitution, which Fundamental Rights
guarantees us six important freedoms:
The Freedom of Speech and Expression;
The Freedom of Assembly;
The Freedom to form Associations and Unions;
The Freedom of Movement;
The Freedom to Reside in any part of the Territory of India; and
The Freedom of Profession, Occupation, Trade, or Business.
Put together, these freedoms are a very powerful tool in the hands of a citizen – and
yes, these freedoms are only available to citizens – to ensure that we can live our lives
in the manner we see fit, and to ensure that we can raise our voice against something
we think is unfair.
Think about it – if we did not have the freedom of speech and expression, artists,
writers, singers, the press – all of these would have a very difficult time surviving!
The State could arbitrarily ban the publication of certain books without giving
any reason, or prevent a political opponent from expressing her views in public.
This freedom of speech and expression has been developed over time, and now
is even taken to include the freedom of press and the right to information within
itself. It can be interpreted in many different ways – you have the right to publish
someone else’s views, for example, and not just your own – so long as your
freedom of speech and expression is exercised within reasonable limits.
Suppose, you have a school where the students are made to sing the National
Anthem every day. Some of the students in that school belong to a religious sect
called the Jehovah’s Witnesses, and their religion forbids them from singing the
praises of any entity other than God. These children stand respectfully when the
others sing the National Anthem, but do not actually sing themselves. The school
expels them. Do you think this would be a violation of their freedom of
expression?
The Supreme Court said ‘Yes!’ This would be a violation of the freedom of
expression of those children. They could exercise this freedom by not singing
the National Anthem, as long as they did not disrespect it, for example, by not
standing when the National Anthem is played5 .
Suppose, you want to get together with a few friends to discuss your common interests
– these could be anything – music, films, books, or even politics. The next time you
walk around the streets of the city or town you live in, look at all the groups standing
at street corners, vehemently arguing this or that policy of the Government. Perhaps
they are unhappy at the rise in prices, or perhaps they think that the Government did
a good thing by passing a new law. Whatever be the topic, it is part of our nature to
want to discuss and deliberate upon it with others. Wouldn’t it be terrible if we were
denied this basic human urge to communicate with others and express ourselves as
groups? The makers of our Constitution recognised this, and even inserted the freedom
of assembly as a part of our Fundamental Rights. We can take out processions and
form groups or trade unions – as long as we do all of this in a peaceful manner, and
5
Bijoy Emmanuel v State of Kerala, (1986) 3 SCC 615
15
Rights and Duties without the use of weapons.
We are lucky to live in a country that is extremely varied, and full of different wonders
and surprises. Each corner of our country is unique, and we are sure you yourself
have wanted to visit different parts of the country at some point in your life. Suppose
you have a friend or a relative in another part of the country, or suppose you want to
shift to a different city because you think you would find better job opportunities
there. We do this without a second thought nowadays, but the truth is that without the
freedom of movement guaranteed as a part of our Fundamental Rights, we would not
be able to travel the length or breadth of our country, leave alone the world. What if
you wanted to travel to another country to attend a university or to attend a seminar,
and you were denied a passport for no rational reason? Wouldn’t you be upset? Well,
now you can do something about this – you can approach a court and ask that it
protect your Fundamental Right to Freedom of Movement! Similarly, you also have
the freedom to reside in any part of the country.
Just as you cannot blow up another person’s property to express yourself, the right to
freedom of movement and to reside in any part of the country has certain limits. Certain
parts of the country may be kept ‘off limits’ for reasons of security, or to preserve the
local culture and habitat.
Have you ever had a friend who wanted to be a sports person or artist, and who was
really talented, but her parents wanted her to be a doctor or an engineer, and nothing
else? This did not seem fair on your friend at all, did it?
Similarly, suppose the Government were to choose your job or profession for you
when you graduated from high school, and you had no choice in the matter. Or suppose
that you decided to become a lawyer, but the Government abolished the profession
altogether one day, without giving any reasons.
Don’t worry! Such a thing is not possible in our country, because all citizens also have
the freedom of trade, profession, occupation, and business. Once again, this right is
not absolute, and if you want to pursue a profession that is immoral, or would cause
harm to other persons – such as trafficking in women and children, or peddling addictive
drugs, then you would not be protected by this Fundamental Right.
Let us understand a little better what these restrictions on the fundamental freedoms
might be. When can these restrictions be imposed? Articles 19(2) to (6) tell us about
these restrictions in detail. Some instances where restrictions may be imposed are:
if your freedom of expression would cause the defamation (unfair slur to
somebody’s character) of some other person;
if the exercise of your freedom is in contempt of court;
if your actions affect the security of the State, or friendly relations with
other countries;
if you incite (encourage) an offence;
if your actions affect the maintenance of public order, or the sovereignty and
integrity of India. However, such restrictions cannot be imposed by law beyond
the requirements of Articles 19 (2) to (6). Another point to be noted is that no
restriction can be imposed by executive actions alone, unless it is authorised by
law. These restrictions are subject to judicial review. Once again, therefore, there
16
is a balance to be maintained – between the freedoms of the individual, and the interests Fundamental Rights
of the collective. One good way to try and understand this balance is to remember
that you do not have the freedom to do whatever you like – but you do have the
freedom to do whatever you like as long as it does not harm somebody else.
Activity 2
In the table below, try and think of an example of how each of the fundamental
freedoms that have been named can be exercised, and an example of a
situation where you think a reasonable restriction can be imposed on that
freedom:
4.8 BREAKING THE SHACKLES: PROTECTION

AGAINST EXPLOITATION
Where do you think it is better for a 10-year-old child to be – in school, learning
how to read and write, or working in a fireworks factory somewhere? The former,
we hope!
The sad truth is that some people in our country are still subjected to the most
inhuman forms of exploitation. You may have read about instances of bonded
labour, or the buying and selling of human beings in certain parts of our country.
Article 23 of our Constitution prohibits such forms of exploitation. Similarly,
Article 24 prohibits the employment of any child below the age of 14 years in
any hazardous employment.
4.9 HIGHER DEVELOPMENT: RELIGIOUS,

Valid exercise of freedom Restriction can be imposed
The freedom of speech and ........................................................

expression.
........................................................
The freedo m t o form ........................................................

associations or unions.
........................................................
The freedom to reside in any ........................................................

part of the territory of India.
........................................................
The freedom of trade, ........................................................

profession, occupation, or
........................................................
business.
........................................................
The freedom of movement.
........................................................
17
Rights and Duties
CULTURALAND EDUCATIONAL RIGHTS
Aside from the mere necessities of everyday existence, we humans also seek other
pursuits, such as religion, education, and culture. These pursuits are fundamental to
our overall growth as human beings, and it is very important that we are able to
exercise a free choice in such matters.
For example, suppose you were forced to follow a religion against your choice, or if
you were forced to speak a language that is not your mother tongue. Don’t you think
this would come in the way of your growth and development as a human being?
The Constitution guarantees certain religious, educational, and cultural rights to each
one of us.
Under Articles 25, 26, and 28, we can profess the religion of our choice, and practice
the tenets of that religion. So a Sikh today can, for example, wear a turban or carry a
kirpan in public. We can manage our religious affairs, and run institutions and acquire
land and other property to run our religious affairs. If a Christian child so chooses, she
can attend Sunday school in Church – as can any person who seeks to acquire religious
instruction.
As always, though, a balance has to be maintained, and although you have the freedom
to practice the religion of your choice, you cannot force somebody else to give up
their religion, or to convert to your religion. Article 27 clearly provides for this. Similarly,
you cannot force a tax upon somebody – that is, you cannot force somebody to make
a compulsory payment or contribution of any kind in order to further your religious
beliefs. Article 27 clearly provides for this.
Though a democracy allows everyone to voice their views and opinions, sometimes
there may be a fear of the majority drowning out the voices of the minority. India has
a rich and varied collection of languages and cultures. It would be terrible if we were
to lose some of these cultures – and the ones in greatest danger of being lost are those
of the minorities.
It is for this reason that Articles 29 and 30 protect the educational and cultural rights of
minorities. Minorities in our country can, therefore, establish, administer, and run
educational institutions to preserve their culture and heritage. They can impart education
in their own language or script. But we must remember that at the end of the day, all of
us are one nation – regardless of which religious or cultural group we belong to – and
therefore, no citizen can be denied admission in any minority-run educational institution
on grounds only of race, caste, and language. The minorities can also establish and
administer educational institutions imparting general education or professional education
like engineering, law and medicine.
Activity 3
During festivals, various groups organise the setting up and maintenance of
religious shrines, such as pandals for Durga Puja in Bengal. Have you ever been
in a situation where somebody from such a group has come to your house and
demanded that your family pay a contribution towards the construction of a
pandal? Do you think this is a violation of any of your Fundamental Rights?
Which one, and why?
18
Fundamental Rights
4.10 ENSURING JUSTICE: PROTECTION IN
RESPECT OF CONVICTION FOR OFFENCES
You would agree that the State has to have certain powers to make sure that we can
all live our lives in a peaceful manner – so, for example, the State has the power to
investigate crimes and offences, and to punish the guilty.
But what if the State becomes overzealous in this effort to find and punish the guilty?
Would it be fair to torture someone to say that she committed a crime, or to repeatedly
punish somebody for something they did? Clearly not!
It is in order to prevent such excesses, and to prevent such unfairness, that Article 20
of our Constitution provides certain protections in respect of conviction for offences.
In very simple language, what this means is that you have the right to protect yourself
in a criminal investigation, or in criminal proceedings, from unfair behaviour, or the
excesses of the State machinery, such as the police. Let us understand how this works.
Let us take a very simple situation: suppose the Government passes a law which says
that eating meat is a crime, and that any person who eats meat in any form shall be
punished with rigorous imprisonment for a month. Perhaps there are certain legitimate
reasons why the Government passed such a law. Fair enough. But what if the law also
says that anybody who has eaten meat in the past six months would also be imprisoned?
That would be clearly unfair, because the law seeks to punish somebody who did
something in the past, when that act was not a crime! This is whyArticle 20(1) prohibits
the passing of any laws that punish any acts before the passing of the law.
Suppose I have committed a crime, and that I have been punished for it. I was sent to
jail for six months, but after I was released; I went back to my normal life, and have
been a model citizen. I have worked very hard to rebuild my life, and to contribute to
society. But suddenly, after a few years of being out of jail, the Government wants to
send me back to jail, for the same offence I committed in the past! Wouldn’t this be
unfair? Let us also think a little practically – going through a criminal trial is an expensive
and time-consuming process. I may even be sent to judicial custody as an undertrial
for some time. If, after all of this, I am found innocent, it would be very unfair if the
Government were allowed to force me to go through this entire process all over again.
This is why Article 20(2) prohibits any person from being prosecuted and punished
for the same offence twice. This is also called ‘protection against double jeopardy’.
The Governmental machinery is supposed to have been created for our welfare, and
institutions like the police force are meant to protect us. In such a situation, should the
police be allowed to torture a suspect, or use force to compel somebody to say that
she committed a crime? Of course not! Article 20(3) says that no person can be
forced to make a statement, either oral or written, against herself. So if the police
suspect that I have committed a crime, they may well question me, but they cannot hit
me, or use any form of physical force to make me say anything.
You may have seen in the media that the use of ‘narco-analysis’ or ‘truth serum’ tests
is becoming increasingly popular, especially in ‘high-profile’ cases, which have grabbed
the nation’s attention. So we have a situation where the police or C.B.I. can conduct
a ‘narco-analysis test’ on me, but this would be similar to forcing me to say something,
because I am not in control of my sense at that time. Why, then, is this allowed?
19
Rights and Duties Very simple – any statements I make while under the influence of such drugs cannot
be used against me in a court. But the police can use these statements for the purposes
of their investigation. So if in a narco-analysis test I say that I killed ‘X’, and hid the
murder weapon in my garden, the police cannot use that as a confession in court, but
they can go to my garden, and try and look for that murder weapon, and see if it has
my fingerprints on it. Similarly, if the police ask me for my fingerprints, or blood or
DNA samples, they are not forcing me to ‘make a statement’, or ‘be a witness’ against
myself. They are merely doing this for the purpose of their investigation, and this is
permitted.
There are also other safeguards to ensure that the State does not exercise its powers
in an unfair manner – for example, if I am taken into police custody, I must be produced
before a magistrate within 24 hours. Article 22 (1) requires this. My custody can be
extended – that is, I can be sent back to police custody – only if the magistrate so
orders. This is very important – otherwise, the State could pick up people, and keep
them in custody for as long as it liked, without any reason whatsoever!
4.11 A WHOLESOME AND COMPLETE LIFE: THE

PROTECTION OF LIFE AND PERSONAL
LIBERTY
Now that you have read a fair bit about the Fundamental Rights, what do you
think is the basic idea behind these rights? The idea that the State cannot exercise
its power arbitrarily, and that we all have protections and freedoms that ensure
we can live our life to the fullest, right? The next Fundamental Right that we
will look at talks about exactly this core aspect, and that is why it is probably the
broadest in scope and extent among all the Fundamental Rights.
Article 21 says that no person (and not just a citizen!) may be deprived of her life
or personal liberty except according to ‘procedure established by law’.
The State is very powerful in some ways, and it is important that these powers
are exercised for the same reasons that we, the people of India, gave the State
those powers. Remember that the State can use force through machinery such as
the police, or the armed forces, that it can arrest and detain you, and that it can
even take away a person’s life through means such as the death penalty.
What this Article says is that the State can only exercise such powers which
affect our life or personal liberty under a law which supports such an action, and
that it must very strictly follow the rules that are laid down for the use of such
power. For example, the State cannot just use physical force against a person,
unless there is a situation like a riot, where the law allows the police to use force
to restore law and order. Similarly, it cannot put you under house arrest or prevent
you from going somewhere unless there is a law which allows the State to do
that, and the State has followed all the rules that law has laid down. The procedure
and law depriving a person of his life and personal liberty must be fair, just and
reasonable.
It would be clear to anybody that this is one of the most critical Fundamental
Rights, and it, just like the rights under Article 20, cannot be suspended under
20
any circumstances, even during a proclamation of National Emergency. Fundamental Rights
Let us look at a very simple question: what does the term ‘life’ mean to you? Just a
basic day-to-day existence, with air, food, water, and shelter? But wouldn’t that just
be ‘survival’? ‘Life’ means a lot more, and the courts have interpreted Article 21 in a
very broad manner over the years. Your Right to Life under Article 21 includes such
things as:
The right to education;
The right to a clean environment; and
The right to basic human dignity.
Without all of these, ‘life’ would be meaningless indeed, and Article 21 includes all of
these necessities of life within its scope. In fact, Article 21A was recently added to the
Fundamental Rights by way of an amendment, and now, all children between the ages
of 6 and 14 have the Fundamental Right to free and compulsory education. It is
important that you understand this Article in a creative manner, so that we as citizens
can ensure that everyone has the necessities for a wholesome and complete life.
The right to life does not include right to die. In Smt. Gian Kaur v State of Punjab6 ,
one of the points raised was the inclusion of ‘right to die’ within the ambit of Article 21.
The constitutional validity of Sec 306 and 309 of the Indian Penal Code were challenged
as violating Articles 14 and 21. The bench was of the view that right to life is a natural
right embodied in Article 21 and suicide is an unnatural termination of life. Therefore,
it is incompatible and inconsistent with the concept of right to life. Hence, neither of
the sections is unconstitutional and continues to stand valid.
The term ‘personal liberty’ also should be understood in a broad sense. While it
includes such basic concepts, such as, you cannot be placed in custody without
the proper procedure laid down in law, but also, as the Supreme Court pointed
out in the case of Maneka Gandhi v Union of India7 , AIR 1978 SC 597, that
your passport cannot be impounded without any valid reasons. Right to life and
personal liberty includes freedom from torture, bonded and child labour and
sexual harassment.
4) What other rights have been incorporated into Article 21 in a broader
sense?
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4.12 THE HEART OF OUR FUNDAMENTAL
6
(1996) SCC 648 21
Rights and Duties
RIGHTS: THE RIGHT TO CONSTITUTIONAL
REMEDIES
While it is all very well of talk of the Fundamental Rights, and how much protection
and freedom they offer us, one critical question we have not talked about yet is:
How do we as ordinary people make sure that we actually get these rights?
The answer to this lies in the last Fundamental Right we will look at in this Unit – the
Right to Constitutional Remedies under Article 32.
We saw at the very beginning of this Unit that the judiciary has the tough job of
maintaining the balance between the rights of the individual on one hand, and
the powers of the State and the interests of the nation on the other hand. This is
why, if ever you think that your Fundamental Rights have been violated, or denied
to you, you can go to the courts to ask for justice.
Under Article 32, the Supreme Court has been given the power to pass certain
orders, or ‘writs’, to ensure that the Fundamental Rights are protected. Under
Article 226 the High Courts can also issue writs to enforce fundamental rights.
These writs are of five different types, and can be used as required, but the most
important thing that you should keep in mind is:
Any person, no matter who he or she is, has the Fundamental Right to go directly
to the highest court in the country to enforce their Fundamental Rights. This is
provided in Article 32 of the Constitution.
This is a mighty weapon indeed, but in order to use it, one must know about it. So let
us make sure you do!
The five writs are called habeas corpus, prohibition, quo warranto, certiorari, and
mandamus. Any one of these, or a combination of these, can be used to ensure that
the Fundamental Rights are protected. For example, if a person is being unlawfully
detained in custody, a writ of habeas corpus can be ordered to have the person
brought before the court. If a Government Department is denying your Fundamental
Right to Life by not supplying water to your village, for example, a writ of mandamus
can be issued against it, ordering to make sure that water is supplied.
Though there is a procedure that you must follow to go before the court, the Supreme
Court has even accepted a petition written on a postcard as enough for the purposes
of this Article in the past. If the situation is so grave that a person’s Fundamental Right
has been violated, the Court will step in to provide justice, even if you have not followed
all the normal rules and regulations for approaching the Court. By filing a public interest
petition any member of public can move the Supreme Court or a High Court to seek
justice on behalf of the disadvantaged people like bonded labour, child labour and
rickshaw pullers.
Without this one right, all the other Fundamental Rights would be meaningless. In one
case in the past, called ADM Jabalpur v Shivakant Shukla8 , AIR 1976 SC 1207,
the Supreme Court said that this right would not be available during a proclamation of
National Emergency. But that has been changed by an amendment, and now, this
7
22 AIR 1978 SC 597
Fundamental Right under Article 32 can never be taken away from you, even if a Fundamental Rights
proclamation of Emergency is in operation.
5) What remedies does one have in cases of infringement, or violation, of the
Fundamental Rights?
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6) Can our fundamental rights under Article 32 be suspended during emergency?
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4.13 SUMMARY
Let us now sum up what we have studied in this unit:
We saw the nature and scope of our Fundamental Rights, and understood
how they act as a check against the arbitrary use of power by the State.
Equally importantly, they ensure that we can realise our full potential as
human beings, and that we are able to lead a complete and wholesome life.
We gave ourselves these Fundamental Rights against the State, which means
the Government, and all the agencies and instrumentalities of the State, such
as Government-owned corporations.
The Fundamental Rights include the Right to Equality, which means that
‘like should be treated like, and unlike should not be treated alike.’ The
Government can make provisions for the upliftment of disadvantaged sections
of society, as long as it does this in a reasonable manner.
We also have certain freedoms, such as the freedom of speech and expression,
and the freedom of trade, profession, occupation, and business, and the State
can impose restrictions on these freedoms only if it does so in a reasonable
manner.
We also have religious, cultural, and educational rights, so that all persons,
and all minorities, can practice and profess their religion, and take steps to
preserve their culture. But this cannot happen at the expense of another
8
AIR 1976 SC 1207
23
Rights and Duties person’s liberty, so you cannot force somebody to change their religion, or deny
admission into an educational institution to someone just because of their religion,
caste, or language.
The Fundamental Rights also include the protection against retrospective criminal
laws, against double jeopardy, and against being forced to be a witness against
oneself.
Article 21, probably the broadest in scope of the Fundamental Rights, ensures
that no person can be deprived of her life or personal liberty except according
to procedure established by law. This Article has been interpreted in a very
broad sense, and has been taken to include within itself such things as the
right to education, and the right to a clean environment.
Finally, we read about the Right to Constitutional Remedies under Article

32, which any person can directly approach the highest court in the land to
enforce the Fundamental Rights.

1) Why did the makers of our Constitution provide the Chapter on Fundamental
Rights?
2) Can the fundamental rights be violated by our lawmakers and if so, then
how?
3) Do you think it is fair for the State to make special measures for the upliftment
of certain sections of society? Why?
4) The police in Udhamnagar village are investigating a crime, and they suspect
that a local ruffian, ‘Kallu’ has committed the crime. What powers do the
police have in such a case, and what can’t they do?

1) The Fundamental Rights have two basic ideologies underlying them: they
act as a check on the excessive or arbitrary use of power by the State, and
they are also proactive tools that can be used by the people of India to ensure
that they can live their life in the manner they think fit. It must also be
remembered that the Fundamental Rights are not absolute. Just as excessive
State authority may be harmful, individual rights must be balanced with the
interests of the State, and those of the collective. Therefore, one may even
say that the third basic ideology behind the Fundamental Rights is the
distillation of the principle of democracy, where each individual has the
right to participate, but never at the cost of another.
2) i) to iv) Yes
3) Except for iv), all are reasonable restrictions.
4) The Right to life (Article 21) also includes freedom from torture, bonded
and child labour and sexual harassment.
5) Rights without the means to enforce them would be meaningless. Hence,
24
the Constitution also provides the mechanism for the enforcement of the Fundamental Rights
Fundamental Rights under Article 32. This is a Fundamental Right in itself,
the Fundamental Right to Constitutional Remedies. Once the court is
convinced that a violation of a Fundamental Right has taken place, it can pass
certain orders, called ‘writs’. These writs are of five types, and can be used in a
variety of ways to ensure that the violation of the Fundamental Right is stopped,
and that the State corrects any wrong actions.
6) No, our fundamental rights to move the courts under Act 32 cannot be suspended
even during emergency.
Terminal Questions

S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing
Limits (New Delhi: Oxford University Press, 2002).
S.K. Verma and Kusum eds, Fifty Years of the Supreme Court of India: Its
Grasp and Reach (New Delhi: Oxford University Press, 2000).
25
Rights and Duties
UNIT 5 DIRECTIVE PRINCIPLES OF
STATE POLICY AND
FUNDAMENTAL DUTIES
Structure
5.1 Introduction
5.2 Objectives
5.3 Nature and Scope of the Directive Principles of State Policy
5.4 The Directive Principles as a Roadmap
5.5 Juggling Priorities
5.6 Evaluating our Performance
5.7 Fundamental Duties
5.8 Summary
5.1 INTRODUCTION
India was a country in turmoil when the makers of our Constitution were drafting
the broad set of rules that would bind us as a nation. The partition riots were
wreaking havoc in some parts of the country; in others, people were starving;
and in most parts, most people were illiterate, and uneducated.
Yet, we, the people of India, decided to set ourselves some fairly tough goals.
We decided that this would be a sovereign republic, and that we would ensure
that all of us were able to live our lives to the fullest. Were these goals impossible?
And if they are, is it any use trying to believe in these goals and achieve them?
If they are impossible, then there is clearly no point in putting them down in our
Constitution – but we found a way of making these seemingly impossible goals
seem achievable. How did we do this?
In order to achieve these lofty ideals, we set ourselves some clear milestones,
some fundamental objectives that we should all try to achieve. These milestones
are known as the Directive Principles of State Policy. These are the steps in the
ladder that may help our country transform impossibility into reality.
If the directive principles are duties imposed on the State, our Constitution imposes
certain fundamental duties on the citizens too. Even though both sets of duties
can not be enforced, they act as guiding principles and help us – State and citizens
– to achieve the promise we have made ourselves in the Preamble.
In this Unit, we will turn our attention to these milestones, these goals that we
have set for ourselves. We will try to understand how they are effective in helping
India achieve what others may think impossible.
26
Directive Principles of State
5.2 OBJECTIVES Policy and Fundamental
Duties
explain the basic nature and concept of the Directive Principles of State Policy
under the Indian Constitution;
explain whether the Directive Principles are effective at all, and if so, how they
can be implemented;
identify what these Directive Principles are, and be able to evaluate the progress
that successive governments have made in achieving them;
analyse the relation between the Directive Principles and the Fundamental Rights.
explain the nature and importance of Fundamental Duties.
5.3 NATURE AND SCOPE OF THE DIRECTIVE

PRINCIPLES OF STATE POLICY
We are used to living in a democracy. We are used to having a voice in the
government’s decision making process. We are used to being able to throw the
current government out if we feel that they are not doing a great job. Why do we
do this? Why do we think this is important?
Perhaps the answer lies in the fact that our ability to think, to reason, and to
question the actions of those in power, is not automatically suspended the day
the elections are over. As citizens in a participative democracy, we do not stop
thinking about the future of our country just because we have elected a new
government and put a new set of people in power. We do this because human
thought is fickle, and sometimes those in power may not be consistent in their
decision-making.
However, if the government is already in power, what can we do if we do not

like its policies, except to criticise it through peaceful means? Don’t you think it
would be a good idea to have a broad path laid down for the government to
follow, so that it does not stray too far from what WE, the people of India, want
it to do?
It is exactly this purpose that the Directive Principles of State Policy fulfil. The
Directive Principles are like a set of ideals, or goals, that each government should
try and fulfil. No matter what the policies or plans of the political party in power,
it can only act in a manner that would be consistent with these broad ideals.
Otherwise, we would have a situation where the country changes direction
dramatically every time there is an election! We would be no better than a country
that is ruled by a series of dictators, with each dictator in turn doing whatever he/
she wishes with the country!
Seen like this, the Directive Principles help guide the government of the day,
and bring about a sense of stability to the direction of the country’s progress.
This means that the Directive Principles are a way of ensuring that the country
progresses consistently over time, rather than heading off in a different direction
every five years or so.
The Directive Principles can also be seen as a check upon the arbitrary use of State
27
Rights and Duties power. This means that the government of the day cannot destroy all the work that has
been put into developing the country over the years, simply because that work does
not agree with its own whims and fancies.
Our Directive Principles, therefore, is the steady anchor that holds the national ship
steady amid the turbulent tides of time. But does this mean that they bind us to decisions
made decades ago, which we cannot change at all? Of course not! If enough of us
believe that the Directive Principles need to be changed, this can always be done by
way of an amendment to the Constitution.
Two last questions before we look at what these Directive Principles actually are: if
these goals are difficult to achieve – some may even say ‘impossible’ within the limited
terms that governments have in power – then do we have the right to go to court
against a particular government for its failure to implement any Directive Principles?
Clearly not! This is the reason why the Directive Principles are not enforceable like
your Fundamental Rights. Very simply put, you can go to a court and ask for an order
(which we now know is called a ‘writ’) to make sure that you get your Fundamental
Rights. But you cannot go to a court and ask for an order to be passed against the
Government simply because it has not been able to achieve one of the Directive
Principles of State Policy.
Finally, does this mean that the Directive Principles are meaningless? No. As we saw,
they give direction and purpose to the government’s policies, and are vital as a
benchmark against which we can judge the government’s performance. These are
also given a lot of importance in the hierarchy (the order of superiority) in our
Constitution, to the extent that a law that enforces a Directive Principle of State Policy
may not be struck down by the courts, even if it restricts a Fundamental Right. We will
see how this works in more detail in a later part of this Unit.
1) What is the primary function of Directive Principles?
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5.4 THE DIRECTIVE PRINCIPLES AS A

28
ROADMAP Policy and Fundamental
Duties
Now that we have a fair idea of what the Directive Principles of State Policy are
supposed to do, let us try and see what exactly they say. What are these ideals
that we are supposed to achieve? Once we know this, we can better understand
how they can be put into effect and, very importantly, judge how successful we
have been as a nation in achieving these goals since Independence.
The Directive Principles are in Part IV of our Constitution. You would remember
that Part III talks about the Fundamental Rights. The fact that the Directive
Principles are put immediately after the Fundamental Rights shows how important
our Constitution-makers considered them to be.
The first two Articles in Part IV, Articles 38 and 39 tell us very clearly how the
Directive Principles are meant to be used. Article 37 tells us that the Directive
Principles cannot be enforced in a court of law. We saw the meaning of this in
the previous section – you cannot go to court and ask for an order against the
government because you think that they have not achieved any of the Directive
Principles. The next Article, Article 38, though, clearly states that State should
try and keep these Principles in mind when creating policies for the country. It
says that the State should ‘strive for the welfare of its subjects [people like you
and me!] by securing and protecting social order, in which justice – social,
economic and political – shall inform all the institutions of life.’ Notice how
these ideals of justice are the same as the ones set out in the Preamble of the
Constitution. Does this give you an idea of how important the Directive Principles
are considered to be in the Constitutional framework?
What, then, is ‘social justice’? The Supreme Court explained this concept in the
case of Air India Statutory Corporation v United Labour Union, AIR 1997 SC
645 as a complex set of social changes that are necessary to make the lives of all
the people of the country more liveable. This applies especially to the poorer and
more deprived sections of society. The idea, then, is to try and bring all the
people of the country to a level where they can enjoy a standard of life that
allows them complete room for growth and development. Does this concept
seem familiar to you? Yes, that’s right – it is exactly the same concept we saw
when we were reading about the concept of ‘Equality’ under Article 14 of the
Constitution in the previous Unit!
Now, let us ask ourselves what inequalities exist in our country’s society, which
the Directive Principles seek to remove. If you think about it carefully, some of
these inequalities would be:
The inequalities between men and women, such as the fact that women are
sometimes not paid as much as men, even if they do the same amount of
work;
The inequalities between the rich and poor, which often arise because the
poor do not have access to the means of production – which means that they
do not have the ability to create wealth, for example by building their own
businesses or factories;
The inequalities between those who have access to proper medical facilities and
those who do not; and
29
Rights and Duties The inequalities between children who have access to education, and those who do
not. Such children who are unable to get an education are often the same children who
suffer exploitation.
Privileged Sections of Society
Women Children Poor Scheduled Castes/Tribes

Figure 5.1: Upliftment of people who suffered without any fault, and who need to be brought
at par with the privileged sections of society.
Article 39 sets out these inequalities and directs the State to strive for their removal.
This Article has been put into effect in part – we now have a law in the country which
prohibits the employment of children below the age of fourteen in any hazardous
industry.
You may sometimes have wondered how the government, which is based in the capital,
can think about the problems of all the people in the country, and how it can possibly
solve the problems that arise in the smallest villages. You are not alone in wondering
about this! Article 40 encourages the development of a system of local self-government.
It says that the State should try and set up systems like village panchayats. This is
because the people who are on the ground are best able to identify their problems,
and can find the best solutions for them. This, too, has been put into effect to some
extent, and panchayats are a common feature in India.
Not only that, in some states there also exists a system for ‘recall’ of candidates
elected to these local bodies. If the people do not like the work that elected
candidates have done while in office, they can vote them out of power!
Article 41 says that the State, ‘within the limits of its economic capacity’, should
try and secure the right to work, to education, and to public assistance in cases of
unemployment, old age, sickness, and disablement, and other such cases. You
need only look around you to realise that this ideal is far from realisation. Not
only that, the courts have interpreted this Principle in a slightly narrow manner –
they have said that if somebody loses their job because of a failure of the government
– say because the government cannot supply electricity to a factory, then the government
does not have to pay compensation to that person.
30
The next three Articles, 42, 43, and 43A, focus on the right to work, and encourage Directive Principles of State
Policy and Fundamental
the participation of workers in management. Duties
The next Directive Principle we shall read about is slightly controversial. Article
44 says that the State should try and put in place a ‘Uniform Civil Code’ in the
country. Today, the ‘personal laws’ governing each person depends upon their
religion. This means that the laws relating to matters such as marriage, divorce,
succession, and adoption are different for people from different religions. Since
we have a large number of religions co-existing in our country, this ideal has
been difficult to realise. Do you think that the State should at all try and realise
this Directive Principle? Is it fair for the government to interfere in such matters?
On the other hand, can the State allow inequalities between people from different
religions to continue? For example, a woman belonging to one faith may have
the right to maintenance after divorce, but a woman belonging to another faith
does not.
A tricky question, indeed!

One Directive Principle that has been realised in theory is Article 45, which
encourages the State to try and provide for free and compulsory education for all
children till the age of fourteen. We now have a Fundamental Right under Article
21A that provides for this. However, but you would agree that there are still a lot
of children below the age of fourteen who do not have access to education, and
are forced to work for a living.
Article 46 gives sweeping directions to the State to strive for the welfare of the
‘weaker sections of society’. But the problem is that this term has not been clearly
defined anywhere in our Constitution. Traditionally, though, the focus under this
Article has been on groups such as the Scheduled Castes and Scheduled Tribes.
The next Article, Article 47, focuses on health and nutrition. It encourages the
State to raise the level of nutrition and standard of living of its people.
Furthermore, it also encourages the prohibition of the consumption of intoxicating
drinks and drugs, except for medicinal purposes.
A large percentage of the people in our country – more than half – work in the
agricultural sector to earn their living. If this is the case, it is obvious that the
State should try and take steps to improve and modernise agriculture and animal
husbandry in the country. This is exactly what Article 48 talks about. That Article
also goes on to direct the government to try and prohibit the slaughter of all
milch and draught cattle.
The landscape of our country is dotted with historical monuments. We have a

rich heritage, a combination of many cultures from different parts of the world,
and these monuments are symbols of that heritage. This is why Article 49 directs
the State to take steps to preserve every monument, place, and object of artistic
or historic interest. But think about the last time you took a holiday to visit such
a place – chances are that that monument would have been scarred by graffiti.
The Taj Mahal, which is recognised globally as a symbol of Indian culture is
now being slowly destroyed – pollution is ruining the marble of this monument. Do
you think that this Article has been realised?
We know by now that one of the pillars of our system of government is the separation
31
Rights and Duties of powers between the executive, legislature, and judiciary. We have also seen how
the judiciary is entrusted with the responsibility of keeping a check on the arbitrary use
of power by the legislature and the executive. For this reason, Article 50 encourage
the State to preserve and encourage the independence of the judiciary.
You may have heard the phrase ‘no man is an island.’ Similarly, our nation cannot
survive by itself, cut off from the rest of the world. Article 51, the last of the
Directive Principles directs the State to try and promote international peace and
security. This is necessary for India to gain its rightful place as one of the prominent
nations of the world. Think about this, and perhaps India’s struggle to gain a
permanent place on the Security Council of the United Nations would make
more sense to you!
2) How have the courts tried to give effect to the Directive Principles over
the years?
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5.5 JUGGLING PRIORITIES

The only problem with trying to achieve very difficult goals is that they may
come at the cost of other priorities. Now that we have a good idea of what the
Directive Principles of State Policy are, and how they are supposed to be used,
let us understand what would happen if a law that tries to put a Directive Principle
into effect restricts one of your Fundamental Rights.
Let us take a small example to discuss this, and to understand this better. Suppose
the Government of a particular state passes a law, which says that since there is
a shortage of agricultural labour in some districts in that state, there would be a
ban on anybody working in the cotton industry in that state. The law says that if
anybody tries to employ workers in the cotton industry, they would be punished.
The reason offered for this is that this would free up enough people to work as
agricultural labour, and that this is being done to enforce the Directive Principle
under Article 48, which directs the State to promote agriculture.
Now, the cotton manufacturers in that state challenge this law in court, saying
that it violates their Fundamental Right to freedom of trade, profession, occupation
and business under Article 19(1) (g). They say that if people are not allowed to work
in the cotton industry, they would have to stop their businesses, and close down their
factories.
How would you decide this case?

32
The answer does not seem very simple, does it? On the one hand, you have a Directive Principles of State
Fundamental Right, which is considered one of the most basic features of our Duties
Constitution. On the other, we have a Directive Principle of State Policy, which
is considered an ideal that the State must head towards – some may even say that
it is the very reason for the existence of the State.
In the early years of independent India, courts used to lay much more emphasis
on the Fundamental Rights, and if a law tried to restrict a Fundamental Right, it
would be struck down – even if it was trying to enforce a Directive Principle.
But then, there was a realisation that this would have a bad effect upon the concept
of Directive Principles. If they are not enforceable in a court of law anyway, and
if the courts strike down a law trying to put them in place on the grounds of a
restriction on the Fundamental Rights, then Part IV of the Constitution would be
rendered completely meaningless.
According to the Supreme Court the fundamental rights and directive principles
constitute the “conscience of the Constitution” and both are complementary to
each other. In many cases the Supreme Court has interpreted fundamental rights
on the guidelines supplied by the directive principles. The two have to be
harmoniously construed. When a question is placed before the court, about
whether a law trying to enforce a Directive Principle, that also restricts a
Fundamental Right, should be allowed to exist, the court will typically ask three
types of questions:
What is the extent of the restriction? Is it absolute, or partial? If the restriction

on the Fundamental Right is absolute, that is, complete, then the law would
probably be cancelled.
What purpose is the government trying to achieve through that law? Is it to

enforce a Directive Principle? And is there a reasonable connection between
that purpose, and the restriction that has been placed on the Fundamental
Right? This is also known as the ‘nexus’ question. If the government can
show that there is such a connection, and that putting that restriction in
place would help the enforcement of the Directive Principle, then the court
may allow the law to continue; otherwise, it would strike it down.
Finally, the court will ask whether there was any way of enforcing that
Directive Principle, other than by placing a restriction on a Fundamental
Right. If there does exist such an alternate way, then the court will strike
down that law, and the government will have to adopt that other method if
it really wants to enforce the Directive Principle. If there is no such other
way, then the court may allow the law to stand.
Now, let us try and apply these questions to the situation we discussed.
Was the restriction absolute, or partial? In this case, the restriction placed
on the Fundamental Right of trade, profession, occupation and business of
the persons employed in the cotton industry was complete. The law said
that anybody trying to employ workers in the cotton industry would be punished.
On this ground, therefore, the court may strike the law down as invalid.
What was the purpose behind the law, and was there a nexus with that purpose?
In this case, the purpose behind the law was to enforce the Directive Principle
33
Rights and Duties under Article 48. The government can argue that there exists a reasonable
connection between this purpose, and the restriction placed on the Fundamental
Right under Article 19(1) (g). It can argue that the cotton industry is employing
too many people, and that is the reason why there is a shortage of labour in the
agricultural industry. On this ground, therefore, the court may say that the law is
valid.
Finally, let us consider if there was any other way of enforcing that Directive
Principle. The government may argue that the only way to obtain agricultural
labour in districts that were facing a shortage would be to prevent people
from working in the cotton industry. But then, wouldn’t it be a far simpler
solution to have people from other districts come and work in the agricultural
sector wherever there was a shortage? Of course! And wouldn’t this mean
that there is no need to place a restriction on any Fundamental Right? Again,
the answer is clearly ‘Yes!’ On this ground, therefore, the court may hold
the law to be invalid.
Now, let us step back and consider whether the law would be valid. If you consider
the responses to the three questions above, and all the things we discussed, it
would now be clear that the law will be struck down. What seemed a complicated
question now has a fairly simple answer!
5.6 EVALUATING OUR PERFORMANCE

We now have a good understanding of how the Constitution-makers expected
the Directive Principles to work, and what these Directive Principles are. We
also saw the relationship between the Directive Principles and the Fundamental
Rights, and we now understand that the courts always try and balance these
interests, using the doctrine of ‘harmonious construction’, which we discussed.
But given all of this knowledge, we must now ask ourselves honestly as a nation
whether we have achieved all these lofty ideals we set for ourselves. We may
have thought of some fantastic goals, and also put in place a good system to
bring them to reality, but have the successive governments since independence
really been able to do this?
There is today a Fundamental Right to free and compulsory education for all
children up to the age of fourteen, under Article 21A, but we know that this ideal
is far from the actual truth – there are still countless children who have to work
in often hazardous conditions to survive. This is not a problem of the villages or
semi-rural places alone – cities are full of children who work at roadside
restaurants, workshops, and even in people’s houses as domestic servants.
People belonging to the scheduled castes have had to struggle for their right to
basic human dignity for centuries. The history of caste struggle in India is long
and bloody, and even as recently as a few decades ago, organisations like the
‘Dalit Panthers’ in Maharashtra were so frustrated at the ill-treatment of their
community by the government that they took to violent means to have their
voices heard. While we cannot condone the use of violence as a means of protest
in civil society, instances like this highlight the terrible conditions that people in
our country are often forced to live in. Read the newspaper carefully for a week,
and chances are that you would come across at least one story that talks about
34
how a persons belonging to a lower caste has been tortured and killed for an offence Directive Principles of State
as trivial as taking water form the village well, or entering the compound of a temple Duties
meant for the higher castes. Untouchability has officially been abolished, and this one
measure has been successful to some extent. We now have the Prevention of Atrocities
on Scheduled Castes and scheduled Tribes Act, 1989 which makes offences against
people belonging to the scheduled castes punishable. Caste politics has become a
feature of Indian politics, and caste often holds the key to unlocking the identity of the
next government. This shows that the lower castes have at least been able to make an
impact upon the electoral process. Reservations in educational institutions, and in
government jobs, are a reality in India today.
Even the so-called ‘modern’ face of India bears its blemishes – try and find out who
the leaders of Indian industry are, and chances are that you would come across very
few women. In many families living in the most metropolitan cities, girls find it difficult
to convince their parents to let them pursue higher education. Dowry deaths abound.
Unemployment is rampant, and state-run initiatives have had questionable impact upon
this problem. Thousands of villages across the country still lack basic amenities like
electricity and water.
The judiciary is often asked to interpret the ideas set out in the Directive Principles,
and the results have been mixed. For example, in one very famous case called
the Shah Bano case, Mohammed Ahmed Khan v Shah Bano Begum and others,
AIR1985 SC 945 the Supreme Court upheld a Muslim woman’s right to receive
maintenance from her husband after divorce, a giant leap towards realising the
ideal of a Uniform Civil Code set out in Article 44. But in another case, Delhi
Development Horticultural Employees’ Union v Delhi Administration, AIR 1992
SC 789 the Supreme Court said that the government did not have any obligation
to provide regular employment to people who were rendered jobless once the
government had ended any of its employment schemes. Two steps forward, one
step back?
The report card, therefore, is mixed. There are more red marks than distinctions.
Why do you think this has happened?
Maybe, just maybe, the problem lies in the fact that most of us think that the
responsibility for creating a true welfare state, in which all the people of the
country can live in conditions that support their growth and development, is that
of the government alone. The solution to this though is obvious – we have to
stop thinking of this as somebody else’s responsibility, and start taking actions
to remedy the wrongs we see. In the words of the Father of the Nation: “Be the
change you want to see in the world.”
If we believe in and work towards realising the ideals set out in our Directive
Principles of State Policy, we will not only have believed in, but actually made
true, innumerable impossible things before the day of Indian democracy has
faded out.
5.7 FUNDAMENTAL DUTIES

Now that we have a better and clearer idea of what fundamental rights and
directive principles are, we move ahead to another crucial feature of the Indian
Constitution- the fundamental duties. As studied in the earlier units, Part III of
the Constitution confers certain fundamental rights to its citizens and other
35
Rights and Duties individuals, and Part IV imposes certain directives on the State to follow whilst enacting
laws. However, the individual cannot just have rights and expect the State to abide by
the directives while doing nothing to protect and promote the integrity and unity of a
nation as a good citizen. This was the very purpose of the fundamental duties- to
confer upon every citizen some specific responsibilities that naturally accompany the
extension of certain freedoms. Fundamental Duties were incorporated into the
Constitution by the Forty-Second Amendment in 1976. Part IV-A of the Constitution
enlists the Fundamental Duties in Article 51A, which lays down that it is the duty of
every citizen of India -
to abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem,
to cherish and follow the noble ideals which inspired our national Struggle
for freedom,
to uphold and protect the sovereignty, unity and integrity of India,
to defend the country and render national services when called upon to do
so,
to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities, to renounce practices derogatory to the dignity of women ,
to value and preserve the rich heritage of our composite culture,
to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for the living creatures,
to develop the scientific temper, humanism and the spirit of inquiry and
reform,
to safeguard public property and to adjure violence,
to strive towards excellence in all spheres of individuals and collective activity
so that the nation constantly rises to higher levels of endeavour and
achievement.
As a result of the 86th Amendment of 2002, an additional duty was added to the
existing ones. Article 51 A (k) requires every citizen of India who is a parent or
a guardian, to provide opportunities for education to his child, or, as the case
may be, ward, between the ages of six and fourteen years.
Very few constitutions of the world specifically provide for the duties and
obligations of citizens. Among Socialist countries, the Yugoslavian and Soviet
Constitutions lay great emphasis on citizens’ duties. Among the democratic
constitutions, the Japanese Constitution mentions certain duties of its citizens.
In Australia, Britain and Canada the rights and duties of citizens are governed by
the Common law and its judicial decisions. A mere passing reference of duties is
found in the French Constitution whereas no reference to duties is found
whatsoever in the American Constitution. This, however, does not mean that
citizens of these countries are free to be undemocratic in their behaviour. If we
could imbibe the importance of our elementary duties and obligations through
education, then not listing the duties in the Constitution may not affect/ hinder
their implementation. Realising the importance of the role of education in creating
this awareness, the Supreme Court in M.C. Mehta (2) v Union of India1 , (1988)
1 SCC 471 held that under Art 51-A (g) it is the duty of the Central Government
36
to introduce compulsory teaching of lessons on the protection and improvement of the Directive Principles of State
natural environment in all educational institutions of the country. The Court also Duties
suggested spreading awareness of cleanliness by conducting cleanliness programmes
in villages, towns and cities.
It should be remembered that Art. 51A does not contain any provision for the
enforcement of duties, and this unenforceability, as with directive principles,
has been considered a major drawback. However, we have seen judicial reforms
that have helped the situation improve, and responsibilities being enforced.
People hardly abide by the Constitution because they hardly follow the law.
How many of us obey traffic rules? Our public telephone booths and bus stops
are often vandalized, and most of our historical monuments have become
canvasses for crude graffiti. We see injustice being done to our fellowmen at
work, in market places and on streets, and all that we do is to stand there as silent
spectators. When we want to be heard, riotous behaviour is our immediate
approach. Environmental awareness needs to be worked hard on. Disposal of
domestic and industrial waste in rivers, piles of plastic bags at every nook and
corner are just a few problems we face today. Smuggling of our art specimen is
rampant. Trade in animal parts is, despite stringent laws, a full-fledged industry.
Being a social animal, a human being lives for the good of himself/herself as
well as of others. It is this knowledge of what is right and wrong that makes an
individual responsible to oneself and to society, and this knowledge can only be
inculcated by imbibing and clearly understanding one’s citizenship duties. The
fundamental duties are the foundations of human dignity and national character.
If every citizen performs his duties irrespective of considerations of caste, creed,
colour and language, much of the malaise of present day polity could be contained,
if not eradicated, and the society as a whole uplifted. Rich or poor, obedience to
citizenship duty, at all costs and risks, is the essence of civilized life.
Active participation in the governance process is important for a successful

democratic republic. If citizens continue to ignore their responsibilities and fail
to discharge their duties, a democratic republic will soon fall weak.
4) What is the rationale behind including Fundamental Duties?
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5.8 SUMMARY
The Directive Principles are like a set of ideals, or goals, that each government
should try and fulfil. The Directive Principles can also be seen as a check
upon the arbitrary use of State power. Though they are not enforceable in a
1
(1983) 1 SCC 471 37
Rights and Duties court of law, and we cannot file a case against the government for not being able
to realise the ideals of the Directive Principles, they are far from meaningless.
They ensure stability and consistency in the country’s development.
The Directive Principles are in Part IV of our Constitution. They identify a number
of inequalities that exist in Indian society, and direct the government of the day to
work towards eliminating these inequalities. These inequalities could be between
men and women, between the rich and the poor, or between people born into
different castes. The Directive Principles also show the path to preserving our
heritage, and building a brilliant future by projecting India as a leader on the
global stage.
The Directive Principles must be read together with the Fundamental Rights, and
the ideals under both have to be protected and realised. It is not as if one must go
for the survival of the other – the doctrine of harmonious construction evolved by
the Indian courts has provided a clear method of doing this.
We have had a mixed record of realising these ideals, and there is still a lot of
work left to be done before we can say that the mission of the Indian State in
realising these Directive Principles of State Policy has been accomplished. The
responsibility for doing this is not only that of the government of the day, but also
ours, as responsible citizens of our country.
The very purpose of the fundamental duties is to confer upon every citizen some
specific duties to balance their rights. Fundamental Duties were incorporated
into the Constitution by the Forty-Second Amendment in 1976. Later on, with
the Eighty Sixth Amendment in 2002, one more duty of providing every child
with opportunities of education was added to the existing duties. Part IV-A of
the Constitution thus enlists eleven fundamental duties in Article 51A.
These duties are confined to citizens, and the Indian Constitution is amongst
those few constitutions in the world that specifically enlist fundamental
duties. By the very nature of these duties, they are not enforceable by law.
However, over the years, the judicial and legislative practices have laid great
emphasis on their sincere performance.

1) One criticism that is often levied against the Directive Principles of State
Policy is that since they are not enforceable, they are meaningless, and serve
no purpose whatsoever. Do you think this is true? What purpose do the
Directive Principles of State Policy serve in our Constitution?
2) Suppose the government of a state passes law banning the slaughter of all
milch and draught cattle below the age of seven years. The Butchers’
Association of that state files a writ petition, claiming that their Fundamental Right
to freedom of trade, profession, occupation and business under Article 19(1)(g)
has been violated. Do you think the law is valid? Try and provide detailed reasons
for your decision

38
Self-assessment Questions Directive Principles of State
Duties
1) The Directive Principles provide ideals or goals for the government to work
toward. The Directive Principles give direction and purpose to the
government policies and help the citizen to judge the performance of the
government. It is true that one cannot go to court to enforce the Directive
Principles in the same way as the Fundamental Rights. It is also true that a
failure to achieve any of the Directive Principles would not automatically
disqualify a government from office. However, this does not mean that they
are meaningless.
2) Though the Indian judiciary was reluctant at first to allow any restrictions
on the Fundamental Rights on the grounds of achieving the Directive
Principles, this attitude has changed with time. The courts have evolved the
doctrine of harmonious construction, under which they try and balance the
ideals of the Directive Principles and the Fundamental Rights. The position
now is that a restriction on a Fundamental Right may be allowed in order to
achieve a Directive Principle of State Policy, if certain basic conditions are
met, such as that there was no way of achieving the Directive Principle
other than by placing a restriction on the Fundamental Right.
3) There are two ways of answering this question:
We can try and take each Directive Principle in turn, and then see if it has
been realised in India today. This approach will show us a mixed response:
child labour is far from eradicated, but untouchability is much less prevalent
now than it was a few decades ago, and the scheduled caste and scheduled
tribe community is a powerful force in Indian politics. Successive Indian
governments, therefore, have had mixed results from this perspective.
The other way of examining this issue is by looking at the development of

the Indian State in the decades since Independence. Though different political
parties have been in power, and though these parties may have had very
different ideologies and goals, the Directive Principles of State Policy have
remained a constant guiding star to the person in power, and have been
extremely successful in ensuring the continuous development of the Indian
welfare state.
4) Fundamental Duties are listed in Article 51A of Part IV of the Constitution

of India. These duties are confined only to the citizens of India. The aim of
inserting fundamental duties is to remind the citizens about their duty towards
the country. The fundamental duties expect the citizen to become responsible
and strive towards the overall development of the nation. India is among
the few nations of world to specifically provide for fundamental duties.
However, these duties are not enforceable by law. The courts have broadly
interpreted the duties and have clearly stated that fundamental duties are no
less important than fundamental rights.
Terminal Questions
39
Rights and Duties
H.M. Seervai, Constitutional Law of India (New Delhi: Universal, 4th ed.
2005).
40
UNIT 6 CONSTITUTIONAL REMEDIES Policy and Fundamental
Duties
Structure
6.1 Introduction
6.2 Objectives
6.3 Article 32
6.4 The Writs
6.4.1 Habeas Corpus
6.4.2 Mandamus
6. 4.3 QuoWarranto
6.4.4 Prohibition
6.4.5 Certiorari
6.5 Article 226
6.6 Summary
6.1 INTRODUCTION
“If I was asked to name any particular Article in this Constitution as the most
important – an Article without which this Constitution would be a nullity – I
could not refer to any other Article except this one. It is the very soul of the
Constitution and the very heart of it.” Dr. Ambedkar on Article 32 during the
Constituent Assembly Debates1
Part III of our constitution gives us certain fundamental rights. As you know, a
right without an effective remedy is meaningless and a worthless declaration. A
right becomes meaningful only if it can be enforced through a court of law.
Hence, our constitution makers provided a remedy for the enforcement of our
fundamental rights in the constitution itself. The right to move the Supreme
Court where a fundamental right has been infringed is itself a fundamental right.
It is a constitutional remedy which has been guaranteed by the Constitution.
In order to provide an effective and accessible mechanism for the protection of
fundamental rights, our constitution confers power on both, the Supreme Court
and the High Courts, to grant effective and speedy remedies whenever such rights
are violated. This power conferred on the high courts under Article 226 is broader
in scope as a high court can be approached ‘for any other purpose’ too. This
means that a high court can also determine if any other legal right has been
infringed, apart from a fundamental right.
The courts can issue any order, direction or writ in a case under Articles 32/226.
A Writ Petition is a very effective method for seeking enforcement of fundamental
rights. What is a writ? We will, in this Unit, discuss the powers of the Supreme
Court and High Courts under Articles 32 and 226 respectively, and the various
writs that are available for enforcement of our fundamental rights.
1
Mahendra P. Singh ed, V.N. Shukla’s Constitution of India 318 (Lucknow: Eastern Book
Company, 11th ed. 2008). 41
Rights and Duties
6.2 OBJECTIVES
explain the various writs;
apply your understanding of writs to develop strategy for enforcement of a
fundamental right in a given fact situation.
6.3 ARTICLE 32
Article 32 (1): “The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this Part is
guaranteed.”
The effect of the word ‘guaranteed’ in clause (1) of Article 32 is that the right to
move the Supreme Court, when a fundamental right has been infringed, is itself
a fundamental right. The Supreme Court is the guarantor and protector of
fundamental rights. The following consequences flow from this guarantee:
i) Supreme Court is the guarantor and protector of fundamental rights and it is
the duty of the Supreme Court to grant relief under Article 32 where a
fundamental right has been violated.
ii) The right cannot be suspended except under national emergency declared
under Article 359.
iii) An aggrieved person can approach the Supreme Court directly. He need not
move a High Court.
iv) Availability of alternate remedy is not a bar to the relief under Article 32.
v) The right under this Article cannot be abrogated or taken away by any
legislation.
In order to make this guarantee more meaningful, as a majority of Indians can
not access the court for reasons, such as, poverty and ignorance, the Supreme
Court has interpreted the expression ‘appropriate proceedings’ in clause (1) of
Article 32 liberally. The court has construed it to mean any proceeding for the
enforcement of a fundamental right. Therefore, the ‘appropriateness’ of a
proceeding under this Article is determined by the purpose for which the
proceeding is initiated, which is enforcement of fundamental rights.
According to the traditional rule, also known as the Rule of Locus Standi, the
right to move the court for judicial redressal was available to only those whose
legal right or legally protected interest has been infringed. No one other than the
person whose right is infringed could move the court.
In the early eighties, the Supreme Court relaxed the rule of locus standi to enable
a public spirited citizen to approach the court for the enforcement of the
fundamental rights of persons who due to reasons, such as, poverty and ignorance
could not approach the court. In cases, such as, People’s Union for Democratic
Rights v Union of India2 , the Supreme Court ruled that in the event of a public
wrong or public injury, any member of the public acting in good faith can approach
the Court on behalf of those persons who have suffered the wrong and are unable
2
42 AIR 1982 SC 1473
to petition the court due to their socially and economically disadvantageous Constitutional Remedies
position.This procedural relaxation benefited groups, such as, undertrial prisoners
and bonded labourers who otherwise would not have been able to approach the
court for enforcement of their fundamental rights.
The Supreme Court, in Bandhua Mukti Morcha v Union of India3 , said that the
requirement of appropriateness in clause (1) of Article 32 must be judged in the
light of the purpose for which the proceeding is to be taken, namely, enforcement
of a fundamental right. In this case, which dealt with the release of bonded
labourers, the court held that the word ‘appropriate’ does not refer to any form
but to the purpose of the proceeding. Therefore, as long as the purpose of the
proceeding is enforcement of the fundamental rights of poor, disabled or ignorant
by a public spirited person, even a letter to the court can be regarded as an
‘appropriate proceeding’.
The relaxation of the rule of locus standi is a major step in so far as it led to the
growth of Public Interest Litigation (PIL). Public Interest Litigations at the instance
of public spirited citizens for the enforcement of fundamental or other legal
rights of any person or group of persons are now regularly considered by the
Supreme Court and the High Courts. Now, the judicial remedies for the
enforcement of fundamental rights have been liberally construed to even treat a
letter written to the court as a writ petition. Use of such innovative techniques by
the Supreme Court has, to some extent, made the Constitution more relevant to
a greater number of people.
The Supreme Court, under Article 32, has passed many judgments in favour of
the public at large, as a result of Public Interest Litigations. Some of the issues
taken up by the court are:
Bonded labour
Protection against inhuman treatment in prisons
Child welfare
Protection of ecology and prevention of environmental pollution
We will discuss public interest litigation in detail in Unit 11 in Block 4 of this
course. Let us now move on to the writs that courts can issue when a fundamental
right is infringed.
6.4 THE WRITS

Clause (2) of Article 32 empowers the Supreme Court to issue appropriate
directions, orders or writs for the enforcement of any fundamental right. The
writs enumerated are Habeas Corpus, mandamus, prohibition, quo warranto
and certiorari. These five writs were known as the prerogative writs in the English
law. In England, writs were issued in the exercise of the King’s prerogative power
of superintendence over the due observance of law by his officials and were
issued by the Court of King’s Bench.
The writs, together, provide for judicial remedies to cover a wide range of
violations that may need to be redressed. However, the court is not bound to
issue only these writs. The court can issue any other order or direction to provide
appropriate relief in the particular facts of the case.
3
AIR 1984 SC 802 43
Rights and Duties
Certiorari
Habeas
Prohibitions
Corpus
Writs
Quowarranto Mandamus
Figure 6.1: Kinds of Writs
1) What is the importance of Article 32 in the Indian Constitution?
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2) Name the five types of writs that courts may issue?
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6.4.1 Habeas Corpus

Meaning
The word Habeas Corpus is a Latin term which literally means ‘you may have
the body.’
Let us suppose that one evening Anuj was going for his guitar class, when a riot
broke out. He got mixed up with some rioters in the middle of the street. The
police while controlling the rioters began arresting people at the scene. Anuj too
was arrested for no fault of his. He was detained in the police custody wrongfully
and illegally. In this case, Anuj or any person on his behalf can move the court
under Art 32. The court can issue a writ of habeas corpus in the form of an order
44
calling upon the policemen to question their authority to detain Anuj and to
produce him before the court. If the court finds out that Anuj has been wrongfully Constitutional Remedies
detained, the court will issue an order for Anuj’s release.
Thus, habeas corpus is a writ issued in the form of an order calling upon the
person by whom another person is detained to bring that person before the court
and to let the court know by what authority he has detained that person. If the
cause shown discloses that, the detained person has been detained illegally, the
Court will order that he be released. Whoever has detained any person has to
show the court the reasons as to why he has detained the person and whether
such a detention is legal. If he is unable to show that the detention is legal then
the person so detained will be released immediately. The person detained or his
relative or his friend or any other person interested can move the court for the
writ of Habeas Corpus.
Object
The object is to secure the production of an individual before a court or judge.
This writ aims to give quick and immediate remedy to a person, who is unlawfully
detained by another person or authority. This is a protection or remedy given to
any person who is deprived of his freedom.
Though the traditional function of the writ of habeas corpus has been to get the
release of a person unlawfully detained or arrested, the Supreme Court has
widened its scope. Now it is not necessary to produce the body of the individual
who has been unlawfully detained. For example, the Supreme Court has permitted
the use of Habeas Corpus for protecting various liberties of prisoners i.e. to
prevent inhuman and cruel treatment meted out to the prisoners in jail. Here the
Supreme Court did not require that the prisoners should be produced before it.
This writ is being increasingly used to prove allegations of dowry death and in
cases involving custody of children. For instance, in one case, A marries M without
revealing anything about his past. After some days, M is tortured for dowry and
killed. A son born to them is taken away by his maternal grandparents as there is
no one to look after him. A files a habeas corpus petition in the court in order to
have custody of his child. The court considering the child’s welfare and A’s past
criminal record denies the custody of the minor son to A4 .
This writ is of remedial nature and is not used as an instrument of punishment.
That is, the object of the Writ is not to punish anything illegal but to release
anyone who has been illegally imprisoned or detained. If the illegal detention
has ceased before this writ would be issued then the writ will not apply.
Compensation
While issuing the writ of Habeas Corpus, the Court can award compensation.
Since the writ of habeas corpus is remedial in nature, the Supreme Court has
said that it can award compensation to the party aggrieved in appropriate cases
and not in every case. For instance, in one case, the Supreme Court awarded
Rupees thirty thousand as compensation to a person who had spent 14 years in
jail because of the irresponsible behaviour of the State government authorities.
The authorities had received an order to release that person from jail, but due to
their negligence he was not directed to be released from jail5 .
4
Nil Ratan Kundu & Anr. v Abhijit Kundu 2008 (11) SCALE 437
5
Rudul Shah v Union of India. 45
Rights and Duties In another case, a group of policemen take away a youth from his home without
giving any reasons for the same. He does not return to his home for a couple of
days. His family is not informed of the place where he is kept in police custody.
Despite repeated attempts to get his son released, the father of the boy files a
habeas corpus petition in the court. The father alleges that his son was not
traceable as he had been killed in a fake encounter by the police. His son had
been taken into illegal custody as no reasons were given for withholding his son
for so long in detention. The Court ordered an inquiry and it was established that
the youth had indeed been killed in a fake encounter by the police. The Court
awarded Rupees five lakhs as compensation to the aggrieved father6 .
The Right to move the Supreme Court is a fundamental right. The legislature
cannot deprive any person from this right except during proclamation of
emergency. Even during emergency, a writ of habeas corpus can be filed for the
enforcement of fundamental rights guaranteed under Article 21 (Right to Life
and Personal Liberty) and Article 22 (Protection against Arrest and Detention)
of the Constitution.
Mere delay in filing this writ will not disentitle any person interested from filing
this writ. However, once filed, the writ is required to be heard and disposed off
expeditiously.
6.4.2 Mandamus
Meaning
Mandamus is the most valuable and essential remedy in the administration of
justice.
Mandamus means ‘we command’ or ‘we order’. Who is this commanding or

ordering authority? It is the Supreme Court and can be the High Courts in some
occasions. Mandamus is an order issued by a court to an authority directing it to
perform a public duty imposed upon it by the Constitution or by any other law in
force for the time being. It is a judicial remedy which can be issued to any kind
of authority exercising functions of a public nature. These authorities can be a
government, corporation, subordinate court or public authority having a public
duty.
Object
The main object of this Writ is to compel the performance of public duty and to
keep the public authorities within the limits of their jurisdiction while exercising
their functions. Mandamus can be issued to enforce a legal right or a liability
imposed on an authority. The affected person must have demanded justice and it
must have been refused by the concerned authority. It should be noted that the
writ can be issued directing some person or authority to do a certain thing or to
abstain from doing something.
Let us take the case of Dr. P Venugopal, a renowned and internationally acclaimed
cardio-vascular surgeon, who was the Director of All India Institute of Medical
Sciences (AIIMS). But due to a legislation enacted in 2007 called AIIMS
(Amendment) Act, 2007, he was made to leave his office before the completion
6
46 Malkiat Singh v State of U.P. AIR 1999 SC 1522
of his term of five years (almost eight months before he would have actually Constitutional Remedies
completed his tenure). AIIMS is a statutory body wholly financed by the
government of India. Therefore the aggrieved petitioner filed a writ petition under
Article 32. He contended that the proviso is patently targeted at a specific person
and intended to affect him only. The Supreme Court held that a particular section
of the legislation was unconstitutional and that Dr. Venugopal should be allowed
to hold his office as a director till his tenure is completed 7 .
The writ, however, cannot be issued to interfere with domestic matters of any
private person or institution, for example, the relationship of a master and his
domestic help. It can be issued when a state agency refuses to release public
information or a judge of a subordinate court refuses entry to the reporters to a
public trail. These are the duties of public nature that the concerned authorities
should follow and obey.
Earlier, only the person who was affected by the act of the public authority could
seek mandamus. But now this rule has been changed enabling any person to ask
for a mandamus directing the public authorities to perform their duties, as a
matter of public interest.
Continuing Mandamus
There may be cases involving dereliction of a public duty by a public authority
requiring constant and continuous monitoring by the court to ensure that the
concerned public authority implements the orders/directions issued by the court
from time to time. This is increasingly happening in several public interest
litigations, for example, cases concerning environmental pollution. In such cases,
the Supreme Court has said that ‘continuous mandamus’ can be issued, to enable
regular monitoring by the court.
In Vineet Narain’s case8 , where the Supreme Court was dealing with alleged
hawala transactions involving counterfeit stamp paper, the court has said that a
continuing mandamus can be issued to monitor the progress of investigation.
The court directed the setting up of the Central Vigilance Commission (CVC)
which is entrusted with the responsibility of superintendence over the CBI’s
functioning and to whom the CBI reports about cases taken up by it for
investigation; progress of investigations; cases in which charge sheets are filed
and their progress.
3) A school has asked Manoj’s father to pay certain amount of fees violating
the state made law. Advice Manoj’s father on the available remedy.
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7
P. Venugopal v UOI (2008) 5 SCC 1)
8
Vineet Narain & Ors. v Union of India & Anr. [(1998) 1 SCC 226] 47
Rights and Duties 6.4.3 Quo Warranto
Meaning
The term Quo Warranto literally means ‘what is your authority’. By this writ, a
holder of an office is called upon to show to the Court under what authority he
holds the office. If the inquiry leads to the finding that the holder of the office
has no valid title to it, the court will pass an order preventing the holder from
continuing in office and declare the office vacant. Thus, in other words, a writ of
Quo Warranto can be issued to prevent a person from holding an office which he
is not legally entitled to hold. The office in question must be independent, of a
public nature, and should not be a private authority or post.
The appointment of an officer who possesses actual qualifications and has been
rightfully chosen in accordance with the law is referred to as de jure appointment.
By the term ‘De Jure’, we mean in accordance with law. But if an officer, although
he possesses the, but has not been appointed in accordance with the law, then his
appointment will be de facto. That is, he is occupying the post only by fact and
not according to the provisions of law.
For example, if an officer is appointed by the appointing authority, then he should

be given an appointment letter as evidence of such appointment. But, suppose,
an officer is told by a senior official to start working on the post to which he is
appointed even before the appointment letter is issued, then the authority he
holds is de facto.
Object
The objective of this writ is to control executive action in matters of appointments
to public offices.
For long the practice in India had been to appoint the senior most judge of the
Supreme Court as the Chief Justice. In 1973, the government departed from this
practice and appointed Justice A N Ray, who ranked fourth in the order of seniority,
as the Chief Justice. The three judges who were bypassed resigned in protest.
This raised a hue and cry in the country and the government was accused of
tampering with the independence of the judiciary. The appointment of the new
Chief Justice was challenged in the Delhi High Court through a petition asking
the court to issue a writ of quo warranto, under Article 226, on the grounds that
the appointment was – (i) malafide (ii) against the rule of seniority inherent in
Art. 124(2) and (iii) the mandatory consultative process envisaged in Art. 124
(2) had not been resorted to9 .
6.4.4 Prohibition
Meaning
This writ can be issued by a superior court to a inferior court, including a quasi-
judicial authority, for the purpose of compelling the lower court to keep within
its jurisdiction and not do anything which is out of its jurisdiction. It can be
issued when:
9
P N Lakhanpal v A.N.Ray AIR 1975 Del 66
48
The judicial or quasi judicial authority has acted under an incorrect or invalid Constitutional Remedies
law.
The authority has acted beyond its jurisdictional limits.
The judge of the inferior court has acted illegally.
The principles of natural justice are not followed.
The matter in question should be pending consideration by the lower court and
should not have been finally disposed off.
Object
The object of the writ, as the name suggests, is to prohibit the body concerned
from proceeding with the matter further.
Earlier, the writ of Prohibition was issued only to judicial or quasi-judicial bodies.
But, now this is being used even to prevent abuse of power by public authorities.
For example, the court can prohibit a local council from licensing indecent films.
6.4.5 Certiorari
Meaning
Certiorari means ‘to certify’. A superior court can issue an order to a lower court
or any quasi-judicial authority to investigate and decide if the orders passed by
them are valid and legal. A writ of Certiorari, like the writ of Prohibition, can be
issued only if the following conditions exist:
o The judicial or quasi-judicial authority has acted under an incorrect or invalid
law.
o There is a jurisdictional error. That is, if the authority has acted beyond its
limits.
o If the judge of the inferior court has acted illegally.
o If the principles of natural justice are not followed.
Object
If a judicial or quasi-judicial body acts in excess of its jurisdiction then its decisions
can be cancelled by superior courts by issuing the writ of certiorari.
4) Sahana has made a list of the salient features of each writ but there is a
slight problem. While working on these salient features, she forgot to
categorise them under specific heads. Can you help her sort out the list
by putting relevant feature under the relevant writ?
a) The holder of an office is called upon to ask the authority under
which he holds the office.
b) An authority in question neglects or refuses to perform a particular act
c) There must be some kind of restraint on the liberty of movement of
the person.
d) The person confined must have been illegally kept in custody of
another. There should be no law by which the person is kept in custody.
e) There must be a legal duty which must be imposed on the authority
to perform the act and that authority must have breached such duty.
49
Rights and Duties
6.5 ARTICLE 226
Under Article 226, High Courts have been given the power, concurrent with the
Supreme Court, to issue a direction, order or writ for the enforcement of
fundamental rights. However, one can approach a High Court to seek relief for
‘any other purpose’ too. Where a legal wrong or legal injury is caused to a person
or to a group of persons because of violation of any constitutional or legal right,
then, such a person or group of persons can apply for an appropriate order,
direction or writ in the High Court under Article 226.
Can one approach any high court for enforcement of a right against the central
government? Initially, under Article 226, a high court could issue an order/writ
only against authorities within its territorial jurisdiction. This led to an anomalous
situation where an aggrieved person could not go to a high court for enforcement
of a fundamental right against the central government located in New Delhi. The
fifteenth amendment to the Constitution rectified this situation. Now if the cause
of action arises within the territory of a high court, the court can entertain a case
under Article 226.
Can a high court refuse to entertain a case under Article 226?

It is well established that the remedy provided for in Article 226 of the Constitution
of India is a discretionary remedy. The High Court has the discretion to grant
such a relief and also has the discretion to refuse to grant such a relief in certain
circumstances even though a legal right might have been infringed. The court
can refuse on certain grounds, such as, presence of alternative remedy, delay in
approaching the court and suppression of facts.
The High Court may refuse to exercise its jurisdiction under Article 226 if an
alternative remedy is available. The rule of exhaustion of a remedy should be
observed before invoking jurisdiction under Article 226. By this, we mean that
all alternative remedies should be resorted to before approaching the High Court
under Article 226. Thus, where it is open to the aggrieved person to move another
tribunal, the High Court normally will not entertain a petition under Article 226.
These are, however, only discretionary principles and the court can ignore them
depending on the facts of the case.
The principle, however, does not apply to the enforcement of fundamental rights
either under Article 32 or under Article 226 of the Constitution. Writs discussed
above are also available under Article 226.
5) What is difference between Art 32 and Art 226 of the constitution?
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50
Constitutional Remedies
6.6 SUMMARY
Let us now sum up this Unit.
The Supreme Court and High Courts have a very critical major role as the
guardian and protector our Fundamental Rights.
If the Fundamental Rights of any individual are violated then there is a
remedy in our Constitution itself. The right to approach the Supreme Court
for enforcement of a fundamental right is itself a fundamental right.
The five types of writs that courts may issue are:
a) Mandamus b) Certiorari c) Quo Warranto
d) Prohibition e) Habeas Corpus
This constitutional remedy can be availed of by seeking the appropriate writ
from the court.
Even if others’ rights are violated, as concerned citizens or as ‘Public spirited’
citizens, we can seek redressal by filing Public Interest Litigation.

1) Explain the five writs by relating them to the purpose they are expected to
serve.

1) Art 32 ensures that even the Supreme Court is bound by the constitution to
see that none of the fundamental rights of the citizens are encroached. This
makes Art 32 in itself a fundamental right.
2) The five types of writs that courts may issue are:
a) Mandamus b) Certiorari c) Quo Warranto
d) Prohibition e) Habeas Corpus
3) Manoj’s father may approach the state High Court and request the court for
a writ of Mandamus
4) a) Quo Warranto; b) Mandamus; c) Habeas Corpus; d) Habeas Corpus;
e) Mandamus
5) Under Art 32, the Supreme Court can issue any writ but under Art 226 only
the High Courts are authorised to do so. Also the nature of powers under
Art 226 available to the High Court is broader than what is available to the
Supreme Court, as Art 226 allows write to be issued for ‘any other purpose’
also.
Terminal Questions

51
Rights and Duties
52
Indira Gandhi
School of Law
Introduction to the
Indian Legal System
Block
3
INSTITUTIONAL MECHANISMS
UNIT 7
Legislature and Executive 5
UNIT 8
Justice Delivery System 23
UNIT 9
Human Rights Protection Mechanisms 38
Expert Committee
Lawyer, New Delhi
Prof. B.B. Pande
Action Aid India
Prof. S. Siva Kumar
Ms. Gurmeet Kaur
Research Professor
Ms. Mansi Sharma
Ms. M Roopa Asst. Prof., School of Law, IGNOU

Unit Writers : Units 7 and 8 : Rainmaker Training and Recruitment Pvt.Ltd.

Unit 9 : Dr. Doel Mukherjee
Content Editor : Prof. Parmanand Singh
Material Production
Mr. Yashpal
IGNOU, New Delhi
November, 2009
ISBN-978-81-266-4289-2
BLOCK 3 INSTITUTIONAL MECHANISMS
Mechanisms for power sharing between the different organs of the State are
necessary to ensure that no one organ becomes all powerful. This is called ‘balance
of power’ through a system of ‘checks and balances’. Our Constitution sets out
the institutional arrangement for this power sharing.
We have a federal parliamentary democracy, where power is shared between the

centre and the states. Constitutional institutions, such as, the legislature, executive,
judiciary, local governments, Election Commission, Attorney General and
Comptroller and Auditor General collectively provide the checks and balances
so essential for the success of our democracy.
In this block, we will introduce you to institutions which make, implement and
enforce laws. We have included information on the structure and functioning of
these institutions. These mechanisms need to constantly evolve so that we continue
to progress towards realising our constitutional ideals. Therefore, as you proceed
with this block, you should reflect on the issues that need to be addressed, if we
are to have a system of governance which is people-centric, transparent and
accountable.
The constitutional scheme provides for power-sharing between the three organs
of the State. Law making and implementation are important functions of the
State. The seventh unit introduces you to the legislature and the executive, which
are entrusted with these tasks. We will take you through the law making process.
The executive consists of the political executive and the permanent executive.
How is power distributed between these two on the one hand, and between the
President and the Council of Ministers on the other, to ensure a representative
character for our democracy? How is the supremacy of the legislature asserted?
In this Unit, we will sketch the overall physical structure of the legislature and
the executive and explore such questions in the context of the constitutional
mandate of a federal, sovereign, democracy.
In the eighth unit, we will explain the hierarchy of the formal judiciary and
powers of the higher judiciary, especially the Supreme Court, which enjoys a
pivotal role under our Constitution.
Equal and equitable access to our legal rights remains unrealised. Enabling greater
access to the legal system is a constant concern of the government, law persons
and human rights defenders. It is difficult to approach the formal judicial system
to seek redress for human rights violations. In the ninth unit, we will identify
institutions that are established for protection of human rights. While many of
these institutions are specialised and deal with specific groups, such as, women,
children, minorities and dalits, the National Human Rights Commission (NHRC)
has the mandate of protecting and promoting all human rights. We will explain
the functioning of the NHRC in detail.
Institutional Mechanisms
4
Legislature and Executive
UNIT 7 LEGISLATURE AND EXECUTIVE
Structure
7.1 Introduction
7.2 Objectives
7.3 Federalism
7.4 Legislature
7.4.1 Law Making
7.4.2 Legislative Procedure
7.5 Executive
7.5.1 Political and Permanent Executive
7.5.2 Local Government
7.5.3 Council of Ministers
7.6 Other Constitutional Bodies
7.7 Summary
7.1 INTRODUCTION
We, the people of India, have solemnly pledged to build a Sovereign, Socialist
and Secular Republic – where the State will, through our democratically elected
representatives, strive towards ensuring certain basic human freedoms and govern
in such a manner so as to ensure socio-economic justice. How does one ensure
that the actual functioning of the State results in all this? Our State has not
degenerated into a dictatorship. Why? How has the Constitution provided for
checks and balances to ensure that the rule of law prevails for the common good?
One of the constitutional mechanisms is the distribution of power between the
different organs of the State – Executive, Legislature and Judiciary. In this Unit,
we will introduce you to the legislature and the executive. We have confined our
discussion to the union legislature and executive.
We begin this Unit with an explanation about federalism and how power is
distributed between the centre, states and local governments. We then move on
to the structure and functioning of the legislature. Using the example of the
Women’s Reservation Bill, we will take you through the journey of law making.
How is law made – more particularly where does the idea for a particular law
emanate from? What shape does it take once the idea has gathered momentum
and support? What formal procedure does it have to go through before it is taken
up for consideration by the law makers? And in all this – what is the role of the
common person, namely you and me? Does the ordinary Indian citizen have a
role to play in the formation of laws in India?
We have a parliamentary form of Government. The essence of this type of
government is that the Head of the State is a constitutional head and the real
executive powers are exercised by the Council of Ministers, led by the Prime
Minister. The executive is, however, accountable to the legislature.
5
Institutional Mechanisms You should remember that these institutions are the constitutionally designed
arrangement for power sharing in our federal democratic republic.
7.2 OBJECTIVES
explain the constitutional mechanisms for power sharing at different levels;
describe the process of law making in India; and
explain the powers and functions of the executive.
7.3 FEDERALISM
Federalism is a set-up where the powers are shared between the centre and the
states. In a country as huge as ours, where customs, traditions, faiths, languages,
and climatic conditions vary from village to village, a workable model of
governance must emphasise the unique needs of every regional unit. Therefore,
the Constitution provides for a federal structure where both the centre and the
states exercise legislative and executive powers. The Constitution contains three
lists in the Seventh Schedule which determine the legislative domain of each.
They are:
Union List – consists of subjects on which the parliament can legislate, e.g.,
defence and external affairs.
Union List – consists of subjects of national importance requiring a uniform
policy for the whole country. The parliament alone can legislate on these
subjects, such as, defence, external affairs, banking and communications.
State List – consists of subjects of local importance on which the state
legislature can legislate, such as, police, agriculture and irrigation.
Concurrent List – consists of subjects on which both the parliament and
state legislatures can legislate, such as, education, forest, trade unions and
adoption.
Essential features of our federal polity
No dual citizenship: There is a single citizenship for the whole of India,
unlike a federal country like the U.S.A. where there is dual citizenship –
both of the U.S.A. and of the state that the person is domiciled in. Every
Indian has the same rights of citizenship, irrespective of the state s/he
resides in.
Single Constitution: Unlike the U.S.A. where the states have the right
to make their own constitutions, we have a single Constitution.
The Constitution can become unitary in emergencies: The central
government is empowered to deal with emergencies arising out of war
and other national emergencies.
A single judiciary: The High Courts and Supreme Court form a single
integrated judiciary.
Common all-India services: To maintain uniformity in administration,
we have an all-India services common to the union and the states.
6
India is a union of states, which was formed by the accession of many princely Legislature and Executive
states to the Indian union. Given the history of a bloody partition which preceded
the enactment of the Constitution, the makers of our Constitution wanted to
create a strong centre. Certain constitutional provisions ensure this. Hence, in
the event of a conflict between a central and a state law on a subject in the
concurrent list, the former will prevail. Who will make laws on subjects that do
not fall in any of the lists? The union parliament will legislate on all ‘residuary
matters’.
In order to further strengthen our federalism and local self governance, the 73rd
and 74th Amendments to the Constitution have added another list which consists
of subjects on which the local governments – panchayats, municipalities and
municipal corporations – have the power to legislate.
1) List out the essential features of our federal set up.
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7.4 LEGISLATURE
Our Constitution does not provide for strict separation of powers between the
legislature and the executive. The leader of the party/coalition of parties having
the majority in parliament/state legislature becomes the prime minister/chief
minister. The political executive, that is the council of ministers, is made up of
members of the parliament/state legislature. Thus, we have a parliamentary form
of government, where the central and state governments are drawn from and
accountable to the union parliament and state legislatures respectively. Policies
of the government are debated in the legislature and only then become enforceable
as a law. Apart from this very critical role played by the legislature, which provides
the necessary check on exercise of power by the government, law making is the
main function of the legislature.
The legislature and the executive do not function as water-tight compartments.

As you proceed with this Unit, you will learn that there is an overlap of functions,
such as, promulgation of an ordinance by the President/Governor and delegated
legislation or rule making by concerned departments, which are legislative
functions performed by the executive.
7
President’s Ordinance-making power (Article 123)
The most important legislative power of the President is his ordinance-making
power. When can it be used? If at any time, when both the Houses are not in
session and the President is satisfied that the circumstances exist which render
it necessary for him to take immediate action, he may issue an Ordinance. It
shall have the same effect as an Act of Parliament.
Such ordinances, however, must be laid before both the Houses of Parliament
and shall cease to operate at the expiry of six weeks from the date of re-
assembly of Parliament, unless a resolution for disapproving it is passed by
both the Houses before the expiration of six weeks.
An Ordinance however, cannot violate the fundamental rights. The validity

of the Ordinance-making power of the President has been challenged in many
cases and the court has upheld its constitutionality in all its decisions. The
power to make Ordinances is justified on the grounds that the President must
be armed with the power to meet with a serious situation when the Houses of
Parliament are not in session. However, there is a possibility of this power
being abused by the Executive.
In D.C. Wadhwa v State of Bihar (1987) 1 SCC 378, the Supreme Court
pointed out that between 1967 and 1981, the Bihar Governor had promulgated
256 Ordinances and all of them were kept alive for periods ranging between
1 and 14 years. The Court called it “colourable exercise of powers” and held
that this amounted to a fraud on the Constitution and thus was unconstitutional.
7.4.1 Law Making

How Does an Idea Become A Bill?
Let us take the example of the Bill providing for women’s reservation in the
legislature (we will refer to it as the Women’s Bill). A Bill is the draft of a
legislative proposal; or, simply put, a Bill is a draft law. Let us now study the
actual process of how an idea becomes a bill and examine the process that turned
it from an “idea” into a Bill. The Women’s Bill is actually a proposed amendment
to the Constitution of India to introduce 33% reservation for women in the
legislature, both at the centre and the states. The demand for this reservation
began several years ago by women’s rights groups in the country. Finally, in
1996, a select committee of parliament headed by Smt. Gita Chatterjee
unanimously finalised the Bill. Since then, it has been introduced several times
in the Lok Sabha, but so far, it has not been voted upon.
Activity
Thanks to good recording of parliamentary debates and their availability
online, it has become simpler to examine the debates that our
parliamentarians have on various subjects. It would be a useful exercise for
you to attempt a simple search for a debate on the issue of women’s
reservation in parliament on the Lok Sabha website (www.loksabha.gov.in).
What does this tell us about the process of how an “idea” can be translated into
“law”? This shows us that the seed of a law is clearly a need that may be felt by
people, which is voiced through public debates, such as, articles in the newspapers
8
and other media, or agitated through political groups, rights based groups and Legislature and Executive
peoples’ movements.
Another source from where a law may originate is India’s international
commitments. Whenever India signs an international treaty, it enters into a set of
obligations to either enact certain domestic laws, or to change its domestic laws
to reflect the commitment made in the treaty. Whatever the source, once the
need or the obligation becomes an idea for a law and gains sufficient political
momentum through political will, the people behind it can convert their idea
into an actual Bill, which would then have to go through a formal legislative
process in order to be converted into law.
Who drafts a Bill?

A Bill is drafted by the concerned department, vetted by the ministry of law,
justice and company affairs and introduced in either House through the
ministry of parliamentary affairs.
For a bill to become law, it needs to be put to vote in the parliament. This process
involves bringing the bill to the House, in other words, getting it listed in the list
of business for the House to take up, then taking it up for debate or deliberation
followed by a vote on whether the bill should be passed to become law. A bill
can become law only when it is passed by both houses of parliament and then
signed by the President. Any debate in the parliament is attended by all the
members of that House who are present in that session of the parliament.
Union and State Legislatures

The union parliament comprises of the President, an upper house, called
the Council of States or the Rajya Sabha, and a lower house, called the
House of the People or the Lok Sabha.
The Constitution of India places very basic entry level requirements for
people to become members of the legislature. As per Article 84 of the
Constitution, a citizen of India must have attained the age of 25 years in
order to qualify for a seat in the Lok Sabha, or 30 years for a seat in the
Rajya Sabha. Apart from this, the process of elections is governed by the
Representation of Peoples’ Act, 1950.
The Constitution further provides for a legislature in every State of the Union.
Legislatures in the States may either be bicameral, consisting of two Houses
– Vidhan Sabha (Legislative Assembly) and Vidhan Parishad (Legislative
Council ) or unicameral – consisting of only the Vidhan Sabha. The Vidhan
Sabha is the popular house. Its members are directly chosen by the people.
The normal tenure of this House is 5 years, but the Governor may dissolve
it earlier. The Vidhan Parishad is a permanent body similar to the Rajya
Sabha.
So far, the Women’s Bill has not received a formal debate in either houses of
parliament. It has been introduced four times, but each time it has either been
opposed, or due to lack of political will, it has actually lapsed. However, on 6th
May 2008, the current UPA government was able to introduce the Bill in the
Rajya Sabha, thus ensuring that it remains “alive” even if the Lok Sabha does
9
Institutional Mechanisms not pass it. Why did they do that? Read ahead to the heading “How is the life of
a bill linked to the life of the parliament?”
Are there any subject area experts or members of the general public involved
in the legislative process?
Yes, and they are involved through their participation in Parliamentary

Committees. The parliament normally functions through a system of committees,
which are made up of its members, who are elected to these committees. But
why is this done? The reason for this is that the work done by the parliament in
modern times is not only varied and complex in nature, but also voluminous.
And the time at its disposal is limited. Consequently, it is not able to give close
consideration to all the legislative matters that come up before it. Hence, a good
deal of the parliament’s business is transacted in Committees, known as
Parliamentary Committees. A Parliamentary Committee means a Committee
which is appointed or elected by the House or nominated by the Speaker and
which works under the direction of the Speaker and presents its report to the
House or to the Speaker. The Lok Sabha Secretariat provides a Secretariat for
Parliamentary Committees also.
Parliamentary committees are of two kinds: Standing Committees and Ad hoc

Committees. Standing committees are permanent and regular committees which
are constituted from time to time through an Act of Parliament or Rules of
Procedure and Conduct of Business in Lok Sabha. The work of these committees
is of continuous nature. The Financial Committees and departmentally related
Standing Committees come under the category of Standing Committees.
Ad hoc Committees are appointed for a specific purpose and they cease to exist
when they finish the task assigned to them and submit a report. The principal Ad
hoc Committees are the Select and Joint Committees on Bills, Railway
Convention Committee, and the Joint Committee on Food Management in
Parliament House Complex.
These are the broad categories into which Parliamentary Committees may be
classified:
a) Financial Committees;
b) Departmentally Related Standing Committees;
c) Other Parliamentary Standing Committees; and
d) Ad hoc Committees.
Typically these parliamentary committees receive advice from several different
sets of people. Because the membership of these committees is restricted to the
sitting members of parliament, they find that they need technical advice and
inputs from subject area experts from time to time. To facilitate this, these
committees are empowered to appoint subject area experts as advisors for the
task at hand. The appointment of these advisors is rather ad hoc, and as a result
it is difficult to find any documentation on this. Very often, the person appointed
as the advisor to the committee may have a team of experts working behind the
scenes, to recommend the correct course of action to the parliamentary committee.
10
It is through this involvement of subject area experts in the working of committees Legislature and Executive
that technical institutions, NGOs and special interest pressure groups are able to
participate in law making, in a meaningful manner, often with very positive
direct results.
Is the life of a Bill linked to the life of the Parliament? How?
Coming back to our example of the Women’s Reservation Bill, we know that it
was first introduced in Parliament before the 11th Lok Sabha. At that point, it was
referred to a Joint Parliamentary Committee chaired by the late Mrs. Geeta
Mukherjee, of the Communist Party of India (Marxist). The committee presented
its final report to the parliament on 9th December 1996. But due to the dissolution
of the 11th Lok Sabha, the Women’s Bill lapsed.
It was again introduced in the 12th Lok Sabha. Once again, due to lack of political
will to deliberate and vote upon the bill, it lapsed when the 12th Lok Sabha was
dissolved. During the 13th Lok Sabha, the Women’s Bill was introduced yet again,
and brought to the House four times between 1999 and 2004. But once again it
lapsed when the Lok Sabha was dissolved.
So, you can see how the life of a Bill is intricately linked to the life of the Lok
Sabha during which it is introduced. This is because the Constitution, in the
chapter on Legislative Procedure, under Article 107 stipulates that a bill needs to
be passed by both houses of parliament, before it is deemed to have been “passed”.
Article 107 also stipulates that a bill which is pending in the lower house of the
parliament (the House of the People) lapses upon the dissolution of the Lok
Sabha. And that is exactly what happened in the case of the Women’s Bill through
the 11th to 13th Lok Sabhas.
On the other hand, Article 107 also makes it clear that a Bill which is introduced
in the Rajya Sabha will not lapse on the dissolution of the Lok Sabha. And it is
precisely because of this reason that the UPA government introduced the Women’s
Reservation Bill in the Rajya Sabha on 6th May 2008, as part of its promises
under the Common Minimum Program.
Another thing we need to keep in mind is that the parliament works in sessions.
The concept of a parliament session relates to the three sessions held every year,
with a gap of not more than six months between the end date of one session and
the start date of the other. This maximum time gap requirement between two
consecutive sessions is contained in Article 85(1) of the Constitution of India.
Between two sessions, the Lok Sabha is prorogued, as per the requirements of
Article 85(2) of the Constitution.
The other concept that appears from the above discussion about the life of the
Women’s Reservation Bill is that after each general election, a new Lok Sabha is
constituted, following the dissolution of the earlier Lok Sabha. The dissolution
of a particular Lok Sabha entails the dismissal of all members of that particular
Lok Sabha and fresh appointment of the new set of members who are elected in
the latest parliamentary elections.
11
2) How does a ‘Bill’ originate?
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3) What is a Parliamentary Committee?
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7.4.2 Legislative Procedure

In the section above, we saw how an idea can turn into the draft of a new law,
and also saw who are the actors involved in carrying that idea through its life-
span – from the time it gets drafted on paper as a Bill, to introducing it in
Parliament and then deliberating and voting on it. Now, let us look at the complete
procedure of how a Bill becomes an Act.
The legislative process starts with the introduction of a Bill in either House of
Parliament – Lok Sabha or Rajya Sabha. A Bill can be introduced either by a
Minister of the current government, or by a private member. In the former case it
is known as a Government Bill and in the latter case it is known as a Private
Member’s Bill.
It is necessary for a member-in-charge of the Bill to ask for leave to introduce
the Bill. If leave is granted by the House, the Bill is introduced. This stage is
known as the first reading. If the motion for leave to introduce a Bill is opposed,
the Speaker has the discretion to allow a brief explanatory statement to be made
by the member who opposes the motion and the member-in-charge who moved
the motion. Where a motion for leave to introduce a Bill is opposed on the ground
that the Bill initiates legislation outside the legislative competence of the House,
the Speaker may permit a full discussion on that topic, followed by a vote.
After a Bill has been introduced, the Presiding Officer of the Lok Sabha or Rajya
Sabha (wherever the Bill has been introduced) can refer the Bill to a Standing
Committee for examination. If a Bill is referred to a Standing Committee, the
Committee considers the general principles and clauses of the Bill and submits a
report. The Committee can also take the opinion of subject area experts or the
opinion of the public (that is, from the group of people who are interested in that
legislative action). The report of the Committee is of persuasive value, and is
treated as considered advice given by the Committee.
After the Committee has submitted its Report, the Bill is put through the second
reading. The second reading consists of consideration of the Bill in two stages.
The first stage consists of a general discussion on the Bill as a whole. Here, the
12
principle underlying the Bill is discussed. At this stage it is once again open to Legislature and Executive
the House to refer the Bill to a Select Committee of the House, or a Joint
Committee of the two Houses, or to circulate it for the purpose of eliciting opinion,
or to straightaway take it into consideration.
If a Bill is referred to a Select or a Joint Committee, the Committee considers the

Bill clause-by-clause just as the House does. Amendments can be moved to the
various clauses by members of the Committee. The Committee can also take the
advice of associations, public bodies or experts who are interested in that
enactment. After the Bill has been considered by the Committee, it submits its
report to the House which considers the Bill again, as reported by the Committee.
If a Bill is circulated for the purpose of eliciting public opinion on it, such opinions
are obtained through the Governments of the States and Union Territories.
Opinions received on the Bill are laid on the Table of the House.
The second stage of the second reading consists of clause-by-clause consideration

of the Bill by the House, as introduced or as reported by the Select or Joint
Committee. A discussion takes place in the House on each clause of the Bill and
amendments to these clauses can be moved at this stage. Amendments to a clause,
which have been moved and not withdrawn, are put to the vote of the House
before the relevant clause is disposed of by the House. The amendments become
a part of the Bill if they are accepted by a majority of members present and
voting. After all the clauses are voted upon, and the Schedules, the Enacting
Formula and the Long Title of the Bill have all been adopted by the House, the
Second Reading is deemed to be over.
Once all the steps above have been taken, the member-in-charge can move that
the Bill to be passed. This stage is known as the third reading of the Bill. At this
stage the debate in the House is confined to arguments either in support of or
rejection of the Bill, without referring to the details of the Bill. Only formal or
verbal amendments are allowed to be moved at this stage. In passing an ordinary
Bill, a simple majority of members present and voting is necessary. But in the
case of a Bill to amend the Constitution, a majority of the total membership of
the House and a majority of not less than two-thirds of the members present and
voting is required in each House of Parliament.
After the Bill is passed by one House, it is sent to the other House for consideration
and approval, and there also it goes through the stages as described above, except
the introduction stage.
The provisions regarding the passing of a bill is the same in the case of the state
legislature, except that the Governor may hold a Bill for the President’s
consideration under Art 201. When a Bill is so reserved by the Governor, the
President may take one of three courses:
he assents to the Bill;
he withholds his assent to the Bill; or
he may, where the Bill is not a Money Bill, direct the Governor to return the
Bill to the Houses of the State Legislature together with his suggestions. It
shall be the duty of the Legislature to consider the Bill within a period of six
months. Should it be passed again by both the Houses, it shall be presented
to the President for his consideration.
13
Institutional Mechanisms You will recollect that we spoke about certain constitutional provisions which
render our system more unitary than federal. This is one such provision, which
undermines the legislative autonomy of the state legislature.
Money bill
Bills which exclusively contain provisions for imposition and abolition of taxes,
for appropriation of moneys out of the Consolidated Fund etc. are called Money
Bills. Money Bills can be introduced only in the Lok Sabha. The Rajya Sabha
cannot make amendments in a Money Bill which is passed by the Lok Sabha and
transmitted to it. It can, however, recommend amendments in a Money Bill, but
must return all Money Bills to the Lok Sabha within fourteen days from the date
of their receipt. It is open to the Lok Sabha to accept or reject any or all of the
recommendations of the Rajya Sabha with regard to a Money Bill. If the Lok
Sabha accepts any of the recommendations of the Rajya Sabha, the Money Bill
is deemed to have been passed by both Houses with amendments recommended
by the Rajya Sabha and accepted by the Lok Sabha. If the Lok Sabha does not
accept any of the recommendations of the Rajya Sabha, the Money Bill is deemed
to have been passed by both Houses in the form in which it was passed by the
Lok Sabha. If a Money Bill which has been passed by the Lok Sabha and then
transmitted to the Rajya Sabha for its recommendations, is not returned to the
Lok Sabha within the fourteen day period, it is deemed to have been passed by
both Houses at the expiration of this period, in the form in which it was passed
by the Lok Sabha.
Delegated legislation
Once a law is made, does it come into force immediately? The Act will itself
provide for the event which will bring the Act into force. It could be by:
– notification in the official gazette;
– appointing a date in the Rules.
Rule making is part of ‘delegated legislation’, which the executive is entrusted
with. We have seen how law is made by the legislature. The concerned department
which originally drafts the bill comes back into the picture once the bill becomes
an Act. An Act lays down only the broad framework to give effect to a particular
policy. The details of implementation, such as, setting up of enforcement
mechanisms and required infrastructure and details for their functioning are
worked out by the concerned department through the process of rule making.
Legislature continues to exercise supervision, though, as the rules have to be
laid before both Houses. Each House has a committee on sub-ordinate legislation
which scrutinises the rules.
4) What is the difference between “prorogation” and “dissolution” of the
Lok Sabha?
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14
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Legislature and Executive
7.5 EXECUTIVE
The executive power is vested in the President but s/he exercises this power
with the aid and advice of the Council of Ministers. Although, ‘executive power’
has not been defined anywhere in the Constitution, it connotes the residue of
governmental functions that remain after the legislative and judicial functions
are taken away. The executive power of the Union extends to all matters with
respect to which Parliament has the power to make laws and includes the rights,
authority and jurisdiction as are exercisable by the Government of India by virtue
of any treaty or agreement. But the executive power of the Union does not extend
to a matter in the Concurrent List unless:
it is expressly provided in the Constitution, or
expressly entrusted by a law made by Parliament.
The President
The President’s term of office is five years from the date on which s/he enters
upon office, but s/he is eligible for re-election. The President cannot be a
member of either House of Parliament or of a House of the Legislature of
any State. The President is elected by indirect election, i.e. by an electoral
college consisting of
the elected members of both Houses of Parliament; and
the elected members of the Legislative Assemblies of the States.
7.5.1 Political and Permanent Executive

The Executive can be divided into two: the political executive that is elected by
the people for a definite term; and the permanent executive, members of which
are not affiliated to the political process and function independently of the elected
government. The permanent executive, also known as civil services, comprises
of civil servants. Civil servants remain in office even when the ruling party
changes. These officers work under the political executive and assist it in carrying
out the day-to-day administration.
The permanent executive is also referred to as the ‘Public Administration System’

or the Indian Civil Services. The Indian civil service took more concrete shape
when the British felt that there was a need for strenghtening and streamlining
British administration in India. Although it began as a purely regulatory institution,
its role assumed developmental objectives along the way. The civil service system
is often equated with the backbone of the administrative machinery of the country.
The system has undergone a structural overhaul post-Independence. At the central
level, the civil services include the all India services, such as, the Indian
Administrative Service, the Indian Forest Service, the Indian Police Service, the
Indian Income Tax Service and the Indian Railway Services. There are three
tiers of administration – Union Government, State Governments and the Local
governments. The State Governments have their own set of services.
15
Institutional Mechanisms Administrative structure of the Government of India
President
Vice President
Prime Minister
Council of Ministers
Secretary
Additional Secretary
Joint Secretary
Administrative structure of the State Governments
Governor
Chief Minister
Council of Ministers
Secretary
Joint Secretary
16
District Administration Legislature and Executive
(District is a unit of administration, on an average a district has a
population of about 2 million)
District Collector
Regulatory Administration
Development Administration
Local self governance
Law and order
Land administration
Tax collection
Coordination
Figure 7.1: Flow chart depicting the basic structure of the executive at union, state and
district levels
7.5.2 Local Government

The Indian Constitution facilitates local self-governance by prescribing it under
the State List. In the case of Union Territories, the Union Parliament provides
for local government bodies. The 73rd and 74th Constitution Amendment Acts
gave federal recognition to local self-government. While the Constitution provides
for local self-government as a method of efficient, democratic self-government,
State Governments often twist the arm of these bodies and usurp power to
themselves, as a result of which local governments and state governments are
growingly perceived as rivals of sorts. West Bengal has a local self-governance
model different from other states and has distinguished itself by regularising
local elections since the current ruling party took over the affairs. This model in
fact served as an inspiration for the constitutional amendment.
Urban
In the urban local self-governance model, the big cities have City Corporations,
other cities have City Municipal Committees and towns have Town Municipal
Committees. These are elected bodies and the administration is carried out by a
single Chief Executive who is answerable to the elected bodies for maintenance
17
Institutional Mechanisms of civic amenities for the benefit of the citizens. The local tax collected is the
major source of revenue, other than funds received from the State.
Big Cities City Corporations
Other Cities City Municipal Committees
Towns Town Municipal Committees
Rural
The rural local self-government model differs in the sense that it has a deeper
hierarchy as explained below. They perform functions, such as, provision of
civic amenities and carry out developmental works, for which they are empowered
to collect taxes.
District Zila Parishad
Block Block/Mandal Panchayat
Village or Group of Villages Gram Panchayat
7.5.2 Council of Ministers

The Prime Minister is the most important political institution in the country. Yet
there is no direct election to the post of Prime Minister. The President appoints
the Prime Minister.1 This does not mean that the President appoints anyone s/he
likes as the Prime Minister. The President appoints the leader of the majority
party or the coalition of parties that commands a majority in the Lok Sabha, as
Prime Minister. In case no single party or alliance gets a majority, the President
appoints the person most likely to secure a majority support.
After the appointment of the Prime Minister, the President appoints other ministers
on the advice of the Prime Minister.2 The Ministers are usually from the party or
the coalition that has the majority in the Lok Sabha. The Prime Minister is free to
choose ministers, as long as they are members of Parliament. Sometimes, a person
who is not a member of Parliament can also become a minister. But such a
person has to get elected to one of the Houses of the Parliament within six months
of appointment as minister. The Constitution does not say very much about the
powers of the Prime Minister or the ministers or their relationship with each
other. But as head of the government, the Prime Minister has wide-ranging powers.
The Prime Minister allocates work to the ministers, coordinates the work of
different ministries and exercises general supervision. When the Prime Minister
quits, the entire ministry quits. Thus, if the Cabinet is the most powerful institution
in India, within the Cabinet it is the Prime Minister. The Prime Minister does not
have a fixed tenure. S/he continues in power so long as s/he remains the leader
of the majority party or coalition.
The powers of the Prime Minister in all parliamentary democracies of the world
have increased so much in recent decades that parliamentary democracies are
sometimes seen as a Prime Ministerial form of government. The media also
contributes to this trend by making politics and elections a competition between
top leaders of parties.
1
Article 74 (1) of the Constitution of India.
2
Article 75 (1) of the Constitution of India.
18
In India too we have seen such a tendency towards the concentration of powers Legislature and Executive
in the hands of the Prime Minister Jawaharlal Nehru, the first Prime Minister of
India, exercised enormous authority because he had great influence over the
public. Indira Gandhi was also a very powerful leader compared to her colleagues
in the Cabinet. Of course, the extent of power wielded by a Prime Minister also
depends on the personality of the person holding that position. However, in recent
years the rise of coalition politics has imposed certain constraints on the power
of the Prime Minister. The Prime Minister of a coalition government cannot take
decisions as s/he likes. S/he has to accommodate different groups and factions in
her/his party as well as among alliance partners. S/he also has to heed the views
and positions of the other parties on whose support the survival of the government
depends.
Council of Ministers is the official name for the body that includes all the
Ministers.
Cabinet Ministers are usually top-level leaders of the ruling party or parties
who are in charge of the major ministries. Usually the Cabinet Ministers
meet to take decisions in the name of the Council of Ministers. Cabinet is
thus the inner ring of the Council of Ministers. It comprises about 20
ministers.
Ministers of State with independent charge are usually in charge of smaller
Ministries. They participate in the Cabinet meetings only when specially
invited.
Ministers of State are attached to and required to assist Cabinet Ministers.
Since it is not practical for all ministers to meet regularly and discuss everything,
the decisions are taken in Cabinet meetings. That is why parliamentary democracy
in most countries is often known as the Cabinet form of government. The Cabinet
works as a team. The ministers may have different views and opinions, but
everyone has to own up to every decision of the Cabinet.
5) What is the composition of the executive in our country?
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7.6 OTHER CONSTITUTIONAL BODIES

Continuing with the theme of ‘checks and balances’, we will now look at some
of the constitutional bodies which have been provided to check abuse of power
and to ensure that no one organ of the government becomes all powerful. You
19
Institutional Mechanisms will recollect from your understanding of the concept of rule of law as to how
critical the constitutional scheme of checks and balances is to prevent arbitrariness.
Our Constitution provides for certain independent bodies with specific functions.
They are:
Attorney-General for India (AG) – the Attorney-general is the first law officer
of the country. She/he is appointed by the President and holds office during
the pleasure of the President. She/he advises the central government on
legal matters and can participate in parliamentary proceedings, without the
right to vote.
Comptroller and Auditor-General of India (CAG) – the CAG audits the
accounts of the Union and the states. The audit report is placed before the
union parliament or state legislature, as the case may be. The CAG’s term is
fixed at 6 years or up to the age of 65 years. The CAG guides the Public
Accounts Committee of the parliament.
Public Service Commissions – the Constitution provides for these
commissions for the union and the states. So we have the Union Public
Service Commission (UPSC) and various State Public Service Commissions.
Election Commission – we have an independent Election Commission for
the conduct of elections to parliament, state legislature, offices of president
and vice-president.
7.7 SUMMARY
Let us now sum up this unit:
Federalism is a set-up where the powers are shared between the centre and
the states. In a country as huge as ours, where customs, traditions, faiths,
languages, and climatic conditions vary from village to village, a workable
model of governance must emphasise the unique needs of every regional
unit. Therefore, the Constitution provides for a federal structure where both
the centre and the states exercise legislative and executive powers. The
Constitution contains three lists in the Seventh Schedule which determine
the legislative domain of each.
In order to further strengthen our federalism and local self governance, the
73rd and 74th amendments to the Constitution have added another list which
consists of subjects on which the local governments – panchayats,
municipalities and municipal corporations – have the power to legislate.
Our Constitution does not provide for strict separation of powers between
the legislature and the executive. The leader of the party/coalition of parties
having the majority in parliament/state legislature becomes the prime
minister/chief minister. The political executive, that is the council of
ministers, is made up of members of the parliament/state legislature. Policies
of the government are debated in the legislature and only then become
enforceable as a law. Apart from this very critical role played by the
legislature, which provides the necessary check on exercise of power by the
government, law making is the main function of the legislature.
Parliamentary committees receive advice from several different sets of

people. To facilitate this, these committees are empowered to appoint subject
20
area experts as advisors for the task at hand. It is through this involvement Legislature and Executive
of subject area experts that technical institutions, NGOs and special interest
pressure groups are able to participate in law making, in a meaningful manner,
often with very positive direct results.
The Executive can be divided into two: the political executive that is elected
by the people for a definite term; and the permanent executive, members of
which are not affiliated to the political process and function independently
of the elected government. The permanent executive, also known as civil
services, comprises of civil servants. Civil servants remain in office even
when the ruling party changes. These officers work under the political
executive and assist it in carrying out the day-to-day administration.
Constitutional bodies like the Attorney General, Comptroller and Auditor

General and Election Commission play a critical role in our democracy.

1) Explain the system of local self governance in India, with emphasis on areas
that need reform.
2) ‘A system of constitutional checks and balances is essential for rule of law.’
Identify some such mechanisms under our Constitution.

1) The Constitution contains three lists in the Seventh Schedule which determine
the legislative domain of the centre and the states. the 73rd and 74 th
amendments to the Constitution have added another list which consists of
subjects on which the local governments have the power to legislate. Though
our Constitution provides for a federal structure, where both the centre and
the states exercise legislative and executive powers, there are some features
peculiar to our federal polity. There is a single citizenship for the whole of
India, unlike a federal country like the U.S.A. where there is dual citizenship.
Every Indian has the same rights of citizenship, irrespective of the state s/he
resides in. We have a single Constitution. The High Courts and Supreme
Court form a single integrated judiciary. To maintain uniformity in
administration, we have an all-India services common to the union and the
states. The central government is empowered to deal with emergencies arising
out of war and other national emergencies.
2) A Bill is the draft of a legislative proposal. The seed of a law is a need that
may be felt by people, which is voiced through public debates, such as,
articles in the newspapers and other media, or agitated through political
groups, rights-based groups and peoples’ movements. A law may also
originate from India’s international commitments. Whenever India signs an
international treaty, it enters into a set of obligations to either enact certain
domestic laws, or to change its domestic laws to reflect the commitment
made in the treaty.
21
Institutional Mechanisms 3) A parliamentary committee means a committee that is appointed or elected
by the House or nominated by the Speaker and which works under the
direction of the Speaker.
4) When the Lok Sabha is merely adjourned till the next session, it is said to
have been prorogued. When the Lok Sabha members are all removed from
office on completion of their term in order to make way for a new set of
elected members to take office, the Lok Sabha is said to have been dissolved.
5) The executive is of two kinds – political and permanent. The political

executive is made up of the President/Governor and the Council of Ministers
headed by the Prime Minister/Chief Minister at the union/state level
respectively, and the elected representatives of Panchayats. The permanent
executive consists of the bureaucracy at all levels, including the police. The
executive power, which is co-terminus with legislative power of the union
and the states, is exercised by the President/Governor on the aid and advice
of the council of ministers.
Terminal Questions
1) Refer to Section 8.5. Also see the concerned reports of the Administrative
Reforms Commission.
2) Refer to Sections 8.5, 8.6 and 8.7.

Granville Austin, Working a Democratic Constitution: The Indian Experience

(New Delhi: Oxford University Press, 1999).
Web Resources
http://parliamentofindia.nic.in
http://arc.gov.in
22
Justice Delivery System
UNIT 8 JUSTICE DELIVERY SYSTEM
Structure
8.1 Introduction
8.2 Objectives
8.3 Our Judicial Set Up
8.4 Subordinate Courts
8.5 High Courts
8.6 Supreme Court
8.6.1 Appointment of Judges of Supreme Court
8.6.2 Jursidiction of Supreme Court
8.7 Tribunals
8.7.1 Constitutional Provisions
8.7.2 Administrative Tribunal
8.8 Summary
8.1 INTRODUCTION
In the previous unit, we introduced you to the law making and law enforcement
functions performed by the legislature and the executive respectively. The third
organ, the judiciary, occupies a pivotal role under our Constitution. In recognition
of the importance of an independent judiciary in upholding our constitutional
values and the rule of law, several constitutional provisions guarantee the
independence of our judiciary in matters, such as, appointment, conditions of
service and dismissal.
We all know that courts decide disputes of all nature between two or more parties.
Courts interpret and uphold the law. The Constitution has entrusted certain powers
on the Supreme Court which are imperative under our federal set up. We know
that the Constitution itself provides for division of power between the centre
and the states in the form of the three lists discussed in the previous unit. There
are bound to be disputes on the extent of power enjoyed by the centre and the
constituent states. The Constitution has entrusted the highest court with the power
to decide disputes between the centre and the states and between the states inter
se.
You will recollect that the right to approach the Supreme Court for enforcement
of our fundamental rights is itself a fundamental right. This makes the role of the
Supreme Court very crucial in our constitutional scheme as the guarantor of
fundamental rights. The High Courts also enjoy this power concurrently. The
higher judiciary, thus, plays a pivotal role in checking and correcting arbitrariness
on the part of the legislature and executive authorities.
23
Institutional Mechanisms In this unit, we will take you through the hierarchy and structure of our judicial
system and the powers vested in courts at different levels. As you proceed with
this unit, you should reflect on issues that erode the credibility of the judiciary,
such as, appointment of judges, accountability and systemic constraints to access
to justice. In the next block, we will discuss some innovations and experiments
that have been carried out to improve every citizen’s access to justice.
8.2 OBJECTIVES
describe the structure and hierarchy of the judiciary;
explain the jurisdiction and powers of each of the courts; and
explain the process of tribunalisation.
9.3 OUR JUDICIAL SET UP

Our constitution provides for establishment of a Supreme Court and High Courts
at the state level. The courts in India are arranged in a three tier structure. The
Supreme Court is the highest court in this hierarchy. A High Court is the highest
court in a state. The third tier is occupied by courts at the trial level, referred to as
the subordinate judiciary. These courts have been established as per the laws of
civil and criminal procedure — the Code of Civil Procedure, 1908 and the Code
of Criminal Procedure, 1973. These procedural laws provide the mechanism for
adjudication of civil and criminal cases, wherein, a hierarchy of subordinate
courts have been created.
Supreme Court
Highest Court of Appeal in all matters
May hear writ matters directly
High Courts
Hear appeals from lower courts
Limited original jurisdiction
Sessions Courts
District Courts (Criminal Matters)
(Civil Matters)
Figure 8.1: Our judicial system
8.4 SUBORDINATE COURTS

Articles 233 to 237 provide for the establishment of subordinate courts in every
state. Each state is divided into judicial districts presided over by a ‘District and
24
Sessions Judge’. S/he is known as a ‘District Judge’ when presiding over a civil Justice Delivery System
case, and a ‘Sessions Judge’ when presiding over a criminal case. The District
Judge is the highest judicial authority in a district.1 . Below the court of District
Judge, there are different subordinate courts for civil and criminal matters which
had different names in each state, till the Supreme Court sought to bring about
uniformity. 2
On the civil side, below the Court of District Judge/Additional District Judge
are the Courts of Civil Judge (Senior Division) and Civil Judge (Junior Division).
The jurisdiction of a civil court is determined on the basis of subject matter,
location of the subject matter/defendant’s place of residence and monetary limit 3 .
On the criminal side, the Court of Sessions at the top of the hierarchy, can pass
any sentence authorised by law, but a sentence of death passed by it is subject to
confirmation by the High Court. The Courts of Chief Judicial Magistrate or Chief
Metropolitan Magistrate (in metropolitan areas)4 stand below the Sessions Court,
and deal with offences that are punishable with up to seven years’ imprisonment.
Then come the courts of Judicial Magistrates of the First Class or Metropolitan
Magistrates (in metropolitan areas) and Judicial Magistrates of Second Class.
The former deal with offences that are punishable with up to three years’
imprisonment and the latter can pass a sentence of up to one year.5
The Code of Criminal Procedure, 1973 provides for another class of magistrates
- the Executive Magistrate. This class of magistrates, as the name suggests, are a
part of the executive branch and perform administrative and quasi-judicial
functions. An Executive Magistrate cannot try cases and pass verdicts, although
s/he has the authority to order the dispersal of an unlawful assembly and decide
on the manner and measure of force to be used. For example, s/he can advise the
police whether to use tear gas or baton charge or blank fire or firing. Also, if a
person is arrested on the orders of a court outside the local jurisdiction, such a
person should be produced before the Executive Magistrate. The Executive
Magistrate can, in such a case, decide on the bail amount, depending on the
terms of the warrant.
There are, in each Revenue District (as opposed to a Sessions District) the
following kinds of Executive Magistrates:
one District Magistrate (DM)
one or more Additional District Magistrates (ADM)
one or more Sub-divisional District Magistrates (SDM)
Executive Magistrates.
All the Executive Magistrates of the district, except the ADM, are under the
control of the DM.
1
The term ‘District Judge’ is defined in Article 236 of the Constitution and includes Additional/
Joint/Assistant District Judge and Sessions/Additional Sessions/ Assistant Sessions Judge.
2
All India Judges Association v Union of India (1992) 1 SCC 119; Also see All India Judges
Association v Union of India (II) and (III) (1993) 4 SCC 288; (2000) 1 SCALE 136; (2002)
3 SCALE 291.
3
Also see Unit 1 Block 1 Course 2 (Law of Civil Procedure) for a detailed discussion on the
jurisdiction of civil courts.
4
A town whose population exceeds one million can be declared to be a ‘metropolitan area’ by
the concerned state government.
5
Also see Unit 6 Block 2 Course 2 (Courts) for a discussion on the jurisdiction of criminal
courts. 25
Institutional Mechanisms These magistracies are normally conferred on the officers of the Revenue
Department, although, an officer can be appointed exclusively as an Executive
Magistrate. Normally, the Collector of the district is appointed as the DM.
Similarly, the Sub-Collectors are appointed as the SDMs. Tahsildars and Deputy/
Additional Tahsildars are appointed as Executive Magistrates. Under the old
CrPC, there was no distinction between the Executive and Judicial Magistrates;
some states still follow the old CrPC, e.g. in Nagaland, the Collector is also the
head of the judicial branch of the district and can pass sentences, including capital
punishment under the Indian Penal Code.
CRIMINAL CIVIL
Sessions Judge/Additional District Judge/Additional

Session Judge District Judge
Chief Judicial Magistrate/

Chief Metropolitan Magistrate Civil Judge (Senior Division)
Judicial Magistrate First Class/

Metropolitan Magistrate
Civil Judge (Junior Division)
Judicial Magistrate
Second Class
Figure 8.2: Subordinate judiciary: civil and criminal
Appointment of Judges
Article 233 provides that the appointment of district judges shall be made by the
Governor of the state in consultation with the High Court. A person not already
in the service of the Union or of the state shall be eligible to be appointed as a
district judge only if s/he has been, for not less than seven years, an advocate or
a pleader, and is recommended by the High Court for appointment. Thus, the
consultation is mandatory. The idea behind such consultation is that the High
Court is better placed to be familiar with the efficiency and the quality of persons
who are fit to be appointed to the position of a District Judge.
Are the views expressed by the High Court binding on the Governor? The
Supreme Court has answered this in the affirmative and held on more than one
occasion that appointments of subordinate judges were unconstitutional and
invalid for want of effective consultation with the High Court 6 .
The Governor appoints other persons to the state judicial services, after consulting
the State Public Service Commission and the High Court concerned. Here the
consultation with the High Court is different from the consultation with the Public
6
Chandra Mohan v State of Uttar Pradesh AIR 1966 SC 1987; M.M Gupta v State of J&K
26 (1982) 3 SCC 412.
Service Commission. The Supreme Court has made it clear that the consultation Justice Delivery System
with the High Court is necessary to maintain the independence of the Judiciary.
This provision of consultation has a place of primacy and thus consultation merely
with the Public Service Commission is not sufficient. 7
The disciplinary control over all the subordinate courts in the state rests with the
High Court under Article 235. The High Court has exclusive power to enquire
into the conduct of a member of the subordinate judiciary. It decides on:
the transfer of judges of district courts;
promotion of other members of the judiciary inferior to that of the district
court;
premature or compulsory retirement of judges of district and subordinate
courts.
The State Government thus cannot decide on the transfer of the district judge,
even if it has the power to appoint, promote or post such a judge. Transfer is
completely under the control of the High Court. It should be noted here that
these are disciplinary powers and thus the High Court has no say in matters of
removal, dismissal, reduction of the rank or termination of services of a judicial
officer. Thus, it may make recommendations in such matters but cannot itself
pass an order.
The administrative control over these courts rests in the hands of the State
Government under Article 237 and the High Court has no say in administrative
control over the district and subordinate judges.
1) Name the highest court in the subordinate judiciary on the civil and
criminal side.
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
2) How has our Constitution provided for separation of the judiciary from
the executive at the subordinate level?
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
7
A.C. Thalwal v High Court of Himachal Pradesh (2000) 7 SCC 1.
27
8.5 HIGH COURTS
High Courts stand at the head of the judicial system at the state level. Article 214
of the Constitution provides for a High Court in each state. However, the
Parliament can establish, by law, a High Court for two or more states or for a
state and a Union Territory. For example, Punjab and Haryana share a common
High Court.
Every High Court consists of a Chief Justice and such other judges as the President
may from time to time appoint. Thus, there is no fixed maximum number of
judges for a High Court. Under Article 217, the President appoints the Chief
Justice of a High Court after consulting the Chief Justice of India and the Governor
of the state concerned. While appointing other judges, the President may consult
the Chief Justice of the concerned High Court.
Who can become a judge of a High Court?

Any person who is
a citizen of India,
has held a judicial office for at least ten years in the territory of India,
has been an advocate of a High Court for at least ten years.
A judge of the High Court shall hold office until he attains the age of sixty-two
years. A judge may be removed from office by the President only by impeachment.
In the landmark case C. Ravi Chandran Iyer v Justice A.M Bhattacharjee (1995)
2 SCC 428, the Supreme Court has held that only the Chief Justice of India is
considered the prime mover for taking action against an erring High Court Judge
or a Chief Justice of a High Court whose bad conduct falls short of punishment
by impeachment. This in-house procedure to discipline the erring judge can indeed
be expected to fill the gap created through the failed impeachment of Justice V.
Ramaswami.
Article 220 prohibits a person who has held office as a permanent Judge of a
High Court from acting or pleading in any court or before any authority in India,
except the Supreme Court and the other High Courts. This prohibition is necessary
in order to maintain the independence of the Judiciary.
Powers of the High Court
Article 215 declares that every High Court shall be a court of record and shall
have all the powers of such a court, including the power to punish for its contempt.
The scope and nature of this Article is similar to the powers of the Supreme
Court under Article 129, which will be discussed in the following section.
Every High Court, under Article 227, has the power of superintendence over all
the courts and tribunals throughout the territory within which it has jurisdiction.
Thus, the High Courts can make general rules for the lower courts, decide on the
manner they should function in, prescribe the forms in which such courts should
maintain their books, records, accounts, and settle the fees of the sheriffs, clerks
advocates and pleaders. This power of superintendence is not limited to just
administrative matters but extends to judicial matters as well. The power of
superintendence given to the High Courts should be used carefully and in
28
appropriate cases, and not just to correct minor errors of fact. The common grounds Justice Delivery System
on which the High Courts generally interfere with the inferior courts are:
when the inferior courts act arbitrarily, or
act in excess of jurisdiction vested in them, or
fail to exercise the jurisdiction vested in them, or
act in violation of principles of natural justice, or
there is an error of law apparent on the face of the record.
As mentioned earlier, the High Courts have disciplinary jurisdiction over the
subordinate courts. Under this jurisdiction, the High Courts decide on the postings,
transfers and promotions of the persons in the subordinate courts.
3) What are the powers of a High Court under its supervisory and
disciplinary jurisdictions?
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
8.6 SUPREME COURT

Article 124 (1) establishes the Supreme Court of India. At present the Supreme
Court comprises the Chief Justice and 25 justices of the court. It is the ultimate
court of appeal in civil and criminal matters. The Supreme Court is a court of
record; which means that its records have evidentiary value and cannot be
questioned by any court. The court has all the powers including the powers to
punish for its contempt under Article 129. The Contempt Court Act 1971, defines
the powers of courts for punishing for the contempt of courts, and regulates their
procedure. The Act provides that judges too can be tried for contempt of court.
The objective for vesting such a power in the court is to uphold the majesty of
law. Courts are the guardians of the Rule of Law, which is the foundation of
democracy. Thus, the courts should have the power to punish those who hold it
in contempt.
Article 130 states that the Supreme Court will be located in Delhi or at such
other place that the Chief Justice of India (CJI) may appoint from time to time.
However, such an appointment may only be done with the approval of the
President. It is an unfortunate reality, however, that despite such provisions, the
economically weaker sections of India may find themselves short-changed in
their attempt to seek justice at the Supreme Court owing primarily to costs of
legal fees, travelling and accommodation expenses and other costs incurred in
the process of appeal. So far, however, no provisions have been made, such as,
additional benches in other parts of the country to allow easier access to justice
for those who cannot afford to travel all the way to New Delhi.
29
Institutional Mechanisms 8.6.1 Appointment of Judges of the Supreme Court
Under Article 124 (2), the President appoints the judges of the Supreme Court
after consultation with such judges of the Supreme Court and of the High Courts
as the President may deem necessary for the purpose. In 1998 the President
sought clarification from the Supreme Court on the issues concerning the
appointment of the judges of the Supreme Court and the transfer of High Court
judges.
A nine-judge Bench of the Supreme Court in the Presidential Reference case
(AIR 1999 SC 1) affirmed the primacy of the Chief Justice in the appointment of
the judges of the Supreme Court. The Court held that the Chief Justice of India
should consult a collegium of the four senior most judges of the Supreme Court
in the matter of appointment of the judges of the Supreme Court. The collegium
must take the decision by consensus as far as possible. Even if two judges were
to give an adverse opinion, the Chief Justice of India should not send the
recommendation to the government.
Normally the senior most judge is appointed as the Chief Justice. In 1973, this
practice was broken and the then government appointed Justice A.N. Ray as the
Chief Justice of India superseding his three senior colleagues, Justices Shelat,
Hegde and Grover, all of whom resigned after this incident. The Supreme Court
Bar Association condemned the action of the government and said that this was
a blatant and outrageous attempt to undermine the independence and impartiality
of the Judiciary, and to lower the dignity and prestige of the Supreme Court.
It has often been expressed that such an exercise of power by the executive will
make the whole concept of separation of powers meaningless. If the government
is to appoint the Chief Justice of India, every judge in the Supreme Court will try
her/his best to please the government. This may endanger the philosophy of an
impartial and independent judiciary.
Since 1977, the government has again reverted to the old practice of considering
seniority while appointing the Chief Justice of India.
Who can become a judge of the Supreme Court?

Any person who is a citizen of India and
has been a judge in any High Court for at least five years, or
an advocate in any High Court for ten years, or
in the opinion of the President, is a distinguished jurist.
Every Supreme Court judge holds his office till he attains the age of sixty-five
years, but may resign by writing to the President.
Under Article 124 (4) and (5), a Judge may be removed from office by an order
of the President only on the grounds of proved misbehaviour or incapacity.
However, the order passed by the President must be supported by a majority of
total membership of the houses and also by a majority of no less than two-third
of members present and voting. The terms ‘misbehaviour’ and ‘incapacity’ are
undefined in the Constitution. The Judiciary has interpreted that the expression
‘misbehaviour’ includes criminal misconduct as defined in the Prevention of
Corruption Act.8
8
30 K.Veeraswami v Union of India 1991 3SCC 655.
In another landmark case, Justice V. Ramaswami, a judge of the Supreme Court, Justice Delivery System
had to face an impeachment motion for irregularities in finances. The motion,
however, failed in the Lok Sabha. This was because the Congress MPs abstained
from voting. The motion suffered defeat not on the ground of merit but owing to
the ruling party abstaining from voting. The irony is that this will only make the
judiciary dependable on the executive.
A person who has held the office of a Supreme Court judge is prohibited under
Article 124 (7) from pleading or acting in any court or authority in India. This
disqualification has been placed with a view to preserving the dignity of the
apex court.
8.6.2 Jurisdiction of the Supreme Court
Original Jurisdiction (Article 131

Appellate Jurisdiction (Article 133-136)
constitutional matters (Article 132)
civil (Article 133)
criminal (Article 134)
appeal by special leave (Article 136)
Advisory Jurisdiction ((Article 143)
Original Jurisdiction
A court has original jurisdiction when it has authority to hear and determine a
case in the first instance. Under Article 131, the Supreme Court has exclusive
original jurisdiction in any dispute between:
- the centre and a state;
- the centre and a state on one side and a state on the other;
- two or more states;
if, and in so far as, the dispute involves any question (whether of law or of fact)
on which the existence or extent of a legal right depends.
Questions of a political nature are excluded from the purview of Article 131.
The article imposes two limitations on the exercise of this jurisdiction – one, the
parties involved (whether ‘State’ or not) and two, the subject matter (whether
there is existence or extent of a legal right). It should be noted that the enlarged
definition of ‘State’ given under Article 12 is not applicable under Article 131.
In the case of State of Bihar v Union of India9 , the State of Bihar filed a suit in
the Supreme Court under Article 131 against the Union of India as the owners of
the Rajasthan and Hindustan Steel Ltd, a government company, claiming damages
for short supply of iron and steel ordered by Bihar in connection with a project.
The Supreme Court held that the suit did not fall under Article 131 as its
phraseology excluded the idea of a private citizen, firm or corporation figuring
as disputant either alone or with a government. This means that only disputes
between various governments, such as between state governments, or between
the central and state governments, can be brought under Article 131. As to the
9
AIR 1970 SC 1446. 31
Institutional Mechanisms nature of disputes, the Supreme Court held that it must arise in the context of the
Constitution and the federal nature of the country that it provides for. Not many
cases are filed under Article 131.
Appellate Jurisdiction
The Supreme Court is primarily a ‘Court of Appeal’, and enjoys extensive
appellate jurisdiction in constitutional, civil and criminal matters.
Constitutional Matters
Under Article 132, an appeal lies in the Supreme Court from any judgment,
decree or final order of a High Court in civil, criminal or other proceedings, if
the High Court certifies that the case involves a substantial question of law
involving interpretation of the Constitution.
Civil Matters
Under Article 133, an appeal lies in the Supreme Court from any judgment,
decree or final order in civil proceedings passed by any High Court, if the High
Court certifies that:
the case involves a substantial question of law of general importance, and
in the opinion of the High Court it needs to be decided by the Supreme Court.
Criminal Matters
The provisions of the Constitution under Article 134 providing for criminal
appeals to the Supreme Court are so designed to allow only important criminal
cases to come before it.
i) Under Article 134 (1) (a), an appeal lies to the Supreme Court from a High
Court if the High Court has, on appeal, reversed an order of acquittal of an
accused and sentenced him to death. But no appeal lies to the Supreme
Court if the High Court reverses an order of conviction.
ii) Under Article 134 (1) (b), an appeal lies to the Supreme Court if a High
Court has withdrawn from trial a case from a lower court and sentenced the
accused to death.
iii) Under Article 134 (1) (c), an appeal lies in the Supreme Court, on the High
Court certifying that the case is fit for an appeal to the Supreme Court, if it
comes to the conclusion that there is a substantial question of law involved.
Under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970 two additional grounds are provided for appeal from a High Court to the
Supreme Court:
If a High Court has, on appeal, reversed on order of acquittal and sentenced
the accused to imprisonment for life or for a period not less than ten years.
If a High Court has withdrawn a case from a subordinate court, convicted
the accused, and sentenced him to imprisonment for life or for a period of
not less than ten years.
Appeal by Special Leave: Article 136

Under Article 136, the Supreme Court has the discretion to grant special leave to
appeal from any judgment, decree, determination, sentence or order in any matter
32
passed or made by any court or tribunal. However, Article 136 (2) excludes any Justice Delivery System
court or tribunal constituted by any law relating to the armed forces.
In spite of having such vast powers, the Supreme Court imposes certain limitations
on itself. It will exercise its jurisdiction under Article 136 only when there is a
violation of natural justice, or if grave injustice has been done or when there is a
grave error apparent on the face of the record.
Advisory Jurisdiction
The Supreme Court has been given advisory jurisdiction by Article 143 (1) when
it appears to the President that:
a question of law or fact has arisen or is likely to arise, and
the question is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court.
The Court then, after hearing as it thinks fit, may return to the President its
opinion thereon.
The reference under advisory jurisdiction is heard by a bench of no less than five
judges. Also, under Article 143 (1), the word ‘may’ is used – this means the
Supreme Court is not obligated to express its opinion. It has the discretion of
whether or not to opine in the matter. The main utility of advisory opinion is to
enable the government to secure authoritative views on proposed legislative
measures before they are actually enacted. Such opinion, when given, is not
binding on the President.
Article 143 (2) provides that a matter which is excluded from the jurisdiction of
the Supreme Court under Article 131, may be referred to it by the President and
the Court shall be bound to give its opinion. However, the said jurisdiction shall
not extend to the disputes arising from any treaty or agreement entered into before
the commencement of the Constitution.
The foregoing discussion gives us a fair idea of the powers and the nature of
jurisdiction of the Supreme Court. Apart from these powers, the Supreme Court
can review its own decision under Article 137. However, such review is subject
to any law made by the Parliament, and the review will not lie unless there is
discovery of a new important matter of evidence, or a mistake or error on the
face of the record or any other sufficient reason.
Under Article 141, the law declared by the Supreme Court is binding on all the
courts in India. This gives rise to the question whether the Supreme Court is
itself bound by its own decisions. This question was dealt with in detail in Bengal
Immunity Co. v State of Bihar AIR 1955 SC 661, where the Court held that there
is nothing in the Constitution that prevents the Supreme Court from deviating
from its previous decisions, if it is convinced of its error and its beneficial effect
in the general interest of the public. Thus, while saying that the Supreme Court
can deviate from its previous decisions, the Court also specified the grounds on
which this can be done — had there been an error before or when the change is
in the public interest.
33
4) How is appointment of judges to the Supreme Court made?
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
5) When can the President seek advisory jurisdiction of the Supreme Court?
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
6) Why is the role of the Supreme Court considered to be pivotal in our
federal set up?
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...............................................................................................................
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8.7 TRIBUNALS
Apart from the traditional courts discussed above, our judicial system comprises
of tribunals like the Administrative Tribunals and Motor Accidents Claims
Tribunal, and special courts like the family court and consumer forums. All these
are established by statutes. These forums are a result of the search for alternative
institutional mechanisms for justice delivery prompted by huge workload on
courts, mounting arrears, a need for less rigid rules of procedure, and a need for
moving away from a strict adversarial system to decide certain disputes like
divorce and other family matters. In this section, we will discuss the administrative
tribunals set up under the Constitution.

Articles 323-A and 323-B (inserted by the Forty-second Amendment to the
Constitution) empower the concerned legislature to constitute tribunals to ease
congestion of pending cases in courts. Article 323-A empowers parliament to
enact a law providing for the constitution of administrative tribunals – one for
the union and one for each state or two or more states – for resolving disputes
relating to recruitment and conditions of service of persons appointed to public
service. Article 323-B permits a hierarchy of tribunals for other matters relating
to special subjects, such as, tax, foreign exchange, labour, industrial disputes,
34
supply of essential goods, ceiling on urban property and elections to the Parliament Justice Delivery System
and State Legislatures. The concerned legislature can specify the jurisdiction,
powers (including the power to punish for contempt) and the procedure to be
followed in the functioning of such tribunals. The jurisdiction of all courts, except
the Supreme Court under Article 136 (appeal by special leave) can be excluded.
The objective behind ‘tribunalisation’ of justice was to ease pressure on courts;

to allow for speedy disposal by dispensing with strict rules of evidence; and
adjudication of disputes pertaining to specialised subjects by persons having
technical expertise. The exclusion of the jurisdiction of other courts, however,
had been a contentious issue till a seven-member bench of the Supreme Court in
L. Chandra Kumar v Union of India10 unanimously held that exclusion of the
jurisdiction of the Supreme Court (Article 32) and High Courts (Articles 226
and 227) does interfere with the power of judicial review, which is a basic feature
of the Constitution. Therefore, the judicial remedies under Articles 32, 226 and
227 are now available against the decisions of all tribunals constituted under
Articles 323-A and 323-B.
8.7.2 Administrative Tribunals

The Administrative Tribunals Act, 1985 enacted pursuant to Article 323-A
empowers the central government to establish administrative tribunals for central
and state services. Such a law was considered necessary as a large number of
cases relating to service matters were pending before various High Courts.
Separate tribunals were expected to decrease the burden of High Courts and also
provide speedy relief to aggrieved public servants. This Act, however, does not
apply to:
the members of naval, military or air force or any other armed forces of the
Union;
any officer or servant of the Supreme Court or any High Court;
any person appointed to the secretariat of either of the Houses of Parliament.
Each Tribunal shall consist of a Chairman, and such number of Vice-Chairmen
and other members as the appropriate government may deem fit. They are
appointed by the President in case of a central tribunal, and in the case of a State
Tribunal, by the President in consultation with the Governor of that state. All
appointments are to be made by a committee headed by a sitting judge of the
Supreme Court. A tribunal should be presided over by an existing or former
judge of a High Court. The Supreme Court has held that this is necessary if the
tribunals, which are a substitute for the High Courts, are to inspire confidence
and ensure fair administration of justice.11 The service of the members can be
terminated by the President on the ground of proved misbehaviour or incapacity.
However, an order in this regard can be made only after an inquiry conducted by
a judge of the Supreme Court.
10
(1997) 3 SCC 261; Also see Law Commission of India, 215th Report, available at http://
lawcommissionofindia.nic.in/ , for the law commission’s recommendation that this decision
be revisited by a larger bench as all orders passed by a tribunal are appealed against before the
High Court, and therefore, negating the original purpose of reducing the workload of High
Courts.
11
S.P. Sampath Kumar v Union of India (1987) 1 SCC 124; also see, R.K. Jain v Union of India
(1993) 4 SCC 119. 35
8.8 SUMMARY
Let us now sum the contents of this unit:
The fountainhead of law in India is the Constitution of India. To maintain
the supremacy of the Constitution, it is necessary to have an independent
and impartial system. This function is vested in the Indian judiciary.
In this unit, we have studied the hierarchy of the courts and tribunals and
their functions and powers. India has a unified judicial system with the
Supreme Court at the apex and the High Courts and subordinate courts at
the state level.
The Constitution provides for the establishment of Central and State
Administrative Tribunals.

1) Create a detailed flow chart depicting the structure of the Indian Judiciary
from the lowermost subordinate court to the Supreme Court, on both the
civil and criminal sides.
2) Discuss the different types of jurisdiction that rest with the Supreme Court.
Give one scenario for invoking each of these types of jurisdiction.

1) Articles 233 to 237 provide for the establishment of subordinate courts in
every state. Each state is divided into judicial districts presided over by a
‘District and Sessions Judge’. She/he is known as a ‘District Judge’ when
presiding over a civil case, and a ‘Sessions Judge’ when presiding over a
criminal case. The District Judge is the highest judicial authority below a
High Court. Below her/him, there are different subordinate courts for civil
and criminal matters.
2) Article 233 provides that the appointment of district judges shall be made
by the Governor of the state in consultation with the High Court, which is
mandatory. The disciplinary control over all the subordinate courts in the
state rests with the High Court under Article 235. The High Court has
exclusive power to enquire into the conduct of a member of the subordinate
judiciary and decide on matters, such as, transfer and promotion. The State
Government cannot decide on the transfer of a district judge, even if it has
the power to appoint, promote or post such a judge.
3) Every High Court, under Article 227, has the power of superintendence
over all the courts and tribunals throughout the territory within which it has
jurisdiction. The High Courts can make general rules for the lower courts
and decide on the manner in which they should function. This power of
superintendence is not limited to just administrative matters but extends to
judicial matters as well. The power of superintendence given to the High
Courts should be used carefully and in appropriate cases, and not just to
correct minor errors of fact. The High Courts have disciplinary jurisdiction
36
over the subordinate courts. Under this jurisdiction, the High Courts decide Justice Delivery System
on the posts, transfers and promotions of the persons in the subordinate
courts.
4) Under Article 124 (2), the President appoints the judges of the Supreme
Court after consultation with such judges of the Supreme Court and of the
High Court in the states as the President may deem necessary for the purpose.
In 1998 the President sought a clarification on the issues concerning the
appointment of the judges of the Supreme Court and the transfer of High
Court judges. A nine-judge Bench of the Supreme Court in the Presidential
Reference case (AIR 1999 SC 1) affirmed the primacy of the Chief Justice
in the appointment of the judges of the Supreme Court. The Court held that
the Chief Justice of India should consult a collegium of the four senior most
judges of the Supreme Court in the matter of appointment of the judges of
the Supreme Court.
5) The President can seek the Supreme Court’s opinion under its advisory
jurisdiction, when it appears to the President that a question of law or fact
of such a nature and of such public importance has arisen, that it is expedient
to obtain the opinion of the Supreme Court.
6) The Supreme Court decides disputes between the centre and the states and
also between the states inter se under Article 131. This original jurisdiction
of the Supreme Court is very critical in a federal polity. However, the dispute
should involve a question (whether of law or of fact) on which the existence
or extent of a legal right depends. Questions of a political nature are excluded
from the purview of Article 131.
Terminal Questions
1) Refer to Section 8.3 and 8.4

S.K. Verma and Kusum eds, Fifty Years of the Supreme Court of India: Its
Grasp and Reach (New Delhi: Oxford University Press, 2000).
37
UNIT 9 HUMAN RIGHTS PROTECTION
MECHANISMS
Structure
9.1 Introduction
9.2 Objectives
9.3 What are Human Rights?
9.3.1 Principles of Human Rights
9.3.2 International Human Rights Framework
9.3.3 National Normative Framework
9.4 National Human Rights Institutions
9.5 National Human Rights Commission
9.6 Civil Society Initiatives
9.7 Summary
9.1 INTRODUCTION
Every human being has certain needs to be able to live a life with dignity and
realise one’s potential. These basic needs or entitlements are guaranteed to every
human being and are referred to as human rights. These internationally recognised
human rights find endorsement under our Constitution. The Supreme Court is
the guarantor of our fundamental rights (Article 32). Despite such constitutional
safeguards, we witness human rights violations.
A victim, or a person who is arrested, or their family members, while navigating
the legal system, come into contact with official machinery, such as, the police,
courts, the public prosecutor, and prison authorities. Such institutions may not
respond well, or may even refuse to help the concerned person. In such cases,
there are other agencies a person can go to. There are certain institutions which
can be contacted to get the voice of the victim or accused heard. There is an
emergence of institutions which are given the specific tasks of monitoring,
supervising and addressing problems of defined human rights violations. For
example, in cases of custodial torture one can approach the National/State Human
Rights Commission.
The National Human Rights Institutions do not require the services of a lawyer
to approach them. These Institutions provide justice to the most vulnerable and
voiceless people, such as women, children, dalits, religious minorities, and
persons with disability. These Institutions are easy to contact and get a response
to a human rights violation as they function independent of the government and
their sole responsibility is to protect human rights, such as, right to life, liberty,
equality and dignity of the individual guaranteed by the Constitution.
In this unit, we will identify the important institutions that have been set up to
38 protect human rights. The National Human Rights Commission (NHRC) has the
mandate to protect and promote human rights. There are other commissions that Human Rights Protection
Mechanisms
have the mandate of securing the rights of specific groups. The focus of this unit
is on the functioning of the NHRC.
9.2 OBJECTIVES
After going through this Unit, you should be able to:
explain the key concepts in human rights;
identify the key National Human Rights Institutions;
explain the role of these institutions; and
engage with these institutions.
9.3 WHAT ARE HUMAN RIGHTS?

Before learning more about the national human rights institutions, it is important
to understand what human rights are and the international and domestic framework
for protection of human rights.
Human rights are those rights that are guaranteed to a person simply by virtue of
her/his being a human being. Every human being possesses the right to enjoy
autonomy and the means to ensure material well-being. A person can enjoy
these rights irrespective of race, colour, sex, language, religion, political
opinion, national or social origin, or economic status. For example, a person
born to wealthy parents will not enjoy more rights than some one born in a poor
family.
Human rights are important because they recognise that each person is unique,
with distinct talent and abilities and that no one is inferior or superior to another.
At the heart of human rights is the idea that all people are born free and equal.
Everyone is entitled to live with dignity. The State, the community, or the family
do not have any right to treat anyone unfairly or unjustly. It is the duty of the
State to promote respect for the human rights of all people equally.
9.3.1 Principles of Human Rights

Human rights do not have to be bought, given, earned or inherited. They belong
to everyone because they are human beings. Human rights are, therefore,
inalienable and cannot be taken away by anyone, not even by the government.
Even if a foreigner is in a particular country, the person will enjoy human rights.
Even those who are in prison enjoy certain human rights, which no one can take
away.
The rights are the same for everyone, whether the person is born in a high caste
or low caste, is rich or poor, speaks in Hindi or Tamil, or is a Hindu, Muslim,
Christian, Sikh or Buddhist. All are born free and equal, which makes these
rights universal.
If a person enjoys the right to life and the right to dignity, the person will also
enjoy the right to work for a living and the right to education. The right to life
and the right to work are two types of rights. One right cannot be enjoyed at the
cost of the other, and so they are indivisible.
39
Institutional Mechanisms The important elements of human rights are given in the table below:
Equality Indivisibility
“All human beings are born free and One right cannot be enjoyed at the
equal in dignit y and rights”, cost of the other and so human
irrespective o f caste, religion, rights are indivisible.
political links or wealth. Everyone
can enjoy equal opportunities.
Universality Interdependency
Everyone can enjoy human rights Human rights concerns appear in
and they are applicable across the all aspects of life – at home, school,
world. workplace, courts – everywhere.
Human rights violations are
interconnected. If there is loss of
one right, such as right to
nationality, then there is loss of
other rights, such as, right to work
or right to adult franchise. In the
same way, the promotion of human
rights in one area supports other
human rights.
Human Dignity Inalienability
Human rights are enjoyed equally by The rights that individuals have
individuals, regardless of age, cannot be taken away, surrendered
culture, faith, ethnicity, race, gender, or transferred.
sexual orientation, language,
disability or social class.
Non discrimination Responsibility

Non discrimination is integral to the Government responsibility –
concept of equality. It ensures that no government is accountable for its
one is denied the protection of their actions
human rights based on some external
factors such as race, colour, sex, Individual responsibility – every
language, religion, political individual has the responsibility to
affiliation, nationality, social origin, respect human rights and to
property and birth. challenge organisations and
individuals that abuse them.
9.3.2 International Human Rights Framework

Of the various international instruments, the Universal Declaration of Human
Rights (UDHR) is the most important. It is a non-binding declaration adopted by
the United Nations General Assembly in 1948. The UDHR urges member nations
to promote a number of civil, political, economic and social rights, asserting that
these rights are part of the “foundation of freedom, justice and peace in the world”.
The declaration was the first international legal effort to set limits to the conduct
of States and impose upon them duties to their citizens. Civil and political rights
contained in the International Convention on Civil and Political Rights (ICCPR)
refrain states from intervention in enjoyment of rights, whereas, social and
40
economic rights contained in the International Convention on Economic, Social Human Rights Protection
Mechanisms
and Cultural Rights (ICESCR) impose positive obligations on the State. Some
of the most significant human rights instruments are:
Convention on the Elimination of All Forms of Racial Discrimination
(CERD) (adopted 1966, entry into force: 1969)
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) (adopted, entry into force: 1981)
United Nations Convention Against Torture (CAT) (adopted 1984, entry into
force:1984)
Convention on the Rights of the Child (CRC) (adopted 1989, entry into
force: 1989)
International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families (ICRMW) (adopted 1990)
Declaration on human rights defenders, 1998.
The enforcement of international human rights law is the responsibility of the
State, and it is the primary responsibility of the State to make human rights a
reality. There is currently no international court that upholds human rights law,
although the International Criminal Court deals with crimes, such as, crimes
against humanity, war crimes and genocide. In practice, many human rights are
very difficult to legally enforce due to the absence of consensus on the application
of certain rights, the lack of relevant national legislation or of bodies empowered
to take legal action to enforce them, for example, the Convention against Torture.
9.3.3 National Normative Framework

India has signed several international treaties, which has helped in the formulation
of various national laws. India is a signatory to the International Bill of Rights
and other major international covenants that have been ratified are CERD,
CEDAW and CRC. The rights recognised in the UDHR are also found in the
Indian Constitution. Some rights are covered in the chapter on Fundamental
Rights and some are covered under Directive Principles of State Policy. Apart
from the Constitution, specific human rights are also protected under different
laws like the Protection of Civil Rights Act, 1955, Scheduled Castes and
Scheduled Tribes [Prevention of Atrocities] Act, 1989 and Bonded Labour System
[Abolition] Act, 1976.
The Parliament/ State Legislatures can not make any law that violates any
fundamental right. Executive action too is subject to judicial review. The State is
under an obligation to take measures to ensure that human rights are protected
by providing effective remedies for persons whose rights are violated within its
territory. If the State does anything to reduce, disrespect, or interfere with a
person’s human rights, then it becomes a violation. The State is also responsible
in the event of rights violations by private persons. If a private person violates
someone’s rights relating to life, liberty, equality or dignity, the victim can
approach the State for taking action against the violator. If the State fails to stop
and punish the violator, then it becomes a human rights violation.
41
1) What are the basic principles underlying the concept of human rights?
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9.4 NATIONAL HUMAN RIGHTS INSTITUTIONS

If the Government or more specifically, if any of its officials violates a right or
does not listen to a complaint, the complainant need not feel dejected or lost.
There are agencies or institutions that have the specific responsibility to ensure
that the voices of the complainants, the victims and the abused are heard. These
are the National Human Rights Institutions. We have some specialised institutions
which have been set up to promote and protect the interests of specified groups,
such as, women, children, dalits and tribals. The National Human Rights
Commission (NHRC) set up under the Protection of Human Rights Act has the
mandate of protecting and promoting all human rights.
The Paris Principles were adopted by the UN General Assembly in December

1993 and require States to establish a framework, involving one or more
independent mechanisms, to promote and protect human rights. Such a
mechanism should be independent and pluralistic in composition, with or without
quasi-judicial powers. These institutions must operate with the support of NGOs,
academic and legal experts, and other interested parties. The essential purpose
of such a mechanism is to develop a ‘culture’ of human rights.
Responsibilities of national human rights institutions include the submission of

recommendations and proposals to relevant bodies on legislative provisions,
investigations of human rights violations where applicable, ensuring the
harmonisation of national legislation with international law, encouraging the
ratification of international human rights treaties, assisting in human rights
education, and raising public awareness. Even though, strictly speaking, only
the NHRC has the mandate of protecting and promoting all human rights in
consonance with the Paris Principles, all the other specialised institutions that
we have also have similar quasi-judicial powers.
Some national human rights institutions are specialised agencies but they all
share some common attributes:
they are often administrative in nature;
many have quasi-judicial powers to resolve disputes;
42 they are neither courts nor law-making bodies;
they play an advisory role in respect to human rights at the national and/or Human Rights Protection
Mechanisms
international level;
they provide opinions and recommendations;
some of these institutions also conduct investigations to provide remedies.
We will now briefly outline the mandate of some of the specialised institutions.
National Commission for Women (NCW)

The National Commission for Women is a specialised body which was set up
under the National Commission for Women Act, 1990. The Commission was
established to help in the monitoring of the status of women in India and also
provide a forum to file a complaint if all other bodies refuse to look into the
complaint made by a woman. The mandate of the NCW is to:
review the constitutional and legal safeguards for women;
recommend remedial measures such as new laws or amendments that can
be brought into old laws;
to take up cases where the police have not registered a case;
advise the government on all policy matters affecting women.
National Commissions for Scheduled Castes and Scheduled Tribes
These are two separate commissions and their mandates are:
to investigate and monitor all incidents of violations relating to the
safeguards provided for the scheduled castes and the scheduled tribes (SC/
ST) under the Constitution or under any other law and evaluate the working
of such safeguards;
to inquire into specific complaints with respect to the denial of rights and
safeguards of the SC/ST;
to participate and advise on the planning process of socio-economic
development of the SC/ST and to evaluate the progress of their
development under the functions of the Union and any State.
While monitoring an incident of violation, the commissions inquire into
matters, such as:
whether the victims were provided with suitable medical assistance on time;
whether adequate protection was arranged for the victims of such incidents
by providing police protection, such as, stationing a police party or by
patrolling;
whether proper compensation is paid to the victims as per provisions of
law.
National Commission for Protection of Child Rights
This was set up in March, 2007 under the Commission for Protection of Child
Rights Act, 2005. A child is defined as a person in the age group of 0 to 18. Its
mandate is:
to ensure that all laws, policies, programmes and administrative
mechanisms are in consonance with the child rights perspective enshrined
in the Constitution and the U.N. Convention of Rights of the Child (CRC);
43
Institutional Mechanisms to end the societal tolerance of violation of child rights.
Main functions include:
effective implementation of laws for protection of child rights;
inquire into specific violations of child rights and recommend initiation
of proceedings;
spread child rights literacy;
inquire into complaints and take suo moto notice of matters including
deprivation/violation of child rights, non-implementation of laws and non-
compliance of policy decisions;
research and documentation.
2) List some of the common features of all the national human rights
institutions.
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9.5 NATIONAL HUMAN RIGHTS COMMISSION

The Government of India enacted the Human Rights Protection Act in 1993,
thereby, setting up the first national human rights organisation which would
scrutinise human rights violations. The National Human Rights Commission
(NHRC) and subsequently seventeen (17) State Human Rights Commissions
were set up in India for the protection and promotion of human rights in the
country.
An independent body
The NHRC is an independent institution due to the nature of the appointment of
its Chairperson and Members, their fixed tenure and statutory guarantees, such
as, financial independence. The National Commission has to present a yearly
report in Parliament and the State Commissions present an annual report to the
state legislatures. The Chairperson and Members of the National Commission
are appointed by the President on the recommendations of a Committee
comprising the Prime Minister as the Chairperson, the Speaker of the Lok Sabha,
the Home Minister, the leaders of the opposition in the Lok Sabha and Rajya
Sabha and the Deputy Chairman of the Rajya Sabha as Members.
What does the NHRC do?

A lot of the work that the NHRC does pertains to investigating into complaints
of custodial torture. Some of the important functions that the commission performs
are:
44
a) Inquires about a human rights violation based on a complaint from a victim. Human Rights Protection
Mechanisms
The Commission can also undertake action on the basis of a newspaper
report, which is called taking ‘suo moto’ cognizance or action on its own.
b) Intervenes in any proceeding involving any allegation of violation of human
rights before a court. The Commission can take up the matter only after
receiving permission of the court. For example, the National Human Rights
Commission intervened with the permission of the Supreme Court in the
Gujarat riot cases in 2002.
c) Inspect a jail or any other custodial institution – lock-up, mental hospital,
Juvenile Justice Home, rescue home, etc. after informing the concerned state
government. The NHRC officials can meet the persons detained, study the
living conditions of the inmates and make recommendations to the concerned
authorities.
d) Review the human rights safeguards enshrined in any law or under the
Constitution and recommend measures for their effective implementation.
e) Review the factors, including acts of terrorism, which prevent the enjoyment
of human rights and recommend appropriate remedial measures.
f) Study treaties and other international instruments on human rights and make
recommendations for their effective implementation.
g) Undertake and promote research in the field of human rights.
h) Spread human rights education among various sections of society and promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other available means.
i) Encourage the efforts of NGOs and institutions working in the field of human
rights.
How to file a complaint at a National/State Human Rights Commission

As a paralegal it will be important to understand the procedure for filing a
complaint. As a primary-level human rights defender, you will be sure to come
across a human rights violation.
A victim or a person who has knowledge of a human rights violation can approach
the NHRC or a State Human Rights Commission.
The Commission, while inquiring into complaints of violations of human rights,

may call for information or report from the central government or any state
government or any other authority or organisation within a specific period of
time. If the information or report is not received within the specific time by the
Commission, it may proceed to inquire into the complaint on its own. If the
information or report is received and the Commission is satisfied that no further
inquiry is required, or that the required action has been initiated or taken by the
concerned authority, it need not proceed with the complaint and can inform the
complainant accordingly.
A person, an organisation or even a group of persons who have come to know of

a human rights violation can write a letter or an application to the human rights
commission in Hindi, English or in any language included in the Eighth Schedule
45
Institutional Mechanisms of the Constitution. The letter or the application can be treated as a complaint.
No fees are charged to register the complaint. Nowadays a complaint can also be
sent by e-mail or fax; even telephone calls are entertained. After the complaint
is sent, the Commission may ask for further information and statements to be
filed in support of the complaint.
If the Commission finds that a complaint can be entertained, a complaint number
is provided to the complainant that can be used to access the status of a complaint
online. The Commission may take any of the following steps once it has completed
an inquiry:
1) If the Commission finds that there has been a human rights violation after
investigation of a case, it can ask the concerned state government to initiate
proceedings to prosecute the concerned officer.
2) Approach the Supreme Court or the concerned High Court for directions or
file a writ to provide a legal solution to a human rights violation.
3) Recommend to the concerned government to grant immediate interim relief
to the victim or the members of the family as compensation.
What can the NHRC do if the armed forces commit human rights
violation?
While dealing with complaints of violation of human rights by members of
the armed forces, such as, the army, or para security agencies such as CISF,
the Commission shall, on the basis of a complaint filed by a victim or a
third party, ask for further information from the central government. The
central government shall inform the Commission of the action it has taken
on the recommendations within three months or within the time provided
by the Commission. The Commission has the authority to publish its report
and its recommendations made to the central government and the action
taken by that Government. A copy of this report will also be provided to the
person or the representative of the person who has filed the complaint.
9.6 CIVIL SOCIETY INITIATIVES

The collective mandate of all these institutions is to improve the human rights
situation in the country and in conducting investigations and recommending
remedies in individual cases. The results of their investigations should be open
to public scrutiny especially to civil society groups who work on similar mandates.
NHRI’s are mandated to combat impunity by state organs. Therefore, it is
important that such institutions should be judged on how they implement their
goals and perform to deliver their overall objectives. The Paris Principles also
require that the NHRIs have responsibility to ensure that national legislation is
in harmony with international human rights instruments and these institutions
should encourage ratification of instruments and ensure their effective
implementation. Similarly they have a critical role in the reporting process either
through contributing to the preparation of States party reports or where necessary
expressing independent opinions.
There have been several criticisms that these National Human Rights Institutions
in India have been operating as state agencies rather than providing an independent
view. One criticism has been that such institutions are completely staffed by
government and retired government or judicial officers making the institutions
46
suffer from the same delays and anomalies as agencies of the criminal justice Human Rights Protection
Mechanisms
system. There have been reports that the investigations have been biased and too
much of dependence on state responses which has been a reason for denial for
justice making the complainants look for alternate mechanisms within the
community such as traditional justice mechanisms like village panchayat and
those set up by the civil society such as People’s Tribunal.
People’s tribunal and public hearings

When justice seems elusive through institutional methods, civil society addresses
the issue using different strategies. Advocacy and public hearing are two such
methods adopted often by civil society. A public hearing is a forum where
witnesses, victims and those affected by the socio-economic or political issue
provide testimony to an independent panel, mostly outsiders, who have no political
agenda on the issue. The public hearing or people’s tribunal creates greater
awareness on the issue. These hearings are documented and sent to various
government institutions for their response.
The public hearings or tribunals
create a forum for a specific human rights issue;
influence public discourse on a specific issue;
alert the national and international community to the nature of the problem
faced by the people where a particular right is being denied;
promote the right of the group though greater advocacy efforts.
For instance, in 2007, over 40 organisations including community-based
organisations, researchers, trade unionists, and activists mobilised their networks
to form the Independent People’s Tribunal on the World Bank Group in India
and recorded testimonies of affected communities. Hundreds of students
volunteered their time to make the Tribunal happen and over 700 people attended
the four-day programme. This was the first People’s Tribunal in India that brought
together a broad spectrum of society to look at the damage caused by the World
Bank to the country as a whole. Affected communities and concerned groups
presented testimonies over four days in order share experiences and to inject a
sense of responsibility for people’s rights into the discourse about the Bank.
From the above discussions it is evident that there are several institutions that
are mandated to protect human rights of specific vulnerable groups in the country.
However, sustained and long-term advocacy efforts undertaken by human rights
NGOs and human rights defenders provide an impetus to the protection of human
rights and attempts to bring justice to victims. Also, sometimes institutions that
are mandated to uphold human rights function under severe external pressures.
The effective and efficient functioning of National Human Rights Institutions,

which are bodies that oversee human rights and build accountability in society,
is dependent on a vibrant and responsive civil society.
9.7 SUMMARY
The National Human Rights Commission (NHRC) has the mandate to protect
and promote human rights. There are other commissions that have the
47
Institutional Mechanisms mandate of securing the rights of specific groups, such as, such as women,
children, dalits and religious minorities. All these institutions are quasi-
judicial and share some common features.
The Paris Principles requires that national institutions should be independent

and pluralistic in composition and that these institutions must operate with
the support of NGOs, academic and legal experts, and other interested parties.
Responsibilities of national human rights institutions include the submission

of recommendations and proposals to relevant bodies on legislative
provisions, investigations of human rights violations where applicable,
ensuring the harmonisation of national legislation with international law,
encouraging the ratification of international human rights treaties, assisting
in human rights education, and raising public awareness, etc.
The collective mandate of all these institutions is to improve the human

rights situation in the country and in providing investigations and remedies
in individual cases.
Civil society initiatives like public hearings and tribunals play a very critical
role in protecting human rights.

1) How do the NHRC and the State Human Rights Commissions promote
human rights?
2) How would you file a complaint at a National/State Human Rights
Commission?

1) Human rights are those rights that are guaranteed to a person simply by
virtue of her/his being a human being, which makes them universal. Every
human being possesses the right to enjoy autonomy and the means to ensure
material well-being. All human beings are born free and equal in dignity
and rights, irrespective of caste, religion, political links or wealth. One right
cannot be enjoyed at the cost of the other and so human rights are indivisible.
If there is loss of one right, such as right to nationality, then there is loss of
other rights, such as, right to work or right to adult franchise. Promotion of
human rights in one area supports other human rights, thus making them
inter-dependent. Human rights are inalienable as they can not be surrendered
or taken away.
2) Some common attributes of all the national human rights institutions are:
they are often administrative in nature;
many have quasi-judicial powers to resolve disputes;
they are neither courts nor law-making bodies;
they play an advisory role in respect to human rights at the national and/
or international level;
48
they provide opinions and recommendations; Human Rights Protection
Mechanisms
some of these institutions also conduct investigations to provide
remedies.
Terminal Questions

Commonwealth Human Rights Initiative, Human Rights Commissions: A
Citizen’s Handbook (New Delhi, 2006).
UN Handbook on the Establishment and Strengthening of National Human Rights
Institutions: Professional Training Series No. 4, http://www.ohchr.org/Documents/
Publications/training4en.pdf
The Paris Principles, http://www.un.org/documents/ga/res/48/a48r134.htm
http://nhrc.nic.in/
http://ncw.nic.in/
49
Indira Gandhi
School of Law
Introduction to the
Indian Legal System
Block
4
ACCESS TO JUSTICE
UNIT 10
Legal Aid 5
UNIT 11
Public Interest Litigation 17
UNIT 12
Informal Dispute Resolution Mechanisms 30
UNIT 13
Right to Information 43
Expert Committee
Lawyer, New Delhi
Prof. B.B. Pande
University of Burdwan, West Bengal
Action Aid India
Prof. S. Siva Kumar
Ms. Gurmeet Kaur
Research Professor
Ms. Mansi Sharma

Unit Writers : Unit 10 : Jaishree Suryanarayanan

Unit 11 : Prof. Parmanand Singh
Unit 12 : Dr. Doel Mukherjee
Unit 13 : Rainmaker Training and Recruitment Pvt.Ltd.
Material Production
Mr. Yashpal
IGNOU, New Delhi
November, 2009
ISBN-978-81-266-4290-8
BLOCK 4 ACCESS TO JUSTICE
An important function of law is to ensure substantive equality and social justice.
We have given ourselves a set of constitutional ideals as spelt out in the preamble.
It is the duty of the State to enact laws and policies to ensure that all are able to
realise their rights and live a life with dignity and realise one’s potential and
aspirations. This also ensures the legitimacy of the law in every ones’ eyes and
fosters respect for the law. Otherwise, law becomes irrelevant to people’s lives
except for criminalising their lives, such as destitute persons and urban poor.
Despite legislations prohibiting and penalising social evils like dowry, child labour
and untouchability, enforcement is very weak. We know that the formal justice
system is difficult to access for reasons, such as, long distances involving huge
travel costs, difficulty in engaging a lawyer and time spent in negotiating the
system to get justice. Facilitating access to the legal system is one way of ensuring
social justice and substantive equality. In this block, we will introduce you to
some of the mechanisms and innovative strategies that have been tried out to
facilitate access to justice.
The tenth unit explores the concept and scope of the right to legal aid. Statutory
institutions at different levels have been set up to provide legal aid and services.
Even while this system has been widely critiqued as being too narrow and
ineffective, it is the outcome of the State acknowledging legal aid as a
constitutional mandate. We will introduce you to the judicial innovation of Public
Interest Litigation (PIL) in the eleventh unit. It has been recognised as a strategic
arm of the legal aid movement to make law and the legal system responsive to
the needs of the impoverished.
For the ordinary and poor people it is important to get quick, easy and affordable
justice near their homes. Traditional justice systems fulfil this requirement and it
is important to recognise their role and engage with them. In the twelfth unit, we
will identify some such traditional systems like the caste panchayats and
panchayats of indigenous people and community-based committees and groups
that have been evolved by NGOs. We will explain their features and highlight
certain limitations as traditional institutions may not always be able to deliver
fair and equitable justice according to human rights standards.
The thirteenth and last unit of this course has been designed as a guide to enable
you to use the Right to Information Act, 2005. This legislation is the outcome of
sustained campaign by civil society and has revolutionary potential to ensure a
corruption free system, wherein people can access their legitimate entitlements.
Access to Justice
4
Legal Aid
UNIT 10 LEGAL AID
Structure
10.1 Introduction
10.2 Objectives
10.3 What is the Right to Legal Aid?
10.3.2 Statutory Provisions
10.4 Catalysts: Some Significant Developments
10.4.1 Expert Committees
10.4.2 Judicial Response
10.5 The Legal Services Authority Act, 1987 (LSAA)
10.5.1 Beneficiaries under the LSAA
10.5.2 Authorities under the LSAA
10.6 Lok Adalats
10.7 Factors Impacting on Quality of Legal Aid Services
10.8 Role of Paralegals
10.9 Summary
10.1 INTRODUCTION
All of us are equal before the law and have equal protection of the law. We
realise our legal entitlements through the courts by following a legally ordained
process. Our constitution envisages substantive equality and not just formal
equality. This is evident from the fact that the State can take affirmative action in
respect of certain vulnerable groups. Protective discrimination in the form of
reservation is one such constitutional provision to ensure substantive equality.
We have inherited a very formal system of justice administration from the British.
The courts exclude a vast number from using them on account of complicated
laws and procedure. This is aggravated by ignorance, social and economic
circumstances, delay in getting relief, costs involved and the distance. This is
starker in case of the Supreme Court, which along with the High Court can
interpret the Constitution, is situated in Delhi. Even through the Constitution
provides for setting up of other benches this has not been done. Our first instinct
is to keep away from Courts. However, if rule of law is to be upheld and if we are
not to take the law in our own hands, the wronged do not have any option but to
navigate through the rigid legal system. Legal aid can to some extent alleviate
the consequences of deprivation – social and economic.
In this unit, we will explain the evolution, nature and programmatic content of
the right to legal aid. We will explore the factors responsible for ineffective
delivery of legal aid and services and identify some alternative delivery methods
to strengthen the quality of legal services that is provided under the Legal Services
Authority Act, 1987. 5
Access to Justice
10.2 OBJECTIVES
explain the nature, content and scope of the right to legal aid;
describe the process of development of the right to legal aid;
explain the scheme and the main provisions of the National Legal Services Authority
Act;
explain what the scope of legal aid should be in the criminal justice system to
meet the fair trial standard;
identify the role of paralegals in providing legal aid.
10.3 WHAT IS THE RIGHT TO LEGAL AID?

Shyama has been forced into prostitution and is arrested during a raid.
Sarojini, a widow who lives on the pavement and survives by begging at the
Hanuman temple, Connaught Place, Delhi is arrested by the police and taken to
the beggar’s court.
Bharat is involved in a hit and run case while returning home one night after a
party. Best lawyers are deployed by his resourceful family. He is acquitted on
the ground that evidence is inadequate.
Raju is beaten up by his father and made to beg and is arrested.
Salim, a twelve years old boy, is working in a dhaba.
Raji is beaten every day by her husband.
Can we help victims of impoverishment in any way when they get drawn into
the criminal justice system? Law criminalises the survival strategies of the poor.
The poor mostly interact with the law as a victim or an accused. There are
innumerable instances of the poor languishing in prisons as ‘under trials’ or serving
out their sentence of imprisonment in other custodial institutions like the beggar
homes and protective homes. While we challenge such laws, on the one hand,
we also need to provide immediate succour to people like Shyama and Sarojini
to ensure that their voices too are heard before justice is meted out by a court.
Provision of legal aid is one such mechanism to ensure that all have equal access
to justice. Any legal system needs to be responsive to the prevailing social and
economic context in order to earn credibility, legitimacy and the respect of its
people. Hence, the State needs to provide legal aid to very citizen to ensure the
constitutional goal of social justice. Though the right to legal aid is an
unenforceable directive principle, our judiciary has responded to the needs of
the poor by interpreting the right to equality and the right to life (Articles 14 and
21) to include the right to legal aid.
Effective legal aid can make the difference between liberty and incarceration for
Shyama and Sarojini. The right to legal aid is an essential part of the right to
equal access to justice. What is the scope of this right? How has this right evolved
in our country? We will now take you through some significant developments
which have shaped the content and extent of this right.
6
10.3.1 Constitutional Provisions Legal Aid
Constitutional basis for the right to legal aid:

• Article 21 – Right to life
• Article 39A – State shall secure free legal aid to ensure equal opportunities
for accessing justice
Every accused has the right to be represented by a lawyer of his/her choice under
Article 22 (1) of our Constitution. The right to legal aid at the State’s expense,
however, was introduced as an unenforceable directive principle of state policy
by a constitutional amendment in 1976. This directive principle contained in
Article 39A makes it obligatory for the State to secure equal justice to all and
provide free legal aid by appropriate laws or schemes.
The Supreme Court has, through creative interpretation of the fundamental right
o life guaranteed by Article 21, made the right to legal aid a fundamental right by
reading it into the right to life. In M.H. Hoskot v State of Maharashtra,1 the
Supreme Court read the right to legal aid as forming part of the enforceable
fundamental right to life. We will highlight some leading decisions of the Supreme
Court pertaining to this point in the following section on ‘Judicial Response’.
10.3.2 Statutory Provisions

The Code of Criminal Procedure (CrPC) was re-enacted in 1973 with the objective
of providing a fair trial, a speedy trial and a fair deal to the poorer sections. In the
new Cr.P.C., Section 304 which provides for legal aid to the accused before the
sessions court only fails to fulfil these objectives. The Cr.P.C. does not provide for the
right to legal aid in other criminal proceedings or at any of the other stages of the
criminal process. This is a major lacuna which needs to be remedied for the realisation
of the right to equal access to justice as the poor are the invisible victims of the criminal
justice.
We will discuss the other legislation dealing with delivery of legal aid, the Legal
Services Authority Act, 1987, in the following sections.
1) ‘The fundamental right to legal aid is available at all stages of the criminal
justice administration.’ Is this statement true?
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1
AIR 1978 SC 1548.
7
Access to Justice
10.4 CATALYSTS: SOME SIGNIFICANT
DEVELOPMENTS
10.4.1 Expert Committees
Effective and quality legal aid and services is seen as a necessity for ensuring a
more holistic ideal of access to justice. Various expert committees appointed by
the central and state governments have deliberated upon the scope of the right to
legal aid and its implementation and delivery mechanisms. These expert
committees include the committee appointed by the government of Gujarat in
1971 under the chairmanship of Justice P.N. Bhagwati, the Expert Committee
on Legal Aid appointed in 19732 and the Juridicare Committee appointed in
19773 . The 1977 Juridicare Committee was appointed with a view for establishing
an adequate legal service programme in all the states on a uniform basis. This
culminated in the appointment of the Committee for Implementing Legal Aid
Schemes (CILAS), again by the government of India in 1980.
All these committees recognised the right to legal aid as a fundamental right
which has to be guaranteed by the State to ensure equal access to justice. All the
expert committees agreed that the scope of legal aid needs to be broadened to
include legal advice and preventive strategies, apart from legal representation.
They brought out the linkages between legal aid and problems of poverty in our
socio-economic context. Preventive and strategic legal aid is necessary to ensure
social justice. Legal aid should also include law and institutional reform. Issues
of law and poverty need to be addressed.
There was an emphasis on alternate dispute redressal mechanisms. Conciliated

settlements ought to be encouraged through legal aid.
Legal aid should be made available at all stages in the criminal justice system as
required by the fair trial standard – on arrest, during investigation, at trial and
post trial. Regular arrangement should be made for legal aid and advice to inmates
of prisons and other custodial institutions.
On the delivery mechanism, the committees stressed on the need for a ‘public
sector’ in the legal profession to fill the gap in services to all created by a highly
privatised bar. This was to be done by encouraging lawyers’ cooperatives. Law
students were to be involved for paralegal work. Legal aid institutions should be
independent of executive control. They should be located within communities.
10.4.2 Judicial Response

The seventies and eighties in the post emergency era saw the Supreme Court,
especially, Justices P.N. Bhagawati and Krishna Iyer, who had been part of the
expert committees on legal aid, open an avenue for any public spirited person to
approach the court seeking enforcement of fundamental rights of people who
2
This committee was appointed by the Ministry of Law and Justice, Government of India
under the chairmanship of Justice V.R. Krishna Iyer and submitted the report, Processual
Justice to the People.
3
This committee was appointed by the Government of India and consisted of Justices
P.N.Bhagwati and V.R.Krishna Iyer and submitted the Report on National Juridicare: Equal
Justice – Social Justice.
8
due to socio-economic reasons or loss of liberty can not come before the court. This Legal Aid
was made possible by relaxation of the formal rule of locus standi to enable socially
conscious citizens to initiate social action litigation on behalf of groups of people like
under trials, mentally ill, bonded labourers to seek redressal for violation of their
fundamental rights. This came to be known as public interest litigation (PIL). 4
The poor till then were invisible victims of the criminal justice administration. In Moti
Ram v State of Uttar Pradesh,5 the accused had obtained an order for being granted
bail, but the magistrate had directed him to produce a surety for a sum of Rs. 10,000/
- before he could be released on bail, which the accused could not furnish because of
his poverty. Allowing the petition, the Supreme Court explained the unequal operation
of the law in respect of bail and observed that the pre-requisite of the surety amounted
to a denial of the right of the accused to be released on bail and held that bail covers
release on one’s own bond without surety as well.
Similarly, in Hussainara Khatoon v State of Bihar,6 the Supreme Court found that
thousands of undertrial prisoners charged of bailable offences were in prison because
they were not aware of their right to be released on bail, and because of poverty could
not engage a lawyer. Justice Bhagwati observed that bail provision as provided in our
criminal justice administration is anti-poor and denies justice to the poor by keeping
them in pre-trial detention for many years and therefore away from their homes.
Highlighting the importance of PIL, the supreme Court observed in the Asiad workers
case,7
“….Public Interest Litigation is a strategic arm of the legal aid movement and it intended
to bring justice within the reach of the poor masses….”
Through a series of judgements, the Supreme Court promoted legal aid as part of the
larger agenda of access to justice.
2) Briefly explain the scope of the right to legal aid as recommended by the
various expert committees.
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10.5 THE LEGAL SERVICES AUTHORITY ACT, 1987

(LSAA)
4
Please refer to Unit 11 of this block which deals exclusively with the growth and impact of
public interest litigation (PIL).
5
AIR 1978 SC 1594.
6
(1980) 1 SCC 98.
7
Peoples’ Union for Democratic Rights v Union of India AIR 1982 SC 1473.
9
Access to Justice The Legal Services Authority Act, 1987 was enacted to constitute legal services
authorities to provide free legal services to the weaker sections and to organise
lok adalats. Apart from the prescribed income criteria, the LSAA gives a list of
persons entitled to legal aid. It provides for a hierarchy of legal services authorities
at different levels.
Section 2(1)(c) of the Legal Services Authorities Act, 1987 defines ‘legal services’
as including the rendering of any service in the conduct of any case or other legal
proceeding before any court or other authority or tribunal and the giving of advice
on any legal matter.
Though the functions prescribed for the various authorities under LSAA are
quite comprehensive and in keeping with the recommendations of the expert
committees8 , organising lok adalats remains the main activity of the authorities.
10.5.1 Beneficiaries under the LSAA

The Act lists out categories of persons who are entitled to legal services
irrespective of their income, namely:
a member of a Scheduled Caste or Scheduled Tribe;
a victim of trafficking in human beings or a beggar;
a woman or a child;
a person with disability
a person under circumstances of undeserved want such as being a victim of
a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake
or industrial dispute; or
an industrial workman; or
a person in custody, including custody in a protective home, or in a juvenile
home, or in a psychiatric hospital or psychiatric nursing home; or
Apart from the above categories, any person who satisfies the prescribed income
criteria will also be entitled to legal services under the Act.9
10.5.2 Authorities under the LSAA

The National Legal Services Authority Act was enacted in 1987 and enforced
from 1996. This Act provides for a hierarchical structure for the delivery of legal
services. Legal services authorities at national, state, district and taluk levels
have been constituted under the Act. The Supreme Court and High Courts have
their own legal aid committees.
The National Legal Services Authority constituted by the Central Government
under Section 3 consists of:
The Chief Justice of India who shall be the Patron-in-Chief;
A serving or retired judge of the Supreme Court, nominated by the President,
in consultation with the Chief Justice of India, who shall be the Executive
Chairman; and
Such other members, in possession of such experience and qualifications as
may be prescribed and nominated by the Central Government.
8
Section 4, LSAA
9
Section 12, LSAA
10
This Central Authority constitutes under Section 3-A, the Supreme Court Legal Legal Aid
Services Committee, the Chairman of which is a sitting judge of the Supreme
Court. The State Authorities are headed by a sitting High Court judge and the
Chief Justice of the High Court is the Patron-in-Chief.
Legal Services Authority
National Legal National Legal Supreme Court Legal

AID Fund Services Authority Services Committee
State Legal State Legal Services High Court Legal

AID Fund Authority Services Committee
State Legal AID District Legal

Fund Services Authority
Figure 10.1: Authorities under the Legal Services Authority Act

Taluka Legal Services Authority
10.6 LOK ADALATS

The primary aim of legal reforms is reduction of backlog of cases and delay. The
search for alternative mechanisms for dispute resolution led to the establishment
of lok adalats as a mechanism for promoting conciliation and binding resolution
of disputes. Though they were in existence before the enactment of LSAA, they
now acquired a statutory status.
Lok adalats remain the major area of activity of the LSAA. Section 2(1) (d) of
the LSAA defines ‘lok adalat’ to mean a lok adalat organised under Chapter VI
of the Act. Lok adalats are organised by legal services authorities at the state,
district and taluka levels in each state.
A case that is pending in a court can be referred to a lok adalat by any one of the
parties to the litigation. There is no court fee and any fee paid in the court is
refunded provided the dispute is settled in the lok adalat. Cases in a lok adalat
are settled through conciliation and compromise. In case of failure of the parties
to arrive at a settlement, the case reverts back to the court from where it is referred.
A lok adalat is presided over by a sitting or retired judge and usually has a
lawyer and a social worker as its members. Lok adalats are generally held within
the court premises. The decision of a lok adalat is binding on the parties and the
order can be executed like any decree passed by a court. There is no right of appeal
against the decision of a lok adalat. A lok adalat has jurisdiction to try all matters
11
Access to Justice except those relating to non-compoundable offences.
The Act provides for establishment of permanent lok adalats in bodies providing
public utility services like telephone, insurance, transport, electricity and water.
Apart from conducting conciliation proceedings, permanent lok adalats can also
decide a dispute on merits. In doing so, they are not bound by the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872; instead, they are to be guided
by “the principles of natural justice, objectivity, equity and other principles of
justice”.10
A Critique
The term ‘lok adalat’ is misleading as there is no peoples’ involvement in the
process of decision making, unlike the traditional/informal modes of disputes
resolution.11 Critiques of lok adalats point out that the functioning of lok adalats
do not necessarily result in ‘justice’ for the parties concerned as the emphasis is
more on reduction in the number of cases before a court. Hence, the approach
taken by lok adalats often involves pressuring the parties to compromise. The
litigants too succumb as the alternative will entail many years of waiting for
justice to be delivered by a court. For example, from the litigant’s perspective,
getting a compensation of Rs. 20,000/- is preferable to waiting for a further 6
years to get the due compensation of a much higher amount.
The finality of awards made by permanent lok adalats is criticised on the ground
that these forums set up ostensibly for pre-litigation conciliation and settlement
can also decide matters on merit if the parties fail to arrive at a settlement.12
10.7 FACTORS IMPACTING ON QUALITY OF

LEGAL AID SERVICES
We will begin this section with a brief narrative of what happens in the lives of
the most vulnerable sections of people like the homeless.
A typical day in the beggar’s court at Delhi13

A lawyer from a panel of lawyers along with some law students from Law
Faculty, Delhi University was present when the raiding team comprising
officials of Social Welfare Department arrived in the Reception cum
Classification Centre with a group of men arrested from different parts of the
city on the charge of begging. This motley group represents the most vulnerable
population who barely manage to survive in the city. It includes a drug addict
who is released there and then as the officials do not want to take on the hassle
of dealing with an addict!
After ‘jamatalashi’ (search of the person), a remand sheet for the 22 accused
persons was presented to the Magistrate by an official of the Social Welfare
department and remand obtained for 14 days. The legal aid lawyer was allowed
access to the arrested persons only after remand was obtained. During the
remand period, a Social Investigation Report (SIR) is prepared by the Probation
10
Section 22 D, LSAA, inserted through an amendment in 2002.
11
Please refer to Unit 12 of this block for a detailed discussion on informal dispute redressal
mechanisms.
12
Section 22E, LSAA.
13
A legal aid scheme was set up in the beggar's court, Delhi by two organisations – Aashray
Adhikar Abhiyan and Human Rights Law Network under the aegis of Delhi Legal Services
12 Authority. The writer was a part of this initiative and this narration is based on her experience.
Officer, which forms the basis of the proceeding before the Magistrate. Initially, Legal Aid
there was a lot of reluctance on the part of the Department and Court to give a
copy of the SIR to the Legal Aid lawyer. However, the lawyers managed to
gain access to the SIR on the ground that the accused has a right to know the
grounds on which the Magistrate will proceed.
It emerged from the SIRs that the persons arrested on that particular day include:
- a wandering Sadhu on his way to Vaishnodevi
- a palmist
- a rickshaw puller
- a person suffering from tuberculosis
- a casual worker whose work changes with the need of the city. For example,
he was waiting for prasad outside a temple (which would be his main
meal for the day) after having worked the whole night as a band player at
a wedding
- a person belonging to a de-notified tribe whose caste dictates that he should
seek alms on every Saturday, in keeping with the religious belief of most
Hindus, that by giving alms on Saturdays, one can ward off evil spirits
- a disabled person who lives on the pavement and who survives by begging
outside a temple.
If for some reason the SIR is not ready during the 14 day remand period, the
remand was mechanically extended by the Court for another 14 days despite
objection by the Legal Aid lawyer. On the date of the hearing, the proceedings
went like this (in Hindi):
Magistrate taking the case of the rickshaw puller:
Where have you come from?
Accused: Bihar
Legal Aid lawyer: Your Honour, he is a rickshaw puller and does not beg.
Magistrate: OK, I will release you (after admonition). But go back to where
you have come from. If you are caught again, I will put you away for two
years.
The Legal Aid lawyer was able to get most of the accused released on
admonition. The person with disability was sentenced to two years’
imprisonment, against which an appeal was to be filed.
The person belonging to the de-notified tribe is represented by a private lawyer,
as his family is confident of securing his release on bail by bribing the court
officials, which the Legal Aid lawyer will not do.
Now the questions that the above narration raises give us an idea about the factors
that impact on the effective delivery of legal aid and the limitations of providing
legal aid without law and institutional reforms. Some questions that will come
to your mind are:
1) Need to look for more than one delivery mechanism to suit all situations
2) Need for legal aid to address itself to law and institutional reforms
3) Peoples’ perception of legal aid
– Legal Aid lawyer will not bribe
– Free service may not be good enough
13
Access to Justice 4) Legal needs cannot be divorced from socio-economic context and basic
entitlements
5) Role of paralegals.
What is the role of legal aid in our context? How Can We Identify Legal Needs?
We are a society with divisions based on caste, economic capacity, opportunity,
religion, gender and age. The impoverished and disempowered inhabit a universe
very different from those who have the economic and social capacity to be able
to aspire and the opportunity to realize their aspirations. The role of law and
legal processes in impoverishing people needs no elaboration. Impoverishment
can be attributed to processes of evicting people from ‘public’ land, displacement
caused by dams and SEZ, eviction of hawkers… Law with its rigid requirement
of legality makes sure that the survival methods of the poor remains in the realm
of illegality.
Let us go back to our narration. What are the legal needs of the persons depicted
in the examples? An effective legal aid programme needs to address the legal
needs. Legal aid needs to go beyond legal representation, which was the traditional
role of legal aid. The programmatic content of legal aid as it has developed does
envisage a greater role for legal aid in the larger agenda of access to justice.
10.8 ROLE OF PARALEGALS

A paralegal is a person who has functional knowledge of different laws and the
legal system and is trained in skills necessary to assist in the delivery of legal
services for securing rights and/or seeking redressal for violations and offers
preventive legal aid involving advice, counselling and mediation. A legal aid
lawyer’s role is normally confined to legal representation; whereas a paralegal’s
role will include the rendering of any legal service in the conduct of a case, at all
stages, except legal representation
A social justice paralegal will facilitate access to the legal system to secure rights
– civil, political, social, economic and cultural – of socially and economically
underprivileged individuals; act as a bridge between the community and lawyers
for this purpose. Some of the areas where paralegals can work are:
• Criminal justice system
• Women’s rights
• Child rights
• Panchayats
Role of paralegals
Nature of work
• Act as a bridge between the affected individual/s and the lawyer
• Demystify the law and the legal procedures to ensure legal remedies
available under different laws can be accessed
• Spread awareness about rights and remedies
• Public advocacy for reforms
Skills required
14
• Functional knowledge of laws and legal system Legal Aid
• Basic legal research and writing

• Respect for constitutional values
• Communication skills and ability to gain the trust of the affected individual/s
• Basic counselling skills
• Ability to engage with officials
Potential employers
• Civil society groups
• Peoples’ movements
• Human rights commissions – national and state
• Other commissions – women’s, SC and ST, children’s
• Legal Services authorities – national and state
10.9 SUMMARY
The right to legal aid at the State’s expense, however, was introduced as an
unenforceable directive principle of state policy by a constitutional
amendment in 1976. This directive principle contained in Article 39A makes
it obligatory for the State to secure equal justice to all and provide free legal
aid by appropriate laws or schemes. The Supreme Court has, through creative
interpretation of the fundamental right o life guaranteed by Article 21, made
the right to legal aid a fundamental right by reading it into the right to life.
The scope and delivery mechanism of legal aid has been evolved by several
expert committees. All the expert committees recognised the right to legal
aid as a fundamental right which has to be guaranteed by the State to ensure
equal access to justice. They all were unanimous in their view that the scope
of legal aid needs to be broadened to include legal advice and preventive
strategies, apart from legal representation. They brought out the linkages
between legal aid and problems of poverty in our socio-economic context.
Preventive and strategic legal aid is necessary to ensure social justice. Legal
aid should also include law and institutional reform. Issues of law and poverty
need to be addressed.
Through some significant judicial decisions, Public Interest Litigation
emerged as a strategic arm of the legal aid movement.
The Legal Services Authority Act, 1987 was enacted to constitute legal
services authorities to provide free legal services to the weaker sections and
to organise lok adalats. Apart from the prescribed income criteria, the LSAA
gives a list of persons entitled to legal aid. It provides for a hierarchy of
legal services authorities at different levels.
Though the functions prescribed for the various authorities under LSAA are
quite comprehensive and in keeping with the recommendations of the expert
committees, organising lok adalats remains the main activity of the
authorities. Lok adalats have been critiqued on the ground that their main
preoccupation is reduction of cases before courts and not delivery of justice.
Several issues impact on the effective delivery of legal aid, such as, need to look
for more than one delivery mechanism to suit all situations, need to address law
15
Access to Justice and institutional reforms, peoples’ perception of legal aid and the fact that legal
needs cannot be divorced from socio-economic context and basic entitlements.

1) Shekhar comes to you complaining of an offence under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act. Please advise him as
to his remedies and how to seek them.

1) False. This lacuna needs to be remedied for legal aid to make a difference in
how the poor are treated in the criminal justice administration.
2) The main expert committees appointed to examine the matter of providing
legal aid and advice recognised the right to legal aid as a fundamental right
which has to be guaranteed by the State to ensure equal access to justice.
They were unanimous in their view that the scope of legal aid needs to be
broadened to include legal advice and preventive strategies, apart from legal
representation. They brought out the linkages between legal aid and problems
of poverty in our socio-economic context. Preventive and strategic legal aid
is necessary to ensure social justice. Legal aid should also include law and
institutional reform. Issues of law and poverty need to be addressed.
Terminal Questions
1) Refer to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act and the Legal Services Authorities Act.

Justice S. Muralidhar, Law, Poverty and Legal Aid: Access to Criminal Justice
(New Delhi: LexisNexis Butterworths, 2004).
Justice S. Muralidhar, ‘Access to Criminal Justice: Challenges and Prospects’,
in Kamala Sankaran and Ujjwal Kumar Singh eds., Towards Legal Literacy: an
Introduction to Law in India 45 (New Delhi: Oxford University Press, 2008).
Upendra Baxi, ‘Why Legal Literacy? A Wake-up Call’, in Kamala Sankaran and
Ujjwal Kumar Singh eds., Towards Legal Literacy: an Introduction to Law in
India 1 (New Delhi: Oxford University Press, 2008).
N.R. Madhava Menon, ‘Legal Aid and Justice for the Poor’, in Upendra Baxi
ed., Law and Poverty: Critical Essays 341 (Bombay: N. M. Tripathi Private
Ltd., 1988).
P.C. Rao and William Sheffield eds., Alternate Dispute Redressal: What it is and
How it Works (New Delhi: Universal, 1997).
Marc Galanter and Jayanth Krishnan, ‘Debased Informalism: Lok Adalats and
Legal Rights in Modern Indian’, in Erik G. Jensen & Thomas C. Heller, eds.,
Beyond Common Knowledge: Empirical Approaches to the Rule of Law 76
(Stanford, CA: Stanford University Press: 2003).
16
Public Interest Litigation
UNIT 11 PUBLIC INTEREST LITIGATION
Structure
11.1 Introduction
11.2 Objectives
11.3 Evolution of Public Interest Litigation (PIL)
11.4 Features of PIL
11.5 PIL Movement and Rights of the Poor and the Oppressed
11.5.1 Right against Custodial Torture
11.5.2 Right against Sexual Harassment
11.5.3 Right against Bondage
11.5.4 Rights of the Child
11.5.5 Right to Food and Satisfaction of Basic Human Needs
11.6 PIL and Governance
11.7 Promises and Perils of PIL
11.8 Summary
11.1 INTRODUCTION
Any person whose fundamental rights have been infringed upon can move the
Supreme Court under Article 32 of the Constitution for enforcing them. S/he can
also approach the High Court under Article 226 of the Constitution. The traditional
rule is that only the person whose fundamental right has been violated can
approach the court. The Supreme Court has now relaxed this traditional rule of
locus standi and has allowed any public-spirited citizen or social action
organisation to approach the Supreme Court or High Court on behalf of the
victims of governmental lawlessness for the enforcement of their rights.
The court has opened its door for the poor and the disadvantaged people. It was
due to this opening of the door by permitting Public Interest Litigation (also
called Social Action Litigation) that the Asiad workers realised their dues, bonded
labourers secured their freedom, children and women got special consideration
and protection, pavement dwellers secured shelter, hawkers got the right to carry
on their trade, and prisoners in jail got the right to be treated as human beings.
The Supreme Court has opened a Public Interest Litigation Cell to which all
letters addressed to the court are forwarded, which are placed before the Chief
Justice after scrutiny by the staff attached to the cell.
11.2 OBJECTIVES
After completing this unit, you should be able to:
explain the technique of public interest litigation as evolved by the Supreme
Court;
17
Access to Justice identify some areas where public interest litigation has been used successfully
to create access to justice to the impoverished and disadvantaged sections
of our people; and
identify the issues that hamper the efficacy of public interest litigations.
11.3 EVOLUTION OF PUBLIC INTEREST

LITIGATION (PIL)
Public interest litigation (we will refer to it as PIL) is a unique phenomenon in
the Indian constitutional jurisprudence without any parallel in the world. This
technique is concerned with the protection of the interests of a class or group of
persons who are either the victims of governmental lawlessness and/or social
oppression or denied their constitutional or legal rights, and who are not in a
position to approach the court for the redress of their grievances due to lack of
resources, or ignorance, or their disadvantaged social and economic position. In
the area of human rights, judicial PIL was evolved in the post emergency period
as a result of what has been called ‘judicial populism’. The Indian Supreme
Court began to identify itself as an institution of last resort when the other two
branches of the government were facing a crisis of credibility. With the change
in the political situation after the 1975-77 emergency, the judges began to realise
that by strict adherence to the Anglo-Saxon model of adversarial litigation the
human rights of the masses who had no access to justice could not be realised.
Under the traditional system of adversarial litigation, only the person ‘aggrieved’
could approach the court for the redress of grievances. Thus, people who because
of ignorance, poverty, lack of resources, or economic disability could not on
their own approach the court had to suffer violations of their human rights. No
one could speak on their behalf. The result was that the legal procedure became
a hindrance for the vindication of the legitimate rights of the poor, the
disadvantaged and the exploited. Realising this deficiency in our legal procedure,
some judges, particularly Justices V.R. Krishna Iyer and P.N. Bhagwati openly
started to disregard the impediments of Anglo-Saxon procedure to provide access
to justice to the poor and disadvantaged sections of the society by relaxing the
rule of locus standi.
11.4 FEATURES OF PIL

In S.P. Gupta v Union of India,1 Justice P.N. Bhagwati articulated the concept of
PIL as follows:
“Where a legal wrong or a legal injury is caused to a person or to a determinate
class of persons by reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or legal provision or
without authority of law or any such legal wrong or legal injury or illegal burden
is threatened and such person or determinate class of person by reason of poverty,
helplessness or disability or socially or economically disadvantaged position
unable to approach the court for relief, any member of public can maintain an
application for appropriate direction, order or writ in the High Court under Article
226 and in case of any breach of fundamental rights of such persons or determinate
class of persons, in this court under Article 32 seeking judicial redress for the
legal wrong or legal injury caused to such person or determinate class of persons.”
1
AIR 1982 SC 149
18
The main features of PIL are as follows: Public Interest Litigation
The new procedure evolved by the Indian Supreme Court allows any member
of public acting in a bonafide manner to put forward the cause of the victims
of human rights violations. One can invoke the court’s jurisdiction just by
writing a letter or sending a telegram. This is known as ‘epistolary
jurisdiction’.
Only a person acting in a bonafide manner and having sufficient interest in

the proceedings of PIL has a locus standi and can approach the court to
wipe out the tears of the poor and the needy suffering from violation of their
fundamental rights, but not a person for personal gain, private profit, political
motive or any oblique consideration.
PIL proceedings entail new forms of fact finding, such as appointment of

socio-legal commissions of inquiry and handing over the investigation to
the National Human Rights Commission or CBI. The Court has taken the
help of journalists, lawyers, district judges, bureaucrats, and expert bodies
to ascertain the facts alleged in PIL proceedings. This is called ‘investigative
litigation’.
In dealing with these cases, the courts have fashioned new kinds of relief for
the victims of State lawlessness. For instance, the court can award interim
compensation to the victims of governmental lawlessness. This stands in
sharp contrast to the Anglo-Saxon mode of adjudication where interim relief
is limited to preserving status quo pending final decision. The grant of interim
relief in PIL cases does not preclude the aggrieved person from claiming
damages from a civil court.
In a PIL the grievance is mainly about the violation of constitutional or legal

rights by governmental action or non-action. A PIL can be filed only before
the Supreme Court under Article 32 and before a High Court under Article
226. It cannot be filed before lower courts.
11.5 PIL MOVEMENT AND RIGHTS OF THE

POOR AND THE OPPRESSED
Ideologically, PIL activism addresses and confronts the dominant formations in
civil society and activates public discourse on practices of power with the
partnership of the media, legal academics, the bar and the judges. PIL has become
a byword for judicial involvement for the protection of human rights in India. It
is in essence a movement to involve the judicial process for the creation of norms
of a just social order based upon the principles of justice and humanism. In this
movement people participate in the activation of the judicial power to create a
regime of human rights with the active support of social activists. The judges are
asked not only to vindicate governmental commitments to human rights of the
poor and the disadvantaged, but also to enforce public duties to protect and
maintain collective and diffuse social rights and to prevent the decline in political
morality.
Hussainara Khatoon v State of Bihar2 was the first reported case of PIL seeking
relief for the undertrial prisoners languishing in jails. The PIL proceedings in
2
AIR 1979 SC 1360 19
Access to Justice this case resulted in the release of nearly 40,000 undertrial prisoners languishing
in Bihar jails. Anil Yadav v State of Bihar3 depicted police brutalities. About 33
suspected criminals were blinded by the police in a jail in Bhagalpur in Bihar by
putting acid into their eyes and then burning the eyes. The Supreme Court quashed
the trials of the blinded persons, condemned the police barbarity in the strongest
terms and directed the Bihar government to bring the blinded persons to Delhi
for medical treatment at the State’s expense.
1) List two main features of PIL
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11.5.1 Right against Custodial Torture

PIL activism has brought to the notice of the Supreme Court incidents of human
rights violations by custodial institutions such as prisons, mental asylums and
women’s homes. Incidents of police brutalities and encounter killings have also
attracted remedial attention.
In 1981, two professors of law drew the attention of the Supreme Court to the
barbaric conditions of the inmates of Agra Protective Home for women.4 The
letter petition, after some initial difficulties, succeeded in securing humane
conditions for the inmates.
The horrific conditions of institutions for the mentally ill in Ranchi and Delhi
were chronicled by R.C. Narain v State of Bihar5 and B.R. Kapoor v Union of
India.6 In response, the administration of these institutions was taken out of the
hands of the local administration and broad guidelines were issued for better
management of these mental asylums.
Police authorities strongly feel that handcuffing of the accused persons and
suspects and parading them on the roads on the way to the court or jail will
minimize crimes. But such treatment given to the accused is unfair and
impermissible. In several cases the Supreme Court has held that the use of third
degree method during the investigation of a crime is a violation of a person’s
fundamental right to life and personal liberty. Handcuffing of an accused is
permitted only when there is a clear and present danger of escape and breaking
out of police control. The adoption of ‘third degree methods’, solitary confinement
and putting cross-bar fetters has been condemned by the Supreme Court.7
3
(1981) 1 SCC 622.
4
Upendra Baxi v State of Uttar Pradesh 1981 (3) SCALE 1136.
5
1988(2) SCALE 965.
6
1989(1) SCALE 278.
7
Prem Shankar v Delhi Administration AIR 1980 SC 1535.
20
In D.K. Basu v State of West Bengal,8 the Supreme Court acted upon a letter Public Interest Litigation
petition by the chairman of the Legal Aid Services, West Bengal, which referred
to the increasing incidents of custodial deaths in West Bengal. The Court issued
extensive directions to be followed by the police upon the arrest of a person and
the minimum facilities to be made available to such person. The Court observed:
“Police is no doubt, under a legal duty and has a legitimate right to arrest a
criminal and to interrogate him during the investigation of an offence but the
law does not permit use of third degree methods or torture of the accused in
custody during interrogation and investigation with a view to solve the crime.”
The Court ruled that a relative of the arrested person must be promptly notified
and that the police stations must prominently display the basic rights available to
a detainee. The non-compliance of the directions would amount to contempt of
court.
The compensation jurisprudence was most clearly articulated by the Supreme

Court in 1993 in Nilabati Behera v State of Orissa9 in response to a PIL alleging
the death of a boy of 22 years of age in police custody. The Court evolved the
principle of public law doctrine of compensation for violation of human rights.
According to this doctrine, liability of the State for violation of human rights is
absolute and admits of no exception such as sovereign immunity. In this case the
court awarded Rs.1,50,000/- to the mother of the boy as compensation for
custodial death.
11.5.2 Right against Sexual Harassment

Women’s issues have increasingly been brought before the Supreme Court with
the growth of the women’s movement and investigative journalism exposing
cases of dowry, rape, sexual harassment and discrimination. It is widely perceived
that investigation into crimes against women have been unsatisfactory and in
some cases even the judges have shown a gender bias.
In Delhi Domestic Working Women’s Forum v Union of India,10 the PIL arose
out of sexual assault of six domestic servants travelling in a train from Ranchi to
Delhi by some army personnel. The Supreme Court laid down broad guidelines
to assist rape victims. These guidelines include legal assistance, anonymity,
compensation and rehabilitation of rape victims. The National Commission for
Women was directed to evolve a scheme for providing adequate safeguards to
rape victims.
In Vishaka v State of Rajasthan,11 the Supreme Court declared that sexual

harassment of women at the workplace constitutes violation of gender equality
and right to dignity which are fundamental rights. Taking note of the fact that the
existing civil and penal laws in India did not provide adequate safeguards against
sexual harassment at the work place, the court laid down 12 guidelines to be
followed by every employer to ensure prevention of sexual harassment. Most
important, the court ruled that all courts in India must construe the contents of
8
AIR 1997 SC 610.
9
AIR 1993 SC 1960.
10
(1995) 1 SCC 14.
11
AIR 1997 SC 3011.
21
Access to Justice fundamental rights in the light of international conventions so long as such
conventions were not inconsistent with fundamental rights.
11.5.3 Right against Bondage

In India the bonded labour system continues to be the most pernicious form of
human bondage. Under such a system, a worker continues to serve his master in
consideration of a debt obtained by him or his ancestors. Bondage can be inter-
generational or child bondage or loyalty bondage or bondage through land
allotment. Most of these labourers come from the lowest strata of society such as
the untouchables, adivasis or agricultural labourers. It occurred to the Indian
government only in 1976 to pass a central legislation, Bonded Labour System
(Abolition) Act, 1976. After the Act came into force, the bonded labour system
was abolished, at least on paper and the practice of bonded labour has been
made punishable.
Most of the PIL proceedings on bonded labour sought to implement the Act. The
first major PIL on this issue was Bandhua Mukti Morcha v Union of India,12
filed in 1981 and decided on December 16, 1983. The action was brought for the
identification, release and rehabilitation of hundreds of bonded labourers working
in the stone quarries of Haryana. The court issued 21 directions to the Haryana
government. During the proceedings, the court monitored its own directions and
appointed a number of commissions of inquiry. Unfortunately, most of the
directions remained unimplemented for many years. The court acknowledged
its limited capacity in monitoring the schemes of rehabilitation. In 1992 the court
recounted the history of the case and was shocked to note that there was not the
slightest improvement in the conditions of the workers of the stone quarries. The
litigation ended with one more warning to the government to be responsive to
judicial directions. Despite the initial failure of Bandhua Mukti Morcha case in
terms of effectiveness, PILs were brought before the courts for the liberation of
bonded labour in Madhya Pradesh, 13 Tamil Nadu14 and other states.
11.5.4 Rights of the Child

Public interest actions on children have sought the implementation of
constitutional and statutory obligations towards children. Early PIL cases focused
on the children in prisons. In 1981, the Supreme Court’s attention was drawn to
a news report about sexual exploitation of children by hardened criminals in
Kanpur jail.15 The court directed the District Judge, Kanpur to visit the jail and
report. The report confirmed the crime of sodomy committed against the children.
The court directed the release of the children from jail and their transfer to a
children’s home. No punishment was, however, given to the administrators of
the jail. Another PIL exposed the inhuman conditions of children in Tihar Jail,
Delhi. 16
A major PIL on juveniles in jails was filed by a journalist, Sheela Barse in 1985. 17
She asked for the release of children below the age of sixteen and for information
12
AIR 1984 SC 802.
13
Mukesh Advani v State of Madhya Pradesh, AIR 1985 SC 1363.
14
H.P. Sivaswamy v State of Tamil Nadu 1983 (2) SCALE 45.
15
Munna v State of Uttar Pradesh (1982) 1 SCC 545.
16
Sanjay Suri v Delhi Administration 1987 (2) SCALE 276.
17
22 (1986) 3 SCC 632. Also see SCLAC v Union of India (1989) 2 SCC 325.
on the number of such children. The court was also asked to ensure that adequate Public Interest Litigation
facilities were provided to the children in the form of juvenile courts, homes and
schools, and that district judges should be directed to visit jails and so on. There
were many orders from 1985 onwards which remained unimplemented for a
long time. In the meantime, Parliament passed the Juvenile Justice Act, 1986.
The court’s attention was now diverted to the implementation of the Act. In its
final order in 1989 the Supreme Court stressed the need to create juvenile courts,
homes and schools. A committee of advocates was appointed to prepare a draft
scheme for the proper implementation of the Act. The PIL in this case was
ultimately effective, as today the country has no juvenile delinquents in jails.
Let us now briefly address the problem of child labour. PIL on child labour
began in the early 1980s in response to a large number of news reports exposing
the exploitation of children in fireworks and match factories of Sivakasi in Tamil
Nadu and in carpet industries in Mirzapur, Uttar Pradesh. Investigative journalism
coupled with these cases led to the passing of the Child Labour (Prohibition and
Regulation) Act, 1986. This Act prohibits the employment of children in hazardous
industries.
In response to a PIL, the Supreme Court appointed a commission of inquiry to

look into the employment of child labour in carpet industries in Uttar Pradesh.
The report indicated a high incidence of child labour. With the help of the local
administration, these children were released.18
In 1986, a major PIL was brought before the Supreme Court complaining that
thousands of children were employed in match factories in Sivakasi, Tamil
Nadu.19 These children were exposed to fatal accidents occurring frequently in
the manufacturing process of matches and fireworks. The court directed the state
government to enforce the Factories Act and to provide facilities for recreation,
medical care and basic diet to the children during working hours and facilities
for education. The court also advocated a scheme of compulsory insurance for
both adults and children employed in hazardous industries. Every employee has
to be insured for a sum of Rs.50,000/-. A committee was appointed to monitor
the judicial directions. In its final judgment delivered in 1996, the Supreme Court
directed that the offending employer of child labour in match factories will pay
Rs. 20,000 which would then be deposited in a Child Labour Rehabilitation-
Cum-Welfare Fund. The children illegally employed would receive education at
the cost of the employer.
In one case, a PIL was filed by a social action organization for a direction for the
effective implementation of the law banning sex selection and sex determination.20
The court expressed its deep concern over the non-action of the executive in
preventing pre-natal sex determination leading to female foeticide. The court
observed that discrimination against the girl child still prevails, perhaps because
of the prevailing uncontrolled dowry system, despite the Dowry Prohibition Act.
The court attributed this to the lack of any change in the mindset, insufficient
education and the tradition of women being confined to household activities.
Sex selection and sex determination further aggravates this adversity. The court
18
Bandhua Mukti Morcha v Union of India 1986 (Supp) SCC 553.
19
M.C. Mehta v State of Tamil Nadu AIR 1991 SC 417.
20
AIR 2003 SC 3309.
23
Access to Justice referred to all its earlier directions to the central and state governments and found
it very unfortunate that they had not been implemented.
Judicial intervention to end female foeticide has not made much impact. For
instance, a study conducted by a research group has indicated that the Pre-natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act.1994 has not
been used as stringently as it should have been to book the guilty. The report
says that the practice of female foeticide is on the increase in the ravines of
Mornea and Bhind in Madhya Pradesh where hundreds of unborn baby girls are
being killed secretly and in silence and the offences go largely unreported. The
ultrasound clinics providing a safe haven for illegal foetal sex determination are
proliferating with widespread social acceptance of eliminating the girl child.
Not one case of female foeticide has been reported in the State so far.
11.5.5 Right to Food and Satisfaction of Basic Human Needs

The Supreme Court has recognised various social rights, such as, right to means
of livelihood, right to adequate healthcare, right to housing and right to education
as aspects of ‘Right to Life’ guaranteed by Article 21 of our Constitution.
A food petition21 filed before the Supreme Court in 2001 arising out of starvation
deaths in certain parts of the State of Orissa has given rise to a claim that right to
food should be declared a fundamental right. The National Human Rights
Commission of India (NHRC) has also been dealing with the reports of starvation
deaths since 1996. The Supreme Court has issued certain directions to the state
government from time to time to take preventive and curative measures to avoid
starvation deaths and provide for adequate food supply to the needy people. In
the Food Petition, the petitioners sought a direction for the enforcement of the
Famine Code and immediate release of food grains lying in the stocks of the
government of India. Directions were also sought requiring the government to
frame fresh schemes of public distribution for the scientific distribution of food
grains. The court expressed its deep concern that despite the fact that plenty of
surplus food grains were lying in the stocks of the union of India or in drought-
affected areas, people were dying of starvation. The court recalled that between
2001 and 2003 it had passed various directions to see that food was provided to
the aged, infirm, disabled and destitute men and women who were in danger of
starvation, pregnant and lactating women and destitute children, especially in
cases where they or members of their family did not have sufficient funds to
provide food. It was unfortunate that plenty of food was available but distribution
of the same among the very poor and destitute was scarce leading to starvation,
malnutrition and other related problems.
The matter of denial of the right to food and means of livelihood was brought to
the attention of the Supreme Court by way of another PIL. The PIL arose from a
newspaper report that due to non-payment of salary for a long time resulting in
the starvation of an employee of Bihar State Agro-Industries Development
Corporation, that employee had tried to immolate himself. This employee later
succumbed to his burn injuries. It was also reported that apart from the employees
of public sector undertakings, even the teaching and non-teaching staff of unaided
schools, madarsas, and colleges had been facing a similar fate. It was reported
that about 250 employees died due to starvation or committed suicide owing to
21
People’s Union for Civil Liberties v Union of India 2003 (9) SCALE 835.
24
an acute financial crisis resulting from non-payment of salary to them for a long Public Interest Litigation
time. Holding corporate entities liable to respect the life and liberty of all citizens
in terms of Article 21 and also their own employees, the court came to a finding
that food, clothing, and shelter are the core human rights in a civilized society
and the state of Bihar made itself liable for mitigating the suffering of the
employees of the public sector undertakings and government companies. The
court directed the state of Bihar to deposit Rs. 50 crores with the High Court for
disbursement of salaries to the employees of the corporations. The court
recognized that hunger was a violation of human rights and the State has an
obligation to satisfy basic human needs.
2) Name a landmark case where the Supreme Court issued guidelines to be
followed by the police with regard to arrests.
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3) What did the Supreme Court decide in Vishaka’s case?
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11.6 PIL AND GOVERNANCE

Since the other branches of the State have been facing a crisis of credibility due
to the growing decline of public morality, people utilise the strategy of PIL for
seeking corruption-free and honest governance. Over the years the focus of PIL
cases has drifted from issues of human rights to the issues of public accountability
and governance. Through PIL, the judges have unearthed ‘scams’ where bribes
were given to high-profile politicians and bureaucrats through ‘hawala’ in return
for favours in the grant of government contracts, and exposed cases of political
corruption and abuse of power in distributing State largesse. People raise issues
of governance before the courts as other avenues of redress of grievances have
become ineffective and unreliable.
The PIL has generally been perceived as a success in providing access to justice
to the poor and the downtrodden, while others have sought to condemn the PIL
movement, often with the specific charge that it has caused the judiciary to usurp
the powers assigned to the executive and legislature, thus disturbing the doctrine
of separation of powers.
25
Access to Justice The courts have given directions as to:
how blood should be collected, stored and given for blood transfusion free
from hazards;
how to impart knowledge about environmental protection;
how the children of prostitutes should be educated;
how the CBI should be insulated from extraneous influence while conducting
investigation of corruption against persons holding high offices;
what procedure should be adopted and what precautions should be taken
while allowing Indian children to be adopted by foreign adoptive parents;
what guidelines should be followed to prevent sexual harassment of women
at workplace,
how to prevent noise pollution by loudspeakers and fire crackers;
how to design the reservation and educational policy.
11.7 PROMISES AND PERILS OF PIL

The most abiding contribution of PIL has been the emergence of new human
rights, such as, right to speedy trial, right against torture, right against bondage,
right against sexual harassment, right to shelter and housing, right to dignity,
right to a clean environment, right to education, right to legal aid and right to
healthcare. It creates a new jurisprudence of accountability of the State for
constitutional and legal obligations, especially with regard to the weaker sections
of society. It reminds and alerts the political executive of its failings and lapses.
In performing the function of exposing such failings, the judges remind the
governmental functionaries to perform their public duties and maintain rule of
law.
In environmental cases the court has addressed issues of environmental

degradation, such as vehicular pollution,22 leakage of oleum gas from a factory,23
danger to the Taj Mahal from Mathura refinery,24 pollution caused by shrimp
farming,25 and tanneries.26 The court has taken several activist measures to ensure
compliance of pollution standards. However, judicial activism in this area has
been criticised on the ground that the court has not taken into account the interest
of the workers and their families while passing orders for the closure of polluting
industries.
PIL has produced astonishing results, which were unthinkable two decades ago.
Degraded bonded labourers, tortured under trials and women prisoners, humiliated
inmates of protective women’s home, blinded prisoners, exploited children and
many others have been given relief through judicial intervention. The greatest
contribution of PIL has been to enhance the accountability of the governments
towards the human rights of the poor. Although, judges by themselves cannot
provide effective responses to state lawlessness, they can surely seek a culture
22
M. C Mehta v Union of India AIR 1998 SC 2663.
23
M. C Mehta v Union of India AIR 1987 SC 1965.
24
AIR 1997 SC 734.
25
S. Jagannath v Union of India AIR 1997 SC 811.
26
Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2721.
26
formation where political power becomes increasingly sensitive to human rights. Public Interest Litigation
When peoples’ rights are invaded by dominant elements, PIL emerges as a medium
of struggle for the protection of their human rights. The legitimacy PIL enjoys in
the Indian legal system is unprecedented. PIL activism interrogates power and
makes the courts, peoples’ courts.
There are, however, certain weaknesses of PIL. PIL actions may sometimes give
rise to the problem of competing rights. For example:
When a court orders the closure of a polluting industry, the interests of the
workmen and their families who are deprived of their livelihood may not be
taken into account by the court.
A court order for the closure of a polluting abattoir may deprive butchers of
the means of subsistence.
The construction of a dam to provide water to the people may deprive other
citizens of their right to shelter.
There is yet another disturbing feature. Some PIL matters concerning the exploited
and disadvantaged groups keep pending for many years. Inordinate delays in the
disposal of PIL cases may render many leading judgments to be merely of
academic value.
We also encounter the problem of wilful defiance of judicial directions.

Surprisingly, the courts are unwilling to punish the violators of their own orders
through the exercise of their contempt power. Frequent defiance of judicial orders
dilute the credibility of the courts.
In its early stages, PIL was understood to be a medium to liberate the oppressed
and the poor. Unfortunately, PIL today has been appropriated for corporate,
political and personal gains. Today PIL is no more limited to the problems of the
poor and the oppressed. This technique is being used to cure all ills afflicting
Indian society. It seems that the dominant concern of PIL activism today is to
focus on the interests of Indian middle classes. For instance, PILs seeking to ban
the Koran, implementation of consumer protection law, removal of corrupt
politicians, invalidation of irregular allotment of petrol pumps and government
accommodation, prosecution of politicians and bureaucrats for accepting
kickbacks through hawala transactions, better service conditions for members
of lower judiciary, quashing the selection of university teachers are some examples
of middle-class interests.
It is undoubtedly true that in recent years the cause of social justice and
emancipation of the oppressed groups has been advanced in many ways through
the device of PIL, but the fact that in some cases PIL has achieved positive
success does not certify this technique as a sovereign remedy to protect the human
rights of the poor. Mass production of rights through PIL has resulted in heightened
expectations from the judges that they are available to provide relief from all
miseries and misfortunes. Human rights of the poor and the disadvantaged groups
will be better protected by subjecting PIL to discipline and control, which should
be limited only to the cases focusing on hapless victims of domination and
governmental lawlessness. Overuse of PIL for every conceivable public interest
might dilute the original commitment to use this remedy only for enforcing human
rights of the victimised and the disadvantaged groups.
27
Access to Justice
4) Do you think PIL has been effective in certain areas?
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11.8 SUMMARY
Let us sum up the contents of this unit:
Public interest litigation (PIL) is a unique phenomenon in the Indian
constitutional jurisprudence. This technique is concerned with the protection
of the interests of a class or group of persons who are either the victims of
governmental lawlessness and/or social oppression or denied their
constitutional or legal rights, and who are not in a position to approach the
court for the redress of their grievances due to lack of resources, or ignorance,
or their disadvantaged social and economic position.
The most abiding contribution of PIL has been the emergence of new human
rights, such as, right to speedy trial, right against torture, right against
bondage, right against sexual harassment, right to shelter and housing, right
to dignity, right to a clean environment, right to education, right to legal aid
and right to healthcare.
PIL creates a new jurisprudence of accountability of the State for
constitutional and legal obligations, especially, with regard to the weaker
sections of society.
There are, however, certain weaknesses of PIL. PIL actions may sometimes
give rise to the problem of competing rights and consequently, a prioritisation
of rights by the judiciary. Inordinate delays in the disposal of PIL cases may
render many leading judgments to be merely of academic value. There is
also the problem of wilful defiance of judicial directions. Frequent defiance
of judicial order might also dilute the credibility of the courts.
In its early stages, PIL was understood to be a medium to liberate the
oppressed and the poor. Unfortunately, PIL today has been appropriated for
corporate, political and personal gains. Today PIL is no more limited to the
problems of the poor and the oppressed. The dominant concern of PIL
activism today seems to focus on the interests of Indian middle classes.

1) Do you think PIL has been a successful device for creating corruption-free
governance in India?
2) How far, through PIL activism, has a new regime of human rights been
created by the judiciary?
28
Public Interest Litigation
1) The two main features of PIL are:
a) Any member of public acting in a bonafide manner can invoke the court’s
jurisdiction
b) Investigative litigation is a new feature of PIL where the court takes the
help of journalists and expert bodies to ascertain facts in the PIL.
2) D.K. Basu v State of West Bengal
3) It held that sexual harassment of women at the workplace constitutes gender
inequality and violation of the right to dignity.
4) Yes, they have been helpful in cases relating to environment, women’s dignity
in the workplace and child labour.
Terminal Questions
1) Refer to Section 11.6 and 11.7

Mahendra P. Singh, (Ed.), V.N. Shukla’s Constitution of India (Lucknow: Eastern
Book Company, 11 th ed 2008).
H.M. Seervai, Constitutional Law of India (New Delhi: Universal, 4 th ed. 2005).
Sangeeta Ahuja, People, Law and Justice: Casebook on Public Interest Litigation
(Delhi: Orient Longman, Vol. I and II, 1997).
Upendra Baxi, ‘Taking Rights Seriously: Social Action Litigation in the Supreme
Court of India’, in Rajeev Dhavan, R. Sudarshan and Salman Khurshid ed., Judges
and the Judicial Power (Bombay: Tripathi, 1985).

S.K. Verma and Kusum eds, Fifty Years of the Supreme Court of India: Its Grasp
and Reach (New Delhi: Oxford University Press, 2000).
29
Access to Justice
UNIT 12 INFORMAL DISPUTE
RESOLUTION MECHANISMS
Structure
12.1 Introduction
12.2 Objectives
12.3 What are Informal Traditional Justice Systems?
12.3.1 Why are Informal Traditional Justice Systems Important?
12.3.2 How can one Identify Traditional Justice Systems?
12.4 Select Traditional Justice Systems
12.4.1 Jati Panchayat
12.4.2 Gaon Panchayat
12.4.3 Sharia Courts
12.5 Recent Community-based Informal Justice Systems
12.6 Do Traditional Justice Systems Uphold the Rule of Law?
12.7 How can Paralegals Engage with Traditional Justice Systems?
12.8 Summary
12.1 INTRODUCTION
Informal dispute resolution mechanisms include non-state traditional justice
systems that have evolved through time and recently evolved community based
institutions. The traditional systems include the caste panchayats and panchayats
of indigenous people whereas, community-based committees and groups formed
by NGOs, for example, Nari Adalats have evolved recently. Unlike formal
agencies, such as the police, prosecution, courts, and custodial institutions whose
functions are based in law, the informal justice systems that are referred to in this
unit are community-based dispute resolution mechanisms falling outside the scope
of the formal justice system and the State.
There are dispute resolution systems that are semi-formal and are run by the
State, such as Lok Adalats, family courts, juvenile justice boards and gram
nyaylayas, which have not been considered in this unit as these systems function
on the basis of legislations and fulfil the obligation of the State. The informal
traditional justice systems, on the other hand, are based in the community where
rules are made and followed with the support of the community leaders or elders.
Religious courts such as Sharia courts have been discussed in this unit as these
courts are used widely and have social sanction.
We know that the formal justice system is difficult to access for reasons, such as,
long distances involving huge travel costs, difficulty in engaging a lawyer and
time spent in negotiating the system to get justice. For the ordinary and poor
people it is important to get quick, easy and affordable justice near their homes.
30
Traditional justice systems fulfil this requirement. Added to these advantages is Informal Dispute
Resolution Mechanisms
the confidence with which communities access their traditional systems as they
know that the people who run them are a part of their own lives. Some of these
systems have been in existence since pre-independence and are based on
customary laws and practices of the area.
There are several traditional systems in different forms in different parts of the
country. Each of these institutions may be known by different names in different
areas, yet they show certain common characteristics and processes while
delivering justice. This unit is structured to enable you to identify local traditional
justice delivery mechanisms in rural and urban areas to which the poor, the
vulnerable and ordinary people turn because they can get quick and affordable
justice.
The traditional justice systems have certain limitations and may not always be
able to deliver appropriate, fair and equitable justice according to human rights
standards. Very often they violate the rule of law by prescribing regressive
punishment. It is, however, important to recognise the role of traditional justice
systems and engage with them. We can work towards promoting the positive
aspects of these systems and reform the negative aspects, by working together
with both the community users and leaders.
12.2 OBJECTIVES
After going through this unit, you should be able to:
identify components of the justice delivery mechanism other than those in
the formal justice delivery system;
describe the common characteristics of traditional informal justice systems;
identify the limitations of such systems;
identify ways in which a paralegal can engage with these systems; and
analyse how linkages can be made between formal and informal justice
systems.
12.3 WHAT ARE INFORMAL TRADITIONAL

JUSTICE SYSTEMS?
Before progressing any further, it is important to understand what these informal
traditional justice systems are. A common definition is that these are community
dispute-solving systems other than the formal justice system. These systems are
based on customary practices where the decisions taken by the community leaders
are enforced within the immediate jurisdiction. The decisions of such institutions
are based on non-regulated mechanisms of social control and are spontaneous.
Informal justice systems refer to dispute resolution mechanisms that fall outside
the scope of the formal justice system and which may be traditional, indigenous,
popular, and community based. These parallel systems exist in many parts of the
country, especially in rural areas.
31
Access to Justice
A definition used by the United Nations Development Programme (UNDP),
which works with community-based informal justice institutions, is:
Justice is the ability of people to seek and obtain a remedy through formal
or informal institution of justice which adhere to human rights standards.
12.3.1 Why are Informal Traditional Justice Systems

Important?
Most marginalised people in both rural and urban areas prefer to use the informal
traditional systems over the formal justice system for the following reasons:
Formal justice systems are costly to access
Illiteracy and ignorance of legal processes
Poor quality advocates and lack of proper legal assistance
Tendency of secrecy in the formal system
Refusal to register complaints by the police
Lack of awareness about legal rights
Misconception that justice is not meant for the poor
Corruption
Religious prohibitions for women in ‘pardah’
Political interference
The informal traditional justice systems are prevalent throughout the country
and they are used by a vast majority of people. Although, making and enforcing
laws is one of the core functions of the state, traditional and indigenous justice
systems often fill the gap when the State is not able to fulfil its duties or when
people simply opt to use traditional systems. Vulnerable groups, especially, the
poor, dalits and others who feel marginalised find it easier to use the traditional
justice system. For many reasons it is important to acknowledge their existence
so that the justice sector reform process being attempted by the government and
civil society can engage with these systems in a more fruitful manner and sensitise
them to constitutional values, due process and principles of rule of law.
It is, however, important to remember that traditional justice systems have certain
limitations and may not always be able to deliver appropriate, fair and equitable
justice. Many of the failings of the formal justice system can also be seen in the
informal traditional justice system - nepotism, corruption, human rights abuses,
gender bias, etc. Research studies on traditional justice systems in India have
shown that these systems are susceptible to being dominated by the elite and
serve the interests of the ruling class and power centres, thereby creating biases
and jeopardising justice for the vulnerable groups. Some of the punishments
given by these systems are regressive and violate basic principles of human rights.
12.3.2 How can one Identify Traditional Justice Systems?

As mentioned earlier, these traditional justice systems are, by and large,
administered by the community elders and accessed by the community.
32
Some of the common characteristics of the informal justice system are:1 Informal Dispute
Collective interests are mostly brought before the system.
Decisions are based on the process of consultation.
There is emphasis on reconciliation and restoring social harmony.
Arbitrators are appointed from within the community on the basis of status
or social position.
Public participation is a common characteristic.
The rules of evidence and procedure are flexible.
There is no professional legal representation.
The process is voluntary and the decision is based on agreement.
They have a high level of acceptance and legitimacy.
Informal justice systems often deal with civil and criminal cases.
Enforcement of decisions is secured through social pressure.
Some common examples of the traditional informal justice systems documented
in this unit are Jati Panchayat, Gaon Panchayat and Sharia courts. These
examples are drawn from a UNDP-Government of India study on documentation
of these institutions in the states of Haryana, Madhya Pradesh and Maharashtra. 2
12.4 SELECT TRADITIONAL JUSTICE SYSTEMS

12.4.1 Jati Panchayat
Profile and functions
In rural areas, individuals try to resolve problems and conflicts by first visiting
their family or a jati panchayat. The jati panchayat and caste panchayat have
certain similarities in most of the states. The victims and complainants visit a
state institution when they find that there is no satisfactory solution in the
traditional system. In cognizable offences, such as, rape and murder, the
community most often decides to refer the case to the police. But there are
instances when the community decisions have prevailed and curtailed individual
rights and the right to fair and equitable justice by letting the matter get resolved
within the inner sphere of the family or community.
Composition
The members are mostly senior and respected members of the caste. They are
those who are perceived to be courageous, compassionate, and knowledgeable,
with good communication skills and a sense of fairness while dealing with caste
issues. However, certain families, by hereditary right, find a place in the panchayats.
Women find no representation in the panchayat. This is a body of elders of a
1
Ewa Wojkowska, Doing Justice: How informal justice systems can contribute (UNDP, 2006)
available at http://www.undp.org/oslocentre/docs07/DoingJusticeEwaWojkowska130307.pdf
2
Shirish N. Kavadi et al, Strengthened Access to Justice: Mapping Informal Justice Institutions
in Maharashtra (Pune: National Centre for Advocacy Studies, 2008) available at http://
www.ncasindia.org/Public/Whatnew/saji.pdf; Mapping of the Informal Justice System in
Madhya Pradesh (National Law University Institute, Bhopal, 2008); Mapping of the Informal
Justice System in Haryana (Kurukshetra University, 2008).
33
Access to Justice particular caste, who determine social, cultural, religious and even economic
affairs of the caste members. In some places, persons mature in age, having
experience and social status are nominated by the community. The number of
panch averages ten. In cases where the territorial jurisdiction extends beyond
one single village, the system provides for representation from each of the villages
covered.
Types of cases
Issues that are closely linked, such as community customs, traditions and identity,
marital relationships, inter-caste marriages, love affairs and family disputes are
dealt with by the jati panchayats. Special meetings are held to decide inter-caste
marriages. Caste panchayats also decide the matters related to immovable
property, agricultural land, partition, theft, atrocities against women.
Jurisdiction
Jurisdiction of most jati panchayats is limited to the village and community.
However, there are exceptions, for example, in Maharashtra the Bhilla Jat
Panchayat hears cases of disputants even from Karnataka and Andhra Pradesh.
The mahapanchayats represent the entire community and hence the jurisdiction
extends beyond state borders, for example, some of the denotified tribes which
have their origins in Karnataka or Andhra Pradesh may have to appear for a
mahapanchayat held in those states and the other way round.
Denotified Tribes
These are tribes that were originally listed under the Criminal Tribes Act
of 1871. Once a tribe became ‘notified’ as criminal, all its members were
required to register with the local magistrate, failing which they would
be charged with a crime under the Indian Penal Code. The Criminal Tribes
Act of 1952 repealed the notification, i.e. ‘de-notified’ the tribal
communities. This Act, however, was replaced by a series of Habitual
Offenders Acts, under which the police investigate a suspect’s criminal
tendencies and whether his/her occupation is ‘conducive to settled way
of life’. The denotified tribes were reclassified as habitual offenders in
1959. The UN’s anti-discrimination body Convention on the Elimination
of all Forms of Racial Discrimination (CERD) has asked India to repeal
the Habitual Offenders Act and effectively rehabilitate the denotified and
nomadic tribes.
Implementation
The decision is arrived at by a consensus and is always implemented immediately.
The panchayat itself undertakes to ensure the implementation of its decision.
The panch are entrusted with the responsibility of implementation and also
authorised to take action against those who defy the decision, which is not a
common occurrence. People, by and large, are wary about going against the
panchayat because of the fear of antagonising the community in which they live.
However, this is not to say all decisions are readily accepted or are seen as being
fair. Controversies may break out and tensions may erupt but it is in a rare case
when panchayats may seek police assistance. Generally, every possible effort is
made to defuse disturbances by the community panchayat itself. Sometimes those
creating the disturbances are warned or threatened with excommunication.
34
It is observed by experts that caste panchayats are almost absent amongst the Informal Dispute
higher castes but more common among the lower (Dalit) castes such as Mahars,
Mang, and Chambhar.3 An important reason that is ascribed to this particular
phenomenon is the urban base of the former and the fact that their means of
livelihood is no longer tied to their caste. Studies on the informal justice systems
have also confirmed that these systems are predominantly found among lower
castes, the nomadic tribes, denotified tribes, and adivasi communities.
12.4.2 Gaon Panchayat

Profile and functions
The gaon panchayat is a village panchayat represented by all communities from
the village. These panchayats are found in Maharashtra and parts of Gujarat.
This is a non-statutory body unlike the gram panchayat. In a gaon panchayat,
the panch are usually village elders. Any villager, irrespective of caste or
community, can take the dispute to the gaon panchayat.
Elected representatives from the gram panchayat, the Sarpanch, Police Patil
and a few village elders nominated for their knowledge and experience hold
office of panch in a gaon panchayat. Women are permitted to be nominated as a
panch. The number of panch is not usually fixed.
In some villages the statutory gram panchayat undertakes informal dispute

resolution. A common feature in such instances is that the villages invariably are
dominated by a single caste or community.
Jurisdiction and nature of disputes

The jurisdiction of a gaon panchayat is limited to the village. It entertains disputes
related to agricultural land, marital issues and family disputes. In some rare cases,
disputes outside the village or district can also be resolved by the gaon panchayats.
Some gaon panchayats in Thane district, Maharashtra are known to entertain
disputes related to harassment of women due to dowry.
1) Why do people like to access the informal traditional justice system
instead of the formal justice system?
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
3
Vasudha Dhagamwar, ‘The Shoe Fitted Me and I Wore It: Women and Traditional Justice
Systems in India’, in Kalpana Kannabiran ed., The Violence of Normal Times: Essays on
Women’s Lived Realities (New Delhi: Women Unlimited, 2005). 35
Access to Justice
2) What are the common disputes that occur in the rural areas which make
their way to the informal justice systems?
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
12.4.3 Sharia Courts

Sharia courts have a historical genesis and are used by the followers of Islam.
These courts deal with settlement of disputes relating to matters, such as, marriage,
divorce and inheritance. These courts or Dar ul Qaza are located in different
parts of the country. The machinery set up for the enforcement of Sharia
injunctions and resolution of disputes are called Qaza and the person entrusted
with the responsibility of a Qaza is called Qazi. The courts normally have three
different judges who work independently – one Qazi and two Nayabs. It is not a
hierarchical system and has a permanent establishment in the Muslim community.
The courts have registered ulemas or lawyers who are trained in interpreting
both civil and criminal cases.
These are found in Uttar Pradesh, Orissa, Bihar, Madhya Pradesh, Maharashtra,
Rajasthan, Delhi, West Bengal, Assam and Gujarat. The All India Muslim Personal
Law Board (AIMPLB), which represents both the Shia and Sunni sects, is the
apex body and was established in 1973. It takes decisions regarding establishment
of new Sharia courts. These courts have wide acceptability among the Muslim
community. If the disputants are not satisfied with the verdict of the Sharia court,
they are free to access the formal courts.
Procedure
The judgment is arrived at by only one judge, unlike in a panchayat or gram
nyaylaya. These courts are easy to approach and are cost effective as fees are
nominal. Both parties are given an opportunity to present their respective cases.
The disputants appear personally before the court and there are no restrictions
on deposition by their family members. Two witnesses from each side are required
for the identification of the disputants. The court can issue summons seeking
attendance of a person. Parties and witnesses are examined on oath.
Normally judges do not hear cases of their family members – these are passed on
to other judges. There is no period of limitation prescribed for filing a case. On
an average, 45 to 50 cases are resolved each year by one Sharia court.
These courts do not allow any other outside authorities to influence their decisions.
Therefore, each case is instituted and tried afresh. Records of cases are maintained
in Urdu. A Hindi version of the judgment can be obtained.
36
Usually there is no enforcement mechanism available in the form of punitive Informal Dispute
sanctions or social boycott. The only driving force is the personal belief of an
individual. The Dar-ul Qaza is a platform to facilitate mutual agreement and
reconciliation.
Sharia courts, like the other traditional informal systems, have been criticised
for giving regressive verdicts against women, especially in rape cases. For
example, in the case of Imrana in Uttar Pradesh (2005) where she was raped by
her father-in-law, the Sharia court passed a verdict that the woman cannot remain
married to her husband.
12.5 RECENT COMMUNITY-BASED INFORMAL

JUSTICE SYSTEMS
Some informal disputes resolution mechanisms have developed recently due to
peoples’ loss of confidence in the formal and traditional justice institutions. Some
of these recent developments have their basis in community support and are
facilitated by civil society organisations. To prevent gender-biased judgments,
women’s platforms have formed Nari Adalats. Which have emerged as a response
to domestic violence.
There are voluntary agencies such as the Shramajeevi Sangathana (SS), which
was established nearly three decades ago inspired by the socialist movement and
Jayprakash Narayan’s idea of Total Revolution. In 1979 a Vidhaayak Sansad
was set up to give voice to the urban poor of the Mumbai slums but its work was
soon extended to the neighbouring Thane district. The initial orientation was
towards charitable and welfare activities. But the presence of bonded labour
among the adivasis of the areas and the fact that the Bonded Labour System
(Abolition) Act had little impact in the area motivated the organisation to take
up this issue. The SS began as a trade union of freed bonded labourers, and soon
became a union of workers earning their livelihood through work on farms. The
SS engages in mobilising the local tribal communities to protect and promote
their basic rights and fundamental freedoms.
The Shramajeevi Sangathana (SS) operate in 855 villages from 13 talukas

(blocks) in Thane, Mumbai and Nasik. The SS is a membership-based organisation
with 25,000 members across Maharashtra. Every member pays Rs. 30/- towards
annual membership and thereby entitles himself or herself to the benefits accruing
to a member, one of which is assistance in dispute resolution.
The Sangathana, because of the nature of its work, also serves as an informal
institution for dispute resolution. The key role of SS being promotion, protection
and enforcement of human rights of tribal and vulnerable sections, the villagers
come to the SS with their grievances related to government schemes, harassment
by upper caste or class or non-tribals in the village, harassment by the police
exploitation based on social discrimination and violence committed against
women within the family, the village or by the system. Land boundary disputes,
a young girl/boy eloping with a boy or girl from a different community, sexual
exploitation of women working on farms or brick kilns by the employers, caste-
based atrocities and denial of legal rights by the police may be listed as some of
the major issues that are usually addressed by the SS committees.
37
Access to Justice No person from any other organisation is permitted to attend and speak at the
committee meeting. In case of disputes related to land, local government officials
like the talathi are invited for the meeting, as they are responsible for the
implementation, but no police intervention or interference is sought or allowed.
The SS has a hierarchical organisational structure. In every village where it has

members there is a gaon/village committee comprising a minimum of 20
members. Committee members are elected and only members of the Sanghatana
are eligible to contest. The members are elected based on their credibility and
public image. There is a zonal committee, which is made of individuals heading
the village/gaon committees. Similar committees are formed at taluka, and district
levels. At the top of the hierarchy is the state level committee.
12.6 DO TRADITIONAL JUSTICE SYSTEMS

UPHOLD THE RULE OF LAW?
From the above it is certain that the traditional justice systems are biased and
provide little or no representation to the most vulnerable groups, such as, women
and dalits. They follow social hierarchies which are discriminatory towards certain
groups. Although they are less constrained by procedures and technicalities, unlike
formal justice systems, they are bound by caste/tribe customs, traditions and
superstitions. The quality of justice is often dependent on the individual
knowledge, skills and moral values of those engaged in mediation or arbitration
in these institutions. At the core of their functioning is the idea that all disputes
involving members of a caste/tribe concern the group alone and hence it is
imperative to settle these within the caste/tribe itself.
The punishments meted out by the traditional justice system are sometimes
contrary to human rights standards. Practices commonly found among the dalits,
nomadic and denotified tribal panchayats such as the pardhis involve retrieving
a coin from the bottom of a pot filled with boiling water or oil or handling a red
hot iron axe with bare hands to determine the truth. There are two arguments
behind such inhuman practices: one, that the community always knows the truth
and no one can lie to the tribe and get away with it, and the second involves an
assumption that an ‘innocent’ person will not burn his or her hand. However,
what happens in most cases is that out of sheer fear of the consequences most
people confess. They know that undertaking the task will burn their hands and
that they would anyhow have to face punitive action. A great deal of force and
violence is used in producing evidence and getting disputants to admit their
guilt.
Efforts are made to ensure that all decisions are taken by consensus. ‘Consensus’
in decision making in panchayats can sometimes be misleading. The ability to
shout down the opposition can push a decision towards a certain kind of a
‘consensus’. Some may argue that a decision taken by a majority voice is in
keeping with the notions of liberal democratic principles. It ignores the fact that
justice in such cases may actually be denied and grave injustice done, merely
because a brute majority has its way in pushing the panchayat towards a certain
‘consensus’.
Resolving a dispute even in caste panchayats can be complex and even more
difficult than formal justice systems as there are no written laws against which a
38
case can be decided. In a formal system there are technical aspects of law rather Informal Dispute
than merely notions of justice that determine a verdict.
Gender bias exists in almost all traditional justice systems. These can range from
lack of representation to punishments meted out to women who are the victims.
Informal justice systems may be physically more accessible, but they often reflect
the social and political inequities which define many poor and rural communities.
The poor, women and dalits face challenges in accessing informal justice due to
a lack of neutrality, unclear standards and guidelines and sometimes a lack of
capacity on the part of the informal justice system actors.
Legal framework
The jati panchayats have no written laws. The norms and tenets that guide the
panchayat in deciding disputes are age-old customs of the community. The
panchayat and the disputing parties may also draw upon precedents. Similarly,
the gaon panchayats have no basis in law. Voluntary organisations such as
Shramajeevi Sangathana work to protect and promote human rights and base
themselves partly in formal law and partly in local customs. They are participatory
and open with emphasis on reconciliation. They are guided by principles of human
rights and constitutional guarantees. The decision making is also considered as
an opportunity for legal empowerment of the vulnerable.
12.7 HOW CAN PARALEGALS ENGAGE WITH

TRADITIONAL JUSTICE SYSTEMS?
It is important for paralegals and human rights defenders to be aware of the role
of informal traditional justice institutions as a large number of rural poor use
them. We can facilitate better quality justice in traditional informal justice
institutions through the following processes:
By understanding the normative framework of justice and simplifying it and
building the capacities of the users of such systems. The normative framework
has the capacity to both protect and defend the interests of the poor. This makes
it possible for the users of the system to claim better quality justice.
Legal awareness is critical to securing access to justice. Poor and disadvantaged
groups often fail to make use of laws and rights precisely because they are not
aware of them. Poor communities need to be aware of the law, of available
remedies and how to access those remedies. Once equipped with legal knowledge,
the poor and disadvantaged require adequate access to both informal and formal
justice systems to seek remedies.
Building access to these systems includes establishing monitoring mechanisms
or overseeing bodies; ensuring representation for disadvantaged groups in local-
level institutions; capacity building and building bridges between formal and
informal systems. Public confidence in legal institutions is dependent on timely,
independent and consistent application of applicable norms, free of political
intervention. It also requires accountability to the public. Therefore, the people
using these systems and the leaders or actors of the traditional justice institutions
must be in a position to develop transparent functions which can be supervised
by an overseeing body which will look into the grievances of those who do not
receive fair and equitable justice.
39
Access to Justice
Recommendations on to how to engage with the traditional justice systems
A paralegal needs to undertake the following:
Identify those who are most vulnerable and those who use these systems
Identify the community leaders of the system
Assess and analyse the capacity gaps of users to be able to claim their
rights and leaders to be able to meet their obligations and subsequently
use the analysis to capacity build and sensitise the two groups
Capacity development for access to justice requires building on existing
strengths and solutions. Work with informal justice systems and attempt
to promote the positive aspects of the informal systems and reform the
negative aspects;
Find solutions for problems with the community and refrain from adopting
new models in the area as this leads to conflict.
Work together with both the community users and leaders.
12.8 SUMMARY
The informal justice systems that are referred to in this unit are community-
based dispute resolution mechanisms falling outside the scope of the formal
justice system and the state. These are non-state-administered mechanisms
and processes which are traditional, indigenous, customary and popular.
There are dispute resolution systems that are semi formal and are run by the
state, such as Lok Adalats, family courts, juvenile justice boards and gram
nyaylayas, which have not been considered in this unit as these systems
function on the basis of legislations and fulfil the obligation of the State.
There are several traditional systems in different forms in different parts of
the country. Each of these institutions may be known by different names in
different areas, yet they show certain common characteristics and processes
while delivering justice. These systems are based on customary practices
where the decisions taken by the community leaders are enforced within
the immediate jurisdiction. The decisions of such institutions are based on
non-regulated mechanisms of social control and are spontaneous. Some
common examples of the traditional informal justice systems documented
in this unit are Jati Panchayat, Gaon Panchayat and Sharia courts.
The jati panchayat and caste panchayat have certain similarities in most of
the states. Women find no representation in the panchayat. This is a body of
elders of a particular caste, who determine social, cultural, religious and
even economic affairs of the caste members. The jati panchayat deals with
issues, such as, community customs, traditions and identity, marital
relationships, inter-caste marriages, love affairs, family disputes, matters
related to immovable property, agricultural land, partition, theft and atrocities
against women.
The gaon panchayat is a village panchayat represented by all communities
from the village. This is a non-statutory body unlike the gram panchayat. In
a gaon panchayat, the panch are usually village elders. Any villager,
irrespective of caste or community, can take the dispute to the gaon
40 panchayat.
Sharia courts have a historical genesis and are used by the followers of Informal Dispute
Islam. These courts deal with settlement of disputes relating to matters,
such as, marriage, divorce and inheritance. These courts are located in
different parts of the country.
Some informal disputes resolution mechanisms have developed recently
due to peoples’ loss of confidence in the formal and traditional justice
institutions. Some of these recent developments have their basis in
community support and are facilitated by civil society organisations. To
prevent gender-biased judgments, women’s platforms have formed Nari
Adalats. These have emerged as a response to domestic violence by rural
women’s collectives.
Voluntary organisations also resolve disputes informally. For example, the
Shramajeevi Sangathana began as a trade union of freed bonded labourers,
and soon became a union of workers earning their livelihood through work
on farms. The organisation engages in mobilising the local tribal communities
to protect and promote their basic rights and fundamental freedoms and
also serves as an informal institution for dispute resolution. Villagers come
to the organisation with their grievances related to government schemes,
harassment by upper caste or class or non-tribal in the village, harassment
by police and powerful, exploitation based on social discrimination, violence
committed against women within family, village and by the system.
Traditional informal justice systems may be physically more accessible, but
they often reflect the social and political inequities which define many poor
and rural communities. These systems may not always be able to deliver
appropriate, fair and equitable justice. Gender bias exists in almost all
traditional justice systems. These can range from lack of representation to
punishments meted out to women, who are the victims. The poor, women
and dalits face challenges in accessing informal justice due to a lack of
neutrality, unclear standards and guidelines and sometimes a lack of capacity
on the part of the informal justice system actors.
It is, however, important to recognise the role of traditional justice systems
and engage with them. We can work towards promoting the positive aspects
of these systems and reform the negative aspects, by working together with
both the community users and leaders

1) Informal traditional justice systems do not comply with human rights
standards. Identify some features of these systems that go against principles
of human rights and rule of law.
2) Identify some ways in which we can strengthen traditional justice systems.

1) Common disputes which are handled by the traditional justice institutions
are: dispute over cow slaughter, family matters, land-related issues, adultery,
murder, rape, theft, teasing, dacoity, elopement, witchcraft.
41
Access to Justice 2) Most marginalised people in both rural and urban areas prefer to use the informal
traditional systems over the formal justice systems for the following reasons:
- Formal systems are costly to access
- Illiteracy and ignorance of legal processes
- Poor quality advocates deter people from approaching the formal systems
and lack of proper legal assistance
- There is a tendency of secrecy in the formal systems
- Refusal to register complaint by police
- Lack of awareness about legal rights
- Lack of confidence in the formal systems due to bias such as caste
- The formal justice system is not user friendly, but costly and time consuming
- The formal justice system gives a misconception to the people that justice is
not meant for the poor
- Corruption
- Religious prohibitions for women in ‘purdah’
- Political interference
Terminal Questions

Vasudha Dhagamwar, ‘The Shoe Fitted Me and I Wore It: Women and Traditional
Justice Systems in India’, in Kalpana Kannabiran ed., The Violence of Normal Times:
Essays on Women’s Lived Realities (New Delhi: Women Unlimited, 2005).
Tahir Mahmood, The Muslim Law of India (New Delhi: Lexis Nexis, 3rd ed. 2002).
Ewa Wojkowska, Doing Justice: How informal justice systems can contribute
(UNDP, 2006) available at
http://www.undp.org/oslocentre/docs07/DoingJusticeEwaWojkowska130307.pdf
Shirish N. Kavadi et al, Strengthened Access to Justice: Mapping Informal Justice

Institutions in Maharashtra (Pune: National Centre for Advocacy Studies, 2008)
available at http://www.ncasindia.org/Public/Whatnew/saji.pdf
42
Right to Information
UNIT 13 RIGHT TO INFORMATION
Structure
13.1 Introduction
13.2 Objectives
13.3 Evolution of the Right to Information
13.4 Purpose of the Right to Information Act, 2005
13.5 Overview of the Act
13.6 Application of the Act
13.7 Who can Access Information under the Act
13.8 Meaning of ‘Information’ under the Act
13.8.1 What Constitutes ‘Information’ under the Act
13.8.2 Right to Information under the Act
13.8.3 Exempted Information
13.8.4 Third Party Information
13.9 Obligations of Public Authorities under the Act
13.9.1 Voluntary Declarations
13.9.2 Appointment of Public Information Officers
13.10 Procedure for Accessing Information Under the Act
13.10.1 Application Format and Framing of Questions
13.10.2 Procedure for Submitting the Application and Payment of Fees
13.10.3 Response of the PIO to an Application for Information
13.10.4 Time Limit for Disposal of Application
13.10.5 Payment of Additional Fees
13.11 Appeals
13.11.1 First Appeal
13.11.2 Second Appeal
13.12 Complaint
13.13 Summary
13.1 INTRODUCTION
In this unit you will study the Right to Information Act (we will refer to it as ‘the Act’)
and its usefulness as an institutional mechanism to provide greater transparency and
accountability in governance. We will begin by discussing the development of the right
to information and the purpose of the Act. This unit will be a useful guide for submitting
an application and obtaining information under the Act.
13.2 OBJECTIVES
define the ‘right to information’ and its significance to ordinary citizens;
43
Access to Justice explain the development of the right to information in India;
describe the salient features of the Right to Information Act, 2005; and
prepare an application seeking information under the Act.
13.3 EVOLUTION OF THE RIGHT TO

INFORMATION
Right to information is a significant step towards making institutions of
governance more accountable to the people. Information in the hands of ordinary
citizens prevents corruption and increases efficiency in governance. The greater
the access people have to information, the greater shall be the responsiveness of
the government to community needs. Without information, people cannot
adequately exercise their rights and responsibilities as citizens, or make informed
choices.
The right to information in India has a lengthy history, as old as the Constitution
itself. However, this right, as enjoyed by citizens today, is a relatively recent
phenomenon. Our present experience with right to information is the result of a
long campaign by civil society groups to bring about transparency and
accountability in government by incorporating a procedure for the application of
this right. In the space of less than a decade, the movement for right to information
has succeeded in institutionalising the right and empowering ordinary citizens
with the ability to exercise far greater control over the State.
The movement for right to information did not create a new right – rather, it
generated conditions for the effective exercise of this right. Although the
Constitution of India does not contain a specific reference to the right to
information, this right has been read into the chapter on Fundamental Rights –
particularly the right to freedom of speech and expression under Article 19 (1)
(a) of the Constitution. The recognition of the right to information as a
fundamental right is significant since, as you learnt earlier in the course,
‘fundamental rights’ cannot be violated by either executive or legislative action,
and act as a powerful check on the exercise of governmental powers.
The Supreme Court of India has, in many cases, favoured the disclosure of
governmental information and transparency, but the strongest articulation of a
fundamental right to information was in the case of the State of Uttar Pradesh v
Raj Narain1 where the Court explicitly recognized the right to information as
being derived from the right to freedom of speech and expression, and therefore,
also a fundamental right under the Constitution.
Despite judicial recognition of the right, no laws were passed guaranteeing the
right to information and the executive continued to deny citizens access to
government information. The movement for the right to information was led by
a people’s organization, the Mazdoor Kisaan Shakti Sangathan (MKSS). This
movement, which began in Rajasthan, led to a nationwide campaign for a law to
guarantee the right to information to every citizen. The first right to information
law was passed in Rajasthan, and other states too passed similar laws guaranteeing
the right. The central Right to Information Act, 2005 became operational from
12 October 2005.
1
44 AIR 1975 SC 865.
13.4 PURPOSE OF THE RIGHT TO INFORMATION
ACT, 2005
The Act was introduced in 2005 with the aim of providing a practical regime to
operationalise the right to information in India. The Act enables every citizen to
access documents that may otherwise be available only at the discretion of the
government. This Act overrides and has supremacy over the Official Secrets
Act, 1923, wherever the latter is applicable.
13.5 OVERVIEW OF THE ACT

Section 1 deals with the extent, commencement and application of the Act. Section
2 deals with definitions. Chapter II establishes the right of all citizens to
information and deals with the obligations of public authorities, which include
the obligation to make voluntary declarations and appoint Public Information
Officers (PIO) to assist the public in obtaining information. This Chapter also
provides the mechanism for submitting applications, and the procedure to be
followed by PIOs in the disposal of applications.
Chapters III and IV deal with the establishment of the Information Commissions.
Chapter V details the powers and functions of the Information Commissions.
Citizens are provided with a two-tier system of appeal, and the freedom to
complain before the appropriate Commission regarding the non-implementation
of the Act (Sections 18 – 20).
Finally, Chapter VI deals with residuary matters like protection of acts done in
good faith, overriding effect of the Act, power to make rules, non-application of
the Act to certain organisations, jurisdiction of courts etc. There are two Schedules
to the Act. A more detailed analysis of the Act is provided in the following sections.
13.6 APPLICATION OF THE ACT

The Act gives every citizen the right to information. This means the right to
obtain information from all public authorities, and binds all public authorities to
provide such information to citizens in the manner provided in the Act. It is
important, therefore, to identify clearly what constitutes a ‘public authority’ for
the purposes of the Act.
Section 2 (h) defines ‘public authority’ to mean any authority or body or institution
of self-government established or constituted:
a) by or under the Constitution;
b) by any other law made by parliament;
c) by any other law made by state legislature;
d) by notification issued or order made by the appropriate government, and
includes any:
– body owned, controlled or substantially financed, and
– non-governmental organisation substantially financed,
– directly or indirectly by funds provided by the appropriate government.
45
Access to Justice Apart from offices directly under the central, state or local government,
information can be sought from universities, public sector companies and statutory
authorities.
The Act specifically exempts intelligence and security organisations specified
under Schedule II of the Act from the operation of the Act, unless the information
sought relates to an allegation of corruption or a violation of human rights.
On the whole, the Act does not apply to private bodies that are not substantially
financed by the government. However, the extent to which the Act applies to
cooperative bodies and societies differs amongst the states. There is a growing
demand that the Act should be extended to apply equally to private bodies,
particularly those that engage in the delivery of public services.
13.7 WHO CAN ACCESS INFORMATION UNDER

THE ACT?
Only a ‘citizen’ is empowered to access information under the Act. The right to
information is only applicable to citizens – and therefore – individuals.
Companies, societies and other organisations are not permitted to seek information
under the Act.
The practical significance of this is that any application seeking information
must be submitted by a citizen in his/her individual capacity. It is important that
you include your name and signature in the application.
This does not mean that all applications on behalf of a corporation or society
will be automatically rejected. The Central Information Commission (CIC) in
its decisions has held that an application submitted by an office bearer, on the
company’s letterhead, is valid, and cannot be rejected by the PIO since it is
presumed to have been submitted in his individual capacity.2 However, the legal
position on this point is still unclear.
1) Discuss application of the Act – who is bound by the Act and who can
make use of its provisions?
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
13.8 MEANING OF ‘INFORMATION’UNDER THE ACT

13.8.1 What Constitutes Information under the Act?
Information forms the subject matter of the Act. Therefore, it is important that
we have a clear understanding of what constitutes ‘information’ under the Act.
2
Decision No. CIC/WB/A/2006/00336 at www.cic.gov.in/CIC-Orders/Decision_
46 09082006_1.pdf.
Section 2 (f) defines information as: “any material in any form, including
records, documents, memos, e-mails, opinions, advices, press releases,
circulars, orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any private
body which can be accessed by a public authority under any other law for
the time being in force”.
‘Information’ therefore does not include ‘any’ information. It refers only to

information as is recorded, stored and/or disseminated by the public authority.
Information relating to a private body must be capable of being accessed by a
public authority in order to be included under the Act. For example, news itself
is not information, but statements and newsletters released by the Public Relations
Officers are information within the meaning of Section 2 (f). Information that is
otherwise open and available is not information under the Act – one cannot ask
the PIO about rail or air transport timings!
13.8.2 Right to Information under the Act

The right to information is defined under Section 2 (j) and recognises the right of
every citizen to inspect government documents and records, obtain certified copies
of documents and records, obtain certified samples of material, and, if information
is stored in a computer or any other device, obtain information through an
electronic mode. Any citizen can exercise this right by making a request in writing
under the Act.
A person can ask for any information related to the government’s functioning,
such as, copies of contracts of various government works, status of any application
filed with the government, status of corruption cases pending, sample materials
of any government work, documents related to various policies and budgets of
the governments. In short, a citizen can access any information that relates to
administration, and which the authorities under the Act are obliged to publish or
record.
There are two limitations to the exercise of this right by a citizen. First, the
information in question must be ‘held by or under the control of any public
authority’. Secondly, the information requested must not be exempt from
disclosure under Section 8 of the Act.
13.8.3 Exempted Information

The Act also provides that certain types of information are exempt from disclosure
to the general public (Sections 8 and 9 of the Act). ‘Exempted information’
constitutes information:
a) that would prejudicially affect the sovereignty and integrity of India, the
security, strategic, scientific and economic interests of the State, relation
with a foreign State or lead to incitement of an offence;
b) the disclosure of which may constitute contempt of court;
c) the disclosure of which would cause a breach of privilege of parliament or a
state legislature;
d) the disclosure of which would harm the competitive position of a third party,
such as, commercial confidence, trade secrets or intellectual property;
47
Access to Justice e) available to a person in his fiduciary (i.e. held in trust) relationship;
f) received in confidence from a foreign government;
g) the disclosure of which would endanger the life or physical safety of any person
or identify the source of information or assistance given in confidence for law
enforcement or security purposes;
h) which would impede the process of investigation or apprehension or prosecution
of offenders;
i) Cabinet papers including records of deliberations of the Council of Ministers,
Secretaries and other officers;
j) which relates to personal information, the disclosure of which has no
relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual;
k) involving infringement of copyright held by a person other than the State.
A request for exempted information may be rejected by the PIO. The same may
be made available to the public in cases where the PIO or appellate authority
decides that the public interest served by revealing the information outweighs
the harm to protected interests. Also, where part of the document is exempted
but the other part (which is severable, or can be separated from the exempted
portion) can be disclosed, the PIO cannot reject the request for the latter part.
Decisions of the Cabinet, the reasons thereof, and the material on the basis of
which decisions were made shall be made public after the decision has been
taken, unless they relate to any subject, which is otherwise exempt from disclosure
under the exemption clauses. Also, any information that pertains to a matter that
is twenty years prior to the date of the request shall be made available to the
public.
Public Interest
The Act does not define ‘public interest’. However the term is used in several
instances, particularly related to the disclosure of exempted or third party
information. The CIC in a 2006 decision held that for the purpose of the Act,
public interest includes disclosure of information that leads to greater transparency
and accountability in the working of a public authority. 3
A more general definition of public interest was provided in State of Gujarat v

Mirzapur Moti Kureshi Kasab Jamat4 where the Supreme Court held that “the
interest of the general public (public interest) is of a wide import covering public
order, public health, public security, morals, economic welfare of the community,
and the objects mentioned in Part IV of the Constitution i.e. Directive Principles
of State Policy.
13.8.4 Third Party Information

A ‘third party’ is a person other than the citizen making the request for information,
and includes a public authority. The issue of third party information arises when
a PIO intends to disclose information that relates to a third party or has been
3
Decision No. CIC/OK/A/2006/00046, dt. 02.05.2006; www. cic.gov.in/CIC-Orders/
Decision_02052006_5.pdf .
4
48 AIR 2006 SC 212.
provided by that party, and has been treated as confidential by the concerned authority. Right to Information
In such an event, the third party has the right to be informed of the PIO’s intention to
disclose the information, and to make written or oral submissions in this regard, which
must be considered by the PIO while taking a decision on the matter. However, except
in the case of trade or commercial secrets, disclosure of third party information may
be permitted if the public interest outweighs the possible harm to the third party.
2) What is the definition of ‘information’ under the Act?
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
3) Under what circumstances can exempted information be disclosed to the
public?
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
13.9 OBLIGATIONS OF PUBLIC AUTHORITIES

UNDER THE ACT
13.9.1 Voluntary Declarations
Every public authority, under Section 4, is duty bound to maintain and publish
information, such as:
a) particulars of the organisation, its functions and duties;
b) powers and duties of its officers and employees;
c) procedure followed in the decision-making process;
d) norms set by the authority for the discharge of its functions;
e) rules, regulations, instructions, manuals and records held by the authority;
f) directory of its employees and remuneration received by them;
g) budget allocated to each department; and
h) names, designation and details of the PIOs.
Voluntary disclosures are usually accessible on the website, notice board, or
publications of that public authority.
13.9.2 Appointment of Public Information Officers (PIO)

49
Access to Justice Every public authority (government department) must appoint one or more special
officers (called PIO) in all its administrative units to provide information to
citizens.
Assistant Public Information Officers (‘APIO’) are also appointed at each sub-
district level (Tehsil). The APIO will receive your application for information or
appeal and forward it immediately to the concerned PIO or appellate authority.
13.10 PROCEDURE FOR ACCESSING

INFORMATION UNDER THE ACT
The Act was introduced to provide a practical procedure through which citizens
could exercise their fundamental right to information.
13.10.1 Application Format and Framing of Questions

The first step in writing an application for information is to identify the relevant
public authority and to evaluate the information sought against the voluntary
disclosures made by the authority. The next step is to frame questions keeping in
mind the information you seek. Questions must be framed in a clear, specific,
and comprehensive manner. Questions may be detailed and could be written in
the form of a list. To avoid ambiguity, each point should address a single piece of
information or work or record. There is no prohibition or limit on the number of
questions or the range of subjects permitted in a single application. However, it
is advisable to limit the questions raised in an application to a defined area and
to cover a specific subject to ensure a timely and effective response by the PIO.
It is advisable to avoid framing questions in the form of complaints or requests

for redressal. Failure to frame an application as a clear request for information
could result in the application being rejected by the PIO.
The application for information may be written or typed in English, Hindi or the
local language of the area and addressed to the designated PIO or APIO. If a
request cannot be made in writing, the PIO must assist in reducing the request in
writing. Some States even consider email communications and oral requests to
be valid applications for information, subject to payment of the application fee.
The application need not be written according to a specific format. Although

some states have provided a format for applications under their respective Rules,
the CIC has clarified that an application can be made on a plain paper and cannot
be rejected for not being submitted in a prescribed format. There is no format
specified for applications to central authorities. However, in cases where a format
is provided, it is better to write the application accordingly. Application forms
can be obtained from the state government website or the website of the concerned
public authority.
All applications must include the following information:
- applicant’s full postal address and contact details;
- name and designation of the relevant P.I.O. (when known to the applicant); and
- applicant’s name and signature.
The application should also describe the issue, location and period pertaining to
50
which information is sought. Significantly, the applicant is not required to reveal the Right to Information
reasons or justification for requesting the information to the public authority.
13.10.2 Procedure for Submitting the Application and Payment

of Fees
The application can be submitted along with the application fee to the relevant
PIO or APIO. Information regarding the designated PIO can be obtained through
the voluntary declarations of the authority or from its website. A partial list of
PIO/APIO and first appellate authorities for central and state governments is
available at the website www.rti.gov.in.
The managers of Customer Care Centre (CCC) at all district head post offices
are designated APIOs, and are authorised to receive applications for all central
government ministries and departments. The application and the fee must be
submitted to the relevant official. The APIO is responsible for delivering the
application to the PIO concerned. A list of these post offices is available at the
website www.indiapost.gov.in
If you are unable to locate the PIO, your application can be addressed to the head
of the public authority, who will direct the application to the concerned PIO. If a
public authority has failed to appoint a PIO under the Act, a complaint may be
submitted to the Information Commission demanding the appointment of a PIO.
Applications cannot be transferred between PIOs in the same department or
authority. Transfer of an application is only possible if another public authority
holds the requested information.5
The central and state governments have slightly different rules governing
submission of an application and payment of fees. Applications to a central
government department can be submitted on plain paper or electronically. All
states accept applications submitted on plain paper, although the provision for
electronic submission may not be practical at present.
Under the central government Rules (‘Central Rules’), an application to a central
authority must be accompanied by an application fee of Rs.10/-, which must be
paid either in cash, or demand draft, or banker’s cheque payable to the Accounts
Officer of the concerned authority. Central government departments do not accept
court fee stamps. State governments have prescribed different rates and methods
of payment for application fees in their respective State Rules. Usually, the
application fee does not exceed Rs.50/- per application. In all cases the fee must
be reasonable and not prohibitive. No fees are charged of persons living below
the poverty line. Rules of some states permit payment by court fee stamps. Of all
the payment options available, this method is by far the most convenient.
4) To whom is the application under RTI addressed?
..................................................................................................................
..................................................................................................................
..................................................................................................................
5
Decision No. ICPB/C1/CIC/2006 at www.cic.gov.in/CIC-Orders/CIC_Order_Dtd_
06032006.pdf. 51
Access to Justice
13.10.3 Response of the PIO to an Application for Information
Once an application for information is submitted, the concerned PIO may either supply
the information sought or reject the request, in whole or in part, on the grounds provided
under the Act.
Once the PIO decides to provide the information sought in the application, the PIO
will send a ‘decision notice’ to the applicant containing the following information:
- further fee payable;
- advice about the applicant’s right to appeal against the amount payable;
- details of the appellate authority;
- the time period within which the appeal should be filed; and
- any other information.
Information should be provided in the requested format.
If the request is rejected in whole or in part, the PIO must communicate the following
information to the applicant:
- reasons for such rejection/decision;
- particulars of the appellate authority including his own name; and
- the time period within which an appeal must be filed.
The PIO must provide justification for rejecting the request for information.
A request for information may be rejected on the following grounds:
- if the information relates to organisations excluded under Section 24 of the Act;
- if the information is exempted under Section 8 of the Act;
- infringement of copyright laws under Section 9 of the Act; and
- where third party disclosures do not serve the public interest under Section 11 of
the Act.
If only part of the requested information is rejected by the PIO, and the remaining part
of the application can be separated from the rejected part, the PIO should provide the
remaining information to the applicant under Section 10 of the Act.
13.10.4 Time Limit for Disposal of Application

The PIO must respond to an application within 30 days. The time period between the
dispatch of the decision notice by the PIO and the payment of additional fees by the
applicant is excluded when calculating this 30-day period. The CIC has recommended
that the public authority should accept an advance deposit or payment made by the
applicant at the time of submitting the application to ensure speedy response.
If a request has been made to an APIO, the time period for response is increased to
35 days. If the requested information relates to the life and liberty of a person,
information must be given within 48 hours of receiving an application. In such
cases, the application must be accompanied with substantive evidence that a
threat to life and liberty exists.
If the information demanded pertains to an authority other than the one to which
the application has been made, the PIO must transfer the application, within 5
52
days of receipt, to the relevant P.I.O. and inform the applicant of such transfer. In Right to Information
cases of human rights violations where the Information Commission’s approval
is required, the time period for response is extended to 45 days. If the interest of
a third party is involved, the time limit for response by the PIO is 40 days.
If the PIO does not provide the information requested within the specified time
limit, the PIO will be deemed to have refused the request for information.
13.10.5 Payment of Additional Fees

The PIO may ask for additional fees to be paid by an applicant before releasing
information. As mentioned above, the applicant must be informed of the additional
fee and also computation details, date by which payment must be made and
details of the relevant appellate authority to whom the applicant may appeal
against the amount payable. Additional fees may be required for providing copies
of documents, inspection of records at the office and collection of samples.
In case the information is delivered after the mandatory time limit, information
shall be provided free of charge and you may seek a refund of any fee that you
paid.6
13.11 APPEALS
13.11.1 First Appeal
If you do not receive information or are dissatisfied with the information provided
by the PIO, you can file an appeal with the First Appellate Authority within 30
days under Section 19 (1) of the Act. The Appellate Authority for first appeals is
an officer appointed for this purpose by the public authority, or if no such officer
is designated, an officer superior in rank to the PIO. More time, on reasonable
grounds, may be granted for filing the first appeal. The central government has
not prescribed a fee for first appeals till date.
The appeal can be drafted on plain paper. Some states have provided a format
for first appeals, although no format is prescribed by the central government. In
every case, the appeal must contain the following information:
- name/designation and address of the First Appellate Authority;
- name and contact details of the applicant;
- name and designation of the PIO;
- application ID no. and/or fee receipt no. issued by the authority at the time
of applying, if any;
- photocopy of the application form;
- photocopy of the rejection letter or reply, if available;
- detailed ‘grounds of appeal’; and
- the prayers or a list of the demands and requests to the Appellate Authority.
No fresh grounds may be raised at the appeal, unless they are found to be of such
6
Decision No. CIC/AT/A/2005/00004 at www. cic.gov.in/CIC-Orders/CIC_Order_Dtd_
06032006_3.pdf. 53
Access to Justice a nature that would warrant having to look into them.
An appellant has the right to be heard by the Appellate Authority though s/he is not
required to attend such hearings in person.7 In appeal proceedings, the PIO must
prove before the authority that the rejection of the application was justified.
The first appeal should be disposed of within 30 days. This period can be extended
by 15 days, with reasons being recorded for the extension. In the event that no
response is received from the Appellate Authority within the mandatory time
limit, the appeal is deemed to have been rejected.
13.11.2 Second Appeal

If the first appeal is partially or fully dismissed, a second appeal may be preferred
before the State Information Commission (SIC) or the Central Information
Commission (CIC) within 90 days of the order. More time may be provided to
the applicant if the delay was on reasonable grounds. For the purpose of appeal,
the CIC and SIC are parallel bodies and you cannot appeal to the CIC against the
decision of a SIC.
Before arriving at a decision, the Information Commissioner has to first provide

an opportunity of being heard to the designated PIO and then, either accept the
appeal by giving some direction to the authority concerned or reject it outright.
The Information Commission has the power to impose penalties and recommend
disciplinary action against an officer who is found to have, without reasonable
cause, obstructed the application. The Act does not prescribe a time limit for
disposal of appeals by the Information Commission. Generally the CIC comes
to a decision within 90 days of the filing of the appeal before the Commission.
Decisions of the Information Commission are final. No court can accept a case
against any order made by the Information Commission. However, the writ
jurisdiction of the Supreme Court and the High Courts under Articles 32 and
226 of the Constitution remain unaffected.
The Commission may review its own decision on the following grounds;
- where there is a technical error in the decision;
- if there was an omission to consider certain material facts relevant to the
decision;
- if the appellant was not given an opportunity of being heard;
- if the PIO had not enclosed relevant supporting documents in his comments
furnished to the Commission.
13.12 COMPLAINT
An applicant can file a complaint directly to the relevant Information Commission
if his/her request for information is obstructed in any of the following ways:
- the public authority has failed to appoint a PIO/APIO;
- the PIO/APIO refuses to accept or transfer the request for information;
7
Decision No. CIC/AT/A/2006/00040 dated 27.03.2006 at www. cic.gov.in/CIC-Orders/
54 CIC_Order_Dtd_27032006_3.pdf.
- the APIO refuses to transfer an appeal; Right to Information
- the applicant is refused access to any information under the Act;

- the applicant was not given a response within the prescribed time limit;
- the applicant was required to pay a fee which he or she considers unreasonable;
- the applicant was given incomplete, misleading or false information; and
- with respect to any hurdle relating to any other matter relating to obtaining records
and information under the Act.
There is no time limit for filing a complaint with the Information Commission. Unlike an
appeal, a complaint can be filed directly with the Information Commission.
5) What is the duty of the PIO if the request for application by a citizen is
rejected?
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
13.13 SUMMARY
In this unit we have examined the evolution of the right to information in
India, and have analysed the main features of the Right to Information Act,
its applicability, and the procedure for accessing information under the Act.
The aim of the Act is to provide a practical regime for implementing the
right to information in India.
It gives legal recognition to the right to information, and empowers ordinary
citizens with the ability to obtain information from government sources as
a matter of right.
It provides for the procedure to be followed when applying for information
(method of submission and payment of application fees) and the procedure
for disposal of the application by the designated authority.
The Act provides for the establishment of independent Central and State
Information Commissions.
Citizens are provided with a two-tier system of appeal, and the freedom to
complain to the concerned Information Commission in case of any
obstruction to the exercise of their right.
Importantly, the Act provides for stringent penalty provisions for delay or
denial of information or, indeed, for knowingly seeking to mislead an
applicant.
55
Access to Justice
1) What is the Right to Information? How is it used?
2) What is the procedure for accessing information under the Right to Information
Act? Discuss the responsibilities of the PIO and the time frame for dealing with
the application.

1) Any Indian citizen can make use of the RTI Act and the government and every
public authority/body/institution is bound by the Act.
2) ‘Information’ under RTI means any material in the form of records, documents,
electronic forms etc.
3) Exempted information means any information that would prejudicially affect the
sovereignty and integrity of the country or information which is confidential and
its disclosure could erode public trust in the government.
4) The application under RTI Act is addressed to the Public Information Officer
(PIO).
5) The PIO should give reasons in writing for such rejection, particulars of the
appellate authority including his own name and the time period within which
an appeal must be filed.
Terminal Questions
1) Refer to Sections 13.6, 13.7, 13.8.
2) Refer to Section 13.10.
13.17 REFERENCES AND SUGGESTED READING

The Right to Information Act, 2005.
Shalu Nigam, About Your Right to Information (Delhi: We - The People, 2006).
Angela Wadia, Global Sourcebook on Right to Information (Delhi: Kanishka,

2006).
Commonwealth Human Rights Initiative, Your Guide to Using the Right to

Information Act 2005 (Delhi: CHRI, 2006).
Centre for Good Governance, The Right to Information Act, 2005 - A Guide for
Civil Society Organizations (Hyderabad, 2006).
Society for Participatory Research in Asia, Analysis of Judgments of the Central

Information Commission on the Right to Information Act, 2005 (New Delhi:
PRIA, 2007) available on http://www.pria.org.
Web Resources
http://www.cic.gov.in.
56
57
Access to Justice
Ewa Wojkowska, Doing Justice: How informal justice systems can contribute
(UNDP, 2006) available at
Salim, a twelve years old boy is working in a dhaba.
The Code of Criminal Procedure (CrPC) was re-enacted in 1973 with the objective
of providing a fair trial, a speedy trial and a fair deal to the poorer sections. In the new
Cr.P.C., Section 304 which provides for legal aid to the accused before the sessions
court only fails to fulfil these objectives. The Cr.P.C. does not provide for the right to
legal aid in other criminal proceedings or at any of the other stages of the criminal
process. This is a major lacuna which needs to be remedied for the realisation of the
right to equal access to justice as the poor are the invisible victims of the criminal
justice.
58

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Subject 1 Introduction To Indian Legal

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BLE-001 Introduction to the Indian Legal System

BLOCK 1: RULE OF LAW: PRINCIPLES AND CONCERNS

UNIT 1 Rule of Law 5

UNIT 2 Constitutional Values 21

Block 2: RIGHTS AND DUTIES

UNIT 4 Fundamental Rights 5

UNIT 5 Directive Principles of State Policy and Fundamental Duties 26

UNIT 6 Constitutional Remedies 41

Block 3: INSTITUTIONAL MECHANISMS

UNIT 7 Legislature and Executive 5

UNIT 8 Justice Delivery System 23

UNIT 9 Human Rights Protection Mechanisms 38

BLOCK 4: ACCESS TO JUSTICE

UNIT 10 Legal Aid 5

UNIT 11 Public Interest Litigation 17

UNIT 12 Informal Dispute Resolution Mechanisms 30

UNIT 13 Right to Information 43

Block Preparation Team

Unit Writers : Units 1 and 2 : Prof. M.R.K. Prasad

Get yourself a copy of the Constitution and let us get started.

Therefore, Rule of Law is a fundamental value on which rests any democratic

1.3 DICEY’S THESIS ON RULE OF LAW

Absence of Arbitrary Equality before Law Predominance of Legal

It is not possible for any government to function effectively unless government

1.3.2 Equality before the Law

1.3.3 Supremacy of Law

In a welfare state, the Government has countless functions to perform. To mention

Statement 1: Administrative law deals with giving of powers, that too

Statement 2: Wherever there is discretion, there is scope for arbitrariness.

Statement 3: Rule of law is against arbitrariness.

Inference (Dicey’s): Administrative Law is opposed to Rule of Law.

Moreover, as Dicey thought, absence of arbitrary power need not necessarily

As discussed, the scheme of the Constitution of India is based on the concept of

The concept of Rule of Law is often invoked to challenge unreasonable

Further, Rule of Law would be strengthened if the Executive were to be required

1.8 TERMINAL QUESTIONS

1.9 ANSWERS AND HINTS

1.11 REFERENCES AND SUGGESTED READINGS

M.P.Jain and S.N.Jain, Principles of Administrative Law (Lucknow: Eastern Book

2.3 MEANING OF CONSTITUTION

Legislature Executive Judiciary

2.4 CONSTITUTIONAL VALUES

2.4.1 Sovereignty of the People

2.4.2 Separation of Powers

Indirect Democracy: Whereas, in an indirect democracy, people first elect

The Indian Constitution establishes a Parliamentary form of government. The

2.4.8 Justice, Liberty, Equality and Fraternity

Similarly, Articles 256 to 263 embody Administrative relations between Union

2.4.10 Independent Judiciary

2.4.11 Fundamental Rights

Originally, the Constitution of India recognised seven fundamental rights. But

2.4.12 Directive Principles of State Policy

2.6 TERMINAL QUESTIONS

Separation of Powers : The Legislature is empowered to make law, the

Republic : The head of the State is an elected representative

Socialist : The State strives towards achieving economic

Secularism : Absence of a State religion

2.9 REFERENCES AND SUGGESTED READINGS

Granville Austin, Working a Democratic Constitution: The Indian Experience

Mahendra P. Singh ed, V.N. Shukla’s Constitution of India (Lucknow: Eastern

It seems a little strange to start a discussion on democracy in this way, does it

3.3 WHAT IS DEMOCRACY?

Democracy is a form of government that allows people to choose their rules. In