Constitutional Law 1 HHT

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CONSTITUTIONAL LAW-1
1. Nature of the Indian Constitution. Special emphasis shall be placed on Pg. 7
(a). Federal Structure and Pg. 12
(b). Form of the Government.
2. Preamble of the Constitution. Pg. 16
3. Fundamental Rights – Pg. 5
(a). General : Scheme of Fundamental Rights, Who can claim Fundamental Rights : Pg. 27
Against whom Fundamental Rights are available? Suspension of Fundamental
Rights.
(b). Specific Fundamental Rights-

 Right to Equality (Articles 14 to 18) Pg. 42
 Right to Freedom of Speech and Expression (Article 19(1)(a)) Pg. 57
 Protection in respect of Conviction for offences (Article 20) Pg. 65
 Right to Life and Personal Liberty (Article 21) Pg. 75
 Right to Education (Article 21A) Pg. 81
 Protection Against Arrest And Detention Pg. 84
 Right against Exploitation (Articles 23 to 24) Pg. 92
 Right to Freedom of Religion (Articles 25 to 28) Pg. 95
 Cultural and Educational Rights of Minorities (Articles 29 to 30) Pg. 102
 Right to Constitutional Remedies (Article 32) Pg. 108
5. Directive Principles of State Policy, their importance and relationship with Fundamental
Rights. Pg. 114
6. Fundamental Duties. Pg. 123
Designed and Compiled by Mr. Lakshay Jindal [President, Human Hands Together]
An NGO working in the field of Human Rights and Legal Education.
HumanHandsTogether.com 2
Unit 0
INTRODUCTION
0.1 CONCEPT OF CONSTITUTIONAL LAW
Modern States have to carry out various functions and activities, concerning its members so, it
becomes necessary for any State to establish certain basic organs or agents which act on its
behalf through which the State can function and operate. All the people in the State cannot
combine and operate all together to achieve the desired goal of the State, thus certain
fundamental organs become necessary to establish. There arises the need for Constitutional Law.
0.2 CONSTITUTION
A Constitution is basic document of governance, administrating, and functioning.
0.2.1 History:
United States is the first of all States to have its own Constitution, rather written Constitution,
adopted in 1776. Based on the principles of Human Rights, the U.S. Constitution becomes of the
landmark document after the Magna Carta and other various Bill of Rights.
0.2.2 Meaning of Constitution:
 Regulates the behavior of Society.
 Regulates the behavior of Government.
 Basic principles of governance.
 Supreme Law of the Land.
0.2.3 Supreme Court Defines Constitution as

“A Constitution is the documentation of the rounding faiths of a nation and the fundamental directions for
their fulfillment.” 1
0.2.4 A Constitution is a set of rules that
i. Seeks to establish the duties, powers and functions of the various institutions of
government.
ii. Regulate the relationship between and among the States.
iii. Defines the relationship between the State and the Individual; i.e. defines the
extent of civil liberty.
0.3 CONSTITUTIONALISM
Besides the concept of Constitution, an important concept is “Constitutionalism”. The idea of
Constitutionalism is not new as it is deeply embedded in human thought. The Magna Carta
(1215) strengthened the traditional view that law is supreme.
0.3.1 Definition and Meaning:
1
Fateh Chand v. State of Maharashtra AIR 1977 S.C. 1824.
Constitutionalism is a political philosophy based on the idea that government authority is derived
from the people and should be limited by a constitution that clearly expresses what the
government can and can't do. It's the idea that the state is not free to do anything it wants, but is
bound by laws limited its authority.
0.4 CONSTITUTION AND CONSTITUTIONALISM
0.4.1 Difference:
The underlying different between the two concepts, Constitution and Constitutionalism, is that a
Constitution confer power on the various organs of the government and also seeks to restrain
those powers. And “Constitutionalism” envisages checks and balances and putting the powers of
the legislature and the executive under some restrains and not making them uncontrolled and
arbitrary.
Example:
A country with a dictatorship, where the dictator’s word is law, can be said to have a
‘Constitution’ but not ‘Constitutionalism’.
0.4.2 Principles and norms that promote Constitutionalism:
 A written document.
 An independent judiciary with power of judicial review.
 The doctrine of rule and law.
 Separation of powers.
 Free elections to legislature.
 Accountable and transparent democratic government.
 Fundamental Rights of the people.
 Federalism.
 Decentralization of powers.
0.4.3 INDIAN CONTEXT
Indian Constitution:
India adopted Constitution on 26th November 1949. Originally it contained 395 Articles, but with
almost 101 amendments in 67 years, the document has 449 Articles that are divided into 22
different parts. However it enacted on 26th January 1950, but Articles 5, 6, 7, 8, 9, 60, 324, 366,
367, 379, 380, 388, 391, 392, 393 and 394 came into force on 26th November 1949 itself.
Constitutionalism in India:
India is a democratic country with a written Constitution. Rule of Law is the basis for
governance of the country and all the administrative structures are expected to follow it in both
letter and spirit. It is expected that Constitutionalism is a natural corollary to governance in India.
But the experience with the process of governance in India in the last six decades is a mixed one.
On the one hand, we have excellent administrative structures put in place to oversee even the
minutest of details related to welfare maximization but crucially on the other it has only resulted
in excessive bureaucratization and eventual alienation of the rulers from the ruled. Since
independence, those regions which were backward remained the same, the gap between the rich
and poor has widened, people at the bottom level of the pyramid remained at the periphery of
developmental process, bureaucracy retained colonial characters and overall development
remained much below the expectations of the people.
0.4.4 CASE LAWS

R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861.
In this case, the Supreme Court viewed, “The principle of constitutionalism is now a legal
principle which requires control over the exercise of Governmental power to ensure that it does
not destroy the democratic principles upon which it is based. These democratic principles include
the protection of fundamental rights. The principle of constitutionalism advocates a check and
balance model of the separation of powers, it requires a diffusion of powers, necessitating
different independent centers of decision making. The protection of fundamental constitutional
rights through the common law is main feature of common law constitutionalism.”
Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1.
The apext court observed, “The constitutionalism or constitutional system of Government abhors
absolutism - it is premised on the Rule of Law in which subjective satisfaction is substituted by
objectivity provided by the provisions of the Constitution itself.”
0.4.5 CONCLUSION
In International law, A State is defined as an independent political entity, occupying a definite
territory, the members of which are united together for the purpose of resisting external force and
preserving internal order. But modern States today extends its functions, in order to become
social welfare State. Constitution along with Constitutionalism lay down the establishment,
functions, powers and relation of these organs along with checking, balancing and putting the
powers of these organs under some restrains and not making them uncontrolled and arbitrary.
0.5 INDIAN CONSTITUTION
The Constitution of a country regulates the behavior of the society and government. It is the
basic document of governance, administrating, and functioning. It is a set of rules that seeks to
establish the duties, powers and functions of the various institutions of government; regulates the
relationship between and among the States; defines the relationship between the State and the
Individual; i.e. defines the extent of civil liberty. Implementation of social and economical rights
is the prime objective of the Constitution.
The Indian Constitution is the lengthiest written Constitution in the world. When human rights
are protected and guaranteed by a written constitution they are known as “Fundamental Rights”
because a written constitution is the fundamental law of the state. The Indian Constitution
makers took inspiration from various other Constitutions while drafting the one for their country,
which is why the Indian Constitution is often called a bag of borrowings. The scheme of
fundamental rights in the Constitution is borrowed from the United States of America.
FUNDAMETAL RIGHTS
The Fundamental Rights are considered as one of the integral part of Indian Constitution. The
Fundamental Rights are defined as the basic human freedoms which every individual has a right
to enjoy for a proper and harmonious development of personality. Although many rights are
considered as human rights, a specific legal test is used by the courts to determine the limitations
which can be imposed on them.
Chief Justice Patanjali Shastri has referred to fundamental right as “those great and basic right
which are recognized and guaranteed as the natural right inherent in the status of a citizen of a
free country”. Chief Justice Subha Rao states that “fundamental rights are the modern name for
what has been traditionally known as natural right”.2
Fundamental Rights constitute the backbone of the nation. These rights are very essential to
safeguard the interests of the people. The inclusion of Fundamental Rights in the constitution
also enables the people to participate in the political affairs of the state. These Rights are not
absolute and subsequently are subject to reasonable restrictions subject to the judicial review.
They strike a balance between individual liberty and social security. Some of the Fundamental
rights are for the Indian Citizen only but some of them can be enjoyed by both the citizens and
the aliens. Fundamental Rights can be amended but they cannot be abrogated. The abrogation of
these rights will violate the basic structure of the Constitution. Fundamental Rights are both
positive and negative. The negative rights prevent the state from doing certain things. Article 15
prevents the state from making discrimination. Some Fundamental Rights are available against
the state. Some rights are available against individuals. The Fundamental Rights are justifiable.
A citizen may approach the court of law when his fundamental rights are violated.
Some Fundamental rights may not be available to personnel serving in the defense forces. They
cannot enjoy all the fundamental rights. The fundamental rights are social and political in
character. No economic rights have been guaranteed to the citizens of India although without
them the other rights are of little or of no significance.
Article 13(2) states that the State shall not make any law which takes away or abridges the rights
conferred by Part III and any law made in contravention of the clause shall, to the extent of the
contravention, be void. It means that whenever the state restricts fundamental rights by
legislation, the courts have the authority to examine whether the limitations imposed are
“reasonable or not.” The courts are free to strike down any law imposing unreasonable restriction
on the enjoyment of fundamental rights. The courts in India enjoy a limited degree of judicial
review with respect to fundamental rights.
Among the 12 parts of the Indian Constitution, Part III enlists the Fundamental Rights and this
chapter is called as the Magna Carta of the Indian Constitution. These rights are enshrined in
Articles 12-35 of the Constitution.
The Indian constitution originally provided seven categories of fundamental rights. But one
fundamental right, that to property was removed from the list of fundamental rights by 44th
amendment in 1976. Right to property now is an ordinary legal right under article 300A which
2
Golak Nath v. State of Punjab A.I.R. 1967 S.C. 1643 at para.16.
states that “No person can be deprived of his property except by authority of law”. Article 32A
added in the Constitution, which states “Constitutional validity of State laws not to be considered
in proceedings under article 32”, in 1976 as 42nd amendment had been repealed next year with
the following amendment. Thus there are now six categories of fundamental rights. These are:
i. Right to Equality [Article 14-18]
ii. Right to Freedom [Article 19-22]
iii. Right against Exploitation [Article 23-24]
iv. Right to Religion [Article 25-28]
v. Cultural and Education Rights [Article 29-30]
vi. Right to Constitutional Remedies [Article 32]
UNIT 1
NATURE OF THE INDIAN CONSTITUTION.
1.1 SALIENT FEATURES OF THE CONSTITUTION

The Constitution of India is unique in many ways. It has several special features that distinguish
it from other Constitutions of the world. The framers of the Constitution of India did not aim at a
completely new or original Constitution. They just wanted to produce "a good and workable"
Constitution. And they succeeded doing this. The fact that the Constitution, for last 59 years, has
been working satisfactorily is a testimony to its quality and utility.
1.1.1 Size of the Constitution

It is the lengthiest Constitution ever given to any nation. It is a very comprehensive document
and includes many matters which could legitimately be the subject matters of ordinary legislation
or administrative action. This happened because the government of India act, 1935, which was
after all basically a statute, was used as a model and an initial working draft and large portions of
it got reproduced in the Constitution. The size, complexities and the diversities of the Indian
situation also necessitated several special, temporary, transitional and miscellaneous provisions
for certain regions of the country or classes of people.
The Constitution became lengthy mainly due to the following factors.

(a) The Constitutional fathers wanted to put everything in great detail.
(b) In other federations, there are two Constitutions: one for the federation and the other for
the states. In India, the states do not have separate Constitutions. The powers of states along
with the powers of the federation i.e. the Union, have been stated in one Constitution.
(c) The Government of India Act, 1935 was in operation when India got independence. Our
leaders were familiar with this Act. They borrowed heavily from this lengthy Act while
framing our Constitution.
(d) India is a country of great diversity. It is a country of several minorities; it has many
languages, castes, races and religions. The problems and interests of these different groups
have found place in one Constitution leading it to be a long document.
(e) Good features of other Constitutions have been included, with necessary modifications, in
our Constitution. For example, we have brought the 'bill of rights' from the American
Constitution, parliamentary system of government from the British Constitution and
Directive Principles of State Policy from the Irish Constitution.
While including these elements of other Constitutions in our Constitution Dr. B.R. Ambedkar
said the framers of our Constitution tried to remove their faults and suit them to our
conditions.
1.1.2 Types of Constitution

Written or unwritten: Constitutions may be written like the U.S. Constitution or unwritten and
based on conventions like the British. Indian Constitution is written even though conventions
also play a part insofar as they are in keeping with the provisions of the Constitution. It originally
contained 395 articles and 8 schedules. It presently contains 395 articles (total number-444)
divided into 22 parts and 12 schedules.
Rigid or flexible: Constitutions may be called rigid or flexible on the ground of the amending
procedure being difficult or easy. Federal Constitutions are usually classified as rigid because of
their difficult amending processes.
Indian Constitution may be said to be a combination of rigid and flexible inasmuch as certain
provisions of the Constitution can be amended like ordinary legislation by simple majority in the
houses of parliament, other provisions can be amended by a special majority.
Indian Constitution: whether federal or unitary?
1.1.3 Parliamentary or presidential system of government

India is a republic (i.e. the supreme power rests in all the citizens entitled to vote- the electorate,
and is exercised by representatives elected, directly or indirectly, by them and responsible to
them) and the head is the president in whom all the executives power vests and in whose name it
is to be exercised. He is also the supreme commander of the armed forces. However, unlike the
U.S. president, Indian president is only a nominal or Constitutional head of the executive; he acts
only with the aid and advice of the real political executive which is the council of ministers. the
ministers are collectively responsible to the popular house of parliament i.e. the Lok Sabha.
1.1.4 Parliamentary Sovereignty verses Judicial Supremacy

in India, the Constitution has arrived at a compromise between the British sovereignty of
parliament and American judicial supremacy. we are governed by the rule of law and judicial
review of administrative action is an essential part of rule of law. thus, courts can determine not
only the Constitutionality of the law but also the procedural part of administrative action (State
of Bihar verses Subhash Singh). But, since we have a written Constitution and the powers and
functions of every organ are defined and delimited by the Constitution, there is no question of
any organ - not even parliament - being sovereign. both parliament and the supreme court are
supreme in their respective spheres. While the supreme court may declare a law passed by
parliament ultra vires as being violative of the Constitution, parliament may within certain
restrictions amend most parts of the Constitution.
1.1.5 Adult Franchise
Dr. Ambedkar said in the constituent assembly that by parliamentary democracy we mean 'one
man, one vote'. Almost as an act of faith, the founding fathers decided to opt for 'universal adult
suffrage' with every adult Indian without any distinction at once having equal voting rights. this
was particularly remarkable in the context of the vast poverty and illiteracy of the Indian
populace.
1.1.6 Secular state

India has been declared secular state because of its policy of non-discrimination towards any
religion. all religions are held equally in high esteem by the state and there is no state religion
(unlike a theocratic state) or a preference for a particular religion.
1.1.7 Charter of fundamental rights

By and large, the fundamental rights incorporated in part iii of the Constitution are the inviolable
rights of the individual against the state/any law or executive action depriving an individual
citizen of his freedom, for example, can be challenged in the Supreme Court or high court. the
Constitution also lays down the machinery and mechanism for the enforcement of these rights. in
the U.S. Constitution, the fundamental rights were expressed in absolute terms. but there can be
no absolute individual rights. for, the rights of each individual are limited at least by similar
rights of other individuals. the supreme court of the united states had to find out and identify the
legitimate restrictions on fundamental rights. our founding fathers, however, decided to
incorporate the restrictions within the relevant provisions themselves.
1.1.8 Directive principles

The directive principles of state policy inspired by the irish precedent, are a unique feature of our
Constitution. most of the socio-economic rights of the people have been included under this
head. Even though said to be not enforceable in courts of law, these principles are expected to
guide the governance of the country. they are in the nature of ideals set by the founding fathers
before the state and all the organs of the state must strive to achieve them. in recent years, the
directive principles have increasingly assumed greater relevance and importance not only for the
legislatures but also in the eyes of the courts.
1.1.9 Fundamental Duties

The 42nd amendment to the Constitution inter alia added a new part to the Constitution under the
head fundamental duties. it lays down a code often duties for all the citizens of India. Inasmuch
as there can be no rights without corresponding duties and rights of citizens have no meaning
without respect for political obligations of the citizens towards the state, it is unfortunate that the
code of fundamental duties of the citizens has not so far been accorded the importance it
deserves.
1.1.10 Citizenship
In keeping with their aim of building an integrated Indian fraternity and a united nation, the
founding fathers provided for 'one single citizenship' despite the federal structure. in federal
states like USA and Switzerland, there is a dual citizenship, viz., the federal or national
citizenship and the citizenship of the state where a person is born or permanently resides. unlike
the U.S., there was to be no separate citizenship of the union and of the states and all citizens
were entitled to same rights all over the country without any discrimination subject to a few
special protections in case of the state of Jammu and Kashmir, tribal areas etc. (the Constitution
of Jammu & Kashmir provides for citizenship of the state).
The population is divided into two classes: citizens and non-citizens. Non-citizens or aliens do
not enjoy all rights granted by the Constitution. Indian citizens exclusively possess the following
rights:
(1) Some of the fundamental rights viz. articles 15, 16, 19, 29 and 30.
(2) Only citizens are eligible for offices such as those of the president [article. 58]; vice president
[article. 66]; judge of the Supreme Court [article. 124] or a high court [article. 217]; attorney
general [article. 76]; governor [article. 157].
(3) The right to vote [article. 326]; the right to become a Member of Parliament [art. 84] and
state legislature [article. 191].
It may be noted that the rights guaranteed by articles. 14 and 21 are available to aliens also. The
enemy aliens, however, suffer from a special handicap. they are not entitled to the benefit of
article. 22.
The Constitution does not lay down a permanent or comprehensive provision relating to
citizenship in India. part 2 of the Constitution simply describes classes of person who would be
deemed to be the citizen of India at the commencement of the Constitution, the 26th january
1950. The Parliament, under article. 11, has enacted the Indian citizenship act, 1955, which
provides for the acquisition and termination of citizenship subsequent to the commencement of
the Constitution.
1.1.11 Independent Judiciary

the Constitution of India establishes an independent judiciary with powers of judicial review. the
high courts and the supreme court from a single integrated judicial structure with jurisdiction
over all laws - union, state, civil, criminal or Constitutional. unlike the U.S., we do not have
separate federal and state court systems. the entire judiciary is one hierarchy of courts. it not only
adjudicates disputes and acts as the custodian of individual rights and freedoms but also may
from time to time need to interpret the Constitution and review legislation to determine its vires
vis-a-vis the Constitution.
1.1.12 Union and its territories
The Constitution of India does not protect territorial integrity of states. part 1 of the Constitution
comprising articles. 1 to 4 provides a self-contained mechanism for effecting changes in the
Constitution of states or union territories of the union of India. there are at present 28 states and 7
union territories in the union of India.
1.1.13 Special status of Jammu and Kashmir

By virtue of article. 370 of the Constitution, the state of Jammu & Kashmir enjoys a special
status within the Indian union. it is the only state possessing a separate Constitution which came
into force on 26th January, 1957. however, it is included in the list of states in the first schedule
of the Constitution of India. the jurisdiction of parliament is limited to matters in the union list
and only some matters in the concurrent list. the provisions of Indian Constitution did not
automatically apply to Jammu and kashmir. they were gradually made applicable (some in
modified form) under article. 370. art. 370 was incorporated in the Constitution in pursuance of
the commitment made by Pandit Jawaharlal Nehru to maharaja Hari Singh in October 1947 at
the time of signing the instrument of accession of Jammu and Kashmir to India.
Article 370(1) stipulates, "notwithstanding anything in this Constitution-
(a) the provision of article 238 in part 7 (which was subsequently omitted from the Constitution
by the 7th amendment in 1956) shall not apply in relation to the state of Jammu and Kashmir;
(b) the power of parliament to make laws for the said state shall be limited to those matters in the
union list and the concurrent list which, in consultation with the government of the state, are
declared by the president to correspond to matters specified in the instrument of accession
governing the accession of the state to the dominion of India as the matters with respect to which
the dominion legislature may make law for that state; and such other matters in the said lists, as
with the concurrence of the government of the state, the president may by order specify;
(c) The provisions of article 1 of this Constitution shall apply in relation to that state;
(d) Such other provisions of this Constitution shall apply in relation to that state subject to such
exceptions and modifications as the president may by order specify."
1.1.14 Panchayati Raj and Nagar Palika Institutions [Three Tier Government]
The Constitution 73rd amendment act, 1992 and the 74th amendment act, 1992 have added new
parts 9 and 9A to the Constitution. Under these two parts, 34 new articles (243 to 243-zg) and
two new schedules (11 and 12) have been added. These amendments do not apply to the states of
Meghalaya, Mizoram, Nagaland and j & k, union territory of Delhi, hill areas in Manipur and
Darjeeling in west Bengal. Also, these do not apply unless extended to scheduled areas and tribal
areas under article 244.
FEDERAL STRUCTUTE OF INDIAN CONSTITUTION
Essential features of federalism
A federal Constitution usually has the following essential characteristics:-
(1) duality of government and distribution of powers — the basis of distribution of powers
between central and state governments is that in matters of national importance, authority is
entrusted in the union, and matters of local importance remain with the states.
Example of federal Constitution
The American federation can be described as the outcome of the process of evolution, in that, the
separate states first formed into a confederation (1781) and then into a federation (1789).
Although the states may have their own Constitutions, the federal Constitution is the suprema lex
and is made binding on the states. That is because under the American Constitution, amendments
to the Constitution are required to be ratified by three-fourths of the states.
Besides under that Constitution there is a single legislative list enumerating the powers of the
union and, therefore, automatically the other subjects are left to the states. This is evident from
the tenth amendment. of course, the responsibility to protect the states against invasion is of the
federal government. the states are, therefore, prohibited from entering into any treaty, alliance,
etc., with any foreign power.
The principle of dual sovereignty is carried in the judicial set-up as well since disputes under
federal laws are to be adjudicated by federal courts, while those under state laws are to be
adjudicated by state courts, subject of course to an appeal to the supreme court of the united
states. The interpretation of the Constitution is by the united states supreme court.
Indian Constitution: federal or quasi-federal
The Indian federalism was designed on the basis of the working of the federalism in USA,
Canada and Australia. Yet it deviates from those federalism in many respects and establishes its
own distinctive features. There is a difference of opinion among scholars about the nature of
Indian Constitution — whether it is federal or not.
Federal characteristics of Indian Constitution
there is a dual polity i.e. central and state governments. There is a supreme Constitution. Our
Constitution is a written and controlled (rigid) Constitution. It can be amended only to the extent
of and in accordance with the provisions contained therein, the principal provision being article
368. Further, the Constitution establishes an apex court in the form of the Supreme Court to
maintain the authority of the courts.
the Constitution does incorporate the concept of federalism in various provisions. the provisions
which establish the essence of federalism i.e. having states and a centre, with a division of
functions between them with sanction of the Constitution include, among others, lists 2and 3 of
the seventh schedule that give plenary powers to the state legislatures; the authority to parliament
to legislate in a field covered by the states under article 252, only with the consent of two or
more states; the competence of parliament to legislate in matters pertaining to the state list, only
for a limited period, under article 249, "in the national interest", and, under article 258 (1) to
entrust a state government (with the governor's consent) functions in relation to which executive
power of the union extends; decentralization of power through 73rd and 74th amendments; etc.
(Kuldip Nayar v. UOI ).
Deviations from federal characteristics: unitary features of Indian Constitution
In the following matters, it is pointed out, the Indian Constitution modifies the strict application
of the federal principle:-
(1) Legislative relations - under the art. 249, parliament is empowered to make laws with respect
to every matter enumerated in the state list, if it is necessary in the national interest. similarly,
legislation for giving effect to international agreements (article. 253). in case of inconsistency
between the laws made by parliament and laws made by legislature of states, the laws made by
parliament whether passed before or after the state law in matters enumerated in concurrent list,
to the extent of repugnancy prevail over the state law. in case of an overlapping between the
matters of three lists i.e. union, state and concurrent list, predominance has been given to the
union (article. 246). previous sanction of the president is required for introduction of certain bills
in the state legislatures (viz. art. 304).
(2) Administrative or executive relations - all planning is at the union level (via planning
commission), the States only implement the plans formulated by the union. further, there is all-
India services.
The executive power of every state has to be exercised as to ensure compliance with the laws
made by parliament. Article 365 authorizes the president to hold that a situation has arisen in
which government of a state cannot be carried on in accordance with the provisions of
Constitution, if the state fails to comply with or give effect to any directions given in exercise of
the executive power of the union.
(3) Financial relations - the states depend largely upon financial assistance from the union
(through grants-in-aids). power of taxation (which is exercisable by the states in comparatively
minor fields, the more important such as income-tax, wealth-tax, excise-duties other than those
on certain specified articles and customs, being reserved to the union) conferred by various
entries under list ii on the states is also severely restricted.
(4) Parliament's power to form new states and alter boundaries of existing states - the very
existence of the state thus, under article. 3, depends upon the sweet will of union.
(5) Appointment of governors - the governors of states are appointed by president and
answerable to him. they hold the office at the pleasure of the president. they thus act in a manner
suitable to the president even at the cost of the interest of the states of which they are governors.
there are provisions in Constitution under which the governor is required to send certain state
laws for the assent of president and the president is not bound to give his assent.
(6) Emergency provisions - under emergency, the normal distribution of powers between the
centre and states undergo a vital change (in the favour of the centre). under article. 356, the state
legislature can be dissolved and president's rule can be imposed either on the governor's report or
otherwise when there is a failure of the Constitutional machinery in a state.
(7) Single and uniform citizenship - for the whole country.
(8) Uniform and integrated judicial system - for the whole country.
(9) Inter-state council - if at any time it appears to the president that the public interests would
be served by the establishment of a council charged with the duty of- (a) inquiring into and
advising upon disputes which may have arisen between states; (b) investigating and discussing
subjects in which some or all of the states, or the union and one or more of the states, have a
common interest; or (c) making recommendations upon any such subject and, in particular,
recommendations for the better co-ordination of policy and action with respect to that subject, it
shall be lawful for the president to establish such a council, and to define the nature of the duties
to be performed by it and its organization and procedure (article. 263).
(10) Freedom of trade and commerce — for the whole country. The comprehensive provisions
of part 13 seek to make India a single economic unit for purposes of trade and commerce under
the overall control of the union parliament and the union executive.
Thus, in certain circumstances, the Constitution empowers the centre to interfere in the state
matters and thus places the states in a subordinate position or converts the union into a unitary
state, which violates the federal principle. The similar views were expressed in State Of W.B. V.
Union Of India case.
Criticism of Wheare's views
The term "quasi-federal" as suggested by Wheare is very vague as it does not denote how
powerful the centre is, how much deviation there is from the pure 'federal model', etc. it may be
that centre has been assigned a larger role than the states but that by itself does not detract from
the federal nature of Constitution, for it is not the essence of federalism to say that only so much,
and not more power, is to be given to the centre.
The federalism varies from place to place, and from time to time depending on factors like -
historical, geographical, economical and political. Indian Constitution is sufficiently federal, and
it is no less federal than american federalism. the framers of Indian Constitution kept in view the
practical needs of country designed on federal structure not on the footing that it should conform
to some theoretical or standard pattern, but on the basis that it should be able to subserve the
need of the vast and diverse country like india.
Conclusions: Indian federalism is 'unique'
India adopted a federal structure as the different parts of the country were at different stages of
development and it would have been difficult to control from one centre; and to ensure
minorities their due place.
However, the Indian federalism is unique because of its mode of formation i.e. from union to
states (creation of autonomous units and then combining them into a federation), and not vice
versa. it is to be noted that term 'union of states' (article. 1) and not 'federation' is used in the
Constitution. Also, the units have no right to secede (as in a confederation).
The Constitution of India is neither purely federal nor purely unitary, but is a combination of
both. it is a union of composite states of a novel type. Neither the parliament not the state
legislation is 'sovereign' because each being limited by the Constitutional provisions affecting the
distribution of powers. The Constitution enshrines the principle that in spite of federalism, the
national interest ought to be paramount. Thus, the Indian Constitution is mainly federal with
unique safeguards for enforcing national unity and growth.
The scope of application of federal principle in India is shown by the scope of state legislatures.
however, Indian federation is not defective; the defect is political because there is a conflict
between opposition-party ruled states and the central government. Also, federalism is not dead in
India, as evidenced by the fact that new regions are demanding statehood and union has yielded,
thus states like Manipur, Tripura, Goa, etc. have been created. Moreover, in spite of conflicts, the
opposition-party ruled states do exist.
UNIT 2
PREAMBLE OF THE CONSTITUTION

Introduction
The Preamble describes the source, nature, ideology, goals and objectives of the Constitution.
The Constitution declares India to be a Sovereign, Socialist, Secular, Democratic, Republic. The
words, 'Socialist' and 'secular' were added in the Preamble of the Constitution by 42nd
amendment which was passed in 1976.
It underlines the national objective of social justice economic justice and political justice as well
as fraternity. It emphasises the dignity of the individual and the unity and integrity of the nation.
PURPOSE OF PREAMBLE
Preamble basically is a declaration of-
 the source of the Constitution,

 the statement of it’s objectives,
 the date of it’s adoption and enactment.
 Preamble begins with a short statement of it’s basic values and it contains the philosophy on
which our Constitution is built.
 It is just like an introduction or preface of a book.
 Preamble actually embodies the spirit of the Constitution.
 It is a key to the minds of the draftsmen.
 It is also the soul of the Constitution.
“We, The People of India…”

 This phrase simply indicates that it’s we people, the people of India who are the source of
authority behind the Constitution.
 This also has an implication that the Constitution has been drawn up and enacted by the
people through their representatives, and not just handed down to them by a king or any
outside powers.
“..having solemnly resolved to constitute India..”

 i.e. to say that by declaring such a phrase we have actually abide ourselves in it’s true spirits
to follow and give full effect to the policies and principles laid down in the Constitution.
“sovereign”
 This indicates that India is a sovereign, a nation free from any external control or
interference i.e. no external power can dictate the government of India.
 Here, the political sovereignty lies in “We, the people..” and the legal sovereignty lies in the
Constitution of India.
 The word “Sovereign” emphasizes that India is no more dependent upon any outside
authority.
It’s membership of that Commonwealth of Nations and that of the United Nations Organization do
not restrict her sovereignty
“socialist”
The word “socialist” was not there in the original draft of the Constitution. This has been
incorporated in the Preamble by the 42nd Constitutional Amendment, 1976.
This is also reflected in the words “..economic justice..” in the preamble. In a democracy, socialism
simply refers to a system of government in which the means of productions are wholly or partly
controlled by the State.
In D.S. Nakara v. Union of India (UoI), the Supreme Court has observed that the basic framework
of socialism is to provide a decent standard of living to the people and specially provide basic social
security from cradle to grave. Therefore, it clearly marks the economic equality and equitable
distribution of income {Art. 39(b) and (c)}
“secular”
The word “secular” also was not there in the original draft of the Constitution. This has also been
incorporated in the Preamble by the 42nd Constitutional Amendment, 1976.
It simply indicates that the State does not recognize any religion as its own religion and thus, treats
all religions equally. It’s a status of being neither pro-religion nor anti-religion. Art. 25 to 39
In a secular State, the State regulates the relationship between man and man and it is actually not
concerned with the relation of man with God.
“democratic”
This is based on the legal status of “Damus Cratus” which means rule of people i.e. where the
Government gets its authority from the will of the people. The rulers are elected by the people and
are responsible to them.
There is a famous definition of democracy as given by Abrahim Lincoln that “democracy is by the
people, of the people and for the people.”
This simply means that the government of our country is carried on by the people of the State
through their representatives and the executive head of the State i.e. the President of India is an
elected representative of the People (and not a hereditary monarch as like King of England). In
India, President is elected by the people although he is elected indirectly.
“republic”
This indicates the form of Government in which the Head of State will be an elected person and not
a monarch like the King or the Queen in England. Such elected Head will be the Chief Executive
Head. This has an implication that India does not follow a system in which head of the State is a
hereditary monarch.
 This concept of being republic is taken from France.
 India became a republic on 26th Jan,1950.
“..and to secure to all its citizens..”

This is a declaratory statement wherein the ultimate objective of the Constitution lies.
“..justice, social economic and political..”

Here, Constitution aims at achieving three-fold justice. It’s simply about the attainment of common
good and that the people cannot be discriminated on the basis of caste, religion or gender or so and
that the government or the State should work for the welfare of the people as a whole irrespective of
their social status.
 Economic justice can be and ought to be ensured by rational policy making and it’s proper
implementation. Socio-economic justice has been ensured by provision such as Art. 38 and
39.
 Political justice is ensured by way of the right of adult franchise i.e. exercise of right to
vote as soon as a citizen attains the age of 18 years.
 Social justice actually requires the abolition of all sorts of inequities which result from
inequalities of wealth, opportunity, race, caste and religion. Art. 14 to Art.18 makes the
provision of equality of status and opportunity.
The concept of social justice thus enables the legislature to enact and the Courts to uphold such
legislations-
a) to protect the interests of the weaker sections;

b) to remove economic inequalities;
c) to provide a decent standard of living to the people of the country.
“..fraternity, assuring the dignity of the individual and the unity and integrity of the Nation..”
“Fraternity” means the spirit of brotherhood. Simply put it’s that all of us should behave as if we
are members of the same family and no one should treat any other person as inferior owing to any
factor.
India being a multilingual and multi-religious State, the unity and integrity can be preserved only
through a spirit of brotherhood that pervades the entire country, among all its citizens, irrespective
of their differences.
Indian Constitution provides for a single citizenship. All citizens have been given the right to move
freely throughout the territory of India and to reside and settle in any part of the territory of India.
[Art.19(1)(d) and Art.19(1)(e)]
“..In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
This is a declaratory statement about the adopting, enacting the Constitution.
Art. 394 and some other Articles such as Art. 5, 6, 7, 8, 9, 60, 324, 366, 379, 380, 388, 391, 392
and 393 came into force on 26th Nov.,1949 (celebrated as Lawyer’s day)
The remaining provisions of this Constitution came into force later on 26th January,1950 which
day is referred to as the day of commencement of this Constitution (As also celebrated as the
Republic Day)
PREAMBLE - as a part of the Constitution

Preamble forms the part of Indian Constitution. This feature of the preamble of the Indian
Constitution was not brought to the notice of the Supreme Court in Berubari Union (1), re, where
it observed that “the preamble is not part of the Constitution”
 In Re Berubari Case {AIR 1960 SC 845}

The Supreme Court held that preamble is not a part of the Constitution as it does not create any
substantive rights or obligations or powers.
It cannot be a source of powers or restrictions on such powers. Further held that preamble is just
an important tool for the interpretation of the Constitution.
Later when the constituent history of the Preamble was brought to the notice of the Supreme Court
in Keshwanand Bharti Case; it was held that “Preamble is part of the Constitution”
 In Keshwanand Bharti’s case {AIR 1973 SC 1461}

It was held that preamble of the Constitution cannot be compared to the preamble of any other
statute. It was also held that the objectives stated in the Preamble reflect the basic structure of the
Constitution. Thus, it must be considered a part of the Constitution. It was not a provision as held in
the Berubari’s case.
 S.R. Bommai v. UoI {AIR 1994 SC 1918}

Supreme Court held that the preamble forms a part of the Constitution.
Can Preamble be amended??

 As far as the power of the Parliament to amend the Preamble is concerned, it can be
concluded that the Preamble is a part of the Constitution and therefore it can be amended by
the Parliament under Article 368 but the ‘basic features’ in the Preamble cannot be
amended.
 Till date, preamble has been amended only once i.e. by the Constitution (42nd Amendment)
Act, 1976.
 By this 42nd Amendment, four words were added in the preamble i.e. “socialist”, ”secular”,
“and integrity”
CITIZENSHIP IN INDIA
1. Introduction:
A Citizen, as defined in Black's Law Dictionary, is a member of a free city or jural society,
possessing all the rights and privileges which can be enjoyed by any person under its constitution
and government, and subject to the corresponding duties.
In the Indian Context, the Citizenship or Citizen of India is discussed and incorporated into Part
II [Article 5-11] of the Indian Constitution.
2. Citizenship and the Indian Constitution:

Briefly discussing the provisions in the Part II, it can be concluded that
 As per Article 5, Every person is a citizen of India who has his domicile, at the
commencement (26th January 1950) of the Constitution, in the territory of India and
a) who was born in the territory of India; or
b) whose either parents was born in the territory of India; or
c) who has been ordinarily resident in the territory of India for not less than 5 years
immediately before such commencement.
 As per Article 6, A person who has migrated to the Indian territory from the Pakistan
territory (territory as on 26th January 1950) is considered to be Indian Citizen at the
commencement of the Indian Constitution, if –
a) he/ or either of his parents/ or any of his grand-parents was born in India and
b) if such person has migrated
i) before 19th July 1948, and he has been ordinarily resident in Indian territory
since its migration; or
ii) on or after 19th July 1948; he has been registered as a citizen of India by an
officer appointed on that behalf by the Government of the Dominion of India on
an application made by him to such officer before the 26th January 1950, and
c) he has been resident of India for at least 6 months immediately before the date of
his application.
 As per Article 7, A person who has migrated to the Pakistan territory from the Indian
territory after 1st March 1947 is considered to be a citizen of India if –
he has returned to the territory of India under a permit or for resettlement or

permanent return issued by/ under the authority of any law and he has been resident
of India for at least 6 months immediately before the date of his application.
 As per Article 8, A person who is ordinarily residing in any country outside India is
considered to be a citizen of India if –
i. he/ either of his parents/ any of his grand-parents was born in India, and
ii. he has been registered as a citizen of India by the diplomatic/ consular

representative of India in that country where he is for the time being residing on
an application made by him to the such diplomatic/ consular representative in the
form and manner as thereby prescribed.
 As per Article 9, A person who has voluntarily acquired the citizenship of any foreign
State shall not be a citizen of India by virtue of Article 5, and also shall not deemed to be
citizen by virtue of Article 6 or 8.
 As per Article 10, Every person shall continue to be Indian citizen who is or is deemed to
be a citizen of India under Article 5, or 6, or 7, or 8.
 As per Article 11, Parliament of India has the power to make any provision with respect
to the acquisition and termination of citizenship and all other matters relating to it.
3. Concept of Domicile and Citizenship as explained by the Supreme Court:

 In Central Bank of India v. Ram Narain AIR 1955 SC 36, the Supreme Court viewed that
there is not absolute definition of the term “domicile”; rather there are two constituent
elements that are necessary by English Law for the existence of domicile,
i. a residence of a particular kind, and
ii. an intention of a particular kind.
 In D. P. Joshi v. The State of Madhya Bharat AIR 1955 SC 334, the Court observed;
i. Citizenship refers to the political status of a person and domicile to its civil rights.
ii. Domicile and Citizenship are not synonymous. Under the Constitution, domicile
alone is not sufficient to confer citizenship on a person.
iii. Domicile may also be used in reference to the residence of a person.
 In Dr. Pradeep Jain v, Union of India AIR 1984 SC 1420, the Supreme Court concluded
that there can be one domicile at a time and no person can have plural domicile. The
Court observed, “The entire country is taken as one nation with one citizenship and every
effort of the Constitution makers is directed towards emphasizing, maintaining and
preserving the unity and integrity of the nation. Now if India is one nation and there is
only one citizenship, namely, citizenship of India.”
4. The Citizenship Act of 1955:

To give effect to the Article 11 of the Indian Constitution, the Indian Parliament has enacted
“The Citizenship Act, 1955” that came into force on 30th December 1955 which is provided for
the acquisition and determination of Indian Citizenship.
4.1 Indian Citizenship by Birth
 A person born aboard in registered/ unregistered ship or aircraft of the Government of

India shall be deemed to have born in India.
 Every person born in India on or after 26th January 1950 but before 1st July 1987 shall be
a citizen of India.
 Every person born in India on or after 1st July 1987 but before the Citizenship
Amendment Act, 2003 (i.e. 7th January 2004) and either of whose parents is a citizen of
India at the time of his birth shall be a citizen of India.
 Every person born in India on or after the Citizenship Amendment Act, 2003 (i.e. 7th
January 2004) where both of his parents are citizens of India or; one of whose parents is a
citizen of India and the other is not an illegal migrant at the time of his birth shall be a
citizen of India.
 A person shall not be a citizen of India by birth if at the time of his birth either of his
parents is an enemy alien and birth occurs at such place that is under the occupation of
enemy then.
4.2 Indian Citizenship by Descent

 A person born outside India on or after 26th January 1950 but before 10th December 1992
shall be a citizen of India if his father is a citizen of India at the time of his birth.
Provided that if his father is a citizen of India by descent only –
a) his birth shall be registered at an Indian consulate with 1 year of its occurrence; or
b) with the permission of Central Government after the expiry of that 1 year; or
c) his father is under the service of Government of India at the time of his birth.
 A person born outside India on or after 10th December 1992 shall be a citizen of India if
either of his parents is a citizen of India at the time of his birth.
Provided that if that parent is a citizen of India by descent only –
a) his birth shall be registered at an Indian consulate with 1 year of its occurrence; or
b) with the permission of Central Government after the expiry of that 1 year; or
c) that parent is under the service of Government of India at the time of his birth.
 A minor (who has not attained the age of 18 years) who is a citizen of India by descent
and is also a citizen of any other country shall cease to be a citizen of India if he does not
renounce the citizenship or nationality of another country with 6 months of attaining full
age of majority.
4.3 Indian Citizenship by Registration

 The Central Government may register any person as a citizen of India who is not an
illegal migrant and if he belongs to any such categories, namely –
a) a person of Indian origin who is ordinarily resident in India for 7 years before
making an application for registration.
b) a person of Indian origin who is ordinarily resident in any country or place outside
undivided India.
c) a person who is married to a citizen of India and is ordinarily resident in India for
7 years before making an application for registration.
d) minor children of persons who are citizens of India.
e) a person of full age and sound mind whose parents are registered as citizens of
India under clause (a) of this sub-section or sub-section (1) of section 6 of the
Citizenship Act, 1955.
f) a person of full age and sound mind who, either of his parents, was earlier a
citizen of independent India, and is ordinarily resident in India for 12 months
immediately before making an application for registration.
g) a person of full age and sound mind who has been registered as an overseas
citizen of India Cardholder for 5 years, and who is ordinarily resident in India for
12 months before making an application for registration.
4.4 Indian Citizenship by Naturalization

 Any person, of full age and sound mind not being an illegal migrant, who has made an
application in the prescribed manner for the grant of a certificate of naturalisation to him,
the Central Government may, if satisfied that the applicant is qualified for naturalisation
under the provisions of the Third Schedule, grant to him a certificate of naturalisation.
 The Central Government may waive all or any of the conditions specified in the Third
Schedule if the applicant is a person who has rendered distinguished service to the cause
of science, philosophy, art, literature, world peace or human progress generally.
 The person to whom a certificate of naturalisation is granted shall, on taking the oath of
allegiance in the form specified in the Second Schedule, be a citizen of India by
naturalisation as from the date on which that certificate is granted.
4.5 Schedule 3
The qualifications for naturalisation of a person are ―
a) that he is not a subject or citizen of any country where citizens of India are
prevented by law or practice of that country from becoming subjects or citizens of
that country by naturalisation;
b) that, if he is a citizen of any country:
c) that he has either resided in India or been in the service of a Government in India
or partly the one and partly the other, throughout the period of twelve months
immediately preceding the date of the application;
Provided that if the Central Government is satisfied that special circumstances
exist, it may, after recording the circumstances in writing, relax the period of
twelve months up to a maximum of thirty days which may be in different breaks.
d) that during the fourteen years immediately preceding the said period of twelve
months, he has either resided in India or been in the service of a Government in
India, or partly the one and partly the other, for periods amounting in the
aggregate to not less than eleven years;
e) that he is of good character;
f) that he has an adequate knowledge of a language specified in the Eighth Schedule
to the Constitution; and
g) that in the event of a certificate of naturalisation being granted to him, he intends
to reside in India, or to enter into, or continue in, service under a Government in
India or under an international organisation of which India is a member or under a
society, company or body of persons established in India.
4.6 Indian Citizenship by incorporation of territory

 If any territory becomes a part of India, the Central Government may, by order notified in
the Official Gazette, specify the persons who shall be citizens of India by reason of their
connection with that territory; and those persons shall be citizens of India as from the
date to be specified in the order.
4.7 Renunciation of citizenship
 If any citizen of India of full age and capacity makes in the prescribed manner a
declaration renouncing his Indian Citizenship, the declaration shall be registered by the
prescribed authority; and, upon such registration, that person shall cease to be a citizen of
India:
 If any such declaration is made during any war in which India may be engaged,
registration thereof shall be withheld until the Central Government otherwise directs.
 Where a person ceases to be a citizen of India, every minor child of that person shall
thereupon cease to be a citizen of India.
Provided that any such child may, within one year after attaining full age, make a
declaration in the prescribed form and manner that he wishes to resume Indian citizenship
and shall thereupon again become a citizen of India.
4.8 Termination of citizenship

 Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or
has at any time between the 26th January, 1950 and the commencement of this Act,
voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as
the case may be, such commencement, cease to be a citizen of India.
4.9 Deprivation of citizenship
 A citizen of India who is such by naturalisation or by virtue only article 5(c) of the
Constitution or by registration otherwise than under article 6(b)(ii) of the Constitution or
section 5(a)(1) of the Citizenship Act of 1955, shall cease to be a citizen of India, if he is
deprived of that citizenship by an order of the Central Government.
 The Central Government may, by order, deprive any such citizen of Indian citizenship, if
it is satisfied that―
a) the registration or certificate of naturalisation was obtained by means of fraud,
false representation or the concealment of any material fact; or
b) that citizen has shown himself by act or speech to be disloyal or disaffected
towards the Constitution of India as by law established; or
c) that citizen has, during any war in which India may be engaged, unlawfully traded
or communicated with an enemy or been engaged in, or associated with, any
business that was to his knowledge carried on in such manner as to assist an
enemy in that war; or
d) that citizen has, within five years after registration or naturalisation, been
sentenced in any country to imprisonment for a term of not less than two years; or
e) that citizen has been ordinarily resident out of India for a continuous period of
seven years, and during that period, has neither been at any time a student of any
educational institution in a country outside India or in the service of a
Government in India or of an international organisation of which India is a
member, not registered annually in the prescribed manner at an Indian consulate
his intention to retain his citizenship of India.
UNIT 3(a)
THE STATE
The concept of State Action is not defined in the Constitution rather it is a concept which is
implied in Article 12 of the Constitution of India. The Article is the first article in Part III of the
Constitution and it enlists the fundamental rights guaranteed to the people. As the Fundamental
Rights are expressly guaranteed against the State, therefore it was necessary to define the State
first. Despite playing its role as ‘social engineer’ while analyzing the cases what can be seen is
that the various tests acts as a limitation upon the further enlargement of the concept of State
Action though constitution framers intended to give wide meaning to Article 12. The response of
the judiciary towards the changing socioeconomic transformations is also evident from the
observations given in the judgment.
Article 12 defines the “State” as “In this part, unless the context otherwise requires, “the State”
includes the Government and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of India or under the
control of the Government of India.”
‘Every State is known by the right that it maintains.’3 Just as a written law evolved from the
concept of natural law as a higher law so the Fundamental Rights may be said to have sprung
from the doctrine of natural rights. As the Indian Supreme Court has put it “Fundamental Rights
are the modern name for what have been traditionally known as natural rights.” 4 The political
implication of the theory of natural rights is that these rights being inherent in man existed even
prior to the birth of the State itself and cannot, therefore, be violated by the State.
Although fundamental rights are primarily against the might of the State that the individuals need
protection, the Constitution barring a few exceptions protects fundamental rights of the people
against even the private parties. Fundamental rights are protected against private persons under
Articles 15(2), 17, 23, 25(2)(b), 28(3) and 29(2). Thus the State in addition to obeying the
Constitutions’ negative injunctions not to interfere with certain of the citizens’ liberties must
fulfill its positive obligation to protect the citizens ‘rights from the encroachment by society. 5
Further for the purpose of Part III and Part IV State is particularly defined under Article 12 of the
Indian constitution.
Article 12 is the key to Part III and unless an authority can be said to be a ‘State’ within the
meaning of Article 12 none of the provisions of Part III which relate to the ‘State’ will apply to
such authority. In the case of University of Madras v. Shanta Bai A.I.R. 1954 Mad. 67, the
question was whether the direction issued by the University to its affiliated college to prevent it
3
HAROLD J. LASKI, A GRAMMAR OF POLITICS (1925).
4
supra note 2.
5
D.D.BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW 55 (2nd ed. 2005).
from admitting girl students was valid or not. The direction was given because the college lacked
facilities to accommodate girls. It was alleged by the respondent college that the direction
violated Article 15 (1) and 29 of the Constitution. Moreover for the effective enforcement of
fundamental rights Article 32 is incorporated which is aptly described by Dr. B.R. Ambedkar as
the very heart and soul of the Indian Constitution.6
The objective behind defining state was to provide an impetus to the effective enforcement of
fundamental rights. While initiating a debate on this Article in the Draft Constitution in the
Constituent Assembly, Dr. Ambedkar described the scope of this Article and the reasons why
this Article was placed in the Chapter on fundamental rights. 7 According to him the object of
fundamental rights is twofold firstly, to enable every citizen to claim those rights secondly, and
to make it binding upon every authority. He insisted on the retention of Article 12 so that the
fundamental rights could be claimed against anybody or authority exercising power over the
people. The expression state under Article 12 enumerates the authorities against which
fundamental rights can be claimed and also it binds such authorities with the obligation to abide
by and to respect the fundamental rights of the people. By ‘authority’ he meant every authority
which has got either power to make law or an authority on which discretionary power is vested.
Besides a closer look at the Article reveals that the words have been added in such a manner as
to help the law givers to interpret the term with the changing needs of the society and that is the
spirit of the framers of the constitution to make it a 'living document' which will stand the test of
the time.
The definition of the term State under Article 12 is inclusive and not exhaustive. The language of
Article contains two important flexibility terms to cope up with the challenges posed by the
society. The first one is the “inclusive nature” of the definition, which is evident through the use
of the expression “includes” which can be used to accommodate new entities within the scope of
Article 12. Therefore, authorities not specified in the Article may also fall within it if they
otherwise satisfy the characteristic of the ‘State’ or if they perform any functions ordinarily
performed by the Government. The second is use of the expression “unless the context
otherwise” that allows the use of the concept of State in different situations in different manner
and context. For instance, the context of Article 21, providing right to life or personal liberty,
requires the widest and frequent use of the concept of State to make those rights a meaningful
reality.
Merely because an authority is a ‘state’ does not make its employees civil servants. 8 In S.L.
Agarwal v. GM, Hindustan Steel9, it was held that Hindustan Steel was not a Department of the
Government of India and the employees did not hold a civil post and as such were not entitled to
6
VII CONSTITUTIONAL ASSEMBLY DEBATES 953 (1949).
7
VII CONSTITUTION ASSEMBLY DEBATES 607-610 (1948)
8
Rajith Ghosh v. Damodar Valley Corporation A.I.R. 1960 Cal. 549.
9
S.L. Agarwal v. GM, Hindustan Steel ltd. (1970). 3 S.C.R. 363.
the protection of Article 311 of the Constitution. Also ‘local authorities’ are ‘state’ but that does
not entitle them to claim their status as State Government or Central Government. Local
authority' shall mean a Municipal Committee, District Board, Body of Port Commissioners or
other authorities legally entitled to, or entrusted by the Government with, the control or
management of a municipal or local fund. The reason is that there is distinction between ‘state’
and ‘government,’ also public corporations cannot be considered as government departments
under the state.10
Tests to decide which “other authorities” could be considered as agencies or

instrumentalities of state [Ajay Hasia v. Khalid Mujib 1980]
The cumulative effect of all the following factors has to be seen:
1. “If the entire share capital of the corporation is held by government, it would go a long
way towards indicating that the corporation is an instrumentality or agency of
government.”
2. The existence of “deep and pervasive State control may afford an indication that the
Corporation is a State agency or instrumentality.”
3. “It may also be a relevant factor…whether the corporation enjoys monopoly status which
is State conferred or State protected.”
4. “If the functions of the corporation are of public importance and closely related to
governmental functions, it would be a relevant factor in classifying the corporation as an
instrumentality or agency of government.”
5. “Specifically, if a department of government is transferred to a corporation, it would be a
strong factor supportive of this inference” of the corporation being an instrumentality or
agency of government.
 Som Prakash Rekhi v. Union of India AIR 1981 SC 212 : (1981) 1 SCC 449
The petitioner was a clerk in the Burmah Shell Oil Storage Ltd. He retired at the age of 50 after
qualifying for a pension, on April 1, 1973. He was also covered by a scheme under the
Employees’ Provident Funds and Family Pension Fund Act, 1952. The employer undertaking
was statutorily taken over by the Bharat Petroleum Corporation Ltd. under the Burmah Shell
(Acquisition of Undertakings in India) Act, 1976, and the Corporation became the statutory
successor of the petitioner employer. His pensionary rights, such as he had, therefore, became
claimable from the second respondent. The pensionary provision for the Burmah Shell
employees depended on the terms of a Trust Deed of 1950 under which a Pension Fund was set
up and regulations were made for its administration.
By virtue of Regulation 13, the petitioner was entitled to a pension of Rs. 165.99 subject to
certain deductions which formed the controversy in this case. He was also being paid
10
A.P. Road Transport Corporation v. Income Tax Officer (1964) 7 SCR 17.
Supplementary Retirement Benefit of Rs. 86/- per month for a period of 13 months after his
Retirement which was stopped thereafter. By a letter dated September 25, 1974, the employer
(Burmah Shell) explained that from out of the pension of Rs. 165.99 two deductions were
authorized by Regulation 16. One such deduction was based on Regulation 16(1) because of
Employees’ Provident Fund payment to the pensioner and the other rested on Regulation 16(3)
on account of payment of gratuity. Resultantly, the ‘pension payable’ was shown as Rs 40.05.
Further, the petitioner claimed and received his provident fund amount under the PF Act and
recovered a gratuity amount due under the Payment of Gratuity Act, 1972. The petitioner was
intimated by the Burmah Shell that consequent on his drawal of provident fund and gratuity
benefits, the quantum of his pension would suffer a pro tanto shrinkage, leaving a monthly
pension of Rs 40/-. Since no superannuated soul can survive on Rs. 40/- per month, the petitioner
moved the court challenging the deductions from his original pension as illegal and inhuman and
demanding restoration of the full sum which he was originally drawing.
According to the petitioner, his right to property under Article 19 had been violated. The first
issue before the Supreme Court was whether a writ could be issued under Article 32 of the
Constitution against the BPCL, a government company.
The expression “other authorities” in Article 12 has been held by this Court in the Rajasthan
State Electricity Board case [Rajasthan Electricity Board v. Mohan Lal, AIR 1967 SC 1857] to
be wide enough to include within it every authority created by a statute and functioning within
the territory of India, or under the control of the Government of India. This Court further said
referring to earlier decisions that the expression “other authorities” in Article 12 will include all
constitutional or statutory authorities on whom powers are conferred by law. The State itself is
envisaged under Article 298 as having the right to carry on trade and business.
The State as defined in Article 12 is comprehended to include bodies created for the purpose of
promoting economic interests of the people. The circumstance that the statutory body is required
to carry on some activities of the nature of trade or commerce does not indicate that the Board
must be excluded from the scope of the word ‘State’. The Electricity Supply Act showed that the
Board had power to give directions, the disobedience of which is punishable as a criminal
offence. The power to issue directions and to enforce compliance is an important aspect,
Mathew, J. is more positive in his conception of ‘State’ under Article 12:
The concept of State has undergone drastic changes in recent years. Today State cannot be
conceived of simply as coercive machinery wielding the thunderbolt of authority. It has to be
viewed mainly as a service corporation:
If we clearly grasp the character of the state as a social agent, understanding it rationally as a
form of service and not mystically as an ultimate power, we shall differ only in respect of the
limits of its ability to render service. A state is an abstract entity. It can only act through the
instrumentality or agency of natural or judicial persons. Therefore, there is nothing strange in the
notion of the State acting through a corporation and making it an agency or instrumentality of the
State.
The tasks of government multiplied with the advent of the welfare State and consequently, the
framework of civil service administration became increasingly insufficient for handling the new
tasks which were often of a specialized and highly technical character. At the same time,
‘bureaucracy’ came under a cloud. The distrust of government by civil service, justified or not,
was a powerful factor in the development of a policy of public administration through separate
corporations which would operate largely according to business principles and be separately
accountable.
The Rajasthan Electricity Board case (the majority judgment of Bhargava, J.) is perfectly
compatible with the view we take of Article 12 or has been expressed in Sukhdev and the
Airport Authority. The short question that fell for decision was as to whether the Electricity
Board was ‘State’. There was no debate, no discussion and no decision on the issue of excluding
from the area of State under Article 12, units incorporated under a statute as against those
created by a statute. On the other hand, the controversy was over the exclusion from the
definition of State in Article 12 corporations engaged in commercial activities. This plea for a
narrow meaning was negative by Bhargava, J. and in that context the learned Judge explained the
signification of “other authorities” in Article 12:
The meaning of the word “authority” given in WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, which can be applicable, is “a public administrative agency or corporation having
quasi-governmental powers authorized to administer a revenue-producing public enterprise”.
This dictionary meaning of the word “authority” is clearly wide enough to include all bodies
created by a statute on which powers are conferred to carry out governmental or quasi-
governmental functions. The expression “other authorities” is wide enough to include within it
every authority created by a statute and functioning within the territory of India, or Under the
control of the Government of India; and we do not see any reason to narrow down this meaning
in the context in which the words “other authorities” are used in Article 12 of the Constitution.
These decisions of the court support our view that the expression “other authorities” in Article 12
will include all constitutional or statutory authorities on whom powers conferred may be for the
purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged
as having the right to carry on trade or business as mentioned in Article 19(1)(g). In Part IV, the
State has been given the same meaning as in Article 12 and one of the directive principles laid
down in Article 46 is that the State shall promote with special care the educational and economic
interests of the weaker sections of the people. The State, as defined in Article 12, is thus
comprehended to include bodies created for the purpose of promoting the educational and
economic interests of the people. The State, as constituted by our Constitution, is further
specifically empowered under Article 298 to carry on any trade or business. The circumstance
that the Board under the Electricity Supply Act, is required to carry on some activities of the
nature of trade or commerce does not, therefore, give any indication that the Board must be
excluded from the scope of the word “State” as used in Article 12.
The decision in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly [(1986) 3
SCC 156] held that the appellant Company was covered by Article 12 because it is financed
entirely by three Governments and is completely under the control of the Central Government
and is managed by the Chairman and Board of Directors appointed by the Central Government
and removable by it and also that the activities carried on by the Corporation are of vital national
importance.
However, the tests propounded in Ajay Hasia were not applied in Tekraj Vasandi v. Union of
India [(1988) 1 SCC 236] where the Institute of Constitutional and Parliamentary Studies
(ICPS), a society registered under the Societies Registration Act, 1860 was held not be an “other
authority” within the meaning of Article 12. The reasoning is not very clear. All that was said
was:
“Having given our anxious consideration to the facts of this case, we are not in a position to hold
that ICPS is either an agency or instrumentality of the State so as to come within the purview of
‘other authorities’ in Article 12 of the Constitution.”
Justifiability of fundamental rights

The Fundamental Rights are considered as one of the integral part of Indian Constitution. The
Fundamental Rights are defined as the basic human freedoms which every individual has a right
to enjoy for a proper and harmonious development of personality. Although many rights are
considered as human rights a specific legal test is used by courts to determine the limitations
which can be imposed on them. These rights find their origin in many places such as England
Bill of Rights, United States Bill of Rights and France Declaration of Bill of Rights of Man. The
framing of Indian Constitution can be best known by browsing transcripts of Constituent
Assembly debate. The Constituent Assembly was composed of members elected from various
British Indian Provinces and nominated by the princely states.
The framers if Indian Constitution had three things in mind – ensuring unity, democracy and
creating social revolution. The Constitution of India took nearly three years in its formation and
finally came into force on 26th January 1950.
The biggest challenge before the Constituent Assembly was to evolve a document that would
address the diversity amongst the population, create accountable governance and an independent
republic. The development of fundamental human rights in India was due to exposure of students
to the ideas of democracy, working of parliamentary democracy and British political parties and
was also inspired by the:-
• England Bill of Rights
• Us Bill of Rights
• France Declaration of the Rights of Man and

• Development of Irish Constitution.
The Nehru Committee observed that the first care should be to have Fundamental Rights
guaranteed in such a manner which will not permit its withdrawal under any circumstances. The
Indian Statutory Commission refused to enumerate and guarantee the demand of Fundamental
Rights in the Constitution Act. Their refusal was based on Simons Commission argument that
abstract definition of such rights is useless unless there existed the will and means to make them
effective. The Indian National Congress at its Karachi session in 1931 again demanded for a
written guarantee for Fundamental Rights in any future Constitutional setup in India. This
demand was also emphasized at the round table conference at London. A memorandum
circulated by the Mahatma Gandhi at the second session of round table conference demanded
that the new constitution should include a guarantee to the communities concerned to the
protection of their cultures, language, scripts, profession, education and practice of religion and
religious endowments and protect personal laws and protection of other rights of minority
communities. The Joint Select Committee of the British Parliament did not accept the demand
for the constitutional guarantee of Fundamental Rights to British subjects in India. The
Committee observed that:-
….there are also strong practical arguments against the proposal which may be put in the form of
a dilemma: for either the declaration of rights is of so abstract a nature that it has no legal effect
of any kind or its legal effect will be to impose an embarrassing restrictions on the powers of the
legislatures and to create a grave risk that a large number of laws will be declared invalid or
inconsistent with one or other of the rights so declared….There is this further objection that the
state has made it abundantly clear that no declaration of fundamental rights is to apply to state
territories and it would be anomalous if such a declaration had legal force in part only of the area
of the federation.
The committee conceded that there were some legal principles which could approximately be
incorporated in the new constitution. Accordingly sections 295, 297-300 of Government of India
Act 1935 conferred certain rights and forms of protection on British subjects in India.
By the Objective Resolution adopted on January 22, 1947 the constituent assembly solemnly
pledged itself to draw up for future governance a constitution wherein “shall be guaranteed and
secure to all the people of India justice, social, economical and political, equality of status, of
opportunity and before the law : freedom of thought, expression, belief, faith, worship, vocation,
association and action, subject to law and public morality” and wherein adequate safeguards
would be provided for minorities, backward and tribal areas and depressed and other classes.
Two days after the adoption of the resolution the assembly elected Advisory Committee for
reporting on minorities fundamental rights and on the tribal and excluded areas. The advisory
committee in turn constituted on Feb27, 1947 five sub-committees which would deal with
fundamental rights.
The sub committee on Fundamental Rights at its first meeting on February 27, 1942 had before it
proposal of B.N.Rau to divide Fundamental Rights into two classes i.e. justifiable and non
justifiable.
An important question that faced the sub-committee was that of distributing such rights between
the Provincial, the Group and the Union Constitution. In the early stages of its deliberation the
subcommittee proceeded on the assumption of this distribution and adopted certain rights as
having reference only to union and certain rights as having reference both to the union and to the
constitutional units. However later it was felt that if Fundamental Rights differed from group to
group and from unit to unit or were for that reason not uniformly enforceable, it was felt the
Fundamental Rights of citizens of the union had no value. This reorganization leads to the
realization that certain Fundamental Rights must be guaranteed to every resident. The sub
committee recommended that all the rights incorporated must be binding upon all the authorities
whether of the union or of the units. This was thought to be achieved by providing definition in
the first clause. The expression the state included the legislature, the government of the union
and the units of all local or other authorities within the territories of the union that the law of
union included any law made by the union legislature and any existing Indian law as in force
within the union or any part thereof.
The subcommittee fully discussed various drafts submitted by its members and others before
formulating the list of Fundamental Rights. Dr. Ambedkar pointed out that the rights
incorporated in the draft were borrowed from constitution of various countries where the
conditions are more or less analogous to those existing in India.
The draft submitted on April 3, 1947 was circulated to its members with the explanatory notes on
various clauses. The clauses contained in the draft report were thereafter discussed in the sub-
committee in the light of the comments offered by the members and the final report was
submitted to the chairman of the advisory committee on April 16, 1947. Three days later the
subcommittee on the minority examined the draft clauses prepared by the fundamental rights
subcommittee and reported on the subject of such rights from the point of view of the minorities.
The advisory committee deliberated on the recommendations made by the two subcommittee and
accepted the recommendations for
(1) Classification of rights into justifiable or non justifiable.
(2) Certain rights being guaranteed to all persons and certain other only to citizens
(3) All such rights being made uniformly applicable to the union and the units.
The committee also accepted the drafts of clauses 1 and 2 – the former providing the definition
of the state, the unit and the law of the union and latter for the laws or usages inconsistent with
the fundamental rights being void in the form recommended by the sub committee also the word
constitution was replaced by the word this part of the constitution. The advisory committee
incorporated these recommendations in its interim report to the constituent assembly submitted
on April 23, 1947. The interim report dealt only with justifiable rights i.e fundamental rights.
Later on August 25, 1947 the advisory committee submitted a supplementary report mainly
dealing with non-justifiable rights i.e. the Directive Principles of State Policy or the Fundamental
Principles of Governance. A notable development took place on 10 December 1948 when the
United Nations General Assembly adopted the Universal Declaration of Human Rights and
called upon all member states to adopt these rights in their respective constitutions.
The various stages through which the various clauses on fundamental rights passed were similar
to other parts of the constitution. Firstly- the constitutional adviser prepared a draft embodying a
decision of the constituent assembly. This draft was considered exhaustively and in detail by the
drafting committee, which prepared a revised draft and published it in February 1948. The
revised draft was then widely circulated. The comments and suggestions received from all
quarters were again considered by the drafting committee and in light of these the committee
proposed certain amendments. Discussions in constituent assembly of the draft provisions took
place in November and December 1948 and August, September and October 1949. During these
meetings the committee considered the various suggestions for amendment made on behalf of
Drafting Committee as well as those proposed by the individual members of the assembly. The
provisions as passed by the assembly were again scrutinized by the Drafting Committee and
incorporated by the drafting changes wherever necessary in the revised draft constitution. The
revised draft was again placed before the assembly at its final session held in November 1949.
The fundamental rights were included in the First Draft Constitution (February 1948), the
Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November
1949) prepared by the Drafting Committee.
DOCTRINE OF ECLIPSE
"Judicial Review" is defined as the interposition of judicial restraint on the legislative and
executive organs of the Government.! It is the "overseeing by the judiciary of the exercise of
powers by other co-ordinate organs of government with a view to ensuring that they remain
confined to the limits drawn upon their powers by the Constitution." The concept has its origins
in the theory of limited Government and the theory of two laws - the ordinary and the Supreme
(i.e., the Constitution) - which entails that any act of the ordinary law-making bodies that
contravenes the provisions of the Supreme Law must be void, and there must be some organ
possessing the power or authority to pronounce such legislative acts void.
With the adoption of a written Constitution and the incorporation of Part III conferring
Fundamental Rights therein, it was inevitable that the validity of all laws in India would be tested
on the touchstone of the Constitution. Nevertheless, the Constitution-makers included an explicit
guarantee of the justiciability of fundamental rights in Article 13, which has been invoked on
numerous occasions for declaring laws contravening them void. Courts have evolved various
doctrines like the doctrines of severability, prospective overruling, and acquiescence, for the
purposes of effecuating this Article. The Doctrine of Eclipse ("the Doctrine") is one such
principle, based on the premise that fundamental rights are prospective in nature. As a result of
its operation, "an existing law inconsistent with a fundamental right, though it becomes
inoperative from the date of commencement of the Constitution, is not dead altogether."
Hence, in essence, the Doctrine seeks to address the following quandary: If a law is declared null
and void for infringing on a fundamental right, and then that fundamental right is itself amended
such that the law is purged of any inconsistency with it, does the law necessarily have to be
reenacted afresh, or can it revive automatically from the date of the amendment? In other words,
what is the precise nature of the operation of the Doctrine in the face of the general rule that a
Statute void for unconstitutionality is non-est and "notionally obliterated" from the Statute Book?
Inherent in the application of the Doctrine to such questions is the predicament of conflicting
priorities. What is to be determined here is whether, for the purpose of avoiding the
administrative difficulties and expenditure involved in re-enacting a law, a law which was held
void on the very sensitive and potent ground of violation of fundamental rights should, under
special circumstances be permitted to revive automatically. This also raises some profound
questions about legislative competence and the interference of courts in law making.
An extremely vital aspect of the Doctrine - which, in India, has thus far been largely overlooked
by legal theorists and practitioners alike - is its crucial role in the federal framework. A survey of
the principal federations in the Anglo-American world shows that the Doctrine has been used
primarily in cases where the enacting legislature undoubtedly had the power to enact a law, but
the law was rendered in operative because of supervening impossibilities, arising in the form of
other incompatible laws enacted by legislatures having superior powers to enact such laws. A
complete demarcation of powers between the federal and state spheres is neither feasible nor
desirable in a federal polity.
EVOLUTION OF THE DOCTRINE OF ECLIPSE

In India, the Doctrine of Eclipse has been referred to, most frequently, in cases involving alleged
violations of fundamental rights. Questions regarding the retrospectively of these rights and the
import of the word "void" in Article 13(1) of the Constitution, came up for deliberation in the
leading case of Keshavan Madhava Menon v State of Bombay, A.I.R. 1951 S.C. 128, wherein a
prosecution proceeding was initiated against the appellant under the Indian Press (Emergency
Powers) Act, 1931, in respect of a pamphlet published in 1949. The present Constitution came
into force during the pendency of the proceedings. The appellant pleaded that the impugned
section of the 1931 Act was in contravention of Article 19(1)(a) of the Constitution, and by
virtue of Article 13(1), was void. Hence, it was argued that the proceedings against him could
not be continued. This case raised several challenging issues with respect to the Doctrine, as
analysed below.
It is now well settled that the Constitution has no retrospective effect. However, one of the basic
questions related to the origin of the Doctrine of Eclipse that was raised in Keshavanand Bharti
Case, was whether fundamental rights are retrospective in operation. Article 13(1) provides that
all pre-Constitutional laws, in so far as they are inconsistent with fundamental rights, are void. If
fundamental rights are retrospective, then all pre-Constitutional laws inconsistent with
fundamental rights must be void ab initio. On this point, in Keshavanand, both Das and
Mahajan, JJ., maintained that fundamental rights, including the freedom of speech and
expression, were granted for the first time by the Constitution and that in September 1949, when
proceedings were initiated, the appellant did not enjoy these rights. Hence, it was established
that, as fundamental rights became operative only on, and from the date of the Constitution
coming into force, the question of inconsistency of the existing laws with those rights must
necessarily arise only on and from such date.
Turning specifically to Article 13(1), the Court further held that every statute is prima facie
prospective unless it is expressly or by necessary implication made retrospective. According to
him, there was nothing in the language of Article 13(1), to suggest that there was an intention to
give it retrospective operation. In fact, the Court was of the opinion that the language clearly
points the other way. It was therefore held that Article 13(1) can have no retrospective effect, but
is wholly prospective in operation." This interpretation has been upheld in subsequent cases.'
The prospective nature of Article 13(1), and the limited connotation accorded to the word "void"
in Keshavan, which was expounded by Das, J. in Behram, necessitated the enunciation of the
Doctrine of Eclipse in the leading case of Bhikaji Narain Dhakras v. State of Madhya Pradesh,
AI.R. 1955 S.C. 781. In this case, the impugned provision allowed for the creation of a
Government monopoly in the private transport business. After the coming into force of the
Constitution, this provision became void for violating Article 19(1)(g) of the Constitution.
However, Article 19(6) was amended in 1951, so as to permit State monopoly in business. It was
argued on behalf of the petitioners that the impugned Act, being void under Article 13(1), was
dead and could not be revived by any subsequent amendment of the Constitution, but had to be
re-enacted. This contention was rejected by a unanimous decision of the Supreme Court, which
laid down that after the amendment of Article 19(6) in 1951, the constitutional impediment was
removed. The Act, therefore, ceased to be unconstitutional, and became revivified and
enforceable.
The crux of the decision was the observation that an existing law inconsistent with a fundamental
right, though inoperative from the date of commencement of the Constitution, is not dead
altogether. According to some authors, it "is a good law if a question arises for determination of
rights and obligations incurred before the commencement of the Constitution, and also for the
determination of rights of persons who have not been given fundamental rights by the
Constitution." In this context, Das, C.J., held:
The true position is that the impugned law became, as it were, eclipsed, for the time being, by the
fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the
shadow and to make the impugned Act free from all blemish or infirmity.
He reiterated that such laws remained in force qua non-citizens, and it was only against the
citizens that they remained in a dormant or moribund condition. This case was thus the
foundation of the Doctrine, which has since been the subject of judicial contemplation in
numerous decisions.
Can the Doctrine be Applied to Post-Constitutional Laws?

In the author's opinion, three questions must be answered, in order to gauge the applicability of
the Doctrine to post-Constitutional laws. First, can a post-Constitutional law be revived by a
subsequent Constitutional amendment removing the Constitutional bar to its enforceability?
Second, if a post Constitutional law violates rights conferred on citizens alone, (and thus
becomes void qua them), does it remain valid and operative qua non-citizens like foreigners and
companies? Finally, can amending the Act in question so as to remove the blemish revive the
law in question, or will it have to be re-enacted as a whole?
In Saghir Ahmed v. State of U.P.; A.I.R. 1954 S.C.728, a Constitution Bench of the Apex Court
unanimously stated that the Doctrine could not applied to the impugned post- Constitutional law.
A legislation that contravened Article 19(1)(g) and was not protected by clause (6) ofthe Article,
when it was enacted after the commencement of the Constitution, could not be validated even by
subsequent Constitutional amendment. However, the following observation of Das, C.J. in
Bhikaji, has generated much perplexity on the issue:
But apart from this distinction between pre-Constitution and post-Constitution laws on which,
however, we need not rest our decision, it must be held that these American authorities can have
no application to our Constitution. All laws, existing or future, which are inconsistent with the
provisions of Part III of our Constitution are, by the express provision of Article 13, rendered
void 'to the extent of such inconsistency.' Such laws were not dead for all purposes. They existed
for the purpose of pre-Constitution rights and liabilities and they remained operative, even after
the Constitution, as against non citizens.
In Deep Chand v. State of U.P., A.I.R. 1959 S.C. 648, it was held that there is a clear distinction
between the two clauses of Article 13. Under clause (1) a pre-Constitutional law subsists except
to the extent of its inconsistency with the provisions of Part III, whereas as per clause (2), no
post-Constitutional law can be made contravening the provisions of Part III and therefore the law
to that extent, though made, is a nullity from its inception.
Mahendra Lal Jaini v. State of U.P., A.I.R. 1963 S.C. 1019, is the most authoritative decision
forthe impossibility of reviving post-Constitutional laws by a Constitutional amendment. The
Court based its finding on the two grounds. First, the language and scope of Article 13(1) and
13(2) are different. Clause (1) clearly recognizes the existence of pre-Constitutional laws which
were valid when enacted, and therefore could be revived by the Doctrine. Clause (2) on the other
hand begins with an injunction to the State not to make a law which takes away or abridges the
rights conferred by Part III. The legislative power of Parliament and State Legislatures under
Article 245 is subject to the other provisions of the Constitution and therefore, subject to Article
13(2). Second, "contravention" takes place only once the law is made. This is because the
contravention is of the prohibition to make any law, which takes away or abridges the
fundamental rights. It is no argument to say that simply because the Amendment removes any
subsequent scope for contravention, the law is no longer in conflict with the Constitution.
However, the scope of the principles established above stands drastically curtailed in view of the
Supreme Court decision in State of Gujarat v. Shree Ambica Mills, A.I.R. 1974 S.C. 1300,
wherein Matthew, J. held that like a pre-Constitutional law, a post-Constitutional law
contravening a fundamental right could also be valid in relation to those, whose rights were not
infringed upon. For instance, when a post-Constitutional law violates a fundamental right like
Article 19 which is granted to citizens alone, it would remain valid in relation to non-citizens.
Thus the term "void" in both the clauses of Article 13 makes a law only relatively void, and not
absolutely void.
From this arises the final question: When a post-Constitutional law is held inconsistent with a
fundamental right, can it be revived by amending the Act in question so as to remove the
blemish, or will it have to be re-enacted as a whole?
The Delhi High Court in P.L. Mehra v. D.R. Khanna, A.I.R. 1971 Del. 1, has held that the
legislation will have to be re-enacted and that it cannot be revived by mere amendment. This
view appears to the author to emanate logically from the position adopted by the Supreme Court
in treating such a law as void ab initio. There is, therefore, no need to apply the Doctrine of
Eclipse to post-Constitutional laws, as discussed above.
There is no direct Supreme Court ruling on this point. The closest authority on this issue is
Shama Rao v. State of Maharashtra, A.I.R. 1967 S.C. 480, wherein an Act was challenged on the
ground of excessive delegation, and pending the decision, the Legislature passed an Amendment
Act seeking to remove the defect. The Supreme Court ruled by a majority that when an Act
suffers from excessive delegation, it is stillborn and void ab initio. It cannot be revived by an
amending Act seeking to remove the vice, and must be re-enacted as a whole. It is submitted that
this ruling supports the proposition that an Act held invalid under Article 13(2) would not be
revived merely by amending it, but would have to be re-enacted. Hence, we may safely infer that
Ambica Mills does not destroy the force of the judicial pronouncements in Deep Chand and
Mahindra Jaini, but merely limits the scope of their operation, and that the Doctrine, as of now,
cannot be extended to post-Constitutional laws.
Doctrine of Waiver
The Fundamental rights (F.R) under Part III Under Art 12 to 35 of the constitution are conferred
to every citizen of India by the constitution. These constitutional rights are not absolute. There
are reasonable restriction impose by the constitution. The primary objectives of this F.R are
based on public policy. Therefore no individual can waive off such FRs.
The doctrine of waiver of right is based on the premise that a person is his best judge and that he
has the liberty to waive the enjoyment of such right as are conferred on him by the state.
However the person must have the knowledge of his rights and that the waiver should be
voluntary.
In Basheshr Nath vs. Income Tax commissioner AIR 1959 SC 149, Held that In this case the
petitioner whose matter had been referred to the Investigation commissioner u/s 5(1) of the
Taxation of Income Act 1947 was found to have concealed a settlement u/s 8 A to pay Rs 3
Lakhs in monthly installments, by way of arrears of tax and penalty. In the meanwhile the SC in
another case held that section 5(1) is ultra vires the constitution, as it was inconsistence with Art
14. So the appellant cannot waive off his FR.
Conclusion- It means "a person from denying or asserting anything to the contrary of that which
has, in contemplation of law, been established as the truth, either by the acts of judicial or
legislative officers, or by his own deed, acts, or representations, either express or implied.
Doctrines of Severability
Art 13 provides that Act is void which is inconsistent with the Part III of the constitution. Art 13
is having a flexible nature; it does not make the whole Act inoperative. It makes inoperative only
such provisions of it as are inconsistent with or violative of fundamental right. Sometimes valid
and invalid portion of the Act are so intertwined that they cannot be separated from one another.
In such cases, the invalidity of the portion must result in the invalidity of the Act in its entirety;
the reason is that the valid part cannot survive independently. In determining whether the valid
parts of a statue are severable from the invalid parts. In intention of the Legislature is the
determining factor. In other words it should be asked whether the legislature would have enacted
at all that which survive without the part found ultra virus.
The rule of severability applies as such clause (2) as to Clause (1) of Art 13 in Jia Lal v/s Delhi
Administration AIR 1962, The appellant was prosecuted for an office u/s 19 (f) of the Arm Act
1878. In fact, section 29 of this Act provides that in certain area in which the petitioner did not
obtain any license in which the petitioner was residing, it was not necessary to obtain the said
license for possession fire arm. Section 29 was challenged as ultra virus and unconstitutional as
offending Art 14 and also section 19(f) of the Arms Act 1878 on the ground that two sections
were not severable, on the question of severability the SC held that the section 29 of the Arms
Act 1878 was ultra virus.
Whether an amendment of the constitution amounts to ‘law’ under article 13(2)?
Shankari Prasad v. Union of India AIR 1951 SC 458

The supreme court held that the word law in article 13(2) did not include the law/ amendment
made by the Parliament under Article 368.
Sajjan Singh v. State of Rajasthan

The court expressed their full concurrence with the decision in the earlier case. The words
"amendment of this constitution" in article 368 plainly and unambiguously meant amendment of
all the provisions of the Constitution; it would, therefore, be unreasonable to hold that the word
"law" in article 13(2) took in Constitution Amendment Acts passed under article 368.
The above decision was ruled out by the supreme court in Golaknath v. state of Punjab, AIR
1967 SC 1643, This time a majority of six judges to five decided that Parliament had no power to
amend any of the provisions of Part III, so as to take away or abridge the fundamental rights
enshrined therein. It, therefore, adopted a doctrine of prospective overruling under which the
three constitutional amendments concerned would continue to be valid, and the decision to the
effect that Parliament had no power to amend the provisions of Part III would operate for the
future only. Finally the supreme court in Kesavananda Bharati AIR 1973 SC 146 upheld the
validity of the constitution act 1971 and over ruled the decision of Golaknath’s case.
UNIT 3(b)
RIGHT TO EQUALITY
[Article 14-18]
Article 14
Article 14 declares that "the State shall not deny to any person equality before the law or
equal protection of the laws within the territory of India".
The phrase "equality before the law" occurs in almost all written constitutions that guarantee
fundamental rights. Equality before the law is an expression of English Common Law while
"equal protection of laws" owes its origin to the American Constitution.
Both the phrases aim to establish what is called the "equality to status and of opportunity" as
embodied in the Preamble of the Constitution. While equality before the law is a somewhat
negative concept implying the absence of any special privilege in favour of any individual and
the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive
concept employing equality of treatment under equal circumstances.
Thus, Article 14 stands for the establishment of a situation under which there is complete
absence of any arbitrary discrimination by the laws themselves or in their administration.
Interpreting the scope of the Article, the Supreme Court of India held in Charanjit Lai
Choudhury vs. The Union of India that: (a) Equal protection means equal protection under equal
circumstances; (b) The state can make reasonable classification for purposes of legislation; (c)
Presumption of reasonableness is in favour of legislation; (d) The burden of proof is on those
who challenge the legislation.
Explaining the scope of reasonable classification, the Court held that "even one corporation or a
group of persons can be taken to be a class by itself for the purpose of legislation provided there
is sufficient basis or reason for it. The onus of proving that there were also other companies
similarly situated and this company alone has been discriminated against, was on the petitioner".
In its struggle for social and political freedom mankind has always tried to move towards the
ideal of equality for all. The urge for equality and liberty has been the motive force of many
revolutions. The charter of the United Nations records the determination of the member nations
to reaffirm their faith in the equal rights of men and women.
Indeed, real and effective democracy cannot be achieved unless equality in all spheres is realised
in a full measure. However, complete equality among men and women in all spheres of life is a
distant ideal to be realised only by the march of humanity along the long and difficult path of
economic, social and political progress.
The Constitution and laws of a country can at best assure to its citizens only a limited measure of
equality. The framers of the Indian Constitution were fully conscious of this. This is why while
they gave political and legal equality the status of a fundamental right, economic and social
equality was largely left within the scope of Directive Principles of State Policy.
The Right to Equality affords protection not only against discriminatory laws passed by
legislatures but also prevents arbitrary discretion being vested in the executive. In the modern
State, the executive is armed with vast powers, in the matter of enforcing by-laws, rules and
regulations as well as in the performance of a number of other functions.
The equality clause prevents such power being exercised in a discriminatory manner. For
example, the issue of licenses regulating various trades and business activities cannot be left to
the unqualified discretion of the licensing authority. The law regulating such activities should lay
down the principles under which the licensing authority has to act in the grant of these licenses.
Article 14 prevents discriminatory practices only by the State and not by individuals. For
instance, if a private employer like the owner of a private business concern discriminates in
choosing his employees or treats his employees unequally, the person discriminated against will
have no judicial remedy.
One might ask here, why the Constitution should not extend the scope of these right to private
individuals also. There is good reason for not doing so. For, such extension to individual action
may result in serious interference with the liberty of the individual and, in the process;
fundamental rights themselves may become meaningless.
After all, real democracy can be achieved only by a proper balance between the freedom of the
individual and the restrictions imposed on him in the interests of the community. Yet, even
individual action in certain spheres has been restricted by the Constitution, as for example, the
abolition of untouchability, and its practice in any form by any one being made an offence.
Altogether, Article 14 lays down an important fundamental right which has to be closely and
vigilantly guarded.
There is a related matter that deserves consideration here. The right to equality and equal
protection of laws loses its reality if all the citizens do not have equal facilities of access to the
courts for the protection of their fundamental rights. The fact that these rights are guaranteed in
the Constitution does not make them real unless legal assistance is available for all on reasonable
terms. There cannot be any real equality in the right "to sue and be sued" unless the poorer
sections of the community have equal access to courts as the richer sections.
There is evidence that this point is widely appreciated in the country as a whole and the
Government of India in particular and that is why steps are now being taken to establish a system
of legal aid to those who cannot afford the prohibitive legal cost that prevails in all parts of the
country.
Doctrine of Reasonable classification

Article 14 says that State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Equality before law as provided in the Article
14 of our constitution provides that no one is above the law of the land. Rule of the Law is an
inference derived from Article 14 of the constitution. The article 14 aims to establish the
"Equality of Status and Opportunity" as embodied in the Preamble of the Constitution.
Article 14 of the Indian Constitution (intelligible differentia and the object sought to be
achieved
It is now accepted that persons may be classified into groups and such groups may be treated
differently if there is a reasonable basis for such difference. Article 14 forbids class legislation; it
does not forbid classification or differentiation which rests upon reasonable grounds of
distinction. The principle of equality does not mean that every law must have universal
application to all the persons who are not by nature, attainment or circumstances in the same
position. The varying needs of different classes of persons require different treatment. In order to
pass the test for permissible classification two conditions must be fulfilled, namely: (1) the
classification must be founded on an intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group, and (2) the differentia must have a
rational nexus with the object sought to be achieved by the statute in question.
What is however necessary is that there must be a substantial basis for making the classification
and the there should be a nexus between the basis of classification and the object of the statute
under consideration. In other words, there must be some rational nexus between the basis of
classification and the object intended to achieve.
The expression “intelligible differentia” means difference capable of being understood. A factor
that distinguishes or in different state or class from another which is capable of being understood.
The impugned act deals with users of social networking websites Test laid down in State of West
Bengal v. Anwar Ali Sarkar i.e. the differentia or classification must have a rational nexus with
the object sought to be achieved by the statute in question Supreme Court in many of its
judgment has clearly indicated about such kinds of classifications as vague and inoperative. The
Supreme Court in landmark judgment of Maneka Gandhi v. Union of India clearly ruled out the
room for arbitrariness. ‘Article 14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment. The principle of reasonableness, which logically as well as
philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like
a brooding omnipresence.’ Rule of law which permeates the entire fabric of the Indian
Constitution excludes arbitrariness. Wherever we find arbitrariness or unreasonableness there is
denial there is denial of rule of law.
This new dimension of Art.14 transcends the classificatory principle. Art.14 is no longer to be
equated with the principle of classification. It is primarily a guarantee against arbitrariness in
state action and the doctrine of classification has been evolved only as a subsidiary rule for
testing whether a particular state action is arbitrary or not. If a law is arbitrary or irrational it
would fall foul of Art.14. As an example, it has been held that any penalty disproportionate to the
gravity of the misconduct would be violative of Art.14. So the impugned act should be tested at
the touchstone of Art. 13(2) and should be declared invalid.
Article 14 Permits Classification But Prohibits Class Legislation The equal protection of laws
guaranteed by Article 14 does not mean that all laws must be general in character. It does not
mean that the same laws should apply to all persons. It does not attainment or circumstances in
the same position. The varying need of different classes of persons often requires separate
treatment. From the very nature of society there should be different laws in different places and
the legitimate controls the policy and enacts laws in the best interest of the safety and security of
the state. In fact identical treatment in unequal circumstances would amount to inequality. So a
reasonable classification is only not permitted but is necessary if society is to progress.
Thus what Article 14 forbids is class-legislation but it does not forbid reasonable classification.
The classification however must not be “arbitrary, artificial or evasive” but must be based on
some real and substantial bearing a just and reasonable relation to the object sought to be
achieved by the legislation. Article 14 applies where equals are treated differently without any
reasonable basis. But where equals and unequal are treated differently, Article 14 does not apply.
Class legislation is that which makes an improper discrimination by conferring particular

privileges upon a class of persons arbitrarily selected from a large number of persons all of
whom stand in the same relation to the privilege granted that between whom and the persons not
so favored no reasonable distinction or substantial difference can be found justifying the
inclusion of one and the exclusion of the other from such privilege.
Test of Reasonable Classification While Article 14 forbids class legislation it does not forbid
reasonable classification of persons, objects, and transactions by the legislature for the purpose
of achieving specific ends. But classification must not be “arbitrary, artificial or evasive”. It must
always rest upon some real upon some real and substantial distinction bearing a just and
reasonable relation to the object sought to be achieved by the legislation. Classification to be
reasonable must fulfill the following two conditions:
Firstly the classification must be founded on the intelligible differentia which distinguishes
persons or thing that are grouped together from others left out of the group. Secondly the
differentia must have a rational relation to the object sought to be achieved by the act.
The differentia which is the basis of the classification and the object of the act are two distinct
things. What is necessary is that there must be nexus between the basis of classification and the
object of the act which makes the classification. It is only when there is no reasonable basis for a
classification that legislation making such classification may be declared discriminatory. Thus
the legislature may fix the age at which persons shall be deemed competent to contract between
themselves but no one will claim that competency. No contract can be made to depend upon the
stature or colour of the hair. Such a classification will be arbitrary.
The true meaning and scope of Article 14 have been explained in a number of cases by the
Supreme Court. In view of this the propositions laid down in Damia case still hold good
governing a valid classification and are as follows:
1. A law may be constitutional even though it relates to a single individual if on account of

some special circumstances or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by itself.
2. There is always presumption in favor of the constitutionality of a statute and the burden is
upon him who attacks it to show that there has been a clear transgression of constitutional
principles.
3. The presumption may be rebutted in certain cases by showing that on the fact of the
statue, there is no classification and no difference peculiar to any individual or class and
not applicable to any other individual or class, and yet the law hits only a particular
individual or class.
4. It must be assumed that Legislature correctly understand and appreciates the need of its
own people that its law are directed to problem made manifest by experience and that its
discrimination are based on adequate grounds.
5. In order to sustain the presumption of constitutionality the court may take into
consideration maters of common knowledge, matters of report, and the history of the
times and may assume every state of facts which can be conceived existing at the time of
the legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its restriction to
those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a legislature are
to be presumed, if there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the classification may
reasonable be regarded as based, the presumption of constitutionality cannot be carried to
extent always that there must be some undisclosed and unknown reason for subjecting
certain individuals or corporation to be hostile or discriminating legislation
8. The classification may be made on different bases e.g. geographical or according to
object or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or logically
complete. Mathematical nicety and perfect equality are not required. Equality before the
law does not require mathematical equality of all persons in all circumstances. Equal
treatment does not mean identical treatment. Similarly not identity of treatment is
enough.
10. There can be discrimination both in the substantive as well as the procedural law. Article
14 applies to both. If the classification satisfies the test laid down in the above
propositions, the law will be declared constitutional. The question whether a

classification is reasonable and proper and not must however, be judged more on
commonsense than on legal subtitles.
PRINCIPLE OFABSENCE ARBITRARINESS

It is now too well-settled that every State action, in order to survive, must not be susceptible to
the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule
of law, the system which governs us. Arbitrariness is the very negation of the rule of law.
Satisfaction of this basic test in every State action is sine qua lion to its validity and in this
respect, the State cannot claim comparison with a private individual even in the field of contract.
This distinction between the State and a private individual in the field of contract has to be borne
in the mind. The meaning and true import of arbitrariness is more easily visualized than precisely
stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be
answered on the facts and the circumstances of a given case.
An obvious test to apply is to see whether there is any discernible principle emerging from the
impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for
doing an act and there is no impediment in following that procedure, performance of the act
otherwise and in a manner which does not disclose any discernible principle which is reasonable,
may itself attract the vice of arbitrariness.
Every State action must be informed by reason and it follows that an act uninformed by reason,
is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices
of the men to whom the governance is entrusted for the time being. It is trite that be you ever so
high, the laws are above you’. This is what men in power must remember, always. Almost a
quarter century back, this Court in S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR
703, at p.7 18-19, indicated the test of arbitrariness and the pitfalls to be avoided in all State
actions to prevent that vice, in a passage as under:”In this context it is important to emphasize
that the absence of arbitrary power is the first essential of the rule of law upon which our whole
constitutional system is based. In a system governed by rule of law, discretion, when conferred
upon executive authorities, must be confined within clearly defined limits. The rule of law from
this point of view means that decisions should be made by the application of known principles
and rules and, in general, such decisions should be predictable and the citizen should know
where he is. If a decision is taken without any principle or without any rule it is unpredictable
and such a decision is the antithesis of a decision taken in accordance with the rule of law.
Supreme Court in M Nagaraj v. Union of India [2006]
The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by
enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is
read into Article 14. The basic principle underlying Article 14 is that the law must operate
equally on all persons under like circumstances. Every discretionary power is not necessarily
discriminatory. Equality is not violated by mere conferment of discretionary power. It is violated

by arbitrary exercise by those on whom it is conferred. Equality before the law, guaranteed by
the first part of Article 14, is a negative concept while the second part is a positive concept which
is enough to validate equalizing measures depending upon the fact situation.
Supreme Court in Maneka Gandhi v. Union of India [1978]
Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of-treatment. The principle of reasonableness, which legally as well
as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14
like a brooding omnipresence.
Supreme Court in E.P. Royappa v. State of Tamil Nadu [1974]
“From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to
the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it
is unequal both according to political logic and constitutional law and is therefore violative of
Article 14”.
RESERVATION POLICY IN INDIA [Article 15&16]

Introduction:
Two thousand years ago, the great philosopher Aristotle said, "Injustice arises when equals are
treated unequally and also when unequals are treated equally". This profound statement is what
lies at the heart of equality-a fundamental human right. Every human simply by virtue of being a
human being is entitled to equal treatment.
Meaning of Reservations:
Reservation is a method by which special opportunity is given to deprived or suppressed class so

that they can contribute in development of nation. By these methods any nation wants to utilize
resources and talents of all human beings. By using these methods, USA is most powerful
country. In USA, black people were given special opportunity and USA have to face CIVIL
WAR (12 April 1861 – 09 May 1865) because white people were not ready to accept
participation of black people.
Philosophy of Reservations is based on the principal that land and wealth of nation is not only of
few people. Nation and government are for all people who are residing in certain territory.
Concept of Reservation in Modern India:

In India, in the modern era, first of all Baba Saheb Bhim Rao Ambedkar realized the significance
of reservation and demanded it for suppressed class who were being considered as a animal and
they were not allowed for sharing well, road, shop, restaurant etc. So by Poona pact, 24th
Sep.1932, (Agreement between Gandhi Ji and Baba Saheb) reservation was given to most
suppressed class people of our country.
State of Madras v. Champacam Dirairajan 195111

This is the first case in which reservation policy of Government was struck down. The Supreme
Court held that classification on the basis of caste is against the concept of equality.
Venkataramana v. State of Madras 195112

Following the Champacam Dirairajan case, it was held in this case, that "reservation of posts in
favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional".
Kalelkar Commission 1953

As per Article 340 of the Constitution, President can appoint a commission for the identification
of backward classes. Accordingly in 1953, the first backward classes commission i.e. Kaka
Kelkar Commission was appointed, with Kaka Saheb Kalelkar as the Chairman.
The commission formulated four criteria, viz.
i. low position in the traditional caste hierarchy;

ii. lack of general educational advancement;
iii. inadequate representation in government service; and
iv. inadequate representation in trade, commerce and industry.
On the basis of these criteria, the commission identified 2,399 backward castes in the entire
country, classifying 837 as the “most backward”. The Kalelkar Commission report submitted on
March 30, 1955 was presented in the Parliament with a memorandum on September 3, 1956. A
significant observation made in the memorandum was that
“it cannot be denied that the caste system is the greatest hindrance in the way of our
progress towards an egalitarian society, and the recognition of the specified castes as
backward may serve to maintain and even perpetuate the existing distinctions on the
basis of caste”.
The concept of “837 most backward castes” is denied and 27.10% reservation is made on the
recommendation of Kalelkar Commission.
M.R. Balaji v. State of Mysore 196313

In this case the Supreme Court held that total reservation should not exceed 50% in any
circumstances.
11
State of Madras v. Champakam Dorairajan, A.I.R. 1951 S.C. 226.
12
Venkataramana v. State of Madras, A.I.R. 1951 S.C. 229.
13
M R Balaji v. State of Mysore, A.I.R. 1963 S.C. 649.
“The interests of weaker sections of society, which are a first charge on the States and
the Centre, have to be adjusted with the interests of the community as a whole. Speaking
generally and in a broad way, a special provision should be less than 50%. The actual
percentage must depend upon the relevant prevailing circumstances in each case.”
Almost all States did not exceed 50% limit but State of Rajastan (68% quota including 14% for
forward castes, post gujjar violence 2008) and State of Tamil Nadu, in 1980, (69%, under 9th
schedule) exceeded the limit. Despite the State of Andhra Pradesh tried to exceed the limit in
2005, it was stopped running by the High Court.
Purpose of Reservation
In Ajit Singh II v. State of Punjab, it was stated relying upon earlier judgments starting from
1963, that Article 16(4) was only an enabling provision and did not impose any constitutional
duty nor confer any fundamental right for reservations.14
Language of Article 15(4) is identical and the view in Gian Prakash v. K.S. Jagannathan15 and
Superintending Engineer, Public Health v. Kuldeep Singh16 that a mandamus can be issued
either to provide for reservation or for relaxation is not correct and runs counter to judgments of
earlier Constitution Benches and, therefore, these two judgments cannot be held to be laying
down the correct law.
A.P. Public Service Commission v. Baloji Badhavath17 and Gulshan Prakash v. State of
Haryana18, it was reconfirmed that the provisions contained in Article 15(4) and 16(4) are only
enabling provisions. No citizen of India can claim as a matter of right and no writ of mandamus
can be issued. Reservation is the discretion of the Government, and not the public duty. So,
citizens have no right to claim the reservation.
R. Chitralekha v. State of Mysore 196419

It was laid down that classification of socially and educationally backward classes should be
made on the basis of economic condition and occupation.
Triloki Nath v. State of Jammu & Kashmir 196920

It was held that Reservation can be given on the basis of caste. The Court observed,
“The expression "backward class" is not used as synonymous with "backward caste" or
"backward community". The members of an entire caste or community may in the social,
economic and educational scale of values at a given time be backward and may on that
14
Ajit Singh II v. State of Punjab, [1997] 7 S.C.C. 209.
15
Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan, A.I.R. 1987 S.C. 537.
16
Superintending Engineer, Public Health v. Kuldeep Singh, (1997) 9 S.C.C. 199.
17
A.P.Public Service Commission v. Baloji Badhavath, [2009] 5 S.C.C. 1.
18
Gulshan Prakash v. State of Haryana, A.I.R. 2010 S.C. 288.
19
R. Chitralekha v. State of Mysore 1964 AIR 1823
20
Triloki Nath v. State of Jammu & Kashmir, A.I.R. 1969 S.C. 1.
account be treated as a backward class, but that is not because they are members of a
caste or community, but because they form a class. In its ordinary connotation the
expression "class" means a homogeneous section of the People grouped together because
of certain likenesses or common traits, and who are identifiable by some common
attributes such as status, rank, occupation, residence in a locality, race, religion and the
like.”
State of Kerala v. N. M. Thomas 197621

The Court held that no reservation shall be given to the creamy layer. It was ordered to exclude
Creamy layer of other backward classes from enjoying reservation facilities. Further, it was said
that the Constitution itself demarcates harijans from others which is based on the stark
backwardness of this bottom layer of the community. Hence, the reservation shall be given only
to the darker layers, and not the creamy layers.
S. Vinod Kumar v. Union of India 199622

In this case, the Supreme Court upheld the ruling of State of Kerala v. N.M. Thomas and held
that reservation in promotion is not permissible. The Court viewed
"We must also make it clear that it would not be impermissible for the State to extend
concessions and relaxations to members of reserved categories in the matter of
promotion without compromising the efficiency of the administration…..It would not be
permissible to prescribe lower qualifying marks or a lesser level of evaluation for the
members of reserved categories since that would compromise the efficiency of
administration.”
Mandal Commission 1978

Nearly 23 years after the submission of the report of the first backward classes commission,
presidential order under article 340 was issued in January, 1978, setting up another ‘backward
classes’ commission consisting of five members with B.P. Mandal as chairman.
Using the terms “castes” and “classes” interchangeably as synonyms, the commission evolved 11
indicators or criteria for determining social and educational backwardness and grouped them
under three broad heads- social, educational and economic, giving a weightage of three points to
each of the social indicators.
The four ‘social’ criteria were:

 being considered socially backward by others;
 dependence mainly on manual labour for livelihood;
 percentage of males and females getting married at an age below 17 years being higher
than the state average; and,
21
State Of Kerala v. N. M. Thomas, A.I.R. 1976 S.C. 490.
22
S. Vinod Kumar v. Union of India, [1996] 6 S.C.C. 580.
 participation of females in work being less than the state average.
The three ‘educational’ criteria were:

 number of children in the age-group of 5-15 who never attended the school being at least
25% above the state average;
 drop-out rate of students in the age-group of 5-15 at least 25% above the state average;
and,
 the proportion of matriculates being 25% below the state average.
The four ‘economic’ criteria adopted were:

 average value of assets being at least 25% below the state average;
 the number of families living in “kuchcha” houses being atleast 25% above the state
average;
 source of drinking water being beyond half a kilometre for more than 50% of the house-
holds; and,
 the number of house-holds having taken consumption loans being atleast 25% above the
state-average.
The percentage of such backward classes, called other backward classes (OBCs) by the
commission, has been worked out by them on the basis of the caste/community-wise population
figures from the census records of 1931 and reported to be 43.7%-52% Hindu OBCs and 8.4%
non-Hindu OBCs. However, in view of the Supreme Court’s judgment holding that total
reservation under articles 15(4) and 16(4) should be below 50%; the commission recommended
27% reservation for OBCs in all government services and recruitments to public sector
undertakings under the central and state governments, and also in technical and professional
institutions, both in the centre and the states.
It is to be noted that the Constitution has used the terms “caste” and “class” separately.
Unfortunately, the commission used the terms caste and class interchangeably as synonyms. This
report was basically a rehash of the first backward classes commission report rejected by the
government, in as much as it identified backward classes on the basis of castes.
Consequently, no action was taken on the Mandal Commission report for nearly a decade. It was
suddenly in 1990, the Government of India decided to implement the recommendations of the
Commission to provide 27% reservation to OBC in the civil posts and services under the
Government of India.
After the Government of India issued certain memoranda in 1990-91, pursuant to this report,
various writ petitions were filed challenging the constitutional validity of the Mandal
Commission report and office memoranda. These petitions were eventually heard and disposed
of on November 16, 1992 by a nine-judge bench in the celebrated case of Indra Sawhney v.
Union of India, popularly known as Mandal Commission case.
Indira Sawhney v. Union of India 199323

In 1992, the Supreme Court of India in Indira Sawhney case viewed that no reservations were
ever made in favour of other backward classes though made in favour of Scheduled Castes and
Scheduled Tribes so far as the Central services are concerned, upheld Implementation of separate
reservation for ''Other Backward Classes'' as to central government jobs are concerned.
In this case SC overruled Devadasan case24 AIR1964 SC 179 and held that the Carry Forward
Rule is valid provided it should not exceed 50% reservation.
To nullify this ratio of Court, 81st Constitution Amendment Act, 2000 was passed, whereby
Article 16(4B) was inserted which says in case of Carry Forward, 50% reservation may exceed.
Dr. Preeti Srivastava v. State Of Madhya Pradesh 199925

The Supreme Court held that Article 15(4) do not talks for the reservation in the specialized
areas and hence, no reservation shall be given in the specialized courses. The Court observed,
“It will not be possible for such candidates to fully benefit from the very limited and
specialised post-graduate training opportunities which are designed to produce high
calibre well trained professionals for the benefit of the public. Article 15(4) and the spirit
of reason which permeates it, do not permit lowering of minimum qualifying marks at the
post-graduate level to 20% for the reserved category as against 45% for the general
category candidates.”
Mrs. Valsamma Paul v. Cochin University 199626
The Supreme Court held that the purpose of reservation is the upliftment of the backward classes
of the society. It was viewed that
“The special provisions under Articles 15(4) and 16(4) of the Constitution are intended
for the advancement of socially and educationally backward classes.”
Unni Krishnan v. State of Andhra Pradesh 199327
It was held that right to establish educational institutions can neither be a trade or business nor
can it be a profession within the meaning of Article 19(1)(g). This was overruled in T.M.A. Pai
Foundation v. State of Karnataka28 and P.A. Inamdar v. State of Maharashtra29 Supreme
Court ruled that reservations cannot be enforced on Private Unaided educational institutions.
23
Indira Sawhney v. Union of India. A.I.R. 1993 S.C. 477.
24
T. Devadasan v. The Union of India, A.I.R.1964 S.C. 179.
25
Dr. Preeti Srivastava v. State of Madhya Pradesh, A.I.R. 1999 S.C. 2894.
26
Mrs. Valsamma Paul v. Cochin University, A.I.R. 1996 S.C. 1011.
27
Unni Krishnan v. State of Andhra Pradesh, [1993] 1 S.C.C. 645.
28
T.M.A. Pai Foundation v. State of Karnataka, [2002] 8 S.C.C. 481.
29
P.A. Inamdar v. State of Maharashtra, A.I.R. 2005 S.C. 3226.
93rd Constitution Amendment Act, 200530

This Amendment was initiated by then Hon'ble Education Minister Mr Arjun Singh. By this
Amendment Article 15(5) was added whereby 27% reservation was given in educational
institution in favour of SC, ST, and OBC. This Amendment was challenged. In the case of Ashok
Kumar Thakur v. Union of India,31 this 93rd Amendment was held Constitutional.
The 93rd Amendment violates the “basic structure of the Constitution” by imposing reservation
on unaided institutions. Imposing reservation on unaided institutions violates the “basic
structure” by stripping citizens of their fundamental right under Article 19(1)(g) to carry on an
occupation. T.M.A. Pai and Inamdar affirmed that the establishment and running of an
educational institution falls under the right to an occupation. The right to select students on the
basis of merit is an essential feature of the right to establish and run an unaided institution.
Reservation is an unreasonable restriction that infringes this right by destroying the autonomy
and essence of an unaided institution. The effect of the 93rd Amendment is such that Article 19
is abrogated, leaving the Basic Structure altered.
Society for Un-Aided Private School of Rajasthan v. Union of India 201232

It was held that Right of Children to Free and Compulsory Education Act 2009 is Constitutional
which provides 25% reservations in primary school.
Comparative Analysis
Reservation in Government Schools
Every parent tries to send their child to private & Convent schools and not the government
schools, why is it so? They spend thousands of rupees for this purpose but they don’t prefer to
avail the free education given by the state. The government schools face many problems like
shortfall of qualified teachers. The government on an average spends about 3% of the GDP on
education while countries that have developed at a fast pace have spent about 6% of their GDP
on education. Right to education till the age of 14 was made compulsory after the intervention of
the court.
Reservation in the Private Sector

Many, who criticize the reservation system, ask a same question “Is this nation only for the
backward? Why is it that every time the politicians are interested in the issues of the backward
classes?” The higher casts over the generations may have been very suppressive but that does not
mean that tools for empowerment like reservation are misused.
30
The Constitution (Ninety-third Amendment) Act, 2005, No. 93, Acts of Parliament, 2006 (India).
31
Ashok Kumar Thakur v. Union of India, 2008 (56) B.L.J.R. 1292 S.C.
32
Society for Un-Aided Private School of Rajasthan v. Union of India, [2012] 6 S.C.C. 1.
If real empowerment is the aim the backward should have urged the government to make good
schools and world class institutions for higher education and make conditions conducive for
availing of the reservation. This would go a long way in solving the problems faced by the
backward. If the backward rely on the politicians completely and think reservations would help
them out then they would be repeating the mistake that they have been repeating all these years.
It would only help in the concentration of power in a few among this class which is not the
purpose of giving reservation.
It is the very malfunctioning of the reservation system that has made it reach this stage where
they have started asking for reservation to be awarded in the private sector. If the whole
reservation policy would have been successful then reservation should have ended in the
educational institutions itself as those who would have got into these institutions would have
developed their skills whereby they could work as professionals or join the public sector
depending upon their interest. But the backward also have to change their mind set as they feel
they would keep getting reservation throughout so why work.
Conclusion:
The scheme of reservation is criticized by many in our Indian society. Though the Constitutional
Scheme of reservation is appreciable but its political implication is the main issue that is
prevailing in the society. It has increasingly been the case with the politicians. When every
election nears then they have some kind of reservation or the other being announced which is just
a mechanism to get votes. And, as the tragedy posits itself, the politicians have been capitalizing
on this to divide the country even further.
A better mechanism would be identifying the backwardness based on the economic background.
After seeing the functioning of the reservation policy for all these years it’s high time to shift
from this criterion of reservation to the economic criteria. Although it is not very easy to do the
same but at least there should be a patient try on the part of the legislature in India to implement
such proposals. This would in turn help equality reach the masses and not get misused as of now
which is the aim of the framers of the Constitution as well.
Article 17
 Untouchability is abolished.
 Its practice in any form is forbidden.
 Enforcement of any disability arising out of untouchability shall be an offence.
 Punishable by law
Enactments under article 17
 Protection of Civil Rights Act 1955

 SCs and STs (Prevention of Atrocities) Act 1989
Abolition of title: Article 18
 State shall not confer any title except for military or academic distinction.
 No citizen of India shall accept any title from any foreign State.
 Note: Bharat Ratna, Padma Vibhusan etc. are National Awards and not Titles. These
should not be prefixed and suffixed; Balaji Raghavan v. Union of India [1996 SC]
FREEDOM OF SPEECH AND EXPRESSION

[Article 19]
Clause (a) to (g) of Article 19(1) guarantee to the citizens of India six freedoms, viz., of ‘speech
and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and
‘practicing any profession and carrying on any business’.
These various freedoms are necessary not only to promote certain basic rights of the citizens but
also certain democratic values in, and the oneness and unity of, the country. Art. 19 guarantee
some of the basic, values in, and the oneness and unity of, the country. Art. 19 guarantee some of
the basic, valued and natural rights inherent in a person.
These rights are not exhaustive of all the rights of a free man who has far more and wider rights.
The freedoms enumerated in Article 19(1) are those great and basic rights which are recognized
as the natural inherent in the status of a citizen. According to Supreme Court, it is possible that a
right does not find express mention in any clause of Art. 19(1) and yet it may be covered by
some clause therein. This gives an additional dimension to Article 19(1) in the sense that even
though a right may not be explicit, it may yet be implicit in the various clauses of Art.19.
The principle on which the power of the State to impose restriction is based is that all individual
rights of a person are held subject to such reasonable limitations and regulations as may be
necessary or expedient for the protection of the general welfare. In the words of Das, J., “social
interest in individual liberty may well have to be subordinated to other greater social interests.
Indeed, there has to be a balance between individual rights guaranteed under Article 19(1) and
the exigencies of the State which is the custodian of the interests of the general public, public
order, decency or morality and of other public interests which may compendiously be described
as social welfare.”
A law restricting the exercise of any of the seven freedoms guaranteed by clause (1) of Article 19
to be constitutionally valid, must satisfy two conditions, namely:-
(1) The restriction must be for the particular purpose mentioned in the clause permitting the
imposition of the restriction on that particular right, and permitting the imposition of the
restriction.
(2) The restriction must be a reasonable restriction.
It may be emphasized that the requirement that a restriction should be reasonable is of great
constitutional significance, for it acts as a limitation on the power of the legislature, and
consequently, widens the scope of judicial review of laws restraining the exercise of freedoms
guaranteed by Article 19.
Freedom of speech is essential for the proper functioning of the democratic process. The freedom
of speech and expression is regarded as the first condition of liberty. It occupies a preferred
position in the hierarchy of liberties giving succor and protection to all other liberties.
The test of reasonableness has to be applied to each individual statute impugned and no abstract
standard or general pattern of reasonableness can be laid down as applicable to all cases. The
meaning would vary according to which of the six rights guaranteed under clause (1) is being
restricted by the impugned law. Some of the principles which the Supreme Court has affirmed in
ascertaining the reasonableness of restrictions on the exercise of the rights secured under this
article.
1. Reasonableness demands proper balancing: – The phrase ‘reasonable restrictions’ connotes
that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of
an excessive nature. Legislation which arbitrarily or excessively invades any of the six freedoms
cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance
between the freedoms guaranteed under Article 19(1) and social control permitted by clauses (2)
to (6) of Article 19, it must be held to be wanting in reasonableness.
2. Reasonableness both substantive and procedural: – In determining the reasonableness of a

statute, the court would see both to the nature of the restriction and procedure prescribed by the
statute for enforcing the restriction on the individual freedom. Principles of natural justice are an
element in considering the reasonableness of a restriction where Article 19 is applicable.Absence
of provision for review makes the provisions unreasonable.
3. Reasonableness and objective concept: – The reasonableness of a restriction has to be

determined in an objective manner and from the standpoint of the interests of the general public
and not from the point of view of the persons upon whom the restrictions are imposed or upon
abstract considerations.
4. Reasonableness of restriction and not of law: – The court is called upon to ascertain the
reasonableness of the restriction and not of the law which permits the restriction. A law may be
reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.
5. Reasonableness includes total prohibition: – The word ‘restriction’ also includes cases of
prohibition and the State can establish that a law, though purporting to deprive a person of his
fundamental right, under certain circumstances amounts to a reasonable restriction only.
6. Reasonableness and American ‘Due Process’: – The Constitution framers deliberately

avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility and
attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’, and caution
has, therefore, to be exercised before the literal application of American decisions. Our
Constitution provides reasonably precise general guidance in this matter.
7. Reasonableness and Directive Principles of State Policy: – That the restrictions are imposed
in carrying out the Directive Principles of State Policy is a point in favour of the reasonableness
of the restrictions.
8. Reasonableness of Taxes: – Prima facie a tax is not a restriction on any of the freedoms
guaranteed under Article 19. Mere excessiveness of a tax is not a ground for challenging it as a
restriction on one of the freedom in Article 19(1).
Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under
Article 19(2), reasonable restrictions can be imposed on the exercise of this right for certain
purposes. Any limitation on the exercise of the right under Art. 19(1)(a) not falling within the
four corners of Art. 19(2) cannot be valid.
The freedom of speech under Article 19(1) (a) includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture,
film, movie, etc. It thus includes the freedom of communication and the right to propagate or
publish opinion. But this right is subject to reasonable restrictions being imposed under Art.
19(2).
The ‘freedom of speech and expression’ includes the right to acquire information and
disseminate the same. It includes the right to communicate it through any available media
whether print or electronic or audio-visual. This freedom includes the freedom to communicate
or circulate one’s opinion without interference to as large a population in the country, as well as
abroad, as is possible to reach.
Freedom of the press is implied from the freedom of speech and expression guaranteed by
Article 19(1) (a). There is no specific provision ensuring freedom of the press as such. The
freedom of the press is regarded as a “species of which freedom of expression is a genus. Thus
being only a right flowing from the freedom of speech, the freedom of the press in Indian stands
on no higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as
such distinct from freedom of the citizen.
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside
the government as an additional check on the three official branches- executive, legislative and
the judiciary. It is the primary function of the press to provide comprehensive and objective
information on all aspects of the country’s social, economic and political life. The press serves as
a powerful antidote to any abuse of power by government officials and as a means for keeping
the elected officials responsible to the people whom they were elected to serve.
The Supreme Court has emphasized that the freedom of the press is not so much for the benefit
of the press as for he benefit of the general community because the community has a right to be
supplied with information and the government owes a duty to educate the people within the
limits of its resources.
Imposition of pre-censorship on publication is, therefore, unless justified under clause (2),
violative of freedom of speech and expression. In Brij Bhushan v. State of Delhi AIR 1950 SC
129, an order issued under East Punjab Safety Act, directing the editor and publisher of a
newspaper “to submit for scrutiny, in duplicate, before publication ,till further orders, all
communal matters and news and views about Pakistan, including photographs and cartoons”,
was struck down by the Supreme Court observing, there can be little doubt that the imposition of
pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of
the freedom of speech and expression declared by Art. 19(1)(a).
Das C.J. said in Virendra v. State of Punjab AIR 1957 SC 896, that “It is certainly a serious
encroachment on the valuable and cherished right to freedom of speech if a newspaper is
prevented from publishing its own view or views of its correspondents”.
Freedom of speech and expression includes the freedom of propagation of ideas and is ensured
by the freedom of circulation. In Romesh Thappar v. State of Madras AIR 1950 SC 124, the
notification banning the entry into or circulation, sale, or distribution in the State of Madras or
any part of it of the newspaper entitled ‘Crossroads’ published at Bombay was held invalid
because, “without liberty of circulation, the publication would be of little value”.
The right of freedom of speech is infringed not only by a direct ban on the circulation of a
publication, but also by an action of the government which would adversely affect the circulation
of the paper. In Sakal Papers v. Union of India AIR 1962 SC 305, a government order which
fixed the number of pages and size which a newspaper could publish at a price was challenged
by the petitioners on the ground that it infringed the liberty of the press implicit in the terms of
Art. 19(1)(a). The order affected the liberty of the press because its adoption would mean, the
petitioners explained, either the reduction in the existing number of pages or raising of the price.
In either case, there would be reduction in the volume or circulation of the paper and therefore a
direct violation of the liberty of the press. On behalf of the State, the law was justified as a
reasonable restriction on the business activity of a newspaper in the interests of the general
public.
The Court agreed that newspapers have two aspects-dissemination of news and views and
commercial. The two aspects are different, the former falls under Art. 19(1)(a) read with Art.
19(2), and the latter falls under Art. 19(1)(g) and can be regulated under Art. 19(6). However, the
state cannot seek to place restriction on business by directly immediately curtailing any other
freedom of the citizen guaranteed by the constitution and which is not susceptible of abridgement
on the same grounds as are set out in Art. 19(6). “Therefore, the right of freedom of speech
cannot be taken away with the object of placing restrictions on the business activities of a citizen.
The Court accepted the plea of the petitioners that the order affected the circulation and so
restrained the dissemination of news and views which a newspaper had the freedom to do. The
order was struck down and held to be inoperative. Therefore, referring the press as a business
and justifying the impugned restriction under Art. 19(6) as a proper restriction on the right to
carry on the business of publishing a newspaper “would be wholly irrelevant for considering
whether the impugned Act infringes or does not infringes the freedom guaranteed by Art.
19(1)(a).” This means the freedom of speech cannot be restricted for the purpose of regulating
the commercial aspects of the activities of the newspapers.
Bennett Coleman & Co. v. Union of India AIR 1973 SC 106, is a case of great significance in
the area of freedom of speech and expression. India faces a shortage of indigenous newsprint.
Because of the shortage of foreign exchange, quantity of newsprint imported was not adequate to
meet all requirements. Some restrictions, therefore, become necessary on the consumption of
newsprint. Accordingly, s system of newsprint quota for newspapers was evolved. The actual
consumption of newsprint by newspaper during 1970-71 & 1971-72, whichever was less, was
taken as the base. For dailies with a circulation up to 1,00,000 copies, 10% increase in the basic
entitlement was to be granted, but for newspapers with a larger circulation, the increase was to be
only 3%. Newspapers with less than 10 pages daily could raise the number of pages by 20%
subject to the ceiling of 10. A few more restrictions were imposed on the user of newsprint. This
newsprint policy was challenged in the Supreme Court.
By a majority, the Supreme Court declared the policy unconstitutional. While the Government
could evolve a policy of allotting newsprint on a fair and equitable basis, keeping in view the
interests of small, medium and big newspapers, the Government could not, in the grab of
regulating distribution of newsprint, control the growth the circulation of newspapers. In effect,
here the newsprint policy became the newspaper control policy. While newsprint quota could be
fixed on a reasonable basis, post-quota restrictions could not be imposed. The newspapers should
be left free to determine their pages, circulation and new editions within their fixed quota. The
policy of limiting all papers whether small or large, to 10 pages was held to be discriminatory as
it treated unequal as equals. The restrictions imposed cut at the very root of the guaranteed
freedom. In the words of the Court, “Freedom of the press is both qualitative and quantitative.
Freedom lies both in circulation and in content.”
The Supreme Court in concluded in Tata Press v. MTNL AIR 1995 SC 2438 that “commercial
speech” cannot be denied the protection of Art. 19(1)(a) merely because the same is issued by
business man. “Commercial Speech” is a part of freedom of speech guaranteed under Art.
19(1)(a). The public at large has a right to receive the “commercial speech”. The protection of
Art. 19(1)(a) is available both to the speaker as well as the recipient of the speech.
The Supreme Court accepted as valid the printing of yellow pages by the Tata Press. Printing of
a directory of telephone subscribers is to be done exclusively by the Telephone Department as a
part of its service to the telephone subscribers. But yellow pages only contain commercial
advertisements and Art. 19(1)(a) guarantee freedom to publish the same.
In LIC v. Manubhai D. Shah AIR 1993 SC 171, the Supreme Court stated a liberal
interpretation should be given to the right of freedom of speech and expression guaranteed by Rt.
19(1)(a) . The Court has characterized this right as a “basic human right”. This right includes
“the right to propagate one’s views through the print media or through any other communication
channel, e.g. the radio and television”. Thus, every citizen “has the right to air his or her views
through the print and/or the electronic media subject, of course, to permissible restrictions
imposed under Art. 19(2) of the Constitution.
In this case the Supreme Court has taken cognizance of two situations. One, the respondent
circulated a research article suggesting that the LIC was charging unduly high premiums from
those who took out life insurance policies. The LIC published a counter reply to this paper in a
daily newspaper and also in its own in-house magazine. The respondent then prepared a
rejoinder and got it printed in the same daily newspaper. He also wanted the LIC to print his
rejoinder in their magazine, but the LIC refused to do so. The Supreme Court was called upon to
decide the question whether the LIC was right in refusing to publish the rejoinder the responded
in magazine. Answering in the negative the court pointed out that the attitude of the LIC was
both “unfair and unreasonable”-unfair because fairness demanded that both view points were
placed before the readers and unreasonable because there was no justification for refusing
publication. By refusing to print and publish the rejoinder the LIC had violated the respondent’s
Fundamental Right.
Every free citizen has an undoubted right to lay what sentiments he pleases before the public.
Freedom of speech and expression is subject only to the restrictions imposable under Art. 19(2).
Efforts by intolerant authorities to curb or suffocate this freedom must be firmly replied, more so
when public authorities betray autocratic, tendencies.
LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament requires LIC
to function in the best interest of the community. The community is, therefore, entitled to know
whether or not, this requirement of the statute is being satisfied in the functioning of the LIC.
The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to
be imposed by the latter has been recognized. On further consideration in Secretary, Ministry
I&B v. Cricket Association of Bengal AIR 1995 SC 1236, the Court has held that air waves or
frequencies are public property, their use must be controlled and regulated by a public authority
in the interest of public and to prevent the invasion of their rights. As the electronic media
involves the use of the air wages, this factor creates an inbuilt restriction on its use as in the case
of any other public property. This limitation in the nature of public property involved in the
electronic media is in addition to the grounds of restriction on the right of freedom of speech and
expression under Art. 19(2). Accordingly, while an individual has a right under Art. 19(1)(a) to
have an access to telecasting, this right is subject to the limitation on account of use of public
property, i.e. the air waves involved in the exercise of the right can be controlled and regulated
by the public authority even on grounds not strictly covered under Art. 19(2). The Court also
asked the Central Government to take immediate steps to establish an independent autonomous
public authority representative of all sections and interests of the society to control and regulate
the use of air waves. The provision for the Prasar Bharti seems to be taking care of this issue.
Virendra v. State of Punjab, The general principle is that it is unreasonable to leave absolute
and arbitrary discretion to an administrative officer to regulate the freedom of speech and
expression. The discretion to be valid must be exercisable for purposes specified in Art. 19(2),
and subject to legislative policy and procedural safeguards. Like, banning of publication in any
newspaper of any matter relating to a particular subject or class of subjects would be obnoxious
to the right of free speech.
The significant judicial pronouncement in the area is Virendra v. State of Punjab. This is an
important decision of the Supreme Court illustrating the Scope of Permissible restriction on the
right of freedom of speech and expression. Punjab Special Powers (Press) Act empowered the
State Government to:
 Prohibit the Printing or Publication of any article, report news item, letter or any other
material relating to or connected with “Save Hindi Agitation”;
 The imposition of ban against the entry and circulation of the said papers published from
New Delhi in the State of Punjab and
 Authorizing the State Government of its delegate to impose Pre-censorship, for a

maximum period of two months in any issue of a newspaper.
These provisions were challenged on the ground of giving arbitrary and uncontrolled discretion
to the government to curtail freedom of speech ‘on its subjective satisfaction’. The Supreme
Court pointed out that there existed in Punjab serious tension amongst the various communities
and in such a situation, conferment of wide powers to be exercised in the subjective satisfaction
of the government could not be regarded as an unreasonable restriction. The State Government
being in possession of all material facts, was the best authority to take anticipatory action for
prevention of threatened breach of peace. Therefore, determination of necessity be left to the
judgment and discretion of the government. To make the exercise of those powers justiciable
would defeat the very purpose of the Act.
The first provision relating to ban on publication of news, etc. was upheld in the time of tension
brought about or aided by the ‘Save Hindi Agitation’, taking into consideration the safeguard
provided therein, as being a reasonable restriction and procedurally reasonable were:
(a) The positive requirement of the existence of the satisfaction of the authority as to the
necessity for the making of order for the specific purposes mentioned in the Act.
(b) The discretion was given in the first instance to the State Government and not to every
subordinate officer to determine the necessity of passing the order.
(c) The order could remain in force only for two months from the making thereof.
(d) The aggrieved party was given the right to make representation to the State government
which could, on consideration thereof, modify, confirm or rescind the order.
The second provision of the Act mentioned above, namely the power to impose a ban against the
entry and the circulation of the paper, was not sustained as a reasonable restriction on the
freedom of speech because there was no time-limit for the operation of an order made against a
paper and also because there was no provision made for any representative being made to the
State Government.
Further the court held that a law conferring discretion on the executive could not be invalid if it
laid down the policy so that discretion was exercised to effectuate the policy. The law in question
satisfied this test for it laid down the purpose for which the power could be exercised. Further
there were two safeguards subject to which the government was to exercise its power, viz., an
order could remain in force only for two months, and the aggrieved person could make a
representation to the government against the order, and so Act as a whole was valid of the order,
nor did it provide for any representation to the government against the order.
PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

[Article 20]
Article 20 : Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of the law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the commission of
the offence
(2) No person shall be prosecuted and punished for the same offence more than once
(3) No person accused of any offence shall be compelled to be a witness against himself
Protection against Ex-Post Facto Law

 An Ex-Post Facto law is a law which imposes penalties retroactively, that is, upon acts
already done, or which increases the penalty for the past acts.
 (1) No person shall be convicted to any offence except for violation of a law in force at
the time of the commission of the act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the time of the
commission of the offence
 No person is to be convicted of an offence except for violating a ‘law in force’ at the time
of commission of the act charged as an offence
 For example sec. 304B of IPC was enacted on 19-11-1986 making dowry death
punishable as an offence
 Section 3(38) of the GC Act defines ‘offence’ as any act or omission made punishable by
any law for the time being in force
 The meaning of ‘penalty’ a payment which has to be made or a deprivation of liberty

which has to be suffered as a consequence of finding that the person accused of a crime is
guilty of the offence
 Art.20(1) does not bar a civil liability being imposed retrospectively
 A tax can be imposed retrospectively
 The trial conducted before the commencement of the Act which is in totality different
from the later Act cannot be declared ipso facto unconstitutional
 The change of the place of trial does not effect Art.20(1)
Sajjan singh v. State of Punjab AIR 1964 SC 464
 Sec 5(3) of the Prevention of Corruption Act has been created in order to punish corrupt
government officers. It creates the offence of criminal misconduct
 It creates a presumption to the effect that if the government servant for corruption has in
his possession property or assets which was wholly disproportionate to his known sources
of income and if he cannot explain the same satisfactorily, then he is guilty of criminal
misconduct
 The argument raised was Sec.5(3) talks about the property which was raised or acquired
after the Act came into force
 If it talks about the property which was raised or acquired before the Act came into force
will be like giving retrospective effect and is barred under Art. 20(1)
 The court explained the position as follows:
 “ A statute cannot be said to be retrospective because a part of the requisites for its action
is drawn from a time antecedent to its passing
 Sec.5(1) prescribes the offence of criminal misconduct for which an accused

person is already under trial for the acts committed after the Act came into force
 Sec.5(3) is a tool provided to the prosecution to prove an offence with which an
accused has already been charged
 Sept 30 (passed on )and August 1 (given effect from)
 ‘Factually’ in force is required
In America, ex-post facto law is in itself invalid
In India, courts have discretion to give retrospective effect to an Act
Art.20(1) immunizes a person from a penalty greater than what he might have incurred at the
time of his committing the offence [K. Satwant Singh v. State of Punjab AIR 1960 SC 266]
Sec. 420 IPC, no minimum sentence of fine has been proivded and it an unlimited fine can
be imposed
Section 420. Cheating and dishonestly inducing delivery of property
Whoever cheats and thereby dishonestly induces the person deceived any property to any person,
or to make, alter or destroy the whole or any part of a valuable security, or anything which is
signed or sealed, and which is capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.
 Later in 1943, an ordinance laid down the minimum fine which a court must
compulsarily inflict on a person convicted under section 420
 SC held that the Art.20(1) cannot be inflicted in this case, because the fine imposed
should be greater than the already imposed fine to bring Art. 20(1) into light
West Bengal v. S.K.Ghosh AIR 1963 SC 255

 Government servant embezzled government money before August, 1944
 Ordinance passed in 1944 – provided that from the property of a person convicted for
embezzlement, the amount embezzled by him was to be forfeited
 This was challenged under Art. 20(1)
 Court Held that
 It is not a fine
 It is a method of recovery i.e., also speedy recover
 So not attracted under Art. 20(1)
 It only deals with criminal offences not civil offfences
Sarala Mudgal v. UOI AIR 1995 SC 1531

 The second marriage of a Hindu husband after conversion to Islam without having his
first marriage dissolved according to law, would be invalid and the husband would be
guilty of the offence under 494 IPC
Lily Thomas v. UOI AIR 2000 SC 1650

 The SC declared that the law declared in the Sarala case could not be given retrospective
effect because of Art. 20(1);
 It ought to be given only prospective operation so that the ruling could not be applied to a
person who had already solemnized the second marriage prior to the date of Sarala case
 SC rejected the contention arguing that it had not laid down any new law in that case.
 It only interpreted the law which had always been in existence
 It can be given effectiveness only from the date of the law itself not from the date of
judgment
 The duty of the court is to interpret not to legislate
Rule of beneficial construction

Rattan Lal v. State of Punjab AIR 1965 SC 444.
 16 years boy guilty of committing house trespass and outraging the modesty of a girl and
was awarded rigorous imprisonment for 6months.
 After the judgment Probation of Offenders Act, 1958 came into force. The Act was a
reformative measure and said that person below 21 should not ordinarily be punished.
 SC held that the Rule of Beneficial Construction requires that even a ex-post facto law
can be applied to reduce the punishment.
Article 20(2): No person shall be prosecuted and punished for the same offence more than
once
Gurantee against double jeopardy
 Nemo debet bis vexari – a man must not be put twice in peril for the same offence
 English common law principle
 When a person has been convicted for an offence by a competent court, the conviction
serves as a bar to any further criminal proceedings against him for the same offence
 If a person is indicted again for the same offence in a court, he can plead, a as a complete
defense, his formal acquittal or conviction or autrefois acquit or autrefois convict
 5th amendment of the U.S. Constitution provides : “Nor shall any person be subject for
the same offence to be put twice in jeopardy of life or limb”
 The protection is not only against a second punishment but even against the peril in
which a person is placed by the second trial for the same offence
 In India, we have only autrefois convict but not autrefois acquit
 Art.20(2) may be invoked only when there has been prosecution and punishment in the
first instance
 If a person has been prosecuted for an offence but acquitted, then he can be prosecuted
for the same offence again and punished
 When a trial has for some reason become abortive either because of some inherent defect
or illegality affecting the validity of the trial itself, a second trial is not barred by
Art.20(2)
 Enhancement of punishment by the revising authority does not amount to a second

punishment
 The double jeopardy rule is applicable only in the case of ‘same offence’
 If the same act is falling under two different offences, then the punishment of one offence
does not bar prosecution and punishment for the other offence
State of Bombay v. S.L. Apte AIR 1961 SC 578

 A person was convicted under Sec.409 IPC, for criminal breach of trust
 He was prosecuted later under section 105 of the Insurance Act because the act done by
that person was falling under that provision also
 He claimed the protection against double jeopardy under art.20(2)
 The SC emphasized that the crucial requirement for attracting Art. 20 (2) is that the
offences are the same.
 It is necessary to analyze and compare not the allegations in the two complaints but the
ingredients of the two offences and see whether their identity is made out
 So judged, there can be no doubt that in spite of the presence of certain common elements
between the two, the offences under S. 409 of the Indian Penal Code and S., 105 of the
Insurance Act are distinct in their ingredients, content and scope and cannot be said to be
identical. Hence not violative of Art 20(2)
Leo Roy Frey v. Suptd., District Jail AIR 1958 SC 119

 The petitioner in the above case was found guilty of offence under section 107(8), Sea
Customs Act, 1878 and was punished accordingly
 Thereafter, the prosecution for criminal conspiracy under section 120-B of IPC was
brought against him
 He claimed protection against double jeopardy
 The offence of a conspiracy to commit a crime is an offence separate from the crime
itself
 Crime is the object of the conspiracy
 Conspiracy precedes the commission of the crime and is complete before the crime is
attempted or committed
 The crime of offence does not require the element of conspiracy as one of its ingredients
in- spite of the attempt or completion of the crime
 So, the punishment for one offence does not bar the prosecution for another offence
Maqbool Hussain v. State of Bomaby AIR 1953 SC 325

 Appellant on arrival in India, did not declare to the custom authorities that he is carrying
gold with him. After checking action was taken against him under Sea Customs Act,
1878 and his golf was confiscated.
 Later on he was prosecuted under the FERA, 1947. He pleaded violation of Art 20(2).
 Court held that the Sea Customs Authority is not a Court or Judicial Tribunal and
confiscation was court was not judgment of the Court. Hence no violation.
 Prosecution
 For the purpose of Art.20(2), the former ‘prosecution’ must be criminal in nature
 Must be before a court of law, or a judicial tribunal ------ required by law to decide
matters in controversy judicially on evidence and on oath which must be authorized
by law to administer
 Not before a tribunal which entertains a departmental or administrative enquiry, even
though set up by a statute, but not required to proceed on legal evidence given on oath
S.A.Venkataraman v. UOI AIR 1954 SC 375

 Venkataraman was a government servant, who was dismissed after an inquiry under the
Public Servants (Inquires) Act.
 Thereafter he was tried under Ss.161 and 165 of IPC and S.5(2) of the Prevention of
Corruption Act
 The earlier enquiry was not covered under Art.20(2)
Privilege against self-incrimination

 Fifth amendment of the U.S. Constitution provides……….
“No person shall be compelled in any criminal case, to be a witness against himself”
 In Britain also the same privilege has been accorded to an individual
 In India
 That the accused is presumed to be innocent

 That it is for the prosecution to establish his guilt
 That the accused need not make any statement against his will
 If compulsory examination of an accused were to be permitted may lead to force and

torture. It enables the maintenance of human privacy and observance of civilized
standards in the enforcement of criminal justice.
Article 20(3) : No person accused of any offence shall be compelled to be a witness against
himself
 It is a right available to a person ‘accused of an offence’
 It is a protection against ‘compulsion’ to be a witness
 It is a protection against such ‘compulsion’ resulting in his giving evidence ‘against
himself’
Any of these ingredients is missing Art.20(3) cannot be invoked
Types of incriminating evidence covered by Art. 20(3)

 Testimonial compulsion – it covers oral testimony and also something beyond that
 A person can be a witness not merely by giving oral evidence but also by producing
documents or making intelligible gestures as in the case of a dumb witness
Mohd. Datagir v. State of Madras AIR 1960 SC 756

 Appellant offered bride to the police official in a closed envelop. The Appellant threw the
envelop at the table.
 Later he was asked by the police to reproduce the envelop and currency notes seized.
 The appellant pleaded that production of seized currency notes from the envelop would
amount to admission and compelled evidence.
 Court rejected this contention saying there was no compulsion and that when the notes
were seized he was not accused.
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808

 Whether Art.20(3) is violated when the accused is directed to give his specimen
handwriting, or signature, or the impression of his palms and fingers
 Interpretation of the words ‘to be a witness’
 Self-incrimination must mean conveying information based upon the personal knowledge
of the person giving information and covers only personal testimony which must depend
upon his volition (choice)
 If it is a document which is not his statement conveying his personal knowledge relating
to the charge against him, he may be called upon by the court to produce the document
 It was decided that Art.20(3) would not include signature, thumb impression, impression
of the palm or foot or fingers, or specimen of handwriting or exposing parts of his body
by an accused for the purposes of identification
Compulsion
 If the police officer obtained statement by using third degree methods it is covered under
Art.20(3)
 Mental stress or pressure creating circumstances are covered under Art.20(3)
 Evidence given by the accused without any threat/compulsion is admissible under section
27 of the Indian Evidence Act and is not covered under Art. 20(3)
 Telephone tapping is not covered under art.20(3)
 Voluntary statement by accused is not covered under art.20(3)
 Section 342 A of Cr.P.C permits the accused to offer himself as a witness
 It lays down that the accused’s failure to give evidence is not to be the subject of any
comment by any party or the court, or is not to give rise to any presumption against him
 No adverse inference can be drawn from the failure of accused to testify
 Under sec.26 of the Evidence Act, no confession made by a person while in police
custody is to be proved against him unless it has been made in the immediate presence of
a magistrate
 Under S.164 Cr.P.C, confession has been recorded, but during session, he retracts from
the statement before court
 A retracted confession has little probative value but is not inadmissible under art.20(3)
Required points to seek protection under Article 20(3)

 That the individual concerned was a person accused of an offence and
 That he was compelled to be a witness against himself
 Search and seizure are not covered under art.20(3)
Section 342 Cr.P.C, 1989 or sec.313 Cr.P.C, 1973

 It permits the courts to question the accused generally after witnesses for him have been
examined.
 The court may draw such inference from his refusal or answers as it thinks just
 This section does not contravene Art.20(3)
 Because the answers by the accused can only be taking in consideration at the inquiry and
they are not in substitution of the evidence by the prosecution which must make out its
case by evidence
 The object of the section is not to build up a case against the accused from his answers or
non-answers but to test by explanation furnished by him, the truth of the prosecution
version
 When the answers given by the accused satisfactorily explain the prosecution evidence,
there could be no conviction
 If they rebut he would be convicted
 Compulsion in the context of art.20(3) must proceed from another person or authority
 Art.20(3) is protection to the accused to incriminate himself under compulsion
 It does not bar the information regarding matters which do not incriminate him
Person accused of an offence

 Art.20(3) is applicable to corporation also “if accused of an offence’
 Art.20(3) is applicable only to those ‘who are accused of an offence’
 If later he is accused for an offence, Art.20(3) will not apply
 It is well settled that with the lodging of a first information report (FIR) a person is
accused of an offence within the meaning of Art.20(3)
 The privilege is available for pre-trial and post-trial offences
 The words in Art.20(3) is ‘to be a witness’ not ‘to appear as a witness’
 Whether Art.20-(3) is available only to accused or to suspect also
 The court held that it is available to accused only in Oghad case
Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025

 Nandini was directed to appear at the police station for being examined in connection
with a case registered against her under the Prevention of Corruption Act
 On the basis of FIR, investigation was commenced against her and she was interrogated
by the police for long, but she refused to give answers by claiming Art.20(3)
 Krishna Iyer J., opined that Art.20(3) ought to extend to police investigation also since
enquiries under criminal statutes with quasi-criminal investigations are of an accusatory
nature and are sure to end in prosecution, if the offence is grave and the evidence
gathered is good
 The court observed that it extends to ‘any compulsory process for production of
evidentiary documents which are reasonably likely to support a production against him
The accused is also entitled to be silent if the answer sought has a reasonable prospect of
exposing him to guilt in some other accusation actual or imminent
Art.20(3) is not applicable to
 Civil proceedings
 Administrative proceedings
Administrative proceedings
 Art.20(3) is not applicable to administrative investigations even though the primary aim
of these proceedings may be to find out whether the individual has committed an offence
or not
Selvi v. State of Karnataka 2010

 The issue whether the practise of narcoanalysis, brain mapping, FMRI and polygraph
test is against Article 20(3) of the constitution.
 In our considered opinion, the compulsory administration of the impugned techniques

violates the ‘right against self-incrimination’. This is because the underlying rationale of
the said right is to ensure the reliability as well as voluntariness of statements that are
admitted as evidence. This Court has recognised that the protective scope of Article 20(3)
extends to the investigative stage in criminal cases and when read with Section 161(2) of
the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as
witnesses who are examined during an investigation. The test results cannot be admitted
in evidence if they have been obtained through the use of compulsion. Article 20(3)
protects an individual’s choice between speaking and remaining silent, irrespective
of whether the subsequent testimony proves to be inculpatory or exculpatory. Article
20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to
the facts in issue’. The results obtained from each of the impugned tests bear a
‘testimonial’ character and they cannot be categorised as material evidence.
RIGHT TO LIFE AND PERSONAL LIBERTY

[Article 21]
Article 21: Protection of Personal Life and Liberty: – No person shall be deprived of his life
or personal liberty except according to procedure established by law.
Article 21, though couched in negative language, confers on every person the fundamental right
to life and personal liberty. The two rights have been given paramount position by our Courts.
The right to life which is the most fundamental of all is also the most difficult to define.
Certainly it cannot be confined to a guarantee against the taking away of life; it must have a
wider application. With reference to a corresponding provision in the 5th and 14th amendments
of the U.S. Constitution, which says that no person shall be deprived of his “life, liberty or
property without due process of law”.
The word ‘due’ in this clause is interpreted to mean ‘just’, ‘proper’ or ‘reasonable’, according to
the judicial view. Due process has two aspects. Substantive due process envisages that the
substantive provisions of a law should be reasonable and not arbitrary. Procedural due process
envisages a reasonable procedure, i.e., the person affected should have fair right of hearing
which includes four elements;
 notice,
 opportunity to be heard,
 an impartial tribunal and
 an orderly procedure
The term ‘life’ as here used something more is meant than mere animal existence by which life is
enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm
or leg, or the putting out of an eye, or the destruction of any other organ of the body through
which the soul communicates with the outer world.
For some time the Court held that the view that right of life in Art. 21 does not include right to
livelihood. After some controversy on the issue the Court has clearly held that right to livelihood
is included in the right of life “because no person can live without the means of living, that is, the
means of livelihood.
The Court has also observed that life ‘includes all that give meaning to a man’s life including his
tradition, culture and heritage and protection of that heritage in its full measure’. Again, the
Court has held that right to life includes the right to ‘a reasonable accommodation to live in’ and
right to shelter, includes the necessary infrastructure to live with human dignity. The offence of
rape has also been held to be a violation of the right of life under Art. 21. Right to self-
preservation has also been recognized under the Article. Art. 21 has also been invoked for the
upliftment of and dignified life for the prostitutes.
More importantly, in Unni Krishanan v. State of A.P. AIR 1993 SC 2178 the Court has
recognized a fundamental right to education in the right to life under Art.21. Taking help from
Article 41 and 45 it has held that ‘every child/citizen of this country has a right to free education
until he completes the age of fourteen years. Thereafter his right to education is subject to the
limits of economic capacity and development of the State. But this right does not include the
right to participate in the student union activities and to contest union elections.
In Article 21, in contrast to with the American Constitution, the word ‘liberty’ is qualified by the
word ‘personal’, leading to an inference that the scope of liberty under our Constitution is
narrower than in the U.S. Constitution. Seemingly that was the impression drawn by some of the
judges in A.K. Gopalan v. State of Madras AIR 1950 SC 27. Though that case was concerned
about the constitutionality of preventive detention of the petitioner which in any case was an
infringement of the ‘personal liberty’ even in the narrowest sense of the term and therefore it
may be said that the scope of ‘personal liberty’ was not an issue in that case, yet some of the
learned judges looking at the difference in the expression in U.S. and Indian Constitutions and
relying upon the meaning given to ‘personal liberty’ by some English jurists concluded that
‘personal liberty’ was confined to freedom from detention or physical restraints. “But there was
no definite pronouncement made on this point since the question before the Court was not so
much the interpretation of the words ‘personal liberty’ as the inter-relation between Article 19
and 21.
For the First time the meaning and scope of ‘personal liberty’ came up pointedly for
consideration in Kharak Singh v. State of U.P. AIR 1963 SC 1295. In that case validity of
certain police regulations which, without any statutory basis, authorized the police to keep under
surveillance persons whose names were recorded in the ‘history-sheet’ maintained by the police
in respect of persons who are or are likely to become habitual criminals. Surveillance as defined
in the impugned regulation included secret picketing of the house, domiciliary visits at night,
periodical inquiries about the person, an eye on his movements, etc. The petitioner alleged that
this regulation violated his fundamental right to movement in Article 19(1) (d) and ‘personal
liberty’ in Art. 21. For determining the claim of the petitioner the Court, apart from defining the
scope of Art. 19(1) (d) had to define the scope of ‘personal liberty’ in Art. 21.
The Court rejected that ‘personal liberty’ was confined to “freedom from physical restraint or
freedom from confinement within the bounds of a prison” and held that “personal liberty” is used
in the article as a compendious term to include within itself all the varieties of rights which go to
make up the ‘personal liberty’ of man other than those dealt with in several clauses of Art.19(1).
In other words, while Article 19(1) deals with particular species or attributes of that freedom,
‘personal liberty’ in Art. 21 takes in and comprises the residue. He concluded that “an
unauthorized intrusion into a person’s home and the disturbance caused to him thereby” violated
‘personal liberty’ enshrined in Art. 21 and therefore the regulation was invalid insofar as it
authorized domiciliary visits but the rest of it did not violate either Article 1(91)(d) or Art. 21.
He also held that “the right to privacy is not a guaranteed right under our Constitution and
therefore the attempt to ascertain the movement of an individual which is merely a manner in
which privacy is invaded is not an infringement of a fundamental right.
Right to Privacy
Subba Rao, J. held that right to privacy “is an essential ingredient of personal liberty” and that
the right to personal liberty is “a right of an individual to be free from restrictions or
encroachments on his person, whether those restrictions or encroachments are directly imposed
or indirectly brought about by calculated measures”.
Right to Travel
In Satwant Singh Sawhney v. A.P.O., New Delhi AIR 1967 SC 1836, it was held that right to
travel abroad is included within the expression ‘personal liberty’ and, therefore, no person can be
deprived of his right to travel except according to the procedure established by law. Since a
passport is essential for the enjoyment of that right, denial of a passport amounts to deprivation
of personal liberty. In the absence of any procedure prescribed by the law of land sustaining the
refusal of a passport to a person, its refusal amounts to an unauthorized deprivation of personal
liberty guaranteed by Art. 21. This decision was accepted by Parliament and the infirmity was set
right by the enactment of the Passport Act.
In A.K. Gopalan v. State of Madras, it was held that the expression ‘procedure established by
law’ means procedure enacted by a law made by the State. The Supreme Court, by a majority,
rejected that the argument that the ‘law’ in Art. 21 is used in the sense of jus and lex, and that it
means the principles of natural justice on the analogy of ‘due process of law’ as interpreted by
American Supreme Court.
In Maneka Gandhi v. Union of India AIR 1978 SC 597, the passport authorities impounded
the passport of Maneka Gandhi under S. 10(3) of the Passport Act which provides authorizes if it
deems it necessary to do so in the interest of the sovereignty and integrity of India. Maneka
challenged the order on the ground of violation of her fundamental right under Art. 21. One of
the major grounds of challenge was that the order impounding the passport was null and void as
it had been made without affording her an opportunity of being heard in her defence.
Bhagwati, J. in Maneka Gandhi case, established that the requirement of reasonableness of

procedure in Art. 21 through Art. 14, some of the judges in that case and in some other
subsequent cases have read it in Art. 21 itself and particularly in the word ‘law’ leading to the
conversion of ‘procedure established by law’ into ‘due process of law’ in the American sense
which the Constitution-makers had intended to avoid by replacing the latter expression by the
former. Thus in Maneka Gandhi, it was said that the procedure in Art. 21 “has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary”. The ‘law’ in Art. 21 “is reasonable law, not any
enacted piece”.
The Court reiterated the proposition that Arts. 14, 19 and 21 are not mutually exclusive. A nexus
has been established between these Articles. This means that a law prescribing a procedure for
depriving a person of ‘personal liberty’ has to meet the requirements of Art. 19. Also, the
procedure established by law in Art. 21 must answer the requirement of Art. 14 as well.
According to K. Iyer. J., no Article in the Constitution pertaining to a Fundamental Right is an

island in itself. Just as a man is not dissectible into separate limbs, cardinal rights in an organic
constitution have a synthesis.
Court held that as the right to travel abroad falls under Art. 21, natural justice must be applied
while exercising the power of impounding a passport under the Passport Act. Although the
Passport Act does not expressly provide for the requirement of hearing before a passport is
impounded, yet the same has to be implied therein.
Again in Sunil Batra v. Delhi Administration AIR 1980 SC 1579, it was held that “true our
Constitution has no ‘due process’ clause but the consequence is same” and added that Art. 21 is
the counterpart of the procedural due process in the U.S.
The Supreme Court has made a novel use of Art. 21 viz., to ensure that the female workers are
nor sexually harassed by their male co-workers at their work. In Vishaka v. State of Rajasthan
AIR 1997 SC 3011, the Supreme Court has declared sexual harassment of a working woman at
her place of work as amounting to violation of rights of gender equality and right to life and
liberty which is a clear violation of Art. 14, 15 and 21 of the constitution.
In Mithu v. State of Punjab AIR 1983 SC 473, a constitutional bench, for the first time and
unanimously invalidated a substantive law – Section 303 of the IPC – which provided for the
mandatory death sentence for murder committed by a life convict.
After posing the question of reasonableness of Section 303 under Art. 21 the Court concluded
that “it is difficult to hold that the prescription of the mandatory sentence of death answers the
test of reasonableness” and added that “a provision of law which deprives the Court of the use of
its wise and beneficent discretion in a matter of life and death, without regard to the
circumstances in which the offence was committed and, therefore, without regard to the gravity
of the offence, cannot but be regarded as harsh, unjust and unfair”. Relying exclusively on Art.
21 it was concurred that “so final, so irrevocable the sentence of death that no law which
provides for it without involvement of the judicial mind can be said to be fair, just and
reasonable. Thus not merely procedure but a substantive law was invalidated under Art. 21.
In Mr. X v. Hospital Z, the Supreme Court was called upon to decide a very crucial questioning
the modern social context, viz., can a doctor disclose to the would be wife of a person that he is
HIV positive? Does it infringe the right to privacy of the person concerned?
The Court has answered both of these question in the negative. The Court has argued that the
lady proposing to marry such a person is also entitled to all the human rights which are available
to any human being.
The ‘right of life’ guaranteed by Art. 21 “would positively include the right to be told that a
person with whom she was proposed to be married, was the victim of a deadly disease, which
was sexually communicable”. Moreover when two Fundamental Rights clash, viz., that of the
person concerned (right to Privacy) and that of the would be wife (to live a healthy life also
guaranteed by Art. 21) “the Right which would advance the public morality or public interest
would alone be enforced through the process of Court.
It has been noted that the impression of exclusiveness among different fundamental rights,
particularly between Art. 19 and 21, which Gopalan had left has been removed by Maneka
Gandhi. It has also been noted that by establishing a relationship among Art. 14, 19 and 21,
particularly between Art. 14 and 21, a requirement of reasonableness of law providing for
deprivation of life or liberty has been created. The creation of requirement of reasonableness is
different thing, but otherwise no controversy apparently ever existed about the relationship
between Art. 14 and 21.
It is only in respect of relationship between Art. 19 and 21 that the controversy has exited. The
test is whether the law penalizes an activity protected by Art. 19. if it does, its validity shall have
to be tested under Art. 19 though it may also be tested under Art. 21 if the reasonableness of
procedure for penal sanctions is also questioned.
There are many more heads concerning the expansion of Art. 21 in different directions such as:
(i) Right of Prisoners:- In Sunil Batra v. Delhi Administration, the solitary confinement of a
prisoner, who was awarded the capital sentence for having committed the offence of murder
under the Prisons Act, was held bad as it was imposed not as a consequence of violation of the
prison discipline but on the ground that the prisoner was one under sentence of death. Court
pointed out that ground that the conviction of a person for a crime did not reduce him to a non-
person vulnerable to major punishment imposed by jail authorities without observance of
procedural safeguards.
(ii) Right of Inmates of Protective Homes: – Appropriate directions have been given by the
courts to the inmates of protective and remand homes for woman and children for providing
suitable human conditions in the homes and for providing appropriate machinery for effective
safeguard of their interests.
(iii) Right to Legal Aid: – Right to free legal aid at the cost of the State to an accused who
cannot afford legal services for reasons of poverty, indigence or incommunicado situation is part
of fair, just and reasonable procedure under Art. 21.
(iv) Right to Speedy Trial:- In Hussainara Khatoon v. Home Secretary, Bihar AIR 1979 SC
1369, it was held that a procedure which keeps such large numbers of people behind bars without
trial so long cannot possibly be regarded reasonable, just or fair so as to be in conformity with
the requirement of Art. 21. Bhagwati, J. observed that although the right to speedy trial is not
specifically mentioned as a fundamental right, it is implicit in the broad sweep and content of
Art. 21. The court re-emphasized the expeditious review for withdrawal of cases against under
trial for more than two years. The court reiterated that the investigation must be completed
within a time-bound program me in respect of under trials and gave specific orders to be
followed for quick disposal of cases of under trials. It was held that continuance of such
detention of under trials held by periods more than the maximum term imposable on them on
conviction, is clearly illegal and in violation of that fundamental right under Art. 21.
(v) Right against Cruel and Unusal Punishment.
(vi) Right of Release and Rehabilitation of Bonded Labour: – Art. 21 read with the Directive
Principles of State Policy and the Bonded Labour System (Abolition) Act obliges the State to
identify release and suitably rehabilitate the bonded labourers. The bonded labourers also have
the right to live with human dignity enshrined in Art. 21.
(vii) Right of Compensation:- Right to claim monetary compensation for the violation of the
right in Art. 21 has also been recognized in several cases.
(viii) Right to Know: – The courts have also recognized the right to know in Art. 21 as a
necessary ingredient of particularly democracy.
RIGHT TO EDUCATION
[Article 21A]
Education is a basic human right. For the success of democratic system of government, education
is one of the basic elements. The Constitutional framers realising the importance of education
have imposed a duty on the state u/a 45 as one of the directive policy of state to provide free and
compulsory education to all children until they completed the age of 14 years within 10 years
from the commencement of this constitution. The constitution framers were also view that in
view of a financial condition of a new state it was not feasible to make a Fundamental Right. But
it is unfortunate that since lapse of 60 years from the commencement of constitution they didn’t
take any step to implement this directive and still 40 % population of country is illiterate.
After lapsing of 45 years this matter encroach to court in Mohini Jain v. State of Karnataka case
the matter was raised by the petitioners that the right of education is a fundamental right under
article 21.The court held that right to education at all level is a fundamental right u/a 21 of the
constitution. The matter was again raised in Unni Krishnan v. State of A.P. where the court
specifically held that the right to education for the children of the age of 6 to 14 years is a
fundamental right. The court overruled the decision of the Mohini Jain case and held that the
right to education is only available up to 14 years of age. The court has said that after the 14
years of age the obligation of the State depended on the economic development. Even after this
case there was no improvement in situation. Consequently, the article 45 is deleted and the
Government enacted Constitution (86th amendment) Act, 2002 has added a new article 21A and
has made a education for all children of 6 to 14 years a fundamental right. It provides that “the
state shall provide free and compulsory education to all children of the age 6 to 14 years in such
a manner as state may, by law determine.”
Ultimately after a lapse of 8 years for enforcement of 86th amendment Act, 2002 Parliament has
passed the Right of children to Compulsory Education Act, 2009. It provides responsibility of the
Central & State Gov., teachers, parents, and community members in ensuring that all children of
the age of 6 and 14 years received free and compulsory education.
ISSUE:
1. WHETHER THE OBJECT OF ARTICLE 21A IS FULFILLED OR NOT?
2. WHETHER THE RESERVATION FOR SEBCs UNDER MINORITY

EDUCATIONAL INSTITUION IS VALID OR NOT?
ANALYSIS:
Despite of constitutional provisions and legislative enactment passed by the Legislature which
provides free and compulsory education to all children of 6 to 14 years of age is not achieved.
This is a big problem and has remained unsolved, even after 67 years of independence and even
today elected government of the country did not take any concrete steps to implement Article
21A from that 30% population of the country is still illiterate.
On coming on the first issue the main reason behind that the population of the country has
considerably increased and number of children of age from 6 to 14 are in crores. The government
does not have money at present to run its own educational institutions. Majority of higher
secondary schools are run by private persons where there is no provision for free education. They
charge high fees. Only middle class and rich peoples can afford to send their children to these
schools. Today there are no schools how would government implement it? If proper amounts of
schools are there the court will obliged to give an order for its enforcement.
On coming on the second issue reservation for SEBCs under the minority educational institutions
is not valid. Under article 30 of the constitution of India tells about the Right of minorities to
establish and administer educational institutions- it provides that all minorities, whether based on
religion or language, shall have the right to establish and administer educational institutions of
their choice.
In other words, religious and linguistic minorities have a special constitutional right to establish
and administer educational schools of their choice and Courts has repeatedly held that the State
has no power to interfere with the administration of minority institutions and can make only
regulatory measures and has no power to force admission of students from amongst non-minority
communities, particularly in minority schools, so as to affect the minority character of the
institutions.
There is a National Commission for Minority Educational Institutions which was established to
protect and safeguard the educational institutions which are established by the minorities
in India. This also ensures rights of minorities to establish and administer educational institutions
of their choice as provided in the Article 30 of the Constitution of India.
Here are some cases who describe about that why SEBCs reservation is not included in Article
30(1):-
In Dr. M. Ismail Faruqui and Others v. Union of India and Ors AIR 1994 SC 547.-In this
case the Court has held that the Preamble of the Constitution read in particular with Articles 15
to 28 indicates that the concept of secularism embodied in the constitutional scheme is adopted
by the Indian people. Hence, secularism is no doubt a basic feature of the Constitution, but we
fail to appreciate how clause (5) of Article 15 of the Constitution which excludes religious
minority institutions in clause (1) of Article 30 of the Constitution is in any way violative of the
concept of secularism.
In Smt. Vidya Verma v. Dr. Shiv Narain Verma AIR 1956 SC 108 case that the fundamental
right of personal liberty under Article 21 of the Constitution is available against only the State
and not against private individuals. He submitted that, therefore, the word “State” in Article 21A
of the Constitution would not include private unaided educational institutions or private
individuals.
In Kerala Educational Bill case to argue that admitting children other than those of the minority
community which establish the school cannot be forced upon the minority institutions, whether
aided or unaided.
Also in the Right of children to Compulsory Education Act, 2009, in particular Sections 12(1) (c)
and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools u/a
30(1) of the Constitution and therefore the Act shall not apply to such unaided minority schools.
In Society for Unaided Private Schools of Rajasthan v. Union of India AIR 2012 SC 3445-
The court has taken a view that the 2009 Act will not apply to unaided minority schools but will
apply to aided minority schools.
The 2009 Act was amended by the Right of Children to Free And Compulsory Education
(Amendment) Act, 2012, so as to provide in subsection (4) of Section 1 of the 2009 Act that
subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of the 2009 Act
shall apply to conferment of rights on children to free and compulsory education. So, 2009 Act
will not apply to unaided minority schools but will apply to aided minority schools.
CONCLUSION:
In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims
(12%), which is world’ third largest. In India majority consist of Hindus, their population
includes more that 80% of India’ population and constitution of India provides for special rights
to both linguistic and religious minorities “to establish and administer educational institutions of
their choice” under Article 30. As in the St Xavier’s College case33, the Supreme Court has
rightly pointed out, “The whole object of conferring the right on the minorities under Article 30
is to ensure that there will be equality between the majority and the minority. If the minorities do
not have such special protection they will be denied equality.”
The only alternative is to encourage nongovernmental organisations to come forward and

participate it in to fulfil the mandate of constitution but There should also be necessary steps
should be taken by the Government that to run its own institutions, help the NGO’s and to see
that teachers and employees working in these private educational institutions get minimum salary
to survive and make the scheme successful.
33
Ahmedabad St. Xaviers College v. State Of Gujarat A.I.R.1974 S.C. 1389.
PROTECTION AGAINST ARREST AND DETENTION

[Article 22]
Protection against arrest
 The protection of the individual from oppression and abuse by the police and other
enforcement officers is the major interest in a free society
 Art.22 guarantees the minimum rights which any person who is arrested will enjoy
 Clause (1) and (2) of Art.22 ensure the following four safeguards for a person who is
arrested
 He is not to be detained in custody without being informed, as soon as may be, of the
grounds of his arrest [Art.22(1)]
 He shall not be denied the right to consult, and be defended by, a legal practitioner of
his choice [Art.22(2)]
 A person arrested and detained in custody is to be produced before the nearest magistrate
within a period of twenty-four hours of his arrest excluding the time necessary for the
journey from the place of arrest to the magistrate’s court [Art.22(2)]
 No such person is to be detained in custody beyond this period without the authority of
the magistrate [Art.22(2)]
Information about grounds of arrest

 Mandatory condition
 It is to enable him to prepare his defence, and to move to court for bail or for writ of
habeas corpus
 Failure to inform would entitle him to be released
 If information is delayed, reasonable grounds should be mentioned
 There is no need for furnish full details
 The details which are sufficient to enable him to understand why he has been arrested and
for what offence is enough
 The information should be intelligible
 If court found the information insufficient, it may declare the arrest unlawful
Right to consult a lawyer

 This is mandatory
 Hansraj v. State of U.P. AIR 1956 All 641
 Railway porters offered satya graha at a railway station
 They were arrested and no information has been provided
 The court held that Art.22(1) has been violated and the trial was vitiated
State of Madhya Pradesh v. Shobharam AIR 1966 SC 1910

 The SC held that a person arrested on accusation of a crime becomes entitled to be
defended by a counsel at the trial
 This right is not lost even if he is released on bail, or is tried by a court which has no
power to impose a sentence of imprisonment
 Thus, a provision barring a lawyer from appearing before a Nyaya Panchayat would be
void to the extent it denies a person arrested the right to be defended by a lawyer of his
choice in a trial for the crime for which he has been arrested
 If no request has been made by the accused for being represented by a lawyer, and no
such request has been turned down, then there is no breach of the fundamental right
contained in Art.22(2)
 The arrested person has a right, upon request, to have someone informed and to consult
privately with a lawyer
 The guidelines for protection of this right
 Chance to consult the accused privately with out hearing of the police by the
lawyer
 The presence of police should be only to avoid the escape of the accused
 The right to consult a legal practitioner starts right from the day of arrest
 The right arises as soon as a person is arrested
 Nandini Sathpathy ruling mentioned that Art.22(1) does not mean that a person who is
not under arrest or custody can be denied the right to consult an advocate of his choice
 The spirit and sense of Art.22(1) is that it is fundamental to the rule of law that the
services of a lawyer shall be available for consultation to any accused person under
‘circumstances of near custodial interrogation’
 The word ‘defended’ clearly includes the exercise of the right so long as the effect of the
arrest continues
 It is not sufficient to say that a person who is exposed to fine and is not in danger of
losing his personal liberty has no right to be defended by a lawyer
Janardhan Reddy v. State of Hyderabad AIR 1951 SC 217
 The right to be defended by a legal practitioner of his choice could only mean a right of
the accused to have the opportunity to engage a lawyer and does not guarantee absolute
right to be supplied with a lawyer by the state.
 Art.39A was inserted through 42nd amendment dealing with equal justice and free legal
aid
Production of the arrested person before a magistrate

 Within 24 hours
 Mandatory provision
 Where a person is arrested by a magistrate without a warrant, it is not sufficient for

purposes of Art.22(2) to produce the person arrested before the same magistrate who
arrested him
No person is to be detained in custody beyond 24 hours without the authority of a

magistrate
Ganpati v. Nafisul Hasan AIR 1954SC 636
 A person arrested in Bombay on a warrant issued by Speaker of the U.P.Legislative
Assembly and was taken to Lucknow in custody to be produced before the Speaker to
answer a charge of breach of privilege of the House was not produced before a magistrate
within 24 hours
 The SC held that this clear breach of Art.22(2) and petitioner has been released.
Non-application of Art. 22(1) & (2)

 To enemy aliens
 To persons arrested or detained under a law providing for preventive detention
 Art.22(1) & (2) is applicable to ‘arrest’ and ‘detention’ of a person on an allegation or

accusation that the arrested person is suspected to have committed
 When a foreigner enters into India illegally and is ordered to leave india but fails to do so,
his arrest for the purpose of deportation does not fall under Art.22(1)&(2)
Preventive Detention
 Means detention of a person without trial and conviction by a court, but merely on
suspicion in the mind of an executive authority
 Preventive detention and prosecution for an offence are not synonymous
 Preventive detention is thus preventive not punitive
 Constitutional provisions
 A law for preventive detention can be enacted by Parliament exclusively under entry
9, list I for reasons connected with ‘defense, foreignaffairs, or the security of India.’
 Under entry 3, List III, Parliament as well as state Legisalture can concurrently make
a law for preventive detention for reasons connected with ‘security of a State,
maintenance of public order, or maintenance of supplies and services essential to
the community’
 Parliament can also enact, in the exercise of its residuary power (Art.248(1)), a law
providing for preventive detention on any other ground.
 For example, COFEPOSA (Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 under residuary power read with Entry 36, List I
 Art.22(4) to (7) lay down a few safeguards, and provide for minimum procedure, which
must be observed in any case of preventive detention
Communication of grounds to the detenu

Art.22(5) : When any person is detained in pursuance of an order made under any law providing
for preventive detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order
Khudiram Das v. State of West Bengal AIR 1975 SC 550

 In the grounds of detention communicated to the detenue, three incidents were mentioned
 The district magistrate also had before him the detenu’s history sheet at the time of
making detention order, but none of the injurious facts contained therein was
communicated to the detenu
 Detenu argued for the information but his plea was not taken into consideration
 Detenue challenged the grounds of arrest by mentioning that the magistrate is influenced
by the facts in his history sheet which was not disclosed to him
 The magistrate asserted in an affidavit that beyond the three grounds communicated, he
was not influenced by any other fact
 The state asserted that the court should accept the affidavit and should not probe into the
matter
 The SC held that it is the duty of the magistrate to satisfy before the court that he is not
influenced
 The affidavit cannot be taken as conclusive proof
 The grounds mentioned in Art.22(5) should be interpreted as ‘not only conclusion of facts
but also all the basic facts on which those conclusions were found
 Not only narration or conclusion of facts but also all materials on which those facts are
conclusions which constitute the grounds are based
Prakash Chandra Mehta v. Comm. & Secy, Govt of Kerala AIR 1986 SC 687
 An order of detention was passed under S.3(1) of COFEPOSA
 Because of non-supply of documents which were taken into consideration and looked
into by the detaining authority and on the basis of which he felt satisfied that the
detention order be made, the detention order was quashed
 As soon as
 With in reasonable time limit

 Sec.3(3) of COFEPOSA, ordinarily not later than five days, and in exceptional
circumstances and for reasons to be recorded in writing, not later than fifteen
days, from the date of detention
Right to make representation

 Grounds should be definite and adequate
 Consideration of representation: The government must consider the detenu’s

representation before sending it to the advisory board
 To give the detenu, the ealiest opportunity to make a representation and consider
it expeditiously
 To refer the case to an advisory board and obtain its report
 Advisory boards
 Art.22(4) a person can be detained under preventive detention for three months
only. Detention beyond that is possible only when an advisory board holds that,
in its opinion, there is sufficient cause for such detention
 The board should consist of persons who are, or have been or are qualified to act
as the High Court Judges
 If the report is not made within three months of the date of detention, the detention would
become illegal
 If the detention is limited to three months only there is no need to reference to such a
board
 Under Art.22(7) (c), Parliament is authorized to prescribe the procedure to be followed
by an advisory board
44th amendment
 Time period has been reduced to 2 months
 Advisory board opinion required for detention beyond 2 months
 Advisory board is to consist of a chairman + two other members
 Chairperson = serving judge of the appropriate HC
 Members = serving or retired HC judges
 Recommendations of the Chief Justice of appropriate HC is required for constitution
of Board
 No person should be detained more than maximum period prescribed by the
Parliament by law
Parliament’s power to dispense with advisory board

 Art.22(7)(a), Parliament may by law prescribe “ the circumstances under which, and
the class or classes of cases in which, a person may be detained for a period longer
than three months” without referring his case to an advisory board under Art.22(4)(a)
 A.K.Gopalan case – and should be construed as or and disjunctive interpretation has

been made
 The court held that it was not obligatory on Parliament to lay down both the
‘circumstances’ and ‘classes’, but could lay down either ‘circumstances’ or ‘classes’,
of cases in which a person could be detained for more than three months without
referring his case to an advisory board
Overruling case : Sambhu Nath Sarkar v. State of WB AIR 1973 SC 1425

 S.17A of MISA (the Maintenance of Internal Security Act – National Security Act) is
having five of the six heads mentioned in the constitution for which a law of preventive
detention could be made as the circumstances in which reference to an advisory board
was not necessary
 Court held that Art.22(7)(a) as an exception to Art.22(4)
 The intercession of an advisory board in preventive detention cases for over three months
being a normal rule, its dispensation could be justified only in exceptional and
extraordinary cases
 SC held that the word and should be interpreted to have its ordinary conjunctive sense
requiring parliament to prescribe both the ‘circumstances’ under which, and the ‘class of
cases’ in which only, consideration of board could be dispensed with
Maximum period of detention
 Art.22(4)(a) no person can be detained beyond the maximum period prescribed by any
law made by Parliament
 But it won’t give so much freedom to parliament to mention years, months or days
 It is valid to fix such period in terms of a specific event, for example until the expiry of
the emergency proclaimed under Art.352
Laws authorizing preventive detention

 Central Laws
 National Security Act
 COFEPOSA Act
 Prevention of Blackmarketing and Maintenance of Supplies of Essential

Commodities Act, 1980 (PBMSECA)
 State laws
 Tamil Nadu Prevention of Dangerous Activiites of Bootleggers, Drug Offenders,

Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act,
1982
 The Gujarat Prevention of Anti-Social Activities Act, 1985
 The Bihar Control of Crimes Act, 1981.
 The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers,

Drug offenders and Dangerous Persons Act, 1981
 AP Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug offenders,

goondas, Immoral traffic Offenders and Land Grabbers Act, 1986
A.K. Roy v. UOI AIR 1982 SC 710

 Under section 3 of the Act, an order of preventive detention can be made if the
government is satisfied that it is necessary to do so to prevent a person from acting in any
manner prejudicial to
 the defence of India,
 their relations of India with foreign powers,
 security of India,
 security of state,
 maintenance of public order, or maintenance of supplies and services essential to

the community
 The contention was that the vagueness gives ‘uncontrolled discretion”
 Court accepted the vagueness but refused to declare section 3 unconstitutional
 Instructed the courts to interpret narrowly and strictly
 Maintenance of supplies and services was considered specially
 But court held that it cannot be declared unconstitutional
 Before dealing with this “ no person should be detained unless by a law or order or
notification made or published fairly in advance, the supplies and services, the
maintenance of which is regarded as essential to the community
 The discretion given to magistrate and commissioner of police was challenges
 court refused to take this argument into cognizance
 Law contains many safeguards against arbitrariness
 The power can be given by SG only after satisfaction
 Limited time period
 Can pass orders only on three grounds
 Report to SG is always there
 SG approval is required
RIGHT AGAINST EXPLOITATION

[Article 23-24]
 Art.23 and 24
 Art.23 – prohibition of traffic in human beings and forced labour
 Art.24 – Prohibition of employment of children in factories etc.,
 Art.23(1)
 Begar abolished [Begar means compulsory work without payment]
 Traffic in human beings [Slavery – buying and selling of human beings]
 Forced labour
 Art.23(1) : Traffic in human beings and begar and other similar forms of
forced labour
 it should be interpreted in the light of ‘ejusdem generis’ rule
 The kind of ‘forced labour’ contemplated by the Article has to be
something in the nature of either traffic in human beings or begar.
 Exception to Art.23(1) is Art.23(2) which says – “Nothing in this article shall prevent the
State from imposing compulsory service for public purposes, and in imposing such
service the State shall not make any discrimination on the grounds only of religion, race,
caste or class or any of them
 State is not obligated to pay for ‘compulsory services’
People’s Union for Democratic Rights v. UOI AIR 1982 SC 1473

 Workers working under the project of Asian Games
 The petitioner’s alleged that
 Payment lesser than minimum wages was alleged
 Equal remuneration Act, 1976 was violated for less payment to women workers
 Contract Labour (Regulation and Abolition) Act 1970
 Employing child labour was challenged

 Issue was whether ‘Contract labour’ can be brought under the head of ‘forced labour’
 Another issue was whether the labour with certain remuneration can be included under
‘forced labour’
 In the first issue court held that Art.23 intended to abolish every form of forced labour
either may be through contract or through non-contract
 In the second issue, the court held that any forced labour even including certain payment
can be covered under head ‘forced labour’ because it effects the human dignity and
values
 According to Justice Bhagawati,
 The word ‘force’ must be construed to include not only physical or legal force but
also force arising from the compulsion of economic circumstances which leave no
choice of alternatives to a person in want and compels him to provide labour or
service even though the remuneration received for it is less than the minimum
wage
Sanjit Roy v. State of Rajasthan AIR 19832 SC 328
 Payment by the State of wages lower than the minimum wages to person employed on
famine relief work was held invalid under Art.23
 Facts of the case are, under Rajasthan Famine Relief Works Employees (Exemption from
Labour Laws) Act, 1964, the unskilled labourers were appointed with less wages which is
less than minimum legal wages
 SC ruled that it is clear violation of Art.23 because minimum legal wages is their right
and required for carrying on their day to day life
Bonded labour
Bandhua Mukti Morcha v. UOI AIR 1984 SC 802
 A large number of labourers working in stone-quarries in the State of Haryana under in-
human and pathetic conditions
 No medical aid was provided to them
 No safety rules, no proper accommodation
 SC emphasized on relationship between Art.23 and 21
Neeraj Choudhary v. State of MP AIR 1984 SC 1099

 Petitioner was a civil rights correspondent of the Statesman, a daily newspaper
 135 bonded labourers were released on the order passed by the Court under the Bonded
Labour System (Abolition) Act of 1976
 No rehabilitation steps were taken up by government
 The court emphasized on relationship between Art.21 and 23
Prostitutes
 Suprression of Immoral Traffic in Women and Girls Act, 1956 – object of inhibiting or
abolishing the immoral traffic in women and girls
 Immoral Traffic (Prevention) Act, 1956
Article 24: Prohibition of employment of children in factories, etc:

No child below the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment
PUCL v. UOI AIR 1982 SC 1473

 There was violation of Article 24 of the Constitution and of the - . provisions of the
Employment of Children Acts, 1938 and 1970 in as much as children below the age of 14
years were employed by the contractors in the construction work of the various projects.
 Article 24 of the Constitution embodies a Fundamental Right which is plainly and

indubitably enforceable against every one and by reason of its compulsive mandate, no
one can employ a child below the age of 14 years in a hazardous employment. Since,
construction work is a hazardous employment, no child below the age of 14 years can be
employed in constructions work
M.C. Mehta v. State of Tamil Nadu AIR 1997 SC 699

 This case arose out of a public interest litigation filed by M.C. Mehta in the Supreme
Court of India under Article 32 of the Constitution of India, in respect of employment of
children in the match industry in Sivakasi. Since the problem of child labour was rampant
throughout the country, the court thought it appropriate to deal with the issue in a wider
manner treating it as a national problem.
RIGHT TO FREEDOM OF RELIGION

[Article 25-28]
• Constitutionally, India is a secular country and has no State religion. However, it has
developed over the years its own unique concept of secularism that is fundamentally
different from the parallel American concept of secularism requiring complete separation
of church and state.
• The preamble to the Constitution was amended by the Constitution (Forty-second

Amendment) Act 1976 to include the word 'secular‘.
SR Bommai v Union of India (1994) 3 SCC 1

• Secularism is part of the fundamental law and basic structure of the Indian political
system. The concept of secularism was very much embedded in our constitutional
philosophy from the very beginning. By this amendment what was implicit was made
explicit.
• Constitutional provisions prohibit the establishment of a theocratic State and prevent the
State from identifying itself with or otherwise favouring any particular religion
Secularism is more than a passive attitude of religious tolerance. It is a positive concept
of equal treatment of all religions.
Article 25 Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practice and
propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law -
(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus.
Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion.
Explanation II: In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference
to Hindu religious institutions shall be construed accordingly.
Mohd. Hanif Quareshi & Others v. State Of Bihar AIR 1958 SC 731
• The Bihar Preservation and Improvement of Animals Act ,1955, The U. P. Prevention of
Cow Slaughter Act, 1955, put a total ban on the slaughter of cows and her progeny which
included bulls, bullocks, heifers and calves. The C. P. and Berar Animal Preservation
Act, 1949, placed a total ban on the slaughter of cows, male or female calves of cow,
bulls, bullocks, and heifers and the slaughter of buffaloes (male or female, adults or
calves) was permitted only under a certificate granted by the proper authorities. No
exception was made in any of these Acts permitting slaughter of cattle even for bona fide
religious purposes.
• The ban on the slaughter of cows even on the slaughter day or Bakrid did not violate the
fundamental rights of the petitioners under Art. 25 as it had not been established that the
sacrifice of a cow on that day was an obligatory overt act for a Mussalman to exhibit his
religious belief and idea.
A.S. Narayan v. State of A.P AIR 1996 SC 1765

• “Religion" in Articles 25 and 26 has to be understood not in a narrow sectarian sense but
encompassing our ethos of Let us strive to achieve this; let us spread the message of our
dharma by availing and taking advantage of the freedom guaranteed by Articles 25 and
26 of our Constitution.
Church of God (Full Gospel) India Vs. KKRMC Welfare Ass. AIR 2000 SC 2773
• The questions involved in this appeal is that Whether beating of drums or reciting of
prayers by use of microphones and loudspeakers so as to disturb the peace or tranquility
of neighbourhood should be permitted?
• Facts are that the prayers in a particular Church were recited by using loudspeakers,
drums and other sound producing instruments which caused noise pollution thereby
disturbing and causing nuisance to the normal day life of the residents of the said colony.
• In the present case, the contention with regard to the rights under Article 25 or Article
26 of the Constitution which are subject to public order, morality and health are not
required to be dealt with in detail mainly because as stated earlier no religion prescribes
or preaches that prayers are required to be performed through voice amplifiers or by
beating of drums. In any case, if there is such practice, it should not adversely affect the
rights of others including that of being not disturbed in their activities.
Bijoe Emmanuel v. State of Kerela AIR 1987 SC 748

• The appellants-three children belong to a sect called Jehovah's Witnesses who worship
only Jehovah-the Creator and none other. They refused to sing the National Anthem:
'Jana Gana Mana' because, according to them, it is against the tenets of their religious
faith-not the words or the thoughts of the National Anthem-but the singing of it. They
desisted from actual singing only because of their aforesaid honest belief and conviction
but they used to stand up in respectful silence daily, during the morning assembly when
the National Anthem was sung. The Head Mistress expelled the appellants
• The Fundamental Rights of the appellants under Art. 19(1)(a) and 25(1) have been
infringed and they are entitled to be protected. The expulsion of the three children from
the school for the reason that because of their conscientiously held religious faith, they do
not join the singing of the National Anthem in the morning assembly though they do
stand respectfully when the National Anthem is sung, is a violation of the fundamental
right to freedom of conscience and freely to profess, practice and propagate religion.
Therefore, the judgment of the High Court is set aside and the respondent authorities are
directed to re- admit the children into the school, to permit them to pursue their studies
without hindrance and to facilitate the pursuit of their studies by giving them the
necessary facilities.
Article 26 Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination or any section thereof
shall have the right -
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Commr., Hindu Religious Endowments v. Sri Lakshmindra AIR 1954 SC 282

• As regards article 26, the first question is, what is the precise meaning or connotation of
the expression "religious denomination" and whether a Math could come within this
expression. It is well known that the practice of setting up Maths as centres of the logical
teaching was started by Shri Sankaracharya and was followed by various teachers since
then. After Sankara, came a galaxy of religious teachers and philosophers who founded
the different sects and sub-sects of the Hindu religion that we find in India at the present
day. Hence Math can be covered under the term “religious denomination”.
S.P. Mittal v. Union Of India [1983] 1 SCR 729

• The Government of India on receiving complaints about mismanagement of the project
and misuse of funds by Sri Aurobindo Society passed Auroville (Emergency Provisions)
Act, 1980.
• The constitutional validity of the Act was challenged stating that the impugned Act
infringes Articles 25, 26, 29 and 30 of the Constitution;
Meaning of term Religion and “Religious Denomination”

The term 'religion‘ was explained by the Court as follows:
(1) Religion means "a system of beliefs or doctrines which are regarded by those who profess
that religion as conducive to their spiritual well being";
(2) A religion is not merely an opinion, doctrine or belief. It has its outward expression in
acts as well;
(3) Religion need not be theistic;
(4) "Religious denomination" means a religious sect or body having a common faith and
organisation and designated by a distinctive name;
(5) A law which takes away the rights of administration from the hands of a religious
denomination altogether and vests in another authority would amount to violation of the right
guaranteed under clause (d) of Article 26.
The same was also observed by the Courts in Commissioner of Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiyar of Sri Shriur Mutt [1954] SCR
1005 and The Durgah Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383 @ p. 410-11
• Justice Mishra for Majority: There can be no better proof than what Sri Aurobindo and
the Mother themselves thought of their teachings and their institutions to find out whether
the teachings of Sri Aurobindo and his Integral Yoga constitute a religion or a
philosophy. The above utterings from time to time by Sri Aurobindo and the Mother
hardly leave any doubt about the nature of the institution. It was on the basis that it was
not a religions institution.
• Even assuming but not holding that the Society or the Auroville were a religious
denomination, the impugned enactment is not hit by Article 25 or 26 of the Constitution.
The impugned enactment does not curtail the freedom of conscience and the right freely
to profess practise and propagate religion. Therefore, there is no question of the
enactment being hit by Article 25.
• Justice Chinnappa Reddy (dissenting on one point): Shri Aurobindo truly was a religious
teacher and taught and was understood to have taught new religious doctrine and practice.
Therefore, Aurobindoism, can certainly be classified if not as a new religion, as a new
sect of Hinduism and the followers of Sri Aurobindo can be termed a religious
denomination. Therefore, Aurobindo Society is a sect of a religious determination within
the meaning of the expression in Article 26 of the Constitution.
• Hence, Auroville (Emergency Provisions) Act which provides for the taking over the
management of Auroville for a limited period does not offend the rights guaranteed by
Articles 25 and 26 of the Constitution.
Seshammal v. State of Tamil Nadu AIR 1972 SC 1586

• T.N. Hindu Religious and Charitable endowments Act, 1970 was questioned on the
ground that it violates Art 25, 26 as it made certain hereditary religious offices non-
hereditary and prescribed certain requisite educational qualifications. It was contented
that under the Act, a trustee could appoint a person as archaka if he possed the requisite
qualification irrespective of his being Saivite or Vaishnavites which constitutes violation
of freedom or religion . SC did not accept the contention and upheld the validity of the
act as it will save the purely religious office from being filled up by people disqualifies
by the terms of the trust.
Atheist Society of India v. Govt of A.P. AIR 1992 AP 310

• The petitioner-Athiest Society of India challenged the practice of religious performance
of worship all the State functions like, breaking of coconuts, performing poojas and
chanting of Mantras or Sutras of different religions at the time of laying foundations and
inauguration of small and large Projects and State buildings and Institutions.
• If the prayer of the petitioner is granted, it will infringe the rights of crores of Indians,
which are granted to them under Art. 25 of the Constitution and will run directly contrary
to the secular objectives of the Preamble to the Constitution, which is one of the basic
structures. It would deprive a large section of the people of their right of thought,
expression, belief, faith and worships. Such action would amount to abolition of Indian
tradition and religious practices. No religion or religious practices can be belittled. The
petition deserves to be rejected in limini, as unworthy of any consideration.
Sardar Syedna Taher Saifuddin v. The State Of Bombay AIR 1962 SC 853
• By. s. 3 of the Bombay Prevention of Excommunication Act, 1949 no excommunication
of member of any community shall be valid and shall be of any effect.
• It was evident from the religious faith and tenets of the Dawoodi Bohra community that
the exercise of the power of excommunication by its religious head on religious grounds
formed part of the management of its affairs in matters of religion and the impugned Act
in making even such excommunication invalid infringed the right of the community
under Art. 26(b) of the Constitution.
• The purity of the fellowship is secured by the removal of persons who had rendered
themselves unfit and unsuitable for membership of the sect. The power of
excommunication for the purpose of ensuring the preservation of the community, has
therefore a prime significance in the religious life of every member of the group. A
legislation which penalises this power even when exercised for the purpose above-
indicated cannot be sustained as a measure of social welfare or social reform without
eviscerating the guarantee under Art. 25(1) and rendering the protection illusory.
Article 27 Freedom as to payment of taxes for promotion of any particular religion

No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular religion
or religious denomination.
Commr., Hindu Religious Endowments v. Sri Lakshmindra AIR 1954 SC 282

• Challenge to Madras Hindu Religious and Charitable Endowments Act, 1951. Act has
abolished this Board and the administration of religious and charitable institutions has
been vested practically in a department of the Government
• Section 76(1) of the Act is void as the provision relating to the payment of annual
contribution contained in it is a tax and not a fee and so it was beyond the legislative
competence of the Madras State Legislature to enact such a provision.
• Since the object of the Madras Hindu Religious and Charitable Endowments Act, 1951 is
not to foster or preserve the Hindu religion but to see that religious trusts and institutions
are properly administered, Article 27 is not attracted
Jagannath Das v. State of Orissa AIR 1954 SC 400

• Challenge to the Orissa Hindu Religious: Endowments Act, 1939 as amended by the
Amending Act II of 1952 are ultra vires.
• For the purpose, of meeting the expenses of the Commissioner and his staff, every Math
or temple, the annual income of which exceeds Rs. 250, is required under section 49 of
the Act to pay an annual contribution at certain percentage of the annual income which
increases I progressively with the increase in the income.
• The annual contribution provided in s. 49 of the Act is in the nature of a fee and not a tax
and therefore it was within the competence of the Provincial Legislature to enact such a
provision. Further an imposition like this is not hit by art. 27 of the Constitution because
the object of the contribution under s. 49 is not the fostering or preservation of the Hindu
religion or of any denomination within it but the proper administration of religious trusts
and institutions wherever they exist.
Prafull Goradia v. Union of India [2011] 2 SCC 568

• Challenge to the Haj Subsidy provided by the Governmnet.
• Dismissing the contention by a Hindu that "that he is a Hindu but he has to pay direct and
indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is
only done by Muslims" and therefore "his fundamental right under Article 27 of the
Constitution is being violated", the Supreme Court declared that a "balanced view has to
be taken here, and we cannot say that even if one paisa of Government money is spent for
a particular religion there will be violation of Article 27".
• Although SC directed to slowly phase out the subsidy provided in 10 years.
Article 28 Freedom as to attendance at religious instruction or religious worship in certain

educational institutions
(1) No religious instruction shall be provided in any educational institution wholly maintained
out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the
State but has been established under any endowment or trust which requires that religious
instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out
of State funds shall be required to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be conducted in such institution or in
any premises attached thereto unless such person or, if such person is minor, his guardian has
given his consent thereto.
Aruna Roy v. Union of India [2002] 7 SCC 368.

• PIL was filed mainly contended that the “National Curriculum Framework for School
Education” published by NCERT is against the constitutional mandate, anti-secular on
various counts.
• Court rejected the contention and observed as follows:

• Regarding Vedic Astrology It is pointed out that what has been mentioned in the
curriculum is 'astronomy' and not 'vedic astrology'. Astronomy is well known science and
different from vedic astrology.
• In view of importance of Sanskrit for nurturing our cultural heritage, because of which
even the official education policy has highlighted the need of study of Sanskrit, making
of Sanskrit alone as an elective subject, while not conceding this status to Arabic and/or
Persian, would not in any way militate against the basic tenet of secularism.
• Regarding Vedic Mathematics it is pointed out that merely because epithet 'vedic' is used,
the petitioners has attempted to attribute something of religion to it. The word 'vedic' in
this context indicates only time factor.
CULTURAL AND EDUCATIONAL RIGHTS OF MINORITIES

[Article 29-30]
Minority
The Constitution does not define the terms 'minority', nor does it lay down sufficient indicia to
the test for determination of a group as minority. Neither Motilal Nehru(1928) nor The Sapru
report has tried to define minority.
The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities

has defined minority as under:
1) The term 'minority' includes only those non-documents group of the population which possess
and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly
different from those of the rest of the population;
2) Such minorities should properly include the number of persons sufficient by themselves to
preserve such traditions or characteristics; and
3) Such minorities should be loyal to the state of which they are nationals.
The first initial afford was in In Re Education bill by Supreme Court to define minority. Justice
S.R. Das C.J., suggested the techniques of the arithmetic tabulation, held that the minority means
a “community, which is numerically less than 50 percent” of the total population.
The definition refers to group of individual who are particularly smaller as the majority in a
defined area. Definition however does not indicate as to what factor of distinction, subjective or
objective are to be taken as the test for distinguishing a group from the rest. Thus, while
considering 'minority', a numerically smaller group, as against the majority in a defined area,
some place emphasis upon certain characteristics commonly possessed by the members
constituting the minority and, to them, these characteristics serves as objective factors of
distinction. In this sense the term used to cover "racial, religious or linguistic sections of the
population within a State which differ in these respects from the majority of the population."
Distinction can be made on different basis; types of minority can be racial, religious or linguistic
minority. There have been different rights guaranteed to minorities by the constitution.
Minority Rights in India

The constitution of India guarantees different rights to the minority. These are cultural and
educational rights which have been guaranteed under Article 29 and 30.
Article 29 Protection of interests of minorities
(1) Any section of the citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to conserve the same.
The application of this Article is upon person having a distinct language, script or culture of its
own and it takes into the consideration two types of minority one linguistic and other religious
minority. If they have the same can be protect it. This right includes the rights “to agitate for the
protection of the language.” It also not subject to any reasonable restriction like other
fundamental rights and hence it is an absolute right. Under Article 29(1) any school or university
can promote education in regional language as far as it is done for minor and language of the
minor.
In D.A.V school, Jalandhar v. state of Punjab AIR 1971 SC 1737 the above provision was
challenged on the ground that the college administered by the religious minority i.e. Arya Samaj
and affiliated university would be compelled to study the religious teaching of the Guru Nanak
and this would mount to violation of the Article 29.Supreme court declined the view and said
that the there is no mandate in the provision for compelling affiliated colleges either to study
religious teaching of the Guru Nanak, or to adopt in any way the culture of the Sikh. If the
university includes the teaching and life of the saint for the research and philosophical it can not
be said that the affiliated colleges are being required to compulsorily study his life and teaching.
The provision meant that for the promotion of the majority language minority should not be
stifle. If any body does it will be trespass on the rights of the sections of the citizens who have
distinct language or script and which they have a right to conserve through their own educational
institutions. So the minority institution affiliated to the Guru Nanak University to teach in the
Punjabi language, or in any way impeding their rights to conserve their language, script or
culture.
(2) No citizen shall be denied admission into any educational institution maintained by the State
or receiving aid out of State funds on grounds only of religion, race, caste, language or any of
them.
This Article is wide and unqualified. It confers a special right not on the minority but to the
majority also for the admission in the state maintained or aided educational institution. If it
would be only limited to the minority it would mean that majority has no right for the admission
in the state maintained or aided educational institution. This it is very clear trough these
provision that in any case no one can discriminate on the ground of the language, caste or
religion. Whether it is state maintained education institute or private aided institution. Now it is
important to know the application of the above Article. Dispute of its application was firstly
arisen in State of Madras v. Champakam Dorairajan AIR 1951 SC 226. Communal G.O. of
the state of Madras allotted seats in medical and engineering college in the proportionately to the
several communities. A Brahmin candidate who could not be admitted to the engineering college
challenged the G.O. as being inconsistent with the Article 29(2).
Supreme Court held that the classification on the ground of the caste was inconsistent with the
provision of the Article. Even though petitioner has got much higher marks than those who
secured by non Brahmin who were admitted in the seats allotted to them, he could no admitted in
any institution. The reason was that he was Brahmin. In another case Supreme Court denied the
view that intake of students on the ground language is violating of the fundamental rights. In
instant case Bombay Government by an order banned the admission of those whose language is
not English to a school using English as a mode of instruction. Argument advanced by the state
was that by doing it is trying to promote national language. Court said that the view is right but
could not be upheld as it is violating of the fundamental rights. So there should not be any
discrimination on ground of language in matter of admission which has been clearly stated by the
Hon’ble Supreme Court of the India.
Dividing sates in two regions and then allocating seats for medical and engineering college in the
state between these regions does not violate Article 29(2). Refusal of admission on grounds of
not possessing requisite academic qualification or because any one was expelled for the
indiscipline. Reservation for rural student passing class out of VIII was held bad decision
in Suneel Jitley v. State of Haryana AIR 1984 SC 1534. Supreme Court said that basis of
reservation was irrational. As student from the rural area can study in urban area still he would
have been preferred. While a student of urban area could have been studied in rural area and
could have became entitled for reservation. Also the education up to VIII standard does not make
any difference to medical education. Hence there was no nexus between the classification and
object sought to achieve.
Relation between Article 29(2) with article 15(1) and 15(4)

Article 15(1) prohibits discrimination on grounds of religion, race, sex, caste or place of birth.
Still there is significant differences between these two articles, 15(1) protects all citizen against
discrimination by the state where as Article 29(2) extends protection against the state, or any
body who denies the right conferred. Article 15(1) is much broader than the 29(2) as it covers
numerous conditions where as article 29(2) only deal with the protection against only one wrong
namely denial of admission in state aided or maintained educational institute. Article 15(1)
broader than 29(2), whenever second one is not applicable the first one is apply.
Article 15(4) was added by first amendment of the constitution. It was introduced for the
advancement of the socially and educationally backward classes of citizen or of SC and ST.
Rights guaranteed under Article 29(2) is limited by the Article 15(4) as it has provision of
reservation in an educational institute for some section of the Indian citizen.
If state prescribe a some percentage of reservation in any educational institute for a certain
section of the people under Article 15(4), but not increases more than the prescribed limited than
reservation of the rest can not be set aside as it would be violating of the fundamental right under
article 29(2). Any reservation of seats in an educational institute seats not justified under Article
15(4) cannot be valid.
Article 30. Right of minorities to establish and administer educational institutions.
(1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause (i), the
State shall ensure that the amount fixed by or determined under such law for the acquisition of
such property is such as would not restrict or abrogate the right guaranteed under that clause.
The benefit of Article 30(1) extends only to linguistic or religious minorities and not to any other
section of the Indian citizens. Article here sate linguistic and religious minority. Here minority
means that community which is less than 50 percent of the total population with the respects of
the population of the state.
The words in the article administer and established in the Article 30(1) have to be read together.
This means that the religious minority will have the right to establish the educational institution
and can administer it only. If it established by the other community or by any other person then
they cannot claim the right under this article. Like Aligarh Muslim university was established by
the statutory provision and hence can be designated as minority educational institute.
The minority factor to attract Article. 30(1) is the establishment of the institution established by
the minority concerned. The Supreme Court has observed in Azeez Basha . Article 30(1)
postulates that the religious community will have the right to establish and administer education
institute of their choice meaning thereby where religious minority establishes an education
institution, it will have the right to administer institute of their choice provide that they have
established them not otherwise. It has to be proved by producing satisfactory evidence that the
institution was established by the minority claiming to administer it. The onus of the proof lies
on one who asserts an institution is a minority institution. It is sole decision of the court to decide
whether the institution is minor or not. Even the government has recognized it as minor institute.
In Yogendra Nath Singh v. State of Uttar Pradesh 1999 [2] AWC 1563 the Government
recognized an institution as minor institution. This order was challenged in the high court
through a writ petition. Looking into the antecedent history of the institution right from its
inception , the court decide that the institution was not established as minority institution, and,
therefore, it could not granted the minority status even though it presently it was managed by the
minority community. Under this Article both the condition “established and managed” should be
read together and absence of even one would unfit the institution for the status of the minority
institution.
2) The State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
based on religion or language.
Article 30(2) bars the state, while granting aid to educational institution on the ground that it is
under the management of a linguistic or a religious minority. Government aided educational
institute should not be discriminated by the state on the ground that it is under the management
of a minority, whether based on religion or language. Minority educational institute are entitled
to get financial assistance much the same way as the educational institutions run by the majority
community. This does not mean that the minority educational institution can claim state as a
matter of right. But there should not be discrimination while providing financial assistance.
Purpose of Granting Cultural and Educational right

The Above rights have been granted by the Constitution with certain underlying purpose. Being
India as a secular state to maintain it and let the minority to mix with the main stream society.
And can also help in the development of the country. Other reason is that India is a country of
diverse culture, and everybody is equal. Hence they have the equal opportunity to preserve it. As
Supreme Court in Ahmedabad St. Xavier College v. State of Gujarat AIR 1974 SC 1389
pointed out that the spirit behind the provision of the following article is conscience of the nation
that the minorities, religious as well as linguistic, are not prohibited from establishing and
administering educational institutes, of their choice for the purpose of giving their child the best
general education to make them complete man and women of the country.
The minorities have been given protection to preserve and strength the integrity of the country.
The sphere general secular education will develop the commonness of boys and girls of India.
This is the true spirit of liberty, equality and fraternity through medium of education. The
minority will feel isolated and separated if they are not given these rights. General secular
education will open doors of perception and act as the natural light of mind for our countrymen
to live in the whole. The rights to administer have been given to the minority, so that it can
mould the institution as it thinks fit, and accordance with its idea how the interest of the
community in general, and institution in particular, will be best served.
Conclusion
The Supreme Court has observed in In re Kerala education bill. ” the real import of the Article
29(2) and 30(1) seems to be that they clearly contemplate a minority institution with the
sprinkling of outsiders admitted into it.” the idea has been reinforced in the ST. Stephen college
case, Article 30(1) does not mean that the minority can establish an educational institution solely
for the benefit of its own community people. The minority are not entitled to establish such
institution for their exclusive benefit. The Court “every education institution irrespective of
community to which it belongs is a melting pot in our national life and that it is essential that
there should be a proper mix of the students of different communities in all education
institutions. This means that a minority institution cannot refuse admission students of other
minority and majority communities.
Our constitution believes that diversity is our strength. Therefore they guaranteed the right to
minority to maintain their culture. The minority status is not only dependent on the religion but
linguistic and religious minorities are also included in this provision. Minorities are groups that
have common language or religion and in a particular part of the country or in the country as a
whole, they are outnumbered by some other social section. Such communities have the right to
conserve and develop these.
Now through these provision religious and linguistic minority an set up their own educational
institutes. By doing so, they can preserve and develop their culture. The Government will not
while granting aid to educational institutions, discriminate against any educational institution on
the basis that it is under the management of minority community.
Minorities Rights:
In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims
(12%), which is world’ third largest. In India majority consist of Hindus, their population
includes more that 80% of India’ population.
RIGHT TO CONSTITUTIONAL REMEDIES IN INDIAN CONSTITUTION

[Article 32]
Article 32 of the Indian constitution provides for constitutional remedies against the violation or
transgression of fundamental rights. The fundamental rights are of highest importance to the
individuals. They are basic conditions for the fullest development of personality.
Article 32 which was referred to “as the very soul of the constitution” by Dr. Ambedkar,
provides for constitutional remedies. Clause 2 of Article 32 provides that, “The Supreme Court
shall have the power to issue directions or order or writs including the writs in the nature of
habeas corpus, mandamus, prohibition, Quo warranto and criterion, whichever may be
appropriate for the enforcement of any of the rights conferred by” fundamental rights. The
citizens are given the right to move—the Supreme Court in case of transgression of fundamental
rights. The Supreme Court thus is constituted into a protector and guarantor fundamental rights.
The right to constitutional remedy is itself a fundamental right.
Besides the Supreme Court, the High Courts also have been given a role in the protection of
fundamental rights. Under Art. 226 of the constitution, High Courts also can issue writs for the
enforcement of fundamental rights.
But the jurisdictions of the Supreme Court and the High Courts in the matter of issue of writs are
slightly different. The Supreme Court can issue writs only in case of infringement of a
fundamental right in part III of the constitution. The High Courts on the other can issue writs
against infringement of fundamental rights, as well as against contravention of ordinary law of
redress grievances arising therefrom. Thus the area of High Courts, with respect to the power to
issue writs is wider than that of the Supreme Court. However, competence of the High Courts to
issue writs is limited within its territorial jurisdiction. The Supreme Court’s area of competence
is co-terminus with the territory of India as a whole.
In case of transgression of fundamental rights the Supreme Court or the High Courts may issue
five kinds of writs. These are writs of Habeas Corpus, Mandamus, Prohibition, Criterion, and
Quo warranto.
 Habeas Corpus—Habeas Corpus literally means—that human person is sacred. Hence no

man may be detained illegally. Whenever a man is detained, he must be produced before a
court. This writ is a powerful safeguard against arbitrary arrest and detention.
 Mandamus—meaning ‘command’, mandamus calls upon public servants to perform some

duties. Thus mandamus is issued against dereliction of duty.
 Prohibition—as the very term prohibition—suggests, this writ is issued by the Supreme
Court or the High Courts, to prohibit inferior courts under them to overstep their
jurisdiction.
 Criterion—it enables a superior court of compels inferior courts to submit records of

proceedings to the higher court.
 Quo warranto—literally means by what right. This writ is issued to determine the
legality of a person’s claim to public office. The purpose of this writ is to prevent
usurpation of a public office by an undesirable or, unqualified person.
1. Habeas Corpus
It literally means ‘a demand to produce the body’ or ‘you may have the body’ (whether dead
or alive). the issuance of the writ means an order to the detaining authority or person to
physically present before the court the detained person and show the cause of detention so
that the court can determine its legality or otherwise (however, the production of the body of
the person alleged to be unlawfully detained is not essential). If the detention is found to be
illegal, the detained person is set free forthwith. Its purpose is not to punish the wrongdoer
but merely to secure the release of the person illegally detained.
Since now, article 21 cannot be suspended even during the proclamation of emergency; this
becomes a very valuable writ for safeguarding the personal liberty of the individual. While
the Supreme Court can issue the writ of habeas corpus only against the state in cases of
violation of fundamental rights, the high court can issue it also against private individuals
illegally or arbitrarily detaining any other person.
Writ of habeas corpus can be filed by any person on behalf of the person detained or by the
detained person himself. In Sunil Batra v. Delhi Administration, a letter written by a convict
to one of the judges of the Supreme Court was treated as a writ petition. The court employed
this writ for the neglect of state penal facilities. The writ was also issued when a ban was
imposed on the law students to conduct interviews with prison mates for affording them legal
relief.
2. Mandamus
It is a command to act lawfully and to desist from perpetrating an unlawful act. Where it has
a legal right which casts certain legal obligations on b, a can seek a writ of mandamus
directing to perform its legal duty? Mandamus may lie against any authority, officers,
government or even judicial bodies that fail to or refuse to perform a public duty and
discharge a legal obligation.
The Supreme Court may issue a mandamus to enforce the fundamental right of a person
when its violation by some governmental order or act is alleged. The high courts may issue
this writ to direct an officer to exercise his constitutional and legal powers, to compel any
person to discharge duties cast on him by the constitution or the statute, to compel a judicial
authority to exercise its jurisdiction and to order the government not to enforce any
unconstitutional law.
mandamus is a judicial remedy in the form of “‘an order’ to do or to forbear from doing some
specific act” which that agency is obliged to do or to refrain from doing under the law and
which is in the nature of a public duty or a statutory duty. It is considered as
a residuary remedy of the public law.
It is a general remedy whenever justice has been denied to any person. It may be issued not
only to compel the authority to do something but also to restrain it from doing something.
Therefore, it is both negative and positive and hence can do the work of all other writs. It can
be issued on all those counts on which certiorari and prohibition can be issued.
Mandamus would lie only to enforce a duty which is ‘public’ in nature. There must be a
specific demand for the fulfillment of duty and there must be specific refusal by the
authority. The applicant must’ve a legal right to the performance of a legal duty. If the rights
are purely of a private character no mandamus can be issued. A ‘public duty’ is one which is
created either by a statute, the constitution or by some rule of common law. The public duty
enforceable through mandamus must also be an absolute duty i.e. which is mandatory and not
discretionary. Mandamus would not lie where the duty is ministerial in nature i.e. where the
authority has to act on the instructions of his superior. The remedy of mandamus will not be
available against any person involved in the election process.
In Jatinder Kumar verses State of Punjab AIR 1984 SC 1850, held that article 320(3) of the
constitution which provided that before a government servant was dismissed, the UPSC
should be consulted, did not confer any right on a public servant and hence failure to consult
the public service commission did not entitle the public servant to get mandamus for
compelling the government to consult the commission. However, if the authority is under law
obliged to exercise discretion, mandamus would lie to exercise it in one way or the other.
In Praga Tools Corporation verses CVI Manual AIR 1969 SC1306 , held that a mandamus
could issue against a person or body to carry out the duties placed on them by the statutes
even though they are not public officials or statutory body. Technicalities should not come in
the way of granting that relief under article. 226. In Unni Krishnan verses Union of
India, held that a private medical/engineering college comes within the writ jurisdiction of
the court irrespective of the question of aid and affiliation.
In hearing the petition for mandamus, the court does not sit as a court of appeal. The court
will not examine the correctness or otherwise of the decision on merits. It cannot substitute
its own wisdom for the discretion vested in the authority unless the exercise of discretion is
illegal. this is true for other writs also.
In UOI verses Prakash P. Hindu 2003, it was held that parliament exercises sovereign
power to enact laws and no outside power or authority can issue a direction to enact a
particular piece of legislation. Similarly, no mandamus can be issued to enforce an act which
has been passed by the legislature. therefore, the direction issued by the apex court in Vineet
Narain [1996] case regarding conferment of statutory status on CVC cannot be treated to be
of such a nature the non-compliance whereof may amount to contempt.
Where, however, the issuance of mandamus directing the investigating agencies to

investigate into offences was found futile, the court forged out a new tool of “continuing
mandamus” requiring the agencies to report the progress to the court so that monitoring by
the court could ensure continuance of the investigation.
3. Certiorari
‘Certiorari’ is a Latin word meaning ‘to inform’ or ‘to certify.’ it was essentially a royal
demand for information. The king wishing to be certified of some matter ordered that the
necessary information be provided for him. ‘certiorari’ may be defined as a judicial order
operating in personam and made in the original legal proceedings, directed to any
constitutional, statutory or non-statutory body or person, requiring the records of any action
to be certified by the court and dealt with according to law.
it can be issued against constitutional bodies (legislature, executive and judiciary or their
officers), statutory bodies like corporations, non-statutory bodies like companies and
cooperative societies and private bodies and persons. Certiorari can be issued to quash
judicial, quasi-judicial as well as administrative actions (AK Kraipak verses Union of India
1969 ). In this case, the writ of certiorari was issued to quash the action of a selection board,
on the ground of personal bias.
The writ is corrective in nature, thus its scope of operation is quite large. The purpose of
certiorari is not only negative (to quash an action) but it contains affirmative or positive
action also. In Gujarat steel tubes v Mazdoor Sabha AIR 1980 SC 1896, held that while
quashing the dismissal order, the court can also order reinstatement and the payment of back
wages.
Grounds for the issue of certiorari are:
(1) lack of jurisdiction; or the authority declining jurisdiction where it legally belongs to it.
(2) excess of jurisdiction.
(3) abuse of jurisdiction.
(4) violation of the principles of natural justice.
(5) error of law apparent on the face of the record – it includes not a mere error but a
manifest error based on clear ignorance or disregard of the law, or on a wrong proposition of
the law, or on clear inconsistency between facts and the law and the decision.
In Syed Yakoob verses Radhakrishnan AIR 1964 SC 477, held that the jurisdiction of the
high court to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it
is not entitled to act as an appellate court. An error of law which is apparent on the face of
the record can be corrected by a writ, but not an error of fact, howsoever grave it may
appear to be. However, if a finding of fact is based on ‘no evidence,’ that would be regarded
as an error of law which can be corrected by certiorari.
4. Prohibition
Prohibition is a judicial order to the agencies (constitutional, statutory or non-statutory) from

continuing their proceedings in excess or abuse of their jurisdiction or in violation of the
principles of natural justice or in contravention of the law of the land. it is issued primarily to
prevent an inferior court or tribunal from exercising its jurisdiction (i.e. exercising power or
authority not vested in them).
Prohibition does not lie against an authority discharging purely administrative or executive
functions, it issues only against an authority discharging judicial functions (Isha
Beevi verses Tax Recovery Officer 1971).
Before the writ of prohibition can be issued there must be something to be done. It is a ‘writ
of right’. Prohibition has much in common with certiorari’, both are ‘jurisdictional writs’
issued against judicial or quasi-judicial authorities on similar grounds. however, prohibition
is issued while judicial process is in motion to prevent it from proceeding further, certiorari is
issued to quash the proceedings and is therefore issued when the judicial process has ended
in a decision (i.e. on completion of the proceeding). Thus, the object of the writ of
prohibition is in short ‘prevention’ rather than cure, while certiorari is used as a ‘cure.’
However, these remedies may be applied simultaneously, certiorari to quash the proceedings
and prohibition to stop the tribunal from continuing to exceed its jurisdiction. The usual
practice is to pray for prohibition and alternatively certiorari because it may happen that
pending proceedings for prohibition the agency may hand over its final decision.
5. Quo-Warranto
Quo-warranto is a question asking ‘with what authority or warrant’. The writ may be sought
to clarify in public interest the legal position in regard to claim of a person to hold a public
office. An application seeking such a writ may be made by any person provided the office in
question is a substantive public office of a permanent nature created by the constitution or
law and a person has been appointed to it without a legal title and in contravention of the
constitution or the laws.
It can be issued against offices created by the constitution such as the advocate-general, the
speaker of legislative assembly, officers under the municipal act, members of a local
government board, university officials and teachers, but it will not issue against the managing
committee of a private school which is not appointed under the authority of a statute.
LIMITATIONS
Like fundamental rights themselves, the right to constitutional remedies under Article 32 are not
without limits. The constitution visualizes there situations when fundamental rights may be
denied hut constitutional remedies will not be available i.e. Article 32 will not be applicable.
 Article 33 empower the Parliament to modify application of fundamental rights to armed
forces and the Police to ensure proper discharge of their duties.
 Secondly, under Article 34, during the operation of Martial law in any area, the Parliament
may indemnify any person in the service of the central or a state government for acts for
the maintenance or restoration of law and order.
 Thirdly, during emergency proclaimed under Art 352 of the constitution, the fundamental
rights guaranteed to the citizens, will remain suspended. Article 358 authorize the
Parliament to restrict fundamental rights guaranteed by Art 19 during the pendency of an
emergency under Article 352.
Article 359 empowers the President to suspend the right to move the courts for the restoration of
fundamental rights. In other words, Article 359 empowers the President to suspend Art 32 of the
constitution. Such an order however is to be submitted to the Parliament, and the Parliament has
the right to disapprove the Presidential order.
UNIT 4
DIRECTIVE PRINCIPLES OF STATE POLICY
Article 36 to 51 of the Constitution of India embodies the Directive Principles of State policy and
for these we are indebted to the Constitution of Ireland. The objective is to establish a social and
economic democracy in India.
Article 37 reveals that:
1. The Directive Principles are not justiciable

2. They are Fundamental to the governance of the country
3. It shall be the duty of the State to apply these Directive Principles while formulating
policies or making laws for the governance of the State
Classification of DPs
1. Socialist Principles
Article 38 – the state shall endeavor to formulate such social system which will secure social,
economic and political justice to all in all the spheres of life.
Article 39(a) – the state shall try to formulate its policy in such a manner so as to secure adequate
means of livelihood for all its citizens.
Article 39(b) – the ownership of material resources would be controlled in such a manner so as
to subserve the common good.
Article 39(c) – the economy of the state will be administered in such a manner so that wealth
may not yet be concentrated in a few hands and the means of production may not be used against
the public interest.
Article 41 – the State will work within the limits of its economic viability and progress, provide
to the citizens the right to work, the right to education and general assistance in the event of
unemployment, old age, disease and other disabilities.
Article 42 – the state will make provisions for the creation of just and humane conditions of
work. It will also ensure maternity relief. Article 43 – the state will ensure adequate wages, good
life and rest to the labourers. The state will also endeavor to make available to the labourers
various socio-cultural facilities.
2. Liberal Principles
Article 44 – The State shall endeavour to formulate and implement a Uniform Civil Code for all
the people living throughout the territory of India.
Article 45 – the State shall endeavour to provide early childhood care and education for all the
children until they complete the age of six years.
Article 47 – the State shall strive to raise the level of nutrition and the standard of living. Thus, it
will endeavour to improve upon the health of the people.
Article 48 – the State shall strive to organise agriculture and husbandry on modern and scientific
lines. It will also try to maintain and improve upon the breed of the animals.
Article 50 – the state will try to separate the judiciary from the executive in the case of public
service.
3. Gandhian Principles
Article 4 – the State will strive to organise Panchayats in villages and will endow them with such
powers which enable them to act as units of self-government.
Article 43 – the state shall strive to develop the cottage industry in the rural areas both, on
individual or cooperative basis.
Article 47 – the state will strive to ban the consumption of wine, other intoxicating drinks and all
such commodities which are considered injurious to health.
Article 48 suggests that the State will ban slaughtering of cows, calves and other milch cattle.
4. International principles
Article 51(a) – The State will strive to promote international peace and security.
Article 51(b)- The State will strive to maintain just and honourable relations among various
states in the world.
Article 51(c)- The State will endeavour to promote respect for International treaties, agreements,
and law.
Article 51(f)- The State will strive to settle international disputes by arbitration.
‘Fundamentalization’ of Directive Principles The Supreme Court has, in a number of judgments,

referred to the importance of the Directive Principles. It has called these principles the
“conscience” and the “core” of the Constitution. These principles are the “goals” to be achieved
by Part III of the Constitution. They are intended to ensure “distributive justice” for removal of
inequalities and disabilities and to achieve a fair division of wealth amongst the members of the
society. The Supreme Court held that the courts can look at the Directive Principles for the
purpose of interpretation of the fundamental rights. The courts will adopt that interpretation
which makes the fundamental rights meaningful and efficacious. The courts have to make every
attempt to reconcile the fundamental rights with the Directive Principles remembering that the
reason why the Directive Principles were left by the founding fathers as non-enforceable was to
give the Government sufficient latitude to implement them. Directives contained in other parts
besides the directives contained in Part IV, there are certain other directives addressed to the
state in other part of the Constitution. These directives are also non-judicial.
There are:
1. Article 350 A enjoins every state and every local authority within the state to provide
adequate facilities for instruction in the mother tongue at the belonging to linguistic
minority groups.
2. Article 351 enjoins the union to promote the spread of Hindi and to develop it so that it
may serve as a medium of expression of all the elements of the composite culture of
India.
3. Article 335 enjoins that the claims of the members of the Scheduled Castes and
Scheduled Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the union or a state. Though the Directives contained in
Article 335, 305A and 351 are not included in Part IV, courts have given similar attention
to them on the application of the principle that all part of the Constitution should be read
together.
Fundamental Rights vs Directive Principles
The directives differ from the fundamental rights in Part III of the Constitution or the ordinary
laws of the land, the following ways:
1. While the fundamental rights constitute limitations upon state action, the directive
principles are in the nature of instruments of instruction to the government of the day to
achieve certain ends by their actions.
2. Fundamental rights are justiciable, but the directive principles are non-justiciable.
3. The directives, however, require to be implanted by legislation, and so long as there is no

law carrying out the policy laid down in a Directives, neither the state nor individual can
violate any existing law or legal right under colour of following a Directives.
4. The fundamental rights lay down the negative obligation of the state. They are prohibitive
in character and are, in fact, in the nature of injunctions requiring the state not to do
certain things. Directive principles are, on the contrary, affirmative directions dealing
with the positive obligations of the state towards the citizens.
5. The main objective of fundamental rights is to establish political democracy, by
guaranteeing equality, liberty, religious freedom and cultural rights but the aim of
directive principles of state policy is to establish just social and economic order.
6. The court cannot declare any law as void on the ground that it contravenes the directives.
Relative Importance of DPs vis-a-vis FRs During the first sixteen years of the operation
of the Constitution, the directive principles were considered subordinate to the
fundamental rights: the courts struck down a number of laws enacted to implement
directive principles on the ground that they violated the fundamental rights. The conflict
has its root in the fact that fundamental rights are enforceable by the courts, while the
directive principles are not so.
However, the government tried to overcome the problem by amending the Constitution. When
the Supreme Court laid down in the Golaknath Case that the fundamental rights cannot be
abridged to implement the directive principles, the Government tried to overcome the limitation
in 1971 through the 24th Amendment which gave Parliament the right to amend fundaments I
rights. In the same year, the 25th Amendment Act inserted Article 31c ensuring that certain laws
meant to implement Directives in clauses 39 (b) and 39 (c) will prevail even if these laws violate
the rights granted in Article 14 and 19. An attempt to enhance the scope of Article 3IC was made
by the 42nd Amendment Act which gave primacy to any or all the directive principles and
deprived the courts of the right to look into such cases.
This attempt was foiled by the Supreme Court majority judgement in Minerva Mills Case which
asserted that such total exclusion of judicial review would offend the basic structure of the
Constitution. On the whole, however, the conflict between these two features of the Constitution
is meaningless as they are, in reality complementary to each other. The courts have increasingly
based their judgment on a harmonious reading of Part III and IV of the Constitution. The
Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the
Fundamental Rights and Directive Principles being complementary to each other, each
supplementing the other’s role in aiming at the same goal of establishing a welfare state.
Criticism of DPs
 Can lead to ‘situations of conflict’ between the center and the states o If the Parliament
passes a law to enforce DPs, even if it is beyond the fiscal reach of the states to
implement the laws, failure to do so will be subject to art 256 (state governments are
supposed to exercise their executive powers in accordance with the laws passed by the
Parliament). If the state does not follow 256, then by art 365 (if the state does not follow
the mandates of the Parliament, then the President can deem this to be a ‘breakdown of
constitutional machinery’)
 Social values combined with sentimental values – prevention of cow-slaughter and
alcohol consumption combined with principles of social and economic justice (39b, 39c)!
 It is said they imbibe the spirit of Fabian socialism – which is now losing relevance o The
ideas of 5 year plans, setting up large and diversified public sector and nationalization of
key industries came from erstwhile USSR o However, unlike USSR, India became a
democracy with a Fabian aim of socialism – that is – achieve socialism through
evolution, not revolution (e.g. Bolshevik Revolution of 1917)
After Liberalization, Privatization, Globalization (LPG) in 1991, leading to a restricted role of

public sector, the very idea of socialism is under threat “The judicial approach should be
dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. This Court
while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens
of the country must try to strike a just balance between the fundamental rights and the larger and
broader interests of society so that when such a right clashes with a larger interest of the country
it must yield to the latter.” – Supreme Court in Kesavananda Bharati judgment The Doctrine of
Basic Structure (1973) From the Kesavananda case emerged this doctrine, which suggested that
there can be no law in violation of the “basic structure” of the constitution. Although, what it
exactly comprises of is subject to some debate, usually the following come under this doctrine –
The supremacy of the constitution. Republican and democratic form of government. The secular
character of the Constitution. Maintenance of the separation of powers. The federal character of
the Constitution. ü e.g. Right after independence, we acquired land from the big landlords and
distributed it to the landless tillers – now we do the opposite – we acquire land from poor farmers
and hand it over to big capitalists!
 These are Non-justiciable – then how can the courts monitor their implementation.
Although, the courts, especially since the 1990s, have started giving significance to the
DPs through ‘judicial activism’.
 No proper classification is done – the segregation into Socialist, Gandhian, Liberal and
International principles was not there in the Constitution.
 Some Directive Principles are not practicable – strict nation-wide ban on alcohol can
never be practically enforced.
 No mention of methods to implement these – no time frame, no process, no agencies

prescribed. Importance of DPs Lay down the foundation of Economic Democracy
Measuring rods to judge the achievements of the Govt They establish welfare state These
are Fundamental in the Governance of the country. These Principles supplement
Fundamental rights Guiding Principles for courts They bring stability and continuity in
State.
RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND

DIRECTIVE PRINCIPLES OF STATE POLICIES (DPSPS)
Fundamental Rights and Directive Principles of State Policy as enshrined in the Constitution of
India together comprise the human rights of an individual. The idea of constitutionally embodied
fundamental rights emerged in India in 1928 itself. The Motilal Committee Report of 1928
clearly envisaged inalienable rights derived from the Bill of Rights enshrined in the American
Constitution to be accorded to the individual. These undeniable
rights were preserved in Part III of the Indian Constitution.
The concept of Directive Principles embedded in the Constitution was inspired by and based on
Article 45 of the Irish Constitution. The Directive Principles imposed a duty upon the state to not
only acknowledge the Fundamental Rights of an individual but also to achieve certain socio-
economic goals. Directive Principles were enumerated in Part IV of the Constitution. Parts III
and IV of the Indian Constitution were once described by CJ. Chandrachud to be the conscience
of the Constitution.34
However, there has perennially been a controversy surrounding the constitutional relationship
between Fundamental Rights and Directive Principles, as there would be a conflict between the
interest of an individual at the micro level and the community’s benefit at a macro level.
Central part of this controversy is the question pertaining to which part of the Constitution would
have primacy in the case of conflict between Parts III and IV. In this brief paper, an attempt is
made to ascertain and comprehend the constitutional
relationship between fundamental rights and directive principles. The author seeks to map out
three different perspectives of the judiciary and the legislature with regards to the relationship
between Fundamental Rights and Directive Principles.
FUNDAMENTAL RIGHTS VIS-À-VIS DIRECTIVE PRINCIPLES
The primary distinction between the Fundamental Rights and Directive Principles as visualized
by the drafters of the Constitution was with regards to the question of enforceability. Part III of
34
Minerva Mills v Union of India [1980] 2 SCC 591.
the Constitution was enforceable against the state but Article 37 expressly provided that Part IV
was not enforceable in a court.
Earlier Supreme Court decisions attributed paramount importance to Fundamental Rights based
on this aforementioned Constitutional position and provision. In the landmark judgment of
State of Madras v. Champakam Doirajan AIR 1951 SC 226 which subsequently led to the
1st Constitutional Amendment, Justice Das stated that directive principles were expressly made
unenforceable by Article 37 and therefore could not override the fundamental rights found in
Part III, which were enforceable pursuant to Article 32. The court opined that fundamental rights
were sacrosanct and could not be curtailed by Directive Principles and asserted that the directive
principles although important in their own respect were required to adhere to the Fundamental
Rights and in the case of conflict Part III would prevail over Part IV. This view of the apex court
was reaffirmed in subsequent landmark decisions such as
Mohd. Hanif Quareshi v State of Bihar AIR 1958 SC 731 and In re Kerala Education Bill,
1957 [1959] SCR 995
These decisions of the apex court were subject to much criticism due to the excess importance
endorsed to Fundamental Rights resulting in the complete neglect
of principles that promoted socio-economic change and development.[14]
The legislature was disappointed with the judiciary’s interpretation and believed that it was
contradictory to what the framers of the Constitution believed. Pandit Nehru in his speeches in
relation to the 1st and 4th Constitutional Amendments expressly stated his disappointment. He
stated, “There is difficulty when the Courts of the Land have to consider these matters and lay
more stress on the Fundamental Rights than on the Directive Principles. The result is that the
whole purpose behind the Constitution which was meant to be a dynamic Constitution leading to
a certain goal step by step, is somewhat hampered and hindered by the static element being
emphasized a little more than the dynamic element.”
It is therefore evident that the legislature believed that Fundamental Rights were to assist the
Directive Principles and not vice-versa.
This subsequently led to a transformation in the interpretation of the

relationship between Fundamental Rights and Directive Principles to be more inclusive and
harmonious. In Chandra Bhawan Boarding and Lodging Bangalore v State of Mysore
[1969] 3 SCC 84, the Minimum Wages Act, 1948 was challenged for conferring unrestricted,
unfettered and arbitrary power on the state in determining the minimum wages. The state argued
that it was obligated to provide for minimum wages in accordance with the Directive Principles.
The court held that the provisions of the Constitution were created to facilitate progress, as
intended by the Preamble and it would be fallacious to assume that the Constitution provided
only for rights and no duties.
Furthermore, it was stated that although Part III encompasses Fundamental Rights, Part IV was
essential in the governance of the country and were therefore supplementary to each other.
This view was reaffirmed in Kesavanda Bharati v State of Kerala AIR 1973 SC 1461 where it
was held that the directive principles were in harmony with the country’s aims and objectives
and the fundamental rights could be amended to meet the needs of the hour implying that Parts
III and IV needed to be harmoniously construed. Although these judgments were more dynamic
in comparison to the previous approach that the apex court had extended, it still did not satisfy
the ideals of the legislature. It could easily be speculated that the 42nd Amendment in 1976 was
to accord primacy to the Directive Principles over the Fundamental Rights. The purpose of the
amendment was to make the Directive Principles comprehensive and accord them precedence
over the fundamental rights “which have been allowed to be relied upon to frustrate socio-
economic reforms for the implementing of Directive Principles”.
This resulted in the resurgence of the debate on the relationship between Fundamental Rights and
Directive Principles. In Minerva Mills Ltd. v Union of India, the court believed that the
harmonious relation between Fundamental Rights and Directive Principles was a basic feature of
the Constitution. It was stated that Part III and Part IV together comprised of the core of the
constitution and any legislation or amendment that destroyed the balance between the two would
be in contravention to the basic structure of the Constitution. Chandrachud CJ. reasserted that
Parts III and IV are complementary to each other and together they constitute the human rights of
an individual. Reading these provisions independently would be impossible, as that would render
them incomplete and thereby inaccessible. However, this was not settled as law yet and there
was another hiccup in the subsequent judgments. In Sanjeev Coke Mfg. Co. v M/s Bharat
Coking Coal Ltd. AIR 1983 SC 239, the Supreme Court held that the part of the Minerva Mills
judgment that dealt with Article 31 C of the Constitution was merely obiter dictum and therefore
not binding. The court thus upheld the Coking Coal Mines (Nationalization) Act, 1972 by
granting greater importance to Directive Principles than Fundamental Rights in accordance with
Article 31C that provided for the same.
The Sanjeev Coke judgment resulted in a divergence of opinion, which was ultimately settled
in State of Tamil Nadu v L. Abu Kavier Bai AIR 1984 SC 725. The court referred to the
decision of Constituent Assembly to create two parts for these core constitutional concepts. It
was stated that the purpose of the two distinct chapters was to grant the Government enough
latitude and flexibility to implement the principles depending on the time and circumstances. The
court therefore considered the Minerva Mills case precedent and recommended a harmonious
construction of the two parts in public interest and to promote social welfare. This view has been
consistently adopted ever since and has been endorsed in Mohini Jain v State of Karnataka
[1992] 3 S.C.C. 666 and Unni Krishnan v State of Andhra Pradesh. It can therefore be
construed to be well settled that a harmonious interpretation of Fundamental Rights and
Directive Principles is quintessential in ensuring social welfare and the apex court is promoting
the same view after much deliberation.
Although it appears to be well established that there is a need for balance and unanimity in
interpreting Fundamental Rights and Directive Principles, this debate is far from over. The
courts off late have played a proactive role in facilitating socio-economic development at a
macro level which requires compromise on a micro level. Therefore in light of the benefit of the
community at large, the Directive Principles may be used to determine the extent of public
interest to limit the scope of Fundamental Rights.
UNIT 6
FUNDAMENTAL DUTIES
The Chapter of Fundamental duties was inserted in our Constitution by 42nd Amendment of the
Constitution in 1976. By 42nd Amendment after Part-IV of Constitution, Part IVA and Article
51-A is inserted in the Constitution which lays down Fundamental Duties of the citizens.
Fundamental Duties was added on the recommendation of Swaran Singh Committee. These
are non-justifiable i.e their compliance cannot be enforced by law, but serves as moral
responsibility on the citizens. Originally 10 Fundamental Duties, 11th Fundamental Duty was
added by 86th Amendment in 2002. At Present we have 11 Fundamental Duties .Fundamental
rights and Fundamental duties are correlated. Either of them cannot be ignored. To create a
general awareness of the provisions of fundamental duties amongst the citizens on the lines
recommended by the Justice Verma Committee in 1999. India borrowed the concept of
Fundamental Duties from USSR.
Fundamental Duties of the Indian Citizens

(a) It is the duty of every citizen to abide by the constitution and respect its ideal and institutions,
the National Flag and the National Anthem.
(b) It is the duty to cherish and follow the noble ideals which inspired our national struggle for
freedom.
(c) It is the duty to uphold and protect the sovereignty, unity and integrity of India.
(d) It is the duty of every citizen to defend the country and render national service when called
upon to do.
(e) It is the duty to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional diversities to renounce
practices derogatory to the dignity of women.
(f) It is the duty of every citizen to value and preserve the rich heritage of our composite culture.
(g) It is the duty to protect and improve the natural environment including forests, lakes, rivers
and wild life and have compassion for living creatures.
(h) It is the duty of the citizen to develop the scientific temper, humanism and the spirit of
inquiry and reform.
(i) It is the duty of every citizen to safeguard public property and to abjure violence.
(j) It is the duty of every citizen to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels of endeavour and
achievements.
Legal Provisions Regarding Fundamental Duties

1. In order to ensure that no disrespect is shown to the National Flag, Constitution of India
and the National anthem, the Prevention of Insults to National Honour Act, 1971 was
enacted.
2. The Emblems and Names (Prevention of Improper Use) Act 1950 was enacted soon after
independence, inter alia, to prevent improper use of the National Flag and the National
Anthem.
3. In order to ensure that the correct usage regarding the display of the National Flag is well
understood, the instructions issued from time to time on the subject have been embodied
in Flag Code of India, which has been made available to all the State Governments, and
Union territory Administration (UTs).
4. There are a number of provisions in the existing criminal laws to ensure that the activities
which encourage enmity between different groups of people on grounds of religion, race,
place of birth, residence, language, etc. are adequately punished. Writings, speeches,
gestures, activities, exercise, drills, etc. aimed at creating a feeling of insecurity or ill-will
among the members of other communities, etc. have been prohibited under Section 153A
of the Indian Penal Code (IPC).
5. Imputations and assertions prejudicial to the national integration constitute a punishable

offence under Section 153 B of the IPC.
6. A Communal organization can be declared unlawful association under the provisions of

Unlawful Activities (Prevention) Act 1967.
7. Offences related to religion are covered in Sections 295-298 of the IPC (Chapter XV).
8. Provisions of the Protection of Civil Rights Act, 1955 (earlier the Untouchability
(Offences) Act 1955).
9. Sections 123(3) and 123(3A) of the Representation of People Act, 1951 declares that
soliciting of vote on the ground of religion and the promotion or attempt to promote
feelings of enmity or hatred between different classes of citizens of India on the grounds
of religion, race, caste, community or language is a corrupt practice. A person indulging
in a corrupt practice can be disqualified for being a Member of Parliament or a State
Legislature under Section 8A of the Representation of People Act, 1951.
DRAWBACKS
The fundamental duties are not precisely defined. Their ambiguity and vagueness confound the
citizens as to what they are supposed to do.
1. Most significantly. They are merely moral postulates and do not have justifiability. They
are not enforced by Law.
2. Place in the constitution: It has been added in the Part IVA i.e. after Part IV (Which
belongs to the Directive Principles of State Policy which are non-enforceable even with
the court of law). It has given the Fundamental Duties a nature of non-obligation. Instead
it should have been placed as the Part IIIA i.e. after Part III (it belongs to the
Fundamental Rights). It should have been given power at par with Fundamental Rights.
3. Fundamental Duties prescribe duties for the citizens and not for the Government for
better life and social progress.
4. Another point of criticism is that some Fundamental Duties are vague and it is not
possible for an average man to understand them. For example, the duties pertaining to
upholding the noble ideals of the freedom struggle or the development of a “scientific
temper and humanism and spirit of enquiry and reform” are not understood by the
ordinary citizens.
5. Another drawback of the Fundamental Duties lies in their incorporation in Part IV of the
Constitution. Without appropriate legal sanctions, the Fundamental Duties are mere pious
wishes.
6. There is overlapping and repetition in description of Fundamental Duties.
7. Fundamental duties miss some important duties such as cast vote, pay taxes, family
planning etc.

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HumanHandsTogether.

2. Preamble of the Constitution. Pg. 16

3. Fundamental Rights – Pg. 5

(b). Specific Fundamental Rights-

6. Fundamental Duties. Pg. 123

0.2.3 Supreme Court Defines Constitution as

0.4.4 CASE LAWS

NATURE OF THE INDIAN CONSTITUTION.

1.1 SALIENT FEATURES OF THE CONSTITUTION

1.1.1 Size of the Constitution

The Constitution became lengthy mainly due to the following factors.

1.1.2 Types of Constitution

1.1.3 Parliamentary or presidential system of government

1.1.4 Parliamentary Sovereignty verses Judicial Supremacy

1.1.5 Adult Franchise

1.1.6 Secular state

1.1.7 Charter of fundamental rights

1.1.8 Directive principles

1.1.9 Fundamental Duties

1.1.11 Independent Judiciary

1.1.12 Union and its territories

1.1.13 Special status of Jammu and Kashmir

FEDERAL STRUCTUTE OF INDIAN CONSTITUTION

Essential features of federalism

A federal Constitution usually has the following essential characteristics:-

Example of federal Constitution

Indian Constitution: federal or quasi-federal

Federal characteristics of Indian Constitution

Deviations from federal characteristics: unitary features of Indian Constitution

(7) Single and uniform citizenship - for the whole country.

Criticism of Wheare's views

Conclusions: Indian federalism is 'unique'

PREAMBLE OF THE CONSTITUTION

 the source of the Constitution,

“We, The People of India…”

“..having solemnly resolved to constitute India..”

“..and to secure to all its citizens..”

“..justice, social economic and political..”

a) to protect the interests of the weaker sections;

PREAMBLE - as a part of the Constitution

 In Re Berubari Case {AIR 1960 SC 845}

 In Keshwanand Bharti’s case {AIR 1973 SC 1461}

 S.R. Bommai v. UoI {AIR 1994 SC 1918}

Can Preamble be amended??

2. Citizenship and the Indian Constitution:

he has returned to the territory of India under a permit or for resettlement or

ii. he has been registered as a citizen of India by the diplomatic/ consular

3. Concept of Domicile and Citizenship as explained by the Supreme Court:

4. The Citizenship Act of 1955:

4.1 Indian Citizenship by Birth

 A person born aboard in registered/ unregistered ship or aircraft of the Government of

4.2 Indian Citizenship by Descent

4.3 Indian Citizenship by Registration

4.4 Indian Citizenship by Naturalization

4.6 Indian Citizenship by incorporation of territory

4.7 Renunciation of citizenship

4.8 Termination of citizenship

4.9 Deprivation of citizenship

Tests to decide which “other authorities” could be considered as agencies or

Justifiability of fundamental rights

• France Declaration of the Rights of Man and

EVOLUTION OF THE DOCTRINE OF ECLIPSE

Can the Doctrine be Applied to Post-Constitutional Laws?

Whether an amendment of the constitution amounts to ‘law’ under article 13(2)?