CONSTITUTIONAL LAW

4TH SEMESTER NOTES

UNIT-1: FUNDAMENTAL RIGHTS

 Preamble and It’s significance

It is a kind of legal document which acknowledge as introductory statement of the

document and explains or express the objective and philosophy. In a Constitution, it
presents the intention of its framers, the history behind its creation, and the core
values and principles of the nation.
The preamble basically talks about the four things:
1) Source of the Constitution
2) Nature of Indian State
3) Statement of Objective
4) Date of its adoption

The History of the Preamble in Indian Context is

1) The ideals behind the Preamble to India’s Constitution were laid down
by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent
Assembly on January 22, 1947.
2) Although not enforceable in court, the Preamble states the objectives of the
Constitution, and acts as an aid during the interpretation of Articles when
language is found ambiguous.
The key component of Preamble is:
1) It is indicated by the Preamble that the source of authority of the Constitution
lies with the people of India.
2) Preamble declares India to be a sovereign, socialist, secular, democratic and
republic.
3) The objectives stated by the Preamble are to secure justice, liberty, equality to
all citizens and promote fraternity to maintain unity and integrity of the
nation.
4) The date is mentioned in the preamble when it was adopted i.e. November 26,
1949.

The key component of the Preamble are:

1) We, the people of India: It indicates the ultimate sovereignty of the people of
India.
2) Sovereign: The term means that India has its own independent authority and it
is not a dominion of any other external power. In the country, the legislature has
the power to make laws which are subject to certain limitations.
 3) Socialist: The term means the achievement of socialist ends through
democratic means. It holds faith in a mixed economy where both private and
public sectors co-exist side by side. It was added in the Preamble by
42nd Amendment, 1976.
4) Secular: The term means that all the religions in India get equal respect,
protection and support from the state. It was incorporated in the Preamble by
42nd Constitutional Amendment, 1976.
5) Democratic: The term implies that the Constitution of India has an established
form of Constitution which gets its authority from the will of the people
expressed in an election.
6) Republic: The term indicates that the head of the state is elected by the people.
In India, the President of India is the elected head of the state.
Objectives of the Indian Constitution

 The Constitution is the supreme law and it helps to maintain integrity in the
society and to promote unity among the citizens to build a great nation.

A) The main objective of the Indian Constitution is to promote harmony

throughout the nation.
 The factors which help in achieving this objective which is mentioned in the
preamble are:

A) Justice: It is necessary to maintain order in society that is promised

through various provisions of Fundamental Rights and Directive
Principles of State Policy provided by the Constitution of India. It
comprises three elements, which is social, economic, and political.

 Social Justice – Social justice means that the Constitution wants to create
a society without discrimination on any grounds like caste, creed,
gender, religion, etc.
 Economic Justice – Economic Justice means no discrimination can be
caused by people on the basis of their wealth, income, and economic
status. Every person must be paid equally for an equal position and all
people must get opportunities to earn for their living.
 Political Justice – Political Justice means all the people have an equal,
free and fair right without any discrimination to participate in
political opportunities.
B) Equality: The term ‘Equality’ means no section of society has any special
privileges and all the people have given equal opportunities for everything
without any discriminations. Everyone is equal before the law.
C) Liberty: The term ‘Liberty’ means freedom for the people to choose their
way of life, have political views and behaviour in society. Liberty does not
mean freedom to do anything, a person can do anything which is admissible
by law.
 D) Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an
emotional attachment with the country and all the people. Fraternity helps to
promote dignity and unity in the nation.
 Importance of the Preamble can be stated as follows

1. The Preamble of the Constitution outlines the Constitution's underlying ideals and
philosophy, as well as the policy goals and objectives that the founding authors of the
Constitution aimed for.
2. The Supreme Court of India has emphasized the importance and utility of the preamble
in a number of rulings.
3. It states that the constitution's goal is to provide justice, liberty, equality, and fraternity
to its citizens.
4. It’s a kind of primer on the statute, and it's often quite helpful in deciphering the policy
and legislative meaning. It expresses "what we'd been thinking or dreaming about for a
long time."
5. It encapsulates all of the principles and goals for which the country fought during the
British Regime in a solemn manner.
6. It identifies the people of India as the source of the constitution.
7. It contains the enacting clause, which puts the constitution into effect.
8. It defines the fundamental liberties that the Indian people sought to safeguard for all
citizens, as well as the basic style of government and politics that was to be built.
9. It aids the Supreme Court in determining whether a particular provision or piece of
legislation is consistent with the spirit of the constitution.
Case Law
The preamble being part of the Constitution is discussed several times in the Supreme
Court. It can be understood by reading the following three cases.

Berubari Case: It was used as a reference under Article 143(1) of the

Constitution which was on the implementation of the Indo-Pakistan Agreement
related to the Berubari Union and in exchanging the enclaves which were
decided for consideration by the bench of eight judges.
Through the Berubari case, the Court stated that ‘Preamble is the key to open
the mind of the makers’ but it cannot be considered as part of the
Constitution. Therefore it is not enforceable in a court of law.
Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges
was assembled to hear a writ petition. The Court held that:

The Preamble of the Constitution will now be considered as part of the

Constitution.
 The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of statutes
and provisions of the Constitution.
So, it can be concluded that preamble is part of the introductory part of the
Constitution.
In the 1995 case of Union Government Vs LIC of India also, the Supreme Court
has once again held that Preamble is the integral part of the Constitution but is
not directly enforceable in a court of justice in India.

 Definition of State for Enforcement of Fundamental Rights

Article 12 defines the “state” which includes:
 Government and Parliament of India
 Government and the Legislature of each of the States
 All local or other authorities within the territory of India or under the control of the
Government of India.
The words “other authorities” and “under the control” are ambiguous and led to
numerous litigations in the Supreme Court. Thus, this article has been subject to judicial
interpretation from time to time. Various Supreme Court judgments have established that:
 Definition of state is inclusive and may include other bodies than executive, legislature
of union and states which have been enumerated explicitly in the article 12.
 Any such authority which has power to make any law, pass any order, make an
regulation, bye-laws etc. comes under definition of state. Thus Panchayats,
municipalities, district boards and other statutory, constitutional bodies come within
the definition of state.
 Statutory and non-statutory bodies that get financial resources from government,
have deep pervasive control of government and with functional characters as such as
ICAR, CSIR, ONGC, IDBI, Electricity Boards, NAFED, Delhi Transport Corporation etc.
come under the definition of state.
 Statutory and Non-statutory bodies which are not substantially generally financed by
the government don’t come under definition of state. Examples are autonomous bodies,
Cooperatives, NCERT etc.
 Judiciary is NOT state. Many people emphasis that the judiciary should be included in the
definition of the state.

Case law

In Ujjain Bai v. State of U.P.,

The Supreme Court observed that Article 12 winds up the list of authorities falling within
the definition by referring to “other authorities” within the territory of India which
cannot, obviously, be read as ejusdem generis with either the Government or the
Legislature or Local authorities. The word “State” is of wide amplitude and capable of
comprehending every authority created under the statute and functioning within the
territory of India. There is no characterization of the nature of authority set up under a
statute for the purpose of administering laws enacted by the Parliament or by the State
including those vested with the duty to make decisions in order to implement those
laws.

In the case Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,

It was held that the authorities other than those of local self- government, who have the
power to make rules, regulations, etc. having the force of law. “Instrumentality” and
“agency” are the two terms, which to some extent overlap in their meaning. The basic
and essential distinction between an “instrumentality” and “agency” of the State and “other
authorities” has to be borne in mind. An ‘Authority’ must be authority sui juris within the
meaning of the expression “other authorities” under Article 12. A juridical entity, though
an authority may also ratify the list of being an instrumentality or agency of the state in
which event such authority may be held to be an instrumentality or agency of State, but not
vice versa.
In the case of R.D.Shetty v/s International Airport Authority, the Court laid down five
tests to be considered “other authority”:
1) Entire share capital is owned or managed by State.
2) Enjoys monopoly status.
3) Department of Government is transferred to Corporation.
4) Functional character governmental in essence.
5) Deep and pervasive State control.
6) Object of Authority
In the case of Ajay Hasia v. Khalid Mujib Sehravardi,
It has been held that whether a statutory body falling within the purview of the expression
“other authorities” is to be considered differently. In the opinion of the minority, the tests
laid down, in this case, are relevant only for the purpose of determining whether an
entity is an “instrumentality or agency of the State”.
In Electricity Board, Rajasthan v. Mohan Lal,
The Supreme Court held that the expression “other authorities” is wide enough to
include all authorities created by the Constitution or statute on whom the powers are
conferred by Law. It is not necessary that the statutory authority should be engaged in
performing the governmental or sovereign function.
In U.P. Warehousing Corporation v. Vijai Narain,
It was held that the U.P. Warehousing Corporation which was constituted under a
statute and owned and controlled by the Government was an agency or
instrumentality of the Government and therefore “the State” within the meaning
of Article 12.
In Som Prakash v. Union of India, the Supreme Court held that a Government company
(Bharat Petroleum Corporation) fell within the meaning of the expression ‘the State’
used in Article 12.

In Rupa Ashok Hurra v Ashok Hurra, the Supreme Court reaffirmed and ruled that no
judicial proceeding could be said to violate any fundamental right. It was said to be a
settled position of law that superior courts of justice do not fall within the ambit of ‘State’
or other authorities under Article 12. Therefore, it can rightly be said that while courts
perform their administrative function, they are within the State’s definition and cannot
violate any fundamental rights of the citizen. Still, when they give judicial decisions, they
do not come within the meaning of State.

When talking about part IV of the constitution, the courts have differed in opinion in State
of Kerala v N.M. Thomas, it was held that the courts’ decision must “inform and
illuminate” the court’s interpretational task, based on the view that they are State under art
12. Therefore, it was inferred that the Judiciary is ‘state’ when talking about part IV of the
constitution.

Rationale behind Fundamental Rights against state

The conflict between individuals and state is as old as our history. The individuals need
personal liberty and state has the power to decide those liberties. Thus, if the state has
absolute power to cut down those liberties of an individual, it would be tyranny. Thus, the
individuals need constitutional protection against the state. The rights which are given to
the citizens by way of fundamental rights are a guarantee against state action as
distinguished from violation by the ordinary law of land. Thus, Fundamental rights are
against the state for the protection of individual.
Fundamental Rights against state and individuals
Fundamental rights are binding upon not only the State and agencies of State but also upon
individuals/organizations. For example, if untouchability or any sort of discrimination is
practiced by any individual then that individual indulging in such practices is
punishable under the law of the land. Article 12 gives the definition of State as including
not only the executive and legislative organs of the Union and the States but also local
bodies and other authorities. Even the act of any individual may become an act of the State
if it is enforced or aided by any of the authorities mentioned above. Certain Fundamental
Rights are also available against private individuals like Article 15(2) [equality with
regard to access to and use of places of public resort], Article 17 [Abolition of
Untouchability], Article 18(3)-(4) [prohibition of acceptance of foreign title], Article
23 [prohibition of traffic in human beings and forced labour] and Article 24
[prohibition of employment of children in hazardous employment].
Self-executory rights
All fundamental rights are justifiable and enforceable under court. There are certain
rights in Indian constitution which don’t need any legislation to make them enforceable.
For example there is no need to enact a separate legislation to make the Right to Equality
enforceable. These are called self-executory. At the same time, there are certain rights
which are imperfect in just being inscribed to the constitution and need further legislation
to make them enforceable. Such rights are Art. 17 (untouchability) Article 21-A (Right to
Education); Article 23 (Prohibition of traffic in human beings and forced labour) and
Article 24 (Prohibition of Employment of Children in factories, etc.)

 Justiciability of Fundamental rights

It means the rights given under part III of the Indian Constitution can be enforceable.
In case of violation of any of the Fundamental rights, one can go to the High Court or
Supreme Court for the protection of the Fundamental Rights.

Fundamental rights are very important because they safeguard the interest of the people
and due to this they are considered as the backbone of the country. Article 13 talks
about the Justiciability of Fundamental rights; any law violate of Fundamental Right
can be void.” It not specifically talks about just laws, but also ordinance, orders, bye-laws
regulations, notifications, custom or usage etc.

Indian constitution is supreme. It means ‘Supremacy of the constitution’ i.e., all laws
must be in accordance with the provisions of the constitution. Parliament, while passing a
legislature must act in strict adherence to the specific mandates/provisions of the
constitution. In other words, Article 13 of the constitution envisages supremacy of the
constitution.

Fundamental rights emphasis on the basic rights of any Indian citizen in our Indian
Constitution which no one can amend. Article 13 of the Indian Constitution does uphold
the supremacy over the Indian Constitution and to lead the way of judicial review. This
article does enable us to review the pre-constitutional and post-constitutional laws.

o The Fundamental Rights are enshrined in Part III of the Constitution (Articles
12-35).
o Part III of the Constitution is described as the Magna Carta of India.

 ‘Magna Carta’, the Charter of Rights issued by King John of England in

1215 was the first written document relating to the Fundamental Rights of
citizens.
o The Fundamental Rights: The Constitution of India provides for six
Fundamental Rights:
 Right to equality (Articles 14–18)
 Right to freedom (Articles 19–22)
 Right against exploitation (Articles 23–24)
 Right to freedom of religion (Articles 25–28)
 Cultural and educational rights (Articles 29–30)
 Right to constitutional remedies (Article 32)
o Originally the constitution also included Right to property (Article
31). However, it was deleted from the list of Fundamental Rights by
the 44th Amendment Act, 1978.
  It is made a legal right under Article 300-A in Part XII of the
Constitution.
o Provision for Laws Violating Fundamental Rights: Article 13 of the Indian
constitution declares that all laws that are inconsistent with or in derogation of
any of the fundamental rights shall be void.
This power has been conferred on the Supreme Court (Article 32) and the high
courts (Article 226).
 Further, the article declares that a constitutional amendment cannot be
challenged (as it is not a law).
However, the Supreme Court in the Kesavananda Bharati case
(1973) held that a Constitutional amendment can be challenged if it
violates a fundamental right.
o Writ Jurisdiction: A writ is a legal order given by a court of law.
The Supreme Court (Article 32) and the High courts (Article 226) can issue the
writs of habeas corpus, mandamus, prohibition, certiorari and quo-
warrant.
Features of the Fundamental Rights:

 Protected by Constitution: Fundamental Rights, unlike ordinary legal rights, are

protected and guaranteed by the constitution of the country.

o Some of the rights are available only to the citizens while others are available to
all persons whether citizens, foreigners or legal persons like corporations or
companies.
 Not Sacrosanct, Permanent, or Absolute: They are not sacrosanct or permanent
and the Parliament can curtail or repeal them but only by a constitutional amendment
act.

o The rights are not absolute but qualified.

 The state can impose reasonable restrictions on them, however, the
reasonability of the restrictions is decided by the courts.
o Rights are Justiciable: The rights are justiciable and allow persons to move the
courts for their enforcement, if and when they are violated.
Any aggrieved person can directly go to the Supreme Court in case of violation
of any fundamental right.
 Suspension of Rights: The rights can be suspended during the operation of a
National Emergency except the rights guaranteed by Articles 20 and 21.

o Further, the six rights guaranteed by Article 19 can be suspended only when
there is an external emergency war or external aggression) [and not on the
ground of armed rebellion (i.e., internal emergency].
o Restriction of Laws: Their application to the members of armed forces,
paramilitary forces, police forces, intelligence agencies and analogous services
 can be restricted or abrogated by the Parliament (Article 33).
Their application can be restricted while martial law (military rule imposed
under abnormal circumstances) is in force in any area.

Doctrine of Eclipse

The Doctrine of Eclipse states that any law which is inconsistent with fundamental
rights is not invalid. It is not totally dead but overshadowed by the fundamental right.
The inconsistency (conflict) can be removed by constitutional amendment.

The Judiciary is the guardian of the rights provided under the Constitution of India. It is the
duty of the judiciary to maintain the check and balance between the actions of the
Legislature and the Executive where they are infringing upon these rights. When the
Constitution was adopted on January 26, 1950, with it came, the fundamental rights that
are guaranteed to the citizens.
There were several existing laws at the time when the Constitution was adopted, some of
which were in direct conflict with fundamental rights, so in order to determine the validity
of these laws the Supreme Court came up with certain principles/doctrines, one of which
was the Doctrine of Eclipse.

 This doctrine emanates directly from Article 13(1) of the Constitution that is a part
of the fundamental rights, which states, “all laws in force in the territory of India
immediately before the commencement of this Constitution in so far as they are
inconsistent with the provisions of this Part, i.e. Part III, shall, to the extent of such
inconsistency, be void.”
 The doctrine of eclipse envisages fundamental rights as prospective in nature.
 It states that a pre-constitutional law inconsistent with the fundamental rights is
not a nullity or void ab initio but only remains unenforceable, i.e., remains in a
dormant state.
 They exist for all past transactions, i.e., for rights and liabilities that were acquired
before the Constitution came into being.
 These laws also remain applicable to individuals who have not been given
fundamental rights, for example, non-citizens.
 Therefore, the impugned law remains hidden behind the fundamental rights and can
become operative again if and when the fundamental right it is inconsistent with the
amended.

Case Law on Doctrine of Eclipse

The Doctrine of Eclipse has evolved through various Supreme Court rulings after the
adoption of the Constitution.

 In the Keshav Madhav Menon v. State of Bombay case, the petitioner was
prosecuted under the provisions of the 1931 act, the Indian Press (Emergency
Powers) Act, for publishing a pamphlet with no permission. The case was still
pending when the Constitution came into force and thus raised questions regarding
the prospective and retrospective nature of Article 13(1) and the word “void”. The
 question before the Court was whether the impugned Act was violate of Article
19(1) (a) and if so whether it should be declared void. The Court answered the first
part in affirmative adding that the Act is void only to the extent of the violation
and that the word “void” used in Article 13 does not mean that statutes or
provisions shall be repealed altogether.
 In the case of FN Balsara, the Court declared Section 13(b) of the Bombay
Prohibition Act of 1949 as void because it violated Article 19(1) (f) of the
Constitution. The Court again held that only the part of the statute that is
violate of Part III is inoperative and not the whole Statute.
 It is generally agreed, however, that the actual genesis of this doctrine occurred
in Bhikaji Narain Dhakras v. State of Madhya Pradesh. In this case, the C. P.
and Berar Motor Vehicles Amendment Act of 1947 was challenged for being
violate of Article 19(1) (g). This amendment act was a pre-constitutional law.
Thus, the Doctrine of Eclipse was applied and the Act’s provisions were made
inoperative.
However, in the year 1951, by virtue of the 1 st Constitutional Amendment Act, Article
19(1) (g) was amended and the eclipse was removed, rendering this law enforceable
against citizens and non-citizens. According to the Court, “the effect of the amendment
was to remove the shadow and to make the impugned Act free from all blemish or
infirmity”.

Features of Doctrine of Eclipse

 The doctrine only applies to pre-constitutional laws that were valid at their
inception.
 The doctrine is not applicable to post-constitutional laws since they are invalid
from the very inception because of being inconsistent with Part III; the same
was held by the Supreme Court in Deep Chand v. State of Uttar Pradesh.
However, non-citizens can’t take any advantage of the rule as the violation
doesn’t impact them.
 The impugned law must be violate of the fundamental rights, and then only can
it be hidden or eclipsed.
 The law that turns out to be violate of Part III does not become a nullity but just
remains unenforceable & defective.
 If the fundamental right that is violated by the impugned law is amended in the
future, the law automatically becomes operative.

 Doctrine of Severability
According to Art. 13, a law is void only “to the extent of the inconsistency or
contravention” with the relevant Fundamental Right. The above provision means that an
Act may not be void as a whole; only a part of it may be void and if that part is severable
from the rest which is valid, then the rest may continue to stand and remain operative. The
Act will then be read as if the invalid portion was not there. If the valid portion is so
closely mixed up with invalid portion that it cannot be separated without leaving an
incomplete or more or less mingled remainder the court will declare the entire Act void.
 Case law

A.K Gopalan v. State of Madras

In this case section 14 of Preventive detention act, 1950 was challenged. Section 14 of the
act says that if any person is being detained under this act then he or she may not disclose
the grounds of his or her detention in court of law, this particular statement is inconsistent
with that of fundamental rights as per article 22 of the Indian constitution, thus if we do
apply the doctrine of severability here so the whole act (preventive detention act,1950)
would not be declared as void but only section 14 of the act would be declared as void as it
is inconsistent with the fundamental rights.

R.M.D.C. v. Union of India

The Supreme Court has explained the doctrine as follows “When a legislature whose
authority is subject to limitations aforesaid enacts a law which is wholly in excess of its
powers, it is entirely void and must be completely ignored. But when the legislation falls in
part within the area allotted to it and in part outside it, it is undoubtedly void as to the
latter; but does it on that become necessarily void in its entirety? The answer to this
question must depend on whether what is valid could be separated from what is invalid,
and that is a question which has to be decided by the Court on a consideration of the
provisions of the Act”.

 Doctrine of Waiver

 In this, a person intentionally gives up his right or privilege or chooses not to

exercise his right or privilege which are conferred on him by the state.
 In Basheshar Nath v. Commissioner of Income Tax, the Supreme Court held that
fundamental rights of a person cannot be waived.
 In Jaswantsingh Mathurasingh & Anr. V.Ahmedabad Municipal Corporation &
Ors, the court said that everyone has the right to waive an advantage or
protection that seeks to give him. For instance, in the case of a tenant-owner
dispute, if a notice is issued and no representation is made either by the owner,
tenant or sub-tenant, it would be a waiver of opportunity and that person cannot
be allowed to turn around at a later stage.

 Right to Equality- Doctrine of Reasonable Classification

Doctrine of reasonable classification has been originated from Article 14 of Indian

Constitution. Article 14 is a fundamental right to equality to every citizen in the country. It
is one of the most important provisions of the constitution as it provides equality to all the
people within the territory of India.

It protects against any discrimination on grounds of religion, caste, race, gender, place of
birth.
There are two features under Article14 –
 (1) Equality before the law: It talks about equal subjection of all citizens (rich
or poor, high or low, official or non-official) to the ordinary law of the land
administered by the ordinary law courts and is a negative concept as implies
the absence of any privilege in favour of any individual and equal
subjection of all classes to the ordinary law.

(2) Equal protection of the law: It is a Positive Concept as it implies equality of

treatment in equal circumstances both in privileges conferred and liabilities
imposed. So, all the persons must be treated alike on reasonable
classification. Among equals law should be equal and equally administered.
The guarantee of equal protection applies against substantive as well as
procedural laws.
Although both sound similar, they don’t mean the same. The word “Law” in the former
expression is used in a genuine sense – a philosophical sense, whereas the word “Laws” in
the latter expression denotes specific laws in force.
Earlier, a reasonable classification test was conducted which tested whether there is
reasonable classification in the legislation i.e. the test was held to check the
constitutionality.

Genesis:
Article 14 of the Indian Constitution states that the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India. It
can be conferred from this statement that no one is above the law of the land and the Rule
of Law shall prevail as all are equal in the eyes of law. But this rule is not absolute and is
subject to many exceptions.

The Rule of Law cannot prevent a certain class of persons from being subject to special
laws, hence, the State has the power to make laws operating differently on different classes
of people, in a way that the principle of equality of civil rights and equal protection of law
is followed. This is being known as the 'Doctrine of Reasonable Classification'.

Article 14 permits Reasonable Classification and not Class Legislation. Class Legislation
means making of improper discrimination by conferring certain privileges upon a class of
persons arbitrarily selected from a huge number of people. Thus, Class legislation violates
equal protection whereas, Reasonable Classification is always based on real and substantial
distinction.

Case Law:
In Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958, the Supreme Court held that:
It is now well established that while Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation. It condemns discrimination not
only by a substantive law but also by a law of procedure.

Hence, Article 14 forbids the class legislation but it does not forbid reasonable
classification, however, these classifications must not be 'arbitrary, artificial or evasive'.
In the case of State of West Bengal v. Anwar Ali Sarkar, the Supreme Court of India,
stated the twin test for reasonable classification. The court held that for the classification to
pass the test, two conditions must be fulfilled:

Classification must be founded on an intelligible differentia which distinguishes those that

are grouped together from others and the differentia must have a rational relation to the
object sought to be achieved by the Act.
Relevance:
The court said that:
The differentia which is the basis of the classification and the object of the act are distinct
things and what is necessary is that there must be a nexus between them i.e. the object of
the law and the grouping.

The doctrine of reasonable classification is mere judicial test to determine whether there is
arbitrariness in the state action if the state action in question does not pass the test as laid
down by the doctrine it is considered arbitrary and since it is arbitrary it will be
unconstitutional as per the principles of article 14. This ensures that people similarly
situated are treated equally.
Exception:
The above right is not an absolute right. Hence, is subject to an exception – reasonable
classification.
Article 14 forbids class legislation but permits reasonable classification. The two tests of
classification are as follows:
1. Ineligible Differentia: The classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from other. Arbitrariness is an anti-
thesis to the right top equality. Hence, there should be no scope of arbitrariness in
classification.
2. Rational Relation: That differentia must have a rational relation to the object sought to
be achieved by the Act. It 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.
 The Principle of Absence of Arbitrariness

The principle of Absence of Arbitrariness and the Constitution of India: an antithesis of its
own kind:

The Constitution of India guarantees the fundamental right to equality under Article 14.
According to article 14 of the Constitution of India, “The State shall not deny to any
person equality before the law or the equal protection of laws within the territory of India.”
The right to equality which is a basic feature of our Constitution means that neither any
constitutional amendments nor Parliament can contravene in the fundamental right of
equality. If there is a violation of the right to equality then it will be considered a violation
of the basic structure of the Constitution. Article 14 provides two principles: Equality
before the law and equal protection of the laws.

1. Equality before the law:

Equality before the law is a concept from English law which is also known as Rule of Law
propounded by AV Dicey. It is said to be a negative concept because it appeals to the duty
of the state to not to make any law transgressing the rights of individuals and that the law
should be equal, the like should be treated alike come what may. It ensures the absence of
any privilege in favour of any individual and equal subjection of all the classes of law.
There is no absolute equality in this concept as there are some exceptions such as foreign
diplomats, presidents and other governors of the state are immune from the jurisdiction of
courts.

2. Equal Protection of laws:

Equal protection of the law is originated from the concept of the 14th Amendment of the
American Constitution. It is a positive concept because here the state is assigned with a
positive task to protect the rights of the individual. It ensures that among equals the law
should be equal and equally administered. The guarantee of equal protection applies
against substantive as well as procedural laws. This concept is not only restricted to a
natural person but also includes juristic persons such as corporations which are to be
benefited from this concept.
The concept of arbitrariness come into the picture
It is in Royappa Case that article 14 was further interpreted and wider scope was given to it
and the doctrine of arbitrariness came into picture.
Right to equality ensures that every person is to be treated equally without any
discrimination made on any ground be it sex, caste, religion, age, position or politics. In
this regard, the Supreme Court came up with the new dimension to Article 14 and held it to
be a guarantee against arbitrariness. According to the Doctrine of Arbitrariness, “equal
protection of the law” prohibits class legislation but permits reasonable classification of
persons or things.
The test for this reasonable classification originated in State of West Bengal v. Anwar Ali
Sarkar. In order to pass the test of reasonable classification, two conditions are to be
fulfilled:
(a) Intelligible differentia: the classification must be founded on an intelligible differentia
where like should be treated alike and unlike should not be treated alike.
(b) Rational Nexus: In this test, the differential should have a rational nexus with the object
of the act. Each case has to be examined independently in the context of Article 14 and not
by applying any general rule.
Case Law in the Principle of Absence of Arbitrariness
In Ajay Hasia v. Khalid Mujib Sehravardi, the court held that wherever there is
arbitrariness in the actions of the state, be it of the legislature or of the executive or of any
“authority” under Article 12, Article 14 must immediately come into action to turn down
such act of the state. Article 14 is to counter the arbitrariness because any action which is
arbitrary is ultimately the negation of equality. The concept of reasonableness and non-
arbitrariness is the very essence of the constitution which runs deep through its fabric.[6]
In E.P Royappa v. State of Tamil Nadu, the traditional concept of equality i.e. reasonable
classification was challenged in the apex court and a new concept was laid down in the
judgment. It was held that equality is a dynamic concept with many aspects and
dimensions and it cannot be cribbed, cabined, and confined with traditional doctrinaire
limits.
The same judgment was used in other landmark cases such as of Maneka Gandhi v. Union
of India and R.D Shetty v. International Airport.
In Maneka Gandhi case, Bhagwati J very clearly read the principle of reasonableness in
article 14. He said: “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”.[7]
In R.D Shetty v. International Airport, it was held that the doctrine of classification which
is involved by the Court is not a paraphrase of Article 14 nor is the objective and end of
that Article. It is legislative or executive action in question which is arbitrary and therefore
constituting the denial of equality. Therefore, where an act is arbitrary, it is considered as
unequal and hence, a violation of Article 14 which strikes arbitrariness in state action and
ensures fairness and equality of treatment.
 Doctrine of Legitimate Expectation
Doctrine of Legitimate Expectation When an individual seeks judicial review on the
ground of his legitimate expectation being defeated, Courts have to first determine whether
there existed a legitimate expectation. A legitimate expectation is said to arise “as a result
of a promise, representation, practice or policy made, adopted or announced by or on
behalf of government or a public authority.” Therefore it extends to a benefit that an
individual has received and can legitimately expect to continue or a benefit that he expects
to receive. When such a legitimate expectation of an individual is defeated, it gives that
person the locus standi to challenge the administrative decision as illegal. Thus even in the
absence of a substantive right, a legitimate expectation can enable an individual to seek
judicial review.
Judgments and Rationale of Important Cases Pertaining to Legitimate Expectation in India
The procedural aspect of the doctrine of legitimate expectation has been well established in
India. However, the substantive aspect of the doctrine is still in its developing stages. The
Supreme Court of India has come up with different judgments on the topic without much
clarity as to the application of the doctrine. The leading case that dealt with the doctrine in
length was the case of Union of India v Hindustan Development Corporation.
In this case the Indian Railways introduced a dual pricing system initiated by so as to
enable healthy competition between three manufacturers, whose work was on a large scale
and smaller manufacturers. The dual pricing meant that the railways still gave
counteroffers for an even lower rate while at the same time, granting tenders to small
manufacturers for a higher rate. The big manufacturers challenged this policy on various
grounds including unreasonableness and that they had a legitimate expectation of being
treated in a certain way by the Railways as established by a longstanding conduct of the
Indian Railways.
The Supreme Court while addressing the topic of legitimate expectation laid down the
current position of legitimate expectation in India. The Court acknowledged legitimate
expectation as being sufficient locus standi for judicial review. However, in this judgment,
the doctrine of legitimate expectation was mostly confined to procedural legitimate
expectation by stating that “it is generally agreed that legitimate expectation gives the
applicant sufficient locus standi for judicial review and that the doctrine of legitimate
expectation is to be confined mostly to right of a fair hearing before a decision which
results in negating a promise or withdrawing an undertaking is taken.”
However, it sets down a heavy burden of the applicant to establish the existence of a
legitimate expectation and its denial by the state. The applicant has to establish a
foundation for the claim. According to the Court, ‘a legitimate expectation would arise
when a body by representation or by past practice aroused expectation which it would be
within its powers to fulfil’. Moreover an applicant must also show that the actions of the
authority was arbitrary, unreasonable and against public interest. Anything that is arbitrary
is violative of Article 14 of the Constitution and is therefore void.
The Court also allows denial of legitimate expectation when it is in public interest or when
it is a change in policy. However, the authority has a duty to justify this decision based on
some overriding public interest. This seems to be another test laid down by the Court.
However, the wording of the test seems to suggest that it is more applicant-friendly and
have better chances of success in judicial review. Tests which indicate different levels of
substantiation required will only add to the confusion regarding the doctrine.
Once these tests and the court are satisfied as to the existence and denial of a legitimate
expectation, the courts will then look into whether in denying the right to hearing has
resulted in a ‘failure of justice’ and the order may be quashed. The Court also clarified that
one cannot claim a relief immediately based on legitimate expectation as there is no
crystallized right involved. It is only the steps mentioned above that the relief may be
considered. These further shows that for all practical purposes, substantive legitimate
expectation do not seem to be recognized by the Supreme Court. However, the Court does
state that even if substantive legitimate expectation were considered, there is no absolute
right for the applicant. Instead the Court would only determine the circumstances under
which a legitimate expectation may be denied or restricted.
In the case of Punjab Communication Ltd. v Union of India13, the Supreme Court
recognizes the substantive aspect of the doctrine and observes that it has been ‘accepted as
part of our law’. However the concept of the doctrine used in this case seems flawed. The
Court took the definition of the doctrine of legitimate expectation as given in the
Raghunathan case, wherein the Court observed that “… claims based on "Legitimate
Expectation" have been held to require reliance on representations and resulting detriment
to the claimant in the same way as claims based on promissory estoppels” The Supreme
Court upheld this requirement in the Punjab Communication case. Moreover, the Court
also seems to indicate that a promise or representation is also mandatory for the doctrine to
apply. It seems that this definition is more suggestive of the doctrine of promissory
estoppel rather than that of substantive legitimate expectation.
In this case the Court laid down the Wednesbury test as the test for determining whether
there has been a denial of a legitimate expectation and whether such denial is justified and
on application found that the test was not satisfied.
In International Trading case, the court applied the Wednesbury test and observed that “If a
denial of legitimate expectation in a given case amounts to denial of a right guaranteed or
is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of the
principles of natural justice, the same can be questioned on the ground attracting Article 14
but a claim based on mere legitimate expectation without anything more cannot ipso facto
give a right to invoke those principles”.
The concept of legitimate expectation is confused here with the denial of a legal right. The
doctrine is applicable when there is no substantive right on the part of the applicant. The
violation of a legal right would give rise automatically to a cause of action, which has
nothing to do with legitimate expectation.
Interestingly, in the case of Secretary, Cannanore District Muslim Educational Association,
Kanpur v State of Kerala and others14, the Supreme Court granted the writ of mandamus
to the educational institution on the ground of denial of a legitimate expectation which
arose out of a government promise without applying any of the tests laid down above.
It is also to be noted that J. Katju has recently referred a case to the Constitution Bench of
the Supreme Court, citing a lack of clarity in the application of principles of estoppel and
legitimate expectation. However, none of the relevant case law do not seem to have been
considered in this judgment and this seems to be a reference only pertaining to the
application of the doctrine of legitimate expectations in this particular case. The
Constitution Bench may have to consider relevant case law in order to establish the test as
well as clarify the doctrine of legitimate expectation.
Doctrine of Legitimate Expectation and Article 14 of the Constitution of India.
Under Article 14 of the Constitution of India, every citizen has the right to equality of law
and equal protection before law. The concept of an arbitrary action being in violation of
Article 14 was first introduced by J. Bhagwati in the case of E.P. Royappa v State of Tamil
Nadu15, wherein he stated that ‘equality is antithetic to arbitrariness’. Thus Article 14 has
a very wide ambit and encompasses within it equality, the principles of natural justice and
is a mandate against arbitrary state actions. This imposes a duty on the state to act fairly.
Good governance in conformity with the mandate of Article 14, “raises a reasonable or
legitimate expectation in every citizen to be treated fairly in its interaction with the state
and its instrumentalities.”
Law includes “any Ordinance, order, bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law”. By virtue of Article 13(2), any law
made in contravention of any provision of the Constitution is void. Thus anything which is
arbitrary or unreasonable or violative of the principles of natural justice is void by virtue of
Article 14 read with Article 13(2) of the Constitution. Applying such a high threshold of
proof for the doctrine of legitimate expectation is unnecessary as is the doctrine itself by
appearances.
It must also be noted that Article 14 encompasses the principles of natural justice which
include right to hearing. It could be argued that the doctrine of legitimate expectations have
its grounding in the Constitutional provisions of India, much like they do in Germany.
However, the Supreme Court has applied a confused approach to the doctrine of legitimate
expectation and in the process, made the doctrine irrelevant, without realizing its potential.
UNIT-II: Fundamental Rights

 Fundamental Freedom
Freedom of Speech and Expression: The essence of free speech is the ability to
think and speak freely and to obtain information from others through publications
and public discourse without fear of retribution, restrictions or repression by the
Government.
The article 19(1) (a) of the Constitution of India states that, “all citizens shall have
the right to freedom of speech and expression”
(a) Freedom of speech and expression;
(b) Assemble peaceably and without arms;
(c) Form associations or unions;
(d) Move freely throughout the territory of India;
(e) Reside and settle in any part of the territory of India; and
(f) Practise any profession, or to carry on any occupation, trade or business

The philosophy behind this Article lies in the Preamble of the Constitution, where a
solemn resolve is made to secure to all its citizen, liberty of thought and expression. The
exercise of this right is, however, subject to “reasonable restrictions” for certain purposes
being imposed under Article 19(2) of the Constitution of India.

Main Elements of Right of freedom of Speech and Expression

1. This right is available only to a citizen of India and not to foreign nationals.
2. 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.
3. This right is, however, not absolute and it allows Government to frame laws to impose
reasonable restrictions in the interest of sovereignty and integrity of India, security of the
state, friendly relations with foreign states, public order, decency and morality and
contempt of court, defamation and incitement to an offence.
4. This restriction on the freedom of speech of any citizen may be imposed as much by an
action of the State as by its inaction.
Thus, failure on the part of the State to guarantee to all its citizens the fundamental right to
freedom of speech and expression would also constitute a violation of Article 19(1) (a).

Landmark Judgements on Freedom of Speech and Expression

Freedom of Press Democracy thrives through vigilant eye of Legislature, care and
guidance of public opinion and press par excellence. Freedom of speech include right to
propagate one’s views through print media or any other communication channel e.g. radio,
television subject to reasonable restrictions imposed under Article 19(2).

1. Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124),was
amongst the earliest cases to be decided by the Supreme Court declaring freedom of press
as a part of freedom of speech and expression. Patanjali Sastri, J., rightly observed that-
‘Freedom of Speech and of Press lay at the foundation of all democratic organizations, for
without free political discussion, no public education, so essential for the proper
functioning of the process of Government, is possible’.

2. Indian Express v. Union of India, (1985) 1 SCC 641, it has been held that the Press plays
a very significant role in the democratic machinery. The courts have duty to uphold the
freedom of press and invalidate all laws and administrative actions that abridge that
freedom. Freedom of Press includes freedom of publication, freedom of circulation and
freedom against pre-censorship.

3. In Sakal Papers Ltd. v. Union of India,[AIR 1962 SC 305] the Daily Newspapers (Price
and Page) Order, 1960, which fixed the number of pages and size which a newspaper could
publish at a price and in Bennett Coleman and Co. v. Union of India,[AIR 1973 SC 106;
(1972) 2 SCC 788],the validity of the Newsprint Control Order, which fixed the maximum
number of pages, was struck down by the Supreme Court of India holding it to be violative
of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2).
The Court struck down the Government’s stand that it would help small newspapers to
grow."

Freedom of Commercial speech

In Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd., the Supreme Court held that a
commercial advertisement or commercial speech was also a part of the freedom of speech
and expression, which would be restricted only within the limitation of Article 19(2).
Supreme Court held that advertising, which is no more than a commercial transaction, is
nonetheless dissemination of information regarding the product advertised. Public at large
are benefited by the information made available through the advertisements. In a
democratic economy, free flow of commercial information is indispensable.

Right to Broadcast

The concept speech and expression has evolved with the progress of technology and
include all available means of expression and communication. This would include the
electronic and the broadcast media.

In Odyssey Communications (P) Ltd .v. Lokvidayan Sanghatana, the Supreme Court held
that the right of a citizen to exhibit films on the State channel – Doordarshan is part of the
fundamental right guaranteed under Article 19(1) (a). In this case, the petitioners
challenged the exhibition on Doordarshan of a serial titled “Honi Anhonion” on the ground
that it encouraged superstitious and blind faith amongst viewers. The petition was
dismissed as the petitioner failed to show evidence of prejudice to the public.

Right to information

The freedom of 'speech and expression' comprises not only the right to express, publish
and propagate information, it circulation but also to receive information. This was held by
the Supreme Court in a series of judgements which have discussed the right to information
in varied contexts from advertisements enabling the citizens to get vital information about
life-saving drugs, to the right of sports lovers to watch cricket and the right of voters to
know the antecedents of electoral candidates.

The Supreme Court observed in Union of India v. Assn. for Democratic Reforms (2002) 5
SCC 294. "One-sided information, disinformation, misinformation and non-information,
all equally create an uninformed citizenry which makes democracy a farce. Freedom of
speech and expression includes right to impart and receive information which includes
freedom to hold opinions".

Right to criticize

In S. Rangarajan v. P.Jagjivan Ram, everyone has a fundamental right to form his opinion
on any issues of general concern. Open criticism of government policies and operations is
not a ground for restricting expression. Intolerance is as much dangerous to democracy as
to the person himself. In democracy, it is not necessary that everyone should sing the same
song.

Right to expression beyond national boundaries

In Maneka Gandhi vs Union of India, the Supreme Court considered whether Article 19(1)
(a) of Indian Constitution was confined to Indian Territory and held that the freedom of
speech and expression is not confined to National boundaries.

Right not to speak or Right to silence is also included in the Right to speech and
expression.

In the case of National Anthem, three students were expelled from the school for refusal to
sing the national anthem. However, the children stood up in respect when the national
anthem was playing. The validity of the expulsion of the students was challenged before
the Kerala High Court and they upheld the expulsion of the students on the ground that it
was their fundamental duty to sing the national anthem. However, on an appeal being filed
against the order of the Kerala High Court before the Supreme Court, it was held by the
Supreme Court that the students did not commit any offence under the Prevention of
Insults to National Honour Act, 1971. Also, there was no law under which their
fundamental right under Article 19(1) (a) could be curtailed. Bijoe Emmanuel v. State of
Kerala 1986 3 SC 615

Reasonable restrictions to Freedom of Speech and Expression in the light of Supreme

Court Judgements
 A. Security of the State: Reasonable restrictions can be imposed on the
freedom of speech and expression, in the interest of the security of the
State. The term security of state has to be distinguished from public
order. For security of state refers to serious and aggravated forms of
public disorder, example rebellion, waging war against the state [entire
state or part of the state], insurrection etc.

In the case of People’s Union for Civil Liberty versus Union of India AIR 1997 SC 568 a
public interest litigation (PIL) was filed under Article 32 of the Indian Constitution by
PUCL, against the frequent cases of telephone tapping. The validity of Section 5(2) of The
Indian Telegraph Act, 1885 was challenged. It was observed that “occurrence of public
emergency” and “in the interest of public safety” is the sine qua non for the application of
the provisions of Section 5(2) of the act. If any of these two conditions are not present, the
government has no right to exercise its power under the said section. Telephone tapping,
therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable
restrictions under Article 19(2).

B. Friendly relations with foreign States: This ground was added by the
Constitution (First Amendment) Act of 1951. The State can impose
reasonable restrictions on the freedom of speech and expression, if it
hampers the friendly relations of India with other State or States.

C. Public order: This ground was added by the Constitution (First

Amendment) Act, 1951 in order to meet the situation arising from the
Supreme Court's decision in Romesh Thapar’s, case (AIR 1950 SC
124). As per Hon’ble Supreme court, public order is different from law
and order and security of state [Kishori Mohan v. State of West
Bengal]. The expression 'public order' connotes the sense of public
peace, safety and tranquillity. Anything that disturbs public peace
disturbs public order [Om Prakash v. Emperor, AIR 1948 Nag,
199].But mere criticism of the government does not necessarily disturb
public order. A law, which punishes the deliberate utterances
hurting the religious feelings of any class has been held to be valid
and reasonable restriction aimed to maintaining the public order.

D. Decency and Morality: Decency and morality section 292 to 294 of

the Indian Penal Code provide instances of restrictions on the freedom
of speech and expression on the grounds of decency and morality, it
prohibits the sale or distribution or exhibition of obscene words. The
standard of morality changes with changing times. Supreme Court in
Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) upheld
the conviction of a book seller who was prosecuted under Section 292,
I.P.C., for selling and keeping the book Lady Chatterley's Lover.

E. Contempt of court: The constitutional right to freedom of speech

would not allow a person to contempt the courts. The expression
Contempt of Court has been defined Section 2 of the Contempt of
Courts Act, 1971. The term contempt of court refers to civil contempt
or criminal contempt under the Act. In E.M.S. Namboodripad v. T.N.
Nambiar (1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court
 confirmed the decision of the High Court, holding Mr. Namboodripad
guilty of contempt of court.

F. Defamation: The clause (2) of Article 19 prevents any person from

making any statement that defames the reputation of another.
Defamation is a crime in India inserted into Section 499 and 500 of the
I.P.C. Right to free speech is not absolute. It does not mean freedom to
hurt 1. People’s Union for Civil Liberties (PUCL) v. Union of India 2.
Kishori Mohan v. State of West Bengal] 3. Ranjit D. Udeshi v. State of
Maharashtra (AIR 1965 SC 881) 4. E.M.S. Namboodripad v. T.N.
Nambiar (1970) 2 SCC 325; AIR 1970 SC 2015) another’s reputation
which is protected under Article 21 of the constitution. Although truth
is considered a defence against defamation, but the defence would help
only if the statement was made ‘for the public good.’ and that is a
question of fact to be assessed by the judiciary.

G. Incitement to an offense: This ground was also added by the

Constitution (First Amendment) Act, 1951. The Constitution also
prohibits a person from making any statement that incites people to
commit offense.

H. Sovereignty and integrity of India: This ground was added subsequently by

the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit
anyone from making the statements that challenge the integrity and
sovereignty of India.

 Right to Life and Personal Liberty

Under Article 21- Protection of Life and personal liberty: No person shall be
deprived of his life or personal liberty except according to procedure established
by law.

Case Law

Swaraj Abhiyan-I V. Union of India, Judicial powers exercise of

notwithstanding the absence of judicially manageable standards, the judiciary
cannot give a totally hands-off response merely because such standards cannot be
laid down for the declaration of a drought. However, the judiciary can and must, in
view of Article 21 of the Constitution, consider issuing appropriate directions
should a State Government or the Union of India fail to respond to a developing
crisis or a crisis in the making.

Scope of Article 21 (Right to Life and personal liberty)

Article 21 of our constitution is the most far reaching in its scope and reach and it is fair
to say that it is the foundation on which every other law is laid. The right to life and
liberty is something that affects each and every person in the country, every single
moment of their life and it is something that we must always value and fight for as it
has been guaranteed to us by our forefathers and maintained by the vigilant eyes of
our Judiciary that keeps our rights intact.

The bottom line here is that, this is a very important article, i.e. Article 21 can be
understood in parts to define the extent of its meaning, but must be read as a whole to
understand its true effect. Article 21 is basically, responsible for enabling the fullest
development of an individual and ensuring his dignity of life by the power vested in it by
law. The effectiveness of this law can only be possible if it is supported by procedural
machinery that is reasonable, just and fair for all.
The Fundamental right to life and liberty as mentioned in Article 21 can and should be
read in consonance with the Directive Principles of State Policy as enumerated under
Part IV of the Constitution of India.
Some of the Directive Principles are listed herein below for easy reference:

 Right to pollution free air and water;

 Protection of under trial;
 Right of every child to full development; and
 Protection of cultural heritage.

In this way, the Constitution and lawmakers of India have made the right efforts to make
sure that the Fundamental Right of the right to life and personal liberty is well within the
reach of every individual. A study of legal judgments and pronouncements in this
regard evidences the flexibility and ease with which this right is treated. This humane
way in which the right to life is considered is a hallmark of our legal system and it is
the quality that breathes air into our constitution, giving it life and enabling it to
change with the pressures and demands of our ever changing society, in spite of the
economic and cultural inequality that burdens the basic quality of life of many in
India.

 Preventive Detention under the Constitution

Under Section 151 of The Criminal Procedure Code, 1973 preventive detention
is action taken on grounds of suspicion that some wrong actions may be done
by the person concerned.

A police officer can arrest an individual without orders from a Magistrate and
without any warrant if he gets any information that such an individual can
commit any offense.

Article 22 of the Indian Constitution provides protection against arrest and

detention in certain cases.

Policy and Safeguard

The Article 22 of the Indian Constitution provides safeguards against the misuse of police
powers to make arrests and detentions.
 The clause (2) of Article 22 reads, “Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a period of twenty four hours
of such arrest excluding the time necessary for the journey from the place of arrest to
the court of the magistrate and no such person shall be detained in custody beyond the
said period without the authority of a magistrate.”

The clause (4) of the article states that no individual can be detained for more than 3
months unless a bench of High court judges or an Advisory board decides to extend
the date. Clause (4) (b) of the article states that such person is detained in accordance with
the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

The clause (4) of Article 22, reads as, “No law providing for preventive detention shall
authorise the detention of a person for a longer period than three months unless (a) an
Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said period
of three months that there is in its opinion sufficient cause for such detention:

The clause (5) of the Article 22 states 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.

Parliament may by law prescribe the circumstances under a person may be detained for a
period longer than three months under any law providing for preventive detention without
obtaining the opinion of an Advisory Board.

Constitutional Validity of Preventive Detention Law:

A three-Judge Bench of the Supreme Court in Ahmed Noor Mohamad Bhatti V. State of
Gujarat, AIR 2005 while upholding the validity of the power of the Police under section
151 of the Criminal Procedure Code 1973 to arrest and detention of a person without a
warrant to prevent the commission of a cognizable offense ruled that a provision could not
be held to be unreasonable as arbitrary and therefore unconstitutional merely because the
Police official might abuse his authority. This preventive detention act is a necessary tool
in the hands of the executive which authorizes them to arrest any person from whom
reasonable suspicious arises that he can commit any cognizable offense or his activities are
prejudicial to law and order to state and the police can arrest that person without warrant.

A.K. Gopalan Vs. The State of Madras

The preventive Detention Act, 1950, with the exception of section 14 thereof did not
contravene any of the Articles of the Constitution and even though section 14 was ultra
vires inasmuch as it contravened the provisions of Article 22 of the Constitution, as this
section was severable from the remaining sections of the Act, the invalidity of Section 14
did not affect the validity of the Act as a whole and the detention of the petitioner was not
illegal.

 Right against Exploitation-Forced Labour and Child Employment

The Right against Exploitation is enshrined in Articles 23 and 24 of the Indian
Constitution. These are important Fundamental Rights that guarantee every citizen
protection from any kind of forced labour.

Right against Exploitation

There are two articles of the Constitution which guarantee the right against exploitation.
They are described below:
Article 23 – Prohibition of traffic in human beings and forced labour
Article 23(1): Traffic in human beings and the beggar and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an offence
punishable in accordance with the law.
Article 23(2): 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 grounds only of religion, race, caste or class or any of them.
Exploitation implies the misuse of others services by force and/or labour without
payment.
There were many marginalized communities in India who were forced to engage in
manual and agricultural labour without any payment.
Labour without payment is known as begar.
Article 23 forbids any form of exploitation.
Also, one cannot be forced to engage in labour against his/her will even if
remuneration is given.
Forced labour is forbidden by the Constitution. It is considered forced labour if the less-
than-minimum wage is paid.
This article also makes ‘bonded labour’ unconstitutional.
Bonded labour is when a person is forced to offer services out of a loan/debt that
cannot be repaid.
The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless
persons into labour and forcing helpless women into prostitution is unconstitutional.
The Article also makes trafficking unconstitutional.
Trafficking involves the buying and selling of men and women for illegal and immoral
activities.
Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide scope
because of the inclusion of the terms ‘forced labour’ and ‘traffic’.
Article 23 protects citizens not only against the State but also from private citizens.
The State is obliged to protect citizens from these evils by taking punitive action against
perpetrators of these acts (which are considered crimes), and also take positive actions
to abolish these evils from society.
Under Article 35 of the Constitution, the Parliament is authorized to enact laws to
punish acts prohibited by Article 23.
Clause 2 implies that compulsory services for public purposes (such as conscription to
the armed forces) are not unconstitutional.
Laws passed by the Parliament in pursuance of Article 23:
Suppression of Immoral Traffic in Women and Girls Act, 1956
Bonded Labour System (Abolition) Act, 1976
Article 24 – Prohibition of employment of children in factories, etc.
Article 24 says that “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.”
This Article forbids the employment of children below the age of 14 in any hazardous
industry or factories or mines, without exception.
However, the employment of children in non-hazardous work is allowed.
Laws that were passed in pursuance of Article 24 in India.
The Factories Act, 1948
This was the first act passed after independence to set a minimum age limit for the
employment of children in factories. The Act set a minimum age of 14 years. In 1954,
this Act was amended to provide that children below the age of 17 could not be
employed at night.
The Mines Act of 1952
This Act prohibits the employment of people under the age of 18 years in mines.
The Child Labour (Prohibition and Regulation) Act, 1986
This was a landmark law enacted to curb the menace of child labour prevalent in India.
It described where and how children could be employed and where and how this was
forbidden. This Act designates a child as a person who has not completed his/her 14th
year of age. The 1986 Act prohibits the employment of children in 13 occupations and
57 processes.
Child Labour (Prohibition & Regulation) Amendment Act, 2016
This Act completely forbids the employment of children below 14 years of age. It also
bans the employment of people between the ages of 14 and 18 in hazardous
occupations and processes. Punishments to violators of this law were made stricter by this
amendment act. This Act allows children to be employed in certain family occupations
and also as artists.
Child Labour (Prohibition and Regulation) Amendment Rules, 2017
The government notified the above Rules in 2017 to provide a broad and specific
framework for prevention, prohibition, rescue, and rehabilitation of child and
adolescent workers. The Rules clarified on issues concerning the employment of family
enterprises and also provides safeguards for artists in that the working hours and
conditions are specified.
Case Law
People’s Union for Democratic Rights v. Union of India, The Supreme Court interpreted
the scope of article 23 in the case. The Court held that the word force within this article has
a very wide meaning. It includes physical force, legal force and other economic factors
which force a person to provide labour at a wage less than the minimum wage. Hence,
if a person is forced to provide labour for less than the minimum wage, just because of
poverty, want, destitution or hunger, it would be accounted for as forced labour.

The Court also clarified the meaning of “all similar forms of forced labour” as mentioned
in article 23 of the Constitution of India. It said that not only begar, but all forms of forced
labour are prohibited. This means that it would not matter if a person is given
remuneration or not as long as he is forced to supply labour against his will.

Sanjit Roy v. State of Rajasthan, The Court held that the Rajasthan Famine Relief Works
Employees (Exemption from Labour Laws) Act, 1964 is constitutionally invalid as to the
exclusion of the minimum wages act. This means that minimum wage must be paid to all
the people employed by the state for any famine relief work, regardless of whether the
person is affected by drought or scarcity or not. This is essential so that the state does not
take advantage of the helpless condition of the people affected by famine, drought etc and
upholds that they must be paid fairly for the work into which they put in effort and sweat,
and which provides benefits to the state.
Bandhua Mukti Morcha v. Union of India, the organisation sent a letter to Justice
Bhagwati and the Court treated it as a Public Interest Litigation. The Court laid down
guidelines for determination of bonded labourers and also provided that it is the duty
of the state government to identify, release and rehabilitate the bonded labourers. It
was held that any person who is employed as a bonded labour is deprived of his
liberty. Such a person becomes a slave and his freedom in the matter of employment is
completely taken away and forced labour is thrust upon him. It was also held that
whenever it is shown that a worker is engaged in forced labour, the Court would
presume he is doing so in consideration of some economic consideration and is,
therefore, a bonded labour. This presumption can only be rebutted against by the
employer and the state government if satisfactory evidence is provided for the same.
In the case of M.C. Mehta v. State of Tamil Nadu, Shri MC Mehta undertook to
invoke Article 32, enabling the Court to look into the violation of fundamental rights of
children guaranteed to them under Article 24. Sivakasi was considered as a big offender
who was employing many child labourers. It was engaged in the manufacturing process
of matches and fireworks. This, the Court observed, qualified as a hazardous industry.
Thus employing children under the age of 14 years in this industry is prohibited.
The Court reaffirmed that children below the age of fourteen must not be employed in
any hazardous industry and it must be seen that all children are given education till
the age of 14 years. The Court also considered Article 39(e) which says that the tender
age of children must not be abused and they must be given opportunities to develop in
a healthy manner. In light of this, the Court held that the employer Sivakasi must pay a
compensation of Rs. 20000 for employing children in contravention to Child Labour
(Prohibition and Regulation) Act, 1986.
Unit: III
 Right to Constitutional Remedies
Article 32 is known as the “spirit of the constitution and exceptionally heart of it” by
Dr. Ambedkar. Preeminent Court has included it in fundamental structure regulation.
Further, it is clarified that privilege to move to Supreme Court can’t be suspended
with the exception of generally given by the Constitution. This suggests this privilege
suspended amid a national crisis under article 359.

Article 32 makes the Supreme Court the safeguard and underwriter of the major
rights. Further, the capacity to issue writs goes under the original jurisdiction of the
Apex Court. This implies an individual may approach SC straightforwardly for a
cure as opposed to by appeal.

Article 32 can be used only to get a remedy for fundamental rights enshrined in Article
12-35. It isn’t there for some other legal right for which diverse laws are accessible.

What is Writ?
In common law, a writ is a formal written order issued by a body with administrative or
judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative
writs, subpoenas, and Certiorari are common types of writ, but many forms exist and have
existed.
Constitutional Philosophy on Writ Jurisdiction
An individual whose privilege (Fundamental Right) is encroached by an arbitrary
administrative action of the government may approach to the Court for a remedy. Article
32(2) of the Constitution of India gives: “The Supreme Court will have the capacity to
issue bearings or requests or writs, incorporating writs in the idea of habeas corpus,
mandamus, prohibition, quo warranto, and certiorari, whichever might be suitable, for the
requirement of any of rights given by this Part.” Article 32 is a basic Right directly
under Part – III of the Constitution. Under this Article, the Supreme Court is enabled to
loosen up the customary standard of Locus Standi and permit general society to
intrigue case in the name of public interest litigation (PIL).
Basic difference between Article 32 and Article 226

Basis of
Article 32 Article 226
difference
 Article 32 is a fundamental Article 226 is a constitutional
Right
right. right.

Article 32 can be suspended if

Article 226 cannot be suspended
Suspension an emergency has been
even at the time of emergency.
declared by the President.

Article 226 has a broader scope

Article 32 has a narrow scope as
as it is applicable not only in the
it is applicable only in case of
Scope case of violation of a
violation of a fundamental
fundamental right but also of a
right.
legal right.

Article 226 empowers the High

Article 32 empowers the
Court to issue a writ in its own
Supreme Court to issue writ all
local jurisdiction only. Therefore,
Jurisdiction over India. Therefore, the
High Courts have narrower
Supreme Court has broader
territorial jurisdiction as compared
territorial jurisdiction.
to the Supreme Court.

Article 226 confers Discretionary

Since, Article 32 is a
power to the High Court which
fundamental right, the same
Discretion means it is at the discretion of
cannot be refused by the
the High Court to issue a writ or
Supreme Court.
not.

Types of Writ as Jurisdiction

1. Habeas Corpus: In the nature of an order calling upon the person who has
detained another to produce the latter before the Court, in order to let the
Court, know on what ground he has been confined and to set him free if
there is no legal justification for the confinement.
Nature of Writ is while deciding whether Habeas Corpus writs are civil or
criminal in nature, it was held in Narayan v. Ishwarlal that the court would
rely on the way of the procedures in which the locale has been executed.
Implication in Emergency: In the Landmark case of ADM Jabalpur v.
Shivakant Shukla which is also known as the Habeas Corpus case, it was
held that the writ of Habeas Corpus can be suspended even during the
emergency (Article 359).
Damages: The Court may also award the exemplary damages. In Bhim
Singh v. State of Jammu & Kashmir, the Hon’ble Apex Court awarded
the exemplary damages of Rs.50, 000/- (At that time this was a very
significant amount.
 Thus, writ of habeas corpus is a bulwark of personal liberty. It has been
described as “a great constitutional privilege” or “first security of civil
liberty”. The most quintessential element is a speedy and effective
remedy.
Notable Cases for Writ of Habeas Corpus:
In Kanu Sanyal Vs District Magistrate, while enunciating the real scope of
writ of habeas corpus, the Supreme Court opined that while dealing with a
petition for writ of habeas corpus, the court may examine the legality of
the detention without requiring the person detained to be produced
before it.
In Nilabati Behera Vs State of Orissa, the Orissa police took away the son of
the petitioner for the purposes of interrogation & he could not be traced.
During the pendency of the petition, his dead body was found on railway
track the petitioner was awarded compensation of Rs. 1, 50,000.
2. Mandamus Writ: It is to compel performance of a particular act by
lower court or a governmental officer or body, to correct a prior action
or failure to act. It is used for enforcement of various rights of the public or
to compel the public statutory authorities to discharge their duties and to act
within the bounds. It may be used to do justice when there is wrongful
exercise of power or a refusal to perform duties.

The locus standi plays a crucial role while the mandamus writ in the court.
The petitioner needs to specify the grounds for he has to right to enforce
the public duty in his own favour.
Conditions for Issue of Writ of Mandamus
There ought to be a legal right of the applicant for the performance of
the legal duty.
The nature of the duty must be public. In The Praga Tools Corporation v.
C.V. Immanuel, and Sohanlal v. Union of India, the Supreme Court stated
that mandamus might under certain circumstances lie against a private
individual if it is established that he has colluded with a public
authority.
On the date of the petition, the right which is sought to be enforced must
be subsisting.
The writ of Mandamus is not issued for anticipatory injury. But
anybody who is likely to be affected by the order of a public officer is
entitled to bring an application for mandamus if the officer acts in
contravention of his statutory duty.
Exceptions & Limitations (Mandamus)
In India, mandamus will lie not only against officers who are bound to
do a public duty but also against the Government itself as Article 226
 and 361 provided that appropriate proceedings may be brought against
the Government concerned.
Further, Mandamus will not be granted against the following persons:
The President or the Governor of a State, for the exercise and
performance of the powers and duties of his Office or for any act done or
purporting to be done by him in the exercise and performance of those
powers and duties. In India, it will not lie upon the President and the
Governor of a State in their personal capacities.
Mandamus does not lie against a private individual or body whether
incorporated or not except where the State is in collusion with such
private party, in the matter of contravention of any provision of the
Constitution or a Statute or a Statutory Instrument.
It will not lie against the State legislature to prevent from considering
enacting a law alleged to be violates of constitutional provisions.
It will not lie against an inferior or ministerial officer who is bound to
obey the orders of his superiors.
Landmark Cases for Writ of Mandamus
The courts are unwilling to issue writ of mandamus against high
dignitaries like the President and the Governors. In the case of S.P. Gupta
v. Union of India, judges were of the view that writ cannot be issued
against the President of India for fixing the number of judges in High
Courts and filling vacancies.
In C.G. Govindan v. State of Gujarat, it was refused by the court to
issue the writ of mandamus against the governor to approve the
fixation of salaries of the court staff by the Chief Justice of High
Court under Article 229. Hence, it is submitted that the Governor or
the President means the state or the Union and therefore issuance of
mandamus cannot take place.

3. Prohibition Writ: A writ of prohibition, also known as a ‘stay order’, is

issued to a lower court or a body to stop acting beyond its powers.
Prohibition is a writ of preventive nature. The principle of this is
‘Prevention is better than cure’.

Grounds on which court entertain Prohibition Writ:

1. Absence or Excess of jurisdiction

2. Violation of the principles of natural justice

3. Unconstitutionality of a Statute
 4. Infraction of Fundamental Rights.

Landmark Case Laws for Writ of Prohibition

In the case of East India Commercial Co. Ltd v. Collector of Customs a
writ of prohibition was passed directing an inferior Tribunal prohibiting it
from continuing with the proceeding on the ground that the proceeding is
without or in excess of jurisdiction or in contradiction with the laws of
the land, statutes or otherwise.
Also, it was held in the case of Bengal Immunity Co. Ltd, the Supreme
Court pointed out that where an inferior tribunal is shown to have seized
jurisdiction which does not belong to it than that consideration is irrelevant
and the writ of Prohibition has to be issued as a right.

4. Certiorari Writ: The writ of certiorari issued to quash a decision after the
decision is taken by a lower tribunal while prohibition is issuable before the
proceedings are completed. The writ of certiorari is not only negative in the
sense that it is used to quash an action but it contains affirmative action as
well. It is preventive as well as curative in nature. The power of judicial
review is not restricted where glaring injustice demands affirmative action.

Ways in which entertain the Certiorari Writ:

Certiorari is not issued against purely administrative or ministerial orders
and that it can only be issued against judicial or quasi-judicial orders.

1. Either without any jurisdiction or in excess

2. In violation of the principles of Natural Justice.

3. In opposition to the procedure established by law.

4. If there is an error in judgement on the face of it

Conditions for the Certiorari Writ

1. Anybody of persons.

2. Having legal authority

3. To determine questions affecting the rights of subjects

4. Having the duty to act judicially.

5. Act in excess of legal authority

 The grounds on which the writ of certiorari may be issued are:

1. Error of Jurisdiction Lack of jurisdiction.

2. Excess of jurisdiction. a) Abuse of jurisdiction.

b) Error of law apparent on the face of the record.

c) Violation of principles of natural justice.

Landmark Cases on Writ of Certiorari

In Naresh S. Mirajkar v. State of Maharashtra, it was said that High Court’s
judicial orders are open to being corrected by certiorari and that writ is not
available against the High Court.
In the case of T.C. Basappa v. T. Nagappa & Anr., it was held by the
constitution bench that certiorari maybe and is generally granted when a
court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction.
In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has
explained the meaning, ambit and scope of the writ of Certiorari. It was held
that Certiorari is always available against inferior courts and not against
equal or higher court.
In A.K. Kripak v. Union of India, it was held that the Supreme Court should
issue the writ of certiorari to quash the selection list of the Indian Forest
Service on the ground that one of the selected candidates was the ex-officio
member of the selection committee.
5. Quo Warranto: The writ of Quo Warranto (by what warrant) is issued to
inquire about the legality of a claim by a person or authority to act in a
public office, which he or she is not entitled to. The writ of Quo Warranto is
a mode of judicial control in the sense that the proceedings review the
actions of the administrative authority which appointed the person.
The writ is issued to the person ousting him from holding a public post to
which he has no right. It is used to try the civil right to a public post.
Accordingly, the use of the writ is made in cases of usurpation of a public
office and removal of such usurper. Conversely, it protects citizen from
being deprived of public office to which he may have a right. A petition for
the writ of Quo Warranto can be filed by any person though he is not an
aggrieved person.
The conditions necessary for the issue of a writ of Quo Warranto are:
 The office must be public and it must be created by a statute or by the
constitution itself. In the case of Jamalpur Arya Samaj v. Dr D. Ram, the
writ was denied on the ground that writ of quo warranto cannot lie against
an office of a private nature. And also, it is necessary that office must be of
substantive character.
The office must be a substantive one and not merely the function or
employment of a servant at the will and during the pleasure of another.
There has been a contravention of the Constitution or a statute or statutory
instrument, in appointing such person to that office.
The claim should be asserted on the office by the public servant i.e.
respondent.
The court issues the Writ of Quo Warranto in the following cases:
When the public office is in question and it is of a substantive nature. A
petition against a private corporation cannot be filed.
The office is created by the State or the Constitution.
Judicial Review as Constitutional Remedies
Judicial review is a process under which executive or legislative actions are subject to
review by the judiciary. A court with authority for judicial review may invalidate
amendments, laws, acts and governmental actions that are incompatible with a higher
authority: in India's case an executive decision may be invalidated for being unlawful
or a statute may be invalidated for violating the terms of the Constitution of India.
Judicial review is one of the checks and balances in the separation of powers: the power
of the judiciary to supervise the legislative and executive branches when the latter exceed
their authority. The doctrine varies between jurisdictions, so the procedure and scope of
judicial review may differ between countries. In India, judicial review is done by the
Constitutional Courts, namely the Supreme Court of India as well the 25 High Courts
of India. The courts invalidate laws, acts and governmental (executive) actions which
violate Constitutional provisions and even Constitutional amendments if they violate
the basic structure of the Indian Constitution.
The power to interpret the Constitution of India to its full extent lies within the Judiciary. It
is the protector of the Constitution of India. Power of Judicial Review is vested in
many articles such as 13, 32,131-136, 143, 226, 145, 246, 251, 254 and 372.
Article 372(1) talks about Judicial review of the pre-constitutional laws that were in
force before the commencement of the Constitution of India.
Article 13(2) further talks about any law made by the parliament after the
commencement of the constitution shall be declared null and void by the Court.
The Supreme Court and High Court are said to be the guarantors of Fundamental given by
the constitution. If any person’s Fundamental right is violated he/she can approach the
court under Article 32 or Article 226 of the constitution.
Article 251 and 254 states that if there is any inconsistency between the union and state
law, the law of union shall prevail and the state law shall be deemed void.
Case Law for Judicial Review
Shankari Prasad V. Union of India AIR 1951 SC 458
In this case, the Zamindars challenged the constitutional validity of the first
amendment Act 1951 on the ground that it violates fundamental rights and Article
13(2) of the Constitution of India and contended that Article 31 is unconstitutional.
The court held that any amendment made under Article 368 is not a law under Article
13 of the constitution. So, the First Amendment Act is constitutionally valid.
Sajjan Singh V. State of Rajasthan AIR 1965 SC 845
In this case, the constitutional validity of the 17th Amendment Act of 1964 was
challenged. Hon’ble court by the ratio of 3:2 rejected the contention and applied the
doctrine of pith and substance and held that Article 368 gives the power to amend
13(2). The judgement made in Shankari Prasad was upheld in this case.
I.C. Golaknath & Others V. State of Punjab AIR 1967 SC 1643
In this case, the validity of the 17th Amendment Act of 1964 was challenged again and
was referred to a larger bench of 11 Judges. Court by the ratio 6:5 overruled the earlier
judgement made in Shankari Prasad and Sajjan Singh and held that the word Law in
Article 13 includes constitutional amendment made under Article 368.
Kesavananda Bharti V. State of Kerala AIR 1973 SC 1461
In this case, the 24th and 25th Amendment Act of 1971 was challenged. A Judge Bench
of 13 Judges was constituted. With the ratio of 7:6 held that:
Power to amend the constitution is to be found in Article 368. It is hard to believe that it
lies in residuary power.
There is a difference between ordinary law and constitutional amendment.
Parliament can’t destroy or amend the basic structure of the constitution.
CJI Sikri gave the list of the Basic structure though not exhaustive;
The supremacy of the constitution.
Republic and democratic form of government.
Secular character of the Indian Constitution.
Separation of Power.
Federal.
Court also held that “compensation” can’t be replaced with “amount”.
Article 31(c) (i) was held valid but Article 31(c) (i) was declared invalid.
Indira Nehru Gandhi V. Raj Narain AIR 1975 SC 865
In this case, the 39th Amendment Clause 4 was challenged as it puts a bar to challenge the
election of Speaker and Prime Minister. It was struck down in this case and the court
declared it unconstitutional.
Minerva Mills V. Union of India AIR 1980 SC 1789
In this case, further Judicial Review was added to the list of Basic Structure of the
constitution along with the balance between Fundamental Rights and Directive
Principles.
Features of Judicial Review
Power of judicial review can be exercised by both the Supreme Court and High
Courts: Under Article 226 a person can approach the High Court for violation of any
fundamental right or for any legal right. Also, under Article 32 a person can move to the
Supreme Court for any violation of the fundamental right or for a question of law. But the
final power to interpret the constitution lies with the apex court i.e. Supreme Court. The
Supreme Court is the highest court of the land and its decisions are binding all over
the country.
Judicial Review of both state and central laws: Laws made by centre and state both
are the subject to the judicial review. All the laws, order, bye-laws, ordinance and
constitutional amendments and all other notifications are subject to judicial review
which are included in Article 13(3) of the constitution of India.
Judicial review is not automatically applied: The concept of judicial review needs to be
attracted and applied. The Supreme Court cannot itself apply for judicial review. It can
be used only when a question of law or rule is challenged before the Hon’ble court.
Principle of Procedure established by law: Judicial Review is governed by the principle
of “Procedure established by law” as given in Article 21 of the Indian Constitution. The
law has to pass the test of constitutionality if it qualifies it can be made a law. On the
contrary, the court can declare it null and void.
Judicial review of Ordinances: Article 123 and 213 of the Indian constitution gives the
president and the governor of the state to pass an ordinance. An act of ordinance by
the president or governor is within the same restrictions as which are placed on
parliament which makes any law. This power is used by the president or governor in
exceptional conditions only. The power should not be used mala fide.
In the case of AK Roy v. Union of India (1982) 1 SCC 271 it was held that the
president’s power to pass an ordinance is not a subject of Judicial Review.
In the case of T.Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198 it was
held that just like legislative power cannot be questioned, the ordinance made on the
ground of motive or non-application of mind, or necessity cannot be questioned.
Judicial review of Money Bill: Article 110(3) of the constitution of India states that
whenever a question arises for whether a bill is a money bill or not the decision of the
speaker of Lok Sabha shall be final.
In the present scenario, a “money bill” is beyond the power of Judicial Review.
Article 212(1) of the constitution of India provides that the validity of any proceedings in
the Legislature of a State shall not be called in question on the ground of any alleged
irregularity of procedure.
Article 255 of the constitution of India provides that the recommendation and previous
sanction are matters of procedure only. It means the bills relating to certain matters
cannot be introduced in Parliament without the recommendation or previous sanctions of
the President. Likewise, no Bill on specified matters can be introduced in the State
Legislature without the recommendation of the Governor of the State.
In the case of Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589, it
was held that the appellant was liable to sales tax under coinage act which was
changed by coinage amendment act, 1955. So the contention was that as it enhanced the
tax the bill should be passed as a money bill and as it was not passed as a money bill
the tax should be held as invalid.
The Supreme Court held that the coinage amendment act 1955 substituted new coinage in
place of old coinage and thus it was no tax.
By the way of obiter dicta, it was observed as if it would be a tax serving bill then also it
was out of the proceedings of judicial review.
Grounds for Judicial Review
Constitutional Amendment: Judicial Review in this phase is done for all the
constitutional amendments done by the authority. All those amendments which are in
violation of Fundamental Rights are declared void and it is held to be We can trace the
marks of judicial review of the constitutional amendment in these cases: Shankari Prasad
V. Union of India; Sajjan Singh V. State of Rajasthan; I.C. Golaknath V. State of Punjab;
Kesavananda Bharti V. State of Kerala; I.R Coelho V. State of Tamil Nadu.
Administrative Actions
In general terms, the constitutional validity of the administrative action can be verified
by the tests developed by Lord Diplock in the case of Council of Civil Services Union
v. Minister of Civil Services. The doctrine of Judicial Review is the basic feature of our
Constitution in India. These tests were as follow:
1. Illegality: Their acts and their decisions can be made illegal if they fail to follow
the law properly. Therefore, an action can be made illegal if the public body has
no power to make decisions on its own or if they have acted beyond the
powers. Then, there use of power may be called as unconstitutional and void. For
example, if legislation who is related to the public body does not include the
necessary power nor do they have precise limits, their power can be used. Public
bodies which act in an illegal way are described as “ultra vires”. Legislation also
allows the implementation of a wide and unrestrained discretion by public body. It
provides that a duty can be discharged in certain circumstances but it does not
tell a particular process to determine whether the circumstances arise in a
particular case or not.
 2. Irrationality: The courts can also interfere to quash a decision if they think that it
is unreasonable as it makes it “irrational” or “perverse” on the part of the
decision maker. A benchmark decision was made on this principle of judicial
review in 1948 in the Wednesbury case. Judges do not get many opportunities in
the ground of review, to review the eminence of administrative decisions as the
ground has high magnitude for judicial interference which is not frequently
satisfied. In the Wednesbury case, Lord Greene stated that for review to be
successful, the administration decision should be something that a person who
is not sensible can dream that it is within the powers of the authority.

3. Procedural Impropriety: In this, the decision-makers should act fairly in

making their decisions. It is the principle which applies only to the matters of
procedure which is opposed to the substance of decision reached. This case
should be decided and heard by the people to whom it is delegated and not any
other person. The rules as follows:

a. A person should be not be the judge in his own case;

b. The person should hear the other person also.
c. It is the duty of authority to act fairly before taking the
matter. Public body must not act unfairly as it amounts to
abuse of power.
d. The Legislation must follow the decisions if they are
expressed procedures laid down by the legislation.
e. It should not breach the rules of natural justice. The public
bodies should allow people to make decisions and hold their
views which can cause them to reach a decision based on
prejudice.

4. Legislature Power: The constitutionality of a legislative act is determined by the

courts if a person institutes a case. The court can declare a legislative act void
on the basis of constitutionality. The legislative, executive or the administrative
determine whether the review by the courts are prohibited by the constitution
or not. The courts have the power to test the validity of legislation as well as the
actions of the government. The superior courts cannot determine the merit of
the legislation by questioning whether the materials were sufficient or not
before the legislature.

 Freedom of Religion
India has been the birth place of quite number of religions and also it is acknowledged
as the country which is the land of spiritual beliefs, culture and philosophical thinking.
Perception relating to ‘Religion’ varies person to person; it is entirely a matter of choice
and belief. If we pay heed to the Indian scenario, it can be concluded that when it comes to
their religion, people in this country have a strong faith and dependence. The reason
behind having strong faith may be that they perceive that religion adds meaning and
reason to their lives. People who are having strong faith leave no stone unturned in
showing their fidelity towards their respective religion.
Freedom of Religion under Indian Constitution
Various fundamental rights are provided as well as guaranteed by our Indian Constitution
under Part III. Amongst them, freedom of religion is also the one provided which is given
under Article 25-28 of the Indian Constitution. India, being a secular nation gives
every citizen the right to follow the religion he believes in.

What is a Secular State?

A secular state is said to be the one where there is no official religion followed. To
understand it more clearly, secularism is defined in the case of S.R. Bommai v. Union of
India, where it was held that “Secularism is the basic feature of the Indian
Constitution.” Religion is a matter of individual faith and cannot be mixed with
secular activities.

Concept of freedom of religion

Every citizen is entitled with this right and liberty to preach, practice and propagate
the religion of his choice. An opportunity is also provided by this right to spread it
among everyone without any fear of government intervention. But also, it is expected
by the state to practice it amicably within the jurisdiction of the country. India is a
land of diversity being in terms of race, religion, creed, caste and community. When it
comes to exercising one’s religious beliefs, India is neutral, unbiased and impartial. It
is ensured by our Indian Constitution that no citizen is deprived of his right to practice
and profess his or her religion.
Concept of Secularism under Indian Constitution
The concept of ‘Secularism’ is omnipresent under Indian Constitution. By 42nd
amendment, 1976 of the Indian Constitution, the term ‘Secular’ was inserted in our
preamble. Regarding secularism, there were direct provisions but their languages were res
Ipas loquitor. When comes to Secularism, our Constitution has high regard and utmost
importance is given to this concept. Secularism is often seen as high regard and enjoys
dignified recognition in the eyes of law. According to the Constitution, the allocation of
this right is to provide an occasion to every person to declare in open and that too
without any hesitation the religion he believes or he wants to profess. There are
plethora of judgments which specifically deals with secularism like in the case of
S.R.Bommai and the case of Kesavananda Bharti v. Union of India, where it was held that
secularism is the basic feature of the Indian Constitution and no provision of
legislation can take away or abridge this right.

Constitutional Provisions
Articles 25-28 of the Indian Constitution guarantee the right to freedom of religion to all
citizens who all are residing within the territory of India.
1. Freedom of conscience and free profession of religion. (Article 25)
2. Freedom to manage religious affairs (Article 26)
3. Freedom from payment of taxes for promotion of any particular religion (Article 27)
4. Freedom to attend religious instructions (Article 28)

·In the case of Mohd. Hanif Qureshi v State of Bihar, wherein it was claimed by the
petitioner that the sacrifice of the cows during Bakr- id was an essential part of his
religion but this argument was rejected by the court as the sacrifice of cow on the
Bakri-Id day was not an essential part of the Mohammedan religion and hence could
be prohibited by State under clause (2) (a) of Article 25.

In the case of L. T .Swumiar v Commr. H.R.F. Madras, wherein it was held that even if
a tax is imposed on persons belonging to a particular religion, in order to meet the
expenses of that particular religion, such tax is void.

·In the case of Robasa Khanum vs. Khodabad Irani, it was held that the conduct of a
spouse who converts to Islam has to be judged on the basis of the rules of justice
equity and good conscience.

·In the case of Sarla Mudgal V. Union of India, it was held that conversion to any other
religion by either one or both the spouses is not at all a ground to have the marriage
dissolved.
Article 25 of the Indian Constitution states that 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,
practise 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) reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jain or Buddhist religion, and
the reference to Hindu religious institutions shall be construed accordingly.
Article 26 of the Indian Constitution states that Freedom to manage religious affairs--
Subject to public order, morality and health, every religious denomination or any
section thereof shall have the rights:
(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.
Article 27 of the Indian Constitution states that 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.
Article 28 of the Indian Constitution states that 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 recognized by the State or receiving aid
out of State funds shall be required to take part in any religious instruction that may be
imparted in such 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
a minor, his guardian has given his consent thereto Cultural and Educational Rights.
 Educational and Cultural Rights
Article 30 of the Constitution talks about two types of minority communities –
Linguistic and Religious. But while it defines the categories of minority communities,
there is no official definition of the word by the government.
One can derive certain pointers from the various articles in our Constitution and reports
from the government. Article 29 Protection of interest 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.
(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.
From the language of the text, we may understand that communities with distinct language,
script or culture fall under minority communities.
But in later cases such as Bal Patil v. Union of India and the Islamic Academy of
Education v. State of Karnataka, we see that courts rely on other factors such as
economic welfare to decide whether a community is a minority or not.
In terms of religious minority communities, Section 2(c) of the Minorities Act recognizes
5 religions as minority communities namely Muslims, Sikhs, Christians, Buddhists, and
Zoroastrians (NCMA).
S.P. Mittal v. Union of India, AIR 1983 SC 1, it was held by the bench that the foresaid
Act does not violate Article 29 and 30. The court held that it, in no way curtailed their
right or prevented any citizen from conserving its own language, script or culture and thus
was not violate of Article 29.
Also in this case, in order to seek protection under Article 30, one must prove that they
are a linguistic or religious minority and the institution in question was established by
them. Considering that Auroville was not religious and was founded on the ideology of
Sri Aurobindo, they could not seek protection under these articles.
Rights of minorities
With regard to the reservation and special provisions for minority communities, many
have brought up the argument that such provisions are ‘cushioning’. But in the case
of The Ahmedabad St. Xavier’s College vs State of Gujarat & Another, Khanna J. stated
that such provisions are necessary so that “none might have the feeling that any section
of the population consisted of first-class citizens and the other of second class
citizens”. He also stated that The Constitution of Selection Committee for appointment of
academic staff of a Minority college must remain in the hands of the administration of
the minority educational institution. The University to which college is affiliated can
only prescribe qualification for the academic staff.
In the TMA Pai case, the judge considered the opinion of the Permanent Court of
International Justice in the case of Minority Schools in Albania, advisory opinion was that
there is a need for provisions that help minority groups preserve the uniqueness of
their distinct culture and script and minority religions to uphold the uniqueness of
their culture. Khanna J. stated that “the object of protection is to enable minority
communities to preserve the characteristics which distinguish themselves from the
minority”.
The distinction between Article 29(2) and Article 15(1)
Article 29 (2) and Article 15 (1) are very similar due to the fact they both prevent
discrimination on the basis of caste, race sex, etc. And are sometimes seen as mutually
exclusive. However, there is a big difference. While Article 15 provides a broader ambit
against discrimination on the basis of caste, race sex, etc., Article 29 provides specific
restitution for those who have faced discrimination from state-run educational
institutions at the time of entry or admission.
Right of Minorities to establish and manage Educational Institutions
Under Article 30, the Constitution provides for minority communities to establish and
manage educational institutions and protect themselves from discrimination of
granting aid by the government. Article 29 (1) gives any citizen the right to conserve a
distinct language, script or culture of its own. While Article 29(2) also protects them, it
is more for every citizen and is not specially tailored for minority groups.
One of the biggest debates in judicial history has been whether minority communities have
the right to have autonomy while managing these institutions. Such questions gave birth to
the famous T.M.A. Pai Foundation v. State of Karnataka case which had a massive 11
Judge Bench, it was held that an aided minority educational institution would be
entitled to have the right of admission of students belonging to the minority group. In
present times, the common consensus is that governments are allowed to regulate such
institutes so long as such regulation is in pursuit of ensuring academic excellence and
it does not harm the character of the minority institute.
Relationship between Articles 29(1) and 30(1)
Article 29(1) states to protect the rights of members of communities who have distinct
language, culture, and script.
Article 30(1) states to protect minority rights with regard to establishing and
managing educational institutions.
Thus both articles facilitate minority rights to establish and manage their own educational
institutions. The only difference is that Article 29(1) makes an attempt to define who
minority communities are. Due to the articles being almost identical, many might
believe that when seeking protection, you can only seek protection under one. But in
St. Xavier’s College v. the State of Gujarat, it was stated that Article 29(1) and 30(1) were
not mutually exclusive.
Re Kerala Education Bill, AIR 1958 SC 956, it was held that minority groups did not have
the right to maladministration. Das, C.J. stated, “Reasonable regulations may certainly
be imposed by the state as a condition for aid or even for recognition”. Minority for the
purpose of Articles 29 and 30 of the constitution of India would be determined by
reference to the entire population of the state.
It also stated that while opening up educational institutes was essential for minority
communities to exercise their right under Article 30, all educational institutes are
subjected to Article 29(2) which states that all citizens in state or state-aided
institutions must not be discriminated during the time of admission on the basis of
race, sex, creed, etc.

Right of recognition or affiliation, not a Fundamental Right

When the right of minority communities to establish and manage educational institutions is
a Fundamental Right, it makes you wonder if affiliation or recognition is a Fundamental
Right as well. At the end of the day, in order for an institution to achieve sufficient
excellence, it is imperative that they have some sort of recognition or affiliation from
the state.
This exact query was brought up in Sidhraj Bhai v. State of Gujarat. While the court
recognized the importance of affiliation, they denied that it was a Fundamental Right.
In later on cases like T.M.A. Pai Foundation v. State of Karnataka and P.A. Inamdar v.
State of Maharashtra, it was held that the government is allowed to set up rules and
regulations that institutes must follow in order to get affiliation. These regulations
must be in pursuit of educational excellence.
Admissions of students and qualification of teachers in unaided minority institutions
Through the cases of T.M.A. Pai Foundation v. the State of Karnataka and P.A. Inamdar v.
the State of Maharashtra, the general consensus of courts is that while such institutes have
autonomy over management, such institutes must make sure that during admission
they adhere to Article 29(2) - majority community students and employers should be
admitted as well.
Admissions in aided minority institutions
The government has the right to regulate the management of such institutions including fee
structure, admission of students and employment of teachers. They shall have fixed quotas
depending on the local need.
Right of non-minorities to run educational institutions
The two rights are Art 19(1) (g) which is right to the profession (subject to restrictions
in Art 19(6) and Article 26 which is the right of all religious denominations to maintain
and establish educational institutions.
Unit-IV
 Directive Principle of State of Policy
The Sapru Committee in 1945 suggested two categories of individual rights. One being
justiciable and the other being non-justiciable rights. The justiciable rights, as we know,
are the Fundamental rights, whereas the non-justiciable ones are the Directive Principles of
State Policy.
DPSP are ideals which are meant to be kept in mind by the state when it formulates
policies and enacts laws. There are various definitions to Directive Principles of State
which are given below:
They are an ‘instrument of instructions’ which are enumerated in the Government of India
Act, 1935. They seek to establish economic and social democracy in the country. DPSPs
are ideals which are not legally enforceable by the courts for their violation.

Nature of the Directive Principles of State Policy

Directive Principles of State Policy enjoined in Articles 36 - 51 of Constitution of India
are in the nature of 'Social Policy'. The principal object in enacting the Directive
Principles of State Policy appears to have been to set standards of achievement before
the Legislature and the Executive., the local and other authorities, by which their
success or failure could be judged. They are in the form of policy directions to the State
to move for the overall Welfare State based on the utilitarianism and social engineering
principles of the maximum happiness or interests of the maximum number of people
with least fiction. They cast a duty on the State to apply these principles in making
laws.

It is the duty of the State to formulate its social policies in such a way that social and
economic justice is translated realistically and factually and the people of India
nourish a feeling of having access to justice. They cast obligations on the State to
promote social and economic rights of the people of India. Though they are not
enforceable or non-justiciable in the Court of Law, but, nevertheless, they are
fundamental in the governance of the country.

The authors of the Constitution of India aspired and cherished that the State shall strive to
achieve these objectives of 'Welfare State' through the guidelines prescribed in the
Directive Principles of State Policy.
Justiciability of the Directive Principles
Unlike Fundamental Rights, the Directive Principles of State Policy (DPSP) are non-
justiciable which means they are not enforceable by the courts for their violation.
The reason for the same lies in Article 37 which states that the provisions contained in
this Part shall not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the duty of
the State to apply these principles in making laws.
Therefore by the virtue of this Article no provision of this part can be made enforceable in
the court of law thus these principles cannot be used against the central government or the
state government. This non-justiciability of DPSPs make the state government or the
central government immune from any action against them for not following these
directives.

Another question arises that whether the Supreme Court or High Court can issue the writ
of mandamus if the state does not follow the directive principles. The literal meaning of
mandamus is “to command.” It is a writ which is issued to any person or authority who has
been prescribed a duty by the law. This writ compels the authority to do its duty.

The Writ of mandamus is generally issued in two situations. One is when a person files
writ petition or when the Court issues it suo moto i.e. own motion. As per
Constitutional Principles, a Court is not authorized to issue the writ of mandamus to
the state when the Directive Principles are not followed because the Directive
Principle is a yardstick in the hand of people to check the performance of government
and not available for the courts. But the Court can take suo moto action when the
matter is of utmost public importance and affect the large interest of the public.

Fundamental Rights are the legal obligation of the state to respect, whereas the DPSPs is
the moral obligation of the state to follow. Article 38 lay down the broad ideals which
a state should strive to achieve. Many of these Directive Principles have become
enforceable by becoming a law. Some of the DPSPs have widened the scope of
Fundamental Rights.
Inter-Relationship between Fundamental Rights and Directive Principles
A major concern regarding the validity of the DPSPs is their compatibility with the
Fundamental Rights contained in Part III of the Constitution, enforceable even in the High
Courts and the Supreme Court through the manner of writs.

There are following difference between the above Fundamental Rights and Directive
Principles:
1. The Fundamental Rights are a limitation on the powers of the government operating
on an individual, whereas, the DPSPs are instructions to the government for achieving
certain ends through their actions as per Article 38.
2. Anything contained in the DPSPs cannot be violated either by the individuals or the
State, as long as there is no law made to that effect but there is no positive or strict
remedies for the violation of the DPSPs, while there are strict remedies against
violation of an individual’s Fundamental Right.
3. A law against the DPSPs cannot be declared as void by any court of law, but in the
case of Fundamental Rights the court have power under the constitution to interfere to
effect, if they found any violation of the given rights in the PART-III.
Fundamental Rights Vs DPSP

Unlike the Fundamental Rights (FRs), the scope of DPSP is limitless and it protects the
rights of a citizen and work at a macro level. Hence, the DPSP not talk about the
individual but as society as whole.
DPSP consists of all the ideals which the State should follow and keep in mind while
formulating policies and enacting laws for the country.
Directive Principles are affirmative directions on the other hand, Fundamental Rights are
negative or prohibitive in nature because they put limitations on the State.
The DPSP is not enforceable by law; it is non-justiciable.
It is important to note that DPSP and Fundamental Rights go hand in hand. DPSP is not
subordinate to Fundamental Rights.

Classification of Directive Principles

The Directive Principles are classified on the basis of their ideological source and
objectives. Which clearly discuss about all the ideals which the State should follow and
keep in mind while formulating policies and enacting laws for the state. These are
Directives based on:

1. Directives based on Socialist Principles

Article 38: State to secure a social order for the promotion of welfare of the people.—

(1) The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic
and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimize the inequalities in income, and
endeavour to eliminate inequalities in status, facilities and opportunities, not only
 amongst individuals but also amongst groups of people residing in different areas
or engaged in different vocations.
Articles 39: Certain principles of policy to be followed by the State: The State shall, in
particular, direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means to
livelihood;
(b) that the ownership and control of the material resources of the community are so
distributed as best to sub serve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth
and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of children
are not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment
Article 41: Right to work, to education and to public assistance in certain cases.
Article 42: Provision for just and humane conditions of work and maternity relief.
Article 43: Living wages, etc., for workers.-
Article 43A: Participation of workers in the management of industries.
Article 47: Duty of the State to raise the level of nutrition and the standard of living of
people and to improve public health.
2. Directives based on Gandhian Principles
Article 40: The State shall take steps to organise village panchayats as units of Self
Government.
Article 43: The State shall endeavour to promote cottage industries on an individual or
cooperative basis in rural areas.
Article 43B: To promote voluntary formation, autonomous functioning, democratic
control and professional management of cooperative societies.
Article 46: The State shall promote educational and economic interests of the weaker
sections of the people particularly that of the Scheduled Castes (SCs), Scheduled
Tribes (STs) and other weaker sections.
Article 47: The State shall take steps to improve public health and prohibit
consumption of intoxicating drinks and drugs that are injurious to health.
Article 48: To prohibit the slaughter of cows, calves and other milch and draught
cattle and to improve their breeds.
 Directives based on Liberal-Intellectual Principles
Article 44: The State shall endeavour to secure for the citizen a Uniform Civil
Code through the territory of India.
Article 45: To provide early childhood care and education for all children until they
complete the age of six years.
Article 48: To organise agriculture and animal husbandry on modern and scientific
lines.
Article 48A: To protect and improve the environment and to safeguard the forests and
wildlife of the country.
Article 49: The State shall protect every monument or place of artistic or historic
interest.
Article 50: The State shall take steps to separate judiciary from the executive in the
public services of the State.
Article 51: It declares that to establish international peace and security the State shall
endeavour to:
1. Promote international peace and security.
2. Maintain just and honourable relation between nations.
3. Foster respect for international law and treaty obligations.
4. Encourage settlement of international disputes by attribution.

 Fundamental Duties

The Fundamental Duties are dealt with Article 51A under Part-IV A of the Indian
Constitution. The 42nd Constitutional Amendment Act of 1976 added 10 Fundamental
Duties to the Indian Constitution. And after period of time through 86th
Constitutional Amendment Act 2002 later added 11th Fundamental Duty to the list.
Swaran Singh Committee in 1976 is one of the committee which recommend to have
fundamental duties as part of the Constitution of India, the necessity of which was felt
during the internal emergency of 1975-77.
In addition to creating and promoting culture, also strengthen the hands of the
legislature in enforcing these duties vis-a-vis the fundamental rights.
The list of 11 Fundamental Duties under article 51-A to be obeyed by every Indian citizen
is given in the table below:

S.No 11 Fundamental Duties

1. Abide by the Indian Constitution and respect its ideals and institutions, the National Flag and
the National Anthem
2. Cherish and follow the noble ideals that inspired the national struggle for freedom

3. Uphold and protect the sovereignty, unity and integrity of India

4. Defend the country and render national service when called upon to do so

5. Promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities and to renounce practices
derogatory to the dignity of women

6. Value and preserve the rich heritage of the country’s composite culture

7. Protect and improve the natural environment including forests, lakes, rivers and wildlife
and to have compassion for living creatures

8. Develop scientific temper, humanism and the spirit of inquiry and reform

9. Safeguard public property and to abjure violence

10. Strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement

11. Provide opportunities for education to his child or ward between the age of six and
fourteen years. This duty was added by the 86th Constitutional Amendment Act, 2002

Importance of Fundamental Duties- Part IV-A

Fundamental Duties are an inalienable part of fundamental rights. The importance of
these are given in the table below:

S.No Importance of Fundamental Duties

1. They remind Indian Citizens of their duty towards their society, fellow citizens and the nation.

2. They warn citizens against anti-national and anti-social activities.

3. They inspire citizens & promote a sense of discipline and commitment among them.

4. They help the courts in examining and determining the constitutional validity of a law.
Criticism of Fundamental Duties
The Fundamental Duties mentioned in Part IVA of the Constitution have been criticized on
following grounds:
1. They have been described by the critics as a code of moral precepts due to their
non-justiciable character. Their inclusion in the Constitution was described by the
critics as unnecessary, especially through being more than enough. This is because
the duties included in the Constitution as fundamental would be performed by the
people even though they were not incorporated into the Constitution.
2. Some of the duties are vague, ambiguous and difficult to be understood by the
common man.
3. The list of duties is not exhaustive as it does not cover other important duties like
casting vote, paying taxes, family planning and so on. In fact, the duty to pay taxes
was recommended by the Swaran Singh Committee.
4. The critics said that the inclusion of fundamental duties as an appendage to Part IV of
the Constitution has reduced their value and significance. They should have been
added after Part III so as to keep them on par with Fundamental Rights.
5. Swaran Singh’s Committee recommended more than 10 Fundamental Duties,
however, not all were included in the Constitution. Those duties recommended by
the committee which were not accepted were:
(a) Citizens to be penalized/punished by the parliament for any non-compliance with
or refusal to observe any of the duties.
(b) The punishments/penalties decided by the Parliament shall not be called in question
in any court on the ground of infringement of any of Fundamental Rights or on the
ground of repugnancy to any other provision of the Constitution.
(c) Duty to pay taxes.

 Social Justice under the Indian Constitution

Social justice means the abolition of all sorts of inequities which may result from the
inequalities of wealth, opportunity, status, race, religions, caste, title and the like. To
achieve this ideal of social justice, the Constitution lays down the Directives for the State
in Part IV of the Constitution.
Social justice denotes the equal treatment of all citizens without any social distinction
based on caste, colour, race, religion, sex and so on. It means absence of privileges
being extended to any particular section of the society, and improvement in the
conditions of backward classes (SCs, STs, and OBCs) and women. Social Justice is the
foundation stone of Indian Constitution. Indian Constitution makers were well known to
the use and minimality of various principles of justice. They wanted to search such form
of justice which could fulfil the expectations of whole revolution.
Social justice found useful for everyone in its kind and flexible form. Although social
justice is not defined anywhere in the constitution but it is an ideal element of feeling
which is a goal of constitution. Feeling of social justice is a form of relative concept
which is changeable by the time, circumstances, culture and ambitions of the people.
Social inequalities of India expect solution equally. Under Indian Constitution the use of
social justice is accepted in wider sense which includes social and economic justice
both. According to Chief Justice Gajendragadkar, “In this sense social justice holds the
aims of equal opportunity to every citizen in the matter of social & economical
activities and to prevent inequalities”.
The social justice scenario is to be investigated in the context of two streams of
entitlements:
(a) sustainable livelihood, which means access to adequate means of living, such as
shelter, clothing, food, access to developmental means, employment; education, health,
and resources;
(b) social and political participation (enabling or empowering means), which is built
on the guarantee of fundamental rights, and promotion and empowerment of the right to
participation in the government, and access to all available means of justice, and on the
basis of which “justice as a political programme” becomes a viable reality.

Compensatory Discrimination for Backward Classes

The system of reservation is unique to India but in other nation like United States they are
called as affirmative actions, which are specifically limited for the Native India Tribes, but
in their system they provided them limited seclusion with allotment of specified land. The
American affirmative action are results of conflict and some severe wars between native
Indian and white people after which leads to the enactment of many legislation for the
betterment of native Indians, but on surrender options. They are called as affirmative
action because government are enacting specific statues and law for their betterment
and protection.
But in Indian Constitution do not have such type of system, to treat the Indian Hindu
Communities old caste system and ill treatment towards specific castes, and to ensure
their betterment and upliftment and to ensure their participation in the construction
of modern India. The constitution framers enacted this Compensatory Discrimination
system for Backward Class and Tribal Community, through Equality Provision’s in
Indian Constitution.
Compensatory Discrimination is a term coined for the policy or programs that give
preference to a group or groups of people with a stated goal of countering and
compensating the past or ongoing atrocities, excesses, injustice, or discrimination of
any sort against them. This measure has been adopted for uplifting the weaker sections of
a society by several countries including India, USA, Belgium, Brazil, and even China. In
USA, it is called as Affirmative Action. A direct application of compensatory
discrimination can be seen in reservation of seats in educational institutions,
reservation of vacancies in public service, etc.
BACKWARD CLASS OF CITIZEN- For the term 'Backward Class of Citizens’, it was
contended before the Supreme Court whether SCs and STs can be classified as
backward classes in order to entitle them to the benefits of reservation under Article
16(4) of the Constitution. The Supreme Court had held that:
Article 16(2) prohibits discrimination on the ground, inter-alia, of religion, race, caste,
place of birth, residence and permits an exception to be made in the matter of
reservation in favour of backward classes of citizens. The expression 'backward class' is
not used as synonymous with 'backward caste' or 'backward community'. The members of
an entire caste or community may be in the social, economic and educational scale of
values at a given time be backward and may on that 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 homogenous 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. Thus, the SCs and STs would be deemed to be
‘backward classes’ within the meaning of Article 16(4).
In case of classification of backward classes, the Supreme Court in the case of Indira
Sawhney has opined as follows: “A caste can be quite often is a social class in India. If it
is backward socially, it would be backward class for the purpose of Article 16(4).
Among non-Hindus, there are several occupational groups, sects and denominations,
which, for historical reasons, are socially backward. They too represent backward
social collectives for the purpose of Article 16(4).
Neither the Constitution nor the law prescribes the procedure or method of
identification of backward classes. Nor is it possible or advisable for the court to lay
down any such procedure or method. It must be left to the authority appointed to
identify the backward classes. It can adopt such method/ procedure as it thinks
convenient and so long as its survey covers the entire populace, no objection can be
taken to it. Identification of the backward classes can certainly be done with reference
to castes among, and along with, other occupational groups, classes and sections of
people.
One can start the process either with the occupational groups or with castes or with some
other groups. Thus one can start the process with the castes, wherever they are found,
apply the criteria (evolved for determining backwardness) and find out whether it satisfies
the criteria. If it does-what emerges is a “backward class of citizens” within the meaning of
and for the purpose of Article 16(4). Similar process can be adopted in the case of other
occupational group, communities and classes, so as to cover the entire populace.
The central idea and overall objectives should be to consider all available groups,
sections and group/ class encompassing and overwhelming majority of the country’s
population, one can well begin with it and then go to other groups, sections and
classes.
It is not necessary for a class to be designated as a backward class that it is situated
similarly to the scheduled castes/scheduled tribes. ‘Creamy layer’ can be, and must be
excluded. It is not correct to say that the backward class of citizens contemplated in article
16 (4) is the same as the socially and educationally backward classes referred to in article
15(4). It is much wider. The accent in article 16(4) is on social backwardness. Of course,
social, educational and economic backwardness are closely inter-twined in the Indian
context”.
Mandal Commission’s Case
The Mandal Commission, the Socially and Educationally Backward Classes
Commission (SEBC), was established in India on 1979 by the Janata Party government
under Prime Minister Morarji Desai with a mandate to "identify the socially or
educationally backward classes" of India.
Mandal Commission was set up in 1979 January by Morarji Desai government to identify
the socially or educationally backward classes to consider the question of seat
reservations and quotas for people to redress caste discrimination, and used eleven
social, economic, and educational indicators to determine backwardness.
Mandal, who was once the Bihar Chief Minister. The Commission recommended
that members of OBCs be given 27 per cent reservations for jobs under the Central
government and public sector undertakings. This would take the total number of
reservations for Scheduled Castes and Scheduled Tribes to 49 per cent.
By then, the Morarji Desai government had fallen and Indira Gandhi came to power. It
remained in deep freeze during her term and that of Rajiv Gandhi. Finally in the year
1990, V.P. Singh decided to implement the recommendations of the Mandal report in
employment sectors.
Important case laws related to protective discrimination
In Mohan Kumar Singhania v. Union of India (1991), the Supreme Court explained that
Article 16(4) is an enabling article that gives the state freedom to make any provision or
reservation for any backward class of citizens that is not adequately represented in the
state’s service. The state government takes the total population of the backward class and
their representation in state services, does the appropriate calculations, and then makes the
reservation and provides the percentage of reservation for the posts, which must be
carefully adhered to.
In Triloki Nath v. J & K State (II) Shah (1973), the bench stated that ‘a test primarily
based on caste, community, race, religion, sex, descent, place of birth, or residency cannot
be used to determine whether a section represents a class for the purposes of Article
16 (4) since it would directly violate the Constitution.’
In A. Peeriakaruppan, etc. v. State of Tamil Nadu (1970), the Supreme Court stated that
‘A caste has traditionally been considered a social group. If an entire caste or
community is socially, economically, or educationally backward at any given period, that
caste or group is considered a backward class. This is because they form a class, not
because they are members of that caste or group.
In the case of Jagdish Negi v. State of U.P (1997), it was stated that backwardness is not
a one-time occurrence. It can’t go on indefinitely, and the government has the right to
examine the issue at any point.