Constitutional Law-1

Unit-I
Qs. Introduction to Indian Constitution and its salient features
Ans. Introduction

The Constitution of India was framed by a Constituent Assembly set up

under the Cabinet Mission Plan of 1946. The Assembly consisted of 389
members representing provinces (292), states (93), the Chief Commissioner
Provinces (3) and Baluchistan (1).

The Assembly held its first meeting on December 9, 1946, and elected Dr.
Sachhidanand Sinha, the oldest member of the Assembly as the Provisional
President. On December 11, 1946, the Assembly elected Dr Rajendra Prasad
as its permanent Chairman.

The strength of the Assembly was reduced to 299 (229 representing the
provinces and 70 representing the states) following withdrawal of the Muslim
League members after the partition of the country.

The Constituent Assembly set up 13 committees for framing the constitution.

On the basis of the reports of these committees, a draft of the Constitution
was prepared by a seven-member Drafting Committee under the
Chairmanship of Dr B R Ambedkar.

The drafting Constitution was published in January, 1948 and people were
given eight months. After the draft was discussed by the people, the press, the
provincial assemblies and the Constituent Assembly in the light of the
suggestions received, the same was finally adopted on November, 26, 1949,
and was signed by the President of the Assembly. Thus, it took the
Constituent Assembly 2 years, 11 months and 18 days to complete the task.

The Constitution of India was not an original document. The framers of the
Constitution freely borrowed the good features of other constitutions.
However, while adopting those features, they made necessary modification
for its suitability to the Indian conditions and avoided their defects. The
Constitutions which exercised profound influence on the Indian Constitution
were that of UK, USA, Ireland, Canada etc.

The parliamentary system of government, rule of law, law-making procedure

and single citizenship were borrowed from the British Constitution.
Independence of Judiciary, Judicial Review, Fundamental Rights and
guidelines for the removal of judges of the Supreme Court and High Courts
were adopted from the US Constitution. The federal system with a strong
central authority was adopted from Canada.

Directive Principles of State Policy were borrowed from the Constitution of

the Republic of Ireland. The idea of Concurrent List was borrowed from the
Australian Constitution. The provisions relating to emergency were
influenced by the Weimer Constitution.

Above all, the Government of India Act, 1935, exercised great influence of
the Indian Constitution. The federal scheme, office of Governor, powers of
federal judiciary, etc., were drawn from this Act. In short, the Indian
Constitution incorporated the best features of several existing constitutions.

Implementing:
Though the major part of the Constitution came into force on January 26,
1950, the provisions relating to citizenship, elections, provisional parliament
and temporary and transitional provisions came into force with immediate
effect, viz., from November 26, 1949.

Salient features
Constitution of India is a sacred document. It includes the characteristics of main
constitutions of world. This constitution is result of continuous attempts, study,
discussion, thinking and hardwork of the drafting committee during the period of 2
years 11 months 18 days. It was enforced on 26 th January, 1950 throughout the
India.

The major characteristics of the constitution of India are:

Biggest constitution- generally, the form of constitution is small. Only main
points are mentioned in it and rest is left for the interpretation. But, the constitution
of India is an exception. The form of the constitution of India is neither small nor
very big. It contains all the necessary points in it.

The original form of constitution included 22 chapters 395 articles and 9 schedules.
Later, these has been increased along with the amendments.

Establishment of Soverign Democratic Republic- the main feature of oue

constitution is the establishment of Severign Democratic republic. It is called
soverign because its soverignity is vested among the people of India instead of
another country. It is now completely free from outside control. The internal and
external policies are determined and controlled by India itself.

Democracy has been established in India. The governance is secured in the hands
of its people. It fulfills the criteria of the Democracy, “Government s for the
people, by the people and of the people.” Its main object is public welfare.

Socialism and Secularism- our constitution nourishes Socialism and Secularism.

It fulfills the dreams of Mahatma Gandhi of the structure of Socialist society. Its
preamble mention about ‘Social, Economic and Political Justice.’ Thus, all
discriminations are rewared to establish equality. Socialist structure could be seen
from the fact that ‘Right to Property’ is removed from the chapter of fundamental
rights and added as ‘general constitutional Rights.’

It is noteworthy that expressions ‘Socialism’ and ‘Secularism’ are not mentioned in

the original format of the constitution. It has been added by the 42nd amendment.

Origin of Parliamentary Governance- India is a federation of states. Constitution

is federal. Federal constitution can be of two types- Presidential and Parliamentary.

Presidential form has the president as the ultimate power like in America. Whereas
in Parliamentary form, the actual power is in the hands of the people. It is
government of people, for the people and by the people. People representative
conduct the governance in the form of Cabinet.
India has the parliamentary form of Government. Actual power is in the hands of
representatives elected by the people. President is the head of the country, but it is
only for namesake. He has to do all work on the advice of the cabinet.

Fundamental Rights- an important characteristic and achievement of the

constitution of India is inclusion of fundamental rights in it. These fundamental
rights are like a gift and boom for the Indians who had suffered by foreign rules for
years. The main object of these fundamental rights is to provide an opportunity to
the citizens of India for their complete development. Part-III of Constitution
provides following fundamental rights-

a) Right to equality
b) Right to freedom
c) Protection of life and personal liberty
d) Safeguard against Arbitrary arrest and detention
e) Right against exploitation
f) Right of freedom of religion
g) Cultural and educational rights
h) Right to constitutional remedies.

It is noteworthy that right to property was earlier a fundamental right, but later it
has remained on a constitutional right by an amendment.

Fundamental Duties- the original format of the constitution was not containing
‘Fundamental Duties’. Fundamental rights were added but fundamental duties
were left. Later, it was found to have fundamental duties to be introduced. As a
result, new part- IV-A which consist only one article 51-A was added to the
constitution by the 42nd amendment-

a) To abide by constitution and respect its ideal and institutions, the National
flag and National Anthem.
b) To cherish and follow the noble ideals which inspired our national struggle
for freedom.
c) To uphold and protect the sovereignity, unity and integrity of India.
d) To defend the country and render national service when called upon to do
so.
 e) To promote harmony and spirit of common brotherhood amongst all the
people of India transcending religious, linguist, and regional or sectional
diversities; to practices derogatory to the dignity of women.
f) To value and preserve the right heritage of our composite culture.
g) To protect and improve the natural environment including forests, lakes,
rivers and wildlife and to have compassion for living creature.
h) To safeguard public property and to adjure violence.
i) To develop the scientific temper, humanism and the spirit of inquiry and
reform.
j) To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour and
achievements.

Directive principles of State- the Constitutional drafters had perceived such

structure of constitution which is for the welfare of humanity. The Constitutional
drafters wanted that state shall determine their own policies in such manner that
living standards of every person are raised, children’s education, no one is devoid
of justice owing to poverty, equal pay for equal work, economic security during
oldage and sickness, decentralization of power etc. these welfare provisions are not
made compulsory and left on the availability of resources with state. It is reason
that they are called Directive Principles of State policy and not Fundamental rights.

Chapter IV of the constitution mention about these directive principles. Although,

state is not bound to implement directive principles, but it becomes the duty of a
welfare state to implement them.

Now there has been decision of the judiciary which provides directive principles of
the position of fundamental rights.

Co-ordination of Rigidity and Flexibility- if it is said that the constitution is

neither strictly nor stridly flexible, then it shall not be an exaggeagate statement.
The constitution contains such a procedure of amendment which is neither flexible
as England nor rigid as America. It provides amendment in accordance with
country, time and circumstances. It is the proof that there has been only 85
amendments, till 2001.
Adult suffrage- as we have seen above, India has adopted Parliamentary system of
governance. In Parliamentary system, power is vested in the hands of
representatives of people. People elects the representative. This power has been
entrusted by the Constitution to adults, that is, who have completed the age of 18
years.

Article 326 of the Constitution provides for adult suffrage. It is important that
there has been no discrimination on the basis of religion, caste, tribe, etc. in the
suffrage. It is a specific characteristics of our constitution.

Independence of Judiciary- it is an important pillar of democracy. Judiciary is the

‘Security guard’ of the fundamental rights of people. The responsibility of
protection of constitution is also on judiciary. It is good that independence of
judiciary has been given ultimate position. The independence of judiciary has been
conclude as basic structure of the constitution, with which there can be no
interference.

Single citizenship- another important feature is the provision of single citizenship.

Every citizen is called Citizen of India. They cannot double citizenship alike
America.

Decentralization of Power- India believes in decentralization of powers. The

power is vested among the people, not centralized in one person. ‘Panchayati Raj
System’ is a good exam of 73rd Amendment Act, 1992 had further strenghthened it.

Qs. Definition of the State under Article 12

Ans. Part III of our constitution consists of a long list of fundamental rights, it
starts right from article 12 to article 35. This chapter has been very well described
as the Magna carta of India, for magna carta was not merely a document signed by
King John but a symbol of assertion of individual rights. It reflects the awakening
of the people in face of oppressive systems like monarchy and tells us that
individuals when fortified with rights and freedoms can bring about a great change.

The purpose behind having our fundamental rights, rests in the need for having a
just society i.e a nation ruled by law and not by a tyrant. Rule of one man only
leads to eventual resentment amongst the citizenry as maker, executor and
interpreter of law is the same man. Moreover, in case of a infringement of human
rights of an individual by the abuse of state power, he will have no option but to
suffer because there’s just no hope for relief in a tyranny. This is the rationale
which led to Montesquieu developing the theory of separation of powers and the
same is imbibed in our constitution by virtue of Article 50. So, lets delve deeper
into the shield which protects us from abuse of powers by the state itself.

The Concept of State and Article 12 of the Constitution of India

The law dictionary defines “state” as :-

A body politic, or society of men united together for the purpose of promoting their
mutual safety and advantage, by the joint efforts of their combined
strength. Individuals need constitutional protection from the acts of the state itself.
Fundamental rights protection is available against the state only as ordinary laws
are sufficient enough to protect infringement of rights by individuals. With great
powers comes a greater risk of abuse and in order to safeguard rights and freedom
of individuals so that men in power do not trample upon them. However, in order
to delve deeper into the concept it is firstly imperative to explore the definition of
“state”.

Article 12 defines state in the following manner:

In this part unless the context otherwise requires, “the State” includes
1. The Government and Parliament of India

2. The Government and Legislature of each of States

3. Local Authorities or

4. Other Authorities Within the territory of India or under the control of

Government of India.

The Government and Parliament of India

The term points to Union executive and legislature. This phrase can be understood
by simple observation, whenever Parliament passes a bill and it gets the assent and
is brought into force as an “act” it is a function of the central legislature. Whenever
any “act” whether as a whole or in part infringes upon fundamental rights of an
Individual, it is challenged before the Judiciary and then the same is left to Judicial
scrutiny. As we have seen in the celebrated case of Shreya Singhal v. Union of
IndiaAIR 2015 SC 1523 , Section 66A was challenged before the Hon’ble Apex
Court as being in violation of Article 19 and on the same basis was struck down
and declared ultra vires. Now, Information Technology Act, 2000 is a Central Law
passed by Union legislature and therefore being a “state” it could not be allowed to
violate fundamental rights.

Government and Legislature of the States

This phrase indicates that acts of State legislature or Executive will also not be
beyond reproach and any State act, order, rule etc. which leads to infringement of
rights of an individual shall be safeguarded.

Local authorities

Authorities like Municipality, District Boards etc. all come under the scope of local
authorities and remedy against them can be sought by an individual. The bye-laws
that a Municipal committee makes are all under the definition of Law under Article
13 and can be challenged on basis of violation of a fundamental right. The
reference to local authorities has been given in the General Clauses act, 1897 and it
would be pertinent to analyse the same briefly.

A proper and careful scrutiny of Section 3(31) suggests that an authority in order to
be a local authority, must be of like nature and character as a municipal committee,
District Board or Body of Port commissioners, possessing therefore, many, if not
all, of the distinctive attributes and characteristics of those bodies, but possessing
one essential feature namely, that it is legally entitled to or entrusted by the
government with the control and management of a local fund.

Other authorities
Now, coming to the most disputed and discussed phrase of all article 12 i.e “other
authorities”. It is pertinent that the evolutionary process of this concept is discussed
in order to understand it better.

R.D Shetty v. Airport Authority of India which gave us the 5 Point test as
propounded by Justice P.N Bhagwati. This is a test to determine whether a body is
an agency or instrumentality of the state and goes as follows –

1. Financial resources of the State is the Chief funding source i.e. the entire share
capital is held by the government.

2. Deep and pervasive control of the State

3. Functional character being Governmental in its essence, meaning thereby that its
functions have a public importance or are of a governmental character

4. A department of Government transferred to a corporation

5. Enjoys Monopoly status which is State conferred or protected by it.

Whether BCCI is a State or not?

Due to this question surfacing frequently in LLB Exams, it has to be dealt with
separately. The relevant Judgement in this regard is Zee Telefilms v. Union Of
India AIR 2005 SC 2677 as BCCI isnot created by a statute, not dominated by
government either financially, functionally or administratively. Hence,it cannot be
called a State as under Article 12 of The Constitution.

Whether Judiciary would be included in the definition of State or not?

The Judiciary is not expressly mentioned in the Article 12 and a great amount of
dissenting opinions exist on the same matter. Bringing Judiciary entirely under
Article 12 causes a great deal of confusion as it comes with an attached inference
that the very guardian of our fundamental rights is himself capable of infringing
them. Perhaps with the help of relevant judgments this can be better understood :

However, in Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771 the Apex
Court reaffirmed and ruled that no judicial proceeding could be said to violate any
of the Fundamental rights and that it is a settled position of law that superior courts
of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article
12.

This leaves with us with the rationale that a Superior Judicial body when acting
“Judicially” would not fall under the definition of State but when it performs any
administrative or similar functions e.g conducting examination, it will fall under
the definition of “state” and that remedy could be sought in that context only in
case of violation of fundamental rights.

Qs. Dimension of Article 13

Ans. A significant feature of the Indian Bill of Rights is that the remedy for the
enforcement of the fundamental rights is itself declared a fundamental right and is
included in the very chapter on fundamental rights. An act of the State, whether
legislate or executive, if inconsistent with a fundamental right, is declared to be
null and void under Article 13. The nullity of such an act does not rest upon
judicial pronouncement, but upon the express provision contained in Article 13.

Purpose of Article 12 and Article 13

In enacting fundamental rights in Part III of our Constitution, the founding fathers
showed that they had the will, and they were ready to adopt the means to confer
legally enforceable fundamental rights. First, against whom were the fundamental
rights to be enforced? Broadly speaking, against “the State”, not as ordinary
understood but as widely defined by Art. 12.

Secondly, against what activity were fundamental rights enforceable? They were
enforceable against laws and executive actions, which violated fundamental rights.
In brief, all laws contravening and/or violating fundamental rights were declared to
be pro tanto void as defined in Art. 13. Article 13 of the Indian Constitution States
that:

“Laws inconsistent with or in derogation of the fundamental rights

(1) 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, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any
Ordinance, order, bye-law, rule, regulation, notification, custom or usages having
in the territory of India the force of law; laws in force includes laws passed or
made by Legislature or other competent authority in the territory of India before
the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation
either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made
under Article 368 Right of Equality.”

Article 13 is the key provision as it gives the teeth to the fundamental rights and
makes them justiciable. The effect of Article 13 is that Fundamental Rights cannot
be infringed by the government either by enacting a law or through administrative
action.

Existing laws inconsistent with the Constitution

This clause provides that all “laws in force” at the commencement of the
Constitution which clash with the exercise of the Fundamental Rights, conferred
by Part II of the Constitution shall, to that extent, be void. A pre constitution law,
after the commencement of the Constitution, must conform to the provisions of
Part III of the Constitution. However, infringement of a fundamental right cannot
be founded on a remote or speculative ground.

But this does not make the existing laws which are inconsistent with the
fundamental rights void ab initio.The entire Part III of the Constitution
including Art. 13(1) is prospective. Hence, existing laws which are inconsistent
with any provision of Part III are rendered void only with effect from the
commencement of the Constitution, which for the first time created the
Fundamental Rights. The inconsistency referred to in Art. 13(1), therefore, does
not affect transactions past and closed before the commencement of the
Constitution or the enforcement of rights and liabilities that had accrued under the
‘inconsistent laws’ before the commencement of the Constitution.

On the other hand, it does not mean that an unconstitutional procedure laid down
be a pre-Constitution Act is to be followed in respect of ‘pending’ proceedings or
in respect of new proceedings instituted with regard to pre-Constitution rights or
liabilities. Just as there is no vested right in any course of procedure, there is no
vested liability in matter of procedure in the absence of any special provision to the
contrary.

But if the proceedings had been completed or become final before the
commencement of the Constitution, nothing in the Fundamental Rights Chapter of
the Constitution can operate retrospectively so as to affect those proceedings. For
the same reason, it is not possible to impeach the validity of that part of the
proceedings which had taken place under the inconsistent law, prior to the
commencement of the Constitution.

The effect of Art. 13(1) is not to obliterate the inconsistent law from the statute
book for all times or for all purposes or for all people.The effect is that the
inconsistent law cannot, since the commencement of the Constitution stand in the
way of exercise of fundamental rights by persons who are entitled to those rights
under the commencement of the Constitution, as regards persons who have not
been given fundamental rights, e.g., aliens.

Doctrine of Eclipse

It follows, therefore, that if at any subsequent point of time, the inconsistent

provision is amended so as to remove its inconsistency with the fundamental
rights, the amended provision cannot be challenged on the ground that the
provision has become dead at the commencement of the Constitution and cannot
be revived by the amendment. All acts done under the law since the amendment
will be valid notwithstanding the fact of inconsistency before the amendment. It is
known as the doctrine of eclipse.

For the same reason, if the Constitution itself is amended subsequently, so as to

remove the repugnancy, the impugned law becomes free from all blemishes from
the date when the amendment of the Constitution takes place.
Although a pre-constitutional law is saved in terms of Art. 372 of the Constitution,
challenge to its validity on the touchstone of Arts. 14, 15 and 19 of the Constitution
is permissible in law. Validity of a statute may be subject to changes occurring in
societal conditions in domestic as well as in international arena with time.

Post-Constitution laws, which are inconsistent, shall be void ab initio:

Art. 13(2) provides that any law made by any legislature or other authority after the
commencement of the Constitution, which contravenes any of the fundamental
rights included in Part III of the Constitution shall, to the extend of the
contravention, be void.

As distinguished from Cl. (1), Cl. (2) makes the inconsistent laws void ab initioand
even convictions made under such unconstitutional laws shall have to be set aside.
Anything done under the unconstitutional law, whether closed, completed or
inchoat, will be wholly illegal and the relief in one shape or another has to be given
to the person affected by such unconstitutional law. Nor it is revived by any
subsequent event.

This does not mean that the offending law is wiped out from the statute book
altogether. It remains in operation as regards to persons who are not entitled to the
fundamental rights in question (e.g., a non-citizen in respect of a right guaranteed
by Art. 19). Nor does Cl. (2) authorize the Courts to interfere with the passing of a
bill on the ground that it would, when enacted, be void for contravention of the
Constitution. The jurisdiction of the Court arises when the bill is enacted into law.

Doctrine of Severability

It is not the whole Act which would be held invalid by being inconsistent with Part
III of the Constitution but only such provisions of it which are violative of the
fundamental rights, provided that the part which violates the fundamental rights is
separable from that which does not isolate them. But if the valid portion is so
closely mixed up with invalid portion that it cannot be separated without leaving an
incomplete or more or less mingled remainder the court will declare the entire Act
void. This process is known as doctrine of severability or reparability.

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras,
and held that the preventive detention minus Section 14 was valid as the omission
of Section 14 from the Act will not change the nature and object of the Act and
therefore the rest of the Act will remain valid and effective. The doctrine was
applied in D.S. Nakara v. Union of India, where the Act remained valid while the
invalid portion of it was declared invalid because it was severable from the rest of
the Act. In State of Bombay v. F.N. Balsara, it was held that the provisions of the
Bombay Prohibition Act, 1949 which were declared as void did not affect the
validity of the entire Act and therefore there was no necessity for declaring the
entire statute as invalid.

Definition of Law

Art. 13(3)(a) defines ‘law’ very widely by an inclusive definition. It does not
expressly include a law enacted by the legislature, for such an enactment is
obviously law. The definition of law includes:

(i) an Ordinance, because it is made in the exercise of the legislative powers of the
executive;

(ii) an order, bye-law, rule, regulation and notification having the force of law
because ordinarily they fall in the category of subordinate delegated legislation and
are not enacted by the legislature;

(iii) custom or usage having the force of law because they are not enacted law at
all. This extended definition appears to have been given to ‘law’ in order to
forestall a possible contention that law can only mean law enacted by the
legislature.

Unit- II

Qs: Right to equality and protective dicrimination – Articles 14, 15 and 16

Ans: Article 14 to 18 of the Constitution provides every person with the

fundamental rights of equality. Article 14 provides that “the state shall not deny to
any person equality before the law or equal protection of the laws within the
territory of Indian.” Article 15 prohibits discrimination on the basis of religion,
race, caste, sex or birth place. Whereas article 16 provides equality of opportunity.
Article 17 prohibits untouchability and Article 18 provides for abolition of titles.
Equality before Laws-

The words “equality before Laws” have been adopted from British Constitution.
Famous Jurist dicey has called it as ‘Rule of Law’. the ‘Rule of Law’ means- no
one shall be above law, i.e. all persons are equal before law irrespective ofclass.
No one claim to be above law.

‘Equality before Law’ applies to all persons, whether it is corporation or any other
legal person as held in ‘Chiranjeet Lal chaudhary Vs Union Of India (A.I.R.
1951 S.C.41).

‘Raghubir Singh Vs State of Haryana’ (A.I.R. 1980 S.C. 1086)- it was said the
principle of Rule of Law also applied to accused. It was the duty of the state to
protect the accused from unhumanly behaviour of Police.

In all, it can said in words of dicey- in rule of law, i.e. equality before law, every
one from Primer Minister to soldier is responsible fr their works. There is no
discrimination between small, big, rich-poor, etc.

Equal Protection of Laws-

The expression ‘Equal protection of Laws’ means- Person under equal

circumstances shall be kept under equal law and implement them equally. In other
words, it can be said that no discrimination legal aspect between person and same
circumstances and equally implementing the laws, is equal protections of laws.

‘Equal protection of Law’ was provided by the 14 th Amendment of American

Constitution. The American Constitution provides the- no state shall deny to any
person within its jurisdiction the equal protection of laws,.

The expression ‘Equality before law’ and ‘Equal protection of laws’ and
supplementary to each other. Both cannot be separated. If first expression is
negative then other is positive.

Exceptions

Above analysis shows that Rule of law includes that all person shall be equal
before law and all person shall be equally protected by laws, but this is not an
absolute rule. This rule applies to those persons who are under similar position and
circumstances, not on all. There are several types of persons in a society, like-
Male, female, rich- poor, forward-backward, etc. there requirements, expectations
and problems are different. There living standard may be different. Hence, a same
law cannot be applied on all as a universal law. If same law is applied, then it shall
be inequality rather than equality.

This means that state can make classification. But such classification must be
reasonable or should not be arbitrary or artificial as held in ‘R.K.Garg Vs Union
of India (A.I.R. 1981 S.C. 2138).

It also shows that Article 14 prohibits class legislation, but permits classification.

Reasonable classification- there are two criteria for reasonable classification-

1. The classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from other left out
of the group; ad
2. The differentia must have a rational relation to the object sought to be
achieved by the Act. (Kathi Rering Vs State of Maharashtra, A.I.R.
1952 S.C. 123 and Ramkrishna dalmiya Vs Justice tandolkar, A.I.R.
1958 S.C. 538).

In simple words, it can be said that the classification should be such that it appears
to be reasonable to an ordinary prudent man.

Grounds of Classification:

Under Article 14, classification may be on following grounds-

a) On basis of geographical position,

b) In favour of state,
c) In respect of taxing statues,
d) In respect of special courts and procedures, and
e) In respect of discretionary powers of Administrative officers.

Classification can be made on the basis of geographical position of the country.

‘State of Punjab Vs Ajazaid Singh (A.I.R.1953 S.C. 10).
Similar situation is of taxing laws. State can elect and classify persons and things
in making taxing laws, so that burden of tax is not same on rich and poor people.

Thus, article 14 provides guarantee for equality and equal protection of laws. It
prohibits class legislation, but permits classification.

Article 15

Article 15 of the Constitution provides that no citizen shall be subjected to

discrimination in matters of rights, privileges and immunities pertaining to him.
This Article lays down:

(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them,

(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or
any of them, be subjected to any disability, liability, restriction or condition with
regard to:

(a) Access to shops, public restaurants, hotels and places of public entertainment,
or

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

(3) Nothing in this Article shall prevent the State from making any special
provision for women and children.

(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes.

The guarantee under Article 15 is available to citizens only and not to every person
whether citizen or non-citizen as applicable under Article 14 of the Constitution.
In Air India v. Nargesh Miija, AIR 1981 S.C. 1829, the Supreme Court struck
down Regulations 46 and 47 of the Air India and Indian Airlines. Regulation 46
provided that an air-hostess shall retire from the service of the corporation upon
attaining the age of 35 years or on marriage, if it takes place within 4 years or on
first pregnancy whichever is earlier.

Under Regulation 47, Managing Director had discretion to extend the age of
retirement by one year at the time up to the age of 45 years, if the air-hostess is
found medically fit. The court held that termination of service on the basis of
pregnancy is unfair and clearly violates Article 14. The power of managing
director for the extension of age of retirement is also unconstitutional.

In State of Madhya Pradesh v. Nivedita Jain, AIR 1981 S.C. 2045, the Supreme
Court upheld the validity of an executive order of the Government of Madhya
Pradesh completely relaxing the condition of qualifying marks for the candidates
of Scheduled Castes and Scheduled Tribes in Pre-Medical Tests.

The court observed that in the absence of any law to the contrary, it is open to the
government to impose such conditions which would make the reservation effective
for the advancement of candidates of such classes.

Article 16

Qs: Article 19 (1) (a) and 19 (2)?

Ans: According to Article 19 (1) of the Constitution, the citizen of India are
provided several freedom. The first of such freedom is right to freedom of speech
and expression.
Article 19(1)(a) says that, “All citizens shall have freedom of speech and
expression.

Actually, this is the most important right amongst all rights. It is the right which
helps in conversation. It is a medium of expression of thoughts.

Speech and expression means- expression your views by way of words, articles,
signs, representation, etc.

There can also be other way of expression, and all such medium shall be deemed to
be expression.

‘Lawell Vs Giffin’ [(1938) 303 U.S. 444]- numbers, signs, symbols, etc. were held
to medium of expression.

‘Tata press Ltd. Vs Mahanagar Telephone Nigam Ltd.’ (A.I.R. 1995 S.C.
2438)- commercial speech and expression shall be deemed to be part of speech and
expression under Article 19(1) (a).

Freedom of Press:

Freedom of speech and expression includes freedom of press- Any person may
express his views by articles, cartoons, advertisements, etc. in a newspaper-
Sriniwas Vs State of Madras (A.I.R 1951 Madras 79)- Madras High Court held
that the freedom of speech and expression is not limited to the publicity of views.
It includes the publicity of views of others also which is possible by freedom of
press only.

Whether freedom of press can be restricted? This question has been in discussion
from the beginning- ‘Virendra Vs State of Punjab (A.I.R. 1957 S.C. 896)- the
Supreme Court has said that, “Preventing any newspaper from publishing any
article of current importance is encroachment of the freedom of speech and
expression.

Ramesh Thappar Vs State of Madras (A.I.R. 1950 S.C. 124)- it was held that,
“A newspaper published in one state cannot be prevented to be delivered in another
state, because freedom of press includes its publicity also.”
Similarly, ‘Maneka Gandhi Vs union of India (A.I.R. 1973 S.C. 597)- it was said
that if the passport of any journalist is withdrawn to avoid him from expressing
views in foreign, then it violates the Article 19(1)(a).

Express Newspaper Pvt. Ltd. Vs Union of India (A.I.R. 1958 S.C. 578)- the
following activities diminishing the freedom of Press were held unconstitutional-

a) Pre-censorship of newspaper,
b) Prohibition on circulation of Newspaper,
c) Prohibition in start of newspaper
d) Government aid to be compulsory for the continuity of newspaper, etc

Above analysis shows the importance of freedom of press.

(1)Right to Assemble- Article 19(1) (b) provide that all citizens of India have the
right to assemble peaceably and without arms. The right of assemble includes the
right to hold meetings and to take out processions. Actually, this right is also
similar to freedom of speech and expression.

But it is noteworthy that Right to assemble is also not absolute. Lawful Assembly
requires two things-

i. It must be peacefull; and

ii. Without arms.

This right can be restricted. Restriction may be on following grounds-

(a) Soverignity and integrity of India; and

(b) Maintaining Public Order.

(2)Right to form Association and Union- Article 19(1) © of the Constitution

provide fundamental right to each citizen of India to form association or Unions.
According to it, every citizen of India is free to form Association or union of his
liking.

Suryapal Singh Vs State of U.P. (A.I.R. 1951 Allahabad 674)- Allahabad High
Court said while accepting this right that- “every citizen of India is free to form
any association or Union at his own will, continue or stop it, being or not being
part of it.
(3)Right to Move- Article 19(1) (d) provide the fundamental right to all citizens of
India to move freely throughout the territory of India.

Gurubachan Singh Vs State of Mumbai (A.I.R. 1952 S.C. 221)- Supreme Court
accepted the right by saying that- Article 19(1) (d) provides every citizen with the
freedom move freely throughout India. It is not only to move from one state to
another, but also from one place in a state to another in that state.

The freedom may be restricted on following grounds-

a) In the interest of general public; and

b) For the protection of the interest of schedule tribes.

(4) Freedom of Residence- Article 19(1) (e) of Constitution guarantees every

citizen of India for the right to reside and settle in nay part of the territory of India.
This right provides anyone to live anywhere in India.

(5) Right to Profession, any trade or business- Article 19(1) (g) guarantees all
citizens with the right to practice any profession, or to carry on any occupation,
trade or business. Principles of natural justice also require so.

In the case of M.R. kondell Vs Bar council of India (A.I.R. 2009 Himachal
Pradesh 85) the rule of Himachal Pradesh Bar Council was declared as
unconstitutional by Himachal Pradesh High Court, which was restricted a person
of age of more than 45 years to nominate as an advocate.

Prohibition on Freedom of Speech and Expression:

It is noteworthy that freedom of speech and expression is not absolute. Freedom

can be restricted under certain circumstances. Article 19(2) provides prohibition on
freedom of speech and expression under following circumstances-

(1) Security of State;

(2) Friendly relations with foreign states;
(3) Decency and morality;
(4) Public order;
(5) Contempt of Court;
(6) Defamation;
(7) Incitement of an offence;
 (8) Soverignity and integrity of India.
(1) Security of State- freedom of speech and expression may be restricted for the
security of state.
(2) Friendly relation with foreign state- freedom of speech and expression
cannot be made available where it causes damage to the friendly relation with
foreign states. Rumours to cause hatred with foreign countries are prohibited.
(3) Morality and Good Conduct- freedom of speech and expression is prohibited
for morality and good conduct. No one can be permitted to publish such
literature which is immoral and encourages corrupt thoughts. In other words,
literature creating differences may be prohibited from being published.
(4) Public order- freedom of speech and expression may be prohibited on the
basis of public order. It is the duty of state to maintain public order.
(5) Contempt of Court- on the basis of freedom of speech and expression, anyone
cannot be allowed for contempt of court. No one can cause damage to the
dignity of court by taking benefit of freedom of speech and expression. If he
does so he may punished.
(6) Defamation- No one can be given freedom on the basis of freedom of speech
and expression, to cause damage to the prestige of any person.
(7) Incitement of Offence- no one can use the freedom of speech and expression
in such a way that it encourages violence and offence in the society.
(8) Soverignity and Integrity of India- finally, freedom of speech and expression
may be prohibited to maintain soverignity and integrity of India. This
restriction has been added by 16th Constitutional Amendment, 1963.

Thus, freedom of speech and expression under Article 19(1) (a) with above
restriction is an important right.

Unit- III

Qs: protection provided under Article 20?

Ans: article 20 of the Constitution provides three types of protection in respect of

conviction for offences-

1) Protection from expost facto laws;

 2) Protection from double jeopardy and
3) Prohibition against self Incrimination.
(1) Protection from Expost facto laws- Article 20 of this Constitution says that no
person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the fact charged as an offence, nor be subjected
to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence.

This means that anyone can be convicted only for that act which is an offence
under any law at the time of the commission of that act. If that act is not offence
under any law in force at that time, then he cannot be punished by making a law
afterwards. This means that no criminal law can be implemented retrospectively.

Similarly, any person can be punished with that extent of punishment for an
offence which is prescribed at the time of commission of that offence. No law can
be made later to increase the extent of punishment for prior offence.

‘Kedarnath Bajoria Vs state of West Bengal’ (A.I.R 1953 S.C. 404) is an

important matter. Accused committed an offence in 1947 A.D. At that time,
imprisonment or fine or both could be inflicted for that offence. In 1949 A.D.
punishment was increased by an amendment. Supreme Court held that the
amended punishment cannot be inflicted upon offence committed in 1947.

(2) Protection from double jeopardy- article 20(2) provides that- “No one can be
punished and convicted more than once for the same offence. ‘it is based on
English formula- nemoo debet Vs vexari’. It means no one should be put twice
in peril for the same offence. American Constitution also contains similar
provision. According to American Constitution- “no one can be put in danger
twice for the same offence’. It is also called double jeopardy. It simply means
that if any accused is convicted or acquitle after a trial, then he cannot be again
forced to undergo trial for the offence on a subsequent happening.

Kalavati Vs State of H.P. (A.I.R. 953 .C. 131)- three points were held to b e
required for the application of article 20(2)-

a) Person must be accused of an offence;

 b) Trial to be conducted before court or judicial tribunal and should be of
judicial nature; and
c) Trial or proceeding for such offence for which punishment is provided.
(3) Prohibition against self- incrimination- Article 20(3) provides that- “Accused
person cannot be compelled to become witness against himself for an offence.”
It is well established principle of jurisprudence that a person shall be considered
to be innocent till he is proved guilty. This means that burden of proof is on
prosecution. In this context, accused is not required to do anything. On this
basis the rule was framed that a person cannot be compelled to give evidence
against himself.

The following points are required-

i. Person is charged of a offence;

ii. He has been compelled to become witness against himself; and
iii. He has been forced to give evidence against himself.

Nandini Satpathi Vs P.L.Dani (A.I.R. 1978 S.C.1025)- Supreme Court held that
if the question asked is consisting of elements of self-incrimination then accused
take the protection of Article 20.

Qs: Article 21

Ans: Article 21 of the Constitution is very important. The scope of this article has
kept increasing with the time, place and circumstances. It provides protection of
life and personal liberty. The base of this article is – “No person shall be deprived
of his life or personal liberty except according to the procedure established by
law.”

This question is that what is life and personal liberty.” Generally it is understood as
right to live. Every person has the right to live. The right to live also has a different
meaning. It means not only with living, but with respectful and humanly pride’
living.
‘Kharak Singh Vs State of U.P.’ (A.I.R. 1963 S.C. 1295)- Supreme Court while
describing this right said that- “Right to live means not merely animal existence,
but living respectfully and human dignity.”

Similarly, “Maneka Gandhi s Union of India” (A.I.R. 1978 S.C. 597)- the
Supreme Court held that- “The expression ‘personal liberty’ covers a variety of
rights which go to constitute the personal liberty of man.’

Above analysis shows that right of life and personal liberty means- right to live
respectfully and with human dignity. With the passage of time, several subject
related to human dignity have been included in this right, namely-

(1) Right to medical attendance & treatment (Parmanand Katara Vs nion of

India, A.I.R. 1989 S.C. 2039).
(2) Right to Education (Kumari Mohini Jain vs State of Karnatka, A.I.R. 1992
S.C. 1958).
(3) Right to Environmental Conservation (law Society of India Vs Fertilizers and
Chemicals, Travancore, A.I.R. 1994 Kerala 308).
(4) Right to speedy trial (Police Commissioner, Delhi Vs Register, Delhi High
Court, A.I.R. 1997 S.C. 95).
(5) Right to Prevention of Sexual harassment of Working Women (Vishaka Vs
State of Rajasthan, A.I.R. 1997 S.C. 3011).
(6) Right to free legal aid (S.H. Hoskot Vs State of Maharashtra, A.I.R. 1978
S.C. 1548).
(7) Right to respectful funeral of unidentified bodies (Shelter right movement Vs
Union of India, A.I.R. 2002 S.C. 554).
(8) Right to rehabitation of beggars (AbhiparayaWelfare Society Vs
Government of A.P. A.I.R. 2001 A.P. 273).
(9) Right to protection from smoking (Murli S. Deora Vs Union of India, A.IR.
2002 A.C. 40).
(10) Right to protection from ragging of students (Vishwa Jagriti Mission Vs
Government of India, A.I.R. 2001 S.C. 2783 and S.Ramesh Vs Venipoya
Dental College, .I.R. 2002 Karnataka 264).
(11) Right to maintenance of Women dignity in beauty contests (Chandra Raj
Kumari Vs Police commissioner, Hyderabad, A.I.R. 1998 A.P. 302).
(12) Right to electricity and water (Maulvi Masood Ahmed Vs State of J&K,
A.I.R. 1997 J&K 75) and (Putappa Hannapa Talwar Vs Deputy
Commissioner, Dharwad, A.I.R. 1998 Karnataka 10).

Right to Livelihood- it is an important question that whether right to livelihood is

included in the right to life and personal liberty under Article 21? Although Article
21 does not clearly mention about it, but the decision of Supreme Court had led to
believe that right to livelihood is a part of Article 21.

‘Consumer Education and Research Centre Vs Union of India (A.I.R. 1995

S.C. 922)- Supreme Court held that providing better sources of livelihood is part of
article 21.

Right to fair hearing and speedy trial- in changing circumstances, our courts
have included fair hearing trial ad speedy trial in the right to life and personal
liberty under Article 21.

‘State Vs Maksudan Singh (A.I.R. 1986 Patna 38)- Patna Court said that the right
to life and personal liberty has extended to the matters of speedy trial.

Right to Free Legal Aid- Now, right to free legal aid has also been considered to
be part of right to life and personal liberty under Article 21. Although, free legal
aid has not been given place in Article 21, rather it is mentioned in Article 39 A
(Directive Principles of State Policy); but judicial decision have given it the
position of fundamental right.

‘M.H. Haskot Vs state of Maharashtra (A.I.R. 1978 S.C. 1548)- Supreme Court
clearly said that- “It is the duty of state to provide free legal aid to poor, not a
relief.”

Procedure established by law- it is noteworthy that right to life and personal

liberty is not absolute. It can be restricted or withdrawn by ‘procedure established
by law, i.e. a person may be devoid of right to life and personal liberty by
procedure established by law. The expression ‘procedure established by law’ is
similar to the expression ‘Due process of law’ mentioned in American
Constitution.
But, such law must be in accordance to the principles of natural justice and be
reasonable no one can be devoid of his right owing to an arbitrary law.

‘A.K. Gopalan Vs State of Madras’ (A.I.R. 1952 S.C. 27)- Supreme court while
ratifying it said that “Procedure established b y law must be reasonable, justifiable
and according to principles of natural justice.”

Qs: Article 22?

Ans: Article 22 of the Constitution provides for protection against arrest and
detention.

Article 22 provides two types of protection-

1) Protection regarding arrest under the ordinary law of crime; and

2) Protection against detention under preventive detention laws.
(1) Protection regarding arrest under the ordinary law of crime- article 22 (1)
and (2) provides for protection against arrest under the ordinary law of crime.
According to it-

“A person who has been arrested shall be informed ‘as soon as’ may be of ground
of arrest and shall have the right to consult and to be represented by a lawyer of
his own choice.”

“Every person who has been arrested and detained in custody, shall be produced
before the nearest Magistrate within 224 hours of his arrest, excluding the time
taken to reach the Magistrate from the place of arrest and no detention beyond 24
hours except by order of the Magistrate.”

Above analysis shows three types of protection against general arrest-

I. Right to be informed of the reason of arrest;

II. Right to consult with a lawyer of his own choice; and
III. Right to be produced before a magistrate within 24 hours of arrest.
(i) Right to be informed of the reason of arrest- the person so arrested has
the first right to be informed of the grounds of arrest. No one can be detained
without being informed of the grounds of arrest.
‘State of M.P. Vs Shobharam (A.I.R. 1966 S.C. 1910)- it is said to the extent that
the right of being informed of the grounds of arrest is not dispensed with by
offering to make bail to the arrested person.

(ii) Right to consult a lawyer- the arrested person has the right to consult and
be represented by a lawyer of his own choice. If any accused or arrested
person is poor and is incapable to employ any lawyer owing to poverty, then
such person has the right to have free legal aid and appoint any lawyer at the
expenses of the state.

In India, ‘Kalaben Kalabhai Desai Vs Alabhai Kkarmashi Bhai Desai’ (A.I.R.

2000 gujrat 232)- informing the person with the right to free legal aid is the
responsibility over ‘Bar and Bench.’

(iii) Right to be produced before magistrate within 24 hours- the third right
of a arrested person is that he must be produced before a magistrate within
24 hours of his arrest except the travel time. The arrested person cannot be
detained in custody for more than 24 hours without the order of the
magistrate.

‘Joginder Kumar Vs state of U.P. [(1994) 4 S.C.C 260]- Supreme Court issued
certain directions to prevent the arbitrary behaviour of police at the time of arrest-

(a) The family or the friends of the arrested person shall be informed of the
arrested person, and
(b) The police officer shall inform the arrested person of his rights.
(2) Protection against detention under Preventive Detention laws- the facility
of arrest and detention under preventive detention laws is an important feature
of the Constitution of India. Such arrest or detention is different from general
arrest or detention. Such arrest or detention is made mainly to prevent
apprehension of offences and in the national interest.

‘A.K. Gopalan Vs State of Madras’ (A.I.R. 1950 S.C. 27) and ‘R.B. Rajbhar
Vs State of West Bengal’ (A.I.R. 1975 S.C. 623)- Supreme Court said that –“IN
comparison to individual freedom, the national interest shall supercede. National
interests cannot be sacrificed for individual freedom.”
 In our country, preventive detention laws have been made from time to time, like
Preventive Detention Act, 1950; Internal Security Act 1971; National Security
Act, 1980; Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) etc.

Article 27(7) mention certain protection to present the misuse of these laws,
namely-

(i) Review by Advisory Board;

(ii) Communication of grounds of detention dentenue;
(iii) Dentenue’s right of representation;
(iv) Procedure of Advisory Board.
(i) Review by Advisory Board- it is kept under the review powers of advisory
board to restrict the misuse of preventive detention. Board is constituted by
the judges of the High court. Advisory board submits its report after
considering the relevancy of causes of detention.

‘Shibbanlal Vs State of U.P.’ (A.I.R. 1954 S.C. 179)- Supreme Court held that if
the advisory board is of the opinion that there are no sufficient reasons of
detention, then the government has to withdraw the order of detention.

(ii) Right to know the reason of detention and arrest- Article 22(5) provides
the right to know the grounds of arrest and detention. According t it, it shall
be the duty of authority ordering detention that it shall communicate the
grounds of detention to detenue.
(iii) Right to present representation- Article 22(5) provides that it is the duty
of authority ordering detention to inform about this right of representation.

‘State of Maharashtra VS Santosh Shankar Acharya’ (A.I.R. 2000 S.C. 2504)-

Supreme Court said that it is the duty of competent authority to inform the detenue
of his right of representation. If the competent authority does not inform, it shall be
violation of Article 22(5).

Qs: right to freedom of religion 25-28

Ans: An important feature of our Constitution is its being secular state. Preamble
of the Constitution presents India as a secular state. Several times, a question arises
what is meant by secular state?

‘Perunna Chilbiranar Vs State of Tamil Nadu’ (A.I.R. 1986 Madras 83)- the
word ‘secular’ has been defined as- ‘Secular state means not with irreligious or
astheistic but with such state which does not have any particular religion.’
Similarly, ‘S.R.Bommai Vs Union of India’ (A.I.R. 1994 S.C. 1918)- It was held
that-“Secularism is positive concept to treat equally all religions and religious
denomination.” India has adopted this concept.

Freedom of Religion- Article 25 of the Constitution provides that; “ll persons are
equally entitled to freedom of conscience and the right freely to profess, practice
and propagate religions.”

Thus, it is clear that Article 25 provides every person with-

(i) Freedom of conscience; and

(ii) Right to freely profess, practice and propagate any religion.

Every person has the freedom to follow any religion as per his conscience. He has
the freedom to worship any religion, perform rituals and religious practices,
ceremonies etc. and communicate his religion to others. State cannot impose any
particular religion. In other words, it can be said that India has no state religion.

‘B. Emanual Vs State of Kerala (A.I.R. 1986 Kerala 32 : A.I.R. 1987 S.C. 748)-
The question was the compulsion to sing ‘National Anthem’ in a school. A person
of particular religion community challenged on the ground that any student cannot
be compelled to sing National Anthem in schools. It is noteworthy that Kerala
High Court dismissed the petition. But, Supreme Court accepted the petition
(appeal) by giving religion priority over National Anthem.

Thus, it is clear that India has given due importance to freedom of religion, hence it
is a secular state.

‘Church of God in India Vs K.P.Megastic Colony Welfare Association (A.I.R.

2000 S.. 2773)- Noise pollution at religious places was held to be prohibited.
 Not only this, polygamy, Devdasi custom, sati custom, etc. in the name of
religion can be restricted or prohibited. In all, intention is that freedom of religion
can be regulated by state.

Freedom of Management of religious activities- Article 26 says that every

religions community or its section shall have the following rights-

(a) To establish and maintain institution for religious and charitable purposes;
(b) To manage its own affairs in matters of religion;
(c) To own and acquire movable and immovable property;
(d) To administer such property in accordance to law.

Every religions community has the right to manage its affairs. Methods of worship,
religious ceremonies, etc. are part of religious activities (Venkatraman Vs State
of Mysore, A.I.R. 1958 S.C. 255).

Freedom of Taxes- Article 27 provides another important right regarding freedom

of religion. According to it, no person shall be compelled to pay any tax for the
promotion or maintenance of any religion.

Commissioner, H.R.E. Vs L.T. Swamiyer (A.I.R. 1954 S.C. 282)- Supreme

Court held that state cannot impose taxes for the development of any religion. State
cannot also spend money recovered as a tax, on any particular religion. It proves
secularism of state.

Prohibition of Religious Instruction in State aided Institutions- Article 28 of

the Constitution provides that-

(i) No religious institution shall be imparted in any educational institution

wholly maintained out of state funds.
(ii) No person attending any educational institution recognised by the state or
receiving aid out of state funds shall be required to take part in any religious
instruction that may be imparted in such institution or to attend any
religious worship that may be conducted in such institution or to any
premises attached there to unless such person or if such person is a minor
his guardian has given his consent thereto.
 ‘D.A.V. College, Jalandhar Vs State of Punjab [(1971)2 S.C.C. 269]- it was
said that, “if any syllabus contains preaches of Guru Nanak, it does not mean to
propagate any religion, rather it is only research and educational study of the life
and teaching of Guru Nanak.

Thus, every person of India has been provided the right to freedom of religion
subject to some restrictions under Article 25 to 28 of the Constitution.

Qs: Article 29 and 30.

Ans: Article 29 and 30 of that Constitution mention about educational and cultural
rights. It mainly includes the arrangements made for protection of interest of
minorities. Article 29 is related to minorities to establish and manage educational
institution.

Firstly, ‘Minority, is to be understood. It has not been defined in the constitution.

Generally, minorities means such class which is based on its own language, script
or culture and whose population in state is in minority.

‘D.A.V. College Vs State of Punjab’ [(1971 (2)S.C. 269] it was said that any
class is minority or not, shall be determined considering the population of the state
as a whole.

Protection of Interest of Minorities- .Article 29 providess for protection of

interest of minorities. It can be divided into two types-

i. Any section of the citizens residing in any part of India having a distinct
language, script or culture, shal have the rght to conserve the same, i.e.
language, script or culture.
ii. No citizen shall be denied admission into any educational institutions
maintained by the state or receiving aid out of state fnds on ground of
Religion, race, caste, language or any of them.

Article 29 (1) provides right to conserve language, script or culture. They may be
protected in any way. Political movement may be assisted for the protection of
language.
‘Jagdev Singh Vs Pratap Singh’ (A.I.R. 1965 S.C. 183)- it was said that if any
one is called opposer of arya samaj and Hindi language during elections and uses
Om flag during meetings, then it is not unconstitutional.

Article 29(2) prohibits restriction on admission in educational institution

maintained by states or receiving state aid on the basis of religion, caste, race and
language or any of them.

‘State of Bombay Vs Bombay Education Society’ (A.I.R. 1954 S.C. 561)- it was
said the any person cannot be prevented admission on the basis of language. If
person not knowing English is prevented from admission in an English medium
school, it shall be unconstitutional.

Article 29(2) clarifies one more thing. A person has the right to admission in
educational institution as a citizen, not as a member of any group. The provision of
this article apply to all whether majority or minority.

Right to establish and manage educational institutions- article 30 provides that

all minorities whether based on religion or language shall have the right to
establish and administer education institution of their choice.

In Re ‘Kerala education Bill’ (A.I.R. 1958 S.C. 956) and ‘Jugul Kishore Kedia
vs State of Assam’ (A.I.R. 1988 Guwahati 8)- it was held that Article 30 actually
ratifies the right provided by Article 29(1) and gives it a material form, i.e. protects
the language, script and culture of minorities.

Provisions of Article 30 applies to institution established prior and subsequently,

both types, to the enforcement of Constitution. (In Re Kerala Education Bill,
A.I.R. 1958 S.C. 956).it is noteworthy that removal of fundamental right of
property from Article 31 and 19(1) (h) has not affected the rights under Article 30.

Ahemdabad St. Xaviers College Society Vs State of Gujarat [91974) 1 S.C.

717].later, Gujarat university (Amendment) Act, 1972 provided that election of
members of management body of college and management of selection committee
shall not be done by petitioner society but by some other body. Supreme Court
held it to be violative of Article 30(1) and held it unconstitutional because-

(a) It effects the right to administer;

(b) Outside persons get entrance in administration of the institution,
(c) The power of vice chancellor may become arbitrary.

Aid by State- Article 30(2) provides that state cannot make discrimination in the
matter of granting of aid to any educational institution on the ground that it is
managed by a religious minority or linguistic minority.

‘Sidhrajbhai Vs State of Bombay- (A.I.R. 1963 S.C. 540)- it was called actual
right of Minorities.

Qs: Article 32 and 226

Ans: The Supreme Court of India is a vigilant guard of fundamental rights of

citizens. It is supreme custodian of fundamental rights. Article 32 of Constitution
provides for writs for the enforcement of fundamental rights. Similar jurisdiction is
available to High Courts under Article 226. Actually, the jurisdiction of High
Courts is issue writ is more wide than that of Supreme court. High court can issue
writ for ‘other purpose’ alongwith fundamental rights, whereas Supreme Court can
only issue writ for the enforcement of fundamental rights.

Types of Writ- as per Article 32(2) and article 226 (1) of the Constitution, the
supreme Court ca issue five types of writs-

(1) Habeas corpus

(2) Mandamus
(3) Prohibition
(4) Certiorari, and
(5) Quo-Warrant.
(1) Habeas Corpus- it is the most important and prevailent writ. Its main object is
to let free illegally detained person. It literally means-“Produce the detained
person before the court”. ‘P.S.Sadashiv Swami Vs State of Tamil Nadu’
(A.I.R. 1974 S.C. 2271)- the Supreme Court gave this meaning to this writ, the
court-
(i) Ask the causes of detention from the person by whom another person is
detained asked;
(ii) Order calling the person detained to b e produced before the court;
(iii) Will order for releasing him if the detained person is detained illegally.

The petition of Habeas Corpus shall be presented by such person whose legal
rights are violated.

(2) Mandamus- it literally means- “We order”. The writ is issued when there is
failure in the performance of legal duty by public authority, government,
corporation or person. In such situation, the court orders for the performance of
legal duties. A.T.Marcos in his book ‘Judicial Control of Administration in
India’ has said by clearing the meaning of writ that writ is issued order to
performance of legal duties or non-performance of illegal acts.

‘Mani Shobhraj Jain Vs State of Haryana’ [(1977)1 S.C.C. 486]- requirements

of Mandamus writ are described. According to it, following conditions for issue of
Mandamus writ are required to be fulfilled-

(i) Existence of legal right,

(ii) Such legal right should be enforceable by court,
(iii) The enforcement of such right imposes responsibility of performance of any
duty over any person, public authority, corporation or government.
(iv) Such duty is of public nature.

Mandamus writ cannot be issued in following conditions-

(a) Compel state government to use its power.

(b) Against private person and institution,
(c) Performance of contractual duties,
(3) Prohibition- prohibition writ issued by the courts to its subordinates courts
under following situation-
(i) When subordinate court acts beyond its jurisdiction, or
(ii) Uses jurisdiction which is not vested,
(iii) Act contrary to the rules of natural justice.

‘Govind Menon Vs union of India (A.I.R. 1967 S.C. 1274)- it was held that
prohibition writ may be issued under following two situation-

(i) Where the work is done beyond its jurisdiction; or

(ii) Where the work is done without having any jurisdiction.
(4) Certiorari- certiorari writ is similar to prohibition wit. This writ may be issued
in following three situations-
(i) When court acts in absence of jurisdiction or beyond its jurisdiction; or
(ii) When court ignores the principles of natural justice; or
(iii) When any defect is apparent on the record.

‘Hari Vishnu Kaamath Vs Ahmed Ishaq’(A.I.R. 1955 S.C. 233).

Finally, this writ can be issued where principles of natural justice are not
followed, i.e.-

(a) Where parties have not been provided reasonable opportunity of hearing; or
(b) Court has not been impartial in its decision.

There are two formulas of impartiality (without bias)-

(i) No one can be judge in his own case, and

(ii) Justice must not only be delivered, but should also appear being done.
(5) Quo-Warrants- it literally means- ‘What is your authority’ this writ is issued
in such matters where any person is holding public post illegally. Such person
is asked that under what authority he holds the office. Actually, this writ
prevents person to hold an office which he is not legally entitled to hold.

In matters of ‘Jamalpur Arya Samaj Vs Dr. D. Ram’ (A.I.R. 1954 Patna 297)
and ‘University of Mysore Vs Govind Rao’ (A.I.R. 1965 S.C. 491)-
requirements of this writ are highlighted. This writ can be issued in following
circumstances-

(i) When disputed post is public post; and

(ii) If it is hold by a person without legal authority.

Thus, Article 32 and 266 of the constitution provide wide and important
jurisdiction to Supreme Court and High Court.

Qs: directive principles of state policy.

Ans: part 4 of the constitution mentions about Directive principles of state. Several
tomes a question arises that what is similarity, i.e. relation between fundamental
rights under Part 3 Directive Principles under Part 4 and what are the differences
between two, if any.

Difference- firstly, we should consider the difference between fundamental rights

and Directive principles. The biggest difference is their implementation. We know
that fundamental rights are enforceable by court. If any fundamental right of any
person is breached then he can present a petition for writ to Supreme court and
High Court under Article 32 and 226 respectively for their enforcement. The
Supreme court and High Court are the custodian of fundamental rights.

But, on the other hand Directive principles of state are not enforceable by courts
i.e. they cannot be implemented by courts. Article 37 specifies that, “Provision laid
down in the Directive principles of state are not enforceable by any court but still
there elements are basis of the governance of the country and it shall be duty of
state to implement these elements in law-making.”

Hence, it is clear that the fundamental rights are enforceable by the court whereas
the directive principles of state policy are not enforceable.

“State of Madras Vs Chmpakam Dorairajan” (A.I.R. 1951 S.C. 228)- the

supreme court held that when contradiction arises between fundamental rights and
directive principles, then fundamental rights shall supersede over directive
principles. When fundamental rights are enforceable by court, then directive
principles which are not enforceable, cannot supersede fundamental right.

Relation- the fundamental rights and directive principles although having above
differences, are considered to be supplementary to each other. The Directive
principles though are not enforceable by law, but still Democratic state cannot
ignore them-