CONSTITUTION LAW – 1

UNIT- 1

Q.No.1. Define Constitution. Explain the classification of Modern Constitutions.

# Meaning and Definition of Constitution:

The term Constitution is derived from the term denoting an important or supreme law.

A Constitution is a set of Rules or Fundamental Principles for the Government. It is a written document that
enumerates (lists) and limits the power and functioning of a political entity. The term Constitution can be applied
to any overall system that defines the functioning of a government, including un-codified historical constitutions
that existed before the development of modern codified constitutions.

A Constitution in general limits the government's power, and guarantees certain fundamental rights to its people.
It does not want political interference in the ordinary life of the citizens. There shall be the highest court to
safeguard the fundamental rights of the citizens. Every constitution possesses certain fundamental principles, the
structure of polity, procedures, etc.

The Constitution consists of three different levels of organizations. The Executive, the Legislative, and the
Judiciary. Each of them has its sphere, and one should not encroach into another’s sphere. Each has its duties and
obligations. The powers of each level are defined appropriately and exactly in the Constitution.

The constitution is the mother of all laws in a nation. It has supremacy over ordinary statute law. No statutory
law should overtake the constitution.

There shall be the Supreme Court for the entire country which interprets and rectifies the defects in the levels of
the organizations from time to time. The court can issue writs of Habeas Corpus, Mandamus, Prohibition, and Quo
Warranto to protect the interest of the citizens.

The legislative bodies i.e., the Parliament and the State Legislatures, should obey the judgments/ directions of the
Supreme Court. However, the Parliament can amend the Constitution if it does not want to obey the Supreme
Court’s judgment or direction.

# Classification of Constitutions:

The constitutions are primarily divided into two categories, the Written Constitutions/ Codified Constitutions and
the Un-written Constitutions/ Un-codified Constitutions.

A codified constitution is one that is contained in a single document, which is the single source of constitutional
law in a State. An un-codified Constitution is one that is not contained in a single document and consisting of
several different sources which may be written or unwritten.

The Constitutions also be divided into four other categories, viz., the Federal Constitutions, the Confederal
Constitutions, the Unitary Constitutions, and the Quasi-Federal Constitutions.

i. Federal Constitutions:
In this classification, there shall be one Federal Constitution and as many as the State/Unit Constitutions. Each of
the States/Units enjoys sovereignty in their respective legislative and political sphere. The Federation could not
interfere in the States/Units in certain matters.

The Federal State has a central structure with utmost a small amount of territory mainly containing the
institutions of the Federal Government, and several regions (called the States, provinces, etc.,) which comprise
the territory of the whole State. Sovereignty is divided between the center and the constituent regions.

Ex: USA and Canada

ii. Confederation Constitutions:

Two or more independent States may join to form a Confederation. Each of the States may withdraw from the
confederation as its wish. A confederation State again comprises of several regions, but the central structure has
only limited coordinating power, and sovereignty is located in the regions.

Ex: Singapore joined the Confederation of Malaysia in 1963, but within two years, in 1965, is withdrawn from the
confederation.

iii. Unitary Constitutions:

There shall be one Central Government and all the State Governments which are subordinate to it. All the powers
of a Government are concentrated with the Central authority.

Ex: United Kingdom

iv. Quasi-Federal Constitutions:

The Indian Constitution is the best example of this category. It has both federal and unitary nature of
Constitutions.

According to Brownson, a Jurisprudent and Political Philosopher, there are three Constitutions.

a. The Constitution of Nature: it includes all of what was called “Natural Law”.
b. The Constitution of Society: it includes an unwritten and commonly understood set of rules for the society
formed by a social contract before it establishes a government.
c. The Constitution of Government: from the set of rules established by the Constitution of Society, the third
type, i.e., the Constitution of Government is established.

Each Constitution must be consistent with and derive its authority from the ones before it, as well as from a
historical act of society formation or constitutional ratification.

Brownson argued that a Constitution is a society with effective dominion over a well-defined territory, that
consent to a well-designed Constitution of Government arises from the presence on that territory, and that
provisions of a written Constitution of Government can be “unconstitutional” if they are inconsistent with the
Constitutions of Nature or Society. It is not ratification alone that makes a written constitution of government
legitimate but it must also be competently designed and applied.
Q.No.2. Discuss the Salient Features of Indian Constitution.

Introduction:
The Constitution of India is the supreme law of India. It is a living document, an instrument which makes the
government system work. It lays down the framework defining fundamental political principles, establishes the
structure, procedures, powers and duties of government institutions and sets out fundamental rights, directive
principles and the duties of citizens. It is the longest written constitution of any sovereign country in the world,
containing 448 articles in 25 parts, 12 schedules, 5 appendices and 101 amendments (out of 120 Constitution
Amendment Bills). Dr. Bhimrao Ramji Ambedkar is widely regarded as the architect of the Indian Constitution. The
Constitution follows parliamentary system of government and the executive is directly accountable to the
legislature. The Constitution was adopted by the India Constituent Assembly on 26 November 1949, and came
into effect on 26 January 1950.

Meaning of Constitution:
A constitution is a set of fundamental principles or established precedents according to which a state or other
organization is governed. A Constitution means a document having a special legal sanctity which sets out the
framework and the principal functions of the organs of the Government of a State and declares the principles
governing the operation of those organs.

Salient Features of Indian Constitution:

1. A Written Constitution
The Indian Constitution is mainly a written constitution. A written constitution is framed at a given time and
comes into force or is adopted on a fixed date as a document. As you have already read that our constitution was
framed over a period of 2 years, 11 months and 18 days, it was adopted on 26th November, 1949 and enforced
on January 26, 1950. Certain conventions have gradually evolved over a period of time which have proved useful
in the working of the constitution. The British Constitution is an example of unwritten constitution. It is to be
noted though, that a written constitution is ‘mainly’ an enacted document, there could be bodies or institutions
which may not be included in the constitution but form an important part of governance.

2. The lengthiest Constitution in the World:

The Indian constitution is the lengthiest in the world. The original constitution had 395 Articles divided into 22
Parts and 12 Schedules, while, the constitution of USA has only 7 Articles. The framers of the Indian Constitution
have gained experience from the working of all the known Constitution of the world. They were aware of the
difficulties faced in the working of this Constitution. The Indian Constitution lays down the structure not only of
the Central Government but also of the State. The vastness of the Country and peculiar problems relating to the
language have added to the bulk of the constitution. The Constitution contains a long list of Fundamental Rights
and also a number of Directive Principles.

3. Parliamentary form of Government

India has a parliamentary form of democracy. This has been adopted from the British system. In a parliamentary
democracy there is a close relationship between the legislature and the executive. The Cabinet is selected from
among the members of legislature. The cabinet is responsible to the latter. In fact the Cabinet holds office so long
as it enjoys the confidence of the legislature. In this form of democracy, the Head of the State is nominal. In India,
the President is the Head of the State. Constitutionally the President enjoys numerous powers but in practice the
Council of Ministers headed by the Prime Minister, which really exercises these powers. The President acts on the
advice of the Prime Minister and the Council of Ministers.

4. A Combination of Rigidity and Flexibility:

The Indian Constitution is a unique example of combination of rigidity and flexibility. A constitution may be called
rigid or flexible on the basis of its amending procedure. In a rigid constitution, amendment of the constitution is
not easy. The Constitutions of USA, Switzerland and Australia are considered rigid constitutions. While, the British
Constitution is considered flexible because amendment procedure is easy and simple. The Constitution of India
provides for three categories of amendments. In the first category, amendment can be done by the two houses of
Parliament simple majority of the members present and voting of before sending it for the President‘s assent. In
the second category amendments require a special majority. Such an amendment can be passed by each House of
Parliament by a majority of the total members of that House as well as by the 2/3rd majority of the members
present and voting in each house of Parliament and send to the President for his assent which cannot be denied.
In the third category besides the special majority mentioned in the second category, the same has to be approved
also by at least 50% of the State legislatures. Thus, you see that the Indian Constitution provides for the type of
amendments ranging from simple to most difficult procedure depending on the nature of the amendment.

5. Fundamental Rights and Fundamental Duties

Every human being is entitled to enjoy certain rights which ensure good living. In a democracy all citizens enjoy
equal rights. The Constitution of India guarantees those rights in the form of Fundamental Rights. Fundamental
Rights are one of the important features of the Indian Constitution. The Constitution provides for six Fundamental
Rights about which you will read in the following lesson. Fundamental Rights are justiciable and are protected by
the judiciary. In case of violation of any of these rights one can move to the court of law for their protection.
Fundamental Duties were added to our Constitution by the 42nd Amendment. It lays down a list of ten
Fundamental Duties for all citizens of India. While the rights are given as guarantees to the people, the duties are
obligations which every citizen is expected to perform.

6. Directive Principles of State Policy

The Directive Principles of State Policy which have been adopted from the Irish Constitution, is another unique
feature of the Constitution of India. The Directive Principles were included in our Constitution in order to provide
social and economic justice to our people. Directive Principles aim at establishing a welfare state in India where
there will be no concentration of wealth in the hands of a few.

7. Independence of Judiciary
India has a single integrated judicial system. The Supreme Court stands as the apex court of the judicial system.
Below the Supreme Court are the High Courts. The High Courts control and supervise the lower courts. The Indian
judiciary, thus, stands like a pyramid with the lower courts as the base, High Courts in the middle and the
Supreme Court at the top. Indian judiciary is independent an impartial. The Indian judiciary is free from the
influence of the executive and the legislature. The judges are appointed on the basis of their qualifications and
cannot be removed easily.

8. Single Citizenship
In a federal state usually the citizens enjoys double citizenship as is the case in the USA. In India there is only
single citizenship. It means that every Indian is a citizen of India, irrespective of the place of his/her residence or
place of birth. He/she is not a citizen of the Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which
he/she may belong to but remains a citizen of India. All the citizens of India can secure employment anywhere in
the country and enjoy all the rights equally in all the parts of India.

9. Universal Adult Franchise

Indian democracy functions on the basis of ‗one person one vote‘. Every citizen of India who is 18 years of age or
above is entitled to vote in the elections irrespective of caste, sex, race, religion or status. The Indian Constitution
establishes political equality in India through the method of universal adult franchise.

10. Emergency Provisions

The Constitution makers also foresaw that there could be situations when the government could not be run as in
ordinary times. To cope with such situations, the Constitution elaborates on emergency provisions. There are
three types of emergency; a) emergency caused by war, external aggression or armed rebellion; b) emergency
arising out of the failure of constitutional machinery in states; and c) financial emergency.
Q.No.3. Discuss the legal position and significance of the preamble of the constitution of India with decided
cases.
Introduction:
Every constitution begins with a preamble. Accordingly, our constitution also begins with a preamble. The word
preamble is a Latin term which means ―to go before, ―introduction to important statute. Preamble says briefly
about the objects, purpose intended to be served by the statute. The preamble represents the aspirations of the
people of India.
The preamble to an Act sets out the main objectives which the legislation is intended to achieve. It is a sort of
introduction to the statute and many a time very helpful to understand the policy and legislative intent. In
Berubari case, the Supreme Court observed ― the preamble to the constitution is a key to open the minds of the
makers and shows the general purpose for which they made the several provisions in the constitution.
In other words it reflects the aspiration of the framers of our constitution with regard to the establishment of a
welfare state in India, and embodies the urge of our people to unite them to build up a new nation which will
ensure justice, liberty, equality and fraternity to its citizens.

The Preamble declares:

We the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular
Democratic Republic and to secure to all its citizens:
Justice, Social, Economic and Political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and opportunity‖ and to promote among them all;
Fraternity assuring the dignity of the individual and the unity and the integrity of the Nation.

In our constituent Assembly this twenty- sixth day of November- 1949 do hereby adopt, enact and give to
ourselves this constitution.

SIGNIFICANCE OF THE PREAMBLE:

The significance of the preamble as follows:
1. We the people of India:
The phrase ―we the people‖ has taken from the constitution of U.S.A. this means that the constitution of India
has been framed and enacted by the people of India. The power to make the constitution had been achieved by
the people of India with great efforts. It was not derived by any authority under the constitution of India.
2. Sovereign State:
India declared by the preamble itself as ‗Sovereign‘. The word sovereign means supremacy of the nation.
Sovereign power is also described as that power which is absolute and uncontrolled. Both internally and
externally India is sovereign. India at present is not under the control of any other nation as it maintains its own
sovereignty.
3. Socialistic:
This is a new term inserted in the constitutional 42nd Amendment Act 1976. The term socialist used in the
preamble of our constitution signifies that the constitution of India adopts socialistic pattern of society. That is, a
form of ownership and control of the means or factors of production and distribution by the economy in the
interests of the society as a whole and to ensure fair and equitable distribution of the wealth of the country.
4. Secular:
Secularism is the basic structure of the constitution. Our Government respects all religions. It does not uplift or
degrade any particular religion. The word secular used in the preamble of our constitution suggests that India is a
secular state that is in India, no religion is recognised as religion of the state.

5. Democracy:
The term ‘Democratic‘ used in the preamble of our constitution, signifies that the government gets authority from
the will of the people. That is, the rulers are elected by the people, and are responsible to the people. The real
powers are in the hands of the people. Every citizen of India who is aged 18 years and above, is entitled to vote,
irrespective of his caste, religion, race, economic position, language. Democracy is failed in our neighboring
countries; it is very successful in our country.
6. Republic:
The term Republic used in the preamble of our constitution signifies that India has elected representatives as the
head of the state. The president of India is the elected head of the state. The President of India is not a hereditary
monarch. He is an elected person, chosen for a limited period, usually for 5 years.

7. Justice:
The preamble intends that the justice must be given to every citizen irrespective of poverty, richness, caste, race,
religion, sex, political power. Justice aims at the attainment of common good. Justice includes social economic
and political justice. Social justice implies that all citizens are treated alike irrespective of their caste, creed,
religion etc. economic justice means treating the rich and the poor equally. Political justice means equal right to
all citizen in the political process without any discrimination.
8. Liberty:
Liberty implies the creation of conditions necessary for the fullest development of the personality of an individual
which is essential for social progress. Liberty is one of the pillars of the democratic system. Liberty implies liberty
of thought, expression, belief, faith and worship.
9. Equality:
Equality means equality of status and of opportunity. As all human beings are born equal, they should be
provided equal opportunities in all walks of life under equal circumstances. Equality ensures equal protection of
law.
10. Fraternity:
Fraternity means the spirit of brotherhood among all the sections of the people of India. Fraternity is necessary to
ensure both the dignity of the individual and the unity and integrity of the nation.

SOME OF THE LEADING CASES RELATING TO SIGNIFICANCE OF THE PREAMBLE:

1. In Beru Bari Case, the Supreme Court held that the preamble was not a part of the constitution, and so, it
could never be regarded as a source of any substantive powers. It has limited application and can be resorted to
where there is any ambiguity in the statute. If the terms used in the constitution are ambiguous or capable of two
meanings in interpreting them some assistance may be taken from the objectives enshrined in the constitution.

2. In Keshavananda Bharati Case, the Supreme Court rejected the above view and held that the preamble is the
part of the constitution. All importance has to be attached to the preamble in a constitution should be read and
interpreted in the light of the grand and noble vision expressed in the preamble.

3. In Indira Gandhi V/S Raj Naraian

Indira Gandhi, the then Prime Minister and Raj Naraian were the rivals in a General Elections of Parliament. Raj
Narain filed a case against her contending that she misappropriated her power in the elections. The Allahabad
High Court quashed the election of Indira Gandhi as void. To protect the seat of Prime Minister ship, the
Parliament inserted Article 329-A protecting Prime Minister and Speaker from any election disputes and
guaranteed for their term. The Supreme Court held that certain provision of Article 329- A is against the Basic
Structure Theory, and it is against the essential element of ―Democracy‖ mentioned in the preamble. The
Supreme Court, therefore, struck down certain provisions Article 329- A as unconstitutional.

Q.No.4. Can Preamble be Amended?

Almost in every constitution there is a preamble, which provides the objectives, purposes, nature, & scope of the
constitution. The Preamble of the Indian Constitution is nothing but in short an introduction of the Indian
constitution and therefore, it is treated as a part of the Constitution. The Preamble is used to interpret the
provisions of the constitution in case of disputes.
The question was raised for the first time before the Supreme Court in the historic case of Keshav Nand Bharti vs
State of Kerala. In this case the Attorney General argued that by virtue of the amending power in Article 368 even
the Preamble can be amended. It was said that since the Preamble was a part of the Constitution it could be
amended like any other provisions of the constitution. The petitioner however, contented that be amending
power in article 368 is limited. Preamble creates an implied limitation on the power of amendment. The Preamble
contains the basic elements or the fundamental feature of our constitution. Consequently, amending power
cannot be used so as to destroy or damaged these basic features of mentioned in the Preamble. It was argued
that preamble cannot be amended as it is not a part of the constitution. The supreme court however, held that
the Preamble is part of the constitution and therefore, on this point the Beruberi opinion was wrong.

On the question whether the Preamble can be amended the majority held that since the Preamble is the
part of the Constitution it can be amended but subject to this condition that the" basic features" in the Preamble
cannot be amended. The Court said, "The edifice of our constitution is based upon the basic elements mentioned
in the Preamble. If any of these elements removed the structure will not survive and it will not be the same
constitution or it cannot maintain its identity.

The Preamble declares that the people of India resolved to constitute their country into a sovereign
democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner. An
amending power cannot be interpreted so as to confer power on the Parliament to take away any of these
fundamental and basic characteristics of policy." It is submitted that this view of the court is correct. The
amendment power cannot change the constitution in such a way it is ceases to be a sovereign, democratic,
republic, it can only be done by wrecking constitution.

SOME OF THE LEADING CASES RELATING TO SIGNIFICANCE OF THE PREAMBLE:

1. In Beru Bari Case

The Supreme Court held that the preamble was not a part of the constitution, and so, it could never be regarded
as a source of any substantive powers. It has limited application and can be resorted to where there is any
ambiguity in the statute. If the terms used in the constitution are ambiguous or capable of two meanings in
interpreting them some assistance may be taken from the objectives enshrined in the constitution.

2. In Keshavananda Bharati Case

The Supreme Court rejected the above view and held that the preamble is the part of the constitution. All
importance has to be attached to the preamble in a constitution should be read and interpreted in the light of the
grand and noble vision expressed in the preamble.

3. In Indira Gandhi V/S Raj Naraian

Indira Gandhi, the then Prime Minister and Raj Naraian were the rivals in a General Elections of Parliament. Raj
Narain filed a case against her contending that she misappropriated her power in the elections. The Allahabad
High Court quashed the election of Indira Gandhi as void. To protect the seat of Prime Ministership, the
Parliament inserted Article 329-A protecting Prime Minister and Speaker from any election disputes and
guaranteed for their term. The Supreme Court held that certain provision of Article 329- A is against the Basic
Structure Theory, and it is against the essential element of ―Democracy mentioned in the preamble. The
Supreme Court, therefore, struck down certain provisions Article 329- A as unconstitutional.
Q.No. 5. What is meant by citizenship? Explain the mode of acquisition and termination of citizenship.

Introduction:
The term citizen is used in many contexts in the constitution of India. So, it is necessary to have a detailed
discussion of the term ―Citizenship. The population of a country can be divided into two classes namely
1. Citizens and
2. Aliens.
A citizen of a state is a person who enjoys full civil and political rights. Citizens are different from aliens who do
not enjoy all these rights. Citizenship carries with it certain advantages conferred by the Constitution. Part- II
Articles 5 to 11 of the constitution deals with the Citizenship.

Meaning and Definition of Citizenship:

Citizenship is membership of a society living under the one Government. It confers the status and carries with it
certain privileges of the state. According to Han‘s Kelson, ―Citizenship is a legal status determined by the specific
rights and duties of which the statute is the condition. Citizen of a State is he who has political rights, the duty of
military service and diplomatic protection afford by the state concerned. Citizenship may also be defined as the
legal relationship between an individual and the state under which an individual pledges his loyalty to the state,
and the state offers protection to the individual. Citizenship is confined to only natural or physical persons. It is
not extended to Corporations and juristic persons.

Significance of Citizenship:
It determines the relationship between the state and the citizens. It signifies permanent commitment of an
individual to the country. That is through citizenship, a citizen expresses his loyalty to the nation. In return, the
nation provides protection to the citizen. Citizenship grants to a person the right to vote and the right to contest
in the election. Citizenship provides certain special right i.e., fundamental rights to a person. It provides to a
person an opportunity to hold public offices.

Citizenship Act , 1955

Article 11 of the Constitution expressly empowers the Union Parliament to make a law with respect to the
acquisition or termination of citizenship of India after the commencement of the Constitution and all other
related matters. There being no law in existence with respect to the acquisition and termination of citizenship it
was necessary to make such a law to supplement the provisions of the Constitution. To achieve this object the
Citizenship Bill was introduced in the Parliament. This having been passed by both the Houses of the Parliament
received the assent of the President on 30 th December, 1955. The Indian legislation has enacted the Citizenship
(Amendment) Acts of 1986, 1992, 2003, 2005, 2015 and 2019.

Modes of Acquiring Citizenship:

1. Citizenship at the commencement of the Constitution

A) Citizenship by Domicile (Article 5)
Article-5 of the Constitution deals with the provisions relating to Acquisition of Citizenship by Domicile. Domicile
of a person is his permanent home. No person can be without a domicile and no person may have more than one
operative domicile. National boundaries do not constitute a hindrance in one‘s choice of domicile. This implies
that a person may be national of one country, but his/her domicile may be another country. Domicile denotes the
connection of a person with a territorial system of law. There is only one citizenship, which is of the Union of
India, there is no separate state Citizenship as in the United States of America.
Persons domiciled in the territory of India as on 26 November 1949 automatically became Indian citizens by virtue
of operation of the relevant provisions of the Indian Constitution coming into force, and most of these
constitutional provisions came into force on 26 January 1950.

Every person having domicile in India at the commencement of the constitution and fulfilling the following
condition is the citizen of India.

1) He was born in India

2) Either his parents was born in India
3) Who has been ordinarily resident in India for not less than 5 years immediately preceding the commencement
of the Constitution

The term ‘Domicile’ is not defined in the Constitution. The domicile of a person is in that Country in which he
either has or is deemed by law to have his permanent house. There is a distinction between Domicile and
Residence. Residence alone in a place is not sufficient to constitute domicile. It must be accompanied by the
intention to make it his permanent home. But it is basically a legal concept for the purpose of determining what is
the personal law applicable to an individual, and even if an individual has no permanent home, he is invested with
a domicile by law.

# Classes of Domicile:
1. Domicile of Origin: Domicile of Origin is attached to the individuals by birth.
2. Domicile by Choice: Domicile by Choice is acquired by the residence in territory subject to a distinctive legal
system, with the intention to reside there permanently.

In Pradeep Jain v/s Union of India (AIR 1984 SC 142): In this case the Supreme Court has held that in India Article-
5 recognizes only one domicile i.e., domicile of India. It does not recognise the idea of state domicile. Domicile is
not same thing as residence. Mere residence in a place is not sufficient to constitute domicile. It must be
accompanied by the intention to make it his permanent home.
The concept of ‘domicile’ has relevance to the applicability of municipal laws whether made by the Union of India
or by the States. Two elements are necessary for the existence of domicile: ---
(i) A residence of a particular kind, and
(ii) An intention of a particular kind.

The residence need not be continues but it must be indefinite, not purely fleeing. The intention must be a
permanent intention to reside forever in the country where the residence has been taken up. Domicile is not the
same thing as residence. Mere residence in a place is not sufficient to constitute domicile. It must be
accompanied by the intention to make it his permanent home.

B) Citizen by Migration - (Article 6)

A t the time of independence of India there was large scale Migration of people from Pakistan to
India. And special provisions are made for them under Article 6.
Under Article 6 an immigrant from Pakistan becomes a Citizen of India if:

a) He was born in India, or

b) Either of his parents was born in India. Or
c) Either his grandparents was born in India (as it was prior to Independence) and in addition, fulfillment one of
the following two conditions -

i) In case of migrated to India before 19th July, 1948, he had been ordinarily resident in India
since the date of migration, or
ii) In case of the migrated on or after 19th July 1948, he had been registered as a citizen of India.
A person could be registered only if he has been resident in India for at least 6 months preceding the date of
his application for registration

C) Citizen by registration - (Article 8)

A Person -

 who was born in India

 either of whose parents was born in India, or
 any of whose grandparents was born in India before independence, but who is ordinarily deciding in any
country outside India and Pakistan may register himself as a citizen of India with the diplomatic or consular
representative of India in the country of Residence. It was choice to those who want to acquire Indian citizenship.

2. Citizenship under the Citizenship Act- 1955

A) Citizenship by Birth -
A person born in India on or after 26 January 1950, is a citizen of India by birth except when -

a) His father possesses diplomatic immunity and is not a citizen Indian citizen, or
b) His father is an enemy alien and he is born at the place under any occupation.

B) Citizenship by Descent -
A person born outside India on after 26 January 1951, is citizen of India by descent, if at the time of his birth his
father is an Indian citizen- but

a) When his birth is registered at an Indian consulate, or

b) His father is at the time of his birth on service under Government of India.

Similarly, any person born outside the Territory of undivided India who was or deemed to be a citizen of India at
the commencement of the Constitution is also considered to be a citizen of India by Descent only.

C) Citizenship by registration -
A person, who has not acquired citizenship under the provisions of citizenship Act, 1955, can acquire it by
registration on application made by him subject to the conditions and restrictions that may be prescribed by
appropriate authority. A person who wants to acquire citizenship by registration must fulfill any of the following
conditions -

1) A person of Indian Origin, who ordinarily resides in India and have been so resident for 6 months immediately
before making an application for registration.
2) A person of Indian Origin who ordinarily a resident of any country or place outside undivided India.
3) Women who are have been married to citizen of India.
4) Minor Children of Persons Indian citizens.
5) Persons of full age and capacity who are citizen of U.S.A, Canada, Australia, New Zealand, South Africa ,
Pakistan, Ceylon, Rhodesia and Ireland. These person required to take oath of allegiance before registration.

D) Citizenship by naturalization -
Any person can acquire Indian citizenship by naturalization provided he couples following conditions and who are
full age and capacity and not being to certain specified countries.

a) He should not be a Citizen of a country in which Indian citizen are prevented by law.
b) He must have renounced his earlier citizenship and communicated same to the central government.
c) He should be residing in India or should be in service of Government of India for the full period of 12 months
before making application.
d) During the period of 7 years immediately preceding the above 12 month he should have resided in India
 or should have in service of Government of India for the period of 4 years in the aggregate.
e) He should be a good character.
f) He should intend to reside in India

E) Citizenship by incorporation of territory –

If any new territory becomes a part of India, the Government of India shall specify the persons of the territory to
be citizens of India.

Modes of Terminating Citizenship

The Citizenship Act, 1955 also lays down the three modes by which an Indian citizen, whether a citizen at the
commencement of the Constitution or subsequent to it, may lose his/her citizenship. It may happen in any of the
three ways: renunciation, termination and deprivation.

i. Renunciation Of Citizenship [Section 8]

An Indian Citizen of full age and capacity can renounce his Indian citizenship by making a declaration to that effect
and having it registered. But if such a declaration is made during any war in which India is engaged, the
registration shall be withheld until the Central Government otherwise directs. When a male person renounces his
citizenship, every minor child of him ceases to be an Indian citizen. Such a child may, however, resume Indian
citizenship if he makes a declaration to that effect within a year of his attaining full age, i.e. 18 years.

ii. Termination Of Citizenship [Section 9]

If a citizen of India voluntarily acquires the citizenship of another country, he shall cease to be a citizen of India.
During the war period, this provision does not apply to a citizen of India, who acquires the citizenship of another
country in which India may be engaged voluntarily. If any question arises as to whether, when or how any person
has acquired the citizenship of another country, it is to be determined by such authority and in such manner as
may be prescribed by the rules.

iii. Deprivation Of Citizenship [Section 10]

Deprivation is a compulsory termination of citizenship of India. A citizen of India by naturalization, registration,
domicile and residence, may be deprived of his citizenship by an order of the Central Government if it is satisfied
that:
i. The citizen has obtained the citizenship by means of fraud, false representation or concealment of any
material fact;
ii. The citizen has shown disloyalty to the Constitution of India;
iii. The citizen has unlawfully traded or communicated with the enemy during a war;
iv. The citizen has, within five years after registration or neutralization, been imprisoned in any country for two
years;
v. The citizen has been ordinarily resident out of India for seven years continuously.

Q.No.6. Is Corporation a Citizen?

The Supreme Court in State Trading Corporation v Commercial Tax Officer held that company or corporation is
not a citizen of India and cannot claim fundamental rights. The court said that citizenship is concerned with
natural persons only. The court said that citizenship cannot be conferred upon the juristic persons.

However, the Supreme Court in Cooper v Union of India, also known as Bank Nationalization case, held that a
shareholder of a company should be considered as an Indian citizen and is entitled to the protection given under
Article 19 of the Indian Constitution. The Fundamental rights of the shareholders as citizens should not be
violated by any state action.
In Bennett Coleman Case, the Supreme Court again said that the State Action not only affects the right of
newspapers companies but also of the editors, readers and shareholders. These individuals do have freedom of
speech and expression which should be protected against any unreasonable State action.

In Godhra Electric Co. Ltd v State of Gujarat the court held that a managing director of a company had right to
carry on business through agency of company. The court said that he had right to challenge the constitutional
validity of the concerned enactment. Following Bank Nationalization and Bennet Coleman cases the Supreme
Court in D.C. & G.M. v Union of India, has held that writ petition filed by a company complaining denial of
fundamental rights guaranteed under Article 19 is maintainable. Conclusion The Constitution of India provides for
a single citizenship for the entire country. The provisions relating to citizenship at the commencement of the
Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India. The Citizenship Act enacted by
the Parliament in 1955 provides for acquisition and determination of citizenship.
 UNIT- 2
Q.No.1. Define the term ‘State’ under article 12. Explain with the help of judicial decisions the need for
widening the definition of ‘State’.

Fundamental rights are a group of rights which are guaranteed to all the citizens of the nation by the Constitution
of India under Part III. These rights apply universally to all citizens residing in the nation, irrespective of their race,
place of birth, religion, caste or gender. They are recognized by law as rights requiring a high degree of protection
from the government and they cannot be violated by the Government. Fundamental rights cannot be enforceable
against individuals and private entities. The obligation of protecting these rights lies on the government or the
state or its authorities.

Most of the Fundamental rights provided to the citizens are claimed against the State and its instrumentalities
and not against the private bodies. Article 12 gives an extended significance to the term ‘state’. It is very
important to determine what bodies fall under the definition of a state so as to determine on whom the
responsibility has to be placed.

The framers of the Constitution used the words ‘the State’ in a wider sense than what is understood in the
ordinary or narrower sense. It does not merely mean the states in the Union. The word ‘includes’ in the article
shows that the definition is not exhaustive and through judicial interpretations, the court has widened the scope
of the Article way beyond what even the framers of Article 12 may have had in mind during the framing of the
constitution.

# Meaning of State under Article 12:

Article 12 of the Indian constitution defines the term State, It lays down, In this part, unless the context otherwise
requires, the state includes the Government and Parliament of India and the government and the legislature of
each of the states and all local or other authorities within the territory of India or under the control of the
government of India.

In other words, for the purposes of Part III of the constitution, the state comprises of the following:

1. Government and Parliament of India i.e. the Executive and Legislature of the Union
2. Government and Legislature of each State i.e. the Executive and Legislature of the various States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India

# Analysis of Article-12 of the Constitution with Decided Cases:

1. Government and Parliament of India

The Union Government (Executive) and the Parliament (Legislature) are ‘State’ within the meaning of Article 12.
The President, the Prime Minister, and his Council of Ministers, all the Central Government Departments i.e.
Railways, Postal, Defence, Telephones etc., come under the definition of ‘State’.

The parliament comprises of the President of India, the lower house of the parliament that is the Lok Sabha as
well as the upper house of the Parliament, that is the Rajya Sabha. Whenever there is a bill passed in the
Parliament, which after the Parliament gives its assent, becomes an act. 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.
2. Government and Legislature of each State
The State Executive and the State Legislature are ‘State’ within the meaning of Article 12. The Governor, the Chief
Minister, and his Ministers, the District Collectors, and all other Government Departments, etc., come under the
definition of ‘State’.

The legislative body at the state level is the State Legislature. It comprises of the state legislative assembly and the
state legislative council. If there is an infringement of the right(s) of any individual due to any law or act passed by
the state. Then the same is safeguarded under Fundamental Rights.

3. Local Authorities
The phrase ‘local authority’ includes the Village Panchayats, Muncipalities, Mandal Praja Parishads, Municipal
Corporations etc., and come under the definition of ‘State’ under Article 12.

All these authorities are made through a statute. Hence any by-laws or any rule and regulations made by these
bodies come under the ambit of Fundamental Rights.

4. Other Authorities
The phrase ‘other authorities’ make the judiciary to interpret it and to adopt it several bodies whether they
belong to ‘State’ or not. The phrase is very wide. It includes every authority created by a statute and functioning
within the territory of India, and under the control of the Government of India.

# Judicial Decisions:

1. In University of Madras vs. Santa Bai, the Madras high court held that the ‗other authorities‘ could only indicate
authorities of a like nature i.e., ejusdum generis. So construed, it could be only mean authorities exercising
governmental or sovereign functions. It cannot include persons, natural or juristic, such as, a University unless it is
maintained by the State.

2. Ujjammbai vs. State of U.P., the court rejected this restrictive interpretations of the expression ‗other
authorities‘ given by the Madras High Court and held that the ejusdum generis rule could not be resorted to in
interpreting this expression. In Article 12 the bodies specifically named are the Government of the Union and the
States, the Legislature of the Union and the States and Local Authorities.

3. Rajasthan State Electricity Board vs. 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 powers are conferred by
law. It is not necessary that the statutory authority should be engaged in performing governmental or sovereign
function. In Rajasthan Electricity Boards, decision the Supreme Court overruled the decision of Madras High Court
in Santa Bai case, holding a University not be the state‘. And finally, the Patna High Court, following the decision
of the Supreme Court, has held the Patna University is a State‘.

4. Sukhdev v/s Bhagatram, it has been held that Oil and Natural Gas Commission, Life Insurance Corporation and
Industrial Finance Corporation, are authorities under Article 12 of the Constitution and therefore they are State.

5. Airport Authority‟s Case, it has been held that if a body is an agency or instrumentality of government it may be
an authority‘ within the meaning of Article 12 whether it is a statutory corporation, a government company or
even registered society. Accordingly it was held that the International Airport Authority which had created by an
Act of Parliament was the ‘State‘ within the meaning of Article 12.

6. Ajay Hasia vs. Khalid Mujib, it has been held that a Society registered under the Societies Registration Act, 1898,
is an agency or instrumentality of the ‘State‘ and hence ‘State‘ within the meaning of article 12.
Q.No.2. Examine the scope of "other authorities" under Art.12 of the Constitution.

Most of the Fundamental Rights are claimed against the state and its instrumentalities and not against private
bodies. According to Art. 12, the term ‘state’ includes— (i) the Government and Parliament of India: (ii) the
Government and the Legislature of a State; (iii) all local authorities; and (iv) other authorities within the territory
of India, or under the control of the Central Government. The most significant expression used in Art. 12 is “other
authorities”. This expression is not defined in the Constitution. It is, therefore, for the Supreme Court, as the Apex
Court, to define this term. It is obvious that wider the meaning attributed to the term “other authorities” in Art.
12, wider will be the coverage of the Fundamental Rights, i.e., more and more bodies can be brought within the
discipline of the Fundamental Rights. (a) OTHER AUTHORITIES The interpretation of the term ‘other authorities’ in
Art. 12 has caused a good deal of difficulty, and judicial opinion has undergone changes over time. Today’s
government performs a large number of functions because of the prevailing philosophy of a social welfare state.
The government acts through natural persons as well as juridical persons. Some functions are discharged through
the traditional governmental departments and officials while some functions are discharged through autonomous
bodies existing outside the departmental structure, such as, companies, corporations etc. While the government
acting departmentally, or through officials, undoubtedly, falls within the definition of ‘state’ under Art. 12, doubts
have been cast as regards the character of autonomous bodies. Whether they could be regarded as ‘authorities’
under Art. 12 and, thus, be subject to Fundamental Rights? An autonomous body may be a statutory body, i.e., a
body set up directly by a statute, or it may be a non-statutory body, i.e., a body registered under a general law,
such as, the Companies Act, the Societies Registration Act, or a State Cooperative Societies Act, etc. Questions
have been raised whether such bodies may be included within the coverage of Art. 12. For this purpose, the
Supreme Court has developed the concept of an “instrumentality” of the state. Any body which can be regarded
as an “instrumentality” of the state falls under Art. 12. The reason for adopting such a broad view of Art. 12 is that
the Constitution should, whenever possible, “be so construed as to apply to arbitrary application of power against
individuals by centres of power. The emerging principle appears to be that a public corporation being a creation
of the state is subject to the Constitutional limitation as the state itself. In University of Madras v. Santa bai The
principle of ejusdem generis or things of like nature was applied and this meant that authorities exercising
governmental or sovereign function would only be covered under other authorities. The liberal interpretation
came when the Apex court in Ujjambai v. State of U.P rejected the interpretation on the basis of ejusdem generis
and held that no restriction can be assigned to the interpretation of the term. In Rajasthan State Electricity Board
v. Mohanlal, the Supreme Court ruled that a State electricity board, set up by a statute, having some commercial
functions to discharge, would be an ‘authority’ under Art. 12. In Sukhdev v. Bhagatram, three statutory bodies,
viz., Life Insurance Corporation, Oil and Natural Gas Commission and the Finance Corporation, were held to be
“authorities” and, thus, fall within the term ‘state’ in Art. 12. These corporations do have independent
personalities in the eyes of the law, but that does not mean that “they are not subject to the control of the
government or that they are not instrumentalities of the government” The question was considered more
thoroughly in Ramanna D. Shetty v. International Airport Authority, The International Airport Authority, a
statutory body, was held to be an ‘authority’. The Supreme Court also developed the general proposition that an
‘instrumentality’ or ‘agency’ of the government would be regarded as an ‘authority’ or ‘State’ within Art. 12 and
laid down some tests to determine whether a body could be regarded as an instrumentality or not. Where a
corporation is an instrumentality or agency of the government, it would be subject to the same constitutional or
public law limitation as the government itself. In this case, the Court was enforcing the mandate of Art. 14 against
the Corporation. In Som Prakash v. Union of India, the company was held to fall under Art. 12. The Court
emphasized that the true test for the purpose whether a body was an ‘authority’ or not was not whether it was
formed by a statute, or under a statute, but it was “functional”. In the instant case, the key factor was “the
brooding presence of the state behind the operations of the body, statutory or other”. In this case, the body was
semi-statutory and semi-non-statutory. It was nonstatutory in origin (as it was registered); it also was recognised
by the Act in question and, thus, had some “statutory flavour” in its operations and functions. In this case, there
was a formal transfer of the undertaking from the Government to a government company. The company was thus
regarded as the “alter ego” of the Central Government. The control by the Government over the corporation was
writ large in the Act and in the factum of being a government company. Agency of a State would mean a body
which exercises public functions. The question regarding the status of a non-statutory body was finally clinched in
Ajay Hasia, where a society registered under the Societies Registration Act running the regional engineering
 college, sponsored, supervised and financially supported by the Government, was held to be an ‘authority’.
Money to run the college was provided by the State and Central Governments. The State Government could
review the functioning of the college and issue suitable instructions if considered necessary. Nominees of the
State and Central Governments were members of the society including its Chairman. The Supreme Court ruled
that where a corporation is an instrumentality or agency of the government, it must be held to be an authority
under Art. 12. “The concept of instrumentality or agency of the government is not limited to a corporation
created by a statute but is equally applicable to a company or society….” Thus, a registered society was held to be
an ‘authority’ for the purposes of Art. 12. Ajay Hasia has initiated a new judicial trend, viz., that of expanding the
significance of the term “authority”. In Ajay Hasia, The Supreme Court laid down the following tests to adjudge
whether a body is an instrumentality of the government or not: (1) If the entire share capital of the body is held
by the government, it goes a long way towards indicating that the body is an instrumentality of the government.
(2) Where the financial assistance given by the government is so large as to meet almost entire expenditure of the
body, it may indicate that the body is impregnated with governmental character. (3) It is a relevant factor if the
body enjoys monopoly status which is conferred or protected by the state. (4) Existence of deep and pervasive
state control may afford an indication that the body is a state instrumentality. (5) If the functions performed by
the body are of public importance and closely related to governmental functions, it is a relevant factor to treat
the body as an instrumentality of the government. The law appears to be now settled in view of the judgment of a
seven Constitution Bench of the Supreme Court in Pradeep Kumar Biswas where, after considering the authorities
it concluded that the tests formulated in Ajay Hasia were not a rigid set of principles so that if a body falls within
any of those tests, ex hypothesi, it must be considered to be a State within the meaning of Article 12. The Court
suggested a general guideline observing: “The question in each case would be whether in the light of the
cumulative facts as established, the body is financially, functionally and administratively dominated by or under
the control of the Government. Such control must be particular to the body in question and must be pervasive. If
this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory
whether under statute or otherwise, it would not serve to make the body a State.” In Zee Telefilms v. Union of
India as BCCI is not 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.

Q.No.3. Definition of the “Law” under Article 13. Explain Pre-Constitutional and Post-Constitutional Laws.

Fundamental rights are considered to be on the level of God thus no one cannot amend them. Article 13 of the
constitution do upholds the supremacy over Indian constitution and do paves the way to judicial review. This
prescription do enables us to review the pre-constitutional and existing laws.

Although the intervention of the judiciary in constitutional matters is a debatable topic, yet in most of the cases,
the power of judiciary is considered to be the supreme and is summoned to guard and enforce the fundamental
rights guaranteed in the Indian constitution under part III.

# Meaning of Law under Article 13:

Article 13 of the Constitution deals with ‘Laws’ that are inconsistent with Fundamental Rights guaranteed to the
Citizens. Through this article (Article 13), the parliament and state legislatures are being terminated from making
such laws that may infringe or take away the fundamental rights that are being guaranteed by the Indian
constitution itself.

Article 13 of the constitution of India, 1950 states that:

“Laws inconsistent with or in derogation of the fundamental rights

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

From the bare perusal of the Article it is clear that Article 13 consists of two parts are as follows:-

Pre constitutional laws [Article 13(1)]

Post constitutional laws [Article 13(2)]

# Pre-Constitutional Laws:

During India’s existence under the British reign, there were various laws and acts passed by the British
government. The Regulating Act of 1773 was seen as a foundation stone laid by the East India Company to ensure
its smooth functioning in the Indian Sub-Continent. Further, the Indian Independence Act marked the end of
British rule in India which was given effect on 15 August 1947.

Article 13(1) deals with the pre-constitution laws and declares that all such laws are void to the extent to which
they are inconsistent with the Fundamental Rights.

# Post-Constitutional Laws:

Post-constitutional laws are the ones which were brought into effect after the enactment of the Constitution of
India, 1950. All those acts which were given effect after January 26, 1950 fall under the ambit of Post-
Constitutional Laws. There are laws which were brought into effect during the British era before the formation of
the constitution and are still being followed in the same manner, like that of the- Indian Penal Code, Police Act,
1861 and even the Societies Registration Act, 1860. These are few of the major acts which were enacted before
the formation of the constitution and are still in practice with required amendments.

Article 13(2) deals with the post-constitution laws and prohibits the State from making any law which takes away
or abridges the Fundamental Rights and any such law is void to the extent of the contravention.

Q.No.4. Explain the “Doctrine of Severability”.

# Meaning:

This doctrine was devised by the Supreme Court to resolve the problem of the validity of laws which are declared
as unconstitutional. When a part of the law is declared as unconstitutional, then a question arises whether the
whole of the law is to be declared void or only that part of the law which is unconstitutional should be declared as
void.

The doctrine of severability is necessary to protect the validity of the act as a whole without which an entire act
would become void due to the invalidity of one provision of the act. According to the doctrine of severability, a
law is void only "to the extent of the inconsistency or contravention" with the relevant Fundamental Rights
according to Article 13 of the Constitution. It 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 (separated) from the rest which is valid, and 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, however, it is not
possible to separate the valid from the invalid portion, then the whole of the statute will have to go.

Let us understand the doctrine of severability with an analogy. Imagine a piece of fruit, say an apple. Now imagine
that a small portion of the apple has gone bad due to some form of physical damage, in such a case one would
proceed to severe that portion off while preserving the undamaged part of consumption. If the whole apple or
most part of it is damaged it will not be consumed. In such case it will be thrown in the dustbin.
# Case Laws:

A.K. Gopalan v. State of Madras

The Supreme Court held that in case of repugnancy to the Constitution, only the repugnant provision of the
impugned Act will be void and not the whole of it, and every attempt should be made to save as much as possible
of the act. If the omission of the invalid part will not change the nature or the structure of the object of the
legislature, it is severable. It was held that except Section 14 all other sections of the Preventive Detention Act,
1950 were valid, and since Section 14 could be severed from the rest of the Act, the detention of the petitioner
was not illegal.

State of Bombay v. F.N. Balsara

Eight sections of the Bombay Prohibition Act were declared invalid; the Supreme Court said that the portion
which was invalid to the extent of fundamental rights was separable from the rest of the act.

Q.No.5. Explain the “Doctrine of Eclipse”.

# Meaning:

The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is not dead totally
but overshadowed by the fundamental right. The inconsistency can be removed by constitutional amendment to
the relevant fundamental right so that eclipse vanishes and the entire law becomes valid. In other words till the
time a law violates a fundamental right provided by the Constitution of India, it is dormant and inoperative. But if
such fundamental right is amended and thereby, the law no more violates, then in such a situation the law
becomes alive and operative. Such eclipsed laws exist for all post transactions and for the enforcement of the
constitution. Is only against the citizens that they remain in a dormant or moribund condition but they remain in
operation as against non-citizens who are not entitled to fundamental rights.

# Case Laws:

Bhikaji Narain Vs State of Madhya Pradesh (AIR 1955 SC 781)

In this case provision of C.P. and Berar Motor vehicles Amendment Act, 1947 authorized the State Government to
make up the entire motor transport business in the province to the exclusion of motor transport operators. This
provision, though valid when enacted, became void on the be coming into force of the Constitution in 1950 as
they violated Article 19 (1) (G) of the Constitution. However, 1951, clause (6) of Article 19 was amended by the
constitution first Amendment Act, as so to authorize the Government to monopolies any business. The Supreme
Court held that "the effect of the amendment was to remove the shadow and to make the impugned Act free
from all blemish or infirmity".

It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed.
This law was merely eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed the
law begins to operate from the date of such removal.

Deep Chand Vs State of Uttar Pradesh

In this case, the supreme court held that a post-constitutional law made under article 13 (2) which contravenes a
fundamental right is nullity from its Inception and a stillborn law. It is void ab initio. The doctrine of eclipse does
not apply to post-constitutional laws and therefore, a subsequent Constitutional Amendment cannot revive it.
The Doctrine of eclipse applies only to pre-constitutional law and not post-constitutional law.
 Q.No.6. Discuss the principles of equality as laid under Article 14 of the India Constitution.

The constitution of all countries gives to their citizens certain rights called fundamental rights. Indian constitution
also has conferred a number of fundamental rights on the citizens of the country, and which are essential for a
man to lead a decent and respectable life and to attain the fullest development of human personality. Part- III of
the constitution deals with fundamental rights from Articles 14 to 35. The fundamental rights are conferred to
every citizen against the Government. If any of the fundamental rights are violated, the citizen of India can sue
the state.

# The right to equality under article 14:

Equality is one of the basic elements of democracy. Right to equality means equality in all its forms i.e. legal civil
and social. The object of right to equality is to secure to the citizens equality in all its form. An article 14 to 18 of
the constitution guarantees the right to equality to every citizen of India. Article 14 embodies the general
principles of equality before law and prohibits unreasonable discrimination between persons. Article 14 embodies
the idea of equality expressed in the preamble. Various rights are included in the right to equality.

# Principles laid under Article 14:

Article 14 declares that the state shall not deny to any person equality before the law or equal protections of the
laws within the territory of India. Thus Article 14 uses two expressions ―equality before law‖ and ―equal
protection of law‖. Article 14 is based upon the principles of natural justice. Equals have to be treated equally and
unequal ought not to be treated equally.

1. Equality Before Law:-

Equality before law in Article 14 is based on the principles of Rule of law. No man is above the law of the land.
There is no distinction before the law. The concept of equality before law does not mean absolute equality among
human beings which is physically not possible to achieve. It is a concept implying absence of any special privileges
by reason of birth, creed or like in favour of any individual and also the equal subjects of all individuals and classes
to the ordinary law of the land.
Equality before the law means that among equals the laws should be equal and should be equally administered,
that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted for the same kind
of action should be same for all citizen of full age without distinctions of race, religion, wealth, social status or
political influence.

2. Equal Protection of Laws:-

Equal protection of law is a positive concept, implying equality of treatment under equal or similar circumstances.
No one can be favoured more and no one can be unfavoured more. Equal law should be applied to all persons in
the same situation. There should not be any discrimination between one person to another. Equality must
becomes a living reality for the large masses of people. Article 14 applies to citizens and non- citizens of India. It
only means that all persons similarly circumstanced shall be treated alike both in privilages conferred and
liabilities imposed by the laws. Equal law should be applied to all in same situation, and there should be no
discrimination between one person and another.

# Exceptions to the Rule of law:

The rule of equality is, however not an absolute rule and there are number of exceptions.

 Firstly, equality before law does not mean the ―powers of the private citizens are the same as the powers of the
public officials.
 Secondly, the equality before law does not prevent certain classes of persons being subject to special rules.
 Thirdly, today ministers and other executive bodies are given very wide discretionary powers by statute.
 Fourthly, certain members of society are governed by special rules in their professions i.e. Lawyers, Doctors,
Nurses, Members of Armed forces and Police such classes of people are treated differently from ordinary citizens.

Article 14 permits classification but prohibits class legislation:-

The equal protection of laws guaranteed by Article 14 does not mean all laws must be general in character. It
does not mean that same law should apply to all persons. It does not mean that every law must have universal
application for. Thus Article 14 forbids is class- legislation but it does not forbid reasonable classification. The
classification, however, must not be ―arbitrary, artificial, or evasive‖ but must be based on some real substantial
distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation.

Leading Case- laws on right to Equality:

1. Ramakrishna Dalmia v/s Justice Tedndolkar [ AIR1958 SC 538]

In this case the Supreme Court held that Article 14 protects all persons from discrimination by the legislative as
well as the executive organ of the state. Article 14 forbids class legislation it does not forbid reasonable
classification for the purpose of legislation.

2. Air India V/S Nargesh Meerza and others [AIR 1981 SC 335]

In this case was filed by the Air hostesses of Air India who challenged the rules of Air India contending that there
was too much gender discrimination between the male crew and air hostesses from the appointment stage to the
retirement stage, promotions, emoluments etc.
The Supreme Court gave the judgement in favour of the petitioners, i. e. air hostesses, holding that too much
discrimination was shown by Air India. The Supreme Court also held that the clauses regarding retirement and
pregnancy were unconstitutional and struck them down. As a result of the Supreme Court judgement, the period
of retirement of air hostesses was extended upto 45 years.

3. State of Madras V/S Champakam Dorairajan

The Madras Government had reserved seats in state medical and engineering colleges for different communities
in certain proportions on the basis of religion, race and caste. The state defended the aw on the social justice for
all sections of the people. But the Supreme Court held the view that the law is void because it classified students
on the basis of caste and religion.

Q.No.7. Judicial Review.

The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have
given us. They try to undo the harm that is being done by the legislature and the executive and also they try to
provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy.
All this is possible thanks to the power of judicial review. All this is not achieved in a day it took 50 long years for
where we are right now, if one thinks that it is has been a roller coaster ride without any hindrances they
are wrong Judiciary has been facing the brunt of many politicians, technocrats, academicians, lawyers, etc. Few of
them being genuine concerns, and among one of them is the aspect of corruption and power of criminal
contempt.
The rule of law is the bedrock of democracy, and the primary responsibility for implementation of the
rule of law lies with the Judiciary. This is now a basic feature of every Constitution, which cannot be altered even
by the exercise of new powers from Parliament. It is the significance of Judicial Review, to ensure that democracy
is inclusive and that there is the accountability of everyone who wields or exercises public power. As Edmund
Burke said: "all persons in positions of power ought to be strongly and lawfully impressed with an idea that" they
act in trust, "and must account for their conduct to one great master, to those in whom the political sovereignty
rests, the people".
India opted for parliamentary form of democracy, where every section is involved in policymaking, and
decision taking, so that every point of view is reflected and there is a fair representation of every section of the
people in every such body. In this kind of inclusive democracy, the Judiciary has a very important role to play. That
is the concept of accountability in any republican democracy, and this basic theme has to be remembered by
everybody exercising public power, irrespective of the extra expressed expositions in the constitution. The
principle of Judicial Review became an essential feature of written Constitutions of many countries. Seervai in his
book Constitutional Law of India, noted that the principle of judicial review is a familiar feature of the
Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in strict
sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently
differentiated, so that one organ of the Government could not usurp the functions of another.
The power of Judicial Review has in itself the concept of separation of powers an essential component
of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the
anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that
behalf, by the courts. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution
insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution,
the judiciary in India has come to control by Judicial Review every aspect of governmental and public
functions.
‘Judicial Review‘is the power of courts to pronounce upon the constitutionality of legislative acts which
fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be
unconstitutional and hence void. “Judicial Review” said Khanna J., in the fundamental rights case, “has thus
become an integral part of our Constitutional System and a power has been vested in the High Courts and the
Supreme Court to decide about the constitutional validity of the provisions of statutes. If the provisions of the
statutes are found to be violative of any of the articles of the Constitution which is the touchstone for the validity
of all laws the Supreme Court and the High Courts are empowered to strike down the said provisions”. That
power corrupts a man and a absolute power corrupts absolutely which ultimately leads to tyranny, anarchy and
chaos has been sufficiently established in course of evolution of human history, and all round attempts have been
made to erect institutional limitations on its exercise.
A legislature, an executive and a judicial power comprehend the whole of what is meant and
understood by Government. It is by balancing each of these two powers against the other two that the efforts in
human nature towards tyranny can alone be checked and restrained and any freedom preserved in the
Constitution. Judicial Review is thus the interposition of judicial restraint on the legislative as well as the executive
organs of the Government. The concept has the origin in the theory of limited Government and in the theory of
two laws an ordinary and supreme. From the very assumption that there is supreme law which constitutes the
foundation and source of other legislative authorities in the body polity, it proceeds that any act of the
ordinary law-making bodies which contravenes the provisions of the supreme law must be void and there must
be some organ which is to possess the power or authority to pronounce such legislative acts void.
Judicial Review as a part of the Basic Structure: In the celebrated case of Keshavananda Bharati v.
State of Kerala, the Supreme Court of India the propounded the basic structure doctrine according to which it
said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution,
The Constitutional bench in Indira Nehru Gandhi v. Raj Narain held that Judicial Review in election disputes was
not a compulsion as it is not a part of basic structure.
 UNIT- 3
Q.No.1. Discuss the Freedom of Speech and Expression with the help of deiced Cases .

# Introduction:
Personal liberty is the most important of all fundamental rights. Articles 19 to 22 deal with the different aspects of
basic rights. Taken together these four Articles from a chapter of personal liberties which provides the backbone
of the fundamental rights. The foremost amongst these are the six fundamental rights in the nature of freedoms
which are guaranteed to the Citizens by Article-19 of the Constitution.

# Provisions under Article 19of the Constitution:

Among all the six fundamental rights Article-19 is the most important one. This Article contains 6 freedoms.
Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practice any profession, or to carry on any occupation, trade, or business.

# Freedom of Speech and Expression under Article 19 (1) (g):

Freedom of speech and expression is indispensable in a democracy. Article 19(1) (a) says that all citizens shall
have the right to freedom of speech and expression, but this right is subjected to limitations imposed under
Article-19(2), which empowers the state to put reasonable restrictions on the following grounds. E.g.: security of a
State, Friendly relations with foreign States, Public Order, Decency and Morality, Contempt of Court, Defamation
offences against integrity and sovereignty of India.

# Meaning and Scope of Speech and expression:

The term freedom of Speech and Expression includes---
a. Right to have opinions
b. Right to express themselves freely
c. Through the medium of writing, print, television, radio, Internet, etc…..
d. Restricted to the extent of not adversity affecting freedom of others to live with peace and harmony.

Thus from the above freedom of speech and expression means the right to express one‘s own opinions freely by
word of mouth, writing, printing, pictures, or any other mode. It thus includes the expression of one‘s ideas
through any communicable medium or visible representations, such as gestures, signs, and the like.

# Article 19 (1) (a) has 4 Broad Special Purposes to Serve:

$ The freedom of speech and expression has four broad principles to serve:
1. It helps an individual to attain self-fulfillment;
2. It assists in the discovery of truth
3. It strengthens the capacity of an individual in participating in the decision making
4. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and
social change.
All members of society should be able to form their own beliefs and communicate them freely to others. In sum,
the fundamental principle involved here is the people‘s right to know.
Freedom of speech and expression should, therefore, receive generous support from all those who believe in the
participation of people in the administration. It is an account of this special interest that society has in the
freedom of speech and expression that the approach of the Government should be more cautious while levying
taxes on matters concerning the newspaper industry than while levying taxes on other matters.

In Prabhu Dutt v/s Union of India: In this case, the Supreme Court of India has held that the right to know the
news and information regarding the administration of the government is included in the freedom of the press.
But this right is not absolute reasonable restrictions can be imposed on it in the interest of society.
The Right to Information Act, 2005 repeals the Freedom of Information Act, 2002 which was passed by the
previous NDA Government. This legislation entitles every citizen to have access to information controlled by
public authorities. Under this Act, it is obligatory upon the authority to provide information and maintain records
consistent with its operational needs. The object of this act is to promote openness, transparency, and
accountability in administration.
Apart from the Right to Information Act, 2005, a right to vote to be a fundamental right every voter has got the
right to know about their candidates.

$ Freedom of the press

The fundamental right of the freedom of the press implicit in the right the freedom of speech and expression is
essential for political liberty and the proper functioning of democracy. Article 19(1) (a) of the constitution does
not expressly mention the liberty of the press but it has been held that liberty of the press is included in freedom
of speech and expression. Freedom of the press is essential to political liberty. When a man cannot freely convey
their thoughts to one another, no freedom is secured, where freedom of expression exists the beginning of a free
society and means for every retention of liberty are already present.
The liberty of the press means liberty to print and publish what one pleases, without previous permission. The
freedom of the press is not confined to only newspapers and periodicals. It includes also pamphlets and circulars
and every sort of publication that affords a vehicle of information and opinions.

In-State v/s Charita: The Supreme Court has held that the press does not have an unfettered right to interview an
under-trial prisoner in jail. Thus where the trial of the accused was pending before the Additional Session Judge,
he had the authority to grant permission to the press to interview the under trial inside the jail. The court while
granting permission, will have to weigh the competing interest between the right to press and the right of the
authorities prohibiting such interview in the interest of the administration of justice.

Indian Express Newspapers v/s Union of India: speaking about the utility of freedom of the press the Court
observed ―The expression Freedom of Press‖ has not been used in Article 19 but it is comprehended within
Article 19(1) (a) Freedom of the press has always been a cherished right in all democratic countries. The
newspaper not only survey news but also ideas, opinions, and ideologies, besides much else. They are supposed
to guard public interest by bringing to force misdeeds, failings, and lapses of the government and other bodies
exercising governing power.

# Grounds for Restrictions under Article 19(2):

Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of
speech and expression can be imposed:-

Security of the State:

Under Clause (2) of Article 19 reasonable restrictions can be imposed on freedom of speech and expression in the
interest of the Security of State. The term security of state means only serious and aggravated forms of public
disorder, e.g., rebellion, waging war against the state breach of public peace.

Friendly relation with Foreign States:

The object behind this restriction is to prohibit unrestrained malicious propaganda against a foreign-friendly State
which may jeopardize the maintenance of good relations between India and that State.
Public Order:
Public order is something more than ordinary maintenance of law and order. ‘Public order‘ is synonymous with
public peace, safety, and tranquility. In the interest of public order, restrictions can be imposed on freedom of
speech and expression.

Decency or Morality:
The restrictions can be imposed on the freedom of speech and expression in the interest of decency or morality.
Publication of obscene if it tends to produce lascivious thoughts and arouses lustful desire in the minds of
substantial numbers of that public into whose hand the book is likely to fall.

Contempt of Court.
Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit
and amounts to contempt of court.

Defamation:
A statement that injures a man‘s reputation amounts to defamation. Defamation consists of exposing a man's
hatred, ridicule, or contempt.

Incitement of an offence [motivating to commit offences]:

This ground was added by the first amendment Act, 1951. Obviously freedom of speech and expression cannot
confer a license to incite people to commit offences.

Sovereignty and Integrity of India:

The freedom of speech and expression can be restricted so as not to permit anyone to challenge the integrity or
sovereignty of India or to preach cession of any part of India from the Union.

# Conclusion:
Freedom of speech and the 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 popular Government, is
possible.

Q.No.2. Freedom to Practice any Profession, or to Carry on any Occupation, Trade or Business Article 19(1) (g):
Article 19(1)(g) guarantees that all citizens shall have the right ―to practice any profession, or
to carry on any occupation, trade or business‖. However this right can be restricted under Article 19(6) imposing
reasonable restrictions on this right in the interest of public. Prescribing professional or technical qualifications
necessary for practicing any profession or carrying on any occupation, trade or business.
The right to carry on a business includes a right to close it at anytime the owner likes. So, the State cannot compel
a citizen to carry on business against his will.
In Excel Wear v/s Union of India: the petitioner was a registered firm. It had a factory at Bombay where it
manufactured garments for exports. Due to serious labour trouble the factory was running into a recurring loss.
The petitioners finding it almost impossible to carry on business of the factory served a notice on the State
government for prior approval for its closure.
The Government refused approval in the public interest. The petitioners challenged the same by stating that it is
invalid and violates the Article 19(1)(g). the Court said that nobody has got to carry on the business if he cannot
pay even minimum wages to the labourers. He must them close down his business.
In Khoday Distilleries Ltd v/s State of Karnataka: The Supreme Court has set rest the controversy arising out of
conflicting decisions of the Supreme Court on the matter whether a citizen has fundamental right to trade or
business liquor. . the Court has held that the rights under Article 19(1) are not absolute but qualified and the State
is authorised under clauses (2) to (6) of Article 19 to impose reasonable restrictions on this right in the public
interest. A citizen has no fundamental right to trade or business in activities which are immoral and criminal and
in the articles or goods which are obnoxious and injurious to health, safety and welfare of general public.
In Minerva Talkies, Bangalore v/s State of Karnataka: A Rule of the State Government prescribing that no license
would be allowed to exhibit more than 4 shows in a day was held to be valid as imposing reasonable restrictions
on the right to carry on business in their interest of general public. There to regulate hours during which films may
be exhibited, seating arrangements in cinema house and other matters pertaining to public health, safety
sanitation etc. it was found that on account of exhibition of 5 shows in a day it was not possible for the licensees
to keep the theatre hygienically clean and thus was not conducive to the health of cinegoers.

Q.No.3. A citizen refuses to sing the National Anthem. Can he be compelled to sing?

Bijoe Emmanual Vs State Of Kerala

FACTS:
This case is also known as the National Anthem case. In this case, three children were belonging to Jehova’s
witness of the Christian community. They were expelled from their school by their principal because they did not
sing the National Anthem. They challenged the validity of their expression on the ground that it was violative of
their fundamental rights under Article 25(1) of the Indian Constitution. A circular has been issued by the director
of public instruction which made it compulsory to sing the National Anthem in their school. In this case, the three
children had stood during singing of National Anthem but they did not sing together. They refused to sing the
National Anthem because it is against their religious ritual and they will sing only their religious song. So they filed
the case in Kerala high court seeking that the school should take their children back to school.

ISSUES:

Whether refused to sing national anthem will result in the expulsion of the student from the school

LEGAL PROVISION:

Article 25 of the Indian Constitution

PETITIONER CONTENTION:

The petitioner contended that the refusal of singing the National Anthem is their right. And then they only sing
their religious song and expulsion of the student from school for not singing National Anthem is violation of
Article 25(1) of the Indian Constitution.

RESPONDENT CONTENTION:

Respondent contended that the director of Public Instruction had made compulsory that the student should sing
National Anthem in their school.

KERALA HIGH COURT OBSERVATION :

The Kerala high court held that it is their fundamental duty under the constitution to sing National Anthem in
their school and if any student refused to sing National Anthem then it will be a bad opinion among other
students who sing National Anthem so the headmaster has the right to expel all the three students. And further
said that the three students must give in writing that they will sing National Anthem in their school after that the
can rejoin the school.
SUPREME COURT OBSERVATION:

The supreme court observed that no person can compel to sing the National Anthem. If they did not wish to sing
National Anthem means there is no legal obligation. In this case, the three children had stood up during the
singing of national anthem so it is respect from their side and thus it is not violative of fundamental duties.

JUDGMENT

The court direct concern authority to re-admit the three children in the school and allow them to pursue their
studies
 UNIT- 4
Q.No.1. “No person shall be deprived of his life or personal liberty except according to the procedure
established by Law”. Discuss with references to decided case.

# Introduction:
Article 21 deals with ―Protection of life and Personal Liberty‖. The inspiration of Article 21 is the 5th Amendment
to the Constitution of the USA which guarantees the fundamental right to life and personal liberty. Earlier Article
21 guaranteed the right to life and personal liberty to citizens only against the arbitrary action of the executive
and not from the legislative action. The state could interfere with the liberty of citizens if it could support its
action by a valid law. Now Article 21 protects the right to life and personal liberty of citizens not only from
executive action but from legislative action also.
A person can be deprived of his life and personal liberty if two conditions are complied with,
first, there must be a law and
secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and
reasonable.

PERSONAL LIBERTY MEANING AND SCOPE:

Prior to Maneka Gandhi Case Decision: The meaning of the term personal liberty came up for consideration of
the Supreme Court for the first time in A.K. Gopalan v/s Union of India. In Maneka Gandhi v/s Union of India, the
Supreme Court has overruled Gopalan Case and widened the scope of the word personal liberty. Before Maneka
Gandhi Case Article 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary action
of the Executive and not from Legislative action. The state could interfere with the liberty of citizens.
But now after the Maneka Gandhi case Article 21 protects the right to life and personal liberty of citizens not only
from the Executive action but also from the Legislative action. The right guaranteed under Article 21 is available to
‘Citizens‘ as well as ‘Non-Citizens‘. The object of this article is to give assurance for the safety of life and personal
liberty of such person. Such assurance is subject to limitation, it is not a guarantee. According to J. Mukarjee of
Supreme Court ―Personal liberty means liberty relating to the person or body of the individual‖. Positive rights
are well conferred under Article21.
In Maneka Gandhi Case the Supreme Court has not only overruled Gopalan Case but has widened the scope of
the Words ‘Personal Liberty’. The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to
the status of distinct fundamental rights and given additional protection under Article 19”.

CONDITIONS UNDER ARTICLE 21:

Art.21 requires the following conditions to be fulfilled before a person is deprived of the property:-
1. There must be a valid Law
2. The Law must provide a Procedure.
3. The procedure must be just, fair, and reasonable
4. The law must satisfy the requirements of the Articles. 14 and 17 i.e., it must be reasonable

THE RIGHTS ARE HELD TO BE COVERED UNDER ARTICLE 21 OF THE CONSTITUTION:

1. RIGHT TO LIVE WITH HUMAN DIGNITY:

In Maneka Gandhi case the Supreme Court gave the new dimension to Article 21. It held that right to live is not
merely confined to physical existence but also includes within its ambit the right to live with human dignity. The
right to live is not confined to the faculty or limb through which life is enjoyed or the soul communicates with the
outside world but it also includes ―the right to live with human dignity, and all that goes along with it, namely,
the bare necessities of life such as adequate nutrition, clothing, and shelter, facilities for reading. Writing and
expressing ourselves in diverse forms, freely moving about and mixing with fellow human beings.

People Union for Democratic Rights v/s Union of India: In this case, it was held that non-payment of minimum
wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with
basic human dignity and violative Article 21 of the Constitution.
2. RIGHT TO LIVELIHOOD (securing the necessity of life):
Under Article-21 “Life” includes the “right to livelihood” also Right to life does not mean merely that life cannot
be extinguished for example, by the imposition and execution of a death sentence, except according to the
procedure established by law. No person can live without the means of livelihood. If the right to livelihood is not
treated as a part of the Constitutional right to life, the easiest way of depriving a person of his right to life would
be to deprive him of his means of livelihood.

In Olga Tellis v/s Bombay Municipal Corporation: This case is popularly known as the ‘Pavement Dwellers case‘.
It was held in this case that the word ‘life in Article 21 includes the right to livelihood also.

Sodan Singh v/s New Delhi Municipal Committee: In this case, the Supreme Court held that the right to carry on
any trade or business is not included in the concept of life and personal liberty.

RIGHT TO SHELTER:
The right to shelter is a fundamental right under Article21 of the Constitution. In any organized society, the right
to live as a human being is not ensured by meeting only the animal's needs of man. It is secured only when he is
assured of all facilities to benefit himself. The right to life guaranteed in any civilized society implies the right to
food, water, a decent environment, education, medical care, and shelter. Shelter for the human being is therefore
not mere protection of his life. It is home where he had opportunities to grow physically, mentally, intellectually,
and spiritually. Right to shelter therefore includes adequate living peace, safe and decent, structure, clean and
decent surroundings, sufficient light, pure air and water, electricity, sanitation, and other civic amenities like
roads, etc. The right to shelter, therefore, does not mean a mere right to a roof over one‘s head but the right to
all the infrastructure necessary to enable them to live and develop as a human being.

1. RIGHT TO PRIVACY:
The right to privacy is a fundamental right under Article21. The right to privacy or the right to let alone is
guaranteed under Article 21. A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing, and education among other matters. No one can publish anything
concerning the above matters without his consent whether truthful or otherwise and whether laudatory or
critical. If he does so, he would be violating the right of the person concerned and would be liable in an action for
damages.
This is subject to exceptions that,
1. If any publication of such matters is based on public records including court records it will be unobjectionable. If
a matter becomes a matter of public record the right to privacy no longer exists and it becomes a legitimate
subject for comment by the press and media among others.
2. The right to privacy or the remedy action for damages is simply not available to public officials as long as the
criticism concerns the discharge of their public duties.

In Auto Shankar Case: The Supreme Court held that the “right to privacy” or the right to be let alone is
guaranteed by Art.21 of the Constitution.

In Mr. „X‟ v/s Hospital „Z‟: The Supreme Court held that by disclosing that the appellant was suffering from AIDS
the doctors had not violated the right to privacy of the appellant guaranteed under Article 21. The Court held that
although the right and restrictions can be imposed on it. The right to marry is an essential element of the right to
privacy but is not absolute.

RIGHT TO HEALTH AND MEDICAL ASSISTANCE:

In Paramananda Katara v/s Union of India: Right to health and medical assistance is a fundamental right under
Article21.
Therefore it is the professional obligation of all doctors, whether Government or Private to extend medical aid to
the injured immediately to preserve life without waiting for legal formalities to be complied with by the police.
Article 21 casts obligation on the state to preserve life so that the innocent may be protected and the guilty may
be punished. In a historic judgment in
Consular Education and Research Centre v/s Union of India: The Supreme Court held that the right to medical
care is a fundamental right.

In Paschim Bang Khet Mazdoor Samiti v/s State of W.B.: The Supreme Court held that denial of medical care by
government‘s hospitals to an injured person on the ground of non-availability of beds amounted to a violation of
the right to life under Article 21 of the Constitution.

3. RIGHT TO DIE:
The question of whether the right to die is included in Article-21 of the Constitution.
State of Maharashtra v/s Maruty Sripati Dubal. The Court listed several circumstances in which people may wish
to end their lives, including disease, cruel or unbearable conditions of life, a sense of shame, etc. The right to life
under Article 21 also includes the “right not to live”, i.e., right to die or terminate one‘s life.

4. PRISONERS RIGHT & ARTICLE 21:

Mahatma Gandhiji said “Hate the Sin don‟t Hate the Sinners”. Article 21 is based on this principle. Article 21 not
only gives protection to ordinary citizens but also gives protection to prisoners. The protection under Article 21 is
available even to convicts in jail. The convicts are not by mere reason of their conviction deprived of all the
fundamental rights which they possess. Even a convict is entitled to the precious rights guaranteed by Article 21
and he shall not be deprived of his life or personal liberty.

5. RIGHT TO FREE LEGAL AID:

The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21. Article 39-A
provides equal justice and free legal aid. It means justice according to law. In a democratic policy governed by
the rule of law, it should be the main concern of the state to have a free legal system. The crucial words are to
―provide free legal aid, by suitable legislation or by schemes. So, that opportunities for securing justice are not
denied to any citizen by the reason of economic or other disabilities. To enable the State to afford free legal aid
vast number of persons trained in law are needed. Legal aid is regarded in many forms for obtaining guidance, for
resolving disputes in Courts, Tribunals, or other authorities. Need for a continuing and well-organized legal
education is necessary. Legal education should be able to meet the ever-growing demand of society.

6. RIGHT TO SPEEDY TRIAL:

In Hussainara Khatoon v/s Home Secretary, State of Bihar: A petition for a writ of habeas corpus was filed by
several under-trial prisoners who were in jail in the State of Bihar for years awaiting their trial. The Supreme Court
held that “the right to a speedy trial” a fundamental right is implicit in the guarantee of life and personal
liberty is given Article 21 of the Constitution. Speedy trial is the essence of criminal justice. The right to speedy
trial flowing from Article21 is available to the accused at all stages namely in the stage of the investigation, inquiry
trial, appeal, revision, and retrial.

7. RIGHT TO GET POLLUTION FREE WATER AND AIR:

All are entitled to enjoy the right to get pollution-free water and air as it is a fundamental right to life. The
Supreme Court said that enjoyment of pollution-free water and the air is included in the “right to live” under
Article 21 of the constitution.

8. RIGHT TO EDUCATION A FUNDAMENTAL RIGHT UNDER ARTICLE 21-A:

The Constitution 86th Amendment Act, 2002 has added a new Article 21- A after Article 21 and has made
education for all children of the age of 6 to 14 a fundamental right. It provides that ―the State shall provide free
and compulsory education to all children of the age of 6 to 14 years in such manner as the state may, by law
determine‖. It is well known that education is a basic human right for the success of the democratic system
of government; education is one of the elements. The framers of the Constitution realized the importance of
education have imposed a duty on the state under Article 45 as one of the directive principles of state policy to
provide free and compulsory education to all children.
The object was to abolish illiteracy from the country. But it is unfortunate that even after the lapse of so many
years from the commencement of the constitution they did not take any concrete steps to implement this 40% of
the population of the country is still illiterate. The right to life under Article 21 and the dignity of the individual
cannot be realized unless it is accompanied by the right of education.
 In Mohini Jain v/s State of Karnataka: The matter was raised by the petitioner that the right to education is a
fundamental right under Article 21. The Court held that right to education in all level is a fundamental right under
Article 21-A and charging the high fee for admission is illegal and amount to the denial of citizen right to
education. Education in India has never been a commodity.

In Unni Krishna v/s State of A.P.: Where the Court specifically held that the right to education for the children of
the age of 6 to 14 is a fundamental right. Article 21-A makes it obligatory for the Government to enact a Central
Legislation to give effects to the Constitutional amendments. The Legislation will create a mechanism by which a
a citizen who is aggrieved that the right to education has not been fulfilled should be able to get relief by filing
writ petitions in the High Courts and the Supreme Court. Ultimately Right of Children to Compulsory Education
Act, 2009 was passed by the parliament to give effect to the 86th Amendment Act, 2002. It provides the
responsibility of the Central and State Government, teachers, parents, and community members in ensuring that
all children of the age of 6 to 14 years receive free and compulsory education.

# CONCLUSION:
Under Article 21 of the Constitution “No person shall be deprived of his life or personal liberty”. This fundamental
right is the personal right that is given to both citizens and non-citizens therefore no State can interfere with the
liberty of the citizens.

Q.No.2. Explain the Safeguards available against arbitrary arrest and detention under Article-22 of the
Indian Constitution.
# Introduction
Article-22 provides safeguards against arrest and preventive detention. Article 22 prescribes the minimum
procedural requirements that must be included in any law enacted by the Legislature under which a person may
be deprived of his life and personal liberty.

Article 22 deals with two separate matters:

1. Person arrested under the ordinary law of crimes and
2. Person detained under the law of preventive detention.

Safeguards Available against the Arbitrary Arrest and Detention;

$ Rights Of Arrested Person: Article 22(1) and (2) guarantees four important rights on a person who is arrested
for any offence under ordinary law. These fundamental rights are guaranteed to arrested persons both to the
citizens as well as non-citizens And not to the persons arrested and detained under any law providing for
preventive detention.

1. The rights to be informed on grounds of arrest: this is necessary to enable the arrested person to know the
grounds of his arrest and to prepare for his defense. Art-22 is like a directive to the arresting authorities to
disclose the grounds of the arrest of a person immediately.art-22(1) provides that no person who
is arrested shall be denied in custody without being informed, as soon as may be, of the grounds for such arrest
nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.

2. The right to consult and be defended by a legal practitioner of his choice: art- 22 (1) gives another important
right to the person arrested to consult and to be defended by a legal practitioner of his choice. This right is
informed by a legal practitioner of his choice. This right is conferred to everyone, whether he is
arrested by the general laws or specific laws.
3. Right to be produced before a Magistrate within 24 hours of his arrest: According to Art-22(2) that every person
who is arrested and detained in custody shall be produced before the nearest magistrate within 24 hours of such
arrest excluding the time necessary for the journey from the place of arrest to
court of the magistrate and such person shall be detained in custody beyond the said period without the
authority of a magistrate. The object of this is not to give the time to the police to harass the person arrested. This
object is also achieved by section 57 of Cr. P.C.

4. Not to be detained beyond 24 hours without Magistrates' authority: Art-22(2) strictly prohibits the police or any
authority to detain the arrested person under his authority beyond the 24 hours without the magistrate's
authority. This would enable the arrested person to get a speedy trial. This means that if there is a failure to
produce the arrested person before the nearest magistrate within 24 hours it would make the arrest illegal.

$ Preventive Detention Laws U/A 22:

Sometimes the Country is faced with certain dangers. To safeguard the interest of the country the Central
Government is entitled to declare certain areas and certain persons to detain them under the prevention of the
breach of peace.
Ex: 1. Preventive Detention Act, 1950

2. Terrorist and Disruptive Activities Prevention Act, 1987. Which imposes certain rights to the person arrested
under preventive detention laws, so that the authorities may not misuse their powers. Article 22 (4) to (7)
provides the procedure which is to be followed if a person is arrested under the law of “Preventive Detention” in
Indian law. While the object of preventive detention is not to punish a man for having done something but to
intercept him before he does it and to prevent him from doing it. Preventive detention laws are necessary to the
democratic Constitution and they are not found in any of the democratic countries of the world. No country in the
world has made these laws as an integral part of the Constitution as has been done in India.

$ Constitutional Safeguards against Preventive Detention Laws: Article 22 (4) to (7) guarantees the following
safeguards to a person arrested under preventive detention law.
1. Review by Advisory Board: the 44th amendment Act, 1978 has substituted a new clause for clause (4) which
reduces the maximum period for which a person may be detained without obtaining the opinion of the advisory
board from 3 months to 2 months. The detention of a person for a longer period than two months can only be
made after obtaining the opinion of the advisory board. The advisory board shall now be constituted under the
recommendation of the Chief Justice of the appropriate high court. If the advisory board reports that the
detention is not justified, the detained person must be released.

2. Communication of Grounds of Detention to Detenue: the authority making the detention must as soon as
possible be communicated to the person detained the grounds of his arrest, that is, the grounds which led to be
subjective satisfaction of the detaining authority and to give the detenue the earliest opportunity of making a
representatives against the order of detention that is, to be furnished with sufficient particulars to enable him to
make a representation.

3. Detenu’s Right of Representation: the other right given to the detenue is that he should be given the earliest
opportunity of making a representation against the detention order. It means that the detenue must be furnished
with sufficient particular of the ground of his detention to enable him to make a representation which on being
considered may give him relief.
Q.No.3. Ex-Post Facto Laws
Article 20(1) of the constitution says, ― No person shall be convicted of any offence except for violation of a law
in force at the time of the commission of the act charged as an offence, nor he subjected to a penalty greater than
that which might have been inflicted under the law in force at the time of commission of the offence.
Article 20(1) corresponds to the provisions against ex-post-facto laws of the American constitution. Ex-post-facto-
laws are laws which impose and enhanced penalties upon acts already done i.e. retrospectively. This means that
person can only be convicted of an offence if the act was charged against him was an offence under the law in
force at the date of commission of the act. However it does not prohibit the imposition of civil liabilities
retrospectively. So a tax can be imposed with effect from a past date. This first part of art.20(1) simply means that
if an act is not an offence at the date of its commission, it cannot be made an offence at any date subsequent
to its commission. The second part of the clause provided that a person cannot 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.
In Shiv Bahadur singh v. State of U.P.-1958: The prohibition :- it will be noted, extends not only to the passing of
ex-post-facto laws but also the conviction or the sentence under such laws. It was held that penalty means
penalty for the offence committed. In Venkataraman v. Union of India.1954: -such a trial under a procedure
different from what obtained at the time of the offence or by a court different from that which had the
competence at the time cannot ipso facto be held to be unconstitutional. Protection of cause(1) or article 20
cannot be claimed in cases of preventive detention.

Q.No.4.Double Jeopardy.
According to Article 20(2): ― No person shall be prosecuted and punished for the same offence more than once‖.
Double Jeopardy means that no person shall be prosecuted and punished more than once for the same offence. If
he is prosecuted again for the same offence for which he has already been prosecuted he can take complete
defense of his former acquittal or conviction. Under Article 20(2) the protection against double punishment is
given only when the accused has not only been ‘prosecuted‘but also ‘punished‘ and is sought to be prosecuted
second time for the same offence.
The principle ―A person once convicted or acquitted cannot be tried again‖. Under Article 20(2) is based on the
following objects
(i) No man should be punished twice over for the same cause.
(ii) It is in the interest of the State that there should be an end to the litigation
(iii) A judicial decision must be accepted as correct.

Article 20 (2) will have no application where punishment is not for the same offence. Thus if the offences are
distinct the rule o double jeopardy will not apply.
In Maqbool Husain Vs. state of Bombay: the appellant brought some gold into India. He did not
declare that he had brought gold with him to the customs authorities on the airpotrt, the customs
authorities confiscated the gold under the Sea Customs Act. He was later on charged for having
committed an offence under the Foreign exchange regulation Act. The appellant contended that
second prosecution was in violation of Article 20(2) as it was for the same offence. The court
held that the sea customs authorities were neither a judicial tribunal nor a court and did not constitute
a judgement of judicial character.

Q.No.5. Prohibition against Self- Incrimination: Article-20(3)

Article 20(3) of the Constitution provides that ―no person accused of any offence shall be
compelled to be a witness against himself‖. The accused must be presumed to be innocent till
the contrary is proved. It is the duty of the prosecution to prove the offences. Article 20(3) is
against self-incrimination. This guarantee extends to any person accused of an offence and
prohibits all kinds of compulsion to make him a witness against himself. Self-incrimination
means conveying information based upon personal knowledge of the person or giving
information involving himself to be the prime part taker in the offences. The object of Article-
20(3) recognises the privileges of an accused person to guard himself against self incrimination.
The accused can refuse to answer any question that is put to him with the intention to incriminate
him. The fundamental rule of criminal jurisprudence against self-incrimination has been raised to
a rule of constitutional law in Article-20(3). This guarantee extends to any person accused of an
offence and prohibits all kinds of compulsion to make him a witness against himself.
Essential elements of Article 20(3):
1. A person Accused of an Offence
2. No person shall be compelled to a witness
3. No compulsion to give Evidence against himself.
In M.P. Sharma Vs Sathish Chandra: The Supreme Court interpreted the expression “to be a witness” very widely
so as to include oral, documentary and testimonial evidence.
In Prashadi Vs. State of U.P.: an accused who was charged with committing a murder stated to the police that he
would give clothes of the deceased which he had placed in a pit and thereafter he dug out the pit in presence of
witness and took out the clothes which were identified as the clothes belonging to the deceased. The Supreme
Court held that the Statement of the appellant was admissible in evidence.
Nandini Sathpathy Vs. Dani: Smt. Nandini Satpathy was the Ex- C.M. of Orissa. She was involved in several
criminal cases. The investigating officer during his investigation interrogated her. She refused to answer. The
police filed a case against her under Section 179 of IPC, which was the offence to refuse to give the answers to a
public officer. Nandini satpathy moved High Court U/A 226 read with Article 20(3), praying protection from the
police officer. It was dismissed; she filed an appeal before the Supreme Court. The Supreme Court stayed the
prosecution proceedings against the petitioner and gave the clear directions to the police not to ask such type of
questions involving and incriminating her in the offence. At the same time, the Supreme Court ordered the
petitioner to give answers to the relevant questions.

Q.No.6. Right to Privacy

The right to privacy is a fundamental right under Article21. The right to privacy or the right to let alone is
guaranteed under Article 21. A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and education among other matters. No one can publish anything
concerning the above matters without his consent whether truthful or otherwise and whether laudatory or
critical. If he does so, he would be violating the right of the person concerned and would be liable in an action for
damages.
 This is subject to exceptions that,
1. if any publication of such matters are based on public record including court record it will be unobjectionable. If
a matter becomes a matter of public record the right to privacy no longer exists and it becomes a legitimate
subject for comment by press and media among others.
2. the right to privacy or the remedy action for damages is simply not available to public officials as long as the
criticism concerns the discharge of their public duties.
 Auto Shankar Case: the Supreme Court has expressly held that “right to privacy” is guaranteed by Art.21 of the
Constitution.
 In State of Maharashtra v/s Madhukar Narain.: it has been held that although the “right to privacy” is available
even to a women of easy virtue and no one can invade her privacy.
 Mr. ‘X‘ v/s Hospital ’Z‘: the Supreme Court has held that although the “right to privacy” is a fundamental right
under Art.21 of the constitution but it is not an absolute right and restrictions can be imposed on it for the
prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.
Q.No.7. Right to Education:
The Constitution 86th Amendment Act, 2002 has added a new Article 21-A after Article 21 and has made
education for all children of the age of 6 to 14 a fundamental right. It provides that ―the State shall provide free
and compulsory education to all children of the age of 6 to 14 years in such manner as the state may, by law
determine‖. It is well known that education is a basic human right for the success of democratic system of
government, education is one of the elements. The framers of the Constitution realising the importance of
education have imposed a duty on the state under Article 45 as one of the directive principle of state policy to
provide free and compulsory education to all children. The object was abolish illiteracy from the country. But it is
unfortunate that even after the lapse of so many years from the commencement of the constitution they did not
take any concrete steps to implement this 40% of the population of the country is still illiterate. The right to life
under Article 21 and the dignity of the individual cannot be realised unless it is accompanied by the right of
education.
 In Mohini Jain v/s State of Karnataka: The matter was raised by the petitioner that the right to education is a
fundamental right under Article 21. The Court held that right to education in all level is a fundamental right under
Article 21-A and charging the high fee for admission is illegal and amount to denial of citizen right to education.
The education in India has never been a commodity.
 In Unni Krishna v/s State of A.P. : Where the Court specifically held that the right to education for the children
of age of 6 to 14 is a fundamental right. Article 21-A makes it obligatory for the Government to enact a Central
Legislation to give effects to the Constitutional amendments. The Legislation will create a mechanism by which a
citizen who is aggrieved that the right to education has not been fulfilled should be able to get relief by filing writ
petitions in the High Courts and the Supreme Court Ultimately Right of a Children to Compulsory Education Act,
2009 was passed by the parliament to give effect to the 86th Amendment Act, 2002. It provides the responsibility
of the Central and State Government , teachers, parents and community members in ensuring that all children of
the age of 6 to 14 years receive free and compulsory education.

Q.No.8. Explain the scope of the fundamental right to freedom of religion under the Indian
Constitution.
India is a secular country. The concept of secularism is implicit in the preamble of the Constitution which declares
the resolve of the people to secure to all its citizens “liberty of thoughts belief, faith and worship”. In matter of
religion it is neutral. The Constitution eliminates God from the matter of State and ensures that no one shall be
discriminated against on the ground of religion. The State can have no religion of its own. It should treat all
religion equally. In a secular state the state is concerned with the relation between man and man. It is not
concerned with the relation of man with god. It is left to the individual conscience.

# Freedom of Religion [ Article-25]

Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate
religion. This right is subject to public order, morality and health and to the other provisions of part-III of the
Constitution. The freedom of conscience is absolute inner freedom of the citizen to mould his own relation with
God in whatever manner he likes. The right to profess a religion means to declare freely and openly one faith and
belief. He has a right to practice his belief by practical expression in any manner he likes. To practice religion is to
perform the prescribed duties rituals and to exhibit his religious beliefs and ideas by such acts as prescribed by
religious order in which he believes. To propagate means to spread and publish his religious views for the
education of others. The right guaranteed in Article 25 like other Constitutional rights, is not absolute. This right is
subject to public order, morality and health and to the other provisions of Part-III of the Constitution.

# Freedom to Manage Religious Affairs [ Article-26]

Article 26 says that, subject to public order, morality and health every religious denomination of any section of it
shall have the following rights:-
* To establish and maintain institutions for religious and charitable purposes,
* To manage its own affairs in matters of religion,
* To own and acquire movable and immovable property,
* To administer such property in accordance with law.

# Freedom From Taxes For Promotion Of Any Religion [Article-27]

Article-27 provides that no person shall be compelled to pay any tax for the promotion or maintenance of any
particular religion or religious denominations. This Article emphasizes the secular character of the State. The
public money collected by way of tax cannot be spent by the State for the promotion of any particular religion.
The reason underlying this provision is that India being a secular State and there being freedom of religion
guaranteed by the Constitution to pay out the public funds any money for the promotion of the particular religion
or particular religious denomination

# Prohibition Of Religious Instruction In State- Aided Institution [Article 28]

According to Article 28 (1) ― No religious instructions shall be imparted in any educational institution wholly
maintained by State funds. But this clause shall not apply to an educational institution which is administered by
the State but has been established under any endowment or trust which requires that religious instructions shall
be imparted in such institution. Article 28 mentions 4 types of educational institutions:
5. Institutions wholly maintained by the State
6. Institutions recognized by the State
7. Institutions that are receiving aid out of the State fund
8. Institutions that are administered by the State but are established under any trust or endowment
 UNIT- 5

Q.No.1. Discuss the relative importance of the Fundamental Rights and Directive Principles of State
Policy with the help of decided cases.

# Introduction:
An individual to lead a life requires some rights. Rights have been described as those claims of an individual that
are necessary for the development of himself and recognized by society or state. Some of the rights that are
recognized by the state and enshrined in the constitution are called fundamental rights. Fundamental rights are
those rights of an individual that are enforceable through courts of law.

The fundamental rights that are provided in the constitution can be divided into six categories are as follows;
1. Right to Equality (Articles 14)
2. Right to Freedom (Articles 19-22)
3. Right against Exploitation (Articles 23-24)
4. Right to Freedom of Religion (Articles 25-28)
5. Cultural and Educational Rights (Articles 29-30)
6. Rights to constitutional remedies. (Article-32-35)

Directive principles of state policy are included in part IV of the Indian constitution. Indian constitution is one
among few constitutions of the world that has incorporated such provisions as a part of the main body of the
constitution. The constitution-makers were inspired to include directive principles of state policy in the
constitution by the constitution of Ireland. One of the main objectives of the constitution-makers in including such
a provision in the constitution was to lay down certain principles for the guidance of the governments. While
formulating their policies the Governments are expected to according to these principles.

During the freedom struggle of India, our national leaders had made promises regarding the fundamental rights
that the citizens of free India should get, these fundamental rights included not only civil & political rights but also
social & economic rights. But when India got Independence the leaders realized that it would not be possible for
them to grant immediately some of the social & economic tights that they had promised in the past. But at the
same time, they did not want to go back on the hurdle. They assigned this task to a subcommittee of the
constituent assembly. The sub-committee suggested that the fundamental rights should be divided into two
categories. Some rights could be granted immediately and others may be granted in the future, if and when the
country was in the position to grant them. This was the genesis of the two parts of the constitution. Part three of
the constitution deals with fundamental rights while part IV relates to directives principles of state policy.

Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the
Constitution, apply irrespective of race, place of birth, religion, caste, creed, or gender. They are enforceable by
the courts, subject to specific restrictions. The Directive Principles of State Policy are guidelines for the framing of
laws by the government.

These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on
which they are based are fundamental guidelines for governance that the State is expected to apply in framing
and passing laws.

# Purposes for insertion of Part III and IV in the constitution of India

The framers of the Indian constitution were aware that there were other constitutions which had given
expression to certain ideals as the goal towards which the country should strive and which had defined the
principles considered fundamental to the governance of the country.
The framers of the Indian constitution, therefore, headed the constitution of India with a preamble which
declared India‘s goal and inserted parts III and IV in the constitution.
# Relation between Directive Principles of State Policy and Fundamental Rights:
The genesis and objectives underlying part III and part IV have common desideratum in responding to the social
consciousness rest with the constitution making force. Which fundamental rights focus on interests of personality,
the Directives principles look on to the welfare of society. Judicial remedies for fundamental rights and non justice
able of directive principles are the deliberate strategies of the constitution. The dichotomy between part III and
part IV and the supremacy of former over the latter a theory based on formalistic and too textual an
interpretation in Champakam Dorairajan did not last for long time.

A government order of the Madras government divided seats in colleges on the basis of religion and caste. This
was repugnant to article 29(2). But it was argued that the government order could be supported on the basis of
article 46 of the constitution which makes the state responsible for promoting the education interests of the
weaker sections of people. The Supreme Court held that the fundamental rights under Article 29(2) over the
Directive principle under article 46. So the government order was struck down. It was held that in case of any
conflict between part III and part IV, the part III would prevail. These observations of the court were based on the
literal interpretation of the provision of article 37 which declares the directive principle not justifiable. A
remarkable change had come over in the judicial attitude on the
question of inter relationship.

In Kerala Education bill, The Supreme Court observed ―though the directive principles cannot override the
fundamental rights, nevertheless, in determining the scope and ambit of fundamental rights the court could not
entirely ignore the directive principle but should adopt the principle of harmonious construction and should
attempt to give effect to both as much as possible. The Supreme Court began to assert that there is “no conflict
on the whole” between the fundamental rights and the directive principles. They are complementary and
supplementary to each other.

In Chandrabhavan and Kesavananda Bharati cases inaugurated a new era of integrationist approach which could
emphasis the under pinning of interrelated value of part III and part IV, Kesavananda Bharati‘s case stood for
penetration of the notion of distributive justice under Article 39(b) and (c) into the property relations by
upholding the constitutionality of Article 31c. the legislative contributions through agrarian and economic
reforms, labor welfare and other social justice statutes have by focusing on social welfare, ultimately enhanced
the worth of fundamental rights. Judicial review, by removing unreasonable provisions monitored this process. In
practice, the interconnections of rights are more sensitized when the government takes the directive principles of
state policy seriously.

In Minerva Mills Limited v/s Union of India The court observed that the constitution was founded on the bed-
rock of balance between part III and part IV. To give absolute primacy to one over the other was to disturb the
harmony of the constitution. This harmony and balance between fundamental rights and the directive principles
is an essential feature of the basic structure of the constitution. Both the fundamental and directive principles of
the state policy are embodying the philosophy of our constitution, the philosophy of justice social economic and
political. They are the two wheels of the chariot as an aid to make social and economic democracy a truism.

In Bandhua Mukti Morcha v/s Union of India. The approach of sticking to strict legalism in the implementation of
laws enforcing directive principles, which in turn promote fundamental rights, has increased the role of directive
principles in the inter-relationship doctrine. The integrative approach towards fundamental rights and directive
principles or that the both should be interpreted and read together has now come to hold the field. It has now
become a judicial strategy to read fundamental rights along with Directive principles to define the scope and the
ambit of the former. Mostly, directive principles have been used to broaden and to give depth to some
fundamental rights and to imply some more rights therein for the people over and what is expressly stated in the
fundamental rights.
By reading article 21 with the directive principles, the Supreme Court has expanded the horizon of article 21 and
derived therefrom different rights of the citizen. Some of them are;
Right to life includes the right to enjoy pollution-free water, air, and environments. The court has
derived this right by reading article 21 with article 48A.
The right to health has been recognized as the fundamental right of the workers under article 21. Article 23 and
24 deal with rights against exploitation. Those articles reflect the principles of article 39c. the directive principles
that the tender age of children and not abused and the children are given opportunities and facilities to develop
in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment are supported by the post-Maneka jurisprudence of
rights of children under article 21 and 24. In Asad and Salal Hydro project cases, the Supreme Court applied article
24 along with article 21 to prohibit child labor from being influence by the above directive principles. The right to
education under Article 21A is to be understood with reference to
directive principles contained in articles 41 and 45.

It is necessary to look into the interrelationship between specific directive principles and fundamental rights in
active practice. The central theme of directive principles is human development with distributive justice, which
aims at the upward movement of the entire social system by making more people better off without making
others worse off. The interrelationship between the two results in greater freedom and autonomy to all people,
reduction of disparity in access to resources and opportunities, and sustainability of the environment. Although
directives principles is a policy, because of its importance to human rights values, its elevation to principle has
taken place through the inter-relationship, at least in core areas.

I. Directive Principles of state policy, which are related to distributive justice, molded the property relations by
influencing the inter-relationship doctrine both directly strive for promoting justice, social, economic, and
political, in the social order.

II. The inter-relationship doctrine is very much influenced by article 39A providing for equal justice and free legal
aid in the justice delivery system. According to article 39A. The state shall secure that the operation of the legal
system promotes justice, on a basis of equal opportunity and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way to ensure that opportunities for securing or other disabilities. The role
of this provision was pivotal in removing the impediment of poverty in one‘s access to a grievance redressed
system.

III. The directive principles that the state shall strive to secure its citizens right to an adequate means of livelihood
and make effective provision for securing rights to work article 41 provided a basis for the supreme court in Olga
Tellis to locate right to livelihood in right to life under article 21, at least the circumstance of deprivation of that
right. The post-Maneka approach of just a fair and reasonable procedure become a handy instrument in this
regard similarly various positive rights of life like the right to food, health, environment, and education were
evolved by emphasizing the relevant directive principles of state policy. It is important to note that the language
of these provisions hinted at the limitation of the scope of the positive rights also. This enabled a pragmatic
approach to positive rights.

IV. The directive principle that “tender age of children are not abused” and article 39(f) could give impetus to and
also get supported by the post-Maneka jurisprudence of rights of children under articles 21 and 24. In Asiad
construction and Salal hydro project cases, the Supreme Court applied Article 24 in collaboration with article 21 to
prohibit child labor from being partly influenced by the above directive principles.

V. The directive principles of “Equal pay for equal work” and “participation of workers in management” were
received through right to equality under Article 14 into part III in Randhir Singh v/s UOI and national textile
workers Union v/s P.R. Ramakrishna cases, and in turn assisted freedom of occupation under article 19(1) or right
to livelihood under Article 21.
VI. The directive principles relating to uniform civil code has to the potentiality of using the interrelationship
doctrine for its implementation. Application of articles 14, 19, 21 in examining the constitutionality rights or right
to maintenance has shown the permeability of these noble principles into personal laws will be compelled to
conform to these standards, and hence uniform of constitutional spirit will persuade for uniform standards.

VII. Articles 46 of DPSP provides a guidance for affirmative actions under articles 15(4) and 16(4) and a pointer for
resonant the tension between formal and substantive equality by laying emphasis on infusing of strength and
ability to compete, through education and training to the weaker sections. VIII. The directives principles that the
state shall Endeavour to foster respect for international law and treaty obligations articles 51 has great
potentiality of absorbing the international principle relating to guarantee of human rights, and thus influence the
inter-relationship doctrine

# Conclusion:
The inter-relationship doctrine between fundamental rights and directive principles of state policy is not only
theoretical but also practical and rewarding. Fundamental rights provide for political freedoms to the citizens by
protecting them against excessive state action while directive principles are to securing social and economic
freedom by appropriated action both are the inspiration of reform legislation. The fundamental rights should be
interpreted in the light of directive principles to observe the limits set by directive principles in the scope of the
fundamental rights. For example article 39, 39-A can be interpreted with article 21 of the constitution, and article
46 can be interpreted with articles 29 and 30 of the constitution.

Q.No.2. Discuss the Right to Constitutional Remedies under Articles 32 and 226 of the Constitution.
# Introduction:
Part III of our Constitution provides for legal remedies for the protection of these rights against their violation by
the State or other institutions/individuals. It entitles the citizens of India to move the Supreme Court or High
Courts for the enforcement of these rights. The State is forbidden from making any law that may conflict with the
Fundamentals Rights. Art. 32. Remedies for enforcement of rights conferred by this Part.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas
corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
(3) Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any
of the powers exercisable by the Supreme Court under.
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

The Constitution of India provides various Fundamental rights to all its citizens. The provisions for proper
enforcement of these Fundamental rights are also given in the Constitution.
In simple terms, enforcement of the Fundamental Rights is safeguarded with the help of 5 prerogative Writs.
Writs are nothing but written orders of the court ordering a party to whom it is addressed to perform or cease
from performing a specified act. So Article 32 empowers the Supreme Court while Article 226 empowers the High
Courts to issue writs against any authority of the State to enforce the Fundamental Rights. Article 32 is the heart
and soul of our Constitution. Let us now understand the five types of Writs:

1. Writ of Habeas Corpus:

One of the valuable writs for personal liberty is “Habeas Corpus” which means “You may have the body”. If any
person is detained in prison or private custody without legal justification; this writ is issued to the authority
confining such person, to produce him/her before the Court. The Court intervenes here and asks the authority to
provide the reasons for such detention and if there is no justification, the person detained
is set free. The applicant for this writ can either be the person in detention or any person acting on his/her behalf
to protect his/her liberty. This writ provides immediate relief in case of unlawful detention.
For instance: the first Habeas Corpus case in India was filed in Kerala where P. Rajan, a college student was
arrested by the Kerala police and he died in custody unable to bear the torture. His father Mr. T.V. Eachara
Warrier filed a Habeas Corpus writ and it was proved that Rajan died in police custody.

2. Writ of Certiorari:
The meaning of Certiorari is to be certified. This writ is issued when any lower court or a tribunal exercises a
wrongful jurisdiction and decides the case. The party affected can move this writ to higher courts like the High
Court or the Supreme Court. Writ of Certiorari can be issued to the quasi-judicial or subordinate courts when they
act:
 In excess or without any jurisdiction
 In contravention to the principles of Natural justice
 In violation of the prescribed procedure as established by law
 Resulting in an error of judgment apparent on the face of it.
 The writ of Prohibition and Writ of Certiorari are similar except for the time of their issuance. The former is
issued before the passing of the order by the lower court while the latter is issued after passing of the order.

3. Writ of Mandamus:
The term “Mandamus” in Latin means “We command”. This writ is issued to a public official who refrains from
performing his public duties which he is obliged to do. This writ can also be issued to any public authority
(including the government, corporation, and Court) who commits an act that is detrimental to the welfare of the
general public. This writ however cannot be issued against the President and the Governor.

4. Writ of Quo-Warranto:
“By what warrants?” is the literal meaning of the term Quo-Warranto. The issuance of this writ takes place to
restrain a person from acting in public office to which he is not entitled. In simple words, if a person occupies a
public office without being qualified for the office, then this writ is issued to restrain the concerned authority from
discharging his duties. The High Court of that particular state has the authority to issue this writ and direct the
person to vacate the office in question. The writ of Quo-warranto is issued in 3 instances when
 The office in question is a public office and is substantive in nature.
 The State or the Constitution has created the office
 The public servant (respondent) should have asserted a claim on the office.

5. Writ of Prohibition:
Writ of Prohibition is issued to a subordinate to cease doing something which it is not supposed to do as per law.
Normally, this writ is issued by the superior courts to the lower courts when the lower court tries to exceed the
limit of jurisdiction vested in it. Likewise, if the court acts in absence of jurisdiction, this writ can be issued. Once
this writ is issued the lower court is under an obligation to stop its proceedings. One cannot issue this writ against
a public official who does not have judicial or quasi-judicial powers. This writ is issued before the lower court
passes an order.

Q.No.3.Discuss the significance of Directive Principles of State Policy. Bring out the differences
between Fundamental Rights and Directive Principles of State Policy.

# DIRECTIVE PRINCIPLES OF STATE POLICY-

[Part-IV Articles 36 To 51]
The Directive Principles of State Policy contained in Part IV of the Constitution set out the aims and objectives to
be taken up by the States in the governance of the Country. The DPSP is borrowed from the Constitution of
Ireland. The idea of a welfare state envisaged by our Constitution can only be achieved if the States endeavor to
implement them with a high sense of moral duty. Today we are living in an era of a
welfare state which has to promote the prosperity and well-being of the people. The DPSP lay down certain social,
economic, and political policies to be persuaded by the various Governments in India.

# Objects of the DPSP:

The DPSP are the ideals which the union and the state government must keep in mind while they formulate the
policies or pass a law. They lay down certain social, economic, and political principles suitable to peculiar
conditions prevailing in India. The main object in enacting the DPSP appears to have been to set standards of
achievements before the Legislature and Executive, the local, and other authorities. They lay down the goals
which may be achieved through various means which have to be devised from time to time.

# Classification of DPSP
A. Social and Economic Charter:
1. Social Order Based On Justice:
Article 38 provides that 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 aspects can be achieved. The
concept of ‘Social Justice‘ consists of diverse principles essential for the orderly growth and development of the
personality of every citizen. Social justice is an integral part of justice. Social justice aims to attain a substantial
degree of social, economic, and political equality. Social justice and equality are complementary to each other so
that both should maintain their vitality.

2. Principles Of Policy To Be Followed By The State For Securing Economic Justice:

Article 39 specifically requires the State to direct its policy towards securing the following principles:-
a. Equal rights of men and women to adequate means of livelihood.
b. Distribution of ownership and control of the material resources of the community to the common good.
c. To ensure that the economic system should not result in the concentration of wealth and means of production
to the common detriment.
d. Equal pay for equal work for both men and women.
e. To protect the health and strength of workers and tender age of children and to ensure that they are not forced
by economic necessity to enter avocations unsuited to their age and 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.

B. Social Security Charter

1. Participation of workers in the management of Industries(Art-43-A)
According to Article 43-A, that the State should take steps, by suitable legislation or in any other way to secure
the participation of workers in the management of undertakings, establishments, or other organizations engaged
in any industry.

2. Right to work, education, and public assistance in certain cases. (Art-41)

Article 41 directs the State to ensure the people within the limit of its economic capacity and development: (a)
employment, (b) education, and (c) public assistance in cases of unemployment, old age, sickness and
disablement, and in other cases of undeserved want.

3. Just and human conditions of work. (Art-42)

Article- 42 directs the State to make provisions for securing just human conditions and for maternity relief.

4. Living wages for workers (Art-43)

Article 43 requires that the State try to secure by suitable legislation or economic organization or in any other
way, to all workers, agricultural, industrial or otherwise, living wages, conditions of work ensuring a decent
standard of life and full enjoyment of leisure and social and cultural opportunities.
5. Provisions for early childhood care and education to children below the age of 6 years (Art-45) :
Article 45 required Provision for free and compulsory education for children The State shall endeavor to provide,
within ten years from the commencement of this Constitution, for free and compulsory education for all children
until they complete the age of fourteen years.

6. Duty to raise the standard of living and improvement of health. (Art-47)

Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State
shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of
public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of
the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

7. Promotion of educational and economic interest of weaker sections (Art-46)

Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker
sections The State shall promote with special care the educational and economic interests of the weaker sections
of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation.

8. Equal justice and free legal aid to economically backward classes(Art-39-A)

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 conditions of freedom
and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment.

C. Community Welfare Charter

1. Uniform Civil Code-Article 44
Uniform civil code for the citizens The State shall endeavor to secure for the citizens a uniform civil code
throughout the territory of India. Article 44 of the Constitution expressly directs that the State shall endeavor to
bring a Uniform Civil Code throughout the country; All Indians now have a common criminal law—the IPC and Cr.
P.C— which are uniformly applicable. ‘Personal‘ law for the communities, however, differs, one common
denominator being the generally discriminatory gender adverse treatment of women.

Recently, the Supreme Court of India again called for a UCC. The Supreme Court first directed the Parliament to
frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as
the Shah Bano case. In this case, a penurious Muslim woman claimed maintenance from her husband under
Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The Supreme Court held
that the Muslim woman has a right to get maintenance from her husband under Section 125. The Court also held
that Article 44 of the Constitution has remained a dead letter.

The Shah Bano case decision by way of the Muslim Women (Right to Protection on Divorce) Act, 1986 curtailed
the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The
explanation given for implementing this Act was that the Supreme Court had merely made an observation for
enacting the UCC, not binding on the government or the Parliament and that there should be no interference with
the personal laws unless the demand comes from within.

The second instance in which the Supreme Court again directed the government of Article 44 was in the case of
Sarla Mudgal v. Union of India. In this case, the question was whether a Hindu husband, married under Hindu law,
by embracing Islam, can solemnize second marriage The Court held that a Hindu marriage solemnized under the
Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion
to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second
marriage solemnized after converting to Islam would be an offence under Section 494 of the Indian Penal

UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on the concept that
there is no necessary connection between religion and personal law in a civilized society. Marriage, succession,
and like matters are of secular nature and, therefore, the law can regulate them. No religion permits deliberate
distortion. The UCC will not and shall not result in interference of one‘s religious beliefs relating, mainly to
maintenance, succession, and inheritance. This means that under the UCC a Hindu will not be compelled to
perform a nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to property,
maintenance and succession, there will be a common law.

2. Organization of Agriculture and Animal Husbandry- Article 48

The organization of agriculture and animal husbandry The State shall endeavor to organize agriculture and animal
husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the
breeds, and prohibiting the slaughter, of cows and calves and other milk and draught cattle.

3. Protection and Improvement of Forests and Wild Life- Article 48-A

Protection and improvement of environment and safeguarding of forests and wildlife The State shall endeavor to
protect and improve the environment and to safeguard the forests and wildlife of the country.

4. Protection of Monuments and Places and Objects of National Importance-Article 49

Protection of monuments and places and objects of national importance It shall be the obligation of the State to
protect every monument or place or object of artistic or historic interests, declared by or under law made by
Parliament to be of national importance, from spoliation, disfigurement, destruction, removal,
disposal or export, as the case may be.

5. Separation of Judiciary from Executive-Article 50

Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in
the public services of the State

6. Promotion of International Peace and Security- Article 51

Promotion of international peace and security The State shall endeavor to
(a) promote international peace and security;
(b) maintain just and honorable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one
another; and encourage settlement of international disputes by arbitration.

7. Organisation of Village Panchayats-Article-40

The organization of village Panchayats the State shall take steps to organize village Panchayats and endow them
with such powers and authority as may be necessary to enable them to function as units of self-government.

# Relation between Directive Principles of State Policy and Fundamental Rights:

The Constitutional balance and harmony between fundamental rights and DPSP policy is itself an aspect of the
basic structure of the Constitution. There is inter- relationship between them. The provisions contained in part-IV
(DPSP) shall not be enforceable by any Court. The DPSP differ from fundamental rights in this respect that while
Fundamental Rights are justifiable, DPSP are not-justifiable. According to Article-37, the Directive Principles,
though they are fundamental in the governance of the country. It shall be the duty of the State to apply these
principles in making laws, but they are expressly made not justifiable. On the other hand, fundamental rights are
enforceable by the Courts and the Courts are bound to declare void any
the law that is inconsistent with the fundamental rights.
 The DP is not enforceable by the Courts nor can the courts declare as void any law which is otherwise valid on the
ground that it contravenes any of the directives. If any Government ignores them they will certainly have to
answer for them before the electorate at the time of the election. The DPSP are not intending to be merely moral
precepts. It is, therefore, not correct to criticize these principles as meaningless and useless. It is wrong to say that
there is no sanction behind them. Since the DPSP has been embodied in the Constitution, the Government is
bound to implement them. There may not be the legal force behind them but the highest tribunals, the public
opinion stand behind them. No Government can afford to ignore these directions. In Kesavananda Bharati v/s
State of Kerala: The Supreme Court has said that ― fundamental rights and DPSP aim at the same goal of bringing
about a social revolution and establishment of a welfare state and they can be interpreted and applied together.
They are supplementary and complementary to each other. It can well be said that DPSP prescribed the goal to be
attained and the fundamental rights lay down how the goal is to be achieved.

Q.No.5.Right to property prior to 1978 and present position.

What is Property?
The word property interpreted by SC for Art. 31 has said, should be given a liberal meaning and should be
extended to all those well-recognized types of interest which have the insignia or characteristic of property
right[1]. The expression property in Article 300A is confined not only to land alone. It includes both corporal and
incorporeal rights [2]. It includes Money[3], contract, interest in the property, etc.

Right to Property as a fundamental right

Since the Constitution of India came into force in the 1950s, the right to property was given fundamental status.
Basically, two articles Art. 31 and Art. 19(1)(f) ensures that any person’s right against his property remains
protected.
Art. 31 clause (1) reads as No person shall be deprived of his property save by authority of law. It gives
protection to persons against the government or State’s arbitrary action to seize private property for public use
and private use. That means a person has right to move to SC in case of violation of this right. At this juncture it is
essential to understand the power of Eminent Domain- every government has an inherent right to take and
appropriate the private property belonging to an individual citizen for public use[4]. It is based on the legal maxim
Salus Populi est suprema lex meaning the welfare of people or the public is the paramount law.

In America, this power was limited by imposing three restrictions:

1. there must be a law authorizing the taking of property

2. the property must be taken for a public purpose
3. just compensation should be paid.

In India clause (1) of art. 31 provides for first restriction and clause (2) reading No property shall be compulsorily
acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition
of the property for an amount which shall be fixed by such law, and no such law be called in question in any court
on the ground that the amount so fixed is not adequate for the other two restrictions.

Article 19(1)(f) provides the freedom to citizens to acquire, hold, and dispose of the property within the territory
of India.

But by the Constitutional 44th Amendment act 1978, these two above mentioned articles were deleted and a new
chapter IV was added in Part XII, containing only one article 300A.

The legal status of the Right to Property was changed from the fundamental right to constitutional right. As a
 result, people were not allowed to approach Supreme Court directly u/A 32 of the constitution for violation of the
Right to Property although they still could invoke jurisdiction at high court u/A 226 of COI.

In Jilubhai Nanbhai Khachar v. State of Gujrat[5], it was held that the Right to property u/A 300A is not a basic
structure of the Constitution. It is only a constitutional right.

Why the 44th amendment act was made?

In order to understand why such a step was taken by the Parliament of India, it is necessary to understand that
before India get its independence there were four major systems prevailing – the Ryotwari system, Mahalwari
system, Zamindari system, and Jagidari system. Due to these large parts of land was in possession of zamindars,
tenants, and like people, which causes an unequal distribution of land and increases the gap between rich and
poor.

Since 1947-1950, the constituent assembly worked day and night to draft the Constitution of India. Members of
the constituent assembly were concerned by the situation at that time and knew various land reforms and
acquisition acts will be needed to pass, due to the above-mentioned system, so in order to redistribute land and
to rectify the damage various steps were taken:

1. Provisions related to saving of certain laws were added- By Constitution 1st amendment act 1951 Art. 31A and
31B were added. Art.31A provides that no law providing for the acquisition of any estate or any right or
modification of any right will not be deemed to be void on the basis that it is inconsistent with Art. 14 and 19.
Art.31B provides for validation of certain acts and regulations, it says that none of the acts and regulations
mentioned in the IX Schedule of the constitution would be deemed to be void on the ground that it is inconsistent
with the rights conferred in Part III of the constitution. Later on, by the 4th amendment 1955, the scope of the
estate was increased, it includes any jagir, inam or muafi, or any other similar grants.

2. Land ceiling was one of the strongest measures taken in this regard. Ceiling means the maximum limitation on the
area that can be acquired by a private person. In the year 1959 at the Nagpur conference of Indian National
Congress, it was decided that laws or acts related to the restriction of land limits must be implemented till the end
of the year. The land ceiling act was implemented from 1960-1972 and from1976-1999.

Despite such efforts by the government the zamindars and other land owners whose ceiling limit exceeded
approached Supreme Court using their fundamental right to property with the intention to hold acts
unconstitutional. So, in order to stop this from happening and with a view to doing economic justice, Art.31, and
Art. 19(1)(f) ceased to be a fundamental right and was modified as a constitutional right in new chapter IV Part XII
of the Constitution as Art. 300A, which continues to exist and follow till today.

Present Legal Status of Right to Property

By 44th Amendment Act 1978 of the Constitution of India, a new article namely 300A was inserted and titled as
Right to Property. It read as:
No person shall be deprived of his property save by authority of law. This article provides restrictions on the State
that it cannot take anybody’s property without the force of law also interpreted can be deprived of the force of
law. The word ‘law’ here means a validly enacted law which is just, fair, and reasonable [6].

In the case of Hari Krishna Mandir Trust vs the State of Maharashtra And Others[7], it was held by the SC that
the appellant cannot be deprived of his strip of land being a private road, without the authority of law, if allowed
will be a violation of Art. 300A of COI.

Art. 31 used to impose a similar limitation on the power of Eminent Domain as in America but the new Art. 300A
only imposes one restriction on this power that is the authority of law.
It is obvious such deprivation will have the force of law only when it is for public welfare and is just, fair and
reasonable. In the case of K.T. Plantation Pvt. Ltd. v. State of Karnataka [8], it was held by SC that the requirement
of public purpose is invariably the rule when a person is deprived of his property.

The main question arises if any person is deprived of his property by the force of law for the public interest, will
he be entitled to compensation?
The answer is yes. Although it is not explicit like in Art. 30(1)(A) as well as in 2nd proviso of Art.31A (1) but yet it
can be inferred in Article 300A. The State has to justify its stand on justifiable grounds which depend upon
legislative policy.

Right to own Private Property is a Human Right

In the recent judgment of Vidhya Devi v. The State of Himachal Pradesh & Ors.[9], it was held by SC that the
Right to own Private Property is a human right and cannot be denied. The party depriving one’s right to property
must have the authority of law. In this case, the plaintiff was given compensation for the wrong acquisition of
property by the state.

Conclusion
Due to the excessive possession of land by the zamindars and tenants, the legal status of the Right to freedom
was changed from a fundamental right to a constitutional right in order to avoid the situation of misusing of right
to property as a fundamental right by zamindars and another landowner against state measures to acquire land
and to implement land ceiling laws in India. Still, this right is available to all persons as a constitutional right and
can invoke the jurisdiction in high court u/A 226 of the Constitution of India.