Fundamental Rights

Dr. Vijaishree Pandey

Background
• The Simon Commission and the Joint Parliamentary committee, which were
responsible for the Government of India Act, 1935 (the main source of Indian
Constitution), had rejected the idea of declaration of fundamental rights on the
ground that “abstract declarations are useless, unless there exist the will and the
means to make them effective”.
• Regardless of the British opinion, the makers of our Constitution adopted
Fundamental Rights to safeguard individual liberty. And if combined with DPSP,
provide social, economic and political justice for every member of the society.
• They were of the opinion that democracy is meaningless without fundamental
rights.
• Initially, the constitution of India had 7 Fundamental Rights that are borrowed
from the Constitution of the USA. But later on, Right to property was abolished
and now there are just 6 Fundamental Rights in force. In this article, we have
explained meaning of all the Fundamental Rights in detail.
Fundamental rights in the Indian
Constitution
Fundamental Right
• Fundamental Right is called Fundamental because it is most important pride for
and wholistic development of personality of the individual. It is also called as
fundamental because a person can directly move to Supreme Court in case of its
violation.

• Significance of Fundamental Rights

• Fundamental Rights are individual rights and without them democracy is

meaningless, Fundamental Rights cannot be violated under all circumstances. A
society cannot develop or proper effectively without Fundamental Rights.
Fundamental Rights are given to the individuals mostly against the state because
state is supported to be the biggest violator of individual rights. However, same of
the articles has been designed to protect the individuals not only from the state
but also from other individuals.
Absolute In Nature
• Fundamental Rights are not absolute rights, these are restricted rights. Supreme
Court in A.K. Gopalan v/s State of Madras case (1950), said that there cannot be
any such thing as absolute or uncontrolled liberty only freed from restraints as it
may lead to anarchy and disorder.

• The purpose of Fundamental Right is to establish rule of law. On the other hand,
if state is given absolute power over the individual, the result would tyranny or
state terror. Therefore, there shall be a balance between individual liberty and
social needs.

• As a result, parliament is empowered to impose reasonable restrictions on

Fundamental Rights, Following are the grounds for reasonable restrictions on
Fundamental Rights –
• In the interest of Schedule Caste (SC’s/ST’s) and other weaker
sections of the society including women and children.
• Public order, decency and morality contempt of court, defamation.
• Sovereignty and integrity of India.
• Security of the state.
• Friendly relations with foreign state.
• However, the following 2 articles are exceptions that is, these are
absolute in nature and having no reasonable restrictions on it.
• Article 17 – Abolition of Untouchability.
• Article 24 – Children below the age of 14 years can’t be employed in
any hazardous job.
Meaning And Importance Of Fundamental
Rights
• The rights, which are enshrined in the Constitution, are called
‘Fundamental Rights’. These rights ensure the fullest physical, mental and
moral development of every citizen. They include those basic freedoms and
conditions which alone can make life worth living. Fundamental Rights
generate a feeling of security amongst the minorities in the country. They
establish the framework of ‘democratic legitimacy’ for the rule of the
majority. No democracy can function in the absence of basic rights such as
freedom of speech and expression. Fundamental Rights provide standards
of conduct, citizenship, justice and fair play. They serve as a check on the
government. Various social, religious, economic and political problems in
our country make Fundamental Rights important. In our Constitution,
Fundamental Rights are enumerated in Part III from Article 14 to 32. These
rights are justiciable.
Our Constitution does not permit the legislature and the executive to curb these rights either by law or by an executive
order. The Supreme Court or the High Courts can set aside any law that is found to be infringing or abridging the
Fundamental Rights. You will read about it in detail in the lesson on ‘Judiciary’. Some of the Fundamental Rights are also
enjoyed by foreigners, for example, the Right to Equality before Law and Right to Freedom of Religion are enjoyed by
both i.e. citizens as well as foreigners. The Fundamental Rights though justiciable are not absolute. The Constitution
empowers the government to impose certain restrictions on the enjoyment of our rights in the interest of public good.
Seven Fundamental Rights were enshrined in the Constitution of India. However the Right to Property was removed
from the list of Fundamental Rights by the 44th Amendment Act of the Constitution in the year 1976. Since then, it has
been made a legal right.
There are now six Fundamental Rights.

The Fundamental Rights are: -

1. Right to Equality
2. Right to Freedom
3. Right against Exploitation
4. Right to Freedom of Religion
5. Cultural and Educational Rights, and
6. Right to Constitutional Remedies.

Recently by the 86th Amendment Act, the Right to Education has been included in the list of Fundamental Rights as
part of the Right to Freedom by adding Article 21(A). We will now study these rights one by one.
Preamble
Dr. Vijaishree Pandey
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 of opportunity;

and to promote among them all FRATERNITY assuring the dignity of the individual
and the unity and 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
What is a Preamble?
• A preamble is an introductory statement in a document that
explains the document’s philosophy and objectives.
• In a Constitution, it presents the intention of its
framers, the history behind its creation, and the core
values and principles of the nation.
• The preamble basically gives idea of the following things/objects:

• Source of the Constitution

• Nature of Indian State
• Statement of its objectives
• Date of its adoption
History of the Preamble to Indian
Constitution
• The ideals behind the Preamble to India’s Constitution were laid
down by Jawaharlal Nehru’s Objectives Resolution, adopted by
the Constituent Assembly on January 22, 1947.
• Although not enforceable in court, the Preamble states the
objectives of the Constitution, and acts as an aid during the
interpretation of Articles when language is found ambiguous.
Components of Preamble
• It is indicated by the Preamble that the source of authority of the
Constitution lies with the people of India.
• Preamble declares India to be a sovereign, socialist, secular and
democratic republic.
• The objectives stated by the Preamble are to secure justice, liberty,
equality to all citizens and promote fraternity to maintain unity and
integrity of the nation.
• The date is mentioned in the preamble when it was adopted i.e.
November 26, 1949.
  Key words in the Preamble
 We, the people of India: It indicates the ultimate sovereignty of the people of India. Sovereignty means
the independent authority of the State, not being subject to the control of any other State or external power.
 Sovereign: The term means that India has its own independent authority and it is not a dominion of any
other external power. In the country, the legislature has the power to make laws which are subject to
certain limitations.
 Socialist: The term means the achievement of socialist ends through democratic means. It holds faith in a
mixed economy where both private and public sectors co-exist side by side.
 It was added in the Preamble by 42nd Amendment, 1976.
 Secular: The term means that all the religions in India get equal respect, protection and support from the
state.
 It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.
 Democratic: The term implies that the Constitution of India has an established form of Constitution which
gets its authority from the will of the people expressed in an election.
 Republic: The term indicates that the head of the state is elected by the people. In India, the President of
India is the elected head of the state.
 Objectives of the Indian Constitution
The Constitution is the supreme law and it helps to maintain integrity in the society and to promote unity among
the citizens to build a great nation.
The main objective of the Indian Constitution is to promote harmony throughout the nation.
The factors which help in achieving this objective are:
 Justice: It is necessary to maintain order in society that is promised through various provisions of Fundamental
Rights and Directive Principles of State Policy provided by the Constitution of India. It comprises three
elements, which is social, economic, and political.
 Social Justice – Social justice means that the Constitution wants to create a society without discrimination on
any grounds like caste, creed, gender, religion, etc.
 Economic Justice – Economic Justice means no discrimination can be caused by people on the basis of their
wealth, income, and economic status. Every person must be paid equally for an equal position and all people
must get opportunities to earn for their living.
 Political Justice – Political Justice means all the people have an equal, free and fair right without any
discrimination to participate in political opportunities.
 Equality: The term ‘Equality’ means no section of society has any special privileges and all the people have
given equal opportunities for everything without any discriminations. Everyone is equal before the law.
 Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have political views and
behavior in society. Liberty does not mean freedom to do anything, a person can do anything but in the limit set
by the law.
 Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the country
and all the people. Fraternity helps to promote dignity and unity in the nation.
Importance of Objectives:
• It provides a way of life. It includes fraternity, liberty, and equality as the notion of
a happy life and which can not be taken from each other.
• Liberty cannot be divorced from equality, equality cannot be divorced from liberty.
Nor can liberty and equality be divorced from fraternity.
• Without equality, liberty would produce the supremacy of the few over the many.
• Equality without liberty would kill individual initiative.
• Without fraternity, liberty would produce the supremacy of the few over the many.
• Without fraternity, liberty and equality could not become a natural course of
things.
Berubari Case:

• It was used as a reference under Article 143(1) of the

Constitution which was on the implementation of the Indo-
Pakistan Agreement related to the Berubari Union and in
exchanging the enclaves which were decided for consideration
by the bench consisting of eight judges.
• Through the Berubari case, the Court stated that ‘Preamble is
the key to open the mind of the makers’ but it can not be
considered as part of the Constitution. Therefore it is not
enforceable in a court of law.
Keshvananda Bharti v. St of Kerala
• In this case, for the first time, a bench of 13 judges was assembled to hear a writ petition.
The Court held that:
• The Preamble of the Constitution will now be considered as part of the Constitution.
• The Preamble is not the supreme power or source of any restriction or prohibition but it
plays an important role in the interpretation of statutes and provisions of the Constitution.
• So, it can be concluded that preamble is part of the introductory part of the Constitution.
• In the 1995 case of Union Government Vs LIC of India also, the Supreme Court has once
again held that Preamble is the integral part of the Constitution but is not directly
enforceable in a court of justice in India.
Amendment of the Preamble
• 42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati case,
it was accepted that the preamble is part of the Constitution.
• As a part of the Constitution, preamble can be amended under Article 368 of the
Constitution, but the basic structure of the preamble can not be amended.
• As of now, the preamble is only amended once through the 42nd Amendment
Act, 1976.
• The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through
42nd Amendment Act, 1976.
• ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.
• ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
Preamble
STATE
COI
Article 12 of the Indian Constitution
states that
◦ “Definition 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
Key terms discussed under the article
1.Government (Union and state)
2.Parliament and state legislature
3.Local authorities
4.Other authorities
5.Territory of India
6.Control of the government of India
◦ The above-mentioned terms are better explained in the following section along with
relevant cases.
Government (Union and state),
Parliament and State Legislature
• Parliament: 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.
• Executive: It is that organ which implements the laws passed by the legislature
and the policies of the government. The rise of the welfare state has tremendously
increased the functions of the state, and in reality, of the executive. In common
usage, people tend to identify the executive with the government. In contemporary
times, there has taken place a big increase in the power and role of the executive
in every state. The executive includes the President, Governor, Cabinet Ministers,
Police, bureaucrats, etc.
• Legislature: The legislature is that organ of the government which enacts the laws of
the government. It is the agency which has the responsibility to formulate the will of
the state and vest it with legal authority and force. In simple words, the legislature is
that organ of the government which formulates laws. Legislature enjoys a very special
and important in every democratic state. It is the assembly of the elected
representatives of the people and represents national public opinion and power of the
people.
• Government: The law-making or legislative branch and administrative or executive
branch and law enforcement or judicial branch and organizations of society. Lok Sabha
(the lower house) and Rajya Sabha (the upper house) form the legislative
branch. Indian President is the head of the state and exercises his or her power directly
or through officers subordinate to him. The Supreme Court, High Courts, and many
civil, criminal and family courts at the district level form the Judiciary.
• State Legislature: The legislative body at the state level is the State Legislature. It
comprises of the state legislative assembly and the state legislative council.
Local Authorities
◦ Before understanding what a local authority is, it is important to define Authorities.
According to Webster’s Dictionary; “Authority” means a person or body
exercising power to command. When read under Article 12, the word authority
means the power to make laws (or orders, regulations, bye-laws, notification etc.)
which have the force of law. It also includes the power to enforce those laws
◦ Local Authority: As per Section 3(31) of the General Clauses Act, 1897,
◦ “Local Authority shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the Government
within the control or management of a municipal or local fund.”
◦ The term Local authority includes the following:
1.Local government: According to Entry 5 of the List II of VII Schedule ‘local government’
includes a municipal corporation, improvement trust, district boards, mining settlement authorities
and other local authorities for the purpose of local self-government or village administration.
2.Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the
meaning of the term local authority, village panchayat is also included.
◦ Test to determine Local Authorities
◦ In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be
characterized as a ‘local authority’ the authority concerned must;
1.Have a separate legal existence as a corporate body
2.Not be a mere government agency but must be legally an independent entity
3.Function in a defined area
4.Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
5.Enjoy a certain degree of autonomy (complete or partial)
6.Be entrusted by statute with such governmental functions and duties as are usually entrusted to
locally (like health, education, water, town planning, markets, transportation, etc.)
7.Have the power to raise funds for the furtherance of its activities and fulfilment of its objectives
by levying taxes, rates, charges or fees
Other Authorities
◦ The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the
Constitution nor in the general clauses Act, 1897 nor in any other statute of India.
Therefore, its interpretation has caused a good deal of difficulty, and judicial
opinion has undergone changes over time.
◦ The functions of a government can be performed either the governmental
departments and officials or through autonomous bodies which exist outside the
departmental structure. Such autonomous bodies may include companies,
corporations etc.
◦ So, for the purpose of determining what ‘other authorities’ fall under the scope of
State, the judiciary has given several judgements as per the facts and
circumstances of different cases.
◦ In the University of Madras v. Shanta Bai, the Madras High Court evolved the
principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those
authorities are covered under the expression ‘other authorities’ which perform
governmental or sovereign functions. Further, it cannot include persons, natural or
juristic, for example, Unaided universities.
◦ In the case of Ujjammabai v. the State of U.P., the court rejected the above
restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted to
the in interpreting ‘other authorities’. The bodies named under Article 12 have no
common genus running through them and they cannot be placed in one single
category on any rational basis.
◦ Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that
‘other authorities’ would include all authorities created by the constitution or
statute on whom powers are conferred by law. Such statutory authority need not
be engaged in performing government or sovereign functions. The court
emphasized that it is immaterial that the power conferred on the body is of a
commercial nature or not.
Territory of India
◦ Article 1(3) of the Constitution of India states that;
◦ “The territory of India shall comprise- (a) the territories of the States;(b) the Union
territories specified in the First Schedule; and (c) such other territories as may be
acquired.”
◦ In the case of Masthan Sahib v. Chief Commissioner, the court held that the
territory of India for the purposes of Article 12 means the territory of India as
defined in Article 1(3).
Control of the government of India
◦ Under Article 12, the control of the Government does not necessarily mean that the
body must be under the absolute direction of the government. It merely means that the
government must have some form of control over the functioning of the body. Just
because a body is a statutory body, does not mean that it is ‘State’. Both statutory, as
well as non-statutory bodies, can be considered as a ‘State’ if they get financial
resources from the government and the government exercises a deep pervasive control
over it.
◦ For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards,
but does not include NCERT as neither is it substantially financed by the government nor
is the government’s control pervasive.
◦ The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls
within them, then it must be considered to be a State within the meaning of Article 12.
It was discussed in the case that– “whether in the light of the cumulative facts as
established, the body is financially, functionally and administratively dominated by or
under the control of Government. Such control must be particular to the body in
question and must be pervasive.
ARTICLE 13
C

COI
Introduction
• Article 13 of the constitution 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 and scope
• 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.

The pre- constitutional laws may not be able to meet the changing and developing needs of today's world, therefore
article 13 do gives the power to the supreme court and high court of India to re-write the pre-constitutional laws, so
as to make the laws meet the changing conditions of today's lifestyle of people.

Similarly, the laws made after adopting the constitution must prove their similarity with the pre-constitutional laws,
then only they would be considered as valid otherwise they would be assumed to be void. Part III of the constitution
do exist with this objective that the rights and freedom of people do gets the protection from the arbitary invasions of
the state.
 Introduction to article 13
• Article 13 of the constitution do talks about the four principles relating to fundamental rights.
Fundamental rights do exist from the date on which the Indian constitution came into force i.e on
26th January 1950 hence fundamental rights became operative from this date only.
• Article 13(1) talks about the pre-constitutional laws i.e the day from which the constitution came
in existence there were many laws in the country and when the constitution came into existence
fundamental rights do came, therefore the laws before the existence of the constitution must
prove their compatibility with the fundamental rights, only then these laws would be considered
to be valid otherwise they would be declared to be void.
• For example, article 15 of the constitution do gives the right to education to all without any
discrimination on the basis of caste, sex, religion, etc, but an Education act which came in
existence in 1930 says that a particular group of kids would not be provided education on the
basis of their caste'. As this particular clause of the act is inconsistent with that of the fundamental
rights therefore it is declared to be null and void.
• Moreover article 13(1) is prospective in nature but not retrospective i.e the article will be in effect
from the day when constitution came in effect ..(26th jan.,1950) and the person who committed
offence afterwards will be prosecuted according to the laws of Indian constitution but not
according to the pre-constitutional laws.
Case Law
• Keshva Madhav Menon v. State of Bombay, Air 1951[1]
• In this case the petitioner published a pamphlet according to the pre-constitutional
laws in 1949 but as the Indian constitution came in effect from 1950 it gave the
freedom of speech and expression under article 19 of the Indian constitution, therefore
the apex court said that the petitioner's trial must go on as the benefit of article 13
would not be given to him because article 13 is not retrospective in nature:
• Doctrine of severability
• The doctrine says that if some parts of the statue are inconsistent with that of the
fundamental rights, then the whole statue would not be declared to be void but that
particular clause would be treated to be void by the court of law.
A.K Gopalan v. State of
Madras, air 1950
• In this case section 14 of Preventive detention act,1950 was challenged. Section 14 of the act says that if any person is being detained
under this act then he or she may not disclose the grounds of his or her detention in court of law, this particular statement is inconsistent
with that of fundamental rights as per article 22 of the Indian constitution, thus if we do apply the doctrine of severability here so the whole
act (preventive detention act,1950) would not be declared as void but only section 14 of the act would be declared as void as it is
inconsistent with the fundamental rights.
• Doctrine of eclipse
• The doctrine says that if some laws are violating fundamental rights , so they would not be declared void ab-initio but would be
unenforceable for a time being i.e such laws are over-shadowed by the fundamental rights, thus in the case of non-citizens of India the law
may be applicable.
• Here doctrine of severability (discussed above) says that all the pre-existing constitutional laws are to be filtered out in respect with that of
the fundamental rights so as to make them valid and the laws which do not respect the fundamental rights would not be declared void
completely but would be over shadowed by fundamental rights and in future if any amendment is made related to such a law, it becomes
valid provided that the pre-constitutional law must be consistent with that of the fundamental right.
Introduction To Article
13(2)
• article 13 (2) talks about the post constitutional laws i.e. it says that once the constitution is framed and came in effect
then any of the state may not make laws that takes away or abridges the fundamental rights of an individual and if done so
then it would be void till the extent of contravention.

Case Law
State of Gujrat v. Ambika mills, air 1974[3]
Here a certain labor welfare fund act was challenged, as certain sections in it were against the fundamental rights. Since
the fact that the laws made by the state after the constitution is framed would be declared void if those laws are against the
fundamental rights, but here the question arose that fundamental rights are only granted to citizens but what will happen in
the case of non-citizens or a company (company here is the respondent i.e. Ambika mills). It was held by the apex court that
since the fundamental rights are only granted to the citizens but not to the company or any non-citizen, therefore the labour
welfare fund act is valid.
Article 13(3)
• article 13(3) talks about the meaning of law i.e the laws whether by laws, notifications, rules, regulations, customs,
usage, etc if do effect the legal rights of the citizens do come under the definition of law, thus would be considered as
laws under article 13 but there are two exceptions to the same, firstly the administrative and the executive orders are
being covered under article 13 but if their nature is just to give instructions or guidelines then they would not be
covered under article 13. Second exception is the personal laws which are not being covered under article 13.
 Article 13(4)
• This clause of article 13 do says that any of the amendment made in article 368 of the Indian
constitution would not be challenged under article 13 moreover if the amendment so made
would be against the fundamental rights, then also it would not be challenged under article 13.
• Article 13 (4) gave birth to a landmark doctrine to our constitution moreover it prohibits the
parliament to make laws or amendments which are inconsistent to the fundamental rights.
• The doctrine being mentioned above is the Basic Structure Doctrine.
• While discussing about this doctrine two most important articles do come into the picture, one is
article 13, which acts as the protector of the fundamental rights and another one is article 368,
which holds the power to amend the constitution. The doctrine is merely a big tussle of power
between the judiciary and the parliament of India i.e as the power of amending the laws
exercised under article 368 do gives the power to the parliament to amend the constitution,
fundamental rights and the preamble too? or the Indian judiciary is supreme which do acts as the
protector of law.
• Shankari prasad case (Shankari prasad v. Union of India, air 1951) here in the case a question arose
that as per article 13, if parliament do makes any law which is inconsistent to fundamental rights
would be considered invalid but if any amendment done by parliament under article 368 would be
considered as valid or not? So, while answering this question it was held that in article 14 only the
ordinary laws are being talked about but not the constitutional amendments .

• Another case came into picture which was I.C Golaknath case (Golaknath v. State of Punjab, air
1967) in this case the court over-ruled it's judgement given in Shankari prasad case by saying that
article 13 do includes the ordinary laws and the constitutional amendments too which means
parliament cannot make any law or make any constitutional amendments which is inconsistent to
fundamental rights.

• In order to nullify this judgement parliament passed 24th amendment, 1971[6] by saying that� any
amendment made under article 368 would not be considered as law and hence article 13(4) is
different from the word law used in article 13(3) then again this 24th amendment was challenged in
the case of Kesavananda Bharti case (Kesavananda bharti v. state of Kerala, air 1973)in the
following case the apex court was of the view that 24th amendment is valid and the judgement
give in Golaknath case is also valid but a basic structure of the constitution do exist which cannot
be amended hence the parliament cannot even touch them i.e. the Supreme court introduced a
basic structure doctrine.
After the introduction of the basic structure of the constitution, the parliament introduced
42nd amendment, 1975 which is also called as the mini constitution or the constitution of
Indra (Indra Gandhi), it gave the power to the parliament to amend any law in the
constitution including the basic structure of the constitution, but this was again over-rulled
in Minerva Mills case (Minerva Mills v. Union of India, air 1980), in this case the court was of
the view that judicial review is the basic feature of the constitution hence cannot be
amended therefore any amendment made by parliament will go through the process of
judicial review.
DOCTRINE OF
ECLIPSE
COI
 Doctrine of Eclipse
The doctrine of eclipse is based on a principle that the law which
contravenes Fundamental Rights is not void ab initio. It remains in a
morbid condition and unenforceable. It is not totally wiped out from
the statute book. They are valid for all past transactions i.e., transactions
prior to commencement of Constitution. They also remain valid for the
determination of rights of persons who have not been given
fundamental rights by the Constitution. Supreme Court in Bhikhaji v.
State of Madhya Pradesh, AIR 1955 SC 781 formulated the doctrine of
eclipse. The court held that under this doctrine the law is
overshadowed by fundamental right and remain dormant. It becomes
enforceable as soon as the constitutional impediment is removed by
amending the impugned fundamental right. The law is merely eclipsed
for the time being and as soon as eclipse is removed the law begins to
operate.
Applicability of doctrine of eclipse to post-constitutional laws: In Sagir Ahmed v. State of Uttar
Pradesh, AIR 1954 SC 728 the Supreme Court held that the doctrine of eclipse is only applicable
to pre-constitutional laws and not to post-constitutional laws. The court reasoned that the post-
constitutional laws, if they contravene Part III, are void ab initio and a subsequent constitutional
amendment cannot revive them. On the other hand the voidness of pre-constitutional law is
not from inception but only from the date of commencement of the Constitution. Supreme
Court distinguished between Article 13(1) and Article 13(2) and held that Article 13(2) applies to
the post-constitutional laws and prohibits the State from making a law which infringes a
fundamental right while Article 13(1) applies to pre-constitutional law and contains to such
prohibition. This view was endorsed by the court in Deep Chand v. State of U.P. AIR 1959 SC 648
and Mahendra Lal Jain v. State of U.P. AIR 1963 SC 1019.

Subsequently in State of Gujarat v. Ambica Mills, AIR 1974 SC 1300 the court modified its view
expressed in Deep Chand’s case, Mahendra Lal Jain’s case and Sagir Ahmed’s case. The court
held that post-constitutional laws, which are inconsistent with fundamental rights, are not void
ab initio for all purposes. Void under Article 13(2) means void against persons whose
fundamental right has been taken away. If a post-constitutional law takes away right conferred
by Article 19 then such law will be void only with respect to citizens because rights under Article
19 are given only to citizens. Such law will validly operate with respect to non-citizens. Since
such laws are not void ab intio for all purposes the doctrine of eclipse can be applied to post-
constitutional laws as well.
In other words, the court held that if the law contravenes fundamental
right which is limited to citizens only, it will continue to operate with
respect to non-citizens. Court clearly held that such law cannot be
revived with respect to citizens merely by an amendment of
fundamental right. It is because Article 13(2) affects the competency of
legislature to enact laws which takes away fundamental rights. It means
that the law will have to be re-enacted after the amendment of
fundamental right if it is desired to make it operative. However, Supreme
Court in L. Jagannath v. Authorized Officer, AIR 1972 SC 425 held that if
an Act is declared unconstitutional on the pretext of Article 13(2), it can
be revived only when it is put in Ninth Schedule because Article 31B
cures the defect of the Act with retrospective effect. Later, the Supreme
Court in Dulare Lodh v. IIIrd Additional District Judge, Kanpur, AIR 1984 SC
1260 applied the doctrine of eclipse in post-constitutional law against
citizens.
The Judiciary is the guardian of the rights provided for in the Constitution of India. It is the job of
the judiciary to restrain the actions of the Legislature and the Executive where they are
infringing upon these rights. When the Constitution was adopted on January 26, 1950, with it
came, the fundamental rights that are guaranteed to the citizens.

There were several existing laws at the time when the Constitution was adopted, some of
which were in direct conflict with fundamental rights, so in order to determine the validity of
these laws the Supreme Court came up with certain principles/doctrines, one of which was
the Doctrine of Eclipse.

This doctrine emanates directly from Article 13(1) of the Constitution that is a part of the
fundamental rights, which states, “all laws in force in the territory of India immediately before
the commencement of this Constitution in so far as they are inconsistent with the provisions of
this Part, i.e. Part III, shall, to the extent of such inconsistency, be void.”
The doctrine of eclipse envisages fundamental rights as prospective in nature.
It states that a pre-constitutional law inconsistent with the fundamental rights is not a nullity or
void ab initio but only remains unenforceable, i.e., remains in a dormant state.
They exist for all past transactions, i.e., for rights and liabilities that were acquired before the
Constitution came into being.
These laws also remain applicable to individuals who have not been given fundamental
rights, for example, non-citizens.
Therefore, the impugned law remains hidden behind the fundamental rights and can
become operative again if and when the fundamental right it is inconsistent with is amended.
 Court Rulings related to Doctrine of Eclipse
The Doctrine of Eclipse has evolved through various Supreme Court rulings after the adoption of the
Constitution.
•In the Keshav Madhav Menon v. State of Bombay case, the petitioner was prosecuted under the provisions
of the 1931 act, the Indian Press (Emergency Powers) Act, for publishing a pamphlet with no permission.
The case was still pending when the Constitution came into force and thus raised questions regarding the
prospective and retrospective nature of Article 13(1) and the word “void”. The question before the Court was
whether the impugned Act was violative of Article 19(1) (a) and if so whether it should be declared void. The
Court answered the first part in affirmative adding that the Act is void only to the extent of the violation and
that the word “void” used in Article 13 does not mean that statutes or provisions shall be repealed
altogether.
•In the case of FN Balsara, the Court declared Section 13(b) of the Bombay Prohibition Act of 1949 as void
because it violated Article 19(1) (f) of the Constitution. The Court again held that only the part of the statute
that is violative of Part III is inoperative and not the whole Statute.
•It is generally agreed, however, that the actual genesis of this doctrine occurred in Bhikaji Narain Dhakras
v. State of Madhya Pradesh. In this case, the C. P. and Berar Motor Vehicles Amendment Act of 1947 was
challenged for being violative of Article 19(1) (g). This amendment act was a pre-constitutional law. Thus,
the Doctrine of Eclipse was applied and the Act’s provisions were made inoperative.
However, in the year 1951, by virtue of the 1st Constitutional Amendment Act, Article 19(1) (g) was amended
and the eclipse was removed, rendering this law enforceable against citizens and non-citizens. According to
the Court, “the effect of the amendment was to remove the shadow and to make the impugned Act free from
all blemish or infirmity
The doctrine only applies to pre-constitutional laws that were valid at their inception.
The doctrine is not applicable to post-constitutional laws since they are invalid from the very
inception because of being inconsistent with Part III; the same was held by the Supreme
Court in Deep Chand v. State of Uttar Pradesh. However, non-citizens can’t take any
advantage of the rule as the violation doesn’t impact them.
The impugned law must be violative of the fundamental rights, and then only can it be
hidden or eclipsed.
The law that turns out to be violative of Part III does not become a nullity but just remains
unenforceable & defective.
If the fundamental right that is violated by the impugned law is amended in the future, the
law automatically becomes operative.
The judgments of Bhikaji and Deep Chand were upheld in the cases of Mahendra Lal Jain v.
State of Uttar Pradesh, State of Gujarat v. Ambica Mills, Sagir Ahmed v. State of Uttar Pradesh
and P. L. Mehra v. D. R. Khanna.
DOCTRINE OF
SEVERABILITY
COI
Articles 13(1) and (2) provide that the law is void only ‘to the extent of inconsistency or contravention’ with the
fundamental rights. It means that the whole law is not void under Article 13 but only that portion of law is void which
contravenes fundamental rights. Rest of the law may continue to stand and remain operative.

Doctrine of severability means that if the offending provision can be separated from what is constitutional then only
the part of the law which is in the contravention will be declared void. Whole law need not be struck down. The phrase
‘to the extent of inconsistency’ and ‘to the extent of contravention’ clearly indicates that the intention of the framers
of the Constitution was to strike down only that portion of law which is ultra vires to the Constitution.
There is, however, one exception to this. If the valid portion of law is so closely mixed with the invalid portion that if the
invalid portion is struck down the rest of the statute will be meaningless or will not be able to stand on its legs then in
such situation the whole statute will be declared void. The Supreme Court elaborately discussed the doctrine of
severability in R.M.D.C. v. Union of India, AIR 1957 SC 628 and held that when after removing the invalid portion what
remains is a complete code then there is no necessity to declare the whole Act void. Supreme Court laid down the
following propositions with respect to doctrine of severability:-

1. The intention of legislature is the determining factor. The test to be applied is whether the legislature would have
enacted the valid part if it had known that the rest of the statute was invalid.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another then
the invalidity of a portion must result in invalidity of the Act in its entirety.

3. If they are so distinctive and separate that after striking out what is invalid and what survives can stand on its own
legs, is workable and is a complete code the it will be upheld.
Supreme Court in Romesh Thapar v. State of Madras, AIR 1950 SC 124 held that where the law authorizes
restrictions on Fundamental Rights which is wide enough to cover restrictions both within and without the limits
provided by the Constitution and it is not possible to separate the two then the whole law is to be struck down. In
Kihota Hollohan v. Zachillhu (1992) Supreme Court held that 10th Schedule minus para 7 remains valid and
constitutional. The remaining provisions of 10th Schedule are complete in themselves and workable.
DOCTRINE OF
WAIVER
 INTRODUCTION
A Right is often defined as an interest or a claim which provides
the individual the facility to regulate the act of others, i.e., to form
someone do or abstain from doing an act. A crucial question arises
on whether these rights are often waived.
According to the doctrine of waiver, a person who is entitled to
any right or privilege can waive off such a privilege, if he does so
together with his discretion. This doctrine operates on the idea that
a person is that the best judge of his interest under any legal
liability, which he has the knowledge of the results while
intentionally abandoning the privilege of such right.
But the doctrine of waiver doesn’t apply to the fundamental
rights of the people guaranteed under the Constitution of India. the
elemental rights were kept within the Constitution for the general
public at large and not merely for the individual’s benefit. Thus,
the ‘doctrine of waiver’ can’t be used for abandoning fundamental
rights.
 Case Laws
In Basheshar Nath v. Commissioner of tax, an identical question
arose whether a fundamental right could also be waived off by the
one that has it. therein case, the petitioner was found to hide an
outsized amount of his income under Section 5(1) of Taxation of
Income (Investigation Commission) Act, 1947. The petitioner to
flee an important penalty agreed to enter into a settlement under
Section 8A with the Commissioner. within the meantime, the
Supreme Court in another case held Section 5(1) as ultra vires of
the Constitution, and as a result, it had been struck down. Counting
on this decision of the Court, the petitioner approached the Apex
Court and contended that he’s not susceptible to pay any penalty,
thanks to absolvent of Section 5(1) of the impugned act.

The respondent on the opposite hand contended that albeit Section

5(1) was invalid, the petitioner, by making the settlement had
waived his right under Article 14. It was held that Article 14 can’t
be waived off because it may be a public policy of the state. nobody
can relieve the state of this obligation.
 Case Laws
In Olga Tellis & Others vs Bombay Municipal Corporation, the
pavement dwellers gave an undertaking to the MCD that they might
not claim any fundamental right to place up huts on pavements and
public roads, and that they might not obstruct the demolition of the
huts after a particular date. But later when the huts were sought to
be demolished after the required date, the pavement dwellers
pleaded that they’re protected under Article 21 of the Constitution
of India.

The municipal corporation contended that the dwellers cannot raise

any such plea within the view of their previous undertaking. The
Supreme Court, overruled the objection of the municipal
corporation saying fundamental rights can’t be waived off by a
person. There is often no estoppel against the elemental rights
guaranteed under the Constitution.
 Conclusion
The doctrine of waiver is of prime importance and its non-
application on constitutional rights may be a major check on powers
of the legislature. If the doctrine were to be applicable, it could
make a private waive his rights in lieu of some benefits provided by
the State. The doctrine might be made applicable within the Indian
system through judicial interpretation. But it’s unsure whether the
doctrine could have constitutional backing.
RIGHT TO EQUALITY
IN INDIA
 WHAT IS EQUALITY

• THE TYPES OF EQUALITY ARE:

• NATURAL
• SOCIAL
• CIVIL
• POLITICAL
• ECONOMIC
• LEGAL
 ARTICLE 14

• THE STATE SHALL NOT DENY TO ANY PERSON EQUALITY BEFORE THE LAW OR THE EQUAL
PROTECTION OF THE LAWS WITHIN THE TERRITORY OF INDIA.

• HTTPS://WWW.THEHINDU.COM/OPINION/LEAD/EQUALITY-FOR-
WHAT/ARTICLE19677980.ECE
 EQUALITY BEFORE LAW

• I. EQUAL TREATMENT FOR ALL PERSONS BEFORE THE COURT. THAT IS, THE LAW WILL BE BLIND,
IT WILL NOT SEE WHO IS STANDING IN THE DOCK; RICH OR POOR.
• II. THERE SHALL NOT BE ANY PRIVILEGE FOR ANY PARTICULAR PERSON. IT MEANS, EVERYONE
WILL GET THE SAME PUNISHMENT FOR THE SAME CRIME.
• III. NO PERSON (BE IT RICH OR POOR, WHITE OR BLACK, MINISTER OR SERVANT) SHALL BE
ABOVE THE LAW. IT MEANS THE LAW WILL BE THE SAME FOR BOTH THE MINISTER AND THE
SERVANT.
• (ENGLISH CONSTITUTION)
 EQUAL PROTECTION OF LAWS

• THE CONSTITUTION OF AMERICA.

• I. THE SIMILAR APPLICATION OF THE SAME LAWS TO ALL PERSONS WHO ARE SIMILARLY SITUATED.
• II. EQUAL TREATMENT UNDER EQUAL CIRCUMSTANCES, BOTH IN THE PRIVILEGES CONFERRED AND
LIABILITIES IMPOSED BY THE LAWS.
• III. ALL PERSONS SHOULD BE TREATED EQUALLY WITHOUT ANY DISCRIMINATION.
• THE SUPREME COURT BELIEVES THAT THE RULE OF LAW WRITTEN UNDER ARTICLE 14 IS THE
FUNDAMENTAL ELEMENT OF THE CONSTITUTION. THEREFORE IT CANNOT BE ABOLISHED IN ANY
WAY EVEN BY AMENDING THE CONSTITUTION.
 EXCEPTIONS TO RIGHT TO EQUALITY

• I. NO CRIMINAL PROCEEDING SHALL BE INITIATED OR CONTINUED AGAINST THE PRESIDENT OR THE GOVERNOR IN
ANY COURT DURING HIS/HER TERM OF OFFICE.
• II. NO COURT CAN ISSUE AN ARREST WARRANT OF THE PRESIDENT OR GOVERNMENT DURING HIS/HER TERM OF
OFFICE.
• III. NO MEMBER OF STATE LEGISLATURE (MLA) SHALL BE LIABLE TO ANY PROCEEDING IN ANY COURT IN RESPECT OF
ANY STATEMENT OR ANY VOTE GIVEN BY HIM IN THE STATE LEGISLATURE.
• IV. NO MEMBER OF PARLIAMENT (MP) SHALL BE LIABLE TO ANY PROCEEDING IN ANY COURT IN RESPECT OF ANY
STATEMENT OR ANY VOTE GIVEN BY HIM IN THE PARLIAMENT.
• V. THE UNITED NATIONS AND ITS AGENCIES ALSO HAVE DIPLOMATIC IMMUNITY.
• VI. FOREIGN (SOVEREIGN RULER), AMBASSADORS AND DIPLOMATIC PERSONS WILL BE FREE FROM CRIMINAL AND
CIVIL CASES.
E.P ROYAPPA V. STATE OF TAMIL NADU & ANOTHER

• IT WAS HELD THAT ARTICLE 14 IS ONE OF THE PILLARS OF THE INDIAN CONSTITUTION AND
HENCE CANNOT BE BOUND BY A NARROW AND INFLEXIBLE INTERPRETATION. ARTICLE 14
SHOULD THUS BE GIVEN THE WIDEST INTERPRETATION POSSIBLE, WHICH ALSO INCLUDES
REASONABLENESS AND ARBITRARINESS OF CERTAIN PROVISIONS OF THE LEGISLATIONS.
 MANEKA GANDHI V. UNION OF INDIA

THE SUPREME COURT CLEARLY RULED OUT THE ROOM FOR ARBITRARINESS.
‘ARTICLE 14 STRIKES AT ARBITRARINESS IN STATE ACTION AND ENSURES FAIRNESS AND EQUALITY OF
TREATMENT.
THE PRINCIPLE OF REASONABLENESS, WHICH LOGICALLY AS WELL AS PHILOSOPHICALLY, IS AN
ESSENTIAL ELEMENT OF EQUALITY OR NON-ARBITRARINESS, PERVADES ARTICLE 14 LIKE A BROODING
OMNIPRESENCE.’
RULE OF LAW WHICH PERMEATES THE ENTIRE FABRIC OF THE INDIAN CONSTITUTION EXCLUDES
ARBITRARINESS. WHEREVER WE FIND ARBITRARINESS OR UNREASONABLENESS THERE IS DENIAL THERE
IS DENIAL OF RULE OF LAW.
 AIR INDIA V. NARGESH MEERZA

• REGULATION 46 OF INDIAN AIRLINES REGULATIONS PROVIDES AN AIR HOSTESS WILL BE RETIRE FROM THE
SERVICE UPON ATTAINING THE AGE OF 35 YEARS OR ON MARRIAGE WITHIN 4 YEARS OF SERVICE OR ON
FIRST PREGNANCY, WHOEVER FOUND EARLIER BUT REGULATION 47 OF THE REGULATION ACT THE MANAGING
DIRECTOR HAD THE DISCRETION EXTEND THE AGE OF RETIREMENT ONE YEAR AT A TIME BEYOND THE AGE OF
RETIREMENT UP TO THE AGE OF 45 YEARS AT HIS OPTION IF AN AIR HOSTESS WAS FOUND MEDICALLY FIT .IT
WAS HELD BY THE COURT THAT AN AIR HOSTESS ON THE GROUND OF PREGNANCY WAS UNREASONABLE
AND ARBITRARY, IT WAS THE VIOLATION OF ARTICLE 14 UNDER CONSTITUTION LAW OF INDIA. THE
REGULATION DID NOT RESTRICT MARRIAGE AFTER FOUR YEARS AND IF AN AIR HOSTESS AFTER HAVING
FULFILLED THE CONDITION BECAME PREGNANT, THERE WAS NO GROUND WHY FIRST PREGNANCY SHOULD
STAND IN THE WAY OF HER RUNNING SERVICE. OF THE COURT SAID THAT THE TERMINATION OF SERVICE ON
PREGNANCY WAS MANIFESTLY UNREASONABLE AND ARBITRARY ON THE BASIS OF THIS IT WAS VIOLATION OF
ARTICLE 14 OF INDIAN CONSTITUTION.
 STEPHEN’S COLLEGE V. UNIVERSITY OF DELHI

• THE COURT HELD THAT THE EXPRESSION “EQUAL PROTECTION OF THE LAWS IS NOW BEING
READ AS A POSITIVE OBLIGATION ON THE STATE TO ENSURE EQUAL PROTECTION OF LAWS BY
BRINGING IN NECESSARY SOCIAL AND ECONOMIC CHANGES SO THAT EVERYONE MAY
ENJOY EQUAL PROTECTION OF THE LAWS AND NOBODY IS DENIED SUCH PROTECTION. IF THE
STATE LEAVES THE EXISTING INEQUALITIES UNTOUCHED LAWS D BY ITS LAWS, IT FAILS IN ITS
DUTY OF PROVIDING EQUAL PROTECTION OF ITS LAWS TO ALL PERSONS. STATE WILL
PROVIDE EQUAL PROTECTION TO ALL THE PEOPLE OF INDIA WHO ARE CITIZEN OF INDIA AND
AS WELL AS NON CITIZEN OF INDIA.
RIGHT TO EQUALITY AND CAA/NRC
 RIGHT TO NON - DISCRIMINATION
• ARTICLE 15
• THE STATE SHALL NOT DISCRIMINATE AGAINST ANY CITIZEN ON GROUNDS ONLY OF
RELIGION,
• RACE,
• CASTE,
• SEX,
• PLACE OF BIRTH OR
• ANY OF THEM.
 ARTICLE 15

1. THE STATE SHALL NOT DISCRIMINATE AGAINST ANY CITIZEN ON GROUNDS ONLY OF RELIGION,
RACE, CASTE, SEX, PLACE OF BIRTH OR ANY OF THEM
2. NO CITIZEN SHALL, ON GROUNDS ONLY OF RELIGION, RACE, CASTE, SEX, PLACE OF BIRTH OR
ANY OF THEM, BE SUBJECT TO ANY DISABILITY, LIABILITY, RESTRICTION OR CONDITION WITH
REGARD TO
(A) ACCESS TO SHOPS, PUBLIC RESTAURANTS, HOTELS AND PALACES OF PUBLIC ENTERTAINMENT;
OR
(B) THE USE OF WELLS, TANKS, BATHING GHATS, ROADS AND PLACES OF PUBLIC RESORT
MAINTAINED WHOLLY OR PARTLY OUT OF STATE FUNDS OR DEDICATED TO THE USE OF THE
GENERAL PUBLIC
 ARTICLE 15

3. NOTHING IN THIS ARTICLE SHALL PREVENT THE STATE FROM MAKING ANY SPECIAL
PROVISION FOR WOMEN AND CHILDREN
4. NOTHING IN THIS ARTICLE OR IN CLAUSE ( 2 ) OF ARTICLE 29 SHALL PREVENT THE STATE
FROM MAKING ANY SPECIAL PROVISION FOR THE ADVANCEMENT OF ANY SOCIALLY AND
EDUCATIONALLY BACKWARD CLASSES OF CITIZENS OR FOR THE SCHEDULED CASTES AND THE
SCHEDULED TRIBES
 THREE EXCEPTIONS GENERAL RULE OF NON-
DISCRIMINATION
• A. THE STATE IS PERMITTED TO MAKE ANY SPECIAL PROVISIONS TO WOMEN AND CHILDREN.
• EXAMPLE: RESERVATION OF SEATS FOR WOMEN IN THE LOCAL BODIES AND PROVISION OF
FREE EDUCATION TO CHILDREN.
• B. THE STATE IS FREE TO MAKE SPECIAL ARRANGEMENTS FOR SOCIALLY AND ECONOMICALLY
BACKWARD PEOPLES OR FOR SCHEDULE CASTES AND SCHEDULE TRIBES.
EXAMPLE: RESERVATION OF SEATS OR FEE CONCESSION IN THE PUBLIC EDUCATIONAL
INSTITUTES.
 AMENDMENT

• AN AMENDMENT WAS MADE IN THE ARTICLE IN 2018 AFTER THE GOVERNMENT ANNOUNCED
10% RESERVATION IN COLLEGES AND UNIVERSITIES FOR ECONOMICALLY WEAKER SECTIONS. IT
STATES, “NOTHING IN THIS ARTICLE OR IN SUB-CLAUSE (G) OF CLAUSE (1) OF ARTICLE 19 SHALL
PREVENT THE STATE FROM MAKING ANY SPECIAL PROVISION, BY LAW, FOR THE ADVANCEMENT OF
ANY SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES OF CITIZENS OR FOR THE SCHEDULED
CASTES OR THE SCHEDULED TRIBES IN SO FAR AS SUCH SPECIAL PROVISIONS RELATE TO THEIR
ADMISSION TO EDUCATIONAL INSTITUTIONS INCLUDING PRIVATE EDUCATIONAL INSTITUTIONS,
WHETHER AIDED OR UNAIDED BY THE STATE, OTHER THAN THE MINORITY EDUCATIONAL
INSTITUTIONS REFERRED TO IN CLAUSE (1) OF ARTICLE 30.]”
 EXCEPTIONS GENERAL RULE OF NON-DISCRIMINATION
• THE STATE CAN MAKE SPECIAL PROVISIONS FOR THE BETTERMENT OF THE SOCIALLY AND
ECONOMICALLY BACKWARD SECTIONS OF THE SOCIETY OR FOR THE SCS AND STS.
• EXAMPLE: PROVISIONS REGARDING ADMISSION IN THE EDUCATIONAL INSTITUTIONS IN THE
PRIVATE INSTITUTES, WHETHER AIDED OR UNAIDED BY THE STATE.
• SO THIS WAS AN EXPLANATION OF ARTICLE 15 OF THE INDIAN CONSTITUTION. WE HOPE THAT
ARTICLE 15 WILL ENTITLE A DIGNIFIED LIFE TO THE CITIZENS OF ALL ECONOMICALLY AND SOCIALLY
BACKWARD CLASSES AND STC, SCS COMMUNITY OF THE COUNTRY.

• HTTPS://WWW.EQUALRIGHTSTRUST.ORG/ERTDOCUMENTBANK/THROUGH%20THE%20LOOKING
%20GLASS%20OF%20INTERSECTIONALITY%20MAKING%20SENSE%20OF%20INDIAN%20DISCRI
MINATION%20JURISPRUDENCE%20UNDER%20ARTICLE%2015.PDF
 LEGISLATIONS

• SCHEDULED CASTE AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989, WHICH STATES THAT NO
PERSON OF THE SC AND ST SHALL BE DISCRIMINATED AGAINST OR ANY VIOLENCE UNDERTAKEN ON THEM,
JUST BECAUSE THEY BELONG TO SUCH CATEGORY.
• HINDU SUCCESSION ACT, 1956 ENSURES THAT THE DISCRIMINATION AGAINST WOMEN THAT THEY ONLY HAD
A LIMITED OWNER’ STATUS, WAS ABOLISHED AND THAT THEY WERE GIVEN COMPLETE RIGHTS AND POWERS
REGARDING THEIR PROPERTY A POWER WHICH THE MALES ALREADY HAD UNDER HINDU LAW.
• CASTE DISABILITIES REMOVAL ACT, 1850 WHICH WAS MEANT TO ENSURE THAT THERE WAS NO
DISCRIMINATION BASED ON THE CASTE OF THE PERSON, WAS RECENTLY REPEALED BY THE CENTRAL
GOVERNMENT. THIS WAS DONE AS THE GOVERNMENT FELT THAT THE ACT HAD BECOME OBSOLETE.
 LEGISLATIONS

• MATERNITY BENEFITS ACT, 1961;

• SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013
• RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016;
• MENTAL HEALTHCARE ACT, 2017 ETC.
 PUNISHMENTS OF BEING CHARGED FOR ARTICLE 15

• THE SC AND ST (PREVENTION OF ATROCITIES) ACT, 1989, A PERSON WHO DISCRIMINATES

AGAINST ANY MEMBER OF THE SC OR ST CAN BE PUNISHED WITH IMPRISONMENT AND FINE
AS WELL. THE OFFENCES ARE NON COGNISABLE AND THUS THE PERPETRATOR DOES NOT
HAVE A RIGHT TO SECURE BAIL AND IS MADE DISCRETIONARY UPON THE JUDICIARY.
• COURTS MAY ALSO FURTHER STRIKE DOWN CERTAIN NOTIONS OR PRACTICES WHICH THE
SOCIETY MAY FOLLOW TOWARDS CERTAIN CATEGORIES OF PEOPLE.
 NALSA VS UOI,

• THE SUPREME COURT STATED THAT

• TRANSGENDER SHOULD BE RECOGNISED AS THE THIRD GENDER AND GIVEN EQUAL RIGHTS
AND OPPORTUNITIES. THIS WAS ALL BASED ON THE PREMISE THAT SOCIETY DISCRIMINATED
AGAINST THE SAID SECTION OF PEOPLE. THE COURT ENSURED THAT THIS DISCRIMINATION
WAS DONE AWAY WITH.
 DATTATRAYA MOTIRAM MORE V STATE OF BOMBAY
• THE SUPREME COURT EXAMINED THE PROVISIONS OF THE BOMBAY MUNICIPAL BOROUGHS
ACT WHICH RESERVED SEATS FOR WOMEN IN ELECTIONS. THE PROVISIONS WERE
CHALLENGED AS BEING IN VIOLATION OF THE RIGHT TO EQUALITY UNDER ARTICLE 14, THE
PROHIBITION OF DISCRIMINATION UNDER ARTICLE 15 AND THE RIGHT TO EQUALITY OF
OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT UNDER ARTICLE 16 OF THE
CONSTITUTION. THE COURT CONSTRUED ARTICLE 15(3) AS A PROVISO TO ARTICLE 15(1) AND
THUS VALIDATED THE RESERVATION OF SEATS AS PROTECTIVE DISCRIMINATION IN FAVOUR OF
WOMEN. T
 GOVERNMENT INITIATIVES

• A 10-MONTH LONG PROGRAMME WILL BE INTRODUCED IN ALL

THE DELHI SCHOOL IN THE ACADEMIC SESSION 2019-2020, UNDER
WHICH THE STUDENTS FROM CLASS 6-12TH WILL TAKE ONE CLASS
EACH WEEK ON 'CONSTITUTIONAL VALUES’.
 GOVERNMENT INITIATIVES

• 'COMMON MINIMUM PROGRAMME FOR VALUE EDUCATION’

• FOR IMPLEMENTATION ACROSS INDIA’S ENTIRE SCHOOLING SYSTEM, IN THE 2019-20
ACADEMIC SESSION.
• THE UNIFORMITY OF VALUE EDUCATION IMPARTED ACROSS SCHOOLS WILL BE ENSURED WITH
A FIRM FOCUS ON CORE CONSTITUTIONAL VALUES’ AND THESE HAVE BEEN IDENTIFIED AS
JUSTICE, EQUALITY, FRATERNITY AND LIBERTY.
• HTTPS://INDCONLAWPHIL.WORDPRESS.COM/TAG/ARTICLE-15/
SOCIAL JUSTICE AND THE CONSTITUTION OF INDIA
 ARTICLE 16
• EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT. -
• (1) THERE SHALL BE EQUALITY OF OPPORTUNITY FOR ALL CITIZENS IN MATTERS RELATING TO
EMPLOYMENT OR APPOINTMENT TO ANY OFFICE UNDER THE STATE.
• (2) NO CITIZEN SHALL, ON GROUNDS ONLY OF RELIGION, RACE, CASTE, SEX, DESCENT, PLACE
OF BIRTH, RESIDENCE OR ANY OF THEM, BE INELIGIBLE FOR, OR DISCRIMINATED AGAINST IN
RESPECT OF, ANY EMPLOYMENT OR OFFICE UNDER THE STATE.
• (3) NOTHING IN THIS ARTICLE SHALL PREVENT PARLIAMENT FROM MAKING ANY LAW
PRESCRIBING, IN REGARD TO A CLASS OR CLASSES OF EMPLOYMENT OR APPOINTMENT TO
AN OFFICE UNDER THE GOVERNMENT OF, OR ANY LOCAL OR OTHER AUTHORITY WITHIN, A
STATE OR UNION TERRITORY, ANY REQUIREMENT AS TO RESIDENCE WITHIN THAT STATE OR
UNION TERRITORY PRIOR TO SUCH EMPLOYMENT OR APPOINTMENT
 ARTICLE 16

• (4) NOTHING IN THIS ARTICLE SHALL PREVENT THE STATE FROM MAKING ANY PROVISION FOR
THE RESERVATION OF APPOINTMENTS OR POSTS IN FAVOR OF ANY BACKWARD CLASS OF
CITIZENS WHICH, IN THE OPINION OF THE STATE, IS NOT ADEQUATELY REPRESENTED IN THE
SERVICES UNDER THE STATE
• (5) NOTHING IN THIS ARTICLE SHALL AFFECT THE OPERATION OF ANY LAW WHICH PROVIDES
THAT THE INCUMBENT OF AN OFFICE IN CONNECTION WITH THE AFFAIRS OF ANY RELIGIOUS
OR DENOMINATIONAL INSTITUTION OR ANY MEMBER OF THE GOVERNING BODY THEREOF
SHALL BE A PERSON PROFESSING A PARTICULAR RELIGION OR BELONGING TO A PARTICULAR
DENOMINATION
 THE FIRST BACKWARD CLASSES COMMISSION
(KALELKAR COMMISSION)

• THE CENTRAL GOVERNMENT APPOINTED A BACKWARD CLASSES COMMISSION UNDER ARTICLE 340
OF THE CONSTITUTION 29-1-1953. IT WAS REQUIRED “TO INVESTIGATE THE CONDITIONS OF
SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES WITHIN THE TERRITORY OF INDIA AND THE
DIFFICULTIES UNDER WHICH THEY LABOUR AND TO MAKE RECOMMENDATIONS AS TO THE STEPS
THAT SHOULD BE TAKEN BY THE UNION OR ANY STATE TO REMOVE DIFFICULTIES AND TO IMPROVE
THEIR CONDITIONS”. THE CHAIRMAN OF THE COMMISSION, HOWEVER, AFTER SIGNING THE
REPORT PLEADED THE PRESIDENT FOR REJECTION OF IT. THIS WAS SO BECAUSE HE WAS OF THE
OPINION THAT THE RESERVATIONS AND REMEDIES RECOMMENDED ON THE BASIS OF CASTE
SHOULD BE ESCHEWED ALTOGETHER. THEN ALONE, HE SAID, WOULD IT BE POSSIBLE TO HELP THE
EXTREMELY POOR AND DESERVING MEMBERS OF ALL COMMUNITIES.
 MANDAL COMMISSION

• SOCIALLY AND EDUCATIONALLY BACKWARD CLASS COMMISSION. 1ST JAN 1979

• THE COMMISSION DEVELOPED 11 CRITERIA TO IDENTIFY THE BACKWARD CLASSES WHO WERE
CALLED “OTHER BACKWARD CLASSES” OR OBCS. THE CRITERIA ARE CLASSIFIED AS SOCIAL,
ECONOMIC AND EDUCATIONAL.

• HTTP://WWW.NCBC.NIC.IN/USER_PANEL/USERVIEW.ASPX?TYPEID=1161
 MANDAL COMMISSION
• IN EXERCISE OF THE POWERS CONFERRED BY ARTICLE 340 OF THE CONSTITUTION, THE
PRESIDENT APPOINTED A BACKWARD CLASS COMMISSION IN DECEMBER 1978 UNDER
THE CHAIRMANSHIP OF B. P. MANDAL.
• THE COMMISSION WAS FORMED TO DETERMINE THE CRITERIA FOR DEFINING INDIA’S
“SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES” AND TO RECOMMEND STEPS TO
BE TAKEN FOR THE ADVANCEMENT OF THOSE CLASSES.
• THE MANDAL COMMISSION CONCLUDED THAT INDIA’S POPULATION CONSISTED OF
APPROXIMATELY 52 PERCENT OBCS, THEREFORE 27% GOVERNMENT JOBS SHOULD BE
RESERVED FOR THEM.
• THE COMMISSION HAS DEVELOPED ELEVEN INDICATORS OF SOCIAL, EDUCATIONAL,
AND ECONOMIC BACKWARDNESS.
• APART FROM IDENTIFYING BACKWARD CLASSES AMONG HINDUS, THE COMMISSION
HAS ALSO IDENTIFIED BACKWARD CLASSES AMONG NON-HINDUS (E.G., MUSLIMS,
SIKHS, CHRISTIANS, AND BUDDHISTS.
• IT HAS GENERATED AN ALL-INDIA OTHER BACKWARD CLASSES (OBC) LIST OF 3,743
CASTES AND A MORE UNDERPRIVILEGED “DEPRESSED BACKWARD CLASSES” LIST OF
2,108 CASTES.
 11 INDICATORS OF MANDAL COMMISSION

SOCIAL
1. CASTES THAT OTHERS PERCEIVE TO BE SOCIALLY BACKWARD. IN OTHER WORDS, CASTES THAT ARE BACKWARD IN THE
PERCEPTION OF OTHER PEOPLE IN SOCIETY.
2. CASTES THAT MAINLY DEPEND ON THEIR LIVELIHOODS BY HAND. EXAMPLE: MANUAL/DAILY WAGE LABORER
3. IN CASES SUCH AS RURAL AREAS WHERE AT LEAST 25% OF WOMEN AND 10% OF MEN ABOVE THE STATE AVERAGE ARE
MARRIED BELOW THE AGE OF 17. WHEREAS, IN URBAN AREAS, IN THOSE CASES WHERE 10% OF WOMEN AND 5% OF MEN
MARRIED BELOW THE AGE OF 17 IS ABOVE THE STATE AVERAGE.
4. CASTES WHERE FEMALE EMPLOYMENT IS AT LEAST 25% HIGHER THAN THE STATE AVERAGE.
EDUCATIONAL
5. CASTES IN WHICH THE CHILDREN IN THE AGE GROUP 5-15 HAVE NEVER BEEN TO SCHOOL IS 25% HIGHER THAN THE
STATE AVERAGE.
6. IF THE DROP-OUT (ONE WHO QUITS THE SCHOOL IN THE MIDDLE WITHOUT PASSING) RATE IN THE AGE GROUP 5-15
YEARS IS AT LEAST 25% ABOVE THE STATE AVERAGE.
7. CASTES WHERE REGISTRATION OF MATRICULATES IS AT LEAST 25% LOWER THAN THE STATE AVERAGE.
 11 INDICATORS OF MANDAL COMMISSION CONTD..

ECONOMIC
8. WHERE THE AVERAGE VALUE OF FAMILY ASSETS IS AT LEAST 25% LOWER THAN THE AVERAGE VALUE OF THE STATE.
9. THE CASTES IN WHICH THE NUMBER OF FAMILIES LIVING IN KACCHA HOUSES IS 25% ABOVE THE STATE AVERAGE.
KACCHA HOUSES REFER TO THATCHED HOUSES OR THOSE MADE UP OF MUD/CLAY.
10. CASTES WHERE MORE THAN 50% OF THE HOUSEHOLDS HAVE A WATER SOURCE FOR DRINKING BEYOND HALF A
KILOMETER. IT REFERS TO THOSE FAMILIES WHO TRAVEL MORE THAN HALF A KILOMETER FOR COLLECTING DRINKING
WATER.
11. THE CASTES IN WHICH THE FAMILIES TAKING HOUSEHOLD CONSUMPTION LOANS ARE 25% ABOVE THE STATE
AVERAGE.
 SOCIAL INDICATORS

• CASTES OR CLASSES CONSIDERED SOCIALLY BACKWARD BY OTHERS.

• CASTES OR CLASSES THAT RELIED ON MANUAL LABOUR FOR THEIR LIVELIHOOD.
• CASTES OR CLASSES WHERE:
• AT LEAST 10% MALES AND 25% FEMALES MORE THAN THE STATE AVERAGE GOT MARRIED BELOW THE
AGE OF 17 YEARS IN RURAL AREAS
• AT LEAST 5% MALES AND 10% OF FEMALES MORE THAN THE STATE AVERAGE GOT MARRIED BELOW THE
AGE OF 17 YEARS IN URBAN AREAS

• CASTES/CLASSES WHERE PARTICIPATION OF WOMEN IN WORK IS AT LEAST 25% MORE THAN THE
STATE AVERAGE.
 EDUCATIONAL INDICATORS

• CASTES OR CLASSES WHERE THE NUMBER OF CHILDREN BETWEEN THE AGES OF 5 AND 15
WHO NEVER ATTENDED SCHOOL IS AT LEAST 25% MORE THAN THE STATE AVERAGE.
• CASTES OR CLASSES WHEN THE RATE OF STUDENT DROPOUT BETWEEN THE AGES OF 5 AND
15 IS AT LEAST 25% MORE THAN THE STATE AVERAGE.
• CASTES OR CLASSES AMONGST WHOM THE PROPORTION OF MATRICULATES IS AT LEAST
25% LESS THAN THE STATE AVERAGE.
 ECONOMIC INDICATORS

• CASTES OR CLASSES WHERE THE AVERAGE VALUE OF FAMILY ASSETS IS AT LEAST 25% LESS
THAN THE STATE AVERAGE.
• CASTES OR CLASSES WHERE THE NUMBER OF FAMILIES LIVING IN KUTCHA HOUSES IS AT LEAST
25% MORE THAN THE STATE AVERAGE.
• CASTES OR CLASSES WHERE THE NUMBER OF HOUSEHOLDS HAVING TAKEN CONSUMPTION
LOANS IS AT LEAST 25% MORE THAN THE STATE AVERAGE.
 THE RECOMMENDATIONS

• RESERVATION OF 27% PUBLIC SECTOR AND GOVERNMENT JOBS FOR OBCS FOR THOSE WHO DO NOT
QUALIFY ON MERIT.
• RESERVATION OF 27% FOR PROMOTIONS AT ALL LEVELS FOR OBCS IN PUBLIC SERVICE.
• THE RESERVED QUOTA, IF UNFILLED, SHOULD BE CARRIED FORWARD FOR A PERIOD OF 3 YEARS AND DE-
RESERVED AFTER THAT.
• AGE RELAXATION FOR OBCS TO BE THE SAME AS THAT FOR SCS AND STS.
• A ROSTER SYSTEM SHOULD BE PREPARED FOR THE BACKWARD CLASSES ON THE PATTERN OF THAT FOR
THE SCS AND STS.
• RESERVATIONS TO BE MADE IN PSUS, BANKS, PRIVATE SECTOR UNDERTAKINGS RECEIVING GOVERNMENT
GRANTS, COLLEGES AND UNIVERSITIES.
• THE GOVERNMENT TO MAKE THE NECESSARY LEGAL PROVISIONS TO IMPLEMENT THESE
RECOMMENDATIONS
STATE OF MADRAS V. SMT.CHAMPAKAM DORAIRAJAN
(1951)
IS A LANDMARK DECISION OF THE SUPREME COURT OF INDIA. THIS JUDGEMENT
LED TO THE FIRST AMENDMENT OF THE CONSTITUTION OF INDIA. IT WAS THE
FIRST MAJOR JUDGEMENT REGARDING RESERVATIONS IN REPUBLIC OF INDIA.
IN ITS RULING THE SUPREME COURT UPHELD THE MADRAS HIGH
COURT JUDGEMENT, WHICH IN TURN HAD STRUCK DOWN THE GOVERNMENT
ORDER (G.O) PASSED IN 1927 IN THE [MADRAS PRESIDENCY]. THE G.O HAD
PROVIDED CASTE-BASED RESERVATION IN GOVERNMENT JOBS AND COLLEGE
SEATS. THE SUPREME COURT'S VERDICT HELD THAT PROVIDING SUCH
RESERVATIONS WAS IN VIOLATION OF ARTICLE 29 (2) OF THE INDIAN
CONSTITUTION.
 INDRA SAWHNEY V. UNION OF INDIA
• IN 1980, THE MANDAL COMMISSION REPORT, FOLLOWED THE SUPREME COURT JUDGMENT
IN INDRA SAWHNEY V. UNION OF INDIA, ALLOWED NOT MORE THAN 50 PER CENT OF SEATS IN
THE EDUCATIONAL AND SERVICE MATTER FOR THE ST (SCHEDULED TRIBES), SC (SCHEDULED CASTES)
AND OBC (OTHER BACKWARD CLASSES) WHO CONSTITUTED AROUND 70 PER CENT OF THE TOTAL
POPULATION OF INDIA.
• THE COURT HAS SAID THAT THE CREAMY LAYER OF OBCS SHOULD BE EXCLUDED FROM THE LIST OF
BENEFICIARIES OF RESERVATION, THERE SHOULD NOT BE RESERVATION IN PROMOTIONS, AND
TOTAL RESERVED QUOTA SHOULD NOT EXCEED 50%
• THIS LEAD TO A CONSIDERABLE PROGRESS IN THEIR STATUS; ACCORDING TO THE DATA RELEASED
BY PLANNING COMMISSION BETWEEN 2004-2005 AND 2011-2012, MORE PEOPLE AMONG THE
DEPRIVED SOCIAL CLASSES — SCS, STS AND OBCS — WERE BROUGHT ABOVE THE POVERTY LINE,
COMPARED TO OTHER SEGMENTS OF SOCIETY.
 CREAMY LAYER

• THE TERM "CREAMY LAYER" WAS FIRST USED DURING THE SUPREME COURT JUDGMENT (INDIRA
SAWHANEY V. UNION OF INDIA) ON THE MANDAL COMMISSION RECOMMENDATIONS
ASKING FOR 27% RESERVATIONS FOR OTHER BACKWARD CLASSES (OBCS) IN CENTRAL
GOVERNMENT JOBS. WHILE THE SUPREME COURT MEANT THAT THE MORE PRIVILEGED
AMONG THE BACKWARD CLASSES DO NOT DOMINATE THE RESERVED CATEGORIES, THE BARE
BONES OF THE CRITERIA FOR JUDGING THE CREAMY LAYER WAS LEFT WITH THE STATE
GOVERNMENTS.
 EXCLUSIONS

• I. CONSTITUTIONAL POSTS: SON(S) AND DAUGHTER(S) OF

(A) PRESIDENT OF INDIA;
(B) VICE PRESIDENT OF INDIA;
(C) JUDGES OF THE SUPREME COURT AND OF THE HIGH COURTS;
(D) CHAIRMAN & MEMBERS OF UPSC AND OF THE STATE PUBLIC SERVICE COMMISSION; CHIEF
ELECTION COMMISSIONER; COMPTROLLER & AUDITOR GENERAL OF INDIA;
(E) PERSONS HOLDING CONSTITUTIONAL POSITIONS OF LIKE NATURE.
• II.SERVICE CATEGORY
A. GROUP A/CLASS 1 OFFICERS OF THE ALL INDIA CENTRAL AND STATE SERVICES (DIRECT
RECRUITS) SON(S) AND DAUGHTER(S) OF

(A) PARENTS, BOTH OF WHOM ARE CLASS I OFFICERS;

(B) PARENTS, EITHER OF WHOM IS A CLASS I OFFICER;
(C) PARENTS, BOTH OF WHOM ARE CLASS I OFFICERS, BUT ONE OF THEM DIES OR SUFFERS
PERMANENT INCAPACITATION.
(D) PARENTS, EITHER OF WHOM IS A CLASS I OFFICER AND SUCH PARENT DIES OR SUFFERS
PERMANENT INCAPACITATION AND BEFORE SUCH DEATH OR SUCH INCAPACITATION HAS
HAD THE BENEFIT OF EMPLOYMENT IN ANY INTERNATIONAL ORGANISATION LIKE UN, IMF,
WORLD BANK, ETC. FOR A PERIOD OF NOT LESS THAN 5 YEARS.
(E) PARENTS, BOTH OF WHOM ARE CLASS I OFFICERS DIE OR SUFFER PERMANENT
INCAPACITATION AND BEFORE SUCH DEATH OR SUCH INCAPACITATION OF THE BOTH,
EITHER OF THEM HAS HAD THE BENEFIT OF EMPLOYMENT IN ANY INTERNATIONAL
ORGANISATION LIKE UN, IMF, WORLD BANK, ETC. FOR A PERIOD OF NOT LESS THAN 5
YEARS.
(F) PROVIDED THAT THE RULE OF EXCLUSION SHALL NOT APPLY IN THE FOLLOWING CASES
:-
a) Sons and daughters of parents either of whom or both of whom are Class-I officers and such parent(s)
dies / die or suffer permanent incapacitation.
(b) A lady belonging to OBC category has got married to a Class-I officer, and may herself like to apply
for a job.

B. Group B/Class II officers of the Central & State Services (Direct Recruitment) Son(s) and daughter(s)
of

(a) parents both of whom are Class II officers.

(b) parents of whom only the husband is a Class II officer and he gets into Class I at the age of 40 or
earlier.
(c) parents, both of whom are Class II officers and one of them dies or suffers permanent incapacitation
and either one of them has had the benefit of employment in any International Organisation like UN, IMF,
World Bank, etc. for a period of not less than 5 years before such death or permanent incapacitation;
(d) parents, of whom the husband is a Class I officer (direct recruit or pre-forty promoted) and the wife is
a Class II officer and the wife dies; or suffers permanent incapacitation; and
(e) parents, of whom the wife is a Class I officer (Direct Recruit or pre-forty promoted) and the husband is
a Class II officer and the husband dies or suffers permanent incapacitation.
Provided that the rule of exclusion shall not apply in the following cases: Sons and daughters of
(a) Parents both of whom are Class II officers and one of them dies or suffers permanent incapacitation.
(b) Parents, both of whom are Class II officers and both of them die or suffer permanent incapacitation,
even though either of them has had the benefit of employment in any International Organization like UN,
IMF, World Bank, etc. for a period of not less than 5 years before their death or permanent
incapacitation.

C. Employees in Public Sector Undertakings etc. The criteria enumerated in A & B above in this
Category will apply mutatis mutandi to officers holding equivalent or comparable posts in PSUs, banks,
Insurance Organizations, Universities, etc. and also to equivalent or comparable posts and positions
under private employment, Pending the evaluation of the posts on equivalent or comparable basis in
these institutions, the criteria specified in Category VI below will apply to the officers in these Institutions.

III. Armed Forces Including Paramilitary Forces

(Persons holding civil posts are not included) Son(s) and daughter(s) of parents either or both of whom
is or are in the rank of Colonel and above in the Army and to equivalent posts in the Navy and the Air
Force and the Para Military Forces;
IV. Professional Class And Those Engaged In Trade And Industry
(I) Persons engaged in profession as a doctor, lawyer, Chartered Accountant, Income- Tax
Consultant, financial or management consultant, dental surgeon, engineer, architect, computer
specialist, film artists and other film professional, author, playwright, sports person, sports
professional, media professional or any other vocations of like status. Criteria specified against
Category VI will apply:

(II) Persons engaged in trade, business and industry: Criteria specified against Category VI will
apply:

Interpretation:
(i) Where the husband is in some profession and the wife is in a Class II or lower grade
employment, the income / wealth test will apply only on the basis of the husband's income.

(ii) If the wife is in any profession and the husband is in employment in a Class II or lower rank post,
then the income/wealth criterion will apply only on the basis of the wife's income and the husband's
income will not be clubbed with it.
Property Owners
A. Agricultural holdings -- Son(s) and daughter(s) of persons belonging to a family (father, mother and minor
children) which owns

(a) only irrigated land which is equal to or more than 85% of the statutory ceiling area, or
(b) both irrigated and unirrigated land, as follows:

(i) The rule of exclusion will apply where the pre-condition exists that the irrigated area (having been brought
to a single type under a common denominator) 40% or more of the statutory ceiling, limit for irrigated land
(this being, calculated by excluding the unirrigated portion). If this pre-condition of not less than 40% exists,
then only the area of unirrigated land will be taken into account. This will be done by converting the
unirrigated land on the basis of the conversion formula existing, into the irrigated type. The irrigated area so
computed from unirrigated land shall be added to the actual area of irrigated land and if after such clubbing
together the total area in terms of irrigated land is 80% or more of the statutory ceiling limit for irrigated land,
then the rule of exclusion will apply and dis-entitlement will occur.

(ii) The rule of exclusion will not apply if the land holding of a family is exclusively unirrigated.
B. Plantations
(i) Coffee, tea, rubber, etc.
(ii) Mango, citrus, apple plantations etc.
 M. NAGARAJ V. UNION OF INDIA
• THE M. NAGARAJ V. UNION OF INDIA LAID DOWN THE TWIN TEST, NAMELY, THE “WIDTH TEST”
AND THE TEST OF “IDENTITY” WHICH HAS TO BE SATISFIED IN ORDER TO ASCERTAIN THE
VALIDITY OF AN AMENDMENT. THE WIDTH TEST WAS TO ASCERTAIN THE “WIDTH” OF THE
EFFECT ANY AMENDMENT MIGHT HAVE ON CONSTITUTION, AND OBLIQUELY ON THE
PRINCIPLES WHICH ARE AT ITS CORE. THE WIDTH OF EFFECT DECIDES THE LEGITIMATE SCOPE
(WIDTH) OF THE AMENDING POWERS AND ALSO CONTEMPLATES ALL THE PROBABLE
RAMIFICATIONS OF AN AMENDMENT TO SEE IF THE “BASIC STRUCTURE” OF THE
CONSTITUTION IS UNDER THREAT. THE “IDENTITY TEST” ON THE OTHER HAND TESTS WHETHER
AFTER THE AMENDMENT THE IDENTITY OF THE CONSTITUTION REMAINS THE SAME.
• IN DECIDING WHETHER THE ACT VIOLATES THE BASIC STRUCTURE IT HAS TO BE SUBJECTED TO THE
TWO TESTS.
• WHERE THE WIDTH TEST THE BILL HAS TO BE EXAMINED ON THE BASIS OF FOUR ISSUES:

• (I) QUALITATIVE ISSUES LIKE 50% CEILING FOR ALL RESERVATIONS TAKEN TOGETHER;
• (II) EXCLUSION OF CREAMY LAYER OR QUALITATIVE EXCLUSION;
• (III) COMPELLING REASONS SUCH AS BACKWARDNESS OF THE ECONOMICALLY WEAKER SECTIONS
FOR WHOM THIS RESERVATION HAS BEEN MADE; AND
• (IV) THAT OVERALL ADMINISTRATIVE EFFICIENCY IS NOT OBLITERATED BY THE NEW RESERVATION.

• THE IDENTITY TEST WILL HAVE TO BE APPLIED TO ASCERTAIN IF THE IDENTITY OR THE BASIC
CHARACTERISTICS OF THE CONSTITUTION CHANGES, AFTER THE AMENDMENT. ALL OF THESE ISSUES
HAVE BEEN DISCUSSED IN THE SUCCEEDING PARAGRAPHS.
 ASHOKA KUMAR THAKUR V. UNION OF INDIA,

• THE SUPREME COURT OF INDIA IN UPHOLDING THE CONSTITUTIONAL VALIDITY OF CENTRAL

EDUCATIONAL INSTITUTIONS (RESERVATION IN ADMISSION) ACT, 2006 STATED THAT THE
IDENTIFICATION OF BACKWARD CLASS CANNOT BE DONE SOLELY ON CASTE. OTHER
PARAMETERS ARE FOLLOWED IN IDENTIFYING THE BACKWARD CLASS.
 103RD AMENDMENT ACT

• PRESIDENT RAMNATH KOVIND HAS GIVEN THE ASSENT TO THE 124TH CONSTITUTIONAL
AMENDMENT BILL (WHICH IS NOW CONSTITUTION 103RD AMENDMENT ACT) PROVIDING 10
PER CENT RESERVATION FOR ECONOMICALLY WEAKER SECTIONS.
• THE IMPORTANT COMPONENTS OF THE 103RD CONSTITUTIONAL AMENDMENT ARE: THE
AMENDMENT CHANGED TWO FUNDAMENTAL RIGHTS, ARTICLE 15 AND 16. THE AMENDMENTS
PROVIDE FOR THE ADVANCEMENT OF THE “ECONOMICALLY WEAKER SECTIONS” OF THE
SOCIETY. THE AMENDMENT AIMS TO FULFIL THE COMMITMENTS OF THE DIRECTIVE PRINCIPLES
OF STATE POLICY UNDER ARTICLE 46, TO PROMOTE THE EDUCATIONAL AND ECONOMIC
INTERESTS OF THE OF THE WEAKER SECTIONS OF THE SOCIETY.
 CRITERION FOR RESERVATION

• PEOPLE WHO HAVE AN ANNUAL INCOME OF LESS THAN RS.8 LAKHS,

• OR PEOPLE WHO OWN LESS THAN FIVE ACRES OF FARM LAND,
• OR PEOPLE WHO HAVE A HOUSE LESSER THAN 1,000 SQ FEET IN A TOWN (OR 100 SQ YARD
IN A NOTIFIED MUNICIPAL AREA).
• IT WAS ONLY IN 1973 THAT THE CONCEPT SURFACED IN THE TEXT OF THE SUPREME COURT’S
VERDICT. IN KESAVANANDA BHARATI V. STATE OF KERALA, THE BASIC FOUNDATION AND
STRUCTURE OF THE CONSTITUTION WERE MENTIONED BY SIKRI, C.J. AS:
• (1) SUPREMACY OF THE CONSTITUTION;
• (2) SEPARATION OF POWERS BETWEEN THE LEGISLATURE, THE EXECUTIVE AND THE JUDICIARY;
• (3) REPUBLICAN AND THE DEMOCRATIC FORM OF GOVERNMENT;
• (4) SECULAR CHARACTER OF THE CONSTITUTION;
• (5) FEDERAL CHARACTER OF THE CONSTITUTION. THE OTHER JUDGES MENTIONED ANOTHER 3
BASIC FEATURES OF THE CONSTITUTION;
• (6) THE DIGNITY OF THE INDIVIDUAL SECURED BY THE VARIOUS FUNDAMENTAL RIGHTS AND
THE MANDATE TO BUILD A WELFARE STATE CONTAINED IN THE DIRECTIVE PRINCIPLES;
• (7) THE UNITY AND INTEGRITY OF THE NATION; AND
• (8) PARLIAMENTARY SYSTEM.
 ARTICLE 17
• ABOLITION OF UNTOUCHABILITY. -"UNTOUCHABILITY" IS ABOLISHED AND ITS PRACTICE IN
ANY FORM IS FORBIDDEN. THE ENFORCEMENT OF ANY DISABILITY ARISING OUT OF
"UNTOUCHABILITY" SHALL BE AN OFFENCE PUNISHABLE IN ACCORDANCE WITH LAW.
• UNTOUCHABILITY IS NEITHER DEFINED IN THE CONSTITUTION NOR IN THE ACT.
IT REFERS TO A SOCIAL PRACTICE WHICH LOOKS DOWN UPON CERTAIN
DEPRESSED CLASSES SOLELY ON ACCOUNT OF THEIR BIRTH AND MAKES ANY
DISCRIMINATION AGAINST THEM ON THIS GROUND. THEIR PHYSICAL TOUCH
WAS CONSIDERED TO POLLUTE OTHERS. SUCH CASTES WHICH WERE CALLED
UNTOUCHABLES WERE NOT TO DRAW WATER FROM THE SAME WELLS, OR
USE THE POND/TANK WHICH IS BEING USED BY THE HIGHER CASTES. THEY
WERE NOT ALLOWED TO ENTER SOME TEMPLES AND SUFFERED MANY OTHER
DISABILITIES.
INCLUSION OF THIS PROVISION IN THE CONSTITUTION SHOWS THE IMPORTANCE ATTACHED
BY THE CONSTITUENT ASSEMBLY TOWARDS ERADICATION OF THIS EVIL PRACTICE. ARTICLE
17 IS ALSO A SIGNIFICANT PROVISION FROM THE POINT OF VIEW OF EQUALITY BEFORE LAW
(ARTICLE 14). IT GUARANTEES SOCIAL JUSTICE AND DIGNITY OF MAN, THE TWIN PRIVILEGES
WHICH WERE DENIED TO A VAST SECTION OF THE INDIAN SOCIETY FOR CENTURIES
TOGETHER.
THIS RIGHT IS DIRECTED AGAINST PRIVATE PERSONS. THE NATURE OF UNTOUCHABILITY IS
SUCH THAT IT IS NOT POSSIBLE TO CONCEIVE WHERE THE STATE MAY PRACTICE
UNTOUCHABILITY.
 ARTICLE 18

ABOLITION OF TITLES
• NO TITLE, NOT BEING A MILITARY OR ACADEMIC DISTINCTION, SHALL BE CONFERRED BY THE STATE.
• NO CITIZEN OF INDIA SHALL ACCEPT ANY TITLE FROM ANY FOREIGN STATE.
• NO PERSON WHO IS NOT A CITIZEN OF INDIA SHALL, WHILE HE HOLDS ANY OFFICE OF PROFIT OR
TRUST UNDER THE STATE, ACCEPT WITHOUT THE CONSENT OF THE PRESIDENT ANY TITLE FROM ANY
FOREIGN STATE.
• NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THE STATE SHALL, WITHOUT THE
CONSENT OF THE PRESIDENT, ACCEPT ANY PRESENT, EMOLUMENT, OR OFFICE OF ANY KIND FROM
OR UNDER ANY FOREIGN STATE.
Article 20
---------------------------------------
-
Article 20: Protection in respect of
conviction for offences
20(1): 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 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.

20(2): No person shall be prosecuted and punished for the same offence more than once.

20(3): No person accused of any offence shall be compelled to be a witness against himself.
Article 20 of the Indian Constitution makes up of 3 clauses.

In a simpler sense, these three clauses deal with issue of unnecessary and rather undesirable actions by
Legislature, Executive & implementing authorities.

The basic crux of these provisions are:

First, it establishes that no one should be convicted for any offence other than those violating the law in force at
the time of the commission of the offence and also, one couldn’t be penalised with a greater punishment than
what existed at the time of the commission of the act.
Second, no one could be convicted and punished more than once for the same offence involving the same set of
facts.
Third, no one should be compelled to produce such evidence and information which could be used against him
during trial incompetent judicial tribunals.
Article 20 is among those Articles of the Indian Constitution, which can’t be put aside even during an emergency.
Thus, forms a cornerstone of the Indian Constitution.

Now, let’s do a survey of three legal doctrines of the Indian Criminal jurisprudence, which reflects the three
clauses of the Article 20, i.e. Ex-post facto law, Doctrine of Double Jeopardy and Prohibition against self-
incrimination.
Provision against Ex post facto law:
Clause (1) of Article 20
The provision in question, i.e. Article 20 (1) says that one must not be prosecuted and convicted in
accordance with those laws which didn’t exist at the time of the commission of the offence by the
accused and also must not be inflicted with punishments greater than those existing at the time
of commission.

This provision negates the chance of retrospective implementation of laws regarding criminal
offences. In simpler speak, this provision brings a clampdown to the legislative prerogative of the
legislation by prohibiting retrospective implementation of a law having criminal nature.
 Illustration

Assume that a man, Bhairav Surve, practising black magic in Dhamangaon village of Maharashtra, murders
a child of his locality on 20th December 2012. Later, in December 2013, the legislature of Maharashtra
passes the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori
Practices and Black Magic Act, 2013 and by virtue of provision against Ex post facto law, Bhairav Surve
can’t be prosecuted and charged under the mentioned Act as the commission of offence dates back to
when the act didn’t exist.

Though the legislation in India has the authority to implement laws retrospectively this clause prohibits the
Legislature to enact a criminal law retrospectively. This provision ensures that no one could be booked or
charged under such laws, which were not in existence at the time of the commission of the offence.

The Landmark judgement governing this doctrine came in the year 1953, in case
of Kedar Nath v. State of West Bengal. In this case, the Hon’ble Supreme Court of
India observed that, whenever an act is declared as a criminal offence and/or provides
penalty for same by the legislature, it is always prospective in nature and can’t be
implemented retrospectively to uphold what is being said under Article 20 (1).
However, only the procedure of sentencing and convicting is what is prohibited under this
clause, and not the trial itself. Thus, a person accused according to a particular procedure
can’t be questioned under this clause and doctrine of Ex post facto law.
Dealing with a similar situation, in the case of Mohan Lal v. State of Rajasthan (AIR 2015
SC 2098) which involved Narcotics, Drugs and Psychotropic Substances Act, the court opined
that, only conviction and/or punishments under an ex post facto law is prohibited
under Article 20 and not the trial or prosecution itself. Also, trial under a different procedure
than what existed during the commission of the act doesn’t come under the ambit of the
same and can’t be struck down as unconstitutional.
In another important judgement in case of Maru Ram Etc. vs Union Of India & Anr (1980
AIR 2147), the Court observed that Article 20 (1) also includes the rule that there will be
no retrospective infliction of penalties heavier than those existing ones at the time of
commencement of the offence.
However, an exception also exists to the restriction under this provision. In the case of
Rattan Lal v. the State of Punjab, the Hon’ble Supreme Court allowed for such retrospective
implementation of Criminal Laws, where the issue pertinent is, reduction of punishment in
the said offence. Now, let’s discuss the Doctrine of Double Jeopardy.
 Double jeopardy: Clause (2) of Article 20

“Nemo debet bis vexari pro una et eadem causa”

The Doctrine of Double Jeopardy, which traces back its origin to American jurisprudence
of punishment, means that ‘no person can be prosecuted and punished twice for the
same offence in subsequent proceedings’. And, Article 20 (2), which reads that no
one could be convicted and punished more than once for the same offence involving
the same set of facts guarantees against the multiple convictions and Double jeopardy.

In the case of Venkataraman v. Union of India, the Supreme Court of India

established that this provision deals exclusively with Judicial punishments and provides
that no person is prosecuted twice by the judicial authorities. The most crucial
landmark judgement came in case of Maqbool Hussain v. State of Bombay, where
the person accused was possessing some amount of gold, which was against lex loci at
the time and gold was confiscated by the customs authority. And, later when the
person was prosecuted before a criminal court, the court was confronted with the
question whether this amounts to Double Jeopardy.
But, the Supreme Court observed that departmental proceedings, i.e. by Customs
Authority, in this case, doesn’t amount to trial by a judicial tribunal, thus the proceedings
before the criminal court is not barred in this case and the proceedings can go on. In a
nutshell Departmental Proceedings are independent of trial by a judicial court or tribunal.

However, the prosecution may happen if the facts are distinct in subsequent proceedings.
Same was established by the Supreme Court of India in case of A.A. Mulla v. State of
Maharashtra and was observed that; Article 20 (2) would not be attracted in those cases
where the facts are distinct in subsequent offence or punishment.

The defence from prosecution for the second time has also been embodied in Section 300
(1) of CrPC which says that someone who had been convicted/prosecuted by a competent
court for some offence will not be liable to be prosecuted again till the previous
conviction/acquittal remains in force. Thus, prohibiting from a conviction for the second
time, for the same offence and on the same set of facts. This provision does devise a rule
for where the second trial is permissible and where not.
However, the application of this provision does demand certain conditions to be fulfilled:

•First, that the accused or the person in question must have been tried by the court
previously and it is concerned only with judicial prosecution and proceedings.

•Secondly, the court trying the case must be competent, i.e. it should act under its
competent jurisdiction and shouldn’t exercise its power, Ultra Vires.

•Thirdly, the previous proceeding must have ended in either acquittal or conviction and if it
ended merely after inquiry, such cases are not covered under the ambit of Sec 300 (1) of
CrPC.

•Fourthly, the previous conviction/acquittal must be in force and should not have been set
aside by appeal or re-trial. This is an essential condition because in absence of let’s say,
previous conviction, there will be no bar for the second prosecution and the second trial may
happen.

•And lastly, in the subsequent trial, he/she must be tried for the same offence and on same
facts for any other offence, which is having a different charge under Section 221 (1)/(2)
of CrPC.
Nonetheless, there exists an exception to this provision, i.e. the Principle of Issue
Estoppel. The above-mentioned exception provides for estoppel against the ongoing
prosecution if the fact-finding happens to be in favour of accused but it does not bar from
subsequent proceeding for a different offence. However, to invoke this defence, not only
the parties involved but the facts in issue should also be the same. Landmark case for the
same is Ravinder Singh v. Sukhbir Singh.
 Prohibition against self-incrimination: Clause (3) of Article 20
Another foremost rule which provides for protection from a conviction for offences is ‘Prohibition
against Self-incrimination.’ The same is provided by the Constitution of India in Part III
under Article 20 (3). It describes that no one could be forced to utter and provide such
information or evidence orally or by documentary means which could be used against himself
during the further trial procedure.

Also, the term ‘Witness’ includes both, Oral and documentary evidence as held in M.P. Sharma
v. Satish Chandra. As held in the same case, however, there is no restriction where a search
for document or seizures is being done by the authorities. However, the information and
evidence produced voluntarily by the accused is permissible.
Section 25,26 and 27 of the Indian Evidence Act say that there is not the admissible value of statement
given by the accused or victim which harms himself. But the accused accept crime with evidence then it
admissible.

The protection against self-incrimination extends to both oral evidence and documentary evidence.
However, it does not extend to [State of Bombay Vs Kathi Kalu Oghad 1961]

1.Compulsory production of material objects,

2.The compulsion to give thumb impression, specimen signature, blood specimens, and

3.Compulsory exhibition of the body.

It extends only to criminal proceedings and not to civil proceedings or proceedings which are not of
criminal nature.
Prohibition against self-incrimination could only be put into effect if the person is accused of a
criminal offence. This doctrine could not be invoked for cases other than criminal cases. Also,
as held by the Hon’ble Supreme Court in Narayanlal vs Maneck, to claim the immunity from
being self-incriminated, there must exist a formal accusation against the person and mere
general inquiry and investigation don’t form grounds for the same.

Article 20 (3) also lays out that a person cannot be compelled to be a witness in his/her own
prosecution or case. This is also embodied in the American Constitution by virtue of 5th
Amendment into it. Also, the authorities can not compel the accused to produce evidence,
which can be used against his trial. Those evidence can be Oral or Documentary. However, an
exception to this lies under Section 91 of CrPC which gives authority to a court or an officer
to issue an order demanding documents that were under the possession of the accused.

Another provision which guarantees prohibition against self-incrimination is Section 161 (2)
of CrPC, which says that while being examined by the authorities, a person is bound to
answer all the questions truly excepting those which have a propensity to be used against the
person himself later during trial.

Thus, here we come to the end of the segment discussing Article 20 (3) of the Indian
Constitution and other provisions providing for the prohibition against self-incrimination.
Article 21
COI
 Article 21

 Article 21: “No person shall be deprived of his life or personal liberty
except according to a procedure established by law.”
1. Right to life
2. Right to personal liberty
 Article 21 of the Constitution defines 'life' as more than just the act of
breathing. It does not imply a just animal existence or a life of
drudgery. It encompasses a far broader range of rights, including
the right to live in dignity, the right to a livelihood, the right to health,
the right to clean air, and so on.
 The main purpose of Article 21: To ensure that when a person's right
to life or liberty is taken away by the state, it is done so exclusively in
accordance with the law.
Right to Life (Article 21) - Scope and
Various Judicial Pronouncements
 The scope of Article 21 has not been narrowed or reduced due to
judicial intervention. Several key decisions have widened the gap. A
few notable cases involving Article 21:

 AK Gopalan Case
 Article 21 had a fairly limited scope until the 1950s, as seen by the AK
Gopalan case.
 The Supreme Court ruled that the phrase "procedure established by
law" in the Constitution conveyed the British concept of personal
liberty rather than the American concept of "due process" in this
case.
Maneka Gandhi vs. Union of India (1978)
•This case has overturned the Gopalan decision. Articles 19 and 21 are not watertight
compartments, according to the Supreme Court.
•Article 21's concept of personal liberty encompasses a wide range of rights, some of
which are enshrined in Article 19, providing them with "additional protection."
•The court went on to say that a law that falls under Article 21 must also meet the conditions
of Article 19. That means that any legal method for depriving someone of their life or liberty
must be fair, reasonable, and arbitrary.

Francis Coralie Mullin vs. Union Territory of Delhi (1981)

•The court declared that any procedure for depriving a person of his or her life or liberty must
be rational, fair, and just, rather than arbitrary, whimsical, or imaginative.

Olga Tellis vs. Bombay Municipal Corporation (1985)

•This case reaffirmed the former position that any method that might deprive a person of
their fundamental rights must follow fair play and justice principles.

State of Andhra Pradesh vs. Unni Krishnan (1993)

•The Supreme Court supported the enlarged interpretation of the right to life in this instance.
 Different kinds of Rights under Article 21
Based on the aforementioned decisions, the Court provided a list of rights that Article 21
protects. Here are a few examples:

Right Against Sexual Harassment at Workplace

The Supreme Court has ruled that sexual harassment of women is a violation of one of the most
valued of fundamental rights, the Right to Life enshrined in Art. 21.
The Supreme Court ruled in Vishakha v. State of Rajasthan that workplace sexual harassment is
a violation of the right to equality, life, and liberty. As a result, Articles 14, 15, and 21 of the
Constitution have been violated.

Right to Shelter
The right to shelter has been declared a basic right in the case of UP Avas Vikas Parishad v.
Friends Coop. To make the right meaning for the poor, the state must give facilities and
chances to build residences.
In Shantistar Builders v. Narayan Khimalal Totame, the Court upheld the importance of the right
to a pleasant environment and reasonable accommodations, ruling:
“The right to life would encompass the rights to food, clothing, a decent environment, and
acceptable living quarters.
 Right to get Pollution Free Water and Air

The Supreme Court stated in the case of Subhas Kumar v. the State of Bihar:
"Under Article 21 of the Constitution, the right to live is a fundamental right, and it includes the
right to enjoy pollution-free water and air for the full enjoyment of life." If something endangers
or damages that quality of life in violation of the law, a citizen has the right to use Art. 32 of the
Constitution to have the pollution of water or air removed, which may be harmful to the quality
of life.“

Right to life and suicide

Attempting suicide is a criminal offence punishable by imprisonment and a fine under Section
309 of the Indian Penal Code (IPC).
Many individuals questioned whether this should continue because mental health experts think
that people who attempt suicide require sufficient counselling rather than punishment.
Parliament passed the Mental Healthcare Act of 2017 in 2017, and the law went into effect in
2018. This Act is intended to offer "mental healthcare and services for persons with mental
illness, as well as to safeguard, promote, and fulfil such persons' rights during the administration
of mental healthcare and services."
In India, this law makes suicide legal.
 Right to Die with Dignity (Euthanasia)

Euthanasia is the deliberate ending of a person's life in order to alleviate suffering and
misery. It's also known as 'mercy killing.'
Many people argue on whether the right to live includes the right to die, particularly the right to die
with dignity.
The practice of Passive Euthanasia is legalized in several countries (the Netherlands, Belgium, Denmark,
Switzerland, Colombia, Luxembourg, and some of the states in the USA).
In countries like Netherlands, Belgium, and Switzerland the practice of Active Euthanasia which is also
assistance that is legally allowed under circumstances.
Passive Euthanasia: This occurs when a terminally ill person's therapy is withheld, i.e., the conditions that
allow them to live are removed.
Active Euthanasia: When a doctor uses fatal substances to end someone's life, this is known as active
euthanasia.
In India’s Case: There is no law enacted by the Legislature in India that regulated the practice of
Euthanasia all forms of practice of Euthanasia is illegal and it is punished in the law.
The Supreme Court in Aruna Shanbaugh vs Union of India, 2011 case held that passive Euthanasia can
be practiced on the case-by-case bench of the High Court.
Consisting of not less than 2 judges giving permission provided a team of medical experts containing of
a neurologist, a physician, a psychiatrist gives permission and a relative give a bonafide aid consent to
practice passive euthanasia on a patient.
The court clarified the practice of Active Euthanasia will continue to be illegal.
 DIGNITY
• THE WORD HUMAN “DIGNITY” HAS BEEN DERIVED FROM A LATIN “DIGNITAS”
WHICH MEANS WORTH, MERIT, QUALITY OR STATE WORTHY OF ESTEEM AND
RESPECT OR HIGH STATUS, REPUTATION.9THE TERM DIGNITY MEANS SIMPLY
‘WORTHINESS’ OR ‘EXCELLENCE’. HUMAN DIGNITY ALSO TREATED AS HONOUR
AND STATUS OF THE INDIVIDUAL. IT HAS ALWAYS CONVEYED SOMETHING
DESERVING OF RESPECT, HONOUR, EXCELLENCE WORTHINESS AND NOBILITY
OF THE INDIVIDUALS. HUMAN DIGNITY IS CLOSELY CONNECTED WITH THE
HONOUR OF THE PERSON OR GROUP THE CONTEMPORARY SOCIETY.
 UN
•UDHR
•ICCPR
•CEDAW
•CRC
 UDHR
• AFTER SECOND WORLD WAR, INTERNATIONAL COMMUNITY CONCENTRATED
ON HUMAN DIGNITY AS A CORE ELEMENT FOR PROTECTION OF HUMAN
BEINGS. THE CONCEPTUAL DIMENSIONS OF HUMAN DIGNITY WERE
ESTABLISHED IN 1948 AS THE FOUNDATIONAL CONCEPT OF THE UDHR. THE
PREAMBLE OF UDHR SAYS, ‘WHERE AS RECOGNITION OF THE INHERENT
DIGNITY AND OF THE EQUAL AND INALIENABLE RIGHTS OF ALL MEMBERS OF
THE HUMAN FAMILY IS THE FOUNDATION OF FREEDOM, JUSTICE AND PEACE
IN THE WORLD’
 ARTICLE 1 UDHR

• HUMAN DIGNITY MENTIONED AT THE OUTSET OF THE ARTICLE 1 OF THE

• UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948, WHICH IS THE MOST
• IMPORTANT DOCUMENT IN THE WORLD.
 CONSTITUTION

• ARTICLE 21
• THE CONSTITUTION OF INDIA GUARANTEES EQUAL PROTECTION
TO ALL AND FORBIDS THE STATE FROM DEPRIVING ANYBODY’S
LIFE AND PERSONAL LIBERTY WITHOUT PROCEDURE
ESTABLISHED BY LAW.
 NAZ FOUNDATION V. GOVERNMENT OF NCT AND OTHERS

• COURT OBSERVED THAT, “THE CONSTITUTIONAL

PROTECTION OF HUMAN DIGNITY REQUIRES US TO
ACKNOWLEDGE THE VALUE AND WORTH OF ALL
INDIVIDUALS AS MEMBERS OF OUR SOCIETY”. ALL
CITIZENS OF INDIA WILL LIVE AND ENJOY PEACEFUL,
DIGNIFIED LIFE WITHOUT ANY DISTURBANCES.
THE CONSTITUTION OF INDIA IS THE SUPREME LAW OF THE LAND AND THERE IS
NOTHING BEYOND THE CONSTITUTION

• ACCORDING TO THE KELSON’S PURE LAW THEORY THE

CONSTITUTION OF INDIA IS THE GRAND NORM MEANS, IT IS AT
THE TOP AND THERE IS NOTHING BEYOND THAT. THE
CONSTITUTION OF INDIA TAKES CARE OF EVERY SECTION OF THE
SOCIETY TO PROTECT THEIR RIGHTS OF INDIVIDUALS AND AT THE
SAME TIME IT RESTRICTS THE STATE NOT TO VIOLATE THE
RIGHTS OF PERSON GUARANTEED BY THE CONSTITUTION.
 SOCIAL JUSTICE
• SOCIAL JUSTICE WHICH IS THE BASE OF THE INDIAN CONSTITUTION HAS ITS
OVERTONES IN THE CRIMINAL JUSTICE SYSTEM TOO. THE PREAMBLE OF
INDIAN CONSTITUTION ITSELF MAKE IT CLEAR THAT THERE IS EQUALITY
AMONG ALL THE CITIZENS OF INDIA AND THAT IS THE REASON ALL PERSONS
ARE EQUAL BEFORE THE LAW INCLUDING LAW MAKERS AND FOLLOWERS OF
THE SAME LAW.
• THE CONSTITUTION OF INDIA ALSO GUARANTEES EQUAL JUSTICE TO ALL THE
PEOPLE OF INDIA APART FROM THEIR CASTE AND RELIGION.
 PARAMANDA KATARA V. UNION OF INDIA

• ‘PRESERVATION OF LIFE IS OF MOST IMPORTANCE, BECAUSE IF

• ONE’S LIFE IS LOST, THE STATUS QUNTE ANTE "THE WAY THINGS
WERE BEFORE"
CANNOT BE RESTORED AS RESURRECTION IS BEYOND THE CAPACITY OF
MAN’.
• RIGHT TO LIFE IS INALIENABLE BASIC RIGHT OF MAN. IT IS MOST IMPORTANT,
HUMAN, FUNDAMENTAL, INALIENABLE, TRANSCENDENTAL RIGHTS.
 MANEKA GANDHI V. UOI
• SINCE MANEKA GANDHI
• THE SUPREME COURT INTERPRETED ARTICLE 21OF CONSTITUTION HAS
USHERED A NEW ERA OF EXPANSION OF THE HORIZONS OF RIGHT TO LIFE.
TRADITIONALLY RIGHT TO LIFE WAS CALLED AS NATURAL RIGHT OF THE
PEOPLE. RIGHT TO LIFE IS ONE OF THE IMPORTANT FUNDAMENTAL RIGHTS OF
THE CITIZEN OF INDIA AND ALIENS OF INDIA. IT IS PROTECTED BY THE
CONSTITUTION OF INDIA.
 FRANCIS CORALIE MULLIN VS THE ADMINISTRATOR,
UT OF DELHI

• “THE RIGHT TO LIFE INCLUDES THE RIGHT TO LIVE WITH HUMAN DIGNITY AND
ALL THAT GOES ALONG WITH IT, NAMELY, THE BARE NECESSARIES OF LIFE
SUCH AS ADEQUATE NUTRITION, CLOTHING AND SHELTER OVER THE HEAD
AND FACILITIES FOR READING, WRITING AND EXPRESSING ONESELF IN
DIVERSE FORMS, FREELY MOVING ABOUT AND MIXING AND COMMINGLING
WITH FELLOW HUMAN BEINGS.”
 PERSONAL LIBERTY
• THE ISSUE OF PERSONAL LIBERTY HAS BEEN ONE OF THE KEY AREAS OF JUDICIAL
ACTIVISM UNDER ARTICLE 21, IT WAS TAKEN INTO CONSIDERATION IN KHARAK
SINGH, IT AROSE OUT OF THE CHALLENGE TO CONSTITUTIONAL VALIDITY OF THE U.
P. POLICE REGULATIONS WHICH PROVIDED FOR SURVEILLANCE BY WAY OF
DOMICILIARY VISITS AND SECRET PICKETING. THE BENCH RELIED ON THE
MEANING GIVEN TO THE TERM “PERSONAL LIBERTY” BY AN AMERICAN JUDGMENT
(PER FIELD, J.,) IN MUNN V ILLINOIS, WHICH HELD THE TERM ‘LIFE’ MEANT
SOMETHING MORE THAN MERE ANIMAL EXISTENCE. THE PROHIBITION AGAINST ITS
DEPRIVATION EXTENDED TO ALL THOSE LIMITS AND FACULTIES BY WHICH THE LIFE
WAS ENJOYED.
 HONOUR KILLING
• THE RIGHT TO LIFE IS NOT ONLY CORRELATED WITH HUMAN DIGNITY BUT ALSO
• IT DIRECTS OUR ATTENTION TO THE VERY ESSENTIAL SUBJECT OF HONOUR
KILLING, FAMILY MEMBERS FOR SAKE OF SOCIAL STATUS OR ‘SO CALLED HIS
FAMILY HONOUR’ KILL THE MEMBERS OF FAMILY.
• THE CONSTITUTIONAL GUARANTEE OF RIGHT TO LIFE WHICH IS ENSURED
THROUGH THIS PARAMOUNT STATUS BOOK LIKE INDIAN CONSTITUTION IS
IMPORTANT. NOW IF WE TAKE INTO CONSIDERATION THE VERY BASIS OF HONOUR
KILLING WHY AND HOW IT HAPPENS, THEN THE QUESTION COMES ABOUT THE
CONSTITUTIONAL GUARANTEE WHICH HAS BEEN ENSURED THROUGH THE
DIFFERENT PRONOUNCEMENT OF THE COURTS.
 ST
WOMEN:21 CENTURY
• OUR PRIME MINISTER MR. MODI PROUDLY SAID
• THAT, DIGNITY OF WOMEN IS OUR COLLECTIVE RESPONSIBILITY AND THERE SHOULD NOT
BE ANY COMPROMISE IN ANY WAY.
• WOMEN HAVE BEEN VICTIMS OF VARIOUS FORMS OF CULTURAL AND CUSTOMARY
EXPLOITATION FROM YEARS TOGETHER. YOUNG GIRL OR WOMEN ARE FACING A NUMBER OF
PROBLEMS IN EVERY SPHERE OF LIFE. THEY ARE STILL SUFFERING WITH THE EVIL
CUSTOMARY PRACTICES LIKE HONOUR KILLING; FEMALE FOETICIDE ETC. AND DEPRIVED OF
THEIR LIFE. THIS IS NOTHING BUT EXACTLY AGAINST THE NATURE AND THE CONSTITUTIONAL
PROVISIONS SUCH AS THE RIGHT TO LIVE WITH DIGNITY. INDIAN WOMANHOOD IS TIED UP BY
MANY A RUSTED CHAINS OF RELIGIOUS CUSTOMS AND TRADITIONS STILL TODAY
 DEFINITION

• HUMAN DIGNITY IS NOT DEFINED IN ANY LEGISLATION BUT IT IS A PART OF PREAMBLE OF INDIAN
CONSTITUTION.
 PREAMBLE
• 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 OF OPPORTUNITY;
• AND TO PROMOTE AMONG THEM ALL FRATERNITY ASSURING THE DIGNITY OF THE
INDIVIDUAL AND THE UNITY AND INTEGRITY OF THE NATION;

• INOUR CONSTITUENT ASSEMBLY THIS TWENTY-SIXTH DAY OF NOVEMBER, 1949,

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION
Article 22
D R . V I J A I S H R E E PA N D E Y
Article 22
(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a
person for a longer period than three months unless—

(a) an Advisory Board consisting of persons who are, or have been, or are qualified
to be appointed as, Judges of a High Court has reported before the expiration of
the said period of three months that there is in its opinion sufficient cause for such
detention:
Provided that nothing in this sub-clause shall authorise the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-
clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by
Parliament under subclauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as soon as
may be, communicate to such person the grounds on which the order has been
made and shall afford him the earliest opportunity of making a representation
(6) Nothing in clause (5) shall require the authority making any such order as is
referred to in that clause to disclose facts which such authority considers to be
against the public interest to disclose.

(7) Parliament may by law prescribe—

(a) the circumstances under which, and the class or classes of cases in which, a
person may be detained for a period longer than three months under any law
providing for preventive detention without obtaining the opinion of an Advisory
Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases
be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-
clause (a) of clause (4).
The case of DK Basu v. State of West Bengal is one of the landmark authorities which enumerate guidelines and
requirements for arrests and detentions provided by the Supreme Court. There are 11 guidelines which are an
addition to constitutional and statutory safeguards and do not contradict any of them. The memorandum focuses on
maintaining proper and authenticated records from the side of the authority known as ‘inspection memo’. It also
throws a repetitive glance upon all the other rights guaranteed to a person in custody and mentions all authorities
who are bound to adhere to those. The decisions emanating from this case also led to the incorporation of Section
50A of CrPC which imposes a legal obligation on the Police to give information regarding such arrest and place where
the arrested person is being held to any of his friends, relatives or such other persons as may be nominated by the
arrested person for the purpose of giving such information.
 Right to be informed of the grounds
of arrest
Section 50 of CrPC states that it is the duty of every police officer or any other person
authorized to arrest any person without a warrant, to let the person being arrested
know the grounds of arrest immediately. Non-compliance with this provision renders
the arrest illegal.
Article 22(1) states that any person who is arrested, cannot be detained in custody
without being informed of the grounds of any such arrest as soon as possible.
Both these laws clearly portray that no arrest can be made because it is lawful for the
police to do so. Every arrest requires reason and justification, apart and distinct from
the power to arrest. In view of this, it was held in the case of Joginder Kumar v. State
of U.P. that a detained person should know the cause of his detention and is entitled
to let any third person know the location of his detention.
 Right to be defended by a lawyer of
his own choice
Article 22(1) also states that any person who is arrested has the right to consult at all times and
be defended by a lawyer of his own choice. This right is expanded right from the moment of the
person’s arrest.
In the case of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, the courts
observed that a large number of people were arrested awaiting their trial in a court of law. The
arrests were made irrespective of the charge and its graveness. The accused were under arrest,
deprived of their freedom even before the commencement of their trial and the charge actually
being proved which stands unreasonable. The Supreme Court showing concern over the matter
interpreted that speedy trial is a constitutional right although it is nowhere explicitly mentioned.
It was held that an investigation should be held as soon as possible and in no case is the state
permitted to deny speedy trial on any grounds. It was also stated that in cases of arrest for
trivial charges the trial must be completed within six months. It was also declared that the right
to free legal aid is a fundamental right which was later expressly mentioned through
amendments. It was also observed that the Supreme Court had powers to enact a DPSP into a
fundamental right.
 Right to be produced before a
Magistrate
Article 22(2) ensures the right of the accused to be produced before a
magistrate. When a person is arrested, the person or police officer making the
arrest should bring the arrested person before a magistrate or judicial officer
without any unnecessary delay. This is also supported by Section 56 of the CrPC.

The right available to the accused at the first stage of production before the
Magistrate is not stated directly in Article 22. It is rooted in Section 167 of the
CrPC and states that no magistrate can authorize the detention of the accused in
police custody unless the accused is produced in person before the magistrate.
This right protects the accused from being detained on wrong or irrelevant
grounds.
 No detention beyond 24 hours
except by order of the Magistrate
Article 22(2) also states that no person who is arrested should be detained for more than 24
hours without being produced before a magistrate or judicial authority and getting the detention
authorized. The mentioned 24 hours exclude the time of travel from the place of arrest to the
magistrate’s court. This provision helps to keep a check on the investigation of the police
regarding the matter at hand. It protects the accused from being trapped into wrongful detention.

In the case of State of Punjab v. Ajaib Singh, this right was infringed and thus the victim was
provided compensation as constitutional remedy. It was held that cases of arrest without warrant
require greater protection and production of the accused within 24 hours ensures the legality of
the arrest, not complying with which would deem the arrest unlawful.
 No detention beyond 24 hours
except by order of the Magistrate
In the case of C.B.I. v. Anupam J. Kulkarni, it was questioned whether the accused can be
remanded to police custody after the expiry of first 15 days. It was held that the magistrate could
authorize the detention if he deems it fit and reasonable, but the custody cannot increase the
period of 15 days on the whole. It is now known that to detain beyond a period of 15 days, an
advisory board has to report sufficient cause for the extension of such detention prior to the
expiration period as mentioned in clause 4 of Article 22.
 Exceptions
Clause 3 of the Article 22 clearly states that none of the rights mentioned in clause 1 and 2 of the Article would be
applicable for a person who is deemed to be an enemy alien and anybody who is arrested or detained under the law
providing for preventive detention.
The presence of this clause in the article has frequently questioned its constitutional validity as it takes away all the
rights from a person detained under preventive detention. The cases of Maneka Gandhi v. Union Of India and A.K.
Roy v. Union Of India have played major roles in giving perspective to this article. In the case of Maneka Gandhi, the
scope of Article 21 was increased largely by adding the term ‘due process’ into the article. Now, upon delving into
the history of preventive detention, it is known that Article 22 was inserted upon the removal of the phrase ‘due
process’ from Article 21. Hence this shift greatly affected the context of Article 22 and posed direct questions on the
rights and restrictions provided by the article. While in the case of A.K.Roy v. Union Of India, the court acknowledged
that preventive detention laws were not only subject to Article 22 but were also open to scrutiny under Articles 14,
21 and 19. It was also observed that while Article 22 clause 3 was exclusion to clauses 1 and 2 but the right to
counsel under Article 21 was still valid but since Article 22 was part of the original constitution and Article 21 was
expanded and amended in Maneka Gandhi’s case, the former would prevail over the latter hence leaving the
detenus scraped of their right to access legal assistance.
 Preventive Detention
Preventive detention also known as ‘necessary evil’ of the constitution as it can be steered in
various directions and can be put to use in various scenarios, not all being just and
reasonable. It is the most contentious part of the fundamental rights.

The provision only mentions the rights people could exercise when they are detained but
speaks nothing about any specific grounds or necessary provisions of detention.

It thus gives enormous power to the authorities to twist the tool of preventive detention
however and whenever they please. This has proved to be a way in which the freedom of the
masses has been immensely curbed and continues to be so.
 The Preventive Detention Acts
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

National Security Act, 1980

Prevention of Terrorism Act (POTA), 2002 This Act replaced TADA.

 Constitutional safeguards against Preventive Detention Laws

Article 22 further deals with certain rights which are provided in case of preventive
detention.

(a)Review by Advisory Board: Clause 4 of the article states that no law framed for
preventive detention gives authority to detain any person for more than 3 months
unless; an advisory board reports a sufficient cause for such detention. The people on
the advisory board should be equally qualified as that of a judge of the high court. The
report needs to be submitted before the expiration of said 3 months.

(b) Communication of grounds of detention to detenu: Clause 5 of the article states

that any authority while detaining any person under law providing for preventive detention
shall communicate the grounds of detention to the person as soon as possible. The ground
of detention should have a rational connection with the object which the detenu is
prevented from attaining. The communication should provide all the material facts related
to the ground and should not be a mere statement of facts.
No obligation of authority: The detaining authority is under no obligation to provide
the grounds of detention to detenu prior to his arrest, but is advised to do so at
the earliest thereby providing an opportunity of representation to the detenu as
well.

A person already in custody can be detained when there are reasonable and
sufficient causes to do so. The focal problem being that in cases of preventive
detention there is no way to check whether the cause of detention is just and
reasonable until it is presented to the advisory board which is applicable after the
stretch of 3 months.

(c) Detenue’s Right of representation: Clause 5 of the article also states that the
grounds of the detention should be communicated as soon as possible in order to
enable the right of representation to the person. The authority providing the
detention order shall afford to the person the earliest opportunity of making a
representation against the order.
Conservation of Foreign Exchange, Prevention of Smuggling Activities Act (COFEPOSA), 1974 and Article 22(5)

This Act was brought into force in 1974 and it gave wide powers to the executive to detain individuals on
apprehension of their involvement in smuggling activities. The section 3 of this Act is shared with clause 5 of
Article 22 which states that the ground of detention should be communicated to the detenu within minimum five or
a maximum of fifteen days. In no case should it be delayed beyond fifteen days. It must be completely furnished to
the detenu, including all the facts and should not be only bare recital of the grounds. Any lapse within this provision
would render the detention order void. This Act still stands valid.

No time limit prescribed for disposal of representation: The article does not provide any information about the
method of dealing or disposing the representation made by the detenue. It just extends to providing the right of
representation. There is no further description or time limit assigned for the end result of representation made,
which can be inferred as a means to keep lingering the issue at hand and aid in wrongful detention of the person.

Exception under Article 22(6)

Clause 6 of the article is similar in nature to clause 3 as it stands an exception to clause 5 and states that the
detaining authority is not mandatorily required to disclose any such facts which it considers to be against the public
interest to disclose. This clause does not mention any other specifications or details within the topic and hence is
regarded as the utmost arbitrary and regressive. It has no solid basis or reasoning to resonate with ‘against the
public interest’ phrase and can be arbitrary to any extent.
 Article 23 Prohibition of traffic in human beings and forced
labour – Constitution of India

(1) Traffic in human beings and begar and other similar forms of forced labor
are prohibited and any contravention of this provision shall be an offence
punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory
service for public purposes, and in imposing such service the State shall not
make any discrimination on grounds only of religion, race, caste or class or
any of them.
While the Constitution of India does not define forced labour, the Supreme Court of India has read this provision
expansively, and provided specific guidance on the definition. In the case of People’s Union for Democratic Rights vs.
Union of India and Others, 1982, the Supreme Court of India determined that forced labour should be defined as any labour
for which the worker receives less than the government-stipulated minimum wage: “ordinarily no one would willingly
supply labour or service to another for less than the minimum wage… [unless] he is acting under the force of some
compulsion which drives him to work though he is paid less than what he is entitled under law to receive.”

The offences mentioned in Article 23(1) above have been laid out in subsequent enactments – including the Bonded Labour
Abolition Act of 1976 and the Child Labour (Prohibition and Regulation) Act 1986. Begar was a system in which
government (yes, the British Government officers) and Zamindars used to compel the persons to carry their goods when they
moved from one place to other place and this was a forced labor in which no remuneration was paid.

The Human Trafficking is the illegal trade in human beings for the purposes of commercial sexual exploitation, prostitution
or forced labor. It is the modern form of slavery. As per the provisions enshrined the constitution the government passed ”
The Immoral Traffic (Prevention) Act 1956 and ” The Bonded Labour System (Abolition) Act 1976.

Even when the state takes up relief works such as famine or flood relief, it cannot pay less than minimum wages.
When the prisoners are sent for the rigorous imprisonment, they must be paid reasonable wages. Please note that as per
Supreme Court if a prisoner is not paid wages, it is NOT a violation of article 23. But if the under trials, persons sentences to
simple imprisonments and those who have been detained under preventive detention can NOT be asked to do manual work.
They can do work if they wish to do out of their choice and it would require equitable wages.
 What is Bonded Labor?
Bonded Labour or Forced Labour is forbidden. The Forced Labour means not only the physical and legal force but also arising out
of the compulsion of the economic circumstances. In this context, the Supreme Court of India in People’s Union for Democratic
Rights and others Vs. Union of India and others [1982] also known as “Asiad Workers Case” gave the following explanation:

“We are, therefore, of the view that when a person provides labour of service to another for remuneration which is less than the
minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under
Article 23 (of the Constitution of India).”

Prohibition of Traffic in Human Beings and Forced Labour

Clause 1 of Article 23 prohibits the trafficking of human beings, begar any similar form of forced labour. It also states that any
contravention of this provision is punishable by the law. It explicitly prohibits:

Human Trafficking: This refers to the sale and purchase of human beings mostly for the purpose of sexual slavery, forced
prostitution or forced labour.
Begar: This is a form of forced labour which refers to forcing a person to work for no remuneration.
Other forms of forced labour: This includes other forms of forced labour in which the person works for a wage less than the
minimum wage. This includes bonded labour wherein a person is forced to work to pay off his debt for inadequate remuneration,
prison labour wherein prisoners sent in for rigorous imprisonment are forced to work without even minimum remuneration etc.
Hence, Article 23 has a very wide scope by ensuring that a person is not forced to do anything involuntarily. For instance, It
forbids a land-owner to force a landless, poor labourer to render free services. It also forbids forcing a woman or child into
prostitution.
In the case of People’s Union for Democratic Rights v. Union of India, the petitioner was an organisation formed
for the protection of democratic rights. It undertook efforts to investigate the conditions under which the workmen
employed in various Asiad projects were working. This investigation found out that various labour laws were being
violated and consequently public interest litigation was initiated. In the case issues like labourers not given the
minimum remuneration as mentioned in the minimum wages act, 1948 and unequal income distribution among
men and women were highlighted.

The Supreme Court interpreted the scope of article 23 in the case. The Court held that the word force within this
article has a very wide meaning. It includes physical force, legal force and other economic factors which force a
person to provide labour at a wage less than the minimum wage. Hence, if a person is forced to provide labour for
less than the minimum wage, just because of poverty, want, destitution or hunger, it would be accounted for as
forced labour.

The Court also clarified the meaning of “all similar forms of forced labour” as mentioned in article 23 of the
Constitution of India. It said that not only begar, but all forms of forced labour are prohibited. This means that it
would not matter if a person is given remuneration or not as long as he is forced to supply labour against his will.
In the case of Sanjit Roy v. State of Rajasthan, the state employed a large number of workers for the
construction of a road to provide them relief from drought and scarcity conditions prevailing in their area.
Their employment fell under the Rajasthan Famine Relief Works Employees ( Exemption from Labour Laws)
Act, 1964. The people employed for the work were paid less than the minimum wage, which was allowed in
the Exemption Act.

The Court held that the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964
is Constitutionally invalid as to the exclusion of the minimum wages act. This means that minimum wage
must be paid to all the people employed by the state for any famine relief work, regardless of whether the
person is affected by drought or scarcity or not. This is essential so that the state does not take advantage of
the helpless condition of the people affected by famine, drought etc and upholds that they must be paid fairly
for the work into which they put in effort and sweat, and which provides benefits to the state.
 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
The petitioner, Bandhua Mukti Morcha is an organisation waging a battle against the horrendous system of
bonded labour. In the case of Bandhua Mukti Morcha v. Union of India, the organisation sent a letter to Justice
Bhagwati and the Court treated it as a Public Interest Litigation. The letter contained its observations based on a
survey it conducted of some stone quarries in the Faridabad district where it was found that these contained a
large number of workers working in “inhuman and intolerable conditions”, and many of them were forced
labourers.

The Court laid down guidelines for determination of bonded labourers and also provided that it is the duty of
the state government to identify, release and rehabilitate the bonded labourers. It was held that any person who is
employed as a bonded labour is deprived of his liberty. Such a person becomes a slave and his freedom in the
matter of employment is completely taken away and forced labour is thrust upon him. It was also held that
whenever it is shown that a worker is engaged in forced labour, the Court would presume he is doing so in
consideration of some economic consideration and is, therefore, a bonded labour. This presumption can only be
rebutted against by the employer and the state government if satisfactory evidence is provided for the same.
 State v. Banwari, AIR 1951 All. 615

In the case of State through Gokul Chand v Banwari and Ors., the appellants including 5 barbers and 2 dhobis contested
against Section 3 and Section 6 of U. P. Removal of Social Disabilities Act, 1947, under which they were convicted.

Section 3 of the act laid down that no person can refuse to render any service to another person on the ground that he
belongs to a scheduled caste. Provided that such service lies in the ordinary course of business. The appellants contested that
this Section was violative article 23 of the Constitution. But the Court disagreed and held that making it illegal for a person
to refuse service to some person just because that person belongs to scheduled cases does not equate to begar.

Deena v. Union of India, AIR 1983 SC 1155.

In the case of Deena @ Deena Dayal Etc. v Union of India And Others, it was held that if a prisoner is forced to do labour
without giving him any remuneration, it is deemed to be forced labour and is violative of Article 23 of the Indian
Constitution. This is because the prisoners are entitled to receive reasonable wages for the labour they did.
Compulsory service for public purposes
Article 23, clause 2 of the Constitution states that this article does not prevent the state to impose compulsory services
for public purposes. It also states that while doing this, the state must not make any discrimination on grounds of
religion, race, caste, class or any of them.

Hence, though article 23 disallow any form of forced labour, it permits the state to engage in conscription (impose
compulsory services upon people for public purposes). However, while imposing services upon people for state services
the state must take care to not discriminate on grounds of religion, race, caste or class.

Dulal Samanta v. D.M., Howrah, AIR 1958 Cal. 365

In the case of Dulal Samanta v. D.M., Howrah, the petitioner was served with a notice appointing him as a special police
officer for a period of three months. He complained that this violated his fundamental right as it results in “forced
labour”

The Court disregarded his appeal and held that conscription for services of police cannot be considered as either:

(i) beggar; or

(ii) traffic in human beings; or

(iii) any similar form of forced labour.

Hence, the notice given for the appointment of a person as a special police officer is not in prohibition to Article 23.
ARTICLE 24
Dr. Vijaishree Pandey
 Article 24 Prohibition of employment of children in
factories, etc

Article 24 says that “No child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.” The fundamental right against
exploitation guaranteed to all citizens prohibits child labour in mines, factories, and hazardous
conditions.
◦ The Child Labor (Prohibition and Regulation) Act, 1986 defines a child as anyone under 14
years of age.
◦ Section 3 of the Act includes the prohibition against child labor in certain hazardous
occupations, including carpet weaving (listed in Part B of the Act).
◦ Section 7 of the Act includes, inter alia, the prohibition of child labor of any kind for greater
than six hours per day.
 Prohibition of employment of children in factories, etc

Child labour is an inhumane practice which takes away the opportunity of having a normal childhood from
the children. It hampers their growth and mental well being of children. It also disables them from having
normal fun-filled childhood.

Article 39 of the Constitution states that it is the duty of the state to ensure that the tender age of children is
not abused and that they are not forced by economic necessity to enter into fields of work where they are
forced to provide labour which is unsuitable to their age and strength

Article 24 states that any child under the age of fourteen years can not be employed as a worker in any
factory or be engaged in any other hazardous employment.

Hence it prohibits the employment of children under the age of 14 years in dangerous or unhealthy
conditions which could harm their mental and physical strength.
 Article 39 Certain principles of policy to be followed by the State

The State shall, in particular, direct its policy towards securing

(a) that the citizen, men and women equally, have the right to an adequate means of livelihood
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve
the common good
(c) that the operation of the economic system does not result in the concentration of wealth and means of production
to the common detriment
(d) that there is equal pay for equal work for both men and women
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter avocations unsuited to their age or strength
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment.

Article 45 Provision for free and compulsory education for children

The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for
free and compulsory education for all children until they complete the age of fourteen years.
The rights of children are protected by the fundamental rights and freedoms and
also have been covered under the Directive Principles of State Policy. Important
among there are Art.24 (Right against exploitation) provides that no child below
the age of 14 years shall be employed to work in any factory or mine or engaged in
any hazardous employment;

Article.39 (f) states that the State shall, in particular, direct its policies towards
securing that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment and

under Article.45, the State must endeavor to provide, within the period of 10 years
from the commencement of the constitution, free and compulsory education for all
the children until they complete the age of 14 years.
 People’s Union for Democratic Rights v. Union of India, AIR 1983 SC 1473

In the case of People’s Union for Democratic Rights v. Union of India, the petitioner observed the
conditions in which the workers employed in various Asiad projects were working. It was observed that
children under the age of fourteen had been employed. It was however contended that such employment
was not against the Employment of Children Act, 1938 since the act did not list the construction
industry as a hazardous industry.

The Court held that the construction work falls in the field of hazardous employment. Thus, children
under the age of fourteen must not be employed in the construction work even though it has not been
mentioned explicitly under the Employment of Children Act 1938. The Court also advised the state
government to amend the schedule and change the omission to include the construction industry into the
list of hazardous industries.
 M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699

In the case of M.C. Mehta v. State of Tamil Nadu, Shri MC Mehta undertook to invoke Article 32, enabling
the Court to look into the violation of fundamental rights of children guaranteed to them under Article 24.
Sivakasi was considered as a big offender who was employing many child labourers. It was engaged in the
manufacturing process of matches and fireworks. This, the Court observed, qualified as a hazardous industry.
Thus employing children under the age of 14 years in this industry is prohibited.

The Court reaffirmed that children below the age of fourteen must not be employed in any hazardous industry
and it must be seen that all children are given education till the age of 14 years. The Court also considered
Article 39(e) which says that the tender age of children must not be abused and they must be given
opportunities to develop in a healthy manner. In light of this, the Court held that the employer Sivakasi must
pay a compensation of Rs. 20000 for employing children in contravention to Child Labour (Prohibition and
Regulation) Act, 1986.
The Supreme Court directed that children should not be employed in hazardous jobs in
factories for manufacture of match boxes and fireworks, and positive steps should be
taken for the welfare of such children as well as for improving the quality of their life.
(1991 case)

The Supreme Court directed that the employers of children below 14 years must comply
with the provisions of the Child Labour (Prohibition and Regulation) Act providing for
compensation, employment of their parents / guardians and their education.

Also Bhandhua Mukti Morcha v. Union of India [(1997) 10 SCC 549; AIR 1997 SC
2218]
 Joseph Valamangalam, Rev. Fr v. State of Kerala: [AIR 1958 Ker. 290]

Art.45 was held to be not justiciable, being only directive in nature. The Article does not confer legally enforceable
right upon primary schools to receive grants-in-aid from the government.

Lakshmi Kant Pandey v. Union of India: [(1984) 2 SCC 244; AIR 1984 SC 469]

This is an extremely important case relating to the adoption of Indian children by persons inside and outside India. In
the absence of legislation, the Supreme Court framed elaborate guidelines in the matter. There was no law to regulate
inter-country adoptions and such lack of legal regulation could cause incalculable harm to Indian children.
Considering the possibility of child trade for prostitution as well as slave labor, legal regulation of such adoptions was
essential. Therefore, Justice Bhagwati created a scheme for regulating both inter-country and intra-country adoptions.
The Supreme Court held that any adoption in violation of or non-compliance with may lead adoption to be declared
invalid and expose person concerned with to strict action including prosecution. For years, social activists have used
these directions to protect children and promote desirable adoptions.

The Government of India framed a national policy in this regard. Also Indian Council for Social Welfare v. State of
A.P.[(1999) 6 SCC 365]
 Gaurav Jain v Union of India: [(1997) 8 SCC 114; AIR 1997 SC 3021]

The Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity,
care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma
attached on them. The Court directed for the constitution of a committee to formulate a scheme for the
rehabilitation of such children and child prostitutes and for its implementation and submission of periodical
report of its Registry.

Sakshi v Union of India: [(1999) 8 SCC 591]

In this Public Interest Litigation matter, the Supreme Court of India asked the Law Commission to consider
certain important issues regarding sexual abuse of children submitted by the petitioner and the feasibility of
amendment to sections 375 and 376 IPC.
 CHILDREN:
ISSUES AND
LEGAL
CHALLENGES
-
WHO IS A CHILD?

• Children - categorized as that class of the society which is most prone to

exploitation and abused – future of the nation (must be protected).

• Most pertinent International document - United Nations Convention

on the Rights of the Child – prescribes a set of universal legal norms or
standards to be adhered to by all State parties in securing the best interest
of the child. [acceded by the Government of India in December 1992].
CRC

• 1. THE RIGHT TO AN IDENTITY (ARTICLES 7 AND 8)

• Children are entitled to a name, legally registered with the government, and a nationality (to belong to a
country). Further, they must have the right to an identity, in the form of a public record. This ensures national
support, as well as access to social services.
• 2. THE RIGHT TO HEALTH (ARTICLES 23 AND 24)
• Medical care, nutrition, protection from harmful habits (including drugs) and safe working environments are
covered under the right to health, and articles 23 and 24 enumerate access to special care and support for
children with special needs, as well as quality health care (including drinking water, nutrition, and a safe
environment) respectively.
• 3. THE RIGHT TO EDUCATION, (ARTICLE 28)
• Right to free primary education is critical for helping children develop discipline, life skills while finding a safe
and healthy environment to nurture a child's physiological development. This includes freedom from violence,
abuse or neglect.
CRC

• 4. THE RIGHT TO A FAMILY LIFE (ARTICLES 8, 9, 10, 16, 20, 22 AND 40)

• If not family members, then children have the right to be looked after by caretakers. Children must live with
their parents until it is harmful to them. However, 'family reunification', i.e. permission for family members
living in different countries to travel to renew contact between family members is critical. Under the ward of a
caretaker or family, they must be provided privacy against attacks on their way of life and personal history.
Children who do not have access to a family life, have a right to special care and must be looked after
properly, by people who respect their ethnic group, religion, culture and language. Refugee children have a
right to special protection and help. In the case of misdemeanours, children have the right to seek legal
counsel under a juvenile justice mechanism, with the fair and speedy resolution of proceedings.
5. THE RIGHT TO BE PROTECTED FROM VIOLENCE (ARTICLE 19 AND 34)

• Protection from violence extends even to family members, and children must not suffer ill-treatment or sexual
or physical violence. This includes use of violence as a means of discipline. All forms of sexual exploitation
and abuse are unacceptable, and this Article takes into view the sale of children, child prostitution and child
pornography.
CRC

• 6. THE RIGHT TO AN OPINION (ARTICLE 12 AND 13)

• All children deserve the right to voice their opinions, free of criticism or contempt. In
situations where adults are actively deciding upon choices on behalf of children, the latter are
entitled to have their opinions taken into consideration. While children's opinion may not be
based on facts, it is nonetheless an important source of insight for parents, and should be
considered. However, this depends on the child's level of maturity and age. Children have the
freedom of expression, as long as they are not harming others with their opinions and
knowledge.
•
• 7. THE RIGHT TO BE PROTECTED FROM ARMED CONFLICT (ARTICLES 38 AND 39)
• Armed conflict converts innocent children into refugees, prisoner, or participants in armed
conflicts, and these are all circumstances which contravene with the spirit of War or any
armed struggle can severely damage a child's morale as well as perceptions of ethics, and this
must be corrected in a nurturing safe environment. While seeking to rehabilitate children
affected by war, the government must also ensure that children are not forced to participate
in any armed struggle.
CRC

• 8. THE RIGHT TO BE PROTECTED FROM EXPLOITATION (ARTICLES 19, 32, 34, 36

AND 39)
• As exploitation is usually achieved through violent means, protection from
violence is critical for freeing children from exploitation. This extends to abuse,
negligence and violence by parents, even if it is justified as an instrument of
achieving discipline at home. Further, children cannot be made to work in
difficult or dangerous conditions. Children can only volunteer to work doing safe
chores that do not compromise their health, or access to education or play.
Sexual exploitation, another dimension of exploitation, is also prohibited, as an
activity that takes advantage of them. Survivors of neglect, abuse and
exploitation must receive special help to enable recovery and reintegration into
society. Children also cannot be punished cruelly, even if it is under the ambit
of the justice system. Death or life sentences, as well as sentences with adult
prisoners, are not permitted.
•
CONSTITUTION OF INDIA

• Significant Constitutional Provisions – Article 14, Article 15 (3), Article

15 (6), Article 21-A, Article 23 (1) [Traffic in human beings], Article 24
[child labour], Articles 39 (e) [strength of workers - tender age of children
is not abused] & 39 (f) [children are not exploited], Article 45 [educational
needs], Article 46, Article 47 [nutrition and standard of living].
ISSUES & CHALLENGES

1. ACCESS TO EDUCATION – RTE Act, 2009 emphasizes on primary education (6-14 years); secondary + higher
education is largely ignored.

2. FOOD INSECURITY – nutritional and health deficiencies - malnutrition – lower strength & efficiency.

3. INCREASE IN INCIDENTS OF CRIME AND VIOLENCE [By them and against such children] – feelings of
anger and frustration due to non-fulfilment of needs – unethical/immoral ways of life – Juvenile Justice (Care and
Protection of Children) Act, 2015 (the 2000 law has been re-enacted) – State to act as a facilitator in such cases –
“Children in Conflict with Law”, “Children in Need of Care and Protection” [exploited, abused or neglected child,
homeless, without any subsistence, found begging, found working in contravention with labour laws], “Child Welfare
Committee”, “Rehabilitation and Social Re-integration”, etc. – privacy, non-discrimination, safety, positive measures,
non-stigmatization of the child are taken care of by the Act – child friendly procedures.
4. CHILD MARRIAGE – either of the contracting party is a child - Prohibition of Child Marriage Act, 2006 – child marriages
voidable; performing, conducting, directing, abeting a child marriage is punishable; punishment for a male above 18 years of age
for contracting a child marriage [No woman has been made liable to imprisonment]. {May be read along the Dowry Prohibition
Act, 1961}.
5. CHILD TRAFFICKING [sex trade, organ trade, beggary, forced marriage/labour] – Push factors – Poverty, child
marriage, domestic violence, unemployment; Pull factors – Migration, Expectation of better jobs; IPC, 1860 [section 366 A & B
(prostitution), section 374 – compelling for labour], The Immoral Traffic (Prevention) Act, 1956 – deals exclusively with
trafficking, etc.
6. CHILD SEXUAL ABUSE – Protection of Children from Sexual Offences Act, 2012 – Assault + Harassment + Pornography.
7. CHILD LABOUR – industrial and family setups - susceptible to physical and mental abuse at workplace at minimum or no
wages. Adverse consequences on the child - deprived of education, health and strength - essential for his or her growth - inhibit
intellectual and personality development – exploitative working conditions. Causes - Poverty, migration, low family earning,
social conditions etc. - Child Labor (Prohibition and Regulation) Act, 1986 (“in specific occupations” like bidi-making,
domestic work – to – “all occupations” below the age of 14 years with certain recognized exceptions such as, after school hours or
during vacations to support the family enterprise – working hours to be devoted by the child have not been specified).
Other Legislations Relating to Child Labour

 The Factories Act, 1948 - A child who has not completed his fourteenth year is prohibited from working in any factory. Only the adolescent or a
child who has completed his fourteenth year is permitted to work on receipt of certificate of fitness which shall not be issued unless the surgeon is
satisfied that the young person has completed his fourteenth year and possesses requisite physical standard and is fit for such work - Regulated
duration of work.

 The Mines Act, 1952 - Prohibition on the employment of any person below eighteen in any mine. It also prohibits a person below eighteen years to
be present in any workplace related to mines, be it under or above the ground.

 The Plantation Labour Act, 1951 [“Plantation” = land used for growing tea, coffee, rubber, etc. + measuring 5 hectares or more + 15 or more
persons are employed] - “child” = not completed fourteenth year of age; Section 24 – Prohibition of employment of children to work in any
plantation [post 2010 amendment]. “Young Person” [14-18 years] may be employed on production of a certificate of fitness [section 27].

 The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 - The Act prohibits the employment of children below fourteen years of
age in any industrial premise [Section 24] and prohibits the employment of “young persons” in the age group of fourteen to eighteen years between 7
p.m. and 6 a.m. in the premises or elsewhere [section 25].
IMPORTANT CASE LAWS ON CHILD LABOUR

 M. C. Mehta v. State of Tamil Nadu - the fundamental rights of children at the firework factories was grossly violated and the manufacturing process of match and
firework amounts to hazardous employment causing fatal and serious accidents.

 Bachpan Bachao Andolan v. Union of India [2011 –SC]

 Abuse of children and the inhuman treatment afforded to them in circuses which included sexual, physical and emotional exploitation (Children were allegedly
trafficked from the impoverished areas of India and Nepal) - instances of deprivation of basic human rights also reported such as, the right to food, inadequate
living space, poor sanitation facilities, absence of healthcare facilities despite the risk factor being high, etc. – Also, absence of any specific labour laws dealing
with this domain of work. The Supreme Court issued directions regarding such children working in circuses.

 The Court discussed the issue of trafficking, factors that cause trafficking, available legislations, India’s obligations under International and Regional Instruments,
National Plans and Policies to combat human trafficking, and existing child protection mechanisms.
 The court issued the following directions to the Central Government regarding children working in the Indian circuses:

(i) Issue suitable notifications prohibiting the employment of children in circuses within two months from the date of the order in

order to implement the fundamental right of the children under Article 21A of the Constitution of India.

(ii) Conduct simultaneous raids in all the circuses to liberate the children and check the violation of fundamental rights of the

children. The rescued children be kept in the Care and Protective Homes till they attain the age of 18 years.

(iii) Talk to the parents of the children and in case they are willing to take their children back to their homes, they may be directed

to do so after proper verification.

(iv) Frame proper scheme of rehabilitation of rescued children from circuses.

 People’s Union for Democratic Rights v. Union of India [1982 – SC] - popularly known as Asiad Workers Case - the Supreme

Court ruled that construction work falls under the category of hazardous employment.
GOVERNMENT INITIATIVES/SCHEMES/PROGRAMMES FOR
POOR CHILDREN

 GIRL CHILD

1. Beti Bachao Beti Padhao - Ensuring survival and protection of girl child in infancy; education and participation of the girl child.

2. Sukanya Samriddhi Yojana - features a girl child as the primary account holder while the parent/legal guardian is a joint holder of the account.

3. Balika Samriddhi Yojana - scholarship scheme designed to provide financial support to young girls and their mothers who are below the poverty line - available
in both urban as well as rural areas - cash benefit of Rs. 500 provided to mother of girl child after the birth of a newborn - when attending school, a girl child can
get an annual scholarship from Rs. 300 to Rs. 1000 till tenth standard - withdrawal facility of balance amount available after the girl child turns 18 years old and is
still unmarried.

4. CBSE Udaan scheme for girls - administered by the Central Board of Secondary Education through the Ministry of Human Resource Development, Government
of India. The focus of this scheme is to increase the enrollment of girls in prestigious engineering and technical colleges across India.

5. National Scheme of Incentive to Girls for Secondary Education - primarily for the benefit of girls belonging to the backward classes of India, less than 16
years

6. Kasturba Gandhi Balika Vidyalaya - enables opening of 750 special residential schools for the girl child belonging to SC or ST, OBC and minority in
educationally backward blocks having low female literacy.
OTHER IMPORTANT POLICIES
1. Mid-Day Meal Scheme
2. Integrated Programme for Street Children – children without homes and family-ties - The programme provides for shelter,
nutrition, health care, education, recreation facilities to street children, and seeks to protect them against abuse and exploitation.
3. Integrated Child Development Services - the aim of enhancing the health, nutrition and learning opportunities of infants, young
children (0-6 years) and their mothers. Services provided at a centre called the “ANGANWADI”. Package includes: Immunization,
Health check-ups, nutrition, Pre-school non-formal education, etc. 100% centrally sponsored with implementation responsibility
on the state governments.
4. Sarva Shiksha Abhiyan
5. National Nutrition Mission – for addressing the problem of malnutrition of children.
6. National Health Mission – Universal Immunization Programme – provision of several vaccines for infants, children and pregnant
women e.g. polio, hepatitis B, measles, etc.
7. The Child helpline is a toll-free telephone service (1098) which is run with the support of Women and child Development Ministry
and is working in 72 cities across the country. Anyone can call for assistance for the interest of children.
8. The Elimination of Child Labour Programme implemented by the Ministry of Labour, Government of India sanctions
rehabilitation of working children and elimination of child labour.
RIGHT TO RELIGION
Dr V pandey
 What is Secularism
◦ Secularism means developing, understanding and respect for different religions. It
is believed that the word ‘Secularism’ has its origin in late medieval Europe. In
1948, during the constituent assembly debate, a demand was made by the KT
Shah to include the word ‘Secular’ in the Preamble to the Constitution. The
members of the assembly though agreed to the secular nature of the constitution
but it was not incorporated in the Preamble. Later, in 1976 the Indira Gandhi
government enacted the 42nd Amendment Act and the word ‘Secular’ was added to
the Preamble. The 42nd Amendment Act also known as the ‘Mini Constitution’, is
the most comprehensive amendment to the Constitution.
◦ In the much-disputed Ayodhya case, it was held by the apex court that the
constitution postulates equality of all faiths. Through Tolerance and mutual co-
existence, the secular commitment of our country and its people can be nourished.
 S. R. Bommai v. Union of India, AIR
1994 SC 1918
◦ The 9 judge bench, in this case, ruled that Secularism is the basic feature of the
Constitution of India. It also observed that religion and politics cannot be mixed
together. If the State follows unsecular policies or courses of action then it acts
contrary to the constitutional mandate. In a State, all are equal and should be
treated equally. Religion has no place in the matters of State. Freedom of religion
as a fundamental right is guaranteed to all persons in India but from the point of
view of the State, religion, faith, and belief are immaterial.
◦
 Doctrine or Belief?
◦ In Hasan Ali v. Mansoor Ali the Bombay High Court held that Articles 25 and Article 26
not only prevents doctrines or beliefs of religion but also the acts done in pursuance of
religion. It thus guarantees ceremonies, modes of worship, rituals, observances, etc
which are an integral part of religion. What is the essential or integral part of a religion
has to be determined in the light of the doctrines and practices that are regarded by the
community as a part of their religion and also must be included in them.
◦ The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ruled that there is no doubt that
religion finds its basis in the system of doctrines regarded by those who profess that
religion, but it will not be correct to say religion is nothing but a doctrine or belief.
◦ In the case of SP Mittal v. Union of India, the court held that Religion need not be
theistic. It is not merely an opinion, doctrine or belief but has an outward expression in
the act as well.
 What is religion?
◦ The German philosopher Immanuel Kant defines religion as “Religion is the recognition
of all our duties as divine commands”.
◦ Milton Yinger, American sociologist defines religion as “a system of beliefs and practices
by means of which a group of people struggles with the ultimate problems of human
life”.
◦ The constitution does not define the term ‘religion’ and ‘matters of religion’. Hence, It is
left to the Supreme Court to determine the judicial meaning of these terms.
◦ A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765
◦ In this case, Justice Hansaria observed that “our constitution makers had used the
word “religion” in these two articles (Articles 25 and 26) in the sense conveyed by the
word ‘dharma’.” He further explained the difference between religion and dharma as
“religion is enriched by visionary methodology and theology, whereas dharma blooms in
the realm of direct experience. Religion contributes to the changing phases of a culture;
dharma enhances the beauty of spirituality. Religion may inspire one to build a fragile,
mortal home for God; dharma helps one to recognize the immortal shrine in the heart.”
 National Anthem Case
Bijoe Emmanuel v. State of Kerala, (Popularly known as the national anthem case.)
◦ The facts of this case were that three children belonging to a sect (Jehovah’s witness)
worshipped only Jehovah (the creator) and refused to sing the national anthem “Jana
Gana Mana”. According to these, children singing Jana Gana Mana was against the
tenets of their religious faith which did not allow them to sing the national anthem.
These children stood up respectfully in silence daily for the national anthem but refused
to sing because of their honest belief. A Commission was appointed to enquire about the
matter. In the report, the Commission stated that these children were ‘law-abiding’ and
did not show any disrespect. However, the headmistress under the instruction of the Dy.
Inspector of Schools expelled the students.
◦ The Supreme Court held that the action of the headmistress of expelling the children
from school for not singing the national anthem was violative of their freedom of
religion. The fundamental rights guaranteed under Article 19(1)(a) and Article 25(1) has
been infringed. It further held that there is no provision of law which compels or
obligates anyone to sing the national anthem, it is also not disrespectful if a person
respectfully stands but does not sing the national anthem.
Shyam Narayan Chouksey v. Union
of India
◦ In another case of the Supreme Court, Shyam Narayan Chouksey v. Union of
India It was averred in the petition filed before the Supreme Court that every
person must show respect to the national anthem. The Supreme Court held that
every citizen or persons are bound to show respect to the National Anthem of
India, whenever played or sung on specific occasions the only exemption is granted
to disabled people. It further held that playing of the national anthem in cinema
halls is not mandatory but optional and directory.
◦ Article 51A also recognizes the duty of every citizen to show respect to our national
anthem. It states that every citizen of India is duty-bound to respect its ideals,
institutions, National flag, National anthem, etc.
 Telecast of serial: Ramesh v. Union of
India, (1988) 1 SCC 668
◦ The facts of this case were: The serial ‘Tamas’ was based upon a book that already
screened four episodes that portray the communal violence between Hindu-Muslim
and Sikh-Muslim and the tension, killing and looting that took place. A writ petition
was filed under Article 32 of the Constitution for the issuance of the writ of
prohibition or other appropriate writ or order restraining the further screening of
the serial ‘Tamas’ and enforcing the fundamental rights of the petitioner
under Article 21 and Article 25 and to declare the screening of Tamas as violative
of Section 5B of the Cinematograph Act, 1952.
◦ The Court while dismissing the petition held that there is no violation of Article 21
and 25 and the respondent has not acted improperly. The author tries to bring
attention to the past history of our country and to emphasize the wish of the
people to live in harmony and rise above religious barriers. It further held that
when the serial is viewed in its entirety it creates an impression of peace and co-
existence and that the people are not likely to be carried away by the violence
shown in it.
Appointment of Non-Brahmins as
Pujari
◦ Appointment of Non-Brahmins as Pujari: N. Aditya v. Travancore Devaswom Board
◦ The issue, in this case, was whether the appointment of a non-Malayala Brahmin as
‘Santhikaran’ (Priest or Pujari) of the Kongorpilly Neerikode Siva Temple at Kerala is
violative of the provisions of the constitution.
◦ The court held as long as a person is well versed, properly qualified and trained to
perform the puja in an appropriate manner for the worship of the deity, such a
person can be appointed as ‘Santhikaran’ despite his caste. In the present case, it
was also observed that the temple is not a denomination where there is a specific
form of worship is required.
Acquisition of place of worship by State
◦ The Supreme Court in the case of M Ismail Faruqi v. Union of India held that the
mosque is not an essential part of Islam. Namaz (Prayer) can be offered by the
Muslims anywhere, in the open as well and it is not necessary to be offered only in
a mosque.
◦ In M Siddiq (D) Thr. Lrs v. Mahant Suresh Das Supreme Court held that the State
has the sovereign or prerogative power to acquire the property. The state also has
the power to acquire places of worship such as mosque, church, temple, etc and
the acquisition of places of worship per se is not violative of Articles 25 and 26.
However, the acquisition of place of worship which is significant and essential for
the religion and if the extinction of such place breaches their (persons belonging to
that religion) right to practice religion then the acquisition of such places cannot be
permitted.
 Shifting of property connected with
religion
◦ In the case of Gulam Abbas v. State of UP, there was a dispute between the Shias and
Sunnis regarding the performing of the religious rites by the Shias on a certain plot of
land of mohalla Doshipura in Varanasi. In order to avoid clashes between these
communities and to find a permanent solution to this problem, the Supreme Court
appointed a 7 member committee with Divisional Commission as the Chairman and 3
members of the Shia sect and 3 members of the Sunni sect. The committee made a
recommendation of shifting of the graves of Shias to separate the places of worship of
the Shia and Sunni sect. The Sunni sect challenged these recommendations as violative
of their fundamental right of freedom of religion under Article 25 and 26. The Court
rejected these contentions.
◦ The Supreme Court held that the fundamental right guaranteed under Article 25 and 26
is not absolute and is subject to public order and if the court is of the opinion that
shifting of graves is in the interest of the public then the consent of the parties is
irrelevant even though the Muslim personal law is against shifting of graves.
◦
 Triple Talaq: Shayara Bano v. Union of
India
◦ Talaq-e-biddat known as triple talaq, a kind of divorce through which a Muslim man
could divorce his wife by uttering the words talaq talaq talaq. A 5 judges bench of the
Supreme Court heard the controversial Triple Talaq case. The main issue, in this case,
was whether the practice of Talaq-e-biddat (triple talaq) is a matter of faith to the
Muslims and whether it is constituent to their personal law. By a 3:2 majority, the court
ruled that the practice of Talaq-e-biddat is illegal and unconstitutional. The court also
held that, an injunction would continue to bar the Muslim male from practicing triple
talaq till a legislation is enacted for that purpose.
◦ To which the government formulated the Muslim Women (Protection of Rights on
Marriage) Bill, 2017. Later, Muslim Women (Protection of Rights on Marriage) Ordinance,
2018 was passed. As the 2018 ordinance was about to expire, the government
formulated a fresh bill in 2019 and an ordinance was passed for the same in 2019 which
was approved by the President and finally the Muslim Women (Protection of Rights on
Marriage) Act, 2019 came into force on July 31st, 2019 with an objective “to protect the
rights of the married Muslim women and prohibit the Muslim male to divorce the wife by
pronouncing talaq”.
Noise pollution in the name of religion
◦ The Supreme Court in Church of God (Full Gospel) v. K.K.R. Majestic Colony
Welfare Association held that nowhere in any religion, it is mentioned that prayers
should be performed through the beating of drums or through voice amplifiers
which disturbs the peace and tranquility of others. If there is any such practice, it
should be done without adversely affecting the rights of others as well as that of
not being disturbed in their activities.
◦ In the case of Maulana Mufti v.State of West Bengal restrictions were placed on the
use of microphones before 7 am. It was held by the Calcutta High Court that Azan
is an integral and necessary part of the religion but certainly not the use of
microphones. It violates the basic human and fundamental right of the citizens to
sleep and leisure.
Restrictions on Freedom of
Religion
◦ The Supreme Court in In re, Noise Pollution case, has given certain directions to be
followed to control noise pollution in the name of religion:
• Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am.
• Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of
trumpets, or any use of any sound amplifier between 10 pm to 6 am except in
public emergencies.
• Generally: A provision shall be made by the State to confiscate and seize
loudspeakers and such other sound amplifiers or equipment that create noise
beyond the limit prescribed.
Freedom to manage religious affairs (Art. 26)

Article 26 (subject to public order, morality, and health) confers a right on every religious
denomination or any section of such religious denomination of:

•Establishing and maintaining institutions for religious and charitable purposes;

•Managing its affair with regard to religion;

•Owing and acquiring property (movable and immovable);

•Administering the property in accordance with the law.

Religious denomination

The word ‘religious denomination’ is not defined in the constitution. The word ‘denomination’
came to be considered by the Supreme Court in the case of Commissioner, Hindu Religious
endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In this case, the
meaning of ‘Denomination’ was culled out from the Oxford dictionary, “A collection of individuals
classed together under the same name, a religious sect or body having a common faith and
organization designated by a distinctive name”.
Bramchari Sidheshwar Bhai v. State of West Bengal
In this case, The Ram Krishna Mission wanted to
declare itself as a non- Hindu minority where its
members were to be treated as Hindus in the
matter of marriage and inheritance but in the
religious sense to be recognized as non-Hindus.
This would certainly mean that they are given the
status of legal Hindus but religious non- Hindus,
similar to Sikhs and Buddhists. To this, the
Supreme Court ruled that it cannot be claimed by
the followers of Ram Krishna that they belong to
the minority of the Ram Krishna Religion. Ram
Krishna Religion is not distinct and separate from
the Hindu religion. It is not a minority based upon
religion. Hence, it cannot claim the fundamental
right under Article 30 (1) to establish and
administer institutions of education by Ram
Krishna Mission.
Right to establish and maintain-institutions for religious and charitable purposes:
Azeez Basha v. Union of India

In this case, certain amendments were made in the year 1951 and 1965 to the Aligarh Muslim
University Act, 1920. These amendments were challenged by the petitioner on the ground that:

1.They infringe on the fundamental right under Article 30 to establish and administer
educational institutions.
2.Rights of the Muslim minority under Article 25, 26, 29 were violated.
It was held by the Supreme Court that prior to 1920 there was nothing that could prevent
Muslim minorities from establishing universities. The Aligarh Muslim University was established
under the legislation (Aligarh Muslim University Act,1920) and therefore cannot claim that the
university was established by the Muslim Community as it was brought into existence by the
central legislation and not by the Muslim minority.
Right to manage its own affairs in the ‘Matters of Religion’
Matter of religion includes religious practices, rituals, observances, ceremonies, mode and
manner of worship, etc., regarded as the essential and integral part of the religion. For instance,
in Acharaj Singh v. State of Bihar it was held that, if Bhog offered to the deity is a well-
established practice of that religious institution, such a practice should be regarded as a part of
that religion.
 Prevention of exCommunication
Ex-communication means the exclusion or expulsion of a person from a community or group of
which he or she was a member.
Saifuddin Saheb v. State of Bombay AIR 1962 SC 853
In this case, the State of Bombay passed the Bombay Prevention of Excommunication Act, 1949.
Section 3 of this Act prevented the excommunication of the members of any community. The
petitioner (religious head of the Dawoodi-Bohra Community) challenged the Act on the ground of
violation of their fundamental rights guaranteed under Article 25 and 26.
The Court observed that the power of Excommunication by the head formed the essential affairs of
the community and the Act clearly violated the fundamental right under Article 25(1) of the
Constitution. The Supreme Court held that the Act was violative of Articles 25 and 26 and was
therefore void.
Taking over management of secular activities of the temple: Bira Kishore Dev v. State of Orissa, AIR 1964 SC
1501
In this case, The validity of the Shri Jagannath Temple Act, 1954 was challenged on the ground
that the Act is discriminatory in nature and violates Article 26 (d) of the Constitution. It was
contended by the petitioner (Raja of Puri) that the temple was his private property and he had the
sole right over management as well as superintendence of the temple. The Act took away the sole
management of the temple from the appellant and vested it with the Committee. Dismissing the
appeal the Supreme Court held that there was no violation of the fundamental right of freedom of
religion of the petitioner and the Act only dealt with the secular management of the institution.
Breaking of coconuts and performing Pooja, chanting Mantras and Sutras in State functions: Atheist
Society of India v. Government of A.P., AIR 1992 AP 310
The petitioner (Atheist Society of India), in this case, prayed for the issuance of writ of
Mandamus to direct the Government of Andhra Pradesh to give instruction to all the concerned
departments to forbid the performance of religious practices such as breaking of coconuts,
chanting mantras, etc at the State function on the ground that the performing of these
practices is against secular policy of the constitution. The petitioner’s prayers were rejected by
the court on the grounds that it infringes upon the right to religion and if permitted it will be
against the principle of secularism, which is the basic structure of our Constitution. It would
lead to depriving of the right to freedom of thought, faith, worship.
Right to administer property owned by the denomination
Article 26 (d) says that a religious denomination has the right to administer its own property
but it should be in accordance with Law. In Durgah Committee Ajmer v. Syed Hussain Ali the
Supreme Court observed that if the religious denomination never had the right to administer
property or if it has lost its right then such right cannot be created under Article 26 and
therefore cannot be invoked.
The Supreme Court in the case of State of Rajasthan v. Sajjanlal Panjawat observed that even
though the state has the power to administer or regulate the properties of a trust, but it cannot
by law take away the right to administer such property and vest it in such other authority that
does not even comprise the denomination. This would certainly amount to a violation of Article
26(d) of the Constitution.
Limitation of the Right
The right to religion under Article 26 is subject to certain limitations and not absolute and
unfettered. If any religious practice is in contravention to any public order, morality or health then
such religious practice cannot claim the protection of the state.
Freedom from taxes for promotion of any particular religion (Art. 27)
Article 27 of the Constitution prevents a person from being compelled to pay any taxes which are
meant for the payment of the costs incurred for the promotion or maintenance of any religion or
religious denomination.
In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, the Madras legislature enacted the Madras Hindu Religious and
Charitable Endowment Act, 1951 and contributions were levied under the Act. It was contended
by the petitioner that the contributions levied are taxes and not a fee and the state of madras is
not competent to enact such a provision. It was held by the Supreme Court that though the
contribution levied was tax but the object of it was for the proper administration of the religious
institution.
Prohibition of religious instruction in the State-aided Institutions (Art. 28)
Article 28 prohibits:
•Providing religious instructions in any educational institutions that are maintained wholly out of
the state funds.
•The above shall not apply to those educational institutions administered by the states but
established under endowment or trust requiring religious instruction to be imparted in such
institution.
•Any person attending state recognized or state-funded educational institution is not required to
take part in religious instruction or attend any workshop conducted in such an institution or
premises of such educational institution.
Teaching of Guru-Nanak: D.A.V. College v. State of Punjab, (1971) 2 SCC 368
In this case, Section 4 of the Guru Nanak University (Amritsar) Act, 1969 which provided that the
state shall make provisions for the study of life and teachings of Guru Nanak Devji was questioned
as being violative of Article 28 of the Constitution. The question that arose was that the Guru
Nanak University is wholly maintained out of state funds and Section 4 infringes Article 28. The
court rejecting this held that Section 4 provides for the academic study of the life and teachings of
Guru Nanak and this cannot be considered as religious instruction.
Education for value development based on all religions:
Aruna Roy v. Union of India, (2002) 7 SCC 368.
In this case, a PIL was filed under Article 32
wherein it was contended by the petitioner that
the National Curriculum Framework for School
Education (NCFSE) which was published by the
National Council of Educational Research and
Training is violative of the provisions of the
constitution. It was also contended that it was
anti-secular and was also without the consultation
of the Central Advisory Board of Education and
hence it should be set aside. NCFSE provided
education for value development relating to basic
human values, social justice, non-violence, self-
discipline, compassion, etc. The court ruled that
there is no violation of Article 28 and there is also
no prohibition to study religious philosophy for
having value-based life in a society.
Section 494 of Indian Penal Codea
Marrying again during lifetime of husband or wife:-
Whoever, having a husband or wife living, marries in any case in which
such marriage is void by reason of its taking place during the life of
such husband or wife, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also
be liable to fine.

Section 17 of Hindu Marriage Act, 1955

Punishment of bigamy:-
Any marriage between two Hindus solemnized after the
commencement of this Act is void if at the date of such marriage either
party had a husband or wife living; and the provisions of sections 494
and 495 of the Indian Penal Code (45 of 1860), shall apply
accordingly.