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Individual Rights and Fundamental Rights
THE Constitution of England is unwritten. Hence, there is, in England, no code of Fundamental Rights as exists in the Constitution of the United States or in other written Constitutions of the world. This does not mean, however, that in England there is no recognition of those basic rights of the individual without which democracy becomes meaningless. The object, in fact, is secured here in a different way. The foundation of individual rights in England may be said to be negative, in the sense that an individual has the right and freedom to take whatever action he likes, so long as he does not violate any rule of the ordinary law of the land. Individual liberty is secured by judicial decisions determining the rights of individuals in particular cases brought before the Courts.
The Judiciary is the guardian of individual rights in England as elsewhere; but there is a fundamental difference.While in England, the Courts have the fullest power to protect the individual against executive tyranny, the courts are powerless as against legislative aggression upon individual rights. In short, rights. there are no fundamental rights binding upon the Legislature in England. The English Parliament being theoretically omnipotent·, ¶omnipotent·, there is no law which it cannot change. As has been already said, the individual has rights, but they are founded on the ordinary law of the land which can be changed by Parliament like other laws. So there is no right which may be said to be ¶fundamental· in the strict sense of the term.
another vital consequence of the supremacy of Parliament is that the English Court has no power of judicial review over legislation at all. It cannot declare any law as unconstitutional on the ground of contravention of any supposed fundamental or natural right.
e. the framers of the American Constitution were apprehensive of tyranny not only from the executive but also from the Legislature.The result has been the establishment in the United States of a ¶judicial supremacy·.---i.S.A. in England.. a body of men who for the time being form the majority in the Legislature...The Courts in the United States are competent to declare an Act of .A..S. the American Bill of Rights (contained in the first Ten Amendments of the Constitution of the U.) is equally binding upon the Legislature as upon the Executive. So.. as opposed to the ¶Parliament supremacy.Bill of Rights in the U. The fundamental difference in approach to the question of individual rights between England and the United States is that while the English were anxious to protect individual rights from the abuses of executive power.
That power been assumed by the Judiciary in the United States. Further.congress as unconstitutional on the ground of contravention of any provision of the Bill of Rights. . it is beyond the competence of the Legislature to modify or adjust any of the fundamental rights in view of any emergency or danger to the State.
the Simon Commission and the Joint Parliamentary Committee which were responsible for the Government of India Act.History of the demand for Fundamental Rights in India In India. 1935. But nationalist opinion.¹ was definitely in favour of a Bill of Rights. had rejected the idea of enacting declarations of fundamental rights on the ground that ´abstract declarations are useless. because the experience gathered from the British regime was that a subservient Legislature might serve as a handmaid to the Executive in committing inroads upon individual liberty. unless there exists the will and the means to make them effectiveµ. since the time of the Nehru Report. .
The classic arguments against the inclusion of written rights in a Constitution have not been out in India.Regardless of the British opinion. .² That they have succeeded in this venture is the testimony of an ardent observer of the Indian Constitution. the makers of our constitution adopted Fundamental Rights to safeguard individual liberty and also for ensuring (together with the Directive Principles) social. therefore. the reverse may have been the caseµ. economic and political justice for every member of the community. ´In India it appears that the Fundamental Rights both created a new equally« and have helped to preserve individual liberty« The liberty« number of rights cases brought before High Courts and the Supreme Court attest to the value of the Rights. and the frequent use of prerogative writs testifies to their popular acceptance as well. In fact.
which are (subject to exceptions. and rather effects a compromise between the doctrines of Parliamentary sovereignty and judicial supremacy. the Constitution of India has embodied a number of Fundamental Rights in Part III of the Constitution. Though the model has been taken from the Constitution of the United States. to be mentioned hereafter) to act as limitations not only upon the powers of the Executive but also upon the powers of the Legislature. So. On the other hand.Courts have the power to declare as void laws contravening Fundamental Rights. the Parliament of India cannot be said to be sovereign in the English sense of legal omnipotence. the very fact that the Parliament is created and limited by a written . ----for. the Indian Constitution does not go so far.
distribution of legislative powers.Constitution enables our Parliament to legislate only subject to the limitations and prohibitions imposed by the Constitution. 13]. by way of abundant caution. So far as the contravention of Fundamental Rights is concerned. the Constitution. Clause (2) of Art. the Supreme Court and the High Courts are competent to declare a law as un Constitutional and void. such as. In case any of etc. these limitations are transgressed. this duty is specially enjoined upon the Courts by the Constitution [Art. etc. the Fundamental Rights. 13 says--says--- . Rights.
void. our Constitution follows the American model rather than the English. be void. to the extent of the Contravention. But the powers of the Judiciary vis-à-vis the visLegislature are weaker in Indian than in the United States in two respects: .´The state shall not make any law which takes away or abridges the rights conferred by this Part and law made in contravention of this clause shall. To this extent.
leaving a power of judicial review in the hands of the Judiciary to determine the reasonableness of the restrictions imposed by the Legislature. . this power has been expressly conferred upon the Legislatures by the Constitution itself in the case of the major fundamental rights. while the declarations in the American Bill of Right are absolute and the power of the State to impose restrictions upon the fundamental right of the individual in the collective interests had to be evolved by the Judiciary.---in India.Fundamental Rights under Indian Constitution distinguished from American Bill pf Rights Firstly. of course.
the Janata Government. by a somewhat hasty step.----Art. 19(1)(f) and 31. namely. . the death blow to one of the Fundamental Right came from the Janata Government. 300A. has taken out an important fundamental right. which is outside Part III of the Constitution and has been labelled as ¶Chapter IV· of Part XII (which deals with ¶Finance. the ambit of the Fundamental Rights embodied in Part III of the original Constitution had been circumscribed by multiple amendments.The right to property. 1978. been transported to a new article. While under the Congress rule for 30 years. by the 44th amendment Act. the right of Property. Secondly. the provision in Art. Contracts and Suitsµ). by the same amendments. by omitting Arts.44th Amendment. Of course. 31(1) has. bit by bit. 1978.---but that is not a ¶fundamental right·. Property. headed by Morarji Desai.
. invoking Art. he cannot challenge the reasonableness of the restrictions imposed by such law. 19(1)(f). if anybody·s property is taken away by executive fiat without the authority of law or in contravention of a law. If a Legislature makes a law depriving a person of his property. because that provision has ceased to exist. Hence. the aggrieved individual shall have no right to move the Supreme Court art.The net result of the foregoing amendments inflicted upon the right to property are--are--(i) (ii) The right not to be deprived of one·s property save by authority of law is no longer a ¶fundamental right·. 32.
it must (a) make a law. .(iii) Since CI. (b) such a law must be for a public purpose.(2) of Art. the individual·s right to property is no longer a guarantee against the Legislature in respect of any compensation for loss of such property. Article 31(2) [in the original Constitution] embodied the principle that if the State makes a compulsory acquisition or requisitioning of private property. 31 has vanished. and (c) some compensation must be paid to the expropriated owner.
The short argument advanced in the Statement of Objects and Reasons of the 45th Amendment Bill for deleting the fundamental right to property is that it was only being converted into a legal right. the Courts. during the 1971. 19(1)(f) and 31(2) of the original Constitution operated as limitations on the Legislature itself. What is meant is that while Arts. replaced by ¶an amount·. the 45th Amendment Bill installs the Legislature as . regime of Mrs. Nevertheless. the adequacy of which could no longer be challenged before the Courts. right. Gandhi. ¶compensation· amount·. by the 25th Amendment of 1971. Amendment. ¶confiscation·. Supreme Court held. the aggrieved individual might complain if the ¶amount· so offered was illusory or amounted to ¶amount· ¶confiscation·. But even such an innocuous possibility has been foreclosed by the 44th Amendment.Of course. the requirement of ¶compensation· was Gandhi.
the very justification III. good argument for omitting all the fundamental right from Part III. without any fetter on its goodwill and wisdom.the guardian of the individual·s right to property. the majority in a Legislative body. 31D. . are not always infallible and that is why constitutional safeguards are necessary to permanently protect the individual from legislative tyranny. the arena of Fundamental Rights has been narrowed down introducing certain exceptions to the operation of fundamental rights. being. Thirdly. Articles 31A. As it has been pointed out earlier. this would be a innocent. for the time constituting. namely. of putting limitations on the Legislature by adopting a guarantee of Fundamental Rights is the history has proved that the group of human beings constituting. 31B. 31C. by subsequent amendments. But if the Legislature could be presumed to be so infallible and innocent. Thirdly. 31D.
14 (equality before law). which is . assembly. (b) Art. 31C (a Law for the implementation of any of the Directive Principles contained in Part IV of the Constitution). 31C are exceptions to the fundamental rights enumerated in Articles 14 and 19. 31B. Arts. offers almost complete exception to all the fundamental rights enumerated in Part III. a law for agrarian reform).). 31A. (a) Of these. etc.g. Art 19 (freedom of expression. this means that any law falling under the ambit of Art.. 31A (e. cannot be invalidated by any court on the ground that it contravenes any of the fundamental rights guaranteed by Art.).Exceptions to fundamental Rights. however. If any enactment is included in the 9th Schedule. Rights. or Art.
then such enactment 31B.to be read along with Art. 31B. But shall be open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24-4-1973 (i.e. . the date of decision in 24Kesavannda·s case). shall be immune from constitutional invalidity on the ground of contravention of any of the fundamental rights.
a countervailing factor has been introduced. as such. by the 42nd Amendment Act. 51A. namely. the Fundamental Duties mentioned in Art. has to read all parts of the Constitution. the emphasis of the original Constitution on fundamental right has been minimised. nevertheless. . Though these Duties are not themselves enforceable in the Courts nor their violation. punishable. if a Court. 1976.Fundamental Duties Fourthly. before which a fundamental right is sought to be enforced. it may refuse to enforce a fundamental right at the instance of an individual who has patently violated any of the Duties specified Art. If so. 51A.
e. But there is no such unremunerated right our Constitution. . therefore.Enumeration of Fundamental Rights in Part III.The American Constitution (9th Amendment) expressly says that the enumeration of certain right in the Bill of Rights ´shall not be constructed to deny or disparage others retrained by the people. exhaustive Fifthly. the category of ¶Fundamental rights· under our Constitution is exhaustively enumerated in Part III of the Constitution. the right to engage in political activity. the guarantee of some of them in the written Constitution cannot.g. render obsolete any right which inhered in the individual even before the Constitution.µ This rests on the theory of inalienable natural rights which can by no means be lost to the individual in a free society..
implication.As was observed in the early case of Gopalan v. rights other than those which are enumerated in Part III of the Constitution. State of Madras. the Legislature under our Constitution being sovereign except insofar as their sovereignty has been limited by the Constitution either expressly or by necessary implication. therefore. i. . the Courts cannot impose any limitation upon that sovereignty either on the theory of the ¶spirit of the ¶spirit ¶natural Constitution· or of that of ¶natural right·. rest on judicial interpretation and the Supreme Court has gone ahead in this direction by enlarging the scope of Art 21.. Any expansion of the Fundamental Right under the Indian Constitution must.e.
that there is no other justiciable right provided by our Constitution outside part III. and if the . Thus. 265 says that ´no tax shall be levied or collected except by authority of lawµ. Limitations upon the State are imposed by other provisions of the Constitution and these limitations give rise to corresponding right to the individual to enforce them in a Court of law if the Executive or the Legislate violates any of them. Art. however.Rights following from other provisions of the Constitution It should be supposed. This provision confers a right upon an individual not to be a subjected to arbitrary taxation by the Executive.
If the Legislature or the freeµ. Similarly Art. trade. commerce and intercourse throughout the territory of India shall be freeµ. proceedings. 300A belongs to this category. . 301 says that ´subject to the provisions of this Part. the aggrieved individual may have his remedy from the Courts. The new provision in Art.Executive seeks to levy a tax without legislative sanction. Executive imposes any restriction upon the freedom of trade or intercourse which is not justified by the other provisions of Part XIII of the Constitution. the individual who is affected by such restriction may challenge the action by appropriate legal proceedings.
under some constitutions.Difference between Fundamental Rights and Rights secured by other provisions of Constitution What. they are .Though the rights of both these classes are equally justiciable? the constitutional remedy by way of an application direct to the Supreme Court under Art. fundamental right are immune from constitutional amendment. is the distinction between the ¶Fundamental right· included in Part III of the Constitution and those rights arising out of the limitations contained in the other Parts which are equally justiciable. as a ¶Fundamental right·. in other words. 32 which is itself included in Part III. then. As the word ¶fundamental ·suggests. is available only in the case of fundamental Right as well.
by amendments of the Constitution themselves and judicial decisions. 4)..g. no part of the Constitution of India can be changed by ordinary legislation unless so authorised by the Constitution itself (e. Art.Conferred a special sanctity as compared with other provisions of the Constitution. as it stands interpreted Constitution. This proposition has been established after a history of its own: . Of course. but all parts of the Constitution except the basic features can be fundamental rights.
According to this earlier view.Amendability of Fundamental Right. In fact. thus the Courts could act as the guardian of fundamental rights only so long as they were not amended by the Parliament of India by the required majority of votes. in compliance with the requirements of Art. 368 itself. Until the case of Golak Nath. A. the Supreme Court had been holding that no part of our Constitution was unamendable and that Parliament might. amend any provision of the Constitution. 368. by passing a Constitution Amendment Act. Basic Features. some of the amendments of the Constitution so far made were effected with a view to superseding judicial pronouncements which had invalidated social or . including the fundamental Rights and Art.
.. . State of Delhi was superseded by the Constitution (1st Amendment) Act. Dwaekadas v. 1955. and State of West Bengal v. Thus. was Banerjee. while the interpretation given to Art.Economic legislation on the ground of contravention of fundamental rights. Sholapur Spinning Gopal. Co. 31 in the cases of State of West Bengal v Gopal.(2) of Art. 1951. 19 by the Supreme Court in the cases of Ramesh Thappar v. Bela Banerjee. State of Madras and Brij Bhushan v. superseded by the Constitution (4th Amendment) Act. the narrow interpretation of CI.
amendable under the procedure laid down in Art. 13 and 368 were amended to make it clear that Fundamental Rights were 368. State of Punjab. 368 of the Constitution. the Supreme Court held that Fundamental Rights. 368. been given ¶transcendental position· by the Constitution.B. was competent to amend the Fundamental Rights. . But by the 24th Amendment Act. embodied in Part III. so that no authority functioning under the Constitution. 1971 Arts. including Parliament the amending power under Art. overruling its two earlier decisions. had Rights. C. But the Supreme Court cried halt to the process of amending the Fundamental Rights through the amending procedure laid down in Art. State of Punjab. 368. by its muchmuch-debated decision in Golak Nath v. In this case. thus overriding the majority decision of the Supreme Court in Golak Nath v.
is the judicially innovated doctrine of ¶basic features· which can be eliminated only if a Bench . majority. acting by a special majority. 13 comprehend Acts amending the Constitution itself. At the same time Kesavananda's case also laid down that there were implied limitations on the power to ¶amend· and that power cannot be used to alter the ¶basic features· of the Constitution. 368. which does not make any exception in favour of fundamental rights. to introduce drastic changes in the Constitution. A big limitation that stands in the way of Parliament. nor does Art.The majority decision in Kesavananda Bharti·s case upheld the validity of these amendments and also overruled Golak Nath·s case holding that it is competent for Parliament to amend Fundamental Rights under Art.
Union of India. the majority of Kesavananda. the Constitution Bench has invalidated Cls. 1980 S. In the meantime.C. A. (4) and (5) Cls. 368 as violate of the basic features of the Constitution [Minerva Mills v. 1789 (paras 21. 28)] (paras . of Art. applying Kesavananda.larger than the ·13-Judge Bench in Kesavananda·s case ·13be prepared to overturn the decision in that case.
(e) Cultural and educational rights. I. (c) Right against exploitation. . (f) Right to property. The Constitution itself classifies the Fundamental Rights under seven groups as follows: (a) Right to equality (b) Right to particular freedoms. and cover a wide range of topics. (d) Right to freedom of religion. The provisions of Part III of our Constitution which enumerate the Fundamental Right are more elaborate than those of any other existing written constitution relating to fundamental rights.Classification of Fundamental Rights. Rights. (g) Right to constitutional remedies.
residence and profession [Art. (iii) Freedom of speech.Right to property omitted Of these the Right to Property has been eliminated by the 44th Amendment Act. 19]. 19(1) [see under ·44th Amendment·. (iv) Cultural and educational rights of minorities. association movement. so that only six freedoms now remain. 16]. race. sex or place of birth [Art. assembly. II. ante]. (ii) Equality of opportunity in matters of public employment [Art. Thus--(a) Some of the fundamental rights are granted only to citizens (i) Protection from discrimination on grounds only of religion. 15]. Another classification which is obvious is from the point of view of persons to whom they are available. caste. in Art. . The right falling under each of the six categories are shown in Table V.
14].23].(b) Some of the fundamental rights. 21]. are rights. . India---citizen available to any person on the soil of India---citizen or foreigner³ foreigner³ (i) Equality before law and equal protection of the Laws [Art. (vii) Freedom as to attendance at religious instruction or worship in State educational institutions [Art. (vi) Freedom as to payment of taxes for the promotion of any particular religion [Art. (iii) Protection of life and personal liberty against action without authority of law [Art. (ii) Protection in respect of conviction against ex post facto laws. 25]. 28]. on the other hand. 27]. 20]. (v) Freedom of religion [Art. (iv) Right against exploitation [Art. double punishment and self incrimination [Art.
as prohibitions to the State. 18(1).. Some of the Fundamental Rights are negatively worded.There are others.III. which positively confer some benefits upon the individual [e. 28(1). e. IV. . Art.´The says--State shall not deny to any person equality before the law«µ law«µ Similar are the provisions of Arts. 14 says--. worded. under Art. 29(1). power.g. 25.g.. under Arts. 30(1)]. 30(1)]. 16(2). the right to religious freedom. 22(1). Still another classification may be made from the standpoint of the extent of limitation imposed by the different fundamental rights upon legislative power. and the cultural and educational rights. 15(1). 20.
µ It was early held by our Supreme Court that a competent Legislature is entitled to lay down any procedure for the deprivation of personal liberty. Art. In this view. 21. Thus. interfere with such law on the ground that it is unjust.(i) On the one hand. and that the Courts cannot liberty. 21 simply says that³ that³ ´No person shall be deprived of his life or personal liberty except according to the procedure established by law. which are addressed against the Executive but impose no limitation upon the Legislature at all. such as under Art.µ law. unfair or unreasonable. 21 is not to impose any limitation upon the legislative power but only to ensure that the Executive does not take away a man·s liberty except under the . we have some fundamental rights. the object of Art.
. (ii To the other extreme are Fundamental Rights which are intended as absolute limitations upon the legislative power so that it is not open to the Legislature to regulate the exercise of such rights. 19(1). 24. 17.g. and recent Supreme Court decisions show an increasing inclination in that direction. 18. or Art.. and in strict conformity with the procedure laid down by such law. the rights guaranteed by Arts. In later cases. the Supreme Court has found it difficult to immunise laws made under Art. however. 21 from attack on the ground of ¶unreasonableness· ¶unreasonableness· under a relevant clause of Art. 14. e.Authority of a valid law. 15. 20.
19 which itself empowers the Legislature to impose reasonable restrictions upon the exercise of these rights. Such grounds. rights. public morality and the like. in general. in the public interest. in brief. these ¶authorities· are permitted by the Constitution to make valid exceptions to the rights within limits imposed by the Constitution. are security of the State. binding upon both the Executive and the Legislature. Though the individual rights guaranteed by Art. 19 are. public order. .(iii) In between the two classes the rights guaranteed by Art.
¶State action·. ¶the State· will include not only the Executive and Legislative organs of the Union and the States. in this context. but also local bodies (such as municipal authorities) as well as . In case of violation of such rights by individuals. 12 which says that. be understood in a wider sense.Fundamental Rights³a guarantee against Rights³ State action All the above rights are available against the State. It is now settled that the rights which are guaranteed against state action as distinguished from violation of such rights by private individuals. a definition has been given in Art. however. the ordinary legal remedies may be available but not the Constitutional remedies. unless the context otherwise requires. must. For interpreting the words ¶State· wherever it occurs in the Part on Fundamental Rights.
¶other authorities·.This latter expression refers to any authority or body of persons exercising the power to issue orders, rules, bye-laws or regulations having the force of law, byelaw, e.g., a Board having the power to issue statutory rules, or exercising governmental powers. Even the act of a private powers. individual may become an act of the State if it is enforced or aided by any of the authorities just referred to. It should be noted, however, that there are certain rights noted, however, included in Part III which are available not only against the state but also against private individuals e.g., Art. 15(2) [equality in regard to access to and use of places of public untouchability]; 18(3)resort]; resort]; Art 17 [Prohibition of untouchability]; Art. 18(3)-(4) title]; [Prohibition [prohibition of acceptance of foreign title]; Art. 23 [Prohibition of traffic in human beings]; Art 24 [Prohibition of employment beings]; [Prohibition of children in
Hazardous employment]. But these provisions in Part III are employment]. self-executory, not self-executory, that is to say, these articles are not directly enforceable; enforceable; they would be indirectly enforceable; only if some law is made to give effect to them, and such law is violated. It violated. follows that the classification of fundamental rights into executory and self-executory is another possible mode of selfclassification. We may now proceed to a survey of the various fundamental rights, in particular. Article 14 of the Constitution provides---provides---´ The State shall not deny to any person equality before the law or the equal protection of the laws within the territory.
Art. 14: Equality before the law and Equal Protection of the Laws.
Prima facie, the expression ¶equality before the law· and ¶equal protection of the laws· may seem to be identical, but, in fact, they mean different things. While equality before the law is a somewhat negative concept implying the absence of any special privilege by reason of birth. Creed or the like, in favour of any individual and the equal subjection of all classes to the ordinary law--- equal protection of the laws is a more positive concept, implying the right to equality of treatment in equal circumstances. The concept of equality and equal protection of laws in its proper spectrum encompasses social and economic justice in a political democracy.
Equality before Law.
Equality before the law, as a student of English Constitution law knows, is the second corollary from Dicey·s concept of the Rule of law. Equality before law is correlative to the concept of Rule of Law for all round evaluation of healthy social order. It means that no man is above the law of the land and that every person, whatever be his rank or status, is subject to the ordinary law and amenable to the Jurisdiction of the ordinary tribunals. Against every citizen from the Prime Minister down to the humblest peasant, is under the same responsibility for every act done by him without lawful justification and in this respect, there is no distinction between officials and private citizens. It follows that the position will be the same in India. But even in England, certain exceptions are recognised to the above rule of equality in the public interests.
No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office. No civil proceeding in which relief is claimed against the President or the Governor of a State shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity.The exceptions allowed by an Indian exceptions Constitution are---are---(1) (2) (3) The President or the Governor of a State shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. whether before or after .
the name. in favour of foreign Sovereigns and ambassadors. there will. (ii) Suits or other appropriate proceedings against the Government of India or the Government of a State. however. or left at his office stating the nature of the Proceedings. 36]. remain the exceptions of acknowledged by the commity of nations in every civilized country. .g. Besides the above constitutional exceptions.he entered upon his office as President or Governor of such State. e. description any place of the party by whom such proceedings are to be instituted and the relief which he claims [Art.. as the case may be. of course. The above immunities. Governor. shall not bar---(i) bar---( Impeachment proceedings against the President. until the expiration of two months next after notice in writing has been delivered to the President or the Governor. the cause of action therefore.
would mean ´that among equals.Equal Protection of the Laws. on the other hand. . but that persons under the same character should be taxed by the same standard. it means the right to equal treatment in similar circumstance both in the privileges conferred and in the liabilities imposed by the Laws. Equal protection of the laws. in circumstances that do not admit of any reasonable justification for a different treatment. Thus. the law should be equal and equally administered. In other words. that like should be treated alike«·· Equal protection requires affirmative action by the State towards unequals by providing facilities and opportunities. Laws. None should be favoured and none should be placed under any disadvantage. it does not mean that every person shall be taxed equally.
Thus. Legislature would be entitled to make a different treatment. treatment. libraries and the like. it may (i) (i exempt certain classes or property from taxation at all. persons and things for the purpose of taxation. exempting or not exempting. (ii) impose different specific taxes upon different trades and professions. State has wide discretion in respect of classification of objects. benefits or concessions. granting incentives and prescribing rate of tax. . such as charities.But if there is any reasonable basis for classification. the classification. The Legislature can devise classes for the purpose of taxing or not exempting. The court cannot interfere. (iii ) tax real and personal property in different manner and so on. The legislature is competent to exercise its discretion and make classification. taxing. It is for the legislature to identify the class of the people to be given protection and on what basis such protection was to be given.
In other words--words--The principle of equality does not mean that every law must have universal application for all persons who are not by nature. purposes. permitting differentiation in different circumstances. thus. guarantee of equal treatment of persons in ¶equal circumstances·.The guarantee of ¶equal protection·. . attainment or circumstances in the same position as the varying needs of different classes or persons often require separate treatment. is a guarantee ¶equal protection·. The principle does not take away from the State the power of classifying persons for legitimate purposes.
of necessity.´ A Legislature which has to deal with diverse problems arising out of an infinite variety of human relations must.·· operate.·· In order to be ¶reasonable· a classification must not be arbitrary. The reasonableness of a provision depends upon the circumstances obtaining at a particular time and the . and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. but must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. have the power of making special laws to attain particular objects.
that (1) the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others. In order to pass the test. 12.The possibility of the power being abused is no ground for declaring a provision violative of Art. It is not possible to exhaust the circumstance or criteria which may accord a reasonable basis for classification in all cases. two conditions must be fulfilled.urgency of the evil sought to be controlled.Thus-Thus-- . namely. It depends on the object of the legislation in view and whatever has a reasonable relation to the object or purpose of the legislation is a reasonable basis for classification of the persons or things coming under the purview of the enactment. must have a rational relation to the object sought to be achieved by the Act. and (2) that differentia others.
women in position. Similarly. having regard to their social status and need for protection . (iii) The classification may be based on the difference in the nature of the trade.(i) The basis of classification may be geographical.. India may be placed in a more favourable position. e. be regulated by the legislation. it has been held that--that--(a) In offences relating to women. calling or occupation. geographical. (ii) The classification may be according to difference in time. adultery.g. Thus. higher educational qualification is a permissible basis of classification for promotion as it has nexus with higher efficiency on the promotional post. which is sought to trade.
it being based on reasonable classification.(b) In a law of prohibition.---for they are not similarly citizens. Commission. (c) Exemption to the candidate who stood first in the Forest Rangers College from selections as Assistant Conservator by the Public Service Commission.---for circumstanced from the standpoint of need for prohibition of consumptions of liquor. 14. unconstitutional to differentiate between civil and military personnel. or between foreign visitors and Indian citizens. liquor. it would not be prohibition. is not ultra vires Art. .
it means that all litigants. Of course. The decision making open. which have not prejudiced the interest of the . Hence the discretion vested by a statue is to be exercised fairly and judicially and not arbitrarily but subject to the requirements of law.The guarantee of equal protection applies against substantive as well as procedural laws. without discrimination. Non-transparency promotes nepotism nonNonand arbitrariness. are able to avail themselves of the same procedural rights for relief and for defence. process should be transparent. The procedure for distribution of state largesses must be transparent. fair and non-arbitrary. if the differences are of a minor or unsubstantial character. the action of the government is required to be fair and reasonable. From the standpoint of the latter. fair and open. who are similarly situated. defence. In the absence or rules. just.
Thus. it is not an unreasonable discrimination to provide that a suspected person shall have no right to cross. Again. a procedure different from that laid down by the ordinary law can be prescribed for a particular class of persons if the discrimination is based upon a reasonable classification having regard to the object which the legislation has in view and the policy underlying it. . in a law which provides for the externment of undesirable persons who are likely to jeopardize the peace of the locality. for the very object of the legislation which is an extraordinary one would be defeated if such a right were given to the suspected person. there would not be a denial of equal protection.Person or persons affected.examine the crosswitnesses who depose against him.
In the Reference on the Special Courts Bill. 1975. in view of the congestion of work in the ordinary Criminal Courts and in view of the need for a speedy termination of such prosecutions in the interests of the functioning of democracy under the Constitution of India. 1978. the Supreme Court has held that the setting up of a Special Court for the expeditions trial of offences committed during the Emergency period [from 25-6-1975 to 27-3-1977] by high 2527public officials. is a reasonable classification. But to include in the Bill any offence committed during any period prior to the Proclamation of Emergency in June. The guarantee of equal protection includes absence of any arbitrary discrimination by the laws themselves or . was unconstitutional inasmuch as such classification has no reasonable nexus with the object of the Bill.
it is for the aggrieved individual to establish beyond doubt that the law was applied against him by the public authority ´with an evil eye and an unequal hand·. Of course.In the matter of their administration. the latter may have that executive act annulled by the Court on the ground of contravention of the guarantee of equal protection. In short. even where a statute itself is not discrimination. but the public official entrusted with the duty of carrying it into operation applies it against an individual. Art 14 hits ¶arbitrariness ¶ of State action in any form. Thus. not for the purpose of the Act but intentionally for the purpose of injuring him. . An act which is discriminatory is liable to be labelled as arbitrary.
The court will not interfere in the policy decisions of the Govt. capricious.The Government policy is not subject to judicial review unless it is demonstrably arbitrary. discriminatory or violative or constitutional or statutory provisions. protective discrimination in favour of SCs and STs is a part of constitutional scheme of social and economic justice to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person. irrational. It is the duty of State to allay fears of citizens regarding discrimination and arbitrariness. . However. unless the governments-action is arbitrary or governmentsinvidiously discriminatory.
15 is available to citizens only and it prohibits discrimination against any citizen in any matter at the disposal of the State on any of the specified grounds. (b) Art 16.Relation between Arts.---citizens or aliens. sex or place of birth. is also confined to citizens. employment under the State. Articles 15 and 16 deal with particular aspects of that equality. enshrine the principle of equality and absence of discrimination. race. (a) Art. caste. Thus. . religion. but it is restricted to one aspect of public discrimination. While the principle is generally stated in Article 14. Articles 14-16 taken together. namely. 14-16 14- As the Supreme Court has observed. which extends to all persons. namely.
14 is the prohibition against discrimination contained in Art.In matters not coming under Arts. As just stated. 15 of the Constitution which runs thus: . if 16. challenged under the general provision in Art. 14. there is any discrimination. a particular aspect of the equality guaranteed by Art. 15 and 16. the validity of that can be 14.
Sex or Place of Birth. caste. bathing ghats. place of birth or any of them be subject to any disability. Birth ´(1) The State shall not discriminate against any citizen on grounds only of religion. or (b) the use of wells. restriction or condition with regard to (a) access to shops. (2) No citizen shall on grounds only of religion. hotels and places of public entertainment. public restaurants. 15: Prohibition of Discrimination on grounds of Religion. race. caste. race. sex. Caste. place of birth or any of them.Art. liability. Race. sex. . tanks. roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.
. (1) is levelled against State action. (4) Nothing in this article or in clause 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.(3) Nothing in this article shall prevent the State from making any special provision for women and children.µ It will be seen that the scope of this Article is very wide. the prohibition in Cl. While the prohibition in Cl. (2) is levelled against individuals as well.
caste. (1) says that any act of the State. the discrimination will not be unconstitutional. civil or otherwise. place of birth or any of them. etc. shall be treated unfavourably by the State when compared with persons of any other religion or caste merely on the ground that he belongs to the particular religion or caste. sex. whether political.Cl. cast. etc. The significance of the word ¶only· is that if there is any other ground or consideration for the differential treatment besides those prohibited by this Article. Thus. shall not determinate as between citizens on grounds only of religion. race.. discrimination in favour of a particular sex will be permissible if the classification is the result of other considerations besides the fact that the person belongs . The plain meaning of this prohibition is that no person of a particular religion.
women may be considered to be better fitted for the job of a nurse while they may not be considered eligible for employment in heavy industries like a steel factory. factory. race or sex. For instance.g. physical or intellectual fitness for some work. Such discrimination. would not be considered to be unconstitutional. unconstitutional. it speaks volumes for Indian achievement that a possible victim of racial discrimination. e. While racial discrimination still persists as a malignant growth upon Western society.to that sex.. But if a person is sought to be discriminated against simply because he belongs to a particular community. yet. being based on a ground other than sex. . no such complaint has so far come before the Courts. and. can obtain relief direct from the highest Court of the land. he Court. in India. can get the State action annulled through a Court. by means of a petition for an appropriate writ.
sex. whether such discrimination is the result of an act of the State or of any other individual. in regard to the public places specified in Cl. roads.As already stated. the protection is available even against discriminatory acts by private individuals. bathing ghats. place of birth or any of them. caste. Even wells. and places of public resort which are owned by private individuals are subject to this prohibition provided they are maintained wholly or partly out of state funds or they have been dedicated to the use of the general public . Clause (2) provides that so far as places of public entertainment are concerned. (2). race. no person shall be subjected to discrimination on the grounds only of religion. tanks.
it has been held that s. because such immunity is necessary for the protection of women in view of their existing position in Indian society. however. children.The above prohibitions against discrimination. would not be held to be unconstitutional.Thus. would not preclude the State from---from---(a) making special provision for women and children. the women is not punishable as an abettor. . is not constitutional. 497 of the Indian Penal Code. (b) making special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste and the Scheduled tribes. which says that in an offence of adultery though the man is punishable for adultery. These exceptional classes of people require special protection and hence any legislation which is necessary for the making of special provisions for persons of these classes.
in public educational institutions.. it would be permissible under Cl. national interest and the interest of community or society as a whole but the provision cannot be justifiable invoked in granting remission to the . (1) of the Article.Similarly though discrimination on the ground of caste only is prohibited by Cl.e. (4) for the State to reserve seats for the members of the backward classes or of the Scheduled Castes or Tribes or to grant them fee concessions. Art 15(4) envisages the policy of compensatory or protective discrimination but it should be reasonable and consistent with the ultimate public interest i.
should not be treated as a reserved candidate and reservation for admission to the specialties/ supersuperspecialties in post-graduate and doctoral course in postmedicine is permissible. It was held that an SC/ST candidate selected for admission to a course on the basis of merit as a general candidate.convicted persons belonging to the scheduled caste and scheduled tribes as it would not be a measure for their ¶advancement·. . However. the benefit obtained was permitted to be retained.
Art. 15]. race. or place of birth [Art. Its existence depends not . be ineligible for«. the Constitution guarantees equality of opportunity in matters of public employment Article 16 says that--´(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. caste. on grounds only of religion. sex. caste. race. place of birth or any of them. sex. descent. Any office under the State. 16: Equality of opportunity in matters of Public Employment As a corollary from the general assurance of absence of discrimination by the State on grounds only of religion.µ The true import of equality of opportunity is not simply a matter of legal equality. (2) No citizen shall.
of a distribution of posts amongst communities according to a ratio or quota.merely on the absence of disabilities but on the presence of abilities and opportunity of excellence in each cadre/grade as equality of opportunity means equality as between the members of the same class of employees and not between that of separate independent classes. A person cannot be excluded from a State service merely because he is a Brahim. AIDS. even though this is reached by reason Brahim. to the ratio suffering from AIDS. where the relationship of master and servant exists between the State and the employee. . This equality is to be observed by the State not only in the matter of appointments to the public services. Government jobs or service cannot be denied quota. but also in the matter of any other public employment.
but also against local discrimination or even against discrimination against the weaker sex. are--The only exceptions to the above rule of equality are--(a) Residence within the State may be laid down by Parliament as a condition for particular classes of employment of appointment under any State or other local authority [Art.It bars discrimination not only in the matter of initial appointment but also of promotion and termination of the service itself as ´employmentµ includes promotion. By virtue of this power. This right is a safeguard not only against communal discrimination. 1957. Parliament enacted the public Employment (Requirement as to Residence) Act. 16(3)]. Residence) empowering the Government of India to prescribe residence as condition for employment in certain posts .
16(4)]. State. disadvantaged. 16(5)]. having expired in 1974. 371D (post) in the Constitutional itself.and services in the State of Andhra Pradesh and in the Union Territories of Himachal Pradesh. This Act Tripura. Manipur and Tripura. in the opinion of the who. there is no provision to prescribe residence as a condition for public employment except that for Andhra Pradesh special provisions have been made by inserting a new Art. . (b) The State may reserve any post or appointment in favour of any backward class of citizens who. are not adequately represented in the services under sociothe State [Art. (c) Offices connected with a religious or denominated institution may be reserved for members professing the particular religion or belonging to the particular denomination to which the institution relates [Art.This is to provide socio-economic equality to the disadvantaged.
16(4) is apparently without any limitation upon the power of reservation conferred by it. as far as may be consistent with the maintenance of efficiency of the administration [Art. it has to be read together with Art. The Supreme Court has held that while Art. 335 which . 335] but the proviso to Art.(d) The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the matter of appointment to services and posts under the Union and the States. 335 providing for giving relaxation in qualifying marks in any examination or lowering the standard of evaluation in favour of the members of the SC & ST hits the consideration of maintenance of efficiency in administration and has dome away with the emphasis on it laid the Apex Court in some cases.
the policy of the State should be consistent with ´ the maintenance of efficiency of administrationµ.enjoins that in taking into consideration the claims of the members of the Scheduled Castes and Scheduled Tribes in the making of appointments in connection with the affairs of the Union or a state.Therefore.µ It is to be noted carefully that the prohibition against discrimination in the matter of public employment is . excessive or extravagant reservation«. The result is that-----that-----´ There can be no doubt that the Constitution-makers Constitutionassumed« that while making adequate reservation under article 16(4) care would be taken not to provide for unreasonable. like special provision improperly and legitimate limits would be liable to be challenged as a fraud On the Constitution.
. place of birth or residence. either for appointment or for promotion. discipline and the like. relaxation of rules of recruitment or standard of qualification or the like. religion. It does not prevent the State. namely. sex.. descent.attracted where the discrimination is based only on any pf the grounds enumerated. (4) of Art. 17. e. For the furtherance of social equality. the Constitution provides for the abolition of the evil of ¶untouchability· (see Art. like other employers. to pick and choose from a number of candidates. nor is any other discrimination in favour of women possible.g. on grounds of efficiency. post) and the prohibition of conferring titles by the State. no such reservation is possible in favour of women. 16. caste. It is also to be noted that though reservation in favour of backward classes id permissible under Cl. race.
. Backward classes of citizens is not defined in the Constitution. see Author·s Shorter Constitution 13th Ed. 16(4)]. lower castes are treated as backwards. occupation.. 1. [For further discussion. A caste may be itself constitute a class.The Mandal Commission A nine-Judge Bench of the Supreme Court has an Indra Sawhney·s case (popularly known as the Mandal Commission case) laid down the following important points which summaries the law on the issue of reservations in Government employment. Article16(4) is exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment. under Art. poverty and social backwardness.There is an integral connection between caste. 2. In the Indian context.
The backwardness contemplated by Art. Income or the extent of property can be taken as a measure of social advancement and on that basis the ¶creamy layer· of a given caste can be excluded. 16(4) is mainly educational.3. social. excluded. .. The backward classes can be identified in Hindu society with reference to caste along with other criteria such as traditional occupation. place of residence. It need not be both social and educational. 5. Those whose income is above that limit are referred to as the ¶creamy layer·. and in communities where caste is not recognised the rest of the criteria would apply. ´Means-testµ signifies imposition of an income limit for ´Means-testµ the purpose of excluding persons from the backward classes. 4. poverty. lack of education etc.
etc. . reservations 7. State. (4A) to enable it to continue reservation in promotion for the S. and S. this limitation of time has been removed by limitation inserting Cl. 1997). 1995. services or cadre etc. 8. The rule of 50% should be applied to each year. Reservation of posts under Art. It cannot be year.T.6.C. If a reservation in promotion exists it shall continue for 5 years (16 Nov. 9. related to the total strength of the class. By the Constitution (77th Amendments) Act. 16(4) should not exceed 50%. 16 (4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. The reservations contemplated in Art. For getting reservations a class must be backward and should not be adequately represented in the services under the State.
the State has been empowered to consider such unfilled vacancies as a separate class to be filled up in any succeeding year on years. By inserting Cl. 2000. Court. All those cases are under the consideration of limit. The vacancies reserved could be ¶carried forward· for a maximum period three years if candidates from backward classes were not available after which they were to lapse.10. the Supreme Court. Identification of backward classes is subject to judicial review. 16 by the Constitution (81st Amendments) Act. (4B) in Art. . It is to be noted that many States are attempting to surpass the 50% limit.
been defined either in the Constitution or in the above Act. . 1955. 35]· and in exercise of this power.Art. Parliament has enacted the Untouchability (Offences) Act. 17 : Abolition of Untouchability. however. The word ¶Untouchability· has not.·· Parliament is authorised to make a law prescribing the punishment for this offence [Art. 1955.The enforcement of any disability arising out of ¶untouchability· shall be an offence punishable in accordance with law. which has been amended and renamed (in 1976) as the Protection of Civil Rights Act. Article 17 of the Constitution says---´ ¶Untouchability· is abolished and its practice in any form is forbidden. Untouchability.
hotel or public . the punishments therefore. e.----primarily connotation. worship. and prescribes ¶Untouchability·. such as hospital.----primarily referring to any social practice which looks down upon certain depressed classes solely on account of their birth and disables them from having any kind of intercourse with people belonging to the so-called higher soclasses or castes. (c) subjecting any person to any disability with regard to access to any shop. public restaurant.g. educational institution.It has been assumed that the word has a well-known wellconnotation. dispensary. (a) refusing admission to any person to public institutions.. (b) preventing any person from worshipping or offering prayers in any place of public worship. The Act declares certain acts as offences. when done on the ground of ¶Untouchability·. institution.
philosophical or religious grounds or on the ground of tradition of the caste system. directly or indirectly. untouchability. cremation ground or any other place where ¶services are rendered to the public·. by including within the offence of practising untouchability. The penal sanction has been enhanced by providing that . (iii) justifying untouchability on historical. road. The sweep of the Act has been enlarged in 1976. untouchability. the following--untouchability. (ii) preaching untouchability.Entertainment or with regard to the use of any reservoir. following--(i) insulting a member of a Scheduled Caste on the ground of Caste untouchability. tap or other source of water.
(a) In the case of subsequent convictions. (b) a person imprisonment. the court shall presume. Legislature. will be a statutory presumption of an offence having been committed under this Act. If a member of a Scheduled Caste is subjected to any such disability or discrimination. that such act was committed on the ground of ¶untouchability·. . there ¶untouchability·. unless the contrary is proved. convicted of the offence of ¶untouchability· shall be disqualified ¶untouchability· for election to the Union or a State Legislature. The prohibition of untouchability in the Constitution has thus been given a realistic and effective shape by this Act. In other words. the punishment may range from one to two years· imprisonment. in such cases.
Art. The Constitution seeks to prevent such abuse by providing the State from conferring any title at all. It is to be noted that--(a) The ban operates only against the State. (b) The State is not debarred from awarding military or academic distinctions. . Titles. such as universities. as an appendage. ¶Title· is something that hangs to one·s name. 18: Abolition of Titles. even though they may be used as titles. It does not prevent other public institutions. there was a complaint from the nationalists that the power to confer titles was being abused by the Government for imperialistic purposes and for corrupting public life. During the British rule. to confer titles or honours by way of honouring their leaders or men of merit.
for social service. Bharat Ratna or Padma Vibhushan cannot be used by the recipient as a title and does not. say. the Government of India introduced decorations ( 1954. in the form of medals) of four categories. Padma Vibhushan. come within the constitutional prohibition. Shri. Thus. Bharat Ratna. Padma Bhushan and Padma Shri. Ratna. and in recognition of public service of the higher orderµ. accordingly. In 1954. that is. ´exceptional While the Bharat Ratna was to be awarded for ´exceptional services towards the advancement of Art. as an appendage to one·s name. the others would be awarded for ´distinguished public ´distinguished service in any filed.(c) The State is not prevented from conferring any distinction or award. including service rendered by . orderµ. which cannot be used as a title. the award of name. Literature and Science. namely. Vibhushan.
and that holders of the Bharat Ratna have been assigned a place in the ¶Warrant of Precedence· (9th place.Government servantsµ. there was a vehement criticism from some quarters that the introduction of these awards violated Art. just below the Cabinet Ministers of the Union). The critics gained strength status·. in order of the degree of the merit of servantsµ. Though the foregoing awards were mere decorations and not intended to be used as appendage to the names of the persons to whom they are awarded. contrary to the Preamble which promises ¶equality of status·. i. which is . 18. on this point from the fact that the decorations are divided into several classes. The critics pointed out that even titles. superior and inferior.e. the decorations tend to make distinctions according to rank. their service. though they may not be used as titles.
using it as a title.usually meant for indicating the rank of the different dignitaries and high officials of the State. Another criticism. in the same way as the conferment of nobility would have done. is no sanction. Any such use is obviously title. inconsistent with the prohibition contained in Art. against a recipient of any such decoration appending it to his name and thus. either in the Constitution or in any existing law. is that there criticism. in the interests of discipline in the administration. which seems to be legitimate.The result was the creation of a rank pf persons on the basis of Government recognition. 18(1) but it is not made an offence either by the Constitution or by any law. The apprehensions of the critics on this point were unfortunately justified by the fact that in describing the .
---by putting a stop to the ---by practice of awarding Bharat Ratna. Ratna.The author on the Title of an issue of the Hamlyn Lectures. in fact.g. Gandhi after her comeback. and the Supreme Court has now held that non-military awards by way of recognition of nonmerit of extraordinary work (e. In this context. provided they are not used as titles or prefixes or suffixes to the name of the awardee. . which went unheeded earlier was honoured by the Janata regime (1977). awardee. appended as a ¶Padma Vibhushan· title. The matter was taken to Court. it is to be noted that Art. by the Government. the decoration ¶Padma Vibhushan· was. But it was restored by Mrs.. 14 or 18. do not violate Art. the Padma awards) are not titles of nobility and hence. etc. The protest raised by Acharya kripalani against the award of such decorations. 18(1) itself makes an exception in favour of granting by the State of Any military or academic distinction.
These were popularly known as ¶seven freedoms· under our Constitution. 1978.The foremost amongst these are the six fundamental rights in the nature of ¶freedom· which are guaranteed to the citizens by the Constitution of India [Art. hold and dispose of property· has been omitted by the Constitution (44th Amendment) Act.Art 19:The Six Freedoms Apart from the rights flowing from the above prohibition. . leaving only 6 freedoms in this Article. there were 7 freedoms in Art. the right to acquire. It has already been pointed out that in the original Constitution. 19]. freedom of speech and expression. certain positive rights are conferred by the Constitution in order to promote the ideal of liberty held out by the Preamble.They are--1. 19(1) but that one of them. namely.
business. Freedom of assembly. (b) to assemble peaceably and without arms. Since Art. occupation. settlement. 5. arms. Freedom of residence and settlement.2. of movement. (1) All citizens shall have the right--rightexpression. 3. and . Freedom of association. (c) to form associations or unions. India. 6. 19 forms the core of our Chapter on Fundamental Rights. 4. it is essential for the reader to be familiar with the text of this Article. trade or business. unions. (a) to freedom of speech and expression. as it stands amended: ´19. Freedom of profession. Freedom assembly. (e) to reside and settle in any part of the territory of India. (d) to move freely throughout the territory of India.
friendly relations with foreign States. in the interests of the sovereignty and integrity . (3) Nothing in sub-clause (b) of the said clause shall affect subthe operation of any existing law insofar as it imposes.(f) «« (g) To practise any profession. decency or morality. (2) Nothing in sub-clause (a) of clause (1) shall affect the sub(1) law. public order. trade or business. or prevent the State from making any law. insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said subsub-clause in the interests of the sovereignty and integrity of India. operation of any existing law. the security of the State. defamation or incitement to an offence. or prevent the State from making any law imposing. or to carry on any occupation. or in relation contempt of court.
reasonable restrictions on the exercise of the right conferred by the said sub-clause. in the interests of the sovereignty and integrity of India or public order or morality. reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the subgeneral public or for the protection of the interests of any Scheduled Tribe.of India. reasonable restrictions on the exercise of the right conferred by the said sub-clause. sub(5) Nothing in sub-clause (d)-(e) of the said clause shall sub(d)affect the operation of any existing law insofar as it imposes. or public order. . or prevent the state from making any law imposing. or prevent the State from making any law imposing. sub(4) Nothing in sub-clause (c) of the said clause shall affect subthe operation of any existing law insofar as it imposes.
reasonable restrictions on the exercise of the right conferred by the said sub-clause. whether to the exclusion.(6) Nothing in sub-clause (g) of the said clause shall affect subthe operation of any existing law insofar as it imposes.--to. or (ii) the carrying on by the State. in the interests of the general public. or by a corporation owned or controlled by the State. and.--(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation. industry or service. of citizens or otherwise. nothing in the said sub-clause. or prevent the State from making any law imposing. or prevent the State from making any law relating to. complete or partial.µ . shall affect the suboperation of any existing law insofar as it relates to. trade or business. in subparticular. business. of any trade.
This is what is meant by saying that the Indian Constitution attempts ´to strike a balance between individual liberty and social controlµ. in accordance with the philosophy of laissez faire. therefore limited by our Constitution itself by conferring upon the ¶State· a power to impose by its laws reasonable restrictions as may be necessary in the larger interests of the community. the makers of the Constitution did not rest with the enumeration of uncontrolled individual rights. Since the goal of our constitutional system is to establish a ¶welfare State·. The guarantee of each of the above rights is. but sought to ensure that where collective interests were .Limitations upon the freedoms Absolute individual rights cannot be guaranteed by any modern State.
The ¶State·. (2)-(6) of Art... the makers of our Constitution specified the permissible limitations in Cls. but. (2)- . Cls. (2) to (6) of Act. includes not only the legislative ¶State·. authorities of the Union and the States but also local or statutory authorities e. So all of these authorities may impose restrictions upon the above freedoms. provided such restrictions are reasonable and are relatable to any of the grounds of public interest as specified in Cls. instead of leaving it to the Courts to determine the grounds and extent of permissible State regulation of individual rights as the American Constitution does. 19 itself. Cls. within the territory of India or under the control of the Government of India. in this context. etc.Concerned. individual liberty must yield to the common good.g. 19. municipalities. local boards.
seeking votes at an election on the ground of the candidate·s religion in a secular state. (h) maintenance of offence.Thus---Thus---(i) The Constitution guarantees freedom of speech and expression. . (g) public order . ´Decency or morality· is not confined to sexual morality alone. (d) security of State: the State. morality. (e) friendly relations with foreign State: (f) State. defamation. incitement to an offence. (b) contempt of court. is against the norms of decency and propriety of the society. the sovereignty and integrity of India. order. court. But this freedom is subject to reasonable restrictions imposed by the State relating to (a) defamation. It indicates that the action must be in conformity with the current standards of behavior or propriety. (c) decency or morality. Hence.
. In other words.It is evident that freedom of speech and expression cannot confer upon an individual a licence to commit illegal or immoral acts or to incite others to overthrow the established government by force or unlawful means. (ii) Similarly. or to prejudice the sovereignty or integrity of India. No one can exercise his right of speech in such a manner as to violate another man·s such right. the freedom of assembly is subject to the qualification that the assembly must be peaceable and without arms and subject to such reasonable restrictions as may be imposed by the ´Stateµ in the interests of public order. the right of meeting or assembly shall not be liable to be abused so as to create public disorder or a breach of the peace.
all citizens have the right to form associations or unions. or to undermine the sovereignty or integrity of India.----this to restrictions imposed by the State in the interests of the Tribe. . (iv) Similarly.----this right shall be subject country. Thus. unions.(iii) Again. general public or for the protection of any Scheduled Tribe. this freedom will not India. but subject to reasonable restrictions imposed by the State in the interests of public order or morality or the sovereignty or integrity of India. though every citizen shall have the right to move freely throughout the territory of India or to reside and settle in any part of the country. entitle any group of individuals to enter into a criminal conspiracy or to form any association dangerous to the public peace or to make illegal strikes or to commit a public disorder.
every citizen has the right to practise any profession or to carry on any occupation. .(v) Again. or enabling the State itself to carry on any trade or business to the exclusion of the citizens. but subject to reasonable restrictions imposed by the State in the interests of the general public and subject to any law laying down qualifications for carrying on any profession or technical occupation. trade or business.
on of the sticking features of the provisions relating to Fundamental Rights in our Constitution is that the very declaration of the major Fundamental Rights is attended with certain limitations specified by the Constitution itself. In the United States the Bill of Rights itself does not contain any such limitations to the rights of the individuals guaranteed thereby.Scope for Judicial Review As pointed out earlier. there s a distinct Clause attached to each of the right declared. . 19 of our Constitution. as explained above. in Art. But. but in the enforcement of those rights the courts had to invent doctrines like that of ¶Police Power of the State· to impose limitations on the rights of the individual in the interests of the community at large.
cannot be challenged as unconstitutional court. while the freedom of speech and expression is guaranteed.Containing the limitations or restrictions which may be imposed by the State on the exercise of each of the rights so guaranteed. . That is how the competing interests of individual liberty and of public welfare have been sought to be reconciled by the framers of our Constitution. an individual cannot use this freedom to defame another which constitutes an offence under the law. or inconsistent with the guarantee of freedom of expression except where the restrictions imposed by the law can be held to be ´unreasonableµ by a court of law. For example. such as public order. contempt of court. defamation. law. A law which may be made by the State under any of the specified grounds.
to say what he will. occupation or calling at his pleasure and to any other thing which he can lawfully do without let or hindrance by any other person. Are subject to such reasonable conditions as may be deemed to the governing authority of the country to be essential to the safety. J. State of Madras--Madras--´ There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. peace.The question therefore.As MUKHERJEA. arises in each case of adjusting the conflicting interests of the individual and of conflicting the society«Ordinarily every man has the liberty to order society«Ordinarily his life as he pleases. explained in the leading case of Gopalan v. to follow any trade. to go where he will. general order and morals of the community. health. On the .The possession and enjoyment of all rights«.
What the Constitution. attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social security.hand. Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality. therefore. It is by way of interpretation of the word ¶reasonable· that the court comes into the field. for the very protection of these liberties the society must arm itself with certain powers. and each case when an individual complaints to the court that his Fundamental Rights has been .
infringed by the operation of a law. or an executive order issued under a law. the court has got to determine whether the restriction imposed by the law is reasonable and if it is held to be unreasonable in the opinion of the court. . if any) to be unconstitutional and void. the court will declare the law (and the order.
The Supreme Court has said that a restriction is reasonable only when there is a proper balance between the rights of the individual and those of the society. The expression ¶reasonable restrictions· seeks to strike a balance between the freedom guaranteed by any of the subclauses of Art. be applied to each individual statue impinged and not abstract or general pattern of reasonableness can be laid down as applicable to all cases. The test of reasonableness should. (2) to (6). It is to be down by the Supreme Court for determining whether the restriction is reasonable or not. the underlying .Tests of Reasonableness of a Restriction. The nature of the right alleged to have been infringed. Restriction. 19(1) and the social control permitted by nay of the exceptions in Cls. therefore.
All the attendant circumstances. Thus. may be viewed as reasonable only in very exceptional circumstances (e. in providing internment or externment for the security of the State). All the attendant circumstances must be .Purpose of the restrictions imposed. the prevailing conditions at the time.. the disproportion of the imposition. the formula of subjective satisfaction of the Government and its officers with an advisory Board to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen. the extent and urgency of the evil sought to be remedied thereby. should all enter into the judicial verdict.g. and not to curtail a right such as the freedom of association. and within the narrowest limits. in the absence of any emergent or extraordinary circumstances.
(2) The restrictions must not be arbitrary or of an excessive nature. going beyond the requirements of the interest of the general public. whether it violated the fundamental right guaranteed under Art. one has to keep in mind: (1) The Directive Principles of the State Policy. The Supreme Court has held that in examining the reasonableness of a statutory provision. 19. (3) No abstract or general pattern or a mixed principle to judge the reasonableness of the restrictions can be laid down so as to be of universal application and the same will vary from case to case also with regard to the .taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice.
(6) There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved by the Act. It follows. social philosophy of the constitution.--- . (5) Prevailing social values as also needs which are intended to be satisfied by the restrictions. that the question of reasonableness should be determined from both the substantive and procedural standpoints. Hence.--Hence. that being so a strong presumption in favour of the constitutionality of Act will naturally arise. values of human life. therefore. 19(6). prevailing conditions and surrounding circumstances. (4) A just balance has to be struck between the restrictions imposed and social control envisaged by Art.changing conditions.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality or reasonableness. the restriction must not be greater than the mischief to be prevented.--The object of an Act was ´to provide measures for the supply of adequate labour for agricultural proposes in bidi manufacturing areasµ.Substantive and Procedural reasonableness (a) In order to be reasonable. or.Thus. But the order of the Deputy Commissioner made thereunder forbade all persons residing in certain villages from engaging in the . the restriction imposed must have a reasonable relation to the collective object which the legislation seeks to achieve and must not go in excess of that object. in other words.
viz. (b) While the foregoing aspect may be said to be substantive aspect of reasonableness. the procedural aspect.. 19(1)(g)] of those engaged in the manufacture of bidis because--because--The object of the Act could be achieved by legislation restraining the employment of agricultural labour in the manufacture of bids during the agricultural season or by regulating hours of work on the business of making bidis.manufacturing of bidis during the agricultural season. .----relating to the manner in which aspect. A total prohibition of the manufacture imposes an unreasonable and excessive restriction on the lawful occupation bidis. there is another aspect.----relating the restrictions have been imposed. The Supreme Court invalidated the order on the ground that it imposed an unreasonable restriction upon the freedom of business [Art.
. if it seeks to curtail the right of association or the freedom of business of a citizen without giving him an opportunity to be heard. the court must take into consideration all the attendant circumstances such as the manner of its imposition. It has also laid down that in the absence of extraordinary circumstances it would be unreasonable to make the exercise of a fundamental right depend on the subjective satisfaction of the Executive. Broadly speaking. not only the restriction must not be excessive.That is to say. In order to determine whether the restrictions imposed by a law are procedurally reasonable. in order to be reasonable. for example. the mode of putting it into practice. the procedure or manner of imposition of the restriction must also be fair and just. a restriction is unreasonable if it is imposed in a manner which violates the principles of natural justice.
19. or for the prevention of . (2) of Art. the sovereignty and integrity of India. But since the freedom of expression is not an absolute freedom and is subject to the limitations contained in Cl. friendly relations with foreign States.Freedom of the Press. by any means. Freedom of expression means the freedom to express not only one·s own views but also the views of other and. public order. including printing. There is no specific provision in our Constitution guaranteeing the freedom of the press because freedom of the press is included in the wider freedom of ¶expression· which is guaranteed by Art. decency or morality. 19(1)(a). laws may be passed by the State imposing reasonable restrictions on the freedom of the press in the interests of the security of the State.
Contempt of court. has no special privileges in India. But in view of the guarantee of freedom of expression. it would not be legitimate for the State--State--- . (b) the application of the general laws relating to industrial relations. defamation or incitement to an offence. Absolute unlimited and unfettered freedom of press at all times and in all the circumstances would lead to disorder and anarchy. several propositions emerge---emerge---I. The Press is not immune from--from--(a) the ordinary forms of taxation. The Press as such. (c) the regulation of the conditions of service of the employees. From the fact that the measure of the freedom of the press is the same as that of an ordinary citizen under Art. 19(1). II.
(c) to impose a specific tax upon the press deliberately calculated to limit the circulation of information. (b) to single out the Press for laying upon its excessive and prohibitive burdens which would restrict the circulation. impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media. .(a) to subject the press to laws take away or abridge the freedom of expression or which would curtail circulation and thereby narrow the scope of dissemination of information or fetter its freedom to choose its means of exercising the right or would undermine its independent by driving it to seek Government aid.
the Punjab Special Powers (press) Act. and the Court annulled one of its provisions. for a temporary period. on the following grounds: A law which empowers the Government to prohibit. 1956. the Court has to test it by the standard of substantive and procedural reasonableness. while upholding another.When the constitutionality of an enactment specially directed against the Press is challenged. the entry of literature of a specified class. likely to cause communal disharmony would not be held to be unreasonable. if it complies with the procedural requirements of natural justice. But it would be unreasonable if it empowered the State Government . as explained earlier. An enactment of this nature. State of Punjab. came up before the Supreme Court in Virendra v.
to prohibit the bringing into the State of any newspaper, on its being satisfied that such action was necessary for the maintenance of communal harmony or public order, inasmuch as it placed the whole matter at the subjective satisfaction of the State Government without even providing for a right of representation to the party affected. Since the expiry of the Press (objectionable Matter) Act, 1951, in 1956, there was no all-India Act for the control of the allPress in India. But in 1976, Parliament enacted the preventation of Publication of objectionable Matter Act, 1976, with more rigorous provision, and in a permanent form. In April, 1977, the Janata Government repealed this Act. Subsequently, however, this position was further buttressed by inserting a new Article in the Constitution itself,--by the itself,--by Constitution (44th Amendment) Act, 1978.
Censorship of the press, again, is not specially prohibited by any provision of the Constitution. Like other restrictions, therefore, its constitutionality has to be judged by the test of ¶reasonableness· within meaning of Cl. (2). Soon after the commencement of the Constitution and prior to the insertion of the word ¶reasonable· in Cl. (2), the question of validity of censorship came up before our Supreme Court, in the case of Brij Bhushan v. State of Delhi. The facts of this case were as follows: Section 7(1)(c) of the East Punjab Safety Act, 1949, provided that ´the provincial Government. . . If satisfied that such action is necessary for preventing or
Combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher, editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for serunity.µ Similar provision of the Madras Maintenance of Public Order Act, 1949, were challenged in the allied case of Ramesh Thappar v. State of Madras. The majority of the Supreme Court had no difficulty in holding that the imposition of pre-censorship on a journal prewas an obvious restriction upon the freedom of speech and expression guaranteed by clause (1) (a) of article 19, that ¶public safety· or ¶public order· was not covered by the expression ¶security of the State· and the impugned law was not, therefore, saved by clause (2) as it then stood.
Shortly after these decisions, Cl. (2) was amended by the Constitution (1st Amendment) Act, 1951, inserting ¶public order· in Cl. (2). Hence, the ground relied upon by the majority in the cases of Ramesh Thappar and Brij Bhushan is no longer available. The word ¶reasonable· was also inserted in Cl. (2) by the same amendment.The result of this twofold amendment is that if censorship is imposed in the interests of public order, it cannot at once be held to be unconstitutional as fetter upon the freedom of circulation but its ¶reasonableness· has to be determined with reference to the circumstances of its imposition. In this sense, the introduction of the word ¶reasonable· has not been an unmixed blessing. For, censorship of the press, in times of peace, is something unimaginable either in England
but that s. which had been no such safeguards. which provided for a right of representation against the order of the authority and limited the power to a specified period and as to publications of a specified class. was valid.--a total previz. as the Supreme Court decision in Virendra v. even at a time of peace.Or in the United States in modern times. But under our Constitution. 1949 (which has been impugned in Brij Bhushan·s case) except that in the Act of the 1956 what was authorised was even more drastic than pre-censorship.The court Held that s. 2. 1956 which were similar to that in s.The provisions before the Court were ss.. 7(1) (c) of the East Punjab Public Safety Act. .. State of Punjab suggests. censorship may be valid if it is subjected to reasonable safeguards. viz. 3. but not otherwise.--a prohibition. constituted an unreasonable restriction. both from the substantive and procedural standpoints. 2 and 3 of the Punjab special powers (Press) Act.
as in s. e. 352..g. therefore. 358]. similarly. If however.g. it is left to the absolute discretion of the executive authority.. 1975. follow that a provision for preprecensorship for a limited period in emergent circumstances and subject to procedural safeguards. so that pre-censorship may be imposed. 19 itself remains suspended [Art. without any prerestraint. upheld the validity of a law sanctioning pre-censorship of motion prepictures to protect the interests safeguarded by Art. is valid.It would. e. 19(2). it must be held to be unreasonable. public order and morality. Art. It should be noted than when a Proclamation of Emergency is made under Art. 144 of the Criminal Procedure Code. a censorship Order was . Thus.The Supreme Court has. immediately after the Proclamation of Emergency on the ground of internal disturbance in June.
1977. which have been introduced by subsequent amendments. and the Press Censorship Order was revoked on the 22nd of March.issued (June 26. 1975) under rule 48(1) of the Rules made under the Defence and Internal Security of India Act. Article 19 would also be unapplicable in cases where Arts. These exceptions 31Ato Fundamental Rights. will be discussed at the end of this Chapter. GANDHI at the election of 1977 the Proclamation of Internal Emergency was revoked on the 21st. . It should be noted than on the defeat of Mrs. 31A-31C are attracted. 1971.
(b) Double jeopardy or punishment for the same offence more than once. commonly known as ex post facto legislation.Art. by prohibiting--(a) Retrospective criminal legislation. 20: Protection in respect of conviction for Offences Article 29 guarantees protection in certain respects against conviction for offences. (c) Compulsion to give self-incriminating evidence. .
The provision against ex-post facto legislation is contained in Cl. (1) of Art. 20 of our Constitution which runs as follows-´ 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. A law is said to be prospective when it affects acts done or omission made after the law .µ This is a limitation upon the law-making power of the Legislatures in India. nor be subjective 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.Prohibition against ex post facto Legislation A.
The majority of laws are prospective in their operation. Though ordinarily a Legislature can enact prospective as well as retrospective laws. not only future acts and omissions but also acts or omissions committed even prior to the enactment of the law in question. according to the present clause a Legislature shall not be competent to make a criminal law retrospective so as to provide that a person may be convicted for an act which was not an offence under the law . to bring within the operation of the law. that is to say. But sometimes the Legislature may give retrospective effect to a law.comes into effect.
In other words. it cannot make the law retrospective so as to prejudicially affect the persons who have committed such acts prior to the enactment of that law.in force at the time of commission of that act or to subject an accused to a penalty grater than which might have been inflicted under the law in force at the time of the commission of the offence. when the Legislature declares an act to be an offence or provides a penalty for an offence. .
µ The expression ¶ double jeopardy· is used in the American law but not in our Constitution. in effect. As has been laid down by the Supreme Court in Venkataraman v. lays down a similar principle. Union of India. if a person has been . Art 20(2) refers to judicial punishment and gives immunity to a person from being prosecuted and punished for the same offence more than once. (2) of Art. Cl.Immunity from Double Prosecution and Punishment B. The prohibition against double jeopardy is contained in Cl. 20. In other words. (2) of Art. 20 which runs thus--´ No persons shall be prosecuted and punished for the same offence more than once. Nevertheless.
or conversely. such law would be void.Prosecuted and punishment in a previous proceeding of an offence. however. a Government servant who has been punished for an offence in a court of law may yet be subject to departmental proceedings for the same offence. he cannot be prosecuted and punished for the same offence again in a subsequent proceeding. Hence. The Article. does not give immunity from proceedings other than proceedings before a court of law or a judicial tribunal. If any law provides for such double punishment. .
The immunity from self-incrimination is conferred by Cl.Accused·s Immunity from being compelled to give evidence against himself.µ The scope of this immunity has. Such evidence must. be in nature of a communication. 20 which says--´No person accused of any offence shall be compelled to be a witness against himself. prima. C. however. so that no person can be compelled to furnish any kind of evidence which is reasonably likely to support a prosecution against him. (3) of Art. been widened by our Supreme Court by interpreting the word ¶witness· to comprise both oral and documentary evidence.The prohibition is not attracted where any object or document . facie.
selfit must appear that a formal accusation has been made against the person at the time when he is asked to make the incriminating statement. the Clause does not bar the medical examination of the accused or the obtaining of thumbthumbimpression or specimen signature from him. the immunity does not extend to civil proceeding or other than criminal proceedings It has also been explained by the Supreme Court that in order to claim the immunity from being compelled to make a self-incriminating statement. . He cannot claim the immunity at some general inquiry or investigation on the ground that his statement may be at some later stage lead to an accusation.is searched and seized from the possession of the accused. Secondly. For the same reason.
21: Freedom of person Freedom of person or personal liberty is sought to be ensured by our Constitution by means of a two-fold guarantee.--(a) By providing that no person can be deprived of his liberty except according to law [Art. 21]. namely. (b) By laying down certain specific safeguards against arbitrary arrest or detention [Art. .22].Art.
Protection of life and personal liberty Article 21 of our Constitution provides that--´No person shall be deprived of his life or personal liberty except according to the procedure established by lawµ. By the law of the land. A.µ It means that no member of the Executive shall be entitled to interfere with the liberty of a citizen unless he can support his action by some provision of law. . disseized or outward. or exiled. or in any way destroyed save«. This Article reminds us of one of the famous clauses of the Magna Carta: ´No man shall be taken or imprisoned.
. therefore. Again as under the English Constitution. no man can be subjected to any physical coercion that does not admit of legal justification. personal freedom is secured by the Indian Constitution by the judicial writ of habeas corpus (see under ¶Habeas Corpus·. the State or any of justified only if there is a law to support such action and the procedures prescribed by such law have been ´strictly and scrupulouslyµ observed.When. and regain his freedom if the Court finds that the prisoner free where there is a law authorising the deprivation of liberty of a person but there has been no strict compliance with the conditions imposed by the law.In short. 32 and 226] by means of which an arrested person may have himself brought before the court and have the ground of his imprisonment examined. post) [Art.
µ .The Principle underlying the English Constitution is that it is the people·s representatives. assembled in Parliament.The Supreme Court has more than once observed that ´those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty. according to exigencies of the time. who shall determine how far the rights of the individuals should go and how far they should be curtailed in the collective interests or for the security of the State itself. But in no country can there be any absolute freedom of the individual. must strictly and scrupulously observe the forms and rules of the lawµ. This was the theory adopted by the Constitution of India in saying that life and personal liberty are subject to ´the procedure established by law.
so that Art. 21 has been turned into a safeguard against arbitrary legislation.The Supreme Court has. The history of this change in view is as follows. . however infused judicial review by holding that ´procedural· inherently meant a fair procedure.
. the view which prevailed in our Supreme Court was that there was no guarantee in our Constitution against arbitrary legislation encroaching upon personal liberty. unfair or unjust. I. if a competent Legislature makes a law providing that a person may be deprived of his liberty in certain circumstances and in a certain manner.The Gopalan view. Hence. the validity of the law could not be challenged in a court of law on the ground that the law is unreasonable. the Court has assumed the power of declaring unconstitutional any law which deprives a person of his liberty otherwise than in accordance with the Court·s notions of ¶due process·. Under the ¶Due Process· Clause of the American Constitution (5th and 14th Amendments). Until the 1978-decision in Maneka·s case.
21 of our Constitution had embodied the English concept of personal liberty in preference to that of American ´due Process·. that--that--- . in England.That is. State of Madras the majority of our Supreme Court propounded in the view that by adopting the expression ¶procedure established by law·. personal liberty is. In the result. namely.µ The result. reasonableness and fairness. It exists only so far as it is not taken away or limited by laws made by the representatives of the people. the result of such interpretation was to throw ´the most important fundamental right of life and personal libertyµ ´ at the mercy of legislative majorities. this is not possible inasmuch as Court have to power to invalidate a law made by Parliament. ´a liberty confined and controlled by lawµ. is due to the difference in the basic approach. according to the majority. Art. In England. according to the minority. In Gopalan v. even though.
21. such as natural law or common law. the person affected can have no remedy. when personal liberty is taken away by a competent legislation.´Although our Constitution has imposed some limitations on the legislative authorities yet subject to and outside such limitations our Constitution has left our Parliament and the State legislature supreme in their respective fields. In the main « our Constitution has preferred the supremacy of the legislature to that of the judiciary.µ It was also held that there is no safeguard for personal liberty under our Constitution besides Art. . In the result.
19 and 21. which we have already noted. On the other hand. feature of the development of constitutional Union of India.Maneka v. It is a striking law of India that after a long struggle. . overturning the majority in Gopalan. (a) Arts. Hence. This case has categorically laid down the following propositions. II. 21 is of the widest amplitude. there may be some overlapping Arts. which may be said to have started tangibly since 1971. the expression of ¶personal liberty· in Art. 19 and 21 are not water-tight compartments. covering a variety of rights of which some have been included in Art. 19 and given additional protection. the minority view in Gopalan·s case has come to triumph in the 7-Judge decision in Maneka·s case.
. if it provides for the impounding of a passport without giving the person affected an opportunity to be heard or to make a representation against the order proposed. it follows that such law shall be invalid if it violates the principles of natural justice. . unfair or unreasonable. e.(b) In the result. a law made by the State which seeks to deprive a person of his personal liberty must prescribe a procedure for such deprivation which must not be arbitrary. (c) Once the test of reasonableness is imported to determine the validity of law depriving a person of his liberty.g. 21 must also satisfy the requirements of Art. 19. a law coming under Art. In other words.
21 and 22 must be complied with. 22 against arbitratory arrest and detention.From Gopalan to Maneka. let us now advert to the safeguards which the Constitution itself has provided in Art. Apart from the foregoing judicial salvage. the judicial exploration has completed its trek from the North to the South Pole. 22. The decision in Maneka·s case is being followed by the Supreme Court in subsequent cases. thus. the requirements of both Arts. Hence. in a case coming under Art. .
as soon as may be. 22. (1) and (2) of Art. provided for an Cls. (b) No such person shall be denied the right to consult. of the grounds for such arrest. The procedural safeguards against arbitrary arrest and detention.Protection against Arbitrary Arrest and Detention B. are--(a) No person who is arrested. shall be detained in custody without being informed. a legal practitioner of his choice. and to be defended by. (c) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of arrest excluding the time necessary for the journey from the place of .
The above safeguards are not. . available to --(a) an enemy alien. (b) a person arrested or detained --(a) under a law providing for preventive detention. however.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.
22: Preventive Detention The Constitution itself authorises the Legislation to make laws providing for--´ Preventive detentionµ for reasons connected with the security of a State. the maintenance of public order. The constitution.Art. or for reasons connected with Defence. it would be competent to the legislature to enact that a person should be detained or imprisoned without trial for any of the above reasons and against such laws. however. imposes certain safeguards . the individual shall have no right of personal liberty. Foreign Affairs or the Security of India[7th Sch. So. List I. Entry III. or the maintenance of supplies and services essential to the community. Entry 3].
it must obtain a report from an Advisory Board.----as to whether the detention is justified. accused.----as (ii) The person so detained shall. 22 read as follows: When a person has been arrested under a law of preventive detention--detention--(i) The Government is entitled to obtain such person in custody only for three months.---who will examine the papers submitted by the Government and by the accused. 22(4)-(7). It is these 22(4)safeguards which constitute fundamental rights against arbitrary detention and it is because of these safeguards that ¶preventive detention· has found a place in the Part of ¶Fundamental Rights· in our Constitution. If it seeks to detain the arrested person for more than 3 months. informed of the grounds of his detention excepting facts . as soon as may be.---who Board.against abuse of the above power [Art. The relevant provisions of Art.
the maximum period for which a person may be detained under a law of preventive detention. by law. and the detenu shall forthwith be set free. is liable to be declared invalid and an order of detention which violates any of these conditions will.which the detaining authority considers to be against public interest to disclose. (iii) The person detained must have the earliest opportunity of making a representation against the order of detention. . similarly. be invalidated by the Court. as stated above. A law which violates any of the conditions imposed by Art. 22. Parliament has the power to prescribe.
foreign affairs or security of India. public order. The object of preventive detention. preventative detention is resorted to in such . defence. In fact. maintenance of supplies and services essential to the community. on the other hand.. is to prevent him from doing something and the detention in this case takes place on the apprehension that he is going to do something wrong which comes within any of the grounds specified by the Constitution. It is so called in order to distinguished it form punitive detention is to punish a person for what he has done and after he is tried in the courts for the illegal act committed by him. viz. acts prejudicial to the security of the State.Meaning of Pre-ventive Detention Pre- Preventive detention means detention of a person without trial.
Preventive detention is something unknown in the United States of America or the United Kingdom. of the power of the Executive to arrest persons on suspicion. be justified by any lover of liberty. The adoption (in India) on a permanent footing. But no proper assessment of this provision circumstances: .circumstances that the evidence in possession of the authority is not sufficient to make a charge or to secure the conviction of the authority is not sufficient to make a charge or to secure the conviction of the detenu by legal proofs but may still be sufficient to justify his detention on the suspension that he would commit a wrongful act unless he is detained. cannot. which is tolerated in other countries only in emergencies. on principle. in times of peace.
for the first time. a wartime . which authorised the Government to detain a person whenever it was ´satisfied with respect to the particular person that such detention was necessary to prevent him from acting in any manner prejudicialµ to the defence and safety of the country and the like. 1939. under the notorious Bengal regulation III of 1818 (the Bengal State Prisoners Regulation) and similar enactments in Madras and Bombay which laid no fetters upon the powers of the Government to detain a person on suspicion. detention without trial was not a new idea introduced by the makers of our Constitution. This was.History of Preventive Detention of India Firstly. of course. It was in existence since the early days of British India.Then came Rule 26 of the Rules framed under the Defence of India Act.
It is common knowledge that the republic had its birth amidst anti-social and antisubversive . because they painfully visualized that the circumstances which had necessitated such abnormal legislation in the past had not disappeared at the birth of India·s Independence. public safety and the like by the Provincial Maintenance of Public Order Acts. the validity of which had been upheld by the House of Lords. The framers of our Constitution simply made it possible for such legislation to be continued under the Constitution. But even after the cessation of the War. under which there was a spate of litigation. preventive detention was continued in India as an instrument to suppress apprehended breach of public order. during World War II. subject to certain safeguards laid down therein.measure Modelled on similar legislation in England.
In order to save the infant Republic from the inroads of any such subversive elements. this power had to be conferred upon law by subjecting the powers of preventive detention to certain constitutional safeguards upon the violation of which the individual could have a right to approach upon the violation of which the individual could have a right to approach the Supreme Court or the High Courts because the safeguards are fundamental rights. therefore. There have been a number of cases in which the Courts have nullified orders of preventive detention. .forces and the ravages of communal madness involving colossal loss of lives and property. for the enforcement of which the individual could have a right to approach the Supreme Court or the High Courts because the safeguards are fundamental rights. for the enforcement of which the constitutional remedies would lie. in proceedings for habeas corpus.
The revival of anarchist forces obliged Parliament to enact a new Act. originally passed for one year only. 1950 was. Parliament passed the Conservation of Foreign Exchange and .Secondly. conforming to the conditions laid down in the Article. In 1974. passed by the Indian Parliament which constituted the law of preventive detention in India. having provisions broadly similar to those of the Preventive Detention Act of 1950. thus. the above provisions of the Constitution are not selfself-executory but require a law to be made by the Legislature. and preventive detention can subsist only so long as the Legislature permits. It was a temporary Act. The Preventive Detention Act. Several times since then the term of the Act was extended until it expired at the end of 1969. named in maintenance of Internal Security Act (popularly known as MISA) in 1971.
in general. 1985 (commonly called TADA). This has widely been used to curb terrorism. MISA was repealed detention has been conferred on the Central and State Government to safeguard defence and security of the country and to maintain public order and essential supplies and services by enacting the National Security Act.With the increase in terrorist activities the government had to pass in 1985 the Terrorist and Disruptive Activities (Prevention) Act. antiracketing in foreign exchange and the like. aimed at subversive activities. 1980. and the Prevention of Black marketing and Maintenance of Suppliers of Essential Commodities Act. . the COFEPOSA is aimed at anti-social activities like smuggling. As an economic adjunct of the MISA was.Prevention of Smuggling Activities Act. 1980. 1974 (commonly referred to as the COFEPOSA). MISA was repealed in 1987. but COFEPOSA still exchange and the like.
the Janata Government came to realise the reality of the problem. the Janata Party promised to abolish detention without trial.000. during the Emergency of 1975-76. After coming to power. had soared up to 1. 1978. 22 could not be (2)altogether omitted.75. Eventually. (2)-(7) of Art. in April. smuggling and the like were rampant. sought to alleviate the rigours of the . so long as preventive detention was authorised by COFEPOSA. The Provisions in Cls.It may be mentioned that the number of detenus. the MISA was repealed by parliament.The Janata Government therefore. blackmarketing. On the eve 1975of coming to power. the later was aimed at social offences which required extra power to check when inflation. But the Government refused to repeal the COFEPOSA because while the former related to political detention.
In the result. But the relevant provision of this Amendment Act. the Janata Government had its fall and Mrs. remain a dead-letter. by enacting the Constitution (44th Amendment) Act. before any such notification could be issued. 1978. could not be brought into effect immediately since some changes in the machinery of the Advisory Boards had to be made. by effecting changes in Cls. Hence. 22 subsist till today and the relevant provisions of the Amendment Act of 1978. solemnly passed by Parliament. (4) and (7).The Government has not issued any such notification notwithstanding adverse comments by the Supreme Court in view of the inordinate delay. dead- . Paradoxically. 1980. however.Procedure for preventive detention. the Amendment Act of 1978 empowered the Central Government to bring into force these provisions by issuing notifications. the original Clause relating to preventive detention in Art. Gandhi returned to power in January.
It should be pointed out in this context that the legislative power to enact law of preventive detention is divided by the Constitution between the Union and the States. concurrently with the Union. foreign Affairs or the Security Of India.Legislative power to enact Preventive Detention Act. A State . Some States. authorising preventive detention which recall the old Preventive Detention Act of 1950.g.] only when such law is required for reasons connected with Defence. Jammu and Kashmir and Madhya Pradesh have enacted State laws. A State has power.. to provide for preventive detention for reasons connected with security of the State. The Union has exclusive power [Entry 9 of List I. 2th Sch. maintenance of suppliers and services essential to the community [Entry 3 of List III]. e.
22 on the Constitution will be beneficial. . to the cause of liberty. it is practically difficult for the Union Government to impose its will on such States. Art. 22 continues to be on the Constitution as a necessary evil. rather than prejudicial. because the validity of such State laws can be challenged on the ground of contravention of the safeguards laid down in Art. production. Till then. 22.has therefore a say in the matter of abolishing preventive detention on these grounds because it is a responsibility of the State to maintain public order [Entry 1 of List II]. the existence of Art. supply and distribution of goods [Entry 27 of List II]. So long as the concurrent power of the States to legislate for preventive detention with respect to the aforesaid grounds remain and any of them feels the need for retaining or making State laws for preventive detention. In these circumstances.
our Constitution lays down certain provisions to prevent exploitation of the weaker sections of the society by unscrupulous individuals or even by the State. 23: Right against Exploitation As an adjunct to the guarantee of personal liberty and the prohibition against discrimination.Art. .
and in imposing such service the State shall not make any discrimination on grounds only of religion race. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes.Prohibition of Traffic in Human Beings and Forced Labour. Article 23 says---´(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.µ Slavery in its ancient form may not so much be a problem in every State today but its newer forms which are labelled in the Indian Constitution under the general . or class or any of them. caste.
The clause therefore does not prohibit forced labour as punishment for a criminal offence. It is in this view that our Constitution. instead of using the word ¶slavery· uses the more comprehensive expression ¶traffic in human beings· which includes a prohibition not only of slavery but purposes. such as military or even social service. . an indigenous system under which landlords sometimes used to compel their tenants to render free service. Our Constitution also prohibits forced labour of any form which is similar to begar.term ´exploitationµ are no less a serious challenge to human freedom and civilisation. What is prohibited by the clause is therefore the act of compelling a person to render gratuitous service where he was lawfully entitled either not to work or to receive remuneration for it. Nor would it prevent the State form imposing compulsory recruitment or conscription for public purpose. Art 23 has an element of force.
shall be employed to work in any factory or mine or engaged in any other hazardous employment. in a railway or a port. Special provision for the protection of children is made in Art. etc. The Supreme Court directed that children should not be employed in hazardous jobs in factories and .g..µ It is to be noted that the prohibition imposed by this Article is absolute and does not admit of any exception for the employment of a child in a factory or mine or in any other ¶hazardous employment·. e. 24: Prohibition of Employment of Children in Factories. 24 which says---´No child below the age of fourteen years.Art.
.positive steps should be taken for the welfare of such children as well as improving the quality of their life and the employers of children below 14 years must comply with the provisions of the Child Labour (Prohibition and Regulation0 Act providing for compensation. employment of their parents guardians and their education.
The attitude of impartiality towards all religions is secured by the Constitution by several provisions [Art. A secular State is founded on the idea that the State is concerned with the relation between man and man and not with the relation between man and god which is a matter for individual conscience. The State will neither establish a religion of its own nor confer any special patronage upon any particular religion. 25-28: Freedom of Conscience and 25Free Profession. is a ´secular Stateµ. Practice and Propagation India under the Constitution. there shall be no ´State religionµ in India. It follows from this that---- .Arts. 25-28]: Firstly. a State which observes an attitude of neutrality and impartiality towards all religion.
(b) no religious instruction shall be provided in any educational institution wholly provided by State funds.(a) the State will not compel any citizen to pay any taxes for the promotion or maintenance of any particular religion or religious institution [Art. In short. while religious instruction is totally banned in State-owned educational institutions. (c) even though religious instruction be imparted in educational institutions recognised by or receiving aid from the State. no person attending such institution shall be compelled to receive that religious instruction without the consent of himself or of his guardian 9 in case the pupil be a minor). 27]. in other Statedenominational institutions it is nit totally prohibited but it must not be imposed upon people of other religions without their consent. .
. but do not really appertain to the freedom of conscience.Secondly. (c) to measures for social reform and for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.g. to commit the practice of infanticide. political or other secular activity which may be associated with religious practice. e. (b) to regulations or restrictions made by the State relating to any relating to any economic. subject only--only--(a) to restrictions imposed by the State in the interests of public order. e.. practise and propagate his own religion. morality and health (so that the freedom of religion may not be abused to commit crimes or anti-social acts. to commit anticrimes or anti-social acts. antiand the like). every person is guaranteed the freedom of conscience and the freedom to profess.g.. financial.
(d) to administer such property in accordance with law [Art. Thirdly. practice and propagate his religion.Subject to the above limitation. (b) to manage its own affairs in matters of religion. 26]. and to preach his views to other [Art. there is also the right guaranteed to every religious or denomination--denomination--(a) to establish and maintain institutions for religious and charitable purpose. 25]. (c) to own and acquire movable and immovable with law [Art. 26]. a person in India shall have the right not only to entertain any religious belief but also to practise the observances dictated by such belief. not only is there the freedom of the individual to profess. .
To those who have any idea as to what part religion plays in the entire being of the common man in India. and more so. regardless of her environments. It is to be noted that this guaranteed is available not only to the citizens of India but to all persons. 25 and 26 is the individual to practice and propagate not only matters of faith or belief but also all those rituals and . the bold pronouncements in the above Articles must appear to be astoundingly progressive. India stands firm. if we consider that while the other half of the truncated territory. 252526 has been widened by the judicial interpretation that what is guaranteed by Arts. including aliens. has adopted Islam as the State religion in her Constitution. The ambit of the freedom of religion guaranteed by Arts. consisting of a large mass of Hindu minority.
But the Court has . Similarly. though a religion undoubtedly has its basis in a system of briefs of doctrines which are regarded by those who profess that religion as conductive to their spiritual well-bring. again. Regulation by the State. Of course.Observances which are regarded as integral parts of a religion by the followers of its doctrines. it would not be wellcorrect to say that religion is nothing else but a doctrine of brief. On the other had. cannot interfere with things which are essentially religious. religion is a matter of faith but it is not necessarily theistic and there are wellwell-known religions in India like Buddhism and Jainism which do not believe in God. each religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold.
not being an essentially religious practice. capable of diverse meanings and one of its dictionary meanings is ¶concerned with the affairs of the worlds· as opposed to religious affairs. It should be pointed out in this context that the word is a dubious word. but has also been taken advantage of by interested parties. contravenes any law of social. This has no only caused confusion amongst teachers of political Science and Law in India.The right to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion. economic or political regulation. as follows: nine- . and to interfere if a particular practice offends against public health or morality. in a nine-Judge decision.This state of confusion has been set at rest by authorities pronouncements made by the Supreme Court. or.
25-30 or Art.(a) Secularism. 351. and it cannot be contended that ´ if a person is a devout Hindu or a devout Muslim. in India.µ (c) The use of the vague word ¶secular· in the Preamble would not override the enacted provisions in Arts. he ceases to be secular. while not conceding this status to Arabic or Persian or the like. does not mean that the State should be hostile to religion but that it should be neutral as between the different religions. (d) The neutrality of the state would be violated if religion is used for political purposes and advocated by the political parties for their political ends. An appeal to . (b) Every individual has the freedom to profess and practise his own religion. would not militate against the basic tenets of secularism. so that the 25preference of Sanskrit in the academic syllabus as an elective subject.
the electorate on grounds of religion offends secular democracy (para 1280). (e) It is in this sense that secularism is to be regarded as a basic feature of the Constitutional (paras 124. 356 of the Constitution against it [Para 365(10). . it will be a fit case for application of Art. If a State Government does this. Politics and religion cannot be mixed (para 1310). 231. 365(10)].
followed by agitation. is particularly amazing because it seeks to undermine the decision of the Supreme Court in Stanislaus·s case in January. Orissa had earlier passed a similar Act (which used the word ¶inducement· in place of allurement·) and the Constitutionally of that Act had been challenged by several members of the Christian community.¶Propagation· and Conversion It is amazing that some Christian leaders assert that the word propagate· in Art. because it made it a penal offence to convert or to attempt to convert a person by means of ¶force·. by any means. fraud or allurement·. 1977. which had been brought by a Christian Father. . who sought to invalidate a Madhya Pradesh Act. 25(1) gives them a fundamental right to convert people of other Faiths into Christianity. including a Christian Society. This assertion.
gives to each member of every religion the right to spread or disseminate the tenets of his religion (say.a Professor of Geology and several priests. binding upon all Courts in India. by advocacy or preaching). 25(1). by the Supreme Court. means that he has the . Both the Acts were taken up together by the Supreme Court and the contentions of the Christian community were rejected in toto. under the Constitution. on which the Christian relied. because each man has the same freedom of ¶conscience· guaranteed by that very provision [Art. (ii) The equal freedom of conscience. but it would not include the right to convert another. under Art. belonging to each man. 25(1). laying down the following propositions of law which are. (i) The right to ¶propagate· in Art. 25(1).
fraud. (1) Subject to public order. including conversion. morality and health and to the other provisions of this part. morality. voluntarily adopt another religion. of course. all persons are equally entitled to freedom of conscience and the right freely to profess. inducement or allurement. fraud. or health· as follows: ´25. He can. would(iii) Even assuming that a particular religion had the right to propagate its tenets by any means. morality or health· because the guarantee of freedom of religion in Art. inducement of allurement· takes away the free consent from the would-be convert.---the State conversion. but ¶force.freedom to choose and hold any faith of his choice and not to be converted into another religion by means of force. practise and propagate religion.µ . 25(1) is subject to the limitations of ¶public order.---the has the right and duty to intervene if such activity of conversion offended against ¶public order.
therefore. fraud. may enjoyed---to enjoyed---to maintain public order by prohibiting and penalising conversion 9including attempt to convert) if force. and Orissa Acts. The Supreme Court.P.P. This is exactly what had been done by the M. fraud. The State was.(iv) If any such right to convert be concede. after rejecting every plea raised on behalf of the . therefore. inducement or allurement. upheld the constitutional validity of both the M. such right would belong to every religion. constitutionally authorised. inducement or allurement was used by the person or persons advocating conversion in any particular case. and Orissa Acts. by the use of force. so that there would inevitably be a breach of the public peace if every religious community carried on a campaign to convert people belonging to other faiths.
with the slogan that it was a campaign against the Christian religion in particular.P. would be applicable to all the States of India. After this pronouncement of the Supreme Court. the Arunachal Pradesh Legislature passed a Bill.P. and Orissa Acts. a private member of Parliament (Shri. which. The Christian community at once started agitations and demonstrations against these two Bills. TYAGI) presented before the Lok Sabha a similar Bill.Christian parties. O. with threats against severer resistance if these measures were passed.This contention involves supprssio veri (suppression of truth) on the following points: . Modelled exactly on the M. They politicised the issue. if passed by Parliament. which had been held to be valid by the Supreme Court and submitted it to the President for his assent.
etc.) which resorted to any of these unlawful means---force. in order to convert a member of another Faith to its own fold. allurement. Muslim. fraud. Sikh.(i) Neither of the disputed Bills was levelled against the Christian religion such but would have operated against any religious community 9including the Hindu. (ii) That all the legal points now raised against these two pending Bills were taken by the Christian parties to the Madhya Pradesh and Orissa Acts case but were definitely rejected by the Supreme Court. inducement or means---force. .
International covenant (iii) Those who rely on the International Charters in support of their freedom to convert have not mentioned Art. read together.µ The freedom of every man to adopt a religion of his choice is guaranteed by Cl. mean that every individual shall have the freedom to choose his own religion or belief in worship and this freedom shall not be impaired by the use of coercion by any individual attempting to induce . The two clauses. 18(2) of the International Covenant on Civil and Political Rights. which says--´No one shall be subject to coercion which impair his freedom to have or to adopt a religion or belief of his choice. 1966. (1) of Art 18.
impair the freedom of choice of an individual and his resultant choice or violation cannot be said to be free. When fraud is used. But such means. The validity of use of these two words in an Indian Bill would rest not on the wording of the International Covenant which is the resultant of various international factors. within the meaning of Art. 18(1) of the International Covenant. referred to. . So far as the disputed Indian Bills ban the use of force as a means of conversion. but on the interpretation of the words ¶public order and morality· in Art. The only dispute which may possibly be raised by the Indian Christians is as to the use of inducement or allurement. which constitutes the supreme law of this land. it is perfectly in line with this International Charter.him to adopt another religion. the freedom of choice of the Individual sought to be converted is similarly impaired. too. 25(1) of our Constitution.
but there was not the least justification to denounce nothing but a codification of the principles laid down by the highest tribunal of the land and on the model of the State status which had been approved by that tribunal in the Stanislaus case. they were free to challenge the constitutionality of the provisions of the disputed Bills after they were passed and to persuade the Judges of the Supreme Court to revise their views as expressed in the Stanislaus·s case. Apart from the foregoing guarantee of freedom of conscience and religion. 25(1).(iv) If the agitators were dissatisfied with the Supreme Court·s interpretation of Art. there are certain general provisions which are aimed at ensuring the effectiveness of the above guarantee by prohibiting any discrimination by the State on the ground of religion alone: .
in particular. 15(1)]. 29(2)· the right to vote [Art. (iii) Where a religious community is in minority. the Constitution goes further to enable it to preserve its culture and religious interests by providing that---that---- . and. admission into any educational institution maintained or aided by the State [Art. in the matter of employment [Art.(i) The State shall not discriminate against a citizen in any matter [Art. 16(2). only upon the ground of religion. 325]. (ii) Similar discrimination is banned as regards access to or use of public places [Art. 15(20)].
Art. Art 30 (b) Such community shall have the right to establish and administer educational institutions of its choice and the State shall not. 30]. 31(1A)]. in granting aid to educational institutions. 29 (a) The State shall not impose upon it any culture other than the community·s own culture [Art. discriminate against such an educational institution maintained by a minority community on the ground that it is under the management of a religious community [Art. Full compensation has to be paid if the State seeks to acquire the property of a minority educational institution [Art. 29(1)]. .
25-30 and allied provisions (as to minority rights).The sum-total of the above provisions make our State more sumsecular than even the United States of America.What is meant by ¶secularism· or the safeguards of the minority. however. . If a 25minority community presses for any extra favours outside these specific provisions in the name of ¶secularism· or the party in power yields them for political reasons. it might be re-introduced those vices of communalism from which India resuffered so much during the later British regime and which the fathers of the Constitution eliminated from the Constitution of free India. The secular nature of our Constitution has been further highlighted by inserting this word in the Preamble. be uttered in this context. are exhaustively enumerated in Arts. A word of caution should. 1976. by the Constitution (42nd Amendment) Act.
Instead of safeguarding the rights of a minority community. 16(2). be allowed to be in argument for preference of the minority or to undermine the national unity and strength. communal representation in the Legislatures or communal reservation in public employment. for which the confidence of the majority is no less necessary. not to be ´discriminated againstµ on the ground of ¶religion· or the like. therefore. it would deny the rights of the majority and other minority communities which are guaranteed by the Constitution itself. not on the ground of merit.. For instance.e. but on the ground that the appointee belongs to a religious minority. such discrimination would violate the fundamental right of any other community under Art.g. if Government seeks to justify an appointment to a public office. Neither secularism nor minority rights can. high or low. .
expression. it would simply perpetuate insular objectivities of these communities and India would never grow up into a Nation. Religious and cultural safeguards have been guaranteed by the Constitution to minority communities in order to ensure them ¶justice. freedom of thought. belief.But a minority educational institution has the power to reserve only upto 50% seats for students belonging to its own community. To revert to the anteante-independence vortex of communalism and . But if any minority community goes on clamouring for more than what the framers of the Constitution offered to them. inspired with the ideal of ¶unity and Integrity of the Nation·. The Preamble to our Constitution aims at securing the unity and integrity of the nationµ. faith and worship·.
separatism secularism would imperial the very foundation of Independence. On the other hand. secularism which means neutrality of the State towards all religions will itself be violated if the Government suppresses the religious or other legal rights of the majority community to appease the demands of an aggressive minority .
limited only by (a) reasonable restrictions to serve the experience of public . to hold it as his own and to dispose it freely. personal earning or otherwise.The Constitution of 1949 Firstly. The Constitution of 1949 had a three-fold provision for safeguarding the right of private property. it guaranteed to every citizen the right to acquire any property by any lawful means such as inheritance.A history of the right to property under the Constitution of India. I. It not only guaranteed the right of private ownership but also the right to enjoy and dispose of property free from restrictions other than reasonable restrictions.
(b) A restriction would be procedurally unreasonable if. of course. the Constitution guaranteed that no person shall be deprived of his property save by the authority of . it is imposed without notice or without hearing or without assigning any reason. be ¶reasonable·. from the substantive as well as the procedural standpoints. on the subjective satisfaction of an administrative authority.Thus--Thus--(a) The restriction must not be in excess of the requirements of the interest of the general public for which the restriction is sought to be imposed.Welfare. and (b) any other reasonable restrictions that may be imposed by the State to protect the interests of any Scheduled tribe [Art. The restrictions must. Secondly. 19(1) (f)]. in the absence of extraordinary circumstances.
and the private property of a subject cannot be taken away by an executive order. short of the consent of the owner. held that the law which seeks to deprive a person of his property must . a man·s property can be taken only by the consent of the nation is embodied in the laws passed according to the Constitution. 31(1). a sovereign cannot exercise an ¶Act of State·.The Supreme Court.This implied that. however. but not against legislative. appropriation of property. This clause was intended to be a protection against executive. As against its own subjects. Any property which is seized by the Police or the Government without proper legal authority will be released at the intervention of the Courts.Law [Art. as distinguished from an order made in exercise of power conferred by a statue.
Thirdly.either by fixing the owner. it must provide for payment of an amount to the owner. to take over its possession for a temporary period) it. 31(2). which means a law enacted by a competent legislature and not inconsistent with any of the fundamental rights guaranteed by Part III of the Constitution. (b) that when such a law is passed. it could do so only on two conditions---conditions---(a) that the acquisition or requisitioning is for a public purpose. .--amount or by specifying the principle upon which is to be determined and given [Art.--. the Constitution enjoined that if the State wants to acquire the private property of an individual or to requisition (that is.be a valid law.
the Twenty-fifth and the Forty-second Amendment Acts. 1976.II. underwent serious changes as a result of amendments of the Constitution by the First. Though the Legislature was under a constitutional obligation to pay compensation shall not be liable to be questioned in a court of law. however. the Fourth. Amendment up to the 42nd Act. when a law provided for the acquisition of person·s property for a public purpose. the Seventeenth. The net result of these amendments is as follows---A. In other words. The provisions of the Constitution as to the obligation to pay compensation for acquisition of property for public purposes. he would not be entitled to challenge the .
its market value at the date of the acquisition. the Supreme Court continued to hold that the very word ¶compensation· implied full monetary. equivalent of the property taken away form the owner. the market value of the property at the date of the acquisition. that is. But even after the foregoing amendments.validity of that law in a court of law on the ground that the Legislature had not provided for payment of the full value of his property. The Government thought that it was not practicable to implement its programme of national planning and development if the full market value was to be paid from the inadequate resources of the infant republic for every inch of the property which was to be nationalised.This (Fourth) amendment (1955) in Art. . 31(2) was necessited by the fact that even the word ¶compensation· simpliciter was interpreted by the Supreme Court as implying ¶full compensation·. that is.
31 was substituted by the word ¶amount·. therefore. which will be mentioned presently. by holding that the amount which was fixed by the Legislature could not be arbitrary of illusory. by engrafting the exceptions in Arts. (2) of Art. But again. nut must be determined by a principle which is relevant to the acquisition of property. in the Full Bench case of Kesavananda v.] . [The Indira Government reacted by putting specified laws of acquisition beyond the pale of Art. the majority of the Supreme Court reserved an area for judicial intervention. 31 altogether. State of Kerala. the word ¶compensation· in Cl. 31A-31D.The 25th Amendment By the 25 the Amendment of 1971.
B. By a number of successive amendments, certain
exceptions to Art. 31(2) were introduced, in Arts. 31A-31D, to 31Aexclude the obligation to pay any amount as compensation in the case of laws providing for acquisition by the State or nationalisation, if such laws relate to matters specified in these exceptional provisions.These exceptions to the obligations under Art. 31 may now examined in particular. (a) Art. 31A relates to a law for the acquisition by the State of any ¶estate· or other intermediate interest in land. The object of taking out the acquisition of intermediate interests in land from the obligation to pay compensation was to make it possible for the Government to effect agrarian reform which was so urgently needed to protect the interests of the tenants as well as to improve the agricultural wealth of the country.
In order to facilitate agrarian reform as well as social control of the means of production, it has been provided in Art. 31A that not only a law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, but also certain other laws, such as a law providing for the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, shall be constitutionally valid even though it takes away or abridges any of the rights conferred by Arts. 14 and 19.` (b) While Art. 31A excepts certain classes of laws, Art. 31B, read with the 9th Schedule, gives a blanket cover to particular enactments, which are, for the time being
specified in the 9th Schedule. Their number, in 2000 is 284. They have been altogether immunised from attack, on the ground of contravention of any of the Fundamental Rights. (c) Art. 31C, as inserted by the 25th Amendment Act, 1971, provided that any law which seeks to implement the Directive in Art. 39(b) or 39(c), i.e., the plan of socialistic distribution of wealth, and the means of production shall not be void for inconsistency with Arts. 14 or 19. But the effectiveness of Art. 31C was crippled by the decision of the majority of the Supreme Court in the case of Kesavananda that judicial
review is one of the essential features of the Indian Constitution which cannot be taken away by the process of amendment under Art. 368, and that, accordingly, that part of Art. 31C, which stated that any legislature declaration that a particular law was made to implement the Directives in Art. 39(b)-(c) 39(b)shall not be open to question in a Court, is itself unconstitutional.
III. 1977. if any law of acquisition was made with the object of giving effect to any of the Directives.The 42nd Amendment. parliament enlarged the scope of Art. As a result of this. and need not bother the reader. . by the 42nd Amendment Act. has been repealed by the 43rd (Constitution Amendment) Act. 39(b)-(c). (d) The last faggot of exceptions Article 31D. 1976 Undaunted by Kesavananda. the reasonableness of such a law cannot be questioned under Art. 14 or 19. however. nullified this extension. 31C. 1976. by including within its protection any law to implement any of the Directive Principles enumerated in Part Iv of the Constitution---not merely in Art. Minerva Mills has.
its incidents may be recapitulated in order to give a definite idea as to how much of the right to property remains under the Indian Constitution after April. 31(2) by successive amendments. 1978. which we have already discussed in connection with Judicial Review.The 44th Amendment. it was left to the Janata Government to eliminate the right of property altogether from the list of Fundamental Rights in Part III. . 1978. and in what shape. as outlined above. Nevertheless.IV. While the Congress Government for over a quarter of a century had eaten into the vitals of Art. This has been effected by the 44th Amendment Act. 1979.
(2) of Art. 31 has been omitted but its Proviso has been transferred to Art. 31 have been omitted. viz. in short. he can co longer have speedy remedy direct from the Supreme Court under. (b) Art. (c) Cls. 32 (because the right under Art. and made a separate Article. (2A)---(6) of Art. is that if an individual·s property is taken away by a public official without legal authority or in excess of the power conferred by law in this behalf.. (1A) to that Article. (2A)---(6) (d) Cl. 226 or by an ordinary suit. . He shall have to find his remedy from the High Court under Art. 300A reads as follows: ´No person shall be deprived of his property save by authority of law.µ The result. 31(1) has been taken out of Part III. 30. 300A is not a fundamental right). as Cl. 19(1) (f) has been repealed.(a) Art.
31. 31A(1) has been retained giving to full compensation to the actual tiller. 31 has been retained. even though Art. 31A(1). remains to operate as an exception to Arts. 31A which was originally inserted as an exception to Art. to which the 2nd Proviso operates as an exception. These are twofold: . the 2nd Proviso to Art. Art. however. It would.(e) Though Art. accordingly. 31 has been omitted and a reference to Art. The above patchwork is bound to create confusion in the mind of a lay reader. be profitable to outline the vestiges of the right to compensation which survive the onslaught of the 44th Amendment . 31 has been omitted from Cl. with the omission of any reference to Art. to shield the 5 classes of laws specified in Art. (1) to Art. 31 itself has been deleted. 14 and 19. Article 31A. therefore. Curiously.
which is guaranteed by Art. the law of acquisition must provide for such compensation as would not abrogate the right of a minority ¶to establish and administer educational institution·.Vestiges of the right to property. two exceptions to this general position are allowed by the 44th Amendment in two cases of acquisition: (a) If the property acquired belongs to an educational institution established and administered by a minority. and comments thereon Though the mass of citizens shall no longer have any guaranteed right to compensation if this property is acquired or requisitioned and the Legislature shall have no constitutional obligation to provide for payment of any solatium to the expropriated owner. Shorn of . 30(1).
Though both the foregoing exceptions may be beneficial so far as they go. (b) If the State seeks to acquire the land which is personally cultivated by the owner and such land does not exceed the statutory ceiling. this means that if the State chooses to acquire a minority educational institution. the States must pay to such owner full market value of his land aw well as any building or structure thereon or appurtenant thereto.Innuendo. it must offer full market value or adequate compensation so that the minority community may set up that institution at a suitable alternative site. . there is much to comment from the standpoint or constitutional law as from the national standpoint.
---it is somewhat inexplicable why no institution. 31(2). the new provision in Art. the fathers of the 44th Amendment took no time to ponder that by eliminating Art. they were taking away a right which had been guaranteed to all persons in India. Is not education as pure and adorable whether it comes through the Ganges or the Jordan? In their over-zealousness overfor the addition of a special guarantee in favour of the minority which the fathers of the original Constitution did not envisage. Legally speaking. 30(1A) is a tail which has lost its head by the repeal of Art. 31(2). .---it such guarantee should be made in favour of educational institutions managed by members of a majority community.(i) As regards the concession in favour of a minority educational institution.
13 1977which stated---stated---´«. personal consumption and convenience. Are they less deserving? Would it not be pertinent to point pot in this context that even in the 1977-Constitution of the USSR. there was Art.The Personal property of citizens of the USSR may include articles of everybody use. The personal property of citizens and the right to inherit it are protected by the State«µ . He may be a day labourer. the implements and other objects of a small holding«. one fails to understand why similar right should not be guaranteed to a poorer man who has not an inch of agricultural land but has a humble hut to lay his head at night..or for building an individual swelling.(ii) As to the right of a small tiller of land to full compensation for his land and building or other structures. a petty pensioner or a landless peasant who tills another man·s land.
savings. and the duty of the State to protect this right would obviously mean that the State cannot acquire or deprive the owner of his dwelling house unless otherwise provided by the Constitution. at the same time guarantees to the individual to own personal property. The over-zealous political leaders of India should know that overthe provision in the 1982-Constitution of the Chinese 1982Republic. Art13. is in the same strain. 6 provides for social ownership of the ¶means of production·.In short. houses and other lawful property. in the USSR. every individual had the guaranteed right to hold and inherent a dwelling. too. Though Art. acquired by his personal income. irrespective of his being an agriculturist. ´The State protects the right to citizens to own lawfully earned income.µ .
even by legislation. In view of the drastic effects of the abolition of Arts.Article 39. further. declares. the Court would derive such right from the legislative power contained in Entry 42 of List III--III--·Acquisition and requisitioning of property·.µ The net result of the foregoing provisions seems to be that the State cannot take away an individual·s dwelling house and similar personal property. 19(1) (f) and 31(2). as a fundamental right. so that no question of compensation for compulsory acquisition may arise. that ´The citizens·«homes are inviolable. read with the common law doctrine of . some jurists in India have put forth their belief that the Supreme Court would come to the rescue of the expropriated owners by holding that notwithstanding the omission of such constitutionally guaranteed right to compensation.
¶Eminent Domain·. Unfortunately, it has not been possible for the Author to persuade himself to this anachronistic assumption for reasons which have been elaborately given in the Author·s bigger works. In the circumstances, there is a case for restoration of some relief for the poorer sections of propertypropertyowners (as distinguished from capitalists or owners of the means of production). But such relief can be more easily brought about by a further amendment of the Constitution than leaving it to the off-chances of off¶judicial amendment.·
Art. 32: Constitutional Remedies For Enforcement of Fundamental Rights
Abstract declarations of fundamental rights in the Constitution are useless, unless there is the means to make them effective. Constitutional experience in all countries show that the reality of the existence of such rights is tested only in the Courts. The power of the Courts to enforce obedience to the fundamental rights, again, depends not only upon the impartiality and independence of the Judiciary, but also upon the effectiveness of the instruments available to it to compel such obedience against the Executive or any other authority. Under the Anglo-American system, such means have found in the writs or judicial processes such as habeas corpus, mandamus, prohibition certiorari and quo warranto.
The Indian Constitution lays down the following provisions for the enforcement of the Fundamental Rights guaranteed by the Constitution, in the light of the above experience: (a) The Fundamental Rights are guaranteed by the Constitution not only against the action of the Executive but also against that of the Legislature. Any act of the Executive or of the Legislature which takes away or abridges any of these rights shall be void and the Courts are empowered to declare it as void [Art. 13]. The Supreme Court strikes at the arbitrary action of the State. It has jurisdiction to enforce the Fundamental Rights against private bodies and individuals and award compensation for violation of the Fundamental Rights. It can exercise its jurisdiction suo motu or on the basis of PIL.
(b) Apart from the power to treat a law as void for being contravention of the provisions of the Constitution guaranteeing the Fundamental Rights, the Judiciary has been armed with the power to issue the writs mentioned above (habeas, corpus, etc.,), in order that it may enforce such rights against any authority in the State, at the instance of an individual whose right has been violated. The power to issue these writs for the enforcement of the Fundamental Rights is given by the Constitution to the Supreme Court and High Courts [Arts. 32 and 226]. (c) The rights so guaranteed shall not be suspended except during a Proclamation of Emergency,---in the manner laid Emergency,---in down by the Constitution [Art. 359).
Commenting on this Article. Ambedkar said---- . a proceeding under Art. Article. 226 or by way of defence to legal proceedings brought against an individual. 32 is described by the Constitution as a ¶constitutional remedy· for the enforcement of the Fundamental Rights included in part III and the right to bring such proceeding before the Supreme court is itself a fundamental right in Part III. Though a fundamental right may be enforced by other proceedings. or an application under Art.Special Features of the jurisdiction of the Supreme Court under Art. such as a declaratory suit under the ordinary law. 32 is thus the cornerstone of the entire edifice set up by the Constitution. 32. in the Constituent Assembly. Dr. a proceeding brought against an individual.
´If I was asked to name any particular article of the Constitution as the most important---an article without important---an which this Constitution would be a nullity---I would not refer nullity---I to any other article except this one. whichever may be appropriate for the enforcement of any of the rights conferred by this Part. quo warranto and certiorari. (1) and (2) of Art. including writs in the nature of habeas corpus. 32 should be noticed: ´(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.µ . prohibition. mandamus. It is the very soul of the Constitution and the very heart of it. (2) The Supreme Court shall have power to issue directions or orders or writs.µ The relevant provisions in Cls.
refuse to entertain applications seeking protection against infringement of such right. 32 cannot be refused merely on this ground where a Fundamental Right appears to have been infringed. though a writ may ordinarily be refused on the ground that the petitioner has another adequate legal remedy open to him. 32. The Supreme Court is thus constituted the protector and guarantor of Fundamental Rights. thus. .(a) Art. being included in Part III. and this remedial rights is itself made a Fundamental Rights. on technical grounds. Thus. and it cannot. provides a guaranteed remedy for the enforcement of those rights. an application under Art. consistently with the responsibility so laid down upon it.
he has no right to complain under Art. 32. where no ¶fundamental· right has been infringed. On the other hand. 32 is the enforcement of the Fundamental Rights guaranteed by the Constitution.Whatever other remedies may be open to a person aggrieved. unfettered by the technicalities of the English ¶Prerogative writs·. .---The sole object of Art. For the same reason.(b) The Supreme Court can make any order appropriate to the circumstances. no question other than relating to a Fundamental Right will be determined in a proceeding under Art. 32.---hand.
¶Prerogative Writs·. certiorari and quo warranto. on the ground of inadequacy or ordinary legal remedies. In course of time these writs came to be issued by the High Court of Justice as the agency through which the Sovereign exercised his judicial powers and these prerogative writs were issued as extraordinary remedies in cases where there was either no remedy available under the ordinary law or the remedy available was inadequate. The expression ¶prerogative writ· is one of the English common law which refers to the extraordinary writs grated by the Sovereign.These writs are---habeas corpus. . as fountain of justice. prohibition. mandamus.
32 of the Constitution the Supreme Court has the power to issue these writs only for the purpose of enforcement of the Fundamental Rights whereas under Art. for which. the power of the High Courts to issue these writs is wider than that of the Supreme Court inasmuch as under Art. .Difference between the Jurisdiction of the Supreme Court and the High Courts to issue writs. owing to contravention of the ordinary law. provided certain conditions are satisfied. 226 a High Court can issue these writs not only for the purpose of enforcement of Fundamental Rights but also for the redress of any other injury or illegality. In a sense.
a High Court can. 286. where a State Legislature has imposed a sales tax in contravention of the limitations imposed by Art. e. 32 shall not lie in any case unless the right infringed is a ¶Fundamental Right· enumerated in Part III of the Constitution. 226. under Art.Thus. But an application under Art.---(a) an application to a High Court under Art. (b) Another point of distinction between the two jurisdictions is that while the Supreme Court can issue a writ against any person or Government within the territory of India.. issue a writ against any person. has been violated. Government or authority is physically resident or located within the territorial .---(a) Thus.g. 226 will lie not only where a Fundamental Right has been infringed but also where some other limitation imposed by the Constitution. outside Part III. Government or other authority only if such person.
that is.µ by Art. within the State to which the territorial jurisdiction of the particular High Court extends or if the cause of action arises within such jurisdiction.Jurisdiction of the High Court. As stated earlier. the Supreme Court has been assigned by the Constitution a special role as ´the protector and guarantor of fundamental rights. 32(1) .
modify it to suit the exigencies of the case.The Supreme Court as the guardian of Fundamental Rights. 32 on the ground--(a) that the aggrieved person may have his remedy from some other Court or under the ordinary law. Where. In such a case. therefore. the infringement of a Fundamental Right has been established. any person may move the Court. (d) Generally only the person effected may move the Court but the Supreme Court held that in social or public interest actions. the Supreme Court cannot refuse relief under Art. . if necessary. the Supreme Court must grant him the proper writ and. or (b) that the petitioner has not asked for the proper writ applicable to his case.
where the Supreme Court invalidated s. The section was as follows: .e.This is called expansion of the ¶right to be heard·. This was illustrated in the leading case of Gopalan v. 1950.. the Supreme Court has admitted exceptions from the strict rules relating to affidavit locus standi and the like in the case of a class of litigations classified as ¶public interest litigation· (PIL) i. as it originally stood. State of Madras. 14 of the preventive Detention Act. It favours Public Interest Litigation. Another consequence which results from the guarantee of the constitutional remedy under Art. where the public in general are interested in the vindication of some right or the enforcement of some public duty. Following English and American decisions. 32 is this: Not only is this remedy immune from being overridden by legislation but any law which renders nugatory or illusory the Supreme Court·s power to grant this remedy shall be void.
allow any substatement to be made or any evidence to be given before it or the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order. . no Court shall be entitled to require any public officer to produce before it. except for the purpose of a prosecution for an offence punishable under sub-section(2). and notwithstanding anything contained in any other law. or to disclose the substance of. or the proceedings of an advisory board or that part of the report of an advisory board which is confidential. any such communication or representation made.´(1) No Court shall.
as the case may be. or with both for any person to disclose or publish without the previous authorisation of the Central Government or the State Government. a discretionary remedy .(2) It shall be an offence punishable with imprisonment for a term which may extend to one year.. It is. however. any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1)«. subThe fundamental basis of the proceeding of quo warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. or with fine.
thus.Where the application challenges the validity of an appointment to a public office.Which the Court may grant or refuse according to the facts and circumstances of each case. be refused where it is vexatious or where it would be futile in its result or where the petitioner is guilty of laches or where there is an alternative remedy for outsing the usurper. Quo warranto is thus a very powerful instrument for safeguarding against the usurpation of public offices. it is maintainable at the instance of any person. . A writ of quo warranto may. whether any fundamental or other legal right of such person has been infringed or not.
In exercise of this power. Police Forces or intelligence organisation so as to ensure proper discharge of their duties and maintenance of discipline amongst them [Art. 1957. Rights.Parliament·s power to modify or restrict Fundamental Rights. which empower the Central Government to make Rules restricting the fundamental rights of the defence . 33]. The limitation upon the enforcement of the Fundamental Rights are as follows: (i) Parliament shall have the power to modify the application of the Fundamental Rights to the members of the Armed Forces. Parliament has enacted the Army and Air Force Acts of 1950 and the Navy Act.
None of these grounds are.---which is absolutely discipline. named All India Muslim Forum. 33 of the Constitution of India. however. tenable in view of the express provision in Art. By a Circular issued under such Rules.Personnel.---which essential to maintain the security of India. for the sake of discipline. firstly. Nor does the argument that the withdrawal of such concession would be contrary to the guarantee of secularism hold water because. Government of India has ordered that no concession can be offered in favour of any member of the Defence Forces for the purpose of offering prayers during office hours. . has raised objection against grounds. It is a pity that a fundamentalist Muslim Organisation. which silences the argument that no such restriction was imposed in respect of Muslims during the British regime and also that it would hurt the ¶sentiments· of the Muslims.
Above all. Secondly. no question of discrimination against Muslims can possibly arise. in which Art. this dangerous move should be nipped in the bud before it assumes an uncontrollable situation. Needless to say. 25(1) makes it ¶expressly· subject to the other provisions of this Part. anti- . 33 is included.Art. regardless of his religious beliefs or rites. Any softness shown to it would be anti-national. the defence of the nation is a secular duty of each citizen of India. in the name of Muslims ¶sentiment·. Nothing can be allowed by the independent Republic which can possibly jeopardise the defence of the Nation. If no such concession exists in favour of the members of any other religion. 25 guaranteed is equality of treatment as amongst different religions. what Art.
of course. . which is spread over one month. by law. on the ground of Ramzan. (ii) When martial law has been in force in any area. Parliament may. 1995. indemnify any person in the service of the Union or a State for any act done by him in connection with the maintenance or restoration or order in such area or validate any sentence passed or act done while martial law was in force [Art.A similar instance was the claim of a section of Muslims to postpone the elections fixed for February. been turned down by Ramzan. This has. 34]. the Election Commission on the ground that no such religious plea can stop the electoral process. It is also doubtful if there is any religious scripture which requires Muslims to suspend their normal duties on the days of fasting.
The effect of such Proclamation in this behalf is twofold--(a) As soon as a Proclamation of Emergency is made. . assembly. movement. even though it contravenes or restricts the right of freedom of speech and expression. This means that the Legislature shall be competent to make any law and the Executive shall be at liberty to take any action.Suspension of Fundamental Rights during Proclamation of Emergency (iii) The fundamental rights guaranteed by the Constitution will remain suspended. while a Proclamation of Emergency is made by the President under Art. 19. 352[See post]. the State shall be freed from the limitations imposed by Art. association.
profession or occupation. But the citizen shall have no remedy for acts done against him during the period of the Proclamation. So far as these rights are concerned. 358]. (b) The other consequence depends upon the issue of a further Order by the President. 358 will revive as long as the Proclamation itself remains in operation. Art. the citizen shall thus have no protection against the executive or legislative authorities during the operation of the Proclamation of Emergency.residence. 19 will revive as soon as the Proclamation expires.Where a Proclamation of Emergency is in operation. the President may be Order declare that the right to move a Court for the enforcement of any of the Fundamental Rights shall . in violation of the above rights [Art.The enlargement of the power of the State under Art.
and it will be within the competence of Parliament to disapprove of it. be laid before each House of parliament. including those which are conferred by the Articles other than Art. or earlier. shall not be final. the Supreme Court and the High courts shall be powerless to issue the prerogative writs or to make any other order for the enforcement of any fundamental right. 19 with the exception of those conferred by Arts. . Such Order shall. if such an order issued. 359]. This Order of the president. In such a case. 20 and 21. however. as soon as may be after it is made. In other words. however. the right to move the Courts would be revived after the Proclamation ceases to be in force. if so specified in the President·s order.remain in force [Art.
358 or 359 only if the law in question contains a recital to the effect that it has been made in relation to the Proclamation of Emergency. 359. 1978. 1978 44 The 44th Amendment Act. two other matters must be mentioned which limit the operation of the Fundamental Rights. Secondly. has further provided that a law or executive order will be shielded under Art. As the Constitution stands today. and the executive order has been issued under such law. as they were devised in the 1949-Constitution. Arts. 20-21 cannot be suspended by any Order under Art. These are: .The th Amendment. and are not confined to times of ¶Emergency· nut operate even in normal times.
and II.I. constitute exceptions to the application of Fundamental Rights wholly. 31D has subsequently been repealed (by the 43rd Amendment Act. 31A-31D. 1977). Arts. Art. introduced by successive 31Aamendments. The exceptions to Fundamental Rights. or partially. The Fundamental duties Exceptions Fundamental Rights I. Of these. .
(iv) To defend the country. which has been inserted by the 42nd Amendment Act. unity and integrity of India. The Fundamental Duties are ten in number. it shall be the duty of every citizen of India--(i) To abide by the Constitution and respect the National Flag and the National Anthem. Under this Article. . (iii) To protect the sovereignty. 51A [Part IVA]. (ii) To cherish and follow the noble ideals which inspired our national struggle for freedom. incorporated in Art. 1976.Fundamental Duties II.
(vii) To develop the scientific temper and spirit of inquiry. (vii) To protect and improve the natural environment. (ix) To safeguard public property. (vi) To preserve the rich heritage of our composite culture.(v) To promote the spirit of common brotherhood amongst all the people of India. . (x) To strive towards excellence in all spheres of individual and collective activity.
they all were proud to regard themselves as participants in a common heritage. (f) of Art. and that heritage. To quote the Supreme Court--´Though the people of this country differed in a number of ways.µ . it involved in the expression ¶composite culture· in Cl. In this context. emphatically. 351µ. 51A. is the heritage of Sanskrit.Composite would be better to remove a misnomer culture.---apart from the duty of the Government under Art.The Supreme Court has now pointed out that the foundation of this composite culture is the Sanskrit language and literature which is the great binding force ´for the different peoples of this great country and it should be preferred in the educational system for the preservation of that heritage.
. Because of its wonderful tolerance.Thereafter this country was subjected to Muslim and British rule. Our religious tolerance (thus) received reflections in our Constitutional creed [para 126].The reason is that the original population of India was Hindu. ´Hindu religion developed resilience to accommodate and imbibe with tolerance the cultural richness with religious assimilation and became a land of religious tolerance [para 118]«each religion made its contribution to enrich the composite India culture as a happy blend or synthesis. the Hindu culture imbibed these alien cultures and thus grew up a ¶composite culture· in India [para 118].
But it may be expected that in determining the Constitutionality of and law. destroying public property and the like. It would also serve as a warning to reckless citizens against anti-social activities such as burning the Constitution. if a Court finds that it seeks to give effect to any of these Duties. there is no provision in the Constitution for direct enforcement of any of these Duties nor for any sanction to prevent their violation. and thus save such law from unconstitutionality. 14 or 19. . it may consider such law to be ¶reasonable· in relation to Art.Enforcement of Fundamental Duties Of course.
in appropriate cases. issue suitable directions in these matters. therefore.The Supreme Court has held that since the Duties are obligatory for a citizen. it would follow that the State should also strive to achieve the same goal. . The Court may.