CHAPTER V

Fundamental Rights, Directive

r Principles & Fundamental Duties -

Nature and Scope - Changing Constitutional
Balance - Reconciliation - Expansion in the
Nature and Scope of Rights - Equality
- Freedom - Right to Life & Personal
Liberty - Right to Religion -
Secularism - Social Justice.
Fundamental Rights - Nature & Scope :

The existence of certain basic rights is necessary in a free and

civilised society for creating the conditions for the best possible development
of each individual. These rights are nothing other than those conditions of
social life without which no man can seek what is best in him

Rights may be either statutory or constitutional. When a right

is enacted in an ordinary law of the land it is a statutory right. And when
the Constitution guarantees any right it assumes the status of constitutional
right.

In the modern age, the people have been yearning to get their
basic rights recognised by rules in order to make their lives better and
happier. This process started when the people of England demanded an
assurance from King John for respecting of their ancient liberties. So he
made the Magna Carta!, the first written document on Fundamental Rights
of citizens. Though it was basically a feudal charter, it marked the
beginning of the history of constitutionalism and rights of the people over
the absolutism of medieval monarchs.

In the U.S.A., the people suffered tremendously at the hands of

the British colonialists. Therefore they struggled hard to get their cherished
freedom. When they attained their goal, then a conference of the
representatives of various states was held, which was known as the
Continental Congress. It has adopted “the Declaration of Independence

Rights in U.K. and U.S.A. :

The Constitution of Britain is unwritten. But that does not

imply that Britain does not recognise those basic rights to her citizens

1. Magna Carta : The Great Charter of Liberty, 1215 A.D.

which are required for their fullest development. Those rights are secured in
Britain through different instruments. The Constitution of the United States
guarantees the basic rights of the citizens in the Bill of Rights contained in the
First Ten Amendments of the Constitution. The founding fathers of the American
Constitution were against guaranteeing rights in the text of the Constitution on
the ground that in such a case those rights guaranteed in the Constitution would
be treated as an exhaustive list of the rights to be protected, thus leading to
encroachment on the rights not listed. Despite their unwillingness on the above
grounds to incorporate the rights in the Constitution, the founding fathers were,
however, forced to incorporate the basic rights in the first Ten Amendments
adopted immediately after the commencement of the Constitution of the United
States2.

The fundamental difference between U.K. and U S A. is that while

the English were quite apprehensive of the tyranny of the executive and were
anxious to preserve their liberty, the framers of the American Constitution not
only feared the arbitrary powers of the executive, but also the legislature which
might be swayed by the transient majority of the ruling party. Therefore, the
fathers of the American Constitution provided a Bill of Rights which is binding
upon the Legislature as well as Executive So, it has become the duty of the
Supreme Court of U.S.A. to protect the Fundamental Rights enshrined in the
Constitution from the onslaught of both Congress (legislature) as well as the
executive. As a result the system of judicial review has been established. There
were no Fundamental Rights in England and the Parliament can amend the
constitutional as well as ordinary laws in the same manner. However, no law of
the British Parliament can be struck down by the courts. Though legally it is true
but in practice it is not so because due to the democratic set up, the British
Parliament cannot make any such law even though there is no system of judicial
review in England unlike USA; but still the Individual Is not powerless before
the executive excess or tyranny The

2. The 9in Amendment takes care of unlisted rights by declaring “The enumeration m :ti.)
Constitution of certain rights, shall not be construed to deny or disparage others retained l>y the
people”.
 134

judiciary has become the guardian of the individual rights in England 1 hey give
protection to the citizens against the arbitrary powers of the executive under the
Magna Carta (1215), Petitions of Rights (1628), Bill of Rights (1689) and Habeas
Corpus Act (1679) and other Parliamentary Acts and judicial decisions.

Rights in France, USSR, Canada, China and Japan :

The rights of man were incorporated in the Constitution of France

in the 18th century. Similarly in the 20th century also some very important rights
have been incorporated in the Constitutions of Nigeria Canada etc.

The people of France made a "Declaration of the Rights of Man”

and laid emphasis on equality, liberty and fraternity. The Constitution of France
(1977), USSR (1982) and Japanese Constitution (1947) all embody the
Fundamental Rights. The Charter of Fundamental Rights and Freedom
incorporated in 1982 in the Constitution of Canada makes Canada a fully
democratic state and places it in the same line as of USA and India.

The rights given by the Meiji Constitution in Japan were not rights
as they were not constitutionally safeguarded. The present Constitution
elaborately enunciated these rights and declares them justiciable. The
Fundamental Rights have been described in Chapter HI of the Constitution. The
inclusion of these rights is the crux of the new political system of Japan.

The new Constitution of China like that of the old incorporates the
Fundamental Rights. Hence the Chinese boast of their Chapter of
Rights and call it most extraordinary Bill of
Rights ever known to history But rights in China
as in the former Soviet Union are non-
.justiciable.

Fundamental Rights in the Constitution of India :

There is a historical reason for the

inclusion of Fundamental Rights in our
Constitution. The Indian National Congress had
been, from time to time, proclaiming its resolve
to frame the Constitution of India on the basis a
of human rights. The National Congress, in itsn
Madras Session in 1928 and in its Karachith
Session in 1933 and on many other occasionse
raised the question of securing Fundamental
Rights to the people of India but the British
authorities did not show any inclination in this
direction The
Congress leaders who got
elected to the Constituent
Assembly took it opportunity to
include a chapter on
Fundamental Rights in
Constitution.
Our Constitution followed the American
precedent and
enacted Fundamental Rights and also
provided effective means for their
enforcement. It was done by way of
equipping the Supreme Court and the High
Courts with the power to issue writs of
Habeas Corpus, Mandamus Prohibition,
Certiorary and Quo-warranto etc. The
Constitution went a step further and by
Article 32 made the right to move the
Supreme Court for appropriate writ as a
Fundamental Right.
The Constitution of India
incorporates the Fundamental Rights
which form Part III of the
Constitution. The Part III of the
Constitution consists of 26 Articles
which are arranged under the
following sub- headings :
(1) Articles 12 and 13, (2) Right to Equality
(Articles 14 to 18), (3) Right to Freedom
(Articles 19 to 22), (4) Right against
Exploitation (Article 2d &
 1 36

24), (5) Right to Freedom of Religion (Articles 25 to 28), (6) Cultural and
Educational Rights (Articles 29 and 30), (7) Right to Property [Articles 31 31 A,
31B and 31C (now deleted)], (8) Right to Constitutional Remedies (Articles 32 to
35).

To make Fundamental Rights more effective, Article 12 defines “the

state” and Article 13(3)(a) defines “law" very widely.

Under Article 12 the “State" includes (i) the Government and

Parliament of India, (ii) The Government and the Legislatures of each of the
States, (iii) all local authorities like Municipalities, District Boards Panchayats,
Improvement trust etc. and (iv) the authorities within the territory of India or under
the control of Government of India. The last category “other authorities” has been
held to include all authorities created, by the Constitution or statutes on whom
powers are conferred by law, for example, The Life Insurance Corporation, The
Oil and Natural Gas Commission and the Finance Commission have similarly
been held to be “State" under Article 12. The Supreme Court holding the authority
in the category of “other authorities" propounded that an agency of the
government would be regarded as an “authority” or “State” and also laid down
some tests to examine the same. In regard to judiciary, the Supreme Court has
held that even if a court is treated as “State” a writ under Article 12 cannot be
issued to a High Court of competent jurisdiction against its judicial orders,
because such orders cannot be said to violate the Fundamental Rights.

Article 13 has been considered in several cases and has been the
subject of conflicting decisions of our Supreme Court. Before discussing these
decisions, it is necessary to consider the meaning of “law" and "law in force”.
Article 13(3)(a) defines “law” very widely to include (i) an ordinance, because it
is made in the exercise of the legislative powers of the executive, (ii) an order, bye
law, rule, regulation
 13/

and notification having the force of law, (iii) customs or usage having the force of
law because they are not enacted laws at all. The expression law in force” is used
in Article 13(1) and in Article 372 and is defined in identical terms by Article 13(3)(b)
and Article 372. The expression "existing law” is used for example in Article 19(2)
to 19(6) and the difference in the definition of "existing law” and "law in force" has
been relied upon to support the argument that existing law narrower than law m
force for whereas by express definition “law in force” includes a law if it is not in
operation at all, or not in operation in a particular area, a law cannot be said to
exist if it is not in operation. Personal laws do not come within the scope of “laws
in force”3 - law includes any ordinance, order, bye law rule, regulation,
notification, custom or usage having the force of law4

In S.P. Singhdeo Vs. Union of lndia5 the Supreme Court

unanimously held that an amendment of the Constitution was not la w within Article
13(3)(a) of the Constitution. In Golak Nath case6 that view was overruled but the
view expressed in Golak Nath's case was subsequently overruled in
Keshavananda Bharati’s case? and it was reaffirmed by the Supreme Court that
the expression “law" in Article 13 did not include an amendment of the
Constitution. The matter has, however been set at rest by the Constitution (24th
Amendment) Act 1972 which by inserting a Clause (4) to Article 13 has expressly
laid down that Article 13 shall not apply to any amendment of the Constitution
made under Article 368. In Kesavananda Bharati's case it was laid down that
though the Fundamental Rights constituted no limitation on the amending power
yet there were other limitations, namely, that the amendment of the Constitution
could not alter the basic structure of the Constitution or to make new Constitution.
The Clause (4) and (5) of Article 368 of the Constitution inserted by the 42nd
Amendment Act 1976 have declared that there are no limitations expressed or
implied upon the amending power of the Constitution under Article 368 (1) which
is a constituent power and

3. State of Bombay Vs. Narain Appa Mali AIR 1952 Bom 84; Sheo Kumar Vs. Smt Sudama Devi AIR
1962 Pat 125 (126)
4. Dasaratha Rama Rao Vs. State of AP AIR 1961 SC 564 (570-572)
5. Sankari Prasad Singh Deo Vs. Union of India AIR 1951 SC 458
6. Golak Nath Vs. State of Punjab AIR 1967 SC 1543; (1967)2 SCR 762, (1967)2 SCJ 586
7. Keshavananda Vs. State of Kerela AIR 1973 SC 1461; (1973)4 SCC 225
 138

that a Constitution Amending Act shall not be subject to the judicial review in
any court on any ground. But in Minerva Mills Vs. Union of lndia8 the
Constitution Bench of the Supreme Court has declared Clause (4) and (5) of
Article 368 of the Constitution invalid on the ground that these provisions
introduced by 42nd Amendment Act 1976 sought to exclude judicial review
which was one of the basic features of the Constitution as held in
Keshavananda Bharati’s case and that so long as thqt decision stands all
Constitution Amendment Acts shall be open to judicial review by the Supreme
Court or High Court to see whether such Amending Act affected any of the
basic features or other procedural safeguards in Article 368.

The enforcement of Fundamental Rights by the courts is part of

the administration of justice. In guaranteeing Fundamental Rights and in
providing the means for their enforcement through courts of law. our Constitution
has not abrogated conditions relevant to the administration of justice. The
securing of justice is one of the objectives of our Constitution

Fundamental Rights are guaranteed under the C onstitution and

are incorporated in Part III.

Right to Equality :

Equality before the law prescribed in Article 14 of the

Constitution of India which states as below :

The state shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.

The doctrine of equality before the law is a necessary corollary

to the high concept of rule of law accepted by the Constitution

8, Minerva Mills Vs. Union of India AIR 1980 SC 1789

 39

Article 14 refers to "Equality before law" which is an expression of “ English Common Law" and “Equal Protection of Laws” which owe its
origin

to the

14,h Amendment of the Constitution of United States of America. Article 14

indicates that these are separate concepts by the use of disjunctive "or'

“Equality before law” is a negative concept and "Equal protection of

law” is a positive one. The former declares that every one is equal before law, that
no one can claim special privilege and that all classes are equally subjected to the
ordinary law of land. The latter postulates an equal protection under like situation
and under like circumstances. Therefore, the discrimination can be made either in
the privilege conferred or in the liabilities imposedg. Equal protection clause aims
at striking down hostile discrimination or oppression of inequality^

Scope : The Supreme Court in Dalmia's casen has considered all the previous cases
on the true meaning and scope of Article 14 and have summarised the following
propositions to see whether any law violates Article 14 or not. The Supreme Court
declares that Article 14 condemns discrimination not only by substantive law, but
also by the procedural law that though it forbids classification and that permissible
classifications shall satisfy the following two conditions.

1. It must be founded on an intelligible differentia which distinguishes persons or

things which are grouped together from others left out of the group; and

2. the differentia must have a rational relation to the object sought to be achieved
by the statute in question.

In Anwar Ali Sarkar’s case^, the Supreme Court has however,

cautioned that the differntia and object are different elements and it follows that
the objects by itself cannot be the basis of classification. In Balsara's casei3, Fazal
Ali Justice has observed that in
9. State of U.P. Vs. Deoman AIR 1960 SC 1125
10. Ram Prasad Vs. State of Bihar AIR 1953 SC 215, Lachaman Das Vs. State of Bombay AlH
1952 SC 235
11. Dalmla Vs. Tendolkar AIR 1958 SC 538; 1959 SCR'279
12. 1952 SCR 34
13. State of B om b ay Vs. F.N . B alsara 1951 SCR 682; pp 709 -710
 1no

permissible classification mathematical nicety and perfect equality are not

required. In Dalmia’s case the Supreme Court has also laid down that the
classification may be founded on different bases, namely, geographical or
according to objects, occupations or the like. In Balsara’s case the Supreme
Court has observed that, if law deals equally with the members of a well defined
class, it cannot be struck down on the charge of denial of equal protection on
the ground that it has no application to other persons In Dalmia's case the
Supreme Court has also stated that even a single individual may be a class by
himself on account of some special circumstances or reasons applicable to him
and not applicable to others and that the legislature is free to recognise degrees
of harm and may confine its restrictions to those cases where the need is
deemed to be the clearest.

Applicability of Article 14 :

Article 14 of the Constitution can have no application where the

source of authority of the Parliamentary and state legislation are different14.
Article 14 applies to the citizens as well as non-citizens found in Indiais. The
principle of discrimination laid down under Article 14 of the Constitution should
not be applied to a case under Article 19 unless it involves identical situation,
factual and legal^. What was once a perfectly valid legislation may, in course of
time, become discriminatory and liable to challenge on the ground of its being
violative of Article 14 of the Constitution^.

Reasonable Classification :

The Supreme Court has also in several cases laid down that the
state can also be treated as a class by itself is
14. Bar Council, UP Vs. State AIR 1973 SC 231; (1973) 1 SCC 261
15. Dorai Rajan Vs. State of Madras AIR 1951 Mad 120 (FB)
16. Deena Vs. Union of India AIR 1983 SC 1155
17. Rattan Arya Vs. State of Tamil Nadu AIR 1986 SC 1444; Motor General Traders Vs State • ( AP
AIR 1984 SC 121
18. Mannalal Vs. Collector of Jhalwar AIR 1961 SC 828; Lachman Das Vs. State of Punjab A in 1963
SC 1234
 The expression “equal protection of laws” means the right to equal
treatment in similar circumstances. Article 14 . ensures equality among equals
protecting persons similarly placed against discriminatory treatment. A person
challenging an act as discriminatory must establish that between persons
similarly placed some were treated to their prejudice and the differential
treatment has no reasonable relation to the object sought to be achieved by the
law19.

Reasonable classification of properties for conservancy

changes2o, reasonable classification for persons with reference to grant of
import Iicences2 i, reasonable classification for sales tax22l for income tax>3
etc. do not infringe Article 14 of the Constitution. But a fiscal law violates Article
14 if it introduces unreasonable discrimination between persons or property
either by classification or lack of classification^. Even different though parallel
laws in different areas of the state can be permitted on the ground that the
difference apart from the historical reasons and such geographical classification
based on historical reasons is reasonable classification^. Granting monopoly to
state in respect of transport services by preparing a scheme under Chapter VI A
of the Motor Vehicle Act 1939 is not violative of Article 1426. Fixing different
minimum wages for different industries in a state or for different localities within
the state is permissible27 . Classification of direct recruits and promotees for the
purpose of promotion is reasonable28. Fixing of different minimum wages for
different industries having regard to different economic and local conditions is
reasonable2g. Treating pending cases as a class of different from decided cases
is pemissible30.

19. UP Electric Co. Vs. State of UP AIR 1970 SC 21

20. Anant Mills Co* Ltd. Vs. Aryodaya Spg & Wvg. Mills Co. Ltd. AIR 1975 SC 1234
21. J. Fernandes & Co. Vs. Dy. Chief Controller of Imports & Exports AIR 1975 SC 1208
22. State of Bombay Vs. United Motors AIR 1953 SC 252; East India Tobacco Co. Vs State o * AP AIR 1962
SC 1733; C.K. Krishna Murthy Vs. State of Orissa AIR 1964 SC 1581
23. Sukhlal Vs. Income Tax Officer AIR 1959 Cal 4443; ITO Shillong Vs. NTR Rymbai AIR 1976 SC
670
24. N.M.C.S. Mills Vs. Municipal Corporation (1967)2 SCR 679; State of Kerela Vs Haji Alt-1969 SC 378

25. Anant Prasad Lakshlnlvas Gunerlwal Vs. State of AP AIR 1963 SC B53
26. J.Y. Kondala Rao Vs. AP State Transport Corporation AIR 1961 SC 82
27. Chandra Boarding & Lodging Co. Vs. State of Mysore AIR 1970 SC 2042
28. C.A. Rajendra Vs. Union of India AIR 1968 SC 507
29 Anand Mills Co, Ltd, Vs, Aryodaya Spg ft Wvg. Mills Go I tri. AIR 1075 SO 1234
30. Anand Mills Co. Ltd. Vs. Aryodaya Spg ft Wvg. Mills Co. Ltd. AIR 1975 SC 1234
 14?

Classification held to be not discriminatory :

Instances of some cases :

Distinction made between ex-servicemen re-empioyed prior to 1s’

January 1988 and those appointed thereafter is not discriminatory3.

The choice of date as a basis for classification cannot always be

dubbed as arbitrary even if no particular reason is forthcoming for the choice
unless it is shown to be capricious or whimsical in the circumstances32.

The power of legislature in taking statutes to classify is of wide

range and flexibility so that it adjusts its system of taxation in all proper and
reasonable ways. Keeping the above principles in view, there was no violation
of Article 14 of the Constitution in treating pending cases as a class different
from the decided cases. So long as the classification made by the state in the
taxing statute is within the wide and flexible range, the taxing statute does not
transgress the fundamental principles underlying the doctrine of equality. So, a
taxing statute is not unreasonable on the ground of discrimination merely
because it taxes or exempts from tax some incomes of objects and not others3
3 .

Two avenues of promotion for the members of the Scheduled

Castes and Scheduled Tribes while a single avenue of promotion is available to
other state Government servants would not violate Article 14 15 and 16 of the
Constitutions,*.

A memorandum enabling the use of IAF aircraft by the Prime

Minister for non-official purposes is not violative of Article 14 because such use
is held to be in the public interest35 .
31. O.K. Udaysankaran Vs. Union of India AIR 1996 SC 1901; (1996)8 SCC 271, 1996 SCt
(L&S) 893
32. Union of India Vs. P.M. W orks AIR 1974 SC 2349; U.G.C. Vs. Sadhana (1996)10 SCC
536
33 ITO V, NTR Rymbal AIR 1976 SC fi/O
34. S.S. Sharma Vs. Union of India AIR 1981 SC 588
35. P.V. Shastrl Vs. Union of India AIR 1974 Del 1 (FB)
 14 3

Indian Telegraph Rules 1951 provides that in the matter of

allotment of telephone connections the demands of certain categories of
applicants should be met on preferential basis. The applicants for allotment of
telephone connections have been divided into three categories, namely : (1)
D.Y.T. Scheme, (2) Special Category and ( 3 ) General Category. Hence
classification of the applicants who are entitled to be registered as special
category like medical profession, newspaper small scale industries subserving
the good of general public is not violative of Article 14 of the Constitution36.

Non inclusion of Rajasthani language in Schedule VIII of the

Constitution while Manipuri, Kankani and Nepali were included therein cannot
be challenged as violative of Article 14 which is a part of basic structure of the
Constitutions/.

Coal India Limited introduced Leave Travel Concession scheme

for the employees once in a block of four years. The scheme was modified by
a resolution dated 14th September 1996 in which option of encashment was
provided which came into force prospectively from ' :t January 1997. The cut
off date has been challenged as arbitrary. The date has been decided as a
policy and was made applicable to all employees uniformly. The choice of
date is not arbitrary38. Plea of discrimination cannot be sustained when a
particular provision is a qualification as distinguished from classification.
When the Corporation introduced a scheme for retirement facilities which
could be availed of if the employees concerned have completed minimum
qualifying service in the Central State Government / Public Sector
Undertaking out of which a minimum five years service shall be in NTPC it is
not a classification but a qualification. An employee not putting in five years of
service in NTPC cannot challenge the scheme as arbitrary39.

36. Shankar Barm lwal Vs. Union of India AIR 1982 Raj 187(FB)
37. Kanhaya Lai Sethia Vs. Union of India (1997)6 SCC 573
38. Rabindranath M ukhopadhyaya Vs. Coal India Ltd. (1997)4 SCC 252; 1997 SCC (L&S) 8a;-1997 (2) SLR
394
39. NTPC Ltd. Vs. K.V. Ramgaiah (1997)11 SCC 597
 '4 4

The Railways by their circular dated 14th October 1980 partly

treating temporary status service of open line casual labour on their
regularisation as qualifying service for pension. Project, casual labour was
not included in the scheme originally. But the scheme was extended to them
also with the approval of the Supreme Court but benefit was extended from
1st January 1981. When the project casual labour raised the plea of
discrimination, the Supreme Court has negatived the plea on the ground that
when the scheme was introduced to them from 1st January 1981 only, the
plea of discrimination cannot be sustained40.

Exemption from the import duty of edible oil granted to the

State Trading Corporation and not to private importers is in public interest
and the classification is reasonable and not violative of Article 144I •

The classification of newspapers into small, medium and big

newspapers for the purpose of levying concessional duty is not violative
of Article 1442,

The benefit conferred on a widow under S.14D of the Delhi

Rent Control Act 1958 applying for eviction of the tenant from her
premises is not violative of Article 14 because the widow is per se
different from the class whose rights have been protected by S.14(1)(e)
of the Act43.

Thus equality clause applies to every person, citizen or non-

citizen^. And the court’s interpretation of this clause seeks to ensure both
individual and social good.

Prohibition of Discrimination :

Article 15 of the Constitution of India states as follows.

40. U nion of India V s. K .G . R a d h akrish n a P a n ike r A IR 1998 SC 2073S 1998 Lab IC 1902
41. M. J h a n g ir B ha tn sh a V s. U nion of India A IR 1989 SC 1713
42. L .E . N ew spapers (B om bay) (P) Ltd . V s. U nion o f India A IR 1986 SC 515
43. K .L. M alh o tra Vs. P rakash M ehra A IR 1991 SC 99; (1991)4 SCC 512
44. N ational H um an R ights C om m ission V s. S tate o f A ru n a ch a l P radesh A IR 1996 SC 1234
 145

Prohibition of discrimination on the grounds of religion, race

caste, sex or place of birth.

It is only a citizen who is entitled to the benefit of this article

Article 14 on the other hand is available to all persons.

The mandate of Article 15 clearly extends to political as well as

other rights. Therefore, the law of election on the basis of separate electorates
for members of different religious communities violates Article 1545. state
cannot make classification of the socially and educationally backward classes
only on the consideration of caste46. But the reservations of the members of a
caste being a class of citizen can be made if the caste as a whole is socially
and educationally backward in view of clause (4) of Article 1547. Discrimination
based on place of birth does not extend to provision on the basis of residence;
so discrimination on the ground of residence does not attract Article 1548.
Reservation of seats in a medical college for candidates of rural areas
contravenes Article 15, but reservation of candidates for the hill areas does
not49 But where reservation is made for candidates residing in a geographical
area socially and educationally backward, the same does not violate Article 15,
because of clause (4)so.

In Indra Sawhney Vs. Union of lndia51, the Supreme Court has

held the special provision contemplated by Article 15(4) is an emphatic
reference to the affirmative action which the state may adopt to improve the
conditions of the disadvantaged members of the backward classes of citizens
and that it significantly does not specifically speak about reservation but it has
been generally understood to include that power

The object of protective discrimination [Article 15(4)] is to

45. Nainsukh Vs. State of UP AIR 1953 SC 384; 1953 SCR 1184
46. Nanda Kishore Sharma Vs. State of Bihar AIR 1965 Pat 37? A!. IJ.
Hajendian Vs. State of Madras AIR 1968 SC 1012
48. R. Jacob Mathew Vs. State of Kerala AIR 1964 Ker 39; Biharilal Batra Vs. Chief Settlement
Commissioner AIR 1965 SC 134
49. State of UP Vs. Pradip Tandon, AIR 1975 SC 563
50. 8tate of Kerala Va. Rabla Rahim AIR 19/8 Ker 176
51. Indra Sawhney Vs. Union of India AIR 1993 SC 477
 148

integrate the socially and educationally backward classes into the national
mainstream so as to establish an integrated social order with equal dignity of
person in which justice - social, economic and political - is enjoyed by them in
equal measures with general members of the society52 , Dalits (SCs) and
tribals are the victims of social injustice, such as practice of untouchability and
segregation from the mainstream of normal life.

Equality of opportunity :

Article 16 of the Constitution states as follows.

16. Equality of opportunity in matters in public employment

1) There shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the
state.
2) No citizen shall on grounds only of religion, race, caste, sex

descent, place of birth, residence or any of them, be ineligible for or

discriminated against in respect of, any employment or office under the state.

3) Nothing in the Article shall prevent the state from making any
provisions for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the state, is not adequately
represented in the services under the state.
4) Nothing in this Article shall prevent the state from making any
provision of appointments or posts in favour of any backward class of citizens,
which, in the opinion of the state, is not adequately represented in the services
under the state.

16[(4A) Nothing in this Article shall prevent the state from making any provision
for reservation in matters of promotion to any class or classes of posts in the
services under the state in favour of the Scheduled Castes

52. Post Graduate Institute of Medical Education and Research Vs. K.L. Narasimhan (1997)6
SCC 283
 14/

and the Scheduled Tribes which in the opinion of the states, are not
adequately represented in the services under the state]..
5) Nothing in this Article affect the operation of any law which
provides that the incumbent of an office in connection with the affairs of any
religious or denominational institution or any member of the governing body
thereof shall be a person professing a particular religion or belonging to
particular denomination.

In the case of Krishna Chander Nayar Vs. Chairman, CTOS3 the

court held that in the matter of making application for employment under the
state, Article 16(1) guarantees to the citizens equal opportun ity In another case
of C.K. Achuthan Vs. State of Kerela, the court held that “it also guarantees
right for being considered for the post on merit"54 In its application to
government servants Article 16 has eroded the rule of master and servant
giving them constitutional protections- In Jagadish Lai Vs. State of Haryana56,
the court held that equality of opportunity is not simply a matter of legal equality,
its existence depends not merely on absence of disabilities but presence of
abilities and opportunities of excellence in each cadre and grade.

The Supreme Court in Indra Sawhney Vs. Union of India.,?,

known as Mandal case has laid down the guiding principles for reservation of
backward classes in Government service in a writ petition seeking proper
implementation of Mandal Commission Report. The Mandal Commission
recommended 27 percent reservation for backward classes The Supreme
Court decided on 6th Nov., 1992 by a 6 to 3 majority that 27 percent reservation
of posts for the socially and educationally backward classes would serve the
end of actual justice.

The Supreme Court held that creamy layer of backward classes

shall cease to have the right of reservation in employment The Supreme Court
in Ashok Kumar Thakur Vs. State of Biharss has struck
53. Krishna Chander Nayar Vs. Chairman, CTO AIR 1962 SC 602
54. C.K. Achuthan Vs. State of Kerela AIR 1959 SC 490
55. AIR 1979 SC 439
56. Jagadish Lai Vs. State of Haryana AIR 1997 SC 2366
57. AIR 1993 SC 477; (1993)1 SCJ 352
58. AIR 1996 SC 75
 1 4 8

down the criteria for identification of creamy

layer set out Reservation of vacancies in
i n E f i h a r

posts and services for Scheduled Castes a n d

Scheduled Tribes and other Backward Classes

(Amendment) 1995 and S.3(b) of U,P.
Ordinance

Public Service Reservation of Scheduled

a rb itra ry

Cas
tes C e n tra l

and Scheduled Tribes and other

Backward Classes Act 1994 as and illegal
and has approved the test laid down by
the
Government in office memorandum dated the
8th September, 1993.

d is a b ility

Equal pay for equal work :

 The principle of equal pay for
equal work has not b e e n

specifically declared to be a
Fundamental Right under the In d ia n

Constitution. But it certainly is a

constitutional goal. The principle o f
e qu a l

pay for equal work would be an abstract

doctrine not attracting Article 1
4 if

sought to be applied to them. But

equality clause will h a v e s om e

substance if equal work means equal pay and

such right is deducible fro
m

Article 14 and 16 in the light of

Preamble to the Constitution a n d A c t

Article 39(d) of the Directive Principles of

the Constitution. There ca n
n o t

be any unequal scale of pay on the or irra ti

basis of no classification o
n a l

classification when they do identical

work under the same e m p lo y e r^

Thus the court makes a liberal use of t

the equality clause o m a k e th e

directive of equal pay for equal work more

authentically constitutional th a
n

what it is.

Abolition of Untouchability :

Article 17 of the Constitution states as

follows.
17. Abolition of untouchability,
“untouchability” is abolished a n d
its practice in any form is forbidden. The
enforcement of any

59. Randhir Singh Vs. Union of India AIR 1982 SC 879

 149

arising out of "untouchability” shall be an offence punishable in accordance

with law.

Protection of Civil Rights Act and Article 17 :

While interpreting Article 17 and the provisions of Protection of Civil

Rights Act, the Supreme Court has held that the Constitution has removed the
disabilities to which "Dalit members of Scheduled C aste’ were subjected and
subjecting them again to such disabilities would be crime against the
Constitution as well as violation of the Protection of Givi' Rights Act. It has also
been observed that the thrust of Article 17 Protection of Civil Rights Acts is to
liberate the society from blind and ritualistic adherence to traditional beliefs
which lost all legal or moral base and that it seeks to establish a new ideal for
society, that is, equality to the Dalits on par with general public, absence of
disabilities, restriction and prohibition on the grounds of caste and religion,
availability of opportunities and the sense of being a participant in the mainstream
of the national life. It has also been held that the disabilities to which the Dalits
have been subjected have been outlawed and denial thereof offends the right
to equality in Article 14 of the Constitution, that the scheme of Part III, namely
the Fundamental Right is to remove disabilities to which the Dalits are subjected
to and to provide positive discrimination in their favour and Part IV, namely, the
Directive Principles fasten on the state to render socio-economic and political
justice and protect them from all forms of exploitation and injustice by operation
of Article 38 and Article 46 of the Constitution. In other words, the Constitution
charges the state to improve the quality of their lives, socio-economic and
cultural pursuits as part of meaningful right to life guaranteed under Article 21.
Abolition of Titles :

Article 18 of the Constitution states as follows.

18. Abolition of Titles (1) No title, not being a military or academic
distinction shall be conferred by the state.
(2) No citizen of India shall accept any title from any foreign
state.
(3) No person who is not a citizen of India shall, while he holds
any office of profit or trust under the state, accept without the consent of the
President any title from any foreign state.
(4) No person holding an office of profit or trust under the state
shall, without the consent of the President accept any present, emolument or
office of any kind from or under any foreign state.

Quite a number of cases have been filed which indicates the

violation of the right to equality under Article 14 to 18. Instances of some cases
are given below.

A union of agricultural workers filed a petition under Article 32 of

the Constitution and the second petitioner, Hakim Sheikh, a member of the union
was denied a seat in the government hospital on the ground that no bed was
availableeo- Two private hospitals refused his admission on the ground that it
was a medico-legal case and deposit of money was prerequisite to treatment.
Sheikh had severe head injuries and brain haemorrhage. He managed to get a
seat in a private hospital. The petition invoked Article 14 and 21 of the
Constitution and contended that the life of the injured was threatened by
delayed medical treatment. It demanded that the action by the Government run
hospitals be declared illegal and unconstitutional, compensation to be given and
the decision of the Consumer Disputes Redressal Commission be set aside.

60. Pachlm Banga Khet Majdoor Samity and another Vs. State of West Bengal and another
(Civil) NO 796 of 1992
 In an order dated 22/4/94 by the Chief Justice M N
Venkatachaliah, Justice R.M. Sahai and Justice S. Mohan, the Supreme Court
blamed the West Bengal Government for delaying the matter and asked the
State of West Bengal to pay Rs. 15,000/- within a period of three weeks to
Hakim Sheikh. The attitude of the West Bengal Government in this case seems
to be degrading as the health department ignored the matter altogether which
is shameful and serious offence committed by them. It is a strict violation of
Fundamental Rights and steps should be taken so that such acts are prevented
in future.

In the case of People’s Union of Democratic Rights (PUDR) and

another Vs. Ministry of Home Affairsei, a petition was filed under Article 226 of
the Constitution on behalf of the riot victims. The riots took place after the
assassination of Prime Minister Mrs. Indira Gandhi. The petition demanded for
an enquiry and an investigation into the role of police. It invoked Article 14, 21
and 22 of the Constitution, Cr.PC 1993 and Section 3 of the Commissions and
Inquiry Act, 1952.

However, the petition could not be entertained as none of the

rights mentioned have bed infringed. The court is not the only protector of
Fundamental Rights and it cannot direct Executive Magistrates to keep the
peace under the Cr.PC, 1973 as no Fundamental Right was attracted to this
request. After analysing and referring that the petitioners had not approached
the appropriate authority for the appointment of a commission under the
Commission of Inquiry Act, 1952. The court held they had no locus standi to
make this demand.

If the state fails to perform its duty, then the court can as well
interfere, but only to the extent to which it can give relief. When the court can
give complete relief, it is then that PIL should be entertained

61. People Union of Democratic Rights (PUDR) and another Vs. Ministry of Home Affairs CWij No 2697 of
1984, Delhi
 15?

In an another case, which is known as Sunil Batra’s 62 case a

letter was sent to the Supreme Court Judge by Sunil Batra describing about a
prisoner in Tihar jail who complained that a jail warden had pierced a baton into
the anus of another life time prisoner of Tihar jail in order to extract money from
him. The letter was registered as a Habeas Corpus petition under Article 32 of
the Constitution. An "amicus curiae counsel was appointed who was authorised
to visit the prison and assess the situation.

In an order dated 20/12/79 by Justice V.R. Krishna Iyer Justice

R.S. Pathak (concurring) and Justice O. Chinnapaa Reddy the court described
how the “amicus curiae” advocate found that the prisoner was kept in the
punishment cell, where he had developed a cut in the anus for which he was
moved to a hospital and it was bleeding profusely The court invoked Articles 14,
19 and 21 of the Constitution and provisions of the Prisons Act, 1894, the
Prisoners Act, 1906 and the Punjab Prison Manual. The protection afforded by
articles 32 and 226 of the Constitution was upheld as the court allowed a case
"in the nature of" Habeas Corpus to be registered as a habeas corpus petition.
The petition was allowed and the court issued following guidelines.

1. The court held that a separation sexes must be upheld and sexual
excesses and exploitation both of which violate Article 19 must be
stopped.
2. Prisoners have the right to privacy, which cannot be denied
under Article 19 of the Constitution, but is subject to search and security
criteria.
3. The District Magistrates were asked to visit the cells so that the
prisoners can relate their grievances and if necessary habeas corpus action
could be initiated.
4. Grievance deposit boxes should be installed and were to be
opened as frequently as deemed fit.

62. Sunil Batra (II) Vs. Delhi Administration, WP No. 1009 of 1979
 153

5. A wall paper should be put up for the prisoner to write upon

and reduce stress.
6. The state should keep up the minimum standard rules for the
treatment of prisoners as recommended by United Nations.
7. The court noted the need for an amendment of the Prisoners
Act, 1894 and a total revision of the Prison Manual.
8. Free legal aid services were ordered to be made available to
prisoners. The District Bar was directed to keep a cell for prisoners’ relief
9. Justice Krishna Iyer suggested the institution of transcendental
meditation courses in prisons.

About the fate of the prisoner in question, the court directed the
Superintendent of the Tihar Jail to put a stop on such type of assaults
Suggestions were made for a CBI enquiry and the court criticised the affidavit
filed by the Under Secretary (Home), Delhi Administration which shows the
“affiants indifferent and omnibus approval to every officials conduct”.

In an another case, filed by Indrajit Barua Vs. State of Assam and

a n o th e r who is a resident of Guwahati, the two notifications were issued,
declaring most areas of Assam to be “disturbed areas", allowing the armed
forces to be used in aid of civil power.

In an order dated 7/4/80 by Justice Hansaria, the court passed an

order staying the operation of the notification declaring areas of Assam as
"disturbed areas” and asked the respondent to show cause why the petition
should not be allowed. The state moved a Special Leave Petition in the
Supreme Court which was not admitted and the case was transferred to Delhi
High Court.

The petition filed by Indrajit Barua under Article 22664 again asked
for a stay on the notification of the Government of Assam under the

63. Indrajit Baruah Vs. State of Assam and another, CR No. 182 of 1980, Guwahati
64. Indrajit Baruah Vs. State of Assam and another, CWP Nos. 332 to 834 of 1980 and LPA N o 108 of
1980, Delhi
 154

Assam Disturbed Areas Act, 1955 and Special Power Act, 1958. Similar
petitions were filed by two other persons and they not only challenged the vires
of the two Acts as violative of Article 14, 19 and 21 of the Constitution, but also
the legislative competence of the Assam Legislature and the Lok Sabha in
passing these legislations. The notification declaring certain areas as disturbed
is unjust and as the concept of "disturbed area has not been defined, so such a
declaration is irrational. It also challenged the Armed Forces Special Powers
Act, 1972.

By an order dated 3/6/83 by Chief Justice Prakash Narain and

Justice B.N. Kirpal, the court upheld the standing of petition on the ground that
because of the social purpose of the enactments to uphold the rule of law, they
are valid. It was stated that it is the state’s duty to see that the rule of law
enunciated by Article 21 is available to the greatest number Allowing the petition
partially, the court did provide a fresh interpretation of parts of Section 4 and 5
of the Assam Disturbed Areas Act, 1955 regarding the powers of the officials.
The parties were left to bear their own costs. However, an appeal was filed
under Article 136 of the Constitution in Supreme Court against this judgement.

Right to Freedom (Articles 19 to 22) :

Right to freedom of speech is guaranteed under Article 19 of the

Constitution as follows.

19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peacefully and without arena;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
 155

(e) to reside and settle in any part of the territory of India and
(f) omitted;
(g) to practice any profession, or to carry on any occupation, trade or

business.

The following list of cases shows the scope of right to freedom

under Article 19.

In Anowar Vs. State of J & K6s. the court held that these rights are
included in the right to freedom and are available only to one who is a citizen of
India.

In the case of Jamuna Prasad Vs. Lachhi Ram66, the court held that
this Article refers to what are known as natural and inherent in the status of a
citizen of a free country. In Babulal Parate Vs State of
Maharastra67 , the court held that the right of a lawyer to practice before a court
or the right to hold a public office are statutory rights and do not come within
the purview of this Article. In another case of Shamdasam Vs Central Bank of
lndia68, the court held that this article does not cover cases of violation of rights
of property by individuals.

Although Article 19 guarantees all the seven freedoms to the

citizens, such guarantee does not confer any absolute or unconditional right
but is subject to reasonable restriction which the Legislature may impose in
public interest. It is, therefore necessary to examine whether such restriction is
meant to protect social welfare satisfying the need of prevailing social values.

Freedom of Speech and Expression ;

The right of freedom of speech or expression is meant for the

65. Anowar Vs. State of J&K AIR 1971 SC 337

66. Jamuna Prasad Vs. Lachhi Ram AIR 1954 SC 686; State of West Bengal Vs Subodh oopa
Bose 1954 SCR 587
67. AIR 1954 SC 524; Babulal Parate Vs. State of Maliarastra AIR 1961 SC 884 (888)
68. Shamdasani Vs. Central Bank of India AIR 1952 SC 59
expression of free opinions to change political or social conditions or tor the
advancement of human knowledge. It is subject to reasonable restrictions which
may be thought necessary in the interest of general public and one such is the
interest of public decency and morality So in this context one instance is the
case of Ranjit D. Udeshi Vs State of Maharastra69 , in which the Supreme Court
cleared that law of obscenity as laid down in S.292 of the Indian Penal Code
clearly embodies such a restriction. The restriction imposed by S.500 of the
Indian Penal Code is a restriction on that right70. So is the law of contempt of
court.

Freedom of Press :

The freedom of press has no geographical barrier and this

freedom is exercisable not only in India but also abroad and if the state action
sets up barriers to the citizen’s freedom of speech and expression in any country
of the world it would violate Article 19(1)(a). This decision was held by the
Supreme Court in Maneka Gandhi Vs. Union of India?

In several decisions the Supreme Court has held that freedom of

press is an integral part of freedom of speech and expression and has upheld
such freedom against state action to abridge or curtail its circulation, future
growth or stop its entry in any particular state72 The right of freedom of speech
includes the right to propagate one's view through print media or through any
other communication channel, such as video, television etc. which was held by
the Supreme Court in LIC Vs Munubhai73. In the Indian Express Newspaper
case74, it has been observed that if the levy of the tax on the newsprint
transgresses into the freedom of expression, it can be held to be
unconstitutional. The ught includes freedom of press, i.e. freedom of
propagation of ideas and the freedom ensured by the freedom of circulation.

69. Ranjit D. Udeshi Vs. State of Maharastra AIR 1965 SC 881

70. Kedar Nath Singh Vs, State of'Bihar AIR 1962 SC 955
71. Maneka Gandhi Vs. Union of India AIR 1978 SC 597
72. E.T. Sen Vs. E. Narayanan AIR 1969 Del 201
73. LIC Vs. Manubhai AIR 1993 SC 171
74. Indian Express Newspapers Ltd. Vs. Union of India AIR 1986 SC 515
 ib/

In another case of Harijai Singh75, the court held that freedom of

press is an essential prerequisite of democratic form of government But it is not
absolute and unrestricted.

Right to Information :

The right to impart and receive information is a species of the right

of freedom of speech and expression guaranteed under Article 19(1)(g)• A
citizen has Fundamental Right to use the best means of imparting and receiving
information and as such to have an access to telecasting for that purpose.
However, this right to have an access to telecasting has limitations on account
of the use of the public property namely the air waves involved in the exercise of
the right and can be controlled and restricted by the public authority. This
limitation imposed by the nature of the public property involved in the use of
electronic media as in addition to the restrictions imposed on the right to
freedom of speech and expression under Article 19(2) of the Constitution.

While the freedom, guaranteed by Article 19(1)(g) does not include

the right to receive and impart information, no one can claim Fundamental Right
to do so by using or employing the public property Only when the statute permits
him to use the public property, then only and subject to such conditions and
restrictions as the law may impose he can use the public property such as the
air waves. In the case of Ministry of Information and Broadcasting, Government
of India Vs. CAB76, the Supreme Court held that Article 19(1)(g) does not enable
a citizen to impart his information, views and opinions by using the air waves.

Another aspect of freedom of press Is that the proper balancing

between the right to privacy and the freedom of press is nucuasary. Publications
of life story ol a citizen exposing misdeeds of

75. In Re, Harijai Singh AIR 1997 SC 73

76. Ministry of information & Broadcasting, Government of India Vs. CAB AIR 1995 SC
1236
some public officials, cannot be prevented because the publisher has the right
to publish. But the public official or any other person may have similar right
against the publishers if they contain any defamatory or other objectionable
matters. But the remedy will only arise after the publication It was held in a case
of R. Rajagopal Vs. State of Tamil Nadu77.

In PUCL Vs. Union of lndia78, the Supreme Court has held that
right to transmit telephonic message or hold telephonic conversation is privacy
and covered by Article 19(1){a).

Right to Know :

The basis of the right to know by a citizen about government

decisions and actions is derived from freedom of speech which is a
Fundamental Right and is subjected to overriding interest of public security and
secrecy. When the Vohra Committee Report depicting nexus between criminals
and politicians, bureaucrats, media persons and some members of the judiciary
was tabled in the Parliament and the report that was tabled was genuine, the
Public Interest Litigation by Member of Parliament along with an NGO to make
public the report along with its annexures, memorials and written evidence was,
according to the Supreme Court, against the Public Interest. In Dinesh Tribedy
Vs. Union of lndia79 , the Supreme Court, however directed that till an
independent body as suggested in the report is constituted a high level
committee be appointed by the President of India in consultation with the Prime
Minister and the Speaker of Lok Sabha.

77. R. Rajagopal Vs. State of Tamil Nadu (1994)6 SCC 632

78. PUCL Vs. Union of India (1997)1 SCC 301
79. Dinesh Tribedy Vs. Union of India (1997)4 SCC 306
 1S9

Right to Assemble Peacefully and without Arms :

In Kameswar Prasad Vs. State of Biharao, the court decided

that peaceful and orderly demonstration is a right guaranteed by Article
19(1)(b), but not violent and disorderly demonstration. In Babutal Parate
Vs. State of Maharastra8i, the court opined that the right of citizens to take
out processions or to hold public meetings flows from this right

Right to Form Association or Unions :

The right to form labour unions is a Fundamental RightB2 but this

right does not extend to the right to effect collective bargaining or to strike83-

Right to Move Freely throughout India :

In Maneka Gandhi Vs. Union of lndia04l the Supreme Court

held that right to move freely within the territory of India does not extend
to the right to go abroad. Such right is not guaranteed under Article
19(1)(d) of the Constitution. Right under this clause is not available to the
foreigners.

Right to practice any profession and to carry out any occupation, trade
or business :

Article 19(1)(g) guarantees to all citizens the right to practice

any profession or to carry on any occupation, trade or business subject to
reasonable restrictions by the state under Clause (6) of Article 1685

80. Kameswar Prasad Vs. State of Bihar AIR 1962 SC 1166

81. Babulal Parate Vs. State of M aharastra AIR 1961 SC 884
82. Raja Kulkarni Vs. State of Bombay AIR 1954 SC 73 ■
83. All India Bank Em ployers' Association Vs. National Industrial Tribunal AIR 1962 SC 1 7 ■
84. Maneka Gandhi Vs. Union of India AIR 1978 SC 597
85. Saglr Ahmed Vs. State of UP AIR 1954 SC 728
 u.o

Protection in respect of Conviction of Offences :

Article 20 of the Constitution of India states as follows :

20. Protection in respect of conviction of offences

1. No person shall be convicted of any offence except for

violation of a law in force at the time of the commission of the act charged as
an offence, not be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the offence.

2. No person shall be prosecuted and punished for the same

offence more than once.

3. No person accused of any offence shall be compelled to be a

witness against himself.

Protection of Life and Personal Liberty :

The Fundamental Right to personal liberty in India has a long

history from British Raj to Swaraj. After independence, Fundamenfal Rights
were incorporated in the Constitution of India and the right to personal liberty is
confined to Article 21 of the Indian Constitution.

The legislatures in India have not paid attention for the growth of
right to personal liberty. It is the Indian judiciary which contributed to a great
extent for the expansion of personal liberty. For the concept of the personal
liberty incorporated in the Indian Constitution, a study of personal liberty in
England and America is very essential.
 16 ’

Personal Liberty in England :

The earliest declaration of personal liberty is found in the proclamation of

the Magna Carta which is "No freeman shall be taken imprisoned, disseized, outlawed,
banished, or in any way destroyed no will we proceed against or prosecute him, except
by the lawful judgemen of his peers and by the law of the land (Clause 39, Magna Carta
AD 121 5)

The demand of freedom from imprisonment and detention was reiterated

in the petition of Rights, 1628. From this principle, the rule o* law in England was
established. Again, the Bill of Rights, 1689, declarec the right to petition the King. It says,
"That it is the right of the subjects tc petition the King and all commitments and
prosecution for such petitioning are illegal'W

Blackstone defines personal liberty as "The power of

w ithout
locom otion, of changing situation or removing one's person to whatsoever place one's
own inclination may direct, im prisonment or restraint, unless by due course of law" 87.

Dicey defines personal liberty as follows :

"The right to personal liberty as understood in England m eans in

substance a person's right not to be subjected to im prisonment, arrest or other
physical coercion in any manner that does not admit of legal ju stificatio n '^

The concept of personal liberty in England means freedom

from unlawful arrest, detention or any other physical coercion by the
executive.

86. Basu, D.D. : Select Constitutions of the world, 3ra Ed. (1990). 11
87. Blackstone : Commentaries on the laws of England, 16lh Edition, 1825, Vol I, 134
88. Dicey, A.V. : Supra, 207-208
Personal Liberty In U.S.A. :

In the Fifth Amendment of 1791, the Constitution of United

States provides the liberty clause as follows : ":No person shall be ... deprived
of his life, liberty or property, without due process of law".

From this it is clear that the Congress is not free to make any
process without a "due process of law". Moreover the courts cannot affect the
life and liberty of a person without complying with the procedural due process.
The expression "due process” has been mentioned nowhere in the
Constitution. It denotes proper procedure, and it was the meaning primarily
intended by the men who drafted the "Bill of Rights"8 9 .

Universal Declaration of Human Rights 1948 :

The object of the Human Rights Declaration, 1948 was to lay

down universal standard of such rights and expected to be followed by all
States by incorporating in their constitutions.

Personal Liberty in India :

The literature of ancient India reveals that in ancient India liberty

of one's person was respected under the negative right and positive duty under
the concept of Dharma.

In modern time, the Nehru Report, 1928 gave a systematic

approach to the Fundamental Right to the liberty. The Government of India Act,
1935, did not contain any declaration of fundamental liberties The flow of the
Constitutions of United States, Eire, Japan gave the present shape of personal
liberty clause in India. The discussion in the Constituent

89. Schwartz Bernard : Constitutional Law , Second Edition, 1979, 203

 163

Assembly on the right to personal liberty took almost one year wherein nearly
twenty amendments were moved. There were members from minorities,
capitalists, socialists, experts in constitutional law and social sciences.

The Fundamental Right Sub-Committee considered three notes

given by three members of the Constituent Assembly. K.T. Shah's note in
clause 52 provided : No one should be deprived of life, limb or property except
under due process of law. K.M. Munshi in his draft provided : No person shall
be deprived of life, limb or property except under due process of law. K.M.
Munshi in his draft provided : No person shall be deprived of his life, liberty or
property. Again Dr. Ambedkar in his draft included : The state shall not deprive
any person of life, liberty or property without the due process of law.

The sub-committee on the Fundamental Rights included two

clauses - 11 and 29 in its draft report and they are :
11. No person shall be deprived of his life, liberty or property
without due process of law.
29. No person shall be subjected to prolonged detention
preceding trial, to excessive bail or unreasonable refusal thereof or to inhuman
cruel punishment.

Sir B.N. Rau pointed out that there would arise difficulties in
defining the words "due process". So, the sub-committee recommended a
moderate view of except according to the procedure established by law and this
expression was borrowed from Article 31 of the Japanese Constitution.

The Clause was replaced in Article 15 of the Draft Constitution as

follows : No person shall be deprived of his life and personal liberty except
according to procedure established by law nor
shall any person be denied equality before the law or equal protection of the
law within the territory of India.

After a long discussion in the Constituent Assembly about Article

15, Dr. B.R. Ambedkar was asked to reply on his article His expression on the
Article 15 was as follows : "It is very difficult to come to any definite conclusion.
There are dangers of both sides. For myself I can not altogether omit the
possibility of a legislature packed by party men making laws which may
abrogate or violate what we regard as certain fundamental principles affecting
the life and liberty of an individual. At the same time, I do not see how five or six
gentlemen sitting in the Federal or Supreme Court examining laws made by the
legislature and by dint of their own individual conscience or their bias or their
prejudice be trusted to determine which law is good and which law is bad. It is
rather a case where a man has to sail between Charybdis and Scylla and I
therefore would not say anything’W Dr. Ambedkar left the matter to be decided
by the House by vote. The Article was passed by the Drafting Committee and
was adopted by the constituent assembly and formed part of the Constitution of
India. The equality provision was separated from Article 15 and it was
renumbered as Article 21. The Article 21 now is as follows No person shall be
deprived of his life or personal liberty except according to procedure
established by law.

Immediately after the commencement of the Constitution, the

Supreme Court interpreted the concept of personal liberty in Gopalan Vs State
of Madras case9i which is considered as the first case on Fundamental Right.
The judges of this case tried to give a concept of personal liberty by different
angles of British and American models Under the "due process" clause of the
American Constitution (5th and M lh Amendment), the court has assumed the
power of declaring unconstitutional any law which deprives a person of his
liberty. In England the courts have no power to invalidate a law made by
Parliament in

90. CAD, Vol. VII (1948) 1000-1001

91. Gopalan Vs. State of Madras, AIR 1950 SC 27
 16b

England, personal liberty is a liberty confined and controlled by law In Gopalan

Vs. State of Madras, the majority view was represented in the opinion of Kania,
C.J. and Patanjali Sastri, M.C. Mahajan, B.K. Mukherjia and S.R. Das, J.J. In
that case the majority of the Supreme Court propounded the view that by
adopting the expression "procedure established by law", Article 21 of our
Constitution had embodied the English concept of personal liberty in
preference to that of American "due process". The minority view in that case
was that the result of the interpretation of "procedure established by law" was
to throw "the most important Fundamental Right to life and personal liberty at
the mercy of legislative majorities'^. The minority view in Gopalan's case has
come to triumph in Maneka Gandhi Vs. Union of lndia93.

In the landmark judgement of this case the government had

confiscate the passport of the petitioner without giving any reason for its
decision. In this case Justice Bhagawati along with six justices held that the
right to travel abroad was included into the concept of personal liberty

In this case the Supreme Court held that the expression “personal
liberty" in Article 21 is of the widest amplitude and it covers a variety of rights
of which some have been included in Article 19 and given additional protection.
So, there may be some overlapping between Article 19 and 21. Justice
Bhagawati expressed his view in the expanded meaning to the right to personal
liberty as follows : "The attempt of the court should be to expand the reach
and ambit of the Fundamental Rights rather than attenuate their meaning
and content by a process of judicial construction’^ .

Chief Justice Beg said that Article 21 comprised Blackstonian

dual concept of "Personal security" and "Personal liberty". The Supreme Court
has in many significant judgements expanded the right to life and personal
liberty to include, not just a right of animal existence but right to

92. Gopalan Vs. State of Madras, AIR 1950 SC 27

93. Maneka Gandhi Vs. Union of India AIR 1978, SC 597
94. AIR 1978, SC 622
 166

living with dignity which in turn includes right to reasonable means of living,
shelter, education, health etc. Thus the Supreme Court seems to be inclined to
the view that the right to life and personal liberty encompasses almost all rights
of civilised existence. A few relevant judgements may be cited as follows.

Right to Live with Human Dignity :

The Supreme Court in the Maneka Gandhi's case held that the
"right to live" is not merely confined to physical existence but it includes within
its ambit the right to live with human dignity.

According to the Supreme Court there is close nexus between the

life and means of livelihood. In Olga Tellies Vs. Bombay Municipal
Corporationgs a Constitution Bench of five judges has held that the meaning of
the right to life conferred by Article 21 is wide and it means something more
than survival. Again in Ashok (Dr) Vs. Union of India ,t it became clear that
Right to life enshrined in Article 21 means the right to have something
more than survival and not mere existence or animal existence. It
includes all those aspects of life which go to make man's life meaningful,
complete and worth living.

Basic Human Rights :

Rights guaranteed under Article 21 are in the nature of basic

human rights. This article can be invoked not only by a citizen but also by a
non-citizen. Right to life includes the right to live with human dignity and all that
goes along with it, namely the bare necessities of life such as adequate
nutrition, clothing and shelter and facilities for reading, writing

95. Olga Tellies Vs. Bombay Municipal Corporation (1985)3 SCC 545
96. AIR 1997 SC 2298; (1997) 5 SCC 10
97. Francis Coralle Vs. Union Territory of Delhi, AIR 1978 SC 587
 t fi7

and expressing oneself in diverse forms, freely moving about and mixing and
communicating with fellow human beings”g7.

Right to Education :

In Mohini Jain’s case98, the court held the right to get education
at all levels is included in right to life and personal liberty Justice Kuldip Singh
opines that the state is under an obligation to make endeavour to provide
educational facilities. Every children upto the age of 14 years has Fundamental
Right to free education and the state is obliged to follow the directives of Article
45. Article 21 is to be construed in the light of Articles 41, 45 and 46 of the
Constitution.

Right to Work :

* Though right to work is not a Fundamental Right, but after

employment to a post or office, be it under the state or its instrumentality, juristic
person or private entrepreneur, an employer must be dealt with as per public
element and in public interest assuring him equality under Article 14 and all
concomitant rights emanating therefrom99.

Right to Clean Environment :

Right to life guaranteed under Article 21 included the right to clean

environment. The right to live in peace, sleep in peace and right to repose and
health are all parts of right to live. The right of “enjoyment of pollution free water
and air” for full employment of life was included nto “right to live”ioo-

98. Mohini Jain Vs. State of Karnataka AIR 1992 SC 1858

99. Air India Statutory Corporation Vs. United Labour Union AIR 1997 SC 645
100. T. Damodhar Rao Vs. municipal Corporation, Hyderabad, AIR 1987 AP 171; Subhas Kumar
Vs. State of Bihar AIR 1991 SC 420
 168

Government as well as Municipality are obliged to maintain and

protect environment - man made as well as nature madeioi Again in Ashok (Dr.)
Vs. Union of Indiana, the court held that the use of pesticides and chemicals
causing health hazards affects Article 21 of the
Constitution.

The Supreme Court has extended the doctrine of public trust

principle by holding public trust doctrine as part of Indian law and it extends to
natural resources such as rivers, forests, seashores, air etc for the protection of
ecology. The Supreme Court has issued various directions for pollution control
such as Vehicular Control of Delhi103, Air Pollution of Delhiio4, protection of
Tajmahal from pollution by organisers of musical concerts105, for protection of
green belt106, Calcutta tanneries discharging untreated noxious and poisonous
affluent in Ganga river polluting land and riverio7, noxious / hazardous industries
operating in
Delhiio9-

Right to Privacy :

The right to privacy was brought at par with the American

jurisprudence by the court.

The privacy right was upheld by the majority judgem ent in Khark
Singh case109. In this case the court struck down Regulation 236(b) of the U.P.
Police Regulations as violative of Article 2 1 . The majority court along with justice
Ayyangar, Chief Justice Imam, Justice Sinha and Justice Mudholkar considered
the domiciliary visit at night violative of right to ‘sleep’ and ‘comfort’ included in
the personal liberty. “But as it did not concede the right of privacy, an attempt to
ascertain the movement of an
101. Virinder Gaur Vs. State of Haryana (1995)2 SCC 577
102. AIR 1997 SC 2298
103. M.C. Mehta Vs. Union of India AIR 1998 SC 2463
104. M.C. Mehta Vs. Union of India AIR (1998)5 SCC 720
105. M.C. Mehta Vs. Union of India AIR (1998)9 SCC 93
106. M.C. Mehta Vs. Union of India AIR (1997)3 SCC 715
107. M.C. Mehta Vs. Union of India AIR (1997)2 SCC 411
108. M.C. Mehta Vs. Union of India AIR 1996 SC 2231; (1996)4 SCC 750
109. Kharak Singh Vs. State of UP AIR 1963 SC 1295
 169

individual" was considered validno. Justice Subba Rao in his opinion tried to
support the minority opinion in the Gopalan Case. In the opinion of Justice
Subba Rao it was true that our Constitution did not expressly declare a right to
privacy as a Fundamental Right, but the said right was an essential ingredient
of personal liberty (Id at 1306). He defined the right to personal liberty as a right
of an individual to be free from restrictions or encroachment on his person,
whether these restriction were directly imposed or "indirectly brought about by
calculated measures” (Id at 1306)

It was in Govind's casem where the court established the right to

privacy as a Fundamental Right implicit into Article 21. The action of the police
in entering the name of the petitioner in the surveillance register was
challenged in Malak Singh's casein. The court held that intensive police
surveillance encroaching on the privacy of a citizen so as to infringe his
Fundamental Right under Article 21 was impermissible

The right to privacy case again came up before the court in R.M.
Malkani Vs. State of Maharastran3. In this case the privacy of conversation was
claimed under Article 21. The court protected the privacy of conversation of
innocent people. The court conceded that it would not protect the telephonic
conversation of quality citizen and it would be invalid by a valid law.

M.N. Mardikar’s casei,4 came up before the court in 1991 where

the petitioner, a prostitute tried to protect herself from sexual assault. In this
case, a police inspector was dismissed from service on his proved involvement
in the act of rape. The High Court quashed his dismissal on the ground that the
woman, whom he was alleged to have raped was a woman of easy virtue.

The Supreme Court on appeal held that a woman even of so

called easy virtue was initiated to protect herself against unwilling sexual

110 Kharak Singh Vs. State of UP AIR 1963 SC 1295

111. Govlnd Vs. State of MP AIR 1975 SC 1378
112. Malak Singh Vs. State of Punjab AIR 1981 SC 760 .
113. R.M. Malkani Vs. State of Maharastra AIR 1973 SC 157
114. State of Maharastra Vs M.N. M ardikar AIR 1991 SC 207
 170

assault. In this case, Justice Ahmadi observed - “Even a woman of easy

virtue is entitled to privacy and no one can invade her privacy as and
when he likes. So also it is not open to any and every person to violate
her person as and when he wishes”.

In Neera Mathur’s casen5, the right to privacy was extended to

protect the modesty and self respect of woman. Thus the privacy of personal
problem of women from disclosure was protected under personal liberty, under
Article 21.

Thus, in these cases, the Indian courts have allowed right to

privacy to operate.

Right of Working Women :

In Vishaka Vs. State of Rajasthan116, the court held that the

rights of working women including right to work with dignity and right against
sexual harassment in working place.

Right to Health and Medical Care :

In Consumer Educational and Research Centre Vs. Union of

India, 17 the Supreme Court has held that the right to health and medical care
is a Fundamental Right under Article 21 of the Constitution as it is essential for
making the life of the workman meaningful and purposeful with dignity of a
person. “Right to life" in Article 21 includes protection of the health and strength
of the workmen. The expression “life” in Article 21 does not connote mere
animal existence. It has a much wider meaning which includes the right to
livelihood, a better standard of life, hygienic conditions in the workplace and
leisure.
115. Neera Mathur Vs. Life Insurance Corporation of India, AIR 1992 SC 392
116. Vishaka Vs. State of Rajasthan AIR 1997 SC 3011 ,
117. AIR 1995 SC 922
Right to Speedy and Open Trial :

In Hussainara Khatoon's (VII) caseus, the Supreme Court held

that the right to speedy and open trial are part of the Fundamental Rights
guaranteed under the Constitution.

When the criminal proceedings are pending in courts for long the
Supreme Court has issued necessary directions for release of some accused
on bail and for discharge of others, ,9.

Right to Shelter :

In Shiv Sagar Tiwari Vs. Union of India,20, the Supreme Court

held that right to shelter falls within the ambit of Article 21 of the Constitution.

Thus, it is clear that our Constitution guaranteed the right to life

and personal liberty for the development of human personality in its full vigour.
The expanded interpretation of Article 21 has included many new rights such
as right to livelihood, right to shelter, right to education, right to work, right to
privacy etc.

Protection against Arrests and Detention :

Article 22 of the Constitution of India provides these procedural

requirements which must be adopted and included in any procedure enactment
by the Legislature.

The two separate matters dealt by Article 22 are - (1) persons

arrested under the ordinary law of crime, (2) persons detained under the
118. H ussainara Khatoon Vs. Home Secretary (1995)5 SCC 326; 1995 SCC (Cr) 913
119. Common Cause Vs. Union of India AIR 1996 SC 1619
120. Shiv Sagar Tlwarl Vs. Union of India AIR 1997 SC 2725; (1997)1 SCC 44
law of “Preventive Detention".

The four rights guaranteed by clauses (I) and (li) of Article 22 on a

person arrested for any offence under an ordinary law are as follows

(1) The first right is to be informed “as soon as may be” of the ground of
arrest.

The arrested person has the right to know the grounds of his arrest and
prepare for his defence. In Joginder Kumar Vs. State of U.P. 1 2 1 , the Supreme
Court has laid down the following guidelines to be followed in making an arrest
of a person.
(a) An arrested person who is being held in custody is entitled, if he so
requests, to have a friend, relative or a person who is known to him or
one who is likely to take an interest in his welfare be told as far as is
practicable that he has been arrested and where he is been detained.

(b) The police officer shall inform the arrested person of this right when he
is brought to the police station.
(c) An entry shall be required to be made in the police diary as to who was
informed of the arrest.
Thus Article 21 and 22 guarantee protection to a person from illegal
arrest.

(2) The second right guaranteed by clauses (I) and (II) of Article 22 is
the right to be defended by a lawyer of his choice. In Hussainara Khatoon’s
casei22, the Supreme Court has held that it is the constitutional right of every
accused person who is unable to engage a lawyer and secure legal service on
account of reasons such as poverty, indigence or incommunicado situation, to
have free legal services provided to him by the state and the state is under a
constitutional duty to provide a lawyer to

121. Joginder Kumar Vs. State of UP (1994)4 SCC 260

122. Hussainara Khatoon Vs. Home Secretary, Bihar AIR 1979 SC 1377
such a person if the needs of justice so require. If free legal services are not
provided the trial itself may be vitiated as contravening Article 21

The third right guaranteed by clauses (1) and (2) of Article 22 on a

person is to be produced before a Magistrate within 24 hours of his arrest. A
case relating to the violation of Articles 21 and 22 came up in the Gauhati High
Court. People’s Union for Human Rights represented by Ramesh Jain and
others Vs. Union of India and others123 filed a petition under Article 226 of the
Constitution challenging the promulgation of President’s Rule in Assam for the
fourth time, Section 4 and 5 of the Armed Forces (Special Power) Act 1958 and
Section 3 of the Assam Disturbed Areas Act 1955 were described as violative.
Another petition was filed by Nibaran Bora, a local journalist of an Assamese
weekly “Boodhbar” which challenged the vires of the 1958 Act and described
certain provisions of the enactment as violative. The order dated 20/3/91124 by
the Chief Justice A. Raghhubir and Justice S.N. Phukan held that the
notification of the Central Rule should be made applicable only to the specified
areas listed by the court and that the notification enforcing both the Acts were
to be reviewed after every two months Moreover, any person arrested by the
army should be produced before the nearest Magistrate within 24 hours and
only those who have committed grave offences be arrested.

The total period of detention allowed in police custody is 15 days

in the whole. After the expiry of the first period of 15 days, further remand can
only be in judicial custodyi25.

Preventive Detention Law :

Clauses (4) to (7) of Article 22 provide the procedure to be

followed if a person is arrested under the law of “Preventive Detention

123. Ramesh Jain and others Vs. Union of India and others, CR Nos, 2314, 2238, 2415 of 199 U and
11 of 1991 Guwahatl
124. Order dt. 20/3/91, as cited In Ahu|a, Sanglta in People, Law and justice, 158
125. CBI Vs. Anupan J. Kulkarni, (1992)3 SCC 141
Clause (5) of Article 22 makes some amendments for deprivation of personal
liberty. Under that clause the detenue must be informed as soon as possible
under the detention, the ground on which detention order has been made and
also must be given the earliest opportunity of making representation against the
order of detention. In the case of State of M P Vs. Shobharam^e, the Supreme
Court held that before a person can be detained under Preventive Detention
Law every bit of procedure must be strictly followed. The detention order has to
be specific and definite The order of detention under a Preventive Detention
Law is vitiated when the grounds of order of detention are vague and
indefinite127.

Preventive Detention is a necessary evil. The constitutional

mandate of clause (5) is that the detaining authority must afford a reasonable
opportunity to the detenue to make such representation Such representation
has to be dealt with as early as possible. In Raj Kishore Prasad Vs. State128
the Supreme Court found inordinate delay of the detaining authority in
considering the representation and it has set aside the order of detention.

There are some Preventive Detention Acts. The first Preventive

Detention Act was passed on 26th January 1950. It lapsed on December 31,
1969. Maintenance of Internal Security Act, 1971 (MISA) was the second
Preventive Detention Act. This Act continued in operation until 1977. It was
repealed by the Janata Government in 1978.

Mr. Charan Singh of Janata Government enacted the prevention

of Black Marketing and Maintenance of Supplies of Essential Commodities Act.

In 1980 the National Security Act was enacted for Preventive

Detention of persons responsible for communal and caste riots and other
activities prejudicial to the country’s security. The constitutional validity of

126. State of MP Vs. Shobharam AIR 1966 SC 1910

127. Motllal Jain Vs. State of Bihar AIR 1968 SC 1509
128. Raj Kishor Prasad Vs. State AIR 1983 SC 320
N.S.A, was challenged in the Supreme Court. The Supreme Court upheld the
constitutional validity of N.S.A. in A.K. Roy Vs. Union of Indian

Another Act known as Terrorist and Disruptive Activities Act, 1987

(TADA) was passed in 1987 with a view to deal with specific situations of
terrorism in Punjab and Kashmir and parts of the North East

Conservation of Foreign Exchange Prevention of Smuggling

Activities Act, 1974 (COFEPOSA) and Smugglers and Foreign Exchange
Manipulators (Forfeiture of Property) Act, 1976 were enacted by Parliament to
check activities of smugglers and foreign exchange manipulators. In Navungal
Palhumma Vs. Union of lndiai3o, when a person detained under the
COFEPOSA Act was not informed of his right to make representation at the
time when he is served with the grounds; there is denial of opportunity to make
a representation against the order of detention which is vitiated.

Right against Exploitation :

The right against exploitation guaranteed under Article 23 and 24

aims to provide protection against exploitation through traffic in human beings,
forced labour, employment of children in factories. This was done so that the
state or any institution or individuals could not compel anyone to work against
his will or to misuse him in anyway. Article 24 prohibits the employment of
children below the age of 14 in factories and mines since it goes against the
basic norm of human rights.

Traffic in human beings includes traffic in human beings and

children. In Gaurab Jain Vs. Union of Indian, the Supreme Court held that the
eradication of prostitution and rescue and rehabilitation of the

129. A.K. Roy Vs. Union of India AIR 1982 SC 710

130. Navungal Palhumma Vs. Union of India (1998)7 SCC 287; 1998 SCC (Cr 1584), AIR 1 (> 9 ‘ I

SC 142
131. Gaurab Jain Vs. Union of India AIR 1997 SC 3021; (1997)8 SCC 114
prostitutes is the obligation of the state. The prostitutes have the right to enter
into social mainstream.

In Bandhua Mukti Morcha Vs. Union of India,32, when the public

interest litigation alleging employment of children aged below 14 years in carpet
industry in the State of Madhya Pradesh was made, the Supreme Court has
issued appropriate directions as to how gradually the child labour has to be
abolished.

The Supreme Court in M.C. Mehta Vs. State of Tamil Nadu,-<3 .

has considered the constitutional perspectives of the abolition of child labour
and children below 14 years of age in the notorious Sivakasi Match Industry.
Necessary directions have been issued and the court has also expressed the
need for their speedy implementation.

In S. Basudevan Vs. S.D. Mittali34, the court held that when the
Government or the persons in power exert service without giving remuneration
for the same, it is called beggar. The Supreme Court has enlarged the scope of
the expression “forced labour”. In Sanjit Roy Vs State of Rajasthani3 5 , the
workmen are held to be subjected to forced labour when they have been
employed by PWD Rajasthan in flood affected areas at wages less than
minimum wage. “Bonded labour" comes within the scope of “forced labour”. In
Neeraya Choudhury Vs State of M.P.,3 6 , the Supreme Court held that the
Bonded Labour System (Abolition) Act, 1978 has been enacted pursuant to the
Directive Principles of State Policy and any failure on the part of the State
Government m implementing the provisions of the Act would be clear violation
of not only of Article 23 but also Article 21.

Article 24 of the Constitution is related to Article 39 and 45 of the

Constitution and S. 67 of the Factories Act 1948. There are numbers of labour
laws regulating the employment of child labour in different
132. Bandhua Mukti Morcha Vs. Union of India AIR 1997 SC 2218
133. M.C. Mehta Vs. State of Tamil Nadu (1996)6 SCC 756
134. AIR 1962 Bombay 53
135. Sanjit Ray Vs. State of Rajasthan AIR 1983 SC 326; Peoples' Union for Dem ocratic R i g h t s
Vs. Union of India AIR 1982 SC 1473
136. Neeraya Choudhury Vs. State of MP AIR 1984 SC 1099
 77

industries and occupation and the latest in the legislative field is the Child
Labour (Prohibition and Regulation) Act 1986. The object of this Act is to
translate into action the Fundamental Rights enshrined in Article 24 by
prohibiting engagement of children in certain employment and to regulate
conditions of work of children in certain other employments.

In Unni Krishnan J.P. Vs. State of A.P . 1 3 7 , the Supreme Court held
that children below 14 years cannot be employed in any factory or mine or other
hazardous work and has to be given education as mandated by Article 45.

In M.C. Mehta (Child Labour matter) Vs. State of Tamil Nadui 38,
the Supreme Court has mandated that the employer must comply with the
provisions of Child Labour (Prohibition and Regulation) Act and would be liable
to pay compensation of Rs. 20,000 for every child employed in contravention
of those provisions. Several other directions were issued to the State
Government so that the constitutional goal of Article 24 can be achieved.

In another case it was stated in the petition that the carpet

manufacturers in Mirzapur were employing children in the factories which is
violation of Article 24 of the Constitution. After reaffirmation, the Supreme Court
expressed deep regret about the plight of the children and directed the
Government of Uttar Pradesh to take effective steps and also to finalise a
scheme for their rehabilitation.

Right to Freedom of Religion :

Right to freedom of religion is prescribed under Articles 25 26,

27 and 28 of the Constitution of India.

137. Unni Krishnan Vs. State of AP (1993)1 SCC 645

138. M.C. Mehta Vs. State of Tamil Nadu (1996)6 SCC 756, 1997 SCC (L&S) 49
 1 / ft

Article 25 lays down that all persons are entitled equally to

freedom of conscience and the rights to freely profess, practice and propagate
religion. The state would be free to regulate by law any secular activity
associated with religious practice and to provide for social welfare The
Supreme Court held that the right to practice religions does not include any
right to forced conversion of any individual, as it will disturb the public order. In
the famous case of Jagdiswaranand Vs. Police Commissioneri3 9 , the right to
perform tandav dance with weapon and human skulls in a public procession
was banned and certain restrictions were imposed in the interest of “public
order and morality”. Similarly slaughtering of cows on Bakrid was held not to
be an essential practice of Islam and thus it was prohibited by law in the interest
of public order in Md. Hanif Quereshi Vs. State of Biharuo-

Article 26 is nothing but rather a continuation of Article 25 which

emphasises on religious denominations to maintain tolerance among all
religious groups. Like Article 25, Article 26 is also subject to public order,
morality and health. Another important point is that both Articles 25 and 26 are
free to carry on their secular and religious activities without interference from
each other.

Article 27 says that no person shall be compelled to pay taxes or

expenses on promotion or maintenance of any particular religion This is in
consonance with the concept of secularism, which means equal respect for all
religions.

Article 28 strictly restricts any kind of instructions or religious

preaching in any educational institutions wholly maintained by state funds

There are various cases relating to the violation of right to religion.

In Shri Jagannath Temple, Puri Management Committee Vs Chintamani
Khuntia^i, the court held that although the state cannot

139. Jagdiswaranand Vs. Police Commissioner AIR 1984 SC 51

140. Mohd. Hanif Quareshl Vs. Stale of Bihar AIR 1958 pC 731
141. Shri Jaganath Temple, Puri Management Committee Vs. Chintamani Khuntia (1997)8 sc.c
422
interfere with the freedom of person to profess, practice and propagate his
religion the state, can, however, control the secular matters with all activities, in
or connected with the temple. The management of the temple or maintenance
of discipline and order inside the temple can be controlled by the state. If any
law is passed for taking over management of the temple, it cannot be struck
down as violative of Article 25 or Article 26 of the Constitution.

In another case of Moulana Mufti Syed Md. Murur Rehman

Baskati Vs. State of W.B.U2, the question of using microphones and
loudspeakers arose. When the authorities put on restriction on the use of
microphones and loudspeakers at the time of Azan at various mosques in
Calcutta, the petitioners being the Imams of the mosques filed a writ petition
challenging the same as violative of Article 25 of the Constitution The Division
Bench of the Calcutta High Court has held that such restriction on use of
microphones and loudspeakers during Azan is not violative of Article 25 of the
Constitution.

In the petition filed by Romesh S/o Chotalal Dalai Vs. Union of

lndia143 and others under Article 32 of the Constitution, the petitioner asked the
court to prevent the screening of tele-serial 'Tamas' by Doordarshan, claiming
that it depicts communal violence. It invoked Article 21 and 28 of the Constitution
and the Cinematographic Act, 1952 An appeal was also filed against the order
of the Bombay High Court :n a petition on the same issue.

After going through the facts, the court found that the events
depicted in the serial although may be communal, but may likely to prevent
such acts in the future by extremists and fundamentalists The court finally held
that there was no violation of Article 21 and 25 of the Constitution by
Doordarshan and the petition and the appeal was dismissed.

142. Moulana M ufti Syed Md. M urur Rehman Baskati Vs. State of WB AIR 1999 Cal 15 (DB)
143. Romesh S/o Chotalal Dalai Vs. Union of India and others WP(C) No. 107 of 1988 with Si P No. 3019 of 1988
 180

In this modern period, the Ayodhya dispute has virtually paralysed

the very concept of secularism enshrined in the Preamble to the Constitution of
India. There has been an age long controversy regarding the site of the Babri
Masjid in Ayodhya. But it took a serious turn, which eventually led to the
demolition of the Masjid on 6th December, 1992 There have been disputes,
conflicts and debates between the two religious groups for the ownership of the
land. However, gradually it took the shape of a major political and communal
issue involving the entire nation After the announcement of Viswa Hindu
Parisad about the carrying of bricks to Ayodhya to build a temple, the State of
Uttar Pradesh petitioned the Allahabad High Court. By an order, dated 14.8.89,
the High Court prevented anyone from interfering in any manner and from
disturbing the status quo. A further petition was filed by V.M. Tarkunde as puja
was allowed to take place. However, by June, 1992, Viswa Hindu Parisad made
up their final stand to demolish the mosque and build a temple It was done so
on 6.12.92 and the Supreme Court initiated suo-moto contempt proceeding
against those who vowed to protect the structures of the site.

But an advocate and three others filed a petition under Article 32

of the Constitution indicating that there is a tendency that communal riots may
flow up in certain areas of some states because of Shila Nyash Procession. It
was also said that 9th November 1989 was fixed for laying the foundation stone
of Ram Jonam Bhoomi Mandir by the VHP activist near the Babri Masjid. The
court issued notice that the procession should be stopped and not to let anyone
even vehicles to go to Ayodhya carrying bricks.

After the demolition of the mosque in December 1992 a petition

under Article 226 of the Constitution was filed in the High Court of Mumbai by
Advocate Ajit Narayan Jakhads. It challenged the decision of the Government
of India to rebuild the Babri Masjid at Ayodhya and stated
 1H1

that such an act will lead to the violation of Articles 14, 15, 26, 27 and 142 of
the Constitution. The petition also stated that the decision of the centre was
against the secular character of India. An appeal was made to constitute a trust
comprising people from different religious groups to find an amicable solution
to the controversy.

Cultural and Educational Rights :

The cultural and educational rights are guaranteed under Article

29 and 30 of the Constitution of India.

Article 29 guarantees to every section of the society, residing

anywhere in India having distinct language and culture, the right to preserve
the same. No citizen can be denied admission to any educational institution
maintained or aided by the state on grounds of religion, race caste or language.

In Hindi Hastakshari Samiti Vs. Union of Indian, the Supreme

Court held that it could not, however, be said that in not holding Entrance
Examination in any particular language, be it in Hindi or regional language,
there was denial of admission on the ground of language so as to violate Article
29(2) of the Constitution.

In E.M. Students Parents' Association Vs. State of Karnatakaus,

the Supreme Court held that the compulsion of study of state regional language
is not violate of Articles 29 and 30 of the Constitution. Such compulsion can not
be said to be throwing undue burden on the students. As it is a policy matter of
the state government it cannot be interfered with by the court.

144. Hastakshari Samltl Vs. Union ot India AIR 1990 SC 851

145. E.M. Students Parents' Association Vs. State of Karnataka AIR 1994 SC 1702
 Article 30(1) says that all minorities shall
have the right to establish and administer
educational institutions of their choice. If
property of any institution is acquired, then
proper and adequate compensation should be
paid so that the right given by the Article remains
meaningful Moreover, in the matter of giving
aids, the state shall not discriminate against
minority managed institutions.
The Supreme Court held that a minority
group can effectively conserve its language etc.
through educational institutions of its choice and
if such institution receives state aid then subject
to limitation imposed by Cl(2) of Article 29i46,
may impart instruction to the children of their
community in their own language147.
Regulation of admission to college on the basis
of religion, race or caste is bad148.
Whether the citizens belong to majority
or minority group Cl (2) of Article 29 offer
protection to alli4g. The right to administer
cannot include the right to maladminister. It is
well-settled that the educational institutions
protected under Article 30 have no right to
maladminister and the state has the power to
regulate the management and administration of
such institution in the interest of educational
need and discipline of the institution. But in Bihar
State M.E. Board Vs. Managing Committee M.H A
College15o, this power of the state does not
extend to completely take over the management
of such minority institution.
 In D.A. College Vs S tates, the Supreme
Court held that in order to constitute linguistic
minority community they must have a separate
script for those who speak it. Anglo-Indian
Community152, Jams and Sikhs in the Union
Territory of Delhi, Arya Samaj, Church of South
53,

lndia154, are religious minority. Article 29

provides for general protection to conserve their
language, script and culture. This is an absolute
right and not subject to any reasonable
restriction's.
146. In Re, The Kerela Education Bill AIR 1958 SC 956
147. State of Bombay Vs. Bombay Education Society AIR 1954 SC 561
148. State of Madras Vs. Srimathi Champakan Dorairajan AIR 1951 SC 226
149. State of Bombay Vs. Bombay Education Society AIR (1955)1 SCR 568
150. Bihar State ME Board Vs. Managing Committee MHA College AIR 1971 SC 1737
151. D.A. College Vs. State AIR 1971 SC 1737
152. State of Bombay Va. Bombay Education Society AIR 1954 SC 561
153. Arya Samaj Education Trust Vs. Director of Education AIR 1976 Del 207
154. K.O. Verkey Vs. State of Kerela AIR 1969 Ker 191
155. Jagdev Singh Vs. Pratap Singh AIR 1965 SC 183
 183

It was declared on April 26, 1974 by a special Constitution Bench

of the Supreme Court that the provisions of the Gujrat University Act, 1949
amended in 1972 governing the affiliation of minority colleges regulating the
appointment of the staff and provisions for arbitration of disputes violated the
Fundamental Rights of the minorities to administer educational institutions of
their choice. Justice Mathew, reacted to the allegations made by re-affirming
that the rights of the minorities are protected. The ruling by the court followed
two writ petitions filed by the Ahmedabad Saint Xaviers' College Society Vs.
State of Gujrat156. Later the Bench however held that regulatory measures
which are for the achievement of goal of making the minority educational
institutions effective for imparting education could not be considered to impinge
upon the right guaranteed by Article 30(1) of the Constitution. The judgement
made relates to payment of pay scales, allowances, medical facilities Pension,
Provident fund and other benefits to the employees of recognised schools and
colleges which are privately run at rates not less than those given to the
employees of government institutions.

In D.A.V. College, Bhatinda Vs. State of Punjab157 the Supreme

Court made it clear that the minorities have a right to establish and administer
educational institutions of their choice and to choose the medium of instruction
also. If any authority or university prescribes the medium of language to be
used under compulsion or pressure, then it will violate the Fundamental Right
to conserve their script and administer their institutions.

Right to Constitutional Remedies :

Besides making provisions for various types of Fundamental

Rights, the Constitution of India has also provided for an effective machinery
for the protection and enforcement of these rights. Even the

156. Ahmedabad Saint X avier’s College Society Vs. State of Gujrat, AIR 1974 SC 1939
157. DAV College Bhatinda Vs. State of Punjab AIR 1971 SC 1731
right to protect the Fundamental Rights of the citizens has itself been made a
Fundamental Right which is named as Right to Constitutional Remedies.
Article 32 guarantees this right to move the Supreme Court by appropriate
proceedings for the enforcement of Fundamental Rights contained in part III of
the Constitution.

Thus, the Indian Constitution has made the judiciary the guardian
of the Fundamental Rights of the people. The Supreme Court has been
bestowed with the right to issue writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo-warranto and Certiorari etc.

The Writ of Habeas Corpus means, "you may have the body" This
writ is used to preserve personal liberty against arbitrary arrest and detention
made by the executive.

The word “mandamus" means "We Command". Mandamus is a

writ which may be issued by the Supreme Court to some subordinate authority
asking it to perform an act which falls within its jurisdiction. Thus the court
command a public body or an official to perform a public duty

The Writ of Prohibition is issued by the higher court to the lower

courts in order to restrain the lower courts for exercising powers beyond their
jurisdiction.

Certiorari means "to be informed of". It is issued by a superior

court to an inferior court requiring the latter to send the records of a particular
case pending before it to the superior court.

The term quo warranto means "by what authority". A Writ to quo-
warranto is to prevent a person from continuing in an office which he occupies
unjustly.
 185

Thus Article 32 provides for the enforcement of Fundamental

Rights by the Supreme Court. The people have got the right to move the
Supreme Court in case of enforcement of the Fundamental Rights by the State.
Article 32 grants power to the Supreme Court and Article 226 grants powers to
the High Courts also to issue various Writs. After the emergence of the public
interest litigation any member of the public can through a letter or through any
PIL agencies or firms can approach the court for the violation of Fundamental
Rights. PIL petition can’also filed on behalf of a person or a group of people
who is unable to approach the court for financial or other conditions.

In Bar Council of Maharashtra Vs. M.V. Dabholkanss Justice

Krishna Iyer, in para 53 of the judgement has indicated the emergence of PIL.
It is pointed out being traditionally used to the adversary system we search for
individual persons aggrieved but a new class of litigation being public interest
litigation, where a section or whole of the community is involved, such as
consumer's organisation or National Association for Advancement of coloured
people has emerged. A Bar Council was also regarded as such an organisation
when a lawyer is involved and as such it is also a person aggrieved to file appeal
against the decision of the Disciplinary Committee of the State Bar Council.

When a Writ under Article 32 was filed by people's Union for

Democratic Rightsi59 in the Supreme Court to enforce labour laws to large
number of people engaged by the Union of India, Delhi Administration and Delhi
Development Authority or other during Asian Games held in Delhi in 1982
alleging that they were not enforcing the Labour Laws which were beneficial to
these workers the Supreme Court entertained the writ petition and granted
appropriate relief. The Supreme Court has observed that the public interest
litigation is brought before the court not for purpose of enforcing the right of one
individual against another as happens in ordinary litigation but it is intended to
promote and vindicate the public

158. Bar Council of Maharastra Vs. M.V. Dabholkar AIR 1975 SC 2092
159. Peoples' Union for Democratic Rights Vs, Union of India (1998)8 SCC 485
interest which demands that the violation of Constitutional or legal rights of large
number of people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and unredressed. So, when
the voluntary organisation has come forward to vindicate the constitutional and
legal rights of large number of poor and ignorant people, the Supreme Court
cannot refuse to entertain the petition on the ground of traditional concept
"person aggrieved".

Another petition was filed by the Free Legal Aid Committee

Hazaribagh16o, Bihar on behalf of a prisoner for the violation of Article 32 The
prisoner was given life term imprisonment by defining him as mentally unstable.
Later it was found that he is a normal man, but no action was taken to release
him. The petition invoked Article 21 of the Constitution and referred to section
302 of the IPC, 1860.

The Supreme Court held that the prisoner Sant Bir be released
and sent home with adequate money for journey. The State Government was
also directed to prepare a list of all the undertrials who have been detained in
spite of being fit for discharge. The court decided to give adequate
compensation to them.

The petition filed by Mathew Areeparmtil and other Vs. State of

Bihar and others^, on behalf of the undertrial Adivasi prisoners The reports
submitted stated that large numbers of people were detained in jails for petty
offences for many years without trial.

Referring to Section 169 of the Cr Pc 1973, the court directed the

release of the inmates on personal bond. It was also stated that Section 144 of
the Cr Pc, 1973 should not be misused and the orders should be passed strictly
according to principles laid. The Adivasis were warned not to take law in their
own hands, which might create havoc among the government officers. They
were asked to approach the

160. Sant Bir Vs. State of Bihar, W.P. (Cr l)IV 1052 of 1982
161. Mathew Areeparmtil and others Vs, State of Bihar and others, W.P (Cr I) No 371 of 1983
 187

concerned authority if any of their rights are violated so that they can get
relief from it.

The Free Legal Aid Committee, Jamshedpur filed a petition

16? under Article 32 of the Constitution stating the deplorable conditions
of the patients in Mahatma Gandhi Memorial College, Hospital. The court
emphasised that the primary duty of the state under Article 47 is to raise
the level of nutrition, the standard of living of the people and improvement
of public health.

Expansion of the Jurisdiction of the Supreme Court under Article 32 in

recent years :

The jurisdiction of the Supreme Court is confined to the

enforcement of the Fundamental Rights under Article 32. But in recent
cases, the' Supreme Court has expanded this jurisdiction to a great extent
and it assumes the initiation or supervision of administrative action which
traditionally belongs to the jurisdiction of the executive. The following
measures were taken by the Supreme Court for the expansion of its
jurisdiction.

(1) The Supreme Court has very much liberalised and expanded the list
of Fundamental Rights falling under Article 21 in the following ways

Through the judgement of Mohini Vs. State of Karnataka,63

the Supreme Court included the right to free compulsory primary
education.

In Subhas Vs. State of Bihar164 , the Supreme Court held

that right to pollution free environment is another right which should be
included under Article 21.
162. Free Legal A id C om m ittee V s. M ahatm a G andhi M em orial C ollege, H o sp ita l S akchi,
Jam shedpur, W P (C r I) No. 50 of 1982
163. M ohlnl V s. S tate of K arn a ta ka A IR 1992 SC 1858; (1992)3 SCC 666
164. S ubhas V s. S tate of B ihar A IR 1991 SC 420
 1 88

Another right to protection of cultural heritage is included in

the right to life and personal liberty under Article 21 by the decision of the

Supreme Court held in Ram Saran Vs. Union of Indians-

Apart from this, in delivering the judgement of Vishal Vs Union of

Indian, the Supreme Court included in Article 21 the right of every child to full
development.

Moreover, the Supreme Court included in Article 21, the right of

resident at hilly areas to have access to roads which was decided in State of
Himachal Pradesh Vs. Umedi67 -

Again the Supreme Court expanded the right falling under Article
21 by including the right to privacy which was decided in the case of people's
Union Vs. Union of Indiaies-

(2) The Supreme Court has involved the positive duties and obligation
under each of the Directive Principles, in part IV and read them into
Fundamental Rights treating the directions of the state policy and the
Fundamental Rights as "supplementary and complementary to each
other"i69.

(3) By using public interest litigation liberally, the Supreme Court not only
acts as restraint upon the executive but issues appropriate directions
and guidance which has now emerged as the new concept of judicial
activism.

(4) In order to enforce the Fundamental Rights, the Supreme Court under
Article 32 of the Constitution has jurisdiction not only to issue writ in the
nature of habeas corpus, mandamus, prohibition certiorary and quo-
warranto but has made liberal use of the orders

165. Ram Saran Vs. Union of India AIR 1989 SC 549

166. Vishal Vs. Union of India (1990)3 SCC 318
167. State of HP Vs. Umed AIR 1986 SC 847
168. People's Union Vs. Union of India (1991)1 SCC 301
169. Muralidhar Vs. Biswanath 1995 Supp (2) SCC 549; Charan Vs. State of Punjab ( 1997)1
SCC 151
 189

and directions which the Supreme Court is also empowered to issue in

terms of Article 32(2) of the Constitution.

Right to Property :

The right to property was originally incorporated at two places in

Article 19(1)(f) and Article 31 of the Constitution of India. Article 19(1)(f) said
that “all citizen shall have the freedom to acquire, hold and dispose off their
property". Article 31 laid down that : (a) no person could be deprived of his
property save by authority of law, i.e. the authority of a law or rule having
legislative force under the Constitution, (b) the state could make a law for the
acquisition and requisition of a person's property but subject to two conditions.
First, the acquisition or requisition must be for public purposes. Second, the law
must provide for compensation Thus right to property represented a
compromise between the line of liberalism standing for the economic freedom
of the individual in regard to the acquisition, possession and disposition of
property and that of socialism desiring its regulation by the state in the public
interest including its expropriation for a public purpose on the payment of just
compensation The right to property in its original form had the following
essential features.

(1) No person could be deprived of his property saved by the authority of

law.
(2) No property, movable or immovable including any interest in any
commercial or industrial undertaking, could be taken possession of or
acquired for public purposes under any law authorising the making of such
acquisition, unless the law provided for the compensation for the property
taken possession of or acquired and either fixed the amount of the
compensation or specified the principles on which and the manner in which
the compensation was to be determined and given
 10 0

(3) No law for compulsory acquisition of private property passed by the state
legislature could have effect unless it had been reserved for the
consideration of the president and had received his assent thereto Any law
of the state enacted not more, than 18 months before the commencement
of this Constitution, could within three months from such commencement
be submitted to the President for his certification, and thereupon it the
President by public notification so certified, it could not be called in
question in any court on the ground that it contravenes the provisions of
the Constitution.

Thus the Constituent Assembly though made the right to property

a Fundamental Right, practically it did not sanctify property it only permitted the
state to acquire any property if it was necessary in the interest of the society.
Justice H.R. Khanna gives his opinion by saying that the approach adopted by
the framers of the Constitution was to subordinate the individual right to
property for the social good17o

The conflict between the Fundamental Rights and the Directive

Principles of State Policy arose soon after the commencement of the
Constitution. While the Patna High Court in Kameswar Singh Vs State of Bihar
declared the Zamindary Abolition Act invalid, some other High Court delivered
judgement which were quite the opposite,?). The Supreme Court held the view
that it was unconstitutional to differentiate between the rich and the poor in
determining the compensation for property acquired by the state. This led to the
necessary amendment in the right to property in 1951.

The First Constitution Amendment Act was made in 1951 which

inserted Articles 31A and 31B in the Constitution. Article 31A provided that no
law, affecting the rights of any proprietor or intermediate holder in any "estate"
shall be deemed to be void on the ground that it is inconsistent with or takes
away or abridges the rights enshrined in Articles

170. H R. Khanna : Judicial Review or Confrontation p. 9

171. AIR 1951 p. 91
14, 19 and 31. Article 31 B Stated that any enactment which is placed in the
Ninth Schedule will not be liable to be challenged on the ground that it abridges
or takes away any of the Fundamental Rights.

Thus the difficulties which had arisen on account of the

contradictory judgements passed by the High Court, were covered by the First
Constitution Amendment Act.

But the matter of challenging the First Constitution Amendment Act

was taken to the Supreme Court in the case of Sankari Prasad Vs. The Union
of Indian . The Supreme Court held that although Fundamental Rights imposed
fetters and limitations on the powers of the Legislature and the Executive, they
were not inviolable or transcendental but they were subject to the power of the
Parliament to amend the Constitution as provided in Article 368. The Supreme
Court held that the term "law" in Article 13(2) does not include constitutional
law, i.e. exercise of constituent power under Article 368. Thus the Parliament
had the power to amend Fundamental Rights. Though the courts were deprived
of the power of declaring a law ultra vires of the Constitution, they exercised
their power of judicial review in the name of looking into the very issue of
payment. In the famous Bela Banerji casei7 3 , the Supreme Court held that
(i) compensation meant a "just equivalent or "full market value" of what the
owner has been deprived of, and (ii) the adequacy of compensation was a
justiciable issue. In the cases of Subodh Gopah7 4 , Sholapur Spinning and
Weaving Co. Ltd.^s, Saghir Ahmed176, the Supreme Court held that even the
taking over of an industrial undertaking by the state for a temporary period
would amount to acquisition of property involving the duty to pay compensation
to the owner.

When the Supreme Court had held that the market value should
be the basis of determining the compensation, the government felt that it would
be impossible for it to implement its social welfare policies if it

172. Sankari Prasad Vs. The Union of India 1951

173. Smt. Bela Banerji and others Vs. The State of West Bengal AIR 1954 SC 170
174. Subodh Gopal AIR 1954 SC 170
175. Sholapur Spinning & Weaving Co. Ltd. AIR 1954 SC 92
176. Saghir Ahmed AIR 1954 SC 728
was required to pay huge amounts of
compensation as determined by the courts over
and against the wishes of the Parliament. Thus to
remove the conflict which had arisen between the
Fundamental Rights and Directive Principles, the
Fourth Constitution Amendment Act of 1955
came into being. This Act defined the word
compensation in the way that the payment given
to a person in return of his property became
compensation as determined by the law-making
authority.

Thus, the problem of "due" or "fair" or

reasonable payment as to be determined by the
courts was done away with. Moreover, it placed 7
more acts of the state governments into
protected area of the IX schedule making them
immune form the scope of, judicial review. Article
31 A{2) was inserted to expressly provide that a
law which did not provide for a transfer of
ownership or right to possession of the property
to the state or to a corporation owned or
controlled by the state could not be deemed to
be a law for the compulsory acquisition or
requisition of property as contemplated under 31
(2) of the Constitution.

Thus the question of adequacy of

compensation was withdrawn from the field of
judicial determination and was left exclusively
with the legislature. Ram Gopal writes, "the 4th
amendment was an ugly patch in the
Constitution. All it did was to make
compensation non justiciable. By a fragmentary
amendment, the government crossed a hurdle
but exposed itself to basic objection. The
judiciary has the democratic right to interpret
the Constitution if any executive or
parliamentary measure is challenged by a citizen
as unconstitutional To prevent the court from
exercising that right militates not only against
democracy but also against the spirit of the
Constitution itself" 1 7 7

After that the Seventeenth Constitution

Amendment Act of 1964 came into being that
enlarged the definition of the word "estate" in its
application to the ryotwari land as well as in
respect of all provisions that
177. Ram Gopal : Undemocratic elements in the Indian Constitution, p. 56
 193

are normally made in land reform enactments. As a result of this amendment,

44 Acts designed to achieve agrariam reforms, were added to the Ninth
schedule, barring the courts jurisdiction in regard to them.

Though the 4th Amendment resolved the issue relating to the

justiciability of compensation, the question of quantum of compensation for the
property acquired remained controversial. The amended Article 31(2) came up
for consideration in a series of cases - Kochhuni case,;8 Vajravelu casei7 9 ,
Metal Corporation caseiao etc. The decision in the Metal Corporation case was,
however overruled by the Supreme Court in its decision in State of Gujarat Vs.
Shantilal Mangal DasiSi. In this case the Supreme Court held that the quantum
of compensation fixed by the legislature was not liable to be canvassed before
the court on the ground that it was no just equivalent; and the principles
specified for the determination of compensation would also not be open to
challenge on the plea that the compensation determined by the application of
these principles was not just equivalent; and it would, however, be open to the
courts to strike down a law if they found that the compensation provided by the
law was illusory or no compensation at all.

The 25th Amendment of the Constitution redrafted Article 31(2) of

the Constitution with a new provision Article 31(C). The amended Article 31(C)
substituted the word "amount" for "compensation". It also laid down that any
legislation passed for furtherance of two Directive Principles [specified in
clauses (b) and (c) of Article 39 concerning control of material resources for
common good and prevention of concentration of wealth] could not be
questioned on the ground of violation of Fundamental Rights. After this
amendment no law relating to the acquisition of property could be challenged in
a law court for not paying the market value After that the 29th Constitution
Amendment Act was made that placed some laws made by the Kerala
Government into the IX schedule of the Constitution.

178. AIR I9 6 0 SC 1186

179. AIR 1965 SC 1017
180. AIR 1957 SC 637
181. AIR 1969 SC 614
 194

The matter of the validity of the 24th, 25th and 29th Constitution
Amendment Acts was challenged in the Supreme Court in the Fundamental
Rights case of 1973. The Supreme Court held the 24th and 25th Constitution
Amendment Acts as valid, but declared the provision of clause c added to
Article 31 as void. The Supreme Court held that the Constitution Bench will
decide whether the impugned Acts of Kerala take away Fundamental Rights
or only abridge them and in the latter case whether they affect reasonable
abridgement in the public interest. Justice H.R. Khanna held that the
Parliaments' power to amend the Constitution was limited and it could not alter
the basic structure of the Constitution

But he struck down part second of the Article 31(C) which " .... No law

containing a declaration that it was for giving effect to such policy

shall be called in question in any court on the ground that it did not give
effect to such policy"i8 2 .

The 24th Amendment Act of 1971 empowered the

Parliament to make any amendment and the Supreme Court held it valid
in the Fundamental Rights case of 1973. The 42nd Constitution
Amendment Act of 1976 deprived the courts of the power to look into the
validity of a law relating to Constitutional Amendment.

Chagla Commission on Property Right :

The justification forwarded for the inclusion of clauses A B and

C to Article 31 was the legislation directed towards economic justice should
not be liable to be challenged by resort to right to property as guaranteed by
the Constitution. The various clauses added to Article 31 and progressive
extension of the IX schedule shows that the presence of property right in the
chapter on Fundamental Rights became an excuse for the virtual
emasculation of Fundamental Rights. Therefore, a proposal was made for the
deletion of Article 19(1) and Article 31(2) during the internal

182. Khanna, H R, : Judicial Review and Confrontation, p. 9

 105

emergency by a committee appointed by J.P, Narayan which consisted with

some eminent jurists such as M.C. Chagla as the Chairman and V M Tarkunde
and Shanti Bhusan as the members. In its interim report dated May 25, 1976,
the Chagla Committee said, "It is said that the Fundamental Rights to property
contained in Articles 19(1) and 31 have been found obstacles in the path of
progressive legislation for implementing the Directive Principles while the
Committee is not convinced that these Fundamental Rights have stood in way
of progress, in order to remove apprehensions in this regard, the committee
recommends that Fundamental Rights to property contained in Article 19(1) f
and Article 31 be deleted altogether. The existence of these Fundamental
Rights must not be allowed to be used as an excuse for depriving the people
of their civil liberties or practising discrimination. If these Fundamental Rights
were deleted, no immunity to any legislation from the attack on the grounds of
the violation of other Fundamental Rights relating to equality or civil
Iiberties"i83.

After that the Janata Government amended the Constitution and

took away the right to property under the 44th Amendment Act of 1978. This
act removed Article 19(1 )f - the right to acquire, hold and dispose of property -
from the list of Fundamental Rights and made it a constitutional or legal right.
It also dropped Article 31 which provided for compensation for compulsory
acquisition of property, and substituted it by a new Article 300A. This new
Article provides that no person shall be deprived of his property saved by
authority of law.

Directive Principles of State Policy - Nature and Scope :

Part IV of the Constitution of India deals with the Directive

Principles of State Policy which according to Dr. B.R. Ambedkar "Constitutes a
very comprehensive political, social and’ economic

183. The Chagla Committee Report, The Hindustan Times, June 3, 1976
 196

programme for a modern democratic State184 . The Directive Principles of

State Policy have been borrowed from the Irish Constitution of 1937 which
contains a number of similar provisions called "Directive Principles of Social
policies"i85. The source of some of the Directive Principles is the Indian social
system itself. Provisions relating to village Panchayats, Cottage industries and
scheduled caste and scheduled tribes etc are purely Indian in content.

The makers of the Constitution had a dream to establish a welfare

state in India but did not find it possible to include economic rights in chapter III
which deals with the Fundamental Rights. Therefore to include certain
economic policies as instructions to be followed by the administrators in the
governance of the country, they made the Directive Principles supplementary
to the Fundamental Rights. The principles like "adequate means of livelihood
for the citizens", "equal pay for equal work to both men and women", "provisions
of public assistance in cases of unemployment, old age, sickness and
disablement", etc were included in chapter IV of the Constitution. Thus, the
directives are in the nature of duties which the Constitution calls upon the state
to perform to achieve the ideals of welfare state, "if a chapter of Fundamental
Rights is a must for a state of the modern democratic type with a written
Constitution, a chapter on the Directive Principles of State Policy is a
must for a welfare state with a written Constitution" 186.

Political thinkers differ in their opinion with regard to the Directive

Principles of State Policy. Sir Ivor Jennings describes them as "little more than
a manifesto of aims and aspirations"187. Most of the members of the
Constituent Assembly were critical of the non-justiciable character of the
Directives. They thought that this is the greatest weakness of the Directive
Principles of State Policy and so they describe the directives as "superfluous",
"pious wishes" or "high sounding principles"

184. Joshi, G IV : The Constitution of India, p, 112

185. Dubey, M.P. : Directive Principles and the Supreme Court
186. Markandan, K.C. : Directive principles in the Indian Constitution, p. 5
187. Jennings, Sir Ivor : Some characteristics of the Indian Constitution, p 13
 197

Prof. K.T. Shah dubbed them as "pious superfluous and

compared them with a "cheque payable by a bank as per its convenience"^.
The severest charge directed against the Directive Principles is that being
purely directive in character without a binding force, the principles are hardly
inspiring.

It is true that there is no constitutional provision to hold the

government or any other authority responsible for not acting according to
these principles; but public opinion is the only sanction behind the Directive
Principles. Any government which disregards the Directive Principles is bound
to incur the wrath of the people leading to its defeat in the next election.
Therefore, no government can disregard the Directive Principles because of
fear of public opinion going against it. According to Dr. B.R. Ambedkar, the
Chairman of the Drafting Committee of the Constitution, the aim of
incorporation of certain principles in part IV of the Constitution was to instruct
the future executives and legislatures of India to observe certain principles
and he hoped that they would not disregard these principles. In this regard
Justice P.B. Gajendragadkar opines "Whatever may be the political affiliation
of the party, which would come into power in future either in the states or at
the centre, it is bound recognise the fact that the principles laid down in part
IV are intended to be its guide, philosopher and friend in the matters of its
legislative and executive activities"18 9 -

Thus the Directive Principles constitute a very flexible and also a

very dynamic code that all organs of government must follow to realise the goal
of a social welfare state in our country. The judiciary has also well understood
the real significance of Directive Principles. The first Chief Justice of the
Supreme Court of India, H.L. Kania, in the Gopalon case190 of 1950 visualised
that being a part of the Constitution these principles "represent not the
temporary will of a majority but the deliberate wisdom of the nation expressed
through them to be fundamental in the

188. CAD IX, p .378

189. P.B. Gajendragadkar : The Constitution of India (Its philosophy and postulates) P. 11
190. Gopalan, A.K, Vs. The State of Madras (1951)
 198

governance of the country". The Supreme Court has taken the view that
reasonable restrictions can be made to implement the Directive Principles In
the leading case of F.N. Bulsara Vs. the State of Bombay (1951)i91 the
Supreme Court held that the state was justified in prohibiting the consumption
of drugs and intoxicating materials for public purpose. Again in Kameshwar Vs.
the State of Bihar (1952)i92- Article 39 was invoked in support of the contention
that the abolition of zamindari had a legitimate public purpose.

These principles have been honoured in drafting the 5 year plans.

In the First Five Year Plan it was stated that the Directive Principles "make it
clear that for the attainment of these ends, ownership and control of the
material resources of the country should be distributed as best to subserve the
common good, and that the operation of the economic system should not result
in the concentration of wealth and economic power in the hands of a few. It is
in this larger perspective that the task of planning has to be envisaged". The
Second Five Year Plan was based on the ideal of socialist pattern of society.

One of the important achievement of the implementation of the

Directive Principles of State Policy is the establishment of Panchayati Raj
throughout the country. Panchayati Raj institutions have been set up covering
about 98% of the rural population and endowed with powers of civic
administration and elementary justice. Several statutory bodies like All India
Khadi and Village Industries Board, All India Handicarfts Board All India
Handloom Board, Small Scale Industries Board, Silk Board National Small
Industries Corporation, Khadi and Village Industries Commission etc. have
been set up.

Steps are also being taken for the development of Backward

Classes, Scheduled Castes and Schedule Tribes in all spheres of life Special
measures are taken for their welfare.

191. F.N. Bulsara Vs.. The State of Bombay (1951)

192. Kameswar Vs. The State of Bihar (1952)
 199

In some States, steps have been taken to provide free and

compulsory education to children upto the age of fourteen.

A law has been passed in 1973 to separate the executive from the
judiciary in the lower stages. In the economic field, references may be made to
various land reform laws relating to the abolition of Zamindari, Jagirdari and
Ryotwari system. Steps are also being taken to solve the unemployment
problem.

Thus though the Directive Principles of State Policy are not

enforceable by law, they are constitutionally significant. The Supreme Court
has often relied upon the Directive Principles while considering the
constitutionality of various laws. Land reforms in various States, a large
increase in progressive taxation, levies on wealth tax and gift tax the enactment
of Hindu Succession and Inheritance Acts, Organisation of village Panchayats,
laws making Primary Education free and compulsory Nationalisation of banks
and L.I.C. and Coal mines etc. have been justified by the Supreme Court relying
upon the Directives contained in part 'V of the Constitution.

Relevant cases which dealt with the working of the Fundamental Rights
and Directive Principles :

The following cases will give us a clear idea about the actua
working of the Fundamental Rights and Directive Principles as enshrmec in our
Constitution.

In the case of Sheela Barse Vs. Secretary, Children's tega. Aid

Society and others,93, a letter dated 22.8.84 was sent to the High Court of
Mumbai by an activist and journalist Sheela Barse and it wa^ registered as Writ
Petition under Article 226 of the Constitution. The lette

193. Cri A No. 300 of 1985

 200

depicted the conditions in the New Observation Home at Mankhurd managed

by the Children's Aid Society, Mumbai. It was alleged that children were illegally
detained and harassed and were forced to take up hazardous employment and
the society made a huge profit of about rupees four lakh each year. In its order,
the High Court had found some of the allegations to be without justification,
while others were accepted The direction of the High Court were considered to
be inadequate as the court failed to consider severity of the conditions and
therefore an appeal was made under Article 136 of the Constitution in the
Supreme Court by the petitioner. The appeal stated that the High Court had lost
sight of the provisions of the Bombay Children's Act 1948 and Articles 21, 24,
39(e) and 39(f) of the Constitution and that the society should be treated as "the
state" under Article 12 of the Constitution, not as a voluntary organisation

In an order194 , Chief Justice P.N. Bhagawati and Justice R S.

Pathak (concurring) said that during the pendency of the petition the Juvenile
Justice Act, 1986 had been passed and the court directed that Juvenile Courts
be set up presided over by judicial officers with special training according to the
needs of the children. As the Chief Minister of Maharshtra was the ex-officio
president of the society, the society received grants from the state and the court
stated at 56: that the respondent society should have been treated as a state
within the meaning of Article 12 as it is undoubtedly an instrumentality of the
state on the basis of the test laid down by this court. The respondent society
has, therefore, to regulate its activities not only in accordance with the statutory
requirements of the constitutional provisions in Article 21 and 24 but also with
the Directive Principles of State Policy.

The High Court made some remarks about the petitioner, Sheela
Barse, regarding her lack of acquaintance with court procedure However, the
Supreme Court stated that the observations made against

194. Order dt. 20-12-86 as cited in Ahuja, Sangita, People. Law and Justice p. 247
 201

her were totally unjustified. The state of Maharashtra was directed to pay the
appellant cost of Rs. 5,000/-.

In the Sheela Barse case on prisons, the scope of the litigation

was extended and the court too admitted the existence of problem relating to
children on a large scale. It is not only the implementation of Supreme Court’s
order that was monitored, but the implementation of the existing statutory
framework was also looked after The Supreme Court directed that the
Children's Acts be implemented along with the Juvenile Justice Act, 1986.

In D.D. Vyas and others Vs. Ghaziabad Development Authority^,

the petition filed under Article 226 of the Constitution, claimed that an open
space should be used only for a public park and not for any other purpose. The
petition which was filed by the residents of the locality invoked Section 9 and
17 of the Uttar Pradesh Urban Planning and Development Act, 1973 and
Section 2 of the Uttar Pradesh parks playgrounds and open spaces
(Preservation and Regulation) Act, 1975 together with Articles 12, 5lA(g) and
51 A(l) of the Constitution,

In an order dated 13.4.92 by Justice Om Prakash and Justice M.

Katju, the court while upholding the locus standing of the petitioner stated that
a Writ Petition under Article 226 of the Constitution for the preservation of free
air and for the protection of environment can always be filed by the
environmental activists either living in the same locality or otherwise.
Discussing the definition of parks, the court directed that the park should be
maintained properly and trees and flowers should be planted. The court
directed that no construction be allowed except in relation to the maintenance
of the park. The petition was allowed.

The People's Union for Democratic Rights (PUDR) and others

Vs. Union of India and othersige, a letter was sent to Justice Bhagawati by

195. D.D. Vyas and others Vs. Ghaziabad Developm ent Authority, Ghaziabad arid anothei CMW No.
24400 of 1991, Allahabad
196. P eople’s Union for Democratic Right (PUDR) and others Vs. Union of India and o th e r, W .P. No.
8143 of 1981
 202

a team of three social scientists, commissioned by the PUDR to enquire into

the condition of work on the various Asiad construction projects where labour
laws were being flouted. The president of the PUDR and an advocate in the
case noted that the labourers working at the construction sites were not directly
recruited by the contractors but were enlist by Jamadars who either went to the
village to recruit them or collect them from the migrants who came to Delhi.
Almost all the labourers were migrants - recruited from Bihar, Orissa, Bengal,
Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Rajasthan and they were
mainly landless and poor.

In an order dated 11.5.82 by Justice P.N. Bhagawati and Justice

Baharul Islam, the Delhi Development Authority was directed to carry out
weekly inspections and to ensure the payment of minimum wages and
implementation of other labour laws. It also directed the appointment of two
independent institution to act as ombudsmen for protecting the interest of the
workers and ensuring observance of the contract labour. (Regulation and
Abolition) Act, 1970, the Minimum Wage Act, 1948, the Equals Remuneration
Act 1976, the Employment of Children Act 1938 and the Inter-State Migrant
Workmen (Regulation of
i
Employment and conditions of Service) Act, 1979 by the contractors

The court conferred standing on the PUDR and stated that where
judicial redress is sought of a legal wrong suffered by a person or a class of
persons and who are at a disadvantaged position, unable to approach the court,
then the court should cast aside all technical rules of procedure and entertain
the letter as a Writ Petition on the judicial side and take action upon it. The case
in point shows how the workmen rights were violated and due to poverty and
illiteracy they were unable to approach the courts for redress and hence the
petitioners have under the liberalised rule of standing, locus standi to maintain
the present petition espousing the cause of the workmen. It is not the case that
the petitioners
 •>03

are acting malafide or out of extraneous motives since PUDR is an organisation

dedicated to the protection and enforcement of Fundamental Rights and
making Directive Principles of State Policy enforceable and justiciable.

The landmark judgement in people's Union for Democratic Rights

became popular and was later taken as example in many cases The ruling of
this case clarified the scope of Article 23 and used the Directive Principles of
State Policy.

In another case Sachidanand Pandey and another Vs State of

West Bengal and others^, an appeal was filed against an order of the Calcutta
High Court in a petition filed under Article 226 of the Constitution The two
citizens who filed the petition were lovers of wild life They alleged that the
Government of West Bengal allotted lands for the construction of a five star
hotel by the Taj Group at the expense of the zoo. The petition invoked Article
14, 31, 48A and 51A(g) of the Constitution, together with the Bengal Public Parks
Act, 1904.

After analysing the case law and the technicalities, it was held that
the provisions of 1904 Act were not attracted as claimed by the petitioner.
However, the court stated that Directive Principles of State Policy and
Fundamental Duties would be the principal consideration in a case of this kind
and stressed the need to take Articles 48A and 51A(g) into account. As the
principal consideration was to attract tourism and not revenue, the court held
that public interest is paramount in the allotment of land and that the
government did act with probity. The court suggested hat guidelines be framed
which would address the need for PIL litigants and the courts to exercise self-
restraint in the kind of issues and the cases litigated as PILs.

197. Sachidanand Pandey and another Vs. State of West Bengal and others; WP No 8143 or
1981
 204

In the case of Mathew Lukose Vs. Kerala State Pollution Control

Board198, a petition was filed under Article 226 of the Constitution by the
secretaries of the two associations formed to fight pollution The petition detailed
the Water Pollution emanating from the lime-slurry discharged into local streams
and the air pollution caused by the Travancore Electro Chemicals Industries. The
consent for the discharge was given by the Kerala State Pollution Control Board,
but the directions as not to discharge effluents into the streams to construct
draihs were not adhered to. The petition invoked Article 21 and 51(g) of the
Constitution, the water (Prevention and Control of Pollution) Act 1974 and Rules,
the Air (Prevention and Control of Pollution) Act, 1981 and the Environment
(Protection) Act 1986.

In an order dated 27.8.90 by Justice Sankaran Nair, the court

stated that right to environment is part of the right to life. The Kerela State
Pollution Control Board served as an observer to see that the orders of the courts
were strictly carried out.

Similarly, in Rajiv Singh alias Lallan Singh Vs. State of Bihar and
othersigg, the petitioner alleged that one of the respondents, M/s Shankar
Chemicals Industries Pvt. Ltd., manufacture ethyl alcohol and discharge the
untreated effluents and wastes thereby polluting the environment and affecting
the crops and posing a health hazard The petition invoked Articles 14, 21, 47 and
48A of the Constitution, sections 16 and 17 of the water (Prevention and Control
of Pollution) Act and Section 3 of the Environment (Protection) Act, 1986.

In an order dated 19.1.91 by Justice Satyabrata Sanyal and Justice

Aftab Alans, the court ordered an enquiry and a committee was appointed to
study the nature of the effluents. Ultimately, the petitions were disposed of with
no order for costs. In this case also, the courts felt the necessity to preserve
environment and at the same time to develop the

198. Mathew Lukose Vs. Kerela State Pollution Control Board, OP No. 3473 and 4622 of 1988 Kerela

199. Rajiv Singh alias Lalan Singh Vs. State of Bihar and others, CWJC No 6928 with CWJ(. N o .9601,
1989, Patna
backward regions by way of installing industries and factories. But at the same
time, the court ensured that in the process, the environment should not be
polluted and crops and health of the people not to be affected Thus the court
ensured development but not at the cost of environmental degradation or
pollution.

In the case of George Mampilly and another Vs. State of Kerela

and another2oo. a petition was filed under Article 226 of the Constitution asking
the court to prevent the sale of arrack in polythene sachets as it was injurious
to health.

In an order dated 24.2.83 by Justice U.L. Bhatt and Justice

Fatima Beewi, the court held that grievances projected by the petitioner could
lead to serious damage to health and public order stating that the Directive
Principles of State Policy are fundamental to governance and that the matter
needed to be considered in the light of Article 47 of the Constitution, the court
held that government decision could have been arrived only on serious
considerations.

All the cases, discussed above clearly reveal that the directives
provided a basis for a new approach to the problem of constitutional
interpretation substituting new principles. They have been placed in the
Constitution and so they have to be read along with the other parts of the
Constitution. Article 37 States that it shall be the duty of the state to apply the
Directive Principles in making laws.

Fundamental Duties - Nature and Scope :

Fundamental Duties In other Constitutions :

The Constitution of western countries do not specifically provide

the duties and obligations of citizens. Among the democratic

200. George Mam pilly and another Vs. State of Kerela and another LOP No. 9814 of 1992 ; i Kerela
 ?OH

Constitutions, certain duties are mentioned in the Japanese Constitution In

Britain, Canada and Australia the rights and duties of citizens are governed
largely by common law and judicial decisions. The French Constitution makes
only a passing reference to duties of citizens. The American Constitution
provides only for Fundamental Rights and does not refer to duties of citizens.
But the Constitutions of socialist states on the contrary, give equal importance
to the Fundamental Rights as well Duties to their citizens. Among the socialist
countries, the former Soviet Union s Constitution contained a comprehensive
chapter on the citizen duties towards society and towards the state. Chapter
11 of the Constitution of the Republic of China also lays down specific duties
upon the people

Fundamental Duties in the Constitution of India :

The framers of the Constitution of India did not feel it necessary

to incorporate Fundamental Duties in the Constitution. It was during internal
emergency in 1975 that need and necessity of Fundamental Duties was felt
and accordingly Swaran Singh Committee was appointed to make
recommendations about Fundamental Duties Thus Fundamental Duties were
included in our Constitution as per the recommendations of Swaran Singh
Committee. The Committee proposed that, "The Parliament may by law
provide for the imposition of such penalty or punishment as may be considered
appropriate for any non-compliance with or refusal to observe any of the duties.
The committee had also recommended that the duty to pay taxes should also
be made Fundamental Duty of he citizens. But these recommendations were
not accepted by the Congress party"2oi-

The 42nd Amendment Act, 1976 has added Part IV-A chapter on
Fundamental Duties for the first time in the Indian Constitution. Thus by
incorporating this chapter on the Fundamental Duties, the traditional

201. Hans Ra) : Indian Political System, p. 107-108

 P07

duties have been given constitutional sanction. Giving emphasis on the

traditional duties, the Gita and the Ramayana exhort people to perform their
duties without caring for their rights or fruits.

Although the Fundamental Duties form a part of the Constitution

of India, there is no legal force behind them. Moreover, there is no provision of
punishment if these duties are not performed. But as these duties constitute a
part of the Constitution, they may have moral impact upon the people.

Fundamental Rights, Duties, Directive Principle of State

Policy - whether each of these is a separate entity or together they make
one single package or charter of Rights of the people of India :

Although, according to political scientists there is very close

relationship between rights and duties, the Fundamental Rights and Duties are
not incorporated in the same chapter in the Indian Constitution in other words
Fundamental Duties do not form a part of chapter III. They are added to chapter
IV of the Constitution in Article 51 A. Since the Fundamental Duties have been
added to the part of Directive Principles of State Policy, they have a non-
justiciable character. Although these duties are not enforceable, they are
observed by the citizens because they feel a moral responsibility to obey them.

Thus the Fundamental Duties are like Directive Principles and not
like Fundamental Rights so far as their juristic nature is concerned The
Directive Principles are like the advice given to the government while the
Fundamental Duties are obligations expected of the citizens.

Thus though the Fundamental Rights, Directive Principles of State

Policy and Fundamental Duties constitute an integrated scheme at the same
time they appear as separate entities of this integrated scheme
 ?08

The part III and part IV were made separate and distinct entities of the Constitution
owing to changes at the last moment202-

The Fundamental Rights, Directive Principles of State Policy

and Fundamental Duties outwardly resemble each other in so far as they aim at
securing the common good of the people of India but there are some essential
points of difference among them.

Question of an Inherent Conflict between Rights and Directives :

There are some important points of difference between the

Fundamental Rights and the Directive Principles of State Policy. In the first place,
Fundamental Rights are injunctions requiring the state not to do certain things.
They are the negative obligations of the state and are of a prohibitive nature.
Directive principles, on the other hand, are affirmative directions dealing with the
positive obligations of the state towards the citizens. They emphasize the duty of
the state to promote certain social and economic objectives.

Secondly, the Fundamental Rights are justiciable and can be

enforced by the courts, while the Directive Principles are non-justiciable The courts
cannot declare a law as void on the ground that it contravenes the Directive
Principles. For example, if the state does not separate the judiciary from the
executive, or fails to introduce compulsory education, the courts cannot help an
aggrieved citizen. The right to constitutional remedies, as enshrined in Article 32
of the Constitution, covers part III and part IV of the Constitution.

The Constitution clearly confers upon the citizen the right to move
the Supreme Court for the enforcement of his Fundamental
202. As Granville Austin says "Although the fundamental rights and Directive Principles
appeal in the Constitution as distinct entitles, it was the Assembly that separated them
the leaders of the Independence Movement had drawn no distinction between the
positive and the negative obligations of the state. Both types of rights had developed as
a common demand - products of the national and social revolutions of their almost
inseparable inter-twining, and the character of Indian Politics itself ’ The Indian
Constitution, p. 25
 209

RightS203- On the other hand, the Constitution ordains that the Directive
Principles shall not be enforceable by any court20 4- It follows that while the
Fundamental Rights are mandatory, the Directive Principles are just like
optional directives.

Thirdly, the Directive Principles unless otherwise determined by

law of the state, are subsidiary to the Fundamental Rights, the latter being
primary parts of the Constitution in relation to the former. In case of conflict
between the two, the Fundamental Rights get Precedence. For instance, while
Article 19 guarantees essential freedoms like carrying on any trade or
profession, and Article 47 desires prohibition, the court shall attach importance
to the former provision of the Constitution. Emphasising this point, the Supreme
Court observed in State of Madras Vs Champakan Dorairajain2o5, “The
Directive Principles of State Policy have to conform to and run as subsidiary
chapter on Fundamental Rights In our opinion that is the correct way in which
the provisions found in part III and IV have to be understood. However, as long
as there is no infringement of any Fundamental Rights, to the extent conferred
by the provisions in part III, there can be no objection to the state acting in
accordance which the Directive Principles set out in part IV, but subject again
to the Legislative and Executive powers and limitations conferred on the state
under different provisions of the Constitutions."

The working of the Indian Constitution has high lighted the point
that some of the Directive Principles of State Policy enumerated in the
Constitution are not quite consistent with certain provisions of chapter III
dealing with the Fundamental Rights. Thus Article 47 which makes it a primary
duty of the state to bring about prohibition and Article 48 which requires the
state to forbid cow slaughter may seem to clash with Article 19(f), (9) which
confers upon citizens the right to practise any profession Similarly, Article 39
which interalia calls upon the state to prevent the concentration of wealth and
means of productions and to ensure that the

203. The C onstitution of India, Article 23

204. Ibid, A rticle 37
205. State of Madras Vs. Champakan Dorairajan (1951) SCJ 1931
 P10

ownership and control of the material resources of the community are so

distributed as to subserve the common good may appear to run counter to the
right to property guaranteed by the Constitution206-

The Supreme Court could not be consistent in its judgement in

cases involving the question of relative importance of the Directive Principle
and Fundamental Rights. In its earlier decision in Champakam Darairajan
case, cow slaughter case, and the Kerela Education Bill it enunciated the
principle that in the event of a direct conflict between individual's Fundamental
Fights and social necessities, the social good was preferable only if the
individuals' Fundamental Rights were not infringed. In State of Madras Vs.
Champakan Dorairajan, the petitioner was refused admission to a Medical
College on the ground that she belonged to the high caste Brahmin community.
It was pleaded on her behalf that the order of the Madras government involved
an infringement of her Fundamental Rights under Article 15(1) which has laid
down that the state "shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any of them”, and under Article
29(2) which provides that "no citizen shall be denied admission to an
educational institution maintained by the state or receiving aid out of state
funds on grounds only of religion, race, caste, language or any of them" The
order of the Madras Government had fixed a proportion of seats in the Medical
College for various castes and sections of community (Brahmins, Non-
Brahmins, Backward classes, and Muslims etc.). It was argued by the defence
council that the order of Madras Government was in accordance with the
Directive Principles of State Policy2o7 that the state shall promote with special
care the educational and economic interests of the weaker sections of the
people. The Supreme Court in its judgement declared that "the Directive
Principles of State Policy which are expressly made non-enforceable by the
Constitution cannot override the provisions of Chapter III which are made
enforceable by appropriate Writs, Orders or Directives

206. The Constitution of India, Article 31

207. The Constitution of India, Article 46
under Article 32. The Directive principles of State Policy have to conform to
and run subsidiary to the chapter on Fundamental Rights"2o8

In Quereshi Vs. The State of Bihar2o9, the Supreme Court held

that the Directive Principles of State Policy cannot override the specific
guarantees and restraints laid down in the Fundamental Rights as they stand.
The court held that the Constitution has to be so interpreted that it means that
the state should certainly implement the Directive Principles but it must do so
in such a way that its laws do not take away or abridge the Fundamental Rights,
for otherwise the protecting provision of Chapter III will be a mere rope of sand".

But this theory of subordination could not hold good for long In
Kameswar Singh case the Supreme Court laid down a different principle. It
commented; "In the light of the new outlook, what, I ask, is the purpose of the
state in adopting measures for the acquisition of Zaminadries and the interest
of intermediaries. It is to subserve the common good by bringing the land which
feeds and sustains the community and also produces wealth by its forests,
minerals and other resources, under state ownership or control. This state
ownership or control over land is necessary preliminary step towards the
implementation of Directive Principles of State Policy and it cannot but be a
public purpose". Thus the “doctrine of harmonious construction” took the
place of the 'theory of subordination".

After the enactment of 24th and 25th Amendments in 1972

substantial change was effected in the relationship between Directive
Principles and Fundamental Rights. The 24th Amendment provided that no law
shall be called in question on the ground that the amount fixed as
compensation for acquisition of property, is not adequate. It also accorded
subordinate position to Article 14, Article 19 and Article 31 in relation to
Directive Principles enshrined in clauses (b) and (c) of Article 32. It also

208. State of Madras Vs. Champakan Dorairajain <1951) SCJ 318

209. Qureshl Vs. The State of Bihar (1961) SCJ 983
 212

curtailed the power of the courts to review such laws. But in Keshavananda
Bharati case2io of 1973 in which the 24th, 25th and 29th Amendments of the
Constitution were challenged, the Supreme Court declared clause (c) added to
Article 31 to the 25lh Amendment as ultra vires, but upheld the constitutional
validity of the 24th and 25th Amendments. Thus the Supreme Court made a
fine balancing exercise in upholding the significance of the directives, without,
at the same time, subordinating the Fundamental Rights.

The Directive Principles were given a prominent position under

the 42nd Amendment and they were given precedence over Fundamental
Rights. The 42nd Amendment widened the scope of this Article. It stated that
no law passed to give effect to all or any of the Directive Principles of State
Policy enumerated in Part IV of the Constitution could be challenged in any
court even if it infringed Article 14. 19 and 31 - Articles dealing with the Right to
equality, Right to freedom and Right to property.

The provisions of 42nd Amendment were challenged in the

Supreme Court in Minerva Mill case and the court in 1980, struck down
amended Article 31(c) and newly inserted clauses (3), (4) and (5) in Article 368
of the Constitution on the ground that they violated the basic structure of the
Constitution. As a result of this judgement the Directive Principles of State
Policy once again assumed subordinate position to the Fundamental Rights.

Changing Constitutional Balance and Reconciliation :

Some of the Amendments, particularly the 24th, 25th, 29th and

42 Amendments of Mrs. Indira Gandhi's regime, in which, the Directive
Principles were given primacy over Fundamental Rights, were criticised by
persons like Sriman Narayan and Dr. K.V. Rao. Persons like Chagla,

210. Keshavanand Bharati Vs. State of Kerela AIR 1973 SC 1461

 ?13

Santhanam and Acharya Kripalini do not favour the idea of sacrificing liberty
for the sake of security, and find it repugnant to be basic concept of the original
Constitution.

The Janata Government in 1977 came to power and made an

attempt to restore the balance between the Fundamental Rights and Directive
Principles. The 45th Constitution Amendment Bill sought to restore the
constitutional position as it existed before the emergency with regard to the
Directive Principles. But it could not be possible due to the Congress majority
in the Rajya Sabha. But the Supreme Court in its judgement of 9 May, 1980 in
Minerva Mill case211 asserted that the Parliament has no right to amend the
basic structure of the Constitution

Though there is a conflict between the Directive Principles and

Fundamental Rights, it can be said that Fundamental Rights and Directive
Principles constitute the conscience of the Constitution According to Supreme
Court the Fundamental Rights and the Directive Principles are supplementary
to each other and the maintenance of balance between them is essential for
preserving the basic structure of the Constitution of India. Therefore, the courts
have adopted the view that in determining the scope and ambit of Fundamental
Rights, the Directive Principles should not be completely ignored and that the
courts should adopt the principle of harmonious construction and attempt to
give effect to both as far as possible.

Thus it is felt that to achieve dignity of the individual, both Part III
and Part IV have to be balanced. Our Constitution makers did not comtemplate
any disharmony between the Fundamental Rights and the Directive Principles.
They were meant to supplement each other It can therefore be said that the
Directive Principles prescribed the goal to be attained and the Fundamental
Rights laid down the means by which that goal was to be achieved.

211 Minerva Mill Vs. The Union of India (1980) SC 1789

Secularism :

Concept : " Secularism" often means a way of life and conduct guided by
materialistic considerations free from religion. Encyclopaedia Britannica defines
secularism as "non-spiritual, having no concern with religious or spiritual
matters, anything which is distinct, opposed to, or not connected with religion
or ecclesiastical things, temporal as opposed to spiritual ecclesiastical''2i2-
Shorter Oxford dictionary defines secularism as "the doctrine that morality
should be based solely on regard to the well being of mankind of the present life
to the exclusion of all consideration drawn from belief in God or in a future state".
D.E. Smith defines “The secular state is a state which guarantees individual and
corporate freedom of religion, deals with the individual as a citizen irrespective
of his religion, is not constitutionally connected to a particular religion, nor does
it seek either to promote or interfere with religion. Upon closer examination, it
will be seen that the conception of a secular state involves three distinct but
inter- related sets of relationship concerning the state, religion and the
individual"2i3. Secularism "is materialistic in tone and holds that human
improvement can be sought through material means alone"2i4. In this sense
secularism means a "secular attitude" towards life.

The above definitions clearly reveals that the underlying

conception of secularism is that religion and the state function are two different
areas of human activity and posses their own objectives and tools and they must
refrain from interfering in the working of the other. This is clearly included in the
American Constitution where the individual is assured religious freedom and the
state is not permitted to deal with the individual on the basis of religious
considerations. The state also does not recognise any particular religion as the
religion of the state. Here though the state and the religions have been separated
the citizens do not enjoy any religious freedom. But in U.K. even though the
Church and the state have not been separated, the individual enjoys complete
freedom of religion.

212. Encyclopaedia Britannica, Vol XX, 1967 Ptg, p. 264

213. Smith, D.E. : India as a Secular State, p. 4
214. Luthra, V.P. : The Concepts of Secular State and India, p. 19
 ?1 5

Indian Secularism :

History of India reminds us that the secularism has existed in

India since ancient times. The people enjoys religious freedom in ancient
India. As Max Webber has observed, "It is an undoubted fact that in India
religious and philosophical thinkers were able to enjoy perfect, nearly
absolute freedom for a long period. The freedom of thought in ancient
India was so considerable as to find no parallel in west before the most
recent age'^ts. Thus ancient India had a well established tradition of
secularism. It may however be noted that Islam, professed by about 10
percent of the Indian people is based on a totally different philosophy The
people who adopted Islam came to abandon the secular tradition

The British rule over two centuries also helped in

strengthening the roots of secularism in India due to the protection
offered by them to the various Indian religions. The Indian National
Congress also contributed to the strengthening of the secular tradition
and adopted a resolution at its Karachi Session affirming the ideals of
religious liberty and adequate protection to the minorities. These ideals
were included into the new Constitution of India.

Secularism and the Constitution of India :

Although the word “Secularism" was not included anywhere in

the Constitution of India yet the spirit of our Constitution is secular. Some of
the members of the Constituent Assembly described India as a secular state
which is clear from the observation of Pandit L.K. Mishra of West Bengal
when he said that by secular state ..... is meant that the state is
not going to make any discrimination whatsoever on the ground of religion or
community against any person professing any particular form of religions
faith ..... no particular form of religious faith ..... no particular religion in the
state will receive any state patronage whatsoever. The state

215. Quoted In Donald Engam Smith : India as a Secular State, p 61

 ;-l f i

is not going to establish, partronise or endow any particular religion, to the

exclusion of, or in preference to other, in the affairs, of the state, the profession
of any particular religion will not be taken into consideration at all. This is
considered to be the essence of secular state. At the same time we must be
very careful to see that in this land of ours we do not deny to anybody the right
not only to profess or practice but also to propagate any particular religion.
Thus Pandit L.K. Mishra observed about the nature of secularism in India
provided by the Constitution.

Provisions in the Constitution relating to Secularism :

The Indian Constitution envisages a secular state through the

following provisions included in the Articles 25, 26, 27, 28 and 31.

Article 25 : Article 25 which deals with the freedom of religion provides that
every citizen will have “freedom of conscience and free profession practice and
propagation of religion subject to public order, morality and health .... All
persons are equally entitled to freedom of conscience and
the right freely to profess, practice and propagate religion". The state can also
regulate the economic, financial, political and secular activities associated with
the religious practices. In Md. Hanif Quereshi Vs State of Bihar2i6, the court
upheld the right of the state to prohibit the slaughte* of cow by law on the
occasion of Bakrid and rejected the contention of rhe petitioner that it was a
violation of his right to practice religion.

In Golam Abbas Vs. State of U.P.217, the court held that the rights
of religious communities based on custom are also to be protected The state
can also make laws for the social welfare and social reform provided these
reforms do not effect the essence of any religion ^ he courts have by and large
taken the stand that where there is a conflict between the need of social welfare
and reform and religious practice religion must yield.

216. Md. Hanif Quareshi Vs. State of Bihar AIR 1958 SC 731
217. Golam Abbas Vs. State of UP, AIR 1981 SC 2198 •
Article 26 : Article 26 grants right of religious freedom collective to a religious
denomination or a section thereof. But Article 26 does not create in any
denomination or a section which it never had. It merely safeguards and
guarantees continuance of a right which such denomination or sect had. If the
denominations never had the right to manage property in favour of a
denominational institutions as per reasonable terms on which the endowment
was created, it cannot be said to have it.

However, the existing rights of religious denominations are

protected by Article 26 and this Article contemplates not merely a religious
denomination but also a section thereof. The denominational section is also
bound by the constitutional goals and they are required to abide by the law,
they are not above the Iaw2i8.

Maths or the spiritual fraternity established by it are included in

religious denominationaig. In Jagdishwaranand Vs. Police Commissioner22o it
was held that Ananda Marga is a separate religious denomination. In Pithota
Chinnamma Vs. Regional Director Dy DPI. Guntur22i, the court held that
Roman Catholic Mission is a religious denomination. But in S.P. Mittal Vs.
Union of India222, it was held that neither Aurobindo Society nor Aurovilla are
separate denominations

Article 27 : The secular character of the Indian polity is further evident from
Article 27 of the Constitution which provided that “no person shall be compelled
to pay any taxes, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of any particular
religious denominations”.

Article 28 : Article 28 provides that "no religious instruction shall be provided in

any educational institutions wholly maintained out of state funds. No person
attending any educational institution recognised by the state or receiving aid
out of state funds shall be required to take part in
218. Sri Adi Viswaswar Kashi Viswanath Temple Vs. State of UP (1997)4 SCC 606
219. Commissioner, H.R.E. Vs. Lakshminda Teerth Swaminar AIR 1954 SC 282
220. Jogdlswaranand Vs. Police Commissioner AIR 1984 SC 51
221. AIR 1964 AP 277
222. S.P. Mittal Vs. Union of India AIR 1983 SC 1
 218

any religious instruction that may be imparted in such institution or to attend

any religious worship that may be conducted in such institution or to attend any
religious worship that may be conducted in such institution or in any premises
attached there to unless such person or, if such person is a minor, his guardian
has given consent thereto”.

Article 31 : The Constitution also contains provisions for the protection of

special rights of religious as well as linguistic minorities Article 31 gives these
minorities the right to establish and administer educational institutions of their
choice and the state is not expected to make any discrimination while making
grants to these institutions on the ground that they are under the management
of a minority, whether based on religion or language.

The Directive Principles of state policy enumerated in part IV of

the Constitution also emphasise the secular character of the Indian polity when
it provides for the enactment of uniform civil code applicable to all citizens of
the state irrespective of their religious persuasion (Article 41).

Observing the above provisions of secularism, enumerated in the

Constitution of India, D.D. Basu asserts, “The sum total of the above provisions
makes our state more secular than even the United States of America"22 3 .

Thus Indian secularism is a dynamic affair which is designed to

suit the requirement of a progressive nation.

Social Justice :

The concept of social justice is very wide and its meaning has to
be understood in the treatment of human beings in society. Social

223. Basu, D.D. : Introduction to the C onstitution of India XII Ed., 1989
 219

justice relates to the balance between an individual’s rights on the one hand,
and social control on the other. In modern times, social justice implies the
absence of discrimination on the basis of caste, colour, religion etc. and
creation of an environment in which everybody may prosper in the society.
Recognition of equality of all, protection of the weaker section of the society
from oppression of the more powerful sections and equitable distribution of the
necessities of life etc. constitute social justice. Social justice also relates to the
removal of social ills like those of unemployment, ignorance pauperism,
intemperance and squalor in the developing countries.

In the west social justice implies the principle of equality before

law and independence of judiciary. The rights of the individual should be
reconciled with the interest of society.

Liberty is also one of the highest social values which stand us the
pre-condition for any just social order. The liberties of the people must be based
on social justice. The liberties of the people are justified only if they are not
opposed to social justice and morality.

The term social justice usually include three aspects of justice in

society which are - social, economic and political. Economic justice is more
important among these three aspects of social justice. Not only economic
justice, political justice is also very important as a politically unjust society can
never be socially just. Social justice is synthesis of liberty, equality and
fraternity. Thus social justice may be regarded as an important factor of social
transformation.

Social Justice under the Constitution of India :

The Constitution of a country reflects the hopes and aspirations

of the people. The framers of the Constitution of India
incorporated a number of provisions in the Constitution to achieve social justice
for the people of India. These provisions are mainly contained in the Preamble,
in the chapter on Fundamental Rights and in the chapter on Directive Principles
of State Policy. The preamble commits the country to the ideal of a welfare state
and aims at assuring socio-economic justice to the people. The principles
included in the preamble expanded into Fundamental Rights in part III and
Directive Principles of state policy in part IV.

Thus the Indian Constitution promises not only political justice, but
also social justice. The ideal of social justice implies that democracy should be
extended to the social sphere also. The social system should be based on the
ideals of equality, liberty and fraternity The Fundamental Rights guarantee
each citizen right to equality, right to freedom and right against exploitation.

Social justice prohibits discrimination on any artificial ground It

also prohibits forces creating artificial social barriers like those of
untouchability. Article 17 which deals with the right to equality under the
chapter on Fundamental Rights abolishes untouchability and makes its
practice in any form an offence punishable under the law. In their effort to
eradicate the evil of untouchability, the Congress government supplemented
this constitutional provision with legislative enactments it passed “The
untouchability offences Act" in 1955 to be amended into The protection of Civil
rights Act” in 1976. The Janata Government promised to eradicate
untouchability within five years.

Social justice demands equality along with liberty. In a backward

country like India, it is also required that the state must make concerted efforts
to improve the downtrodden and weaker sections of the people. Thus the right
to equality, in short, aims at establishing social democracy.
 221

Social justice demands non-exploitation of working class too Apart

from this, it demands harmony and co-operation between labour and capital, a
substantial minimum wage according to the capacity of each industry and other
benefits that improve the standard of living of the general people of the country.

The preamble to the Constitution of India declares social justice

as one of its ideals and the Directive Principles of state policy are nothing but
restatement of the ideals stated in the preamble. They are intended to serve, as
institution to governments of the states and the centre to act in a way so as to
promote fraternity and equality and to guarantee justice and liberty to the
people. According to L.M. Singhvi, “Directive Principles are the life giving
provisions of the Constitution They constitute the stuff of the Constitution and
its philosophy of social

justice"224.

The term “Socialist” was added in the preamble by the

Amendment of our Constitution. The concept is not completely new 4 2 nd
because the Congress at its Avadi Session adopted "socialism" as its policy
and has been constantly working for the establishment of a socialistic pattern
of society. The significance of this change is that now the government will be
constitutionally bound to bring about socio- economic changes to ensure decent
life to the Indian citizens. It cannot be denied that in a poor country like India
only socialistic policies can ensure justice - social, economic and political for all
citizens.

Article 46 of the Constitution says that the state shall promote with
special care the education and economic interests of the weaker section of the
people, and in particular, of the scheduled castes and schedule tribes, and shall
protect them from social injustice and all forms of exploitation.

224. Shingvi, L.M. : Journal of C onstitutional and P arliam entary S tudies, June, 1975
 Article 47 says that the state shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of public
health as among its primary duties, and, in particular the state shall endeavour
to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health. Though in
persuasion of this direction, many states in India adopted a policy of prohibition,
but at present the prohibition laws are being relaxed to make up the deficits in
the State Budgets. In State of Bombay Vs. F.N. Balsara22 5 , a reference was
made to the Directive Principles contained in Article 47.

Removal of right to property from the list of Fundamental Rights

is another step towards achieving social justice in India. Its removal from part III
of the Constitution conforms to the socialist philosophy It makes it easy for any
government to go ahead with radical programme m the social and economic
spheres. To improve the conditions of the Indian women, the Dowry Prohibition
Act was passed in 1961. After the Deorala incident in Rajasthan the Parliament
passed the Commission of Sati (Prevention) Bill in 1987 providing for death
sentence or life imprisonment for abetment of sati, For the working women in
India, several enactments have been made since independence to ensure
better working conditions and to ensure equality with men. The Factories Act
1948, The Mines Act 1952 and the Plantation Labour Act, 1951 are some of the
well-known measures to ensure better working conditions.

Many other important changes have taken place in the sphere of

wages and social security. The Panchayats have been set up in most of the
villages to serve as primary units of administration. Agriculture has been
switching over from traditional to modern methods. Numerous measures to
improve the weaker sections of the society have been taken by the government.
To do away with the extreme concentration of wealth in the land ownership,
Zamindari Abolition Acts have been passed and

225. State of Bombay Vs. F.N. Balsara AIR 1951 SC 318

supplemented by ceiling on land holdings. Thus various steps have been
adopted to achieve social justice for the people of India.

Inspite of various measures taken by the government to ensure

social justice, the courts in India also have given various judgement to establish
social democracy in India. The High Court of Bombay, while disposing off a case
under the Bombay Prohibition Act (State of Bombay Vs. F.N. Balsara226) took
into consideration Article 47 of the chapter on Directive Principles. Article 38
was referred to by the Supreme Court in its decision regarding the State of Bihar
Vs. Kameswar Singh227- Again while upholding the constitutional validity of the
Minimum Wages Act, the Supreme Court took into consideration Article 43 and
declared in its judgement of Bijay Cotton Mills Vs. State of Ajmer2 2e that the
fixation of minimum wages for labourers was not a violation of freedom of Trade
under Article 19.

Now-a-days the citizens do not have to suffer more because of the

lack of judicial remedy. The Public Interest Litigation, known as the courts' new
found law tries to eliminate the lack of judicial remedy The Supreme Court
decided to liberalise the rules of locus standi and to take up cases of persons
who themselves did not suffer any injury but who are complaining of the
inequality and injustices suffered by others. The judicial development in this
respect is a reflection of the deep malady prevailing in the society. In “Peoples
Union for Democratic Rights Vs. Union of Indian the petitioners moved at the
plight of Asiad Labour, filed a petition before the Supreme Court for compliance
of various labour laws, namely, the Contract Labour Act, 1970, Inter State
Migrant Workmen Act, 1979, the Minimum Wages Act, 1948, the Equal
Remuneration Act, 1976.

The Indian Constitution tries to ensure justice which is reflected in

the Preamble to the Constitution of India. Granville Austin opines, “The Indian
Constitution is first and foremost a social document
226. State of Bombay Vs. F.N. Balsara AIR 1951 SC 318
227. The State of Bihar Vs. Kameswar Singh 1962 SC 1166
228. Bijaya Cotton Mills Vs. The State of Ajmer AIR 1955 SC 33
229. People’s Union for Democratic Rights Vs. The Union of India AIR 1982 SC 1473
The majority of its provisions are either directly aimed at furthering th e

guidelines of the social revolution, or attempt to foster this revolution by

establishing the conditions necessary for its achievement. Yet, despite th e

permeation of the entire Constitution by the aim of national renaissance,

the core of the commitment to the social revolution lies in Part III and iv,
in the Fundamental Rights and in the Directive Principles of State P o lic y
These are the conscience of the Constitution”230.

The Supreme Court of India has played a very significant ro le in

promoting and protecting social justice for backward classes, s c h e d u le d
castes and scheduled tribes, minorities, women, children, bonded

labourers and industrial workers. While dealing with reservation is s u e s

the court has rightly regarded that backwardness for the p u rp o s e of

discrimination must be decided strictly on economic considerations and caste

should not be the sole criteria.

With the expansion of the concept of social good and w e lfa re the
judges should also consider the impact of their decisions on the s o c ia l life of the
community and blindly following the letter of the la w w ill not serve the ends of
social justice. Along with judiciary both the e x e c u tiv e and legislature should act
in unison for the fulfilment o f the fo u n d in g fathers’ dream to achieve social justice
for the people of India.

230. Granville Austin : The Indian Constitution : Corner Stone of a Nation p. 56