SYMBIOSIS LAW SCHOOL, PUNE

Constitutional Law - I
Subject Notes
Arsh Rampal
16010125073

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Table of Contents
Salient Features of the Constitution ....................................................................................................... 3
Rule of Law .......................................................................................................................................... 3
Salient Features of the Constitution ................................................................................................... 3
Articles 12 & 13 ....................................................................................................................................... 5
Concept of Fundamental Rights.......................................................................................................... 5
Fundamental Rights in India ............................................................................................................... 5
Article 12 of the Constitution of India ................................................................................................ 6
Local Authorities ............................................................................................................................. 6
Other Authorities ............................................................................................................................ 6
Judiciary .......................................................................................................................................... 7
Article 13 of the Constitution of India ................................................................................................ 8
Law .................................................................................................................................................. 8
Personal Laws.................................................................................................................................. 8
Custom ............................................................................................................................................ 9
Unconstitutionality of a Statute ...................................................................................................... 9
Doctrine of Eclipse .......................................................................................................................... 9
Doctrine of Severability................................................................................................................... 9
Waiver of Fundamental Rights...................................................................................................... 10
Article 14 ............................................................................................................................................... 11
Tests for Valid Classification ............................................................................................................. 11
Single Person Law ............................................................................................................................. 12
Classification without a difference ................................................................................................... 12
Articles 15 & 16 ..................................................................................................................................... 13
Article 15(4)....................................................................................................................................... 13
Backward Classes .......................................................................................................................... 13
Quantum of Reservation ............................................................................................................... 14
Article 16(4)....................................................................................................................................... 14
Article 19 of the Constitution of India .................................................................................................. 15
Article 19(1)(a) .................................................................................................................................. 15
Article 19(2)....................................................................................................................................... 16
Article 19(1)(g) .................................................................................................................................. 17
Reasonable Restrictions in the Interest of the General Public ..................................................... 17
Unreasonable Restrictions ............................................................................................................ 18

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 State Trading and Monopoly ........................................................................................................ 19
Article 20 of the Constitution of India .................................................................................................. 20
Protection against ex-post facto laws ............................................................................................... 20
Double Jeopardy ............................................................................................................................... 20
Prohibition against Self-Incrimination .............................................................................................. 21
Article 21 ............................................................................................................................................... 23
Procedure Established by Law .......................................................................................................... 23
From “Procedure Established by Law” to “Due Process of Law”...................................................... 24
Criminal Justice post Maneka ........................................................................................................... 25
Death Sentence ................................................................................................................................. 25
Extended View of Article 21 .............................................................................................................. 26
Article 25 & 26 of the Constitution of India .......................................................................................... 27
Article 25(1)....................................................................................................................................... 27
Article 25(2)(a) .................................................................................................................................. 28
Article 25(2)(b) .................................................................................................................................. 28
Article 26 ........................................................................................................................................... 28
Article 29 & 30 ...................................................................................................................................... 30
Article 29 ........................................................................................................................................... 30
Clause 1 ......................................................................................................................................... 30
Clause 2 ......................................................................................................................................... 30
Article 30 ........................................................................................................................................... 31
Clause 1 ......................................................................................................................................... 31
Clause 1-A & Clause 2 ................................................................................................................... 32
Amendability of the Constitution ......................................................................................................... 33
Article 368 ......................................................................................................................................... 33
Amendment Procedure................................................................................................................. 33
Amendability of Fundamental Rights ............................................................................................... 34
Unamendable Basic Structure .......................................................................................................... 35

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Salient Features of the Constitution
 India not only has constitution but also constitutionalism, that is, it not only confers powers
on various organs of government but also seeks to restrain them – Power corrupts and
absolute power corrupts absolutely – It is antithesis of arbitrary powers – Important to
ensure basic freedoms of citizens

Rule of Law
 Dicey’s Rule of Law included the following:
1. Absence of Arbitrary Power – No man is above the law – No person should have any
discretionary power– “nemo judex in causa sua”
2. Equality before law – “audi alteram partem” – All are equal before the law
3. Predominance of Legal Spirit – Upholding liberties of individuals – These rights
should be enforceable
 Dicey was criticised but these 3 principles for a fundamental aspect of Rule of Law
 Rule of law does not mean rule according to statutory law pure and simple because that
itself can be harsh, inequitable and unjust.
 ADM Jabalpur case dissenting opinion of HR Khanna – Constitution not the sole repository of
individual liberties, rule of law includes principles of natural law – Principles of individual
liberty existed prior to the constitution as well – Article 21 was not included to make it sole
repository but to give effect to a law which citizens could enforce – After the coming into
force of the Constitution the remedy under an earlier statutory provision would not get
obliterated because of the identical remedy by a subsequent Constitutional provision and
that the two can co-exist without losing their independent identity (Makhan Singh v. State of
Punjab) – Rule of Law is the antithesis of arbitrariness
 Quoted in the recent Right to Privacy case which overruled ADM Jabalpur citing the views
expressed by HR Khanna

Salient Features of the Constitution

 Modern Constitution – Mid 20th century gave advantage to drafters to take cognizance of
various constitutional processes in different countries – Federalism derived from American,
Canadian and Australian Federalism -
 Written Constitution – 461 Articles and 12 schedules – Reasons for its prolixity:
 Organisation Structure of Centre & State governments
 Detailed provisions regarding Centre-State relations
 Written down many principles of Britain’s unwritten constitution
 Remove distrust among the diverse communities of India, several provisions
incorporated
 Directive Principles of State Policy to incorporate a Welfare State
 Also contains many administrative provisions
 Preamble – It clarifies who made the constitution, what is its source, what is ultimate
sanction behind it – It gives direction and purpose to constitution
i. It contains enacting clause giving force to Constitution
ii. Declares great rights and freedoms of Indian Citizens
iii. Declares basic type of government and polity sought to be established
iv. Throws light on source – People

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  Democracy is a basic feature of the Constitution
 Liberty, equality and fraternity are not separable principles in a trinity – Fraternity
has special context considering the minorities and their status in India
 To give concrete shape to these aspirations, Fundamental Rights included
 Kesavananda – Preamble forms part of the Constitution
 Socialist State – Added by 42nd Amendment – It does not incorporate doctrinaire socialism –
Mixed Economy in India – It aims to end poverty, ignorance, disease and inequality of
opportunity – Equal Pay for Equal Work
 Welfare State – Directive Principles of State Policy – Attainment of global economic
democracy
 Secular State – Added by 42nd Amendment – Not defined in the Constitution – Principle
implicitly mentioned in Constitution before amendment – It is part of basic structure of
Constitution S.R. Bommai v. Union of India1 - State shouldn’t have religion of its own and no
one can proclaim the State to have one, or endeavour to become theocratic
 Responsible Government – Separation of Powers, not like US – Executive power although
with president, exercised mostly by Council of Ministers
 Fundamental Rights
 Provision for maintenance of Minorities and Backward Classes
 Elections – Universal Adult Suffrage
 Judiciary – Supreme Court is final Court of appeal, has original jurisdiction and is ultimate
arbiter in Constitutional Matters along with having advisory jurisdiction – Unified Judicial
System – Interpreter of Constitution and guardian of all authorities – Protector of
Fundamental Rights
 Federal Constitution – Two tier government policy – “Union of India” to ensure State don’t
secede and State did not come together to form India – There is only 1 citizenship – There is
not state Constitution

1
S.R. Bommai v. Union of India, AIR 1994 SC 1918

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Articles 12 & 13
Concept of Fundamental Rights
 Concept of Human Rights can be traced to natural philosophers such as Locke & Rousseau.
The Declaration of French Revolution, 1789 recognized the conservation of natural and
inalienable rights of man.
 As a measure to protect such human rights, constitutions around the world have written
them down and protect them from interference by the governmental organs. These rights
are fundamental rights.
 Fundamental rights have a dual aspect i.e. they are justiciable in nature and citizens can go
to court for their enforcement and it also acts as a restriction upon the powers of the
government
 The US constitutions amendment by enactment of the Bill of Rights is considered as the start
of the conceptualisation of Fundamental Rights
 In modern times human right have been given a more concrete and universal texture by the
various human rights documents of the United Nations Organization
 The Supreme Court has said that the principles of the Universal Declaration of Human Rights
may be read with the fundamental rights for the purpose of interpretation.

Fundamental Rights in India

 The Preamble of the Indian Constitution demands the enforcement of fundamental rights
for the implementation of the principles mentioned therein
 Part III of the constitution includes substantive as well as procedural rights
 Fundamental Rights must not be read in isolation but with the Directive Principles of State
Policy and Fundamental Duties2
 Articles 12 to 35 of the Constitution are pertaining to fundamental rights.
 Fundamental Rights are divided into 7 main headings:
1. Right to Equality (Articles 14 to 18)
2. Right to Freedom (Article 19 to 22)
3. Right Against Exploitation (Articles 23 & 24)
4. Right to Freedom of Religion (Articles 25 to 28)
5. Cultural and Education Rights (Articles 29 & 30)
6. Right to Property (Articles 30-A, 31-A, 31-B & 31-C)
7. Right to Constitutional Remedies

2
Javed v. State of Haryana, (2003) 8 SCC 369

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Article 12 of the Constitution of India
 Most of the fundamental rights are claimed against the State and not against individual
action, this position was confirmed by the Supreme Court in the case of P.D. Shamdasani v.
Central Bank of India Ltd.3 Relief has also been granted to petitioners without going into the
question whether the violator of fundamental rights was the State or not as was in the case
of MC Mehta v. Union of India4
 According to Article 12, the State includes:
i. Government & Parliament of India
ii. Government and Legislature of a State
iii. All Local Authorities
iv. Other Authorities within territory of India or under the control of the Central
Government

Local Authorities
 Authorities such as municipalities, District Boards, Panchayats, Improvement Trusts, Port
Trusts, Mining Settlement Boards etc.

Other Authorities
 Several questions have been raised as to what all is included within the term “other
authorities”. Whether Autonomous bodies are included? Whether all statutory bodies are
included?
 In order to answer this question, the Supreme Court has developed the concept of
instrumentality of state. Anybody which can be regarded as an “instrumentality” of the State
falls under Article 12 of the Constitution.
 Rajasthan State Electricity Board v. Mohanlal5 - The State electricity board set up under a
statute for some commercial purposes falls under the term other authority. “Board” can be
included under the State, as Art. 298 of the Constitution allows the State to carry on trade or
commerce
 Sukhdev v. Bhagatram6 - LIC, ONGC and Finance Corporation are authorities and thus fall
under Art. 12 of the Constitution as they are instrumentalities of the State. The combination
of State aid and furnishing of important public service may result in the classification of a
corporation as a State Agency.
 Ramanna D Shetty v. International Airport Authority7 - “instrumentality” or “agency” of a
State falls under the ambit of Art. 12 and is subject to the same constitutional limitation as
government itself although they are separate legal entities in themselves.
 Som Prakash v. Union of India8 - Company held to fall under Art. 12. The true test is not
whether a body is statutory or non-statutory in nature, but whether it was “functional” – A
body even if not set up by a statute can be considered to be a State if it is controlled by the
Central Government. In the present case the body was considered to be an alter-ego of the
Central Government.
3
P.D. Shamdasani v Central Bank of India Ltd., AIR 1952 SC 59
4
MC Mehta v. Union of India, (1987) 1 SCC 395
5
Rajasthan State Electricity Board v. Mohanlal, AIR 1967 SC 1857
6
Sukhdev v. Bhagatram, AIR 1975 SC 1331
7
Ramanna D Shetty v. International Airport Authority, AIR 1979 SC 1628
8
Som Prakash v. Union of India, AIR 1981 SC 212

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  Ajay Hasia v. Khalid Mujib Sehravardi9 - Factors indicating a corporation to be an
instrumentality of a State:
i. If entire share capital of Corporation is held by the Government
ii. Where financial assistance of State is so much to meet almost entire expenditure of
corporation
iii. Whether corporation enjoys monopoly which is State conferred/protected
iv. Existence of deep and pervasive State control
v. If functions of corporation are of public importance and closely related to
Governmental functions
vi. If department of Government is transferred to corporation
 Ajay Hasia also stated that the real test is the instrumentality of the State. How the authority
is born is irrelevant, but for what purpose it was born is the real test in determining whether
the authority is State or not
 Unni Krishnan J.P. v. State of A.P. – Private education institutes work in furtherance of a
State function i.e. provision for education, are also subject to the discipline of Art. 14.
 Sabhajit Tewary v. Union of India10 - Council of Scientific and Industrial Research, registered
under the Societies Registration Act, was held not be a State. This case stands impliedly
overruled by analysing subsequent decisions of the Court and was expressly overruled in
the case Pradeep Kumar Biswas v. Indian Institute of Chemical Biology11
 Zee Telefilms Ltd v. Union of India12 - The Board of Control for Cricket in India has been held
not to be a State under Article 12 – Even though previous cases following the instrumentality
test was applied, the court held that the enforcement can only be against the State –
Exclusion of BCCI from State was reconfirmed by the Court in the case of A.C. Muthiah v.
Board of Control for Cricket in India13
 The words Authorities “under the control of the Government of India” highlights that the
violation of rights by State outside the territory of India can also be enforced in court
 State for the purposes of Article 12 may not be construed to be State for other purposes.
Thus an employee of a public corporation does not become a State employee

Judiciary
 In the administration of non-judicial functions, such as administrative or legislative, the
Courts fall within the definition of “the State”.
 The court while performing judicial functions cannot be considered to be a State. i.e.
determination of scope of fundamental rights vis-à-vis a legislative or executive action
 When court in exercise of statutory-rule making powers, make rules which contravene
fundamental rights of citizens, rule can be held ultra vires and courts can be approached for
appropriate remedy under Art. 32 or 226
 A wrong judgment by the Court in cases of judicial interpretation does not amount to
infringement of local rights, but a mistake to be challenged on appeal14

9
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722
10
Sabhajit Tewary v. Union of India, (1975) 1 SCC 485
11
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111
12
Zee Telefilms Ltd v. Union of India, (2005) 4 CC 649
13
A.C. Muthiah v. Board of Control for Cricket in India, (2011) 6 SCC 617
14
A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602

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  No final order of Supreme Court can be challenged under Art. 32 – Rupa Ashok Hurra v.
Ashok Hurra15
 With increasing privatisation there is a concern fundamental rights are going to be violated
by private entities more than the state – The state cannot absolve its responsibility to
honour and safeguard fundamental rights of citizens because of the State in such cases can
cover both direct and indirect violations

Article 13 of the Constitution of India

 Article 13 of the Constitution makes fundamental rights justiciable
 Article 13(1) declares all pre-constitution laws shall be void to the extent of their
inconsistency with the Fundamental Rights. Such laws will be considered void from
26/1/1950.
 According to Article 13(2) the State “shall not make any law” which takes away or abrogates
Fundamental rights and a law contravening fundamental rights is to the extent of the
contravention void.
 Article 13 makes the judiciary the guardian, protector and interpreter of fundamental rights.
It bestows upon the judiciary an obligation to strike down any law inconsistent with
fundamental rights.
 The power of judicial has been held to be a part of the basic structure on the Constitution16
 Article 13 deals with statute law and not with the law declared by the Courts or with the
directions or orders made by the Supreme Court under Art. 142

Law
 Article 13(2) contains the norm that any ‘law’ inconsistent with a fundamental right is void
 The term ‘law’ has been defined in Art. 13(3)(a) as inclusive of any ordinance, order, bye-
law, rule, regulation, notification, custom or usage having the force of law in the territory of
India
 Parliament while making an Act cannot be deemed to have taken an earlier law found to be
in contravention of Art. 13
 Fundamental right cannot be restrained merely by an administrative direction not having the
force of law

Personal Laws
 In terms of personal laws the court has adopted a policy of non-interference keeping in view
the susceptibilities of the groups to which these laws apply
 State of Bombay v. Narasu Appa Mali17 - Personal laws do not come under the ambit of
Article 13 and thus cannot be challenged for infringement of Fundamental Rights
 The Court has reiterated that such issues are a matter of State policy and the remedy lies
elsewhere – Ahmedabad Women’s Action Group v. Union of India18
 P.E. Mathew v. Union of India19 – Indian Divorce Act S. 17 challenged – Kerala High Court did
not find it to be inclusive under Art. 13 even though Statute – Left for legislature to amend.

15
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388
16
Kesavananda v. State of Kerala, AIR 1973 SC 1461
17
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84
18
Ahmedabad Women’s Action Group v. Union of India, AIR 1997 SC 3614

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Custom
 Gazula Dasaratha Rama Rao v. State of Andhra Pradesh20 - A custom should yield to a
fundamental right for a law in force to be in violation of it
 Sant Ram v. Labh Singh21 - The definition of ‘laws in force’ does not affect the definition of
‘law’ u/a 13

Unconstitutionality of a Statute
 A law is void if it is inconsistent with fundamental rights
 Behram v. State of Bombay22 - Where a Statute has been held to be unconstitutional it is as if
it had never been.
 The above principle is subject to certain exceptions
1. Some laws apply to all people, i.e. citizens and non-citizens, therefore a law violative
of a fundamental right available to all persons is ineffective qua all person whereas a
law violative of a fundamental right available to citizens is ineffective qua citizens
only and applies to non-citizens
2. Article 13(1) is prospective and not retrospective and law becomes void after the
commencement of the Constitution of India.

Doctrine of Eclipse
 The prospective nature of Article 13(1) gives rise to the doctrine of eclipse
 Bhikaji v. State of Madhya Pradesh23 – A pre-constitution law inconsistent with a
Fundamental Right was not wiped out altogether from the Statute book after the
commencement of the Constitution as it continued to exist in respect of rights and liabilities
which had accrued before the date of the Constitution. Therefore a pre-constitutional law
inconsistent with fundamental rights becomes eclipsed and not dead
 This principle is not applicable to Article 13(2) which deals with post-constitution laws
 An act declared unconstitutional under Arts. 14, 19 and 31(2) is revived when it is put in the
9th Schedule
 A post constitutional law which has been held void cannot be revived by mere-amendment
and has to be re-enacted – P.L. Mehra v. D.R. Khanna24 . There is no direct Supreme Court
case with regards but the Shama Rao Case25 contained the same principle
 Hari Singh v. Military Estate Officer26 - Re-enacted law can be made to have retroactive
application

Doctrine of Severability
 A law is void only to the extent of such inconsistency, i.e. it is not necessary for the entire
law to be void, a part of it can be void if it can be severed from the remaining portion
 The doctrine has been explained in the case of R.M.D.C. v. Union of India

19
P.E. Mathew v. Union of India, AIR 1999 Ker 345
20
Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, AIR 1961 SC 564
21
Sant Ram v. Labh Singh, AIR 1965 SC 314
22
Behram v. State of Bombay, AIR 1955 SC 123
23
Bhikaji v. State of Madhya Pradesh, AIR 1955 SC 781
24
P.L. Mehra v. D.R. Khanna, AIR 1971 Del 1
25
Shama Rao Case, AIR 1967 SC 1480
26
Hari Singh v. Military Estate Officer, AIR 1972 SC 2205

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  The following propositions have been laid down with respect to this doctrine:
1. The intention of the legislature in including the severable part
2. If severability cannot take place, then the law is void in its entirety
3. If on severability, the other part can stand on its own as a complete code, it remains
so
4. If valid & invalid provisions are distinct and separate and yet they are all part of a
single scheme, entire law is void
5. Even when scheme is different, but the remaining product is substantially different
from what emerged out of the legislature, it is void
6. If the remaining portion cannot be enforced without amendments, the entire law is
void
 The RMDC Case – Involved Prize Competitions Act – Included Gambling and Skill –
Parliament could only restrict prize money of gambling – Severed the part relating to skill

Waiver of Fundamental Rights

 Basheshar Nath v. I.T. Commissioner27 - Fundamental Rights can waive fundamental rights
guaranteed to them – THe Obligation upon the State w.r.t. fundamanetal rights cannot be
relieved by an individual
 Fundamental Rights can be waived in USA

27
Basheshar Nath v. I.T. Commissioner, AIR 1959 SC 149

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Article 14
 State shall not deny to any person equality before law or equal protection of laws within
territory of India
 Articles 15 to 18 supplement it, and this right to equality is not only a negative right but also
a positive right to be treated equal
 Equality before law means all person are equal in the eyes of law
 It is available to all persons, not just citizens
 Equality before law or equal protection of laws does not mean same treatment to everyone
– It is similar treatment for similar people – Equals should be treated equally while unequal’s
should be treated differently
 Thus there needs to be a classification among who are equal and who are unequal
 Regardless, they all should be treated as human beings
 Kedar Nath Bajoria v. State of W.B.28 – It doesn’t mean all laws should be general and
universal, classification should be based upon the purpose of legislation

Tests for Valid Classification

 Must be reasonable to be valid – Rest upon real and substantial distinction bearing
reasonable and just relation to the needs in respect of which classification is made
 Two conditions
i. Classification to be based on intelligible differentia differentiating things grouped
together from those which aren’t
ii. Differentia should have reasonable nexus with the purpose sought to be achieved by
the legislation
 Object of classification should be lawful
 Scope of Permissible Classification as elucidated by the SC in cases:
i. Law may be constitutional even though it relates to a single individual if for certain
special reasons, that person can be considered a class by himself – Such laws seen
with suspicion
ii. Presumption in favour of constitutionality of a legislation – Burden on person who
attacks it
iii. Must be presumed that legislature understands and correctly appreciates the need
of its own people and laws are made keeping those in mind
iv. Legislature is free to recognize degrees of harm and may confine its restriction to
those cases
v. In order to sustain presumption of constitutionality, court may take into
consideration matters of common knowledge, report and may assume every state of
facts
vi. Good faith and knowledge of existing conditions by legislature can always be
presumed but constitutionality cannot
vii. Classification need not be scientifically perfect or logically complete
viii. Validity of classification has to be judged by assessing overall effect and not
exceptions to it

28
Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404

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 ix. Court must look beyond ostensible classification and to the purpose of law apply
test of palpable arbitrariness
x. No right to equality in illegal acts
xi. Right to equality available in form of grants as well as burdens

Single Person Law

 Charanjit Lal Chowdhury v. Union of India29 - Single person Legislation upheld and not
violative of 14 as that single person in this case was held to be a class of its own
 Aruneennisa Begum v. Mahboob Begum30 - Single person classification can only be upheld if
reasonable justification given for it- Justification given not valid held by court – Presumption
in favour of constitutionality isn’t absolute – It is presumed always when there is interest of
community involved, not private persons

Classification without a difference

 Karimbil Kunhikoman v. State of Kerala31 - Plantation owners of rubber, tea and coffee given
benefits but plantation owners of pepper and areca not given - No reasonable distinction
given – Held invalid
 P. Rajendran v. State of Madras – District wise distribution of Seats struck down

29
Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41
30
Aruneennisa Begum v. Mahboob Begum, AIR 1953 SC 91
31
Karimbil Kunhikoman v. State of Kerala, AIR 1962 SC 723

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Articles 15 & 16
Article 15(4)
 Added by Constitution 1st Amendment – As a result of State of Madras v. Champakam
Dorairajan32 - Article 15(4) is an enabling provision which allows the State to make any
special provision for the benefit of SC/ST/SEBC without regards to Article 15 or 29(2)

Backward Classes
 There is no definition of backwards classes under the Constitution and Article 340 allows
president to appoint a commission to investigate the conditions of SEBCs – No defined
formula given by 2 committees appointed (Kaka Kalelkar and BP Mandal) although both took
caste as the dominant criteria –
 M.R. Balaji v. State of Mysore33 –Caste of a group of persons cannot be sole or predominant
factor in determining SEBC status, it is mostly a result of poverty, although it is relevant for
considering whether a particular class was backward or not – Place of Occupation and
Habitation are other factors
 R. Chitralekha v. State of Mysore34 - Governor of Mysore took 2 criteria’s for determination –
1 – Economic Condition; 2 – Occupation – Court upheld criteria and said caste isn’t necessary
criteria
 P.. Rajendran v. State of Madras35 - Court upheld test of backwardness predominantly based
on caste – Caste is also a class of persons, and classification on caste is violative of 15(1) if it
is solely based on caste, but if entire caste is backwards not violative
 State of U.P. v. Pradip Tandon36 - Amdission into medical college in favour of people from
rural/hilly/Uttarakhand areas – Court held SEB areas not same as SEBCs – Upheld favourism
of Uttarakhand and Hilly areas as they have homogenous population and lacked resources –
Rural areas criteria invalidated because population there is heterogeneous
 With all these mixed judicial decisisions, a 5 judge bench in K.C. Vasanth Kumar v. State of
Karnataka – 5 judge bench – sat down to lay guidelines but all 5 judges gave different
opinions
 Indra Sawhney v. Union of India37 - Mandal Commission Case – 9 Judge Bench – Dealing with
16(4) classification – 2 memorandums – 1st Memorandum to give preference to poorer
sections of SEBC wrt 27% reservation made – 2nd Memorandum – Additional reservation of
10% - 6:3 Majority upheld 1st Memo and invalidated 2nd – According to 1st Memo SEBCs
would comprise of those Caste and Communities Common to State GOvt/s List and Mandal
Commission List
 Class can be a starting criteria for determination of classes but not sole criteria – Classes
under SEBCs may not be on same footing with SC/ST or each other – Within SEBCs
classification between backward and more backward is permissible – Creamy layer should be
excluded – 16(4) SEBCs classes wider than those in 340 or 15(4) – Economic Criteria cannot

32
State of Madras v. Champakam Dorairajan, AIR 1951 SC 226
33
M.R. Balaji v. State of Mysore, AIR 1963 SC 649
34
R. Chitralekha v. State of Mysore, AIR 1964 SC 1823
35
P.. Rajendran v. State of Madras, AIR 1968 SC 1012
36
State of U.P. v. Pradip Tandon, (1975) 1 SCC 267
37
Indra Sawhney v. Union of India, AIR 1993 SC 477

13
 be sole criteria – Centre and States have appointed commissions for determination and
revision of backwards classes – High Standards of Creamy Layer have been invalidated

Quantum of Reservation
 In MR Balaji case the Court has invalidated 68% reservation and held that special provision
should be less than 50%
 T. Devadasan v. Union of India38 - Carryover of reservation seats is not allowed as It’ll end up
exceeding 50%
 The Court in the Mandal Commission case held that barring exceptional circumstances the
total reservation shouldn’t exceed 50% - 50% includes only people who get in through
quota, not on merit – Court also held 15(4) and 16(4) are not exceptions to 14
 In between SCs and STs if a candidate from one category is unavailable it is to go to the
other category and not general category
 Preeti Srivastava v. State of M.P.39 – 4:1 majority – invalidated lower percentage of marks as
criteria for SC/ST/SEBCs – Difference in marks criteria cannot be greater than 10% - Court
relied upon relation between 15(4) and 335 but Government by 82nd Amendment added
proviso to 335 allowing for relaxation of marks criteria
 Post Pradip Tandon case the court held no area can be held backward perpetually and an
annual review should take place

Article 16(4)
 The Positions were first considered in Devadasan and Mandal Commission cases – In Mandal
commission it was held that carry forward rule is valid till the time total reservation doesn’t
exceed 50% - This is applicable to total vacancies in an yea, not total strength in a cadre –
Overcome by 81st Amendment insertion of 16(4-B)
 As per Mandal Commission Clause 4 only allows for reservations for direct recruitment and
not other benefits such as promotion, age relaxation etc.
 It is an enabling provision, there is no obligation on State – Writ to direct government to
make law under it won’t be entertained
 Clause 4-A was inserted to 16 to overcome the effect of Mandal Commission to the extent of
reservations in promotions –
 The Court in Nagaraj has held that if the State wishes to exercise its discretion to put
reservations in promotions it has to show backwardness of that class in public employment
in addition to compliance with 335

38
T. Devadasan v. Union of India, AIR 1964 SC 179
39
Preeti Srivastava v. State of M.P., (1999) 7 SCC 120

14
Article 19 of the Constitution of India
 It guarantees the following freedoms to citizens
a. Freedom to Speech and Expression
b. Assemble peaceably without arms
c. Form associations or unions
d. Live freely throughout the territory of India
e. Reside and Settle in Any part of territory of India
f. [Repealed]
g. Practise any profession, occupation trade or business
 Reasonable Restrictions can be imposed upon these rights by the State
 The difference in restrictions as can be seen by 19(2) to 19(6) shows that the rights aren’t
equal and have different philosophies behind them
 Two requirements 1- Restriction should be of a category mentioned in clause imposing
restriction – 2 – Restriction Should be Reasonable
 Rights are only available to citizens – Natural Persons – Companies don’t have rights
 R.C. Cooper v. Union of India40 – Court can grant relief to a person, who is part of a company,
even if the State Action also impairs rights of the Company.
 Bennett Coleman & Co. v. Union of India41 - Court reaffirmed principal that fundamental
rights of citizen not lost when they associate to form a company
 Principles laid down by Court to determine reasonable restriction
1) Reasonableness demands proportionality –Restriction shouldn’t be arbitrary or
unreasonable in nature
2) Reasonableness should be both Substantive and Procedural – Nature of Restriction
and Procedure for it are both considered to determine reasonability – Procedural
requirement for reasonableness flows from Article 19
3) Reasonableness should be determined in an objective manner
4) Reasonableness of Restriction and not of law – Law may be reasonable but
restriction may not be – In some cases Article 19 is r/w 14 and 21 and the law should
be reasonable in such cases
5) Restriction includes prohibition in certain circumstances
6) Due process and Reasonableness are similar but not identical in nature
7) Restriction for implementation of a DPSP is a point in favour of its reasonableness
8) Mere excessiveness of tax is not a ground for challenging it as restriction on a
freedom
 Burden of Proof is on State to prove reasonableness of restriction imposed
 A restriction imposed without authority of law is unconstitutional – Law includes both “law”
and “law in force” as per Article 13

Article 19(1)(a)
 Secures to every citizen right to freedom of speech and expression – It is not right to say
whatever, wherever and whenever

40
R.C. Cooper v. Union of India, (1970) 1 SCC 248
41
Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788

15
  Romesh Thappar v. State of Madras42 - Recognizes freedom of press, i.e. freedom to print
and publish what one pleases without permission – It is included in 19(1)(a) [Sakal Papers
Case] – It extends to all forms of publications – Free press is fundamental to democracy – It
doesn’t have higher footing than freedom of speech and expression of an ordinary citizen –
Imposition of pre-censorship unless justified by 19(2) is violative of the Article – Romesh
Thappar includes freedom of circulation and propagation of ideas – In Sakal Papers (P) Ltd. v.
Union of India43 it was held that the only restrictions which can be imposed upon the press
are those under 19(2) – In Bennett Coleman Case court held restriction cannot be imposed
upon volume of news and views
 Initially Commercial advertisements did not get protection of 19(1)(a) but later this view
changed
 Demonstrations are included under speech provided they are not violent and disorderly, but
strike isn’t included in is ambit.
 Dramatic performance is a form of speech and expression – Constitutionality of Films as a
media of expression and their prior censorship came up before Court in K.A. Abbas v. Union
of India44 - Court upheld constitutional validity of pre-censorship of films – However this
should be reasonable
 S. Rangarajan v. P. Jagjivan Ram45 - The State cannot plead inability to handle hostile
audience problem for a film as it is duty of State to prevent and protect fundamental right to
freedom of speech and expression
 The Right to know, receive and impart information has been recognized within the right to
freedom of speech and expression – S.P. Gupta v. Union of India46 - When disclosure of
document is contrary to public interest it is immune from disclosure
 Right to reply – Right to get published one’s reply in the same news media in which
something is published against or in relation to a person has also been recognized u/a
19(1)(a) – It also includes right to remain silent or not to speak
 Telephone is also a means of expression – Telephone tapping unless justified u/s 19(2)
infracts 19(1)(a) of the Constitution
 Flag Burning is not included u/a 19(1)(a) although Right to Fly the National Flag is

Article 19(2)
 Grounds for restriction of freedom of speech and expression
a. Sovereignty and Integrity of India – 16th Amendment Act
b. Security of the State – Crimes of Violence intended to overthrow government, wage
war and rebellion against government – Every Public disorder doesn’t threaten
security of State
c. Friendly Relations with Foreign States – 1st Amendment Act
d. Public Order – Added by 1st Amendment Act – Added after Romesh Thappar as Court
refused restriction as public order was not a ground at that time – “Interests of
Public order” wide than “Maintenance” of it – Reasonable nexus between restriction

42
Romesh Thappar v. State of Madras, AIR 1950 SC 124
43
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
44
K.A. Abbas v. Union of India, (1970) 2 SCC 780
45
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
46
S.P. Gupta v. Union of India, AIR 1982 SC 149

16
 and achievement of public order - Babulal Parate v. State of Maharashtra47 -
Upheld validity of Sec. 144 CrPC - Section 124-A has also been upheld – State of
Bihar v. Kamla Kant Misra48 - Section 144(6) imposed unreasonable restriction as
power under it could be exercised arbitrarily
e. Decency/Morality – Decency is same as lack of obscenity – Section 292 punishes
publication of obscene material – 292 Challenged in Ranjit D. Udeshi v. State of
Maharashtra49 - Held valid restriction – Court applied Hicklin’s Test for obscenity –
Mater has tendency to corrupt minds open to immoral influences and in whose
hands such publication may fall – IN subsequent cases, court has moved away from
Udeshi
f. Contempt of Court – Defined in S. 2 Contempt of Courts Act 1971 – Section 129 and
215 empower SC and HC’s to punish for their own contempt – Courts have become
liberal and only in cases where contempt is manifest, mischievous or substantial
does contempt prevail over freedom of speech and expression – Truth is a defence
to contempt
g. Defamation
h. Incitement to an offence – Added in 1951 – Sedition defined u/s124-A IPC comes
under this category – Incitement to violence is a requisite for offence of Sedition

Article 19(1)(g)
 Sodan Singh v. NDMC50 - Profession means occupation carried on by a person by virtue of his
specialised qualifications, training or skill – Occupation has wife meaning such as regular
work, profession, job etc. – Trade includes any bargain or sale, any occupation carried on
with a view to profit – Business is anything which occupies the time and attention of man for
profit
 Unni Krishnan J.P. v. State of A. P.51 –Denied that Education is covered under 19(1)(g) and is
a commerce – In Pai Foundation case, court held that education can be covered under
19(1)(g) – P.A. Inamdar case court has held unaided non-minority schools can be reasonably
regulated, however reservation of seats in private unaided educational institutions is
unreasonable restriction

Reasonable Restrictions in the Interest of the General Public

 Has to be in interest of general public and has to be a reasonable restriction
 It includes public order, public health, public security, morals, economic welfare of the
community and objects mentioned in Part IV
 Illegal trades can be prohibited completely – Legal trades can be regulated reasonably –
Habits such as trading in adulterated food or gambling are not trades
 Har Shankar v. Excise and Taxation Commr.52 – Revived the morality test and applied it to
the prohibition of liquor trade

47
Babulal Parate v. State of Maharashtra, AIR 1961 SC 884
48
State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337
49
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881
50
Sodan Singh v. NDMC,(1989) 4 SCC 155
51
Unni Krishnan J.P. v. State of A. P., (1993) 1 SCC 645
52
Har Shankar v. Excise and Taxation Commr., (1975) 1 SCC 737

17
  Nashirwar v. State of M.P.53 – The citizens do not have an inherent right to trade in liquor –
Prohibition of liquor trade is not only permissible but reasonable – Question also raised in
PN Kaushal case
 Fatehchand HImmatlal v. State of Maharashtra54 - Rural money-lending is not a trade even
though credit as an activity is acceptable, in the context of money lending it is reprehensible
 Some reasonable restrictions in the interest of general public are:
 Control of production, supply and distribution of necessary commodities in case of
scarcity or other emergency situations – Essential Commodities Act to pass orders to
control these
 Minimum Wages Act, 1948 – Prescribing minimum wages is not an unreasonable
restriction
 Section 7 – Punjab Trade Employees Act – Directing Shops to be closed 1 day in a
week not unreasonable
 License fee to engage in a trade/business is open to challenge under 19(1)(g) and
may or may not be reasonable
 Creation of monopoly in favour of a specific person/body can be
reasonable/unreasonable depending upon the nature of business – Essential
business then unreasonable – Liquor, reasonable
 Prohibition can be justified depending upon the nature of business
 Closure of slaughter houses for 7 days in an year is not unreasonable
 Regulating marketing and removing middleman for obtaining a fair price for
commodities is reasonable restriction
 Sodam Singh case – Right to carry on trade/business on street pavements is subject
to regulation and reasonable restrictions may be imposed
 Technical Qualifications imposed for a trade/business is saved and courts cannot determine
whether these qualifications are reasonable or not

Unreasonable Restrictions
 Unreasonable restrictions should strike a proper balance between 19(1)(g) and Social
Control under 19(6)
 Mohd. Hanif Quareshi v. State of Bihar55 - Total ban on slaughter of all cattle is unreasonable
as there is no test to determine their usefulness – This view changed in State of Gujarat v.
Mirzapur Moti Quareshi
 Granting of unreasonable and arbitrary power to regulate trade activities has been held
unreasonable in several cases
 Harakchand v. Union of India56 - Statutory obligation upon Gold dealer to confirm identity of
persons from whom gold is bought, held unreasonable as nothing specified to determine
such identity
 Excel Wear v. Union of India57 - Article 19(1)(g) also has a negative aspect, person cannot be
compelled to start a business

53
Nashirwar v. State of M.P., (1975) 1 SCC 29
54
Fatehchand HImmatlal v. State of Maharashtra, (1977) 2 SCC 670
55
Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731
56
Harakchand v. Union of India,(1969) 2 SCC 166

18
State Trading and Monopoly
 Article 19(6)(ii) allows the State to create a monopoly in its own favour – Saghir Ahmad v.
State of U.P58. – Restriction imposed under this clause, State does not have to justify actions
in a Court of Law and no objection could be taken to it as being infringing upon 19(1)(g)
 Only laws imposing the essentials of monopoly are protected under this law, anything
subsidiary to it can be challenged
 It can also be challenged if monopoly is actually not in favour of State but 3rd party

57
Excel Wear v. Union of India, (1978) 4 SCC 224
58
Saghir Ahmad v. State of U.P., AIR 1954 SC 728

19
Article 20 of the Constitution of India
Protection against ex-post facto laws
 Article 20(1) corresponds to the provisions against ex post facto laws of the US constitution
declaring that ex post facto laws may not be passed, i.e. an act done lawfully cannot be
made unlawful by a law made after commission of act.
 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 against him was an offence under the law in force at
time of commission of act.
 No future legislation can convict a person for an act which was not an offence at time of
commission
 It is only retrospective criminal legislation which is prohibited and not imposition of civil
liability
 Hathisingh Mfg Co. Ltd. v. Union of India59 - Civil Liability imposed upon employees, court
held that failure to discharge civil liability is not an offence and thus does not attract Article
20(1)
 If a repealing act is repealed, the original act is revived and no objection can be raised to
revival of procedure already in force at time of commission
 Article 20(1) does not apply to disciplinary proceedings
 NO person shall be subjected to a penalty greater than that which could be inflicted under
law in force at time of commission of offence
 Kedar Nath v. State of West Bengal – Punishment for an offence committed by accused was
increased post commission of offence – Court held that enhanced punishment could not be
handed out to the accused – Article 20(1) does not prohibit the reduction of punishment
 Rattan Lal v State of Punjab60 - An ex post facto law can be applied to reduce punishment
 A judicial decision interpreting an existing law which never came up for interpretation in
respect of a particular situation does not create an offence the first time and thus is not in
violation of Article 20(1) – Sarla Mudgal v. Union of India61
 Law in force must be law which was factually in operation on the date of commission of an
offence and not law which by legal fiction is made operative by virtue of the power of
legislature to pass retrospective laws – Rao Shiva Bahadur Singh v. State of Vindhya
Pradesh62 – Retrospective law passed by Parliament, held to be violative of Article 20(1)

Double Jeopardy
 Article 20(2) is grounded on the common law maxim nemo debet bis vexari – A man shall not
be brought into danger for one and the same offence more than once
 Corresponding provision in the US Constitution is the 5th Amendment
 The principle has also been enacted in in India u/s 26 General Clauses Act, 1897 and Section
300 CrPC

59
Hathisingh Mfg Co. Ltd. v. Union of India, AIR 1960 SC 923
60
Rattan Lal v State of Punjab, AIR 1965 SC 444
61
Sarla Mudgal v. Union of India, (1995) 3 SCC 635
62
Rao Shiva Bahadur Singh v. State of Vindhya Pradesh, AIR 1955 SC 446

20
  The ambit of the guarantee under Article 20(2) is much narrower than in the US, Common
Law or Section 300 CrPC – In US the bar applies to double prosecution, similarly so in the
common law system – U/a 20(2) there is a requirement of previous prosecution as well as
punishment for the guarantee to be available to an accused and punishment has to be for
the same offence
 Prosecution has no fixed meaning and is susceptible to both a wide and narrow meaning
however it includes the following under article 20(2):
1. There should be a person accused of an offence – The term “offence” as has been
used in General Clauses Act, 1897
2. Proceedings should have been taken before a “court” or “judicial tribunal”
3. Proceedings should be I reference to law which creates offences
 Maqbool Hussain v. State of Bombay63 - Action by Customs Officials cannot be said to be
prosecution and punishment for the purposes of Article 20(2)
 The second prosecution should be for the same offence, i.e. an offence with the same
ingredients – State of Bombay v. S.L. Apte64
 Double Jeopardy is different from rule of issue estoppel. Issue estoppel is when an issue of
fact has been decided by a competent court acting as a res judicata against prosecution. It
has been applied in the case of Pritam Singh v. State of Punjab65

Prohibition against Self-Incrimination

 No person should be compelled to be a witness against himself – 5th Amendment of US
Constitution is the corresponding provision in US
 It consists of 3 components:
1. Right pertaining to a person accused of an offence
 Person should be accused of an offence
 It is not necessary that the actual trial or enquiry should have commenced
before a court/tribunal
 In US and England the protection is available to any witness not just accused
 Nandini Satpathyv. P.L. Dani66 - A suspect is also considered an accused u/a
20(3)
2. Protection against compulsion to be a witness
 To be a witness means making oral or written statements in or out of court
by a person accused of an offence – It is not equivalent to furnishing
evidence
 State of Bombay v. Kathi Kalu Oghad67 - Giving thumb impression/ writing
sample / signature for the purposes of verification does not come uner
being a witness u/a 20(3)
3. Such compulsion should result in giving evidence against himself
 Kalawati v. State of H.P.68 Article 20(3) does not apply in cases where
statements are made voluntarily without inducement or compulsion

63
Maqbool Hussain v. State of Bombay, AIR 1953 SC 325
64
State of Bombay v. S.L. Apte, AIR 1961 SC 578
65
Pritam Singh v. State of Punjab, AIR 1956 SC 415
66
Nandini Satpathyv. P.L. Dani, (1978) 2 SCC 424
67
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

21
  In the Nandini Satpathy case the court also laid down guidelines to inform
the accused that he/she has the right to call a lawyer before answering any
questions
 Selvi v. State of Karnataka69 - Involuntary administration of scientific tests
such as narcoanalysis, polygraph examination and BEAP are violative of
Article 20(3)

68
Kalawati v. State of H.P., AIR 1953 SC 131
69
Selvi v. State of Karnataka, (2010) 7 SCC 263

22
Article 21
“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”

 It is available to citizens and non-citizens and confers upon them fundamental right to life
and liberty
 Life means more than mere animal existence – It extends to all those limbs and faculties by
which life is enjoyed - Francis Coralie Mullin v. UT of Delhi70- “Any act which damages or
injures or interferes with the use of any limb or faculty of a person, wither permanently or
even temporarily, would be within the inhibition of Article 21” – Right to life includes right to
live with human dignity and includes bare necessities of life such as nutrition, clothing and
shelter
 Olga Tellis v. Bombay Municipal Corporation71 - Right to life includes right to livelihood
 Right to carry on trade/business not included in Article 21
 State of HP v. Umed Ram Sharma72 - Access to road is included under right to life for people
living in hilly areas
 Right to clean environment may have precedence over economic interests of the society
 Deprivation of property only come under Article 21 if it lead to the deprivation of life or
liberty or livelihood
 Liberty – The scope of liberty under the US constitution is much wider than what has been
guaranteed in India – The use of the word personal in Article 21 restricts the scope of it in
India
 The meaning and scope of the word “liberty” first came up for consideration in Kharak Singh
v. State of U.P.73 – Personal liberty is confined to “freedom from physical restraint or
freedom confinement within the bounds of a prison” – it is used as a compendious term to
include all freedoms apart from those dealt in Article 19(1) – It was held in the present case
that privacy is not a fundamental right and attempts to ascertain movement of an individual
which is merely a manner in which privacy is invaded is not an infringement of a
fundamental right guaranteed under Part III – The minority view held privacy to be a
fundamental right u/a 21– The Courts have later however in several judgment held privacy
to be included u/a 21 - The judgment has been overruled with regards to its observations on
right to privacy in Justice K.S. Puttaswamy (Retd.) v. Union of India74

Procedure Established by Law

 It means procedure laid down by a statute or procedure prescribed by the law of the State
1. There should be a w justifying interference with the person’s life or personal liberty
2. Law should be a valid law, subject to provisions under Part III
3. Procedure laid down by the law should be strictly followed

70
Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608
71
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545
72
State of HP v. Umed Ram Sharma,
73
Kharak Singh v. State of U.P., AIR 1963 SC 1295
74
Justice K.S. Puttaswamy (Retd.) v. Union of India

23
  A.K. Gopalan v. State of Madras75 - “procedure established by law” means procedure
enacted by a law made by the State – Law does not include both jus and lex i.e. principles of
natural justice on analogy of “due process of law” as used in the US Constitution – That
meant Article 21 was only a protection against executive action and not legislative action
 ADM Jabalpur v. Shivakant Shukla76 – Supreme Court has held Article 21 is the sole
repository of life and personal liberty
 The Supreme Court changed this in the case of Maneka Gandhi v. Union of India77 by
establishing a relationship between Articles 14, 19 and 21 – This relationship was first
emphasized by the minority in Kharak Singh – The principle of exclusivity laid down in A.K.
Gopalan was rejected in the case of R.C. Cooper v. Union of India78 which removed the
exclusivity between Articles 19(f) and 31(2) based on which the Maneka Gandhi judgment
was delivered
 Thus “procedure established by law” should be reasonable, just and fair and not “arbitrary,
fanciful and oppressive” as per Article 14.

From “Procedure Established by Law” to “Due Process of Law”

 Sunil Batra v. Delhi Admn.79- Even though our constitution doesn’t have a due process
clause, after Cooper and Maneka Gandhi, the consequence is the same
 Bachan Singh v. State of Punjab80- By a 4:1 majority, death penalty u/s 302 IPC was held to
be constitutionally valid – J. Bhagwati dissented
 Mithu v. State of Punjab81 - Court unanimously invalidated mandatory death penalty u/s 303
IPC as being harsh, unjust and unfair
 Thereafter this test has been applied to property legislation, Hindu Marriage Act and
Government Order issued under a University Act
 There is some controversy with regards the relationship between articles 19 & 21as to
whether or not it is applicable to penalizing laws and although in Bachhan Singh it was held
that it is not, Article 19 has been held to be applicable to laws such as IPC Section 124-A and
292 & 295-A
 Due process has two aspects. Substantive Due process envisages that a law should be
reasonable and not arbitrary. Procedural Due Process envisages a reasonable procedure
 Gopalanrejected the argument that the words of Article 21 mean due process for 3 reasons:
1. The word “due” was absent in Article 21
2. The draft constitution consisted the words “due process of law” however these were
dropped in the final constitution
3. The American doctrine also involved the incorporation of doctrine of police power,
this wold also have to be implemented in India if that principle was to be applied
 The courts approach in Gopalan was considered a high watermark for legal positivism – The
rejection of principles of natural justice was also criticised

75
A.K. Gopalan v. State of Madras, AIR 1950 SC 27
76
ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521
77
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
78
R.C. Cooper v. Union of India, (1970) 1 SCC 248
79
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
80
Bachan Singh v. State of Punjab, (1980) 2 SCC 684
81
Mithu v. State of Punjab, (1983) 2 SCC 684

24
  The Court has given broader and broader interpretation to Article 21 post Maneka Gandhi

Criminal Justice post Maneka

 Right of Prisoners – State of Maharashtra v. Prabhakar Pandurang Sanzgiri82 - Right of
detinue to get book written during detention published – Prisoner entitled to all his
fundamental rights unless his liberty has been constitutionally curtailed – Prisoners have no
fundamental right to escape lawful custody – Handcuffing of under trials without proper
reasons written in writing is violative of their rights u/a 21
 Right to legal aid – Right to free legal aid at cost of the State to an accused who cannot
afford legal services for reasons of poverty, indiligence or incommunicado situation is part of
fair, just and reasonable procedure u/a 21 – Such accused should be informed of his right
and in absence of it, if there arises conviction of such accused without him being legally
represented, his conviction is liable to be set aside
 Right to speedy trial – 6 cases of Hussainara Khatoon v. State of Bihar it was held:
1. Procedure where a person is kept behind bars for a long period of time without trial
is unreasonable u/a 21
2. Expeditious review of withdrawal of cases against under trials for more than 2 years
3. Investigation to be completed in time bound program
4. Release of under trials held for periods more than the maximum term imposable on
them on conviction
5. Reviewed previous orders and passed further orders
6. Court emphasized upon the right to speedy trial and the system of bail in place
 Right against cruel and unusual punishment
 Right to Compensation
 Right to Know
 Right to Fair Trial
 Presumption of innocence
 Right of Appeal to High Court in Criminal Matters

Death Sentence
 Law commission in it’s 35th report has stated that Death Sentence should be retained in India
 20th Law Commission however has called for abolition of death penalty except in terrorism
cases
 Rajendra Prasad v. State of Uttar Pradesh83 - Death Penalty is subject to Articles 14
(Arbitrariness), 19 (Deprivation of Liberty) and 21 (Fair Procedure) – Test to award death
penalty upon nature of criminal not crime
 Constitutional Bench in Bachhan Singh upheld constitutional validity of death sentence
under IPC section 302 – It also held that it does not have to stand the test u/a 19(1) – It is to
be exercised in the rarest of the rare circumstances – Minority (J. Bhagwati) stated that test
u/a 19 applies – he said death sentence is totally arbitrary and unreasonable – Section 302
IPC and 354(3) CrPC are violative of Articles 14 & 21

82
State of Maharashtra v. Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424
83
Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916

25
  There is some controversy with regards the relationship between articles 19 & 21as to
whether or not it is applicable to penalizing laws and although in Bachhan Singh it was held
that it is not, Article 19 has been held to be applicable to laws such as IPC Section 124-A and
292 & 295-A
 In order to determine rarest of rare circumstances judges may ask themselves:
1. Whether there is something uncommon about the crime that calls for death
sentence
2. Circumstances are such that there is no alternative but to impose death penalty
 Delay in execution of death penalty is unreasonable and arbitrary

Extended View of Article 21

 Right to medical Care – Parmanand Katara v. Union of India84 - Obligation upon the State to
preserve life – Doctors cannot refuse a patient regardless of who the patient is – Paschim
Banga Khet Mazdoor Samity v. State of West Bengal85 - Constitution envisages a welfare
State and the State has on obligation to provide medical care to those who need them
 Sexual Harassment – Vishaka v. State of Rajasthan86 - Sexual Harassment of working woman
at her workplace amounts to violation of gender equality and right to life and liberty
violating Article 14, 15 and 21 – International conventions and norms to be read into
Fundamental rights in absence of any inconsistency between them – Rape has been held to
be a violation of a person’s fundamental right u/a 21
 Right to Privacy – Held to be a fundamental but not an absolute right in K Puttaswamy by a 9
judges bench – Overruled the cases of Kharak Singh and MP Sharma – Inclusive of several
aspects of privacy such as sexual orientation – Privacy includes right to data protection –
Judgment also expressly overrules the ADM Jabalpur judgment – Right to procreate has
previously also been held under Right to Privacy – The Court had previously acknowledged
that it is part of Article 21 in PUCL v. Union of India87 - Telephone Tapping has previously
held to be part of right to privacy, it is allowed under S. 5(2) of Telegraph Act, 1855 (Held
Constitutionally valid) however grounds have been laid down for it by the Court similar to
those in Article 19(2) – Procedure has also been laid down for telephone tapping
 Right to Die – P. Rathinam v. Union of India88 – A two judge bench evaluating contradictions
b/w S. 309 IPC and Art. 21 held right to life includes right not live a forced life – Bench called
for deletion of S. 309 IPC and held it to be void – Gian Kaur v. State of Punjab89 - Question of
what happens to person who abets suicide (S. 306 IPC) if principal act has been held void –
Overturned the ruling in P. Rathinam in the present case – Article 21 confers protection of
life and liberty and extinction cannot be read into it – Court also distinguished between
euthanasia and suicide – In euthanasia person is terminally ill, in vegetative condition, bound
to die, it only accelerates natural death – Aruna Shaunbaug v. Union of India – Active
Euthanasia and Assisted death are offences – Non-Voluntary passive Euthanasia allowed in
certain conditions and Safeguards

84
Parmanand Katara v. Union of India, AIR 1989 SC 2039
85
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426
86
Vishaka v. State of Rajasthan, AIR 1997 SC 3011
87
PUCL v. Union of India, AIR 1991 SC 207
88
P. Rathinam v. Union of India, AIR 1994 SC 1844
89
Gian Kaur v. State of Punjab, AIR 996 SC 946

26
Article 25 & 26 of the Constitution of India
 Article 25 should be read along with Article 26. Article 25 guarantees rights to an individual
while 26 guarantees right to a religious group/denomination. They both protect matters of
religious doctrine and acts done in the pursuance of religion
 Constitution does not define religion however the Supreme Court has given a
comprehensive definition of religion in Commr. Hindu Religious Endowments v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt90 - Matter of faith and not necessarily
theistic – It has basis in system of beliefs or doctrines conducive to the spiritual well-being of
practitioners – It may also prescribe rituals, observances, ceremonies and modes of worship
and may extend to matters of food & dress

Article 25(1)
 Guarantees to all persons (not just citizens) freedom of conscience and the right freely to
profess, practise and propagate religion.
 The right is subject to public order, health & morality and other provisions of Part III
 To profess one’s religions means right to declare freely and openly one’s faith. He may freely
practise his religion.
 Integral practices of a religion are also protected. What practices are integral and essential
to a religion are to be considered by the Court in reference to the doctrines of a particular
religion
 Propagation of religion is immaterial as to whether it is being made in personal capacity or
on behalf of a Church or Institution
 S.P. Mittal v. Union of India 91- J. Chinnappa Reddy held that religion is a matter of belief and
the question is whether the disciples/community consider something to be their religion –
Case relating to whether Sri Aurobindo’s teachings constituted a separate religion or not –
Majority took a restricted view and considered it to be constituting a philosophy
 Bijjoe Emmanuel v. State of Kerala92 - Court upheld the religious belief of Jehovah’s
Witnesses not to sing the National Anthem – Question is not whether a particular religious
belief or practice appeals to reason or sentiment but whether belief is genuinely and
conscientiously held as part of the profession or practice of religion – Any such practice is
protected under Article 25 subject to inhibitions therein
 Acharya Jagdishwaranand Avadhuta v. Commr. Of Police – Tandava dance in public of
Ananda Margis is not an essential practice of their religion
 M. Ismail Faruqui v. Union of India93 - 3:2 – Acquisition and possession of property is not
necessarily a part of Article 25 – Worship is a religious practice but worshipping at each and
every religious place is not essential unless that place has some religious significance – Thus
the Central Govt. can acquire religious properties which don’t have religious significance
attached to them – Mosque isn’t an essential part of religion of Islam, prayers can be offered
in the open as well
Minority – Acquisition of Certain Areas at Ayodhya Act violates principles of secularism –

90
Commr. Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
91
S.P. Mittal v. Union of India, (1983) 1 SCC 51
92
Bijjoe Emmanuel v. State of Kerala, (1986) 3 SCC 615
93
M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360

27
 State cannot acquire places of worship to State on ground of preservation of public order
because disorder may be caused by majority community
 Ramji Lal Modi v. State of UP94 - Section 295-A IPC held to be constitutionally valid and not
inconsistent with Articles 25 & 26
 Right to freely profess, practise and propagate religion does not extend to creating hatred
amongst persons practising different religions – Clause 3 and 3-A of Section 123
Representations of People’s Act 1951 held valid on this ground
 Reverend Stainislaus v. State of M.P.95- Right to propagate religion does not include right to
conversion by force/fraud/inducement

Article 25(2)(a)
 Article 25 does not extend to activities which are economic, commercial or political in their
character, though they are associated with religious practice.
 Adelaide Co. v. Commonwealth – Australian Case – Steps taken against Jehovah’s Witnesses
when they were teaching matters prejudicial to defence of the Commonwealth
 Mohd. Hanif Quareshi v. State of Bihar96 - Slaughter of Cow on Bakr-id not an essential
practice and can be regulated by the State

Article 25(2)(b)
 Includes 2 restrictions:
1. Laws providing for social welfare and reform
2. Throwing open all Hindu religious institutions of a public character
 State of Bombay v. Narasu Appa Mali97 - Preventing Bigamous marriages of Hindus a social
welfare Act
 Part 2 of this clause is subject to limitations – A person cannot seek to keep temples open all
the time or seek to perform religious practices only acharyas can perform
 Explanation 1 – Sikh’s are allowed to keep a kirpan however size is not prescribed so it may
as well be a sword. Any extra sword needs a license
 Explanation 2 – Hindus includes Sikh’s, Jains and Buddhists for the purposes of Article
25(2)(b)

Article 26
 Religious Denominations – It is a group of people having 3 characteristics – common faith,
common organisation and designation by distinctive name
 Manage own affairs in “matters of religion” – What forms an essential part of religion is
determined by court by reference to doctrines of that religion
 A restriction upon entry of temples should yield to the overriding effect of Article 25(2)(b) –
Article 25(2)(b) does not have an overriding effect if there is only a partial restriction upon
entry into temples
 Bira Kishore Deb v. State of Orissa98 - Act relating to secular functions of sevapuja at
Jagannath Temple of Puri held valid

94
Ramji Lal Modi v. State of UP, AIR 1957 SC 620
95
Reverend Stainislaus v. State of M.P.¸(1977) 1 SCC 677
96
Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731
97
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84

28
  N. Adithyan v. Travancore Devaswoon Board99- Non-Brahmins can be appointed as Poojari in
Siva temple in Kerala
 Religious denominations can run institutions for general education as it is charity however
they are subject to the provisions of Article 30
 Clause (c) & (d) of Article 26 guarantee to a religious denomination the right to acquire and
own property and to administer such property in accordance with law – This right of
administration can be restricted by law but not taken away – These restrictions must be
reasonable and of regulatory character – This does not mean property owned by religious
denominations cannot be acquired by the State

98
Bira Kishore Deb v. State of Orissa, AIR 1964 SC 1501
99
N. Adithyan v. Travancore Devaswoon Board, (2002) 8 SCC 106

29
Article 29 & 30
Article 29
Clause 1
 Right to section of citizens having distinct language, script or culture to conserve the same.
 It is not restricted to minorities but all sections
 Jagdev Singh Sidhant v. Pratap Singh Daulta100 - Political Agitation for conservation of
language of section of citizens cannot be regarded as a corrupt practice under Section 123(3)
(Promotion of communal enmity) of Representation of People Act - Article 29(1) no subject
of reasonable restrictions – Right is absolute

Clause 2
 It relates to admission into educational institutions which are maintained or aided by State
Funds – No citizens shall be denied admission in such institutions on grounds only of religion,
race, caste, language or any of them.
 Article 29(1) unlike Article 15 protects citizens against the State or anybody who denies the
right conferred by it and is much more specific (denial of admission) about its protection
 Grounds for discrimination between Article 15 & 29(2) are different. 15 does not include
language whereas 29(2) does not include sex or place of birth
 St. Stephens College v. University of Delhi101 - Minority Community may reserve up to 50%
seats even if it is state funded
 T.M.A. Pai Foundation v. State of Karnataka102 - Removed 50% limit set in St. Stephens and
set it as a reasonable percentage to be fixed by the State
 State of Bombay v. Bombay Education Society103 -Regardless of objective admission cannot
be restricted by the State on a ground under Article 29(2) – In the present case language –
Action held violative of Article 29(2)
 The State introduced by way of Amendments Article 15(4) [1st Amendment Act, 1951] and
15(5) [93rd Amendment Act, 2006] to ensure nothing in Article 15 or 29(2) can prevent the
State from making special provision for admissions of SEBC’s and SC/STs in education
institutions.
 This is not applicable to schools which do not receive any aid from the State – Elaborated
upon by the Court in P.A. Inamdar v. State of Maharashtra104 - The State cannot carve out
any quota or reservation for an unaided educational institution – Minority institutions can
admit students of their choice but not in a manner that they lose their minority status
 The 93rd amendment abrogates the judgment to the extent of application to non-minority
schools

100
Jagdev Singh Sidhant v. Pratap Singh Daulta, AIR 1965 SC 183
101
St. Stephens College v. University of Delhi, (1992) 1 SCC 558
102
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
103
State of Bombay v. Bombay Education Society, AIR 1954 SC 561
104
P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537

30
  The Obligation of unaided non-minority schools to admit 25% of students from EBC category
in age group of 6-14 as required by Right of Children to Free & Compulsory Education Act,
2009 has been upheld by the Court in Society for Unaided Private Schools of Rajasthan v.
Union of India105

Article 30
Clause 1
 It gives to all minorities based on either religion or language the right to establish and
administer educational Institutions of their choice
 Articles 29 & 30 are connected but are very different in their scopes. Article 30 is not relating
to the preservation and conservation of language, script and culture – They do not restrict
the scope of one another
 Minorities in the article means any community which is numerically less than 50% of the
population of a particular State as a whole when a law about which the question of minority
right is to be determined is a State law – Majority overall but minority in particular location
does not make it a minority
 The basis of determining minorities on basis of State was confirmed by an 11 judge bench in
the T.M.A. Pai Foundation case.
 The numerical test can break down in some cases, for example in cases where no
community constitutes more than 50% of population, or Buddhists and Jain considering the
Explanation II under Article 25(2)
 Article 30 does not protect political minorities.
 S.K. Patro v. State of Bihar106 - Citizenship not an explicit criteria u/s 30 to make a minority,
however foreigners do not have any right under Article 30(1) to establish and administer
educational institutions – Elaborated in St. Stephens Case as “minority forming a distinct and
identifiable group of citizens of India”
 Minorities are not entitled to establish any form of educational institution except one
exclusively for their own benefit
 For a minority to administer an educational institution it has to have established it. S. Azeez
Basha v. Union of India107 - The Muslim community cannot claim to administer Aligarh
Muslim University as it was established by a Central Legislation
 The Article does not provide for a fundamental right to recognition and affiliation of these
educational institutions.
 Minority schools cannot be compelled to undertake a certain percentage of SC/ST students
 For application of this right minority institutions are divided into classes:
1. Institutions not seeking recognition or aid from State – Not subject to regulations
except those arising from general law of land such as taxes
2. Institutions seeking aid from State
3. Institutions seeking Recognition but not aid from State
 Classes 2 and 3 are subject to regulations pertaining to academic standards and better
administration of that institution to make the institution better

105
Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1
106
S.K. Patro v. State of Bihar, (1969) 1 SCC 863
107
S. Azeez Basha v. Union of India, AIR 1968 SC 662

31
  In T.M.A. Pai Foundation case the court held that regulations serving national interests
cannot be overridden and are applicable on all educational institutions
 Sindhi Education Society v. Govt. (NCT Of Delhi)108 – National interest is to be consistent with
the law – Laws made in interest of national interest for regulation of educational institutions
cannot apply to minority institutions if they are made in disregard to interest of minorities
u/a 30
 Ahmedabad St. Xavier’s College Society v. State of Gujarat109 - States can regulate not restrict
the autonomy of administration of a minority institution
 All Saints High School v. Govt. of A.P.110 – 3 tests to determine whether action of government
amounts to interference with management of institution
1. Management is free from outside control, founders to be permitted to mould
institution as they deem fit
2. No part of management to be taken away by State and entrusted with another body
3. Exception – Government can take regulatory measures to improve standards of
education and the institution
 Frank Anthony Public School Employees Assn. v. Union of India111 – Regulations udner Delhi
School Education Act 1973 regulating conduct of employees etc. was inapplicable to
minority schools not receiving aid – It was held to be violative of Article 14 and was thus
made applicable upon minority schools not receiving aid as the regulation was for
betterment of institution and education
 In St. Stephens case it was held that the minority institution can conduct its own procedure
for admission and the Government/University cannot regulate it till the time it a transparent
process taking due care of merit. In the T.M.A. Pai Foundation case it was held that for
minority aided institutions admissions should be made by common admission test
 Language imposition cannot be done as a means for teaching and conducting examination –
D.A.V. College v. State of Punjab112

Clause 1-A & Clause 2

 Clause 1-A requires a special law providing for acquisition of property of minority
educational institution
 Clause 2 deals with the State not discriminating between minority institutions

108
Sindhi Education Society v. Govt. (NCT Of Delhi), (2010) 8 SCC 49
109
Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717
110
All Saints High School v. Govt. of A.P., (1980) 2 SCC 468
111
Frank Anthony Public School Employees Assn. v. Union of India, (1986) 4 SCC 707
112
D.A.V. College v. State of Punjab, (1971) 2 SCC 261

32
Amendability of the Constitution
Article 368
 Parliament in exercise of its powers can amend by way of addition, variance or repeal in
accordance with procedure laid down in this article
 Introduction o Bill in either House – Passed by majority in both houses – 2/3rd members of
house present and voting – Presented to president giving his assent thereto - Constitution
amended thereto
 If amendment being made to
 Article 54, 55, 73, 162 or 241, or
 Chapter IV or Part V, Chapter V of Part VI, Chapter I of Part XI, or
 Any List in the 7th Schedule, or
 Representation of States in the Parliament, or
 Provisions in the Article
Then, Bill before being sent to president for his assent has to be ratified by Legislature of at
least ½ states by way of resolution to that effect
 Nothing in Article 13 Shall apply to any amendment under this Article – [368(3)] – 24th
Amendment
 No Amendment of the Constitution made under this article made before/after the
commencement of Section 55 shall be called in question in any court on any ground – 368(1)
 For removal of doubts, there is no limitation upon the powers of the parliament to amend
provisions of Constitution under this Article – 42nd Amendment – Held Unconstitutional in
Minerva Mills v. Union of India113

Amendment Procedure
 There are 3 types of Amendment incorporated in the Constitution – Those that can be
effected by Simple Majority as those contemplated in Articles 4, 169, 239-A and Para’s 7 &
21of 5th and 6th Schedule respectively. Excluded from purview of Art. 368
 Those Requiring Special Majority as per 368(2)
 Those require ratification of ½ States as per 368(2). Include the following
 Election and manner of Election of President
 Extent of Executive Powers of the Union
 Extent of Executive Powers of a State
 Provisions Dealing with Supreme Court
 Provisions dealing with High Courts in States
 High Courts for Union Territories
 Distribution of Legislative Powers between Union and the States
 Representation of States in Parliament
 Seventh Schedule to the Constitution
 Article 368
 Kihoto Hollohan v. Zachillhu114 - Para 7 of 10th Schedule invalidated by Court for affecting
amending powers of Supreme Court & High Court – Unanimous in invalidity -

113
Minerva Mills v. Union of India, AIR 1980 SC 1789
114
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412

33
 Divided 3:2 on application of doctrine of severability of para 7 from 10th Schedule
Majority Held Para 7 was severable from 10th Schedule – Minority held it was not severable
and an amendment invalidated for not being in compliance with 368(2) cannot have
severability applied
 Power to amend Constitution includes power to Amend Article 1 cede to a foreign State
 BR Ambedkar on allowing Simple Majority passing of Amendment by Constituent Assembly
and Procedure under 368(2) by Parliament elected by adult suffrage said – Parliament will
have an Axe to Grind while CA has none – CA will seek to carry amendments to Constitution
to facilitate the process, while Parliament will amend to facilitate party measures they failed
to get through parliament

Amendability of Fundamental Rights

 First came up before Court in Shankari Prasad Singh Deo v. Union of India115 - Challenged the
addition of Article 31-A and 31-B as article 13(2) prohibited making laws abridging
fundamental rights and amendment also law. – Court held amendment not law as per Article
13 – Parliament has power to amend
 Sajjan Singh v. State of Rajasthan116 - Addition of several legislations to 9th schedule by 17th
Amendment making them immune to fundamental rights challenged in Court – Majority
upheld view in Shankari Prasad
 Golak Nath v. State of Punjab117 - 6:5 majority held that fundamental rights outside
amendatory process – Judgment had prospective effect – 3 writ petitions involved
i. Son, Daughter and Granddaughters of Golak Nath – Inclusion of Punjab Security of
Land Tenures Act, 1953 challenged
ii. 2 other petitions dealt with inclusion of Mysore Land Reforms Act
 The judgment proceeded on following reasonings
i. Implied limitation that FR are out of reach of Parliament – Consti includes specific
circumstances when these can be amended or suspended – These are principle
which are fundamental to people and the Parliament in no way can amend these
ii. Article 368 does not give power to amend, but merely procedure to amend and the
amending power is part of the legislative power of Parliament
iii. It is a residuary power of Parliament
iv. Anything in exercise of legislative power is law and thus so is an amendment
v. Power to amend is not superior to any other legislative power
vi. Fundamental rights can only be amended by a Constituent Assembly and the
Parliament can pass a bill constituting it
 This made Parliament add Article 13(4) [Amendment no affected] to nullify effect of Golak
Nath and Article 368(3) [Article no affected by Article 13] and head note changed to include
“Power of Parliament to Amend the Constitution and Procedure therefor” – And changing
wording of 368(1) to highlight constituent powers of parliament to amend –President’s
discretion in giving assent to Bill to Amend removed

115
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
116
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
117
Golak Nath v. State of Punjab, AIR 1967 SC 1643

34
Unamendable Basic Structure
 Kesavanda Bharti v. State of Kerala118 - Petition filed to challenge Validity of Kerala Land
Reforms Act, 1963 as amended in 1969 – During pendency of petition it was placed in 9th
Schedule and so Challenge to 24th, 25th and 29th Amendment was also allowed – 13 Judge
Bench – Argued the following
i. Having such constituent powers as is conferred upon it by the Constitution by the
people unto themselves, Parliament cannot enlarge its powers to amend as given by
the Constitution
ii. Parliament being created under the Constitution cannot enlarge its powers to an
extent to amend the basic features of the Constitution
iii. Power to amend cannot give power to amend and abrogate fundamental rights the
people gave to themselves
iv. Parliament cannot abrogate limitations set upon it by way of amendment
 All judges agreed that 24th Amendment is valid – 7 judges held that power is subject to
certain implied and inherent limitations, and thus Parliament cannot change basic structure
of the Constitution - 6 of these majority except Khanna thought Fundamental rights are part
of Basic Structure and not amendable – The Minority 6 did not accept any limitation on this
power – Khanna held that right to property not part of basic structure
 CJ Sikri explained the concept by way of illustrations of Supremacy of Constitution, Republic
and Democratic form of Government, Secular character, separation of powers, Federal
Characters are basic features – Other judges included other features such as democratic
nature, unity of country, preamble principles, Sovereignty of India, Welfare State etc. –
These 6 judges agreed that freedom of an individual is a basic feature
 6 Minority judgment held that there was no implied limitation on Parliament’s powers to
amend and they can amend till the time the Constitution as an Organic Instrument providing
or making, interpreting and implementing the law – They felt one aspect of Constitution
cannot be held of greater significance than others
 J. Khanna agreed in principle with amendment cannot have effect of destroying or
abrogating basic structure or framework of Consti – Changing democratic form of
government, or secular character or abolishing Lok Sabha or Rajya Sabha cannot be done –
He thought power to amend fundamental right can is there till the time it does not alter
basic structure of the Constitution – He also held right to property was not part of basic
structure
 According to Summary signed by 9/13 judges, this case overruled to Golak Nath
 Indira Nehru Gandhi v. Raj Narain119 - 39th Amendment to Constitution challenged –
Amendment affected free and fair elections and judicial review, these being part of basic
structure, and thus Amendment unconstitutional – Court upheld this view – Chandrachud
identified 4 unamendable features forming part of basic structure:
i. Sovereign Democratic Republic Status
ii. Equality of Status and Opportunity of individual
iii. Secularism, freedom of conscience and religion
iv. Government of Laws and not of men

118
Kesavananda v. State of Kerala, AIR 1973 SC 1461
119
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

35
  Constituent Powers are not above the Constitution, Parliament cannot perform
judicial/quasi-judicial functions – Held that Parliament could not adjudicate on merits in an
election dispute
 Minerva Mills Ltd. v. Union of India120 - Validity of Section 4 & 55 of 42nd Amendment Act
Challenged – These Sections amended Articles 31-C and 368 – 31-C Laws implementing DPSP
exempt from challenge on ground of Articles 14, 19 and 31 – Article 368 clauses 4 & 5 added
and validated all invalidated amendments – 368 Amendment Unanimously held invalid while
31-C held invalid by 4:1 ratio
 Waman Rao v. Union of India121 - Supreme Court upheld validity of original and amended
Article 31-A and 31-B and 9th Schedule – With regards to 9th Schedule court held all
amendments made prior to Kesavananda Bharati were valid and post it are open to
challenge – Court reaffirmed this principle in I.R. Coelho v. State of T.N.122
 S.P. Sampath Kumar v. Union of India123 - Validity of Article 323-A allows for administrative
tribunals free from jurisdiction of all courts, except Supreme Court as alternate mechanisms
for judicial review can be made without violating basic structure doctrine
 Doctrine Applicable upon Executive Acts and Judiciary
 Test for Basic Structure:
i. Width Test – Constitutional Limitations should not be abrogated
ii. Identity Test – Original Identity of the Constitution shouldn’t be lost
 It has to be determined from each and every case as to whether it forms part of Basic
Structure

120
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
121
Waman Rao v. Union of India, (1981) 2 SCC 362
122
I.R. Coelho v. State of T.N., (2007) 2 SCC 1
123
S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124

36