Contents

I. CONSTITUTIONALISM 2
II. RULE OF LAW 2
III. WHETHER THE COMPOSITION AND FUNCTIONING OF THE CONSTITUENT ASSEMBLY REFLECT
THE WILL OF THE PEOPLE? 5
IV. ARTICLE 12 6
V. PREAMBLE 11
VI. ARTICLE 13 12
VII. ARTICLE 14 20
VIII. ARTICLE 15 27
IX. ARTICLE 16 32
X. ARTICLE 17 39
XI. ARTICLE 18 39
XII. ARTICLE 19 40
XIII. ARTICLE 20 44
XIV. ARTICLE 21 48
XV. ARTICLE 21(A) 53
XVI. ARTICLE 22 55
XVII. WRITS 57
XVIII. ARTICLE 32 62
XIX. PUBLIC INTEREST LITIGATION 63
XX. RELATION BETWEEN FR AND DPSP 68
XXI. FUNDAMENTAL DUTIES 70
XXII. ARTICLE 23 73
XXIII. ARTICLE 24 73

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I. CONSTITUTIONALISM
Limiting the power of the government through democratic measures is termed as
Constitutionalism.
The state derives power from the people therefore, it is accountable to the people. If the
organs of the government are bestowed unlimited power, they will misuse it. Nothing which
is unlimited stands the test of time. It is here that the concept of constitutionalism comes into
being, because power corrupts and absolute power corrupts absolutely. Limited power
imparts durability to the constitution and gives it the capacity to endure more. The interests of
the governed are a fundamental check to on the powers of the governing body.
Tools include-
1) Public Interest Litigation
2) Judicial Review
3) Theory of separation of powers as each organ checks the other
4) The Constitution itself as it is a set of rules which defines boundaries of the
government on the powers vested.
5) Fundamental Rights
The concept of limited power dates back centuries as it comes from the French and the
American revolutions, and the Magna Carta.
Modern political thought draws a distinction between constitution and constitutionalism. A
country may have a constitution but may not have constitutionalism. The underlying
difference between the two concepts is that a Constitution ought not merely to confer powers
on the various organs of the Government, but also seek to restrain those powers.
Constitutionalism recognizes the need for government but insists upon limitations being
placed upon governmental powers; it envisages a system of checks and balances and putting
the powers of the legislature and executive under some constraints to ensure they do not
function arbitrarily. The antithesis of Constitutionalism is despotism. Unlimited power may
lead to an authoritarian, oppressive government which jeopardizes the freedom of the people.
A written Constitution, independent judiciary with powers of judicial review, the doctrine of
rule of law, and separation of powers, free elections to legislatures, accountable and
transparent democratic government, fundamental rights of the people, federalism,
decentralization of power are some of the principles and norms which promote
Constitutionalism.
Constitutionalism pre-supposes the existence of Rule of Law.

II. RULE OF LAW

The restriction of the arbitrary exercise of power by subordinating it to well-defined and
established laws is called Rule of Law. It implies that individuals, persons and government
shall submit to, obey and be regulated by law, and not arbitrary action by a group or
individual. The state is governed not by the ruler or people but by law. Everyone under
similar circumstances are subject to the same law. It lays down that the law is supreme and
hence the government must act according to law and within the limits of the law.
Three principles of rule of law-
Supremacy of the Law

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We mean, in the first place, that no man is punishable or can be lawfully made to suffer in
body or goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land. In this sense the rule of law is contrasted with every
system of government based on the exercise by persons in authority of wide, arbitrary, or
discretionary powers of constraint.
Equality before law
We mean in the second place when we speak of the rule of law as a characteristic of our
country, not only that with us no man is above the law but that here every man whatever be
his rank or condition is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals.
Predominance of the legal spirit

There remains yet a third and a different sense in which the "rule of law" or the
predominance of the legal spirit may be described as a special attribute of English
institutions. We may say that the constitution is pervaded by the rule of law on the
ground that the general principles of the constitution (as for example the right to
personal liberty, or the right of public meeting) are with us the result of judicial
decisions determining the rights of private persons in particular cases brought
before the courts; whereas under many foreign constitutions the security given to the
rights of individuals results, or appears to result, from the general principles of the
constitution.
The rights of individuals are part of the Constitution because these are secured by the courts.
Dicey was thinking about common law freedoms such as personal liberty, freedom of speech,
public meeting, etc. He said that certain constitutions proclaim rights but do not provide
adequate means to enforce those rights. Written constitutions provide for basic rights of the
people which are guaranteed in the Constitution itself.
The broad emphasis of Rule of Law is on the absence of any centre of unlimited or arbitrary
power in the country, on proper structurisation of power. Rule of law has been upheld as a
basic feature of the Constitution. The Indian Constitution by and large seeks to promote Rule
of Law through many of its provisions. For example, Parliament and State legislatures are
democratically elected on the basis of adult suffrage. The Constitution makes adequate
provisions guaranteeing independence of the judiciary and judicial review has been
characterized as a basic feature of the Constitution.
In P. Sambamurthy, the S.C has declared a provision authorizing the executive to interfere
with tribunal justice as unconstitutional, characterizing it as violative of the rule of law which
is clearly a basic feature of the Constitution.
• Indira Nehru Gandhi v. Raj Narain, “The rule of law postulates the pervasiveness
of the spirit of law throughout the whole range of government in the sense of
excluding arbitrary official action in any sphere….It is an expression to give reality to
something which is not readily expressible.”
• Bachan Singh v. State of Punjab* “The rule of law permeates the entire fabric of the
Constitution and indeed forms one of its basic features. The rule of law excludes
arbitrariness, its postulate is ‘intelligence without passion’ and reason free from
desire. Wherever we find arbitrariness or unreasonableness, there is denial of the rule
of law.”

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PURPOSES
• First, the Rule of Law should protect against anarchy and the Hobbesian war of war of
all against all ( men are naturally self-interested, yet they are rational, they will choose
to submit to the authority of a Sovereign in order to be able to live in a civil society,
which is conducive to their own interests).
• Second, the Rule of Law should allow people to plan their affairs with reasonable
confidence that they can know in advance the legal consequences of various actions –
(Predictability and concreteness)
• Third, the Rule of Law should guarantee against at least some types of official
arbitrariness
Against the backdrop of these purposes, Leading modern accounts generally emphasize five
elements that constitute the Rule of Law. To the extent that these elements exist, the Rule of
Law is realized.
• (1) The first element is the capacity of legal rules, standards or principles to guide
people in the conduct of their affairs. People must be able to understand the law and
comply with it.
• (2) The second element of the Rule of Law is efficacy. They should actually guide
people, at least for the most part. In Joseph phrase, "people should be ruled by the law
and obey it."
• (3) The third element is stability. The law should be reasonably stable, in order to
facilitate planning and coordinated action over time
• (4) The fourth element of the Rule of Law is the supremacy of legal authority. The
law should rule officials, including judges, as well as nary citizens
• (5) The final element involves instrumentalities of impartial justice. Courts should be
available to enforce the law and should employ fair procedures.

MAAM PPT.
• The rule of law, in other words, cannot be sensibly detached from the wider normative
context of a community’s history, politics, morality, ethics and culture. The grounding
of the rule of law in concrete existential contexts thus broaches the following caveat
of caution: for the rule of law to have any force or value at all, there must be a shared
commitment from both government and governed to uphold the dictates of the law;
such a commitment is based on common respect for the foundational values deemed
essential to a just society, and in the absence of which the rule of law is not likely to
command a powerful following.
• The practical implication is clear: in order for the rule of law to compel fundamental
change in society and to cause a public stir when it is violated or even abandoned, it
must first win the minds and hearts of the people, command their respect and satisfy
their acquiescence therein.
• The significance of the rule of law also lies in its doubtful intersection with
democracy: it both confirms and limits democracy by curbing the excesses of majority

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 rule. Accordingly, democracy is conceived, not as the simplistic notion of majority
rule, rather, as majority rule subject to constitutional limits and controls.
• The rule of law, therefore, mandates that even democratic majority rule is limited by
law: ‘[t]he first requirement for a liberal democratic society…is the rule of law’
(Walker 1995:187). Majority rule is important; but, as T.R.S. Allan (2001:25) has
pointed out, it deserves ‘no special political or constitutional reverence except in so
far as it is truly consistent with the values of equal human dignity and individual
autonomy: politics, in its ordinary institutional forms, should be the servant of justice
rather than its master’. The limitation of government rule by law is the essence of
constitutionalism, privileging the rule of law and setting out the rules that define
government powers and their limits in advance of government action
• Whatever else the rule of law is, it is fundamentally a form of social control—‘the
enterprise of subjecting human conduct to the governance of rules’ (Fuller 1969:124).
There seems to be an implicit assumption that people will follow the rules set down
by their institutions (including the state, social clubs, churches, schools and other
forms of human association) because human beings are ‘rule-following animal[s] as
much as purpose-seeking one[s]’ (Hayek 1973:11).6 For the rules to have maximum
effect they must be widely known, concretely rooted in the community’s political
culture, and actually command the citizens’ assent.
• This optimistic faith in the governance of rules and the alleged human predisposition
to follow legal rules makes rule-following is a complex phenomenon. A common
explanation is the fear of punishment when rules are not obeyed (Bentham 1970), but
such negative rationales are not complete. In more prosaic circumstances, people obey
the law for reasons other than the fear of sanctions, which suggests that more positive
dynamics are at play. The predisposition to adhere to society’s underlying political
morality is one important consideration.
How in the United Kingdom, the rule of law has been closely related to A.V. Dicey?

III. WHETHER THE COMPOSITION AND FUNCTIONING OF THE

CONSTITUENT ASSEMBLY REFLECT THE WILL OF THE PEOPLE?

The great visionary Mahatma Gandhi in 1922 voiced that Indians must shape their own
destiny and Swaraj must spring from the wishes of the people. Refusing to accept the
White Paper as reflective of the will of the people, The Indian National Congress in its
official policy in 1934 for the first time expressly demanded a Constituent Assembly
elected on the basis of adult suffrage.
Thereafter in a series of sessions and meetings, this demand gradually intensified. Amidst
a state of war-augmented power, expanding industry, armed and trained army and a mood
of self-assertion mood after the World War, a Constitution drafted by themselves was the
only thing acceptable to them. These demands resulted in the establishment of the
Constituent Assembly elected through a process of indirect election that began to function
with the permission of the British Government.
At this stage, a series of facts need to be considered in order to answer the question asked
i.e. ‘whether the Constitution Assembly is reflective of the will of the people?’

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 1) Firstly, the Assembly was elected through a process of indirect election and not
adult suffrage (whose feasibility was challenged as being cumbersome by the
Cabinet Mission). The electoral process was based on restricted franchise
established by the 6th Schedule of the Governemnt of India Act, 1935 which
excluded mass of peasants, small shopkeepers and countless others based on tax,
property and educational qualifications.

2) Secondly, owing to the bitter relations between INC and the Muslim League, the
members of the League chose to boycott the Assembly, the composition remaning
predominantly that of Congress.

3) Thirdly, three political organisations (the Communist Party, the Socialist Party
and the Hindu Mahasabha) had no official recognition in the Assembly.

4) Fourthly, the Central Working Committee recommended the names of several

persons to be whose presence was indispensable in the Assembly.

5) Fifthly, the eight major committees of the Assembly were chaired by either
Nehru, Patel, Prasad or Azad. These leaders constituted the oligarchy/inner circle
and every decision would require a green signal from their end.

6) Sixthly, the members belonged to diverse backgrounds (lawyers, doctors,

teachers, civil servants etc) with experiences of national issues. Even though it
consisted of members of the elite class but they knew where they came from.

7) Seventhly, people from communities including Indian Christians , Anglo-Indians,

Parsis, Scheduled Castes and tribes, Adivasis and also women found place in the
Assembly as a result of the Congress’s efforts (Cabinet Mission had only provided
for representation of the Muslims and Sikhs). it reflected a broad consensus of it’s
time, not just the views of the members alone.

8) Eighthly, although the Oligarchy’s influence was irresistible yet the Assembly
decided the issues democratically after genuine debate. A middle path was chosen
for everything so that a correct balance can be striked.

A look at points 1-5 cast considerable doubt on the composition of the Assembly as
reflective of the will of the people. How can a body that does not represent a fourth of the
nation be reflective of the will of the people? Whereas a look at points 5-8 suggest the
contrary. It is often argued that certain factors like non-participation of Muslim League
and other political organisations was due ideological and several other differences,
indirect election to the Assembly through Provincial Legislatures were beyond the
Congress’s control. The Congress on its own effort propelled the cause of nation building
and made efforts to the best of its ability to accommodate conflicting claims and interests
under one umbrella.

CONCLUSION

IV. ARTICLE 12

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“In this part, unless the context otherwise requires, the State includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local
or other authorities within the territory of India or under the control of the Government of
India.”
● The expression “other authorities” is open ended and not defined in the Constituition,
it is used to extend liability for infringing FR to other institutions performing public
services.
● It is extended to bodies which are remotely positioned like RBI to have administrative
control and enforce FR of the people because they directly deal with the people.
● Bodies which perform socio economic functions which are fundamental to idea of
welfare state are categorised as state.
● Even if their motive is profit, for this they need not intrude into the liberty of the
citizens.

Whether judiciary is state under Article 12?

Article 12 does not explicitly mention Judiciary as a state. However, through judicial
interpretations it is possible to bring it under the ambit of Article 12 as “other authorities,”
According to Article 12, In this part, unless the context otherwise requires, “the State”
includes the Government and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of India or under the
control of the Government of India.”
The current legal position says that,
● The administrative side and the quasi-legislative (rule-making) side of the judiciary
are “state” within the meaning of Article 12 of the Constitution of India.
● However, the judicial side of the judiciary is not “state” within the meaning of Article
12 of the Constitution.
In Naresh Mirajkar v. State of Maharashtra, the court held that Judicial Decisions
cannot be challenged for violation of fundamental rights as the judiciary’s role is to
interpret the laws and the decisions are ‘inter-party’. Also, if one does not agree to the
decision, then review petition and curative petition can also be filled. Therefore, judiciary
was not considered to be state under Article 12.
In Prem Chand Garg v. Excise Commissioner, the Supreme Court in exercise of its
power under Article 145 made a rule that when a person approaches the SC for Writs
under Article 32, they have to submit the litigation cost in advance so that if he loses, the
money can be given to the other party. Prem Chand said it violates Article 32. The court
held that if judiciary, in exercise of its judicial power violates a fundamental right, then it
will be liable as qualify as State under Article 12. But not when it is exercising its judicial
function.
Thus we see that the judiciary has been reluctant to declare itself a State under Article 12.
However, Judicial Decisions should be screened for violation of Fundamental Rights as
otherwise, the wrong committed today will be perpetuated as the same decision will again
be used if not challenged.
Also, if we go by the Functionalist Approach,

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 According to the Functionalist approach, as used in Sukhdev Singh v. Bhagat Ram, the
function performed by the institution is the basis for classifying an entity as a state.
Applying the functionalist approach, judiciary qualifies to be a state as its functions
directly affect the people and it is discharging an important function of public welfare.
INTERPRETATION OF ‘OTHER AUTHORITIES’ UNDER ARTICLE 12
● Whether private authorities are state under Article 12?
1. Since the state is giving away privatisation on such a large scale, it cannot deny the
crucial fundamental rights to citizens just because private institutions have not been
explicitly included in the term ‘State.’
2. Most of the private entities have come to place to fulfil the various functions of the
state which it itself has been unable to fulfil solely through public institutions. Like
education.
3. If a body is carrying out socio- economic function, which is fundamental to the idea
of welfare state, it is State.
4. Even if their motive is profit, for this they need not intrude into the liberty of the
citizens.
Therefore, any private body working as an instrument of the state should qualify as a State.
As and when it arose, the Judiciary has given the tittle of State to certain institutions.
In Ajay Hasia, the court laid down the Agency or Instrumentality Test which applies even to
private companies and corporations.
1. If the entire share capital is held by the govt, it would go a long way in indicating that
the corp. is a govt agency or instrumentality.
2. Where the financial assisstance of the State is so much so as to meet almost the entire
expenditure of the corp, it would afford some indication of the corp. being
impregnated by govt presence.
3. It may also be a relevant factor to check whether the corp. enjoys a monopoly status
which has been granted by/is being protected by the govt.
4. Existence of deep and pervasive control by the State may afford that the corp. is a
govt instrumentality.
5. If the functions of the corp. are of public importance and are closely related to govtal
functions, it would be a relevant factor in classifying the corp. as a govt
instrumentality.
6. Specifically, if a govt dept. is transferred to this entity, it would be a strong factor that
it is an agency of the State.
7. Whether statutory duties are imposed on the corporation or not.
If a private body fulfils these tests, it is state under Article 12.

FUNCTIONALIST APPROACH
According to the Functionalist approach, the function performed by the institution is the
basis for classifying an entity as a state.
In University of Madras v. Shanta Bai, the University refused to admit women until there
were enough facilities. Shantabai thought this was discrimination under Article 14, which is
only applicable against the State. The Madras High Court evolved the principle of ejusdem
generis i.e. of the like nature. It means that those authorities are covered under the expression
'other authorities’ which perform governmental or sovereign functions. The Supreme Court

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applied the principle of ‘ejusdem generis’ to Article 12, in the interpretation of other
authorities. According to this principle, when there is a list of things, if it ends with ‘others’
or ‘etc’, the interpretation of these words is done using the theme or thread connecting the
given list. The University was not found to be a part of “other authorities”, as it only included
the ones exercising governmental functions.
In Sukhdev Singh v. Bhagat Ram, question arose whether corporations like LIC, ONGC
and Finance Corp. can be considered as ‘other authorities’ under State. The court said that
‘welfare state’ cannot perform all its welfare functions through government servants; thus
corps are created. As agencies of the govt, they must be considered as part of State under
‘other authorities’. Therefore if they are performing government functions, they will
categorise at state.
STRUCTURALIST APPROACH
Gradually the focus shifted to an Authoritative Approach. The body’s relation with the
government was studied to determine if it was state or not.
In Rajasthan State Electricity Board v. Mohanlal, Mohanlal was a foreman with RSEB.
He was sent on a 2-year deputation. While he was gone, his colleagues were promoted to
assistant engineer; he thus requested to be promoted but this request was denied. He claimed
that this was a violation of his rights under Articles 14 and 16, which are only applicable
against the State. RSEB said that though statutory, but the nature of it’s operations is
commercial. The court said that the principle of ‘ejusdem generis’ cannot be applied and it is
not necessary that the body be involved in sovereign functions, but it still may affect the
public and pplying it would reduce the scope of the Article. Rather, it includes all those
bodies which are created by the statute and powers are conferred by law.
COMMERCIAL FUNCTION + AFFECTS PUBLIC = STATE
Therefore, it overruled the University of Madras v. Shantabai case.
In R.D. Shetty v. International Airport Authority of India, IAAI invited tenders to run
restaurants at Mumbai Airport for 3 years; 5-year experience was required.6 tenders were
received; the highest bid amount tender was accepted, even without the 5-year experience.
RD Shetty had also filed a tender which wasn’t accepted; he fulfilled all the requirements;
claimed it was discriminatory and arbitrary under Article 14. The court followed the Sukhdev
Singh Judgement.
In Ajay Hasia v. Khalid Mujib, it was held that if a corporation is an instrumentality or
agency of the government, it must be held to be an ‘authority’ within the meaning of Art.
12 and hence subject to the same basic obligation to obey the Fundamental Rights as the
government.
In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, the court observed
that while deciding whether an authority is public or not, lesser stress should be laid on
whether the body is statutory or not. It was held that “Whether in light of cumulative facts, as
established, the body is financially, functionally and administratively dominated by or under
the control of the government. Such control must be particular to the body in question and
must not be merely regulatory.”
This is the outline of the scope of the expression ‘other authority’ for the purposes of Article
12. As understood from a general perspective, the objective behind incorporating an

9
open-ended expression was to extend effective shield of Part III to the masses from
infringement of FRs from authorities which violate or are likely to violate FRs. Since the
expression was left undefined, the responsibility vested on the Judiciary to lay down tests that
would determine whether an authority rightly fits into the definition of ‘State’ or not. The
judiciary laid down the agency or instrumentality test which oscillated between a
functionalist approach (signifies case-by-case application of independent normative values
that the law ought to promote and is based on the nature of function discharged by the
authority) and a structuralist approach (attempts to derive constitutional rules from the
relationships and interactions between various constitutional institutions or ‘structures’ and is
based on the extent of Government control exercised on the body). It was evident that the
later cases of the Court reflected the later approach and focussed more on the ‘deeply
pervasive presence of the Government’ test (Ajay Hasia v Khalid Mujib). Essentially, the
Court continued to look at whether the relationship of the entity in question with the citizen
extended the government’s relationship with the latter through the presence of government in
the former’s structural setting. Post Ajay Hasia, cases the Court further narrowed the ‘agency
or instrumentality’. In Pradeep Kumar Biswas v Indian Institute of Chemical Biology it was
explicitly laid down that a body would qualify as ‘State’ under Article 12 where, in light of
the cumulative facts, it was ‘financially, functionally, and administratively dominated by or
under the control of the Government’. Mere regulatory control over the body would not
suffice.

Additional Cases
Naresh Mirajkar v. State of Maharashtra
Witness asked for evidence to be taken in-camera i.e. hidden. When the court allowed this,
the newspapers said this hampered their right to publish i.e. violated there Article 19 (1) (a)
rights.
There were 4 main issues to be looked at.
1. In camera trials over sensitive issues were allowed by the court as constitutional. The
High Court has inherent jurisdiction to hold a trial in camera if the ends of justice
clearly and necessarily require the adoption of such a course.
2. High court is not an inferior court, therefore the Supreme Court cannot decide if an
HC has violated fundamental rights. The SC Court has no power to issue a
certiorari to the High Court. When the High Court has the power to issue the writ
of certiorari, it is not, according to the fundamental principles of certiorari an
inferior court or a court of limited jurisdiction. The Constitution does not
contemplate the High Courts to be inferior courts so that their decisions would
be liable to be quashed by a writ of certiorari issued by the Supreme Court.
3. It is not violative of Article 19(1)(a) and the court may choose not to make certain
testimonies public. The High Court has jurisdiction to decide if it could restrain the
publication of any document or information relating to the trial of a pending suit
or concerning which the suit is brought.
4. Appropriate proceedings should be used, not Article 32. For example, an Appeal,
Review Petition, or a Public Interest Litigation or Special Leave Petition (Article
136).
5. A 9-judge bench of the Supreme Court held that a judicial decision pronounced by a
judge of competent jurisdiction in or in relation to a matter brought before him for

10
 adjudication cannot affect the fundamental rights of the citizens since what the
judicial decision purports to do is to decide the controversy between the parties
brought before the court and nothing more. Therefore, such a judicial decision cannot
be challenged under Article 13.

However, this judgement was heavily criticized.

In camera trials exist, but here the court tried to stop the press from publishing the statements
of one particular defence witness. This is a violation of fair proceedings.
Appropriate proceedings were used. Article 32 guarantees securing fundamental rights.
Something that is guaranteed cannot be abridged by Article 32. Also, Article 136 is
discretionary.
Judicial decisions should be open for challenging them for violation of Fundamental Rights.
When a law is made, it is screened through Part III, then why are they not screened through
Part III? Moreover, Rules and Regulations made by the judiciary can be challenged, but no
decisions. How fair is that? Also, a wrong committed today will be perpetuated as the same
decision will be used again if not challenged.
A.R. Antulya v. R.S. Nayak
Main question – Whether the Supreme Court can strike down its own decision given at a
prior date as violative of Fundamental Rights?
AR Antulay was charged under the Prevention of Corruption Act. The case was tried by a
special CBI Court. Matter was transferred to Bombay HC as per an SC order; one stage of
appeal was thus taken away; deprived the right to a fair trial. The case was redirected back to
the special court by the SC.
The power to try that case was a legislative enactment. The judiciary’s work was to interpret
the law and not over rule the legislative mandate.

The SC quashed its own order, and thus over ruled its own
decision. This is based on 2 maxims,
a) When it is brought o the notice of a superior court that it has made a mistake, the
court will take a look and over rule the previous decision and rectify it.
b) The decision of the court should prejudice no one.

V. PREAMBLE
Key to the open the minds of the statue makers. Whenever a provision is ambiguous in
nature, we look at the objectives enshrined in the preamble. Every provision is judged
through the prism of the preamble, it is interpreted in the lights of ideals, values and
objectives. It is an internal aid to interpretation.
It is not enforceable in itself. Just contains the ideals which cannot be enforced. To stand on
its own, it has to be supported by other substantive provisions expressly mentioned in the
constitution.
Kinds of Preambles

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 • Affirming faith in God and Religion – Afghanistan, Bangladesh(Allah), Swiss,
Eire (Jesus Christ), Pakistan (Holy Quran and Sunnath)
• Realising the injustice and short-coming of the past – Afghanistan
• Realising the contribution of the martyrs of freedom struggle/war – Afghanistan,
Bangladesh, Japan
• Establishing Ideals – India, USA
• Observing faith on the United Nations (UDHR) - Afghanistan
• Contempt of human rights – French Constitution, Bangladesh

Object and Scope

• Outline the object and policy that the constitution seeks to establish and promote
• It is an ideal set up for practices and observance – sets out basic features of the new
state and its basic socio political objective
• This ideal is carried out in detail by the various provisions of the constitution –
Constitution is an amplification and concretisation of concepts set out in Preamble
• Principles set out for an expanding future and is inclined to endure for ages
• Explain and elucidate ambiguous provision
• Must be considered even in the absence of ambiguity – cannot be brushed aside as a
surplusage
• Not a source of substantive power nor a limitation

Purposes

● The high purpose and spirit of the Preamble namely that it assured to the citizens the
dignity of the individual and the cherished human values as a means to the full
evolution and expression of his personality should be borne in mind.
● Strongly relied on the Preamble in reaching the conclusion that power of amendment
conferred by Art 368 was limited and not did not enable Parliament to alter the basic
structure of the constitution

Is the Preamble a part of the Constitution?

• The fact that Preamble was separately passed after the enacting provisions raised the
question whether Preamble was a part of the Constitution.

• Re Berubari Union Case (1960)

Not to be used as an implied limitation upon the power of a Sovereign Legislature’s
amending power under Art 368, cannot be a check on the power.
Only purpose is to show the general purposes of creating constitution – cannot be
regarded as an independent source of substantive power.
In this connection, it was held not to be a part of the Constitution
Could be of assistance only in case of ambiguity, it is not a substantive part.
it cannot control the unambiguous language of the articles of the constitution.

• I C Golaknath v State of Punjab (1967)

Followed the berubari opinion
Said that not the preamble, but Part III will keep a check on the power of the
parliament.
Fundamental Rights therefore cannot be amended.

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 To save the democracy from autocratic actions of the parliament and to keep a check.

• Keshavanada Bharati v State of Kerala (1973)

Overrules Golaknath
Preamble is as much a part of the Constitution as any other provision.
There is no such part in the constitution which cannot be amended.
However, the basic structure cannot be changed.
Entire opinion on scope and use does not seem to have been overruled.

VI. ARTICLE 13

13. Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order,
bye law, rule, regulation, notification, custom or usages having in the territory of India the
force of law; laws in force includes laws passed or made by Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368 Right of Equality

DOCTRINE OF ECLIPSE
The prospective nature of Article 13(1) gives rise to the Doctrine of Eclipse.
It states that if any law becomes contradictory to the fundamental rights, then it does not
permanently die but becomes inactive. It is over-shadowed by the fundamental rights. As
soon as the fundamental right is omitted from the constitution, the inactive law is revived.
Whenever the court strikes down a law, it becomes unenforceable. Hence, an ‘eclipse’ is said
to be cast on it. The law continues to exist but it becomes invalid.
Also, it does exist for the rights and liabilities, and remains operative even after the
commencement of the constitution as against the non- citizens. They remain dormant for the
citizens.
It applies only to pre- constitutional laws and not to post- constitutional laws. The reason for
the same being the pre- constitutional law was valid when enacted and therefore was not
void-ab-initio, but voidity supervened when the Constitution came into force.
Therefore, the law does not die but is eclipsed by the Fundamental Rights. It is merely
eclipsed for time being.

13
This was first applied by the court in Bhikaji v. State of Madhya Pradesh, Motor Vehicle
Act, 1947 was amended which violated article 19(1)(g). but the amendment was passed
before the constitution commenced. The petitioners contended that the law having become
void for unconstitutionality was dead and could not be vitalised by a subsequent amendment.
The court said that the word void does not mean void in toto, but only to the extent of
inconsistency with Part III. The effect of the amendment was to remove the effect of the
shadow and make the impugned act free from all blemishes. It is merely eclipsed for the time
being by the FR, as soon as it is removed, the law begins to operate. Article 13(1) cannot be
constructed as obliterated the entire functioning of the inconsistent law. It still enforces rights
and obligations on the non- citizens.
In Behram Khurshed Peshikaka v. State of Bombay, held that a part of the section of
existing law which is unconstitutional is not law and is null and void. It is notionally
obliterated from the statue book for the purposes of determining the rights and obligations of
citizens. However, the same remains good law when the question arises for determining the
rights and obligations incurred before 26th January 1950. It still remains in the statue book
even after being void.
In Deep Chand v. State of Uttar Pradesh, it was held that this doctrine cannot be applied to
post constitutional laws infringing FR’s as they are void-ab-initio.

DOCTRINE OF SEVERABILTY
According to Article 13, a law is void only to the extent of “inconsistency or contravention”
with Part III. It means that the act may not be void as a whole; only a part of it may be void
and that has to be separated from the rest which is valid. Then the rest may continue to stand
to remain operative. The act will be read as if the invalid portion was not there.
The intention of the legislature is the determining factor in determining whether the valid
parts of a statute are separable from the invalid parts. The test is whether the legislature
would have enacted the valid parts had it known the rest of the statute is invalid.
However, in RMDC v. Union of India, the Supreme Court said that if it is so intricately
mixed that it is not possible to separate the valid and invalid portions, then the whole of the
statue will have to go. They should be so distinct and separate that after striking out what is
invalid is, what survives can stand independent when implemented.
In A.K. Gopalan v. State of Madras, Section 14 of the Preventive Detention Act was
declared ultra vires. The court said the impugned section minus this act can remain
unaffected. The omission of this section would not change the nature or object or the
structure of the legislation, and is therefore severable.
In Romesh Thappar v. State of Madras, Section-9 of the Madras Maintenance and Public
Order Act, 1949 stated that the governor can ban distribution of newspapers for maintenance
of public order. Romesh Thappar, editor of Crossroads, which was banned, contended
violation of Article-19(1)(a). At that time, ‘public order’ was not mentioned under Article-
19(2), only ‘state security’ was. Public order fell under state security. The question arose if
they could be severed, and the court held that they public order cannot be severed from ublic
safety.

14
In State of Bombay v. F.N. Balsara, it was held that the provisions of the Bombay
Prohibition Act, 1949 which were declared as void did not affect the validity of the entire Act
and therefore there was no necessity for declaring the entire statute as invalid

DOCTRINE OF WAIVER
Fundament rights are defined as basic human freedoms which every Indian citizen has a right
to enjoy, as they are essential to the well being of a person.
This doctrine denotes the manifestation of its role as the protector of Fundamental Rights.
The Doctrine of Waiver is based on the premise that a person is the best judge of his rights
and has the liberty to waive them. It explains that a person entitled to a right is free to waive
it off. It is a voluntary relinquishment of right and once a person has waived it off, it cannot
be reclaimed.
The question arises whether is Doctrine of Waiver is applicable to Fundamental Rights also?
In Behram Khurshid v. State of Bombay, CJ Mahajan rejected this doctrine as according to
him, the rights declared in Part III of the Constitution are a necessary consequence of the
declaration in the Preamble, “people of India solemnly resolve to constitute India into a
sovereign, democratic republic and to secure citizens justice: economic, social and political,
liberty…” Thus, it is against the constitutional policy.
In Ogla Tellis v. Bombay Municipal Corporation, the court held that it is not open to a
citizen to waive off his fundamental rights conferred by Part III of the Constitution as these
rights are not merely for the benefit of the individual, but as a matter of public policy for the
benefit of the general public. The doctrine of waiver thus applies only to rights for individual
benefit.
In Basheshar Nath v. I.T. Commissioner, the commission under Section 5(1) had decided
that upon the concealed income, the petitioner agreed a settlement to pay in monthly
instalments. The supreme court declared the Section ultra vires Article 14. The petitioner
challenged the settlement between him and the commission but the plea of waiver was raised
against him.
● The Supreme Court held that A-14 cannot be waived as it is an admonition to the state
as a matter of public policy. No person can therefore the state of the obligation
imposed upon it.
● None of the Fundamental Rights can be waived off. They are mandatory. There can
be no estoppel against the constitution which is the paramount of the land.
● The constitution makes no distinction between rights for individual benefit and those
implemented on grounds of public policy.
PROSPECTIVE OVERRULING
Traditionally, Rule of Retrospectivity is the norm. the principle of prospective overruling
found its application first in Golaknath v. State of Punjab.
Overruling means to overturn a precedent deciding that it should no longer be controlling a
law, and prospective means operating only in future. Therefore, combined together it means
that the decision would not have a binding effect to the parties of the original suit, yet
changing the law, will be applicable only in future. The implication of the invocation of this

15
doctrine is that the decision of such a case would not have retrospective operation, but would
operate only in future.
The Supreme Court lays down parameters within which a law laid down in a case which
overrules a previous judgement has to operate. The whole purpose is to avoid reopening of a
settled case. It may also specify a date when the declaration shall come to effect from. There
are 3 rules to be followed –
1. The device is to be used only in constitutional matters.
2. The device can only be used by the Supreme Court.
3. The nature of prospectively to be applied in each case is left to the discretion of the
court.

AMENDING POWER OF THE PARLIAMENT AND A-13 / Whether the expression

law includes constitutional amendment or not? – basic structure
The Theory of basic structure very effectively proved to be a limitation on the amending
power of the Parliament. The Basic Structure doctrine applies only to the Constitutionality of
amendments and not to ordinary Acts of Parliament, which must conform to the entirety of
the Constitution and not just its basic structure.
The elementary question in controversy has been whether Fundamental Rights are amendable
so as to take away the basic rights guaranteed by the Constitution. Another controversy deals
with the extent, scope and authority of Parliament to amend Constitution. The answer has
been given by the Supreme Court from time to time, sometimes under immense pressure and
can be understood in the light of the following cases:
In INDIRA GANDHI V. RA NARAIN
Raj Narain filed a petition before High Court of Allahabad contending that Indira Gandhi has
performed Election malpractices. On 12 June1975, The High Court of Allahabad speaking
under Justice Jagmohanlal Sinha found Indira Gandhi guilty of misusing government
machinery u/s-123(7) of Representative of Peoples Act, 1951. Therefore, the court held that
Indira Gandhi cannot continue as the Prime Minister of the nation, further, she cannot contest
elections for another six years.
A state of emergency was declared by the then President citing internal disturbance but the
real reason that led to the emergency was the High court judgment in Raj Narain v. Uttar
Pradesh.
The Supreme Court while granting conditional stay ordered the parties to appear before it on
11 August 1975 however on 10 August 1975 the President of emergency – stricken India
passed 39th Constitutional (Amendment) Act, 1971 by inserting Article 329-A to altogether
bar the jurisdiction of Supreme Court from entertaining the matter. This amendment made
the elections of President, Prime Minister, Vice-President and the Speaker of Lok Sabha
unjustifiable in the courts of law.
This 39th Amendment was challenged in the Supreme Court in Indira Gandhi v. Raj Narain.
It must be kept in the mind that this was the first case when the landmark decision
of Kesavananda Bharti was applied by the apex court. The apex court upheld the contention
of the petitioner and declared the impugned Clause 4 of Article 329A unconstitutional.

16
It was violative of the principle of Separation of Power as it intently transferred a pure
judicial function into the hands of legislature. Further, he was certain that the said amendment
is also violative of Article 14 as it creates an unequal position for specific members against
others. Another basic feature violated by the said amendment i.e. rule of law and free & fair
elections.
Also, Volative of the principles of natural justice i.e. Audi Altrem Partem since it denies the
right of fair hearing who is challenging the election of the members mentioned under the
amendment.
In Shankari Prasad V. Union of India, the validity of the First Amendment Act to the
Constitution was challenged on the ground that it purported to abridge the fundamental
Rights under Part 3 of the Constitution of India. Supreme Court held that the power to amend
the Constitution, including Fundamental Rights is contained in Article 368. An amendment is
not a law within the meaning of Article 13(2). Article 13(2) states that – "The State shall not
make any law which takes away or abridges the rights conferred by this part and any law
made in contravention to this clause shall, to the extent of the contravention, be void". An
amendment is valid even if it abridges any fundamental Right.
In Golaknath v. State of Punjab, the Supreme Court prospectively overruled its decision in
Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend part
III of the Constitution so as to abridge or take away any of the Fundamental Rights. It also
added that Article 368 merely lays down the procedure for the purpose of amendment.
Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of
India and if it violates any fundamental right, it may be declared void.

24th Amendment Act, 1971:

Golaknath’s case created a lot of difficulties and as a result the Parliament enacted 24th
Amendment act, 1971 whereby it changed the old heading of Article 368– "Procedure for
Amendment of the Constitution" to a new heading – "Power of the Parliament to Amend the
Constitution and Procedure Therefor."
To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and extended the
scope of power of Parliament to amend the Constitution by adding the words "amend by way
of addition or variation or repeal any provision in accordance with the provisions laid down
in this Article." Further, the amendment provided that "Nothing in Article 13 shall apply to
any amendment made under this article" by way of an addition of Clause 3 to Article 368.
In Kesavananda Bharti V. State of Kerela, one of the various questions raised in this case
was the extent of the power of the Parliament to amend under Article 368. The Supreme
Court overruled its decision in Golaknaths case and held that even before the 24th
Amendment, Article 368 contained power as well as procedure for amendment. The majority
held that there are inherent limitations on the amending power of the Parliament and Article
368 does not confer power so as to destroy the Basic Structure of the Constitution.
42nd Amendment Act, 1976 and Article 368:
42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added
clause 4 and clause 5 to Article 368. Article 368(4) provided that no Constitutional
Amendment shall be called in any court on any ground. Article 368(5) provided that there
shall be no limitation whatsoever on the constituent power of the Parliament.

17
Minerva Mills V. Union of India, the Supreme Court struck down clauses (4) and (5) of
Article 368 inserted by the 42nd amendment. Justification for the deletion of the said clauses
was based on the destruction of Basic Structure. The Court was satisfied that 368 (4) and (5)
clearly destroyed the Basic Structure as it gave the Parliament absolute power to amend
Constitution. Limitation on the amending power of the Parliament is a part of the Basic
Structure explained in Keshavananda’s case.
To conclude, in essence Parliament's power to amend the Constitution is not absolute and the
Supreme Court is the final arbiter over and interpreter of all constitutional amendments.

KESHAVA MADHAVA MENON V. STATE OF BOMBAY- ARTICLE 13(1)

In Keshava Madhava Menon v. State of Bombay, it was help that the word ‘void’ in Article
13(1) would not have the effect of wiping out pre- constitutional laws from the statue book.
They would continue to be operative so far as the non- citizens are concerned,
notwithstanding the fact that they are inconsistent with the fundamental rights of citizens and
therefore become void under Article 13(1).
Here, the court had answered 2 questions –
a) Related to Fundamental Rights – Every statue is prima facie prospective unless it is
expressly made retrospective. The law will be declared void on prospective basis to
the extent it violates the Fundamental Rights. Not void-ab-initio but from the date of
commencement of constitution. Article 13(1) would not apply if the offence has been
committed before the commencement of the Constitution, as it has no retrospective
application.
b) Related to Citizens/ Non-Citizens – If a provision is existent for Citizens and Non-
Citizens as well, the bar created by pre- constitutional law is continued for non-
citizens.
DEEP CHAND V. STATE OF UTTAR PRADESH
In Deep Chand v. State of Uttar Pradesh, it was held that there is a clear distinction
between the two clauses of Article 13. Under clause (1), a pre- constitutional law subsists
except to the extent of its inconsistency with the provisions of part III. Under clause (2), no
post constitutional law can be made contravening the provisions of part III. Any law, to that
extent though made, is void-ab-initio/ nullity from inception.
Therefore, doctrine of eclipse does not apply to post constitutional laws as they are void-ab-
initio.
The act when passed was unconstitutional and is therefore a still-born law and cannot be
vitalised with a subsequent amendment, but must be re-enacted.
AMBIKA MILLS V. STATE OF GUJARAT
In Ambika Mills v. State of Gujarat, it was held that pre-existing laws are applicable to the
non-citizens though they are held as void for the citizens if violative of the Fundamental
Rights. When a post- constitutional law violates a fundamental right, which is available only
to the citizen, it would remain valid in relation to non- citizens. Laws inconsistent are
notionally obliterated.

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PERSONAL LAWS AND FR
The quest for gender equality and attaining socioeconomic equilibrium through the realm of
personal laws has historically been the prime cause of ambient conflicts between the
constituents of the most progressive and the regressive orders of society. Recently, we have
experienced a lot of hue and cry relating to Triple Talaq and the Sabarimala episode although
the matters have been well-settled by the Supreme Court.
It can easily be perceived that personal laws may not always be contra bonos mores or against
the good principles, but they inherently contain gender biases and unreasonable practices,
since they are born out of the socio-economic conditions under which the respective religions
are born. And interestingly, it has always been about the convenience of the dominant group
which has dictated the terms of the personal laws.
Invincibility of personal laws in the face of constitutional scrutiny is time tested in the Indian
legal history. The Hindu Law Committee’s report of 1947 which culminated into ‘Hindu
Code Bill’ of 1948 was undefeated in the Constituent Assembly, and this led to resignation of
Dr Ambedkar as the first Law Minister of India in 1951. Any expectation of ‘personal laws’
being in conformity with the highest constitutional standards is marred by tussle between
Article-25 of the Constitution, i.e., Right to practice religion of one’s choice and Article-44
which prescribes Uniform Civil Code or ‘One nation, one law’ (for personal laws).
The question, “whether ‘personal law’ can be included in the expression ‘laws in force’ used
in Article 13(1) of the Constitution, and the extent to which personal laws are subject to
fundamental rights,” first came up in The State of Bombay vs Narasu Appa Mali. This is
considered as the turning point in the constitutional history, where personal laws were made
sort of invincible, as the Bombay High Court held that “personal law” is not included in the
expression “laws in force” used in Article 13(1) of the Constitution, which made personal
laws immune from judicial review.
State of Bombay v. Narasu Appa Mali
The norm of polygamy was prohibited by the Prohibition of Bigamous Marriage Act, 1946. It
introduced monogamy among Hindus. This provision, meant only for Hindus was against the
idea of equality.
The court held that that personal laws lie outside the ambit of part III of the constitution and
cannot be tested.
On the following grounds, the court held that personal law is not law for the purposes of
Article 13:
1. The words custom or usage in Article 13(3)(a)10 cannot subsume personal laws. Custom
or usages are distinct from personal law and many a time, exceptions to personal laws. This is
further supported by the fact that Entry 5 in List III expressly mentions the phrase personal
law which implies first, that the omission in Article 13(3)(a) was conscious and secondly, that
the intention of the Framers was to leave it to the legislature to reform personal laws and not
subject them to scrutiny by the judiciary.
2. Section 113 of the Government of India Act, 1915, one of the models that were before the
Constituent Assembly in the drafting of the present Constitution used both the phrases
custom and usage and personal law separately. The latter phrase was however, omitted in
later drafts.

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 3. If personal laws are open to scrutiny under Article 13, both Article 17 and Article 25(2)(b)
would be rendered redundant. This is because the evils that these sections aim to curb would
anyway be remediable as a violation of fundamental rights.
4. Article 44 is expressly recognition of our Constitution acquiescence to the existence of
separate and hence discriminating personal laws.
The reasoning of the Court forms a sound basis to immunise traditional personal law from
scrutiny under Article 13. Holding some features of the traditional law of one particular
religion invalid might render the whole scheme unworkable, thereby leaving a considerable
section of the population lawless. Since most traditional principles have their basis in the
respective religions and since they are closely connected to the religion, communities might
feel disturbed at the prospect of courts striking down the rules of their religion as
unconstitutional and invalid.
Also, personal laws are not exclusively mentioned in Article 13, but they do have a mention
in the 7th Schedule. This means the the constitution makes allowed the parliament to make
laws on the subject but away the jurisdiction from the courts.
The judicial approach on the question of whether personal law is law for the purpose of
Article 13, according to many scholars has been haphazard and inconsistent:
In T. Sareetha v. T Venkata Subbariah, Section-9 of the Hindu Marriage Act was
challenged. If one spouse left the house without reasonable grounds, the other can ask the
court for Restitution of Conjugal Rights. The court then asks the spouse who left to resume
rehabilitation. It was challenged that this is against the Right to Privacy and Right to Religion
of Choice. The Section was struck down by the Andhra Pradesh High Court as
unconstitutional.
But again, in Harvendar Kaur v. Harmendar Singh Chaudhary, the Delhi HC upheld the
provision. It was also reiterated in Saroj Rani v. Sudarshan Kumar.
In Ahmedabad Women Action Group v. Union of India, the claim of the petitioner was
inter alia that Muslim personal law which allows for polygamy and permits unilateral divorce
through talaq is void as being violative of Articles 14 and 15. The Court rejecting the claim
held that these were matters for the legislature to determine and that the court could not look
into them. In all these cases, the claims of the petitioners were rejected.
1. In some cases, the Court held that personal law is not law and hence that no question
of a constitutional challenge arises in the first place.
2. Also, it has been held that the discrimination is not solely on the basis of religion and
that they are often based upon the differing historical backgrounds of the communities
in question and also on their differing outlooks, for instance, in the case of marriage
(while a Hindu marriage is a sacrament, a Muslim marriage is a civil contract).
3. It has also been suggested that while a uniform law is certainly desirable, the same
cannot be brought into force at one go and hence the legislature has to be given the
option of implementing the same in stages.
4. Amidst such status quo in approach of courts, in not subjecting personal laws to
judicial review (under Art-13), the apex court in Saha Bano Begum, has ruled in
favour of providing maintenance to Muslim women under Section 125 CrPc, despite
being against the tenets of Muslim Law.Another major breakthrough from the reign of
the seemingly invincible personal laws, was in the shape of the judgment in Shayara

20
 Bano Case in which the misogynistic practice of triple talaq was declared
unconstitutional.
5. Further, the judgment in Indian Young Lawyer’s Association vs State of Kerala or
the Sabarimala case has come out as a torch-bearer for all times to come, against the
discrimination faced by women for, ‘who they are’ and for, ‘what nature has
bestowed upon them’.
6. Thus, we see a shift from the non-interventionist approach of the court to the
scrutinising approach.

VII. ARTICLE 14

Article 14 is the embodiment of equality which has been provided in the Preamble. Another
important point about this Article is that it not only imposes a duty on the State to abstain
from discriminating people but it also puts a positive duty to take such action by which the
inequalities can be bridged between the people
The underlying principle of art.14 is to treat all persons similarly circumstanced like, both in
privileges conferred and liabilities imposed. Classification must not be arbitrary but must be
rational, that is to say it must not only be based on some qualities or characteristics which are
found in all persons grouped together and not in others who are left out, but those qualities
and characteristics must have reasonable relation to object of legislation.
Two concepts:
1. Equality before law:
● The expression ‘equality before law’ is a negative concept and the State has a duty to
abstain from doing any act which is discriminatory in nature.
● Under it, there is an absence of any special privilege to any particular group of people
and regardless of the rank of a person, he is subject to the same provisions of law.
Thus, no person is above the law of the land/lex loci and all have to abide by it.
2. Equal protection of law:
The term ‘equal protection of law’ is based on the 14th Amendment of the US Constitution.
It directs that equal protection of the law should be provided to all the people of India for the
enjoyment of their rights without any privileges or favouritism towards any person. This is a
positive concept because it implies a duty on the State to take actions for ensuring this right
to all the citizens.
In the case of State of West Bengal v. Anwar Ali Sarkar, the court held that the term ‘equal
protection of law’ is a natural consequence of the term ‘equality before law’ and thus it is
very difficult to imagine a situation in which there has been a violation of equal protection of
law is not a violation of equality before law. So, while they have different meanings, both the
terms are interrelated.
An exception to Equality before Law
There is some exception to the rule of equality which has been provided under the Indian
Constitution. Under Articles 105 and 194, the Members of the Parliament and the State
Legislatures respectively are not held liable for anything which they say within the House.

21
Under Article 359 when there is a proclamation of Emergency, the operation of Fundamental
Rights including Article 14 can be suspended and if any violation of this right is done during
such proclamation, it cannot be challenged in the Courts after the proclamation ends.
Under Article 361 the President and the Governors are not liable to any court for any act
which is done by them in exercising their power and duties of the office.
Article 14 and Reasonable Classification
The test of reasonable classification was developed in Anwar ali Sarkar v. state of west
bengal.
Article 14 has provided the provision for equality of all people before the law but every
person is not the same and therefore it is not practically possible to have a universal
application of equality. Thus, the laws cannot be of a general character and some
classification is permitted under Article 14.
Thus, the legislature has been allowed to identify and classify different people in groups
because it has been accepted that treating the unequal in the same manner is likely to cause
more problems instead of preventing them. So, for the society to progress, classification is
important.
This classification cannot be done arbitrarily because in such case, there will be no
justification, so even though Article 14 allows for classification such classification should not
confer special privileges to any group arbitrarily and such a classification has to be done on a
rational basis. For e.g. the Legislature cannot pass a law which favours a particular caste of
people without any rational basis for it and if such a law is passed, it is bound to be held
unconstitutional by the Judiciary.
Such arbitrary classification by the legislature is known as class legislation ad it is forbidden
by the Constitution but it allows for reasonable classification in which the legislation is
passed on a rational basis for the purpose of achieving some specific objectives.
Test of Reasonable Classification
he classification should not be arbitrary, evasive and artificial in nature. This is the first test
for checking the reasonability of a classification. This test is used to check whether the
classification is based on some substantial distinction or not. The classification should be
based on an intelligible differentia (which can be understood) and should not be some made
up the distinction. For e.g. classification of people based on their income is a reasonable
classification for the purpose of Article 14.
● The differentia which has been applied in the classification should have some real and
important connection with the objective which is sought to be achieved by the
classification. For e.g., if the legislature has classified the people on the basis of their
income, one of the objectives can be to provide some benefits to the people with low
incomes such as exemption from tax.
● Here the differentia for classification is connected with the objective of providing
some benefits to the people earning low income and therefore, this classification is
valid.

The SC felt that the approach towards a.14 was very restricted and this changed after 1970
when the SC brought in picture the New Doctrine.(After 1970 ; EP Royappa case)

22
Equality before law which earlier included just rule of law no was to include rule of law
along with principles of Natural Justice.
STATE OF BOMBAY V. FN BALSARA:
It gave the old doctrine which consisted of the two test of intelligible differentia and rational
nexus.
It missed the aspect of reasonableness and still had scope for arbitrariness.
This case is significant in the field of constitution law because it cleared certain grey areas
regarding the doctrine of pith and substance. The doctrine of pith and substance ‟is applied
when the legislative competence of a legislature with regard to a particular enactment is
challenged with reference to the entries in different legislative lists, because a law dealing
with a subject in one list within the competence of the legislature concerned is also touching
on a subject in another list not within the competence of that legislature.”
DS NAKARA CASE
The govt. issued an office memorandum announcing liberalized pension scheme for retired
govt. servants but made it applicable to those who retired after 31march1979. The SC held
that fixing of the cut date to be discriminatory as violatiing a.1 the division of pensioner into
two classes on the bais of the date of retirement was not based on any rational principle b’coz
a difference of two day in the matter of retirement could not have a traumatic effect on the
pensioner. Such a classification held to be arbitrary and unprincipled as there was no
acceptable or persuasive reason in its favour . the said classification has no rational nexus
with the object sought to be achieved.
EP ROYAPPA CASE:
The facts of the EP Royappa case were as follows : The petitioner was being kept out
of the office of the chief secretory of the state where he had been appointed in the
acting capacity and was later supposed to be appointed in permanent capacity
However, the government insisted on appointing him to another position similar to
that of Chief Secretory. This went on for some time and finally, the Government
appointed some other person, junior to the petitioner, as the permanent Chief
Secretory.
This prompted Royappa to reach the court and he alleged that there was an abuse of
power by the government for mala fide reasons.
Bhagwati, J. stated-
"Equality and arbitrariness are sworn enemies. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and constitutional law and is therefore
violative of Article 14. “
It gave the new doctrine which consisted of the two test of intelligible differentia and rational
nexus along with the aspect of reasonableness.
MANEKA GANDHI:
The Supreme Court in Satwant Singh held that right to travel abroad is well within the ambit
of Article 21. Therefore, to combat the above laid down law the Parliament enacted Passports
Act 1967. Passport Act, 1967 empowers the authorities to impound the passport of certain

23
individual if such action is necessary in the interest of sovereignty and integrity of India, the
security of India, friendly relations of India with any foreign country, or general public. The
reasons of such impoundment are also to be communicated the affected party however in the
interests of the general public these reasons can be withheld.
In the immediate case the authorities issued a notice of impoundment of the passport of
Petitioner who was a known journalist citing reasons as in the interest of general public. As
soon as the petitioner got the notice of such impound she reverted back to the authorities
asking for specific detailed reasons as to why her passport shall be impounded. The
authorities however, answered that the reasons are not to be specified in the interest of the
general public. Therefore, the petitioner approached Supreme Court u/a 32 for the
enforcement of Fundamental Right mentioned u/a 14 against the arbitrary action of the
authorities. The petition was further amended and enforcement of Article 21 i.e. Protection of
Life & Personal Liberty, Article 19(1)(a) i.e. Right to freedom of speech & Article 19(1)(g)
i.e. Right to freedom of Movement.
This case directly brought into question the legality and validity of A.K. Gopalan v. State of
Madras. In that case it was argued by the petitioner that whether the validity of any law shall
be decided by the fact that it is a procedure established by law or the law along with being
established by law shall also conform to principles of natural justice. The main debate was
around the scope of the word “procedure established by law” on the point that can such
procedure be arbitrary or unreasonable or should it always be just, reasonable and fair. Justice
Fazal Ali dissented with the majority by holding that the right to life u/a 21 does constitute
Principles of Natural Justice and the courts should check that any procedure established by
law do not suffer with the problem of unreasonableness & arbitrariness. The spirit of Justice
Fazal Ali’s argument was that the procedure should be just, fair and reasonable.
The court in Maneka Gandhi adopted the dissenting view of Justice Fazal Ali in A.K.
Gopalan v. State of Madras. Therefore, the court held that the while the procedure
established by law should be reasonable, just and fair it shall be free from any
unreasonableness and arbitrariness.
The benefits that accrued to Indian citizens can be very well understood by the aftermath
of Maneka Gandhi when courts begin to insert every possible socio-economic and cultural
right in the scope of Article 21. The court in a catena of cases applying the ratio of this
judgment have held Right to clean Air, Right to Clean Water, Right to freedom from Noise
Pollution, Speedy Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical
Care, Right to Clean Environment etc., as a part of Right to Life & Personal liberty
mentioned u/a 21.
The sole purpose of a.14 is to remove arbitrariness from the state action and ensure fairness
and equality.

Additional cases-
Geeta Hariharan v. Reserve Bank of India
Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA), provision stated
that the father is the natural guardian of a Hindu minor child and the mother is the guardian
“after” the father. Ms. Hariharan challenged the constitutional validity of this provision in the
Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14
and 15 of the Indian Constitution.

24
The Supreme Court, relying on gender equality principles enshrined in the Indian
Constitution, widely interpreted the word “after” in the provision and upheld the
constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother
are natural guardians of a minor Hindu child, and the mother cannot be said to be natural
guardian only after the death of the father as that would not only be discriminatory but also
against the welfare of the child, which is legislative intent of HMGA, 1956.
INDIAN COUNCIL OF LEGAL AID AND ADVICE V. BCI
The Bar Council of India added a rule in Bar Council Rules which said-
"A person who has completed the age of 45 years on the date on which he submits his
application for his enrolment as an advocate to the State Bar Council shall not be enrolled as
an advocate."
All the State Bar Councils in the country were duly informed about the insertion of the said
rule. The legality and validity of the said rule is questioned in this batch of petitions as
inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution.
The rationale for the rule, is to maintain the dignity and purity of the profession by keeping
out those who retire from various Government, quasi-Government and other institutions since
they on being enrolled as advocates use their past contacts to canvass for cases and thereby
bring the profession into disrepute and also pollute the minds of young fresh entrants to the
profession. In the first place, there is no reliable statistical or other material placed on record
in support of the inference that ex-government or quasi-government servants or the like
indulge in undesirable activity of the type mentioned after entering the profession. Secondly,
the rule does not debar only such persons from entry into the profession but those who have
completed 45 years of age on the date of seeking enrolment. Thirdly, those who were
enrolled as advocates while they were young and had later taken up some job in any
Government or quasi-Government or similar institutions and had kept the sanad in abeyance
are not debarred from reviving their sanads even after they have completed 45 years of age.
The Supreme Court has observed that a rule debarring a person, who has completed 45 years
of age from enrolment as an Advocate, is beyond the rule making power of Bar Council of
India and ultra vires the Advocates Act, 1961.

AIR INDIA V. NARGEEZ MEERZA

The questions that the case will contest upon are:
(i) Whether Regulation 46 & 47 are violative of Articles 14, 15, 16 of the Constitution of
India and thus ultra vires in whole or part?
(ii) Whether discretionary powers as enumerated under Regulation 47 can be deemed as
being excessive delegation?
Air India, a state-owned company, required female flight attendants to retire under three
circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first
pregnancy. The Court struck the rules down, holding that these requirements constituted
official arbitrariness and hostile discrimination.
Furthermore, Regulation 47 experienced a similar fate, for it was found that the said
regulation suffered from excessive delegation of powers without any reasonable guidelines to
police the same.

25
Article 14 (the classification test): The Court began by observing that “Art. 14 forbids hostile
discrimination but not reasonable classification. Thus, where persons belonging to a
particular class in view of their special attributes, qualities, mode of recruitment and the like,
are differently treated in public interest to advance and boost members belonging to
backward classes, such a classification would not amount to discrimination.” It then noted
that Air Flight Pursers and Air Hostesses formed different classes (in service law
terminology, separate “cadres”): they had different recruitment conditions and different
promotional avenues. Consequently, the “inescapable conclusion that follows is that … there
are two separate and different classes having different conditions of service and different
incidents, [and] the question of discrimination does not arise.”
But there is something extremely puzzling about this reasoning. Admittedly, in service law,
there are different cadres within the same department, with their own separate recruitment
rules, promotional avenues and service conditions. This, in itself, does not raise any Article
14 issue. These cadres are constituted in order that persons doing one kind of work are
streamlined into a single category when it comes to the rules governing them. In Nargesh
Mirza, however, the constitution of the cadre was itself on the basis of sex. It effectively
means that the guarantees under Articles 15 and 16 are useless; in order to get around them,
all I need to do is to divide my workforce along sex, caste or religious lines, give them
different names, treat one class in a manner far inferior to the other, and then justify it by
invoking that very separateness of treatment to argue that the two form separate cadres. To
put it another way, the Court used the fact that women were being treated less favourably
than men to hold that women and men formed separate classes, and that therefore inferior
treatment was justified. The vicious circularity of his reasoning is exhibited by the fact that in
order to prove that AFPs and AHs formed different cadres, the Court observed that one of the
recruitment conditions for AHs was that they must be unmarried, whereas there was no such
condition for the AFPs. As we have seen before, imposing marriage as a disqualification
upon women but not upon men is itself discriminatory; here, the Court uses that as proof that
AFPs and AHs form different classes, for different treatment.
And yet, despite this finding, the Court nonetheless was able to hold that there was no Article
14 violation.
RK GARG V. UOI
This case is popularly known as Bearer Bond's Case.
The constitutional validity of Special Bearer Bonds (Immunities and exemption) Ordinance
1981 and the Act which replaced it was challenged on rational basis & violative to Art.14.
Sec.3 of the Act granted certain immunities to a person who had invested his unaccountable
money in the Special Bearer Bond. They were not required to disclose the nature and source
of acquisition of the SBBs. It prohibited any enquiry or investigation against such person.
The Court by 4-1 majority upheld the validity of ordinance and the ground for classification
made by the Act bet persons having black money and persons not having black money was
based on intelligible differentia having rational relation with the object of the Act.
Changing perspective
Earlier, equality had a restricted approach and the meaning and scope of equality has changed
today. Different issues like entry of women into a temple, instant triple talaq, etc. are being
judged on the basis of Article 14 of the Constitution. The courts are now challenging the
various fundamental practises.

26
In 1985, Sowmithri Vishnu v. Union of India, the Supreme Court held that men were not
allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of
marriage. For the same reason, women could not be allowed to prosecute their husbands. The
judgment retained the offence of adultery as a crime committed by a man against another
man.
In Joseph Shine v. Union of India, section 497 of the IPC was challenged. The top court had
earlier observed that if the husband gives consent for sexual intercourse between his wife and
another man, then it nullifies the offence of adultery and turns the woman into a commodity,
which goes against the principle of gender justice and the constitutional mandate of Right to
Equality.
First, Section 497 gives the right to the husband to bring an action upon the adulterer but does
not give this right to the wife to prosecute the woman with whom her husband has committed
adultery. Second, the section does not give the wife whose husband has committed adultery
to prosecute him and third, it doesn’t cover cases in which the husband has sexual relations
with an unmarried woman.
It was in 1991 that the Kerala High Court banned the entry of women from the age of 10 to
50 from entering the shrine.
In 2016, Indian Young Lawyers Association filed a public interest litigation petition before
the Supreme Court challenging the Sabrimala Temple's custom of excluding women. The
Association argued that the custom violates the rights to equality under Article 14.
The exclusionary practice is manifestly arbitrary as it is solely based on physiological factors
and, therefore, neither serves any valid object nor satisfies the test of reasonable classification
under Article 14 of the Constitution. As per Article 14, any law being discriminatory in
nature has to have the existence of an intelligible differentia and the same must bear a rational
nexus with the object sought to be achieved. Though the classification based on menstruation
may be intelligible, yet the object sought to be achieved being constitutionally invalid. Thus,
here the right to equality of women.
In Shayara Bano vs Union of India, the said practice of instant triple talaq is in violation of
the Fundamental Right of equality since it is against the rights of women as they have no say
in the declaration of divorce unlike in other religions. The impugned practice is a tool by
which marital tie can be broken on whims of Husband without any attempt of reconciliation
to save it. This form of Talaq therefore, is in violation of Article 14 and liable to be struck
down by the courts.
The courts thus have adopted a wider approach towards the idea of equality, and are changing
their stances.

VIII. ARTICLE 15

Article 15 of the constitution states that no person shall be discriminated on the basis of
religion, race, caste, sex or place of birth. Every person shall have equal access to public
places like public parks, museums, wells, bathing ghats and temples etc. However, the State
may make any special provision for women and children. Special provisions may be made for
the advancements of any socially or educationally backward class or scheduled
castes or scheduled tribes.

27
Article 15 of the constitution states that no person shall be discriminated on the basis of
religion, race, caste, sex or place of birth. Every person shall have equal access to public
places like public parks, museums, wells, bathing ghats and temples etc.
However, the State may make any special provision for women and children. Special
provisions may be made for the advancements of any socially or educationally backward
class or scheduled castes or scheduled tribes.
The world "discrimination" refers to make an adverse distinction with regard to or to
distinguish un-favourable from other while the term 'only' means that discrimination can be
done on the basis of other grounds.
Discrimination based on one or more of these grounds and also on other grounds or grounds
will not be affected by Article 15 (1). It means that if one or more of the specified grounds is
combined with a ground not mentioned In Article 15 (1); the laws will be outside the
prohibition contained in Article 15 (1). Article 15 (1) prohibits discrimination on the ground
of birth and not that of residence. A State can, therefore, grant concessions to its residents in
matters of fees in an educational institution.
In D.P. Joshi v. State of Madhya Bharat, a rule of medical colleges provided that all
students who are bona fide residents of Madhya Bharat, no capitation fee should be charged
but for non-resident students, capitation fee should be retained.

The validity of this rule was challenged on the ground that it contravened Articles 14 and 15
(1) of the Constitution. It was held that the rule was not open to attack as infringing Article
15 (1). The ground for exemption from payment of capitation fee is bona fide residence in the
State.

Residence and place of birth are two distinct conceptions with different connotations both in
law and fact. Article 15 (1) prohibits discrimination on the ground of place of birth but not on
the ground of residence.

In Mandal Commission case, the Supreme Court by a majority of 6-3 has held that the sub-
classification of backward classes into more backward castes and backward castes for the
purposes of Article 16(4) can be made. But as a result of sub-classification the reservation
cannot exceed more than 50%. The distinction should be on the basis of degrees of social
backwardness.

EDUCATION

In M.R. Balaji v. State of Mysore,

This case involved the following facts : Large number of professional College Candidates
filed writ petitions it the Supreme Court alleging that but for the reservation made by the
State govt. they would have been admitted students with less marks admitted. The extent of
reservation was unreasonable 68% reservation.

Issues involved: 1. What was the role of ‘caste’ in determining social backwardness

2. What were the criteria for identifying the social and educational Backwardness

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3. Whether the sub-classification of backward classes into categories valid?

4. Whether quantum of reservation (68%) excessive?

It was held that: Caste alone could not be the criterion for deciding the backwardness.
Poverty, occupation and place of habitation and such other thing have to be considered. Sub-
classification into ‘backward’ and ‘most backward’ is unconstitutional, Total reservation
could not exceed 50%

Dr. Pradeep Jain v. Union of India

Reservation of seats in medical colleges for M.B.B.S. and post-graduate medical courses on
basis of domicile or residential qualification and institutional preference-By State and
Union Territories-If valid. What should be the extent of such reservation. For admission to
M.B.B.S. and Higher Courses-Merit only consideration-Whether and when departure
can be made. Constitution of India-Art. 5-Only one domicile-Domicile in the territory of
India-To say domicile in one State or another-Not right.
So far as admissions to an education institution such as a medical college are concerned,
Art. 16(2) has no application. If, therefore, there is any residence requirement for
admission to a medical college in a State, it cannot be condemned as unconstitutional on
ground of violation of Art, 16(2). Nor can Article 15 clauses (1) and (2) be invoked for
invalidating such residence requirement because these clauses prohibit discrimination on
ground of residence and, as pointed out by this Court in D.P. Joshi v State.” The word
'domicile' is to identify the personal law by which an individual is governed in respect of
various matters such as the essential validity of a marriage, the effect of marriage on the
proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage,
illegitimacy, legitimation and adoption and testamentary and intestate succession to
moveables.”
The Supreme Court of India in its line of judgments on the issue of the legal validity of
domicile reservations has ruled in favour of the policy providing the essential basis to the
state governments to formulate them in the first place. This decision was first pronounced by
a three-judge bench in the case of Dr. Pradeep Jain v. Union of India in the year 1984
wherein the court provided two broad justifications for the domicile reservation- financial
assistance by the state and backwardness of particular region.
DR. PREETI SRIVASTAVA V. STATE OF MADHYA PRADESH
This case involved the following facts: Uttar Pradesh Government by and Ordinance gave
concession in marks to the P.G. Medical Entrance candidates belonging to SC/ST. There is a
wide disparity. This law is challenged. Issues involved: Article 14 and 15 (4) and the relevant
Rules and Ordinance. It was held that: Too much disparity in marks obtained, especially at
the postgraduate level of Medical education could not be permitted. No relaxation in marks is
permissible at the highest level in Medical institutions.

PROMOTION
General manager Southern Railway. - v. – Rangachari.
This case involved the following facts: Selection post was denied to the petitioner based on
the departmental circular reserving the seat for SC/ST. Issues involved: (A) Whether
reservation could be made for ‘selections’ And (B) whether the term ‘backward classes’

29
includes SCs and STs (C) whether retrospective operation could be given to an order of
reservation It was held that: By a majority decision the Court held that reservation could be
made both for initial appointment and promotion. The term backward class includes both SC
and ST. Retrospective operation of an Order is possible.
T. Devadasan - v. - Union of India.
This case involved the following facts: Selection post was denied based on the departmental
circular reserving the seat for SC/Steven though the upper caste candidate had secured a very
high percentage of marks. Moreover, the actual reservation exceeded the legal limit. Issues
involved:
(1) Whether the carry forward rule was unconstitutional rule was unconstitutional as violation
of Art 16(1) or Art 14?
(2) Whether the impugned provision of reservation of posts for SCs & STs offends Art. 16
(4)?
It was held that: Majority struck down carry forward rule (4:1) Reservation in a year through
carry forward formula. If it exceeds the limit of 50% then it is unconstitutional. 146 Art 16(4)
was a provision or an exception to Art 16(1) Therefore a provision cannot be interpreted to
nullify or destroy the main provision. Reservation provided under Art 16(4) not violative of
either Art 16(1) or 14. Dissenting: - Art 16(1) independent of Art 16(1). It grants unlimited
power to govt. in reservation. Two conditions are that there must be backward citizens and
they are not adequately represented in service.
N. M. Thomas - v. - State of Kerala.
This case involved the following facts: Promotion in the service denied because of the
reservation rules. Issues involved:
(a) Whether classification among the backward classes could be made for the reservations.
Under Article 16(4)

(b) Whether Article 16(4) was an exception to Article 16(1)? It was held that: (a) Court held
that a reasonable classification of employees could be made for the purpose of appointment
and promotions for the reservations made under Article 16(4). (b) The Article 16(4) was not
an exception to the Article 16(1) but an emphatic statement.
In State of Madras v. Champakam Dorairajan, the Supreme Court struck down a Madras
government order that had fixed the proportion of students from various communities,
including the Scheduled Castes, who could be admitted to the State's medical and engineering
colleges. The object was to help the backward classes. The Supreme Court held that the
Directive Principles of state policy had to conform to and run as subsidiary to the chapter on
Fundamental Rights in the Constitution, because the latter were enforceable in the courts,
whereas the Directive Principles were not.
Clause 2 of the First Amendment Bill amending Article 15, the Law Minister, Dr. B.R.
Ambedkar, said in Parliament on May 18, 1951, that he found the Supreme Court judgments
in the Champakam case and in another case, in which it had held Article 16 (4) to be
discriminatory, utterly unsatisfactory. Article 16 (4) enabled the state to make provisions for
the reservation of appointments or posts in favour of any backward class of citizens.
Jagdish Negi v. State of UP

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 Contention that as the residents of Uttarakhand region are recognised as socially and
educationally backward classes they are entitled to the benefit of Articles 15(4) and 16(4) of
the Constitution of India and that respondent No. 1-State has already taken a policy decision
that in Government services as well as in educational institutions run by the State, 27 per cent
reservation will be available to socially and educationally backward classes of citizens.
In the result this petition stands partly allowed in aforesaid terms, namely, that if the residents
of Uttarakhand and hill region are to be treated as a socially and educationally backward class
of citizens for a given year, in future, such decision should be taken by the State well in
advance and should be published at appropriate time.

VALSAMMA PAUL V. COCHIN UNIVERSITY

This is an action arising under Articles 15(4) and 16(4) of the Constitution of India. Ms.
Valsamma Paul was born into a “high caste.” She married into a “lower caste” and was hired
by Cochin University via affirmative action. She appealed to the Supreme Court of India after
a lower court declared that she did not deserve to benefit from affirmative action and should
be dismissed from her position as a professor at the university.
The Supreme Court finds against Ms. Paul because she was not born into the class of people
for whom the university position was reserved. The Court holds that for the purpose of
affirmative action, no one can be considered part of a class into which she is not born.

AMBIT OF SEBC
The two most contentious issues in the application of Article 15(4) as well as Article
16(4) have been (i) determination of backward classes and (ii) extent or quantum of
reservation. Although Article 16(4) does not qualify ‘backward class of citizens’, as does
Article 15(4), by the words ‘socially and educationally’, the problem of determining such
classes is similar under both the provisions.
From the several judicial pronouncements concerning the definition of backward classes,
several propositions emerge.
First, the backwardness envisaged by Art. 15(4) in both social and educational and not either
social or educational. This means that a class to be identified a backward should be both
socially and educationally backward.
In Balaji, the Court equated the “social and educational backwardness” to that of the
“Schedule Castes and Schedule Tribes”. The Court observed: “It was realized that in the
Indian society there were other classes of citizens who were equally, or may be somewhat
less, backward than the Scheduled Castes and Scheduled Tribes and it was thought that some
special provision ought to be made even for them.”
Secondly, poverty alone cannot be the test of backwardness in India because by and large
people are poor and, therefore, large sections of population would fall under the backward
category and thus the whole object of reservation would be frustrated.
Thirdly, backwardness should be comparable, though not exactly similar, to the scheduled
Castes and Scheduled Tribes.
Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot be the sole or
even the dominant criterion. If classification for social backwardness were to be based solely

31
on caste, then the caste system would be perpetuated in the Indian society. Also, this test
would break down in relation to those sections of society which do not recognize caste in the
conventional sense as known to the Hindu Society.
Fifthly, poverty, occupations, place of habitation, all contribute to backwardness and such
factors cannot be ignored.
Sixthly, backwardness may be defined without any reference to caste. As the Supreme Court
has emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”, and that
‘caste’ and ‘class’ are not synonymous. Therefore, exclusion of caste to ascertain
backwardness does not vitiate classification if it satisfies other tests.

In M.R. Balaji v. State of Mysore, it was held that the caste of a group of persons cannot be
the sole or even predominant factor though it may be a relevant test for ascertaining whether
a particular class is a backward class or not. Backwardness under Article 15(4) must be social
and educational, and that social backwardness is, in the ultimate analysis, the result of
poverty. One’s occupation and place of habitation could be the other relevant factors in
determining social backwardness. The Court invalidated the test of backwardness which was
based predominantly, if not solely, on caste.

In the State of U.P. V. Pradeep Tandon, in admission to medical colleges in U.P. in favour
of candidates from- (a) rural areas, (b) hill areas and (c) Uttarakhand area was challenged.
The classification was based on geographical or territorial considerations because in
governments view the candidates from these areas constituted socially and educationally
backward classes of citizens. The Court held that the accent under Article 15(4) was on
classes of citizens and the Constitution did not enable the State to bring socially and
educationally backward areas within the protection of Article 15(4). It was emphasized that
the backwardness contemplated under Article 15(4) was both social and educational and the
socially and educationally backward classes of citizens were groups other than the groups
based on castes. The traditional unchanging conditions of citizens could contribute to social
and educational backwardness. The place of habitation and its environment could be a
determining factor in judging the social and educational backwardness. The Court upheld
reservations for persons from hill and Uttarakhand areas. It was found that the absence of
means of communication, technical processes and educational facilities kept the poor and
illiterate people in the remote and sparsely populated areas backward. However, reservation
of seats for rural areas was invalidated because the division of the people on the ground that
the people in the rural areas were poor and those in the urban areas were not, was not
supported by the facts. Further, the rural population was heterogeneous and not all of them
were educationally backward.

The question was again considered in Jayasree v. State of Kerala, where the Supreme Court
was called upon to determine whether the constitutional protection could be extended to a
person who belonged to a backward community but the family’s income exceeded the
prescribed limit of certain amount per annum. The court held that in ascertaining social
backwardness of a class of citizens, it may not be irrelevant to consider the caste of group of
citizens. Castes cannot, however, be made the sole or dominant test as social backwardness
which results from poverty is likely to be aggravated by considerations of caste. This shows
the relevance of both caste and poverty in determining the backwardness of the citizens but
neither caste alone nor poverty alone can be the determining test of social backwardness. It

32
was, therefore, held that the impugned order prescribing the income limit was valid, as the
classification was based not on income but on social and educational backwardness. IT was
recognized that only those among the members of the mentioned castes, whose economic
means were below the prescribed limit were socially and educationally backward, and the
educational backwardness was reflected to a certain extent by the economic conditions of the
group.

IX. ARTICLE 16
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect or, any
employment or office under the State
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the Government
of, or any local or other authority within, a State or Union territory, any requirement as to
residence within that State or Union territory prior to such employment or appointment
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State
(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination

It is a broader genus of Article 14. Article 14 guarantees general right of equality. Article 15
and 16 are instances of the same right in favour of citizens in special circumstances.

In clause (1), what is guaranteed is the equality of opportunity, i.e. the right to be considered
for employment. This does not prevent the state from laying down the requisite qualifications
or conditions of appointment. The selection test must not be arbitrary and must have a
reasonable nexus with performance of duties in a particular office. Matters related to
employment include matters in relation to employment both prior and subsequent to the
employment, which are incidental to it and form a part of the terms and condition. Thus, the
guarantee in clause (1) will cover the (a) initial appointments, (b) Promotions, (c)
Termination of employment, (d) Matters relating to the salary, periodical increments, leave,
gratuity, pension, Age of superannuation etc.
Principle of Equal Pay for Equal Work is also covered in section 16(1). It is mentioned in
Article 39(d) as a Directive Principle of State Policy, and not as a Fundamental Right.
Because of the element of equality, and bearing in matters of public employment, it is read
into the provisions of Article 14 and 16.
The phrase ‘not adequately represented’ in clause (4) means that the power lies with the state
i.e. the parliament and the executive to decide, what categories fall within it through
legislations and administrative orders.

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COMPASIONATE EMPLOYMENT
1) Compassionate appointment is an exception to the general rule that appointment to
any public post in the service of the state has to be made on the basis of principles
which accord with Articles 14 and 16 of the Constitution.
2) The basis of the policy is that it recognises that a family of a deceased employee may
be placed in a position of financial hardship upon the untimely death of the employee
while in service.
3) It is therefore only provided if the family is in need of stability and support, and if the
person is capable/qualified enough to do it.
4) Also, there should be a post available for making such appointments.
5) The policy of compassionate appointment in public service is not a right, but a benefit
held out by the state to rescue the family of an employee, who died in harness, from
penury.
6) This classification is on reasonable grounds.

CASES

RANDHIR SINGH V. UNION OF INDIA

A writ petition filed under Article 32 of the constitution, the petitioner, a Driver – Constable
in the Delhi police Force prayed that his pay scale should at least be the same as the scale of
other drivers in the service of the Delhi Administration. The petitioner submitted that he
discharged the same duties as the rest of the Drivers, and complained that there was no reason
to discriminate against him and other Driver-Constables merely because they were described
as ‘constables. For the respondents, it was contended that the petitioners was “no more and
no less” than a constable of the Delhi Police Force, and that there was no such category of
Drivers in the Delhi Police Force.
The Court, upon consideration of the nature of service of the petitioner, held that it was clear
that the petitioner had been appointed as a driver in the Delhi Police Force. Construing
Articles 14 and 16 in the light of the preamble of the constitution and Article 39 (d), the
Supreme Court observed: “It is true that the principle of equal pay for equal work is not
expressly declared by our constitution to be a fundamental goal. Article 39 (d) of the
constitution proclaims ‘equal pay for equal work for both men and women’ as Directive
Principle of State Policy. ‘Equal pay for work for both men and women’ means equal pay for
equal work for everyone and between the sexes.”

However, this outlook of the Supreme Court is criticized as

● Job was not merely confined to driving, constable also.
● Nature of duty is different.
● Comparison drawn with other drivers was incorrect.
● Not a purely driving job.

EMPLOYMENT

STATE OF MADHYA PRADESH V. PRAMOD BHARTIYA

There were 2 departments, Director of Technical Education and Director of Public

Instruction. Also, there were 2 posts for lecturer – Non-technical subject teacher and
technical subjects’ teacher.

34
The questions were whether both posts were at par when it came to salary? And whether
there should be different pay scales for both types of teachers?

(a) the qualifications prescribed for the lecturers in the Higher Secondary Schools and the
non-technical lecturers in Technical Schools are the same;

(b) service conditions of both the categories of lecturers are same and (c) that the status of the
schools is also the same.

There is, however, a conspicuous absence of any clear allegation and/or material suggesting
that functions and responsibilities of both the categories of lecturers is similar. What is more
important and crucial is whether they discharge similar duties, functions and responsibilities.

The court said that, if officers of the same rank perform dissimilar functions and the power,
duties and responsibilities of the posts held by them vary, such officers may not be heard to
complain of dissimilar pay merely because the posts are of the same rank and the
nomenclature is the same.

T. DEVADASAN V. UNION OF INIDA

Carry Forward Rule 16(4)(b)

The scope of Article 16 (4) was considered by the Supreme Court. In this case “carry forward
rule” made by the Government to regulate the appointment of persons of backward classes in
government services was involved. The Supreme Court struck down the “carry forward rule”
as unconstitutional on the ground that the power vested in the government cannot be so
exercised so as to deny reasonable equality of opportunity in matters of public employment
for the members of classes other than backward classes. In this case, the reservation of posts
to the members of backward classes had exceeded 50% and had gone up to 68% due to “carry
forward rule.”

The Supreme Court held that each year of recruitment must be considered by itself and the
reservation for each year should not be excessive so as to create ma monopoly or interfere
unduly with the legitimate claims of the rest of the society. So, the court held that reservation
should be less than 50% and restricted itself to uphold the value of merit. The State would not
be justified in ignoring altogether advancement of the rest of the society in its zeal to promote
the welfare of backward classes.

N.M. THOMAS V. STATE OF KERELA

In N.M. Thomas, a governmental order granted provisional promotions to members of

Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be
eligible for such promotion, along with a two-year grace period for them to gain such
qualifications. This was challenged. The key contention of the aggrieved parties was that the
classification was clearly void under Articles 16(1) and (2), and not covered by Article 16(4).

The court held that the classification of employees belonging to Scheduled Castes and
Scheduled Tribes for allowing them to pass promotion tests within an extended period of two

35
years after their promotion in higher post was just and reasonable having rational nexus to the
object of providing equal opportunities for all citizens in matters relating to employment or
appointment to the public office. Under Art. 16(1) equality of opportunity of employment
means equality as between members of the same class of employees and not equality between
members of separate, independent class. There is no reason why that is not permissible under
Article 16(1) as that alone might put them on a parity with the forward communities in the
matter of achieving the result which equality of opportunity would produce. Equality of result
is the test of equality of opportunity.

K.C. VASANT KUMAR V. STATE OF KARNATAKA

Karnataka government wanted to make a commission to determine ‘backward classes’ under

Article 16(4). They approached the Supreme Court to give them guidelines. 7 judges gave a
variety of opinions, not unanimous. Few of them were-

1. They should be comparable to the Scheduled Castes and Scheduled Tribes in the
matter of their backwardness; and They should satisfy the means test such as a State
Government may lay down in the context of prevailing economic conditions.
2. They should belong to a socially and educationally backward caste.
3. Economic backwardness.
4. Social backwardness is often related to a person’s caste
5. Caste-cum-means test.

The judges expressed diverse views of the question.

The court opines that the test of economic backwardness was the only criterion that can be
realistically devised to determine social and educational backwardness. The Hon'ble Sri Chief
Justice Chandra Hud, further added that '' in regard to Schedule castes and Schedule Tribes,
the existing reservations should be continued without the application of means test.”

INDRA SAWHNEY V. UNION OF INDIA

The 27% reservation quota for backward classes and the government notification reserving
10% government jobs for economically backward classes among the higher castes was
challenged in the Supreme Court in the Indra Sawhney Case of 1992. On 16 November 1992
the Supreme Court upheld the Mandal Commission’s 27 percent quota for backward
classes, as well as the principle that the combined scheduled-caste, scheduled-tribe, and
backward-class beneficiaries should not exceed 50 percent of India’s population. At the same
time, court also struck down the government notification reserving 10% government jobs for
economically backward classes among the higher castes. The opinion of the Supreme Court
in the Indra Sawhney case is:
1. Backward Classes of the Citizens of in Article 16(4) can be identified on the basis of
caste and not only on the economic basis alone.
2. Reservation for backward classes can only be made by the government, by an executive
order.
3. Article 16(4) is not an exception to Article 16(1)
4. The backward classes in Article 16(4) are not similar to as socially backward classes in
Article 15(4) i.e. SC and ST.

36
5. Creamy layer principle – Creamy layer can be and must be eliminated from the Backward
Classes. In Ashok Kumar Thakur v. State of Bihar, UPA government came up with certain
criteria to define creamy layer. Having a defined criterion made evasion simpler. The SC
struck down those.
6. Article 16(4) permits the classification of backwards classes into more backward classes.
7. Reservation shall not exceed 50%. The court said that this rule should be applied every
year. Horizontal (Women, PWD) and vertical (ST,SC) reservation combined should not
exceed 50%.
8. Carry forward rule is valid but it is subject to 50%.
9. ST cannot jump to SC, even if a seat is vacant. It is explicitly reserved for that particular
class only and the vacant seats will be carried forward to the next year. However, in such
a situation also should not exceed 50%.
10. Whether a person from reserved category can compete from unreserved category? YES.
11. There should be NO reservation in the Promotions. It struck down the judgement in
General Manager Southern Railway v. Ranganathan. Which said that reservation applies
to all stages including promotion.
12. Not only a class should be backward, but it should also be inadequately represented in the
services under the state.
13. Recommended that reservation is discouraged in certain services, where technical,
scientific and other special skills are called for – Armed forces which require technical
expertise, matters of super speciality, academic professors, pilots.
14. The list of backward classes must be revised from time to time.
15. Establishment of a permanent statutory body for checking overinclusion and under
inclusion.
16. The spirit of Article 335 will be applicable for other backward classes also, not just
ST,SC as mentioned in the article.
17. Among the backward classes, within the 50% ceiling, classify them further into backward
classes and other backward classes.
INDRA SAWHNEY II

In this case there were issues relating to the identification of 'creamy layer' among the
Backward Classes in the State of Kerala and the implementation of the law declared and
directions issued in Indira Sawhney 1. The State of Kerala took time for implementation of
the directions in Indira Sawhney for appointment of a Commission for the purpose of
identifying the creamy layer in the State but it failed to appoint a Commission or to proceed
with the implementation. Indira Sawhney was decided in 1992. For more than three years the
State of Kerala did not implement the judgment. This Court by its order dated 10.7.1995 held
that the State of Kerala, represented by its Chief Secretary was guilty of contempt but gave a
further opportunity to the state to purge the contempt and adjourned the matter to 11.9.1995.
Having sought time for years to appoint a Commission, the Kerala Legislature then suddenly
came forward with the Kerala State Backward Classes (Reservation of Appointments or Posts
in the Services under the State) Act, 1995 which, in Section 3 declared that "having regard to
known facts in existence in the State of Kerala, that there are no socially advanced sections in
any Backward Classes who have acquired capacity to compete with forward classes" and that
the Backward classes in the State were not "adequately represented" in the services under the
State and they would continue to be entitled to reservation under Clause (4) of Article 16 of
the Constitution.
Thus a case was filed with the contention to declare the provisions of the Act as
unconstitutional and violative of Articles 14 and 16 of the Constitution of India.

37
laid emphasis on the relevance of caste and also stated that upon a member of the backward
class reaching an "advanced social level or status", he would no longer belong to the
backward class and would have to be weeded out. There are sections among the backward
classes who are highly advanced, socially and educationally and they constitute the forward
section of that community. These advanced sections do not belong to the true backward class.
They are "as forward as any other forward class member. After excluding them alone, would
the class be a compact class. In fact, such exclusion benefits the truly backward.
Thus the creamy layer must necessarily be excluded 'and economic criteria' are to be adopted
as an indicium or measure of social advancement.

Moreover, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and
16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as
equals that is to say, equal to the rest of the backward class.

To conclude when government unreasonably refuses to eliminate creamy layers from the
backward classes or tend to include more and more castes in the list of backward classes
without adequate date and inquiry, a stage will soon be reached when the whole system of
reservation will become farcical and a negation of the constitutional provisions.

AFTER INDRA SAWHNEY

The court has not been able to eliminate the caste factor in identifying the backward classes.
However, it has sought to keep the case factor in limit.

What is the meaning of the expression ‘backward classes’ in Article 16(4)?

1) The words ' "backward class of citizens" occurring in Article 16 (4) are neither
defined nor explained in the Constitution though the same words occurring in Article
15 (4) are followed by a qualifying phrase, "Socially and Educationally'' backward
classes.
2) In the course of debate in the Parliament on the intendment of Article 16 (4), Dr. B.R.
Ambedkar, expressed his views that “backward classes” are which nothing else but a
collection of certain castes.
3) Incidentally, the Supreme Court in all its decisions on reservation has interpreted the
expression `backward classes' in Article 16 (4) to mean the "socially and
educationally" backward. From cases, it has been established that there is an integral
connection between caste, poverty, occupation and social backwardness. It also
emphatically rejected "economic backwardness" as the only criterion for reservation
under article 16 (4) and observed that economic backwardness has to be on account of
social and educational backwardness.
4) In M.R. Balaji v. State of Mysore, it was held that the caste of a group of persons
cannot be the sole or even predominant factor though it may be a relevant test for
ascertaining whether a particular class is backward or not. The two tests should be
conjunctively applied in determining backward classes: one, they should be
comparable to the Schedule Castes and Schedule Tribes in the matter of their
backwardness; and, two, they should satisfy the means test, that is to say, the test of
economic backwardness laid down by the State government in the context of the
prevailing economic conditions. Poverty, caste, occupation and habitation are the
principal factors contributing to social backwardness.

38
 5) Caste may be used as a criterion as caste is often a social class in India. However, it
cannot be the sole criteria for reservation. Under no circumstances a "class" can be
equated to a "caste"
6) In determining whether a particular section forms a class, caste cannot be excluded
altogether. But in the determination of a class a test solely based upon the caste or
community cannot also be accepted. The expression ‘backward class’ is not used as
synonymous with ‘backward caste’ or ‘backward community’. The members of an
entire caste or community may in a social, economic and educational scale of values
at a given time be backward and may on that account be treated as a backward class,
but that is not because they are members of a caste or community, but because they
form a class.
7) In Indira Sawhney V. Union of India, the Court observed that:-

The meaning of the expression “backward classes of citizens” is not qualified or

restricted by saying that it means those other backward classes who are situated
similarly to Scheduled Caste and/or Scheduled Tribes. Backwardness being a relative
term must in the context be judged by the general level of advancement of the entire
population of the country or the State, as the case may be.
‘Caste’ neither can be the sole criterion nor can it be equated with 'class' for the
purpose of Article 16 (4) for ascertaining the social and educational backwardness of
any section or group of people so as to bring them within the wider connotation of
'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or
primary criterion in determining the backwardness of a class of citizens.

Unless 'caste' satisfies the primary test of social backwardness as well as the
educational and economic backwardness which are the established and accepted
criteria to identify the 'backward class', a caste per se without satisfying the agreed
formulae generally cannot fall within the meaning of 'backward class of citizens'
under Article 16 (4), save in given exceptional circumstances such as the caste itself
being identifiable with the traditional occupation of the lower strata - indicating the
social backwardness. And ‘Class’ has occupation and Caste nexus; it is homogeneous
and is determined by birth.
8) Further in case of Jagdish Negi v. State of U.P. the Court held “Backwardness is not
a static phenomenon. It cannot continue indefinitely and the State is entitled to review
the situation from time to time.’
9) The court has left the task of actually identifying backward classes to the authority to
be appointed by the government.

Whether Art.16 (4) an exception toArt.16 (1)?

Although 16 (4) has an over-riding flavour as the opening words “Nothing in the Article shall
prevent the State from……….”, the effect could only extend to the making of a reasonable
number of reservation of appointments and posts in certain circumstances.

The view in T. Devadasan v. Union of India, that Art. 16(4) was an exception to Art. 16(1)
received a severe setback from the majority decision in State of Kerala v. N.M. Thomas,
which held that 16(4) was not an exception to Art.16(1) but that it was merely an emphatic
way of stating a principle implicit in Art.16(1).

39
The view taken in N.M Thomas has been accepted as the correct one and by the majority in
Indira Sawhney where the Court pointed out that even without clause (4), it would have been
permissible for the State to have evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond
any doubt in specific terms.

X. ARTICLE 17

17. Abolition of Untouchability – Untouchability is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of Untouchability shall be an offence
punishable in accordance with law.

XI. ARTICLE 18

18. Abolition of titles – No title, not being a military or academic distinction, shall be
conferred by the State No citizen of India shall accept any title from any foreign State No
person who is not a citizen of India shall, while he holds any office of profit or trust under the
State, accept without the consent of the President any title from any foreign State No person
holding any office of profit or trust under the State shall, without the consent of the President,
accept any present, emolument, or office of any kind from or under any foreign State Right to
Freedom.

PREETI SAGAR SRIVASTAVA V. STATE OF MP

The question whether apart from providing reservation for admission to the postgraduate
courses in engineering and medicine for special category students, it is open to the state to
prescribe different admission criteria , in the sense of prescribing different minimum
qualifying marks, for special category candidates seeking admission under the reserved
category.
The state of MP prescribed following min. % of qualifying marks for the reserved category
candidates to make them eligible for counselling and admission process:
SC- 20%, ST- 15%, OBC- 40%.
This was challenged before the court if it is permissible to keep a low qualifying criterion for
the reserved category.

XII. ARTICLE 19

19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and

40
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence

FREEDOM OF PRESS
● Right to know
● Will not be able to form an informed opinion/ take decision
● Press perpetuates the right to know.
● 4th pillar of democracy

REASONABLE RESTRICTIONS UNDER ARTICLE 19(2) – (6) – ARE THEY

EXHAUSTIVE?
● The simple rule is that, once the scope of a ground of restriction has been interpreted,
the Court cannot enlarge the relevant limitation clause to admit any other ground. The
restrictions were intended to be exhaustive and are to be strictly construed. It is
to be noted that restrictions on the grounds mentioned in Article 19(2)-(6) can only be
imposed through a validly enacted law otherwise citizens will have no obligation to
obey it.
● TEST to be applied by the Court: Whether the restrictions imposed by the law are
greater than what is permitted by Cls (2) – (6)?
● This means that the Court must strike down all laws which donot fall within Articles
19 (2) – (6) as they are incapacitated from imposing restrictions on the freedoms in
Art. 19 (as restrictions can only be imposed on the grounds mentioned in 19(2)-
19(6)). Only an amendment can introduce a new ground and not an
interpretation.

Illustration:

Romesh Thappar v State of Madras (1950)

 freedom of press foundation of all democratic nation
 introduce a new restriction i.e. ‘public order’ which was not previously a ground of
restriction and the only relevant ground was ‘security of state’. The question was
whether ordinary breaches of public peace would constitute attract the ground ‘security
of state’. The Court interpreted that only aggravated situations which endanger the very
existence of State and not ordinary breaches of peace.
 The impugned law which only intended to govern maintenance of public peace and
public safety had to be struck down because those constituted no restriction on free
speech and expression recognised under the Constitution and in that case the State
did not have the power to punish anybody on those grounds.
 For this reason, the Government had to amend the Constitution and insert ‘public
order’ as a ground of restriction. On similar grounds, even sovereignty and integrity of
India had to be introduced as a ground of restriction.
● As far as Article 19 is concerned, liberty can be curtailed only on the grounds enlisted
in saving sub-articles
41
 ● CONDITIONS FOR A VALID RESTRICTION:

1. The restriction must be imposed by a law. (Either directly from the

Legislature or through delegated legislation)
2. Such a law must be made by the State
3. Such law must be valid
4. The restriction must be proximately be related to any of the grounds
specified in the limitation clauses (2)-(6)

● WHAT IS REASONABLE?
1. Court starts with the assumption that Legislature is the best judge of what is
good for its community, the ultimate responsibility of determining
reasonableness comes to the Court.
2. The restriction should not be vague, arbitrary / of an excessive nature.
3. Reasonable nexus between restriction imposed and object sought to be
achieved.
4. Reasonableness to be tested from both procedural and substantive aspects.
5. While considering the validity of a restriction to be imposed on a FR,
Courts will also have to consider DPSPs and FDs provided there is no
apparent conflict among the three because DPSPs and FDs to a certain
extent test the amount of ‘reasonableness’ in a restriction.

Restriction must strike a balance between freedom guaranteed and

degree of social control permitted by restrictions.
Restriction to be assessed from standpoint of general public and not people on
whom restriction has been imposed.

FREEDOM OF PRESS

REASON BEHIND DELIBERATE OMISSION TO PROTECT FREEDOM OF

PRESS EXPRESSLY:
 specific mention unnecessary as freedom of speech and expression includes the
liberty to propagate not only one’s views but also the right to print matters which
have either been borrowed from someone else / printed under his direction and also
includes liberty of publication and circulation.
Ambedkar referring to Arnold’s case (Privy Council) in Constituent Assembly:
“The Press had no special rights which are not to be given/which are not to be exercised by
a citizen in his individual capacity. The editor of a Press and manager are all citizens and
therefore when they choose to write in newspapers they are merely exercising their right of
expression and therefore no special mention is necessary of the Freedom of Press at all”

AMBIT OF THE FREEDOM:

42
 1. Freedom cannot be claimed by a newspaper or other publication run by a non-citizen.
2. Freedom is not higher than the freedom of any ordinary citizen. It is subject to the
same limitations as are imposed by Art. 19(2)
E.g.
Press is not immune from ordinary forms of taxation/regulation of conditions of service of
employees, laws relating to defamation or contempt of court/ the law of trespass/ liability for
unfair reporting.
3. Freedom to circulate is both quantitative (volume of circulation/dissemination of
information) and qualitative (matter which the press is entitled to circulate)
4. Limitations can be imposed only on the grounds mentioned in Clause (2) and
nothing else
5. Validity of restriction to be tested on the basis of ‘reasonableness’.
6. Right to acquire information extends to the right of access to the sources of
information. Journalist cannot be denied the opportunity of interview a prisoner if
he is willing to be interviewed and if the jail manual so permits.

IMPORTANT JUDGMENTS:
• Sakal Newspapers v Union of India
Any number of newspaper to any persons in any number of pages
An Act and a Govt. order sought to regulate the number of pages according to the
price charged, prescribed the number of supplements to be published, regulated the
size and area of advertisements. Held invalid as it directly affects right to free
speech and expression. Also held, reduction in area for advertisements would
reduce revenues forcing the newspapers to raise their prices which was bound to
affect circulation. When contended by the Governemnt (respondent) that the above
points only regulated the right to freedom of trade and commerce and not free
speech, Court held that the State cannot seek to place restriction on business by
directly and immediately curtailing freedom of speech.

● Benett Coleman and Co. v Union of India

Complaint against a newsprint quota, impacted the press freedom
SC: freedom of press is both quantitative and qualitative
Freedom of circulation and freeosm of contetnt

Restrictions were imposed on newsprint (imported) and number of pages were

restricted to 10 – Held unconstitutional – Observed that while the Govt. could
evolve a policy of allowing newsprint on a fair and equitable basis keeping in
view the interests of small, medium and big newspapers, the Govt could not in
the garb of regulating newsprint control the growth and circulation of
newspaper. Direct bearing on the freedom of knowledge.

● Indian Express Newspapers (Bombay Pvt. Ltd) v Union of India

Constitutional validity of a notification issue by the centre
Petitioner: duty imposed on the imported newspaper – infringing freedom of speech
and exp.
Court: tax should not be a overburden on the newspapers
Imposition of custom duty on newspaper- Imposition of tax on knowledge - burden
Rejected the plea, no duty should be imposed on the newspaper industry
Govt. specified rates of customs duty and auxiliary duty on newsprint imported by
different categories of newspapers was challenged. Held, A wise administrator should
43
 realise that the imposition of a tax like customs duty on newsprint is an imposition on
knowledge and would virtually amount to a burden on a man for being literate and for
being conscious of his duty as a citizen. Fundamental principle of ‘people’s right to
know’ was upheld. Rather than striking down the entire notification itself, the
Government was asked to consider the imposition of duty and modify the same.

● Hindustan times v. state of up

Executive orders issued by state govt. directing deduction of an amount of 5% from
the bills payable to newpapers having circulation of more than 25,000 copies for
publication of govt. ads for implementation of its “ Pension and Social Security
Scheme for full time Journalist” has been held to be ultra-virus. The court observed

44
that ads in newspaper play an imp. Role in the matter of revenue of the newspapers and have
a direct nexus with its circulation by making the newspapers available to the readers at a
price at which they can afford and they have no other option but to collect more funds by
publishing commercial and other ads and as such the state cannot, in view of the quality
doctrine in A.14 , resort to the theory of “take it or leave it”. Every executive action which
operates to the prejudice of any person must have the sanction of law and the executive cannot
interfere with the rights and liabilities of any person unless the legality thereof is supportable
in any court of law.
● R. Rajagopal v. State of Tamil nadu
The Supreme Court of India ruled that a magazine had a right to publish, an
autobiography written by a prisoner, even without his consent or authorization. Prison
officials attempted to prevent the magazine from publishing the autobiography, by
forcing the prisoner to request that the auto-biography was not published. The Court
explained that it was important to strike a balance between the freedom of the press
and the right to privacy, and found that the state and its officials do not have the right
to impose prior restraints on the publication of materials that may be defame the State.
As it is a matter of public interest, it should be published.

● Msm sharma v. sri Krishna Sinha

The Supreme Court of India upheld the regulatory authority of a state legislative
assembly to regulate the publication of its debates or proceedings over the right
to free speech. M. Sharma published an address to the Bihar Legislative Assembly in
its entirety, claiming that his right to free speech protected this action, despite an order
of the Speaker to expunge certain portions of the address. The Court found that
Sharma’s actions did not directly fall under the free speech protections of Article 19
because it violated the authority reserved to the Assembly under Article 194 over the
publication of its proceedings.
The Petitioner contended that the provisions of Article 194(3) were subject to Article
19(1)(a) of the Constitution. The Court rejected this contention on the ground that the
language of Article 194 subjected only “clause (1) expressly to other provisions of
the Constitution”. On the other hand, “clause (2) to (4) [of Article 194] had not been
stated to be so subject. [This] indicated that the Constitutional makers did not intend
to subject those clauses to other provisions of the Constitution.” [p.34] Therefore,
Article 194(3) was not subject to Article 19(1)(a) of the Constitution. Hence, the
Petitioner failed in contending that the privileges of the Bihar Legislative Assembly
were subject to his fundamental right to free speech and expression.

Are Advertisements protected under Article 19(1) (a)?

Humdard Dawakhana v Union of India 1960 – An advertisement meant to further business
falls within the concept of trade and commerce. An advertisement promoting drugs and
commodities the sale of which is not in public interest could not be regarded as propagating
any idea and as such could not claim the protection of Art 19(1)(a).
Indian Express Pvt Ltd v Union of India 1985: All commercial advertisements cannot be
denied the protection of Art 19(1)(a) merely because they are used for business purposes.
Advertisements play a major part of the cost of supplying the public with newspapers. With
the curtailment of adv. prices of newspaper will rise up and this will directly affect its
circulation which is an interference with the right to freedom of speech and expression under
Art 19(1)(a)
Tata Press Ltd. V Mahanagar Telephone Nigam Ltd. (1995) – Advertisement is entitled
to be protected – public has a right to receive commercial speech – protection available to
both
45
the speaker and the speech - Adv. is no more than a commercial transaction nonetheless
disseminates information about the product advertised. Public at large stands benefitted. Free
flow of information is indispensable in a democracy.

NATIONAL FLAG CASE

The Supreme Court of India found that the Indian Constitution protected the right to fly the
national flag under the fundamental right to freedom of expression. The case arose from a
business owner’s petition to the High Court after he was told he was not permitted to fly the
national flag according to the Flag Code of India. The High Court found in favour of the
business owner, establishing that as long as citizens fly the flag in a respectful manner then
no restrictions can be imposed on its use. The Court noted that the policy in India had been to
restrict the use of its national flag with a view to ensuring that it was not dishonoured and that
it was shown proper respect. The Court noted that a more liberal approach to the flying of the
national flag could result in disrespect, exploitation or indiscriminate use of the flag. The
Union of India filed an appeal to the Supreme Court. The Supreme Court upheld the right to
fly the flag as a fundamental right that was subject only to certain reasonable statutory
restrictions.

NATIONAL ANTHEM CASE- RIGHT TO

SILENCE XIII. ARTICLE 20

Article 20 of Indian Constitution provides the following safeguards to the persons accused of
crimes :

(i) Protection against retrospective criminal law.

(ii) Immunity from double punishment

(iii) Immunity from being compelled to be a witness against himself.

1. Ex post facto laws:

An ex-post facto law is a law that penalises retrospectively acts already done or increases the
penalty for such acts. The retrospective penal law is opposed on grounds of morality and
justice. Sir William Blackstone expressed his disapproval of such laws on the basis of
humanitarian considerations.

One of the first judicial decision to touch upon the issue was Calder v. Bull in America,
which touched the topic of retrospective penal laws and made distinction between ex post-
facto law and retrospective law:

“Every ex-post facto law must necessarily be retrospective, but every retrospective law is not
an ex post facto law. Only the former are prohibited. Every law that takes away, or impairs
rights vested agreeably to existing laws in retrospective and is generally unjust, and may be
oppressive; ... There is a great and apparent difference between making an unlawful act
lawful and the making an innocent action criminal and punishing it as a crime.”

(II) Position under Indian Constitution :

46
Article 20(1) of the Constitution of Indian lays down :

“No person shall be convicted of any offence except for violation of a law in force at time of
the commission of the act charged as an offence, nor he be subjected to a penalty greater than
that which . might have been inflicted under the law in force at the time of commission of an
offence”

Article 20(1) of the Constitution of India, does not use the expression ‘ex post-facto’ laws.

Article 20 (1) is not only the repository of protection against conviction for offences enacted
retrospectively but it also envisages a limitation on the power of legislatures to make
retrospective criminal legislation.

It prohibits -

(i) the making of ex-post facto criminal law,12 i.e. making an act a crime for the first time
and then making that law retrospectively,

(ii) the infliction of a penalty greater than that which might have been inflicted under the law
which was in force when the act was committed.

The prohibition of the clause is not merely against the passing of such retrospective law but
also against conviction under such law. However, it does not prohibit imposition of civil
liability retrospectively.

In State of West Bengal v.-S.K. Ghosh the Supreme Court held that Section 13(3) Criminal
Law Amendment Ordinance, 1944 which provided for forfeiture in case of offence of
embezzlement of Government money or property, merely provided a speedier remedy than
that of a suit, and it neither imposed a punishment nor a penalty under Article 20 (l), the M.P.
High Court held that in Section 13 of Public Gambling Act of 1867 clearly envisaged
infliction of penalty by forfeiture as a punishment to the accused, which is otherwise not
regarded as penalty by Article 20(1).

Similarly the Supreme Court in Mam Ram v. Union of India held that section 433-A22
inserted in the Cr. P.C. by the Criminal Law Amendment Act, 1978 is not violative of Article
20 (1) because neither this section enlarged the punishment retrospectively nor it provided
heavy punishment so as to term it as ex post facto in view of the fact that the minimum
punishment for the offence of murder and the like offences was the death penalty and life
imprisonment which, very much existed in the Penal Code.

What this clause prohibits is the creation of a new offence with retrospective effect. It does
not prohibit the creation of a new rule of evidence or a presumption of an existing ‘offence’.

Thus the Supreme Court in Jawala Ram v. Pepsu has held that the unauthorised use of
canal water was not an offence and the imposition of enhanced water charge under rules 32
and 33 of the Pepsu Sirhind Canal Rules was not a penalty “for an offence”.

But the accused can take the advantage of the beneficial provisions of the ex-post facto law.
The rule of beneficial construction requires that ex post facto law should be applied to
mitigate the rigours (reducing the sentence) of the previous law on the same subject.

47
Ratan Lai v. State of Punjab, a boy of 16 years was convicted for committing an offence of
house trespass and outraging the modesty of a girl aged 7 years. The Magistrate sentenced
him for 6 months rigours punishment and also imposed fine. After the judgement of
Magistrate, the Probation of Offenders Act, 1958, came into force. It provided that a person
below 21 years of age should not ordinarily be sentenced to imprisonment. The Supreme
Court by a majority of 2 to 1 held that the rule of beneficial interpretation required that ex-
post facto law could be applied to reduce the punishment. So an ex post facto law which is
beneficial to the accused is not prohibited by Article 20 (1).

Further, Article 20 (1) does not apply in case of preventive detention. The proceedings under
these provisions are not punitive judicial proceedings but preventive and the detention under
these provisions is not a conviction and punishment. In such cases of detention the detaining
authority can supersede the previous order by fresh order of detention in compliance of the
requirements of law.

2. Double jeopardy:

Clause (2) of Article 20 says -

“No person shall be prosecuted and punished for the same offence “more than once.”

No man should be put twice in peril for the same offence and if he is prosecuted again for it
for which he has already been prosecuted he can take the complete defence of his formal
acquittal. plea of ‘autrefois acquit’ or ‘autrefois convict’, the plea overs that the defendant has
been previously convicted or acquitted on a charge for the same offence as that in respect of
which he is arraigned now.

Under Indian Constitution :

The Indian provision enunciates only the principle of ‘autrefois convict’ but not that of
‘atrefois acquit’. In England and the USA, both these rules operate and a second trial is
barred even when the accused had been acquitted at the first trial for that offence. In India on
the other hand, the rule of ‘autrefois acquit’ is not incorporated in Art. 20 (2). Art 20 (2) can
be invoked only when there has been prosecution and punishment in the first instance.

Both prosecution and punishment must co-exist for Art. 20 (2) to be operative.

In order to invoke the protection conferred by Art. 20 (2) of the Constitution there must have
been a prosecution and punishment in respect of the same offence before a court of law or a
judicial tribunal. The words ‘before a court of law or judicial tribunal’, though not found
specifically in the article, have, nevertheless, been read therein by the Supreme Court mainly
because of the word ‘prosecution’ found therein. When a civil servant is dismissed from
government service on the ground of misbehaviour after an inquiry, his later prosecution on
the same charges which had been earlier inquired into and for which he was punished with
dismissal would not be barred by Art. 20 (2). The earlier ‘inquiry’ could not be regarded as
‘prosecution’ for a criminal offence so Art. 20 (2) did not apply.

In Rajjab Ali v. State of the petitioner was prosecuted in an earlier case under See. 14 of
Foreigners Act and was ordered to be acquitted and hence his second prosecution under
section 14 of the Act and contravention of the passport rule does not attract the application of

48
Article 20(2) because the words “prosecuted” and “punished are not to be read disjunctively
so as to mean “prosecuted” or “punished” but to be read conjunctively. Both the factors must
co-exist in order to attract the invocation of Art. 20 (2) of the Constitution.

SECOND PROSECUTION AND THE SAME OFFENCE

The protection granted to an accused under Article 20 (2) of the Constitution of India is
against the second prosecution and punishment for the same offence. The underlying idea is
that the coercive power of the State is not used against an individual for harassment through
multiple prosecutions for a wrong which was committed only once.

The Rajasthan High Court in Madan Lal v. State of Rajasthan has observed that the
offences may be different even though some of the ingredients of the two offences are
common.

What is necessary to determine whether two offences are distinct is not to see whether their
ingredients are identical. The following have been held to be distinct offences :

(a) Possession of firearms without licence and Dacoity.

(b) An offence and the conspiracy to commit that offence.

(c) The offence of making an unauthorized construction without obtaining permission of the
Municipal authority and the offence of breach of the Building Rules in making the
construction, etc.

3. Right against Self Incrimination:

The right to silence has various facets-

(a) One is that the burden is on the State or rather the prosecution to prove that the accused is
guilty.

(b) Another is that an accused is presumed to be innocent till he is proved to be guilty.

(c) Third is the right of the accused against self incrimination, namely, the right to be silent
and that he can not be compelled to incriminate himself.

The protection of Article 20 (3) is available to a person ‘accused of an offence’. This means
that this protection is available.

(a) to a person against whom a formal accusation has been made though the actual trial may
not have commenced as yet; “

(b) if such accusation relates to the commission of an offence which in the normal course
may result in prosecution.

In M.P. Sharma v. Satish Chandra, the Supreme Court made a distinction between a
person being compelled to do a ‘volitional’ act and something being obtained from him
without involving any volitional act on his part and held that the immunity offered by Article

49
20 (3) is confined to the former case and not available in the latter. It is on this principle that
the court held that the immunity is available to an accused person when a compulsory process
or notice is issued, directing him, under pain of penalty, to produce a document, but not when
a document is recovered from him by search and seizure by a police office without involving
any volitional act on the part of the accused from whose possession the document is
recovered.

XIV. ARTICLE 21

Kharak Singh v. State of Uttar Pradesh

Sunil Batra v. Delhi Administration
Maneka Gandhi v. Union of India
Bandhua Mukti Morcha v. Union of India
Vishakha v. State of Rajasthan
Re Sant Ram
Olga Tellis v. Bombay Municipal Corporation
M.C. Mehta v. Union of India
Sunil Batra v Delhi Administration
A.D.M. Jabalpur v. S. Shukla

Article 21 reads as:

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

 According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme

importance in a democratic society.”
 heart of the Constitution
 only be claimed when a person is deprived of his “life” or “personal liberty” by the
“State” as defined in Article 12. Violation of the right by private individuals is not
within the preview of Article 21.

Article 21 secures two rights:

1) Right to life, and
2) Right to personal liberty.
 The Article prohibits the deprivation of the above rights except according to a
procedure established by law.
 Article 21 applies to natural persons. The right is available to every person, citizen or
alien.
 Article 21 of the Constitution of India, 1950 provides that, “No person shall be
deprived of his life or personal liberty except according to procedure established by
law.”
 ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It
does not connote mere animal existence. It has a much wider meaning which includes
right to live with human dignity, right to livelihood, right to health, right to pollution
free air, etc.
 only article in the Constitution that has received the widest possible interpretation.
 Under the canopy of Article 21, so many rights have found shelter, growth, and
nourishment.
 Thus, the bare necessities, minimum and basic requirements that are essential and
50
 unavoidable for a person is the core concept of the right to life.

In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held
that:
By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an
armored leg or the pulling out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world.

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In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval the
above observations and held that the “right to life” included the right to lead a healthy life so
as to enjoy all faculties of the human body in their prime conditions. It would even include
the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a
man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and
health.

Right To Live with Human Dignity

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21
and held that the right to live is not merely a physical right but includes within its ambit the
right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v.
Union Territory of Delhi, observed that:
“The right to live includes the right to live with human dignity and all that goes along with it,
viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head
and facilities for reading writing and expressing oneself in diverse forms, freely moving
about and must include the right to basic necessities of the life and also the right to carry on
functions and activities as constitute the bare minimum expression of human self.”
Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti
Morcha v. Union of India. Characterizing Art. 21 as the heart of fundamental rights, the
Court gave it an expanded interpretation. Bhagwati J. observed:
“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life
breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of
Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the
health and strength of workers, men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane conditions of work
and maternity relief.
“These are the minimum requirements which must exist in order to enable a person to live
with human dignity and no State neither the Central Government nor any State Government-
has the right to take any action which will deprive a person of the enjoyment of these basic
essentials.”
Following the above-stated cases, the Supreme Court in Peoples Union for Democratic
Rights v. Union of India, held that non-payment of minimum wages to the workers
employed in various Asiad Projects in Delhi was a denial to them of their right to live with
basic human dignity and violative of Article 21 of the Constitution.
Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor
under various labor laws are clearly intended to ensure basic human dignity to workmen. He
held that the non-implementation by the private contractors engaged for constructing a
building for holding Asian Games in Delhi, and non-enforcement of these laws by the State
Authorities of the provisions of these laws was held to be violative of the fundamental right
of workers to live with human dignity contained in Art. 21.

Right Against Sexual Harassment at Workplace

Art. 21 guarantees the right to life with dignity. The court in this context has observed that:

52
“The meaning and content of fundamental right guaranteed in the constitution of India are of
sufficient amplitude to encompass all facets of gender equality including prevention of sexual
harassment or abuse.”
Sexual Harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.
In Vishakha v. State of Rajasthan, the Supreme Court has declared sexual harassment of a
working woman at her work as amounting to the violation of rights of gender equality and
rights to life and liberty which is a clear violation of Articles 14, 15 and 21 of the
Constitution. In the landmark judgment, the Supreme Court in the absence of enacted law to
provide for effective enforcement of basic human rights of gender equality and guarantee
against sexual harassment laid down the guidelines which were followed till the safety of
women’s at workplace act was passed.

Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not
include the right to livelihood. In Re Sant Ram, a case which arose before Maneka
Gandhi case, where the Supreme Court ruled that the right to livelihood would not fall within
the expression “life” in Article 21.
But then the view underwent a change. With the definition of the word “life” in Article 21 in
a broad and expansive manner, the court in Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nandkarni, came to hold that “the right to life” guaranteed
by Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay
Municipal Corporation, popularly known as the “Pavement Dwellers Case” a five-judge
bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as
no person can live without the means of living, that is, the means of Livelihood. That the
court, in this case, observed that:
“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not
mean, merely that life cannot be extinguished or taken away as, for example, by the
imposition and execution of death sentence, except according to procedure established by
law. That is but one aspect if the right to life. An equally important facet of the right to life is
the right to livelihood because no person can live without the means of livelihood.”

Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of family0. K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash
Chandra Bose, held that right to social and economic justice is a fundamental right under
Art. 21. The learned judge explained that the right to life and dignity of a person and status
without means were cosmetic rights. Socio-economic rights were, therefore, basic aspirations
for meaning the right to life and that Right to Social Security and Protection of Family were
an integral part of the right to life.
In Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde, it was held that right to
economic empowerment of poor, disadvantaged and oppressed dalits was a fundamental right
to make their right of life and dignity of person meaningful.

Right to get Pollution Free Water and Air

53
In Subhas Kumar v. State of Bihar, it has held that a Public Interest Litigation is
maintainable for ensuring enjoyment of pollution-free water and air which is included in
‘right to live’ under Art.21 of the constitution. The court observed:
“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right
of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers
or impairs that quality of life in derogation of laws, a citizen has right to have recourse to
Art.32 of the Constitution for removing the pollution of water or air which may be
detrimental to the quality of life.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment
free from the dangers of diseases and infection. Maintenance of health, preservation of the
sanitation and environment have been held to fall within the purview of Article 21 as it
adversely affects the life of the citizens and it amounts to slow poisoning and reducing the
life of the citizens because of the hazards created if not checked.
The following are some of the well-known cases on the environment under Article 21:
In M.C. Mehta v. Union of India (1988), the Supreme Court ordered the closure of tanneries
that were polluting water.
In M.C. Mehta v. Union of India (1997, the Supreme Court issued several guidelines and
directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.
In Vellore Citizens Welfare Forum v. Union of India, the Court took cognizance of the
environmental problems being caused by tanneries that were polluting the water resources,
rivers, canals, underground water, and agricultural land. The Court issued several directions
to deal with the problem.
In Milk Men Colony Vikas Samiti v. State Of Rajasthan, the Supreme Court held that the
“right to life” means clean surrounding which leads to healthy body and mind. It includes the
right to freedom from stray cattle and animals in urban areas.
In M.C. Mehta v. Union of India (2006, the Court held that the blatant and large-scale
misuse of residential premises for commercial use in Delhi violated the right to salubrious
sand decent environment. Taking note of the problem the Court issued directives to the
Government on the same.

Right to Privacy

For the first time in Kharak Singh v. State of U.P. question whether the right to privacy
could be implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21,
came before the court. “Surveillance” under Chapter XX of the U.P. Police Regulations
constituted an infringement of any of the fundamental rights guaranteed by Part III of the
Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits at
night”, was held to be in violation of Article 21. A seven-judge bench held that:
“the meanings of the expressions “life” and “personal liberty” in Article 21 were considered
by this court in Kharak Singh’s case. Although the majority found that the Constitution
contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty
expansively to include a right to dignity. It held that “an unauthorized intrusion into a
person’s home and the disturbance caused to him thereby, is as it were the violation of a
common law right of a man -an ultimate essential of ordered liberty, if not of the very concept
of civilization”

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“We have; therefore, no hesitation in holding that right to privacy is a part of the right to
“life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts
in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be
curtailed “except according to procedure established by law”.

Right to Free Legal Aid & Right to Appeal

In M.H. Hoskot v. State of Maharashtra, the Supreme Court said while holding free legal
aid as an integral part of fair procedure the Court explained that “ the two important
ingredients of the right of appeal are; firstly, service of a copy of a judgement to the prisoner
in time to enable him to file an appeal and secondly, provision of free legal service to the
prisoner who is indigent or otherwise disabled from securing legal assistance. This right to
free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring
fairness and reasonableness; this cannot be termed as government charity.
In other words, an accused person at lease where the charge is of an offense punishable with
imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Counsel
for the accused must be given sufficient time and facility for preparing his defense. Breach of
these safeguards of a fair trial would invalidate the trial and conviction.

Right to Speedy Trial

In Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the notice of
the Supreme Court that an alarming number of men, women, and children were kept in
prisons for years awaiting trial in courts of law. The Court took a serious note of the situation
and observed that it was carrying a shame on the judicial system that permitted incarceration
of men and women for such long periods of time without trials.
The Court held that detention of under-trial prisoners, in jail for a period longer than what
they would have been sentenced if convicted, was illegal as being in violation of Article of
21. The Court, thus, ordered the release from jail of all those under-trial prisoners, who had
been in jail for a longer period than what they could have been sentenced had they been
convicted

Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be
tried speedily.
Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, appeal, revision, and retrial.
The concerns underlying the right of the speedy trial from the point of view of the accused
are:
The period of remand and pre-conviction detention should be as short as possible.
The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal; and
Undue delay may well result in impairment of the ability of the accused to defend him.

PROCEDURE ESTABLISHED BY LAW

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The Supreme Court took the view that “procedure established by law” in Article 21 means
procedure prescribed by law as enacted by the state and rejected to equate it with the
American “due process of law.”
But, in Maneka Gandhi v Union of India the Supreme Court observed that the procedure
prescribed by law for depriving a person of his life and personal liberty must be “right, just
and fair” and not “arbitrary, fanciful and oppressive,” otherwise it would be no procedure at
all and the requirement of Article 21 would not be satisfied. Thus, the “procedure established
by law” has acquired the same significance in India as the “due process of law” clause in
America.
Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration has said that
though “our Constitution has no due process clause” but after Maneka Gandhi’s case “the
consequence is the same, and as much as such Article 21 may be treated as counterpart of the
due process clause in American Constitution.”
Under this doctrine, the Court will not just examine whether the procedure itself is
reasonable, fair and just, but also whether it has been operated in a fair, just and reasonable
manner. This has meant, for example, the right to speedy trial and legal aid is part of any
reasonable, fair and just procedure. The process clause is comprehensive and applicable in all
areas of State action covering civil, criminal and administrative action.

ARTICLE 21 AND THE EMERGENCY

In A.D.M. Jabalpur v. S. Shukla, Popularly known as habeas corpus case, the supreme court
held that article 21 was the sole repository of the right to life and personal liberty and
therefore, if the right to move any court for the enforcement of that right was suspended by
the presidential order under Article 359, the detune would have no locus standi to a writ
petition for challenging the legality of his detention.
Such a wider connotation given to article 359, resulted in the denial of the cherished right to
personal liberty guaranteed to the citizens. Experience established that during the emergence
of 1975, the fundamental freedom of the people had lost all meanings.
In order that it must not occur again, the constitution act, 1978, amended article 359 to the
effect that during the operation of the proclamation of emergency, the remedy for the
enforcement of the fundamental right guaranteed by article 21 would not be suspended under
a presidential order.

XV. ARTICLE 21(A)

Right to Education is enshrined as a fundamental right in article 21A in the part III of
the Constitution of India.
The 86th amendment act introduced the right to education in the constitution of India.
Before the amendment, there were certain provisions in the constitution that
elaborated the duty of the state to provide education to provide education to
individuals.
Article 45 encourages the state to provide free and compulsory education for all
children until they complete the age of five years.

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 Article 51A(k) instates the duty upon the parents to provide free and compulsory
education to his child or any ward between the age of six and fourteen years.
HISTORY
The 1986 National Policy of Education DID NOT make the education compulsory.
The first official document on the education right of children was Ramamurti
Committee report in 1990 which reviewed the National Education Policy 1986.
In 1992, India became signatory to the UN Convention on Rights of the Child. Article
28 of this Convention “asks the states to recognize right of education for every child
and make primary education compulsory”.
In 1993, Supreme Court Gave its landmark judgment in the Unnikrishnan JP vs
State of Andhra Pradesh & Others. In this case, the Court held that Education is a
Fundamental right flowing from Article 21.
In 1994, the Saikia Committee was set up to examine the proposal of making right to
free and compulsory education. The committee, in 1997, reported that Constitution of
India should be amended to make the right to free education up to 14 years of age a
compulsory right.
1997, the United Front Government introduced 83rd Amendment Bill, 1997 which
encompassed insertion of article 21A & omitting article 45 of the Constitution.
Tapas Majumdar Committee was set up by the NDA Government in 1999 to look
into the financial implications of operationalising the 83rd Amendment Bill
The 93rd Amendment Bill was discussed and passed By Lok Sabha and Rajya Sabha,
after ratification by the President, it became Constitution 86th Amendment Act.
The 86th amendment provided for a follow-up legislation, which culminated in the
Right to Education Act 2009

Article 21A of the Indian constitution expounds that:

The State shall provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law, determine
The right has metamorphosed and moulded by the effect of judgement in various case laws:-

MOHINI JAIN CASE

The Apex Court said that state must have a responsibility to discharge its duty of providing
educational institutions in all places of the state’s territory to educate all its citizen. And also
if the private institutions charge capitation fee then it is considered as a violation of article 14.
Furthermore, court ordered that state must administrate the proper providing of educational
institutions by itself or by giving to private education institutions to educate its citizens.
SHYAM SUNDAR CASE

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The Madras High Court tells that “right of a child should not be restricted only to free and
compulsory education, but should be extended to have quality education without any
discrimination on the ground of their economic, social and cultural background.
J.P. UNNIKRISHNAN’S CASE
The Supreme Court tells that the government institutions for being reluctant with the
enforcement of Article 45 and held that every child who is deprived of the right to education
can issue a writ of mandamus against the appropriate authority for the enforcement of their
deprived right.

RIGHT TO EDUCATION ACT

This act furthers the goal of Article 21A in enforcing education as a fundamental right, some
of the basic features of this act are-
No child is liable to pay any kind of fee/ capitation fee/ charges. A collection of
capitation fee invites a fine up to 10 times the amount collected
It envisages special treatment of a child belonging to a disadvantaged group.
The act recommends quality teachers and provides that the states will ensure that no
non-teaching work is given to the teachers.
The act has listed minimum infrastructure requirements as a part of the schools and
mandates the states to ensure that schools have these requirements.

CONTENTION TO THE RTE ACT

Society for Unaided Private Schools of Rajasthan v Union of India
In this case, the society of private institutions challenged the R. T. E. Act on the basis of
imposing regulatory restrictions on Private Institutions. The Supreme Court of India upheld
the constitutionality of section 12 of the Right of Children to Free and Compulsory Education
Act (RTE Act), which requires all schools, both state-funded and private, to accept 25%
intake of children from disadvantaged groups. However, the Court held that the RTE Act
could not require private, minority schools to satisfy a 25% quota, as this would constitute a
violation of the right of minority groups to establish private schools under the Indian
Constitution.

XVI. ARTICLE 22

Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such arrest excluding the time necessary

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for the journey from the place of arrest to the court of the magistrate and no such person shall
be detained in custody beyond the said period without the authority of a magistrate
(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an
enemy alien; or (b) to any person who is arrested or detained under any law providing for
preventive detention
(4) No law providing for preventive detention shall authorise the detention of a person for a
longer period than three months unless (a) an Advisory Board consisting of persons who are,
or have been, or are qualified to be appointed as, Judges of a High Court has reported before
the expiration of the said period of three months that there is in its opinion sufficient cause
for such detention:
(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order
(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to
in that clause to disclose facts which such authority considers to be against the public interest
to disclose
(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of cases in which, a person may
be detained for a period longer than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board in accordance with the
provisions of sub clause (a) of clause ( 4 );
(b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of
clause ( 4 ) Right against Exploitation

Preventive Detention is the the most contentious part of the scheme fundamental rights in
the Indian constitutions. The Article 22 (3) of the Indian constitution provides that, if a
person is arrested or detained under a law providing for preventive detention, then the
protection against arrest and detention under Article 22 (1) and 22 (2) shall not be available.
Preventive detention should be carefully distinguished from punitive detention. Punitive
detention is punishment for illegal acts done. Preventive detention on the other hand is action
taken beforehand to prevent possible commitment of crime. Preventive detention thus is
action taken on grounds of suspicion that some wrong actions may be done by the person
concerned.
Preventive detention can however be made only on four grounds.
The grounds for Preventive detention are—
● security of state,
● maintenance of public order,
● maintenance of supplies and essential services and defence,

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 ● foreign affairs or security of India.
A person may be detained without trial only on any or some of the above grounds. A detainee
under preventive detention can have no right of personal liberty guaranteed by Article 19 or
Article 21.
To prevent reckless use of Preventive Detention, certain safeguards are provided in the
constitution.
The decision of the Supreme Court in Union of India v. Dimple Happy Dhakad shows a
clear preference for the latter, mistaken view, over the former. By affirming the use of
preventive detention in a situation where no “prevention” was really at stake, while at the
same time diluting the high burden usually imposed on the state for requesting preventive
detention in such cases, the Supreme Court took a dangerous step towards normalising what
was meant to be a measure of the absolute last resort.

XVII. WRITS

Ubi jus ibi remedium—where there is a right, there is a remedy—is a defining principle of
the common law. It would be meaningless, the Indian founders believed, to confer rights
without providing effective remedies for their enforcement. Articles 32 and 226 were and
continue to be regarded as integral to the Constitution. Indeed, for BR Ambedkar, Article 32
was ‘the very soul of the Constitution and the very heart of it.’
An important feature of Article 32 is that it does not merely guarantee the protection of
fundamental rights, but it is itself located in Part III of the Constitution. In other words, it is
not found alongside other Articles of the Constitution that define the general jurisdiction of
the Supreme Court.
Also, the Court is not helpless to grant relief in a case of violation of the right to life and
personal liberty, and it should be prepared ‘to forge new tools and devise new remedies for
the purpose of vindicating the most precious fundamental right.
Article 226 is wider in scope than Article 32. The High Courts are authorised under Article
226 to issue directions, orders, or writs to any person or authority, including any government
to enforce fundamental rights and ‘for any other purpose’.
The Supreme Court and the High Courts have concurrent jurisdiction for enforcement of the
fundamental rights. An important question in this context is whether a petitioner must
approach the High Court under Article 226 before he can approach the Supreme Court in
Article 32.
● If it took upon itself to do everything which even the High Courts can do, this Court
will not be able to do what this Court alone can do under Article 136 of the
Constitution, and other provisions conferring exclusive jurisdiction on this Court’.
● In addition, it also cited fears of a growing backlog of cases.
● Faith must be inspired in the hierarchy of courts and the institution as a whole, not
only in this Court alone.

The Supreme Court in Rupa Ashok Hurra v Ashok Hurra clarified the nature of writ
jurisdiction in India and its differences with English law. It noted that there were ‘two types
of writs’ in English Law.34 The first, ‘judicial procedural writs … issued as a matter of

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course’ (a writ of summons, for example), were not in use in India. The second, ‘substantive
writs’ (quo warranto, habeas corpus, mandamus, certiorari, and prohibition), ‘were frequently
resorted to in Indian High Courts and the Supreme Court’. Delving further into the history of
writs in English law, the Court noted that they were ‘discretionary … but the principles for
issuing such writs are well defined’

Who can file a petition under Article 32?

Any person whose right has been violated. It may be a citizen, a juristic person, or sometimes
non-citizens.
The person must have a locus standi, except for in the writ of quo-warranto.
However, PIL’s and Letters are an exception.

Against whom can this be applied?

State.
Does the limitation act apply to writ proceedings?
No. however, if the conduct suggests that the writ has been filed in malafide intention, or if
that appears to the court that the writ has not been filed within appropriate timeframe, it
reserves the right to reject.

MANDAMUS
Mandamus is a Latin word, which means "We Command". Mandamus is an order from a
superior court to a lower court or tribunal or public authority to perform an act, which falls
within its duty. It is issued to secure the performance of public duties and to enforce private
rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a
thing which is a part of his official duty, but, which, he has failed to do, so far. This writ
cannot be claimed as a matter of right. It is the discretionary power of a court to issue such
writs.

● The writ of mandamus can only be granted when there is in the applicant a legal right
to compel the performance
● There must be a corresponding duty
● The writ of mandamus can be granted only in cases where there is a statutory duty
imposed upon the officer concerned, and there is a failure on the part of that officer to
discharge the statutory obligation.
● Thus, writ of mandamus can be issued to public authority to restrain it from acting
under a law which has been declared unconstitutional.

The writ of mandamus cannot be granted in case of following circumstances

● When the duty is merely discretionary

● Against a private individual or any private organization because they are not entrusted
with public duty.

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 ● A writ of mandamus cannot be granted to enforce an obligation arising out of
contract.

Continuing Mandamus

A Mandamus issued to a lower authority in general public interest asking the officer or the
authority to perform its tasks expeditiously for an unstipulated period of time for preventing
miscarriage of justice. It renders the court a supervising and managerial body as regards the
action to which the writ pertains as it would entail keeping the case open for an indefinite
time to supervise the continuous performance of duties by the respondent etc.

The Indian Supreme Court, tip-toeing around the constitutional separation of powers, has
devised the novel writ remedy of ‘continuing mandamus’ to prevent the failure of
constitutional promises. Instead of passing a final judgement that would end the litigation, it
keeps the case pending, entering into a dialogue with the political and administrative wing,
prodding to alter government action, or inaction.

The Supreme Court in the case of Vineet Narain vs. UOI, considering gravity of the
situation adopted the procedure of continuous mandamus rather than issuing writ of
mandamus. It was alleged in the aforementioned case it was alleged that CBI did nothing
about the diary which was seized from the high ranking official and politician containing the
details of the illegal payment made to the alleged terrorist. The allegation of the failure to
perform legal duty was alleged against the CBI.

Can the SC issue Mandamus asking the government to draft/ issue a legislation?
No. it can only direct. Cannot mandate by issuing mandamus.

HABEAS CORPUS

Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court
for the issue of Habeas Corpus. The detention becomes unlawful if a person who is arrested is
not produced before the magistrate within 24 hours of his arrest and he will be entitled to be
released on the writ of habeas corpus.
It is an order by a Court to the detaining authority to produce the arrested person before it so
that it may examine whether the person has been detained lawfully or otherwise. The
detaining authority must give the reason for detention. If the Court is convinced that the
person is illegally detained, it can issue orders for his immediate release.

Who can apply for the writ?

The general rule is that an application can be made by a person who is illegally detained. but
in certain cases, an application of habeas corpus can be made by any person on behalf of the
prisoner, ie, a Friend or a Relatives.

In Sunil Bhatra v. Delhi Administration it has been held that the writ of habeas corpus can
be issued not only for releasing a person from illegal detention but also for protecting
prisoners from the inhuman and barbarous treatment. the dynamic role of judicial remedies

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imports to the habeas corpus writ a versatile vitality and operational utility as bastion of
liberty even within jails.

In ADM Jabalpur v. Shiv Kant Shukla, also known as the habeas corpus case, a
constitutional bench unabashedly declared that under emergency provisions no one could
seek the assistance of any court in India to try and save his liberty, life or limb threatened to
be taken away by the State.
It all started with the ‘the state of UP vs Raj Narain’ verdict of Allahabad high court, where
the court held Indira Gandhi guilty of election malpractices and invalidated her election and
further barred her for 6 years from contesting elections.
While the High court judgment was appealed to SC, Indira Gandhi, faced by
an unprecedented protest from an opposition united under J P Naryanan, invoked article 352
declaring National emergency on the grounds of threat from Internal disturbance.
Censorship muzzled the Press; the opposition was silenced and the common man terrorized.
The government made extensive use of preventive detention, arresting people not because
they have committed any offence, but on the apprehension that they may commit one.
Many cases were filed in the courts against it and 9 High Courts gave judgments that even
during emergency the courts could entertain a writ of habeas corpus filed by a person
challenging his/her detention.
The Government decided to appeal against these decisions to the Supreme Court. It was thus
that the Constitutional bench of five Judges came to be constituted to hear case, dubbed as
A.D.M. Jabalpur vs. Shukla.
Supreme Court applied doctrine of procedure established by law in letter but not in spirit and
overturned the judgement by high courts, declaring that article 32 –the right to approach to
court to defend fundamental rights- remains suspended under emergency.

{Backdrop,
The 42nd Amendment brought during the National Emergency said that the union
government could use article 368 and amend the Constitution as per it's wish and even the
fundamental rights. The 44th amendment seeks to protect the people of India from such an
injustice as the fundamental rights are truly necessary.
In the 44th Amendment, it was made that during emergency under article 352, the
fundamental rights are suspended. But proper safeguards should be provided to the citizens so
that they do not suffer due to abuse of this power. Hence right to life and personal liberty
should exist during emergency.
Also, through he 44th amendment, grounds of declaring emergency were changed. External
aggression replaced internal disturbance.}

QUO WARRANTO

The word Quo-Warranto literally means "by what authority?" It is a writ issued with a view
to restraining a person from acting in a public office to which he is not entitled. The Writ of
quo-warranto is used to prevent illegal assumption of any public office or usurpation of any
public office by anybody.

It involves the usurpation of a public office. The Supreme Court has held that this writ can
only be issued when
● the person holding the public office lacks the eligibility criteria or
● when the appointment is contrary to the statutory rules.

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 The law distinguishes between eligibility and suitability, and the writ of quo warranto is
available when a person who is ineligible is appointed to a public office.

There is a major distinction between quo warranto and the other substantive writs. This
distinction lies in the requirement of standing to sue. The concept of locus standi is not
applicable to the petitioner approaching the court for issuance of a writ of quo warranto.

What about the actions that he has done within that period?

a) It is impossible to invalidate all actions and decision that he has taken. It isn’t
feasible.
b) His work is not in question, but his office. Therefore, there is no problem with the
functions he is discharging. He discharged them because he was in that office up till
now.
c) If in case, there is, the law will punish him for his duties discharged.

CERTIORARI

Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme
Court to some inferior court or tribunal to transfer the matter to it or to some other superior
authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court
or any High Court for quashing the order already passed by an inferior court.

One of the fundamental principles in regard to the issuing of a writ of certiorari is that the
writ can be availed of only to remove or to adjudicate upon the validity of judicial acts. The
expression judicial acts includes the exercise of quasi-judicial functions by administrative
bodies or authorities or persons obliged to exercise such functions and is used in contrast
which are purely ministerial acts.

It can be issued when –

1) The authority has either acted in excess of its jurisdiction/ without any jurisdiction.
2) When a decision has been taken by flagrantly violating the rules/ legal norms.
3) Where there is no procedure mentioned, acted in violation of the procedure of natural
justice.

The decision should already have been declared/ final decision.

This writ it merely supervisory, not appellate. The higher court then cannot then take the
decision in the matter on its own, will have to follow the procedure.

While the prohibition is available at the earlier stage, Certiorari is available on similar
grounds at a later stage. It can also be said that the Writ of prohibition is available during the
tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after
the order or decision has been announced.

PROHIBITION

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This
Writ is issued when a lower court or a body tries to transgress the limits or powers vested in

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it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform
an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc.
come to a stop.
The Writ of prohibition is issued, prohibiting to continue proceedings in a particular case,
where it has no legal jurisdiction of trial. Writ of prohibition is, thus, not available against a
public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue
this Writ only where a fundamental right is affected.

XVIII. ARTICLE 32

B P Gajendragadkara former chief justice of India, has observed, that it it is "a very
distinguishing feature of the Constitution". According to him, it is the "cornerstone of the
democratic edifice raised by the Constitution". This observation is true as far as it goes.
Article 32 has four parts:

(i) First, under Article 32(i), an aggrieved person can move the Supreme Court for a legal
remedy in case of an alleged infringent of his Fundamental Right. In such case, it is the
constitutional duty of the apex court to look into the matter and to provide necessary redress
to the affected person.
(ii) Secondly, in such case, the Supreme Court protects the fundamental rights with the help
of the constitutional weapon of 'writs'. So, when an aggrieved person eagerly moves the
Supreme Court under Article 32, it has to protect the rights by issuing an appropriate writ for
the resto- ration and maintenance of the rights unduly curtailed by any other person or
authority.

(iii) Thirdly, the parliament may, by law, empower any other court with such authority so that
it too can act as the protector and guarantor of such rights. As it is often observed, rights
without remedy is a meaningless formality.

(iv) Fourthly, clause (4) of the Constitution, however, mentions an exception. When the
president proclaims an emergency under Article 352, the provision for guaranteed remedy of
fundamental rights remains suspended. In such times, the president may, make a separate
proclamation by which Article 32 remains suspended In other words, an individual cannot,
during such emergency, move the Supreme Court, even if he feels that he has been unduly
deprived of the Fundamental Right guaranteed by the Constitution.

IMPOTANCE
Heart is the locus of feelings and intuitions. Similarly, Article 32 i.e. the Right to
constitutional remedies which comes under the Fundamental Rights of the Indian constitution
gives the feeling to its citizens that they are secure and protected by the law.
As Soul is the actuating cause of an individual’s life, Article 32 is the actuating cause of our
constitution. It is a proof of our democracy.
Only a mere declaration of fundamental rights in the constitution is meaningless ,useless and
worthless if there is the absence of an effective machinery for their enforcement, if and when
they are violated. Hence, Article 32 confers the right to remedies for the enforcement of the
fundamental rights of an aggrieved citizen. This makes the fundamental rights, the base of the
constitution real as the right to get fundamental rights is protected in itself a fundamental
right.

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So, DR B R Ambedkar called Article 32 as the most important article of the constitution ,
without which this constitution would be a nullity. It is the very soul of the constitution and
the very heart of it.
The supreme court has also ruled that Article 32 is a basic feature of the constitution and
hence it can't be abridged or taken away even by way of an amendment to the constitution.
The defender of the rights is the supreme court of India. It can issue directions, orders or
writs like habeas corpus, mandamus, prohibition, certiorary and quo- warranto etc.

XIX. PUBLIC INTEREST LITIGATION

DEFINITION :PIL means a legal action initiated in a court of law for the enforcement of
public interest or general interest in which the public or class of the community have
pecuniary interest or some interest by which their legal rights or liabilities are affected.

▪ The term PIL originated in U.S., also called Social Action Litigation.
▪ Pioneers of PIL in India were Justice P.N. Bhagwati and Justice Krishna Iyer
▪ The seeds were sown in India by Justice Krishna Iyer, in 1976 in Mumbai Kamagar
Sabha v. Abdul Bhai Faizullabhai.
▪ First reported case in 1979 was Hussainara Khatoon v. State of Bihar.
▪ Liberalization of the rule “locus standi”. The purpose of the same is to ensure that the
interests which constitute the core of the society are taken care of. Relaxation for
those who are disadvantaged, to advance their basic rights.
▪ Not defined in the constitution of India or any legislation or statute . It is interpreted
by judiciary and developed through Judicial Activism.
▪ In consonance with the principles enshrined in the Article 39A .
▪ Letters petitions also entertained as PIL.
▪ Emerged after the emergency was declared and cases like ADM Jabalpur tarnished
the image of the Judiciary.
▪ Adversarial Litigation System – A dispute is brought up; court hears it and renders the
decision. Minimum interference.
▪ Inquisitorial Litigation System – Relaxation of this rule. SC acts as an investigating
authority, gives guidelines, playing a pro-active role to protect rights.

HUSSAINARA KHATOON V. STATE OF BIHAR

⚫ FACTS – A large no. of people were behind prison bars for years awaiting trial in
courts of law. The offence, they were charged with were trivial, which even if
proved,
would not warrant punishment for more than a few months, yet they remained in the
jail for 8-10 years without even commencement of their trials. The petition was not
filed by any single person rather it was filed by various prisoners of bihar jail. The
court ordered immediate release of these under trial prisoners.

⚫ RULING – Fairness under article 21 is impaired where procedural law does not
provide speedy trial of accused, when he is indigent, if an under trial prisoner is kept
in jail for a period longer than the maximum term of imprisonment which could have
been awarded on his conviction and if he is provided free legal aid ,where he is too
poor to engage lawyer.

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MUMBAI KAMAGAR SABHA V. ABDUL BHAI

⚫ FACTS-The hardware merchants of Nag Devi, made of sterner stuff, in the year
1965, abruptly declined to pay the goodwill sums of the spread-out past and the
frustrated workmen frowned on this stoppage by setting up a right to bonus
averring considerable profits for the Industry. The Tribunal did not enter the
merits of the claim but dismissed it in limine on the score that the demand for
bonus was barred by res judicata the arbitral board's decision negativing the
bonus for 1965 being the basis of this holding.

⚫ RULING- The traditional rule that only a person who has suffered injury by
reason of violation of his legal right or interest is entiteled to seek judicial redress
had its origin in private law. Its application in public law has recently been
liberalised, by enlarging the concept of a ‘person aggrieved’, to include any
public spirited individual or association.

S.P. GUPTA V. UNION OF INDIA

Justice P.N. Bhagawati articulated the concept of PIL as follows:-

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of

persons by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person or determinate
class of persons by reasons of poverty, helplessness or disability or socially or economically
disadvantaged position unable to approach the court for relief, any member of public can
maintain an application for an appropriate direction, order or writ in the High Court under
Article 226 and in case any breach of fundamental rights of such persons or determinate class
of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal
injury caused to such person or determinate class of persons.”

FILING OF A PIL
▪ Any Indian, public spirited citizen, which can be an individual, any group or NGO,
can file a PIL in India, against any government authority not any private party though
private person can be included as respondent after concerned of state authority,
provided it is for public cause or for the interest of public at large.
▪ Not necessarily can a PIL be filed only by aggrieved party or victim himself . Even
judges can file PIL “Suo moto”.
▪ A court fee of Rs.50, per respondent i.e. each number of opposition party, has to be
affixed on the petition.

Jurisdiction of courts
▪ In supreme court of India under art.32 of the constitution
▪ In any high court under article 226 of the constitution
▪ In the court of magistrate under section 133 of Cr.P.C.

RATIONALE BEHIND PIL

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 ⚫ Social justice wants liberal judicial review administrative action.
⚫ Exercise of state power to eradicate corruption may result in unrelated interference
with individual rights.
⚫ Restrictive rules of standing are antithesis to a healthy system of administrative
action.
⚫ Activism is essential for participation public justice.
⚫ To ensure participatory democracy
SHIFTING PERSPECTIVE OF PIL IN INIDA

4 stages –

1) PRISION REFORMS STAGE

Initially, the tool was used to put an end to custodial violence and torture. In Sunil
Batra vs. Delhi Administration judgment was given by a constitutional bench
preserving the Fundamental Rights of the prisoners by invoking Article 14,
19 and 21 of the Constitution for guarding against the wretched environment of the
jail. A letter from a prisoner was entertained as writ petition.

In Hussainara Khatoon vs. Home Secretary, Bihar, the Supreme Court has held
that it is the Constitutional right of every accused person who is unable to engage a
lawyer and secure legal services on account of reasons such as poverty, indigence or
incommunicado situation, to have free legal services provided to him by the state and
the state is under Constitutional duty to provide a lawyer to such person if the needs
of justice so require. If free legal services are not provided the trial itself may be
vitiated as contravening the Article 21. The court ordered immediate release of 40,000
poisoners.

The case of Anil Yadav v. State of Bihar, exposed the brutalities of the Police.
Newspaper report revealed that about 33 suspected criminals were blinded by the
police in Bihar by putting the acid into their eyes. Through interim orders Supreme
Court directed the State government to bring the blinded men to Delhi for medical
treatment. It also ordered speedy prosecution of the guilty policemen. The court also
read right to free legal aid as a fundamental right of every accused.

COMPENSATORY JURISPRUDENCE
The accused has already served a period of time as an undertrial prisoner more than what he
would got if convicted. The accused is generally incapacitated to approach for remedy. The
court said that they owe an apology to the prisoner and is ashamed of what the State had
done.

2) EMERGENCE OF SOCIO-ECONOMIC RIGHTS

Certain socio-economic rights are essential but are not enforceable as are a part of the
DPSP’s. For example- Right to Education (earlier) or Equal Pay for Equal Work.

In PUCL v. Union of India, a deliberately created food shortage was addressed. The
Supreme Court not merely issued directions for the implementation of centrally
sponsored poverty alleviation programme but went to the extent of appointing an

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 expert committee to monitor the compliance of court orders within fixed time frame.
In this petition, right to food was for the first time articulated as a guaranteed
fundamental right. The writ of Continuing Mandamus was issued.

In the cases of Mohini Jain and Unni Krishnan, the court protected the Right to
Education. to life.8 The directive principle relating to right to education in article 45
has now become a fundamental right after a long struggle of the child right activists,
educationists and social activists espousing the right to education, leading to an
amendment in the Constitution in 2002 inserting article 21 A in the Constitution
declaring right to primary education for children up to the age of 14 years as a
fundamental right. The right to elementary education has become a reality by the
Right to Free and Compulsory Education Act, 2009.

3) GOVERNANCE ISSUES
Issues like corruption and inconsistencies in administrative policies were addressed.
Over the years, the focus of PIL cases has drifted from issues of human rights to the
issues of public accountability and governance. state largesse. People raise issues of
governance before the courts as other avenues of redress of grievances have become
ineffective and unreliable.
This PIL movement, often with the specific charge that it has caused the judiciary to
usurp the powers assigned to the executive and legislature and thus disturbing the
doctrine of separation of powers. The courts have given directions as to how blood
should be collected, stored and given for transfusion free from hazards, how to impart
knowledge about environmental protection, how the children of prostitutes should be
educated, how the CBI should be insulated from extraneous influence while
conducting investigation of corruption against persons holding high offices, what
procedure should be adopted and what precautions should be taken while allowing
Indian children to be adopted by foreign adoptive parents, what guidelines should be
followed to prevent sexual harassment of women at workplace and how to prevent
noise pollution by loudspeakers and fire crackers, how to design the reservation and
educational policy and so on. On December 10, 2007, the Supreme Court came down
heavily on judicial activism, warning judges that they must exercise restraint or else
politicians may curtail their independence.
The bench comprising A.K. Mathur and Markandey Katju JJ had taken strong
exception to Delhi High Court's intervention in cases like nursery admissions, free
beds for the poor in hospitals, misuse of ambulances, begging in public, blue line
buses, unauthorized construction, monkey menace, road accidents, etc . According to
the court, these were matters pertaining exclusively to the executive and legislative
domain. If there is a law, judges can certainly enforce it, but they cannot create a law
and seek to enforce it. Judges must know their limits and must not try to run the
government and act like emperors.
The court's growing engagement with issues of governance has encouraged people to
invoke PIL jurisdiction on any conceivable matter of "public interest'. Consequently,
the concept of justiciability has been expanded today to such an extent that one can
invoke article 32 jurisdiction (which is intended to be used to enforce fundamental
rights) to challenge the constitutional validity of a law setting up private universities,
a law dealing with deportation of illegal migrants, the legality of the dissolution of
state legislative assembly under President's rule, questioning the induction of tainted
ministers in the union cabinet, or asking the removal of a bureaucrat with tainted

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 reputation. PIL has been filed for better service conditions of subordinate judiciary,
for enforcing ban on smoking in public place, for controlling noise pollution during
festivities, for checking ragging in the universities, for electoral reforms.

In Vineet Narayan v. Union of India, fight against corruption in the was fought.
Considering gravity of the situation, the SC adopted the procedure of continuous
mandamus rather than issuing writ of mandamus. It was alleged in the aforementioned
case it was alleged that CBI did nothing about the diary which was seized from the
high ranking official and politician containing the details of the illegal payment made
to the alleged terrorist. The allegation of the failure to perform legal duty was alleged
against the CBI.

4) ENVIRONMENT
The courts then started playing a pro-active role to protect the environment.
In M.C. Mehta v. Union of India,
Oleum Gas Leak:
The articles of the Indian Constitution under which the petitioners moved the Supreme Court
were Article 21, Article 32 and an extension of Article 12. Chief Justice Bhagwati, presiding
over the case replied by saying that the hearing for the case concluded on the 15th December
1986, and the verdict was being delivered on the 19th December 1986, just after 4 days due
to the lack of time and considering the urgency it was not going to go into the details of
definition of state and non-state institutions under Article 12, but since Shriram Food and
Fertilizers was involved in the manufacture of commodities essential to the public life, and
supplemented the state industries in doing so, it enjoyed all the benefits and liabilities which
comes under Article 12, Chief Justice Bhagwati called Shriram Food and Fertilizers as a
“Public Character”. The Supreme Court also explicatively said that any industry, be it private
or public, which engages in the production of goods essential to the public (infrastructure)
sector was liable under Article 21. It also stated that Shriram had been recipients of large
government grants for their manufacture and hence bore the same responsibility as well.
Considering that Shriram Food and Fertilizers was in the business of manufacture and
handling to hazardous substances, injurious to public health the onus of prevention and
caution should have been entirely upon them .The court decided apt to use the concept
absolute liability against Shriram Food and Fertilizers.
Ganga Pollution case:
In 1985, activist-advocate M C Mehta filed a writ petition in the Supreme Court to highlight
the pollution of the Ganga by industries and municipalities located on its banks. In a historic
judgement in 1987, the court ordered the closure of a number of polluting tanneries near
Kanpur. Justice E S Venkataramiah, in his judgement, observed: "Just like an industry which
cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot
set up a primary treatment plant cannot be permitted to continue to be in existence."

In Sachidanand Pandey vs. State of West Bengal,

The main problem was to balance development and environment. development. The most
striking example is the conflict situation arising out of the Sardar Sarovar Dam.

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In Narmada Bachao Andolan v. Union of India, the court virtually ignored the impact of
continued construction of Sardar Sarovar Project dam on thousands of tribal people of
Narmada valley who had been displaced without adequate rehabilitation and resettlement
options when it ruled that the displacement of tribal and other persons would not per se result
in the violation of their fundamental or other rights. The court on a majority opinion, on the
other hand, venerated the virtues of big dam projects for bringing green revolution in the
country. The Supreme Court and Narmada Tribunal Award ordered that all displaced persons
should be rehabilitate and resettled fully at least six months prior to raising the dam's height.
In May, 2006, the Delhi High Court banned the cycle rickshaws in a busy market in Delhi
rendering hundreds of rikshaw pullers jobless.
In recent times, the attitude of the courts has been to show favour to 'development' over the
rights of the oustees or the environment.
The Supreme Court ruled that no stay order should be granted with respect to public projects
or schemes or economic policies. A person cannot by way of PIL challenge illegalities,
perversions and corruption committed by the executive in the implementation of such policies
unless he/she was personally aggrieved by such economic or developmental measures. The
Supreme Court has virtually struck a deathblow to PIL in cases involving economic reforms
or developmental.
CRITISISM OF PIL
1) The SC is issuing a lot of guidelines for regulation lately (Vishakha v. State of
Rajasthan). This is actually legislating, and beyond what is constitutionally
encouraged. It disturbs the basic structure and separation of powers. Law making is
not the sphere of the judiciary. These guidelines under Article 141 have a binding
effect on the territory of India. And therefore, once down, it is difficult to undo.
2) So many examples to show that PIL’s have been misused.
3) It’s pro-poor approach no longer stays. Examples like – Declare the queen
unconstitutional, Aishwarya Rai is a manglik, we should have a great wall of India,
Ask Muslims to go back to Pakistan, etc. have proven this.
4) The people who actually suffer are no where in the picture, they are not consulted.
Anyone goes to the court and says he is public spirited. Locus standi has been relaxed
to such an extent that the concept of public spirit has been defeated.
5) It adds to the burden of the courts and wastes time and resources.
6) It has become Publicity Interest Litigation, as people are filing it to gain popularity
and in furtherance of their own interests.

XX. RELATION BETWEEN FR AND DPSP

Fundamental Rights and Directive Principles of State Policy as enshrined in the Constitution
of India together comprise the human rights of an individual. The Motilal Committee Report
clearly envisaged inalienable rights to be accorded to the individual. These undeniable
rights were preserved in Part III of the Indian Constitution.
The concept of Directive Principles embedded in the Constitution imposed a duty upon the
state to not only acknowledge the Fundamental Rights of an individual but also to achieve
certain socio-economic goals. Directive Principles were enumerated in Part IV of the

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Constitution. Parts III and IV of the Indian Constitution were once described by CJ.
Chandrachud to be the conscience of the Constitution.
However, there has perennially been a controversy surrounding the constitutional relationship
between Fundamental Rights and Directive Principles, as there would be a conflict between
the interest of an individual at the micro level and the community’s benefit at a macro level.

FUNDAMENTAL RIGHTS VIS-À-VIS DIRECTIVE PRINCIPLES

The primary distinction between the Fundamental Rights and Directive Principles as
visualized by the drafters of the Constitution was with regards to the question of
enforceability. Part III of the Constitution was enforceable against the state but Article 37
expressly provided that Part IV was not enforceable in a court.
Earlier Supreme Court decisions attributed paramount importance to Fundamental Rights. In
the landmark judgment of State of Madras vs. Srimathi Champakam which subsequently
led to the 1st Constitutional Amendment, Justice Das stated that directive principles were
expressly made unenforceable by Article 37 and therefore could not override the fundamental
rights found in Part III, which were enforceable pursuant to Article 32. The court opined that
fundamental rights were sacrosanct and could not be curtailed by Directive Principles and
asserted that the directive principles although important in their own respect were required to
adhere to the Fundamental Rights and in the case of conflict Part III would prevail over Part
IV.
This decision of the apex court were subject to much criticism due to the excess importance
endorsed to Fundamental Rights resulting in the complete neglect
of principles that promoted socio-economic change and development.
The legislature was disappointed with the judiciary’s interpretation and believed that it was
contradictory to what the framers of the Constitution believed. Pandit Nehru in his speeches
in relation to the 1st and 4th Constitutional Amendments expressly stated his disappointment.
He stated, “There is difficulty when the Courts of the Land have to consider these matters and
lay more stress on the Fundamental Rights than on the Directive Principles. The result is that
the whole purpose behind the Constitution which was meant to be a dynamic Constitution is
somewhat hampered and hindered by the static element being emphasized a little more than
the dynamic element.”
It is therefore evident that the legislature believed that Fundamental Rights were to assist the
Directive Principles and not vice-versa.
This subsequently led to a transformation in the interpretation of the
relationship between Fundamental Rights and Directive Principles to be more inclusive and
harmonious. In Chandra Bhawan Boarding and Lodging Bangalore v State of Mysore,
the Minimum Wages Act, 1948 was challenged for conferring unrestricted, unfettered and
arbitrary power on the state in determining the minimum wages. The state argued that it was
obligated to provide for minimum wages in accordance with the Directive Principles. The
court held that the provisions of the Constitution were created to facilitate progress, as
intended by the Preamble and it would be fallacious to assume that the Constitution provided
only for rights and no duties.

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Furthermore, it was stated that although Part III encompasses Fundamental Rights, Part IV
was essential in the governance of the country and were therefore supplementary to each
other.
This view was reaffirmed in Kesavanda Bharati v State of Kerala where it was held that
the directive principles were in harmony with the country’s aims and objectives and the
fundamental rights could be amended to meet the needs of the hour implying that Parts III
and IV needed to be harmoniously construed.
Minerva Mills Ltd. v Union of India, the court believed that the harmonious relation
between Fundamental Rights and Directive Principles was a basic feature of the Constitution.
Reading these provisions independently would be impossible, as that would render them
incomplete and thereby inaccessible. However, this was not settled as law yet and there was
another hiccup in the subsequent judgments.
In Sanjeev Coke Mfg. Co. v M/s Bharat Coking Coal Ltd., the Supreme Court held that
the part of the Minerva Mills judgment that dealt with Article 31 C of the Constitution was
merely obiter dictum and therefore not binding. The court thus granted greater importance to
Directive Principles than Fundamental Rights in accordance with Article 31C that provided
for the same.
The Sanjeev Coke judgment resulted in a divergence of opinion, which was ultimately settled
in State of Tamil Nadu v L. Abu Kavier Bai. The court referred to the decision of
Constituent Assembly to create two parts for these core constitutional concepts. It was stated
that the purpose of the two distinct chapters was to grant the Government enough latitude and
flexibility to implement the principles depending on the time and circumstances. The court
therefore considered the Minerva Mills case precedent and recommended a harmonious
construction of the two parts in public interest and to promote social welfare. This view has
been consistently adopted ever since and has been endorsed in Mohini Jain v State of
Karnataka and Unni Krishnan v State of Andhra Pradesh (RTE Cases). It can therefore
be construed to be well settled that a harmonious interpretation of Fundamental Rights and
Directive Principles is quintessential in ensuring social welfare and the apex court is
promoting the same view after much deliberation.
Although it appears to be well established that there is a need for balance and unanimity in
interpreting Fundamental Rights and Directive Principles, this debate is far from over. The
courts off late have played a proactive role in facilitating socio-economic development at a
macro level which requires compromise on a micro level. Therefore, in light of the benefit of
the community at large, the Directive Principles may be used to determine the extent
of public interest to limit the scope of Fundamental Rights.

XXI. FUNDAMENTAL DUTIES

The 42nd Amendment Act, 1976 added a Chapter IV-A which consist of only one Article 51-
A which dealt with a Code of Ten Fundamental Duties for citizens. Fundamental duties
are intended to serve as a constant reminder to every citizen that while the constitution
specifically conferred on them certain Fundamental Rights, it also requires citizens to observe
certain basic norms of democratic conduct and democratic behaviour because rights and
duties are co-relative.
Article 51-A Says that it shall be the duty of every citizen of India-

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1. to abide by the constitution and respect its ideal and institutions;
2. to cherish and follow the noble ideals which inspired our national struggle for freedom;
3. to uphold and protect the sovereignty, unity and integrity of India;
4. to defend the country and render national service when called upon to do so;
5. to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional diversities, to renounce practices derogatory to
the dignity of women;
6. to value and preserve the rich heritage of our composite culture;
7. to protect and improve the natural environment including forests, lakes, rivers, and wild-
life and to have compassion for living creatures;
8. to develop the scientific temper, humanism and the spirit of inquiry and reform;
9. to safeguard public property and to abjure violence;
10. to strive towards excellence in all spheres of individual and collective activity, so that the
nation constantly rises to higher levels of endeavor and achievement.
11. who is a parent or guardian , to provide opportunities for education to his child, or as the
case may be, ward between the age of six and fourteen years

NEED FOR FUNDAMENTAL DUTIES

India is a country where people belonging to different castes, creed, religion, sects etc. live
together and in order to maintain harmony and peace and to encourage the feeling of
brotherhood and oneness among them following the Fundamental Duties on their part plays a
vital role in upholding and protecting the sovereignty, unity and integrity of our country
which is of inevitable importance. The citizens should know that rights come with duties. The
FD are intended to regulate behaviour and to inspire citizens to strive towards excellence.
IMPORTANT POINTS
● The Fundamental Duties of citizens were added to the Constitution by the 42nd
Amendment in 1976, upon the recommendations of the Swaran Singh Committee that
was constituted by the government earlier that year.
● Fundamental duties are applicable only to citizens and not to the aliens.
● India borrowed the concept of Fundamental Duties from the USSR.
● Out of the ten clauses in article 51A, six are positive duties and the other five are
negative duties. Clauses (b), (d), (f), (h), (j) and (k) require the citizens to perform
these Fundamental Duties actively.
● The 11th FD was added by the 86th Amendment ACT in 2002.
● Right To Work is still not provided by the Indian Constitution.
● It is suggested that a few more Fundamental Duties, namely, duty to vote in an
election, duty to pay taxes and duty to resist injustice may be added in due course to
article 51A in Part IVA of the Constitution.

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 ● It is no longer correct to say that Fundamental Duties enshrined in article 51A are not
enforceable to ensure their implementation and are a mere reminder. Fundamental
Duties have the element of compulsion regarding compliance.
● Available Legal Provisions: The Verma Committee was conscious of the fact that any
non-operationalization of Fundamental Duties might not necessarily be the lack of
concern or non-availability of legal and other enforceable provisions, but it was more
a case of lacuna in the strategy of implementation. It, therefore, thought it appropriate
to list in brief some of the legal provisions already available in regard to enforcement
of Fundamental Duties. A summary of such legal provisions is given below:
● In order to ensure that no disrespect is shown to the National Flag,
Constitution of India and the National anthem, the Prevention of Insults to
National Honour Act, 1971 was enacted.
● The Emblems and Names (Prevention of Improper Use) Act 1950 was enacted
soon after independence, inter alia, to prevent improper use of the National
Flag and the National Anthem.
● In order to ensure that the correct usage regarding the display of the National
Flag is well understood, the instructions issued from time to time on the
subject have been embodied in Flag Code of India, which has been made
available to all the State Governments, and Union territory Administration
(UTs).
CRITISISM
Some of the duties are vague and terms used therein are complex which even a highly
educated man would find difficult to grasp like it is difficult to identify the noble ideas that
inspired our national struggle for freedom.
Some of the duties clash with religious principles of some religious sects in the country. In a
Judgement the Supreme Court held that no person can be forced to join the singing of the
National Anthem, if he has genuine religious obligations which place religious belief above
the patriotism.
There is no specific provision nor any sanction as to implementation and enforcement of
Fundamental Duties.

Right of Silence at the time of singing of the Indian National Anthem

In the Bijoe Emmanuel v. State of Kerala popularly known as the National Anthem case, a
circular issued by the Education Department of the Kerla State Government required that the
start of the classes in every school on every day should be preceded by an assembly wherein
the whole school should join in collectively singing the National Anthem. The three children
Bijoe, Binu Mol and Bindu Emmanuel, are the faithful of Jehovah's Witnesses were expelled
from school because they were not joining in the daily singing of the national anthem in the
school. They attended the school daily, during the morning Assembly, when the National
Anthem 'Jana Gana Mana' was sung, they stood respectfully but they did not sing. They did
not sing because, according to them, it was against the tenets of their religious faith to sing
the National Anthem not the words or the thoughts of the Anthem. They said that their elder
sisters who attended the same school earlier had done all these several years. The children
filed a Writ Petition against expulsion from the school in the Kerla High Court seeking an
order restraining the authorities from preventing them from attending School.

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 First a learned single Judge and then a Division Bench rejected the prayer of the children.
Then they approached the Supreme Court of India under special leave petition under Article
136 of the Constitution of India. “We may at once say that there is no provision of law which
obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the
National Anthem if a person who stands up respectfully when the National Anthem is sung
does not join the singing. It is true Article 51A(a) of the Constitution enjoins a duty on every
citizen of India" to abide by the constitution and respect its ideals and institutions, the
National Flag and the National Anthem Proper respect is shown to the National Anthem by
standing up when the National Anthem is sung. It will not be right to say that disrespect is
shown by not joining in the singing
When judged in the context of Article 19(1)(a) the singing, they had to be in consonance
with the requirements of Article 19(2) which defines how and what kind of restrictions can be
imposed on the right of speech and expression which had become the right not to speak in the
facts of the present case. First, the right can be restricted only by law whereas the Court
found that the circulars did not have any sanction of law. Second, the Court found that the
circulars were not related to any of the permissible grounds of restrictions mentioned in
Article 19(2). Last, it was on its face unreasonable to expel the students who were well
behaved, who showed due respect to the national anthem by keeping themselves standing
when it was being sung, but only refused to join in the singing purely because of sincere
conscientious objection.

XXII. ARTICLE 23
23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited
and any contravention of this provision shall be an offence punishable in accordance with law
(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purpose, and in imposing such service the State shall not make any discrimination on
grounds only of religion, race, caste or class or any of them

The language of the Article is general in nature and it covers private persons as well. Thus,
the violation of Article 23 by a private person would attract the constitutional sanctions.

XXIII. ARTICLE 24
24. Prohibition of employment of children in factories, etc No child below the age of fourteen
years shall be employed to work in any factory or mine or engaged in any other hazardous
employment Provided that nothing in this sub clause shall authorise the detention of any
person beyond the maximum period prescribed by any law made by Parliament under sub
clause (b) of clause ( 7 ); or such person is detained in accordance with the provisions of any
law made by Parliament under sub clauses (a) and (b) of clause (7).

ROLE OF JUDICIARY IN LABOUR

RIGHTS CHILD RIGHTS
The Supreme Court has issued elaborate guidelines to prevent child labour. These include a
prohibition of child labour in hazardous employment. The court further directed that a child

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labour rehabilitation welfare fund shall be set up in which offending employer should deposit
Rs. 20,000. Further, in place of the child, an adult member of such child should be given
employment. The Supreme Court has further issued directions as to education, health and
nutrition and child labour. It must be noted that a prohibition U/A 24 equally applies to
private persons and there is no good reason to allow them to bypass it by adopting a hyper-
technical approach.
In Bandhua Mukti Morcha v. Union of India, carpet industries in Uttar Pradesh employed
children, under the age of 14, where they were “being treated as slaves” and were “subjected
to physical torture.” This writ petition was filed in the Supreme Court under Article 32 as a
public interest matter.
Recognizing that child labour could not be banned in one sweep, the Court held that together
with phasing out child labour, alternatives for the child should be evolved including
providing education, health care, nutrient food, shelter and other means of livelihood with
self-respect. It directed the Government of India to establish policies, to progressively stop
employment of children under the age of 14. The Court stated that the policies should provide
for: “Compulsory education to all children either by the industries itself or in co-ordination
with it by the State Government to the children employed in the factories, mine or any other
industry, organized or unorganized labour with such timings as is convenient to impart
compulsory education, facilities for secondary, vocational profession and higher education;
Apart from education, periodical health check-up; Nutrient food etc.
In M.C. Mehta v. State of Tamil Nadu, the Petitioner was an individual concerned about
the high rate of employment of children in the Match factories of Tamil Nadu. He contended
that such employment was hazardous and unconstitutional. the court said that it is poverty
which compels children to work, and though legislations are there, implementation is poor.
The Court issued certain guidelines in this regard to be followed by the Government -
Identification of the hazardous industries in which child labour is common; Provision of
alternative employment, and in cases where it is not possible, to provide the family with a
sum of Rs 25,000 each month, per child. This employment or payment would be discontinued
if the child was not sent for education; Where non-hazardous jobs are concerned, the working
hours of the child would be not more than 6 hours a day, and would receive education for two
hours a day. The cost of education was to be borne by the employer.

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