Constitutional law

Powers, governance of all the 3 govt bodies

Supreme law of land
The purpose of having a Constitution is to have a frame-work of government which is likely to
endure through the changes of a nation.

Constitutionalism
● Limitations on the powers of the govt.
● Constitutionalism recognizes the need for govt but also insists upon the limitations being
placed upon the governmental powers
● Constitutionalism is the antithesis of arbitrary powers
● Limited govt.
● The Constitution ought not merely to confer powers on the various organs of the
government, but also seek to restrain those powers. Constitutionalism recognises the
need for government but insists upon limitations being placed upon governmental
powers. Constitutionalism envisages checks and balances and putting the powers of the
legislature and the executive under some restraints and not making them uncontrolled
and arbitrary.

Features of constitution that show constitutionalism

● Independent judiciary
● Judicial review
● Separation of powers
● Written constitution
Rule of law
● Expounded by A.V. Dicey
● State is governed by law and not by the ruler
● King is not the law and law the king

3 pillars of rule of law

● Absence of arbitrary powers - no man is above law including the state, punishment
only in accordance with the law of the land and not arbitrarily
● Equality before law - all are equal before law
● Individual liberties - can be equated to the concept of fundamental rights in our
constitution. Individual liberties shall be safeguarded by the state.

Rule of law connotes a higher kind of law which is reasonable and non-discriminatory

Features in the indian const. that promotes rule of law

Democratic head
Art. 13 right to equality
Top 3 features that show constitutionalism
ADM Jabalpur v Shivkant Shukla(1979) 2 scc 521 - suspension of fundamental rights during
emergency
“Even in the absence of article 21 in the constitution, the state has got no power to deprive a
person of life and liberty without the authority of law. Without such sanctity of life and liberty, the
distinction between a lawless society and one governed by laws would cease to have any
meaning. Rule of law is now the accepted norm of all civilized societies”

Amendment 44th- all fundamental rights except article 21 can be suspended

Salient features of the constitution of India

● Lengthiest written constitution in the world
❖ Prev - 395 articles, 22 parts, 8 schedules
❖ Now- 448 articles, 25 parts, 12 schedules

Establishment of the Sovereign, Socialist, Secular, Democratic Republic

● Sovereign - no dependent on any external authority
● Socialist - 42nd amendment 1976, equality and welfare of the people
● D.S. Nakara v UOI 1983 - socialism under the Indian Constitution intends to provide a
decent standard of living to the working class and aims to provide security from cradle to
grave.

Secularism
● State has no official religion
● State treats all religions equally
● State is concerned only about the relation between man and man and not man and god
● S.R. Bommai v UOI (1994) - secularism is a part of basic structure of the indian
constitution

Democracy
● Govt derives its authority from the will of the people

Republic
● Head of the state is elected
● Indirect elections in india

Parliamentary form of Government

● Taken from the british
● President is nominal/constitutional head of the state
● Real executive powers lie with the prime minister and council of ministers
● Government shall be responsible to the legislature (lok sabha)
● Legislature can dethrone the government by passing the no confidence motion

A unique blend of rigidity and flexibility

● Presidential form of government
 ● Separation of powers
● Article 368 - amending provisions

3 types of amendments:-
1) Simple majority - majority of members present of members (51%)
2) Special majority - more than 50% of the house must be present and ⅔ strength of the
number of members present
3) Absolute majority - Special majority + ratification by more than half of the states

Fundamental Rights
● Negative - prohibition on the state - It is the duty of the state to protect the FR
● State cannot make any law or act in a way that violates FR
● Judicial review checks the state

DPSP
● Guidelines to the state that the state shall incorporate these principles to achieve welfare
state
● Not justiciable - not forcible by nature
● Positive in nature

Fundamental Duties
● Part 4A (article 51A)
● 11 duties
● Inserted through the 42nd constitutional amendment act 1976 - first 10 duties
● 11th duty was added through the 86th amendment 2002 - right to education
● To ensure that people certain basic democratic code of conduct and behaviour
● Adopted from the USSR constitution

A federation with a strong centralizing tendency

● India is a quasi-federal state (seems to be a federal system)
● Referring to emergency provisions 352-360
● During emergency, it turns into a unitary system
● Reasons why india becomes unitary during a emergency -
1) During an emergency, the center can direct a state as to the manner in which the
state govt should exercise their powers
2) During an emergency, state list matters can be decided by center
3) During an emergency, the financial arrangements between the state and center
can be altered by the center

Adult suffrage - right to vote to all citizens

An independent judiciary
● guardian of the constitution
● power of judicial review
 ❖ Kesavananda Bharati v State of Kerala (AIR 1973) - judicial review has become
an integral part of our constitutional system as it grants power to high courts and
supreme court to decide about the constitutional validity of the provisions of
statutes
❖ Taken from USA, Marbury Vs Madison
❖ L Chandrakumar V UOI (AIR 1997) - judicial review is a part of the basic
structure of the constitution
Single citizenship
● article 5-11
Preamble of the Constitution
● To set down the objectives of the constitutions
● A preface to the constitution
● Helps in depicting the legislative intent
● In Re Berubari (AIR 1960) - the preamble is a key to open the mind of the makers and
shows the general purpose for which several provisions are made in the constitution.
Preamble is not the part of the constitution as we cannot draw any rights or limitations
from it. Preamble can be resorted to when there is any ambiguity in the statute. If the
terms used in the constitution are ambiguous or are capable of giving two meanings,
then for interpreting the same some assistance can be taken from the
objectives,
enshrined in the preamble, and the construction which fits the preamble shall be
preferred.
● In Kesavananda Bharati vs State of Kerala (AIR 1973) - the supreme court held that
preamble is an integral part of our constitution. It seems that the preamble of our
constitution is of extreme importance and the constitution shall be read and interpreted
in the light of the grand and noble vision expressed in the preamble. It can be amended
like any other part of the constitution. However, it is subject to the implied limitation on
the amending power i.e. the basic structure doctrine. The amending power cannot be
used to amend the basic principles on which our constitution lies because if any of these
basic elements are removed, the constitution will not be able to maintain its identity.

Purpose of the Preamble

● It indicates the source from which the constitution comes - the people
● It contains the enacting clause which brings constitution into force - date of adoption
● It declares the great right and freedom(liberty, equality, fraternity justice) of the people
and also the basic type of government and polity which was to be established.
(sovereign, secular, democratic, republic, socialist)

42nd constitutional Amendment Act 1976

● Inclusion of socialism, secularism and integrity

Union and its Territory (articles 1-4)

● India shall be a union of states
1) In india the union is not a result of an agreement between various states
 2) They do not have the power to separate from the union
● The territory of the india falls under 3 categories:
1) State territories
2) Union territories
3) Territories which may be acquired by the GOI
● 7th constitutional amendment act 1956 - state reorganization act 1956 - state
organization based on language- replaced part A,B,C,D

Article 2
● It vests parliament with the following two powers:
1) Admit into the union new states
2) Power to establish new states - terra nullius(acquiring land which was not
acquired by anyone before) - this power has still not been used
“On such terms and conditions as the parliament thinks fit”
● It applies to acquired states not existing states
● Article 3 applies to existing states
● Article 2 is applied by making a law

Article 3
● Formation of new states and alteration of boundaries or names of existing states
● A new state may be formed or established in the following ways:
1) By separating a territory from a state - andhra and telangana
2) By uniting a territory to any state - adding a territory to a state from another state
3) By uniting two or more states - madras and andhra pradesh
4) By uniting parts of any states - part of madras presidency was given to kerala
● Parliament can introduce a bill for alteration of boundaries or area or name of a state of
a state if the following two conditions are:
1) Recommendation of the president
2) Reference of bill to the legislature of the affected states or its views
● Bill can be passed with a simple majority
● In Re Berubari Case (AIR 1960)
a) Whether article 3 of the constitution empowers the parliament to cede an indian territory
to a foreign state?
b) Whether a cession of an indian territory to a foreign country should require a
constitutional amendment?
c) The SC held that Article 3 deals with internal readjustment. It doesn't provide for cesion
of a territory to a foreign state. Thus a territory cannot be ceded to a foreign state by a
mere law-making process. It should involves a constitutional amendment

PART III - Fundamental Rights

● Prohibitions on the state - no Act, law, order or any other executive decision can be
reviewed by the SC and reversed
● Restrictions on FR exit is to strike balance between individual liberty and social interest
Article 12
● Definition of state
● The government and parliament of india i.e. the executive and legislature of the union
● The government and the legislature of each state i.e. the executive and legislature of the
states
● All local and other authorities within the territory of india
● All local and other authorities under the the control of government of india
● Local authorities - Sec 3(31) of general clauses act 1897 - municipal authorities and
panchayats
● Interpretation of ‘Other Authorities’
1) University of Madras V Santa Bai(AIR 1954) - the court discussed as to whether a
university will come within the term ‘other authorities’ under Article 12 of the constitution.
In this case, the court held that the term other authorities shall be interpreted on the
basis of the principle of 'ejusdem generis'(of the same kind/species) as that mentioned in
this particular term ‘other authorities’. It can be interpreted in the light of other factors
given under Article 12 of the constitution. Universities cannot be considered as State for
the purpose of Article 12.

2) Rajasthan Electricity Board V. Mohan Lal (AIR 1967 SC) - in this case, we could see that
the question was w.r.t whether Rajasthan electricity board will come under the concept
of ‘other authorities’ for the purpose of Article 12. The court held that all the authorities
that are created by the constitution or a statute on whom powers are conferred by law
can come under the term ‘other authorities’. REB was created under Indian Electricity
Act 1910.

3) Sukhdev Singh V. Bhagatram (AIR 1975 SC) - in this case court said that the following
organisations can be considered as State for the purpose of Article 12:
- ONGC - oil and natural gas corporation
- LIC - life insurance corporation
- IFC - Industrial finance corporation
They further held that all these 3 organisations are created by different statutes, which
means that they are allowed to make their own rules and regulations for the purpose of
regulating the service conditions of their employees and the working of that organisation.
Delegated legislation - when the power to make laws is delegated to the executive
authorities/other authorities after the basic structure of the statute has been formed by
the legislative body.

4) R.D. Shetty V. International Airport Authority of India (AIR 1979 SC) - Justice K.K
Mathew stated that there is a wider interpretation required under the term ‘other
authorities’. The reason behind is we are trying to move from a police state to a welfare
state as the State is influencing individual life much more than in the past and thus, there
is a requirement for a wider meaning. Justice Bhagwati introduced the test of
instrumentality to interpret the term ‘other authorities’.
 Instrumentality test -
● The state shall be the chief funding source
● There should be deep and pervasive state control (most imp)
● Functional character being governmental in essence
● A department of government is transferred to a corporation
● Whether the corporation, enjoys a monopoly status which is State conferred or
State protected
Issue - whether international airport authority comes under ‘other authorities’?
IAA features - 1) created by statute
2) appointed by govt
3) funded by government
4) terminated by govt
The court held that by applying the test we see that IAA will come under the purview or
‘other authorities’

5) Som Prakash V UOI (AIR 1981) - whether bharat petroleum corporations will come
under ‘other authorities’? Yes, it is fully controlled by the government as there is deep
and pervasive state control

6) U.P. Warehousing Corporation V Vijai Narain (1980) - can UP warehousing corporation

be considered as state for Article 12. UpWc created under a statute, owned and
controlled by the government (deep and pervasive state control : State)

7) Ajay Hasia V. Khalid Mujib - society under societies registration act can be considered
as State under Article 12. Feature of society:
- Members are appointed by the government
- Membership can be terminated by the government
- Rules made by society required prior approval of the government
- Society had to comply with all the directions given by the government
- Capital required given by the government.
- Thus, state under A.12 because of deep and pervasive value.

8) Central Inland Water Transportation Corporation V. Brojo Nath Ganguly (1986) SCC -
chairman and member appointed and removed by the government. Owned and
controlled by the government. It is State.

9) Tekraj Vasandi V. UOI (1998) SCC - institute of constitutional and parliamentary studies
under Art. 12? Institute organises training, research and training programs. Voluntary
organisation. Society NOT State. Functions of the institute are not governmental in
essence.

10) Chandra Mohan Khanna V NCERT (AIR 1992 SC) - court held that NCERT is not ‘state’
for the purpose of article 12, as it is not substantially funded by the government and the
government has no pervasive control over the organization.
 11) State of Assam V Barak Upatyaka D.V. Karmachari Sansthan (AIR 2009 SC) - this
organisation was a cooperative society and was being provided grants by the
government. So, should this organisation be considered as State for the purpose of
Article 12? No, should be considered as State no other aspects except for finances are
being covered.

12) Janet Jeyapaul V. SRM university (AIR 2016) - whether SRMU can be considered as
State? (deemed to be university). Court looked into mainly 2 aspects -
- Kind of function - it is a public function as it impacts a large population
- Highly regulated by the UGC
Thus, can be considered as State for the purpose of Art. 12.

13) Zee Telefilms Ltd. V. UOI (AIR 2005 SC) - issue was w.r.t BCCI. features of BCCI -
- It is a society registered under the Societies Registration Act
- Not created by a statute
- State has no share capital held by the government
- no funding by government
- Not a state corporation
- It is not a public function because it deals with cricket alone
It cannot be considered as State.

14) A.R. Antulay V. R.S. Nayak (AIR 1988 SC) - whether judiciary can be considered as
State? Judiciary cannot act in violation of fundamental rights. And so it can be
considered as State.

Article 13
● Article 13 (1) - pre-constitutional laws
● Article 13 (2) - post-constitutional laws
● Article 13 (3) - definition of law
● Objective

Article 13 (1) - pre-constitutional laws

● If there is a pre-constitutional law that is inconsistent with part 3 of the constitution, then
it will be declared as void to that extent of inconsistency.
● Prospective in nature because even though the law has become void, the transactions
prior to the declaration are still valid. Only future transactions shall be void in nature.
● Doctrine of eclipse - the constitution over shadows the pre-constitutional law so it goes
into a dormant state(inactive state). Once this inconsistency is removed(either through
constitutional amendment or amendment to that particular actor provision), the shadow
is removed and the law will come into operation again.
● Bhikaji V. State of M.P. (AIR 1955 SC) - C.P and Berar Motor Vehicles Act, 1947 was a
pre-constitutional law. Aim of this Act was to monopolise road transport. Art
19(1)(g)(right to freedom of trade and business) was given as a FR to people when the
 constitution came into force. There was an inconsistency between the Act and the
Article. The 1st constitutional amendment came into force(amending clause 6) and gave
the power to the government to monopolise any business; removing the inconsistency.

Article 13 (2) - post-constitutional laws

● No post-constitutional law can be violative of part 3 of the constitution
● If a post-constitutional law violates part 3 of the constitution, then it can be declared as
void to that extent of inconsistency
● Such violative laws are void ab initio
● Doctrine of eclipse shall not be applicable
● Deep Chand V. State of U.P. (AIR 1959 SC) - the court held that post-constitutional laws
that contravene FR are void from its very inception or still-born law.
● Mahendra Lal Jain V. State of U.P. (AIR 1963 SC) - court upheld the decision in deep
chand’s case and court held that the basic difference between pre and post
constitutional if in violation of the FR, is that doctrine of eclipse applies to pre-
constitutional laws as they are void in nature, whereas post-constitutional laws are void-
ab-initio.
● State of Gujarat V. Ambica Mill (AIR 1974 SC) - a slight modification to preceding cases.
In this case the SC held that even though certain post-constitutional laws that are
violative of FR can be applied in certain instances. Certain FRs are not applicable to
non-citizens and so even though post-constitutional laws which violate FR of citizens can
be applied to non-citizens.

Article 13 (3) - definition of law

● Any rules, regulations, ordinances, customs can also be declared void if it violates the
part 3 of the constitution

Objective - protecting fundamental rights and supremacy of the constitution

Doctrine of severability/separability
● If there is an unconstitutional provision in a statute, if that provision can be separated
from the statute, only that provision will be invalid and not the entire statute.

● A.K. Gopalan V. State of Madras (AIR 1950 SC) - section 14 of preventive detention act
1950. It was found that section 14 is violative of FR. The court held that even after
reducing or taking away this section from the Act it will not affect the Act and the Act will
function as it is. This was the first case to discuss the doctrine of severability.

● Exception to the Doctrine - if the unconstitutional provision is found to be linked with

other provisions of the statute then the entire statute shall be declared unconstitutional.
● R.M.D.C. V UOI (AIR 1957 SC) - in this case, the issue was w.r.t section 2(d) of Prize
Competition Act 1955. This section included the provisions of gambling and any
provisions related to gambling are unconstitutional. However, even after removing the
 provisions of gambling the rest of the statute remains as a complete code in itself. Court
further held that in order to understand whether the doctrine can apply we look into -
1) Legislative intent behind the enactment of that statute; If the legislative was
aware of the unconstitutional provision, whether they would have enacted the
rest of the provisions as a statute?
● Kihotto Hollohan V. Zachillu (1992 SCR) - the issue was w.r.t. Para 7 of schedule 10- the
decision of the speaker w.r.t disqualification of the members on grounds of defection
shall be final and it shall not be subject to judicial review. The court held that para 7 is
unconstitutional in nature. Then the issue came whether this para 7 separable? Court
held that the entire 10th schedule minus para 7 shall remain unaffected. Only para 7 is
unconstitutional.
● Doctrine of Waiver - The waiver is a voluntary relinquishment or surrender of some
known rights or privileges. This doctrine is basically based on a premise that a person is
his best judge, so he should decide whether he wants to take any right or privilege,
provided by state, or not.
● Basheshar Nath V. Income Tax Commissioner (AIR 1959 SC) -petitioner had concealed
a lot of income and he was evading tax. In 1954 he entered into an agreement that he
will be paying in monthly installments. In 1955 in Muthiah V. Income Tax Commissioner
(AIR 1956 SC) the court held that sec 5(1) of the Taxation of Income (investigation
commission) Act 1947 is unconstitutional in nature as it was found to be violative of the
article 14 of the constitution. The petitioner challenged this in court. The income tax took
the view that by entering the agreement the petitioner has voluntarily waived his FR
under Art 14. The court held that doctrine of waiver is not applicable to Part 3.

Whether amendment is ‘law’ for the purpose of Article 13(2)?

● Shankari Prasad V. UOI (AIR 1951 SC) - in this case the first constitutional amendment
was challenged. The first amendment act introduced A.31A (govt can acquire private
property for public purpose through compensation) and 31B (barred from judicial review)
which violated article 19(1)(f). The court held that amendment is not law for the purpose
of article 13(2). The term ‘law’ under this article includes only those laws which are made
by using legislative powers. Constituent power is higher than legislative power because
legislative powers are derived from the constitution and you cannot equate legislative
power to constituent powers. Thus, parliament can amend any part of the constitution.
● Note: An amendment to the constitution is made using the constituent power and not
legislative power.
● Sajjan Singh V. State of Rajasthan (AIR 1965 SC) - in this case the 17th constitutional
amendment was questioned. The peculiarity of the 17th amendment was that it added
more laws to the 9th schedule. Laws in the 9th schedule are barred from judicial review.
In this case, the court upheld the view in Shankari Prasad V. UOI. The court further
stated that if the constituent assembly members wanted to exclude parliament from
amending FR they would have mentioned it in the constitution.
● Golaknath V. State of Punjab (AIR 1967 SC) - issue was w.r.t. 17th constitutional
amendment. The right to property was then a fundamental right and it was being
affected by the addition of law from the 17th amendment. In this case the court overruled
 the decision in Sajjan Singh V. State of Rajasthan held that amendment is law for the
purpose of Article 13(2) and the amending power of the parliament is limited and cannot
amend the FR. The court held that Article 368 only provides the procedure for
amendment and the power to amend the constitution is derived from Article 245 and 246
(law making power of the centre and state) read with entry 97 of list 1 of schedule
7(residuary powers vested with the centre). By this decision the court is trying to equate
the legislative and constituent powers.
● Through the 24th constitutional amendment 1971 try to override/bypass the decision by
the Golaknath case. They added:
- Article 13(4) which stated that nothing in this article shall apply to an amendment
made by Article 368.
- They also introduced article 368(3) - article 13 is not applicable to article 368
- Brought a change to marginal note of Article 368. They changed the article from
‘a procedure to amend’ to ‘Power of the the Parliament to amend the Constitution
and procedure therefore’
● Kesavananda Bharati V State of Kerala (AIR 1973 SC) - 24th, 25th and 29th
constitutional amendments were challenged. His Holiness SripadGalvaru Kesavananda
Bharati was chief of a religious sect in Kerala. The sect had certain lands acquired under
its name(edneer math). Some of these lands by virtue of Kerala Land Reforms Act, 1963
which was further amended by Kerala Land Reforms (Amendment) Act, 1969 were to be
acquired by the state government to fulfill their socio-economic obligations. Through the
29th constitutional amendment Kerala Land Reforms (Amendment) Act, 1969 was put in
the 9th schedule. Whether the power of the parliament to amend the constitution is
limited or unlimited? Petitioners claimed it was limited and the government claimed it's
unlimited. The first thing the court did was they upheld the validity of the constitutional
amendment. Parliament can amend the part 3 of the constitution. The 24th constitutional
amendment they expressly brought something in the constitution that was impliedly
there in the constitution. Article 368 provides the power and procedure for amending the
constitution. They further upheld the previous cases. The court held that the parliament’s
power to amend the constitution is limited in nature and that limitation is an implied
limitation which is the basic structure of the constitution.
● Note: the concept of basic structure doctrine is borrowed from the german constitution.
The constitution should have continuity through amendments but at the same time the
identity of the constitution should retain.

FUNDAMENTAL RIGHTS
● Article 14 - a person shall not be denied equality before law or equal protection of law
within the territory of india
- Equality before law - negative in nature - no one is above the law of the land -
taken from rule of law in british common law system - it speaks about ideal
equality which means that all should be treated equally
- Equal protection of law - positive in nature - law provides equal opportunities to
all who are similar in circumstances - equality between equals and inequality
between unequals
 - Y. Srinivasa Rao V. J. Veeriah (AIR 1993 SC) - in this case the issue was w.r.t to
a licence that was given a fair price shop. The govt. preferred less educated
person over more educated person in order to grant licence to run this fair price
shop. The petitioner was an unemployed graduate and he had experience in
running this shop. The petitioner was not granted the licence but gave it to
another person who was 10th pass because he was less educated. Court held
that it was an unreasonable classification and gross arbitrariness.
- Article 14 is not absolute in nature - exception - Article 31C(25th Const.
Amendment, if a law is made to in order to effectuate DPSP it cannot be
challenged on the basis that it violates article 14 and 19), article 359(1) (all FR
except article 20 and 21 can be suspended)
Doctrine of Reasonable Classification
● Article 14 is subject to reasonable classification, but prohibits class legislation(treating
equals in an unequal matter without rational justification)
● Classification shall not be arbitrary, artificial or evasive
● There should be a real and substantial distinction having a just and reasonable relation
to the object sought to be achieved by the legislation.
- Real and substantial distinction - keep in mind the purpose of this classification
and there should be a distinction between those included in the group and those
excluded.
- Just and reasonable relation - should a direct connection with the object that is
sought to be achieved by that statute

● Twin test for classification -

- Classification must be based on intelligible differentia
- Intelligible differentia must have a rational nexus to be object sought to be
achieved by the statute

Basis for permissible classification

1) Geographical basis - dividing on the basis of territory
● State of M.P. Vs. G.C. Mandawar (AIR 1954 SC) - in this case court stated that
law prevailing in one state cannot be declared invalid solely on the ground that it
is in contrast with law in another state - the govt employee of MP demanded
dearness allowance solely on the basis of another state - a state cannot give
dearness allowance to its employees solely on the basis that another state is
giving it.
2) Historical Consideration
● Parents Association V. UOI (AIR 2000 SC) - central govt through an order gave
reservation for settlers of andaman and nicobar islands in engineering and
medical colleges. This was challenged on the basis that it is violative of article 14
and 15(4). Court held that based on historical consideration that it is a valid
consideration, remoteness and less development of the area.
3) Nature of persons - public officials were given certain powers. Crpc - public officials can
be prosecuted only by the permission of the government.
 4) Nature of business -
● K. A Abbas V UOI (AIR 1971 SC) - classifications were made to give out A-
certificates and U-certificates for films. Court held that they are valid
classifications as they cater to different kinds of audience.
5) State and private persons - there can be a classification on the basis of state and private
person. Eg - tortious liability of state and private person.
Chiranjit Lal V. UOI (AIR 1951 SC) - sholapur spinning and weaving company (emergency
provisions Act 1950. Govt. can take control of Sholapur spinning and weaving company.
Company was in a state of mismanagement and was bound to be wound up. Company
engaged production of textile (essential commodity), employed large no. of labourers.
Shareholder challenged: discriminative and violative of article 14 as it treats this company as a
separate entity unlike other companies. Valid classification: it produced essential commodities
which employed a large number of employees. Aim of govt. was to protect the people and
company from being wound up. Court held that “we can consider a particular individual or
company as a separate class if there are special circumstances or reasons which are
inapplicable to others.”

Ameerunnisa Begum V. Mehboob Begum (AIR 1953 SC) - WALI-UD-DOWLA SUCCESSION

ACT 1950 - after the death of nizam of hyderabad who will succeed his property? - act
dismissed claim of one party and gave property to other party - classification invalid because no
special circumstances

Rational Nexus
● There should be a reasonable relationship between the classification made and the
object of that particular classification.
● The twin test - tells us that there must be valid decision which must be taken while an
act/ any act is done
● KERALA HOTEL AND RESTAURANT ASSOCIATIONS V. STATE OF KERALA (AIR
1990 SC) - classification on income invalid
Classification for procedural laws
● STATE OF WEST BENGAL V. ANWAR ALI SARKAR (AIR 1992 SC)

Ajay Hasia V. Khalid Mujib AIR 1981 SC - this case deals with the aim of ‘twin test’ in order to
find out if/ if not a state action is arbitrary/ not. The expansion of the perspective of article 14, as
if the statute/ state action does not pass the twin test, there must be an element of arbitrariness,
which would violate article 14. Both the doctrine of twin test and doctrine of arbitrariness are
gotten together.

D.S. Nakara V. UOI AIR 1983 SC - the court again got both doctrines together to understand
that if any classification is not passing twin test, then there is a sense of arbitrariness in the
classification and hence that violates article 14. The issue was w.r.t to classification on basis of
time, and to be valid it must not be arbitrary at all.
Article 15 - this is available only to citizens
● The state shall not discriminate any citizen on the basis of religion, race, caste, sex,
place of birth.
● Place of birth - the term is only used in this article. It means that even when all the
aspects are done for any people, the choosing of one over the other based on religion,
race, caste, sex, creed. It can’t be the only criteria for choosing is not valid and violated
article 15.
● To an extent the twin test can be applicable here and if not satisfactory to the test then
doctrine of arbitrariness kicks in.
● D.P. Joshi V. State of Madhya Bharat AIR 1955 SC - there can always be a classification
based on the basis of domicile state/ domicile reservation
- A fee concession was given to the residents of Madhya Bharat in relation to
medical colleges. And the classification being valid under the sons of sail
provision. Hence this is a reasonable classification.

● There can be classification via other stds.

● Article 15(2) - there must be no restriction of use of wells/ water resources/ access to
any shops or hotels etc to any one. The perspective of class discrimination not to be
followed anymore.
● Article 15(3) - nothing in this article, shall prevent to make laws for/ special provisions for
women and children - has overriding effect over article 15 (1) and (2)
- This clause is a savings clause, which has an overriding effect over other
provisions.
- As this becomes an affirmative action to advocate treatment of equals - equally
and unequals - unequally .
- Vijay Lakshmi V. Punjab University AIR 2003 SC - rules of the university stated
that only a woman can be appointed as principal in a women college. The court
also held this has a valid classification made for this provision. Because there is
a rationale nexus with the article, as the ultimate aim is to upliftment of women in
the society and the same for there to be a female hostel secretary.
- Joseph Shine V UOI AIR 2018 SC - case related to adultery. Section 497 of IPC
is said to be in violation of article 14(1) & article 21 of the constitution and cannot
be protected by article 15(3).

● Article 15(4) - state can make special provisions for educationally and socially backward
SC/ST for their advancement. This was added in the first amendment.
- State of Madras V. Champak Dorairajan AIR 1951 SC - the govt issued a
communal govt order. According to this order fixed reservations were given
based on community. Article 15(4) was added after this case. The govt argued
that this communal govt order is to effectuate article 46(economic and
educational upliftment of SC/ST) of the const. Court held that it is invalid.
- It is an enabling provision and not an obligation on the state - the state has the
option to exercise it but is not mandatory for them to implement it.
 - Whether a mandamus can be issued by the court to ask the state to impose
reservations? - no, this clause is an enabling clause.

Article 340
● President can declare any caste as backward as the term backward class is not defined
in the const.
● Balaji V. State of Mysore AIR 1963 SC - the state gave an order for reserving seats in
state govt medical and engineering colleges. According to this, 28% to backward class,
22% to more backward class and 18% to SC and ST.
- The categorisation into BC and MBC cannot be justified, legislation should keep
in mind that it is socially AND educationally backward class and not socially OR
educationally backward class.
- The court held that caste can be a relevant factor but not the sole criteria to
determine as to what is socially and educationally backward class.
- The commission should also look into poverty, occupation and place of
habitation. Caste cannot be equated to class. The order was invalid.

● Indra Sawhney V. UOI (Mandal Commission Case) AIR 1993 SC - the court held that
classification between BC and MBC is permissible and the entire reservation cannot
exceed 50%. The reason behind it was if the classifications are not made, the advanced
one in that group would be taking away all the seats. The court also held that in higher
educational institutions like IITs, IIMS, etc.
● D. Neelima V. Dean of P.G. Studies A.P. Agricultural University AIR 1993 SC - petitioner
was born and brought up in the reddy community which is a forward class and she was
married into Erukala tribe which is considered as a ST in andhra pradesh. She applied
for an admission for the respondents university under reservation. Court held that she is
not eligible as she enjoyed all the perks of a forward class
● T.M.A Pai Foundation V. State of Karnataka AIR 2003 SC - court held that state cannot
make any reservation in private educational institutions.
● As a response to TMA pai and Indra Sawhney case state implemented the 93rd
amendment which inserted the article 15(5).

● Article 15(5) - state can make any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the SC or the ST in so far
as such special provisions relate to their admission to educational institutions including
private educational, whether aided or unaided by the state, other that the minority
educational institutions referred to in clause (1) of the article 30.
● Pramati Educational and Cultural Trust V. UOI AIR 2014 SC - govt and private institutes
aided or unaided shall come into one category for the purpose of reservation is valid in
nature.
● Ashok Kumar Thakur V. UOI AIR 2008 SCW - the issue was whether the 27%
reservation for obc in IITs and IIMs are valid in nature. Court held that it is valid.

● Article 15(6) - 103rd constitutional amendment 2019 - state can make -

 - Any special provisions for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5) and
- Any special provision for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5) insofar as
such special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided by the state,
other than the minority educational institutions referred to in article 30(1), which
in the case of reservation would be in addition to the existing reservation and
subject to a maximum of 10% of the total seats in each category.

Article 16
● Public employment - applicable to only citizens
● Article 16(1) - there shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the state - equals should be treated
equally and unequals should be treated unequally - appointment shall be based on the
basis of merit amongst equals - aim is to remove the concept of arbitrariness -
classifications should be for the social upliftment and that classification should also see
to it that they are essential for efficiency of administration.
● C.B. Muthamma V UOI AIR 1979 SC - lady in the indian foreign service and she was
denied promotion solely on the basis that she had her personal responsibilities. The
court held the decision to be invalid.
● General Manager, Southern Railway V. Rangachari AIR 1961 SC -
● Government of West Bengal V. Tarun K. Roy (2004) 1 SCC 347 -
//////////////////////
Protective Discrimination

Article 18
● (1)Abolition of titles: prohibits state to confer titles on anybody whether citizens or non-
citizens
● Except - military and academic distinction
● Balaji
● ////////////////
● Article 18(3) : a foreigner holding any office of profit or trust under the state cannot
accept any titles from any foreign state without consent of the president
● Article 18(4) : states that no person whether citizen or not, holding an office of profit or
trust under the state shall accept without the consent of the president ayn present,
emolument or office of any kind from under any foreign state.
● Directory - no law to effectuate the above articles - bring in the concept of equality

Article 19
● Six fundamental freedoms
- Freedom of speech and expression
- To assemble peaceably and without arms
 - To form associations or unions
- To move freely throughout the territory of india
- To practice any profession, or to carry on any occupation, trade or business

● Applicable to citizens
● Right to freedom art.19(1)(f) of property was converted to a constitutional right through
the 44th amendment 1978 - now it is article 300A
● Balance
- Restriction - article 19(2)-(6)

● Conditions -
- The restriction must be for the ‘particular purpose’ mentioned in the clause
permitted the imposing the restriction on that particular right and
- The restriction shall be reasonable

● Article 19(1)(a) - Freedom of speech and expression

● Restriction - 19(2) - 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 speech and expression means -
- It is the right to express our idea or opinion
- Of his/her own or others freely
- By any communicable medium or visible representation
- Freedom of publication and freedom of press

● Bijoe Emmanuel V. State of Kerala (1986 3 SCC) - issue was related to the director of
public instruction of state of kerala made a notice/circular that it is obligatory of all
students of school to sign the national anthem. 3 students refused to do so but yet
respectfully stood up for the same. These students were expelled from school. The court
held that the right to speech also includes the right to remain silent.
● Communist Party of India (M) V. Bharatkumar and Others (AIR 1998 SC) - whether
holding of bandh is constitutional in nature? It is unconstitutional in nature and it cannot
be protected under 19(1)(a) as it violates article 21.
● Radhey Shyam V. PMG Nagpur (AIR 1965 SC) - there is no fundamental right to hold
strike. It is a statutory right under the Industrial Disputes Act.
● Union of India V. Naveen Jindal (AIR 2004 SC) - case is related to flag hoisting. You
have a fundamental right to hoist your flag free but without any form of disrespect to the
national flag.
● Right to Know
- Union of India V. Association for Democratic Reform (AIR 2002 SC) - it is a
voter’s right to know the past of a candidate including criminal background in a
parliamentary or legislative election.
 - People’s Union for Civil Liberties V. Union of India (AIR 2004 SC) - court held
that there can be reasonable restriction on one’s right to know also such as
security of the state.

● Freedom of press
- Brij Bushan V. State of Delhi (AIR 1950 SC) - section 7 of the East Punjab Safety
Act 1949, order given by the chief commissioner of delhi. To the publisher and
editor an english weekly called the organizer based in delhi. The order stated that
all communal matters/news related to Pakistan shall be submitted beforehand for
scrutiny before publication. A pre-censorship was imposed on matters to be
published. The censorship was imposed only on this weekly. The court held that
it is invalid in nature.
- K.A. Abbas V. Union of India 1971 SCR (2) 446) - the court held that there can
be pre-censorship of motion pictures of movies and matters. Reasoning being
that motion pictures are faster than any other form of art.

● Article 19(1)(b): Freedom to assemble peacefully without arms

● Restrictions under Article 19(3) - sovereignty and integrity of India and public order.
● Section 141 of IPC - unlawful assembly - an assembly of five or more persons is
designated an “unlawful assembly”, if the common object of the persons composing that
the assembly is - resist the execution of any law, or of any legal process, to commit any
mischief or criminal trespass of other offence etc
● James Martin V. State of Kerala (2004) 2 SCC - a mill belonging to the complainant was
destroyed. The court held that it is an unlawful assembly because it affected public
order.
● State V. Logu Ayyappan AIR 2009 Mad 104) - the case is related to a meeting that was
conducted in support of a banned organization i.e. LTTE. The court held that it is an
unlawful assembly.

● Article 19(1)(c) - Freedom to form associations or unions

● Restrictions article 19(4) - sovereignty and integrity of the nation, public order and
morality.
● O.K.A. Nair V. Union of India (AIR 1976 SC) - the case was related to civilians or non-
combatants of the army. The issue was w.r.t whether defence people can form unions or
associations. According to article 33, they cannot do so because the government can
modify the fundamental rights of persons in the armed forces.
● O.K. Ghose V. E.X. Joseph (AIR 1963 SC) - the issue was w.r.t the rules formed for the
central civil servants. The rules stated that the civil servant cannot join or continue to be
a part of an association which the government has withdrawn its recognition or not given
recognition within 6 months of its formation. The court held that it is invalid because it
violates one’s freedom under article 19(1)(c).
● Rule 4-B of central Civil Services (Conduct) Rules 1955

● Article 12(1)(d) - Freedom of movement

● Restriction article 19(5) - interest of general public and protection of interest of ST
● Ajay Canu V. Union of India (1988) 4 SCC - in this case the issue was on Rule 498-A of
A.P. Motor Vehicles Rules 1964 that wearing a helmet is compulsory while riding a 2-
wheeler. This rule was challenged. The court held that it is valid.

● Article 19(1)(e) - Freedom of residence

● Restrictions article 19(5) - interest of general public and protection of interest of ST
● Ibrahim Vazir V. State of Bombay (AIR 1954 SC) - in this case section 7 of Influx from
Pakistan (Control) Act 1949 stated that a person cannot enter India from Pakistan
without the permission of indian government. An indian citizen entered India from
Pakistan without Indian government’s permission. The court held that being an indian
citizen, this section cannot be upheld because it violates his freedom of movement.

● Article 19(1)(g) - Freedom of profession, occupation, trade or business

● Restrictions article 19(6) - interest of general public, professional and technical
qualifications and enabling state to carry on any trade or business to the exclusion of
citizens wholly and partially
● Sodan Singh V. New Delhi Municipal Committee (AIR 1989 SC) - Hawker’s rights case -
the issue was related to article 19(1)(d) that it is restricting the movement of other
people. The court in this case held that even hawkers have a right to trade under article
19(1)(g) but is also subjective to reasonable restrictions. The court ordered the
petitioners to evacuate but also the municipal committee to find an alternative place.
● Unnikrishnan V. State of A.P. (1993 1 SCC) - the court held that establishment of
educational institutions cannot be considered as a commercial activity and cannot be
equated to trade or business.
● Excel wear V. Union of India (AIR 1979 SC) - the issue was related to the petitioner and
they had a factory in bombay and they were into the production and exporting of
garments. The company had recurring losses due to labour issues and the directors had
sent a notice to the state government to shut down the business. The state government
denied the permission to shut down. Court held that it is invalid in nature. This right also
includes the right to shut down a business.
● Khatki Ahamed V. Ludi Municipality (AIR 1974 SC) - in this case a person wanted to
start a meat shop at a particular location. The license for the same should be granted by
the municipal authority. The authority denied permission to start the shop on a particular
place on 3 grounds - already 3 shops existed in the locality, municipal authority stated
that a person cannot have a right to choose absolutely the location of the shop and he
cannot open the shop because of the feelings of the local people. The court held that it is
valid and it is subject to the interest of the general public.
● Sukumar Mukherjee V. State of West Bengal (1993 3 SCC) - issue was related to
section 9 of West Bengal State Health Service Act 1990. Doctors of west bengal medical
educational service are prohibited from carrying on private practice. The court held that it
is valid in nature on the reason that it is a voluntary action to apply to the government
services.
● Kerala SMT Fed V. Kerala TBO Association (1994 SCC) - section 4 of Kerala Fishing
Regulation Act 1980, this section prohibited bottom trawling during monsoon season. It
is valid because it is unsafe for fishermen to go fishing in this season and it is the time
when the fish get replenished.

● Article 20
● Protection in respect of conviction of offences
● 1. No person shall be convicted of any offence except for violation of the law in force at
the time of the commission of the act charged as an offence, not be subjected to a
penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence - protection against ex-post facto laws
● 2. No person shall be prosecuted and punished for the same offence more that once -
protection against double jeopardy
● 3. No person accused of any offence shall be compelled to be a witness against himself
- protection against self incrimination
● Applicable to citizens as well as non-citizens

● Article 20(1) - protection against ex-post facto laws - protection against retrospective
action or force
● Applicable to criminal laws
● Prohibits retrospective imposition of criminal liability
● Prohibits retrospective enhancement of criminal liability
● Kedarnath V. State of West Bengal (AIR 1954 SC) - the accused was charged under
prevention of corruption act 1947, under which the punishment for the same was
imprisonment or fine or both. During the period of trial, this act was amended and
increased the amount of fine. The court held that such a retrospective enhancement is
not valid. The punishment will be charged according to what was valid at the time of
commission of the act.
● Rattan Lal V. State of Punjab (AIR 1964 SC) - a 16 year old trespassed into a house and
outraged the modesty of a 7 year old girl and was given 6 months rigorous imprisonment
and fine. Afterwards, probation of offenders act 1958 was enacted which stated that a
person below 21 years of age shall not be ordinarily sentenced to imprisonment. The
convict approached the court for getting the benefit of the new act. The court held that
the punishment cannot be enhanced but benefits can be granted retrospectively.

● Article 20(2) - protection against double jeopardy

● Double jeopardy - punishing the same offender for the same offence twice
● Nemo debet bis vexari pro una et eadem causa - a person cannot be punished for the
same offence more than once
● Section 300 of CrPC
● Autrefois convict - it is applicable only to the person who was punished for the offence
● Conditions for application :-
- The person must be accused of an offence
- The prosecution must have taken place in a court or a judicial tribunal
 - The person must have been prosecuted and punished in the previous proceeding
- The offence must be the same for which he was prosecuted and punished in the
previous proceedings

● Maqbool Hussain V. State of Bombay (AIR 1953 SC) - this person got gold to India
without declaring it to the customs authority and consequently the authorities seized it.
He was charged under foreign exchange regulation act 1973. He contended that he is
already prosecuted by the seizure of the gold and cannot be prosecuted under FERA
1973. He cannot claim the protection as no court or tribunal gave the punishment.
● Venkataraman V. Union of India (AIR 1954 SC) - in this case, petitioner was accused of
corruption and an enquiry was conducted under public services inquiry act 1850 and he
was dismissed from his post. Then he was charged under IPC and prevention of
corruption act 1947 and this person contended that he cannot be charged under IPC and
prevention of corruption act 1947.

● Article 20(3) - protection against self incrimination

● A person cannot be compelled to be a witness against himself
● Conditions -
- Accused of an offence
- Element of compulsion
- Compulsion must to be a witness against himself

● M.P. Sharma V. Satish Chandra (AIR 1954 SC) - court took a very wide interpretation of
article 20(3). Court held that if at all the person's name is mentioned in the FIR he can
avail the protection under article 20(3). Such a person cannot be compelled to make an
Oral, documentary or testimonial evidence. It affected the admission of the criminal
justice system.
● State of Bombay V. Kathi Kalu (AIR 1961 SC) - in this case the court held that there is a
difference to be a witness under 20(3) and furnishing evidence. The authority can ask
the person to furnish the evidence but not compel them to give any personal knowledge.
● Nandini Satpathy V. P.L. dani (AIR 1977 SC) - petitioner was a former CM of odisha and
was accused of certain corruption charges. She was asked to give answers to a set of
certain questions. She denied saying that it is a violation of article 20(3). The court held
that she need not give answers to such questions that lead to imparting her own
personal knowledge which might ultimately lead to her conviction.
● Selvi V. State of Karnataka (AIR 2010 SC) - the court held that polygraph tests are illegal
in nature and it leads to testimonial compulsion and violates mental privacy of a person.

● Article 21
● No person shall be deprived of his life or personal liberty except according to procedure
established by law
● Applicable to citizens and non-citizens
● A person can be deprived of his life and liberty, only if the following two conditions are
satisfied -
 1) There must be a valid law
2) The procedure must be fair, just and reasonable
● Pre-Maneka Gandhi’s Case
● A. K. Gopalan V. State of madras (AIR 1950 SC) - the petitioner was a communist
leader and he was detained under preventive detention act 1950. Challenged the
detention on two grounds. Firstly, it violated article 21 and 19(1)(d) as it is not complying
with the restrictions under article 19(5). Secondly, the term ‘procedure established by
law’ is same as due process of law under the American Constitution. In this case the
court adopted a very narrow interpretation of the term ‘personal liberty’. Liberty is limited
to physical liberty and bodily restraint, and stated that article 21 will come for protection
only when detained without authority. Similarly, article 19 can be claimed only by a free
man. Once a person is arrested or detained then a person loses all these rights. Due
process of law is related to jus natura. The court held that the constituent assembly
deliberately omitted ‘due process’ from the constitution because due process is very
vague in nature and procedure established by law is the same as state made law.
● Kharak Singh V. State of U.P. (AIR 1963 SC) - the petitioner was charged with dacoity
and was released because of lack of evidence. Under U.P. Police Regulation and Police
Act 1861 the police opened a history sheet of this person and he was put under
surveillance. He challenged the same. The court held that it is violative of article 21.
● Satwant Singh V. Assistant Passport Officer, New Delhi (AIR 1967 SC) - the government
authorities impounded/seized his passport. Petitioner challenged the same. The court
held that it is violative of 21.
● Maneka Gandhi V. Union of India (AIR 1978 SC) - the issue was the government
authorities impounded/seized her passport under section 10(3)(c) of the Passport Act
1967 without giving any reasonable justification. Under this section the passport is
seized to protect the interest of the general public but the authorities did not give any
reason as to how it was protecting the interest of the general public. She challenged the
same on three grounds -
- Section 10(3)(c) is violative of article 14 - arbitrary power of authorities - did not
provide for a hearing of the holder
- Section 10(3)(c) is violative of article 21 - did not specify the procedure
- Section 10(3)(c) is violative of article 19 - did not comply with the restrictions
The court held that wide arbitrary power is vested on the authorities. It is unreasonable
and unfair. The principle of reasonableness is an essential element of equality/non-arbitrariness
shall pervade article 14 like a brooding omnipresence. Article 21 shall be subject to the test of
reasonableness. The court further held that article 14, 19 and 21 form the golden triangle as
article 21 should be subject to doctrine of reasonableness under article 14 and the restrictions of
article 19. The court held that the due process of law must be fair, just and reasonable.

● New Horizons of Article 21

● Olga Tellis V. Bombay Municipal Corporation (AIR 1986 SC) - the issue in this case was
related to pavement dweller’s case. Section 314 of Bombay municipal corporation act
1888 allowed authority to remove the pavement dwellers. The court held that the
authorities can remove them but also provide them the space to conduct their business
 elsewhere. “An equally important facet of right to life is right to livelihood because of a
person cannot live without the means of livelihood.” Right to livelihood is an essential
part of article 21
● Hussainara Khatoon V. Home Scretary, State of Bihar (1980 SCC 98) - when an under
trial prisoner is kept longer than for which they had been convicted. It is violative of
article 21. A speedy trial and right to legal aid is an essential part of the fair, just and
reasonable trial.
● Rudul Shah V. State of Bihar (AIR 1983 SC) - in this case, the court held that in certain
cases of violation of article 21, compensation can be awarded to those who had been
deprived of life and personal liberty.
● M.C. Mehta V. Kamalnath (AIR 2000 SC) - any disturbance to basic elements like air,
water or soil, then it would be considered a violation of article 21.
● RLEK V. State of Uttar Pradesh (1985 2 SCC) - the court held that there is a violation of
article 21 when pollution is caused to air and water.
● Right to Privacy
● R.Rajagopal V. State of Tamil Nadu (1994 SCC) - also known as Autoshankar Case, the
person was a serial killer and was imprisoned. He planned to write an autobiography in a
tamil weekly magazine called nakheeran. Several officials were a part of autoshankar
and pressured the convict to write a letter to the head of nakheeran to not to publish.
The court held that they can publish anything that is there in the public domain but one
should give privacy to family, motherhood, child bearing etc.
● PUCL V. Union of India (AIR 1997 SC) - Telephone tapping case - the court held that
telephone tapping is a serious invasion to right to privacy of a person, however where
public safety or prevention of a crime is concerned then such a method can be
permitted.
● Mr. X V. Hospital Z (1998 8 SCC) - in this case the issue was hospital had disclosed to
the fiance of the appellant that he has AIDS. The person filed a case stating that it is a
violation of his right to privacy. The court held that right to life is more important than
right to privacy and in this case it is not violating article 21.
● K.S. Puttaswamy V. Union of India (2017 10 SCC) - Aadhar Case - right to privacy was
upheld as a fundamental right as a part of article 21 by a nine judge bench.
● Parmanand Katara V. Union of India (AIR 1989 SC) - the court held that whether govt or
private practitioner, it is their duty to provide medical care to a person without waiting for
the legal formalities to be complied with. Right to health and medical assistance is an
important part of article 21.
● Right to Die
● P. Rathinam V. Union of India (1994 3 SCC) - court held that right to life includes right to
die.
● Gian Kaur V. State of Punjab (1996 2 SCC) - right to life does not include right to die.
Article 21 only includes the positive aspects of life.
● Aruna Shanbaugh V. Union of India (AIR 2011 SC) - in this case, the court allowed
passive euthenasia.
● Public Smoking - Murali S. Deora V. Union of India (AIR 2002 SC) - smoking in public
places deprives the right to life of a non-smoker
● State of Maharashtra V. Prabhakas Pandurang (AIR 1966 SC) - in this case the person
was writing a scientific book when he was under preventive detention and seeked
permission to send the book to his wife for publication. The same was denied by
authorities. The court held that it is violative of article 21.
● Jolly George Varghese V. Bank of Cochin (AIR 1980 SC) - jolly george was a judgement
debtor but he did not have any source of income to pay the amount and he was
imprisoned for the same. The court held that it is invalid and violative of article 21.
● Babu Singh V. State of U.P. (AIR 1978 SC) - In this case, court held that refusal to grant
bail in a murder case without reasonable ground then it is a violation of article 21.
● M.H. Hoskot V. State of Maharashtra (AIR 1979 SC) - the right to provide legal aid to a
person is a duty of the state and not a charity by the state and it is a part of free and fair
trial(A.39 A)
● Prem Shankar V. Delhi Administration (AIR 1980 SC) - handcuffing shall be limited to
certain circumstances where there is a tendency of the person to break the law or
attempt an escape
● Sher Singh V. State of Punjab (AIR 1983 SC) - death sentence must be executed at the
earliest opportunity. Any lapse from the side of the government can lead to a conversion
from death sentence to life imprisonment.

● Right to Education - Article 21 A

● Free and Compulsory education for the ages between 6-14 years
● 86th constitutional amendment act 2002
● Earlier it was a DPSP under article 45
● Right of Children to Free and Compulsory Education Act 2009
● Mohini Jain V. State of Karnataka (AIR 1992 SC) - Capitation Fee case - the petitioner
was from meerut in UP and wanted to join a medical college in karnataka. She was
asked to pay Rs.4.5 lakhs as a capitation fee and she challenged the same. The court
held that article 21 includes many rights which are associated with life and liberty. It
looks at the overall and complete development of an individual. Right to education is an
integral part of article 21 and leads to overall development of an individual.
● Unnikrishnan V. State of Andhra Pradesh (AIR 1993 SC) - the court upheld Mohini jain
case but also stated that free and compulsory can be attained only up till 14 years.
States can increase the age limit based on the economic capacity of the state.

● Article 22
● Protection against arbitrary arrest and detention
● Deals with rights of arrested person and rights of detenues under preventive detention

● Article 22(1) and (2) - Arrested persons

● Right to be informed of the grounds of arrest as soon as maybe (in the most earliest
reasonable circumstance)
● The right to consult and to be represented by a lawyer of his own choice
● The right to be produced before a magistrate within 24 hours of arrest
● The arrested person shall not be detained in custody beyond the period of 24 hours
except by the order of Magistrate

● Article 22(3)
● The above mentioned rights are not available to a person under preventive detention
● Hussainara Khatoon V. Home Secretary, State of Bihar (1980 SCC 98) - if a person is
not in the position to appoint a lawyer of his own then he shall be provided free legal aid
from the side of the state which is a part of the free and fair trial.
● D.K. Basu V. State of West Bengal (1997 1 SC 416) - the court gave certain guidelines
for arresting a person to the police.
- Officer making the arrest must carry a name tag and designation
- A memorandum of arrest shall be prepared and it shall be attested by a witness
and witness can be family member or a person residing in the locality of the
arrested person
- The person who is arrested shall be entitled to inform about his arrest to others
- If there is a major or minor injury occurred during the time of the arrest must be
recorded by the police officer.

● Article 22(4)-(7) - Preventive Detention

● Article 22(4)
- Preventive detention cannot be longer than 3 months - unless recommended by
the advisory board with sufficient cause - parliament can enact a law increasing
the period of preventive detention under article 22(7) and in such a case the
parliament must specify the classes of offences for which it can be increased and
by what definite period

● Article 22(5)
- The right to be informed ‘as soon as may be’ the ground of detention
- To give the detenu “the earliest opportunity” of making a representation against
the order of detention

● Article 22(6)
- Facts which are considered to be against public interest may not be furnished to
the detenu by the detaining authority

● Harkisan V. State of Maharashtra (AIR 1962 SC) - the grounds of arrest were
communicated in english whereas the person arrested only knew hindi. The court held
that the person should be clearly told about the grounds of arrest.
● Fogla & S.K. Jalil V. State of West Bengal (AIR 1975 SC)
● A.K. Roy V. Union of India (AIR 1982 SC) - the issue was related to national security act
1980 which also mentions preventive detention. In this case certain directions to prevent
the harshness of preventive detention.
- The friends and relatives of detainee shall be informed in writing about the
whereabouts of the detainee
 - The detenu shall have access to reading and writing material, and there can be
visit from friends and relatives
- Must be kept separate from convicts
- They should be treated with human dignity

● Right against Exploitation - Articles 23 and 24

● Prevent the exploitation of weaker sections of the society
● Article 23 (1) prohibits:
● Traffic in human being
● Begar - a landlord would ask the tenant for involuntary service without payment
● Other similar forms of forced labour
● These are all punishable offences
● Suppression of Immoral Traffic in Women and Girls Act 1956
● Abolishes Bonded labour system through Bonded Labour System (Abolition) Act, 1976
● Deena V. Union of India (AIR 1983 SC) - the issue was related to work done by
prisoners. The court held that prisoners should get remuneration for the work done by
them.
● People’s Union for Democratic Rights V. Union of India (AIR 1982 SC) - the court held
that forced labour not only includes physical or mental force but also the economic
circumstances of the individual which forces him to work for a wage below the minimum
wage.
● Bandhua Mukti Morcha V. Union of India (AIR 1984 SC) - there were several labourers
working stone quarries in faridabad should be rehabilitated

● Article 23(2) - a state can call for a compulsory service from the citizens for a public
purpose, when such a service is imposed there shall be no discrimination on the basis of
religion, race, caste etc.

● Article 24 - no child below the age of 14 years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.
● Article 39(e) and (f) and article 45 - children should be provided with opportunities to
develop themselves in a healthy manner and they shall be exploited in a tender age.
● Various legislations
- Child Labour Prohibition and Regualtion Act 1986
- Factories and Mines Act 1952

● M.C. Mehta V. State of Tamil Nadu (AIR 1997 SC) - the issue was related to
employment of children below the age of 14 in the sivakasi fireworks. The court held that
children cannot be held in such hazardous industries.

● Right to Religion (Article 25-28)

● S.R. Bommai V. Union of India (1994) 3 SCC
● Article 25(1)
- Every person has freedom of conscience
 - Freedom to profess, practice and propagate his own religion
- Subject to the following restrictions i.e., public order, health and morality

● Acharya Jagdishwaranand Avadhuta V. Commissioner of Police (1984 4 SCC) - anand

marga case - anand marga was a group and they used to conduct tandava dance
procession in public places using skulls, trishools and other lethal weapons. The
question was whether it should be allowed or not. The court looked into whether the
dance was an essential religious practice of the group. The court founded that the group
used to practice hindu religion and this dance was not an essential religious practice for
the group and it shall not be allowed to continue. The court held that only an essential
religious practice can be allowed to continue or otherwise can be stopped based on the
restrictions.
● State of West Bengal V. Ashutosh Lahiri (AIR 1995 SC) - the case was related to
slaughtering of cows during bakra-eid. The court held that the slaughtering of cows is
optional and not an obligation so it cannot be considered as an essential religious
practice
● Moulana Mufti Syed Mohd. State of West Bengal (AIR 1999 Cal) - the court held that
Azan is an essential part but usage of loudspeakers during Azan is not an integral part
● Satya Ranjan Majhi V. State of Orissa (2003 7 SCC) - the court held that the right to
propagate does not include the right to forcefully convert to another religion.
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● Right 32: Right to constitutional remedies

● Article 32(1): the right to move the supreme court by “appropriate” proceedings for the
enforcement of the rights

● Locus Standi - right to bring a legal action in court

● S.P. Gupta V. Union of India (AIR 1982 SC) - any member of public having sufficient
interest can approach the court for enforcing constitutional or legal rights of other person
and for redressal of common grievance
● Article 32(2): the supreme court shall have the power to issue writs
● Habeas Corpus - bring/produce the body
● For a detention to be legal
● Kanu Sanyal V. District Magistrate (AIR 1974 SC) - The petitioner was a naxalite and
was detained in visakhapatnam jail. He challenged the detention.
Is it mandatory to produce the body before the court? Seeing that the detention is not
legal then the court will order to release the person.
● All conditions under article 22 shall be met
● The detention must be in accordance with the procedure established by law and the law
must be a valid law
● Procedure should be fair, just and reasonable - maneka gandhi

● Mandamus - we command - it is an order given to a government authority to do or refrain

from doing an act
 ● The act should be a public/statutory duty that is vested with the authority
● Not applicable against discretionary powers
● There should be proof that there was a request from petitioner and authority refused to
do it
● State of M.P. V. G.C. Mandawar (AIR 1954 SC) - the issue was w.r.t. dearness
allowance. It is a discretionary power. No mandamus can be issued.

● Certiorari - to be informed
● Issued against judicial authorities and quasi-judicial authorities/ lower court or tribunal
● Transfer a case from such inferior court or tribunal to itself
● Adjudicate upon the validity of the proceedings
● Quash the proceedings if necessary
● Grounds - Abuse of jurisdiction/violation of principles of natural justice
● Curative in nature

● Prohibition
● Inferior courts or tribunals
● Prevent-continuing the proceedings
● Abuse of jurisdiction/violation of principles of natural justice
● Preventive in nature
● Hari Vishnu Kamath V. Ahmad Ishaque (AIR 1955 SC) - a writ was issued when an
inferior court takes up a matter for hearing over which it has got no jurisdiction. It is
issued to forbid it from continuing with the proceedings. If the court hears the matter
without jurisdiction and gives a decision, a writ of certiorari will be issued to quash the
decision given without jurisdiction.

● Quo-warranto - by what authority

● Issued to a person holding public office
● By what authority he holds the office
● Any person can file this writ - not necessary to be the aggrieved party
● Lakhanpal V. A.N. Ray (AIR 1975 Del) - A.N. Ray was appointed as CJI overlooking the
seniority of Justice Shelat, Hegde and Grower. The writ could not go through because as
the writ was being processed the 3 senior judges resigned.

● Article 33: restrict the application of fundamental rights to members of the armed forces
or the forces charged with the maintenance of public order

● Article 34: restriction of rights under Part III, when martial law is in force in any area
● No executive authority including the president can declare martial law

● Article 35: parliament can make legislations to effectuatuate Part III of the constitution

PART IV
DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES
 ● Taken from Irish Constitution who took it from spanish constitution
● Aims/objectives of DPSP:
- Provides socio-economic goals to the law-makers to bring socio-economic
changes to the country
- Aims at fulfilling basic need of human beings
- To re-shape the structure of the society and to have socio-economic equality

● Article 36: Definition of State

● Article 37: not justiciable/enforceable by court of law

- Fundamental in the governance of the country and
- State shall try to incorporate the same which making laws

● Difference between FRs and DPSPs

● Foundation for political democracy - social and economic rights
● Negative obligation - positive obligation
● Preserves basic human rights - betterment of the society
● Justiciable - non-justiciable
● Definite legal language - general terms

Relationship between FRs and DPSPs

● State of Madras V. Chempakam Doriarajan (AIR 1951 SC) - DPSP were considered
subordinate to FRs. in this case, in any conflict between FRs and DPSPs, the court held
that FRs will always prevail.
● State of Bihar V. Kameshwar Singh (AIR 1952 SC) - in this case the issue was related to
abolition of the zamindari system. The court relied upon article 39 to abolish the system.
This brought a significant importance to DPSPs.
● In Re Kerala Education Bill (AIR 1958 SC) - in this case the court held that in case of
any conflict between the FRs and DPSPs there should be a harmonious construction
between the same.
● Sajjan Singh V. State of Rajasthan (AIR 1965 SC) - the court held that FRs must be
interpreted in the light of DPSPs.
● Golaknath V. State of Punjab (AIR 1967 SC) - equal status shall be given to FRs and
DPSPs.
● Kesavananda Bharati V. State of Kerala (AIR 1873 SC) - the goals are prescribed by
DPSPs and FRs are the means to achieve the same. They are interconnected.
● Minerva Mills V. Union of India (AIRI 1980 SC) - court held that harmony and balance
between FRs and DPSPs is a part of basic structure of the constitution and DPSPs
nourishes or fertilizes the static FRs and the root of democracy.
● DPSPs and FRs are supplementary and complementary to each other. They are equally
important.

DPSPs
● Article 37 : Features of DPSP
 ● Article 38 : equality and justice in all spheres of life
● Randhir Singh V. UOI (AIR 1982 SC) - Principle was not abstract doctrine and could be
enforced by reading into the equality principle under article 14 and 16
● Article 39: common good and public welfare
● Article 39A: legal aid
● Article 40: village panchayats as units of local self government
● Article 41: work, education etc as per economic capacity of the state

Fundamental Duties
● Part IVA
● Article 51A
● 11 duties
● 42nd amendment act
● Taken from USSR
● (k) was added though 86th amendment act

Significance of FDs
● It serves as reminder to the citizens to enjoy their rights, they should be conscious about
their duties also
● They serve as warning against anti-national and anti-social activities
● They serve as a source of inspiration for the citizens and promote a sense of discipline
and commitment amongst them
● Duties -
- Abide by the Indian Constitution and respect its ideals and institutions, the
National Flag and the National Anthem
- Cherish and follow the noble ideals that inspired the national struggle for freedom
- Uphold and protect the sovereignty, unity and integrity of India
- Defend the country and render national service when called upon to do so
- Promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities and
to renounce practices derogatory to the dignity of women
- Value and preserve the rich heritage of the country’s composite culture
- Protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures
- Develop scientific temper, humanism and the spirit of inquiry and reform
- Safeguard public property and to abjure violence
- Strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement
- Provide opportunities for education to his child or ward between the age of six
and fourteen years. This duty was added by the 86th Constitutional Amendment
Act, 2002

● Enforceability of Fundamental Duties

- Obligatory in nature
 - Enforceable through laws made by parliament
- Education on fundamental duties is important
- M.C. Mehta V. Union of India (1988 1 SCC 471) - the court held that it is the duty
of the central govt to introduce compulsory teaching of protection and
conservation of natural environment in educational institutes throughout the
country
- Sanjeev Bhatnagar V. Union of India (AIR 2005 SC) - a petition was filed in court
to delete the term ‘sindh’ from the national anthem as it is no more a part of our
country. The court held that our national anthem is not a chronical or detailed
territory of the country. It is song that symbolizes our patriotic feelings
- Union of India V. George Philip (AIR 2007 SC) - Philip was a govt employee and
was granted 2 years leave to pursue advanced research. Despite several
constant reminders he overstayed in the foreign country and his service was
terminated. The court held that the termination of service is valid.

Doctrine of Basic Structure

● Systematic principles - connects - provisions of the constitution
● Permeates throughout the constitution
● Aim of amendment is continuity - identity shall be maintained
● Limitation - amending power of the parliament
● Core ideals - life - preserved
● Implied limitations/unmanifested terms - explain
● Safeguards constitution from frequent amendments
● Neutral path between preservation and fluidity
● Check on amendments
● Following were held to be a part of the basic structure of the constitution in
Kesavananda Bharati’s case:
- Supremacy of constitution
- Republican and democratic form of government
- Federal character of the constitution
- Separation of power between executive, legislature and judiciary

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