EXPLAIN THE SALIENT FEATURES OF INDIAN CONSTITUTION

KEY TAKEAWAYS

The 12 Salient Features of the Indian Constitution are as follows:

Lengthiest Written Constitution Single Citizenship Fundamental Rights Fundamental Duties Directive Principles
of State Policy Unique Blend of Flexibility & Rigidity Adult Suffrage Independent Judiciary Sovereign, Socialist,
Secular, Democratic, Republic Parliamentary System of Government Judicial Review Judicial Activism

INTRODUCTION

the Indian Constitution is the grundnorm in India. All the laws in India derive authority from it. It was originally
written in both Hindi and English by Prem Behari Narain Raizada in flowing italics and was decorated by the
artists of Shantiniketan. Nevertheless, its formulation was a task which was one of its kind. Various constitutions
around the world were referred while its formulation. May be that is why it is also called a ‘Bag of Borrowings’.
Our constitution makers picked up the best of the provisions for India from different parts of the world and
molded the provisions to suit the Indian circumstances. The Constitution of India was put together by
the Constituent Assembly which took 2 years 11 months and 17 days to prepare the final draft, after several
amendments.  After several meetings and discussions, the Indian Constitution finally came into effect on 26th
January, 1950.

SALIENT FEATURES OF THE INDIAN CONSTITUTION

1. Longest Written Constitution:

The most visible and important salient feature of the Indian constitution is that it is a unique and the
lengthiest written constitution in the world. Originally, it had 395 articles, 22 parts and 8 schedules. As a
result of various amendments over the passage of time, our Constitution contains 448 articles and 12
schedules at present. Indian Constitution is a fully written document that incorporates various laws for
proper management of the country. Indian constitution contains separate provisions for states and
centers and their inter-relationship. The constituent assembly had borrowed various provisions from
several other constitutions of the world, which made it very detailed. There are separate provisions for
scheduled castes, scheduled tribes, other backward classes, children, and women. 
2. Single Citizenship:
The Indian Constitution provides for single citizenship for all the citizens of India. An individual may
belong to certain State or Union Territory, but that individual’s citizenship remains Indian. Under the
Constitution, everyone is a citizen of India who on the 26th Of January, 1950 had domicile in India and
who •    Was born in India •    Either of whose parents was born in India •    Had been ordinarily resident
in India for not less than 5 years All those citizens are further entitled to equal freedom, rights, and
protection. This is unlike the United States, where every individual is both an American Citizen and a
citizen of the State in which they reside.

3. Fundamental Rights:
The Indian Constitution provides for Fundamental Rights to the Indian citizen which are guaranteed
under Part IIIC (Articles 12-35). It is also called the ‘Indian Bill of Rights’.  After the 44th Amendment Act
1979, there are presently six fundamental rights in our constitution. It is to be noted that these
fundamental rights are not absolute and are subject to certain limitations that are expressly mentioned
in the constitution itself.  The six fundamental rights are as follows:
(i) Right to Equality   This fundamental right provides for equality before law and equality of
opportunity. It also ends discrimination and abolishes untouchability and titles.
(ii) Right to Freedom   This fundamental right further includes six kinds of freedoms.  These are:-
•    Freedom of speech and expression 
•    Freedom to assemble peacefully without arms 
 •    Freedom to form associations
•    Freedom to move freely in India 
•    Freedom to reside in any part of India 
•    Freedom of adopting any profession, trade, or occupation.

(iii) Right to freedom of Religion  

This fundamental rights, grants an individual, a right to believe, profess, or worship any religion. The
State does not have a common religion. It also guarantees the right to establish and maintain any
religious institution. No person can be compelled to follow a particular religion.
(iv) Cultural and Educational Rights  
This fundamental right guarantees all the minorities a right to maintain, develop, and further teach their
language and culture. It also provides them a right to establish, maintain and administer their own
educational institutions.
(v) Right against Exploitation  
This fundamental right prohibits forced labour, child labour, and human trafficking. It ensures
protection to individuals against various human atrocities.
(vi) Right to Constitutional Remedies (Article 32)  
This fundamental right is the heart and soul of all of the fundamental rights. It ensures effective
enforcement of all the other fundamental rights and protection from violation of these rights. Under this
article, the Supreme Court and Hight Court have to power to issue writs for enforcement of these rights.
4. Fundamental Duties:
Part IVA (Article 51 A) of the Constitution describes various Fundamental Duties of each citizen. Those
fundamental duties are as follows: To abide by the Constitution and respect its ideals and institutions; as
well as, respect the National Flag and the National Anthem To cherish the noble ideals of the freedom
struggle To uphold and protect the unity, sovereignty, and integrity of India To defend the country and
render national service when called upto to do so. To promote harmony and the spirit of common
brotherhood amongst all the people of India transcending religious, linguistic, and regional, or sectional
diversities; to renounce practices derogatory to the dignity of women To value and preserve the rich
heritage of our exquisite culture To protect and improve the natural environment including forests,
lakes, rivers, and wild life, and to have compassion for living creatures To develop the scientific temper,
humanism, and the spirit of inquiry and reform To safeguard public property and to abjure violence To
strive towards excellence in all spheres of individual and collective activity so that the nation constantly
rises to higher levels of endeavour and achievement. To provide opportunities for education by the
parent or the guardian, to his child, or a ward between the age of 6-14 years as the case may be.
5. Directive Principles of State Policy:
Part IV of the Indian Constitution deals with the ‘Directive Principles of State Policy’. This part of the
Constitution mentions certain guidelines for the State with the objective of socio-economic
development. All three governments of the country, Central, State, and Local are expected to frame
welfare policies in accordance with this part of the Constitution. However, these policies are not
enforceable in a Court of Law.  For example, some of the policies that the State is directed to make are
to ensure fairer distribution of wealth, protection of women and children, old age pensions, local
governments, adequate means of livelihood to people, etc.
6. Mixture of Rigidity and Flexibility:
The Constitution of India is said to be the perfect mixture of rigidity and flexibility. It is neither wholly
rigid nor wholly flexible. It is because some provisions of the Constitution can be amended very easily
while complex processes can only amend the others. Article 368 of the Indian Constitution postulates
that the Parliament can keep amending the constitution according to the need of the time in the future.
As held by the Apex Court, every part of the constitution can be modified, except the “basic structure” of
the Constitution. Any old or new law which violates the basic structure of the constitution is declared
unconstitutional and invalid by the Courts.
7. Adult Suffrage: (Universal Adult Franchise)
Under Article 326 of the Indian Constitution, the elections to the House of People and the Legislative
Assemblies of States should be done on the basis of adult suffrage. Which means that the citizens of
India, of the age 18 years and above, have a right to vote and choose their representatives. This part of
the Constitution promotes the policy of ‘one person one vote’. In India, every individual of 18 years and
above has a right to vote irrespective of their age, gender, race, colour, religion, etc.
8. India as a Democratic, Socialist, Sovereign, Secular, and Republic State: India as a Democratic
State: India is a Democratic state means that the citizens of India have the power to elect their
representatives in the government and thus, the government is responsible to the people.  India as a
Socialist State: India is a Socialist state because the 42nd Amendment of the Constitution states the
achievement of socialist goals through democratic and non-violent means.   India as a Sovereign State:
Indian Constitution states that India is a Sovereign state because it is absolutely independent and it is
not under the control of any other state. It manages all of its internal and external affairs freely without
any external forces. India as a Secular State: India is a Secular state as the state has no specific religion of
its own. Every citizen is free to follow, practice, and profess the religion of their choice. Moreover, the
state cannot discriminate amongst its citizens on the basis of religion. India as a Republic: India is a
Republic because it is not ruled by a heredity monarch, whereas, the head of the state (the President) is
elected by the people indirectly for a fixed period of 5 years.
9. Parliamentary system of government:
Indian Constitution provides for a parliamentary form of government. President is the nominal or
Constitutional head of the state. He is indirectly elected by the citizens of India for a fixed period of 5
years. While, the Prime Minister is the real or executive head of the state and is collectively responsible
for the management of the Council of Ministers. The Prime Minister and his Council of Ministers are
directly elected by the Indian citizens in their respective constituencies. 
10. Independent Judiciary:
The Indian judiciary is free from interference from the other organs of the government (namely, the
executive and the legislature). Some facts mentioned in the Constitution that further prove the
independence of the judiciary are:- Judges are appointed by the President, Judges of Supreme Court
cannot be removed from office except through an extremely complex process, The salaries of judges are
very high, The Supreme Court has its own staff.
11. Judicial Activism:
Through the Public Interest Litigation system (PIL) and many other ways, the judiciary has been keeping
an eye on the functioning of the legislature and the executive and if the judiciary feels that there is a
need for some more effective policies or laws on a certain topic of public importance, the Judiciary can
suggest or make temporary laws in the favor of those topics.
12. Judicial Review:
This part of the Constitution gives the judiciary a right to review each law and further declare them as
unconstitutional or invalid according to the decisions. SOME CASE LAWS RELATING TO SALIENT
FEATURES OF THE INDIAN CONSTITUTION In the case of State of UP v. Rehmatullah[1], it was held by
the Court that the Central Government is authorized for taking any actions against the people who have
residing in India despite having lost Indian citizenship by acquiring foreign citizenship. In the case of
Kesavananda Bharti v. State of Kerala[2], it was held that the Fundamental Rights were a part of the
basic structure of the Indian Constitution and therefore they could not be abrogated even by a
constitutional amendment. In the case of AIIMS Students Union v. AIIMS[3], it was held by the
Supreme Court that the Fundamental Duties are as important as the Fundamental Rights and that they
cannot be overlooked. In the case of Olga Tellis v. Bombay Municipal Corporation[4], it was held by
the Supreme Court that the Directive Principles of State Policy are fundamental in the country’s
governance. Therefore, it should be given equal importance in understanding the Fundamental Rights. In
the case of Shayara Bano v. UOI[5], it was held by the Supreme Court that Judicial Review has to be
exercised in line with the social values and must be supplemental to the changing of social needs. S.R.
Bommai v. Union of India- It was held that the Secularism is one of the basic features of the Indian
Constitution and also mentioned that all religions are equal for the concept of Secularism. Indira Nehru
Gandhi v. Shri Raj Narain & Anr- It was held that State will not discriminate any citizen on the basis of
the religion. Also, mentioned that Rule of law embodied in the Article 14 of the constitution. Mohan Lal
Tripathi v. District Magistrate- The meaning of the word "democracy" was discussed and in essence it
was argued that "Democracy is a concept, a political philosophy developed by many culturally and
politically mature nations through direct or indirect representation of democratically elected people." 
Samantha v. State of Andhra Pradesh- “The term “socialist” is used to reduce income and status
inequality and to provide equality of opportunity and amenities”. St. Stephen’s college v. The University
of Delhi- The state should provide equal legal protection to all citizens and non-citizens in the territory
and no one should be denied such protection. Chiranjit lal Chowdri v. Union of India- "There is no doubt
that Article 14 provides one of the most important and fundamental guarantees in the Constitution that
should not be allowed to be reduced." Maneka Gandhi v. Union of India- the Hon’ble Supreme Court
established the Rule of Law that no one can be deprived of his life and personal liberty except the
procedure establish by the law under Article 21 of the Indian Constitution. Hussainara Khatoon v. the
State of Bihar- It was held that the right to the speedy trial also comes under the ambit of Article 21 of
the Indian Constitution. Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh- The court
banned all the mining activities in the Mussoorie hills as it was affecting the environment and ecological
balance, as it is one the fundamental duty guaranteed under Article 51 A. Mumbai Kamgar Sabha
v. Abdulbhai- If the constitutionality of the Act can be challenged then the fundamental duties under
Article 51 A can also be taken into consideration.
Ram Prasad v. State of Uttar Pradesh- The fundamental duty of every citizen of India to strive towards
excellence in all aspects of an individual and collective activity provided under Article 51A was discussed.
A.K. Gopalan v. the State of Madras- The law of preventive detention is subject to limited judicial review.

VARIOUS SOURCES OF THE INDIAN CONSTITUTION

The following are the features which were borrowed from different nations for the Indian Constitution:
Japan:
•    Procedure Established by Law Germany:
•    Suspension of Fundamental Rights During Emergency France:
•    Concept of Republic
•    Ideals of Liberty, Equality and Fraternity South Africa:
•    Election of Members of Rajya Sabha
•    Amendment of Constitution USSR:
•    Fundamental Duties
•    Ideal of Justice (Social, Economic and Political) Australia:
•    Concurrent List
•    Joint Sitting of Two Houses Ireland:
•    Directive Principles of State Policy
•    Method of Election of President
•    Nomination of Members to Rajya Sabha by President Canada:
•    Federation with a Strong Centre
•    Vesting of Residuary Powers with the Centre
•    Appointment of Governors in States by Centre
•    Supreme Court's Advisory Jurisdiction  USA:
•    President's Impeachment
•    Removal of Supreme Court & High Court Judges
•    Fundamental Rights
•    Independent Judiciary
•    Judicial Review
•    Functions of President & Vice-President
•    Preamble of Constitution Britain:
•    Parliamentary Form of Government
•    Single Citizenship
•    Rule of Law
•    Prerogative Writs
•    Cabinet System
•    Legislative Procedure
•    Bicameralism
•    Parliamentary Privileges While the drafting of the Indian Constitution, some features were also
borrowed from the Government of India Act, 1935. These features are the federal scheme, office of
governor, judiciary, emergency provisions, public service commissions and administrative details.

CONCLUSION
The Indian Constitution took almost about three years to get drafted. It took final shape after several
discussions and amendments by the learned members of the Constituent Assembly had taken place. The
remarkable precision with which it was made is evident from the fact that it continues to be as effective
today as it was on the day it came into effect. It is truly a living document which continues to live
through changing circumstances by the way of amendments but never looses its essence. The Indian
Constitution is a beautifully written document which represents India and resonates with all the Indian
citizens. Original copies of the Indian Constitution are stored safely in the library of the Parliament in
helium-filled cases.

PREAMBLE
 INTRODUCTION

What is a Preamble?
 A preamble is an introductory statement in a document that explains the
document’s philosophy and objectives.
 In a Constitution, it presents the intention of its framers, the history behind its
creation, and the core values and principles of the nation.
 The preamble basically gives idea of the following things/objects:

o Source of the Constitution

o Nature of Indian State
o Statement of its objectives
o Date of its adoption
History of the Preamble to Indian Constitution
 The ideals behind the Preamble to India’s Constitution were laid down
by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent
Assembly on January 22, 1947.
 Although not enforceable in court, the Preamble states the objectives of the
Constitution, and acts as an aid during the interpretation of Articles when
language is found ambiguous.
Components of Preamble
 It is indicated by the Preamble that the source of authority of the Constitution
lies with the people of India.
 Preamble declares India to be a sovereign, socialist, secular and democratic
republic.
 The objectives stated by the Preamble are to secure justice, liberty, equality
to all citizens and promote fraternity to maintain unity and integrity of the
nation.
 The date is mentioned in the preamble when it was adopted i.e. November 26,
1949.
Key words in the Preamble
 We, the people of India: It indicates the ultimate sovereignty of the people of
India. Sovereignty means the independent authority of the State, not being
subject to the control of any other State or external power.
 Sovereign: The term means that India has its own independent authority and it
is not a dominion of any other external power. In the country, the legislature has
the power to make laws which are subject to certain limitations.
 Socialist: The term means the achievement of socialist ends through
democratic means. It holds faith in a mixed economy where both private and
public sectors co-exist side by side.

o It was added in the Preamble by 42nd Amendment, 1976.

 Secular: The term means that all the religions in India get equal respect,
protection and support from the state.

o It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.

 Democratic: The term implies that the Constitution of India has an established
form of Constitution which gets its authority from the will of the people expressed
in an election.
 Republic: The term indicates that the head of the state is elected by the people.
In India, the President of India is the elected head of the state.
Objectives of the Indian Constitution
 The Constitution is the supreme law and it helps to maintain integrity in the
society and to promote unity among the citizens to build a great nation.

o The main objective of the Indian Constitution is to promote harmony

throughout the nation.
 The factors which help in achieving this objective are:

o Justice: It is necessary to maintain order in society that is promised through

various provisions of Fundamental Rights and Directive Principles of
State Policy provided by the Constitution of India. It comprises three
elements, which is social, economic, and political.

 Social Justice – Social justice means that the Constitution wants to

create a society without discrimination on any grounds like caste, creed,
gender, religion, etc.
 Economic Justice – Economic Justice means no discrimination can be
caused by people on the basis of their wealth, income, and economic
status. Every person must be paid equally for an equal position and all
people must get opportunities to earn for their living.
 Political Justice – Political Justice means all the people have an equal,
free and fair right without any discrimination to participate in political
opportunities.
o Equality: The term ‘Equality’ means no section of society has any special
privileges and all the people have given equal opportunities for everything
without any discriminations. Everyone is equal before the law.
 o Liberty: The term ‘Liberty’ means freedom for the people to choose their
way of life, have political views and behavior in society. Liberty does not
mean freedom to do anything, a person can do anything but in the limit set
by the law.
o Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an
emotional attachment with the country and all the people. Fraternity helps to
promote dignity and unity in the nation.
 Importance of Objectives: It provides a way of life. It includes fraternity,
liberty, and equality as the notion of a happy life and which can not be taken
from each other.

o Liberty cannot be divorced from equality, equality cannot be divorced from

liberty. Nor can liberty and equality be divorced from fraternity.
o Without equality, liberty would produce the supremacy of the few over the
many.
o Equality without liberty would kill individual initiative.
o Without fraternity, liberty would produce the supremacy of the few over the
many.
o Without fraternity, liberty and equality could not become a natural course of
things.
Status of Preamble
 The preamble being part of the Constitution is discussed several times in the
Supreme Court. It can be understood by reading the following two cases.

o Berubari Case: It was used as a reference under Article 143(1) of the

Constitution which was on the implementation of the Indo-Pakistan
Agreement related to the Berubari Union and in exchanging the enclaves
which were decided for consideration by the bench consisting of eight
judges.
o Through the Berubari case, the Court stated that ‘Preamble is the key to
open the mind of the makers’ but it can not be considered as part of the
Constitution. Therefore it is not enforceable in a court of law.
 Kesavananda Bharati Case: In this case, for the first time, a bench of 13
judges was assembled to hear a writ petition. The Court held that:

o The Preamble of the Constitution will now be considered as part of the

Constitution.
o The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution.
 o So, it can be concluded that preamble is part of the introductory part of the
Constitution.
 In the 1995 case of Union Government Vs LIC of India also, the Supreme
Court has once again held that Preamble is the integral part of the Constitution
but is not directly enforceable in a court of justice in India.
Amendment of the Preamble
 42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati
case, it was accepted that the preamble is part of the Constitution.

o As a part of the Constitution, preamble can be amended under Article

368 of the Constitution, but the basic structure of the preamble can not be
amended.
o As of now, the preamble is only amended once through
the 42nd Amendment Act, 1976.
 The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through
42nd Amendment Act, 1976.

o ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.

o ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
Fact:

 Article 394 of the Constitution states that Articles 5, 6, 7, 8, 9, 60, 324, 367, 379
and 394 came into force since the adoption of the Constitution on 26th
November 1949 and the rest of the provisions on 26th January 1950.
 The concept of Liberty, Equality, and Fraternity in our Preamble was adopted
from the French Motto of the French Revolution.
CRITICALLY EXAMINE THE FEDERAL CHARACTERS OF THE INDIAN
CONSTITUTION.

Introduction
Federalism in India is a historical advancement. The Federal configuration under the present
constitution and its tangible operations can be grasped only on the broad canvas of its long
expedition. This essay showcases Federalism in India in a twofold modus: The history of
Federalism in India and the Federal Scheme under the present-day Constitution of India. The
term “federal” is derived from the Latin foedus, which means, “covenant”. This embodies
ideas of promise, obligation, and undertaking; and consequently, the federal idea draws on
collaboration, reciprocity, and mutuality. Federalism is a method of segregating powers so
that the central and local governments are each within a domain, harmonizing and
autonomous. To be lucid, federalism postulates a constitutional apparatus for bringing unity
in diversity by toning the divergent forces of centripetal and centrifugal trends in the country
for the attainment of conjoint national targets.

The Emergence of Federalism and its Evolution

The idea of federalism was initially a religious one and it was from this divine perception that
the up-to-the-minute political doctrine of federalism materialized.[1] The Bible is regarded as
the first book to discuss the problems of federal polity. Ancient Israel offers the first example
of a union of constituent politics grounded on a sense of shared religion nationality.

In India, Between 321 and 185 B.C. in Magadha, the Mauryans for the first time assimilated a
number of kingdoms and republics[2] which might be the first sub-continental state in Indian
history India.[3] And the Mughals, beginning with Sher Shah’s land revenue system and
taking shape with Akbar’s division of his empire into 12 Subahs or Provinces provide excellent
examples of a federal government.[4]

The turning junction in India’s federal scheme came when it was taken over by the British
forces. But where did the idea come from?

Postmodern Philosophy in Different Nations: Meaning,

Definition, and Features of Federalism
The classic definition of federalism is that offered by K.C. Wheare, who described the federal
principle as “the method of dividing powers so that the general and regional
governments are each within a sphere coordinate and independent.”[5]  A similar
definition of federalism was offered by A.V. Dicey, who identified the three leading
characteristics of a “completely developed federalism” as including the distribution of powers
among governmental bodies (each with limited and coordinate powers), along with the
supremacy of the constitution and the authority of the courts as the interpreters of the
constitution.[6]
In the modern period, the Constitution of the United States of America, of 1787, is treated as
the first experiment in establishing a federal system of government. Subsequently,
federalism as a mode of political organization was embodied in the Constitutions of
Switzerland, the Dominion of Canada and the Commonwealth of Australia and India.

A vital feature is the division of power between the central government and the constituent
units under a constitutional scheme that cannot be changed legally by an ordinary method of
central legislation. It is also essential that the arrangement assures the ability of the central
government to carry out its purposes within the scope of its authority over the whole area.
Hence in a federation, we find:

 Two sets of government constitutionally coordinate

 Division of powers between center and units.
 A federal court as a guardian of the constitution; and
 Supremacy of the constitution which is rigid.

India: A Brief History of Foundation of today’s Federalism

The genesis of the present federal system in India lies in the Simon Report of May 1930
which supported the idea of a federal government in India. This support for the federal form
of government for the India of the future was further affirmed in the in the First Round Table
Conference of 1930.[7] Mr. Ramsay Mac Donald, the then Prime Minister of Great Britain,
speaking at the final plenary session of that Second Round Table Conference said[8]:

“There is still difference of opinion, for instance as to the composition and powers of the
Federal Legislature, and I regret that owing to the absence of a settlement of the key
questions of how to safeguard the Minorities under a responsible Central Government, the
Conference has been unable to discuss effectively the nature of the Federal Executive and its
relationship with the Legislature”.

After the Third Round Table also flopped significantly, the British Government issued a White
Paper in March 1933, which proposed a new Indian Constitution with an accountable
government in the provinces and the principle of dyarchy at the Centre. As a result of the
publication of the White Paper, a Joint Select Committee of both Houses of Parliament was
appointed by His Majesty’s Government in April 1933 to evaluate and survey the proposals of
the White Papers. These proposals were enacted into law and received the assent of the
British Crown and became ultimately the basis for the Government of India Act of 1935.

The significance of the Act of 1935 lies in the fact that the provinces were endowed with a
legal personality under a national scheme, and that the character of the national scheme was
ultimately a federal system. This meant the abolition of the principle of dyarchy at the
provincial level and its retention at the Centre.

But the federal construction that India follows today is poles apart from what the British
came to us with. The biggest hint of federalism in India lies in the history of its foundation in
1947 when after the Partition of Pakistan from the Indian subcontinent all the provinces,
presidencies, and princely states were united under an instrument of accession that signifies
that all these previously sovereign or reliant states came together to be called one nation-
state. The development and the journey of India as a federal country can be broadly
understood by dividing it into two parts: The constitutional/legal provisions and the face of
federalist India brought in by the Judiciary.

The Constitutional Character of Federalism in India: Two-

way Analysis
The constitution of India is unique with respect to its extreme detail and substance. The
uniqueness of the Indian constitution is also in the fact that although it is federal in
character, it declares India to be a union of states.[9]

The constitution provides for a single citizenship like the United Kingdom and unlike the
United States America that provides for dual citizenship. Single citizenship gives the
constitution a unitary facet where all citizens are united under one identity as an “Indian”.

The constitution of India establishes a dual polity with the jurisdiction of making laws on
different subject matters is divided between union and the state governments.[10] The
distinguishing feature here is that the residual powers lie in the hands of the central
government.[11] This attribute which is different than other countries takes makes the Indian
federalism a bit intricate to fathom.

Another feature that marks India to be a federal country in nature is the written constitution.
Indian constitution is the lengthiest and the bulkiest constitution in the world which clearly
defines everything from rights to remedies. This strengthens the federal nature of the
country and assures security to the state and citizens.

The powers in the country are split amongst the three pillars of democracy: the Legislature,
the Executive, and the Judiciary. All these three props are complementary and
supplementary to each other with an independent judiciary which is the upholder of the
supremacy of the constitution and get to the bottom of disagreements flanked by center and
states or between 2 states. This guarantees a stringent remedial system. But is that
sufficient? The judiciary although independent is an integrated institution and thus gives the
essence of unitary government to the constitution. Other terms of the same constitution
provide for the president to appoint the constitutional heads of all states i.e.
governors[12] and they hold their office to the desire of the president. Doesn’t that mean
that the heads of the state are appointed to the pleasure of the central government? One
may wonder.

The constitution of India is both stern and elastic at the same time. The rigidity of the
constitution is an indispensable feature of federalism. But the same rigid constitution has hit
a century of amendments in less than 75 years of Independence.

The Constitution provides for a bicameral legislature consisting of an Upper House (Rajya
Sabha) and a Lower House (Lok Sabha). The Rajya Sabha is the stand-in for the states of
Indian Federation, while the Lok Sabha represents the people of India as a whole. The Rajya
Sabha (even though a less powerful chamber) is required to conserve the federal stability by
protecting the interests of the states against the uncalled-for interference of the Centre.

Other than the aforesaid provisions the following provisions of the constitution clash with the
federal nature of it:
  Union has the power to make new states or alter the boundaries of existing states.
[13]
 Union has the power to make laws on state matters and if both state and union
adjudicate on a certain matter, the latter will prevail.[14]
 The emergency articles of the constitution when conjured up, give a unitary
character.[15]

Judicial Character of Federalism in India

The Indian judiciary has time and again heard a number of cases involving the issue of the
federal character of the Indian constitution. To understand what it had to say I have collected
a few cases in a chronological order that will help in understanding the judiciary’s take on
this.

State of West Bengal v. Union of India[16]:

“The Constitution of India is not truly Federal in character. The  basis of the distribution of
powers between the  Union and States is that only those powers which are  concerned with
the  regulation of local problems are vested in the  States and  the residue, especially those
which tend to maintain the economic industrial and commercial unity of the country are left 
to  the  Union.” 

State of Rajasthan v. Union of India[17]

“In a sense, the Indian Union is federal. But the extent of federalism in it is largely watered-
down by the needs of progress and development of the country which has to be nationally
integrated, politically and economically co-ordinated and socially, intellectually and spiritually
uplifted. With such a system, the States cannot stand in the way of legitimate and
comprehensively planned development of the country in the manner directed by the Central
Government

State of Karnataka v. Union of India[18]

“The Indian Constitution is not federal in character but has been characterized as
quasi-federal in nature. Even though the executive and legislative functions of the Centre
and States have been defined and distributed, there runs through it all a thread or rein in the
hands of the Centre in both the fields.  “

Kesavananda Bharati v. State of Kerala[19]

Some of the judges, in this case, held federalism to be a part of the basic structure of the
constitution which means it can’t be tampered with.
S.R. Bommai v. Union of India[20]
In this case, 4 different opinions were given by judges

1.  Justice Ahmadi: Because of no mention of the words like ‘federal’ he declared it to be a

quasi-federal constitution.

2.  Justice Sawant & Kuldip Singh:  Federalism is an essential feature of the constitution.

3.  Justice Ramaswamy: Declared India to be an “Organic Federation” designed to suit the

needs of the parliament.

4.  Justice Jeevan Reddy and Justice Agarwal: Federalism in the constitution has a
different meaning in accordance with the context.          This case posed restrictions on the
arbitrary use of article 356.

Challenges to Federal Character of India: 3 Recent

Incidents
India’s federal experiment has undergone, over the past sixty years, many trials and
tribulations.

 Formation of Telangana under Article 3 of the constitution raised a lot of questions

against the federal nature of the polity.
 100th amendment of the constitution where land was transferred to Bangladesh has
posed as a serious threat to federalism in India.
 Introduction of Goods & Services Tax is a moot point. Whereas the supporters of
GST argue that states too should levy taxes under it, the naysayers argue on the
autonomy of states.

Merits and Demerits of Federalism in India

Federalism in a diverse country like India has both merits and its consequences. Division of
power helps in the easy governance of the 7 th largest country but then a country with the
second largest population needs a united government to govern people of almost every
possible religion that exists. The integrated and independent judiciary is definitely a merit for
the nation as it helps in proper remedy for rights. On the other hand, a written constitution
with the kind of flexibility and rigidity possessed by the Indian constitution is a boon when it
comes to the codification of rights but the same rigidity can stand as a bane if amendments
need to be made. However, amendments to the Indian constitution are not that tough after
all.[21]
Present and Future of Federalism in India: Conclusion
The motto of “Unity in diversity”  has always been very important to India and a federal
government helps to establish a country with mutual tolerance and existence. However, for a
country like India which is divided on the linguistic and communal basis, a pure federal
structure would lead to disruption and division of states. With too much power given to a
state, it will want to shift away from the union and establish its own government. I believe
that is the reason why Jammu & Kashmir’s special powers are in question in the public time
and again.[22]

To overcome all this and the aforementioned demerits we need to strike a balance between
both unitary and federal features of the country. States should be autonomous in their own
sphere but they can’t be wholly independent to avoid a state of tyranny in the nation. People
of India need protection and security from such things and that is what the constitution of
India with its special provisions provides. It establishes a state which is both a union and a
federation at the same time and thus gives India a structure of a quasi-federal government
which has united the diversity of India for past 71 years and will do the same for the
centuries to come.
 

KINDS OF CONSTITUTION

Constitution and it’s different types

To understand the meaning and types of constitution, it is important to know that there are
two kinds of constitution. These kinds have two different ways in which the constitution can
be understand.

The first nature of the constitution is consider as the expression of the democracy of the
country. In other words, the concept of a constitution is to provide facility people.

Second nature is that it can be seen as a legal, social and political contract between
government as a organization.

Today, we will discuss those different types of constitution. I urge you to read this to the
end if you really want to understand the types of constitution.

Different types of Constitution read: what are the different sources of

constitution

There are FIVE different types of Constitution, are as follows:-

1. Written and Unwritten Constitution

2. Flexible and Rigid Constitution
3. Unitary and Federal Constitution
4. Presidential and Parliamentary Constitution
5. Republic and Monarchical Constitution

Written and Unwritten Constitution

An unwritten constitution is a type of constitution does not contain a single document. This
type of constitution is partially written and partially oral. Like common law and customary
law, an unwritten constitution grows from many years of practical experience and through
human political approach.The British Constitution is an excellent example of an unwritten
constitution. But It is not a single document, but it contain various sources, such as statutes,
convection, and judicial decisions.As it is partially written and not partially not written, the
British Constitution is based on a number of practices or convection. That is, constitutional
procedures are not legal rules, but is accept by binding the British people.

A written constitution, is a type of constitution which contain a single document and can be
easily obtain and negotiate on any subject under discussion. Written constitution is not
flexible in nature because of its complex amendment system. Although amendment can be
possible when is seems necessary.

Flexible and Rigid Constitution

A flexible constitution is, which can be easily amend or change without a complicate
process. This kind of constitution can amend like any other law, by a simple vote of the
members of parliament.

A Rigid constitution, is a type of constitution, which takes long processes of amendment.

The process of amending a rigid constitution is different from the process of enacting and
amending the common laws of the land.

The enactment or amendment of common law is usually made by a simple majority of the
votes in the relevant parliament which has the power to make or amend that law.

However, the process of amending a rigid constitution may include a two-thirds majority
vote of the members of the federal legislature, as well as a tow-thirds majority vote in two-
thirds of the state legislatures in that country.

Unitary and Federal Constitution

A unitary constitution is one of a kind of constitution that provides for the powers of
government to focus on a single central government. It does not share power with other
organs in the country, but transfers power to provincial, local and other sub-government.

In a unitary constitution, all the powers of government are in center, as it is the only source
of authority from which power flows.

A country that uses an unitary government system usually adopts an unconstitutional

constitution. The Constitution, though Supreme, is normally flexible and not rigid, as the
government has the power to amend it as needed.

The federal constitution, is an free state organization with constitutionally assign powers in
federal, state and local councils. Each sphere of government exercises its constitutionally
assign powers and functions.

In contrast, the federal constitution provides different structure of government in national,

state and local councils. Each division has its constitutional powers and functions.
The powers of different form of government are often describe in the constitutional order
of the organization.

Presidential and Parliamentary Constitution

A presidential constitution is, in which all administrative powers are vest by the president of
the country. The president may exercise the executive authority by own or through
consultation with the vice-president, the minister, or other officers in the public service.

The power of the president is to uphold the constitution.  He also implement all the laws
enact by the current parliament.

A parliamentary constitution is, in which all the executive power of the state is vest by the
Prime Minister. He is the head of government and the head of the majority party, but not
the head of state.

Countries where this type of constitution is being practice, the head of state who conducts
ceremonial events only. He may be the king, president, chief, the emblem of the state and
the Father or mother of the nation.

Republic and Monarchical Constitution

Republican Constitution is a constitution that provides the position of head of the state
who is commonly known as President.

To understand the Monarchical Constitution, you must understand that the monarchy is a
government govern by a King, Queen, or Emperor.

The monarchical constitution is actually a monarchy where the king succeed to his child or
other heir from generations to generation or from one ruling house to another.

There are two types of monarchical constitution, are as follows:-

CONSTITUTIONAL MONARCH :-  This is a kind of constitutional Monarchy in which the

monarchy is the head of a ceremonial empire and a symbol of a nation. Also he holds
limited powers.

ABSOLUTE MONARCH :- In Monarchal constitution, the king have absolute power and is a
perfect ruler. He rules by divine sovereignty and his authority is not limited by the
constitution.

Also read: what is rule of law in constitution

Concluding on different types of Constitution

So, here I’m going to drop my pen for this article. From what we have discussed above, I
strongly believe that you understand what a constitution is and you can explain the types
of constitution to anyone.

However, if you have a questions you can ask about this topic, do not hesitate to post it
using the comments section. It will be nice to hear from you!

DOES ARTICLE 14 PERMIT CLASSIFICATION ? IF SO, DISCUSS THE BASIS OF

CLASSIFICATION.

Article 14 of the constitution guarantee the right to equality to every citizen of  India . It
embodies the general principles of equality before law and prohibits unreasonable
discrimination between persons.  Article 14 embodies the idea of equality expressed in
preamble.
 
ARTICLE 14- EQUALITY BEFORE LAW
Article 14 declares that ‘the State shall not deny to any person equality before the law or
equal protection of law within the territory of India.’. thus article 14 uses the two
expressions “equality before law” and “equal protection of law”. The phrase “equality
before law” find a place in almost in written constitution that guarantees fundamental
right both these expression .both this expression  aim at establishing  what is called
“equality of status” While both the expression are kind of identical but they don’t give
similar meaning.

EQUALITY BEFORE LAW

Its origin is from America. And somehow its negative concept. It aims at implying the
absence of any special privilege  by reason of birth, sex, religion etc in favor of
individuals and the equal subject of all the classes to the ordinary law

EQUAL PROTECTION OF LAW

Its origin is from British. And some how it is a positive concept. it aims at equality of
treatment in equal circumstances. It means whether someone is P.M. or President he
should be deal with same law as normal being deals with
 
RULE OF LAW
The guarantee of equality before the law is an aspect of what Dicey calls the Rule OF
Law in England. It means that no man is above the law and that every person whatever
be his rank or condition is subject to the jurisdiction of ordinary courts.
Rule of law require that no person shall be subjected to harsh, uncivilized or
discriminatory treatment even when the object is the securing of the paramount
exigencies of law and order.
Professor Dicey gave three meanings of thr Rule Of Law
1. Absence of arbitrary power or supremacy of the law
 It means the absolute supremacy of law as opposed to the arbitrary power of the 
Government. In other words-a man may be punished for a brech of law,but he cant be
punish for anything else.
2. Equality before law
It means subjection of all classes to the ordinary law of land administrated by ordinary
law courts. This means that no one is above law all are equal in eyes of law
3. Absence of individual liberty
There are various constitution that provide individual liberty but not provide method It
means that the source of the right of individuals is not the written constitution. U.K. don’t
have provision for individual liberty.
 
Rule Of Law In India
1. Supremacy of Law: 
The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be
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. It implies that a man may
be punished for a breach of law but cannot be punished for anything else. No man can
be punished except for a breach of law. An alleged offence is required to be proved
before the ordinary courts in accordance with the ordinary procedure.
2. Equality before Law:-
 The Second meaning of the Rule of Law is that no man is above law. 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. Everybody under Article 14 is
equal before law and have equal protection.
3. Individual Liberty

lot of individual liberty is mention like fundamental right in Article 21- protection of life
and personal liberty, article 19- Right to freedom etc. and courts are their to protect
individual liberty.
The first and second aspect apply to Indian system but the third aspect of the diceys
rule of law does not apply to Indian system  as the source of right of individuals is the
constitution of india. The constitution is the supreme law of the land and all laws passed
by the legislature must be consistent with provisions of the constitution
The rule of law impose a duty upon state to take special measure to prevent and punish
brutality by police methodology. The rule of law embodied in article 14 is the basic
feature of the Indian constitution and hence it can’t be destroyed even by an
amendment of the constitution under article 368 of the constitution.
 
Exception To Rule OF Law
The above rule  of equality is however not an absolute rule and there are  number
exception to it
v ‘Equality of Law’ does not mean the power of the private citizens are the same as the
power of the public officials. Thus a police officer has the power to arrest you while no
other private person has this power. This is not violation of rule of law. But rule of law
does require that these powers should be clearly defined by law and that abuse of
authority  by public officers must be punished by ordinary courts.
 
vThe rule of law does not prevent certain class of persons  being subject to special
rules. Thus members of  armed forces are controlled by military rules. Similarly medical
practitioners are controlled by medical council of India
 
vCertain members of society are governed by special rules in their profession i.e.
lawyers, doctors, nurses, members of armed forces and police. Such classes of people
are treated differently from ordinary citizens.
 
Article 14 Permits Classification But Prohibits Class Legislation
The equal protection of laws guaranteed by Article 14 does not mean that all laws must
be general in character. It does not mean that the same laws should apply to all
persons. It does not attainment or circumstances in the same position. The varying
needs of different classes of persons often requires separate treatment. From the vary
nature of society there should be different laws in different places and the legitimate
controls the policy and enacts laws in the best interest of the safety and security of the
state. In fact identical treatment in unequal circumstances would amount to inequality.
So a reasonable classification is only not permitted but is necessary if society is to
progress.

Thus what Article 14 forbids is class-legislation but it does not forbid reasonable
classification. The classification however must not be “arbitrary ,artificial or evasive” but
must be based on some real and substantial bearing a just and reasonable relation to
the object sought to be achieved by the legislation. Article 14 applies where equals are
treated differently without any reasonable basis. But where equals and unequals are
treated differently, Article 14 does not apply. Class legislation  is that which makes an
improper discrimination by conferring particular privileges upon a class of  persons 
arbitrarily selected from a large number of persons all of whom stand in the same
relation to the privilege granted that between whom and the persons not so favored no
reasonable distinction or substantial difference can be found justifying the inclusion of
one and the exclusion of the other from such privilege.

Test Of Reasonable Classification

While Article 14 frobids class legislation it does not forbid reasonable classification of
persons, objects, and transactions by the legislature for the purpose of achieving
specific ends. But classification must not be “arbitrary ,artificial or evasive”. It must
always rest upon some real upon some real and substantial distinction bearing a just
and reasonable relation to the object sought to be achieved by the legislation.
Classification to be reasonable must fulfil the following two conditions

Firstly the classification must be founded on the intelligible differentia which

distinguishes persons or thing that are grouped together from others left out of the
group
Secondly the differentia must have a rational relation to the object sought to be
achieved by the act.
The differentia which is the basis of the classification  and the object of the act are two
distinct things. What is  necessary is that there must be nexus between the basis of
classification and the object of the act which makes the classification. It is only when
there is no reasonable basis for a classification that legislation making such 
classification may be declared discriminatory. Thus the legislature may fix the age at
which persons shall be deemed competent to contract between themselves but no one
will claim that competency. No contract can  be made to depend upon the stature or
colour of the hair. Such a classification will be arbitrary.

 The true meaning and scope of Article 14 have been explained in a number of
cases by the supreme court. In view of this the propositions laid down in Damia case
still hold good governing a valid classification and are as follows.
1.A law may be constitutional even though it relates to a single individual if on account
of some special circumstances or reasons applicable to him and not applicable to
others, that single individual may be treated as a class by itself
2. There is always presumption in favour of the constitutionality of a statute and the
burden is upon him who attacks it to show that there has been a clear transgression of
constitutional principles.
3.The presumption may be rebutted in certain cases by showing that on the fact  of the
statue, there is no classification and no difference peculiar to any individual or class 
and not applicable to any other individual or class, and yet the law hits only a particular
individual or class
4. It must be  assumed that Legislature correctly understand and appreciates the need
of its own people that its law are directed to problem made manifest by experience and
that its discrimination are based on adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into
consideration maters of common knowledge, matters of report, the history of the times
and may assume every state of facts which can be conceived existing at the time of the
legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its
restriction to those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a legislature
are to be presumed, if there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the classification may
reasonable be regarded as based, the presumption of constitutionality cannot be carried
to extent always that there must be some undisclosed and unknown  reason for
subjecting certain individuals or corporation to be hostile or discriminating legislation
8.The classification may be made on different bases e.g. geographical or according to
object or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or logically
complete.Mathematical nicety and perfect equality are not required.
Equality before the law does not require mathematical equality of all persons in all
circumstances. Equal treatment does not mean identical treatment. Similarly not identity
of treatment is enough.
10. There can be discrimination both in the substantive as well as the procedural law.
Article 14 applies to both.
If the classification satisfies the test laid down in the above propositions, the law will be
declared constitutional. The question whether a classification is reasonable and proper
and not must however, be judged more on commonsense than on legal subtitles.
 
Cases 
Ø D.S. Nakara v. Union Of India
The Government issued an office memorandum announcing a liberalized pension
scheme for retired government servants but made it applicable to those who had retired
after 31 March 1979. The supreme  court held that the fixing of the cut off date to be
discriminatory as violating Article 14. The devision of pensioners into two classes on the
basis of the date of retirement was not based on any rational principle because a
difference of two days in the matter of retiremnt could hav 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 had no rational
nexus with the object sought to achieved.
 
ØMadhu Limaye v. Supdt. Tihar Jail Delhi
There were Indian and Europian Prisoners. Both were treated differently. Europian gets
better diet. Court held that difference between Indian and  Europian prisoners in the
matter of treatment and diet violates right to equality under Article 14 of Indian
prisoners. They all are prisoners they must treat equally.
 
Ø Sanaboina Satyanarayan v. Govt. of A.P
In Andra Pradesh. They formulate a scheme for prevention of crime against women. In
prisons also prisoners were classify in to two category first
Prisoners guilty of crime against women and second prisoners who are not guilty of
crime against women. Prisoners who are guilty of crime against women challenge the
court saying that there right to equality is deprived. Court held that there is resoanble
classification to achieve some objective.
 
Ø Tamil Nadu  Electricity Board v R. Veeraswamy
The employee were governed by the contributory provident fund scheme. With effect
from 1-7-1986 a scheme was introduced. The question was whether the pension
scheme ought to be applied to those who had already retired before the introduction of
the pension scheme the supreme court rejected the claim. As per the rules prevalent at
the time the retirees had received all their retiral benefits. If the pension scheme was
made applicable to all past retirees, the resulting financial burden would be Rs200 crore
which would be beyond the capacity of employer. The reason given for introducing the
scheme was financial constraint- a valid ground. The court held that retired employees
and those who were in employment on 1-7-1986 cant be treated alike as they do not
belong to one class. Te workmen who had retired and received all the benefits under
the contributory provident fund scheme cease to be employees of the applellant  board
w.e.f. the date of their retirement. They form a separate  class. Thus there was no
illegality in introducing the pension scheme and  not making it applicable retrospectively
to those who had retired before the date.

Conclusion
What article 14 forbids is discrimination by law that is treating persons similarly
circumstanced differently and treating those not similarly circumstanced in the same
way or as has been pithily put treating equals as unequals  and unequals as equals.
Article 14 prohibits hostile classification by law and is directed against discriminatory
class legislation.

A legislature for the purpose of dealing with the complex problem that arise out of an
infinite variety of human relations cannot but proceed on some sort of selection or
classification of persons upon whom the legislation is to operate.

Its is well settled that Article 14 frobid classification for the purpose of legislation. Its is
equally well settled that in order to meet the test of Article 14
(i) classification must be based on intelligible differentia which distinguishes persons or
things that are grouped together from those that are left out of group and (ii) the
differentia must have a rational nexus to the objects sought to be achieved by the
executive or legislative action under challenge.

Article 14 contains a guarantee of equality before law to all persons and protection to

WRITE A NOTE ON ‘DOCTRINE OF SEVERABILITY’

Basis Of Doctrine
This doctrine of severability is also known as the doctrine of separability.  The word “to the
extent of the inconsistency or contravention” makes it clear that when some of the provision
of a statue when some of the provisions of a statute becomes unconstitutional on account of
inconsistency with fundamental rights, only to the repugnant provision of the law in question
shall be treated by the courts as void, and not the whole statute.

The doctrine of severability means that when some particular provision of a statute offends or
is against a constitutional limitation, but that provision is severable from the rest of the
statute, only that offending provision will be declared void by the Court and not the entire
statute.

The doctrine of severability says that if good and bad provisions are joined together by using
the word ‘and’ or ‘or’ and the enforcement of good provision is not made dependent on the
enforcement of the bad one that is the good provision can be enforced even if the bad one
cannot or had not existed, the two provisions are severable and the good one will be upheld
as valid and given effect to. On the other hand, if there is one provision which is capable of
being used for a legal purpose as well as for illegal one, it is invalid and cannot be allowed to
be used even for the legal purpose.

In this doctrine it is not the whole act which is held invalid for being inconsistent with the Part
three of the constitution which is given to the citizens of India. It is only those parts are
inconsistent which are violative of the fundamental rights. But just the part which violates the
fundamental rights is separable from that  which does not isolate them. If it there that the
valid portion is combined with the invalid portion that it is impossible to separate them. Then
in such cases the court will leave it and declare the whole Act as void. This process of doing it
is known as the doctrine of severability.

The honourable Supreme Court of India has used this doctrine in the case of A.K Gopalan vs
State of Madras it was held by the court that the preventive detention should be removed
from section 14 then it would be valid and by removing this will not affect the act and it will
remain valid and effective. The doctrine was further was also applied in D.S Nakara vs Union
of India where it was that the act remained valid and the portion which was not consistent
was declared as invalid and this was because it was easily separated from the valid part.
Also, State of Bombay vs F.N Balsara and here it was held that the provision of the Bombay
Prohibition Act, 1949 where the entire act was declared as void and it did not affected the
rest of the part and there was no need to declare the whole statute as void.
The doctrine of severability was even used in the case of Minerva Mills vs Union of
India  where section 4 of 55 of the 42nd Amendment Act, 1976  was struck down for being
beyond the amending power of the Parliament and then it had declared the rest of the Act as
valid. Then in another case of Kihoto Hollohan Vs Zachillhu which is very famously known as
the defection case. In this case the paragraph 7 of the Tenth Schedule which was first
inserted by the 52nd Amendment Act of 1985 was declared as unconstitutional because it
had violated the provisions under Article 368(2). But, the whole part was not declared
unconstitutional. So, the rest of the Tenth Schedule excluding paragraph 7 was upheld by the
Constitution.

The doctrine of severability was considered by the supreme court of India in the case
of R.M.D.C vs Union of India and the rules regarding severability was laid down in this case-

1. The intention of the legislature behind this is the determine whether the invalid
portion of the statute can be severed from the valid part or not.
2. And if it happens that the both the valid and invalid parts can’t be separated from
each other then the invalidity of the portion of the statute will result in invalidity of
the whole act.
3. Even if it happens that the invalid portion is separate from the valid portion.
It is the power and duty of the courts to declare law which is inconsistent with the
constitution of India to be unconstitutional. The foundation of this power of judicial review as
it was explained by a nine-judge bench is the theory that the constitution which is the
fundamental law of the land, is the will of the people, while the statute is only the creation of
the elected  representatives of the people, when therefore the will of the legislature as
declared in a statute, stands in opposition to that of the people as declared in the
Constitution, the will of the people must prevail.

Also, the power to annul the acts of the executive and the judiciary which violates the
constitution is given by the Constitution itself in the judiciary. But, the same is not part of the
legislature which is the creature of the constitution or one can say a law-making body. It is
not correct to say that view of the legislators must prevail because they are answerable to
the people. In determining the constitutionality of a provision the court will first question that
whether the law is constitutional or not because there will be a possibility that it might be
contravening a lot of articles that is enshrined in the constitution.

Practice of Doctrine of Severability

The practice of Doctrine of Severability has been in practice for a very long time and it is not
a new thing. It has been adopted in many countries like United Kingdom, Australia, United
States of America, Malaysia and so as well in our country which is India. In England, United
Kingdom the doctrine of severability goes back when it had originated in the case
of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd. In this case Then in
other countries like the United States of America where the first case of doctrine of
severability was decided in the year 1876. After this a question evolved which question that if
the Congress knew about the invalid portion had it enacted it the first time. In this particular
case the case was centred around the fifteenth amendment of the american constitution that
spoke about the voting rights not being  denied to the American male citizen on the basis of
color or race etc.
Then in the very popular case of Champlin Refining Co. v. Corp. Commission of
Oklahoma where an oil refining company had challenged several provisions of the Oklahoma
statute which further argued the various provisions that had violated the Commerce
Clause and even the fourteenth amendment that talks about the due process and equal
protection clauses. And in determining whether any of these or any one of them could be
struck down and further separated from the residue of the oil and gas statute at issue. In the
year 2006 the Supreme Court of the United States of America propounded the three
principles as an underlying rationale. Then in the case of Ayotte vs. Planned Parenthood of N.
New Eng., here also the court had laid down the three principles of severability.

In another case which is Cardegna. Vs Buckeye Check Cashing that was in the year 2006
where the defendant which was the Buckeye took a loan amount from a subsidiary that was a
business. Later on again he took another loan amount which was higher than the loan
amount which was previously taken and then he was later unable to pay back. He then filed a
class action suit with the help of a lawyer. The suit was regarding that the interest rates
charged by the plaintiff were higher when compared with others that was charged by the
company that was at least 45 percent higher than the prescribed normal rates. But, the court
in Florida stated that it is not only one part of the contract that could be challenged  but it
needs to be the whole contract. And so this means that the doctrine of severability which
earlier was thought could be applied cannot be applied now. Further the honourable Supreme
Court of gave the decision and declared that the whole of the contract was void ab initio on
the grounds that such void contracts that are absolutely void and useless from the initial
stage itself.

The doctrine of severability has now it just been part of the western world but also has
spread to the eastern countries of the world. Like from India to Malaysia and in Malaysia this
doctrine was evolved in the very popular case which is Malaysian Bar & Anr. V. Government
of Malaysia. When we talk about India with respect to the doctrine of severability then we
need to study and understand how Article 13 of the Indian Constitution came into being. This
doctrine works when it becomes evident that any part of the law offends the Constitution .
When we talk about incontext of Indian Constitution then it will be the fundamental rights
which is guaranteed by the Constitution. So, this doctrine will work especially when subjected
to this part which is Part III of the Indian Constitution. 
EXAMINE THE SCOPE OF “OTHER AUTHORITIES” UNDER ARTICLE 12 OF THE

CONSTITUTION

Introduction
Fundamental rights are a group of rights which are guaranteed to all the citizens of the
nation by the Constitution of India under Part III. These rights apply universally to all citizens
residing in the nation, irrespective of their race, place of birth, religion, caste or gender. They
are recognized by law as rights requiring a high degree of protection from the government
and they cannot be violated by the Government. Fundamental rights cannot be enforceable
against individuals and private entities.  The obligation of protecting these rights lies on the
government or the state or its authorities.

Most of the Fundamental rights provided to the citizens are claimed against the State and its
instrumentalities and not against the private bodies. Article 12 gives an extended significance
to the term ‘state’. It is very important to determine what bodies fall under the definition of a
state so as to determine on whom the responsibility has to be placed.

The framers of the Constitution used the words ‘the State’ in a wider sense than what is
understood in the ordinary or narrower sense. It does not merely mean the states in the
Union. The word ‘includes’ in the article shows that the definition is not exhaustive and
through judicial interpretations, the court has widened the scope of the Article way beyond
what even the framers of Article 12 may have had in mind during the framing of the
constitution.

Meaning of State under Article 12

Article 12 of the Indian Constitution states that,

“Definition 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.”

In other words, for the purposes of Part III of the constitution, the state comprises of the
following:

1. Government and Parliament of India i.e the Executive and Legislature of the Union
2. Government and Legislature of each State i.e the Executive and Legislature of the
various States of India
3. All local or other authorities within the territory of India
 4. All local and other authorities who are under the control of the Government of India

Key terms discussed under the article

1. Government (Union and state)
2. Parliament and state legislature
3. Local authorities
4. Other authorities
5. Territory of India
6. Control of the government of India
The above-mentioned terms are better explained in the following section along with relevant
cases.

Government (Union and state), Parliament and State

Legislature
 Parliament: The parliament comprises of the President of India, the lower house of the
parliament that is the Lok Sabha as well as the upper house of the Parliament, that is
the Rajya Sabha.
 Executive: It is that organ which implements the laws passed by the legislature and
the policies of the government. The rise of the welfare state has tremendously
increased the functions of the state, and in reality, of the executive. In common usage,
people tend to identify the executive with the government. In contemporary times,
there has taken place
A big increase in the power and role of the executive in every state. The executive includes
the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.

 Legislature: The legislature is that organ of the government which enacts the laws of
the government. It is the agency which has the responsibility to formulate the will of
the state and vest it with legal authority and force. In simple words, the legislature is
that organ of the government which formulates laws. Legislature enjoys a very special
and important in every democratic state. It is the assembly of the elected
representatives of the people and represents national public opinion and power of the
people.

 Government: The law-making or legislative branch and administrative or executive

branch and law enforcement or judicial branch and organizations of society. Lok Sabha
(the lower house) and Rajya Sabha (the upper house) form the legislative
branch. Indian President is the head of the state and exercises his or her power directly
or through officers subordinate to him. The Supreme Court, High Courts, and many
civil, criminal and family courts at the district level form the Judiciary.

 State Legislature: The legislative body at the state level is the State Legislature. It
comprises of the state legislative assembly and the state legislative council.

Local Authorities
Before understanding what a local authority is, it is important to define Authorities. According
to Webster’s Dictionary; “Authority” means a person or body exercising power to
command. When read under Article 12, the word authority means the power to make laws
(or orders, regulations, bye-laws, notification etc.) which have the force of law. It also
includes the power to enforce those laws

Local Authority: As per Section 3(31) of the General Clauses Act, 1897,

“Local Authority shall mean a municipal committee, district board, body of commissioner or
other authority legally entitled to or entrusted by the Government within the control or
management of a municipal or local fund.”

The term Local authority includes the following:

1. Local government: According to Entry 5 of the List II of VII Schedule ‘local
government’ includes a municipal corporation, improvement trust, district boards,
mining settlement authorities and other local authorities for the purpose of local self-
government or village administration.
2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within
the meaning of the term local authority, village panchayat is also included.

Test to determine Local Authorities

In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be
characterized as a ‘local authority’ the authority concerned must;

1. Have a separate legal existence as a corporate body

2. Not be a mere government agency but must be legally an independent entity
3. Function in a defined area
4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
5. Enjoy a certain degree of autonomy (complete or partial)
6. Be entrusted by statute with such governmental functions and duties as are usually
entrusted to locally (like health, education, water, town planning, markets,
transportation, etc.)
7. Have the power to raise funds for the furtherance of its activities and fulfilment of its
objectives by levying taxes, rates, charges or fees

Other Authorities
The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the
Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore,
its interpretation has caused a good deal of difficulty, and judicial opinion has undergone
changes over time.

The functions of a government can be performed either the governmental departments and
officials or through autonomous bodies which exist outside the departmental structure. Such
autonomous bodies may include companies, corporations etc.
So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the
judiciary has given several judgements as per the facts and circumstances of different cases.

In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of
‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered
under the expression ‘other authorities’ which perform governmental or sovereign functions.
Further, it cannot include persons, natural or juristic, for example, Unaided universities.

In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope
and held that the ‘ejusdem generis’ rule could not be resorted to the in interpreting ‘other
authorities’. The bodies named under Article 12 have no common genus running through
them and they cannot be placed in one single category on any rational basis.

Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that ‘other
authorities’ would include all authorities created by the constitution or statute on whom
powers are conferred by law. Such statutory authority need not be engaged in performing
government or sovereign functions. The court emphasized that it is immaterial that the power
conferred on the body is of a commercial nature or not.

Territory of India
Article 1(3) of the Constitution of India states that;

“The territory of India shall comprise- (a) the territories of the States;(b) the Union
territories specified in the First Schedule; and (c) such other territories as may be acquired.”

In the case of Masthan Sahib v. Chief Commissioner,  the court held that the territory of India
for the purposes of Article 12  means the territory of India as defined in Article 1(3).

Click above

Control of the government of India

Under Article 12, the control of the Government does not necessarily mean that the body
must be under the absolute direction of the government. It merely means that the
government must have some form of control over the functioning of the body. Just because a
body is a statutory body, does not mean that it is ‘State’. Both statutory, as well as non-
statutory bodies, can be considered as a ‘State’ if they get financial resources from the
government and the government exercises a  deep pervasive control over it.

For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards, but
does not include NCERT as neither is it substantially financed by the government nor is the
government’s control pervasive.

The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls within
them, then it must be considered to be a State within the meaning of Article 12. It was
discussed in the case that– “whether in the light of the cumulative facts as established, the
body is financially, functionally and administratively dominated by or under the control of
Government. Such control must be particular to the body in question and must be pervasive.
Whether State includes Judiciary?
Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial
authorities the power to pronounce decisions which may be contravening to the Fundamental
Rights of an individual. If it was taken into the head of ‘State’, then as per the article, it
would be  by the obligation that the fundamental rights of the citizens should not be violated.
Accordingly, the judgements pronounced by the courts cannot be challenged on the ground
that they violate fundamental rights of a person. On the other hand, it has been observed
that orders passed by the courts in their administrative capacity (including by the Supreme
Court) have regularly been challenged as being violative of fundamental rights.

The answer to this question lies in the distinction between the judicial and non-judicial
functions of the courts. When the courts perform their non-judicial functions, they fall within
the definition of the ‘State’. When the courts perform their judicial functions, they would not
fall within the scope of the ‘State’.

So, it can be noted that the judicial decision of a court cannot be challenged as being

violative of fundamental rights. But, an administrative decision or a rule made by the
judiciary can be challenged as being violative of fundamental rights, if that be supported by
facts. This is because of the distinction between the judicial and non-judicial functions of the
courts.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, 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 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.

Conclusion
The Constitution of India not only gives fundamental right to the citizens but also imposes the
duty on the state to ensure that the fundamental rights are protected. The court through its
interpretations has widened the scope of the term State to include a variety of statutory and
non-statutory bodies under its umbrella.

The need to determine what falls within the meaning of state is, to assign the party on whom
the duty to implement such right is placed upon. Not only that, the definition of state under
Article 12 has several words which may not have definite meanings, words such as local
authorities, control of government, other authorities, etc. and as seen in the above sections,
the courts have, through the course of their judgements,  described the extent of the article
by laying down a test and discussing the meaning of the terms.
IS UNIVERSITY A “STATE” UNDER ARTICLE-12?

Introduction
Fundamental rights are a group of rights which are guaranteed to all the citizens of the
nation by the Constitution of India under Part III. These rights apply universally to all citizens
residing in the nation, irrespective of their race, place of birth, religion, caste or gender. They
are recognized by law as rights requiring a high degree of protection from the government
and they cannot be violated by the Government. Fundamental rights cannot be enforceable
against individuals and private entities.  The obligation of protecting these rights lies on the
government or the state or its authorities.

Most of the Fundamental rights provided to the citizens are claimed against the State and its
instrumentalities and not against the private bodies. Article 12 gives an extended significance
to the term ‘state’. It is very important to determine what bodies fall under the definition of a
state so as to determine on whom the responsibility has to be placed.

The framers of the Constitution used the words ‘the State’ in a wider sense than what is
understood in the ordinary or narrower sense. It does not merely mean the states in the
Union. The word ‘includes’ in the article shows that the definition is not exhaustive and
through judicial interpretations, the court has widened the scope of the Article way beyond
what even the framers of Article 12 may have had in mind during the framing of the
constitution.

Meaning of State under Article 12

Article 12 of the Indian Constitution states that,

“Definition 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.”

In other words, for the purposes of Part III of the constitution, the state comprises of the
following:

1. Government and Parliament of India i.e the Executive and Legislature of the Union
 2. Government and Legislature of each State i.e the Executive and Legislature of the
various States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India

Key terms discussed under the article

1. Government (Union and state)
2. Parliament and state legislature
3. Local authorities
4. Other authorities
5. Territory of India
6. Control of the government of India
The above-mentioned terms are better explained in the following section along with relevant
cases.

Government (Union and state), Parliament and State

Legislature
 Parliament: The parliament comprises of the President of India, the lower house of the
parliament that is the Lok Sabha as well as the upper house of the Parliament, that is
the Rajya Sabha.
 Executive: It is that organ which implements the laws passed by the legislature and
the policies of the government. The rise of the welfare state has tremendously
increased the functions of the state, and in reality, of the executive. In common usage,
people tend to identify the executive with the government. In contemporary times,
there has taken place
A big increase in the power and role of the executive in every state. The executive includes
the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.

 Legislature: The legislature is that organ of the government which enacts the laws of
the government. It is the agency which has the responsibility to formulate the will of
the state and vest it with legal authority and force. In simple words, the legislature is
that organ of the government which formulates laws. Legislature enjoys a very special
and important in every democratic state. It is the assembly of the elected
representatives of the people and represents national public opinion and power of the
people.

 Government: The law-making or legislative branch and administrative or executive

branch and law enforcement or judicial branch and organizations of society. Lok Sabha
(the lower house) and Rajya Sabha (the upper house) form the legislative
branch. Indian President is the head of the state and exercises his or her power directly
or through officers subordinate to him. The Supreme Court, High Courts, and many
civil, criminal and family courts at the district level form the Judiciary.
  State Legislature: The legislative body at the state level is the State Legislature. It
comprises of the state legislative assembly and the state legislative council.

Local Authorities
Before understanding what a local authority is, it is important to define Authorities. According
to Webster’s Dictionary; “Authority” means a person or body exercising power to
command. When read under Article 12, the word authority means the power to make laws
(or orders, regulations, bye-laws, notification etc.) which have the force of law. It also
includes the power to enforce those laws

Local Authority: As per Section 3(31) of the General Clauses Act, 1897,

“Local Authority shall mean a municipal committee, district board, body of commissioner or
other authority legally entitled to or entrusted by the Government within the control or
management of a municipal or local fund.”

The term Local authority includes the following:

1. Local government: According to Entry 5 of the List II of VII Schedule ‘local
government’ includes a municipal corporation, improvement trust, district boards,
mining settlement authorities and other local authorities for the purpose of local self-
government or village administration.
2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within
the meaning of the term local authority, village panchayat is also included.

Test to determine Local Authorities

In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be
characterized as a ‘local authority’ the authority concerned must;

1. Have a separate legal existence as a corporate body

2. Not be a mere government agency but must be legally an independent entity
3. Function in a defined area
4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
5. Enjoy a certain degree of autonomy (complete or partial)
6. Be entrusted by statute with such governmental functions and duties as are usually
entrusted to locally (like health, education, water, town planning, markets,
transportation, etc.)
7. Have the power to raise funds for the furtherance of its activities and fulfilment of its
objectives by levying taxes, rates, charges or fees

Other Authorities
The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the
Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore,
its interpretation has caused a good deal of difficulty, and judicial opinion has undergone
changes over time.

The functions of a government can be performed either the governmental departments and
officials or through autonomous bodies which exist outside the departmental structure. Such
autonomous bodies may include companies, corporations etc.

So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the
judiciary has given several judgements as per the facts and circumstances of different cases.

In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of
‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered
under the expression ‘other authorities’ which perform governmental or sovereign functions.
Further, it cannot include persons, natural or juristic, for example, Unaided universities.

In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope
and held that the ‘ejusdem generis’ rule could not be resorted to the in interpreting ‘other
authorities’. The bodies named under Article 12 have no common genus running through
them and they cannot be placed in one single category on any rational basis.

Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that ‘other
authorities’ would include all authorities created by the constitution or statute on whom
powers are conferred by law. Such statutory authority need not be engaged in performing
government or sovereign functions. The court emphasized that it is immaterial that the power
conferred on the body is of a commercial nature or not.

Territory of India
Article 1(3) of the Constitution of India states that;

“The territory of India shall comprise- (a) the territories of the States;(b) the Union
territories specified in the First Schedule; and (c) such other territories as may be acquired.”

In the case of Masthan Sahib v. Chief Commissioner,  the court held that the territory of India
for the purposes of Article 12  means the territory of India as defined in Article 1(3).

Click above

Control of the government of India

Under Article 12, the control of the Government does not necessarily mean that the body
must be under the absolute direction of the government. It merely means that the
government must have some form of control over the functioning of the body. Just because a
body is a statutory body, does not mean that it is ‘State’. Both statutory, as well as non-
statutory bodies, can be considered as a ‘State’ if they get financial resources from the
government and the government exercises a  deep pervasive control over it.
For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards, but
does not include NCERT as neither is it substantially financed by the government nor is the
government’s control pervasive.

The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls within
them, then it must be considered to be a State within the meaning of Article 12. It was
discussed in the case that– “whether in the light of the cumulative facts as established, the
body is financially, functionally and administratively dominated by or under the control of
Government. Such control must be particular to the body in question and must be pervasive.

Whether State includes Judiciary?

Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial
authorities the power to pronounce decisions which may be contravening to the Fundamental
Rights of an individual. If it was taken into the head of ‘State’, then as per the article, it
would be  by the obligation that the fundamental rights of the citizens should not be violated.
Accordingly, the judgements pronounced by the courts cannot be challenged on the ground
that they violate fundamental rights of a person. On the other hand, it has been observed
that orders passed by the courts in their administrative capacity (including by the Supreme
Court) have regularly been challenged as being violative of fundamental rights.

The answer to this question lies in the distinction between the judicial and non-judicial
functions of the courts. When the courts perform their non-judicial functions, they fall within
the definition of the ‘State’. When the courts perform their judicial functions, they would not
fall within the scope of the ‘State’.

So, it can be noted that the judicial decision of a court cannot be challenged as being

violative of fundamental rights. But, an administrative decision or a rule made by the
judiciary can be challenged as being violative of fundamental rights, if that be supported by
facts. This is because of the distinction between the judicial and non-judicial functions of the
courts.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, 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 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.

Conclusion
The Constitution of India not only gives fundamental right to the citizens but also imposes the
duty on the state to ensure that the fundamental rights are protected. The court through its
interpretations has widened the scope of the term State to include a variety of statutory and
non-statutory bodies under its umbrella.The need to determine what falls within the meaning
of state is, to assign the party on whom the duty to implement such right is placed upon. Not
only that, the definition of state under Article 12 has several words which may not have
definite meanings, words such as local authorities, control of government, other authorities,
etc. and as seen in the above sections, the courts have, through the course of their
judgements,  described the extent of the article by laying down a test and discussing the me
ARTICLE 15
INTROODUCTION
The Constitution of India guarantees various rights to its citizens, including no discrimination
on account of religion, race, caste, or place of birth. Part III of the Indian Constitution
establishes this right under the heading of Fundamental Rights. In India, religion and caste-
based discrimination have existed for a very long time. In every part of India before
independence, discrimination was evident, whether through untouchability or the division of
upper and lower castes. Discrimination still exists today, however, the consequences of such
discrimination are much more severe and punishable. 

According to the 8th Schedule of the Constitution, India recognizes a total of 22 languages.

But in reality, India has more than 1,500 languages spoken in spite of the official languages
of Hindi and English. The Hindi language is spoken by roughly 44.63 per cent of the Indian
population. Diversity often leads to differences of opinion, and those differences of opinion
sometimes lead to discrimination. A major source of discrimination in India is caste
discrimination, which still occurs in some parts of the country. Traditionally, the general
divide in society was between the lower castes and the upper castes. There had been
untouchability for the lower castes. India has now outlawed this rule as it is so unacceptable. 

The stories of women being beaten up for drawing water from well, people being harassed if
their shadow falls on other men, devotees being stopped from entering into the temple, and
beaten up for touching idols of gods has become a common affair of newspapers headlines
whenever I go through one. It seemed to me like a nightmare that has compelled me to look
into the provisions in force that prohibit such differentiation.

A number of cases involving discrimination are based on a variety of variables. Caste and
religion have been the major causes of discrimination in India for most of its history. The
practice of discriminating on the basis of gender is not new either. This includes
discriminating against women as well as LGBTIQA+ individuals. Decriminalising Section
377 of the Indian Penal Code, 1860 in 2018 marked the first step in recognising the
LGBTIQA+ community. A discriminatory act causes emotional pain, mental distress, and
social isolation. Article 15 of the Constitution has been widely needed and existing ever since
it came into force. There are five clauses in Article 15 that specify types of discrimination that
are strictly prohibited.  
The article examines the provisions of Article 15 of the Indian Constitution, which protects its
citizens from discrimination of any kind. Considering India has so many religions, beliefs,
languages, cultures, etc., and has such a diverse population, there is no doubt that
discrimination can occur in such a country. Thus, the purpose of Article 15 is to protect the
rights and interests of the citizens.   

Scope of the word ‘Discrimination’:

Discrimination occurs when you are distinguished or treated in a less favourable manner than
another person under similar circumstances or if you are disadvantaged by being placed on
equal footing another under different circumstances, for example, you being disabled or
pregnant. This action cannot be reasonably and objectively justified.

Article 15 restricts discrimination on the ground of:

 Religion – It means that no person should be discriminated on the basis of religion

from accessing any public place or policy by the state or any group.
 Race – Ethnic origin should not form a basis of discrimination. For example, a
citizen of Afghan origin should not be discriminated from those of an Indian origin.
 Caste – Discrimination on the basis of caste is also prohibited to prevent atrocities
on the lower castes by the upper caste.
 Sex – Gender of an individual shall not be a valid ground for discrimination in any
matter. For example, discriminating transgenders, females, etc.
 Place of birth – A place where an individual is born should not become a reason for
discriminating among other members of the country.
Often the word ‘Discrimination’ is perceived to be contrary to the principles of equality.
Individuals tend to confuse discrimination with breach of equality. Can something that is
disadvantageous and against the general classification of the individual be taken as
discrimination? The answer remains ‘NO’. The Supreme Court in the following cases has
observed that every classification does not constitute discrimination in the first place. 

In the case of Kathi Raning Rawat v. State of Saurashtra, the state of Saurashtra set up
special courts under Saurashtra State Public Safety Measures Ordinance 1949, to adjudicate
on the matters of section 302, section 307 and section 392 read with section 34 of the Indian
Penal Code, 1860. The contention brought before the court was that these provisions are
discriminatory for the residents depending upon the territory.

The court stated that all kinds of legislative differentiation are not discriminatory. The
legislation did not refer to certain individual cases but to offences of certain kinds committed
in certain areas and hence it is not discrimination.

In another significant case of John Vallamattom v. Union of India, AIR 2003 SC 2902, the
Indian Succession Act 1925 prevented the petitioners from bequeathing property for religious
and charitable purposes. The petitioner contented it to be discriminatory against the
testamentary dispositions by a Christian.

The court stated that the Act was to prevent people from making injudicious death-bed
bequest under religious influence, but had a great impact on a person desiring to dispose of
his property upon his death. Hence, the legislation is clearly discriminatory as the properties
of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi were excluded from the provisions
of the Act. Further, no acceptable reasoning was provided to show why the provision
regulates religious and charitable bequests of Christians alone.

When the concept that a reasonable classification can never amount to discrimination is clear,
we suddenly get stuck by the idea of reservation. Is it not discriminatory to differentiate
between two candidates who are appearing for the same post or exam with the same
qualifications? What allows provisions for such differentiation to be made?

Overview of Article 15
In India, Article 15 protects the citizens from racism, untouchability, and various forms of
discrimination based on religion and gender. In India, caste discrimination is the type of
discrimination that is most prevalent. Discrimination and untouchability are a result of caste
division. Untouchability is now an offence in India, however in some areas due to lack of legal
awareness and caste beliefs, people still face untouchability. It is assumed that those born in
lower castes are considered lower than those born in higher castes, and this leads to
discrimination against them. Such discrimination is described as an offence in Article 15 and
those found guilty of the offence are punished and penalized. In order to facilitate the
economic advancement of the socially and economically backward sections of India’s citizens,
the Constitution of India provides reservation to the Scheduled Castes, Scheduled Tribes, and
Other Backward Classes. 

Interestingly, in 2019, the Central Government introduced the 124th Constitution

Amendment Bill in Parliament in order to provide reservations to economically weaker
sections (EWS). The bill was intended to provide a 10% reservation in higher education and
government employment to EWS. Consequently, the Constitution (One Hundred and Third
Amendment) Act, 2019 was passed and as a result, Article 15 was amended to include clause
(6). This was done to provide equal opportunity to EWS as they had been disadvantaged
economically and socially due to pre-independence discrimination and difficulties. 

Besides discrimination on the basis of backwardness, Article 15 also addresses gender-based

discrimination. For a long time, women have been fighting for their rights and opportunities,
and slowly, these provisions are gaining recognition despite the fact they have existed since
the 1950s. Thus, the scope of this article extends to the women too, which provides them
with special protection in order to achieve the aforementioned objective of equal rights. 

Clause 1 of Article 15:  

As stated in Article 15(1), there shall be no discrimination against any citizen of India on the
basis of religion, race, caste, gender, or place of birth.  Despite the fact that castes are
divided into scheduled caste/tribes, backwards classes, and generally, no one should be
discriminated against. As a broad term, discrimination has many aspects, and it is unjust.
People of lower castes like Dalits have been the target of unjust treatment in numerous
instances. Based on the survey by the Hindu, there has been an increase of 6% in
unfavourable bias towards Dalits since 2009. 

There are laws to protect them, including the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, but still, cruelty occurs towards the SCs/STs in certain
parts of the country. In some situations, the lower caste people face many troubles, such as
women being raped and people being killed as a result of protests and caste-related conflicts.
In September 2020, a gang rape case took place in Hathras, a district in Uttar Pradesh, in
which a 19-year-old Dalit girl was raped (Hathras case). 
Additionally, Dalits are also often targeted for atrocities for no apparent reason. For example,
there was a case where the houses of 18 Dalits were set on fire in April 2010. The incident
occurred because of a dog barking at a higher-class man. Several laws have been passed
over the years to protect the rights of people, but discrimination still occurs. One of the
major reasons for this can be a lack of appropriate punishments and an inability of people to
adapt. Only when people agree completely with what is enacted in law will we be able to end
discrimination against them.   

Clause 2 of Article 15:

Under Article 15(2), it is prohibited for an Indian citizen to discriminate against another
Indian citizen on the grounds as outlined in Clause (1). Article 15(2)(a) provides that citizens
should not be prevented from accessing public places, such as shops, restaurants, hotels or
any other place which is open to the general public solely because of their religion, race,
caste, gender, place of birth, or any other similar basis. 

Article 15(2)(b) states that no individual can restrict another individual on the basis of
religion, race, caste, gender, or place of birth from using septic tanks, wells, roads, or any
other public facility maintained by the state funds or specifically designated for public use.
This provision explains how discrimination should be prevented instead of being practiced.
Any discrimination mentioned above shall be prohibited and unlawful. It is illegal and unjust
to restrict or prevent access to a public place established by the state exclusively for public
use.  

Clause 3 of Article 15:

Article 15(3) provides that the state may not prevent itself from making laws that provide
special provisions for women and children. In Yusuf Abdul Aziz v. State of Bombay (1954),
the adultery charge was filed against the appellant under Section 497 of the Indian Penal
Code, 1860. In this case, the main issue was to determine whether Section 497 of the Indian
Penal Code, 1860 is in contradiction with Articles 14 and 15 or not. This case presented the
argument that Section 497 of the Indian Penal Code, 1860 dictates that adultery can only be
committed by man and that women cannot even be punished as abettors. As a result of this
argument, there was a contradiction with regard to whether this was in violation of Article 15,
which prohibits discrimination based on gender. However, it was further stated that Clause
(3) of Article 15 clearly states that nothing contained in Article 15 limits the state’s ability to
make special provision for women and children.

Additionally, it was argued that Article 15(3) should not shield women from the threat or
commission of crimes. Additionally, in this case, the appellant was not even a citizen of India.
Thus, the appellant, in this case, could not invoke Articles 14 and 15, because the
fundamental rights can only be granted to the Indian citizens. Therefore, the appeal was
dismissed. 

Further, in Paramjit Singh v. State of Punjab (2009), the petitioner was elected as a Panch
for a reserved seat reserved exclusively for the women of Scheduled Castes. The petitioner
challenged the election of respondent number 5 as Sarpanch, on the grounds that she was
not eligible for contesting for the elections of Sarpanch which was reserved for the Scheduled
Castes and not Scheduled Castes (women) because respondent was elected as Panch for
Gram Panchayat only against reserved seat for Scheduled Castes (women). It was ruled that,
if the seat of the Sarpanch for a village was reserved for Scheduled Castes, then both men
and women belonging to those categories could stand for election for the Sarpanch’s post,
because the eligibility was basically being a Scheduled Caste and representing the
constituency as Panche. 

Clause 4 of Article 15:

Article 15(4) stipulates that nothing in Article 15 or Article 29(2) prevents the state from
creating special provisions for socially and educationally backward classes of citizens, or the
STs/SCs. There were two major instances that motivated the inclusion of such a clause in
Article 15. First, in the State Of Madras v. Srimathi Champakam (1951), it was the
government of Madras that issued an order setting out how seats would be allocated in
medical and engineering colleges based on a student’s community and caste. Upon
examination, it was determined that the order violated Clause (1) of Article 15 which stated
that seats were allotted based on castes of students and not merit. The seven judge bench
then overturned this order that allotted seats based on caste and not merit. 

Secondly, in Jagwant Kaur v. State of Maharashtra (1952), the construction of a colony solely

for harijans was considered to be violative of Article 15(1). Clause(4) under Article 15 was
thus introduced for the purpose of helping the socially and educationally disadvantaged
citizens without violating any other provisions. 

Furthermore, Article 29(2) [which is also mentioned under Article 15(4)] indicates that no
citizen of India is discriminated against when applying for admission to a state-run
educational institution or receiving financial aid out of state funds based on their religion,
caste, race, or language. Therefore, Article 15(4) is not an exception, but rather a special
provision for socio-economically and educationally backward sections of society.  

It was held by the Supreme Court in A. Periakaruppan v. State of Tamil Nadu (1971)  that
classifying socially and educationally backward classes on the basis of caste was in violation
of Article 15(4). According to the Court, it was, however, necessary for the conditions of such
a class of people to change as that was the main reason for providing them with a
reservation. In Balaji v. State of Mysore (1963), the Mysore Government issued an order and
decided to provide 68% reservation for students belonging to backward classes for their
admissions in medical and engineering colleges. The government left only 32% of reservation
for students getting admission on merit. Because of this reservation, students with higher
marks than those in the reserved category failed to obtain a seat. In the opinion of the Court,
the categorization of backward and even more backward classes was not justified under
Article 15(4). In order to be considered ‘backward’, both socially and educationally backward
can be included. Clause (4) of Article 15 does not talk about caste but class. Additionally, the
Court stated that reserving 68% of seats in medical and engineering schools would constitute
constitutional fraud, as Clause (4) of Article 15 prohibits exclusive provisions for backward
classes. Therefore, reservations could not exceed 50%. 

The Supreme Court in State of AP v. USV Balaram (1972)  held that caste should not be a
determining factor in whether a person belongs to a backward class. The backward class shall
be defined as an entire caste that is both socially and academically backward. Further, the
Court stated that in the event a backward class improves educationally and socially to such
an extent that it no longer requires special aid from the state, the list of backward classes will
automatically be updated.

In the State of UP v. Pradeep Tandon (1974), the Apex Court held that providing reserved
seats to students who live in rural areas was unconstitutional. It cannot be justified under
Clause (4) of Article 15. In this case the state of Uttar Pradesh was providing reservation in
medical colleges to students from rural areas, the hilly regions, and students from
Uttarakhand. According to the Supreme Court, reservations for students from hill regions and
Uttarakhand were valid since the people from these areas are socially and educationally
backward due to lack of awareness and inadequate facilities for education. The Court stated
that the rural area does not represent a backward social or educational statu and poverty
does not equate to backwardness in rural areas.   

Clause 5 of Article 15:

Article 15(5) states that nothing in Article 15 or Article 19(1)(g) prevents the Government
from making special legal provisions to improve the lives of socially and educationally
backward citizens as well as those from Scheduled Castes and Scheduled Tribes. In some
cases, special provisions may apply to the admission of the backward classes, SCs, and STs
in educational institutions, either private or public, with or without state funding, except for
those minorities identified in Article 30(1). Under Article 19(1)(g) of the Indian Constitution,
every citizen of the country is free to follow any profession, trade, business, or occupation of
their choice. There is a provision in Article 30 that expresses the right of every minority in
India to establish and administer schools of their choice, regardless of whether the minority is
religious or linguistic. The Supreme Court decided that Article 15, Clause 5, did not violate
Article 14 of the Constitution.  Indian citizens are guaranteed equality before the law and
equal protection within the territory of the country under Article 14.

Reservation
On research, we find that Article 15 Clause (3), (4) and (5) itself stands as an exception to
Article 15 Clause (1) and (2). Article 15 Clause (3), (4)and (5) states that the legislature is
free to formulate special provisions:

 For women and children,

 For the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes and Scheduled Tribes,
 Make provision relating to their admission to educational institutions including
private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions.
Though being the exception to the legislation that forbids discrimination on grounds of sex
and caste, this does not come under discrimination. Rather, the term ‘PROTECTIVE
DISCRIMINATION’ (also known as Positive Discrimination) is used by the legislators to justify
reservation and is defined as the policy of providing an equal platform to the underprivileged
and the suppressed classes and to lift their status in the society. This system of reservation
works on the principles of intelligible differentia (difference capable of being understood). 

You might think, though this theory helps resolve problems of social inequality, what about
the sensitive jobs requiring a greater skill set (the medical field, army, etc)? Should the
reservation be allowed in those sectors? Isn’t it wise to keep such fields outside the scope of
reservation?

Reservation In Medical Colleges

The thought of not allowing reservations in certain sensitive areas of practice would cause the
sector to be monopolized by the privileged classes. Reasoning doesn’t stand on the factor of
skills, it stands upon the factor of circumstances.

Let us take an example, imagine Ramu to be a boy of the underprivileged class whose
ancestors and parents have been deprived of education due to discrimination from the upper
classes. Ramu has no one in the family to guide him but even then he appeared in medical
exams; whereas another boy Vicky, belonging to the upper class, has parents who are well
qualified and have been in elite professions. Vicky was constantly guided and mentored by
his parents and he also appeared in the exam. Even in such a hypothetical story, our
conscious explains that there must be some provisions to place Ramu on equal footing with
Vicky to allow him to compete fairly. 

In Ajay Kumar v. State of Bihar, the issue was raised regarding the permissibility of providing
reservation under Article 15(4) in postgraduate medical courses. The contentions raised by
the appellant were that Article 15(4) neither speaks nor permits reservation in educational
institutions. While certain preferences and concessions can be given, reservation of seats is
beyond the limits of clause (4) of Article 15 of the constitution of India. The appeal was
rejected by the court as special provisions also include reservation provisions and not just
preferences and concessions.

On the Basis of Domicile

After we comprehend the above provisions, the concept of reservation might seem fairer but
reservation on the basis of domicile still remains as a pricking concept. What allows the state
to formulate laws that differentiate individuals on the basis of domicile and what needful
purpose does this kind of reservation serve?

As we find out that in India the preferential policy is of two types: 

 The first to impart special benefits to the socially and educationally backward
classes, scheduled classes and scheduled tribes.
 The second to provide special benefits to the local ethical groups of the state against
the migrant from the other states.
This provision does not count as discrimination under the purview of Article 15 as reservation
on the basis of domicile is not one of the grounds of article 15. Article 15 defines “place of
birth” as a ground of discrimination but reservation based on domicile generally comes under
“place of residence” which is outside the bounds of “place of birth”. The place of birth and
place of residence can be different for a single individual.

Special provision for Women and Children 

Once we know that reservation arises due to the presence of clause (3), (4) and(5). Let us
now try to examine the clauses one by one.

Clause (3) of Article 15 of the Indian constitution speaks about special provisions for women
and children in order to protect them from the clutches of formal equality.

Thought of this legislation to be carte blanche (complete freedom to act as one wishes) to
impose differential benefits and ostensibly to the advantage of women at the cost of
burdening men may ponder in your mind. But it is justified as it compensates for early
injustice met by women and children at the hands of a male-dominated society. Right to free
and compulsory education for children under the age of 14 years, section 56 of CPC,
the Maternity Benefit (Amendment) Act 2017, etc. are some of the best examples of such
provisions.

In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, U.P. govt
made provision providing reservation BTC training programme as follows:

 50% of the candidates to be selected shall be from Science stream,

 50% from the Arts stream,
 further 50% would be female candidates,
 And the other 50% would be male candidates.
The contentions raised were that the reservation format formulated was arbitrary and
violative of Articles 15. The court held that the reservation format introduced was
not warranted by the provisions of the Indian constitution, being over and above the
constitutional reservations in favour of backward classes.

Whereas In Union of India v. K.P. Prabhakaran, (1997), the railway administration took the
decision to appoint Enquiry cum reservation clerks in four metropolitan cities i.e. Mumbai,
Delhi, Kolkata, and Chennai. The decision stated that the post would be held by women only.
The court rejected the contention of the government urging that this provision is protected
under Article 15(3). It said that Article 15(3) cannot be read as the provision or as an
exception to what is guaranteed under Article 16 (1)(2).

These cases clearly explain the applicability of the phrase ‘Special provisions for women and
children’ in matters of the reservation to education and employability. But what if there are
laws which differentiate or prefer women over men, can it be called discrimination.  

In cases of Girdhar v. State, AIR 1953 MB 147 the petitioner was convicted under Section
342 and 354 of the Indian Penal Code. The petitioner claimed that as there are no provisions
relating to assault against men with the intention to outrage his modesty, hence providing
such laws for women is discriminatory. Section 354 is contrary to Article 15(1). The petition
was dismissed stating the law to be in consonance with Article 15(3). 

In Choki v. the State of Rajasthan, AIR 1957 Raj 10, Mt. Choki and her husband conspired
and murdered their child, the application of bail was presented on the plea that she is an
imprisoned woman, with no one to look after her young son. The judge rejected the
application saying that there were no extenuating circumstances and the Constitution has no
provisions under which leniency could be shown to women on account of her sex. The same
was challenged before the Supreme Court.

It was held that Article 15(3) talks about special provisions for women and children. And
under the light of this provision, Mt. Choki was granted bail as she was a woman and there is
a young child dependent on her, thus it becomes necessary for the state to protect the rights
of the child.

Women and Sexual Harassment

Clause 3 of Article 15 also allows the government to frame special laws regarding the
protection of women and abolition of sexual harassment. Sexual harassment is a clear
violation of the fundamental rights of equality guaranteed under Article 14(2) and Article
15(3). The sexual harassment of women that had become a frequent story of everyday
newspapers was dealt with by the supreme court in the famous Vishaka case. This case led to
the formulation of the Vishaka guidelines.

Reservation within Reservation

The concept of reservation within the reservation is a condition where reservation is provided
to a particular class which is already under a reservation category. For example, A man is
belonging to a particular community of Schedule castes is entitled to reservation for SCs but
what if the community that he dwells from is more underprivileged as compared to the other
communities of the SCs category.

Is it justified to make them stand at par with others? Thus the concept of reservation within
reservation emerged to uplift those underprivileged communities of the reserved categories.
Current examples of such reservations are Maratha reservation in Maharashtra who already
fall under the OBC reservation in Maharashtra, the Jat reservation demands in Haryana,
and the 7% reservation of Madiga community under SCs reservation.

Area-wise reservation: Article 371

There are also some special provisions for specific states. There are certain articles in the
Constitution of India which provide for special state provisions and allow for the formulation
of the area-wise reservation to provide opportunity and facilities for the local people of the
state in the matters of public employment and education, and different provisions might be
for different parts of the state.

Following table mentions about articles with special provisions for different states are:

Article 371 Special provisions for the state of Maharashtra and Gujarat.

Article 371A Special provisions for the state of Nagaland.

Article 371B Special provisions for the state of Assam.

Article 371C Special provisions for the state of Manipur.

Article 371D Special provisions for the state of Andhra Pradesh.

Article 371F Special provisions for the state of Sikkim.

Article 371G Special provisions for the state of Mizoram.

Article 371H Special provisions for the state of Arunachal Pradesh.

Article 371I Special provisions for the state of Goa.

Article 371J Special provisions for the state of Karnataka.

Special Provision for the advancement of
Backward class: Article 15(4)
Coming onto the next clause, i.e. Clause (4) of Article 15 of the Indian constitution. It allows
the state to enact laws and provisions relating to the advancement of socially and
educationally backward classes and the scheduled castes and scheduled tribes.

Is Article 15(4) a Fundamental Right?

There is no doubt that Article 15(4) belongs to Part III of the Constitution which contains
fundamental rights. However, all of the provisions in Part III do not constitute a fundamental
right. Several of the provisions of Part III are merely descriptive and the other provisions are
concerned with the effects of fundamental rights on existing or future laws. There are also
provisions for enforcement and implementation of the fundamental rights, in addition to
those that provide exceptions to the fundamental rights. It is because of this variety of
provisions that the validity of Article 15(4) continues to be questioned. This article falls under
the ‘Right to Equality’ which consists of five Articles, i.e., Articles 14 to 18. 

In Article 14, the state cannot deny equality to anyone or deny them equal protection of the
law. On the other hand, all Indian citizens have equal access to public sector employment
under Article 16 of the Indian Constitution. Article 16(1) of the Constitution states that all
citizens shall be given equal opportunity to be employed or appointed to any office under the
state. It only applies to the employment and offices held by the government. The state
officials may still determine the requirements for the recruitment of government employees.
Under Article 17, untouchability is outlawed and punitive measures are imposed. According
to Article 18, titles are abolished, and their conferral and acceptance by individuals are
prohibited. 

By reading Article 15 in its plain form, one is almost certain to conclude that paragraph (4)
constitutes an exception to all the other provisions of that article as well as to paragraph (2)
of Article 29. As a result, Article 15 (4) permits what Article 29 (2) prohibits. As such, Article
15 pertains to the right to equality. This right, when viewed within the context of Article 14,
is not the right to uniform or identical treatment. A person has the right to be treated equally
with others.  In order to determine if such discriminatory practices are compatible with the
right to equality, different tests have been devised and used from time to time, such as the
reasonable classification, suspicious classification, or classification that lies between the two.
It appears that they have not always been able to offer adequate explanations, particularly
when it comes to affirmative action or positive discrimination. 

There has been provided with an all-inclusive and satisfactory test in this regard by Ronald
Dworkin in his differentiation between the right to equal treatment and the right to be treated
as an equal. He believes that the latter right is a fundamental right, whereas the former is
merely a derivative right. Equal treatment implies equal respect and concern, while equal
treatment means essentially the same treatment for all. But a right to equal treatment is
neither feasible nor compatible with identical treatment. An equal concern is therefore
essential to the right to equality. Insofar as that concern exists, differences in treatment are
appropriate and correspond to a right to equality.

There are some instances when different treatment is compatible with the right to equality. It
is only the differences in treatment that are based on differences in concern that violate this
right. So, for example, separate treatment on the basis of race, religion, or caste is not
inherently unethical as long as respect or concern is shown to everyone regardless of race,
religion, or caste. The only time it becomes bad is when it is based on disrespect, contempt
or prejudice towards a race, religion or caste. Article 15 prohibits only these kinds of
treatment and not every kind of difference of treatment based on the location of birth, race,
or caste. Likewise, the article explicitly mentions ‘discriminate against’. Regardless of their
religion, race, caste, sex or place of birth, the state may treat them differently, but it may
not discriminate against them in these ways. A discrimination is only committed when a
person’s religion, race, caste, sex, or place of birth is used as a basis for disrespect,
contempt, or prejudice because of a difference in treatment. The difference between
treatment on any of these grounds, if not based on disrespect, contempt, or discrimination,
will not be discriminatory and, therefore, will not be prohibited by Article 15(1). This rule also
applies to Article 29(2).

Therefore, Articles 15(1) and 29(2) prohibit discrimination, prejudicial or condescending

treatment based on the grounds mentioned therein. There are special provisions in Article
15(4) of the Constitution regarding the advancement of socially and educationally backward
groups or of the Scheduled Castes and Scheduled Tribes. A provision intended to advance
any socially and educationally backward class, or to advance SCs and STs, cannot be defined
in terms of prejudice, contempt, or insult towards any forward-looking group. 

Therefore, Article 15(4) has a distinct scope and function from Articles 15(1) and 29(2). In no
way does it overlap with them or diverge from them. Article 15(4), like Articles 15(1) and
29(2), is intended to ensure or promote equality. It is only the latter that prohibits the state
from making discriminatory decisions, while the former requires the state to take appropriate
steps to eliminate such discrimination. As a result, the Constitution-makers not only envision
equity to be achieved by judicial interpretation, but they have also provided a way to achieve
it by virtue of Article 15(4) of the Constitution. Therefore, Article 15(4) is equally recognized
as a fundamental right. The interpretation of Article 15(4) in relation to Articles 15(1) and
29(2) emphasises that one does not have to rely on the technicalities, including the non-
obstante clause, to justify its existence.

The Amendment
The Mandal Commission Report allowed half of the seats in educational and service matters
to Scheduled Tribes, Scheduled Castes, and OBC who together constituted around 70% of the
total Indian population. This was followed by the judgement given by the Supreme Court of
India in the case of Indra Sawhney v. Union of India (1992). As a result of this move, their
status improved significantly. 

Consequently, it became incumbent upon the legislature to devise policies to improve the
economic situation of those belonging to the ‘other category’. Due to this, the legislature
passed the Constitution (103rd Amendment) Act, 2019 to give economic backward sections a
10% reservation (as discussed above) in educational and employment institutions in the
general category. This amendment inserted Clause (6) to Article 15 and Clause (6) to Article
16 of the Constitution.

The amendment Act was accused of violating the Indian Constitution’s basic structure.
However, it should be noted that all Constitutional provisions are essential, but all of them do
not hold the same value. A constitutional amendment may be made so long as it does not
alter the basic structure and foundation of the Constitution. In 1973, the term basic structure
was first used in Sajjan Singh v. State of Rajasthan (1964), when it was stated as follows:
It is also a matter for consideration whether making a change in a basic feature of the
Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a
part of the Constitution; and if the latter, would it be within the purview of Article 368?

Only in 1973 was the concept incorporated in the text of the Supreme Court’s decision.
Again, in the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court
justice Sikri described the Constitutional basics and its structure. Thereafter, several courts
examined and worked out this issue in several cases including Indira Nehru Gandhi v. Raj
Narain (1975), Minerva Mills Ltd. v. Union of India (1980), etc. 

All constitutional amendments since the Kesavananda Bharati case had been tested against
this principle and those which adversely affect or destroy the wider principles of the
Constitution such as democracy, secularism, equality, or republicanism or alter the
Constitution’s identity were considered as bad. The M. Nagaraj v. Union of India (2006) case
established a twin test which included the width test and the identity test. These tests must
be satisfied in order to determine whether an amendment was valid or not. Essentially, the
width test sought to determine the impact an amendment would have on the Constitution
and indirectly on its core principles. Accordingly, the scope of effect determined the
legitimate scope/width of the amendment power, and it also contemplated all of the
ramifications of the amendment process to determine if the ‘basic structure’ of the
Constitution was threatened. However, the identity test asked whether the Constitution’s
identity would remain the same after the amendment.

The Government’s viewpoint

According to Prime Minister Narendra Modi, the act was a landmark event in the history of
the nation and a potent measure that ensures justice for all sections of society. Mr Arun
Jaitley (Ex Minister of Finance and Corporate Affairs) explained the reasoning for the 10%
quota and said that if two individuals have different backgrounds due to their birth or
economic circumstances, they, therefore, could not be treated equally. Unequals cannot be
treated equally, he claimed. Moreover, he stated that the Supreme Court’s reservation cap of
50% applied only to caste-based reservations, while the Economically Weaker Section
reservation was not affected by it.

According to Thaawarchand Gehlot (ex Union Social Justice and Empowerment Minister),
similar state laws for reservation of economically weaker sections of the community were
quashed by the courts, since the Constitution did not include the concept of economic
reservation. Now that the law has been brought into the Constitution by making necessary
provisions, the same could not be struck down by the Supreme Court, if challenged.

 Socially and educationally backward classes

The phrase “socially and educationally backward classes” under Article 15(4) refers to
underprivileged classes of people who have faced discrimination and prejudice from the
privileged class. This category includes the class of people who belong to backward classes in
society but are not covered under SCs or STs. OBCs have been included under this phrase of
socially and educationally backward classes as a category for reservation.

 The limit of reservation

The Supreme Court of India has put up a ceiling limit to the total percentage of reservations
that can be provided by the government.

In Indira Sawhney v. Union of India, AIR 1993 SC 477, 27% reservation for the ‘Other
Backward Classes’ was introduced. Supreme Court of India put up a limit of 50% as the total
percentage of reservation as it was reasoned that allowing the limit to exceed will deprive
others of their right to equality. Supreme Court also provided for the guidelines to exceed the
limit of reservation under extraordinary situations.

 Reservation more than fifty per cent 

There is an upper limit of 50% on the total reservation, but as it was allowed to exceed under
extraordinary circumstances. There are 4 states which have breached that limit of 50%:

 Tamil Nadu has 69% reservation with 50% reservation for OBCs;
 Maharashtra has 52%;
 Telangana has 62%;
 Haryana has 67%;
It is done under the extraordinary need for upliftment of certain backward classes.

Relationship to Article 14
Article 15 is the weapon that breaks the wall of discrimination between the upper caste and
the lower caste. Article 15 is an extension of Article 14 which talks about equality among
individuals and equality before the law. It means that equals should be treated equally and
unequal to be treated unequally, the same has been reiterated in the Indira Sawhney v.
Union of India, AIR 1993 SC 477. Article 15 derives its entire power from article 14.

 To maintain equality, it forbid the practice of discrimination under clause(1).

 To provide equality, it allows for special provisions relating to women, children, SCs,
STs, and socially and educationally backward classes.
Hence, it is Article 14 whose aims Article 15 tries to achieve.

Conclusion
Article 15 has always hurdled its way out to reach to the one really in need. The condition of
the downtrodden has highly improved since its inception in 1949. It provides a base to each
and everything that legislature needs to formulate provisions to promote harmony in the
society. There is an extreme decline in the number of cases of atrocities against the
underprivileged classes.  Article 15 truly is the guardian of downtrodden and a shield against
discrimination, it has helped the Indian society to stand tall and proud despite such a huge
diversity and all kinds of sexism, racism and rigid caste system and will continue to
contribute to India’s unity and equality, forever.

It is important to note that Article 15 is very broad and states that there shall be no
discrimination based on religion, race, caste, gender, or place of birth in any case. The term
discrimination encompasses a wide range of issues and people have been discriminated
against in many different ways throughout history. This article is intended to provide equal
opportunities for citizens for the protection of their rights. Article 15 primarily seeks to ensure
the social, economic, and educational advancement of the economically, socially, and
educationally backward classes. 

As a result of the existence of Article 15, the reservation has been the subject of the most
significant disputes. There are a number of forms of reservation available to the weaker
sections of society that cause distress to the general group of people. Reservations are not
intended to divide the population into general and reserved categories, but rather to assist
the disadvantaged populations of the country. Even during the colonial era and afterwards,
untouchability and discrimination were very common in the early centuries preceding British
colonialism. The introduction of laws intended to protect the disadvantaged class has,
however, resulted in some reduction in inequality. While one cannot say that there has been
a complete removal of discrimination, it is reducing. Equality is mentioned in India’s
Constitution’s preamble. In Article 15, the term is to be implemented widely throughout the
Indian subcontinent.

ARTICLE-21

Introduction  
The article prohibits the deprivation of rights according to procedures established by law.
Article 21 is the heart of the Indian Constitution. It is the most organic and progressive
provision in our Indian Constitution. Fundamental rights are protected under the charter of
rights in the Constitution of India. Article 21 talks about equality before the law, freedom of
speech and expression, religious and cultural freedom, etc. Article 21 is valid for every citizen
of India. It is also valid for foreign citizens. 

Article 21 of the Indian Constitution 

Article 21 has two types of rights: 

1. Right to life 
2. Right to personal liberty

Right to life
Every citizen has the right to life, liberty, and security of person. The right to life is the
fundamental right in the Indian constitution. Human rights are only attached to living beings. 
The right to life is the most valuable rights to citizens. There would have been no
Fundamental Rights, worth mentioning if Article 21 had been interpreted in its original sense.
This article examines the right to life which is interpreted by the Supreme Court of India in
numerous cases.
Right to life is a fundamental aspect of life without which we cannot live as a human being
and it includes all those aspects of life which go to make a human being’s life meaningful,
complete, and worth living. It is only the article in the constitution that has received the
widest possible interpretation. Under Article 21 of the Indian Constitution, the right to
shelter, growth, and nourishment are mentioned. Because it is the bare necessity, minimum
and basic requirements that are essential and unavoidable for a person for the right to life
and other rights.  

Case law

Kharak Singh vs State of Uttar Pradesh

Facts of the case

By the terms of the life, the existence of animals is more important. The inhibition against
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 pulling out of
an eye, or the destruction of any other organ of the body through which the soul of our body
communicates with the outer world. 

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The Judgment of the case:

The apex court held that the right to privacy is not a fundamental right in the Constitution of
India

Right to personal liberty

“No person shall be deprived of personal liberty according to the procedure
established by law”.

 The protection of our liberty is the mere responsibility of our law as our Constitution of India
quoted. As we see the Supreme Court is the guardian of the Constitution of India. So
according to this Supreme Court has the mere responsibility to protect and guarantee
fundamental rights. As a citizen of India, we have all the fundamental rights which are
established by law. So we can enforce it through the Supreme Court whenever our
fundamental rights get violated.

Right to constitutional remedy is the part of fundamental rights so it is the responsibility of

the Supreme Court to exercise the Judicial Review through writs or orders for the
enforcement of fundamental rights. The Supreme court has made the judicial process as a
bulwark of personal liberties. 

“The Article 32 of the Constitution is the soul of the constitution of India and it is
also considered as the heart of the Indian Constitution because in case of Right to
life or any right which belongs to human beings we only refer Article 32 of the
Indian Constitution”.
 The Constitution of India is the most valuable law. Personal liberty is developed from the
Magna Carta. Personal liberty is not subjected to imprisonment, arrest, or other physical
coercion in any manner. Positivity is the basic element of personal liberty. 

Case law: Maneka Gandhi vs Union of India

Facts of the case

In this case, Manenka Gandhi issued a passport for the foreign tour from the passport office.
But the Regional Passport officer Delhi has informed the petitioner about the passport that
this decision is taken by the Government of India for the acceptance of passport. Because of
this reason the petitioner had to surrender her passport within 7 days. After some time the
Government rejected the passport saying it is against the interest of the general public. Then
the petitioner filed a writ petition challenging the government for impounding the passport
and declining from doing so.  

The Judgment of the case:

In the case of Maneka Gandhi the Supreme Court gave a new direction to Article 21 and said
that the right to live is not merely a physical right but includes the ambit of the right to live
with human dignity.

Right to Equality
Right to equality is also the part of Article 21 of the Indian Constitution which is the
fundamental right. This right includes equality before the law, the prohibition of
discrimination, etc.  No citizen can be discriminated against based on sex, caste, colour,
creed or religion. And it is a fundamental right which cannot be violated by anyone. If this
right is violated then it is the dishonour of Article 21. 

Equality before law: 

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

The rule of law is governed by the State Government or the people who are appointed by the
law. Equality before the law means every person has to follow the rules and regulations of
law that are implemented under the Constitution of India. No law should be violated by any
person. If anyone violates the rule of law they are punishable by a court of law. Rule of law
also confers that every person is protected within the territory of India. No person can be
discriminated against related to sex, gender, caste or religion. Every citizen of India has the
right to life under Article 21. The person who came from other countries to India is also
guaranteed the right under Article 21.

Supremacy of law
It is a fundamental concept of Rule of Law which requires both citizens as well as
governments to understand the concept of law. It gives generality in the concept of law. In
past days, it is the principle of Equality before the Law. No person can make their law
because the law is governed by the established laws. The rule of law is not easily changeable.
Rule of law is the stable laws that are an essential part of individual freedom and security.

Equality before law

The principle of supremacy of law is used in cheques and balances which is under
government for making and administering the law. The law does not discriminate between
people about sex, religion, race, etc. this concept is codified in the Indian Constitution under
Article 14 and the Universal Declaration of Human Rights under the preamble and article 7.  

The Predominance of a legal spirit

This is a requirement for the rule of law because it was insufficient to simply include the
above two principles in the Constitution of the country or in its other laws for the state to be
one in which the principles of rule of law are being followed. There must be an enforcing
authority and it is believed that this authority could be found in the courts. The courts are the
enforcers of the rule of law and they must be both impartial and free from all external
influences. Thus the freedom of the judicial becomes an important pillar to the rule of law. 

Right against discrimination: This is defined under Article 15 of the Indian

Constitution. No person can be discriminated based on:

1. Religion, race or caste

2. Sex 
3. Place of birth 
4. Creed
5. colour
Every citizen has the right to life, education, work, speech, and expression, etc. even the
weaker section of the society has the right to education or work in the reputed institution
with higher caste people. They have full right to get marks based on merit, not based on
caste or religion.

Every person has the right to respect. No one can be humiliated or tortured based on caste or
religion. Today in many places low caste people have to face many difficulties based on caste.
Higher caste people torture them and kill them because of the caste system. Because in India
maximum peoples are unaware of law prescribed in our Indian Constitution. This happens
because of low education standards. The person who belongs to the lower caste is not
allowed to study in schools with the higher caste people and even they have no money to get
an education.

This is a reason high poverty in India. Every person has the right to worship in the temple as
well as a masjid or any god house they want to pray  Because god is the same for everyone.
So no person is discriminated against based on religion or caste. Even lower caste people
have the right to enter the temple to pray to god. Even Muslims can celebrate all the festivals
of any religion and celebrate together.    
 3. Right of opportunity to employment: No person can be unemployed after
pursuing higher education. Even the person who is not educated and belongs to a
lower society has the right to work according to their area of interest. If any person
knows and if he is from low caste than also they have the right to work and earn
money. And everyone has the right to choose their area of interest where they want
to work.
It is not enforceable by law. Even a woman has the right to work in reputed companies and
institutions. Because women are also educated so they have the right to employment too.
Weaker section of society has also the right to work with normal people in the same company
as well. There should be no discrimination. Every child has the right to get marks in the
examination based on their merit and select the student for higher studies based on their
merit and it cannot be violated.

Even after education anyone can move to foreign for employment and get a higher paid in
the company. Employment also includes promotion. Anyone can start their business as per
and requirements. Employment also includes reservation for the special persons. Note:
rephrase  

4. Right against untouchability: Untouchability is abolished by Supreme Court. So

no one gets discriminated based on caste and untouchability. Even today in small
cities the person who belongs to the low caste has to work in houses for cleaning the
dustbins and toilets. They have to face untouchability. Even when the government
has provided free education for these people then also they don’t pursue education
and work in houses and have to face these problems. They have to live with their
community people in a  separate place. They are not allowed to live with high-class
people. 

Article 21 of the Indian Constitution and

Environment protection 
This is recognized by our legal system that it is a very old invention of our judiciary. It is also
part of our Fundamental right. There were some judicial pronouncements for this right.
Environmental protection is the most important duty of the Government as well as a citizen
of India. If we do not protect our environment we can’t live in it. The most important thing
for the protection of the environment is growing more and more trees in our area. Because
trees give us oxygen, food, water, etc. and if we don’t plant trees, birds and animals don’t
get food to eat and they can die. Birds and animals make our environment healthy and
beautiful. Pollution is the reason why our environment is getting polluted. People cut down
trees to make buildings and complexes. Birds are not getting shelter to live and they are
getting extinct.    

Judicial pronouncements on Right to clean and healthy

environment as a fundamental right of Article 21 of the
Constitution of India
Article 21 of the Constitution of India states that no person shall be deprived of his life or
personal liberty except according to procedures established by law. The state and its
citizens have to take responsibility for the right to clean the environment because we live in
this environment. It gives us shelter, food, water, light, etc. so we keep our environment safe
and clean and pollution-free.  
Case law:

Subhash Kumar v. The State of Bihar.

In this case of Subhas Kumar vs. The State of Bihar, the Court observed that the right to life
guaranteed by Article 21 includes the right to the enjoyment of pollution-free water and air
for a healthy life. 

Judgment of the case:

From this case, the Court recognises some of the rights related to environmental rights that
are:

1. The right to a healthy environment is a part of the fundamental right to life. 

2. Municipalities and a large number of other concerned governmental agencies have
no content and unimplemented measures for the abatement and prevention of
pollution. The government may take some positive measures to improve the
environment.    
  Rural Litigation and Entitlement Kendra Dehradun and others.

The petitioner alleged that illegal limestone mining in the Mussoorie-Dehradun region causing
damage to the fragile ecosystem in the area in the Supreme Court of India. This petition is
considered as the public interest litigation under Article 32 of the Constitution. 

Judgment of the case:

After the petition filed Supreme has given the order to inspect the illegal mining sites. After
the inspection, it is noticed that the illegal mining site has a very adverse effect on the
environment.

Right to clean environment

Every citizen has the right to live in a clean and healthy environment. Under the Indian
Constitution, every person in this world has responsibility for a healthy environment and they
have to take some appropriate measures to prevent any kind of environmental harm so they
can maintain a healthy environment. They also work to prevent environmental destruction
and aim to preserve nature and its natural resources. There are many treaties registered
under the UN environmental program for the protection of the environment. 

Stockholm 1972 – Declaration of the United Nations Conference.

Stockholm Declaration was the first international conference on the human environment held
1972 which emphasises on the right to a healthy environment. 

Principles of Stockholm Declaration:

1.  Stockholm Declaration is established for the foundation of human rights and

environmental protection, it declares that man has a fundamental right to freedom,
equality and adequate conditions of life in an environment that permits a life of
dignity and well-being. 
The resolution is held for the enhancement to give efforts towards ensuring a better and
healthier environment. The conference issued the Declaration on the Human Environment
stating 26 principles.   

M.C. Mehta vs. Union of India

Facts of the case- 

There is a company named Birla Textile in Calcutta. There were 2800 workers who worked for
30 years. Their services were in jeopardy upon the closure of the industry in Delhi. They
claimed that they should get full back wages with effect from December 1, 1996. And they
also claimed that they should get a 1-year bonus as a shifting bonus. 

Judgment of the case:

When workers claim the work period of 30 years then the court gives the order to the relief
sought:

1. Payment of wages to the workers

2. Treat all the workers as regular employees. 
3. It also gives the order to give a 1- year wage as a shifting bonus. 
M.C. Mehta vs. Union of India

 Facts of the case

In this case, the Supreme court has removed the vehicle named BS-IV. Since this vehicle
created a high amount of pollution in the city and destroyed nature as well. So for the right
to clean environment, the court decided to remove the vehicle from the country as well. 

Judgment of the case:

The court brings the decisions on the issue as to whether such a vehicle is a two-
wheeler, four-wheeler, or a commercial vehicle, etc. 

Right against Noise Pollution 

Noise is defined as unwanted sound that forces our ears and it causes pain and
annoyance. Section 2 in THE AIR (PREVENTION AND CONTROL OF POLLUTION). Pollution
means the destruction of the environment because of various reasons like solid, liquid or
gaseous substance including the presence of noise. It may cause injury to human beings as
well as plants and animals. Noise is described as unpleasant and irritating to the ear. If we
see the measurement of noise, a decibel is a standard for the measurement of noise. The
zero on a decibel scale is at the threshold of hearing, the lowest sound pressure that can be
heard, on the scale. 

Sources of noise pollution 

 1. Road traffic– The noise which is created by the vehicles on the road is the most
disturbing element which causes noise pollution in comparison to all types of noise.
Because the population of vehicles is increasing day by day. People all the time uses
vehicles to roam around. So it creates noise 24 hours a day.  
2. Aircraft noise: This is the type of noise which is created by airplanes. In today’s
time, people prefer to travel from airplanes to save time. So it creates very high
noise pollution in society. These noises distract people from their work. Many times
kids get attracted to this sound.
3. Noise from railroads: The noise which is created from the vehicles which move on
the road. Horns and whistles and switching and shunting operation in rail yards can
impact neighboring communities and railroad workers.  
4. Construction noise: many times in society, construction works are done to make
the buildings in which machines are used for cementing which creates very serious
noise pollution. That machine creates a lot of noise in society and it becomes a very
serious issue for everyone. It goes on for many days. 
5. Noise in the industry: Noise which comes from industry does not create so much
noise because industries are not established everywhere in the city. Factories and
industries in some particular places far from societies. But the person who works in
the industry face some problems with the industrial noise. Their ears get highly
affected by the sound of machines which are used in factories and buildings. 
6. Noise in building: This is a type of noise pollution which is created by the home
appliances which are used in the home for the personal use of families like
generator, motor, coolers, mixers, etc. noise is also created from the music player,
T.V which we play in our homes for our entertainment. In the time of marriage,
people use a DJ in their homes for entertainment, it also creates noise pollution. In
metropolitan cities, the government restricts DJ at night after 10 pm. But in smaller
cities, this rule must be followed for public safety from noise destruction.     
7. Harmful effects: all the people are affected by noise pollution like human animals,
birds, etc. noise pollution could make irritational to anyone. 
8. Legal control: noise pollution can be prevented by the limited use of the products
from which noise pollution is created. All the products which create noise pollution
are to be used in only specific times.   

Right to pollution-free water and air 

Environment and life are interrelated with each other.  Life exists on the earth depends on
the environment. Human beings are responsible for the environment. Human beings are at
the center of sustainable development and they are entitled to a healthy and productive life
in harmony with nature. Pollution becomes a very serious issue in the case of the
environment. The overuse of petrol and diesel in the vehicle creates excessive pollution.
Every year a new vehicle is launched. Because more and more are used in the roadside it
creates pollution. Because of this reason plants, birds, and animals are getting adversely
affected. They are getting extinct day by day. Plants are getting polluted. Human beings are
also getting affected and they are caused by different types of diseases. Water is also get
affected. In many states, water was scarce by which people are dying. All the persons,
animals, birds need fresh air and water and shelter to live. 

Case law:

1. Chhabil Das vs. State & others.

Facts of the case:
Bhartiya Kisan Singh filed a Writ petition before the court for the issue of pollution of water in
a minor canal, which passes through the Sri Ganganagar district. After some time this case
transferred to National Green Tribunal after giving some directions. After some days again
Bhartiya Kisan Singh filed a writ petition for other canals of Sri Ganganagar district claiming
that water in these canals is polluted. 

Judgment of the case:

The first decision was issued by the Division Bench and the division bench transferred the
case to the National Green Tribunal. Second, the High Court of Jodhpur passed the report to
the Rajasthan Pollution Control Board. 

Right to privacy under article 21 of the Indian Constitution

Meaning and concept of the right of life
“The right to privacy is protected as an intrinsic part of the right to life and personal
liberty under Article 21 and as a part of the freedoms guaranteed by part III of the
Constitution.

India’s Supreme Court Upholds Right to Privacy as a Fundamental …

The right to privacy is developing from the past 60 years. And it is the most consistent right
in the Constitution of India. After two judgments right of privacy becomes the fundamental
right. Privacy is the necessary condition of guaranteed freedom. The supreme court has not
guaranteed the right to privacy as an explicit fundamental right to the citizens.

The Supreme Court has constructed the right to privacy as a part of life and personal liberty
under Article 21 of the Indian Constitution. At last Supreme court declares “The Right of
Privacy” as a Fundamental Right that does not need to be separately articulated but can be
derived from Articles 14, 19, and 21 of the Constitution of India.

The fundamental right to privacy is not absolute and always subject to reasonable
restrictions. The State imposes some restrictions on the right to privacy to protect the public
interest. If we talk about the right to information in the case of the right to privacy, both are
related to each other in holding, they complement each other in holding governments
accountable to individuals. Law provides information to the people who are held by the
government bodies. 

The relation between Privacy and RTI 

 The relation between privacy and RTI, they are the two sides of the same coin
means both acts as complementary rights that promote an individual’s right to
protect themselves and to promote government accountability. 
 This is a type of considerable debate. Around 50 countries adopted these laws.
 Privacy is challenged by new technologies and practices but RTI laws have access to
new information and communications technologies, and web sites containing
searchable government records.
  Case laws
    Kharak Singh vs The State Of UP & Others.

Facts of the case:

 This case is related to dacoity, the petitioner was challenged in the dacoity but he gets
released because there was no evidence against. But police opened the history sheet against
and put him under surveillance. Surveillance means involving in secret pickpocketing of the
house or approaches to the houses of the suspects, domiciliary visits at night. The petitioner
filed a writ petition under Article 32 of the Indian Constitution, in which he challenged the
constitutional validity of U.P police regulations. 

Judgment of the case:

The court gives separate judgment and put the enquiry on the police officials. And said
petitioner right gets violated. 

 Sunil Batra vs Delhi Administration

Facts of the case:

In this case, the petitioner is the prisoner,  he has been tortured. 

Judgment of the case:

judges of the court alleges that torture was practiced by other prisoners to recover money
from the victim. Because of the letter, this case is converted into Habeas Corpus.  

Rajagopal vs State Of T.N

Facts of the case:

There were three petitioners in the case the first petitioner is the editor, printer and publisher
of a Tamil weekly magazine Nakkheeran, published from Madras. The second petitioner works
as the associate editor of the magazine. 

Judgment of the case:

All the petitioners were challenged for more than 6 murders. He was convicted and sentenced
to death. The petitioner has appeared in court but judges dismissed his petition.  

Scope and content of Right to Privacy

 Impact of Right to Privacy in the case of Aadhaar, freedom of expression
and sexuality
The privacy of the individual is the duty and responsibility of the government. In the case of
aadhar card, it is the government id proof for the individual. Aadhar card should be biometric
and is fully protected so no fraud can cause.

 Tapping of telephone
To protect the country from crime or fraud and for the protection of national security of the
country, the government has started tapping the phone calls, texts, and emails of people. But
this is a very serious question raised against the Right to Privacy. Their fundamental rights
are being violated through this phone tapping.

There must be some limitations in the phone tapping of people. Because the right to privacy
is guaranteed by the Constitution of India. As the right of tapping the phone of people is
mentioned under the Union list so the Government has the right to tapping. The authority
needs the permission of the Home Minister to tap the phone of the people during the
investigation of any crime.  

 Safeguards against phone tapping 

Phone tapping is a very serious issue coming around. Many scandals have come regarding
the issue of phone tapping. It has become a political agenda. It is a rule that phone tapping
can be done by the government officials only and not by a normal person. The apex court has
said that tapping of phones or wiretaps is a very serious invasion of privacy of an individual,
and also recognized as the right to privacy which falls under Article 21 of the Indian
Constitution.

The Right to Privacy is also under ICCPR in article 17. India is the party of the International
Covenant on Civil and Political Rights. The conversation of the people is considered as the
freedom of speech and expression which is also coming under article 19(1)(a).  

   Remedies 

1. Unauthorized tapping of the phone and interception is the violation of the right to
privacy, and it is the rule that if anyone gets tapped fraudulently than he can make
a complaint against them with the National Human Rights Commission. 

 Disclosure of diseases
Diseases can be disclosed in front of doctors. Because the relationship  between doctor and
patient is a trusting relationship. So, there was no privacy between doctor and patient in the
case of healthcare. This is the duty of the patient to share all the information related to their
health problems like bodily functions, physical and sexual activities and medical history so
the doctor can protect the patient from severe diseases or any other severe problem related
to health. There were female as well as male doctors so women can comfortably share their
sexual issues in front of a female doctor.

Medicines are also available for the protection of health. Doctors help the patient to gain
knowledge about some of the diseases that create in the body due to genetic issues. They
are the big informer of the patient. In today’s world, many schools and colleges give sex
education to the students so they can protect themselves from harmful diseases that   due to
reproductive parts of the body. But there are some limitations in the privacy of the
information which is provided by the doctor to the patient related to pregnancy.  

 Legislation of health privacy

1. Epidemic Diseases Act, 1897

Epidemic diseases include all infectious diseases like chikungunya, dengue fever, and many
infectious diseases. There were many severe infectious health diseases in India as well as
foreign countries through which threat is increased to the public health security of India.
Legal frameworks are very important in the case of public health security. So that the
government has to respond in case of health issues and duties and rights of the citizen. Then
this act came into existence in the year 1897. This act is invoked in many states of India. 
  Limitations of this act:
This act is made about 118 years ago and has many limitations.                      

Woman’s right to make reproductive choices

In the case of reproductive choices, abortion and surrogacy is the major issue in India
nowadays.Many times due to some medical issues people are preferring surrogacy mother for
the child and they don’t try to adopt the child. People usually try to threaten people with the
help of money and force women to become surrogacy mothers against their choice. Women
are seriously affected by this abortion and surrogacy.

In the case of abortion, many times families force women to abort their child because of a
girl child. Families fraudulently get to know the gender of the child and force women to abort
their child. This becomes a very serious crime in India. This crime mainly happens in village
areas. Many women get tortured due to girl child if abortion doesn’t happen. Reproductive
rights are the personal autonomy of a woman’s privacy.

Women have the full right to make a reproductive choice even after marriage. Even after
marriage if the husband tries to force their wife for the sex then it is considered as the
marital rape and the woman can file a petition against her husband. Consent is very
important in the case of reproductive choices. Because it is the most sensitive part of the
female body.  

Right to privacy to private medical test

The term privacy means about to with concerning medical is called domestic legislation in the
context of a doctor and patient relationship. This relationship is established from the  Indian
Medical Council Act of 1952, under section 20(a). Section 20(a) says that the doctor has to
adhere all the time. 

Privacy of health care includes some of the privacy:

1. Informational privacy which means confidentiality, anonymity, secrecy and data

security.
2. Physical privacy means modesty and bodily integrity.
3. Associational privacy means intimate sharing of death, illness ,and recovery.
4. Proprietary privacy means self-ownership and control over personal identifiers,
genetic data, and body tissues. 
5. Decisional privacy means autonomy and choice in medical decision-making. 

 Medical confidentiality
It is a set of rules which say that medical problems are only shared with doctors or other
medical practitioners. It is the responsibility of the doctor to keep all the details of his or her
patient confidential. If because of some reasons patient has to change the doctor for their
medical issue so they have to share their medical report to the new doctor in case patient
must take consent from the previous doctor so they can share their confidentiality report to a
new doctor. 

 Privacy violations about to with concerning policy and information.

The policy of health care privacy is that the report of the medical health cannot be shared
with the third party without the consent of the patient. It is the issue of breach of the privacy
of health care. 

Here are some issues which violate the privacy of medical health:

1. Inadequate information to the patient related to data.

2. Data is collected unlimited and unnecessary related to personal health data.
3. Collection of health data which is inaccurate or irrelevant.
4. Doctor’s refusal in providing the medical records.
5.  Disclosure of personal health information is caused by embarrassing the patient.

 Mental Health Act, 1987

The provisions of the Mental Health Act,1987 is to protect the privacy of the medical health of
the patient and medical report is to be kept confidential. Medical health data cannot be
disclosed. 

Statements and objects of the Mental Health Act:

1. Mental ill persons are to be treated from the early period. They are to be treated like
a normal person so it will help them to cure fast at an early stage. 
2. In the Indian Lunacy Act, 1912 it says that, with the advancement of medical
science, there is a provision in this act for the treatment of mentally ill persons by
following per under the new approach.
3. Many times mentally ill persons become dangerous to society if they are not in the
early stages of life. 
4. Maintenance charges to be paid for the admission of a mentally ill person if in any
case, they try to harm people in the mental hospital.
5.   has the power to regulate the license to control psychiatric hospitals and
psychiatric nursing homes. 

Article 21 of the Indian Constitution right to life 

Prisoners right is also a fundamental right. They have the right to life as a normal being, no
matter if they are in prison. They have full rights in the prison as well.

  Article 14 of the Indian Constitution cannot deny to any person for equality before
the law or the equal protection of laws within the territory of India.
 Article 19 of the constitution of India mentions six freedoms to all citizens of India. 
 Article 21 of the Constitution of India mention about Right to Life and Personal and
personal liberty
These articles that all persons, as well as prisoners, have the right to life, right to equality,
and the right to personal liberty. In the prisons as well.  

There are more following rights which are especially for prisoners:

 Violations of Human Rights of Prison Inmates – Legal Service India

  Right to Free Legal Aid – Legal Services India
 Right to a Speedy Jury Trial – FindLaw
 Amendment VIII – The United States Constitution
 Article 6: Right to a fair trial | Equality and Human Rights Commission
 Custodial violence | ABDUL AZEES SIRAJUDEEN – Academia.edu
 Prisoners right
Prisoners are also considered as the normal human beings as they convicted crime and they
have to stay in prison for whole life this does not mean they have no right. They have an
equal right to life and personal liberty. Prisoners have their rights which is provided by our
Government of India. Prisoners should not be treated as in-humans in prison. They are to be
treated nicely in prison.

They have the full right to get a chance to change themselves, so prisons provide them with
all the facilities in the prison-like food, schooling ,and medical facilities as well. In all the
rights prisoners don’t have the right to release. They have to spend their whole life in prison
as the decision of the court. 

 Right against illegal detention 

Illegal detention means the unjustifiable and unlawful imprisonment for a wrongful cause.
Many times, usually the weaker sections are illegally caused detention because they have not
enough money to feed their family. Most women are convicted because of their poor
condition they have to forcefully involved in crime like the drug trade.

If we talk about the youth they are also convicted of the crime because of the need for
money. Youth are generally involved in the crime because of money because of the financial
conditions of their family they are not able to get sufficient pocket money from their family so
they involved in theft, robbery, kidnapping, etc. But in prisons youth and women are
supported so they can be released early from jail.

Youth are provided with school so they can study and get educated so they can earn money
after they released. Women get employment so they can also earn money and they don’t
have to bear money from others or to be involved in any other crime. But most times men  
detention. Even if they are not involved in the crime. Because many times people try to
protect themselves from the illegal detention so they involve police officials in their crime and
they fraudulently detain other people who are from the weaker section who is not able to hire
a lawyer for their release. And they have face in-human and torture in the jail. This mostly
happens in Indian.   

  Right to personal liberty

“In our world prisons are still considers as torture, warehouse for the prisoners in which
human commodities are sadistically kept and where spectrums of inmates range from
driftwood juveniles to heroic dissenters.” 

If we talk about women, they have to lead their family before marriage and after marriage
according to Hindus. And because of this reason women’s get involved in illegal trade if her
husband is not capable to feed their family and because of social pressure she gets involved
and convicted for the crime and get prisoned for the whole life. In prison, a woman has to
face torture and many more things.

Many times prisons are not safe for women they get sexually abused in the prison. So there
is a rule in the Constitution of India that if any woman is convicted for the crime they only
get caught by the female police officials and they questioned by the female police. Men are
not allowed to detain women in prison. Women are kept in the special prison were only
female prisoners can stay no men are allowed in the female prisoners. Because women have
the right to personal liberty. And according to this right, women’s safety is very important
everywhere as well as in prison.

Women are treated nicely so they can improve themselves and also they are provided with
employment so they can lead their family after their release from prison. Women’s release
has very high chances. Because they don’t involve in the crime with bad intentions.   

Article 21 of the Indian Constitution and Human Rights

Universal Declaration of Human Rights, Article 21

Human rights include the right to freedom, justice ,and peace in the world. All the members
of the family have equal respect and dignity about to with concerning others. No one should
be disrespected in the family. Even a new-born has the right to dignity because they are also
a Citizen of India. Human right is a universal declaration. Every person has an equal right,
either he/she belongs to any community. No person should face caste discrimination.
Untouchability is also against the human rights declaration. Caste discrimination is very
serious from historic times.

In the past, people get discriminated against because of the lower caste. They are not
allowed to live in a society of higher community people. They are not even allowed to work
with high caste people. They are considered as the waste material of society. Even after the
Human Rights Act came into existence in many villages today also lower caste people are
treated in-human and also higher caste people murder them because they are from lower
communities. Because many people are not aware of rights that are provided to human
beings. 

 Right to live with Human Dignity

Human dignity includes the economic welfare of the people. The state must promote the
welfare of the people by securing and protecting their justice, social, economic and political
institutions of life. 

Social justice means making rule of law dynamic. Social justice is very important to the
citizens of India. All the citizens have equal rights to justice, even the lower community has
full justice to equal opportunities for education, medical health, employment, etc. Equality of
opportunity helps them to develop their personalities and help them to participate in
happiness to reach the goal in life. Because education is the biggest opportunity for the
people to evaluate themselves and also they can improve their personality in speaking,
dressing, walking, reacting to other people.

They also get the opportunity to involve in work. Social justice helps people to gain respect in
the society. The constitution gives full opportunity to the weaker section of the society in all
fields by giving them reservation so they can easily get admission in colleges and so they can
complete their education and get employment. The government also gives free education to
students who are not capable of sufficient money to spend on education.    

 Maenka Gandhi vs Union of India

Facts of the case:

The right to move in any part of India or Abroad is also the fundamental right of the people.
It is also part of the rights of human dignity. “No one can be deprived of this right
except according to the procedure established by law”. 

Judgment of the case:

There is no law mentioned in the Constitution of India about the revoking of passport act.
According to Article 14, 19(1) (a) and (g) and 21, article 10(3) is getting violative of
Fundamental Rights.   

Francis Coraile vs Union Territory of Delhi 

Facts of the case:

This is the case of preventive detention and punitive detention. The petitioner Francis Coraile
is detained and arrested and keep him in the Central Jail (Tihar Jail). The petitioner filed a
petition in the court for a writ of Habeas Corpus to challenge her detention. 

Judgment of the case:

But the court has rejected her petition and she has to continue in Jail. she treated very
harshly, she is not able to meet her lawyer as well as her family. She only allowed meeting
her family once a month. Her daughter is only 5 years of age. To  meet her lawyer, she has
to interview with District Magistrate Delhi in front of a Customs Officer. After the interview,
she doesn’t get the allowance to meet her lawyer and she even doesn’t allow to meet her
daughter once a month also.  

Bandhua Mukti Morcha vs Union of India

Facts of the case:

This is the case of Public Interest Litigation Under Article 32 of the Indian Constitution. The
PIL was filed directly in the Supreme Court of India to take steps to end the Child Labor in
Uttar Pradesh. Because of the State of Bihar, many children get kidnapped and experienced
child abuse. They are working in the factories of Bihar. All the children are 14 years of age or
less than 14 years. 

Judgment of the case:

During the hearing, the court has discussed the protection of child rights to education, health,
and development in ensuring progress as a democracy. The court recognizes that child labor
cannot be abolished but we can bring some of the changes in child labor. The court has taken
some of the measures to protect the child’s rights of education and health.  

People Union of Democratic Rights vs Union of India

Facts of the case:

The Petitioner has filed the case against the Union of India for the violation of Labor Law in
India. The allegations of the petitioner which he put on Union of India:

1. The workers in Uttar Pradesh and Orissa are getting the minimum wages of only rs
9.25 per day for their work and even they deduct their one rupee for their
commission. This is a violation of the minimum wages act.  
2.  Women get 71rs per day for their work. There is a violation of the  Equal
Remuneration Act, 1976.
3. Violation of Article 24 of the constitution. Because children below the age of 14 are
getting employed by the contractor to work in the factories. 
4. Contract Labor Act is also getting violated. 
5. Regulation of Employment and Conditions of Service Act brought into force for such
violations. 
Judgment of the case:

As the rights of the labor get violated court has decided to punish the Delhi Administration
and Delhi Development Authority and also said that they cannot escape. 

The State of Maharashtra vs. Chandrabhan

Facts of the case:

The petitioner Chandrabhan Tale, Vithoba ,and Baban all are convicted for different cases.
They are sentenced in the court. Chandrabhan’s bail is still pending and he is released for the
appeal filed in the High Court. 

Judgment of the case:

The High Court has accepted the bail of Chandrabhan give the order to release not to be
lodged him in the prison. 

Right against sexual Harassment at workplace

The Prevention, Prohibition and Redressal Act is passed for the protection of women at the
workplace. This act is passed by Lok Sabha of the Indian Parliament. Employment is the right
of a woman. Society has a very low perception of women. They always consider men as
superior to women so they can’t work as equal to men. So in most working places, people try
to harass women sexually and mentally. Because of sex determination in India women has to
face sexual harassment at workplace especially in government organization. It is because of
natural human behavior and harmless flirtation.

Because of fear of society or family, women do not report the matter to the police or the
concerned authorities. It is considered as a violation of Human Rights. The Sexual
Harassment of Woman at Workplace Act,2013. Through this act ensures that the government
will ensure that they will provide a safe working place for women and build a safe work
environment that will respect women’s right to equality and the right to dignity. This will also
improve the economic women empowerment and inclusive growth so that they can
participate in different types of work.
Case law:

Vishaka vs. the State of Rajasthan 

Facts of the case:

It is a case of sexual harassment at the workplace. One of the social activists who tried to
stop the marriage of Vishaka because she was an infant and she is not in the age of
marriage. Because of this the 5 family members of Vishaka including her husband raped her.
And also she was taken to the police station for the encounter. The female police tortured her
whole midnight and also in the morning one of the police also said her to leave her lehenga in
the police station for the evidence. Then she filed a case against sexual harassment in the
High court. 

Judgment of the case:

High Court has observed gang rape of Vishaka and gives the judgment that under article
14(2), 19(3)(1)(g) and 21(4) of the constitution of India that every profession, trade or
occupation should provide a safe working environment for women employee.      

Apparel export promotion council vs A.K Chopra

Facts of the case:

When the petitioner filed the case against the defendant. The inquiry has started and the
Enquiry officer concludes that miss X was molested by one of the people who belong to the
business center. 

Judgment of the case:

The disciplinary authority gave the order to remove the defendant from the work and filed
against him in the case and prove him guilty of such offense. The defendant has challenged
in court against the judgment of the court. He is taken in the 34th meeting of the staff
committee to prove that he is alleged or not.    

Right against Rape

Meaning and concept of Rape:

Rape is a sexual activity which is done without the consent of the woman and it is carried out
forcefully by threating her and give an injury against her consent. This happens because of
mental illness, mental deficiency, intoxication, unconsciousness, or deception of males. Male
is accused of rape cases. Rape is the fourth most convicted crime in India. Madhya Pradesh,
Mumbai, Delhi has the highest crime rate record of rape. Mostly 18-35 years of women are
the victims of rape in India. 

There were 10 reasons why rape is convicted every day in India.

1. Less female police in India: Women don’t get a chance to do patrol duty. If they
get a chance to work in the police, they are provided with other duties. In India,
 women don’t involve in this work generally. Because society doesn’t give them the
chance to prove themselves as a protector so they can protect our country from
rape. In 161 districts there was only one station police officer who is female. And the
only female official can’t stop the rape of the whole country. If we see every day
many rape cases are filed in the police station but nothing happens. It affects the
life of the women who are the rape victims. Generally, women hesitate to share their
incidents with male police officials or with anyone else. That is the reason India has
the highest number of rape in India. Female police officials are seriously needed in
our country for the protection of women.  
2. Not enough actual police who are seriously involved in protecting the
citizens: Many police officials are just for the money they aren’t serious or
dedicated to our country. Police stations are also not safe for women nowadays.
Police also become rape convicts for their needs. It is very important to first develop
our protector who is employed or studied to protect our country not to make our
country a rapist country. This has also become a very serious issue in our country.
Female police officials are seriously needed for our country.   
3. Because of provocative clothing: Generally, in India, society provokes clothing of
girls and women. As our Indian Society generally people blame women every time
for rape because they think because of the clothing issue they are facing rape. In
some workplaces, women have to wear extra short clothes as their company
demands. Then also people blame women for rape because of clothes. But clothes
are not an issue as I think. Because kids who are in the age of 2-5 they are also
becoming the rape convict. And their rape convicts are their family members, not
anyone else. Even old age women are two are facing rape at late night in the road.
Clothes are never a matter for rape. Because of the mental illness of male they
commit rape every day.    
4. Acceptance of domestic violence by women: Women are facing rape domestic
violence in the case of marriage. Women’s marriage is caused by their consent in
many families. And after marriage, they have to face domestic violence by their
husband or maternal families. This domestic violence generally caused due to dowry.
In the case of marriage, husband tries to do sex with their wives without her
consent. They force them to do so every time. This is also considered as rape.
Because without consent of both the person sex cannot happen it is considered as
marital rape even in married life. Because it is the personal right of women. They
can choose whether they want to be involved with their husbands or not. But women
do not complain against her husband because of their family because of society.
Because it harms their society and husband. This domestic violence becomes rape
because of non-acceptance.   
5. Lack of Public safety: Public places are not safe for women, especially at night.
Because rape is mostly convicted at night only. In many workplaces, women have to
work late at night in private companies. They have to go alone to their homes at
midnight. No autos are available at night. Generally, women have to travel by bus at
night because only buses roam all day and night. And they are toxicant at night.
Because of the toxicity, they try to rape women because they are not in the state of
mind. Even cabs or auto are also not safe nowadays. Specially in Delhi. In Delhi,
most of the rape cases are filed every year. Delhi is also considered as the rape
capital of India. 
6. Encouraging rape victims to Compromise: Womenare the victims of rape they
have to compromise and they are a force not to go to the police or fight against the
rape victim. They are forced by their families and societies because of the image of
the family. They think if they go to the police or try to fight with rapist their lives will
be destroyed. And no one accepts them in society. Many girls and women facing
many bad circumstances because of rape. Every person always blames women for
 rape. No one tries to help them to fight against rape convict. And because of this,
most women commit suicide to avoid society.  
7. A sluggish court system: India has very fewer lawyers for this type of case. Every
year many cases filed in courts but very few have got justice for the rape. Maximum
rape cases are filed are pending for so many years.  
8. Few convictions: The conviction rate of India is 26 percent. 
9. The low status of women: Maximum time women who face rape are of low
community in Indian society.
10.  Marriage: This is also the reason why a woman or her family don’t complaint
related to rape. Because they think if anyone knows about it then no one accepts
her as her wife or daughter in law. Parents have to feed their daughter’s lifetime and
social acceptance. A maximum time woman has to marry the rapist who raped her
to hide the hold the image in the society. This destroys the life of the victim. And if
we see in the court, there were thousands of rape cases registered in the court and
pending for many years. Even family leave hope of getting justice and rapist get
freedom.   
   Sexual Violence has Long-Term Effects on Victims. 

1.  94% of women are facing post-traumatic stress because of rape for two weeks.
2. 30% of women report about PSTD after 9 months of rape. 
3. 33% commit suicide because of rape.
4. 70% of women face severe distress because of sexual harassment and rape. 
Peoples are convicted of rape are getting addicted to drugs.

1. 3.4 times started using marijuana

2. 6 times started using cocaine.
3. 10 times started using other major drugs. 
Bodhisattva Godhwa  vs. Subhra Chakraborty

Facts of the case:

The petitioner is the professor of the college. And the defendant is the student of that
college. One day the petitioner visits the defendant’s house to meet her and promises her to
marry her and involved with her and after that when she asked him to marry her, he just
ignored her and always says that his family wants him in the govt.

Services before marriage. And sexual contact continues for many days and the defendant got
pregnant twice and aborted her baby twice and then also continues her relationship. And
then they got married secretly and he accepted her as her legal wife. But after whenever she
gets pregnant he always aborted her baby. The complaint was filed against him. He filed a
returned case. 

Judgment of the case:

But his suit gets rejected by the court.  

Right to reputation 
  Meaning and nature of the right to reputation.
Right to Reputation is the part of Freedom of Speech and Expression as fundamental rights of
the Indian Constitution. It is the part of Article 21 and 19(2) of the Constitution. Because the
right to reputation is correlated with the freedom of speech and expression, it is the reason
for harm of reputation. People have a full right to speak in front of anyone so many times
they don’t before speaking in front of any person, they just express their feelings in words it
may cause to harm of reputation.

To maintain or balance the right citizens don’t have to interfere in others’ lives because it
violates the fundamental rights of the citizen. It harms the dignity and reputation. For
harming the reputation in public, that person has to give compensation for the violation of
rights. A person cannot be held liable for slanderous or libelous- statements because it is not
a criminal offence.

Media is a wide-ranging coverage who helps to explore the news and advertisements. Many
times they are held liable for the harm of the reputation of citizens. A journalist covers the
news of every person as well as leaders of the country like politicians, business persons. They
cover all their personal as well as professional information and make a piece of news. Many
times they intentionally make news to harm the reputation of celebrities or politicians. 

 Harm to Reputation 
Any defamatory statement can harm a professional reputation. If someone made a statement
about your business that you are a local business person to prove that you are dishonest to
the public. It can cause your customer. Reputation can be harmed in any way. If anyone tells
any bad statement about you in front of anyone.

It destroys your image. Many people commit suicide because of their reputation. There were
many cases filed for the cause of harm to reputation. Even if any person shows your bad
things or some small silly things it can destroy the image of the people. Because of this,
many people lost their jobs from the company.  

 When Harm is presumed

The statement which is used in a normal conversation can also presume the harm of the
reputation. Any statement which is used for accusing another person of sexual misconduct or
of having a sexually transmitted disease. If someone is accused of committing a crime can
harm professional or personal reputation. It is also considered as defamatory. If someone in
public says about any person that he/she is a racist it can cause a strong reaction. 

 Financial Harm
If you face loss in business or if you lose your business because of someone’s defamatory
statement about your business or your personal life it can harm your financial reputation.  

 Mental or Physical Anguish

The harm which is caused by victims related to health problems like insomnia, depression,
and anxiety, physical ailments. 

State of UP v Mohammad Naim

Facts of the case:

The high court directed an investigation to the investigating officer to know why this
complaint filed against him. Police force apologies in front of the court for wrongly alleging
him in the court. Court has accepted the apology but puts some of the remarks against the
police force.  

Judgment of the case:

The High Court gives the remark for this case by saying that:

“If judges felt with some efforts that they can clear the Augean stable, which is the
police force and said that I would not hesitate to wage a war single-handed
because single-handed is lawless group in the whole country whose record of
crimes comes anywhere near the record of the organised unit which is known as
Indian police force” 

State of Bihar v Lal Krishan Advani

Facts of the case:

This is a very serious matter of death and injuries in the state of Bihar in the Bhagalpur
District. This is a communal right which creates death and injuries in the Bhagalpur District.

Judgment of the case:

 It is a matter of concern in the state of Bihar for the Bihar State Government. The state
government decided to put inquiry into this matter to the Commission of Enquiry
under Section 3 of the Inquiry Act.  

Smt Kiran Bedi v Committee of Inquiry  

Facts of the case:

Police officers and lawyers involved together in an incident is apprehended by the students of
a college and handed them to the police for committing an offence within the campus of the
college. The magistrate discharged the students and take action against police officials. The
report has been submitted by the inquiry officer about the conduct of the police officials.
Police officials are filed before the committee under section 5(2)(a). 

Judgment of the case:

The notice is issued by the committee in the High Court Bar Association on behalf of the High
Court Bar Association and the Commissioner of police together with the supporting affidavits
were filed before the committee. The examination of the police will be held on 16 May 1988.
Affidavit and evidence were submitted to the inquiry officers.

Right to livelihood
The right to livelihood is not under Article 21 of the Indian Constitution. It is not the
Fundamental Rights of the Indian Constitution. Because already right to life is mentioned
under Article 21 of the Indian Constitution. But Right to Livelihood is mentioned under Article
19 and 16 of the Indian Constitution.   
Case law 

Olga v municipal corporation

Facts of the case:

The petitioner has filed a writ petition about the conditions of the shelter they are living in.
They said that they are living on the pavements and in the slums in the city. Other
petitioners also complained about the condition of their area of Kamraj Nagar, Basti where
they live. This case is filed about the conditions of the slums and Basti of Bombay City. they
filed a case against the municipal corporation of Bombay about the conditions of Bombay.

Respondents must take some actions related to this issue but they are not even responding
in this matter. This case is filed for the violation of Article 32, 19, and 21 of the Indian
Constitution. Because this is the duty of the government to protect the rights of the citizen of
India. 

Judgment of the case:

The court has given a decision that all the pavement dwellers and the slum or busty dwellers
in the city of Bombay will be evicted forcibly and deported to their respective places of origin
or removed to places outside the city of Bombay.     

D.T.C v D.T.C mazdoor congress

Facts of the case:

The Writ Petition is filed for the condition of the Delhi road transport. And also allegation put
on the authority that they are not working properly on road development, not performing
their duties properly in case of road development. After the Writ petition filed many of the
employees of the authority has to resign from their job as they are not performing their jobs.
Then the three respondents filed a writ petition in the High Court challenging
the Constitutional Validity of Regulation 9(b), which gave the management right to terminate
the services of an employee by giving one month notice or pay in lieu thereof. 

Judgment of the case:

It is a violation of Article 14 of the Indian Constitution.      

Chameli singh v state of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the
U.P state legislation who provides power to take possession of the case lands and waste
lands or arable lands where the land is acquired for the sanitary improvements for the
development of society in a planned manner. The state government is empowered to give the
possession of the land to the Dalits, a building houses. The appellant has challenged the
validity. 
Judgment of the case:

The three contentions put by the division bench, the first contention is that our land is not a
waste of arable land, secondly, there is no urgency to the Dalits for the possession of the
land. Third contention is that property is the only source of their livelihood. They have no
other work for feeding themselves. 

M.J. Sivani v state of Karnataka

Facts of the case:

The petitioner has filed a petition for the license of Video Games requires to be regulated
under the Mysore Police Act, 1963. 

Judgment of the case:

The petitioner has got the permission of video games and ordered her to get a license to play
video games.

Right to shelter
The shelter is important because it helps humans to grow physically and mentally. It is not
for the protection of life but it is for adequate life, space, safety, sufficient light, pure air and
water, electricity, sanitation, etc. 

The right to shelter is an important component of the right to life under the Indian
Constitution. Because if a person has a life then they need shelter because without shelter no
can survive in this world. The shelter is defined as the home where human beings live. Even
animals, as well as birds, need shelter to live, they also can’t survive without shelter. The
shelter provides us food, water, sunlight, etc. and without all this, we can’t survive.

It helps us develop ourselves. The weaker section of our society such as Dalits, SC or ST who
have no shelter to live they have to live in the huts which are made on the roadsides. Cases
were coming related to the weaker section of the society that they are dying because of no
proper shelter. They don’t get proper food or water. They even have to stand in lines to
collect water for their daily needs and drinking. They have so many children who are crying
all the time for food. They have to work in fields or on the roadside by holding their child.

They are getting so much affected. Because of the caste issue, no one is ready to give them
jobs, Because they are not even educated so they can get the job or they can’t get involved
in any type of work because of their less education and lower caste. They are helpless in
every condition.

In the case of Chameli Singh vs State Of U.P.

It is the case that is concerning the allotment of land or flats to the weaker sections of the
society. The Right to shelter is the Fundamental Right of every citizen of India. So the
Government must provide them shelter, proper food, and water. The government has
enacted the Slum Areas Improvement and Clearance Act of 1956. Citizens have to change
their minds related to caste so the lower caste can also explore themselves.
Chameli Singh v state of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the
U.P state legislation who provides power to take possession of the case lands and wastelands
or arable lands where the land is acquired for the sanitary improvements for the development
of society in a planned manner. The state government is empowered to give the possession
of the land to the Dalits, a building houses. The appellant has challenged the validity. 

Judgment of the case:

The three contentions put by the division bench, the first contention is that our land is not a
waste of arable land, secondly, there is no urgency to the Dalits for the possession of the
land. Third contention is that property is the only source of their livelihood. They have no
other work for feeding themselves.

Right to social security and protection of family

 Meaning of Social Security 
Social Security means the security of the citizen of India. Security can be of many types like
unemployment, maternity, accident, illness, disability, old age or other such life. State
guarantees protection to everyone. It promotes the welfare of the people by securing and
protecting them in the social order, social, economic, and political.

Features of the right to social security and protection of families.

1. Availability: the insecurity of the state is required for the social security system
and provides benefits for the relevant impact on livelihood.  
2. Social risk and contingencies: social security provides coverage for health care,
sickness, old age, unemployment, injury, family, and child support, maternity,
disability, survivors and orphans.
3. Adequacy: some benefits and arrangements are done for the protection of family
and to provide them an adequate standard of living and adequate access to health
care. When a person is involved in social security he might lack in earnings, paid
contributions and the amount of relevant benefit. 
4. Accessibility: it has five elements that are directly accessible to social security. The
key elements are coverage, eligibility, affordability, participation and information
and physical access. There are two types of schemes one is a non-contributory
scheme which is necessary for ensuring universal coverage.   

Right to health
The Right to health is a public interest. It is guaranteed under the Fundamental Rights of the
Indian Constitution. It is also the part of the Right to Life. Health should be maintained. If we
don’t take care of our health if we cannot survive. Our body parts can get damaged due to
some of the diseases. There were several private and public hospitals for health treatment.
Hospitals provide us health facilities for our treatment.
Doctor and patient relationships are very important for the right of health. Because if any
person gets sick he/she has to go to the doctor only for their treatment. But if we talk about
the conditions of the hospital, government hospitals cost very low for the treatment but the
conditions of the government hospitals are very bad.

Hospitals are very unhygienic and in very bad condition, especially in Bihar and Jharkhand.
Private Hospitals are very costly with full facilities available. Weaker sections of society
cannot afford private hospitals because of the high amount of treatment. And the condition of
government hospital is so bad their treatments are done correctly. The right to health implies
that every person can get appropriate conditions for the enjoyment of health without any
discrimination. 

 Violations of Human Rights in Health. 

Attention is very important in the case of health. If we ignore our health problems we will
cause by some severe diseases which cannot be cured if it comes at the last stage. Every
disease is to be cured at the very first stage of life. The people who are suffering from
disabilities, indigenous populations, a woman living with HIV, sex workers, people who use
drugs, transgenders, and intersex people contribute and exacerbate poor health. This is also
a violation of Human Rights in Health.

The world health organization is the biggest organization for the health rights of human
beings as a fundamental right of every human being. Health care is always affordable and
cheap so everyone can take care of health and everyone gets the opportunity to gain the
health facilities in the hospitals and nursing homes. Water, food, housing, should be
maintained so that no one caused health diseases. All appropriate conditions are taken to
maintain the health and there should no discrimination. A Doctor must have the freedom to
control the body of the patient to cure diseases and health-related problems. 

 Approach to human rights related to health. 

Some of the approaches is done for the human rights to provide health facilities settings is
done to evaluate health policy and service delivery which mainly targets for practices which
are the heart of health outcomes. Programmes related to health are performed for the
enjoyment of all people to the right to health.

 Principles of human rights for the health policy

There are three types of principles:

1. Accountability: Accountability means duties which are performed for the human

rights for the health policies. Movements are also establishing to perform for the
right of human health. For evaluating the health policies for human rights different
types of events and movements are organized to maintain the health rights of
human beings. From this type of event, people get entertained and become happy.
And being happy is the most useful to keep human beings healthy and strong in
every sense.  
2. Equality and non-discrimination: This principle is exercised to remove
discrimination which is done based on race, caste, creed, religion, color, sex, etc.
mostly in small towns or villages people do discrimination with the person who is
suffering from HIV, Aids or mental disease. They try to distance from them. Most
people abuse those persons who are mentally ill. They don’t allow their family
members to talk to them or meet them or even roam around them. The World
Health Organization is the biggest principle which is formed to fight against
discrimination related to health services. 
 3. Participation: Participation means all the persons who are involved in the program
for evaluating health-related issues like all the stakeholders including non-state
actors who have ownership of the program and event for the assessment, planning,
implementation, monitoring ,and evaluation. 

 Universal, indivisible and interdependent

Human rights are equal to everyone, it does not do discrimination between anyone they
apply to everyone without any distinction. Human rights are the right to food, the right to
health, the right to education, free from torture, etc. 

 Core elements and components of a right to health 

There are two types of core elements of health: 

1. Progress the realization to use the resources: This means the government is

taking some important measures for the fulfillment of the rights of human beings.
The Government, as well as our Judicial system, has taken some of the measures for
the development of the state so that every human being can live a safe and healthy
life.     
2. Non-decreasing measures: Non-retrogressive measures cannot be taken in every
situation. It is only valid in some situations like free education to children below the
age of 5. Retrogressive measures are not to be taken in case of economic, social,
and cultural rights. 
3. Availability: People have some sufficient need for public health and health care
facilities, goods and services for their protection and care of health. Availability
includes age, sex, location, and socio-economic status and qualitative surveys to
understand our health needs.  
4. Accessibility: Everyone has access to good health, facilities, goods, and services.
Accessibility has four dimensions:

 Non-discrimination
 Physical accessibility
 Economically accessibility
 Information accessibility  

1. Acceptability: Respect others related to medical ethics and gender. Acceptance is

very important in the case of medical facilities and every sense. Without we accept
our problems we can’t fight with our problems.  
2. Quality: Quality of health facilities should be evaluated scientifically. 

Right to medical care

Every person has the right to medical care as it is mentioned under the fundamental rights in
the Constitution of India. And the very important part is doctor-patient relations. Patients
right is the basic right or basic rule between medical care and patient. This is the duty of the
governmental organizations like hospitals, health care personnel as well as insurance
agencies or any payors of medical-related costs has to take care of the patient as their
medical issues.

No patient should get discriminated based on sex, colour, creed, and religion. Every patient
should be treated equally in all hospitals like in private as well as governmental hospitals.
Medical care includes good hygienic food, housing facilities are provided to all human beings
so they can live safe. 

Right to Die
The Right to die is a right that totally depends on human beings. In this choice, no one has to
get involved to make the decision. This decision all depends on the illness of a person like
mental or physical illness. The right to die means a human being is entitled to end their life in
any circumstances or can go under voluntary euthanasia.

But forcefull suicide does not come under the right to die. Because many times people have
to commit suicide because of mental pressure because of someone in case family pressure or
because of love life or because of any situation.

In those days youth suicide is increasing day by day because of study pressure and because
of their family pressure because their family pressurizing their child for good marks from the
very beginning of their school life. Because of so much high mental pressure, they are not
able to focus on their studies so they aren’t able to score marks in their exams. 

 Reason for youth Suicide in India

India has the highest suicidal rate. If we see the suicide rate of youth which is 35.5 per
100,000. It is increasing every year. Parents are the biggest reason for the suicide of youth.
Because today’s parents are very conscious of their children in case of study they think that if
we don’t pressurize our children they are not able to score good marks in the exam but this is
the biggest mistake of parents.

Everyone needs some space in their life for their improvement. If they are allowed to live
their lives by their own choice in some limits. Because everyone has the right to live their life
with full freedom. There are more reasons for the suicide which is academic pressure,
workplace stress, social pressures, modernisation of urban centers, the relationship these are
also very serious issues for the youth suicide.   

Factors include which is the reason for suicide

1. Mental health disorder (disorder)

2. Previous Suicide Attempts
3. Abuse 
4. Burden 
5. Family pressure
6. Financial problem

 How suicide can be prevented 

In India suicide is attempted every 40 seconds. The very first and foremost prevention is to
bring some resources to maintain mental health. We must speak to advocates and must
discuss this issue in front of everyone so we can work on this issue. First, our parents have to
change and understand the mental issue of children they are facing nowadays. If they try to
work on these issues so we can prevent suicide.
Right to work under article 21 of Indian constitution
Right to work is important because it is an effective way of development, make effective
provision for securing the right to education and public assistance in cases of unemployment,
old age, sickness, and disablement. The Right to work is defined under article 41 of the
Indian Constitution. And under Article 43 of the Indian Constitution mention about the
welfare of the people.

The welfare of the state means to secure a living wage and a living standard to all the
workers. Under article 38 and 40 states must put some effort into the people so they can put
all their capacity in their work so they earn fairly for their living. They can work upon their
own choice there is no restriction in choosing their field of work.    

Violation of article 21 of Indian constitution

The violations of human rights mean if any citizen rights get violated which is a fundamental
right of the Indian citizen then it is considered as a violation of Article 21 of the Indian
Constitution.  

Rights are violated in many forms:

 Harassment 
When women’s get harassed at the workplace or a public place or home or anywhere else it
is a violation of the fundamental right of women. Women’s fundamental rights get violated
every day anywhere in any form. They have to face many problems and even her  society
doesn’t listen to her in this case they blame women for harassment caused daily. Many
women don’t even speak about this in front of anyone and continue to face this type of
problem. To protect women government has some major prevention to protect women from
violating their fundamental rights. 

Death by hanging not violative of article 21

This is declared by the apex court that death by hanging is not violative of Article 21 of the
Indian constitution. Because if a person has committed any crime and violated the
fundamental rights of the citizen, he is not liable for any fundamental right. So hanging is not
violative of fundamental rights. The Supreme Court held that public hanging “even if
permitted, under the rules would violate Article 21 of the Indian Constitution being barbaric,
disgraceful as seen in any civilized society”.. Death penalty is given only if any deterrent
crime is committed by the criminal.

The criminal will get 20 years of life imprisonment and in case he doesn’t get changed he is
given the death penalty. “One of the reports which are made in the year 1960 which is made
by Great Britain has mentioned this line “we were impressed by the argument than the
greatest deterrent to crime is not the fear of punishment but the certainty of detection”. Each
court has the hanging judges who give decisions related to the death penalty to the
prisoners. The error of judgment is not ruled in case of the death penalty. In the Rajiv Gandhi
case, 26 criminals got the death penalty for the crime.
Through education, we get to know that poor persons mostly get the death penalty for the
crime. In many international Countries, death penalties get abolished for Human Rights. And
the Indian Constitution protects the Human Rights of the Indian Citizen.

Right against public hanging

Lichma Devi Case

Judgment of the case:

it is held that the death sentence is unconstitutional and violative of Article 21 of the Indian
Constitution. Death by public hanging is considered as the barbaric practice in India. 

Right against Sexual Harassment 

Vishaka vs. the State of Rajasthan 

Facts of the case:

It is sexual harassment at workplace cases. One of the social activists who tried to stop the
marriage of Vishaka because she was an infant and she is not in the age of marriage.
Because of this the 5 family members of the Vishaka including her husband raped her. And
also she is taken to the police station for the encounter.

The female police torture her whole midnight and also in the morning one of the police has
also said her to leave her lehenga in the police station for the evidence. Then she filed a case
against sexual harassment in the High court. 

Judgment of the case:

High Court has observed gang rape of Vishaka and gives the judgment that under article
14(2), 19(3)(1)(g) and 21(4) of the constitution of India that every profession, trade or
occupation should provide a safe working environment for women employee.      

Apparel export promotion council vs A.K Chopra

Facts of the case:

When the petitioner filed the case against the defendant. The inquiry has started and the
Enquiry officer concludes that miss X was molested by one of the people who belong to the
business center. 

Judgment of the case:

The disciplinary authority has given the order to remove the defendant from the work and
filed against him in the case and prove him guilty of such offense. The defendant has
challenged in court against the judgment of the court. He is taken in the 34th meeting of the
staff committee to prove that he is alleged or not.
Right against Rape 
Bodhisattva Godhwa  vs. Subhra Chakraborty

Facts of the case:

The petitioner is the professor of the college. And the defendant is the student of that
college. One day the petitioner visits the defendant’s house to meet her and promises her to
marry her and involved with her and after that when she asked him to marry her, he just
ignored her and always says that his family wants him in the govt.

Services before marriage. And sexual contact continues for many days and the defendant got
pregnant twice and aborted her baby twice and then also continues her relationship. And
then they got married secretly and he accepted her as her legal wife. But after whenever she
gets pregnant he always aborted her baby. The complaint was filed against him. He filed a
returned case. 

Judgment of the case:

But his suit gets rejected by the court.

Right to Reputation
State of UP v Mohammad Naim

Facts of the case:

The high court directed an investigation to the investigating officer to know why this
complaint filed against him. Police force apologies in front of the court for wrongly alleging
him in the court. Court has accepted the apology but puts some of the remarks against the
police force.  

Judgment of the case:

The remarks of the High Court are: if I had felt that with my lone efforts I could have cleaned
this Augean stable, which is   the police force, I  would not have  hesitated to wage this war
single-handed. That  there is not,  a single lawless, the group in the whole of the country
whose record of crime comes anywhere near the  record of that  organised  unit which is 
known as the Indian Police Force. Where  every fish barring perhaps a few stinks, it is idle  to
pick out one or two and say  that it stinks.”

State of Bihar v Lal Krishan Advani

Facts of the case:

This is a very serious matter of death and injuries in the state of Bihar in the Bhagalpur
District. This is a communal right which creates death and injuries in the Bhagalpur District.
It is a matter of concern in the state of Bihar for the Bihar State Government. 
Judgment of the case:

The state government decided to put inquiry into this matter to the Commission of Enquiry
under Section 3 of the Inquiry Act.  

Smt Kiran Bedi v Committee of Inquiry  

Facts of the case:

Police officers and lawyers involved together in an incident is apprehended by the students of
a college and handed them to the police for committing an offence within the campus of the
college. The magistrate discharged the students and take action against police officials. The
report has been submitted by the inquiry officer about the conduct of the police officials.
Police officials are filed before the committee under section 5(2)(a). 

Judgment of the case:

The notice is issued by the committee in the High Court Bar Association on behalf of the High
Court Bar Association and the Commissioner of police together with the supporting affidavits
were filed before the committee. The examination of the police will be held on 16 May 1988.
Affidavit and evidence were submitted to the inquiry officers. 

Cases on right to livelihood

Case law 

Olga v municipal corporation

Facts of the case:

The petitioner has filed a writ petition about the conditions of the shelter they are living in.
They said that they are living on the pavements and in the slums in the city. Other
petitioners also complained about the condition of their area of Kamraj Nagar, Basti where
they live. This case is filed about the conditions of the slums and Basti of Bombay City. they
filed a case against the municipal corporation of Bombay about the conditions of Bombay.
Respondents must take some actions related to this issue but they are not even responding
in this matter. This case is filed for the violation of Article 32, 19, and 21 of the Indian
Constitution. Because this is the duty of the government to protect the rights of the citizen of
India. 

Judgment of the case:   

D.T.C v D.T.C mazdoor congress

Facts of the case:

The Writ Petition is filed for the condition of the Delhi road transport. And also allegation put
on the authority that they are not working properly on road development, not performing
their duties properly in case of road development. After the Writ petition filed many of the
employees of the authority has to resign from their job as they are not performing their jobs.
Then the three respondents filed a writ petition in the High Court challenging
the Constitutional Validity of Regulation 9(b), which gave the management right to terminate
the services of an employee by giving one month notice or pay in lieu thereof. It is a violation
of Article 14 of the Indian Constitution.

Judgment of the case:

Chameli Singh v the State of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the
U.P state legislation who provides power to take possession of the case lands and waste
lands or arable lands where the land is acquired for the sanitary improvements for the
development of society in a planned manner. The state government is empowered to give the
possession of the land to the Dalits, a building houses. The appellant has challenged the
validity and put three contentions in front of the court that our land is not a waste of arable
land, secondly, there is no urgency to the Dalits for the possession of the land. The Third
contention is that property is the only source of their livelihood. They have no other work for
feeding themselves. 

M.J. Sivani v State of Karnataka

Facts of the case:

The petitioner has filed a petition for the license of Video Games requires to be regulated
under the Mysore Police Act, 1963. 

Judgment of the case:

The petitioner has got the permission of video games and ordered her to get a license to play
video games.  

 Right to shelter
Chameli v state of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the
U.P state legislation who provides power to take possession of the case lands and wastelands
or arable lands where the land is acquired for the sanitary improvements for the development
of society in a planned manner. The state government is empowered to give the possession
of the land to the Dalits, a building houses.  The appellant has challenged the validity. 

Judgment of the case:

The three contentions put by the division bench, the first contention is that our land is not a
waste of arable land, secondly, there is no urgency to the Dalits for the possession of the
land. Third contention is that property is the only source of their livelihood. They have no
other work for feeding themselves.

Shantistar Builders  v Narayan Khimlal Totame

Facts of the case:

The Respondent files a petition challenging the Shantistar builders in respect of construction
related to the rate of the building. His main aim to change government policy. 

Judgment of the case:

The high court has rejected the petition because the respondent tried to change the
government policy. The court has dismissed the petition. By the order of the High Court
petitioner has challenged the respondent.  

Right to social security

N.H.R.C v State of Arunachal Pradesh

Facts of the case:

The National Human Rights Commission has filed a writ petition against the state of
Arunachal Pradesh challenging that the citizen of Arunachal Pradesh is prosecuting the tribals
of Arunachal Pradesh. This petition is filed for the violation of Article 21 of the Indian
Constitution. There were a total of 65000 Chakma tribals in Arunachal Pradesh. More facts
came around that a large number of Chakmas from Pakistan and Bangladesh are removed
from Kaptai Hydel Power Project. After they removed from their work.

They settled in Assam and taken the citizenship of India. The State of Arunachal Pradesh has
allotted them some lands and provide 4,200/- per family. The Chakmas has submitted his
report of citizenship that they previously submitted to the Arunachal Pradesh Police officials
for their Citizenship under the Citizenship Act, 1955. But they have not got any reply from
the Commissioner. And the relation between Chakmas and Arunachal Pradesh has
deteriorated. NHRC put this issue and issue a letter to the Chief Secretary of Arunachal
Pradesh and Home Secretary and Government of India to enquire about this issue. 

Judgment of the case:

The first reply came from the Chief Secretary of Arunachal Pradesh stating that our Police
officials will give protection to the Chakmas.    

Right to health 
Case laws: 

Municipal Council, Ratlam vs Shri Vardhichand & Ors.

Facts of the case:

The petitioner is prosecuted by the petitioner related to not clearing the garbage from
society. Because garbage can cause diseases that can affect every citizen of the state. But
the petitioner has filed the plea saying that we don’t have money. 

Judgment of the case:

But the Supreme court has rejected the petition of the petitioner. And give the decision in
favour of the defendant that steps must be taken for the improvement of the health of the
public. It is very important for public safety. 

C.E.S.C. Ltd. Etc vs Subhash Chandra Bose And Ors.

Judgment of the case:

In this case, the Supreme Court ordered that the Right to health is a Fundamental Right and
it cannot be violated. Health is protected in every case not in case sickness only. And Medical
care is valid for every citizen of the state. Even weaker sections of society have a right to
medical care. They are eligible to get all the facilities regarding health. So they can live their
life safe and happy. 

Mahendra Pratap Singh vs State Of Orissa And Ors.

Facts of the case:

The petitioner has filed the case for the effective measures to be taken to run the Primary
Health Center at Pachhikote in the District of Jaipur. For providing all the facilities to the
health center for the local people. 

Judgment of the case:

The court issued the order relating to this matter that in every District there should be
hospitals and primary health centers for the people’s health and care.    

Right to die
Common Cause (A Regd. Society) vs Union Of India

Facts of the case:

 The petitioner has filed the case for legalizing the living will under Article 32 of the Indian
Constitution. The petitioner also wrote a letter to the Ministry of Law and Justice about this
issue regarding concerning with the living will. But the petitioner has got no response from
the Government of India related to this issue. 

Judgment of the case:

The Supreme Court has put the decision into it that Right to Die is the Fundamental Right
under Article 21 of the Indian Constitution. The court held some regard to the patient that
medical treatment is necessary for any of the ill-treatment before you think of dying. Because
Euthanasia suicide is unlawful in India means you cannot commit suicide because of any ill-
treatment.  

 Right to work 
Bandhua Mukti Morcha vs Union Of India & Others

Facts of the case:

This case is filed to stop the child labor under Article 32 of the Indian Constitution to the
State of Uttar Pradesh because some children get kidnapped from the State of Bihar and
brings to Uttar Pradesh for the Child Labor and involve them in factory works. The children
are of less than 14 years and also that children are facing child abuse in Uttar Pradesh during
the work. This is the case that violates the Right and Protection of Child Rights.

Judgment of the case:

 The Supreme Court has discussed the protection of child rights and the right to education.
But automatically we cannot abolish child labor because of a lot of work. But we can take
some steps related to child abuse which is happening in Uttar Pradesh. The court held that
the children should get some facilities and provide them education as well as food to them so
they can stay healthy to work in the factories. And also take care of them so that they can
stay safe.  

Sodan Singh v New Delhi municipal committee

Facts of the case

The petitioner has filed a writ petition against Municipal Committee because their right of
trading business gets violated. They do business on the pavement of the roads in certain
areas in the city of Delhi. And also claim that they were not so rich and this is the only way of
their income. 

Judgment of the case

But Delhi High Court dismissed their petition. But according to Article 19(g), everyone has
the right to trade and business in any area. But according to Delhi Municipal Corporation Act,
1957 has the right to permit Hawkers and Squatters on the sidewalks. 

Secretary, State of Karnataka v Umadevi

Facts of the case:

The respondent works as an employee in the Commercial taxes Department. Her work is
related to the daily wages in some of the districts of the State of Karnataka. She claimed that
she has been working for 10 years. And claimed that she should get all the facilities of the
regular employee of the Department. She approached Administrative Tribunal with all her
claims. 

Judgment of the case:

But the Administrative Tribunal rejected her claim saying that she has no right to get equal
wages as a regular employee or for regularization. Then she again filed a petition in the high
court of Karnataka challenging the decision of the Administrative Tribunal. The high court has
accepted the claim and order to give equal wages to her as a regular employee.     

Violation of article 21
Mansing Surajsingh Padvi vs The State Of Maharashtra

 Judgment of the case:

This appeal is filed against the judgment of the Bombay High Court which is issued by the
Government of Maharashtra in exercise of the powers under sub-para (1) of the Para 5 of the
Fifth Schedule to the Constitution and the West Khandesh Mehwassi Estate Regulation, 1961
issued by the Governor of Maharashtra under sub-para (2) of para (5) of the Fifth Schedule
of the Constitution.The fundamental right of the respondent is violated by the High Court.   

K.P Hussain Reddy And Ors. vs Executive Engineer

Facts of the case:

The petitioner filed the case related to the compensation is not paid by the respondent. The
petitioner gives the letter to the requesting the respondent to pay the amount of 4,67,622 for
land acquisition charges. But the respondent failed to pay the amount. 

Judgment of the case:

The court issued a notice to the defendant for the land amount. In  March, the court
dismissed the petition saying that in the matter of land acquisition proceeding will be
completed within six months.  

Conclusion 
At last, I conclude that the right to life is the fundamental right of every citizen of India. And
fundamental rights cannot be violated by anyone. If anyone’s fundamental right gets violated
by any public official or government official then that person can file a petition in the
Supreme court. Article 21 of the Indian Constitution is going from the past period from the
time of the Magna Carta period. Firstly our Indian Constitution is under Magna Carta. That
time Judiciary has a limited role in the Constitution. But in today’s time, the Judiciary has an
important role in our Indian Constitution.

The law is implemented by the Indian Judiciary which is mentioned in the Indian Constitution.
The Constitution of India makes every person equal who is a citizen of India. All are eligible
for each right which is provided by the constitution of India. No person shall be discriminated
against based on caste, creed, and religion. Protection of rights is the fundamental duty of
the Government of India.   
ARTICLE -19

Introduction
Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every
citizen of India, namely-

1. Freedom of speech and expression;

2. Freedom to assemble peacefully and without arms;
3. Freedom to form associations, unions or co-operative societies;
4. Freedom to move freely throughout the territory of India;
5. Freedom to reside and settle in any part of the territory of India, and
6. Freedom to practice any profession, or to carry on any occupation, trade or
business. 
These six fundamental freedoms are the natural and basic freedoms inherent in the status of
a citizen. However, these freedoms are not absolute or uncontrolled but are subject to certain
reasonable restrictions. In this article, the author will take you through the six fundamental
freedoms provided under Article 19 along with the relevant case laws. 

6 fundamental freedoms

Freedom of speech and expression [Article 19(1)(a) and

19(2)]
Article 19(1)(a) guarantees the freedom of speech and expression to all citizens. Freedom of
speech and expression is the foundation of a democratic society and is one of the most
cherished rights of a citizen. It is the first condition of liberty and plays an important role in
forming public opinion. 

Meaning of freedom of speech and expression

Freedom of speech and expression means the right to speak, and the right to express oneself
through any medium-by words of mouth, writing, pictures, signs, internet etc. Every citizen
has a right to hold an opinion and to be able to express it, including the right to receive and
impart information. The expression ‘freedom of speech and expression’ has a wide
connotation. It includes the freedom of the propagation of ideas, their publication and
circulation.

Scope of freedom of speech and expression

There are various facets of the freedom of speech and expression which have been
recognised by the courts. Some of those facets or rights that constitute the freedom of
speech and expression are mentioned below:

1. Freedom of the press: Freedom of the press is perhaps the most important

freedom under the right to free speech and expression. Freedom of the press does
not find an explicit mention in the Constitution. However, it has been indisputably
held to be an important aspect of the freedom of speech and expression and is
implied under Article 19(1)(a). Freedom of press means:

1. There can be no pre-censorship in the press;

2. No-pre stoppage of publication in newspapers of articles or matters of public
importance;
3. Freedom of circulation;
4. No excessive taxes on the press, etc.;
However, restrictions can be imposed in the interests of justice, but those restrictions must
withstand the test of Article 19(2).

In Bennett Coleman & Co v. Union of India(1972),  the Hon’ble Supreme Court held that the
freedom of the press embodies the right of the people to free speech and expression. It was
held that “Freedom of the press is both qualitative and quantitative. Freedom lies both in
circulation and in content.”

In the landmark case of Romesh Thappar v. The State Of Madras(1950),  the Supreme Court
observed that, “freedom of speech and of the press lay at the founda- tion of all democratic
organisations, for without free political discussion no public education, so essential for the
proper functioning of the processes of popular government, is possible”. The Court in this
case held that the freedom of circulation is as important as the freedom of publication.

2. Right to know and to obtain information: In the State of U.P. v. Raj Narain

(1975), the Supreme Court observed that the right to know is derived from the
concept of freedom of speech.  The Court further  held that  the people of this country
have a right to know every public act, everything that is done in a public way, by
their public functionaries. It is a basic postulate of a democracy that every citizen
must have a right to know about what the government is doing. It is only when the
public is aware of the acts of government that transparency and accountability in
governance can prevail. Thus, the right to obtain information and disseminate it is
an important fundamental right. In India, we have the Right to Information Act,
2005  which provides for the right of a citizen to secure access to information under
the control of public authorities. 
3. Right to know the antecedents of the candidates at election: In Union of India
v. Association For Democratic Reforms (2002), the Hon’ble Supreme Court held that
the voters have a fundamental right to know the antecedents of the candidate
contesting election including his/her criminal past. 
4. Right to reply: In LIC v. Prof. Manubhai D. Shah(1992),  the Supreme Court ruled
that the right to reply, including the right to get that reply published in the same
news media in which something was published against or in relation to a citizen, is
protected under Article 19(1)(a).
5. Right to silence: Right to speak includes the right to not speak or the right to
remain silent. In Bijoe Emmanuel v. State of Kerala (1986),  the Supreme Court
upheld the right to silence of three children who were expelled from school because
 they refused to sing the National Anthem. The Court held that no person can be
compelled to sing the National Anthem if he has genuine conscientious objections
based on his religious belief. Hence, the right to speak and the right to express
includes the right not to express and to be silent.
6. Right to fly the national flag: In the case of Union of India v. Naveen Jindal
(2004),  the Supreme Court held that flying the National Flag with respect and
dignity is an expression and manifestation of one’s allegiance and feelings and
sentiments of pride for the nation and therefore, is a fundamental right protected
under Article 19(1)(a). However, the flying of the National Flag cannot be for
commercial purposes or otherwise and can be subject to reasonable restrictions.

Reasonable restrictions on the right to free speech and expression 

The right to free speech and expression is not an absolute right and is subject to reasonable
restrictions. As per Article 19(2), restrictions can be imposed upon the freedom of speech and
expression in the interests of:

1. sovereignty and integrity of India,

2. the security of the state, 
3. friendly relations with foreign states, 
4. public order, decency or morality, or
5. in relation to contempt of court, 
6. defamation, or
7. incitement to an offence.

Freedom of assembly [Article 19(1)(b) and 19(3)]

The object of holding an assembly or a meeting is the propagation of ideas and to educate
the public. Hence, the right to assemble is a necessary corollary of the right to free speech
and expression. Article 19(1)(b) provides for the right to assemble peaceably and without
arms. This includes the right to hold public meetings, hunger strikes, and the right to take
out processions. However, the assembly must be peaceful and without arms. 

It is pertinent to note that there is no right to hold an assembly on government premises or

private property belonging to others. 

In Himmat Lal v. Police Commissioner, Bombay (1972),  the Supreme Court struck down a
rule that empowered the police commissioner to impose a total ban on all public meetings
and processions. It was held that the state could only make regulations in aid of the right of
assembly of citizens and could impose reasonable restrictions in the interest of public order
but no rule could be prescribed prohibiting all meetings or processions altogether. 

Reasonable restrictions on right to freedom of assembly

According to Clause 3 of Article 19, the right to freedom of assembly could be restricted on
the following grounds:

1. In  the interests of the sovereignty and integrity of India, or

2. In the interests of public order. 

Freedom to form associations, unions or co-operative

societies [Article 19(1)(c) and 19(4)] 
Article 19(1)(c) provides for the right to form associations, unions or cooperative societies.
An association refers to a group of persons who have come together to achieve a certain
objective which may be for the benefit of the members of the welfare of the general public or
a  scientific, charitable or any other purpose. 

The right to form associations is considered as the lifeblood of democracy, as without such a
right, the political parties critical to the functioning of a democracy cannot be formed. 

The right to form associations and unions includes the right to form companies, societies,
trade unions, partnership firms and clubs, etc. The right is not confined to the mere
formation of an association but includes its establishment, administration and functioning as
well. 

Some of the facets of the right to form associations are as follows: 

1. The right to form associations means the right to be a member of an association

voluntarily. It also includes the right to continue to be or not to continue to be a
member of the association.
In Damyanti v. Union of India(1971),  the Supreme Court upheld the right of the members of
an association to continue the association with its composition as voluntarily agreed upon by
the persons forming the association. 

2. The right to form an association includes the right not to be a member of an

association.
3. The right under Article 19(1)(c) does not prohibit the state from making reservations
or nominating weaker sections into the cooperative societies and their managing
committees.
4. No prior restraint can be imposed on the right to form an association.
5. There is no fundamental right of recognition of the association or union by the
government.
6. The right to form an association includes no right to achieve the objects of the
association.

Reasonable restrictions on right to form association

According to Article 19(4), reasonable restrictions can be imposed on the right to form
associations, unions and co-operative societies, etc. on the following grounds:

1. In the interests of the sovereignty and integrity of India, or 

2. In the interests of public order or morality.

Freedom of movement and residence [Article 19(1)(d),

19(1)(e) and 19(5)]
Article 19(1)(d) and (e) are complementary to each other and confer a right upon the citizens
to move freely or/and to reside and settle in any part of the country.  

Freedom of movement
Article 19(1)(d) provides for the right to move freely throughout the territory of India. This
means the right to locomotion, i.e., the right to move as per one’s own choice. This right
includes the right to use roads and highways. 

In Chambara  soy v. Union of India (2007), some unscrupulous elements had blocked the
road due to which the petitioner was delayed in taking his ailing son to the hospital and his
son died on arrival at the hospital. The Supreme Court held that the right of the petitioner to
move freely under Article 19(1)(d) has been violated due to the road blockage. The Court
held that the State is liable to pay the compensation for the death of the petitioner’s son due
to the inaction on the part of the State authorities in removing the aforesaid blockage. 

Freedom of residence
Article 19(1)(e) states that it is the fundamental right of every citizen to reside and settle in
any part of the territory of India. 

In the case of  U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd.
(1995),  it was held by the Supreme Court that the right to residence under Article 19(1)(e)
includes the right to shelter and to construct houses for that purpose. 

Reasonable restrictions on right to freedom of movement and residence

As per Article 19(5), the right to freedom of movement and residence could be restricted on
the following grounds:

1. In the interests of the general public, or 

2. For the protection of the interests of any Scheduled Tribe.
Freedom of profession, occupation, trade or business
[Article 19(1)(g) and 19(6)]
Article 19(1)(g) provides for the fundamental right of the citizens to practice any profession
or to carry on any occupation, trade or business. 

Scope: What’s included and what’s not

1. The right to carry on a business also includes the right to shut down the business.
In  Excel Wear v. Union of India (1978),  the Supreme Court declared Section 25-O of
the Industrial Disputes Act, 1947, which required an employer to take prior permission from
the government for closure of his industrial undertaking, as unconstitutional and invalid on
the ground that it violated Article 19(1)(g). 

2. There is no right to hold a particular job of one’s choice. For example, in the case of
closure of an establishment, a man who has lost his job cannot say that his
fundamental right to carry on an occupation is violated. 
3. There is no right to carry on any dangerous activity or any antisocial or criminal
activity.
4. No one can claim a right to carry on business with the government.
5. The right to trade does not include the right of protection from competition in trade.
Thus, loss of income on account of competition does not violate the right to trade
under Article 19(1)(g).
The Hon’ble  Supreme Court  in  Vishaka v. State of Rajasthan (1997)  has observed that the
sexual harassment of working women in workplaces violates the fundamental right under
Article 19(1)(g). In this case, comprehensive guidelines and binding directions were issued by
the court to prevent the incidents of sexual harassment of women at workplaces in both
public and private sectors.

Reasonable restrictions on freedom of profession, occupation, trade or

business
Article 19(6) provides that the fundamental right under Article 19(1)(g) can be restricted in
the following ways:

1. By imposing reasonable restrictions in the interest of the general public.

2. By state monopoly: Sub-clause (ii) of Article 19(6) enables the state to make laws
for creating state monopolies either partially or completely in respect of any trade or
business or industry or service. The right of a citizen to carry on trade is
subordinated to the right of the state to create a monopoly in its favour. 
Also, Sub-clause (i) of Article 19(6) empowers the state to lay down, by law, “the
professional or technical qualifications necessary for practising any profession or carrying on
any occupation, trade or business”. 

In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005),  the Supreme Court has
held that the expression ‘in the interest of general public’ in Article 19(6) is of wide import
comprehending public order, public health, public security, morals, economic welfare of the
community and the objects mentioned in Part IV of the Constitution.

Test of Restrictions under Article 19(2) to 19(6)

The restrictions to be imposed on the fundamental freedoms under Article 19(2) to Article
19(6) must satisfy the following tests:

1. The restriction must be imposed by or under the authority of a law duly enacted by
the appropriate legislature. The law authorising the restriction must be reasonable.
2. The restriction imposed must be for the particular purpose or object envisaged in
the specific clauses, i.e., Article 19(2) to 19(6). There has to be a reasonable nexus
between the restriction imposed and the objects mentioned in the respective clause.
3. The restriction must be reasonable. 

Conclusion
In the landmark case of Maneka Gandhi v. Union of India (1978),  the Supreme Court said
that it is possible that a right does not find express mention in any clause of Article 19(1) and
yet it may be covered by some clause of that Article. This is true for freedom of the press is
one such important fundamental right which, though not expressly mentioned, is implicit in
Article 19(1)(a).

Lastly, it is noteworthy that earlier Article 19(1) provided for seven fundamental freedoms
i.e. Clause(f) provided for the freedom to hold and acquire property which was deleted by
the Constitution (Forty-Fourth Amendment) Act, 1978.

What powers do the courts have under writ of mandamus

Introduction
In pursuance of the Right to Constitutional Remedies for the violation of any of the enlisted
fundamental rights under Part III or others that are enshrined in the Constitution of India or
otherwise, both the Supreme Court and the High Courts have been vested with the authority
of issuing ‘writs’ under Article 32 and 226 respectively. There are five types of writs that are
issued in India: Habeas Corpus, Prohibition, Certiorari, Mandamus and Quo Warranto. Out of
these, the writ of mandamus, which is a Latin term for ‘we command’, is an authoritative writ
issued by a higher court to oblige a lower court or some government official(s) to dispense
their sanctioned duties compulsorily and correctly. 

Writ of mandamus
According to the Ninth Edition of Black’s Law Dictionary, writ of mandamus is one that is
issued against an inferior court, a governmental body or officer by a superior court to rectify
an action of the past or omission to act along the lines of the responsibility that they are
entitled to. Writ of Mandamus can also be issued against public corporations and tribunals. As
it is directed to set the indolent authorities to task, it is also described as a “wakening call”,
dictating their activity and setting them in action in pursuance of discharging public duty.

Grounds of the writ of mandamus

Mandamus is remedial in nature and cannot be expressed as a writ of right as it is issued
only at the discretion of the court after the applicant of the same is able to prove to the Court
that some utilitarian or just question would be answered by the writ. The essential grounds
necessary for the issuance of Mandamus have been enlisted below: 

 There exists a legally sanctioned right of the petitioner or the applicant of the writ and
a violation or compromise of this right has been committed.
 The infringement of the rights of an applicant can be done by a public authority in the
following manners: 

1. Crossing the limits of the powers and duties vested to their office.
2. Failure or omission to act responsibly according to the conditions laid down by the law
for the exercise of their power.
3. Denial by an official or authority to perform their statutory duties. 
4. A complete disregard for or contravention of the principles of natural justice.

 Another ground for the legality of issuing the writ of mandamus is the failure to act or
perform the legal duty despite being demanded by the applicant for the same. This was
also upheld by the Supreme Court in Saraswati Industrial Syndicate v. Union of India.
 The writ should be applied for in good faith, without any ulterior motive or intent on the
part of the applicant.
 Lastly, the writ of mandamus can only be issued when no other recourse, redressal
mechanism or legal alternatives have been left at the disposal of the applicant. 
               

Mandamus in Indian law prior to the constitution

The Writ of Mandamus was introduced in India by the British in the year 1773 with the
establishment of the Supreme Court of Calcutta and all the supreme courts that were
situated in the Presidency Towns (Calcutta, Madras and Bombay) were vested with the
powers of issuing this writ under the Letters Patent Act. Later on, in the year 1877, the writ
of mandamus from the Letters Patent Act was replaced by an order under the then newly
introduced Specific Relief Act that required the completion or forbearing of a specific activity
within the “local limits of its ordinary civil jurisdiction” by a competent authorised official. 

However, with the institutionalisation of the constitutional regime in India and the
introduction of the new Specific Relief Act in 1963, this order incorporated within the 1877’s
law was done away with as the provision for writ of mandamus was already enshrined in the
Constitution. The latter provision was far more competent and had a wider scope of
applicability while the former was pretty restrictive in nature as it applied only to a particular
nature of cases. Additionally, the constitutional provision also provided the High Courts with
the power of issuing writs, thus including mandamus as well for the enforcement in cases of
contravention of fundamental as well as legal rights. 

Framework of law in relation to mandamus

The Supreme Court of India has been authorised with the power of issuing writs under Article
32 of the Constitution. Out of the five categories of writs that are a part of the Indian legal
framework, the most appropriate for the enforcement of the rights of the claimant shall be
applied by the court. Rightly described as the “very soul of the Constitution and the very
heart of it” by Dr Bhimrao Ambedkar, Right to Constitutional Remedies or Article 32 states
that there must be a clear breach of fundamental rights not incorporating contentious factual
questions. Under Article 32, the writ cannot be issued for the enforcement of governmental
policy and a statute violating a fundamental right can be contended against by mandamus.
Any executive or statutory order can be enforced by Mandamus following due process of law.
Over the course of years, it has been found that continuous mandamus or the writ of
mandamus issued against a prolonged failure to act on the part of state agencies. 

Although the law is pretty clear with regards to the cases or instances where the applicability
of the writ of mandamus stands, it has not been an easy decision for the Indian courts and
judiciary applying this writ in distinct cases. Thus, it has become a significant question of law
in the modern-day legal system of India.

Types of mandamus
There are three types of Mandamus that exist within the Indian jurisprudence and has been
developed over the years through case laws and judgements. These have been discussed
under the following headings.

 Certiorarified mandamus
The basic difference between the two writs of certiorari and mandamus can be explained on
the basis of jurisdiction; while former provides for judicial review of an already tried case by
a subordinate court and checks whether a jurisdiction has been exceeded, the latter takes
into account whether a jurisdiction has been refused from getting exercise. If Certiorari
stands, the order of the subordinate court or tribunal stands quashed and void. In certain
cases with peculiar facts and moot issues, both the writs of certiorari and mandamus
complement each other provided the issuance of both are warranted by the circumstances of
the case in hand and do not end up discharging the issue altogether. A case might be
rescinded due to application of certiorari and may end up getting decided by following the
due process of law because of a subsequent issuance of mandamus. This kind of writ is
known as certiorarified mandamus. 

In Y. Mahaboob Sheriff & others v. Mysore State Transport Authority, the renewal of a
permit, despite getting sanctioned for three years, was only granted for a year. In pursuance
of the writ of certiorari, the Supreme Court of India invalidated the previous judicial order of
the subordinate court and in the effect of the writ of mandamus, directed the concerned
authority for the renewal of three years. This is an instance of certiorarified mandamus.

 Anticipatory mandamus
In Maganbhai Ishwarbhai Patel v. Union of India, the group of petitioners issued a writ of
anticipatory mandamus in order to restrain the Government of India from sanctioning certain
areas lying in Rann of Kutch to Pakistan as a part of the award. The Court held that the
mandamus shall not be granted merely on the suspicion of the violation of rights unless some
actual damage or infringement has happened. 

In plenty of other cases, both in India and other countries, it has been held by the courts of
law that on the mere basis of perturbation of getting one’s statutory or fundamental rights
violated or an anticipatory omission of the duties or responsibilities of a public authority are
not sufficient grounds for granting the issuance of a writ of mandamus.

 Continuing mandamus
In certain cases, it shall be deemed fit by the court of law that mere issuing of the writ of
mandamus will not be sufficient for exacting the task from the public authority and that
continuous supervision of the situation needs to be conducted in order to ensure the proper
following of the verdict. This is done by the courts by providing for court visits and presenting
a report of compliance of their verdict on behalf of the public authority. This legalese has
developed and become a part of the jurisprudence after much judicial activism and several
public interest litigations. The Supreme Court, in Chhetriya Pardushan Mukti Samiti v. State
of Uttar Pradesh, held that besides ensuring the adequate enforcement of the fundamental
rights, it is also the Court’s responsibility to ascertain the prevention of misuse of
authoritative power and full adherence of the order.

Limitations
Writ of mandamus is basically a public law remedy of the common law system that, though
can be rightfully applied for by any citizen whose rights have been violated by governmental
or judicial bodies, is not sanctioned to be availed in cases of private wrongs. The writ of
mandamus cannot be issued against the following: 

1. Private persons, institutions or organizations, if default, cannot be held accountable for

their inaction by the issuance of mandamus.
2. If the duty or the activity that is in the question of the public authority is not mandated
by a compulsory obligation but is discretionary in nature, the writ of mandamus cannot
be issued for the enforcement of such duties.
3. The writ of mandamus cannot be issued against the Head of the State, that is, the
President on a national level or Governor at the state level.
4. The incumbent Chief Justice of the Supreme Court and distinct high courts are also
exempted from being held accountable by the issuance of a writ of mandamus.
5. For the enforcement of a contractual relationship that is private in nature, writ of
mandamus cannot be issued for its enforcement.
6. A writ of mandamus cannot be issued against any Member of Parliament (MP of Lok
Sabha or Rajya Sabha) and any Member of Legislative Assembly (MLA) of any state for
the purpose of providing a smooth functioning and conduct of the parliamentary
deliberations. 
7. Mandamus cannot be issued against any legislative institution which is passing such a
law that is in contravention of the fundamental rights promised under Part III of the
Constitution. This was subsequently upheld by the apex court in Chotey Lal v. State of
Uttar Pradesh & Ors. The petitioner had moved a writ petition against the State of Uttar
Pradesh as the state legislature had passed Zamindari Abolition and Land Reforms Bill
in 1951 which was considered to be unconstitutional according to the applicant.
8. Electoral matters have been kept away from the purview of the writ of Mandamus and
those officials that are engaged in different levels of the electoral process cannot be
directed by mandamus. However, this is applicable only for elections to Union and state
parliament. Mandamus can be issued in matters of contention relating to Municipal level
elections.
Thus, the major legal requirements for the issuance of the writ is the public nature of the
body, person or authority against whom the writ is getting applied for and a valid, justified
rationale of the claims on the part of the petitioner. 

Interpretation of public right and mandamus

Writs of mandamus are to be issued in the following situations and for the same, a
comprehension of public rights is a necessity: 

1. There must exist a legal right of the petitioner for getting a legal duty of the public
authority to be discharged, provided that legal duty is compulsory and not discretionary
in nature. Moreover, mandamus cannot be utilised for enforcing department specific
rules or instructions which have got no statutory backing with regards to provisioning
for legal rights of the petitioner(s). An exception to this rule is that statutory void is
filled with executive orders. 
2. The legal responsibility of the authority or body should be of a public nature. The apex
court, however, held in the Praga Tools Corporation v. C.V. Imanual that a writ of
mandamus shall also be granted against a private entity or individual provided there
has been a third-party involvement of the state authorities. The same principle is used
with regards to a private contractual relationship where there is a state interference. 
3. The right that is sought to be enforced or implemented by the petitioner must remain in
force or effect on the date of issuance of the petition. If there has been a lawful
expiration of the interest of the applicant before the date of the petition, he loses his
entitlement to the writ.
4. Issuance of anticipatory writs of mandamus is not encouraged by the Indian courts.
However, there can exist exceptions to this rule. Provided an authority acts contrary to
its statutory duty, anyone who is likely to be affected by any such order of that public
officer or body. For instance, in  Commissioner of Police, Bombay v. Gordhandas Bhanji,
an unlawful order against the spirit of the Constitution was issued against an individual
who sought a writ petition of mandamus even before the passage of the order. The
Court held in this case that the issue of such an order implied an immediate
infringement on the rights of the petitioner and was thus empowered to seek the
redressal interference of the court on this matter.

Writ of mandamus exercised In various countries

The writ of mandamus is an integral part of both Parliamentary and Presidential setups.
Examples of some parliamentary democracies that have the writ of mandamus as a part of
their legal regimes are Australia, England and Wales. In Australia, the writ of mandamus is a
constitutional provision and is under section 75(v) of their Constitution. In England Wales,
mandamus exists as a mandatory order and not a writ.

The United States of America is an important example of a presidential democracy that has
got a provision of mandamus in its legal system across federal and state-level courts. Acts of
administrative institutions have been held to be subject to mandamus in various states
across their country through amendments of statutes or judicial expansions.

Conclusion
Therefore, the writ of mandamus can be rightly described as a legal instrument of ensuring
general public interest, safeguarding their rights promised to them in the Constitution and
other laws of the land. It is also an effective mechanism for maintaining accountability of the
state or public authorities and mandating them to comply with their constitutional and
statutory obligations. Thus, writ of mandamus is essentially a pro-democratic mechanism
which empowers the common people to get their rights enforced by the administrative
bodies.
Directive Principles of State Policy under the Indian Constitution

The article is written by Shubham Choudhary,  2nd Year law student of the West Bengal
National University of Juridical Sciences. The author had discussed the Directive Principles of
State Policy with its characteristics, importance and criticisms and how these can be
classified under different heads.

Introduction
The Directive Principles of State Policy are embedded in Part IV of the Indian Constitution
starting from Articles 36 to Article 51. The idea of Directive Principles of State Policy is
borrowed from the Irish Constitution of 1937 which interestingly has borrowed itself from
Spanish Constitution. Granville Austin combinedly defines Fundamental Rights and Directive
Principles of State Policy as “Conscience of the Constitution”. B.R. Ambedkar defines them as
‘novel features’ of the Constitution as although ideas are being borrowed but the deriving
force for the Constitution is novel in its own sense. The Directive Principles of State Policy,
when combined with Fundamental Rights, inscribe the philosophy of the Constitution and are
the Soul of the Constitution.

Several Features of Directive Principles of State

Policy.
1. The Phrase ‘Directive Principles of State Policy’ denotes the ideals to be considered
while forming the policies and statutes for governance. These are like guidelines or
recommendations or instructions for forming the laws and legislatures. These need to
be kept in mind by all the authorities under the meaning of ‘State’ defined in
Fundamental Rights.
2. The Directive Principles of State Policy are similar to the concept of ‘Instrument of
Instructions’ contained in the Government of India Act of 1935 which were
recommendations for Governor-General and other Governors of the colonies by the
British Government. The only difference is that they are for legislatures and are
recommended by the Constituent Assembly.
3. These are comprehensive guidelines for Socio-Economic and political guidelines for the
idealistic democratic State which was not possible at the time of Independence but seek
to achieve high ideals of justice, liberty, equality and fraternity on which pillars of
Indian Democracy stands. The concept of welfare state needs to be achieved in contrast
to the police state as it was under British.
4. These principles are non-justiciable in nature, means these cannot be legally enforced
in a court of law against government. However, Article 37 of the Constitution itself says
that these are fundamental in the governance of the country and it shall be the duty of
the state to apply these principles in making laws.
5. Although these a non- justiciable in nature, they immensely help the court in
determining the constitutional validity of the law. The Supreme Court many a time
seeks to enforce Directive Principles till justice is done.
Classification of the Directive Principles of State
Policy
The constitution doesn’t differentiate between types of Directive Principles of State Policy but
for better understanding of the terms, these can be classified into three broad categories
namely, Socialistic, Gandhian and Liberal-intellectual.

Socialist Principles
Freeman and slave, patrician and plebeian, lord and serf, guild-master and journeyman, in a
word, oppressor and oppressed, are now on equal footing in the eyes of the law but there
were huge inequalities in the society, to curb these social Hierarchical problems, the
Constituent assembly wants to achieve Socialist State and for this they included the following
Articles of the Constitution that reflects the ideology of Socialism.

 Article 38: The promotion of the welfare of people by effectively maintaining social

order in all institution of the nation. It will be the duty of the state to minimise the
inequalities and will strive to eliminate inequalities in status, facilities and opportunity
to an individual.
 Article 39: The state will follow certain principles in order to ensure the following:
o Men and women are treated equally and both have the right to adequate
means of livelihood.
o To serve the community the ownership and control will be distributed in the
best interest of society and to subserve the common interest of common good.
o The economic system will not be the result of the concentration of wealth and
means of production would never be a detriment to the common good of the
people.
o Both men and women will be paid equal for an equal amount of work.
o The mental and physical health of workers is of prime interest, children are not
to be forced due to economic necessity and citizens are not to be forced to
work unsuited to their age and health.
o Opportunities and facilities are to be given to children for the development of
children in an all-round manner, freedom and dignity of children need to
respected and need to be protected against exploitation.

 Article 39A: It will the duty of the state to secure equal justice and to provide equal
access to justice, a system of free legal aid for economically backward class people, so
justice is denied to none
 Article 41: The state within its economic capacity develops a system for the right to
work, to education and provisions in cases of unemployment, old age, sickness and
disability.
 Article 42: It is the duty of the state to ensure just and humane conditions in the
workplace and provisions for maternity relief.
 Article 43: State will ensure a living age to industrial, agriculture workers and ensure
decent workplace to work and to promote cottage industries on an individual or co-
operative basis in rural areas.
  Article 47: The state shall work in raising the level of nutrition and standard of living of
its people and to raise the level of nutrition and the standard of living of people and to
improve public health.
These Articles are embedded keeping in mind to achieve the Socialist nature of Society in
mind. However, only a few of them are achieved and the Government is still struggling to
make them a reality.

Gandhian Principles
As the name suggests these Principles are based on the ideology of Gandhi. In order to fulfil
the dreams of Gandhi and to achieve Gandhian State, these articles were included in the
constitution. These are the following articles.

1. Article 40: The steps will be taken by the states to organize village panchayats and
there will be decentralisation of power and authority, in order to form self-government.
2. Article 43: State will ensure a living wage to industrial, agriculture workers and ensure
a decent workplace to work and to promote cottage industries on an individual or co-
operative basis in rural areas.
3. Article 43B: To promote voluntary formation, autonomous functioning, democratic
control and professional management of co-operative societies.
4. Article 46: to prevent Scheduled Caste and Scheduled Tribes from exploitation and
injustice, the educational and economic interests of them shall be promoted.
5. Article 47: The state shall work in raising the level of nutrition and standard of living of
its people  To raise the level of nutrition and the standard of living of people and to
improve public health.
6. Article 48: Organization of agriculture and animal husbandry on the basis of scientific
lines and steps in preserving and improving the breeds, prohibiting the slaughter of
cows, calves and other milch and draught cattle.

Liberal-Intellectual Principles
The liberalism ideology stands for the freedom and autonomy of an individual. These
principles are included keeping in mind the ideology of Liberalism. These are:

1. Article 44: To secure for all citizens a uniform civil code throughout the country across
all religions and every section of the society.
2. Article 45: To provide elementary education until the age of fourteen years which has
now become a fundamental right under Article 21A.
3. Article 48: Organization of agriculture and animal husbandry on the basis of scientific
lines and steps in preserving and improving the breeds, prohibiting the slaughter of
cows, calves and other milch and draught cattle.
4. Article 48 A: It is the duty of the state to protect and conserve the environment and
forest and wildlife of the country.
5. Article 49: it is the obligation of the state to protect every monument or place or
object of artistic or historic interest declared under law as a monument of national
importance.
 6. Article 50: To separate the judiciary from the executive in the public services of the
State.
7. Article 51: To promote international peace and security and maintain just and
honourable relations between nations; to foster respect for international law and treaty
obligations, and to encourage settlement of international disputes by arbitration.
Click above

New Directive Principles

The best feature of our constitution that it is a living being and keeps on evolving. Changes
have taken place in directive principles and major changes were by the 42nd Amendment Act
of 1976 which added four new principles for the first time. These were:

1. Article 39: Additional clause was added to secure opportunities for the healthy
development of children and to respect the dignity and freedom of children.
2. Article 39 A: It will the duty of the state to secure equal justice and to provide equal
access to justice, a system of free legal aid for economically backward class people, so
justice is denied to none.
3. Article 43 A: Steps taken to ensure that participation of workers in the management
of undertakings, establishments, or any other organization of the industry.
4. Article 48 A: To protect and improve the environment and to safeguard forests and
wildlife.
The 44th Amendment Act of 1978 added one more Directive Principle, which requires the
State to minimise inequalities in income, status, facilities and opportunities which was
inserted in Article 38.

It is not that only new Directive Principles are added but these Directive principles are
promoted in the category of fundamental rights, it happened by 86th Amendment Act of
2002 which made elementary education a fundamental right under Article 21A.

Again in 2011 with the help of 97th Amendment added Directive Principles related to Co-
operative Societies under Article 43B.

Importance of Directive Principles of State Policy

The Constitution itself under Article 37 declares that these are fundamental in the
Governance of the country. Dr B.R. Ambedkar embarked that Directive Principles have great
value because they lay down the goals of Indian Polity is ‘economic democracy’ as
distinguished from ‘political democracy’.

Dr B.R. Ambedkar had pointed out that the Directives have great value because they lay
down that the goal of Indian polity is ‘economic democracy’ as distinguished from ‘political
democracy’.

Further, Granville Austin opined that the Directive Principles are ‘aimed at furthering the
goals of the social revolution or to foster this revolution by establishing the conditions
necessary for its achievement’. Sir B N Rau, the constitutional advisor to the Constituent
Assembly, stated that the Directive Principles are intended as ‘moral precepts for the
authorities of the state. They have at least an educative value.’ Some of the importance can
be highlighted as:
 1. They are useful in following policies of the government in the matter of foreign and
domestic matter. These can be used as a raw structure for forming the policies.
2. They are the torch bearer for both Legislators and Judges, as for Legislatures they
provide guidelines for forming the law and for judges they help in deciding the
constitutional validity of the laws enacted.
3. They are the soul of the Constitution because they represent the ideology behind the
Constituent Assembly for forming the Constitution.
4. They fill the gap between fundamental rights and social and economic rights of the
citizens. They provide the way for legislatures to fill the gap.
5. These are supplementary to the fundamental rights and are the target of the
Legislature to achieve.
6. They can be helpful in testing the performance of the government and can be seen as
how far the government has worked in the Directive Principles of State Policy.
7. They help the government informing their electoral manifesto and to reflect upon their
ideology in comparison with Directive Principles.

Criticism of Directive Principles of State Policy

The Directive Principles have been severely criticized several times. Some of the major
criticisms are concluded as follows.

1. No Legal Force: one of the prominent criticisms of Directive Principles is that they are
non-justifiable in nature. K.T. Shah compared these with “a cheque on a bank, payable
only when the resources of the bank permit”. In the words on Nasiruddin, these
principles are ‘no better than new year’s resolutions, which are broken on the second of
January’. However, the legislators have created laws to implement these Directive
Principles but no action is being taken against the Uniform Civil Code which has been
long-standing demand.
2. Illogically Arranged: In one of the opinions, the criticism is that these are illogically
arranged and are not based on any consistent philosophy or logic. In the words of N
Srinivasan, ‘the directives are neither properly classified nor logically arranged. The
declaration mixes up relatively unimportant issues with the most vital economic and
social questions. It combines rather incongruously the modern with the old and
provisions suggested by the reason and science with provision purely on sentiment and
prejudice’.

Conservative: Sir Ivor Jennings criticizes them as the Directives are based on the British

political philosophy of the 19th Century. He remarked ‘The ghosts of Sydney Webb and

Beatrice Webb stalks through the pages of the text. Part IV of the constitution expresses

Fabian Socialism without socialism’. These are based on old age philosophy of state which

doesn’t represent 20th

Article 32 of the Indian Constitution

concept and Purpose

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme
Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex
court is given the authority to issue directions or orders for the execution of any of the rights
bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental
Rights’.

Under Article 32, the parliament can also entrust any other court to exercise the power of the
Supreme Court, provided that it is within its Jurisdiction. And unless there is some
Constitutional amendment, the rights guaranteed by this Article cannot be suspended.
Therefore, we can say that an assured right is guaranteed to individuals for enforcement of
fundamental rights by this article as the law provides the right to an individual to directly
approach the Supreme Court without following a lengthier process of moving to the lower
courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of
Fundamental Rights.

Dr Ambedkar stated that:

“If I was asked to name any particular article in this Constitution as the most important- an
article without which this Constitution would be a nullity— I could not refer to any other
article except this one. It is the very soul of the Constitution and the very heart of it and I am
glad that the House has realized its importance.”

To know more about right to constitutional remedies in brief, please refer to the video below:

Nature of Writ Jurisdiction

The nature of Writ Jurisdiction provided under this Article is discretionary. There are five
important factors for guiding this discretion.

Factors Guiding the

Meaning
Discretion

1. Locus Standi Right to bring an action or to be heard before a court.

2. Alternative Relief Remedies sought in a lawsuit in various or alternative forms.

3. Res Judicata A case that has been decided.

4. Questions of the Fact An issue that involves resolution of a factual dispute or controversy.
 A defence to an equitable action, that bars recovery by the plaintiff because of
5. Laches
the plaintiff’s undue delay in seeking relief.

Types of Writs
There are five types of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus
 Meaning
It is one of the important writs for personal liberty which says “You have the Body”. The main
purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the
protection of the individual from being harmed by the administrative system and it is for
safeguarding the freedom of the individual against arbitrary state action which violates
Fundamental Rights under Articles 19, 21 & 22 of the Constitution. This writ provides
immediate relief in case of unlawful detention.

 When Issued?
Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without
any authority of law. A criminal who is convicted has the right to seek the assistance of the
court by filing an application for “writ of Habeas Corpus” if he believes that he has been
wrongfully imprisoned and the conditions in which he has been held falls below minimum
legal standards for human treatment. The court issues an order against prison warden who is
holding an individual in custody in order to deliver that prisoner to the court so that a judge
can decide whether or not the prisoner is lawfully imprisoned and if not then whether he
should be released from custody.

 Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’
father as the victim P. Rajan who was a college student was arrested by the Kerala police and
being unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara
Warrier filed a writ of Habeas Corpus and it was proved that he died in police custody.

Then, in the case of ADM Jabalpur v. Shivakant Shukla [1] which is also known as the
Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even
during an emergency (Article 359).

While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held
in Narayan v. Ishwarlal [2] that the court would rely on the way of the procedures in which
the locale has been executed.

This writ has been extended to non-state authorities as well which is evident from two cases.
One from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the
proctor of Cambridge University detained and arrested Hopkins without his jurisdiction and
Hopkins was released. And in the case of Somerset v. Stewart wherein an African Slave
whose master had moved to London was freed by the action of the Writ.

 Circumstances when the writ of Habeas Corpus cannot be issued: 

1. The detention is lawful.

 2. The case is being prosecuted for failure to comply with a legislative or judicial mandate.
3. A competent court authorized the detention.
4. The jurisdiction of the court on detention is ultra vires.

2. Quo Warranto
 What does the writ of Quo Warranto mean?
Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public
offices and it is issued to restrain persons from acting in public office to which he is not
entitled to. Although the term ‘office’ here is different from ‘seat’ in legislature but still a writ
of Quo Warranto can lie with respect to the post of Chief Minister holding a office whereas a
writ of quo warranto cannot be issued against a Chief Minister, if the petitioner fails to show
that the minister is not properly appointed or that he is not qualified by law to hold the office.
It cannot be issued against an Administrator who is appointed by the government to manage
Municipal Corporation, after its dissolution. Appointment to public office can be challenged by
any person irrespective of the fact whether his fundamental or any legal right has been
infringed or not.

 The court issues the Writ of Quo Warranto in the following cases:

1. When the public office is in question and it is of a substantive nature. A petition against
a private corporation cannot be filed.
2. The office is created by the State or the Constitution.
3. The claim should be asserted on the office by the public servant i.e. respondent.

 Important Case Laws

In the case of Ashok Pandey v. Mayawati [3], the writ of Quo Warranto was refused
against Ms Mayawati (CM) and other ministers of her cabinet even though they were Rajya
Sabha members.

Then in the case of G.D. Karkare v. T.L. Shevde [4], the High Court of Nagpur observed
that “In proceedings for a writ of quo warranto, the applicant does not seek to enforce any
right of his as such nor does he complain of any non-performance of duty towards him. What
is in question is the right of the non-applicant to hold the office and an order that is passed is
an order ousting him from that office.”

The Writ of quo warranto was denied by the court in the case of Jamalpur Arya Samaj v.
Dr D. Ram [5]. The writ was denied on the ground that writ of quo warranto cannot lie
against an office of a private nature. And also it is necessary that office must be of
substantive character. Whereas in the case of R.V. Speyer [6] the word ‘substantive’ was
interpreted to mean an ‘office independent to the title’. Also in H.S. Verma v. T.N.
Singh [7], the writ was refused as the appointment of a non-member of the state legislature
as C.M. was found valid in view of Article 164(4) which allows such appointment for six
months.

 Circumstances when the writ of Quo Warranto cannot be issued

1. The writ of Quo Warranto cannot be issued for any private organization or person.
2. The writ of Quo Warranto cannot be issued for any body or an organisation that does
not fall under the definition of “State” as defined under Article 12. 
 3. Absence of alternative remedy cannot be a ground for issuing a writ of Quo Warranto. 
In the case of Bharati Reddy v. The State Of Karnataka (2018), the Hon’ble Supreme Court
held that a writ of quo warranto cannot be issued based on assumptions, inferences, or
speculations concerning the fact of accomplishment of qualifying conditions. There must be
an establishment of the fact that a public officer is abusing lawful powers not vested to him
within the public authority.

3. Mandamus
 Writ of Mandamus
Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior court to a
lower court or government officer. However, this writ cannot be issued against the President
and the Governor. Its main purpose is to ensure that the powers or duties are not misused by
the administration or the executive and are fulfilled duly. Also, it safeguards the public from
the misuse of authority by administrative bodies. The mandamus  is “neither a writ of course
nor a writ of right but that it will be granted if the duty is in nature of public duty and it
especially affects the right of an individual, provided there is no more appropriate remedy”
[8]. The person applying for mandamus must be sure that he has the legal right to compel
the opponent to do or refrain from doing something.

 Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the legal duty.
2. The nature of the duty must be public.
3. On the date of the petition, the right which is sought to be enforced must be subsisting.
4. The writ of Mandamus is not issued for anticipatory injury.

 Limitations
The courts are unwilling to issue the writ of mandamus against high dignitaries like the
President and the Governors. In the case of S.P. Gupta v. Union of India [9], judges were
of the view that a writ cannot be issued against the President of India for fixing the number
of judges in High Courts and filling vacancies. But in Advocates on Records Association v.
Gujarat [10], the Supreme Court ruled that the judges’ issue is a justiciable issue and
appropriate measures can be taken for that purpose including the issuance of mandamus.
But in C.G. Govindan v. State of Gujarat [11], it was refused by the court to issue the writ
of mandamus against the governor to approve the fixation of salaries of the court staff by the
Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the
President means the state or the Union and therefore issuance of mandamus cannot take
place.

 Important Judgements
In Rashid Ahmad v. Municipal Board [12], it was held that in relation to Fundamental
Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ
though the fact may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a
book had applied for the writ of mandamus against the Director of Public Instruction for the
inclusion of his book in the list of books which were approved as text-books in schools. But
the writ was not allowed as the matter was completely within the discretion of D.I.P and he
was not bound to approve the book.
In the case of Binny Ltd. & Anr v. V. Sadasivan & Ors (2005), the Hon’ble Supreme Court laid
down the scope of mandamus. It stated that a writ of mandamus is not applicable against
any private wrong. It can be issued only when any public authority exercises its duty
unlawfully or refuses to perform its duty within the ambit of the law.

In the case of Ramakrishna Mission v. Kago Kunya (2019), The Supreme Court ruled that
where a contract is of private nature or has no connection with any public authority, it does
not fall within the purview of the writ of mandamus.

In the Hari Krishna Mandir Trust v. State Of Maharashtra (2020), the Hon’ble Supreme Court
held that the High Courts are obligated by law to issue Writs of Mandamus in order to enforce
a public duty.

4. Certiorari
 What does Writ of Certiorari mean?
Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the
jurisdiction and the decision of the case is based on it. The writ can be moved to higher
courts like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against
purely administrative or ministerial orders and that it can only be issued against judicial or
quasi-judicial orders.

 When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:

1. Either without any jurisdiction or in excess.

2. In violation of the principles of Natural Justice.
3. In opposition to the procedure established by law.
4. If there is an error in judgement on the face of it.
Writ of certiorari is issued after the passing of the order.

 Important Judgements on writ of Certiorari

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the
meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that
Certiorari is always available against inferior courts and not against equal or higher court,
i.e., it cannot be issued by a High Court against any High Court or benches much less to the
Supreme Court and any of its benches. Then in the case of T.C. Basappa v. T. Nagappa &
Anr.  [13], it was held by the constitution bench that certiorari maybe and is generally
granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction.
In Hari Bishnu Kamath v. Ahmad Ishaque [14], the Supreme Court said that “the court
issuing certiorari to quash, however, could not substitute its own decision on the merits or
give directions to be complied with by the court or tribunal. Its work was destructive, it
simply wiped out the order passed without jurisdiction, and left the matter there.” In Naresh
S. Mirajkar v. State of Maharashtra [15], it was said that High Court’s judicial orders are
open to being corrected by certiorari and that writ is not available against the High Court.

 Circumstances when the writ of Certiorari cannot be issued:

The writ of certiorari cannot be issued against:
 1. An individual
2. A company
3. Any private authority
4. An association
5. To amend an Act or Ordinance
6. An aggrieved party who has an alternative remedy 
In the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others
v. Giridhari Sahu and Ors. (2019), the Hon’ble Supreme Court laid down the factors
determining the validity of the writ of certiorari. 

5. Prohibition
 What does Writ of Prohibition mean?
It is a writ directing a lower court to stop doing something which the law prohibits it from
doing. Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from
acting contrary to the rules of Natural Justice.

 When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it from
doing something which it is not supposed to do as per law. It is usually issued when the lower
courts act in excess of their jurisdiction. Also, it can be issued if the court acts outside its
jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and
should be issued before the lower court passes an order. Prohibition is a writ of preventive
nature. The principle of this is ‘Prevention is better than cure’.

 Important Case Laws

In case of East India Commercial Co. Ltd v. Collector of Customs [16], a writ of
prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the
proceeding on the ground that the proceeding is without or in excess of jurisdiction or in
contradiction with the laws of the land, statutes or otherwise. Then in the case of Bengal
Immunity Co. Ltd [17], the Supreme Court pointed out that where an inferior tribunal is
shown to have seized jurisdiction which does not belong to it then that consideration is
irrelevant and the writ of Prohibition has to be issued as a right.

 Circumstances when the writ of Prohibition cannot be issued:

1. A writ of prohibition cannot be issued when a subordinate or a tribunal court is acting

within the ambit of its jurisdiction. 
2. A writ of prohibition cannot be issued in the situation of a mistake of a fact or law. 
3. A writ of prohibition is not allowed for administrative authorities discharging
administrative, executive or ministerial functions.

When can the Supreme Court dismiss a writ petition

under Article 32 of Indian Constitution
Under Article 32, the Supreme Court can dismiss a writ petition in the following
circumstances:
Non-filing of the writ in compliance with the court hierarchy
If a person files a writ petition in the Apex Court and the court dismisses his writ, the
individual cannot file the writ petition again in another Court.  But if a person files a writ
petition in the high court and the court refuses his petition, he has the right to appeal against
the decision of the Supreme Court under the principle of Natural Justice. 

Principle of res judicata

Res Judicata is defined under Section 11 of the Civil Procedure Code, 1908. It is the Latin
phrase for “a matter decided.” It means that a subsequent suit cannot be filed on the same
cause of action and the same dispute by the parties to the suit. The principle of Res Judicata
is based on three maxims: 

1. Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same
cause)
2. Interest republicae ut sit finis litium (it is in the interest of the state that there should
be an end to litigation)
3. Res judicata pro veritate occipitur (a judicial decision must be accepted as correct)
In the case of Daryao And Others vs The State Of U. P. And Others (1961), the Supreme
Court ruled that the principle of res judicata will be applicable and even though article 32 is a
fundamental right, any legal provision that overrides any fundamental right or any provision
under law shall be found unconstitutional. 

Habeas Corpus is an exception to the principle of Res Judicata as held in the case of Ghulam
Sarwar v. Union of India (1966)

Misrepresentation of facts
If the petitioner is found to have committed a substantial misrepresentation of key facts, the
Supreme Court may dismiss the petition at any stage.   

In the case of Shri K. Jayaram & Others v. Bangalore Development Authority &
Others  (2021), the Supreme Court held that the concealment of key information is a misuse
of the legal process, depriving the appellant from the exceptional, equitable, and
discretionary relief from Writ Courts.        

Availability of alternative remedy 

If the petitioner has another remedy, he must seek it rather than filing a writ petition. In the
case of State of U.P. & Anr v. U.P. Rajya Khanij Vikas Nigam S.S and Ors (2008), The Hon’ble
Supreme Court ruled that the petitioners must seek a suitable alternative remedy before
filing a writ case.

Inordinate delay
In the case of D. Gopinathan Pillai v. State Of Kerala & Anr (2007), the Hon’ble Supreme
Court held that inordinate delays cannot be accepted unless they are justified with
reasonable, satisfactory, adequate, and suitable reason.

Malicious petition
If the petition submitted to the Supreme Court is found to be malicious or futile, the Supreme
Court may dismiss it under Article 32.

The Hon’ble Supreme Court rejected the writ petition in  Shoukat Hussain Guru vs State
(Nct) Delhi & Anr (2008) because it lacked any rational grounds for it to be issued.

Against whom a writ can be issued

Part III of the Indian Constitution deals with fundamental rights. Article 32 is a fundamental
right in itself. Violation of fundamental rights can be relieved by the filing of a writ petition
under Article 32 to the Supreme Court or under Article 226 to the High Court.  Writs are
public law remedies. The rights granted to citizens through fundamental rights as outlined in
Part III of the Constitution are a safeguard against state misconduct. Article 12 defines the
word “State,” which includes the following: 

1. The Government and Parliament of India, i.e. the Union’s Executive and Legislature. 
2. Each state’s government and legislature, i.e., the executive and legislative branches of
government. 
3. All local or other authorities in Indian territory. 
4. All local and other authorities controlled by the Government of India.
In the case of Ajay Hasia v. Khalid Mujib (1981), under Article 12, the term “local authority”
refers to a unit of local self-government such as a municipal committee or a village
panchayat.

In the case of Kishor Madhukar Pinglikar vs Automotive Research Association (2022), the

Hon’ble Supreme Court held that the presence of some aspect of public duty or function does
not automatically constitute a body as a “state” under Article 12.

Suspension of fundamental rights

The six Fundamental Rights outlined in Article 19 are immediately suspended when a
declaration of national emergency is made, in accordance with Article 358. The 44th
Amendment Act of 1978 included two restrictions on the application of Article 358, namely: 
 1. When the national emergency is proclaimed owing to war or foreign invasion, rather
than an armed rebellion and the six fundamental rights outlined in Article 19 be
suspended. 
2. At the times of emergency, Article 32 will be suspended. 
The fundamental rights are merely suspended in their enforcement under Article 359, not
their totality. During the emergency, the rights outlined in Articles 20 and 21 cannot be
suspended.

Recent developments under Article 32 of Indian

Constitution
The Supreme Court ruled in Shashidhar M. v. Poornima C (2019) that writ petitions for
recalling directives in Special Leave Petition (SLP) are not maintainable.

In the case of Skill Lotto Solutions Pvt Ltd. v. Union Of India (2020), the Hon’ble Supreme
Court held that “Article 32 is an important and integral part of the basic structure of the
Constitution. Article 32 is meant to ensure observance of rule of law. Article 32 provides for
the enforcement of fundamental rights, which is the most potent weapon.”

In the case of Mohammad Moin Faridullah Qureshi v. The State Of Maharashtra (2020), the
Hon’ble Supreme Court held that when a judgement is declared final under Article 32, it
cannot be disputed.

In the case of Gayatri Prasad Prajapati v. State of Uttar Pradesh and Others (2022), the
Hon’ble Supreme Court held that writ petitions cannot be filed for quashing a criminal
proceeding or a First Information Report (FIR).

In the case of Sharad Zaveri vs Union Of India (2022), the Hon’ble Supreme Court ruled that
not all conflicts involving places of worship may be taken before the Supreme Court under
Article 32.

In the case of Dharmraj Singh vs The State Of Bihar (2022), the Hon’ble Supreme Court
warned against submitting petitions pertaining to Section 482 of the Criminal Procedure
Code, 1973 under the guise of Article 32.

Key differences between Article 32 and Article 226 : a

tabular representation 
Article 32 Article 226

1.     Article 32 is a fundamental right in itself. The

1. Article 226 has discretionary powers to High
Supreme Court cannot refuse to consider any petition
Court within judicial principles to consider any
under Article 32.
petition.
 
 

2. Under Article 32, writ petitions are issued to enforce 2. Under Article 226, writ petitions can be
fundamental rights. issued to enforce fundamental rights or for any
  
other purpose.

3.  During the time of emergency, Article 32 is

suspended.       3.  During the time of emergency, Article 226
  cannot be suspended. 

4. Orders passed under Article 32 will supplant orders 4. The orders passed under Article 226 cannot
passed under Article 226.  supplant orders under Article 32.
5. Article 226 has limited territorial
jurisdiction. 
5. Article 32 has territorial jurisdiction over the entire
country of India.

Status of writs in other countries

United States 
Writs are a residue of the English common law system in the United States. All Writs Act, a
United States federal legislation that was first codified in the Judiciary Act of 1789 extends
subject matter jurisdiction to U.S. federal courts as long as their issuance is necessary or
appropriate in aid of the court’s respective jurisdictions and agreeable to the usages and
principles of law. In the modern era, the All Writs Act is applied when a legislative scheme is
incomplete or ambiguous, casus omissus. Prerogative writs also called extraordinary writs or
extraordinary remedies are issued by a judge exercising uncommon or discretionary power. 
The writs of habeas corpus, certiorari, mandamus, quo warranto, and procedendo are forms
of prerogative writs. There are several further types of writs, including writs of execution and
body attachment. Writs, however, are no longer vital in criminal cases because there are
other ways to get the same relief under the Federal Rules of Appellate Procedure. The Federal
Rules of Civil Procedure have also abolished a number of writs, including the writ of error, in
civil matters.

England and Wales

The writs are issued on behalf of the applicant in the name of the Crown, who is the nominal
plaintiff. Besides from habeas corpus, prerogative writs are discretionary remedies that have
been recognised in England and Wales since 1938. The amended Civil Procedure Rules of
1998 abolished the writs of quo warranto and procedendo and renamed the certiorari as
quashing orders, mandamus as mandatory orders, and prohibition as prohibiting orders.

Conclusion
The constitutional remedies provided to the citizens are the powerful orders with immediate
effect. And the writs are mostly invoked against the state and are issued when PILs are filed.
The Writ Jurisdictions which are conferred by the Constitution though have prerogative
powers and are discretionary in nature and yet they are unbounded in its limits. The
discretion, however, is exercised on legal principles. Therefore, the first essential on which
the constitutional system is based in the absence of arbitrary power. Hence, the decision
must be taken on the basis of sound principles and rules and should not be based on whims,
fancies or humour. And if a decision is not backed by any principles or rules, then such a
decision is considered arbitrary and is taken not in accordance with the rule of law.

Safeguards against arbitrary arrest and detention: Article 22

 

Introduction
Article 22 constituted within the right to freedom is one of the parts of the fundamental rights
guaranteed under the constitution. This article is covered in two major parts, protection and
rights granted in case of arbitrary arrest also known as punitive detention, and safeguards
against preventive detention. The main difference is that whether a person is charged with a
crime or not. In case of detention, the person is not accused of any crime but is restricted on
a reasonable suspicion while in case of arrest the person is charged for a crime.

This article has always been a topic for debates as it is a contradiction to the freedom
guaranteed by Article 21, dealing with the right to life and liberty. The article was originally
brought in to safeguard society against undermining of sanctity of the constitution but it
rather curtailed the freedom of the masses. The subject matter of this article has always
remained very arbitrary and open to interpretation which makes it difficult for the article to
attain absolute stability within the constitutional framework. It has frequently been attacked
in the history of India, with pointers towards the worst excesses of emergency in 1975 as an
example of the misuse which Article 22 allows. In recent developments, this article has again
become a topic of discussion with regard to the mass protests taking place in the country,
dissenting against the citizenship amendment bill.

Article 22: not a complete Code 

In the A K Gopalan v. State of Madras case of 1950, the Supreme Court, taking a narrow
view of Article 21 and 22, refused to consider if the procedure established by law suffered
from any deficiencies. It was of the belief that each article of the constitution was
independent of each other. When the petitioner challenged the validity of his detention on the
grounds that it was violating his rights under Article 19 and 21, the Supreme Court
disregarded all the contentions considering that the detention could be justified merely on the
ground that it was carried out according to the ‘procedure established by law’. The Supreme
Court, in this case, followed a restrictive interpretation of the expression ‘personal liberty’
and the term ‘law’, rejecting all principles of natural justice.

In Maneka Gandhi v. Union Of India, the court widened the scope of the expression ‘personal
liberty’ considerably and interpreted it in its widest amplitude. The court observed that Article
21 does not exclude Article 19 hence any law depriving a person of personal liberty would
have to stand the test of Article 21 and Article 19 simultaneously.
Article 22: not a complete Code 
Therefore it can be said that Article 22 in itself is an incomplete code which means that the
legality of the article is limited to be tested only against it and is not completely in accord
with the fundamental rights of the constitution.

Rights of arrested persons under ordinary laws 

The case of DK Basu v. State of West Bengal is one of the landmark authorities which
enumerate guidelines and requirements for arrests and detentions provided by the Supreme
Court. There are 11 guidelines which are an addition to constitutional and statutory
safeguards and do not contradict any of them. The memorandum focuses on maintaining
proper and authenticated records from the side of the authority known as ‘inspection memo’.
It also throws a repetitive glance upon all the other rights guaranteed to a person in custody
and mentions all authorities who are bound to adhere to those. The decisions emanating from
this case also led to the incorporation of Section 50A of CrPC which imposes a legal obligation
on the Police to give information regarding such arrest and place where the arrested person
is being held to any of his friends, relatives or such other persons as may be nominated by
the arrested person for the purpose of giving such information.

(a) Right to be informed of the grounds of arrest

Section 50 of CrPC states that it is the duty of every police officer or any other person
authorized to arrest any person without a warrant, to let the person being arrested know the
grounds of arrest immediately. Non-compliance with this provision renders the arrest illegal.

Article 22(1) states that any person who is arrested, cannot be detained in custody without
being informed of the grounds of any such arrest as soon as possible.

Both these laws clearly portray that no arrest can be made because it is lawful for the police
to do so. Every arrest requires reason and justification, apart and distinct from the power to
arrest. In view of this, it was held in the case of Joginder Kumar v. State of U.P. that a
detained person should know the cause of his detention and is entitled to let any third person
know the location of his detention.

(b) Right to be defended by a lawyer of his own choice 

Article 22(1) also states that any person who is arrested has the right to consult at all times
and be defended by a lawyer of his own choice. This right is expanded right from the moment
of the person’s arrest.

There are a few rights which are not explicitly mentioned but are interpreted by the Supreme
Court in certain cases. In the case of Hussainara Khatoon & Ors vs Home Secretary, State Of
Bihar, the courts observed that a large number of people were arrested awaiting their trial in
a court of law. The arrests were made irrespective of the charge and its graveness. The
accused were under arrest, deprived of their freedom even before the commencement of
their trial and the charge actually being proved which stands unreasonable. The Supreme
Court showing concern over the matter interpreted that speedy trial is a constitutional right
although it is nowhere explicitly mentioned. It was held that an investigation should be held
as soon as possible and in no case is the state permitted to deny speedy trial on any
grounds. It was also stated that in cases of arrest for trivial charges the trial must be
completed within six months. It was also declared that the right to free legal aid is a
fundamental right which was later expressly mentioned through amendments. It was also
observed that the Supreme Court had powers to enact a DPSP into a fundamental right.

Further, the court also holds a constitutional obligation to provide free legal aid to every
indigent person under trial. Although this right is not mentioned under the purview of Article
22, it still witnesses a direct mention under Article 39(A) and is implicit in Article 21 of our
constitution. 

Resolution of Bar Council not to defend some persons in Criminal Cases 

The right of the accused to be defended by a lawyer of his own choice was violated in the
case of A.S. Mohammed Rafi v. State of Tamil Nadu , where the Bar Association of Coimbatore
passed a resolution that none of its members would defend the policemen who had allegedly
assaulted some lawyers. Such resolutions stood illegal as the court observed that every
person, regardless of the type of accusations on him, had a right to be defended in a court of
law. It was held that this resolution contradicted with the right of the accused and was also
against the professional ethics of lawyers which require that a lawyer cannot refuse a brief if
the client is willing to pay him and the lawyer is not engaged.

(c) Right to be produced before a Magistrate 

Article 22(2) ensures the right of the accused to be produced before a magistrate. When a
person is arrested, the person or police officer making the arrest should bring the arrested
person before a magistrate or judicial officer without any unnecessary delay. This is also
supported by Section 56 of the CrPC.

The right available to the accused at the first stage of production before the Magistrate is not
stated directly in Article 22. It is rooted in Section 167 of the CrPC and states that no
magistrate can authorize the detention of the accused in police custody unless the accused is
produced in person before the magistrate. This right protects the accused from being
detained on wrong or irrelevant grounds.

(d) No detention beyond 24 hours except by order of the

Magistrate 
Article 22(2) also states that no person who is arrested should be detained for more than 24
hours without being produced before a magistrate or judicial authority and getting the
detention authorized. The mentioned 24 hours exclude the time of travel from the place of
arrest to the magistrate’s court. This provision helps to keep a check on the investigation of
the police regarding the matter at hand. It protects the accused from being trapped into
wrongful detention.

In the case of State of Punjab v. Ajaib Singh, this right was infringed and thus the victim was
provided compensation as constitutional remedy. It was held that cases of arrest without
warrant require greater protection and production of the accused within 24 hours ensures the
legality of the arrest, not complying with which would deem the arrest unlawful.
In the case of C.B.I. v. Anupam J. Kulkarni, it was questioned whether the accused can be
remanded to police custody after the expiry of first 15 days. It was held that the magistrate
could authorize the detention if he deems it fit and reasonable, but the custody cannot
increase the period of 15 days on the whole. It is now known that to detain beyond a period
of 15 days, an advisory board has to report sufficient cause for the extension of such
detention prior to the expiration period as mentioned in clause 4 of Article 22.

               Exceptions
Clause 3 of the Article 22 clearly states that none of the rights mentioned in clause 1 and 2 of
the Article would be applicable for a person who is deemed to be an enemy alien and
anybody who is arrested or detained under the law providing for preventive detention.

The presence of this clause in the article has frequently questioned its constitutional validity
as it takes away all the rights from a person detained under preventive detention. The cases
of Maneka Gandhi v. Union Of India and A.K. Roy v. Union Of India have played major roles
in giving perspective to this article. In the case of Maneka Gandhi, the scope of Article 21 was
increased largely by adding the term ‘due process’ into the article. Now, upon delving into the
history of preventive detention, it is known that Article 22 was inserted upon the removal of
the phrase ‘due process’ from Article 21. Hence this shift greatly affected the context of
Article 22 and posed direct questions on the rights and restrictions provided by the article.
While in the case of A.K.Roy v. Union Of India, the court acknowledged that preventive
detention laws were not only subject to Article 22 but were also open to scrutiny under
Articles 14, 21 and 19. It was also observed that while Article 22 clause 3 was exclusion to
clauses 1 and 2 but the right to counsel under Article 21 was still valid but since Article 22
was part of the original constitution and Article 21 was expanded and amended in Maneka
Gandhi’s case, the former would prevail over the latter hence leaving the detenus scraped of
their right to access legal assistance.

Preventive Detention Laws

A person can be put in jail/custody for two reasons. One is that he has committed a crime.
Another is that he has the potential to commit a crime in the future. The custody arising out
of the latter is preventive detention and in this, a person is deemed likely to commit a crime.
Thus Preventive Detention is done before the crime has been committed.

Preventive detention also known as ‘necessary evil’ of the constitution as it can be steered in
various directions and can be put to use in various scenarios, not all being just and
reasonable. It is the most contentious part of the fundamental rights.The provision only
mentions the rights people could exercise when they are detained but speaks nothing about
any specific grounds or necessary provisions of detention. It thus gives enormous power to
the authorities to twist the tool of preventive detention however and whenever they please.
This has proved to be a way in which the freedom of the masses has been immensely curbed
and continues to be so.

History of preventive detention 

India’s provisional parliament enacted the Preventive Detention Act in 1950. It empowered
the government to detain without charge in the name of public safety and security. After
facing constant criticism of violating fundamental rights and suppressing dissent, the Act
lapsed in 1969 which gave way to the Maintenance of Internal Security Act (MISA). This Act
was basically a change of name and constituted the same provisions. MISA was allowed to
retire in 1978 following the misuse of preventive detention in the infamous emergency
scenarios. After which the National Security Act was enacted, which remains in force till date.
There were various other acts which focused at anti terrorism at its impact which are
discussed briefly below.

Necessity of such provision 

The aim of the constitution framers to bring such provision into existence was to prevent
people from disrupting the peace and stability of the society. People were detained to prevent
them from undermining the sanctity of the constitution, endangering the security of the
state, disturbing relations of India with foreign powers or hindering maintenance of public
order.

India follows preventive detention even in times of peace, when there is no threat posed to
the national security of the state, which is one of the main reasons of imposing and
implementing provisions of preventive detention. While, no other civilized nation has this
proposition during peacetime.

The Preventive Detention Acts 

There have been a few acts in history which have been framed by law in order to fill in the
gaps and provide provisions of detention.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

This law was anti-terrorism law which gave wide power to the authorities for dealing with
national terrorism and socially disruptive activities. This Act provided that a person can be
detained up to 1 year without formal charges or trial. A detainee can be in custody up to 60
days without being produced in front of a magistrate but instead maybe produced to
executive magistrate who is not answerable to high court. This Act allowed the authorities to
withhold the identities of witnesses and secret trials. The police were given enhanced powers
for detention of suspects and the Act shifted the burden of proof on the accused which led to
abuse of this Act and adverse effect on the democracy of the country. This Act is now
repealed.

National Security Act, 1980

The purpose of this Act was to provide for preventive detention laws and matters connected
therewith. The authorities, through this Act, obtain the power to detain any person who poses
a threat to the security of the nation in any prejudicial manner. They can also detain any
foreigner and regulate their presence in the country. Under this Act an individual can be
detained without a charge for up to 12 months if the authorities are satisfied that the person
is a threat to national security. The detenu can neither impose compulsion for knowing the
grounds of detention nor can get a lawyer during the trial. The NSA has repeatedly come
under criticism for the way it is used by the police. The Act differs from normal detention as it
abrogates all rights available to the detenu in normal circumstances.
Prevention of Terrorism Act (POTA), 2002
This Act aimed at strengthening anti-terrorism laws in India. This Act replaced TADA. It
defined what activities could constitute a terrorist act and who a terrorist was. In order to
ensure no violation of human rights and misuse of power, certain safeguards were also
installed within the Act. The provisions were all similar to the ones provided in TADA. Right
after the enactment of this Act it was alleged that this law was grossly abused, hence
repealing it after two short years.

Constitutional safeguards against Preventive Detention

Laws 
Article 22 further deals with certain rights which are provided in case of preventive detention.

(a) Review by Advisory Board: Clause 4 of the article states that no law framed for
preventive detention gives authority to detain any person for more than 3 months unless; an
advisory board reports a sufficient cause for such detention. The people on the advisory
board should be equally qualified as that of a judge of the high court. The report needs to be
submitted before the expiration of said 3 months.

(b) Communication of grounds of detention to detenu: Clause 5 of the article states

that any authority while detaining any person under law providing for preventive detention
shall communicate the grounds of detention to the person as soon as possible. The ground of
detention should have a rational connection with the object which the detenu is prevented
from attaining. The communication should provide all the material facts related to the ground
and should not be a mere statement of facts.

No obligation of authority: The detaining authority is under no obligation to provide the

grounds of detention to detenu prior to his arrest, but is advised to do so at the earliest
thereby providing an opportunity of representation to the detenu as well.

A person already in custody can be detained when there are reasonable and sufficient causes
to do so. The focal problem being that in cases of preventive detention there is no way to
check whether the cause of detention is just and reasonable until it is presented to the
advisory board which is applicable after the stretch of 3 months.

(c) Detenue’s Right of representation: Clause 5 of the article also states that the grounds
of the detention should be communicated as soon as possible in order to enable the right of
representation to the person. The authority providing the detention order shall afford to the
person the earliest opportunity of making a representation against the order.

Conservation of Foreign Exchange, Prevention of

Smuggling Activities Act (COFEPOSA), 1974 and Article
22(5) 
This Act was brought into force in 1974 and it gave wide powers to the executive to detain
individuals on apprehension of their involvement in smuggling activities. The section 3 of this
Act is shared with clause 5 of Article 22 which states that the ground of detention should be
communicated to the detenu within minimum five or a maximum of fifteen days. In no case
should it be delayed beyond fifteen days. It must be completely furnished to the detenu,
including all the facts and should not be only bare recital of the grounds. Any lapse within this
provision would render the detention order void. This Act still stands valid.

No time limit prescribed for disposal of representation: The article does not provide
any information about the method of dealing or disposing the representation made by the
detenue. It just extends to providing the right of representation. There is no further
description or time limit assigned for the end result of representation made, which can be
inferred as a means to keep lingering the issue at hand and aid in wrongful detention of the
person.

Exception under Article 22(6)

Clause 6 of the article is similar in nature to clause 3 as it stands an exception to clause 5
and states that the detaining authority is not mandatorily required to disclose any such facts
which it considers to be against the public interest to disclose. This clause does not mention
any other specifications or details within the topic and hence is regarded as the utmost
arbitrary and regressive. It has no solid basis or reasoning to resonate with ‘against the
public interest’ phrase and can be arbitrary to any extent.

Subjective satisfaction of the detaining authority

Clause 7 of the article is the most regressive of all clauses, it authorizes the parliament to
describe the circumstances and categories of cases where detention of a person may be
extended beyond three months without the opinion of the advisory board. It can also
regulate the maximum period for which anyone may be detained under laws providing for
preventive detention. The parliament also exercises hold on the methodology applied by the
advisory board in the enquiry of detention cases. This clause provides for detention in cases
of subjective satisfaction of the authority, where the element of ‘subjective satisfaction’ can
be unjust and biased in any and every possible situation thus making it an equipment to
mask over the legally and morally wrong detentions. Hence, this clause provides complete
subjectivity and authority to the government which is the cause of arbitrary and unjust cases
of wrongful detention. The authorities are at a position enough to tweak the facts and
circumstances of the case to project it fair and there is no antidote for the protection of such
a misery. This clause is the focal reason of criticism and misuse of this provision.

Conclusion 
Through this article we observe that preventive detention as a provision has always lacked
the element of ‘check and balance’ over its establishment and practice. This provision has
never aligned itself with any international human rights policies and till date continues to
contradict them in some form or the other. A major concern of preventive detention is that it
is a very wide provision, without any mention of specifications and limitations, which exposes
it to a wider context of interpretation thereby vesting major power in the hands of authority.
Hence, this provision in our constitution requires effective and deep rooted study and survey
of the root cause and accordingly framing of the appropriate law which also provide for
efficient and necessary check and limitation mechanisms to prevent its unjust and
unconstitutional use in any scenario.
Right to Equality: Article 16, 17 & 18 under the Indian Constitution

Introduction
The Indian Constitution contains provisions for Right to Equality in Articles 14 to 18. The
Preamble of the Indian Constitution also provides for the right to equal status and
opportunity to the citizens of India. Right to Equality forms part of the basic structure of the
Indian Constitution which can’t be amended. It is one of the six fundamental rights which is
provided to the citizens of India by the Constitution. The Right ensures equality before the
law and equal protection of the law irrespective of race, religion, caste, place of birth or
gender of the citizens. Article 14 forms the foundation of Articles 16, 17, 18 of the Indian
Constitution.

Right to equality of Opportunity in Public

Employment: Article 16
Article 16 of the Indian Constitution guarantees equal opportunity to all citizens in matters
related to employment in the public sector. Article 16(1) states that there shall be equal
opportunity for the citizens in the matter of employment or appointment to any office under
the State. The provision of equality is only applicable to the employment or offices which are
held by the State. The State is still free to lay down the requisite qualifications for the
recruitment of employees for the Government services. The Government can also pick and
choose applicants for the purpose of employment as long as the applicants have been given
an equal opportunity to apply for the Government service.

To know more about the Right to Equality Article 16, 17, and 18 under the Indian
Constitution in brief, please refer to the video below:

Article 16(2) lays down the grounds on which the citizens should not be discriminated against
for the purpose of employment or appointment to any office under the State. The prohibited
grounds of discrimination under Article 16(2) are religion, race, caste, sex, descent,
birthplace, residence, or any of them. The words ‘any employment or office under the state’
mentioned in clause 2 of Article 16 implies that the said provision refers only to public
employment and to the employment in the private sector. 

Article 16(1) and (2) lay down provisions for equal opportunity of employment in the public
sector. However, it is stated in clause 3 of Article 16 that nothing in this article shall prevent
Parliament from making any law which prescribes to the citizens who are appointed to any
office under the State in regard to any requirements as to residence within that State or
Union territory prior to employment or appointment to any office under the State.

Article 16(4) of the Indian constitution provides for the reservation of services under the
State in favor of the backward class of citizens. The State shall decide whether a particular
class of citizens is backward or not. Therefore, the State shall lay down acceptable criteria in
order to ascertain whether a particular class of citizens is a backward class or not.

Equal Pay for Equal Work

A question of equal pay for equal work was raised for the first time in the case of  Indian Oil
Corporation vs Chief Labour Commissioner. The case Chemical Mazdoor Panchayat vs Indian
Oil corporation was remanded by the Supreme Court in order to get a fresh decision on it by
the High Court of Gujarat. The issue before the High Court of Gujarat was whether the
contractual laborers of the Indian Oil Corporation were entitled to equal wages like the
permanent employees of the Company. In 1992, it was found by the Labour Commissioner
that the work which is done by the contractual laborers is similar to the permanent
employees and consequently, an order was passed by the Labour Commissioner making Rule
25(2)(v) of the CLRA Rules applicable. In 2013, Gujarat High Court stated that the Labour
Commissioner was wrong in only taking into consideration the nature of the work of the
contractual laborers and permanent employees. Other aspects such as quality of work, the
capability of the individual, qualification, work experience, etc. should have also been taken
into consideration.

It was stated by the Court that in order to equate the two sets of employees i.e. laborers on
contract and permanent employees not only similarity of designation and work has to be
taken into consideration but the mode of recruitment, nature of work, value judgment,
responsibility on the individual are also required to be taken into consideration. It was
observed by the Court that the permanent employees are required to be qualified according
to the job, they need to go through a written examination which the contractual laborers are
not required to and there shouldn’t be an obligation on the employer for equal pay for equal
work. The labor union then approached the honorable Supreme Court against the judgment
given by the Gujarat High Court. 

The case as observed above was now been remanded on the question of the status of the
contract laborers. The issue before the Court was mainly dependent on the Constitutionality
of Rule 25(2)(v) of the CLRA Rules. 

This Rule states that:

“In case where the worker is employed by the contractor in order to perform the same kind
or similar kind of work as a worker who has been directly employed by the principal employer
of the establishments, then the wage rates, holidays, hours of work and other conditions of
service of the worker who has been employed by the contractor shall be the same as the
worker who has been directly employed by the principal employer of the establishment in
which the workers are working for the same or similar kind of work.”
It was stated by the Court that it is clear that the parity between contractual laborers and
permanent employees under the CLRA Rules is dependent on the similarity of work they
perform and not on the mode of recruitment or qualifications. The Supreme Court in order to
decide the case referred to the judgment of Randhir Singh vs Union of India, 1982. The case
was a landmark judgment on the constitutional validity of equal pay for equal work. Equal
pay for equal work is also a Directive Principle in the Indian Constitution. In the said case the
Supreme Court grounded equal pay for equal work under Article 14 of the Constitution and
stated that in cases where all “relevant considerations are the same“, the government can
not deny equal pay for equal work simply by performing the bureaucratic maneuver i.e. by
separating the workers into different posts, or to different departments. The example of
drivers was taken to decide the case. According to the Court “there is not even the slightest
doubt that the drivers in the Delhi Police Force perform the same functions and duties as
other drivers in service of the Delhi Administration and the Central Government“, and hence,
equal pay for equal work was attracted.

The phrase “same functions and duties” used by the Court resembles the language of the
CLRA i.e. “same or similar work“. However, subsequent to the judgment in the case of
Randhir Singh, the Supreme Court broadened the principles by passing a number of
judgments. The Court through judgments passed a number of principles on equal pay for
equal work including mode of recruitment, qualifications, etc. Equality of work was no longer
related only to the kind or character of the work done by the workers but was also related to
positions which the workers held in the office. In other words, the Supreme Court effectively
converted the requirement for equal pay for equal work.

According to Article 16(2) of the Constitution, there shall not be any discrimination between
the citizens on grounds of religion, race, caste, sex, descent, place of birth, residence or any
of them in respect of employment or office under the State. The words ‘any employment or
office under the State’ makes it clear that the said Article applies only to public employment.
In the case of Indira Sawhney & Ors. v. Union of India, the Supreme Court held that there
shall be a separate reservation for citizens belonging to other backward classes in central
government jobs. The Court ordered the exclusion of citizens belonging to the creamy layer
of other backward classes and economically poor citizens of forwarding castes for the purpose
of reservation in central government jobs. The Court also stated that the upper limit of the
reservations shall be not more than 50%.

The Constitution 77th Amendment Act, 1995

Since 1955 the Scheduled Caste and Scheduled Tribes have been provided with the facility of
reservation for the matter of employment and promotion under the office of State. The
honorable Supreme Court, in Indra Sawhney and Others vs. Union of India held that the
reservation of Government jobs under Article 16(4) is limited to the appointment of the
citizens belonging to the said classes and it cannot extend to a reservation in the matter of
promotion. However, the Court’s decision in the matter of promotion affected the citizens
belonging to Scheduled Castes and Scheduled Tribes adversely as they were not represented
well in Government services. Since it is the State’s duty to protect the interests of the
Scheduled Castes and Scheduled Tribes, the Government decided to continue the existing
policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes. In order to
carry out the practice which existed before the landmark judgment of Indra Sawhney and
Others vs. Union of India, it was necessary to amend Article 16 of the Indian Constitution by
inserting a new clause (4A) in the said Article.

For the purpose of reservation in matters of promotion of Scheduled Castes and Scheduled
Tribes, Clause (4) was inserted in Article 16 of the Constitution by 77th Amendment. It was
stated in Clause(4) that nothing in Article 16 of the Constitution shall prevent the State from
making any provision for reservation in matters of promotion to any posts in Government
services in favor of the Scheduled Castes and Scheduled Tribes.

            Non-exclusion of “Creamy layer” in Backward Class

The ‘creamy layer’ has been defined by the Supreme Court as a class of society that are
relatively forward and educated than the other members of the Other Backward Classes. The
people who belong to the ‘creamy layer’ are not eligible for government-sponsored
educational and professional benefit programs. In Indra Sawhney v. Union of India (II), The
Bench analyzed the usage of the terms “caste” and “class”. It was stated that Article 16(4) of
the Constitution has to be read together with the rest of the Constitution including Article
15(1) that prohibits the state from discriminating against any citizen on the grounds of caste.
Considering the above, employing caste as a determinative factor in ascertaining the
backwardness of the citizens is contradictory to the constitutional vision of a casteless
society.

The issue which was before the Court was that:

(i) Whether the classification on the basis of caste is permissible;

(ii) Whether there is a rational nexus to such caste-based classification for the advancement
of backward classes of citizens.

The Court observed that a classification based on caste is impermissible in light of Article
15(1) of the Constitution. The judgment given by the Court whittled away the distinction
between “caste” and “class” upholding the non-exclusion of creamy layer in backward class. 

The Constitution (81st Amendment) Act, 2000

The Government through the 81st Amendment Act, 2000 introduced Article 16(4B). The
Amendment allowed reservation in promotion to the 50% upper limit which is set on the
regular reservations. The Amendment permitted the Government to carry forward unfilled
vacancies from previous years. This Amendment was called as the Carry Forward Rule.

Before 1997, the vacancies which were reserved for the Scheduled Castes and Scheduled
Tribes and were not filled up by direct recruitment because of the non-availability of the
candidates belonging to the Scheduled Castes or the Scheduled Tribes were treated as
“Backlog Vacancies”. These vacancies were then treated together as a distinct group and
were excluded from the upper limit of reservation i.e. 50%. In the landmark judgment of
Indra Sawhney v Union of India, the Supreme Court held that the total number of vacancies
to be filled up on the basis of reservations in a year including the reservations by the Carry
Forward Rule shall not exceed the upper limit of fifty percent. As total reservations in a year
for the Scheduled Castes and Scheduled Tribes along with the Other Backward Classes had
already reached forty-nine and a half percent and the total number of vacancies to be filled
up in a year was not allowed to exceed fifty percent and so the filling up of “Backlog
Vacancies” became difficult. Therefore, in order to implement the said judgment and maintain
the upper limit of reservations, an Official Memorandum dated August 29, 1997, was issued
which stated that the fifty percent upper limit shall apply to current as well as “Backlog
Vacancies”.
Due to the adverse effect of the aforesaid Memorandum on the Scheduled Castes and
Scheduled Tribes, various organizations including the Members of Parliament in order to
protect the interests of the Scheduled Castes and Scheduled Tribes approached the Central
Government. After taking into consideration, the various representations by the organizations
and Members of Parliament, the Court reviewed the position and decided to make an
Amendment in the Constitution so that the vacancies which were left unfilled can be
considered as a separate class of vacancies. Such a class of vacancies shall not be considered
together with the other vacancies of the year. It was stated that carry forward rule will be
applicable for unfilled (backlog) vacancies but it must not violate the 50% upper limit rule.
Together all the reservations must not exceed the 50% upper limit. The Backlog vacancies
were thus, allowed but the upper limit of the reservation remained 50%. This Amendment in
the Constitution enabled the State to restore the position as it was before passing of the
Memorandum dated August 29, 1997.

The Constitution (85th Amendment) Act, 2005

The Government servants who belonged to the Scheduled Castes and Scheduled Tribes
enjoyed the benefit of seniority because of the reservation of promotion in Government
services. The judgments of the Supreme Court in the cases like Union of India vs. Virpal
Singh Chauhan and Ajit Singh vs. State of Punjab led to the issue of the O.M.(official
Memorandum) dated 30th January 1997. The Memorandum adversely affected the interest of
the Scheduled Castes and Scheduled Tribes in the matter of promotion who worked under
Government. Subsequently, many representations were made by various quarters including
Members of Parliament to protect the interest of the Government servants who belonged to
Scheduled Castes and Scheduled Tribes.

The Government has reviewed the position in the light of views received. The 85th
Amendment was introduced in order to extend the benefit of reservation in favor of the
citizens belonging to Scheduled Castes Scheduled Tribes in matters of promotion with
consequential seniority. The Amendment substituted the words ”in matters of promotion to
any class” the words ”in matters of promotion with consequential seniority, to any class” in
Article 16 (4) of the Constitution.

M. Nagaraj v. Union of India, AIR 2007 SC 71

The case M. Nagaraj v. Union of India was related to reservation of Scheduled Castes and
Scheduled Tribes and dealt with Articles 16 (4A) and (4B) of the Constitution. It was held in
this case that in order to grant reservations to Scheduled Castes and Scheduled Tribes, the
State must collect ‘quantifiable data’ to demonstrate their backwardness. It was held that the
concept of the creamy layer will also apply to the Scheduled Castes and Scheduled Tribes and
therefore, they would not be entitled to any such reservations. Further, the decision was
altered as it was argued by the Attorney-General of India that both the holdings were
incorrect as they were contrary to the judgment which was given in Indira Sawhney vs Union
of India (non-exclusion of creamy layer in matters of reservations).

Report of Justice Ram Nandan Committee

Ram Nandan Committee was appointed to differentiate the creamy layer from other
backward classes of citizens. A report was submitted by the Committee in 1993 which was
accepted. By an Act of Parliament, the National Commission for Backward Classes was
established in 1993. The Commission considered inclusion and exclusion of the citizens from
the lists of castes that are notified to be backward for the purpose of job reservation. The
Commission also evolved a formula in order to determine the criteria which will be applicable
to differentiate the creamy layer from other backward classes.

It was stated by Ram Nandan Committee in its report that reservation should not be provided
to OBC children of constitutional functionaries i.e. President, Judges of the Supreme Court
and High Courts, employees of central and state bureaucracies above a certain level, public
sector employees, and members of the armed forces and paramilitary personnel above the
rank of colonel. The reservation would not be applicable to the children whose parents are
engaged in trade, industry or in professions like medical, law, chartered accountancy, income
tax consultancy, financial or management consultancy, engineering, or is a film artist or is
involved in any other film profession, or is an author, playwright, sportsperson, sports
professionals, media professional or any other vocations of like status, whose annual income
is ₹ 100,000 (Rs 1 lakh to Rs 6 lakh for a period of three consecutive years (the amount has
been changed from the amount which was specified in the year 1993 by the committee.

Disabled Candidates
The Indian Constitution provides for equal rights and opportunities to the disabled citizens.
The disability should be 40% or more and must be certified by a medical practitioner. The
disability also includes blindness, visual impairment, hearing impairment, locomotor
disabilities, etc. The Constitution aims to put the disabled citizens in an equal position with
other citizens. In order to achieve this aim, the Constitution has made provisions
under Article 15(1) and (2) for reservation of disabled citizens under Government services
and institutions which are run by the Government. 

Article 29(2) of the Constitution provides similar rights to the disabled people in matters of
education. It has been stated in the Article that no citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State funds only on the
ground of disability.

National Commission for Backward Classes

In the case of Indra Sawhney vs Union of India, the Court directed the Government to create
a body for inclusion and exclusion of the citizens from the lists of castes that are notified to
be backward for the purpose of job reservation. Subsequently, the Parliament passed the
National Commission for Backward Classes Act in 1993 and constituted the National
Commission for Backward Classes.

The 102nd Constitutional Amendment, 2018 provides a Constitutional status to the National

Commission for Backward Classes (NCBC). The Commission has the authority to examine
complaints and welfare measures of the citizens who belong to backward classes socially and
educationally.

The Commission works for the citizens who belong to Backward classes and monitors all the
matters related to it in order to safeguard the backward classes of citizens.
NCBC also performs such other functions which are important for the protection, welfare and
development and advancement of the socially and educationally backward classes.

Abolition of Untouchability: Article 17

Untouchability has been abolished by the Indian Constitution through Article 17. The Article
states that the practice of untouchability is prohibited in all forms. Article 17 of the
Constitution abolishes the practice of untouchability. The practice of untouchability is an
offense under the Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights
Act in 1976) and anyone doing so is punishable by law. This Act states that whatever is open
to the general public should be open to all the citizens of India.

Devarajjah v. Padmanna, AIR 1958 Mys 84

In the case of Devarajjah vs. Padmana, the term untouchability was defined. It was stated
that the Untouchability Offences Act, 1955 fails to define the word ‘untouchability’. The Court
observed that ‘untouchability’ under Article 17 of the Constitution should not be taken in the
literal sense but should be understood as a practice that has prevailed and developed in
India. The framers of the Constitution had clearly indicated untouchability as a practice that
developed historically in this country. The existence and practice of untouchability in this
country and the efforts which have been made for its eradication during the past decades are
matters of common knowledge and can be taken judicial notice of.

Article 17 of the Constitution which was intended to abolish the practice of untouchability,
fails to define the term ‘untouchability’ nor is it defined anywhere else in the Constitution.
Through this case, the Court gave a broader interpretation of the word ‘untouchability’ under
Article 17 of the Constitution.

Asiad Project Workers Case

In the Asiad Project Workers Case, the PUDR filed a case against the Delhi Administration.
People’s Union for Democratic (PUDR) is an organization which was formed for the purpose of
protecting the democratic rights of the citizens. It commissioned three social scientists for
inquiring about the conditions under which the workmen were working in Asiad Projects.
Based on the inquiry, the PUDR addressed Justice Bhagwati by writing a letter about the
various violations of labor laws that were taking place in Asiad Projects. The Supreme Court
treated the letter as a writ petition and issued a notice to the Union of India, Delhi
Administration, and Delhi Development Authority. The violations were as follows:

(i) The provisions of the Equal Remuneration Act, 1976 were violated. The female workers
were being paid less than male workers and the amount of wage was being misappropriated
by the Jamadars. The workers who belonged to lower castes were treated as untouchables
and were forced to work without wages. It resulted in a violation of Article 17 and  23 of the
Constitution.

(ii) There was a violation of labor law as well as Article 24 of the Constitution as children
below the age of 14 years were employed in the project.

(iii) There was a violation of the Right to life under Article 21 of the workers as they were
denied of proper living conditions and medical facilities.
The judgment which was given by the Supreme Court was in favor of the petitioners. The
Court observed that it is the duty of the State to protect the fundamental rights of the
citizens. A set of guidelines were given for minimum wages and many other provisions were
introduced to ensure proper working conditions for the workers.

Abolition of Titles: Article 18

The Article 18 of the Constitution forbids the State from conferring any titles on the citizens
of India and also they are prohibited from accepting any title given by a foreign State.
However, Military and academic distinctions can be conferred upon. The title which comes
along with awards such as Bharat Ratna and Padma Vibhushan do not fall within the
constitutional prohibition and thus, they do not fall under the definition of title under Article
18 of the Constitution.

Balaji Raghavan v. Union of India, (1996) 1 SCC 361

In the case of Balaji Raghavan v. Union of India, the petitioners contended that National
Awards like Padam Vibhushan, Padam Bhushan, Padam Shri, and Bharat Ratna should not be
given to the individuals as it is a violation of Article 18. It was argued in the court that the
National Awardees very often misuse the title which is given to them by the Government. The
Supreme Court held that National Awards are not subject to titles as per Article 18 and
receiving a National Award was not a violation of equality under the Constitution. Article
51(A)(f) of the Constitution speaks about the necessary recognition and appreciation of
excellence in the performance of a person’s duty. The Court criticized the Government’s
failure in selecting the right candidates for National Award and also stated that the whole
criteria for selection were vague and the main object of recognition and appreciation of work
was wholly missing.

Designation of Senior Advocate

In the case of Indira Jaisingh vs. Supreme Court of India, the designation of the Senior
Advocate was questioned as the appointment of the Senior Advocates were based on
different norms and guidelines in different High Courts. Subsequently, the Supreme Court
framed a new set of guidelines for the appointment of Senior Advocates. The petitioner Indira
Jaisingh filed a petition on the grounds that the guidelines which are set by the Supreme
Court for the appointment of Senior Advocates are flawed and need to be rectified. From the
year 2015, no lawyer has been with the title of senior advocate by the Supreme Court. The
last time the court made the designation of the Senior Advocate was in April 2015. The issue
came before the Court when the Senior Advocate Indira Jaisingh filed a petition questioning
the biased view when it comes to ‘giving them the gown’. This petition came right after when
Supreme Court-appointed 5 new senior advocates in 2015. She contended that this was a
violation of the fundamental rights under Article 14 & 15 of the Constitution. She also
contended that this led to the monopoly of the senior lawyers in a court of law and the
method of appointing senior designation also leads to unhealthy lobbying with the judges.
The Courts have stopped the appointment of advocates for the designation of senior
advocates after the said petition.
Conclusion 
Right to Equality is not a simple concept as it is perceived to be. The Indian Constitution aims
to achieve a society in which all the individuals are provided with an equal opportunity. The
developments which have been made in the light of Right to equality under the Constitution
have uplifted the Indian society. The framers of the Constitution aimed to achieve a society
where all citizens are treated equally. The Courts have given various interpretations through
the judgments so as to achieve the aim of equality which the framers of the Indian
Constitution intended.