Constitutional Law – I (2nd Internals Batch-2021)

1. Right to equality under Article 14- Article 18

 The Right to equality means the absence of legal discrimination only on grounds of caste, race,
religion, sex, and place of birth and ensures equal rights to all citizens.
 It is considered basic feature of the Indian Constitution.
 The Right to equality is both a positive equality as well as a negative right.
RIGHT TO EQUALITY
Positive Right ⇔ Negative Right
(demands to be treated equally) (prohibits unequal treatment)
Under the Indian Constitution, Right to equality is divided under the following subheadings:
1. Equality before law (Article 14)
2. Prohibition of discrimination on grounds of religion, caste, race, sex or place of birth (Article 15)
3. Equality of opportunity in matters of public employment (Article 16)
4. Abolition of untouchability (Article 17)
5. Abolition of titles (Article 18)
Under the Right to Equality, Article 14 provides a general application whereas Art. 15, Art. 16, Art. 17 and Art.
18 have a specific application.

2. Freedoms and Restrictions under Article 19

There are certain grounds on which the Constitution of India introduces restrictions. Article 19 (2) of
Indian Constitution empowers the State to instill reasonable restrictions on the following grounds:
1. Security of the State;
2. Friendly Relation with Foreign States;
3. Public Order;
4. Decency and morality;
5. Contempt of court;
6. Defamation;
7. Incitement to offence;
8. Integrity and Sovereignty of India.
Article 19(1)(a) uses the phrase ‘speech and expression’, that has a broader implication. It also
includes the right to communicate, the right to print, and the right to advertise the information. The
right to freedom of press is also covered under Article 19 (1) (a).
In the case, Odyssey Communications Pvt. Ltd. v. Lokvidyan Sangathan, the Court held that the
right to exhibit film on a State Channel is a part of a fundamental right which is guaranteed under Article
19(1)(a). The petitioner challenged the exhibition of a tv show ‘Honi Anhoni’ stating that it encourages
the superstitious and blind faith of viewers of this tv show. The court rejected the petition on the ground
that the petitioner had failed to show evidence.
In the case, Tata Press Pvt. Ltd. v. Mahanagar Telephone Nigam Ltd, the Court held that the
freedom of speech and expression also includes commercial speech and commercial advertisement
which could only be restricted under Article 19 (2). It was held that advertising, which is close to a
commercial transaction, is in any case dissemination of information with respect to the product-
advertised. Information given through advertisements is beneficial for the public at large.

3. Right to Freedom of Religion (Article 25)

Article 25 of the Constitution guarantees freedom of religion to all persons in India. It provides that all
persons in India, subject to public order, morality, health, and other provisions:
 Are equally entitled to freedom of conscience, and
 Have the right to freely profess, practice and propagate religion.
It further provides that this article shall not affect any existing law and shall not prevent the state from
making any law relating to:
 Regulation or restriction of any economic, financial, political, or any secular activity associated with
religious practice.
 Providing social welfare and reform.
 Opening of Hindu religious institutions of public character for all the classes and sections of the
Hindus.
 The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan held that the test to
determine the question in deciding what is an integral part of a religion is whether it is regarded as integral by
the community following that religion or not.

Doctrine or Belief?
In Hasan Ali v. Mansoor Ali the Bombay High Court held that Articles 25 and Article 26 not only prevents
doctrines or beliefs of religion but also the acts done in pursuance of religion. It thus guarantees ceremonies,
modes of worship, rituals, observances, etc which are an integral part of religion. What is the essential or integral
part of a religion has to be determined in the light of the doctrines and practices that are regarded by the
community as a part of their religion and also must be included in them.
The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt ruled that there is no doubt that religion finds its basis in the system of doctrines
regarded by those who profess that religion, but it will not be correct to say religion is nothing but a doctrine or
belief.
In the case of SP Mittal v. Union of India, the court held that Religion need not be theistic. It is not merely an
opinion, doctrine or belief but has an outward expression in the act as well.

4. Directive Principles of State Policy

Unlike Fundamental Rights, the Directive Principles of State Policy (DPSP) are non-justiciable which
means they are not enforceable by the courts for their violation. However, the Constitution itself declares that
‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply
these principles in making laws. Hence, they impose a moral obligation on the state authorities for their
application.

List of DPSPs under Indian Constitution

Article 36: Defines State as same as Article 12 unless the context otherwise defines.
Article 37: Application of the Principles contained in this part.
Article 38: It authorizes the state to secure a social order for the promotion of the welfare of people.
Article 39: Certain principles of policies to be followed by the state.
Article 39A: Equal justice and free legal aid.
Article 40: Organization of village panchayats.
Article 41: Right to work, to education and to public assistance in certain cases.
Article 42: Provision for just and humane conditions of work and maternity leaves.
Article 43: Living wage etc. for workers.
Article 43-A: Participation of workers in management of industries.
Article 43-B: Promotion of cooperative societies.
Article 44: Uniform civil code for the citizens.
Article 45: Provision for early childhood care and education to children below the age of six years.
Article 46: Promotion of education and economic interests of SC, ST, and other weaker sections.
Article 47: Duty of the state to raise the level of nutrition and the standard of living and to improve public
health.
Article 48: Organization of agriculture and animal husbandry.
Article 48-A: Protection and improvement of environment and safeguarding of forests and wildlife.
Article 49: Protection of monuments and places and objects of national importance.
Article 50: Separation of judiciary from the executive.
Article 51: Promotion of international peace and security.

DPSP Under Preamble

The Preamble of the Constitution is called the key to the mind of the drafters of the Constitution. It lays down
the objectives that our Constitution seeks to achieve. Many scholars believe that DPSPs is the kernel of the
Constitution. The Directive Principles of the State Policy (DPSPs) lay down the guidelines for the state and are
reflections of the overall objectives laid down in the Preamble of Constitution.
The expression Justice- social, economic, political is sought to be achieved through DPSPs. DPSPs are
incorporated to attain the ultimate ideals of preamble i.e., Justice, Liberty, Equality, and fraternity. Moreover, it
also embodies the idea of the welfare state which India was deprived of under colonial rule.
 5. Fundamental Duties
The 42nd Amendment of the Constitution, adopted in 1976, Fundamental Duties of the citizens have also been
enumerated. Article 51 'A', contained in Part IV A of the Constitution deals with Fundamental Duties. These enjoin upon a
citizen among other things, to abide by the Constitution, to cherish and follow noble ideals, which inspired India's struggle
for freedom, to defend the country and render national service when called upon to do so, and to promote harmony and
spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities.

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

Fundamental Duties
Article 51-A Says that it shall be the duty of every citizen of India-
a. to abide by the constitution and respect its ideal and institutions;
b. to cherish and follow the noble ideals which inspired our national struggle for freedom;
c. to uphold and protect the sovereignty, unity and integrity of India;
d. to defend the country and render national service when called upon to do so;
e. to promote harmony and the spirit of common brotherhood amongst all the people of India transcending
religious, linguistic and regional diversities, to renounce practices derogatory to the dignity of women;
f. to value and preserve the rich heritage of our composite culture;
g. to protect and improve the natural environment including forests, lakes, rivers, and wild-life and to have
compassion for living creatures;
h. to develop the scientific temper, humanism and the spirit of inquiry and reform;
i. to safeguard public property and to abjure violence;
j. 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. Further, one more Fundamental duty has been added
k. to the Indian Constitution by 86th Amendment of the constitution in 2002. who is a parent or guardian, to
provide opportunities for education to his child, or as the case may be, ward between the age of six and
fourteen years.

Need For Fundamental Duties

India is a country where people belonging to different castes, creed, religion, sects etc. live together and in
order to maintain harmony and peace and to encourage the feeling of brotherhood and oneness among them
following the Fundamental Duties on their part plays a vital role in upholding and protecting the sovereignty,
unity and integrity of our country which is of inevitable importance. It reminds the citizens that rights and duties
go hand in hand.

Sources of Fundamental Duties

It is significant to note that none of the Constitutions of Western Countries specifically provide for the duties
and obligations of citizens. Among the Democratic Constitutions of the world we find mention of certain duties
of the citizens in the Japanese Constitution. In Britain, Canada & Australia the rights and duties of citizens are
governed largely by Common Law and Judicial Decisions. The French Constitution Makes only a passing reference
to duties of citizens. The American Constitution provides only for fundamental rights and not duties of citizen.

But the Constitution of Socialist Countries, however, lay great emphasis on the citizen's duties like Article 32 of
the Yugoslavian Constitution and Chapter VII of the Soviet Constitution lays down Fundamental Rights & Duties
and also Chapter II of the Constitution of Republic Of China. All the aforesaid Constitutions specifically lay down
duties of the people, they also guarantee the "Right to Work" to every citizen which the Indian Constitution does
not provide still today. The "right to work" should, therefore, be guaranteed to every citizen who are expected
to do certain to the nation.

Enforcement of duties
The fundamental duties are statutory duties and shall be enforceable by Law. Parliament, by law, will
provide penalties to be imposed for failure to fulfil those duties and obligations. The success of this provision
would , however, depend much upon the manner in which and the person against whom these duties would be
enforced and for its proper enforcement it is necessary that it should be known to all. In AIIMS Students Union
v. AIIMS AIR (1983) 1 SCC 471 it has been held that Fundamental Duties though not enforceable by writ of the
court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues.

Fill in the Blanks

1. As per Article 22(2), every person who is arrested and detained custody shall be produced before the
nearest magistrate within 24 Hours
2. Under Article 24, prohibition of employment of children in factories etc is mandated for children of
under 14 Years age
3. In case of A. K. Gopalan v. State of Madras 1950, the petitioner challenged in Preventive Detention
(Article 20)
4. In the case of ADM Jabalpur v. Shivkant Shukla 1976, the petitioner filed the writ of Habeas Corpus
5. In the case of Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition
(Civil) 135 of 1970), the Supreme Court (13 Judges Bench) propounded the Basic Structure Doctrine
6. The DPSP are mainly different from the fundamental rights, DPSP are Non-Justiciable
7. The Menaka Gandhi Vs Union of India 1978, case led to development of Constitutional law under
Article 21
8. In Romesh Thappar vs The State Of Madras on 26 May, 1950 case the petitioner filed the case
regarding their Freedom of Speech & Expression (Article 19(1)A)
9. In 2011 Supreme Court of India ruled that individuals had a right to die with dignity, allowing passive
euthanasia with guidelines in the case of Aruna Ramchandra Shanbaug vs Union Of India & Ors (7
March, 2011)
10. Freedom of Conscience & Freedom of Profession, practice and propagation of religion is provided under
Article 25

Multiple Choice
1. The definition of state is given in Article 12
2. Equality before the law or equal protection of law given in Article 14
3. Prohibition on discrimination on grounds of religion, race, caste mandated under Article 15
4. Equality of opportunities given in Article 16
5. Untouchability is abolished under Article 17
6. Article 19(1)f – right to property is omitted via 44th Amendment 1978
7. Double Jeopardy means No person shall be convicted for one offence more than once
8. Which Article states, “No person accused of any offence shall be compelled to be a witness against
himself” is under Article 20(3)
9. Citizens & Foreigners provided Protection of Life and liberty under Article 21
10. The State shall provide free and compulsory education to all children of age between 6 to 14 years