Constitutional Law - I Notes

CONSTITUTION
OF
INDIA
Dr. Sanjay Ambekar

Dr. Bapuji salunkhe Law College, Osmanabad (MH)
Mob. No. 9284963727
Dr. Sanjay Ambekar Page 0

CHAPTER- 1
CONSTITUTIONAL DEVELOPMENT
Synopsis
 General  Indian National Congress 1853

 Historical Perspective: Constitutional  Various Trends of opinion-social
Developments since 1858 to 1947 reform vs. political independence
 Morle Minto Reforms  Protest against British Repression:
 Dyarchy-Montague-Chelmsford Jalianwala Baag; Rowlett Act;
Reforms Sedition Trials of Tilak.
______________
Constitution is the basic principles and laws of a nation, state, or social group that
determine the powers and duties of the government and guarantee certain rights to the people
in it. It is a written instrument embodying the rules of a political or social organization. It is a
method in which a state or society is organized and sovereign power is distributed.
A constitution is a set of fundamental principles according to which a state is

constituted or governed. The Constitution specifies the basic allocation of power in a State
and decides who gets to decide what the laws will be. The Constitution first defines how a
Parliament will be organized and empowers the Parliament to decide the laws and policies.
The Constitution sets some limitations on the Government as to what extent a Government
can impose rules and policies on its citizen. These limits are fundamental in the sense that the
Government may never trespass them. The Constitution enables the Government to fulfill the
aspirations of a society and create conditions for a just society.
The British came to India in 1600 as traders, in the form of East India Company,
which had the exclusive right of trading in India under a charter granted by Queen Elizabeth
I. In 1765, the Company obtained the 'diwani' (rights over revenue and civil justice) of
Bengal, Bihar and Orissa. This started its career as a territorial power. In 1858, in the wake of
the 'sepoy mutiny', the British Crown assumed direct responsibility for the governance of
India. This rule continued until India was granted independence on 15 August, 1947.
With Independence came the need of a Constitution. A Constituent Assembly was

formed for this purpose in 1946 and on 26 January, 1950, the Constitution came into being.
However, various features of the Indian Constitution and polity have their roots in the British

rule. There are certain events in the British rule that laid down the legal framework for the
organisation and functioning of government and administration in British India. These events
have greatly influenced our constitution and polity.
The period of historical British Constitutional experiments in India can be divided

into two phases:
Phase 1- Constitutional experiment during the rule of the East India Company (1773-1858)
Phase 2 – Constitutional experiments under the British Crown (1858-1947)jj+nhjgj
* Historical Perspective: Constitutional Developments since 1858 to 1947-

1) Regulating Act of 1773-
The Regulating Act of 1773 was a significant piece of legislation passed by the
British Parliament to regulate the administration of British territories in India. It was a
response to the growing influence and control of the British East India Company over India's
political and economic affairs, which raised concerns about corruption and mismanagement.
Importance-
This Act is of great constitutional importance as:
1. it was the first step taken by the British Government to control and regulate the
affairs of the East India Company in India;
2. it recognised for the first time, the political and administrative functions of the
company; and
3. to introduce reforms in the company’s Govt. in India.
4. to provide remedies against illegalities and oppressions committed by the
Company’s servant in India.
5. it laid the foundations of central administration in India.
Salient features of the Regulating Act, 1773-
1. Election for Directors-
The Directors of the company were elected for a period of four years. ¼ of them were
to retire every year and the retiring directors were not entitled to be elected again.
2. Control over correspondence-
In order to assert parliaments control over the company, the Directors were required
to place regularly on their correspondence, regarding civil and military affairs with the Indian
authorities, before the secretary of state.

3. Appointment of Governor-General and Council-
A Governor-General and four councilors were appointed by the presidency of fort
William in Bengal. The Governor of Bengal was designated as the Governor-general of
Bengal.
4. Decision by majority present-
The Act stated the names of the first governor-general and four councilors. Warren
Hastings, who was Governor of Bengal, was appointed the first Governor-General. Their
term of office was for five years; and the king was empowered to remove them even earlier
on the recommendation of the Court of Directors.
5. Extent of Governor-General’s Power-
The Governor-General-in Council was given all the powers to govern the company’s
territorial acquisition in India, to administer the revenues of Bengal, Bihar and Orissa and to
supervise and control the general Civil and Military government of the presidency.
6. Bombay and Madras under control of Governor-General
The presidencies of Bombay and Madras were placed under the control and
superintendence of the Governor-General-in-Council while exercising their powers to make
war and peace.
7. Establishment of S.C. of Judicature-
Sec. 13 of the Regulating Act empowered the crown to establish by Charter a S.C. of
Judicature at Fort William in Calcutta (1774).
2) Pitt’s India Act of 1784-

In a bid/attempt/offer to rectify the defects of the Regulating Act of 1773, the British
Parliament passed the Amending Act of 1781, also known as the Act of Settlement. The next
important Act was the Pitt’s India Act of 1784.
Features of the Act-
1) It distinguished between the commercial and political functions of the company.
2) It allowed the Court of Directors to manage the commercial affairs but created a
new body called Board of Control to manage the political affairs. Thus, it established a
system of double government.
3) It empowered the Board of Control to supervise and direct all operations of the
civil and military government or revenues of the British possessions in India.
Thus, the act was significant for two reasons:

1) The company’s territories in India were for the first time called the ‘British
Possessions in India’.
2) The British Govt. was given the supreme control over Company’s affairs and its
administration in India.
3) Charter Act of 1833-
The Charter Act of 1833, formally known as the "Act for the Government of India" (3
& 4 William IV, c. 85), was a significant piece of legislation that had a major impact on the
governance and administration of British India during the colonial period.
1) It made the Governor-General of Bengal as the Governor-General of India and
vested in him all civil and military powers.
Thus, the Act created, for the first time, a government of India having authority over
the entire territorial area possessed by the British in India. Lord William Bentick was the
first governor-general of India.
2) It deprived/underprivileged the governor of Bombay and Madras of their legislative
powers. The Governor-General of India was given exclusive legislative powers for the entire
British India.
The laws made under the previous Acts were called as Regulations while laws made
under this Act were called as Acts.
3) It ended the activities of the East India Company as a commercial body which
became a purely administrative body. It provided that by it ‘in trust for his Majesty, his heirs
and successors’.
4) The Charter Act of 1833 attempted to introduce a system of open competition for
selection of civil servants, and stated that the Indians should not be debarred from holding
any place, office and employment under the Company.
However, this provision was negated/cancelled after opposition from the Court of
Directors.
4) Charter Act of 1853-
The Charter Act of 1853, also known as the India Act 1853, was an important piece of
legislation passed by the British Parliament that brought significant changes to the
administration of British India. It was the sixth in a series of charter acts that shaped the
governance of British India during the colonial period.

1) It separated, for the first time, the legislative and executive functions of the
Governor-General’s Council. It provided for addition of six new members called legislative
councilors to the council.
In other words, it established a separate Governor-General’s legislative council which
came to be known as the Indian (Central) Legislative Council.
This legislative wing of the council functioned as a mini-parliament, adopting the
same procedures as the British Parliament.
Thus, legislation, for the first time, was treated as a special function of the
government, requiring special machinery and special process.
(1833 Act. Ref.) 2) It introduced an open competition system of selection and
recruitment of civil servants. The covenanted civil service was thus thrown open to the
Indians also. Accordingly, the Macaulay Committee (the Committee on the Indian Civil
Service) was appointed in 1854.
3) It extended the Company’s rule and allowed it to retain the possession of
Indian territories on trust for the British Crown. But, it did not specify any particular
period. This was a clear indication that the Company’s rule could be terminated at any time
the Parliament liked.
4) It introduced, for the first time local representation in the Indian (Central)
Legislative Council, of the six new legislative members of the governor-general’s council,
four members were appointed by the local (Provincial) governments of Madras, Bombay,
Bengal and Agra.
5) The Crown Rule (1858-1947)-

Government of India Act of 1858
This significant Act was enacted in the wake of the Revolt of 1857- also known as the
First war of Independence or the ‘Sepoy mutiny’. The Act known as the Act for the Good
Government of India, abolished the East India Company, and transferred the powers of
government, territories and revenues to the British Crown.
Features of the Act:
1) It provided that India henceforth was to be governed by, and in the name of, Her
Majesty. It changed the designation of the Governor-General of India to that of Viceroy of
India. Viceroy was the direct representative of the British Crown in India. Lord Canning
thus became the first Viceroy of India.
2) It ended the system of double government by abolishing the Board of Control-
Political affairs and Court of Directors-Commercial affairs.
3) It created a new office, secretary of state for India vested with complete authority
and control over Indian administration. The secretary of state was a member of the British
cabinet and was responsible ultimately to the British Parliament.
4) It established a 15 member Council of India to assist the secretary of state for India.
The council was an advisory body. The secretary of state was made the chairman of the
council.
5) It constituted the secretary of state-in-council as a body corporate, capable of
suing and being sued in India and in England.
The Act of 1858 was, however, largely confined to the improvement of the
administrative machinery by which the Indian Government was to be supervised and
controlled in England. It did not alter in any substantial way system of government that
prevailed in India.
6) Indian Councils Act of 1861, 1892 and 1909-

After the great revolt of 1857, the British Government felt the necessity of seeking the
cooperation of the Indians in the administration of their country. In pursuance of this policy
association, three Acts were enacted by the British Parliament in 1861, 1892 and 1909. The
Indian Councils Act of 1861 is an important landmark in the constitutional and political
history of India.
Features of the Act of 1861

1) It made a beginning of representative institutions by associating Indians with the
law-making process. It thus provided that the viceroy should nominate some Indians as
non-official members of his expanded council.
In 1862, Lord Canning, the then viceroy, nominated three Indians to his legislative
council- the Raja of Banaras, the Maharaja of Patiala and Sir Dinkar Rao.
2) It initiated the process of decentralization by restoring the legislative powers to the
Bombay and Madras Presidencies. It thus reversed the centralizing tendency that started from
the Regulating Act of 1773 and reached its climax under the Charter Act of 1833.
3) It also provided for the establishment of new legislative councils for Bengal
(1862), North-Western Provinces (1886) and Punjab (1897), which were established.

4) It empowered the Viceroy to make rules and orders for the more convenient
transaction of business in the council. It also gave recognition to the ‘Portfolio’ system,
introduced by Lord Canning in 1859.
Under this, a member of the Viceroy’s council was made in-charge of one or more
departments of the government and was authorized to issue final orders on behalf of the
council on matters of his departments.
5) It empowered the Viceroy to issue ordinances, without the
concurrence/correspondence of the legislative council, during an emergency. The life of such
an ordinance was six months.
Features of the Act of 1892

1) It increased the number of additional (non-official) members in the Central
and provincial legislative councils, but maintained the official majority in them.
2) It increased the functions of legislative councils and gave them the power of
discussing the budget and addressing questions to the executive.
3) It provided for the nomination of some non-official members of the-
a) Central Legislative Council by the viceroy on the recommendation of the
provincial legislative councils and the Bengal Chamber of commerce, and
b) That of the Provincial legislative councils by the Governors on the
recommendation of the district boards, municipalities, universities, trade associations,
zamindars and chambers.
The Act made a limited and indirect provision for the use of election in filling up
some of the non-official seats both in the Central and provincial legislative councils. The
word ‘election’ was, however not used in the Act. The process was described as nomination
made on the recommendation of certain bodies.
Features of the Act of 1909 (Morley-Minto Reforms)

This Act is also known as Morley-Minto Reforms (Lord Morley was the then
Secretary of State for India and Lord Minto was the then Viceroy of India).
1) It considerably increased the size of the legislative councils, both Central and
provincial. The number of members in the Central Legislative Council was raised from 16 to
60. The number of members in the provincial legislative councils was not uniform.
2) It retained official majority in the Legislative Council but allowed the provincial
legislative councils to have non-official majority.
3) It enlarged the deliberative functions of the legislative councils at both the levels.
For example, members were allowed to ask supplementary questions, move resolutions on
the budget, and so on.
4) It provided (for the first time) for the association of Indians with the executive
Councils of the Viceroy and Governors. Satyendra Prassad Sinha became the first Indian to
join the Viceroy’s Executive Council. He was appointed as the law members.
5) It introduced a system of communal/common/public representation for Muslims by
accepting the concept of separate electorate. Under this, the Muslim members were to be
elected only by Muslim voters. Thus, the Act ‘legalised communalism’ and Lord Minto came
to be known as the Father of Communal Electorate.
6) It also provided for the separate representation of presidency corporations,
chambers of commerce, universities and zamindars.
7) Government of India Act of 1919 (Dyarchy-Montague-Chelmsford Reforms)

On August 20, 1917, the British Government declared, for the first time, that its
objective was the gradual/regular/slow introduction of responsible government in India.
The Government of India Act of 1919 was thus enacted, which came into force in
1921. This Act is also known as Montagu-Chelmsford Reforms (Montagu was the Secretary
of state for India and Lord Chelmsford was the viceroy of India).

1) It relaxed the central control over the provinces by demarcating and separating the
central and provincial subjects. The central and provincial legislatures were authorized to
make laws on their respective list of subjects. However, the structure of government
continued to be centralised and unitary.
2) It further divided the provincial subjects into two parts-transferred and
reserved.
The transferred subjects were to be administered by the governor with the aid of
ministers responsible to the legislative council.
The reserved subjects, on the other hand, were to be administered by the governor
and his executive council without being responsible to the legislative council. This dual
scheme of governance was known as ‘Dyarchy’- a term derived from the Greek word di-
arche which means double rule. However, this experiment was largely unsuccessful.

3) It introduced, for the first time, bicameralism and direct elections in the country.
Thus, the Indian legislative Council was replaced by a bicameral legislature consisting of an
Upper House (Council of state) and a Lower House (Legislative Assembly). The majority of
members of both the House were chosen by direct election.
4) It required that the three of the six members of the Viceroy’s executive Council
(other than the commander-in-chief) were to be Indian.
5) It extended the principle of communal representation by providing separate
electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans.
6) It granted franchise/permission to a limited number of people on the basis of
the property, tax or education.
7) It created a new office of the High Commissioner for India in London and
transferred to him some of the functions hitherto performed by the Secretary of State for
India.
8) It provided for the establishment of a public service commission. Hence, a Central
Public Service Commission was set up in 1926 for recruiting civil servants.
9) It separated, for the first time, provincial budgets from the Central budget and
authorized the provincial legislatures to enact their budget.
10) It provided for the appointment of a statutory commission to inquire into and
report on its working after ten years of its coming into force.
Simon Commission:
The Simon Commission, officially known as the "Indian Statutory Commission," was
a pivotal event in India's journey towards self-governance and independence. Established in
1927, it marked a significant turning point in India's struggle against British colonial rule.
The Commission's recommendations and the widespread protests that followed had far-
reaching consequences for the Indian freedom movement.
Background:
The Simon Commission was set up by the British government to review and make
recommendations regarding constitutional reforms for India. Named after its chairman, Sir
John Simon, the Commission consisted entirely of British members, which led to strong
opposition from Indian leaders who demanded Indian representation on the Commission. The
exclusion of Indian members was seen as a manifestation of British disregard for Indian
aspirations.

Key Points and Significance:
1. Lack of Indian Representation:
The absence of Indian members on the Commission was a major source of discontent
among Indians. It highlighted the paternalistic attitude of the British towards the Indians and
reinforced the demand for greater self-governance.
2. Protests and Boycotts:
The announcement of the Commission led to widespread protests and boycotts across
India. Indian political parties and leaders saw it as an attempt to prolong British control and
divert the path towards self-determination. The All-Party Conference in 1928 rejected the
Commission's recommendations, intensifying the demand for a more democratic and
representative government.
3. Divergent/different Views within the Commission:
The Simon Commission itself was divided on various issues, reflecting the
complexities of British policy towards India. Some members advocated for limited reforms,
while others favored a more progressive approach. This internal discord underscored the
challenges of devising/inventing/planning a unified policy for India's governance.
4. Communal Representation and Dalit Demands:
The Commission's report recommended continuation of communal electorates, a
policy that perpetuated religious divisions in Indian politics. This led to concerns among
various communities, including Dalits (untouchables), who sought adequate representation
and protections in the new constitutional setup.
5. Demand for Complete Independence:
The Simon Commission galvanized Indian leaders to demand complete independence
from British rule. The demands for "Swaraj" (self-rule) gained momentum, culminating in the
Lahore session of the Indian National Congress in 1929, where the historic resolution for full
independence was passed.
Legacy:
The Simon Commission significantly heightened the fervor of the Indian freedom
movement. It laid bare the British government's unwillingness to involve Indians in shaping
their own destiny and acted as a substance for unity among various Indian communities. The
Commission's failure to address Indian demands further hardened the resolve of Indian
leaders to strive for complete independence.
The Simon Commission's impact on Indian politics and society was
profound/deep/thoughtful. It highlighted the need for Indians to actively participate in the
process of shaping their country's future and contributed to the eventual attainment of
independence in 1947. The Commission serves as a reminder of the power of collective
action and the importance of maintaining a united front in the face of oppressive colonial
rule.
Communal Award-
The Communal Award was a significant political development in India during the
pre-independence era. It was introduced by the British colonial government under the
leadership of British Prime Minister Ramsay MacDonald in August 1932. The Communal
Award aimed to provide separate electorates and reserved seats for various religious and
minority communities in British India, specifically Hindus, Muslims, Sikhs, Christians,
Anglo-Indians, and Europeans.
The Communal Award was a response to the demands of various religious and
minority groups for separate representation in legislative bodies. This demand was driven by
concerns over adequate political representation and protection of their interests in the face of
a diverse and multi-religious society. However, the Award was met with both support and
opposition.
Supporters of the Communal Award argued that it was a necessary step towards
ensuring fair representation for all communities in the legislative process. They believed that
separate electorates would empower marginalized communities and provide them with a
platform to voice their concerns and needs effectively. On the other hand, opponents,
including Mahatma Gandhi, viewed the Communal Award as a divisive measure that would
perpetuate communal divisions and hinder the development of a united Indian identity.
Gandhi went on a hunger strike to protest against the award, a strike that eventually led to
negotiations and discussions between various leaders.
In the end, a compromise was reached known as the Poona Pact, which modified the
Communal Award to some extent. The Poona Pact ensured reserved seats for the depressed
classes (now known as Scheduled Castes or Dalits) within the general Hindu electorate rather
than creating separate electorates. This compromise was seen as a step towards preserving the
unity of the Indian society while addressing concerns of representation and empowerment for
marginalized groups.
In other words, the Communal Award was a significant episode in India's struggle for
political representation and social justice. While it reflected the complexity of
accommodating diverse interests and identities in a multi-religious society, it also highlighted
the challenges of striking a balance between separate representation and national unity. The
subsequent Poona Pact demonstrated the importance of negotiation and compromise in
shaping the route of Indian politics during its fight for independence from British colonial
rule.
8) Government of India Act 1935-
The Government of India Act, 1935 was a significant piece of legislation that marked
a significant step towards India's constitutional evolution and governance during the colonial
period. This act was passed by the British Parliament and was designed to introduce major
reforms in the administration of British India. It replaced the Government of India Act of
1919 and remained in force until India gained independence in 1947.
Key features of the Government of India Act, 1935:
1. Federal Structure:
The Act proposed a federal structure for India, dividing the country into British India,
which was further divided into provinces, and princely states (Native or Local States (562)).
The federal aspects of the act were, however, never fully implemented due to various
challenges.
2. Provincial Autonomy:
The Act granted increased autonomy to the provinces by introducing "dyarchy" at the
provincial level. This meant that certain subjects were reserved for the Governor's
administration, while others were transferred to elected ministers. However, this dual
administration system led to practical difficulties and political conflicts.
3. Separation of Powers:
The Act attempted to separate the executive from the legislature by introducing
bicameral legislatures at the federal and provincial levels. It created separate legislative
bodies for the central and provincial governments.
4. Franchise and Representation:
The Act introduced limited electoral reforms, expanding the franchise and increasing
the number of eligible voters. It also introduced separate electorates for various religious and
minority communities.
5. Responsible Government:
The Act aimed to establish responsible government in the provinces. It allowed for the
formation of elected ministries, giving local leaders a degree of power and influence in the
administration.

6. Federal Court:
The Act established the Federal Court of India, which was meant to be the highest
court of appeal in the country. It had jurisdiction over disputes between the central
government and provinces, as well as between provinces.
7. Princely States:
While the Act included provisions for the princely states to join the federation, this
aspect was largely unsuccessful, as most princely states chose not to participate.
8. Financial Autonomy:
The Act granted certain financial powers to provincial governments, giving them
more control over their financial affairs.
Despite its ambitious goals, the Government of India Act, 1935 faced numerous
challenges and criticisms. It didn't satisfy the demands of various political groups in India,
leading to continued agitation and political turmoil/confusion. The outbreak of World War II
in 1939 further disrupted the implementation of the Act's provisions.
Overall, the Act served as a stepping stone towards India's eventual independence by
initiating discussions about constitutional reforms and fostering political awareness among
Indians. It set the stage for further negotiations between Indian leaders and the British
government, culminating in the framing of the Indian Constitution in 1950 after India gained
independence in 1947.
Indian Independence Act of 1947-
The Indian Independence Act of 1947, also known as the Mountbatten Plan, was a
landmark legislation passed by the British Parliament that paved/covered the way for the
partition of British India and the creation of two independent nations, India and Pakistan.
Enacted on July 18, 1947, this act marked the end of British colonial rule in India and the
beginning of a new chapter in the region's history.
Key Provisions:
1. Partition of British India:
The act provided for the partition of British India into two separate and sovereign
dominions – India and Pakistan. The partition was based primarily on religious lines, with
India becoming a secular state and Pakistan being established as a homeland for Muslims.
2. Territorial Division:
The territorial division was carried out through a complex process, involving the
demarcation of borders along religious lines. The provinces of Punjab and Bengal were

particularly affected, with both being divided between India and Pakistan. The princely states
were given the choice to accede/agree to either India or Pakistan or to remain independent.
3. Sovereignty and Citizenship:
The act granted full sovereignty to both India and Pakistan, recognizing them as self-
governing dominions within the British Commonwealth. It also provided provisions for
citizenship in both nations, outlining the rights and responsibilities of citizens.
4. Governor-General and Governors:
The act established separate Governor-Generals for India and Pakistan. Lord Louis
Mountbatten served as the last Viceroy of India and became the first Governor-General of
independent India, while Muhammad Ali Jinnah became the Governor-General of Pakistan.
5. Legislative Assemblies and Constituent Assemblies:
The act laid out provisions for the formation of separate legislative assemblies and
constituent assemblies for India and Pakistan. These assemblies were responsible for drafting
and adopting their respective constitutions.
6. Transfer of Power:
The act set a clear timeline for the transfer of power. It declared that the British
Crown's suzerainty over the princely states would cease, allowing them to freely accede to
either India or Pakistan. Additionally, it determined that the act would come into effect on
August 15, 1947.
7. Financial Arrangements:
The act outlined the financial arrangements between India, Pakistan, and the United
Kingdom. It determined the allocation of financial assets, debts, and other financial matters
among the three entities.
Impact and Legacy:
1. Birth of Two Nations:
The Indian Independence Act marked the culmination of decades of struggle for
independence and gave birth to two new nations – India and Pakistan. However, the partition
was accompanied by violence, displacement, and communal riots, leading to significant
loss of life and property.
2. Communal Tensions:
The partition and the violence that accompanied it left deep scars/marks on the
collective memory of both nations. Communal tensions between Hindus, Muslims, and Sikhs
persisted, and the act's legacy continues to shape political and social dynamics in the region.

3. Constitutional Framework:
The act provided the foundation for the constitutional frameworks of both India and
Pakistan. The Constituent Assembly of India adopted the Indian Constitution in 1950, while
Pakistan adopted its own constitution in 1956.
4. Kashmir Issue:
The act's provisions regarding princely states' accession led to the long-standing
Kashmir conflict between India and Pakistan, with both nations claiming the region as their
own.
The Indian Independence Act of 1947 was a significant legislative milestone that
marked the end of British colonial rule in the Indian subcontinent and the emergence of India
and Pakistan as independent nations. While it set the stage for their political trajectories/routs,
it also left behind a legacy of partition-related challenges, communal tensions, and unresolved
territorial disputes that continue to impact the region to this day.
Indian National Congress 1885-

The Indian National Congress, often referred to as the Congress Party or simply
Congress, is a political organization that played a pivotal role in India's struggle for
independence from British colonial rule. It was founded on December 28, 1885, during a time
when India was under British colonial dominion. The founding members of the Congress
aimed to provide a platform for educated Indians to voice their grievances and advocate for
greater representation in governance.
Key Points:
1. Formation and Early Goals:
The Congress was formed at a time when India was undergoing significant socio-
economic and political changes due to British colonial policies. The initial goal of the
Congress was to act as a medium for Indians to communicate their concerns to the British
rulers and work towards obtaining a larger share in the decision-making process.
2. Moderate Phase:
In its early years, the Congress adopted a moderate approach, focusing on
constitutional methods and negotiations with the British authorities. Leaders during this phase
included A.O. Hume, Dadabhai Naoroji, Womesh Chunder Bonnerjee, and Dinshaw Wacha.
The demands centered around increased representation, civil rights, and economic
development.
3. Partition of Bengal:
The Congress played a significant role in opposing the partition of Bengal in 1905,
which was seen as an attempt by the British to divide and rule. The successful protest against
the partition marked a turning point in the Congress's evolution, as it showcased its ability to
mobilize mass support.
4. Extremist/radical Phase:
Around 1907, a more radical faction emerged within the Congress, led by leaders like
Bal Gangadhar Tilak, Bipin Chandra Pal, and Lala Lajpat Rai. This extremist phase
advocated for more direct action and swifter demands for self-governance. The Congress
started adopting a more assertive stance/stand during this period.
5. Non-Cooperation and Civil Disobedience:
By the 1920s, under the leadership of Mahatma Gandhi, the Congress adopted non-
cooperation and civil disobedience as tools of resistance/battle against British rule. The non-
cooperation movement (1920-1922) and the civil disobedience movement (1930-1934) were
prominent instances of mass protests.
6. Role in Independence:
The Congress's persistent efforts, both moderate and radical, gradually eroded the
British colonial grip on India. Its ability to unite diverse communities and mobilize mass
support was pivotal in the fight for independence.
7. Post-Independence Role:
After India gained independence in 1947, the Indian National Congress transformed
from a movement for freedom to a political party. It became the dominant political force in
the country, producing leaders like Jawaharlal Nehru, Indira Gandhi, Rajiv Gandhi, and
more.
8. Challenges and Evolution:
The Congress faced challenges in post-independence years, including issues of
governance, regional diversity, and internal party dynamics. It has seen both successes and
setbacks in various elections and continues to be an influential political entity in Indian
politics.
The Indian National Congress's journey from its foundation in 1885 to India's
independence in 1947 is a testament to the power of unity, determination, and the quest for
self-determination. It remains an important part of India's history, symbolizing the collective
aspirations and struggles of millions of Indians against colonial rule.
Policies of Indian National Congress during 1885–1905-
During the period of 1885–1905, the Indian National Congress (INC) underwent
significant transformations and evolved its policies as it laid the foundation for the Indian
nationalist movement against British colonial rule. This period is often referred to as the early
phase of the Indian nationalist movement, characterized by a mix of moderate and
extremist/revolutionary approaches within the Congress. Here are some key policies and
developments of the INC during this period:
A. Formation and Initial Goals:
The Indian National Congress was founded in 1885 with the aim of providing a
platform for Indians to voice their political demands and grievances against British colonial
policies. Its initial goals were modest and revolved around seeking administrative reforms,
representation in legislative bodies, and greater participation of Indians in the governance
process.
B. Moderate/reasonable Phase (1885–1905):
1. Demand for Reforms:
The early Congress leaders, known as Moderates, aimed to work within the British
colonial framework to achieve gradual reforms. They sought to bring about constitutional
changes to provide Indians with more say in governance and administration.
2. Representation:
One of the key demands of the Moderates was increased Indian representation in
legislative bodies at both central and provincial levels. They aimed to achieve this through
discussions, petitions, and negotiations with British authorities.
3. Civil Rights:
The Moderates advocated for civil liberties, freedom of expression, and equality
before the law for Indians. They were focused on securing fundamental rights within the
existing colonial structure.
C. Education and Social Reform:
Congress leaders like Dadabhai Naoroji emphasized the importance of education and
social reforms as prerequisites for India's progress. They aimed to address issues like
illiteracy, child marriage, and untouchability.
D. Partition of Bengal (1905):
The British decision to partition Bengal in 1905 for administrative reasons sparked
widespread protests across India. The INC played a significant role in opposing the partition

as it was seen as a policy to divide and rule. This event marked a turning point as it united
Indians against the British policy.
D. Rise of Extremism:
1. Swadeshi Movement:
The opposition to the partition of Bengal led to the rise of extremist leaders within
the Congress. Prominent leaders like Bal Gangadhar Tilak advocated for more aggressive
measures, including boycotting British goods and promoting indigenous industries through
the Swadeshi (indigenous) movement.
2. Boycott and Passive Resistance:
Extremist leaders promoted boycotts of British products, institutions, and laws,
encouraging passive resistance against colonial authorities.
3. Use of Mass Mobilization:
The Extremists believed in involving the masses in the nationalist struggle and used
public rallies, processions, and mass gatherings to build momentum/energy/force for the
movement.
E. Shift towards Collaboration:
1. Morley-Minto Reforms (1909):
The British government introduced limited reforms to increase Indian representation
in legislative councils. The Moderates saw this as a positive step and began cooperating with
the British authorities.
2. Partition Reversed:
In 1911, due to growing unrest and pressure, the British government reversed the
partition of Bengal, which was seen as a partial victory for the nationalist movement.
The period of 1885–1905 was marked by a gradual transition/change from moderate
approaches to more assertive and extremist strategies within the Indian National Congress.
The INC evolved from a platform for expressing grievances to a significant force in the
struggle for India's independence. This period laid the groundwork for the more intense
phases of the Indian nationalist movement that followed.

Various Trends of opinion-social reform vs. political independence-
 The tension between social reform and political independence has been a significant
aspect of India's journey since gaining independence in 1947.
 The Indian Constitution, which came into effect on January 26, 1950,
enshrined/protect/preserve the ideals of democracy, social justice, and individual
freedoms.
 These ideals have often intersected with debates around social reform and political
independence. Here's a breakdown of the trends of opinion regarding this matter:
1. Social Reform:
India's social fabric is diverse and deeply entrenched/rooted/fixed in traditional
norms, practices, and inequalities. Many leaders and thinkers believed that achieving true
independence required not only political freedom but also the liberation of oppressed groups
from social inequalities and regressive/returning practices. Key points include:
a. Caste System and Untouchability:
Leaders like B.R. Ambedkar advocated for social reforms to eradicate the caste
system and untouchability. The Constitution incorporated provisions to promote equality and
eliminate discrimination based on caste.
b. Women's Rights:
Social reformers highlighted the importance of gender equality and women's
empowerment. The Constitution guaranteed equal rights to women and prohibited
discrimination on the grounds of gender.
c. Education and Social Upliftment:
Efforts were made to spread education, particularly among marginalized sections of
society, to empower them and break the cycle of poverty.
2. Political Independence:
Political leaders and activists often emphasized the struggle for political independence
as the foremost goal. The focus was on gaining self-governance, asserting India's identity on
the global stage, and addressing immediate political challenges. Key points include:
A. Anti-Colonial Struggle:
The fight against British colonial rule was a unifying/uniting/joining force that
brought together people from various backgrounds, regardless of social
disparities/differences.

b. National Identity and Unity:
The drive for political independence was often seen as a means to establish a united,
sovereign nation that could address its internal issues after achieving self-governance.
c. Economic Development:
Many believed that focusing on political independence was crucial for
steering/directing the nation towards economic development and addressing poverty.
3. Interplay and Evolving Dynamics:
The relationship between social reform and political independence is not strictly
dichotomous. Over time, the interactions between these two trends of opinion have evolved:
a. Post-Independence Reforms:
After gaining independence, the government initiated various social reform measures
to address inequalities and promote social justice.
b. Reservation Policies:
Affirmative action policies, including reservations in education and government jobs,
were introduced to uplift marginalized communities.
c. Complex Challenges:
The complexity of addressing both social and political issues simultaneously became
evident, as social norms and inequalities persisted even after political independence.
d. Balancing Act:
Governments have had to strike a balance between addressing immediate political
challenges and pursuing long-term social reform objectives.
In other words, the Indian Constitution and the pursuit of both social reform and
political independence have been intertwined. While political independence was a crucial
milestone, the journey towards a socially just and equitable society continues. Over time, the
focus has shifted from merely attaining political freedom to realizing the broader goals of
social reform and inclusive development. The challenge lies in maintaining this delicate
balance while navigating India's multifaceted landscape of identities, traditions, and
aspirations.
Protest/objection against British Repression/Suppression:

1) Jalianwala Baag
The Jallianwala Bagh massacre, also known as the Amritsar massacre, is a deeply
tragic and horrifying/depressing/shocking event that took place on April 13, 1919, in the city
of Amritsar, Punjab, India, during the period of British colonial rule. This brutal incident
stands as a stark reminder of the injustices and violence perpetuated by the British authorities
against the Indian population.
On that fateful/historic/significant day, a large crowd of Indians had gathered at
Jallianwala Bagh, a public garden, to protest the repressive/exploitative Rowlatt Act enacted
by the British government. The Act gave sweeping/extensive powers to the colonial
authorities to suppress dissent and arrest individuals without trial. The crowd included men,
women, and children who had come together to peacefully voice their grievances against this
unjust legislation.
The massacre was arranged by Colonel Reginald Dyer, a British officer, who without
any warning or provocation, ordered his troops to open fire on the unarmed and defenseless
crowd trapped within the confined space of Jallianwala Bagh. The firing continued for about
10 minutes, until the soldiers ran out of ammunition. The result was a horrifying display of
violence and bloodshed. Hundreds of people were killed, and thousands were injured.
The massacre sent reactions throughout India and around the world, drawing blame
from various quarters. It stimulated the Indian independence movement and powered a
growing anger against British rule. The incident ignited a renewed fervor for freedom,
leading to increased protests, civil disobedience, and a stronger demand for self-governance.
The Jallianwala Bagh massacre is often seen as a turning point in India's struggle for
independence. It exposed the brutal nature of colonial rule and served as a substance for a
united Indian response against British oppression. The memory of this tragic event remains
deeply deep-seated in the collective awareness of the nation, symbolizing the sacrifices made
by countless individuals in the search of freedom and justice.
In present times, Jallianwala Bagh stands as a memorial and a sincere reminder of the
sacrifices made by those who suffered on that day. The site serves as a place of reflection,
remembrance, and homage to all those who lost their lives during the massacre. The events of
Jallianwala Bagh continue to inspire discussions about human rights, colonialism, and the
importance of remembering history to confirm such killings are never repeated.
2) Rowlett Act
The Rowlett Act, also known as the Indian Criminal Law Amendment Act of 1919,
was a significant piece of legislation enacted during the British colonial rule in India. This act
granted extensive powers to the colonial government to suppress dissent and curb political
activities perceived as threatening to British control. It was named after its author, Sir Sidney
Rowlett, who was then the judge of the Lahore High Court.

Key features and implications of the Rowlett Act
1. Detention without Trial:
One of the most contentious aspects of the Rowlett Act was the provision allowing
the colonial government to detain individuals without trial, potentially for an indefinite
period. This provision was in direct contradiction to principles of justice, such as habeas
corpus, which ensures that a person cannot be held in custody without being charged and
tried in a court of law.
2. Censorship and Suppression of Press:
The Act gave the government authority to censor the press and restrict publications
that were considered seditious or promoting dissent. This was used to control the flow of
information and prevent criticism of the colonial administration.
3. Increased Police Powers:
The Act expanded the powers of the police, granting them the ability to arrest
individuals on suspicion of engaging in activities that were deemed prejudicial to the
maintenance of public order or British rule.
4. Limitations on Civil Liberties:
The Rowlett Act curtailed several civil liberties, such as freedom of speech and
assembly. It enabled the government to clamp down on gatherings, protests, and public
speeches that were perceived as being against British interests.
5. Mass Protests and Opposition:
The passage of the Rowlett Act was met with widespread opposition and public
outcry in India. It sparked mass protests, strikes, and demonstrations, as Indians felt that the
act infringed upon their basic rights and freedoms.
6. Jallianwala Bagh Massacre:
The discontent and anger generated by the Rowlett Act culminated in the tragic
Jallianwala Bagh massacre on April 13, 1919, in Amritsar. British troops under the command
of General Reginald Dyer opened fire on a peaceful gathering of protesters, leading to a large
number of casualties.
7. Contribution to Indian Independence Movement:
The Rowlett Act played a significant role in galvanizing the Indian independence
movement. It united diverse groups and individuals against British colonial rule and
intensified demands for self-governance and civil liberties.

8. Repeal and Legacy:
The act was repealed in 1922, following sustained protests and pressure from Indian
leaders and activists. Its legacy, however, continued to influence India's political landscape,
fostering a sense of collective resistance and determination to achieve independence.
In other words, the Rowlett Act of 1919 was a repressive piece of legislation that
intensified opposition to British rule in India. It demonstrated the power of colonial
governments to enact laws that curtailed fundamental rights and ignited a significant chapter
in India's struggle for independence.
3) Sedition Trials of Tilak

The sedition trials of Bal Gangadhar Tilak stand as a significant chapter in India's
struggle for freedom from British colonial rule. These trials not only highlighted the
determination and courage of one of India's foremost freedom fighters but also highlighted
the colonial government's strategy to suppress dissent and muzzle/hotest voices of opposition.
Overview:
Bal Gangadhar Tilak, a prominent Indian nationalist leader and a key figure in the
Indian independence movement, was charged with sedition by the British colonial authorities
on multiple occasions. The most notable/famous among these trials were the ones held in
1897 and 1908.
1. 1897 Trial:
The first sedition trial of Tilak took place in 1897. He was charged with inciting
violence and promoting disaffection against the colonial government through his writings and
speeches. Tilak's arrest was linked to his association with the Pune-based newspaper "Kesari"
and his support for the Pune plague epidemic protests. He famously defended himself with
the statement "Swaraj is my birthright and I shall have it." Though he was sentenced to 18
months of imprisonment, his trial and subsequent imprisonment only served to strengthen his
resolve and make him a symbol of resistance/fight.
2. 1908 Trial:
The sedition trial of 1908 is perhaps the most well-known of Tilak's legal battles. He
faced charges for his alleged involvement in the revolutionary movement and his alleged role
in the incitement of violence during the Swadeshi movement. During this trial, the
prosecution highlighted his writings in the newspaper "Kesari" as evidence of promoting
seditious activities. Tilak was eventually convicted and sentenced to six years of
imprisonment. His arrest and trial were met with widespread protests and demonstrations
across the country.
Impact and Legacy:
The sedition trials of Tilak had a profound impact on India's struggle for
independence:
1. Inspiration for the Masses:
Tilak's courage and unyielding spirit during the trials inspired countless Indians to
join the freedom movement. His disobedient attitude and powerful speeches resonated with
people across the nation.
2. Media and Free Expression:
The trials drew attention to the colonial government's attempts to curb the freedom of
the press and expression. It highlighted the importance of a free press in promoting
democratic values and voicing dissent against oppressive governments.
3. Unity and Solidarity:
The trials stimulated various sections of Indian society to unite against British rule.
Leaders from different regions and backgrounds came together to protest against the unjust
treatment of Tilak.
4. Shift in Strategies:
The colonial government's tactics of using sedition laws to suppress nationalist
movements came under scrutiny. It prompted Indian leaders to strategize and evolve their
methods of protest and resistance.
In conclusion, the sedition trials of Bal Gangadhar Tilak are emblematic of the
resilience and determination of the Indian people in their fight for independence. Tilak's
unwavering commitment to his principles and his willingness to endure imprisonment for the
cause of a free India remain an inspiration to generations of Indians who continue to value
and uphold the principles of democracy, free expression, and self-determination.
******************
Important Questions:
1) What is the significance of the Cabinet Mission Plan in the development of the Indian
Constitution?
2) How did the Partition of India in 1947 affect the constitutional development of both India
and Pakistan?

3) What role did Mahatma Gandhi play in the constitutional development of India, and how
did his ideas influence the process?

CHAPTER- 2
MAKING OF INDIA’S CONSTITUTION
Synopsis
 Making of India’s Constitution  Constituent Assembly
 Concept of Constitution and  Sovereignty
Constitutionalism  Preamble Status and its goals
 Salient features
-----------------------
Demand for Constituent Assembly
 It was in 1934 that the idea of a Constituent Assembly for India was put forward for
the first time by M.N. Roy, a pioneer of communist movement in India.
 In 1935, the Indian National Congress (INC), for the first time, officially demanded a
Constituent Assembly to frame the Constitution of India.
 In 1938, Jawaharlal Nehru, on behalf the INC declared that ‘the constitution of free
India must be framed, without outside interference, by a Constituent Assembly
elected on the basis of adult franchise’.
 The demand was finally accepted in principle by the British Government in what is
known as the ‘August Offer’ of 1940.
 In 1942, Sir Stafford Cripps, a member of the cabinet, came to India with a draft
proposal of the British Government on the framing of an independent Constitution to
be adopted after the World War- II.
 The Cripps Proposals were rejected by the Muslim League which wanted India to
be divided into two autonomous states with two separate Constituent Assemblies.
 Finally, a Cabinet Mission was sent to India.
Composition of the Constituent Assembly-
 The Constituent Assembly was constituted in November 1946 under the scheme
formulated by the Cabinet Mission Plan.
 The features of the scheme were:
1) The total strength of the Constituent Assembly was to be 389, of these, 296
seats were to be allotted to British India and 93 seats to the princely States.
2) Out of 296 seats allotted to the British India, 292 members were to be drawn
from the eleven governor’s provinces and four from the four chief
commissioners provinces, one from each.

3) Each province and princely state were to be allotted seats in proportion to their
respective population. Roughly, one seat was to be allotted for every million
population.
4) Seats allocated to each British province were to be divided among the three
principal communities- Muslim, Sikhs and general.
5) The representatives of each community were to be elected by members of that
community in the provincial legislative assembly and voting was to be by the
method of proportional representation by means of single transferable vote.
6) The representatives of princely states were to be nominated by the heads of the
princely states.
It is thus that the Constituent Assembly was to be a partly elected and
partly nominated body.
Working of the Constituent Assembly
1) The Constituent Assembly was organized, open, and consensual/consent/related in its
work.
2) To begin, several fundamental ideas were determined upon and agreed upon. Then,
under the chairmanship of Dr. B.R. Ambedkar, a Drafting Committee drafted a draught
constitution for debate.
3) The Draft Constitution was thoroughly debated in several rounds, Clause by Clause. There
were around 2,000 modifications considered.
4) Over the course of three years, the members deliberated for 114 days. Every document
submitted in the constituent Assembly, as well as every word was spoken, has been
documented and preserved. The debates are known as 'Constituent Assembly Debates.'
5) These arguments are printed in 12 thick volumes! Every provision of the constitution is
justified through these debates. These are used to interpret the Constitution's meaning.
Working of the Constituent Assembly – Timeline

1) 09 December 1946: President Rajendra Prasad, Vice-Chairman Harendra Coomar
Mookerjee, and Constitutional Legal Adviser B.N Rau are appointed to the
Constituent Assembly.
2) On December 13, 1946, Jawaharlal Nehru submitted an "Objective Resolution"
laying forth the core principles of the constitution, which ultimately became the
Preamble.

3) The objective resolution was unanimously/consistently adopted on January 22,
1947.
4) Adoption of the National Flag on July 22, 1947.
5) Independence was declared on August 15, 1947.
6) Dr. B. R. Ambedkar is named Chairman of the Drafting Committee on August 29,
1947.
7) V. T. Krishnamachari was elected as the second vice-president of the Constituent
Assembly on July 16, 1948, alongside Harendra Coomar Mookerjee.
8) The assembly passes and adopts the 'Constitution of India' on November 26, 1949.
9) The Constituent Assembly has its final meeting on January 24, 1950. Everyone
signed and accepted the 'Constitution of India' (which has 395 articles, 8 schedules,
and 22 parts).
10) 26 January 1950: The 'Constitution of India' was signed into law after 2 years, 11
months, and 18 days of work.
Other functions of the Constituent Assembly-

In addition to the making of the Constitution and enacting of ordinary laws, the
Constituent Assembly also performed the following functions, namely-
1) It ratified the India’s membership of the Commonwealth in May, 1949.
2) It adopted the national flag on July 22, 1947.
3) It adopted the national anthem on January 24, 1950.
4) It adopted the national song on January, 24, 1950.
5) It elected Dr. Rajendra Prasad as the first President of India on January, 24,
1950.
Committees of the Constituent Assembly
The Constituent Assembly appointed a number of committees to deal with different
tasks of constitution-making. Out of these, eight were major committees and other minor
committees. The name of these committees and their chairman are given below.
Major Committees-
1) Union Power Committee- Jawaharlal Nehru
2) Union Constituent Committee- Jawaharlal Nehru
3) Provincial Constitution Committee- Sardar Patel
4) Drafting Committee- DR. B.R. Ambedkar

5) Advisory Committee on Fundamental Rights, Minorities and Tribal and
Excluded Areas- Sardar Patel. This committee had the following five sub-
committees;
a) Fundamental rights Sub-Committee- J.B. Kripalani
b) Minorities Sub-Committee- H.C. Mukherjee
c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded
areas Sub-Committee- Gopinath Bardoloi.
d) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-
Committee- A.V. Thakkar.
e) North-West Frontier Tribal Areas Sub-Committees- * (The Provincial
Parliament ceased to exist on April, 17, 1952.)
6) Rules of Procedure Committee- Dr. Rajendra Prasad
7) States Committees (Committee for Negotiating with States)- Jawaharlal Nehru
8) Steering Committee- Dr. Rajendra Prasad.
Enactment of the Constitution-

Dr. B.R. Ambedkar introduced the final draft of the Constitution in the Assembly on
4th November, 1946. The Assembly had a general discussion on it for five days (till 9th
November, 1946).
The Second reading started on 15th November 1946 and ended on 17th October,
1949. During this stage, as many as 7653 amendments were proposed and 2473 were actually
discussed in the Assembly.
The third reading of the draft started on 14th, November 1949. Dr. Ambedkar
moved a motion- ‘the Constitution as settled by the Assembly be passed’. The motion on
draft Constitution was declared as passed on 26th November, 1949, and received the
signatures of the members and president. Out of a 299 members of the Assembly, only
284 were actually present on that day and signed the Constitution. This is also the date
mentioned in the Preamble as the date on which the people of India in the Constituent
Assembly adopted, enacted and gave to themselves this constitution.
The Constitution as adopted on 26th November, 1949, contained a Preamble, 395
Articles, 8 Schedules and 22 Parts.
Dr. B.R. Ambedkar recognised as the ‘father of the Constitution of India’. This
brilliant writer, constitutional expert, undisrupted leader of the Scheduled Castes and the
‘Chief architect of the Constitution of India’ is also known as a ‘Modern Manu’.
Criticism of the Constituent Assembly-
The criteria have criticized the Constituent Assembly on various grounds. These are
as follows:
1) Not a Representative Body-
The critics have argued that the Constituent Assembly was not a representative
body as its members were not directly elected by the people of India on the basis of
universal adult franchise.
2) Not a Sovereign Body-
The critics maintained that the Constituent Assembly was not a sovereign
body as it was created by the proposals of the British government. Further, they said
that the Assembly held its sessions with the permission of the British Government.
3) Timing Consuming-
According to the critics, the Constituent Assembly took unduly long time to
make the constitution. They stated that the framers of the American Constitution took
only four months to complete their work. In this context, Naziruddin Ahmed, a
member of the Constituent Assembly, coined a new name for the Drafting committee
to show his contempt for it. He called it a “Drifting Committee”.
4) Dominated by Congress-
The critics charged that the Constituent Assembly was dominated by the
Congress party. Granville Austin, a British Constitutional expert, remarked: ‘the
Constituent Assembly was a one-party body in an essentially one-party country. The
Assembly was the congress and the Congress was the India”.
5) Lawyers-Politician Domination-
It is also maintained by the critics that the Constituent Assembly was
dominated by lawyers and politicians. They pointed out that other sections of the
society were not sufficiently represented. This, to them, is the main reason for the
bulkiness and complicated language of the Constitution.
6) Dominated by Hindus-
According to some critics, the Constituent Assembly was a Hindu dominated
body. Lord Viscount Simon called it ‘a body of Hindus’. Similarly, Winston
Churchill Commented that the Constituent Assembly represented ‘only one major
community in India’.

Concept of Constitution and Constitutionalism
Constitution: Every state has a constitution that is best suited to the people's
temperament and brilliance. The term constitution is derived from the Latin word
‘constitutio’, which refers to rules and regulations such as imperial enactments
(constitutiones principis: edicta, mandata, decreta, rescripta).
A Constitution is referred to as the state's governing wheel because without it, the
administration of the state would be anarchic.
Thomas Paine rightly remarks, “Government without a Constitution is a power
without a right.” As a result, a contemporary state cannot be imagined without a
Constitution, whether written or unwritten.
The term “constitution” like many other concepts in political science, has been
defined differently by different scholars based on their differing views on what a Constitution
should be.
Aristotle defines a constitution as “the way of life the state has chosen for itself”.
Though this description does not provide a clear understanding of what the constitution is, it
does convey a way of life through the use of a few terms.
According to C.F. Strong- “A constitution may be said to be the collection of
principles according to which the powers of the government, the rights of the governed and
the relation between the two are adjusted.”
Moreover, Strong’s definition is defect less one. In a simple way, the term
"constitution" refers to the written and unwritten norms that govern state administration.”
Classification of constitution:
Different types of constitutions have existed in different places of the world
throughout the history of constitutional evolution. As a result, constitutions can be
categorized in a variety of ways: -
1) Written and unwritten constitution:
Constitutions can be written or unwritten in the sense that they exist in a
documentary form or do not. They should be referred to as 'enacted' and 'developed.'
Only three countries have unwritten constitutions: The United Kingdom, Israel, and New
Zealand. All other states or nations, with the exception of these three, have written
constitutions.

2) Flexible and Rigid Constitutions:
Flexible Constitution:
 Also known as an "unwritten" or "unentrenched" constitution.
 In a flexible constitution, the constitution is not contained in a single, formal, written
document. Instead, it is derived from a combination of statutes, common law,
conventions, and historical documents.
 Amendments to a flexible constitution can typically be made through ordinary
legislative processes. There are no special procedures or requirements for changing
the constitution.
 The United Kingdom is often cited as an example of a country with a flexible
constitution. The UK's constitution is not codified in a single document but rather
consists of various statutes, conventions, and legal principles. Parliament can amend
the constitution through regular legislative procedures.
Rigid Constitution:
 Also known as an "entrenched" or "written" constitution.
 In a rigid constitution, the fundamental laws and principles are codified in a formal,
written document that is separate from ordinary legislation.
 Amending a rigid constitution is typically a more complex and rigorous process
compared to amending ordinary laws. Special procedures and requirements are often
outlined for constitutional amendments. These may include a supermajority vote, a
national referendum, or a convention specifically convened for constitutional changes.
 The United States is a classic example of a country with a rigid constitution.
Changing the U.S. Constitution requires a proposal by a two-thirds majority in both
houses of Congress or by a national constitutional convention. Ratification by three-
fourths of the states is then necessary to adopt the amendment.
3) Unitary and Federal Constitutions:
Unitary and federal constitutions are two different forms of government structures
that define the distribution of powers and responsibilities between the central government and
regional or state governments within a country.

Unitary Constitution:
1. Centralized Power:
In a unitary constitution, the central or national government holds most, if not all, of
the governing authority. It is the ultimate source of power and can delegate authority to
regional or local governments as it sees fit.
2. Uniform Laws:
Laws and policies are typically uniform across the entire country, and regional or
local governments have limited autonomy in making laws or decisions that deviate from the
central government's directives.
3. Limited Regional Autonomy:
Regional or local governments exist primarily to implement and enforce policies set
by the central government. Their powers and responsibilities are usually outlined in the
constitution and can be changed by the central government.
4. Examples:
Examples of countries with unitary constitutions include the United Kingdom, Japan,
and France.
Federal Constitution:
1. Division of Powers:
In a federal constitution, power is divided between a central or national government
and regional or state governments. Both levels of government have their own separate
spheres of authority, and they often have their own constitution.
2. Autonomous Regions:
Regional or state governments within a federal system have a significant degree of
autonomy. They have the power to make and enforce their own laws, collect taxes, and
manage certain policy areas, such as education and transportation.
3. Constitutional Protections:
Federal constitutions typically outline the division of powers between the central and
regional governments and provide constitutional safeguards for these arrangements.
Changing these arrangements often requires a more complex process, such as constitutional
amendments.
4. Examples:
Examples of countries with federal constitutions include the United States, Canada,
and Germany. In these countries, states or provinces have significant authority and can make
their own laws within their areas of jurisdiction.
4) Parliamentary and Presidential constitution:
Parliamentary and presidential systems are two common forms of government
structures that countries adopt to govern themselves. These systems have distinct features and
characteristics that influence the separation of powers, the functioning of the executive,
legislative, and judicial branches, and the overall governance of a nation.
Presidential System:
1. Executive Branch:
In a presidential system, there is a clear separation of powers between the executive
and legislative branches. The head of state and head of government are typically the same
person, the president, who is elected separately from the legislature.
2. Election of the President:
Presidents are usually elected for a fixed term (e.g., five years) through a direct or
indirect election process. The president's term is often fixed, and they cannot be removed
from office by a vote of no confidence from the legislature.
3. Role of the Legislature:
The legislative branch, which is typically a separate body (e.g., Congress in the
United States), has its own authority and is independent of the executive. It is responsible for
making laws, and its members are elected separately from the president.
4. Checks and Balances:
The system relies on a system of checks and balances, where the executive,
legislative, and judicial branches have their own powers and responsibilities, serving as
checks on one another's authority.
5. Cabinet:
The president appoints a cabinet of ministers or secretaries to oversee various
government departments. These cabinet members are not typically members of the
legislature.
6. Stability:
Presidential systems tend to provide stability in government, as the president's fixed
term reduces the risk of frequent changes in leadership.

Parliamentary System:
1. Executive Branch:
In a parliamentary system, the executive branch (the government) is intertwined with
the legislative branch (p
arliament). The head of government is usually the leader of the majority party in parliament.
2. Election of the Prime Minister:
The prime minister, who is the head of government, is typically not directly elected by
the people. Instead, they are elected as a Member of Parliament (MP) and are appointed as
the head of government by the parliament.
3. Role of the Legislature:
The parliament plays a crucial role in the selection and removal of the executive. It
can hold a vote of no confidence to remove the prime minister and call for early elections.
4. Checks and Balances:
Parliamentary systems rely on a different set of checks and balances, with the
executive and legislative branches being closely connected. The executive is accountable to
the legislature, and the legislature can influence government policy and decision-making.
5. Cabinet:
In a parliamentary system, cabinet members are typically drawn from the majority
party in parliament. They are both legislators and members of the executive.
6. Flexibility:
Parliamentary systems can provide more flexibility in responding to changing
political situations, as the executive can change relatively quickly through votes of no
confidence.
Classification of constitutionalism:
Constitutionalism is a concept that encompasses/covers various principles and
ideologies related to the governance and structure of a state or organization. It is often used to
describe the idea that a government should be limited in its powers, and that there should be a
framework, typically a constitution, that outlines the fundamental laws and principles by
which the government and its citizens are governed. Constitutionalism can take on different
forms and classifications, including:
1. Liberal Constitutionalism:
 Emphasizes individual rights and liberties.
 Seeks to limit government power to protect individual freedoms.

 Often associated with democratic systems and the rule of law.
2. Conservative/traditional Constitutionalism:
 Values tradition and the preservation of established institutions.
 Emphasizes stability and gradual change.
 Often skeptical/doubtful of rapid constitutional reforms.
3. Progressive or Social Constitutionalism:
 Focuses on social justice and equality.
 Advocates for constitutional provisions to address economic and social
disparities/differencess.
 May promote affirmative action, welfare policies, and other measures to promote
equity.
4. Authoritarian Constitutionalism:
 Characterized by a constitution that appears to uphold rights but is often used to
legitimize authoritarian rule.
 Typically lacks genuine checks and balances.
 Often associated with regimes/government that use legal frameworks to maintain
control.
5. Federal Constitutionalism:
 Involves a system of government where power is divided between a central (national)
government and subnational entities (states, provinces, regions).
 Ensures a distribution of powers and responsibilities between different levels of
government.
6. Unitary Constitutionalism:
 Centralizes power in a single national government with limited autonomy for
subnational entities.
 Common in centralized states like France and the United Kingdom.
7. Parliamentary Constitutionalism:
 Emphasizes the role of a parliament as the supreme authority.
 Often found in constitutional monarchies/realms/kingdom where a parliamentary
system exists.
8. Presidential Constitutionalism:
 Features a strong executive branch separate from the legislative branch.
 Common in presidential republics like the United States.

9. Monarchical Constitutionalism:
 Combines a hereditary monarchy with constitutional principles and limitations.
 Examples include constitutional monarchies like the United Kingdom and Japan.
10. Supranational Constitutionalism:
 Involves the establishment of constitutional principles and institutions at the
supranational level, often in regional organizations like the European Union.
11. Customary Constitutionalism:
 Relies on unwritten or customary rules and practices rather than a formal written
constitution.
 Common in some indigenous or tribal societies.
Constitution vs. Constitutionalism:
The terms constitution and constitutionalism are synonymous, but the latter
encompasses much more than merely adherence to and execution of the national constitution.
Constitution Constitutionalism
A constitution is a set of fundamental Constitutionalism refers to adherence to a
principles by which a nation or state is constitutional governance system.
governed.
Written document Soul/ philosophy of the constitution-
unwritten.
Constitution mainly refers to legal document Constitutionalism rendered to ideology to
which set forth rules to maintain the rights establish institutions and beliefs to save the
and obligations for its government and its people from arbitrary use of power.
people.
The basic purpose of a constitution is to Constitutionalism serves as a checking for
successfully apply the rules. the attainment of that goal.
Constitution refers to a specific noun. Constitutionalism refers to a wide concept.
Deals with the structure of the government, Deals with limiting the powers of the state
political processes, and rights of the citizens. and protecting individual rights.

Salient features-
The Constitution of India is one of the world's most extensive and detailed
constitutions. It was adopted on January 26, 1950, and has been amended several times since
then to reflect the evolving needs and aspirations of the Indian people. Here are some of the
salient features of the Constitution of India:
1. Lengthy Preamble: The Constitution begins with a preamble that outlines the objectives
and goals of the Indian state, emphasizing justice, liberty, equality, and fraternity.
2. Federal System with Unitary Features: India has a federal system of government where
powers are divided between the central government and the states. However, during
emergencies, the Constitution allows for a temporary shift towards a unitary form of
government.
3. Parliamentary Democracy: India follows the parliamentary system of government, where

the executive branch is drawn from the legislature, and the Prime Minister is the head of
government.
4. Written Constitution: The Indian Constitution is a written document, which means that it
is a formal, codified constitution that can be referred to as a single legal document.
5. Secular State: India is a secular state, which means that the government does not endorse
any particular religion and ensures religious freedom to all its citizens.
6. Fundamental Rights: The Constitution guarantees fundamental rights to its citizens,

including the right to equality, freedom of speech and expression, right to religion, and
protection against discrimination.
7. Directive Principles of State Policy: These principles provide guidelines for the
government to promote social and economic justice and the welfare of the people, although
they are not legally enforceable.
8. Single Citizenship: Unlike some federal systems, India has only single citizenship, which
is granted by the central government.
9. Bicameral Legislature: India has a bicameral parliament consisting of the Rajya Sabha
(Council of States) and the Lok Sabha (House of the People).

10. Independent Judiciary: The judiciary in India is independent of the executive and
legislative branches, ensuring the protection of citizens' rights and the enforcement of the
Constitution.
11. Election Commission: A constitutional body, the Election Commission of India, is

responsible for the conduct of free and fair elections in the country.
12. Amendment Procedure: The Constitution provides for its own amendment, which
requires a special majority in Parliament or a majority of states' approval, depending on the
nature of the amendment.
13. Scheduled Castes and Scheduled Tribes: Special provisions are made for the welfare
and upliftment of historically marginalized communities through affirmative action.
14. Emergency Provisions: The Constitution has provisions for three types of emergencies -
national, state, and financial emergencies - allowing for temporary central control in times of
crisis.
15. Fundamental Duties: The Constitution also outlines fundamental duties of citizens to
promote harmony and the spirit of common brotherhood among all the people of India.
16. Panchayati Raj Institutions: The Constitution includes provisions for the establishment
of local self-government institutions, known as Panchayati Raj institutions, to promote
grassroots democracy.
17. Fundamental Freedoms: These include freedom of speech and expression, freedom of
assembly, freedom to form associations, and freedom to move freely throughout the territory
of India.
18. Protection of Cultural and Educational Rights: The Constitution recognizes the
diverse cultural and educational rights of different linguistic and religious minorities.
19. Special Autonomy for States: Some states, particularly in northeastern India and Jammu
and Kashmir, enjoy special autonomy under the Constitution.
20. Social Justice: The Constitution enshrines principles of social justice and aims to
eliminate discrimination based on caste, religion, gender, or place of birth.

PREAMBLE STATUS AND ITS GOALS-
The Preamble of the Constitution of India is a brief introductory statement that

outlines the fundamental values, objectives, and aspirations of the Indian Constitution. It
serves as the guiding spirit and a key to understanding the purpose of the Constitution. The
history of the Preamble of the Constitution of India is a story of deliberation, debate, and
evolution.
Constituent Assembly: The process of drafting the Indian Constitution began in 1947 when
the Constituent Assembly was formed. Dr. B.R. Ambedkar was appointed as the Chairman of
the Drafting Committee, which was tasked with preparing the first draft of the Constitution.
Objective Resolution: On December 13, 1946, Jawaharlal Nehru, the first Prime Minister of
India, moved the "Objective Resolution" in the Constituent Assembly. This resolution
outlined the fundamental principles that should guide the Constitution's drafting. It laid the
foundation for the Preamble.
Drafting and Debates: The Drafting Committee, headed by Dr. Ambedkar, worked on the
Preamble and various provisions of the Constitution. There were extensive debates and
discussions on the wording and content of the Preamble. Several members of the Constituent
Assembly contributed to shaping its final form.
Adoption: The final version of the Preamble was adopted on January 22, 1947. It was
debated and modified before being incorporated into the Constitution.
The Preamble of the Indian Constitution originally began with the words, "We, the
people of India, having solemnly resolved to constitute India into a Sovereign Democratic
Republic..." This opening statement reflected the democratic ideals and aspirations of the
Indian people.
Over the years, there have been some amendments to the Preamble:
In 1976, during the period of the Emergency, the 42nd Amendment Act added three
new words - "Socialist," "Secular," and "Integrity" - to the Preamble. So, the Preamble now
begins with, "We, the people of India, having solemnly resolved to constitute India into a
Sovereign Socialist Secular Democratic Republic..."

However, the 44th Amendment Act, passed in 1978, removed the word "Socialist"
and "Secular" was retained.
Today, the Preamble reads, "We, the people of India, having solemnly resolved to
constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all
its citizens: Justice, Liberty, Equality, and Fraternity..."
The Preamble serves as a guidepost for the Constitution and reflects the principles and
values that the framers of the Constitution deemed essential for the governance and welfare
of the Indian people. It has played a crucial role in interpreting the Constitution and shaping
the development of Indian jurisprudence.
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 Statement of its objectives
o Nature of Indian State 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: It means 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: It 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: It means 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: It 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: It 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:
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.
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 discrimination. Everyone is equal before the law.
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.
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 cannot be taken from each other.
1) Liberty cannot be divorced from equality; equality cannot be divorced from
liberty. Nor can liberty and equality be divorced from fraternity.
2) Without equality, liberty would produce the supremacy of the few over the
many.
3) Equality without liberty would kill individual initiative.
4) Without fraternity, liberty would produce the supremacy of the few over
the many.
5) 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.

1) Berubari Case:
It was used as a reference under Article 143(1)1 of the Constitution which was on
the implementation of the Indo-Pakistan Agreement related to the Berubari Union and in
exchanging the enclaves/areas/reserve 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 cannot be considered as part of the Constitution.
Therefore it is not enforceable in a court of law.
2) 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.
3) In the 1995 case of Union Government v. 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 cannot be amended.
o As of now, the preamble is only amended once through the 42nd Amendment Act,
1976.
1
Article 143 of the Constitution authorises the president to seek the opinion of the Supreme court in the two
categories of matters: On any question of law or fact of public importance which has arisen or which is likely to
arise.

 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’.
**********
Important Questions;
1) How did the Preamble of the Indian Constitution come into being, and what is its
significance in shaping the country's identity and values?
2) How was the Constitution of India adopted and enacted?
3) What were the sources of inspiration for the framers of the Indian Constitution, and how
did they draw from various constitutional models around the world?

CHAPTER- 3
CONCEPT OF STATE AND LAW
(Articles 12 & 13)
Part- III of the Constitution is said to contain the Bill of Rights for the people of
India. The rights secured are the necessary consequence of the declaration contained in the
Preamble to the Constitution, wherein the people of India solemnly resolved, to constitute
India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to themselves
justice, liberty, equality and fraternity. They have been said to be the very foundation and the
corner-stone of the democratic way of life ushered/accompanied in this country by the
Constitution. These rights have been declared as sacrosanct/reserved, inalienable and
indivisible. The minorities regard these rights as the bedrock of their political existence,
while the majority consider them as guarantee for their way of life.
A significant feature of the Indian Bill of Rights is that the remedy for the
enforcement of the fundamental rights is itself declared a fundamental right and is included in
the very chapter on fundamental rights. An act of the State, whether legislate or executive, if
inconsistent with a fundamental right, is declared to be null and void under Article 13. The
nullity of such an act does not rest upon judicial pronouncement, but upon the express
provision contained in Article 13.
Purpose of Article 12 and Article 13:

In enacting fundamental rights in Part-III of our Constitution, the founding fathers
showed that they had the will, and they were ready to adopt the means to confer legally
enforceable fundamental rights.
First, against whom were the fundamental rights to be enforced? Broadly speaking,
against “the State”, not as ordinary understood but as widely defined by Art. 12.2
Secondly, against what activity were fundamental rights enforceable? They were
enforceable against laws and executive actions, which violated fundamental rights.
2
Seervai H.M., CONSTITUTIONAL LAW OF INDIA, 4th Edition, vol. 1, p 349.

Article 12 of The Constitution of India:
Article 12 is the first Article in Part III of the Constitution of India. It 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.”
Article 12 gives an extended significance to the term ‘state’. Art 12 clarifies that the
term ‘state’ occurring in Art. 13(2), or any other provision concerning Fundamental Rights,
have an expansive meaning.
According to Art. 12, the term ‘state’ includes –
1) The Government and Parliament of India;
2) The Government and the Legislature of a State;
3) All local authorities; and
4) Other authorities within the territory of India, or under the control of the Central
Government.
It has been pointed out at the outset that the device of guaranteeing fundamental rights
by a Bill of Rights in a written Constitution was to protect the individual from
governmental aggression/violence and not from aggression by another individual, for
which remedies under ordinary law were sufficient. It was to bind the state itself, the makers
of laws, that fundamental rights have their origin.
Scope of Article 12:
The definition of Article 12 is only for the purpose of application of the provisions
contained in Part III. It cannot be used to interpret any provision outside Part III.
Definition of State:
Initially, the definition of State was treated as exhaustive and confined to the
authorities. The next stage was reached when the definition of “State” came to be under stood
with reference to remedies available against it. Thus a statutory corporation, with regulations
framed by such corporation pursuant to statutory powers was considered a State, and public
duty was limited to those which were created by statute.3
Thus, the definition of ‘State’ in Art. 12 will include not only the Executive and
Legislative4 organs of the Union and the States, but also local bodies (such as municipal
3
Pradeep Kumar Biswasv. Indian Institute of Chemical Biology, (2002) SCC 5 111, 124 (para 11)
4
Kochunni v. State of Madras, AIR 1959 SC 725.

authorities) as well as ‘other authorities’,5 which include the ‘instrumentalities and agencies’
of the State, or bodies or institutions which discharge public functions of a governmental
character,6 or in other words, it comprises all acts which can be brought within the fold of
‘State action.’7
Definition of Authority:
Literally ‘authority’ means a ‘person’ or a ‘body’ exercising power, or having a legal
right to command and be obeyed.
In Art. 12 “State” has not been defined. It is merely an inclusive definition. It includes
all the authorities within the territory of India or under the control of the Government of
India.
The word “or” is disjunction and not conjunctive. The expression “authority” has a
definite connotation. It has different dimensions and, thus, must receive a liberal
interpretation.
The term is wide enough to include all bodies created by the statute on which powers
are conferred to carry out governmental or quasi- governmental functions.8 The word
‘authority’ includes Central and State government.9
Definition of Local authorities:-
The expression “local authorities’ refers to authorities like municipalities, district
boards, panchayats, improvement trusts, port trusts, mining settlement boards, etc., Rashid
Ahmed v. M.B. Kairana,195010 is one of the earliest instances where a municipal board was
held to be a local authority under Article 12.
Other Authorities included under Article 12:

Laying down the propositions in Electricity Board, Rajasthan v. Mohan Lal case, the
Supreme Court held that ‘other authorities’ would include all authorities created by the
Constitution or statute on which powers are conferred by law. It was not necessary that the
statutory authority should be engaged in performing government or sovereign functions. In
5
Basheshar v. I.T. Commr., AIR 1959 SC 149 (158).
6
Ramana v. I.A.A.I., AIR 1979 SC 1628
7
Som Prakash v. UOI, AIR 1981 SC 212
8
Rajasthan State Electricity Board v. Mohan Lal, AIR 1967 SC 1857.
9
Mohd. Anwar Allai v. State of J. & K., AIR 1967 J. & K. 32.
10
Rashid Ahmed v. M.B. KairanaAIR 1950 SC 163

support the court cited, Articles 19(1) (g) and 298 which contemplate engagement of the
State in trade or business and Article 46 which requires the State to promote educational
and economic interests of the weaker sections of the people.
In these cases ‘other authorities’ would cover bodies created for the purpose of
performing commercial activities or for promoting the educational and economic interests of
the weaker sections of the people. The court also noted that in the instant case the Rajasthan
Electricity Board had power to give directions, the disobedience of which was punishable as
an offence. This decision in effect overruled earlier decisions holding ‘university’ not to be
“the State” within the meaning of Article 12. Accordingly, the universities have been later
held to be “the State”.11
List of ‘other authorities’ coming under Art. 12:

There is no common feature running through the various bodies, which have been
held to be covered by the expression ‘other authorities’.
The expression refers to –
1) Instrumentalities or agencies of the Government and Government Departments. But
every instrumentality of Government is not necessarily a ‘Governmental Department’.
2) Every type of public authority, exercising statutory powers, whether such powers are
governmental or quasi-governmental or non-governmental, and whether such
authority is under the control of government or not, and even though it may be
engaged in carrying out some activities in nature of trade or commerce, e.g., A board,
a University, the Chief Justice of High Court, having the power to issue rules, bye-
laws or regulations having the force of law or the power to make statutory
appointments; a public corporation, a government undertaking.
3) An authority set under a statute for the purpose of administering a law enacted by the
legislature, including those vested with a duty to make decisions in order to
implement them.
4) A private body or a company,
5) Society registered under the Societies Registration Act.
6) Corporation set up under the State Financial Corporation Act, 1951.
But a non-statutory body, exercising no statutory powers is not a ‘State’.
11
Umesh v. V.N. Singh, AIR 1968 Pat 3

Even a private body or a corporation or an aided private school may however, be
included within the definition of ‘State’ if it acts as an ‘agency’ of the Government.
In determining whether a corporation or a Government company or a private body is
an instrumentality or an agency of the state, the following tests would be applicable:
1) Whether the entire share capital is held by the government.
2) Whether the corporation enjoys the monopoly status conferred by the State.
3) Whether the functions of the corporation are the governmental functions or functions
closely related thereto which are basically the responsibilities of a Welfare State.
4) If the department of the Government has been transferred to the corporation.
5) Volume of financial assistance received from the State.
6) The quantum/important of State control.
7) Whether any statutory duties are imposed upon the corporation.
8) The character of the corporation may change with respect to its different functions.
Status of a Quasi-Judicial Body:
If a quasi-judicial body acts under an ultra-vires law or outside its jurisdiction or
ignores mandatory rules and procedures prescribed under relevant law, or infringe the
principles of natural justice and thereby affect the fundamental rights, then its actions can be
quashed by Courts. This stance was further confirmed by the Constitutional Bench in 1990.
Law (Art. 13(3)(a)

Article 13 of the Constitution of India-
Article 13 of the Indian Constitution States that:
“Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void;
(2) The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void;
(3) In this Article, unless the context otherwise requires law includes any Ordinance, order,
bye-law, rule, regulation, notification, custom or usages having in the territory of India the
force of law; laws in force includes laws passed or made by Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not

previously repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas;
(4) Nothing in this Article shall apply to any amendment of this Constitution made under
Article 368 Right of Equality.”
Article 13 is the key provision as it gives the teeth to the fundamental rights and
makes them justiciable. The effect of Article 13 is that Fundamental Rights cannot be
infringed by the government either by enacting a law or through administrative action.
Existing Laws Inconsistent With the Constitution
This clause provides that all “laws in force” at the commencement of the Constitution
which clash with the exercise of the Fundamental Rights, conferred by Part III of the
Constitution shall, to that extent, be void. As pre constitution law, after the commencement of
the Constitution, must confirm to the provisions of Part III of the Constitution. However,
infringement of a fundamental right cannot be founded on a remote or speculative ground.
But this does not make the existing laws which are inconsistent with the fundamental
rights void ab initio. The entire Part III of the Constitution including Art. 13(1) is prospective.
Hence, existing laws which are inconsistent with any provision of Part III are rendered void
only with effect from the commencement of the Constitution, which for the first time created
the Fundamental Rights. The inconsistency referred to in Art. 13(1), therefore, does not affect
transactions past and closed before the commencement of the Constitution or the enforcement
of rights and liabilities that had accrued under the ‘inconsistent laws’ before the
commencement of the Constitution.
On the other hand, it does not mean that an unconstitutional procedure laid down be a
pre-Constitution Act is to be followed in respect of ‘pending’ proceedings or in respect of
new proceedings instituted with regard to pre-Constitution rights or liabilities. Just as there is
no vested right in any course of procedure, there is no vested liability in matter of procedure
in the absence of any special provision to the contrary.
But if the proceedings had been completed or become final before the commencement
of the Constitution, nothing in the Fundamental Rights Chapter of the Constitution can
operate retrospectively so as to affect those proceedings. For the same reason, it is not
possible to impeach the validity of that part of the proceedings which had taken place under
the inconsistent law, prior to the commencement of the Constitution.
The effect of Art. 13(1) is not to obliterate the inconsistent law from the statute book
for all times or for all purposes or for all people. The effect is that the inconsistent law
cannot, since the commencement of the Constitution stand in the way of exercise of
fundamental rights by persons who are entitled to those rights under the commencement of
the Constitution, as regards persons who have not been given fundamental rights, e.g., aliens.
Doctrine of Eclipse-
1) It follows, therefore, that if at any subsequent point of time, the inconsistent provision
is amended so as to remove its inconsistency with the fundamental rights, the
amended provision cannot be challenged on the ground that the provision has become
dead at the commencement of the Constitution and cannot be revived by the
amendment. All acts done under the law since the amendment will be valid
notwithstanding the fact of inconsistency before the amendment. It is known as the
doctrine of eclipse.
2) For the same reason, if the Constitution itself is amended subsequently, so as to
remove the repugnancy, the impugned law becomes free from all blemishes from the
date when the amendment of the Constitution takes place.
Post-Constitution laws, which are inconsistent, shall be void ab initio:
Art. 13(2) provides that any law made by any legislature or other authority after the
commencement of the Constitution, which contravenes any of the fundamental rights
included in Part III of the Constitution shall, to the extent of the contravention, be void.
As distinguished from Cl. (1), Cl. (2) makes the inconsistent laws void ab initio and
even convictions made under such unconstitutional laws shall have to be set aside.
Doctrine of Severability-
It is not the whole Act which would be held invalid by being inconsistent with Part III
of the Constitution but only such provisions of it which are volatile/unstable of the
fundamental rights, provided that the part which violates the fundamental rights is separable
from that which does not isolate them.
But if the valid portion is so closely mixed up with invalid portion that it cannot be
separated without leaving an incomplete or more or less mingled remainder the court will
declare the entire Act void. This process is known as doctrine of severability or reparability.
The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, and
held that the preventive detention minus/drawback Section 14 was valid as the omission of
Section 14 from the Act will not change the nature and object of the Act and therefore the rest
of the Act will remain valid and effective.

The doctrine was applied in D.S. Nakara v. Union of India, where the Act remained
valid while the invalid portion of it was declared invalid because it was severable from the
rest of the Act.
In State of Bombay v. F.N. Balsara, it was held that the provisions of the Bombay
Prohibition Act, 1949 which were declared as void did not affect the validity of the entire Act
and therefore there was no necessity for declaring the entire statute as invalid.
The doctrine of severability has been elaborately considered by the Supreme Court
and the following rules regarding the question of severability has been laid down:
(1) The intention of the legislature is the determining factor in determining whether the valid
parts of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be
separated from the other, then the invalidity of a portion must result in the invalidity of the
Act in its entirety. On the other hand, if they are so distinct and separate that after striking out
what is invalid what remains is itself a complete code independent of the rest, then it will be
upheld notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those which are
invalid if they form part of a single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.
(4) Likewise when the valid and invalid parts of a Statute are independent and do not form
part of a Scheme but what is left after omitting the invalid portion is so thin and truncated as
to be in substance different from what it was when it emerged out of legislature, then also it
will be rejected in its entirety.
(5) The severability of the valid and invalid provisions of a Statute does not depend on
whether provisions are enacted in same section or different section, it is not the form but the
substance of the matter that is material and that has to be ascertained on an examination of
the Act as a whole and of the setting of the relevant provisions therein.
(6) If after the invalid portion is expunged/deleted from the Statute what remains cannot be
enforced without making alterations and modifications therein, then the whole of it must be
struck down as void as otherwise it will amount to judicial legislation.
(7) In determining the legislative intent on the question of severability, it will be legitimate to
take into account the history of legislation, its object, the title and preamble of it.

Definition of Law
Art. 13(3) (a) defines ‘law’ vary widely by an inclusive definition. It does not
expressly include a law enacted by the legislature, for such an enactment is obviously law.
The definition of law includes:
(i) an Ordinance, because it is made in the exercise of the legislative powers of the executive;
(ii) an order, bye-law, rule, regulation and notification having the force of law because
ordinarily they fall in the category of subordinate delegated legislation and are not enacted by
the legislature;
(iii) custom or usage having the force of law because they are not enacted law at all. This
extended definition appears to have been given to ‘law’ in order to forestall a possible
contention that law can only mean law enacted by the legislature.
*********
1) How does the Constitution of India define the term "State" under Article 12, and why is
this definition important in the context of fundamental rights?
2) Definition of Law
3) State
4) Doctrine of severability
5) Doctrine of Eclipse

CHAPTER- 4
EQUALITY AND SOCIAL JUSTICE
Meaning
Social justice is when each person can exercise their rights within a society. A
government that promotes social justice ensures that everyone has physical security,
education, healthcare, and employment. Social Justice is the foundation stone of Indian
Constitution.
Social Justice as a concept arose in the early 19th century during the Industrial
Revolution and subsequent civil revolutions throughout Europe, which aimed to create more
democratic societies and remedy capitalistic exploitation of human labour. Because of
the Stark stratifications between wealthy and the poor during this time, early social justice
advocates focused primarily on capital, property, and the distribution of wealth.
By the mid-20th century, social justice had expanded from being primarily concerned
with economics to include other spheres of social life to include the environment, race,
gender, and other causes and manifestations of inequality. Concurrently, the measure of
social justice expanded from being measured and enacted only by the nation-state (or
government) to include a universal human dimension. For example, governments (still today)
measure income inequality among people who share citizenship in common.
Definitions-
Several organizations and institutions provide their own definitions for social justice.
“Social justice may be broadly understood as the fair and compassionate distribution
of the fruits of economic growth.”
“Social justice is the view that everyone deserves equal economic, political and
social rights and opportunities. Social workers aim to open the doors of access and
opportunity for everyone particularly those in greatest need.’’
 Constitutional Provisions-
1) Article- 14
Article 14 of the constitution guarantees equality before the law and confers equal
protection of laws. It prohibits the states from denying persons or class of person equal
treatment; provided they are equal and are similarly situated. It however, does not forbid
classification. In other words What Art.14 prohibits is discrimination and not classification if
otherwise such classification is legal, valid and reasonable.

(Absolute Equality means that everyone is equal in law and Substantive equality recognizes
that the law must take elements such as discrimination, marginalization, and unequal
distribution into account in order to achieve equal results for basic human rights,
opportunities, and access to good and services.)
2) Article- 15
Article-15 relates to the prohibition of discrimination on the ground of religion, race,
caste, sex or place of birth.
In the case of Kathi Ranning v. state of saurastra the Supreme Court was of the view
that when the discrimination is based upon one of the grounds mention in Article 15, the
reasonableness classification will be tested under Article 14.
Article 15 is available to citizen only not every person the democratic principle of
equality which in fact is equality among the powerful is only a formal equality. The real
equality consists in equality all of the members of the society. It will be observed as a matter
of habit and once its observation becomes a habit, social justice will spread automatically.
Article 15(3) also talks about making special provision for women and children and
thereby if any special provisions are made for women and children, it would not be in
derogation to Article 15(1) or Article 14. The right to elimination of gender based
discrimination that Article 15 talks about is established to attain, economic empowerment,
from part of universal human rights.
3) Article- 16
Article 16 of the Indian Constitution is a fundamental right that deals with the equality
of opportunities in matters of public employment. It prohibits discrimination on the grounds
of religion, race, caste, sex, descent, place of birth, residence, or any of them in relation to
access to public employment or appointment to any office under the State.
 Art. 16 (1) is a facet of Art. 14, both are very closely inter-connected. Art. 16(1) takes
its roots from Art. 14.
 Art. 16(1) particularizes the generality of Art. 14 and identifies, in a constitutional
sense, “equality of opportunity” in matters of employment under the state.
 Distinction- Art. 14 applies to all persons, citizens as well as non-citizens, whereas
Art. 16 applies only to citizens and not to non-citizens.
 Art. 16 (1) guarantees equality of opportunity to all citizens “in matters relating to
employment” or “appointment to any office” under the state. According to Art. 16 (2),
no citizen can be discriminated against, or be ineligible for any employment or office

under the state, on the grounds only of religion, race, caste, sex, descent, place of
birth or residence or any of them.
 On a comparative basis, Art. 16 deals with a very limited subject, viz., public
employment. On the other hand, the scope of Art. 15(1) is much wider as it covers the
entire range of state activities.
 The ambit of Art. 16 (2) is restrictive in scope than that of Art. 15(1) because Art. 16
(2) is confined to employment or office under the state, meaning services under the
Central and State Governments and their instrumentalities. However, Art. 15 being
general in nature cover many varied situations of discrimination.
 Further, the prohibited grounds of discrimination under Art. 16(2) are somewhat
wider than under Art. 15(2) because Art. 16(2) prohibits discrimination on the
additional grounds of decent and residence apart from religion, race, caste, sex and
place of birth.
 Art. 15 does not mention ‘descent’ and ‘residence’ as the prohibited grounds of
discrimination, whereas Art. 16 does.
 Art. 16 does not bar a reasonable classification of employees or reasonable tests for
selection.
 Equality of Opportunity of employment means equality as between members of the
same class of employees and not equality between members of separate, independent,
classes.
 Art. 16(1) and (2) give effect to Art. 14 and 15. All these articles form part of the
same constitutional code of guarantees and supplement each other.
 As Article 16 talks about Equality of opportunity in matters of public employment it
also talks about protection of backward classes and therefore permits classification of
backward classes and therefore reservation can be made by an executive order and it
would not be in derogation to Article 15(1) or Article 14.
 Art. 16 (3):Parliament may make a law to prescribe a requirement as a residence
within a state or Union Territory for eligibility to be appointed with respect to
specified classes of appointments or posts.
 Thus, Art. 16(2) which bans discrimination of citizens on the ground of
‘residence’ only in respect of any office or employment under the state, can be
qualified as regards residence, and a ‘residential qualification’ imposed on the right of
appointment in the State for specified appointment. This provision, therefore,

introduces some flexibility, and takes cognizance of the fact that there may be some
very good reason for restricting certain posts in a State for its residence.
 Under Art. 16(3), Parliament has enacted the Public Employment (Requirement as to
Residence) Act, 1957.
 Under Art. 16(4) the state may make reservation of appointment or posts in favour of
any ‘backward class’ of citizens which, in the opinion of the state, is not adequately
represented in the public services under the state. The term ‘state’ denotes both the
Central and the State Governments and their instrumentalities.
 Art. 16(5) Provides that a law may prescribe that the incumbent/mandatory of an
office in connection with the affairs of religious or denominational institution, or a
member of the governing body thereof, shall belong to the particular religion or
denomination.
 Balaji v. State of Mysore, 1963 Court held that 68% of the seats in educational
institutions were reserved for SC, ST and other Backward Classes.
 Devadasan v. Union of India, 1964, held that 17 ½ per cent posts were to be reserved
for SC. ST……
 In the case of Indira Sawhney v. Union of India the Supreme Court held that:
Backward class of citizen in Art. 16(4) can be identified on the basis of only caste and
not only on economic basis.
4) Article- 17: Abolition of untouchability

 Art. 17 abolish untouchability and forbids/prohibit its practice in any form. The
enforcement of any disability arising out of “untouchability” is to be an offence
punishable in accordance with law.
 Object- to ban the practice of untouchability in any form.
 To give effect Art. 17, parliament enacted the Untouchability (Offences) Act, 1955,
prescribing punishments for practicing untouchability in various forms.
 In 1976, the Act was renamed as the “Protection of Civil Rights Act, 1955”.
 The word “Untouchability” has not been defined either in the Constitution or in the
Act, because it is not capable of any precise definition.
 Under sociology- Untouchability is a form of social institution that legitimises and
enforces practices that are discriminatory, humiliating/shameful, exclusionary and
exploitative against people belonging to certain social groups.

 According to Prof. Satyavrata, “Untouchability is that system of society on account
of which one individual cannot touch another individual and one society cannot
touch another society on the basis of convention and if so touches, becomes
profane/disrespect and in order to remove that profanity has to perform penance.”
 It has however been held that the subject-matter of Art. 17 is not untouchability in its
literal or grammatical sense but the “practice as it has developed historically in this
country”.
 Therefore, treating of persons as untouchables either temporarily or otherwise for
various reasons,…
 For example- suffering from an epidemic or a contagious (communicable) disease, or
social observances associated with birth or death, or social boycott resulting from
caste or other disputes do not come within the purview of Art. 17.
 Art. 17 is concerned with those regarded untouchables in the course of historic
development.
 Thus, instigation of a social boycott of a few individuals, or their exclusion from
worship, religious, services or food, etc., is not within the contemplation/observation/
survey of Art. 17.
 In this context Parliament has also enacted the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, in order-
1. To prevent the commission of atrocities against the members of the Scheduled
Castes and the ST;
2. To provide for setting up of special courts for the trial of offences under the
Act and
3. Also to provide for the relief and rehabilitation of victims of such offences.
 Art. 15 (2) also helps in the eradication/abolition of untouchability, as no person shall,
on the grounds only of “religion, race, caste, sex, place of birth or any of them”, be
denied access to shops, etc… as mentioned therein.
5) Article- 29(2)
Article 29(2) of the Indian Constitution is a provision that pertains to the protection of
the educational and cultural rights of minorities in India. Here is the text of Article 29(2):
"Article 29(2): No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only of religion, race,
caste, language or any of them."

This provision is part of the fundamental rights guaranteed to Indian citizens and is
intended to ensure that individuals belonging to religious or linguistic minorities are not
discriminated against when it comes to admission to educational institutions that are either
run by the state or receive financial assistance from the state.
6) Article- 325
The framers of the Indian Constitution included Article 325 to ensure that the
democratic principles of equality and inclusivity are upheld in the electoral process. It is a
fundamental right that guarantees every eligible citizen the right to participate in the
democratic process without facing discrimination on the basis of their religion, race, caste, or
sex. This provision has played a crucial role in promoting democracy and social justice in
India.
 Administrative Discretions and Equality
The main purpose of administrative discretion is to maintain equality in all sections of
society. However, this administrative discretion should not go beyond the line and should be
used with proper care.
Meaning and Scope of Administrative Discretion-
Administrative discretion refers to the authority and flexibility that government
agencies and officials have in making decisions and implementing policies within the bounds
of the law. It involves the ability of these entities to use their judgment and make choices
based on the specific circumstances of a given situation, rather than being strictly bound by
rigid rules or regulations.
Key characteristics of administrative discretion include:
1. Flexibility: Administrative officials can adapt their decisions and actions to the unique
circumstances they encounter. This flexibility allows them to address complex issues that
may not have clear-cut solutions.
2. Decision-Making Authority: Administrative officials often have the authority to interpret
and apply laws and regulations, and they can exercise their judgment in doing so. This
discretion can significantly influence the outcomes of various government functions.
3. Accountability: While administrative discretion provides leeway/flexibility for decision-
making, it is not absolute. Government agencies and officials are still accountable to higher
authorities, the law, and the public for their actions. They must justify their decisions and
actions within the framework of legal and ethical standards.

4. Policy Implementation: Administrative discretion plays a crucial role in the effective
implementation of government policies. It allows officials to make choices that align with the
intended goals of those policies.
Administrative Discretion and Article 14 of The Indian Constitution-
Administrative discretion and Article 14 of the Indian Constitution are closely related
topics that pertain to the principles of equality and non-discrimination under Indian law.
Article 14 is a fundamental right enshrined in the Indian Constitution, which reads:
"Equality before law.—The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India."
Administrative discretion refers to the authority and power given to administrative
authorities and government officials to make decisions and take actions within their areas of
responsibility. This discretion is necessary for the efficient functioning of the government, as
it allows officials to make decisions based on the specific facts and circumstances of
individual cases. However, such discretion must be exercised within the bounds of the law
and in a manner that is fair and just.
The relationship between administrative discretion and Article 14 can be understood
in the following ways:
1. Equality before the Law:
Article 14 guarantees that all individuals are equal before the law. This means that the
government must treat all individuals, including citizens and non-citizens, equally and
without discrimination. When administrative authorities exercise their discretion, they must
do so without any bias or discrimination based on factors such as religion, race, caste, sex, or
place of birth.
2. Equal Protection of Laws:
Article 14 also ensures that individuals are entitled to equal protection of the laws.
This means that administrative decisions should not arbitrarily favor one person or group
over another. Administrative discretion must be exercised consistently and without
discrimination to provide equal protection to all.
3. Reasonable Classification:
While Article 14 prohibits unreasonable discrimination, it allows for reasonable
classification. The government can classify individuals or entities for the purposes of
administration or governance as long as the classification is reasonable and has a rational
nexus to the objective sought to be achieved. Administrative discretion may involve making
such classifications, but they must meet the test of reasonableness. *********
1) What is the significance of the Preamble of the Indian Constitution in promoting equality
and social justice?
2) How does the Constitution of India ensure equality before the law and equal protection of
the law?
3) What are the fundamental rights related to equality guaranteed by the Indian Constitution?
4) What role do Articles 15 and 16 of the Indian Constitution play in preventing
discrimination based on religion, race, caste, sex, or place of birth?

CHAPTER- 5
FREEDOMS AND SOCIAL CONTROL
 Freedom is understood as either having the ability to act or change without constraint
or to possess the power and resources to fulfill one's purposes unhindered.
 In other words, Freedom is a powerful word. To some it means independence. To
others, it means the ability to act and speak freely – or to go where they wish.
 Example- Perhaps the most important record of American freedoms, the Bill of
Rights, contains a number of famous freedoms “to.” They include the right to freedom
of speech and assembly, to bear arms, to due process, to a speedy and public trial, and
to a trial by jury.
 Types of freedom:
1. Freedom of association.
2. Freedom of belief.
3. Freedom to express oneself.
4. Freedom of the press.
5. Freedom to choose one's state in life.
6. Freedom of religion.
7. Freedom from bondage and slavery.
8. Freedom of movement.
Social Control-
 Generally speaking, social control is the regulation of society over individuals. In
order to maintain the organization and order of society, individuals must be subjected
to some form of control. This control is necessary to encourage desired behavior in
individuals and enable them to develop social qualities.
 As Gillin and Gillin say, “Social control is the system of measures, suggestions,
persuasion, restrain and coercion by whatever means including physical force by
which society brings into conformity to the approved pattern of behaviour, a subgroup
or by which a group moulds into conformity its members”.
 Need of Social Control: Social control is necessary for maintaining an orderly social
life. Society has to regulate and shape individual behavior to maintain normative
social order. Without social control, the organization of society is susceptible to
disruption.

Right to Freedom (Art. 19)
Art. 19(1) (a) to (g) conferred every citizen seven Fundamental Rights, But as per the
44th Constitutional Amendment Act, 1978 has repealed Art. 19 (1) (f). The six freedoms are
not absolute; absolute individual rights cannot be guaranteed by any modern state. An
organized society is the precondition of civil liberties. There cannot be any right which is
injurious to the community as a whole. If people were given complete and absolute linberty
without any social control the result would be ruin/destroyed.
Patanjali Shastri, J., in A. K. Gopalan v. State of Madras (1951), observed, "Man as a
rational being desires to do many things, but in a civil society, his desires have to be
controlled, regulated, and reconciled with the exercise of similar desires by other
individuals."
The guarantee of each of the above rights is, therefore, restricted by the constitution
itself, which confers upon the State the power to impose, by law, reasonable restrictions as
may be necessary in the larger interest of the community. The restrictions on these freedoms
are provided in clauses 2 to 6 of Article 19 of the Constitution.
Reasonable Restriction-
The means by which restrictions are imposed on a person's enjoyment of their rights
should not be arbitrary or excessively restrictive, but rather should be in the interest of the
public and proportionate to that interest.
Six Fundamental Freedoms-
Article 19 of the Constitution of India guarantees several fundamental freedoms to its
citizens, which are essential for the proper functioning of a democratic society. However,
these freedoms are subject to reasonable restrictions in the interest of the sovereignty and
integrity of India, security of the state, friendly relations with foreign countries, public order,
decency, and morality. The six fundamental freedoms under Article 19 are as follows:
1. Freedom of Speech and Expression
2. Freedom to Assemble Peacefully
3. Freedom to Form Associations or Unions
4. Freedom to Move Freely Throughout the Territory of India
5. Freedom to Reside and Settle in any Part of India
6. Freedom to Practice Any Profession, or to Carry on Any Occupation, Trade, or
Business

1) Freedom of Speech and Expression: Art. 19(1) (a) and 19(2)
This includes the right to express one's thoughts, opinions, ideas, and beliefs freely
through speech, writing, printing, Picture and other forms of communication. It thus includes
the medium or visible representation, such as, gesture, signs and the like.
Art. 19(1) (a)- Say’s that “all citizens shall have the right to freedom of speech and
expression.” But this right is subject to limitations imposed under Article 19(2) which
empowers the State to put ‘reasonable’ restrictions.
Freedom of the press-
Art. 19(1) (a) of the Indian Constitution does not expressly mention the liberty of the
Press but it has been held that liberty of the press is included in the freedom of speech and
expression.
Dr. Ambedkar stated that, “the press has no special rights which are not to be given
or which are not to be exercised by the citizens in his individual capacity. The editor of a
press for the manager are merely exercising the right of the expression and therefore, no
special mention is necessary of the freedom of the press.”
In, Indian Express Newspaper v. union of India, 1985, SC held that the expression
“freedom of the press” has not been used in Article 19 but it is comprehended within Art.
19(1) (a).
Grounds of reasonable restriction:
Article 19(2) allows the state to make laws that restrict freedom of speech so long as
they impose reasonable restrictions in the:
1) Security of the state:
Art. 19 (2) reasonable restrictions can be imposed on freedom of speech and
expression ‘in the interest of security of the State”.
In, Ramesh Thapper v. State of Madras, 1950, The court stated that not all instances
of public disorder can be considered a threat to the state's security. The phrase 'security of the
State' only applies to very severe and serious cases of public disorder.
For example: Rebellion, waging war against the state, etc.
In, State of Bihar v. Shailabala Devi, 1952, The Supreme Court said that when
someone's words or actions encourage violent crimes like murder, it can harm the security of
the state. The words "in the interests of" before "security of the State" mean that the actual
outcome of the act doesn't matter.

2) Friendly relations with foreign states:
This ground was added by the Constitution (1st Amendment) Act, 1951. The objective
behind this provision is to prohibit unrestrained malicious propaganda/publicity against a
foreign-friendly state, which could jeopardize the maintenance of good relations between
India and that state.
No similar provision is present in any other constitution in the world. However, the
laws of each country have adequate provisions to safeguard peaceful relations with foreign
states.
3) Public order:
In the Indian Constitution, Article 19(2) allows the government to impose reasonable
restrictions on the freedom of speech and expression in the interest of public order. This
means that while individuals have the right to freedom of speech and expression, the
government can limit or regulate this right if it believes that doing so is necessary to maintain
public order.
Public order is something more than ordinary maintenance of Law and Order. Public
order is synonymous with Public Peace, Safety and tranquility.
4) Decency and morality:
Sections 292 to 294 of the Indian Penal Code deal with various aspects related to
obscenity and offenses against public decency. These sections pertain to the circulation, sale,
or possession of obscene books, drawings, and other materials, as well as the punishment for
engaging in obscene acts in public places.
5) Contempt of Court:
Restriction on the freedom of speech and expression can be imposed if it exceed the
reasonable and fair limit and amounts to Contempt of Court.
The contempt of court Act, 1971, defines the expression ‘contempt of court’ as-
i) Civil Contempt- means wilful disobedience to any judgment, decree, direction, order, writ
or other process of a court or wilful breach of an undertaking given to a court.
ii) Criminal Contempt- means the publication (whether by words spoken or written, or by
signs or by visible representations or otherwise) or any matter or the doing of any other act
whatsoever….
6) Defamation:
Saying something that harms a person's reputation is called defamation. Defamation
means making someone look bad, which can lead to people disliking, making fun of, or
disrespecting them. In India, Section 499 of the IPC contains the laws about defamation.
7) Incitement to offence:
This ground was also added by the Constitution (1st Amendment) Act, 1951.
Obviously, freedom of speech and expression cannot grant a license to incite people to
commit offenses.
8) Integrity and sovereignty of India:
This ground was added to clause (2) of Article 19 by the Constitution (16th
Amendment) Act, 1963. Under this clause, freedom of speech and expression can be
restricted to prevent anyone from challenging the integrity or sovereignty of India or
advocating the secession of any part of India from the Union. For example, sedition (Section
124-A IPC).
2) Freedom to Assemble Peacefully: Art. 19 (1) (b) and 19 (3)

Article 19(1)(b) guarantees all citizens of India the right to assemble peaceably and
without arms. The right of assembly includes the right to hold meetings and to conduct
processions. However, this right is subject to the following restrictions:
 The assembly must be peaceful.
 It must be unarmed.
 Reasonable restrictions can be imposed under Clause 3 of Article 19.
3) Freedom to Form Associations or Unions: Art. 19 (1) (c) and 19 (4)
Art. 19(1)(c) of the Constitution of India guarantees to all its citizens the right 'to form
associations and unions.' Under Clause (4) of Art. 19, however, the state may, by law, impose
reasonable restrictions on this right in the interest of public order, morality, or the sovereignty
and integrity of India.
The right guaranteed is not merely the right to form an association but also to
continue with the association as such. The freedom to form an association implies not only
the freedom to form one or not to form one but also to join or not to join an association or
union.
4) Freedom to Move Freely Throughout the Territory of India: Art. 19 (1) (d) and 19 (5)
Art. 19 (1) (d) guarantees to all citizens of India the right “to move freely throughout
the territory of India.” This right is however, subject to reasonable restriction mentioned in
Cl. (5) of Art. 19.
For example: 1. In the interest of general public, or
2. for the protection of the interest of any Scheduled Tribe.

5) Freedom to Reside and Settle in Any Part of India: Art. 19 (1) (e) and 19 (5)
According to Art. 19 (1) (e) every citizen of India has the right “to reside and settle in
any part of the territory of India.”
However, under Cl. (5) of Art. 19 reasonable restriction may be imposed on this right
by law in the interest of the general public or for the protection of the interest of any
Scheduled Tribe.
In, State of U.P. v. kaushalya, 1964, The Supreme Court held that when a prostitute
is ordered, under the Immoral Traffic in Women and Girls Act, 1956, to leave the limits of a
busy city or when restrictions are imposed on her movement and residence, such actions are
considered reasonable restrictions.
The freedom of movement and residence may be curtailed and suspended during an
emergency.
6) Freedom to Practice Any Profession, or to Carry on Any Occupation, Trade, or
Business: Art. 19 (1) (g) and 19 (6)
Art. 19 (1) (g) guarantees that all citizens shall have the right “to practice any
profession, or to carry on any occupation, trade or business.” But it can be restricted and
regulated by authority of law.
Thus the state can under Cl. (6) of Art. 19 make any law-
1. Imposing reasonable restriction on this right ‘in the interest of Public.’
2. Prescribing professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade, or business.
3. Enabling/allowing/permitting the state to carry on any trade or business to the
exclusion of citizens wholly or partially.
In, P.A. Inamdar v. State of Maharashtra, 2005, SC held that the right to establish an
educational institution, for ch-arity or for profit, being an occupation is guaranteed under the
constitution to all citizens under Art. 19(1) (g) and to minorities under Art. 30.
‘Education’ even though is an occupation but it cannot be equated with trade or
business.

Pre 1978 position – Fundamental right to property
Before 1978, the right to property was considered a fundamental right in India under
Article 19(1)(f) of the Constitution of India. This meant that Indian citizens had the right to
acquire, hold, and dispose of property, subject to certain reasonable restrictions imposed by
the government for public welfare and the common good.
However, this right was not absolute. The Indian government, both at the central and
state levels, had the authority to impose restrictions on property rights for various purposes,
including land reform, urban planning, and economic development. These restrictions were
often challenged in courts, and the government had to demonstrate/prove that such
restrictions were in the public interest.
In 1978, the 44th Amendment to the Indian Constitution was passed, which
fundamentally altered the right to property. The amendment removed the right to property as
a fundamental right, making it a legal right instead. Article 19(1)(f) was repealed, and a
new provision, Article 300A, was added. Article 300A recognizes the right to property as a
legal right, stating that no person shall be deprived of his or her property except by authority
of law.
This change allowed the Indian government to enact laws that could infringe on
property rights without the same level of scrutiny as under the fundamental right to property.
The objective behind this change was to give the government more flexibility in
implementing land reforms and other policies aimed at social and economic justice.
The Doctrine of Eminent Domain

Eminent domain is a legal doctrine that allows the government or a government-
approved entity to take private property for public use, provided that the property owner is
justly compensated. This power is typically derived from the government's inherent authority
to promote the public good and ensure the efficient functioning of society.
Here are some key elements of the doctrine of eminent domain:
1. Public Use:
The taking of private property must be for a public use or public purpose. This can
include projects like building or expanding public infrastructure (roads, bridges, schools,
hospitals), urban redevelopment, or other projects that serve the broader community's
interests.

2. Just Compensation:
The property owner must receive fair and just compensation for the property taken.
3. Due Process:
Property owners must be given due process of law, which includes notice and an
opportunity to be heard before their property is taken. This ensures that property owners have
a chance to contest the taking or seek a more favorable compensation amount.
4. Government Authority:
Eminent domain can only be exercised by a government entity or a private entity that
has been granted the power of eminent domain by the government. This authority varies from
jurisdiction to jurisdiction.
5. Compensation Factors:
The determination of just compensation may take into account factors such as the
property's fair market value, the property's special characteristics, and any damage to the
remaining property caused by the taking.
6. Public Interest Balancing:
Eminent domain can be a contentious issue, as it involves a balance between the
government's authority to serve the public interest and the protection of individual property
rights.
Post-1978 position – the Constitutional right to property

In India, the right to property underwent a significant transformation in 1978 when the
44th Amendment Act was passed, which altered the constitutional provisions related to
property rights. Prior to this amendment, the right to property was a fundamental right
enshrined/protected in the Constitution under Article 31. However, the 44th Amendment Act
brought about a substantial change in the legal landscape of property rights in India.
Here are the key changes that occurred post-1978 regarding the Constitutional right
to property in India:
1. Deletion of Right to Property as a Fundamental Right:
The most significant change was the deletion of the right to property as a fundamental
right. Article 19(1)(f) and Article 31 were removed from the list of fundamental rights. As a
result, the right to acquire, hold, and dispose of property ceased to be a fundamental right.
2. Right to Property as a Legal Right:
After the 44th Amendment Act, the right to property was repositioned as a legal right
rather than a fundamental right. It was incorporated as a legal right under Article 300A,

which states that "No person shall be deprived of his property save by authority of law." This
meant that while it was no longer a fundamental right, the right to property still had legal
protections, and the government could only acquire private property for a public purpose and
with just compensation.
3. Emphasis on Public Interest:
The 44th Amendment Act emphasized that any deprivation of property must be in the
interest of the public. It laid down that property could only be acquired for a public purpose,
and fair compensation had to be provided to the property owner.
4. Compensation for Property Acquisition:
Article 300A made it clear that if the government acquires private property, it must
provide fair compensation to the property owner. This compensation must be determined by
law and should be adequate to enable the property owner to acquire a similar property.
5. Land Reforms:
Despite the changes in the constitutional provisions, land reform laws continued to be
implemented in various states to redistribute land from large landowners to landless or
marginalized communities. These reforms often involved placing restrictions on the
ownership and transfer of agricultural land.
In other words, post-1978, the right to property in India ceased to be a fundamental
right but continued to exist as a legal right under Article 300A of the Constitution. This
article provides protection against arbitrary deprivation of property and ensures that any
acquisition of property by the government is for a public purpose and involves fair
compensation to the property owner.
***************
1) How does the Constitution of India define and safeguard individual freedom and rights?
2) What are the fundamental rights enshrined in the Constitution of India, and how do they
contribute to individual freedom?
3) How does the Constitution balance individual freedom with the need for social control and
order?
4) What are the limitations on freedom of speech and expression in the Indian Constitution,
and how are they justified?
5) How does the Constitution protect religious freedom and promote secularism in India?

CHAPTER- 6
PERSONAL LIBERTY
The Government of India Act, 1935 provided for the establishment of Article 21 of
the Indian Constitution. It declares that no person shall be deprived of his life or personal
liberty except according to the procedure established by law. Article 21 comes under the Part
III of the Indian constitution and is one of the fundamental rights guaranteed to all citizens of
India.
Article 21 states that “No person shall be deprived of his life or personal liberty
except according to a procedure established by law.”
 Article 21 is a fundamental right and is included in Part-III of Indian Constitution.
 This right is available to all citizens as well as non-citizens alike.
 Supreme Court has described this right as the “heart of fundamental rights”.
 According to Justice Bhagwati, Article 21 “embodies a constitutional value of
supreme importance in a democratic society.”
 Article 21 secures two rights: The right to life and the Right to personal liberty.
 Article 21 cannot be suspended during an emergency.
Right to life and Personal Liberty- Meaning of Art. 21Gopalan Case

The meaning of the words “personal liberty” came up for consideration of the SC for
first time in A.K. Gopalan v. Union of India, 1950 SC 27 in that case the petitioner, A.K.
Gopalan, a communist leader was detained under the Preventive Detention Act, 1950.
 The petitioner challenged the validity of his detention under the Act on the ground,
that it was violate of his right to freedom of movement under Art. 19(1) (d) which is
the very essence of personal liberty guaranteed by Art. 21 of the Constitution.
 He argued that the words “Personal liberty” includes the freedom of movement also
and therefore the Preventive Detention Act, 1950 must also satisfy the requirement of
Art. 19 (5).
 In other words, the restrictions imposed by the detention law on the freedom of
movement must be reasonable under Art. 19 (5) of the Constitution.
 It was argued that Art. 19 (1) and Art. 21 should be read together because Art. 19 (1)
dealt with substantive rights and Art. 21 dealt with procedural rights.
 It was also said that reference in Art. 21 to “procedural established by law” meant
“due process of law” of the American Constitution which includes the principles of

natural justice and since the impugned/disputed law does not satisfy the requirement
of due process it is invalid.
 Rejecting both the contentions, the SC by the majority held that the ‘Personal Liberty’
in Art. 21 mean nothing more than the liberty of the physical body, that is, freedom
from arrest and detention without the authority of law.
 This was the definition of the phrase ‘personal liberty’ given by Prof. Dicey,
according to whom personal liberty means freedom from physical restraint and
coercion which is not authorized by law.
Personal Liberty-Meaning of: Maneka Gandhi, Sunil Batra Case-
The right to life in Article 21 of Indian constitution does not mean animal existence or
the mere act of breathing. It guarantees the right to a dignified life. Some of the rights that are
currently included in the ambit of Article 21 includes (mentioned in Menaka Case):
 Right to live with human dignity.
 Right to the decent environment including pollution-free water and air and
 Protection against hazardous industries.
 Right to livelihood.
 Right to privacy.
 Right to shelter.
 Right to health.
 Right to free education up to 14 years of age.
 Right to free legal aid.
 Right to hearing.
 Right to information.
 Right to reputation.
Sunil Batra v. Delhi Administration
In this case, Supreme Court deemed the fatal handcuffs for the convicted persons as
unconstitutional as it suggests inhuman behavior towards the prisoner. The court
reiterated/repeated the clause “protection to the convicted and accused person” under Article
21.
Procedure established by law-Gopalan, Kharak Singh Case-

In India, the expression "procedure established by law" means procedure laid down by
a statute or procedure prescribed by the law of the State.
The question of the interpretation of 'procedure established by law' after the coming of
the Constitution in 1950 in the A.K. Gopalan v. State of Madras, the words used in Article

21 came under the scrutiny of the Supreme Court in which the validity of the Preventive
Detention Act, 1950 was challenged.
Thus, the Supreme Court ruled in Gopalan that in Article 21, the expression
"procedure established by law" meant the procedure as laid down in the law was enacted by
the Legislature and nothing more. Thus, a person could be deprived of his "life" or "personal
liberty" following the procedure laid down in the relevant law.
The Court was thus concerned with the procedure as laid down in the statute.
The reasonableness of the procedure was not considered to be the concern of the
Court. The ruling thus meant that to deprive a person of his life or personal liberty--
(1) There must be a law;
(2) It should lay down a procedure; and
(3) The executive should follow this procedure while depriving a person of his life or
personal liberty.
The way the majority handled Article 21 in Gopalan was not free from criticism.
Gopalan was characterized as the 'high-water mark of legal positivism'. Court's approach was
very static, mechanical, and purely literal and was too much colored by the positivist or
imperative/authoritative theory of law.
The court construed the "procedure established by law" as a legal framework
prescribed by legislature mechanically without any substantive notion of fairness and ignored
functional interpretation by solely relying upon the constituent assembly's debates.
In Kharak Singh v. the State of UP, Subba Rao, J. observed that-
"If a person's fundamental rights under Article 21 are infringed, the state can rely
upon a law to sustain the action; but that cannot be a complete answer unless the said law
satisfies the test laid down in Article 19(2) in so far as the attributes covered by Article 19(1)
are concerned."
Procedure established by law – Due process- Maneka Gandhi and after.
The expressi
on procedure established by law has been the subject matter of interpretation in a catena of
cases. A survey of these cases reveals that courts in the process of judicial interpretation have
enlarged the scope of the expression. The Supreme Court took the view that procedure
established by law in Article 21 means procedure prescribed by law as enacted by the state
and rejected to equate it with the American due process of law.
But, in Maneka Gandhi v Union of India the Supreme Court observed that the
procedure prescribed by law for depriving a person of his life and personal liberty must be
right, just and fair and not arbitrary, fanciful and oppressive, otherwise it would be no
procedure at all and the requirement of Article 21 would not be satisfied. Thus, the procedure
established by law has acquired the same significance in India as the due process of law
clause in America.
Justice V. R. Krishna Iyer, speaking in Sunil Batra v. Delhi Administration has
said that though our Constitution has no due process clause but after Maneka Gandhis case
the consequence is the same, and as much as such Article 21 may be treated as counterpart of
the due process clause in American Constitution.
Rights to an accused:
1) Double Jeopardy
Part- III of Indian Constitution defines on fundamental rights available to people
within the territory of India. Under these fundamental rights, one of the right which is defined
in Art 20(2) states that:
“No person shall be prosecuted and punished for the same offence more than once”.
Art. 20 (2) provides that a person cannot be prosecuted/accused and punished more
than once for the same offence. The word 'Prosecution' under this article consist of three
essential components to categorize the concept under this Article.
Three essential components of prosecution are:
1. A person must be an accused of any offence.
2. A proceeding or prosecution of the case before a competent court
3. When a tribunal accepts the administrative and departmental enquires, these enquires
are not considered as proceedings and therefore cannot be the part of proceedings
with respect to prosecution and punishment.
2) Right against self-incrimination/self-confession/accusation (Article 20(3) )
According to this Constitutional right, individuals have the privilege against self-
incrimination. They can refuse to answer questions, refuse to make potentially incriminating
statements, or refuse to testify at a trial in any criminal case.
The Indian Constitution provides immunity to an accused against self-incrimination
under Article 20(3) – ‘No person accused of an offence shall be compelled to be a witness
against himself’.
The Supreme Court widened the scope of this immunity by interpreting the word
‘witness’ to include oral as well as documentary evidence so that no person can be
compelled to be a witness to support a prosecution against himself.

This prohibition cannot be applied in cases where an object or document is searched
or seized from the possession of the accused. For the same reason, the clause does not bar the
medical examination of the accused or the obtaining of thumb-impression or specimen
signature from him.
This immunity is available only against criminal proceedings.
Why is self-incrimination important?
The freedom of self-incrimination protects the innocent as well as the guilty by
limiting the power of the government. The government includes not only police officers, but
courts, juries, etc.
3) Right against Retroactive/backdated punishment
Article 20 (1) : “ no person shall be convicted of any offence except for violation of a
law in force at that time of the commission of the act charged as an offence , nor be subject to
a penalty greater than what might have been inflicted under the law in force at the time of the
commission of the offence..”
The 1st part of Article 20(1), in a literal sense, means the violation of any such law for
which a person is convicted must be in existence when the act is committed. It follows
therefore that a person cannot be convicted for an act, which was not an offence under the
law in force when that act was committed.
The 2nd part of Article 20 (1), in a literal sense, means punishment which was in force
when the offence was committed will be applicable and there will be no retrospective
operation. E.g. – A commit theft on 27th Aug. 2020 imprisoned for 2 months. Later on 1st
Sept. 2020 amendment was made which says the average punishment of theft is 3 month in
addition to monetary compensation that should be given to the victim. Now the judiciary
can’t punish offenders of 27th Aug. availing the extended punishment of 1st Sept. because
this act doesn’t hold retrospective operation.
Until there is any specific Act which forbids/prohibit the doing or omission to do
something no punishment can be attracted.
*****************
1) What does the Constitution of India say about the fundamental right to personal liberty?
2) How is personal liberty protected under Article 21 of the Indian Constitution?

CHAPTER- 7
PREVENTIVE DETENTION
Preventive detention is basically detention without trial in order to prevent a person
from committing a crime.
Preventive Detention – Meaning & Scope
The law and issue concerning and connected to Preventive Detention is an issue of
personal liberty and by default an issue pertaining to human rights.
 Preventive detention refers to taking into custody an individual who has not
committed a crime yet but the authorities believe him to be a threat to law and order.
 The Supreme Court in Alijav v. District Magistrate, Dhanbad, stated that while
criminal proceedings relate to punishing of a person for an offence committed by him,
preventive detention does not relate to an offence.
 In Ankul Chandra Pradhan v. Union of India, the Court stated that the object of
preventive detention is not to punish but prevent the detenue from doing anything that
is prejudicial to the security of the state.
 The power to make Preventive Detention laws in India comes from the Constitution
itself which empowers the Parliament to make such laws for reasons connected with
Defence, Foreign Affairs or the Security of India. Parliament has exclusive legislative
powers.
 The Union and the States have concurrent legislative powers for reasons connected
with the security of a State, the maintenance of public order or the maintenance of
supplies and services essential to the community.
 Such detention involves custody without any criminal trial, moreover these laws need
not follow the procedural guarantees which are fundamental to the detention of an
individual in the normal course.
 The Parliament has enacted several laws in this respect which in addition to the
notorious Preventive Detention Act include:
 The National Security Act, Section 13, 1980 (provides for administrative detention
for a period of up to one year)
 The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974 (COFEPOSA) (provides for administrative detention for a period of up to six
months)

 The Prevention of Black-marketing and Maintenance of Supplies of Essential
Commodities Act, Section 13, 1980 (six months)
 The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
Section 10, 1988.
Constitutional Policy (Art. 22)
Article 22 of the Indian constitution talks about the protection of life and personal
liberty.
Article 22 of the Indian constitution guarantees every person of the country six
fundamental rights, one of which is the right to freedom. A country with such a large
population like India has a high crime rate. Article 22 assures that each arrested individual
facing a trial has competent legal representation.
Thus, this article deals with the concept of Protection under arrest in light of Article
22 and recent events in the country.
About Article 22:
 It deals with the protection against arrest and detention in certain cases.
 This article is applicable to both citizens and non-citizens.
 This provision extends certain procedural safeguards for individuals in case of an
arrest.
 The idea behind this right is to prevent arbitrary arrests and detention.
 The article provides the following safeguards:
 Article 22(1) – Any person who is in custody has to be informed as to why he has
been arrested. Further, he cannot be denied the right to consult an advocate.
 Article 22(2) – The arrested individual should be produced before a judicial
magistrate within 24 hours of his arrest.
 Article 22(3) – Nothing in clauses (1) and (2) shall apply (a) to any person who for
the time being is an enemy alien; or (b) to any person who is arrested or detained
under any law providing for preventive detention. These safeguards are, however, not
applicable to Enemy aliens and People arrested under preventive detention law.
Art. 23 Right against Exploitation:

There are two articles of the Constitution which guarantee the right against
exploitation. They are described below:

Article 23 – Prohibition of traffic in human beings and forced labour
Article 23(1): Traffic in human beings and the beggar and other similar forms of
forced labour are prohibited and any contravention of this provision shall be an offence
punishable in accordance with the law.
Article 23(2): Nothing in this Article shall prevent the State from imposing
compulsory service for public purposes, and in imposing such service the State shall not
make any discrimination on grounds only of religion, race, caste or class or any of them.
 Exploitation implies the misuse of others’ services by force and/or labour without
payment.
 There were many marginalized communities in India who were forced to engage in
manual and agricultural labour without any payment.
 Labour without payment is known as begar.
 Article 23 forbids/prohibits any form of exploitation.
 Also, one cannot be forced to engage in labour against his/her will even if
remuneration is given.
 Forced labour is forbidden by the Constitution. It is considered forced labour if the
less-than-minimum wage is paid.
 This article also makes ‘bonded labour’ unconstitutional.
 Bonded labour is when a person is forced to offer services out of a loan/debt that
cannot be repaid.
 The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless
persons into labour and forcing helpless women into prostitution is unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and women for illegal and
immoral activities.
 Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide
scope because of the inclusion of the terms ‘forced labour’ and ‘traffic’.
 Article 23 protects citizens not only against the State but also from private
citizens.
 The State is obliged to protect citizens from these evils by taking punitive action
against perpetrators of these acts (which are considered crimes), and also take
positive actions to abolish these evils from society.

 Under Article 35 of the Constitution, the Parliament is authorized to enact laws to
punish acts prohibited by Article 23.
 Clause 2 implies that compulsory services for public purposes (such as conscription to
the armed forces) are not unconstitutional.
 Laws passed by the Parliament in pursuance of Article 23:
 Suppression of Immoral Traffic in Women and Girls Act, 1956
 Bonded Labour System (Abolition) Act, 1976.
Art. 24 Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any other hazardous employment.
*******************
1) What is preventive detention, and how does it differ from punitive detention in the context
of the Indian Constitution?
2) Can you explain the constitutional provisions that authorize the use of preventive detention
in India?
3) What is the significance of Article 22 of the Indian Constitution in relation to preventive
detention?
4) What are the grounds on which a person can be detained preventively under the
Constitution of India?
5) How does the Constitution ensure safeguards and rights for a person detained preventively,
and what are these safeguards?

CHAPTER- 8
SECULARISM
The term “Secular” means being “separate” from religion. Religion is open to one
and all and is given as a personal choice to an individual without any different treatment to
the latter.
The ‘secularism’ is similar to the Vedic concept of ‘Dharma Nirapekshata’ i.e. the
indifference of the state to religion.
Secularism calls for a doctrine where all religions are given equal status, recognition
and support from the state or it can also be defined as a doctrine that promotes separation of
state from religion.
A secular person is one who does not obliged his moral values to any religion. His
values are the product of his rational and scientific thinking.
Secularism stands for no discrimination and partiality on grounds of religion and
equal opportunities to follow all religions.
Historical perspective of India Secularism-
The tradition of Secularism is reserved in the deep roots of the history of India. Indian
culture is based on the blending of various spiritual traditions and social movements.
* Secularism in Ancient India:
Secularism in ancient India had a complex and multifaceted history. It's important to
note that the concept of secularism as it is understood in modern times did not exist in the
same form in ancient India.
1. Religious Diversity:
Ancient India was home to a multitude of religious traditions, including Hinduism,
Buddhism, Jainism, and various tribal and folk religions. This diversity allowed for a certain
degree of religious tolerance and coexistence.
2. Dharma:
The concept of "dharma" was dominant in ancient Indian thought. Dharma referred to
the moral and ethical duties that an individual had to follow in their life.
3. Kingdoms and Empires:
Several ancient Indian empires, such as the Maurya and Gupta empires, promoted a
form of statecraft that allowed for religious pluralism. They often supported multiple
religions and allowed for the coexistence of different faiths within their territories.

4. Asoka's Edicts:
Emperor Ashoka, who ruled the Mauryan Empire in the 3rd century BCE, is often
cited as a symbol of early Indian secularism. His inscriptions, known as Ashoka's
Edicts/Laws, promoted broad-mindedness, non-violence, and religious freedom. He
encouraged peaceful coexistence among various religious groups.
5. Religious Debates and Interactions:
Ancient India saw numerous intellectual debates and interactions among different
religious and philosophical schools, which indicates a certain level of openness and
willingness to engage with diverse ideas.
* Secularism in Medieval India:

Secularism in Medieval India is a complex and multifaceted concept. During this
period, which roughly spans from the 8th century to the 18th century, the Indian subcontinent
saw the rise and fall of various dynasties, empires, and rulers, each with their own approach
to governance, religion, and culture.
1. Diversity of Religions:
Medieval India was marked by a diverse religious landscape, with Hinduism,
Buddhism, Jainism, Islam, Sikhism, and other faiths coexisting in various regions. This
diversity often led to a need for religious tolerance and accommodation.
2. Religious Patronage/support:
Many medieval rulers, both Hindu and Muslim, were known for Superior multiple
religions.
3. Architecture and Art:
The medieval period witnessed the construction of numerous religious buildings that
often incorporated architectural elements and artistic influences from multiple faiths.
4. Literary and Cultural Syncretism:
Medieval India also saw the development of a rich literary and cultural tradition
where poets, philosophers, and scholars often exceeded religious boundaries.
5. Conflict and Intolerance:
While there were periods of relative harmony and tolerance, there were also instances
of religious conflict, particularly during the period of invasions and conquests. These
conflicts often led to the destruction of religious sites and practices.

6. Islamic Rule:
The Islamic rulers in India, particularly during the Delhi Sultanate and Mughal
Empire, were known for their policies of religious tolerance and accommodation.
* Secularism in Modern India:

Secularism in modern India is a concept and a guiding principle that has been
enshrined in the Indian Constitution and plays a vital role in the country's social and political
fabric.
1. Constitutional Foundation:
Secularism is one of the core principles of the Indian Constitution. It is enshrined in
the Preamble of the Constitution, which declares India to be a "sovereign, socialist, secular,
and democratic republic." This constitutional commitment to secularism is crucial in shaping
the country's policies and governance.
2. Equal Treatment of Religions:
One of the fundamental tenets of secularism in India is the principle of treating all
religions equally. The government is expected to be impartial and not favor any particular
religion. This ensures that individuals are free to practice their religion without discrimination
or interference from the state.
3. Freedom of Religion:
The Indian Constitution guarantees freedom of religion to its citizens. People have the
right to practice, profess, and propagate/spread any religion of their choice. This freedom is
protected by various articles in the Constitution, including Articles 25 to 28.
4. Religious Pluralism:
India is home to a different collection of religions, including Hinduism, Islam,
Christianity, Sikhism, Buddhism, Jainism, and many others.
5. Separation of Religion and State:
Secularism in India entails the separation of religion from the state. Unlike countries
with an official state religion, India maintains a neutral stance/stand with respect to religion.
6. Protection of Minority Rights:
India's secularism aims to protect the rights and interests of religious minorities.
Special provisions have been made in the Constitution to safeguard the cultural, educational,
and religious rights of minority communities.

Indian Constitutional Provisions-
In the present scenario, in the context of India, the separation of religion from the
state constitutes the core of the philosophy of secularism.
What is Indian Secularism?
In India, the first face of Secularism is reflected in the Preamble of India where the
word ‘Secular’ is read.
Indian Secularism is also reflected in its fundamental rights (Article 25-28) where it
guarantees each of its citizens the right to practice any religion.
In the words of P. B. Gajendragadkar, a former Chief Justice of India, secularism is
defined as ‘The State does not obliged loyalty to any particular religion as such: it is not
irreligious or anti-religious; it gives equal freedom to all religions.
Secularism and Indian Constitution

Various provision of the Indian constitution clearly incorporates the basic principles
of Secularism.
With the 42nd Amendment of the Constitution of India (1976), the Preamble to the
Constitution asserted that India is a “secular” nation. The meaning of a secular state is that it
does not highlight any one religion for the country and its people. Institutions started to
recognize and accept all religions, enforce parliamentary laws instead of religious laws, and
respect pluralism.
Right to Freedom of Religion-
The Constitution of India guarantees the right to freedom of religion to not only
individuals but also religious groups in India. This is enshrined in Articles 25 to 28.
1) Article 25 (Freedom of conscience and free profession, practice, and propagation of
religion):
Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and
propagate religion to all citizens.
 The above-mentioned freedoms are subject to public order, health, and morality.
 This article also gives a provision that the State can make laws:
 That regulates and restricts any financial, economic, political, or other secular activity
associated with any religious practice.
 That provides for the social welfare and reform or opening up of Hindu religious
institutions of a public character to all sections and classes of Hindus. Under this

provision, Hindus are construed as including the people professing the Sikh, Jain, or
Buddhist religions, and Hindu institutions shall also be construed accordingly.
 People of the Sikh faith wearing & carrying the kirpan shall be considered as included
in the profession of the Sikh religion.
2) Article 26 (Freedom to manage religious affairs):
This Article provides that every religious denomination has the following rights,
subject to morality, health, and public order.
 The right to form and maintain institutions for religious and charitable intents.
 The right to manage its own affairs in the matter of religion.
 The right to acquire the immovable and movable property.
 The right to administer such property according to the law.
3) Article 27 (Freedom as to payment of taxes for promotion of any particular religion)

Religion and State control and non-interference with religion:
According to Article 27 of the Constitution, there can be no taxes, the proceeds of
which are directly used for the promotion and/or maintenance of any particular
religion/religious denomination.
4) Article 28 (Freedom as to attendance at religious instruction or religious worship in

certain educational institutions):
This article permits educational institutions that are maintained by religious groups to
disseminate religious instruction.
 This provides that no religious instruction shall be provided in State-run educational
institutions.
 Educational institutions administered by the State but that were established under any
endowment/donation or trust which requires that religious instruction shall be
imparted in such institutions are exempt from the above clause (that no religious
instruction shall be provided).
 Any person who attends any educational institution recognized by the State or
receiving State aid shall not be required to participate in any religious instruction that
may be imparted in such institution, or also attend any religious worship in such
institutions unless he/she has given consent for the same. In the case of minors, the
guardians should have given consent for the same.

Concept of Secularism – American model
Secularism in the United States refers to the separation of church and state
irrespective of one’s own religion or lack thereof.
 The modern concept of secularism owes a lot to the movement of Separation of
Church and State in the United States.
 The United States is also credited with being the first explicitly secular nation, not
only in the West but in the entire world.
 In the United States, the Establishment Clause in the first amendment is the basis for
many cases involving the sponsorship of religion in the public sphere.
 In the United States, the stance of being secular is more of passive neutrality rather
than an active effort to rid religion for the public indefinitely.
However, despite it being neutral, there have been court cases that have clearly been
pro-secular, blurred the lines between the separation of church and state, and encouraged the
resurgence of religious influence in the government arena.
 The Establishment Clause is not a perfect defence, but it is one of the most prominent
walls blocking an established religion in the United States.
 However, contradictions have occurred between the Establishment Clause and the
Free Exercise Clause.
 The Founding Fathers of the United States did, indeed, create a secular state.
 The historical forces that led them to inscribe absolute liberty of conscience in matters
of religion in the Constitution, and to cast a wary eye on religion, also supported the
process of disestablishing state churches.
The intent, as Madison (one of the founding fathers and the fourth President of the
US) explained, was “the idea of religious freedom as protected by the separation of church
and state.”
Separation of state- Church- Is it relevant to India?
It connotes a complete separation between the religion (the church) and the state (the
politics). The positive concept of secularism is reflected in India. The Indian Constitution
embodies the positive concept of secularism, i.e., giving equal respect to all religions or
protecting all religions equally.
************
1) How is secularism defined and guaranteed in the Preamble of the Indian Constitution?

2) What is the significance of the term "secular" added to the Preamble through the 42nd
Amendment in 1976?
3) How does the Constitution ensure the freedom of religion and conscience for all citizens?
4) What are the key provisions in the Indian Constitution that uphold the principle of
secularism?
5) What is the role of Article 25 in protecting religious freedom in India?
6) How does the Constitution protect the rights of religious minorities in India?

CHAPTER- 9
MINORITY RIGHTS
In India, we have multiple religions, cultures, traditions and heritage. There are 8
Major religious belief systems with their distinct heritage and culture (Hinduism,
Christianity, Judaism, Buddhism, Jainism, Sikhism, and Zoroastrianism). From Kashmir to
Kanyakumari there are 22 official languages with more than 800 dialects available.
Minority word comes from the Latin word ‘Minor’ and joins with the ‘ity’ suffix to
make meaning of ‘small in number’.
According to the United Nations, ‘Any group or community which is socially,

politically and economically non-dominant and inferior in the population are minorities.’
The constitution of India has not defined the word ‘minority’ anywhere.
Historical background behind the protection of minority rights under the Constitution-
In the past, the invasions in Ancient and Medieval India generated minority
communities like Muslims, Anglo- Indians, and Christians etc. India became a composite of
Minorities because of migration of communities fearing religious persecution like Parsis,
Divide and rule policy of British colonial power etc.
The objective resolution moved by Pandit Jawaharlal Nehru in the Constituent

Assembly on 13th December 1946, unanimously adopted by Constituent Assembly on 22nd
January 1947 where it was decided that a safeguard mechanism will be adopted for minority
communities, and depressed backward classes and tribal areas of the nation.
The Constitutional drafting committee had formulated various provisions and laws in
1948, under the name of “Special Provisions Relating to Minorities” in Part XIV (14) and
numbered in 292-301 Article.
 The provisions for special rights of minorities were modified substantially and finally,
no special rights except cultural and educational were concerned to minorities.
 The constitution which was adopted by the Constituent Assembly of India in
November 1949 and came into force on 26th January, 1950 with no reservation of
seats in the Legislative bodies and public services for religious minorities as
originally planned.
 The religious minorities from the purview of group-preference requirements were
excluded because the Constituent Assembly held that control to such protections was

reliable only for the development of backward and not to conserve the distinct
cultural personalities.
Minorities faced various problems such as problems of getting protection, problems

of communal tensions and riots, the problem of lack of representation in civil service and
politics and the problem of separatism. Other problems are failure to stick to secularism,
problems relating to the introduction of a common civil code.
 Minority rights in India protect people from being discriminated against on grounds
of their ethnic cultural, linguistic or religious identity.
 Individuals belonging to minorities must be able to learn and use their language, use
their own names, preserve and freely express their identity.
 Minority rights, therefore, guarantee equality before the law, protection of basic
freedom, non-discrimination and protection against violence on the grounds of
identity, participation in political and public life, possibilities for cooperation with
other communities and organisations within states and across borders.
 Rights of Minorities are the inherent part of human rights. They promote
broadmindedness and respect for diversity/verity.
 Their aim is to ensure that minorities and majorities live peacefully together and
support each other in building a better future.
Cultural & Educational Rights – Articles 29 and 30
 Cultural education is a reflection of the cultures and heritage of any society in the
world.
 Every citizen and child is taught to learn their culture and to reflect same to the
society.
 The cultural and educational rights are provided to all citizens of the society to
preserve their own culture and language.
 The Indian society is full of diversity with many cultures, scripts, languages, etc. So,
our constitution makers believe that our strength is in diversity/variety/mixture and
we have to preserve and save this diversity.
The Cultural and Educational Rights are given under Articles 29 and 30. The right to
protection of these rights like the right to protect language, script, culture is given by
Fundamental Rights. Even states are prohibited to discriminate against any citizen in these
rights provided in the Indian Constitution.

Protection of Interest of Minorities:
 Article 29(1) provides that any citizens of India having a different language or culture
have the right to protect and conserve it.
 Article 29 (1) does not specify any religion, even though the heading of the Article
mentions the protection of interest of minorities.
 Article 29 (1) is not subject to any reasonable restrictions. The Constitution
provides the absolute right to conserve it.
 It must be noted here that how will the citizens having a distinct language, script or
culture conserve their interest is not mentioned in Article 29 (1). The Constitution has
left open the scope for them to decide the method employed to conserve language etc.
 Article 29 (2) provides the state cannot prohibit any citizens from taking admission in
any government educational institution or receiving aid or funds from the government
on grounds mentioned under Article 15 of discrimination.
 The benefit of Article 29 (2) is not confined only to minorities but extends to all
citizens whether belonging to majority or minority.
 Article 29 (2): No citizen shall be denied admission into any educational institution
maintained by State or receiving aid out of State funds on grounds only of religion,
race, caste, language or any of them.
Interconnection of Article 15 and Article 29 (2):
 Article 15 includes all kinds of discrimination while Article 29 includes

discrimination only with the respect to admission to educational institutions.
 In Article 15 language is not ground of restrictions while in Article 29 place of birth
and sex is not ground.
 Article 15 is against the state only while Article 29 is against the state and any other
body.
Rights to Establish and Administer Educational Institutions by Minorities:
Article 30 (1) is provided only to linguistic or religious minorities and not to any other
minorities, Linguistic or religious minorities have the following rights:
1) Right to establish educational institutions.

2) Minorities Right to administer educational institutions of their choice.

The idea of giving special rights to minorities is to give them a sense of security and a
feeling of confidence. St. Xaviers College v. the State of Gujarat, SC held that the spirit
behind Article 30(1) is the conscience of the nation that minorities (religious or linguistic) are
not prohibited from establishing and administering educational institutions.
In T.M.A. Pai Foundation v. the State of Karnataka, Supreme Court held that the
expression educational institutions’ means institutions that impart education, including
education at all levels from primary to postgraduate as well as professional education.
Definition of Minorities:
Article 30(1) uses the word “linguistic’ or ‘religious’ minorities. The word ‘or’
indicates that a minority may be either linguistic or religious and that it does not have to be
both. The term ‘minority’ has not been defined in the Constitution.
In T.M.A. Pai Foundation v. the State of Karnataka, Supreme Court held that a
minority has to be decided according to the State in which the educational institution is
established. The minority is what numerically less than 50% is. This position is about
‘linguistic’ as well as ‘religious’ minorities. National Commission for Minority Educational
Institutions Act, 2004 decides all questions relating to the status of any institution as a
Minority Educational Institution. Any person who desires to establish a minority educational
institution has to get a no-objection certificate [NOC] from the commission.
Establish and Administer:
The words establish and administer are related to each other. Minorities can claim the
right to administer an educational institution only if it has established it. The right to
administer an educational institution consists of the following four matters:
 Right to choose a managing or governing body.

 Right to choose teachers.
 Admission of students on their own choice must have reasonable restrictions on
academic qualifications.
 Right to use the properties and assets for the benefit of the institution.
In S.P. Mittal v. Union of India, Supreme Court held that to claim the benefit of
Article 30(1), the community must show:
 It is a religious and linguistic minority and

 The institution was established by it.

Without satisfying these two conditions, benefits under Article 30(1) cannot be
claimed.
Relationship between Article 29(1) and Article 30(1):
In St. Xaviers College v. the State of Gujarat, Supreme Court held that
1) Article 29(1) confers right on any section of citizens, including minorities while
Article 30(1) confers right only on religious or linguistic minorities.
2) Article 29(1) deals with language, script, and culture, while Article 30(1) deals with
minorities of language and religion.
3) Article 29(1) deals with the right to conserve language while Article 30(1) deals
with the right to administer educational institutions.
The Extent of Regulation by State:

Prima facie it appears that the freedom granted under Article 30(1) is absolute in
nature. It has not been made subject to any reasonable restrictions. In this connection,
Supreme Court on the Kerala Education Bill said that the right conferred on the religious and
linguistic minorities to administer institutions of their choice is not an absolute right.
In St. Xaviers College v. the State of Gujarat, Supreme Court held that right to
administer does not mean the right to maladminister. Regulatory measures such as syllabus,
courses, curriculum, minimum qualifications of teachers, superannuation, health, etc. can be
imposed. These regulations are there to promote educational standards and maintain
uniformity.
As far as question affiliation of educational institutions is concerned, Supreme Court
in T.M.A. Pai Foundation v. the State of Karnataka, and P.A. Inamdar v. the State of
Maharashtra, held that considerations for granting recognition to a minority educational
institution and casting accompanying regulations would be similar as applicable to a non-
minority institution subject to two overriding conditions:-
1) Recognition is not denied solely on the ground of educational institution being one
belonging to minority and
2) The regulation is neither aimed at nor has the effect of depriving the institution of its
minority status.
In T.M.A. Pai Foundation v. the State of Karnataka, Supreme Court laid down the
following:
1) The state is to be regarded as a unit for determining linguistic as well as a religious
minority.

2) Institutes which receive aid from the State could be subject to government rules and
regulations.
3) In respect of unaided institutions, the only regulation that the government may put is
regarding the qualifications and minimum conditions of eligibility of teachers and
principals.
4) Conditions of recognition and affiliation by or to a Board or University are to be
complied with.
5) An aided institution has to admit a reasonable number of non-minority students.
6) Minority institutions may have their procedure and method of admission but the
procedure must be fair and transparent.
In Islamic Academy of Education v. the State of Karnataka, Supreme Court held that
educational institutions can have their fee structure but there must be no profiteering and
capitation fee charged. Subsequently in P.A. Inamdar v. the State of Maharashtra, Supreme
Court clarified the issues raised in T.M.A. Pai’s case and Islamic Academy’s case. Supreme
Court held the following:
 Minority educational institutions may be classified into 3 categories, firstly, those
who do not seek aid or recognition, secondly, those who want only aid and no
recognition and thirdly, those who want recognition and no aid.
 Each minority institution is entitled to have its reasonable fee structure.
 Unaided professional institutions will have full control in their administration, but the
Right to administer does not mean the right to maladminister.
 Without interfering in matters of unaided institutions, the object of merit-based
admissions can be secured by insisting on the management.
 Neither the policy of reservation be enforced by the State nor can any quota or
percentage of admissions by the State in a minority or non-minority unaided
educational institutions.
************

CHAPTER- 10
CONSTITUTIONAL REMEDIES
What are the constitutional remedies under Article 32?
Part-III of the Constitution provides for legal remedies for the protection of these
rights against their violation by the State or other institutions/individuals.
Type of Writs:
1) Habeas Corpus.
2) Certiorari.
3) Prohibition.
4) Mandamus.
5) Quo-Warranto
What is a constitutional remedy?
Constitutional remedies support the protection of fundamental rights and ensure that
people whose fundamental rights have been violated can seek relief directly from the
Supreme Court or different High Courts of India.
What are the constitutional remedies under Article 32 and 226?
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.
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/conferred/given 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/certain 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.”
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 1912, 2113 & 2214 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
12
Right to freedom
13
Right to life and personal liberty
14
Protection against arrest and detention in certain cases.

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 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 35915 - right to move any court).
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.
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.
15
Suspension of the enforcement of the rights conferred by Part- III during emergency.

Important Case Laws-
In the case of Ashok Pandey v. Mayawati, the writ of Quo Warranto was refused
against Ms. Mayawati (CM) and other ministers of her cabinet even though they were Rajya
Sabha members.
The Writ of quo warranto was denied by the court in the case of Jamalpur Arya
Samaj v. Dr.S D. Ram. 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.
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 anybody or an organisation that does
not fall under the definition of “State” as defined under Article 12.
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 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/existing.

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, 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, 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.
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.
Case Law-
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., 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.
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
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’.
In case of East India Commercial Co. Ltd v. Collector of Customs, 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.

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:
1) 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.
2) 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.
3) 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.
4) 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.
5) 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.
6) Malicious petition
If the petition submitted to the Supreme Court is found to be malicious or useless, the
Supreme Court may dismiss it under Article 32.

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.
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/attack,
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.
*************

CHAPTER- 11
FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES
Directive Principles-Reasons for incorporation
The Concept of DPSP is not an indigenous one. Our Constitution makers borrowed
this concept from Irish Constitution (Article 45), it has its genesis in Spanish Constitution.
Part IV of the Constitution of India deals with Directive Principles of State Policies. To
understand the meaning of the directive principle of state policy, we need to understand the
meaning of each word i.e. Directive + principle + state + policy which suggest that these are
the principles that direct the state when it makes policies for its people. These DPSPs act
as a guideline for the state and are needed to be taken into consideration while coming up
with any new law but a citizen cannot compel the state to follow DPSPs.
Directive principles- Direction of Social Change

 Directive Principles of State Policy aim to create social and economic conditions
under which the citizens can lead a good life.
 They also aim to establish social and economic democracy through a welfare state.
 Though the Directive Principles are non-justiciable rights of the people but
fundamental in the governance of the country, it shall be the duty of the State to apply
these principles in making laws per Article 37.
 Besides, all executive agencies of union and states should also be guided by these
principles.
 Even the judiciary has to keep them in mind in deciding cases.
A new social order Fundamental Rights and Directive Principles- inter-relationship
Judicial balancing
 The compatibility between Fundamental Rights and DPSPs has always been
contentious.
 The applicability of both the concepts needs to be understood because if the
Constitution is a coin then Fundamental Rights and DPSPs are two facades of that
coin.
 On the one hand Part-III i.e. Fundamental Rights limit the power of government and
restrains the state from making any law which contravenes the interests of its people,
on the other hand,
 Part-IV helps the state in making a law which harmonizes the interest of its people.

 Both Fundamental rights and Directive Principles of State Policy hold equal relevance
and significance in the current legal scenario and cannot overlook each other.
 Many people argue that DPSPs are useless because of its non-justifiability but we
need to understand that these are not only the guiding principles but also lay down the
broad objectives and ideals that India strives to achieve.
Judicial Pronouncements-
The question that whether Fundamental Rights leads DPSPs or latter takes precedence
over former has been the subject of debate for years. There are judicial pronouncements
which settle this dispute.
State of Madras v. Champakan (AIR 1951 SC 226),
The Apex Court was of the view that if a law contravenes a Fundamental right, it
would be void but the same is not with the DPSPs. It shows that Fundamental rights are on a
higher pedestal/base/stand than DPSPs.
In Kerala Education Bill (1957) (1959 1 SCR 995)
Court said that in case of conflict between Fundamental Right and DPSPs, the
principle of harmonious construction should be applied.
In Keshavnanda Bharati v. the State of Kerala (1973) 4 SCC 225),
The Apex Court placed DPSPs on the higher pedestal than Fundamental Rights.
Ultimately in the case of Minerva Mills v. Union of India (AIR 1980 SC 1789), the question
before the court was whether the directive principles of State policy
enshrined/protected/preserved in Part IV can have primacy over the fundamental rights
conferred by Part III of the Constitution. The court held that the doctrine of harmonious
construction should be applied because neither of the two has precedence to each other. Both
are complementary therefore they are needed to be balanced.
In Unnikrishnan v. State of Andhra Pradesh (1993 SCC (1) 645)
The Court was of the view that Fundamental Rights and Directive Principles are not
exclusive to each other therefore they should not be read in exclusion.
Constitutional amendments: Art. 31A, 31-B, and 31-C to strengthen Directive principles
After 1978, in the area of property relations, we are left with only four constitutional
provisions, viz; Art. 31A, 31B, 31C and 300A.
Art. 31A, B, C although included in the Chapter on Fundamental Rights, can hardly
be characterized as amounting to Fundamental Rights to property in the real sense,

for, these three constitutional provisions, in effect, do not confer any rights, but
instead seek to impose drastic restriction on the right to property.
The purport of these three provisions is to confer immunity on various types of laws
curtailing property rights.
Art. 300-A does confer some aspect of protection on private property, but this
constitutional provision does not enjoy the status of a Fundamental Rights.
Art. 31A: Saving of Laws from Arts. 14 and 19

History behind Article 31A-
 After independence when Congress was in power at center it decided to launched the
abolition of Zamindari Programme in which it abolished the Zamindari system and
acquired the lands of Zamindars.
 But the main difficulty before the government was of paying compensation.
 In Art. 31(2) the word compensation was used without any adjective like just or
reasonable. Thus Supreme Court interpreted its meaning as ‘just compensation’.
Various land legislations were declared invalid and were challenged under Article 14
and 19(1)(f).
In Kameshwar Singh v. State of Bihar, the Bihar Land Reforms Act, 1950
It was held invalid under Art. 14 for it classified the zamindars in a discriminatory manner
for the purpose of compensation. Therefore, finding Zamindari Abolition Programme in
danger because of these judicial pronouncements, the central government amended the
Constitution and a new provision Art. 31A was added.
This new Article laid down that no law providing for the acquisition by the state of
any estate or of any rights therein, or for the extinguishing or modifying any such rights,
would be void on the ground of any inconsistency with any of the fundamental rights
contained in Arts. 14, 19 and 31.
As Art. 31 was the only Constitutional Provision providing for compensation, which
means an estate can be acquired or rights can be modified without paying compensation. The
only exception was that such law should receive the assent of the President.
After the 44th Amendment Act in which Art. 31 was repealed, consequently Article
31 was removed from Art. 31A(1).
The word estate in sub clause (a) of Article 31A (1) is defined in clause 2(a) to have
the same meaning as that expression or its local equivalent has in the existing law relating to

the land tenures in force in that area, and by inclusive definition it takes in any jagir, inam or
muafi or other similar grants and in the states of Tamil Nadu and Kerala any Janman rights.
The object of Article 31A (1) (a) is to bring a change in the agricultural economy and
facilitate agrarian reforms and it is applied to legislations affecting the rights of landlords and
tenants.
In K.K. Kochuni v. State of Madras,
It was held that the protection of this clause is not applicable to a law which seeks to
modify the rights of the owner without any reference to agrarian reforms.
In State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg) Co. Ltd., the court held that
there has to be a direct nexus between the subject matter acquired and its utilisation for
agrarian reforms.
The second proviso to Art. 31A (1) refers to ceiling limits. This proviso says that the
land exempted from acquisition should be within the ceiling limit and must be under personal
cultivation.
The Supreme Court in the case of Bhagat Ram v. State of Punjab, interpreted the
object of this proviso. The Court said that a person who is cultivating land personally and it is
his source of livelihood, should not be deprived of that land under any law protected by Art.
31A unless the compensation at market rate is given.
Emergence of Article 31 B: Validation of certain Laws

 Art.31A was added to the Constitution by the Constitution (First Amendment) Act,
1951.
 It was added as a constitutional device to protect the specified statutes from any
attack on the ground that they infringe Part-III of the Constitution.
 It has retrospective effect which is clear from the words “ever to have become void”.
 The introduction of this provision has cure the defects in various Acts of the 9th
schedule as regards to the unconstitutionality alleged on the grounds of infringement
of Part-III of the Constitution, these Acts even if void or inoperative at the time, they
were inactive by reason of infringement of Article 13(2) of the constitution assumes
full force from the respective dates of their enactment after their inclusion in the Ninth
schedule read with Article 31-B of the Constitution.

 The Ninth schedule consists of 284 legislations until the constitution (78th
amendment) Act, 1995 but Article 31-B did not empower the legislatures to amend
these Acts inconsistently with the provisions of the constitution or to take away the
rights conferred by the Constitution.
 The amendments must be consistent with the provision of the Constitution or be saved
under Article 31-A of the Constitution, if not they must be held void.
Emergence of Article 31 C:- Saving of Laws giving effect to certain directive principles
Insertion of Article 31-C by the Twenty-Fifth Amendment
 Article 31-C “Notwithstanding anything contained in Article 13, no law giving effect
to the policy of the state towards securing [all or any of the principles laid down in
Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by [Article 14 or Article 19] and [no law
containing a declaration that it is for giving effect to such policy shall be called in
question in any court on the ground that it does not give effect to such policy].
Provided that where such law is made by the Legislature of a State, the provisions of
this Article shall not apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent Right to Constitutional Remedies. ”
 The insertion of this Article made Art. 14, 19 and 31 inapplicable to certain laws
made by Parliament or any legislature.
 Along with this it was also added that a declaration in the law that is to implement the
directive principles enshrined in Art. 39 (b) and (c) cannot be questioned in a court of
law.
 Therefore, the insertion of this Article granted complete immunity to a law from
judicial scrutiny if the President certified that it was enacted to promote the policy laid
down in Art. 39 (a) and (b). The provisions of this Article would apply only if the law
had received the assent of the President.
History behind Article 31C-

 This Article was inserted by the 25th Constitutional Amendment (1972) to get over
the difficulties placed by judicial decisions in the way of giving effect to the Directive
Principles in Part-IV.

 It provided immunity from any challenge on the grounds of violation of Article 14, 19
and 31 any law enacted for implementing the directives in clause (b) and (c) of Article
39.
 In the 25th amendment it was further provided that such law made to give effect to the
policy under Article 39 (b) and (c), would not be open to judicial review.
However, this second part was struck down in Keshavananda Bharti v. State of
Kerala, but rest of the Article was held valid.
 After this amendment 42nd Constitutional Amendment Act (1976) was passed by the
Parliament which replaced Article 39 (b)-(c) by all Directives contained in Part IV of
the Constitution.
 The part which was held unconstitutional in the Keshavananda Case was not
omitted from the official text of the Constitution, since later cases seems to restrict the
scope of judicial review of the statutory declaration only to the narrow question
whether there is a reasonable nexus between the Act passed and the objects of the
directive it seeks to implement.
 But in the Minerva mills v. Union of India, it was held that extending the immunity
of Article 31C to all the Directives of Part IV by the 42nd amendment was
unconstitutional, thus, Article 31C is confined to its pre 1976 position, which has not
been overruled by any larger bench yet.
Directive Principles of State Policy-
 The source of the concept of DPSP is the Spanish Constitution from which it came in
the Irish Constitution. The makers of the Indian Constitution were very much
influenced by the Irish nationalist movement and borrowed this concept of DPSP
from the Irish Constitution in 1937.
 The Government of India Act also had some instructions related to this concept which
became an important source of DPSP at that time.
 The Directive Principles of the Constitution of India have been greatly influenced by
the Directive Principles of Social Policy.
 The Indians who were fighting for the independence of India from the British rule
were greatly influenced by the movements and independence struggles of Ireland at
that time, to free themselves from the British rule and move towards the development
of their constitution.

 DPSP become an inspiration for independent India’s government to tackle social,
economic and various other challenges across a diverse nation like India.
 DPSP and fundamental rights have a common origin. The Nehru Report of 1928
contained the Swaraj Constitution of India which contained some of the fundamental
rights and some other rights such as the right to education which were not enforceable
at that time.
 Sapru Report of 1945 divided fundamental rights into justifiable and non-justifiable
rights.
 Justifiable rights, the one which was enforceable in a court of law and included in Part
III of the Constitution. On the other hand, Non-justifiable rights were listed as
directive principles, which are just there to guide the state to work on the lines for
making India a welfare state. They were included in part IV of the Constitution of
India as Directive Principles of State Policy.
 The Constituent Assembly was given the task of making a constitution for India. The
assembly composed of elected representatives and Dr. Rajendra Prasad was elected as
its President.
 Both the Fundamental Rights and the DPSP were enlisted in all the drafts of the
constitution (I, II and III) prepared by the Drafting Committee whose chairman was
Dr. B.R. Ambedkar.
Features-
 DPSP are not enforceable in a court of law.
 They were made non-justifiable considering that the State may not have enough
resources to implement all of them or it may even come up with some better and
progressive laws.
 It consists of all the ideals which the State should follow and keep in mind while
formulating policies and enacting laws for the country.
 The DPSPs are like a collection of instructions and directions, which were issued
under the Government of India Act, 1935, to the Governors of the colonies of India.
 It constitutes a very comprehensive economic, social and political guidelines or
principles and tips for a modern democratic State that aimed towards inculcating the
ideals of justice, liberty, equality and fraternity as given in the preamble. The
Preamble consists of all the objectives that needs to be achieved through the
Constitution.

 Adding DPSP was all about creating a “welfare state” which works for the individuals
of the country which was absent during the colonial era.
Art. 36: Defines the “state”-
 Article 36 contains the definition of State.
 Unless the context otherwise requires, the definition of “the State” is the same as it is
given in Part III which covers Fundamental Rights.
 The definition given in Article 12 shall apply in this part as well which says that the
State includes:
 The Government of India
 The Parliament of India
 The Government of each of the States
 The Legislature of each of the States
 All the authorities whether local or any other which are the part of Indian territory or
under the control of the government.
Art. 37: Part IV of the Indian Constitution shall not be enforceable in any court of law.
 Article 37 mentions the two important characteristics of DPSP, and they are:
 It is not enforceable in any court of Law.
 And they are very basic and essential for the governance of the country.
The provisions mentioned in this part shall not be enforceable in any court and the
principles laid down in this part are fundamental for the governance of the country. The State
must make laws according to it because the ultimate aim of the State is the welfare of its
citizens.
Art. 38: Social, Political and Economic Justice.
 Article 38 talks about Social, Political and Economic Justice.
 It directs that the State should secure a social order which provides social, political
and economic justice to all its citizens.
 Article 38(2) says that state shall reduce the inequalities faced by the people on the
grounds like income, status, facilities, opportunities, etc.
Art. 39: Principles of Policy.
 Article 39 mentions all the Principles of policy which must be followed by the State.
 The State shall make its policies towards securing the following objectives—

 All the men, women and citizens should have the right to an adequate means of
livelihood
 The ownership and control of the people over any material resources under the
community should be distributed as it is for the common good of the public;
 The functioning of the economic system should be such that the concentration of
wealth and the means of production don’t result in a loss common to all or which
causes detriment to the citizens;
 There shall be no gender discrimination, both men and women should get equal pay
for equal work.
 The health and strength possessed by any worker, men and women, and the tender age
of children should not be abused and the citizens should not be forced to enter and
indulge into any occupation or profession which is not suitable for their age or
strength, not even out of any financial necessity or economic backwardness
 Children must be given enough opportunities and facilities so that they develop in a
healthy manner and in such conditions where their freedom and dignity, including the
fact that their childhood and youth remain protected, against any form of exploitation
and against any sort of moral and material abandonment.
Art. 39 A: Free Legal aid.
 Article 39A talks about Free Legal aid.
 It says that the State shall promote justice with the aim of administering Justice on the
basis of equal opportunity, and shall provide free legal aid through any suitable
legislation or schemes which State may think fit ,or, in any other way, so that it could
ensure that the opportunities for securing justice are not denied to any citizen because
of economic backwardness or any other kind of disabilities.
Art. 40: Organization of Panchayats.
 Article 40 deals with the Organization of Panchayats.
 It says that the state shall organize Panchayat system and should grant them such
powers which would be necessary for the functioning as units of the self-government
system.
 The 73rd and 74th amendments of the constitution which are related to Panchayati Raj
and Municipal Corporations respectively, later ended up as the constitutionally
backed framework for the principle mentioned in Part IV.

Art. 41: Welfare Government.
 Article 41 talks about Welfare Government.
 It says that state shall make some effective provisions for securing the right to work,
etc. and in cases of unemployment, old age, disablement or any other cases acting in
its economic capacity & development it shall provide public assistance.
 This article is employed as a tenet for numerous social sector schemes like social
assistance program, right to food security, old-age pension scheme, MGNREGA, etc.
Art. 42: Securing just and humane work and maternity relief.
 Article 42 talks about Securing just and humane work and maternity relief.
 It says that state shall create some provisions so that the citizens get easy, just and
humane conditions for working. It shall also provide maternity relief for the women.
Art. 43: Fair wages and a decent standard of life.
 Article 43 talks about Fair wages and a decent standard of life.
 It says that the state can endeavor to secure by appropriate legislation or economic
organization to all the workers employed in agricultural, industrial or otherwise, work,
a living wage, conditions of work, ensuring a decent standard of life and enjoyment of
leisure and social-cultural opportunities and promote cottage industries on an
individual or cooperative basis in rural and remote areas of the country.
Art. 43 A: Workers participation in management
 The state shall take steps, to secure the participation of workers in the management of
undertakings, establishments or other organisations engaged in any industry.
Art. 43 B: Deals with the promotion of cooperatives.
 It was inserted by the 97th amendment act in 2011. It says that state shall endeavor to
promote the management of the co-operative societies to help the people who are
engaged in the same.
Art. 44: Uniform Civil Code.
 Article 44 talks about the Uniform Civil Code.
 There should be a provision for the citizens to secure a Uniform Civil Code
throughout the territory of India in order to simplify things and reduce ambiguity in
the laws which makes it more complex than it actually is.
Art. 45: Infant and Child Care.
 Article 45 contains the Provision for free and compulsory education for the children
in the country.

 The State shall make laws to provide free and compulsory education for the children
until they are 14 years old within a period of 10 years from the date of
commencement of this provision in the Constitution.
 This provision was incorporated by the virtue of the 86th Amendment, 2002 in the
Constitution of India.
Art. 46: Protection of SCs, STs and other weaker sections from exploitation.
 Article 46 deals with the Protection of SCs, STs, weaker sections from exploitation.
 The State shall promote with special care including the educational and economic
interests of the weaker sections of the society i.e. the SCs and the STs and shall make
provisions to protect them from all forms of exploitation which includes social
injustice.
Art. 47: Nutrition, Standard of living and public health.
 Article 47 talks about Nutrition, Standard of living and public health.
 It says that the State shall look into the matter of raising the level of nutrition and the
standard of living of its people and it is the duty of the State to keep a check on the
improvement of public health. The State shall endeavor to prohibit the consumption
of intoxicating drinks and drugs which are injurious to health except for medicinal
purposes.
 There are many social development programmes such as National Health Mission,
Mid Day Meal Scheme, etc. which target the marginalized sections of the society i.e
women, children, weaker sections etc. are inspired by this DPSP.
Art. 48: Scientific agriculture and animal husbandry.
 Article 48 talks about Scientific agriculture and animal husbandry.
 It says that the State shall endeavor to organize agriculture and animal husbandry
using modern methods and scientific techniques which make people more advanced
and helps in earning their livelihood easily and State shall take some progressive steps
for preserving and improving the existing breeds and prohibiting the slaughter of
cows and other cattle.
Art. 48A: Environment and Wildlife Protection.
 Article 48A talks about the Environment and Wildlife Protection.
 The State shall endeavour to protect and improve the environment and surroundings.
And to safeguard the forests and wildlife of the country to make the environment
sustainable.

Art. 49: Protection of monuments and places and objects which have national
importance.
 Article 49 talks about Protection of monuments and places and objects of national
importance.
 It shall be the duty of the State to protect every monument or place or any object of
historic or artistic interest which has some national importance, from any form of
disfigurement, destruction, etc.
Art. 50: Judiciary should be separate from the Executive.
 Article 50 talks about Separation of Judiciary from the Executive.
 There should be a line between the judiciary and the executive body of the
Government in the public services of the State as it makes it easier if both do not
interfere in each other’s work and function independently.
Art. 51: The state shall promote international peace and security.
 Article 51 talks about Promotion of international peace and security.
 The State shall endeavour to —
 Promote international peace and security;
 maintain friendly and honourable relations between nations;
 foster respect for international law and treaty obligations in the dealings of one person
with another for maintaining harmony between the nations and
 encourage settlement of international disputes by the method of arbitration.
* FUNDAMENTAL DUTIES (ART. 51A)

Article 51 A of the Indian Constitution enlists 11 Fundamental duties. They are
mentioned below.
It shall be the duty of every citizen of India-
1) To abide by the constitution and respect its ideals and institutions, the National Flag
and the National Anthem;
2) To cherish and follow the noble ideals which inspired our national struggle for
freedom;
3) To uphold and protect the sovereignty, unity and integrity of India;
4) To defend the country and render national service when called upon to do so;

5) To promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to
renounce practises derogatory to the dignity of women;
6) To value and preserve the rich heritage of our composite culture;
7) To protect and improve the natural environment including forests, lakes, rivers, and
wildlife, and to have compassion for living creatures;
8) To develop the scientific temper, humanism and the spirit of inquiry and reform;
9) To safeguard public property and to abjure violence.
10) To strive towards excellence in all spheres of individual and collective activity, so that
the nation constantly rises to higher levels of endeavour and achievement;
11) Who is a parent or guardian to provide opportunities for education to his child or, as
the case may be, between the age of six and fourteen years. This duty was added by
the 86th Constitutional Amendment act, 2002.
Fundamental Duties: Non-enforceable and Non-justiciable
 The fundamental duties are non-enforceable and non-justiciable in nature
 No citizen can be penalised by a court for violating the fundamental duties
 Just like the directive principles of the state policy in the constitution, fundamental
duties are non-enforceable
Fundamental Duties: Prominent Features
 Fundamental duties are categorised into two
 Moral Duties (e.g. cherishing the noble idea of the freedom struggle)
 Civil duties(e.g. respect the institution and national flag/ national anthem)
 The Fundamental Duties are restricted to citizens only, whereas the fundamental
rights expands to all persons
 The Constitution does not provide for their direct enforcement by courts but the
Parliament is free to enforce them by suitable legislation
 These duties also emphasise the values which have been a part of the Indian practices
***********

Relationship between Fundamental Rights, directive principles and fundamental duties.
Sr. Fundamental Rights Directive Principles of State Fundamental Duties
No Policy
1 Part 3 of the Constitution of India Part 4 of the Constitution of They are given in only
contains the Fundamental Rights India contains the Directive Article 51- A of 42nd
guaranteed to the citizens of India. Principles. They are given in Amendment
They are given in Art. 12-35 of articles 36-51 of Indian Act, 1976 in Part- IV A.
Indian Constitution. There are six Constitution.
fundamental rights mentioned
under the Constitution of India.
2 The basic rights that are Directive Principles are the The Fundamental Duties are
guaranteed to Indian citizens by guidelines to be followed by the defined as the moral
the Constitution of India are government while framing obligations to all citizens to
known as Fundamental Rights. policies. Economic and Social help promote a spirit of
Political Democracy is established democracy is established with patriotism and to uphold the
in India with the help of the help of directive principles. unity of India.
Fundamental Rights.
3 The welfare of each and every The welfare of the entire The Fundamental Duties
citizen is promoted through community is fostered with the have been incorporated in
Fundamental Rights. And as per help of directive principles. the constitution of India to
government violation of Violation of directive principles remind every citizen that
fundamental rights is punishable. is not a punishable crime unlike they should not only be
violation of fundamental rights. conscious of their rights but
also of their duties. In case
of violation of fundamental
duties it is punishable under
Prevention of Insults to
National Honour Act, 1971.
4 Fundamental rights are justiciable Directive principles are not The Fundamental Duties are
as they can be enforced legally by justiciable as they cannot be non- justiciable as their
the courts if there is a violation. enforced by the courts if there is violation is not punishable.
a violation. But citizens are morally
obligated by the Constitution
to perform these duties.
5 Fundamental rights are sometimes Directive Principles are The Fundamental duties are
considered as a kind of restriction directions for the government in considered to be the moral
imposed on the state. helping it to achieve some obligations of all citizens to
particular objectives. help to promote the spirit of

patriotism.
6 Fundamental rights can be Directive principles of State Fundamental rights can be
suspended during a national Policy can never be suspended suspended during an
emergency. But rights guaranteed under any circumstances. emergency by the President
16 17
under articles 20 & 21 cannot of India under Article 359.
be suspended.
7 Fundamental rights were borrowed Directive principles of State Fundamental Duties
from the constitution of the USA. Policy were borrowed from the were added to the
Constitution of Ireland which Constitution by the 42nd
was also copied from the Amendment in 1976, upon
Constitution of Spain. the recommendations of the
Swaran Committee that was
constituted by the
government earlier that year.
************
16
Protection in respect of conviction for offences.
17
Protection of life and personal liberty.

Constitutional Law - I Notes

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CONSTITUTION

Dr. Sanjay Ambekar

Dr. Sanjay Ambekar Page 0

 General  Indian National Congress 1853

A constitution is a set of fundamental principles according to which a state is

With Independence came the need of a Constitution. A Constituent Assembly was

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The period of historical British Constitutional experiments in India can be divided

Phase 2 – Constitutional experiments under the British Crown (1858-1947)jj+nhjgj

* Historical Perspective: Constitutional Developments since 1858 to 1947-

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2) Pitt’s India Act of 1784-

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5) The Crown Rule (1858-1947)-

6) Indian Councils Act of 1861, 1892 and 1909-

Features of the Act of 1861

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Features of the Act of 1892

Features of the Act of 1909 (Morley-Minto Reforms)

7) Government of India Act of 1919 (Dyarchy-Montague-Chelmsford Reforms)

Features of the Act-

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Indian National Congress 1885-

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Protest/objection against British Repression/Suppression:

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3) Sedition Trials of Tilak

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Working of the Constituent Assembly – Timeline

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Other functions of the Constituent Assembly-

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Enactment of the Constitution-

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3. Parliamentary Democracy: India follows the parliamentary system of government, where

6. Fundamental Rights: The Constitution guarantees fundamental rights to its citizens,

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11. Election Commission: A constitutional body, the Election Commission of India, is

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The Preamble of the Constitution of India is a brief introductory statement that

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History of the Preamble to Indian Constitution-

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2) Kesavananda Bharati Case:

Amendment of the Preamble-