LAW OF CONSTITUTION-II

Rule of Law

The term rule of law is derived from a French phrase – ‘La Principe de Legality’ which means- The
Principle of Legality. The concept of rule of law refers to the government which is based on principles of
law and not of men. The concept of rule of law enshrines the principle that the ‘King is not the Law, but
the Law is the king’.

Principles of Rule of Law A V Dicey on observing the UK model of Rule of Law laid down the following
Principles:

1. Supremacy of Law

The notion of supremacy of law embodies under its ambit the principle that the law should not be
prepared from the perspective of a particular individual. The primary understanding of the rule of law is
that the law rules over all people, and this includes even the people administering it. As dicey
postulated, the law presupposes that there is an absence of broad flexible authority in the rules so that
they cannot create their own laws but must govern according to the established laws. Those laws should
be in such a manner that they cannot be easily changed. Stable laws are a prerequisite of the certainty
and confidence which additional form an essential part of individual freedom and security. Therefore,
laws ought to be rooted in moral principles, which cannot be achieved if they are framed in a very
detailed manner.

2. Equality before Law

The first discussed principle states that, supremacy of law ensures the checks and balances over the
government which makes and administers such laws. The second principle that is the principle of
equality before law ensures that the law is applied in a just manner.

It further provides that the law cannot in any way discriminate between people regarding race, sex or
religion. Article 14 of the Indian Constitution incorporates the principle of equality under its ambit. In
addition to this, the Universal Declaration of Human Rights includes the principle of Equality under its
preamble and also under Article 7.

3. Predominance of Legal Spirit

By considering the predominance of legal spirit, Dicey wanted to signify the authority that enforces the
rule of law, that is the courts. As the courts are ones which enforce the rule of law, it becomes very
important on their part to be impartial and free from all the external influence. Hence, the
independence of the judiciary becomes a very significant aspect in the rule of law.

Features of Rule of Law

1. Those in the exercise of power are themselves constrained by law while making use of that
power.

2. There are restrictions placed on them with regard to the use of such power and they are not
allowed to act according to their whims and fancies. This finally leads to the upholding of principle of
rule of law.

3. No person can be punished or made to suffer unless and until the person has committed a
breach of law.

4. Each and every individual is equal before the law, and by this, it means that the law cannot be
based on a class of persons.

5. Rule of law is universal in its application, it has also been the part and parcel of most of the legal
systems in the world. Hence, due of this characteristic of the rule of law, it becomes an important
bedrock of most of the democracies.

6. If a person is alleged of committing a crime and is charged with wrong then such a charge should
be proved by an independent tribunal like that of a court, and only then can the person be punished.

Rule of Law under the Indian Constitution

India adopted the common law system of justice which had its origins in the British jurisprudence. The
Constitution of India intended India to be governed by rule of law. It further provided that the
constitution is the supreme law of land and the organs of the constitution, that is the legislature and
executive would derive their powers from the constitution. Any law which is made by the Parliament
should be in conformity with the constitution and failure to do so would result in the said law being
invalid.

Judiciary and Rule of Law

It can be said that the Indian judiciary has played an instrumental role in the shaping of the rule of law in
India, as it adopted a dynamic and a positive approach while interpreting the constitutional provisions of
India.

In the case of A D M Jabalpur v. Shivkant Shukla, the issue which arose was in the context of suspension
of Article 14, 21 and 22 during the proclamation of emergency. The answer of the majority of the bench
was however negative to the question of rule of law. But Justice H R Khanna dissented from the majority
opinion and held that – ‘Even in the absence of Article 21 of the Constitution the state has no power to
deprive a person of life and liberty without the authority of law’. The onus of the issue was that the
concept of rule of law is accepted everywhere by giving prominence to the liberty of an individual and in
addition, it also seeks to maintain a balance between the opposing notion of individual liberty and
public order.

In another landmark case of Bachhan Singh v. State of Punjab, it was held that the rule of law has three
basic assumptions which are:

1. Lawmaking should always be in the hands of the democratically elected legislature.

2. The democratically elected legislature should possess unfettered legislative power.

3. There should always be an existence of independent judiciary which should be capable of

protecting the citizens from the atrocities of executive and legislative powers.

In the much-discussed case of Maneka Gandhi v. Union of India, the Supreme Court laid down that no
one should be deprived of his life and personal liberty except procedure established by the law under
Article 21 of the Indian Constitution. Article 21 requires the following conditions before a person is
deprived of his personal liberty and life :

1. That there must be a valid law.

2. The law must provide for a procedure.

3. The procedure must be just, fair and reasonable.

4. The law must satisfy the requirement of Article 14 and 19.

Conclusion

Rule of law has many perks in it and all that it requires to entail the fruits of rule of law is to enforce it
and bring it to practice in a rightful manner. The inception of rule of law dates back to the very
beginning of civilization and hence, it can be said that rule of law is a very old concept which has
moreover gone through changes with the evolution of the society. The Article even provides the
application of rule of law in the US Constitution and if at all it varies from that applicable in India.

Further, there are even challenges posed to the concept of rule of law, which has been put forth by many
political thinkers and writers in their distinct ways which are important to be analyzed for the better
understanding of the concept of rule of law.

Article 12: Meaning of ‘the State’

The term ‘state’ specifies the authorities and all the instrumentalities which are functioning within or
outside the territory of India and those institutions will be considered to be ‘the state’ under Part III of
the Constitution. This definition is not exhaustive but inclusive. The authorities and instrumentalities
which are included in Article 12 are:

1. The government and Parliament of India (Lok Sabha and Rajya Sabha).

2. The state government and the legislature of each state (Vidhan Sabha and Vidhan Parishad).

3. All local authorities (municipalities, District Boards, Panchayats, Improvement Trust, Port Trust,
Mining Settlement Boards etc.

4. Other authorities within the territory of India or under the control of government of India.

The first 3 categories can be easily understood as they are quite specific and self-explanatory. The last
category is not specific and require some explanation.

Other Authorities

Apart from the central, state and local authorities, the authority or institutions which exercise
governmental or sovereign powers or functions can be counted under ‘other authorities’.

Electricity Board, Rajasthan SEB v. Mohan Lal

This case is also known as Rajasthan Electricity case. It was held in this case that all the authorities
which are created by the Constitution or any other statute on whom powers are conferred by law
irrespective of the fact that statutory authority is not engaged in performing governmental or sovereign
functions. Further, it was also stated that ‘other authorities’ would also cover the bodies created for the
purpose of promoting educational and economic interests of the weaker sections of people. However, it
was overrule the earlier decision in the case of University of Madras v. Shantha Bai that Universities are
excluded from the meaning of Article 12. Accordingly the university was later held to be ‘the state’
under Article 12.

Test to determine whether a body is an agency or instrumentality of the State

The state ruled out some checkpoints to recognize the body as an agency or instrumentality of the state
in the case of R.D. Shetty v. International Airport Authority, where the question as to whether the
airport authority was a state or not arose. Two checkpoints were:

1. If the state provides extensive financial support to the body.

2. If the state has a wider degree of control over the body.

3. Whether the function the body performs is of public utility and importance.

Whether State includes Judiciary

The Judiciary while exercising its rule making power would be covered by the expression “State” within
the meaning of Article 12, but while performing its judicial function, it is not so included.

Article 13: Laws in derogation with fundamental rights will be void

Article 13 expressly sets the principle of the supremacy of fundamental rights over any other law in the
case of inconsistency between the two. This can easily interpret the intention of the Constitution makers
to confine the application of fundamental rights to what is stated in this Article. For instance, pre-
constitutional laws shall be invalid only to the extent they fall within the category of “law in force”. As
uncodified personal laws do not fall within the category, it could be urged that they were not intended
to become invalid in the ground of any inconsistency with the fundamental rights.

ARTICLE 13(1) No retrospective Effect

The provisions of the constitution pertaining to fundamental rights have no retrospective effect. The
word retrospective means that intending to take effect from the past date. All the existing laws which
are inconsistent, they will be void after the commencement of the constitution.

Illustration: ‘A’ has committed an offence in 1946 which was punishable at that time, but later on after
the commencement of the constitution in 1950 that offence was abolished as it was inconsistent with
the fundamental rights. On this basis ‘A’ contended that he must be freed from the charges but the
court did not allow it on the grounds that in 1946 the act committed by him was an offence.

ARTICLE 13(2) Future laws

Clause (2) of Article 13 of the constitutions elaborates on the future laws i.e. the laws made after the
commencement of the constitution. The state is prohibited from making law which takes away or
abridged any right conferred by Part III of the Constitution. A law made in contravention of clause (2)
shall to the extent of the contravention will be void. This concept of void has eventually come to be
considered as ‘relatively void’ or partially invalid.

Sometimes the courts also apply their decisions prospectively. It means that though the law was found
against the fundamental rights, they invalidate only for the future. Therefore the law is not declared void
ab initio or nullity from the very beginning.

Definition of Law

Clause (3) of Article 13 consist of the word ‘law’ and ‘law in force’. The law can be of the following kinds:

1. Statutory Law: These are the laws which may be directly enacted by the legislature or by the
other subordinate authorities under the delegated lawmaking powers. The delegated
legislations appears under various names – rules, regulations, notifications, and bye-laws.
2. Customs: The term ‘law’ includes ‘customs’ and ‘usages’. In early times, custom was the
main source of law but now to a large extent, it has been suspended by statutory law.
However, custom has not
wholly lost its law creating efficacy. A reasonable and certain ancient custom is binding on
the courts like an Act of legislature.

Laws inconsistent with Fundamental Rights

Article 13(1) talks about the laws which were in force in the territory of India before the commencement
of the Constitution. It says that if they are inconsistent with the provisions of the Part III of the
Constitution, will be void to the extent of the inconsistency.
Article 13(2) talks about the laws which are enacted after the commencement of the Constitution. It
renders all the laws void which violates the provisions of Part III.

Doctrine of Severability

As in Article 13(1), it is mentioned that the pre-constitutional law will only be void to the extent of the
inconsistency while in Article 13(2) it is mentioned that post-constitutional law will be void to the extent
of the contravention. The doctrine of Severability says that is if a part of any law is inconsistent then the
rest of the part will remain valid. It applies to both pre and post-constitutional law. A.K. Gopalan v. State
of Madras, It was found that Section 14 of the Preventive Detention Act was violative of Article 14 of
the constitution so it was made void but the other parts of the Act were separable while still alive and
operative.

Doctrine of Eclipse

Article 13(1) talks about the pre-constitutional law as it says that the laws existing before the
commencement of the Constitution if found inconsistent with the fundamental rights then they will be
void. But the Doctrine of Eclipse says that the inconsistent laws though becomes out of whack but not
completely dead. It is eclipsed by the fundamental rights and can again be alive through some
constitutional amendments. It is only applicable to citizens as non-citizens do not have fundamental
rights so they can’t challenge the validity of any law. DEEP CHAND V. STATE OF UTTAR PRADESHIt was
ruled out that only the pre-constitutional law can be brought to life whereas the post-constitutional law
which infringes fundamental right is void from its dawn.

Doctrine of Waiver

This doctrine considers that a person is his own judge and will choose what is best for him. The doctrine
of waiver says that a person can put aside his right if he wants to. It only talks about individual rights
and not the rights of the public in general. OLGA TELLIS V BOMBAY MUNICIPAL CORPORATIONSome
pavement dwellers took an undertaking to allow the government to set up huts on pavement and to not
hinder the demolishing of the huts. But during the demolishing of the huts the dwellers filed a petition
under Article 21. The Supreme Court ruled out that no one can relinquish their fundamental rights as
they are for the public utility given to an individual for his own benefit.

Right to equality (Art 14-18)

This right is embodied in a series of Articles from Article 14 to 18 of the Constitution of India.

Article 14 contains the principle of rule of law and Articles 15, 16, 17 and 18 contain the application of
this principle. The Preamble to the Constitution of India provides for equality of status and opportunity.
Equality forms part of the basic structure of the Constitution of India.

Article 14 reads as, ‘the State shall not deny to any person equality before the law and equal protection
of laws within the territory of India’. This Article is the embodiment the principle of Rule of Law.
Situations not expressly or impliedly covered under Articles 15 to 18 are examined in the light of Article
14. There are two expressions used in Article 14:-

∙ equality before the law, and

∙ equal protection of the laws.

Both these expressions sound similar but have different connotations. The expression ‘equality before
law’ has its origin in the English Common Law. It means that amongst equals law shall be equal and shall
be equally administered. The expression ‘equal protection of laws’ has its source in Section 1 of the 14th
Amendment of the U.S. Constitution. Equality before the law is a negative concept and equal protection
of the laws is a positive concept. The doctrine of ‘equality before the law‘ is equally operative against
the legislature itself. If the legislature dares to enact an enactment inconsistent with any provisions of
fundamental rights, the courts are competent enough to pronounce it unconstitutional. The principle of
equality before the law owes its origin to the doctrine of Rule of Law propounded by Prof. Dicey in his
book The Law of the Constitution (1885). Prof. Dicey gave three implications of the doctrine of Rule of
Law-

∙ Supremacy of Law/Absence of Arbitrary Power – it means that no man should be punished except for
the breach of the law.

∙ Equality Before The Law – it implies equal subjugation of all citizens to the ordinary law of the land
administered by the ordinary courts of law.

∙ Primacy of The Rights of The Individual – The people of India are the real source of the Constitution in
India. Constitution is the Protector of the Fundamental Rights of the citizens and it gives primacy to the
rights of the individual over the State action.

Equal protection of the laws means the right to equal treatment in similar circumstances, both in
privileges conferred and liabilities imposed. The second expression is the corollary of the first and it is
difficult to imagine a situation in which the violation of equal protection of laws will not be the violation
of the equality before law. Both the rule of procedure and the substantive law come under the purview
of Article 14. Equal protection requires affirmative action by the State towards unequals by providing
them facilities and opportunities. Article 14 applies to ‘any person’ including any citizen, non-citizens,
natural persons as well as legal persons.

Exception to The Rule of Law

The rule does prevent certain classes of persons from being subject to special rules. For example,

Article 361 is an exception to the rule of law. It provides that the President or the Governors or the
Rajpramukhs shall not be answerable to any court for the exercise and performance of the powers and
duties of office. This is because of the reason that Article 14 does not imply that the same laws should
apply to all persons or that every law must have universal application because all persons are not, by
nature, attainment or circumstances, in the same position. This Article prohibits class legislation which
makes improper discrimination by conferring particular privileges upon a class of persons arbitrarily
selected but it permits reasonable classification for the purpose of achieving specific ends. For
classification to be reasonable, two conditions must be fulfilled:

∙ The classification must be based on intelligible differentia which distinguishes persons or things that
are grouped together from others left out of the group.

∙ The differentia must have rational relation with the object sought to be achieved by the act.

It means that there must be some nexus between the differentia and the object so that the classification
does not appear arbitrary or discriminatory. What Article 14 strikes at is arbitrariness because any action
that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is
evolved by the courts is not a paraphrase of Article 14 nor is it the objective or end of that Article. It is
merely a judicial formula for determining whether the legislative or executive action in question is
arbitrary and therefore constitutional denial of equality. Wherever therefore there is arbitrariness in
State action whether it be of legislature or of the executive or of the authority under Article 12, Article
14 immediately springs into action and strikes down such State action. In fact, the concept of
reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread
which runs through the whole of the fabric of the Constitution. In Maneka Gandhi’s case , the court had
opined that Article 14 was not to be equated with the principle of classification. It was primarily a
guarantee against arbitrariness in State action and the doctrine of classification was evolved only as a
subsidiary rule for testing or determining whether a particular State action was arbitrary or not.

Article 15

Article 15 prohibits the State from discriminating against citizens on the grounds of religion, race, caste,
sex or place of birth. On the other hand, it empowers the State to make special provision for women
and children and for socially and educationally backward classes of citizens (hereinafter referred to as
SEBCs), Scheduled Classes (SCs) or Scheduled Tribes (STs). Originally the Article had only three clauses.
Later on, clauses (4) and (5) were added by way of the First Constitutional Amendment Act, 1951 and
the Ninety Third Constitutional Amendment Act, 2005 respectively. Clause (6) was inserted by the 103rd
Constitution Amendment in 2019. The provision allows for the State to provide for affirmative action
including reservations for economically weaker sections.

Article 15(4) empowered the State to make special provision for the advancement of any Socially and
Economically Backword Classes or for the SCs or the STs. It was added as a proviso or exception to
Article 15(1) and Article 29 to override the effect of the judgment of the Supreme Court in the State of
Madras v Smt. Champakam Dorairajan. In that case the government of Madras was acting on the
impugned Communal G.O. (passed before the coming into force of the Constitution) even after coming
into force of the Constitution, reserving seats in Engineering and Medical Colleges of the State based on
caste. The impugned order was declared by the court as violative of the rights guaranteed under Article
29 and therefore void under Article 13. The word ‘class’ used in the Article is not used in reference to
any caste.

The provision does not lay down the criteria to designate the backward classes, it leaves it to the State
to lay down the criteria. However, the court can go into the question as to whether the criteria are
relevant or not.

After the insertion of clause (4) in Article 15, a number of orders were passed by the Mysore
government under Article 15(4) reserving seats for admission to State Medical and Engineering Colleges
for the ‘backward classes’ and the ‘more backward classes’ in addition to the seats reserved for the SCs
and STs. The government had designated the backward classes in these orders on the basis of caste and
communities. One such order was challenged before the Supreme Court as being irrational and a fraud
on Article 15(4) in the case of M. R. Balaji v. State of Mysore . The Supreme court while quashing the
impugned order observed-

∙ Article 15(4) is a proviso or exception to clause (2) of Article 15 and to clause (2) of Article 29.

∙ Further categorization of backward classes into backward and more backward classes is not envisaged
by Article 15(4).

∙ For the purpose of Article 15 (4), backwardness must be both social and educational and caste cannot
be made the sole or dominant test for determining the backwardness of a class of citizens.

∙ And order under Article 15(4) need not be in the form of a legislation, it can also be in the form of an
executive order.

∙ Speaking generally and in a broad way, a special provision should be less than 50%. The actual
percentage must depend upon the relevant prevailing circumstances in each case.

∙ The court further commented that the interests of weaker sections of society, which are a first charge
on the State and the Centre, have to be adjusted with the interests of the community as a whole.
Regarding Article 15 (4) the court observed that it is only an enabling provision and does not impose any
obligation on the State to take any special action under it.

The Supreme Court in the case of State of U.P. V. Pradeep Tandonwhile upholding the reservations in
favour of persons from hills and Uttarakhand areas on the ground that these areas were instances of
socially and educationally backward class citizens, held that the place of habitation and its environment
could be a determining factor in judging the social and educational backwardness.

In Dr Preeti Srivastav & Anr v. State of MP & Ors , the Supreme Court opined that there should be some
minimum qualifying marks for the Reserved Category candidates, if not the same as prescribed by for
the General Category candidates.

Clause (5) was added in Article 15 in order to make the private educational institutions share the burden
of government educational institutions in providing the citizens with greater access to education. It
enabled the State to make provisions for the advancement of the SCs, STs or SEBCs of citizens in relation
to admission in educational institutions including private aided/unaided educational institutions. The
clause, however, was inserted in order to override the effect of the judgment in T. M. A. Pai Foundation
v. State of Karnataka wherein the court upheld the right of private unaided educational institutions to
choose students of their choice. Minority educational institutions referred to in Article 30(1) are
exempted from the purview of Article 15(5). In the case of Ashok Kumar Thakur v Union of India the
validity of Clause (5) of Article 15 was challenged before the Supreme Court inter alia on following
grounds –

∙ Whether Clauses (4) and (5) of Article 15 are contradictory to each other?

∙ Whether Article 15(5) violates the basic structure of the Constitution?

∙ Whether exclusion of minority educational institutions from the purview of Article 15(5) is violative of
Article 14 of the Constitution?

The court, in relation to first mentioned issue observed that Clauses (4) and (5) of Article 15 are not
mutually contradictory. The second issue was answered by the court in negative so far as it related to the
State-maintained and aided educational institutions. In relation to the third issue the court opined that
minority educational institutions, by themselves, are a separate class and their rights are protected by
other provisions of the Constitution.

Article 16

Article 16 deals with equality of opportunity in the matter of public employment. It mandates the State
to provide every citizen with equal opportunity in the matters of employment or appointment to any
office under it. However, this does not prevent the State from laying down the requisite qualifications
for recruitment in the government services. It also prohibits discrimination by the State in relation to
employment or appointment to any office under the State on the grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them. Clause (4) of Article 16 allows the State to reserve
seats in favour of backward classes of citizens which according to State are not adequately represented
in the services under the State.

In the case of N M Thomas v. State of Kerala the Supreme Court held that the preferential treatment of
under-represented backward classes so far as such treatment was reasonable and had a rational nexus
with the object in view was valid.

In the landmark case of Indra Sawhney v. Union of India also known as the Mandal Commission Case,
the Supreme Court dealt with various aspects of the complex issue of reservation and gave out a very
thoughtful judgment. Some of the key aspects of the judgment are-

∙ Creamy layer must be excluded from Backward Classes.

∙ Article 16(4) is not exception to Article 16(1), but an independent clause. Article 16(4) is exhaustive of
the subject of reservation in favour of backward classes, though it may not be exhaustive of the very
concept of reservation. Reservation for other classes can be made under Article 16(1).

∙ Reservation shall not exceed the 50 percent limit. Carry forward rule is valid provided it should not
result in the breach of the 50 percent rule.(upheld the judgment in Balaji Case and overruled N M
Thomas Case in this respect).

∙ Reservation in appointments under Article 16(4) confined to initial appointments only. There shall be
no reservation in promotion.

∙ Backward classes referred to in Article 16(4) not same as the Socially and Educationally Backward
Classes referred to under Article 15(5).

∙ Article 16(4) permits classification of Backward Classes into backward and more backward classes
(overruled Balaji Case and upheld N M Thomas Case in this respect).

∙ In the aftermath of the Mandal Commission Judgment, Clause (4A) was added in Article 16 by way of
Seventy Seventh Amendment Act, 1995 providing for reservation in the matters of promotion. This was
further amended by Eighty Fifth Amendment Act, 2001 adding the words ‘in the matters of promotion
with consequential seniority’ retrospectively from 17-06-1995 in order to nullify the judgment in Ajit
Singh and Ors v. State of Punjab which discarded the concept of consequential seniority. The
amendment allowed the reservations to be made in favour of SCs and STs with consequential seniority.
Another Clause (4B) was inserted in Article 16 through Eighty First Amendment Act, 2000 to overcome
the 50 percent limitation on the ‘carry forward rule’ to fill the backlog of unfilled vacancies reserved in
favour of SCs and STs.

The amendments made in Article 16 by inserting Clauses (4A) and (4B) were challenged before the
Supreme Court in the case of M Nagraj and Ors v. Union of India on the ground that these amendments
were made to reverse the judgments in the above mentioned cases and that the Parliament has
arrogated to itself the judicial powers thus violating the basic structure of the Constitution. The court
upholding the Constitutional validity of these amendment acts held that Clause (4A) of Article 16 is an
enabling provision and it will be governed by two compelling reasons, ‘backwardness’ and ‘inadequacy
of representation’ as mentioned Article 16(4). If the State wished to exercise its discretion and make a
provision for reservation in promotion for SCs and STs, it has to collect quantifiable data to show
backwardness of the class and inadequacy of representation of that class in public employment in
addition to compliance of Article 355. Article 16(6) provides that, Nothing in this article shall prevent the
State from making any provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned in clause (4) in addition to the
existing reservation and subject to a maximum of 10% of the posts in each category. This provision was
added by the 103rd Constitution Amendment Act, 2019.

Article 17

Article 17 exhibits the progressive and reformative vision of the Constitution makers. It abolishes
untouchability and makes the practice of untouchability a penal offence. It can be termed as one of the
earliest efforts made in the direction of social reforms. Since the Article contemplates the practice of
untouchability to be a punishable offence, the legislature enacted the Protection of Civil Liberties Act,
1955 previously known as the Untouchability (Offences) Act, 1955 to prescribe punishment for
untouchability and other practices connected with it. The word untouchability has not been defined
either under Article 17 or the Protection of Civil Liberties Act, 1955. The term has not been used in the
Article in a literal or grammatical sense. It actually refers to the social disabilities historically imposed on
certain classes of people by reason of their birth in certain castes and would not include an instigation
of social boycott by reason of the conduct of certain persons. The word “Harijan ” prime facie refers to
an untouchable. Untouchability is an integral part of caste system and is not based on mens rea.

Article 18

Article 18 abolishes titles. Clause (2) prohibits a citizen from accepting any title from a foreign State with
the exception of academic and military distinctions. Conferring of titles by the State on the citizens
without merit violates the principle of equality creating a divide in the society. Under the British rule
there was a practice of conferring titles on the well wishers and supporters of the British regime. This
resulted in creating a class of nobility which was loyal to the foreign rulers. Dr.Bhimrao Ambedkar while
explaining the import of Article 18 in the Constituent Assembly said that the Article does not provide a
right, instead it confers a duty on a citizen not to accept any titles not only from the Indian State but also
from any foreign State. The prohibition extends to the acceptance of any presents, emoluments from a
foreign State while holding any office of profit or trust under the Indian State.

Article 19

Freedom of Speech and Expression

The idea of freedom of speech had originated a long time ago. It was first introduced by the Greeks.
They used the term “Parrhesia” which means free speech or to speak frankly. This term first appeared in
the fifth century B.C. Countries such as England and France have taken a lot of time to adopt this
freedom as a right. The English Bill of Rights, 1689 adopted freedom of speech as a constitutional right
and it is still in effect. Similarly, at the time of the French revolution in 1789, the French had adopted the
Declaration of the Rights of Man and of Citizens.

The UN General Assembly adopted the Universal Declaration of Human Rights on 10 December 1948
under Article 19 which recognised the freedom of speech and expression as one of the human rights.

Freedom of speech and expression in India

The right to express one’s own ideas, thoughts and opinions freely through writing, printing, picture,
gestures, spoken words or any other mode is the essence of freedom of speech and expression. It
includes the expression of one’s ideas through visible representations such as gestures, signs and other
means of the communicable medium. It also includes the right to propagate one’s views through print
media or through any other communication channel.

This implies that freedom of the press is also included in this category. Free propagation of ideas is the
necessary objective and this may be done through the press or any other platform. These two freedoms
i.e., freedom of speech and freedom of expression have their own respective qualifications.

According to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the freedom to
seek, receive, and convey information and all kinds of ideas irrespective of boundaries, either orally or in
the form of writing, print, art or through any other media of their choice are included in the right to
freedom of speech and expression.

Article 19 (1)(a) of the Indian constitution

In India, the freedom of speech and expression is granted by Article19(1)(a) of the Indian Constitution,
which is available only to the citizens of India and not to foreign nationals. Freedom of speech under
Article 19(1)(a) includes the right to express one’s views through any medium, which can be by way of
writing, speaking, gesture or in any other form. It also includes the rights of communication and the
right to propagate or publish one’s opinion.

The right that is mentioned above, guaranteed by our constitution, is regarded as one of the most basic
elements of a healthy democracy because it allows citizens to participate in the social and political
process of a country very actively.

Free speech and expression not only includes the right to express what one thinks but it also includes
listening to others. When a person expresses his/her opinion, it only carries the intrinsic value of that
opinion and being silent on that opinion is an injustice to the basic human rights.

Union of India v. Naveen Jindal and Anr.

Facts: The respondent Naveen Jindal was not allowed to hoist the national flag at the office premise of
his factory by government officials on the ground that it was not permissible under the Flag Code of
India.

Judgment: In this case, the high court held that the restrictions that the Flag Code imposed on citizens
on hoisting the National Flag were not permissible under clause (2) of Article 19 of the Indian
Constitution. The court has also stated that displaying a flag is an expression of pride as well as an
expression of genuine enthusiasm and it can only be restricted in accordance with what has been
prescribed in the Constitution, otherwise, the restriction would discourage the citizens or Indian
nationals from identifying with the flag of the country.

Virendra v. The State of Punjab and Anr.

Facts: Serious communal tension had arisen in the state of Punjab between the Hindus and the Akali
Sikhs because of the question of partition of the state on a linguistic and communal basis. There were
two petitioners and both were from different newspapers. Their newspapers’ policy was to support the
‘Save Hindi agitation’. A notification was passed by the home ministry office under the impugned Act
prohibiting the publication and printing of any material relating to the ‘Save Hindi agitation’. Both the
petitioners filed a complaint alleging that the Punjab Special Powers (Press) Act, 1956 passed by the
state legislature was unconstitutional.

Judgment: The court held that Section 2 of the impugned Act did not merely impose restrictions but
imposed a total prohibition against the exercise of the right of freedom of speech and expression,
making the same a violation of the right guaranteed by the Constitutional provision.

. Elements for the right to freedom of speech and expression

The main elements for the right to freedom of speech and expression are as follows:

1. This right is available only to a citizen of India and not to the person of other nationalities i.e.,
foreign nationals.

2. The freedom of speech under Article 19(1)(a) of the Indian constitution includes the right to
express oneself through any medium, such as in words of writing, printing, gesture, etc.

3. This right is not absolute, which means that the government has the right to make laws and to
impose reasonable restrictions in the interest of sovereignty and integrity of India, friendly relations
with

foreign states, the security of the state, public order, decency, morality, defamation and
contempt of court and incitement to an offence.

4. Such a right ought to be implemented as much by the action of the State as by its inaction.
Thus, failure on the part of the State to guarantee the freedom of right and expression to all
its citizens would also constitute a violation of Article 19(1)(a) of the Indian constitution.

Freedom of press

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost” is
stated by Thomas Jefferson to define the importance of freedom of the press”.

To preserve the democratic way of life it is necessary that people should have the freedom to express
their feelings and to make their views known to people at large. Freedom of speech includes
propagation of one’s views through print media or any other communication channels like radio and
television, subject to reasonable restrictions imposed under Article 19(2) of the Indian constitution.

Although freedom of the press is not mentioned in Article 19 of the Indian Constitution, yet it has been a
part of freedom of speech and expression as considered by judges of the Supreme Court through
decided cases.

In the leading case of Romesh Thapar v. The State of Madras, it has been decided by the supreme court
that freedom of the press is an intrinsic part of freedom of speech and expression.

Why freedom of the press is important in the Indian context?

An American lawyer and free press advocate Trevor Timm have stated that “An independent press is one
of the important pillars of democracy”. Freedom of the press has always been a barricade against the
secret government, against tyranny and against authoritarianism. The press has a very important role in
showing the real face of political parties and also any type of incident that has been disguised and
cannot be seen by the common people.
In the case of Indian Express Newspaper v. Union of India, it was held that the press plays an important
role in the democracy machinery. The courts have a duty to uphold the freedom of the press and
invalidate all laws and administrative actions that would take that freedom.

What are the elements of freedom of the press?

There are three elements of freedom of the press and these are as follows:

1. Freedom of access to all types of source of information

2. Publication freedom, and

3. Circulation freedom

What is the reason behind the degradation of freedom of the press

In the initial phase of freedom of the press, the views of Jawaharlal Nehru regarding press was that he
wanted the press free from all evils and also free from all forms of danger involved in the wrongful use of
that freedom. But Indira Gandhi had opposite or conflicting views in respect of Jawaharlal Nehru. She
didn’t have much faith in the press and her misgivings were first expressed when she was addressing the
International Press Institute Assembly in New Delhi on November 15, 1996, when she blamed the press
for giving wide publicity to the student unrest in the country.

The press has slowly been losing its importance in the country. Many politicians take advantage of the
press to win an election by giving rise to conflict amongst the people. Many a time, freedom of the press
has been suppressed by the legislature. There is a case in respect of that condition, Sakal Paper v.Union
of India.,in which, the Daily Newspapers (Price and Page) Order, 1960, fixed the number of pages and
the size of the pages which a newspaper could publish. It was held that it violated the freedom of the
press and was not a reasonable restriction under Article 19(2).

Right not to Speak

This right has also been included in freedom of speech and expression. This right came to the notice of
people after the judgment in the leading case of Bijoe Emmanuel v. The State of Kerala.This case is also
known as the National Anthem case. In this case, three students were expelled by the school authority
on refusal to sing the National Anthem.

However, these children stood from their seats in respect, when the national anthem was playing. The
validity of the expulsion of children was challenged before the Kerala High Court. The court held that the
expulsion of students on the ground that it was their fundamental duty to sing the national anthem was
upheld.

However, on a further appeal by the students before the Supreme Court, it held that the students had
not committed any offence under the Prevention of Insult to National Honor Act, 1971. Also, there was
no law through which their fundamental rights under Article 19(1)(a) of the Indian Constitution could be
curtailed. And also it was held that expulsion of children from school violated the right of freedom not to
speak under Article 19(1)(a).

Grounds of restriction

It is necessary to preserve freedom of speech and expression in a democratic country. And it is also
necessary to restrict this freedom to maintain social order otherwise some people might misuse this
freedom. There are some restrictions imposed through Clause (2) of Article 19 on freedom of speech
and expression on certain grounds.

Security of the state

Article 19(2) imposes reasonable restrictions on the freedom of speech and expression in the interest of
the state. The term ‘security of the state’ should be distinguished from ‘public order’ as security of the
state includes an aggravated form of public order. For e.g., waging war against the state, rebellion,
insurrection, etc. The term ‘security of the state’ in Article 19(2) does not only mean danger to the
security of the entire country but it also implies danger to the security of a part of states or threat to a
part of states.

Friendly relations with a foreign state

This ground of restriction was added through the Constitutional First Amendment, 1951. The main
objective behind adding this provision was to forbid unrestrained vitriolic propaganda against a foreign
friendly state, which could jeopardize the maintenance of good relations between India and that state. If
the freedom of speech and expression disturbs or hampers the friendly relations of India with foreign
states, the government has the right to impose a reasonable restriction.

Public order

This ground of restriction was also added through the Constitutional First Amendment,1951. A situation
had arisen in the case of Romesh Thapar by the Supreme Court and to meet that situation, this ground
had been added in the constitution. The word ‘public order’ depicts the sense of public safety, public
peace, and peace of the community. In Om Prakash v. Emperor it has been said by the judge that
anything that disturbs public peace can be said to disturb public order automatically. There is also a test
that determines whether an act affects law and order or public order.

Decency and Morality

The word to express or say something should be a decent one that it should win the heart of the
opposite person and it should not affect the morals of the society. So our Constitution has considered
this view and added this ground in our Constitution. On the ground of decency and morality, Sections
292 to 294 of the Indian Penal Code, 1860 provides an example of a restriction on the freedom of
speech and expression. These are the terms of variable content having no fixed meaning or we can also
say that these words are of wide meaning. It varies from society to society and time to time depending
upon the morals prevailing in contemporary society. The word morality and decency is not confined to
sexual morality only; it has a broader scope.
Contempt of court

In a democratic country, we know that the judiciary plays an important role in governing a country in a
peaceful manner so in such types of situation it is important to respect the institution and its order.
What hampers the administrative law? How does anything interfere with justice? We know that there is
a limitation in a judicial proceeding and anything that curtails its freedom leads to hampering of the
administrative law and also anything can interfere with the decision of justice.

Contempt of court can be defined in two categories i.e., civil contempt and criminal contempt. Contempt
of court has been defined in section 2(a) of the contempt of court act, 1971. Initially ‘truth’ was not a
defence under contempt of court but in 2006 an amendment was made to add ‘truth’ as a defence.

Elements or essential needed to established a contempt:

1. Making of a valid court order.

2. The respondent should have knowledge of that order.

3. The respondent should have the ability to render compliance.

4. Intentionally or willfully disobey the order.

Defamation

Article 19(2) prevents any person from making any statement that defames the reputation of another
person. One who gets the freedom of any type should not misuse that freedom to hurt or affect the
reputation or status of another person. Generally, a statement that injures the reputation of a man
results in defamation. The right to free speech is not qualified. So it does not mean to hurt any person’s
reputation which is protected under Article 21 of the Indian Constitution.

Incitement to an offence

This ground was also added by the Constitutional First Amendment act, 1951. It is obvious that freedom
of speech and expression does not include the right to incite people to commit an offence. The word
‘offence’ has been described under section 40 of the Indian Penal Code, 1860. Any type of offence takes
place in two ways: 1. By the commission of an act and 2. By the omission of an act

Sovereignty and Integrity of India

To maintain the sovereignty and integrity of a state is the main duty of a government. This ground has
been added by the Constitution (Sixteenth Amendment) Act, 1963.

From the above analysis, it can be stated that grounds contained in Article 19(2) show that they are all
concerned with national interest or in the interest of the society.

Article 20
Protection in respect of conviction of offences

Art. 20 of Indian Constitution provides for protection in respect of conviction of offences. In other words,
it lays down certain safeguards to the person accused of crimes as stated below:

1. Ex post facto law (Art. 20(1)).

2. Double Jeopardy (Art. 20(2); and

3. Self-incrimination (Art. 20(3).

1. Ex Post Facto Law Art. 20(1).-

Article 20(1) of the Indian Constitution prohibits Ex Post Facto laws. The expression ‘Ex Post Facto Law’
means “a law, which imposes penalties or convictions on the acts already done and increases the penalty
for such acts”. In other words, Ex Post Facto Law, imposes penalties retrospectively.

Eg.: The Dowry Prohibition Act, 1961 came into force from 20.5.1961. A person guilty of accepting dowry
is punishable under the Act after 20.5.1961 and not before 20.5.1961.

Ex-post facto laws are of three kinds-

(a) A law which declared some act or omission as an offence for the first time after the completion
of that act or omission.

(b) A law which enhances the punishment or penalty for an offence subsequent to the commission
of that offence.

(c) A law which prescribes a new and different procedure for the prosecution of an offence
subsequent to the commission of that offence.

Clause (1) of Art. 20 provides protection only in respect of the above first two categories of ex post facto
laws i.e. laws which declare acts as offences subsequent to the commission to those acts and laws which
enhance the penalty subsequently.

Article 20(1) provides: “No person shall be convicted of any offence except for violation of a law in force
at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the commission of the
offence.”.

The first of clause (1) provides that “no person shall be convicted of any offence except for violation of
‘law in force’ at the time of the commission of the act charged as an offence”. This means that if an act is
not an offence at the date of its commission it cannot be an offence at the date subsequent to its
commission.

The second part of clause (1) protects a person form ‘a penalty greater than that which he might have
been subjected to at the time of the commission of the offence.’
For Example: If a person ‘A’ commits an offence in the year 1947, as per the act in that year the
punishment was imprisonment of fine or both the same act was amended in 1949 which enhanced the
punishment of the same offence by as additional fine. In such a case the punishment enhanced would
not be applicable to the act of 1947, the same would be set-aside.

2. Double Jeopardy Art. 20(2) :-

Article 20(2) of the Indian Constitution provides that, “No person shall be prosecuted and punished for
the same offence more than once. This clause enacts the well known principle of criminal jurisprudence
that “no one should be put in jeopardy twice for the same offence”. This clause is based on the common
law maxim “Nemo debit bis vexari”, which means that a man must not be put twice in peril for same
offence.

The protection contained in Article 20(2) would be available only if the following essentials are complied
with:-

(a) The person must be accused of an “offence”.

(b) The person must have been prosecuted before a court or judicial tribunal.
(c) The person must have been punished after his prosecution before a court or a judicial tribunal.
(d) The person must be prosecuted for the second time before a court or a judicial tribunal.
(e) The offence must be the same in both the proceedings.

3. Self Incrimination [Art. 20(3)]:

The expression ‘self-incrimination’ means “conveying information based upon personal knowledge of the
person giving information involving himself to be the prime part taken in the offence.” A person shall not
be asked to make statements against himself (i.e. self harming statements/confessional statements).

Clause 3 of Art. 20 of the Indian Constitution prohibits self-incrimination. It says that “No person accused
of any offence shall be compelled to be a witness against himself”. Art. 20(3) is based on the common
law maxim nemo tenetur prodere accussare seipsum, which means that “no man is bound to accuse
himself”.

Ingredients-The protection under Art. 20(3) is available, provided the following conditions are fulfilled.
(1.) The person (seeking protection under Clause 3 of Art. 20) must be ‘accused of an offence’. (2.) The
protection is against ‘compulsion to be a witness’. (He is compelled to give witness); and (3.) The
compulsion relates to giving evidence ‘against himself’.

(1) Accused of an offence :- The words ‘accused of an offence makes it clear itself only that this Right is
available to a person accused of an offence only.

In a case, it was held that a person, whose name was mentioned as an accused in FIR by the police and
the investigation was ordered by the Magistrate can claim the protection of this Right.

The (2) and (3) ingredient i.e. compulsion to be witness and compulsion to give evidence “against
himself”, shall be taken together as both points convey similar viewpoint/meaning.

Both the ingredients can be understood through the various sections of Indian Evidence Act, 1872,
which states as follows:

According to Sec. 25 of the Act Confessional Statement (Self harming statement/statement made against
himself) made by a person/accused to police officer is inadmissible.

According to Section 26, such confession shall not be proved against him (accused).

Accordingly to Section 27 “when an information given by the accused in police custody leads to
discovery of an incriminating material object, like jewellery, weapons etc. that portion of the
information can be proved.

Now one question here arises, whether Section 27 of Indian evidence Act is violative of Article 20(3) of
India Constitution. This question was resolved in a case

The Court held that it is on the prosecution to find out whether the accused gave the information
voluntarily or compulsorily. The Court made it clear that Section 27 of the Evidence Act is not violative
of Article 20(3).

So, therefore as per above mentioned it is clear that ‘compulsion to be witness’ and ‘compulsion to give
evidence “against himself” both states that to attract the protection of Article 20(3) it must be shown
that the accused was compelled to make the statement likely to be incrimination of himself, where the
accused makes a confession without any inducement, threat or promise, Article 20(3) does not apply.

Article 21

Right to Protection of Life and Personal Liberty

The right to live a free, full and dignified life is one of the most basic principles of human existence. Every
person is entitled to live their life on their own terms, with no unfair interference from others. A
successful democracy can only be one that guarantees its citizens the right to protect their own life and
liberty.

In India, the Protection of Life and Personal Liberty is a Fundamental Right granted to citizens under Part
III of the Constitution of India, 1950. These Fundamental Rights represent the foundational values
cherished by the people and are granted against actions of the state, meaning that no act of any state
authority can violate any such right of a citizen except according to the procedure established by law.

Article 21 of this part states that “No person shall be deprived of his life or personal liberty except
according to the procedure established by law”, and this is known as the Right to Life and Personal
Liberty.

Hence, this Article prohibits the encroachment upon a person’s right to life and personal liberty against
the state. The state here refers to all entities having statutory authority, like the Government and
Parliament at the Central and State level, local authorities, etc. Thus, violation of the right by private
entities is not within its purview.

The terms ‘life’ and ‘personal liberty’ encompass a wide variety of rights of the people, which are a result
of the evolution in the interpretation of Article 21 by the courts over the years. Here, we shall examine
the various aspects of this Fundamental Right; but before that, let’s have a look at the jurisprudential
evolution of this concept and the significance of one of the most famous judgements related to it –
Maneka Gandhi v. Union of India.

Personal Liberty: Meaning and Scope

The meaning of Personal Liberty of a citizen in India has evolved and its scope has widened. Prior to the
Maneka Gandhi case, it had a relatively narrower scope, comprising only some liberties of a person.

Personal Liberty was first interpreted in the case of A.K. Gopalan v. State of Madras, which is explained
below.

A.K. Gopalan v. State of Madras : Prevention Detention

Facts:

In this case, the Petitioner, a communist leader, was detained under the Preventive Detention Act, 1950.

He claimed that such detention was illegal as it infringed upon his freedom of movement granted in
Article 19(1)(d) of the Constitution of India and thus also violated his Personal Liberty as granted by
Article 21 since freedom of movement should be considered a part of a person’s personal liberty.

Judgement:

The court stated that personal liberty meant liberty of the physical body and thus did not include the
rights given under Article 19(1). Hence, Personal liberty was considered to include some rights like the
right to sleep and eat, etc. while the right to move freely was relatively minor and was not included in
one’s “personal” liberty.

The subsequent case of Kharak Singh v. State of U.P. and Ors. saw an expansion in the meaning of
Personal liberty, explained as follows.

However, Maneka Gandhi v. Union of India, proved to be a landmark case in the evolution of Personal
Liberty, greatly widening the scope of this right as granted by Article 21.

Maneka Gandhi v. Union of India : Right to Travel

Facts:

The petitioner, in this case, was ordered by the Regional Passport Office, Delhi to surrender her newly
made passport within 7 days due to the Central Government’s decision to impound it “in public
interest”, in accordance with the Passport Act of 1967. Upon requesting a statement of the reasons for
such impounding, the Government replied that they could not furnish a copy of the same “in the
interest of the general public.” A writ petition was filed by the petitioner challenging the Government’s
decision of impounding and also of not providing the reasons, as well as not allowing the petitioner to
defend herself.

Judgement:

The Honourable Supreme Court held that the right to travel and go outside the country must be included
in the Right to Personal Liberty. It stated that “personal liberty” given in Article 21 had the widest
amplitude and covered a variety of rights related to the personal liberty of a person. The scope of
personal liberty was, hence, greatly increased and it was held to include all the rights granted under
Article 21, as well as all other rights related to the personal liberty of a person. Such a right could only
be restricted by a procedure established by law, which had to be “fair, just and reasonable, not fanciful,
oppressive or arbitrary.”

Hence, the Court adjudged in the case that:

1. The Government action was not justified as there was no pressing reason for the impounding of
the petitioner’s passport and it was a violation of her Fundamental Rights.

2. The principles of Natural Justice were violated as the petitioner was not given the opportunity to
be heard.

Since this landmark case, the courts have sought to give a wider meaning to “personal liberty”. The
principles of natural justice have also been emphasized upon, as any procedure which restricts the
liberty of a person must be fair, just and reasonable.

What is the inter-relation between Articles 14, 19 and 21?

As we have seen above, the inter-relation between Articles 14, 19 and 21 has evolved with the evolution
in the meaning of Personal Liberty.

First of all, let us take a look at Articles 14 and 19 given in the Indian Constitution.

Article 14 grants equality before the law and equal protection of the laws to all persons in the

Indian territory and prohibits discrimination on the basis of religion, race, caste, sex and place of birth.

Clause (1) of Article 19 grants all citizens the right to freedom of speech and expression, to assemble
peaceably and form associations, to move freely and reside anywhere throughout the country, and to
practice any profession, occupation or trade.

All other clauses of this Article allow the State to impose reasonable restrictions on the rights granted in
the above clause “in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence.”
Earlier, Articles 19 and 21 were held to be completely exclusive and separate from each other. The
position changed slowly as Personal Liberty evolved to include all rights other than those mentioned in
Article 19, and they were considered complementary to each other.

The case of Maneka Gandhi v. Union of India, however, brought a sea change. The Supreme Court held
that Articles 19(1) and 21 are not mutually exclusive as the Right to Life and Personal Liberty covers a
wide variety of rights, some of which have been given additional protection under Article 19(1).

Article 19 and Article 21 go hand-in-hand and the procedure established by law restricting these rights
should stand the scrutiny of other provisions of the Constitution as well – including Article 14. Thus, a
law encroaching upon one’s personal liberty must not only pass the test of Article 21 but also of Article
14 and Article 19 of the Constitution.

These three rights are, hence, interconnected and provide safeguards against arbitrary actions of the
government. They are meant to be read together and interpreted in accordance with each other. All
three of them grant basic human rights and freedoms to the citizens and their immense collective
importance has given them the name “Golden Triangle” in jurisprudence.

Scope of Right to Life and Personal Liberty

We have had enough discussion on the expansion in the scope of Article 21. What exactly constitutes
this Right today? We shall hereafter examine the various aspects of Right to Life and Personal Liberty.

Right to live with human dignity

It is not enough to ensure that a person has a Right to Live. An essential element of life is one’s dignity
and respect; therefore, each person has been guaranteed the right to live with dignity – which means
having access to the necessities of human life as well as having autonomy over one’s personal decisions.

In Occupational Health and Safety Association v. Union of India, the protection of health and strength
of workers and their access to just and humane conditions of work were taken as essential conditions to
live with human dignity.

Occupational Health and Safety Association v. Union of India

Facts:

In this case, a non-profit organisation filed a petition seeking guidelines for occupational safety and
health conditions in various industries, especially thermal power plants. This was in view of the various
skin diseases, lung abnormalities, etc. suffered by their workers due to unhealthy working conditions. It
also called for compensation to victims of occupational health disorders.

Judgement:

The court recognised the State’s duty to protect workers from dangerous or unhygienic working
conditions and remanded the matter to various High Courts to check the issue of thermal power plants
in their respective states.

The Supreme Court, in the case of Navtej Singh Johar v. Union of India (2018), said that the Right to
dignity means the right to “full personhood”, and “includes the right to carry such functions and
activities as would constitute the meaningful expression of the human self.” In this case, a very
important aspect of human dignity was talked about – the control over one’s own intimate relations. Is
Right to Privacy an absolute right?

Although Right to Privacy is one of the most essential rights of a person, especially in a modern
democracy, it is not an absolute and untouchable right. There are certain situations where reasonable
restrictions can be placed on this right of a person for the greater good.

One such situation can be seen in the infamous case of Mr X v. Hospital Z. Mr. X v. Hospital Z

Facts:

The appellant, in this case, was found to be HIV(+) when his blood sample was tested. This fact was
disclosed by the Hospital to others without the appellant’s express consent. Due to such disclosure, the
appellant’s proposed marriage to Ms. Y was called off and he was shunned by society.

The aggrieved person approached the National Consumer Dispute Redressal Commission claiming that
there was a breach of confidentiality on the part of the Hospital, but his complaint was dismissed. The
appellant then approached the Supreme Court contending that the Duty of Care of the medical
professionals as well as his Right to Privacy were violated.

Judgement:

The court held that the appellant’s Right to Privacy was superseded by Ms. Y’s right to know such a
material fact about the person she was about to marry, as it was bound to affect her life as well. It was
further held that a medical professional’s duty to maintain confidentiality could be breached in cases
where public interest was at stake.

Right to Privacy and Aadhaar Card

One of the most important judgements related to Right to Privacy came in the case of Justice

K.S. Puttaswamy (Retd.) v. Union of India. In this case, the court declared Right to Privacy as
Fundamental Right to the Citizens.

K.S. Puttaswamy (Retd.) v. Union of India

Facts:

The case was brought by a retired Karnataka High Court Justice before a nine-judge Constitutional bench,
challenging the government’s scheme of making the Aadhaar card (a uniform system of biometrics-
based identity card) for all citizens. He claimed that it was a violation of the Right to Privacy, and the fact
that there were no strict data protection laws in India meant that people’s personal information could
be misused. The Attorney General argued that the Constitution did not guarantee a separate Right to
Privacy.

Judgement:

The bench unanimously held that Right to Privacy was a part of one’s Right to Life granted by Article 21
and included the right to keep personal information private. While it upheld the constitutional validity of
the Aadhaar Card, it struck down certain provisions of the Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Act, 2016.

Right to die

The Right to Life confers upon the person the right to live a full life and dictates that the State cannot
interfere in this right except through procedure established by law. But, what if a person chooses to end
his own life? Can he interfere in his own Right to Life?

Section 309 of the Indian Penal Code, 1860 criminalises attempt to suicide, with the convicted person
facing up to two years of imprisonment, or a fine, or both.

Section 306, meanwhile, criminalises the abetment to suicide i.e., the assistance given by a person in the
process of the commitment of suicide by another.

You might say that such a view is inhumane because a person, especially one who is depressed or
frustrated to the point of wanting to die, should not be criminalized for attempting suicide. A person has
the Right to Life which should naturally imply the Right to end his life too.

Such a view was taken by the court in the case of P. Rathinam v. Union of India.

P. Rathinam v. Union of India - Right to Die

Facts:

In this case, two petitions were filed challenging Section 309 of the IPC on the grounds that it stood in
violation of Articles 14 and 21 of the Constitution.

Judgement:

Keeping Article 21 as well as the principles of natural justice in mind, the two-judge bench ruled that
Right to Life also included the right to not live a forced life. Therefore, Section 309 of the Indian Penal
Code was held to be unconstitutional.

However, the court then changed its decision in the subsequent case of Smt. Gian Kaur v. State of
Punjab, in this the court ruled that attempt to suicide is not covered U/A 21 of the Indian Constitution.
 Right to Education: A Fundamental Right under Article 21A

Life without education remains to be a mere animal existence, as it is education that broadens the
horizons of a person’s mind, making him capable of not only earning a livelihood but also of achieving
happiness and respect and making a mark for himself in the world.

The Right to Education in India was added under Article 21A of the Indian Constitution by the
Constitution (Eighty-Sixth) Amendment Act, 2002. This Article provides free and compulsory education
to all children in the age group of six to fourteen years (6–14) as a Fundamental Right.

Two cases had an important bearing on the establishment of the Right to Education. We shall take a look
at them below.

Miss Mohini Jain v. State of Karnataka and Ors.

Facts:

In this case, student of a Government Medical College in Karnataka was refused admission as she could
not afford to pay the Rs. 60,000 capitation fee which was charged from the students not belonging to
Karnataka. She filed a petition against this action.

Judgement:

The High Court declared that it was illegal to charge capitation fee from students under any
circumstances. Moreover, it acknowledged that education was what ensured a life of dignity and
happiness to a person and not transforming the right to education mentioned under Article 41 of Part IV
of the Constitution into a Fundamental Right would defeat its purpose and also keep all existing
Fundamental Rights beyond the reach of the illiterate. Thus, it declared that Right to Education is a part
of the Fundamental Rights.

Unni Krishnan, J.P. and Ors. Etc. v. State of A.P. and Ors.: Article 21

Facts:

The petition in this case was filed by certain educational institutions in Andhra Pradesh, Karnataka,
Maharashtra and Tamil Nadu challenging the decision made by the court in the above case of Mohini
Jain v. the State of Karnataka. They claimed that a person had the right to open an educational
institution with a profit motive and if that institution was self-financed, then the quantum of fees
charged by it would be the discretion of the institution and not the State.

Judgement:

It was held that every Indian citizen has a Fundamental Right to Education. No person can be deprived of
his or her education by the State. This right includes free education until the person attains 14 years of
age and thereafter, it will depend on his or her personal economic capacity as well as that of the State.

It is clear that the recognition of Right to Education as a Fundamental Right was mainly brought about by
the above-mentioned cases, which ultimately led to the Eighty-Sixth Amendment.

Right against Exploitation (Articles 23-24) Under Indian Constitution

The Indian laws prohibit slavery and any act which harms the dignity and freedom of a person. Yet there
are people who still view themselves as superior to others. As a result, many people are forced to do
work against their will at cheap rates and millions of women and children become victims of human
trafficking. In 2016, there were 18.3 million people in modern slavery in India according to the Global
Slavery Index. The 2018 Global slavery survey report stated that there has been a further addition of
forced sexual exploitation and child labour in the country.

The Right against exploitation enshrined in Article 23 and 24 of the Indian Constitution guarantees
human dignity and protect people from any such exploitation. Thus, upholding the principles of human
dignity and liberty upon which the Indian Constitution is based.

Prohibition of Traffic in Human Beings and Forced Labour

Clause 1 of Article 23 prohibits the trafficking of human beings, beggar any similar form of forced labour.
It also states that any contravention of this provision is punishable by the law. It explicitly prohibits:

∙ Human Trafficking: This refers to the sale and purchase of human beings mostly for the purpose of
sexual slavery, forced prostitution or forced labour.

∙ Beggar: This is a form of forced labour which refers to forcing a person to work for no remuneration.

∙ Other forms of forced labour: This includes other forms of forced labour in which the person works for
a wage less than the minimum wage. This includes bonded labour wherein a person is forced to work to
pay off his debt for inadequate remuneration, prison labour wherein prisoners sent in for rigorous
imprisonment are forced to work without even minimum remuneration etc.

Hence, Article 23 has a very wide scope by ensuring that a person is not forced to do anything
involuntarily. For instance, It forbids a land-owner to force a landless, poor labourer to render free
services. It also forbids forcing a woman or child into prostitution.

Peoples Union for Democratic Rights v. Union of India,

In the case of People’s Union for Democratic Rights v. Union of India, the petitioner was an organization
formed for the protection of democratic rights. It undertook efforts to investigate the conditions under
which the workmen employed in various Asiad projects were working. This investigation found out that
various labour laws were being violated and consequently public interest litigation was initiated. In the
case issues like labourers not given the minimum remuneration as mentioned in the minimum wages
act, 1948 and unequal income distribution among men and women were highlighted.

The Supreme Court interpreted the scope of article 23 in the case. The Court held that the word force
within this article has a very wide meaning. It includes physical force, legal force and other economic
factors which force a person to provide labour at a wage less than the minimum wage. Hence, if a
person is forced to provide labour for less than the minimum wage, just because of poverty, want,
destitution or hunger, it would be accounted for as forced labour.

The Court also clarified the meaning of “all similar forms of forced labour” as mentioned in article 23 of
the Constitution of India. It said that not only beggar, but all forms of forced labour are prohibited. This
means that it would not matter if a person is given remuneration or not as long as he is forced to supply
labour against his will.

Sanjit Roy v. State of Rajasthan,

In the case of Sanjit Roy v. State of Rajasthan, the state employed a large number of workers for the
construction of a road to provide them relief from drought and scarcity conditions prevailing in their
area. Their employment fell under the Rajasthan Famine Relief Works Employees ( Exemption from
Labour Laws) Act, 1964. The people employed for the work were paid less than the minimum wage,
which was allowed in the Exemption Act.

The Court held that the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act,
1964 is Constitutionally invalid as to the exclusion of the Minimum Wages Act. This means that minimum
wage must be paid to all the people employed by the state for any famine relief work, regardless of
whether the person is affected by drought or scarcity or not. This is essential so that the state does not
take advantage of the helpless condition of the people affected by famine, drought etc. and upholds that
they must be paid fairly for the work into which they put in effort and sweat, and which provides
benefits to the state.

Deena v. Union of India,

In the case of Deena Dayal Etc. v Union of India And Others, it was held that if a prisoner is forced to do
labour without giving him any remuneration, it is deemed to be forced labour and is violative of Article
23 of the Indian Constitution. This is because the prisoners are entitled to receive reasonable wages for
the labour they did.

Bandhua Mukti Morcha v. Union of India,

The petitioner, Bandhua Mukti Morcha is an organization waging a battle against the horrendous system
of bonded labour. In the case of Bandhua Mukti Morcha v. Union of India, the organization sent a letter
to Justice Bhagwati and the Court treated it as a Public Interest Litigation. The letter contained its
observations based on a survey it conducted of some stone quarries in the Faridabad district where it
was found that these contained a large number of workers working in “inhuman and intolerable
conditions”, and many of them were forced labourers.

The Court laid down guidelines for determination of bonded labourers and also provided that it is the
duty of the state government to identify, release and rehabilitate the bonded labourers. It was held that
any person who is employed as a bonded labour is deprived of his liberty. Such a person becomes a
slave and his freedom in the matter of employment is completely taken away and forced labour is thrust
upon him. It was also held that whenever it is shown that a worker is engaged in forced labour, the
Court would presume he is doing so in consideration of some economic consideration and is, therefore,
a bonded labour. This presumption can only be rebutted against by the employer and the state
government if satisfactory evidence is provided for the same.

Article 24 Prohibition of employment of children in factories, etc.

Child labour is an inhumane practice which takes away the opportunity of having a normal childhood
from the children. It hampers their growth and mental well being of children. It also disables them from
having normal fun-filled childhood. Article 39 of the Constitution states that it is the duty of the state to
ensure that the tender age of children is not abused and that they are not forced by economic necessity
to enter into fields of work where they are forced to provide labour which is unsuitable to their age and
strength.

Article 24 states that any child under the age of fourteen years cannot be employed as a worker in any
factory or be engaged in any other hazardous employment.

Hence it prohibits the employment of children under the age of 14 years in dangerous or unhealthy
conditions which could harm their mental and physical strength.

People’s Union for Democratic Rights v. Union of India,

In the case of People’s Union for Democratic Rights v. Union of India, the petitioner observed the
conditions in which the workers employed in various Asiad projects were working. It was observed that
children under the age of fourteen had been employed. It was however contended that such
employment was not against the Employment of Children Act, 1938 since the act did not list the
construction industry as a hazardous industry.

The Court held that the construction work falls in the field of hazardous employment. Thus, children
under the age of fourteen must not be employed in the construction work even though it has not been
mentioned explicitly under the Employment of Children Act 1938. The Court also advised the state
government to amend the schedule and change the omission to include the construction industry into
the list of hazardous industries.

M.C. Mehta v. State of Tamil Nadu,

In the case of M.C. Mehta v. State of Tamil Nadu,Shri MC Mehta undertook to invoke Article 32,
enabling the Court to look into the violation of fundamental rights of children guaranteed to them
under Article 24. Sivakasi was considered as a big offender who was employing many child labourers. It
was engaged in the manufacturing process of matches and fireworks. This, the Court observed, qualified
as a hazardous industry. Thus employing children under the age of 14 years in this industry is prohibited.

The Court reaffirmed that children below the age of fourteen must not be employed in any hazardous
industry and it must be seen that all children are given education till the age of 14 years. The Court also
considered Article 39(e) which says that the tender age of children must not be abused and they must be
given opportunities to develop in a healthy manner. In light of this, the Court held that the employer
Sivakasi must pay a compensation of Rs. 20000 for employing children in contravention to Child Labour
(Prohibition and Regulation) Act, 1986.

Article 25-28

Right to Freedom of religion

Religion is a matter of belief or faith. The constitution of India recognizes the fact, how important
religion is in the life of people of India and hence, provides for the right to freedom of religion under
Articles 25 to Article 28. The Constitution of India envisages a secular model and provides that every
person has the right and freedom to choose and practice his or her religion. In a number of cases, the
Apex Court has held that secularism is the basic structure of the Constitution, the most important being
the Kesavananda Bharati case. People in India mainly practice Islam, Hinduism, Jainism, Buddhism,
Sikhism and, Christianity. In India, there are religion-specific laws and Goa is the only state to have a
Uniform Civil Code known as the Goa Civil Code. The Constitution supports religious harmony which
means the people of India show love and affection to different religions of the country. what is
Secularism?

Secularism means developing, understanding and respect for different religions. It is believed that the
word ‘Secularism’ has its origin in late medieval Europe. In 1948, during the constituent assembly
debate, a demand was made by the KT Shah to include the word ‘Secular’ in the Preamble to the
Constitution. The members of the assembly though agreed to the secular nature of the constitution but
it was not incorporated in the Preamble. Later, in 1976 the Indira Gandhi government enacted the 42nd
Amendment Act and the word ‘Secular’ was added to the Preamble. The 42nd Amendment Act also
known as the ‘Mini Constitution’, is the most comprehensive amendment to the Constitution.

In the much-disputed Ayodhya case, it was held by the apex court that the constitution postulates
equality of all faiths. Through Tolerance and mutual co-existence, the secular commitment of our
country and its people can be nourished.

S. R. Bommai v. Union of India,

The 9 judge bench, in this case, ruled that Secularism is the basic feature of the Constitution of India. It
also observed that religion and politics cannot be mixed together. If the State follows unsecular policies
or courses of action then it acts contrary to the constitutional mandate. In a State, all are equal and
should be treated equally. Religion has no place in the matters of State. Freedom of religion as a
fundamental right is guaranteed to all persons in India but from the point of view of the State, religion,
faith, and belief are immaterial.

∙ Article 25: Freedom of conscience and free profession, practice and propagation of religion. ∙ Article 26:
Freedom to manage religious affairs.

Article 27: Freedom Constitutional Provisions relating to Right of Religion

∙ as to payment of taxes for promotion of any particular religion.

∙ Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational
institutions.

Freedom of Religion in India (Art. 25)

Article 25 of the Constitution guarantees freedom of religion to all persons in India. It provides that all
persons in India, subject to public order, morality, health, and other provisions:

∙ Are equally entitled to freedom of conscience, and

∙ Have the right to freely profess, practice and propagate religion.

It further provides that this article shall not affect any existing law and shall not prevent the state from
making any law relating to:

∙ Regulation or restriction of any economic, financial, political, or any secular activity associated with
religious practice.

∙ Providing social welfare and reform.

∙ Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus.

The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan held that the test to
determine the question in deciding what is an integral part of a religion is whether it is regarded as
integral by the community following that religion or not.

Doctrine or Belief?

In Hasan Ali v. Mansoor Ali, the Bombay High Court held that Articles 25 and Article 26 not only
prevents doctrines or beliefs of religion but also the acts done in pursuance of religion. It thus
guarantees ceremonies, modes of worship, rituals, observances, etc. which are an integral part of
religion. What is the essential or integral part of a religion has to be determined in the light of the
doctrines and practices that are regarded by the community as a part of their religion and also must be
included in them.

The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt ruled that there is no doubt that religion finds its basis in the system of
doctrines regarded by those who profess that religion, but it will not be correct to say religion is nothing
but a doctrine or belief.

In the case of SP Mittal v. Union of India, the court held that Religion need not be theistic. It is not
merely an opinion, doctrine or belief but has an outward expression in the act as well.

What is religion?
The German philosopher Immanuel Kant defines religion as “Religion is the recognition of all our duties
as divine commands”.

Milton Yinger, American sociologist defines religion as “a system of beliefs and practices by means of
which a group of people struggles with the ultimate problems of human life”.

The constitution does not define the term ‘religion’ and ‘matters of religion’. Hence, It is left to the
Supreme Court to determine the judicial meaning of these terms.

A.S. Narayan v. State of Andhra Pradesh,

In this case, Justice Hansaria observed that “our constitution makers had used the word “religion” in
these two articles (Articles 25 and 26) in the sense conveyed by the word ‘dharma’.” He further
explained the difference between religion and dharma as “religion is enriched by visionary methodology
and theology, whereas dharma blooms in the realm of direct experience. Religion contributes to the
changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire one to
build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine in the heart.”

The National Anthem Case, Bijoe Emmanuel v. State of Kerala

The facts of this case were that three children belonging to a sect (Jehovah’s witness) worshipped only
Jehovah (the creator) and refused to sing the national anthem “Jana Gana Mana”. According to these,
children singing Jana Gana Mana was against the tenets of their religious faith which did not allow them
to sing the national anthem. These children stood up respectfully in silence daily for the national
anthem but refused to sing because of their honest belief. A Commission was appointed to enquire
about the matter. In the report, the Commission stated that these children were ‘law-abiding’ and did
not show any disrespect. However, the headmistress under the instruction of the Dy. Inspector of
Schools expelled the students.

The Supreme Court held that the action of the headmistress of expelling the children from school for not
singing the national anthem was violative of their freedom of religion. The fundamental rights
guaranteed under Article 19(1)(a) and Article 25(1) has been infringed. It further held that there is no
provision of law which compels or obligates anyone to sing the national anthem, it is also not
disrespectful if a person respectfully stands but does not sing the national anthem.

In another case of the Supreme Court, Shyam Narayan Chouksey v. Union of India It was averred in the
petition filed before the Supreme Court that every person must show respect to the national anthem.
The Supreme Court held that every citizen or persons are bound to show respect to the National
Anthem of India, whenever played or sung on specific occasions the only exemption is granted to
disabled people. It further held that playing of the national anthem in cinema halls is not mandatory but
optional and directory.

Article 51A also recognizes the duty of every citizen to show respect to our national anthem. It states
that every citizen of India is duty-bound to respect its ideals, institutions, National flag, National
anthem, etc.
Bhuri v. State of J. & K.,

In this case, the issue related to the constitutional validity of the Jammu and Kashmir Mata Vaishno Devi
Shrine Act, 1988 which abolished the right of performing Pooja. The Act took over the administration,
governance, management of the shrine fund and vested it with the Board constituted under the Act (Shri
Mata Vaishno Devi Shrine Board). The Supreme Court upheld the Act as constitutionally valid and
observed that right to pooja is a customary right and the state by enacting a legislation can abolish it.
The rights under Article 26 is not absolute but is subject to certain limitation.

Shifting of property connected with religion

In the case of Gulam Abbas v. State of UP,there was a dispute between the Shias and Sunnis regarding
the performing of the religious rites by the Shias on a certain plot of land of mohalla Doshipura in
Varanasi. In order to avoid clashes between these communities and to find a permanent solution to this
problem, the Supreme Court appointed a 7 member committee with Divisional Commission as the
Chairman and 3 members of the Shia sect and 3 members of the Sunni sect. The committee made a
recommendation of shifting of the graves of Shias to separate the places of worship of the Shia and
Sunni sect. The Sunni sect challenged these recommendations as violative of their fundamental right of
freedom of religion under Article 25 and 26. The Court rejected these contentions.

The Supreme Court held that the fundamental right guaranteed under Article 25 and 26 is not absolute
and is subject to public order and if the court is of the opinion that shifting of graves is in the interest of
the public then the consent of the parties is irrelevant even though the Muslim personal law is against
shifting of

Restrictions on Freedom of Religion

The Supreme Court in In re, Noise Pollution case, has given certain directions to be followed to control
noise pollution in the name of religion:

∙ Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am.

∙ Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of trumpets, or any use of any
sound amplifier between 10 pm to 6 am except in public emergencies.

∙ Generally: A provision shall be made by the State to confiscate and seize loudspeakers and such other
sound amplifiers or equipment that create noise beyond the limit prescribed.

Freedom to manage religious affairs (Art. 26)

Article 26 (subject to public order, morality, and health) confers a right on every religious denomination
or any section of such religious denomination of:

∙ Establishing and maintaining institutions for religious and charitable purposes;

∙ Managing its affair with regard to religion;

∙ Owing and acquiring property (movable and immovable);

∙ Administering the property in accordance with the law.

Religious denomination

The word ‘religious denomination’ is not defined in the constitution. The word ‘denomination’ came to
be considered by the Supreme Court in the case of Commissioner, Hindu Religious endowment Madras
v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In this case, the meaning of ‘Denomination’ was
culled out from the Oxford dictionary, “A collection of individuals classed together under the same
name, a religious sect or body having a common faith and organization designated by a distinctive
name”.

Bramchari Sidheshwar Bhai v. State of West Bengal

In this case, The Ram Krishna Mission wanted to declare itself as a non- Hindu minority where its
members were to be treated as Hindus in the matter of marriage and inheritance but in the religious
sense to be recognized as non-Hindus. This would certainly mean that they are given the status of legal
Hindus but religious non- Hindus, similar to Sikhs and Buddhists. To this, the Supreme Court ruled that it
cannot be claimed by the followers of Ram Krishna that they belong to the minority of the Ram Krishna
Religion. Ram Krishna Religion is not distinct and separate from the Hindu religion. It is not a minority
based upon religion. Hence, it cannot claim the fundamental right under Article 30 (1) to establish and
administer institutions of education by Ram Krishna Mission.

Right to establish and maintain-institutions for religious and charitable purposes: Azeez Basha v. Union
of India

In this case, certain amendments were made in the year 1951 and 1965 to the Aligarh Muslim University
Act, 1920. These amendments were challenged by the petitioner on the ground that:

1. They infringe on the fundamental right under Article 30 to establish and administer educational
institutions.

2. Rights of the Muslim minority under Article 25, 26, 29 were violated.

It was held by the Supreme Court that prior to 1920 there was nothing that could prevent Muslim
minorities from establishing universities. The Aligarh Muslim University was established under the
legislation (Aligarh Muslim University Act,1920) and therefore cannot claim that the university was
established by the Muslim Community as it was brought into existence by the central legislation and not
by the Muslim minority.

Right to manage its own affairs in the ‘Matters of Religion’

Matter of religion includes religious practices, rituals, observances, ceremonies, mode and manner of
worship, etc., regarded as the essential and integral part of the religion. For instance, in Acharaj Singh v.
State of Bihar it was held that, if Bhog offered to the deity is a well-established practice of that religious
institution, such a practice should be regarded as a part of that religion.

Breaking of coconuts and performing Pooja, chanting Mantras and Sutras in State functions: Atheist
Society of India v. Government of A.P.,

The petitioner (Atheist Society of India), in this case, prayed for the issuance of writ of Mandamus to
direct the Government of Andhra Pradesh to give instruction to all the concerned departments to forbid
the performance of religious practices such as breaking of coconuts, chanting mantras, etc. at the State
function on the ground that the performing of these practices is against secular policy of the
constitution. The petitioner’s prayers were rejected by the court on the grounds that it infringes upon
the right to religion and if permitted it will be against the principle of secularism, which is the basic
structure of our Constitution. It would lead to depriving of the right to freedom of thought, faith,
worship.

Limitation of the Right

The right to religion under Article 26 is subject to certain limitations and not absolute and unfettered. If
any religious practice is in contravention to any public order, morality or health then such religious
practice cannot claim the protection of the state.

Freedom from taxes for promotion of any particular religion (Art. 27)

Article 27 of the Constitution prevents a person from being compelled to pay any taxes which are meant
for the payment of the costs incurred for the promotion or maintenance of any religion or religious
denomination.

In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt, the Madras legislature enacted the Madras Hindu Religious and Charitable
Endowment Act, 1951 and contributions were levied under the Act. It was contended by the petitioner
that the contributions levied are taxes and not a fee and the state of madras is not competent to enact
such a provision. It was held by the Supreme Court that though the contribution levied was tax but the
object of it was for the proper administration of the religious institution.

Prohibition of religious instruction in the State-aided Institutions (Art. 28)

Article 28 prohibits:

∙ Providing religious instructions in any educational institutions that are maintained wholly out of the
state funds.

∙ The above shall not apply to those educational institutions administered by the states but established
under endowment or trust requiring religious instruction to be imparted in such institution.

∙ Any person attending state recognized or state-funded educational institution is not required to take
part in religious instruction or attend any workshop conducted in such an institution or premises of such
educational institution.
Teaching of Guru-Nanak: D.A.V. College v. State of Punjab,

In this case, Section 4 of the Guru Nanak University (Amritsar) Act, 1969 which provided that the state
shall make provisions for the study of life and teachings of Guru Nanak Dev ji was questioned as being
violative of Article 28 of the Constitution. The question that arose was that the Guru Nanak University is
wholly maintained out of state funds and Section 4 infringes Article 28. The court rejecting this held that
Section 4 provides for the academic study of the life and teachings of Guru Nanak and this cannot be
considered as religious instruction.

Education for value development based on all religions: Aruna Roy v. Union of India,

In this case, a PIL was filed under Article 32 wherein it was contended by the petitioner that the
National Curriculum Framework for School Education (NCFSE) which was published by the National
Council of Educational Research and Training is violative of the provisions of the constitution. It was also
contended that it was anti-secular and was also without the consultation of the Central Advisory Board
of Education and hence it should be set aside. NCFSE provided education for value development relating
to basic human values, social justice, non-violence, self-discipline, compassion, etc. The court ruled that
there is no violation of Article 28 and there is also no prohibition to study religious philosophy for having
value-based life in a society.

Conclusion

India is the most diverse country with respect to religion. Being a secular country it does not have its
own religion and every citizen has the right to choose, practice, propagate and even change his or her
religion. However, these rights are not absolute but subject to certain restrictions provided by the
constitution. No person in the name of religion can do any act that is opposed to the public policy or
creating any kind of disturbances or intolerance among the people of India.

Article 32 under the Constitution of India – Right To Constitutional 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 by the constitution as it is
considered ‘the protector and guarantor of Fundamental Rights’.

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

Dr Ambedkar stated that:

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

Nature of Writ Jurisdiction

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

Factors Guiding the Discretion : Meaning:-

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

2. Alternative Relief Remedies sought in a lawsuit in various or alternative forms. 3. Res Judicata A
case that has been decided.

4. Questions of the Fact An issue that involves resolution of a factual dispute or controversy.

5. Laches A defence to an equitable action, that bars recovery by the plaintiff because of the
plaintiff’s undue delay in seeking relief.

Types of Writs

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

1. Habeas Corpus

∙ Meaning

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

∙ When Issued?

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

∙ Important judgments on Habeas Corpus

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

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

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

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

2. Quo Warranto

∙ What does the writ of Quo Warranto mean?

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

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

1. When the public office is in question and it is of a substantive nature. A petition against a private
corporation cannot be filed.

2. The office is created by the State or the Constitution.

3. The claim should be asserted on the office by the public servant i.e. respondent. ∙ Important
Case Laws

In the case of Ashok Pandey v. Mayawati the writ of Quo Warranto was refused against Ms Mayawati
(CM) and other ministers of her cabinet even though they were Rajya Sabha members. Then in the case
of G.D. Karkare v. T.L. Shevde, the High Court of Nagpur observed that “In proceedings for a writ of quo
warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any
non-performance of duty towards him. What is in question is the right of the non-applicant to hold the
office and an order that is passed is an order ousting him from that office.”

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 the administrative bodies.
The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is in
nature of public duty and it especially affects the right of an individual, provided there is no more
appropriate remedy” [8]. The person applying for mandamus must be sure that he has the legal right to
compel the opponent to do or refrain from doing something.

∙ Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the legal duty. 2. The nature of
the duty must be public.

3. On the date of the petition, the right which is sought to be enforced must be subsisting. 4. The writ of
Mandamus is not issued for anticipatory injury.

∙ Limitations

The courts are unwilling to issue 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 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.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book had
applied for the writ of mandamus against the Director of Public Instruction for the inclusion of his book
in the list of books which were approved as text-books in schools. But the writ was not allowed as the
matter was completely within the discretion of D.I.P and he was not bound to approve the book.

4. Certiorari

∙ What does Writ of Certiorari mean?

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

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

∙ When is a writ of Certiorari issued?

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

1. Either without any jurisdiction or in excess.

2. In violation of the principles of Natural Justice.

3. In opposition to the procedure established by law.

4. If there is an error in judgement on the face of it.

Writ of certiorari is issued after the passing of the order.

∙ Important Judgements on writ of Certiorari

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

5. Prohibition

∙ What does Writ of Prohibition mean?

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

∙ When is the writ of Prohibition issued?

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

∙ Important Case Laws

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

Amendments to Article 32

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an amendment was
made during the time of emergency when it was passed to reduce ‘both directly and indirectly’ the
jurisdiction of the Supreme Court and the High Courts to review the application of fundamental rights.
Then 43rd amendment of the Indian Constitution was passed which repealed Article 32A immediately
after the emergency was revoked. Following the amendment, the Supreme Court again gained the
power to quash the state laws. Also, the High Courts got the power to question the constitutional
validity of central laws.

Limitations to Article 32

There are certain circumstances during which the citizens do not get the privileges which they ought to
under Article 32. Therefore, the situations when the fundamental rights may be denied to the citizens
but the constitutional remedies will not be available i.e. Article 32 will not be applicable are:

∙ Under Article 33, the Parliament is empowered to make changes in the application of Fundamental
Rights to armed forces and the police are empowered with the duty to ensure proper discharge of their
duties.

∙ During the operation of Martial law in any area, any person may be indemnified by the Parliament, if
such person is in service of the state or central government for the acts of maintenance or restoration of
law and order under Article 34.

∙ Under Article 352 of the Constitution when an emergency is proclaimed, the guaranteed Fundamental
Rights of the citizens remains suspended. Also, Fundamental Rights guaranteed under Article 19 is
restricted by the Parliament under Article 358 during the pendency of an emergency.

∙ Article 359 confers the power to the President to suspend Article 32 of the Constitution. The order is to
be submitted to the Parliament and the Parliament may disapprove President’s order.

Conclusion

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

Directive Principles of State Policy: Meaning

The Directive Principles of State Policy (DPSP) has been taken from the Irish constitution and
enumerated in Part IV of the Indian Constitution.

The concept behind the DPSP is to create a ‘Welfare State’. In other words, the motive behind the
inclusion of DPSP is not establishing political democracy rather, it’s about establishing social and
economic democracy in the state. These are some basic principles or instructions or guidelines for the
government while formulating laws/policies of the country and in executing them.

According to Dr B R Ambedkar, these principles are ‘novel features’ of the Constitution. DPSP acts as a
guideline for the state and should be taken into consideration while coming up with some new policy or
any law. But no one can compel the State to consider and follow all that which is mentioned in DPSP, as
DPSP is not justiciable.

Part IV of the Indian Constitution

Part IV of the Indian Constitution consists of all the DPSP (Directive Principles of State Policy). It covers
the Articles from 36 to 51.

Article 36 of Part IV defines the term “State” as the one, who has to keep in mind all the DPSP before
formulating any policy or law for the country. The definition of “State” in the part IV will be the same as
that of Part III, unless the context otherwise requires a change in it. In Article 37 the nature of DPSP has
been defined. DPSPs are non-justiciable.

DPSP and Fundamental rights

Fundamental Rights are described as the basic rights guaranteed to every citizen of the country under
the constitution. They are present in Part III of the Constitution which ensures some rights to all its
citizens so that they can live their lives peacefully. They help in checking the activities of the
Government so that it cannot curtail any of the basic rights granted by the Constitution in the form of
Fundamental rights.

Fundamental Rights apply to all the citizens without any form of discrimination on the basis of race,
caste, creed, sex, place of birth, etc. Violation of the fundamental rights may lead to punishment and
can initiate proceedings against the government if it tries to curtail them.

The Indian Constitution recognizes 7 fundamental rights, they are as follows:

∙ Right to Equality

∙ Right to freedom

∙ Right to freedom of religion

∙ Right against exploitation

∙ Cultural and Educational Rights

∙ Right to constitutional remedies

∙ Right to privacy (recently added)

Directive Principles of State Policy are some important guidelines given to the government so that it can
work accordingly and refer to them while formulating the laws and policies, and to build a just society.

These principles are mentioned in Part IV from Article 36 to 51 of the Constitution.

Directive Principles are non-justiciable. However, these are recognized as an important roleplayer in
governing the State. These principles aim at creating such an environment, which can help the citizens to
live a good life where peace and harmony prevails.

The directive principles conjointly gauge the performance of the state, in order to achieve the objectives
stated in the preamble of the Indian Constitution.

The conflict between DPSP and fundamental rights

Fundamental Rights and the DPSP are supplementary to each other and are essential to meet the social
and economic dimensions of a democratic government.

The conflict between Fundamental Rights and DPSP often arises as sometimes it has been seen, by
various legislations, that DPSP have wider scope than the Fundamental Rights. The Fundamental Rights
are the rights which are enforceable by the Courts and any law that is in contravention to the provisions
mentioned in Part III are ultra vires.

On the other hand, the DPSP are not enforceable in any Court of Law and nothing can be declared as
void merely because it is against the provisions given under the DPSP.

In the case of State of Madras v. Champakam Dorairajan, the Supreme Court held the Fundamental
rights are superior to the DPSP saying that the Fundamental Rights under Part III prevails over DPSP in
case of any conflict between them.
In the landmark judgment given by the Supreme Court in the Golak Nath case, it was held that the
provisions mentioned under Part III as Fundamental Rights cannot be undermined just to implement the
provisions given under Part IV which enlists some important guidelines for the State in the form of the
DPSP.

The Constitution was amended in the year 1971 and through this amendment, Article 31C was
incorporated in the Constitution. It confers wider importance on the DPSP.

In the Minerva Mills case, the Supreme Court restricted this wide scope which was conferred on the
DPSP under Article 31C by making the following changes:

∙ It restored Article 31C to its pre-1976 position. A law would be protected by Article 31C only in the
case if it has been made to implement the Article 39 (b) and Article39 (c) of the DPSP and not any of the
other directive included in Part IV.

∙ There is a fine balance in the Constitution between the DPSP and the Fundamental Rights, which
should be adhered by the Courts without placing any of them as superior.

There are some important judicial pronouncements which tried to give an answer to this question, they
are as follows:

Kerala Education Bill The court said that if a conflict arises between Fundamental Right and DPSPs, the
harmony between the two should not be disturbed, but if, even after applying the doctrines of
interpretation the conflict doesn’t resolves then the former should be upheld and given more
importance over the other i.e. DPSP.

Madras vs Champakan Dorairajan, If any law is in contravention to the provisions mentioned under Part
III of the Indian Constitution, it would be held void but this is not applicable in case of DPSPs. This shows
that Fundamental rights are on a higher pedestal than DPSPs as far as this case is concerned.

I. C. Golaknath & Ors vs State Of Punjab & Anr. The Court held that the Parliament cannot curtail the
Fundamental rights in making any law or policy for the country. It also mentioned that if a law has been
made to give effect to Article 39 (b) and Article 39 (c) of Part IV of the Constitution and in doing so if
Article 14, Article 19 or Article 31 gets violated, then it cannot be declared as void merely on the ground
of such contravention. Keshavnanda Bharati vs the State of Kerala The Apex Court placed DPSPs on a
higher position than Fundamental Rights.

After that, in the case of Minerva Mills vs Union of India, the Court while deciding the case held that
the harmony between the two should be maintained because neither of the two has any precedence
over each other. Both are complementary to each other and they should be balanced anyhow for the
proper functioning of the State.

The significance of DPSPs cannot be looked down upon just because it is not enforceable in any court of
law. These principles were added to facilitate the governance and smooth functioning of the country. It
was added to meet the main objectives and the ultimate goal of a country i.e to work for the welfare of
its citizens. There are some important Acts in the above-mentioned information, so we can’t say that
DPSPs are not implemented and have no importance at all.

It is like a structure given for the government and it should work and formulate new laws revolving
around that structure only so that the welfare of the people be ensured. Every policy and law
formulated by the state has to meet the standards which are mentioned in Part IV of the Constitution.
Thus, even after being non justiciable they are implemented in some important Acts and they hold equal
relevance and importance as Fundamental rights mentioned in Part III of the Constitution of India.

(Article301-307) Freedom of trade, commerce, and intercourse

Trade has always been important because no country or state can produce all the products it needs. For
this reason, we need regulations and laws governing, managing and facilitating trade. The freedom of
trade, commerce, and intercourse is provided under Part XIII of the Indian Constitution in Articles 301 to
307.

Article 301 lays down the general principles of trade and commerce whereas Article 302 to 305
enunciates the restrictions which trade is subjected to. The source for adopting these provisions was the
Australian Constitution.

The object of such provisions in a Federal Constitution

The makers of the Constitution wished to encourage the free flow of trade and commerce in India
because, according to them, a country should work as a single economic unit without any barriers or
obstacles in internal trade. They perceived that economic unity and integration of the nation would be
the main sustaining power for stability and cultural unity of the federal polity.

In a federation, it is essential to reduce the barriers (tariffs, non-tariffs, quotas, etc.) between the states
as much as possible so that the people feel that they are members of the same country though living in
different geographical areas of the nation.

Freedom of trade, commerce, and intercourse

Article 301 talks about the freedom of trade, commerce, and intercourse throughout the country. It
states that subject to other provisions under Part XIII, the freedom to carry on these activities shall be
free. Freedom here means the right to freedom of movement of persons, property, things that may be
tangible or intangible, unobstructed by barriers within the state (intra-state) or across the states (inter
state).

The three main words used in this article are:

Trade

Trade means buying and selling of goods for profit-making purposes. Under Article 301, the word trade
means an actual, organized & structured activity with a definite motive or purpose. For the motive of
Article 301, the word trade is interchangeably used with business.
Commerce

Commerce means transmission or movement by air, water, telephone, telegraph or any other medium;
what is essential for commerce under Article 301 is transportation or transmission and not gain or
profit.

Intercourse

It means the movement of goods from one place to another. It includes both commercial and non
commercial movements and dealings. It would include travel and all forms of dealing with others.
However, it is argued that the freedom guaranteed in Article 301 does not reach out to intercourse in its
broadest meaning. There are two reasons for this. First of all, the word “intercourse” is used in
juxtaposition with the words ‘trade and commerce’ and hence this word here will mean “commercial
intercourse” and not purposeless motion. The second reason being that though Article 301 imposes a
limitation on the power of Legislature and Parliament (provided to them under Article 245 and 246) but
the word intercourse is not included as a subject of legislation under the Seventh Schedule (as the
words trade and commerce have been) and so the word intercourse cannot be implied to have the
widest of the meaning when used here.

The use of the word ‘free’ in Article 301 does not mean freedom from laws and rules governing the
country. There is a clear distinction between the laws obstructing freedom and laws containing rules and
regulations for the proper conduction of trade activities in a smooth and easy manner activities which
are not trade. Article 301 gives the freedom of trade, commerce, and intercourse but there are certain
activities which may be covered under the ambit of the trade, commerce or intercourse activities but
are not protected by the freedom guaranteed under Article 301 of the Indian Constitution. Illegal
activities, like lottery and gambling, can be an example. The bar on these illegal activities was upheld by
the Supreme Court in the case of State of Bombay v. R.M.D. Chamarbaugwala. In this case, it was held
that all activities of criminal nature or those activities which are undesirable would not be given any
protection under Article 301. Some examples of such activities can be clicking obscene pictures for
money, trafficking of women and children, hiring goondas or terrorists, etc. Though the forms, methods,
and procedures of trade may be applied these activities are extra-commercium (not subject to private
ownership or acquisition), and thus are not covered under Article 301. Inter-relation between Article
301 and Article 19(1)(g).

∙ Article 301 under Part XIII empowers the free flow of the stream of trade throughout the country
whereas Article 19(1)(g) under Part III provides the freedom to practice any occupation, trade or
business in the interest of the general public. The right under Article 301 is constitutional and can be
claimed by anyone. The right under Article 19(1)(g) is fundamental and can be claimed only by citizens.
Thus, this aspect of limitation of Article 19 is dealt with under Article 301 which gives the right to both
citizens and non-citizens to move the court if their right has been infringed.

∙ Article 19(1)(g) contains restrictions to the freedom of carrying an occupation or trade while Article
301 is accompanied by Article 302-307 which lay down the restrictions to the free flow of trade in the
country. However, the restrictions specified in Article 302-307 should have indirect results and should
not directly reduce the freedom laid down in Article 19(1)(g). Article 301 is thus considered an
explanatory provision to Article 19(1)(g) and also has a more limited scope than Article 19(1)(g) because
it is only concerned about the flow of goods and services.

∙ It is also often argued that Article 301 is the right available for trade as a whole whereas Article
19(1)(g) is the right for individuals. However, this is not true. Article 301 is derived from Section 92 of
the Australian Constitution and hence this right is available to individuals as well.

∙ Thus both of them can be said to be interrelated in some aspects. They also can be seen as interrelated
concepts at the time of emergency. At the time of emergency, rights under Article 19(1)(g) are
suspended. At that time the court looks forward to the rights provided under Article 301 to check
whether any violation has occurred or not.

Restrictions to trade and commerce

Parliament’s power to regulate trade and commerce in the public interest

Article 302 gives power to the Parliament to impose restrictions on the freedom of trade, commerce or
intercourse carried on within a state or across states anywhere in the territory of India. These restrictions
can solely be imposed taking into due consideration the interests of the public. The power to decide
whether something is in the interest of the public or not is solely given to the Parliament. It can be seen
as in the case of Surajmal Roopchand and Co v/s the State of Rajasthan were under the Defence of
India Rules, in the interest of the general public, restrictions were imposed on the movement of grain.

States power to regulate trade and commerce

The power of the Parliament in Article 302 is kept in check by Article 303. Article 303(1) states that the
Parliament does not have the power to make any law which will keep one State at a more preferable
position than the other State, by virtue of any entry in trade and commerce in any one of the lists in 7th
Schedule. However, Clause (2) states that the Parliament can do so if it is proclaimed by law that it is
essential to make such provisions or regulations, as there is indeed a scarcity of goods in some parts of
the country. The power to decide whether there is a scarcity of goods in some parts of the territory or
not is vested in the hands of the Parliament.

Article 304(a) further says that the State should impose taxes on any goods transported/imported from
other States if alike goods are taxed in the State too. It is done so that there is no discrimination
between goods produced within the State and goods imported from some other states. In the case of
State of Madhya Pradesh v/s Bhailal Bhai,(1964) the State of Madhya Pradesh imposed taxes on
imported tobacco which was not even subject to tax in the very own State i.e State of Madhya Pradesh.
The Court disapproved of the tax statement that it was discriminatory in nature.

Restrictions on trade, commerce, and intercourse among States

Clause (2) of Article 304 guides the States to impose certain reasonable restrictions on the freedom of
trade, commerce, and intercourse as may suit the public interest. But no Bill or Amendment for such
shall be put forward in the State Legislature without the prior approval of the President. A law passed by
the State to regulate interstate trade must thus fulfill the following conditions-

∙ An approval from the President must be taken beforehand,

∙ The restriction must be sensible and rational,

∙ It must be in the interests of the public.

These conditions make it clear that the Parliament’s power to regulate trade and commerce is superior
to the State’s power.

Saving of Existing Laws

Article 305 of the Indian constitution saves already formed laws and laws providing for State monopolies.
Article 305 can only do so until the President is not ordering something opposite to it or otherwise to the
law already formed. In Saghir Ahmad v/s The State of UP, the Supreme Court raised the query that
whether an Act that provides for State monopoly in a specific trade or commerce would be held violative
of the Constitution of India under Article 301.

Article 19(1)(g) was amended by the First Constitutional Amendment taking out such activities from the
purview of Article 19(1)(g). And now after the Constitution’s 4th Amendment, already formed laws and
laws made hereafter for State monopoly in trade, are immune from attack on the ground of violation of
Articles 301 & 304.

Appointment of authority for carrying out the purposes of Articles 301 to 304

Article 307 under Part XIII permits the Parliament to designate such authority as it deems fit for carrying
out the provisions laid down in Articles 301, 302, 303 and 304. The Parliament can also bestow such
authorities with functions and powers as it feels are required.

Landmark Judgments

G.K.Krishna vs State of Tamil Nadu

Facts

In the case of G.K Krishna v/s State of Tamil Nadu, a govt notification under Madras Motor Vehicles Act
was issued, increasing the motor vehicle tax on omnibuses from Rs 30 to Rs 100. The government’s
argument while imposing this tax was that this was done to stop the unhealthy competition between
omnibuses and regular stage carriage buses and to reduce the misuse of omnibuses.

Issues

The petitioner in his argument questioned:

∙ whether the tax was compensatory or regulatory?

∙ whether it was a barrier to the freedom of trade, commerce, and intercourse or not? Judgment

The Supreme Court held that the tax on carriage charges was of compensatory or regulatory nature and
was not therefore violative of the freedom guaranteed under Article 301. The Courts while explaining its
rationale behind the judgment said that these taxes are not barriers but a medium that facilitates trade.
A tax to become a prohibited tax must be first a direct tax. A direct tax is a tax that infringes the
transmission of goods or services in a trade or business. The Court, however, presented its view in this
regard that no citizen has the right to engage in any service without reimbursing the State for the special
service. Here, in this case, safe and efficient roads are required for the smooth running of vehicles. The
maintenance of such roads will cost the money of the Government and the use of public motor vehicles
stands in direct relation to it. Therefore the imposing of tax should not seem unreasonable i.e. making
of a special contribution over and above the contribution generally provided by the taxpayers to the
state. The increase in tax was thus held correct and valid in the eyes of law.

Article 368 Amendment of the Constitution

There is a reason why the fathers of our constitution made the constitution as flexible as it is today. This
is to ensure that the document evolves and grows along with the nation. Thus, under Article 368, the
powers of the Parliament to amend the constitution is unrestricted with regards to sections of the
constitution they wish to amend.

But the Parliament having absolute power over amending the constitution is dangerous. Instead of being
the backbone of our democracy, the constitution will be reduced to a tool to establish Parliament’s
totalitarianism. The government will amend various provisions to make sure it’s powers are unfettered.

While this is a scary thought, it is not far away from the truth. The government in multiple amendments
such as the 39th Amendment and in the second clause of the 25th Amendment has tried to establish a
state where the legislative is supreme.

That is why the judiciary through various landmark cases has established The Basic Structure Doctrine of
the Indian Constitution.

What is the Basic Structure?

The Basic Structure Doctrine states there are certain fundamental structures and founding principles of
the constitution which make the backbone of the constitution. In simple terms, they are ideologies of
the constitution which are essential for the survival of the constitution. Some examples are Free and
Fair Election, the Federal nature of the Nation, Judicial review and Separation of Power. The government
is restricted from touching these contours of the constitution through amendment.

The Supreme Court has not given us a list of these ideologies. It is up to the courts to decide what they
are when certain judicial questions are presented before them. But if one wants to describe the nature
of the structures, it can be said that if these ideologies are violated, then not only democracy but the
entire working of this country will fall flat on its face. The country will either fall into total anarchy or
totalitarianism. It is because of these mechanisms that India is still one of the largest democracies in the
world.

Thus, while Parliament has unrestricted powers to amend various sections of the constitution, but they
cannot touch amend, repeal or add sections into the constitution which would affect its basic structure
in the process.