CONSTITUTIONAL

LAW - II

By

UMESH JATAV

Email: jatavumesh7@gmail.com

ARORA GRAPHICS PUBLICATION

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 ARORA GRAPHICS PUBLICATION
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©Umesh Jatav (Author)
First Edition –2024
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 PREFACE TO THE FIRST EDITION

India, also known as Bharat, is a Union of States. It is a Sovereign Socialist

Secular Democratic Republic with a parliamentary system of government. The
Republic is governed in terms of the Constitution of India which was adopted
by the Constituent Assembly on 26th November, 1949 and came into force on
26th January, 1950.

The knowledge of Constitution is essential for law fraternity. Constitutional

Law is a foundational course aimed at introducing law students to the theory,
doctrine, and practice of constitutional law in India. However, the basic
function of a constitution is to provide a set of basic rules that allow for
minimal coordination amongst members of a society.

The present book is placed with selected statutory provisions, theory along
with relevant case laws. This book will be very useful for law students.

ACKNOWLEDGEMENT

I would like to thank God with reverence and sincerity for heavenly richest
blessings and abundant grace, which strengthened me in each and every step
of this endeavour. I express my deep sense of gratitude and indebtedness to
my teachers for their guidance, sustained presence, constant availability and
continuous inspiration right from the planning phase till the completion of
the book. The encouraging words of Dr. Sanjay Kumar Agarwal, Assistant
Professor, Department of Political Science and Public Administration, Central
University of Jharkhand, Ranchi and Former Assistant Professor, Maharaja
Agrasen College, University of Delhi have been the pillars of my strength. He
has always been an excellent mentor and role model. I would not be where I
am today without his guidance, and constant support. I express my deep
sense of reverence to the almighty and broad sense of gratitude to my parents
for their blessings and support which gave me the required moral strength for
the successful and completion of this book.

Umesh Jatav

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 INTRODUCTION TO CONSTITUTION

The Constitution of a state is a fundamental set of principles or established

precedents according to which the state is governed. It outlines the
organization, powers, and limits of government institutions, as well as the
rights and duties of citizens. It serves as the supreme law of the land,
providing a framework for the functioning of the government, the protection
of individual liberties, and the maintenance of social order.

Constitutions can declare and define the boundaries of the political

community. These boundaries can be territorial (the geographical borders of a
state, as well as its claims to any other territory or extra-territorial rights) and
personal (the definition of citizenship). Thus, a country‟s constitution often
distinguishes between those who are inside and those who are outside the
polity.

Constitutions can express the identity and values of a national community. As

nation building instruments, Constitutions may define the national flag,
anthem and other symbols, and may make proclamations about the values,
history and identity of the nation. Constitutions can declare and define the
rights and duties of citizens. Most constitutions include a declaration of
fundamental rights applicable to citizens.

It was adopted by the Constituent Assembly on 26th November 1949 and

came into force on 26th January 1950. At the time of its adoption, the
Constitution contained 395 Articles and 8 Schedules and was about 145,000
words long, making it the longest national Constitution to ever be adopted.
Every Article in the Constitution was debated by the members of the
Constituent Assembly, who sat for 11 sessions and 167 days to frame the
Constitution, over a period of 2 years and 11 months. The preamble of the
Constitution declares India a sovereign, socialist, secular, and democratic
Republic and assures its citizens justice, equality, and liberty, and endeavours
to promote fraternity.

India's Constitution is a lengthy, elaborate and detailed document. Originally

it consisted of 395 Articles arranged under 22 Parts and eight Schedules.

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 CONTENTS

1 Fundamental Rights (General) 1-32

1.1 „State‟ under Article 12 1
1.2 Doctrine of Eclipse 11
1.3 Waiver of fundamental rights 20
1.4 Doctrine of Severability 22
1.5 Personal Laws 26

2. Right to Equality (Articles 14-18) 33-77

2.1 Equality Before Law: Art. 14 33
2.2 Reservations in appointments and promotions; 42
2.3 Abolition of untouchability (Article 17, 35) 66
2.4 Abolition of titles (Article 18) 74

3. Right to Freedom (Articles 19-22) 78-119

3.1 Right to Freedom (Articles 19-22) 78
3.2 Protection in respect of conviction for offences
(Article 20) 101
3.3 Protection in life and personal liberty, Doctrine of
Proportionality (Article 21) 108
3.4 Protection against arrest and detention (Article 22) 115

4. Right against Exploitation (Articles 23, 24) 120-124

4.1 introduction 120

5. Right to Freedom of Religion (Articles 25-28) 125-137

5.1 Religion 125

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6. Educational and Cultural Rights (Articles 29, 30) 138-145

7. Right to Constitutional Remedies (Article 32) 146-156

8. Fundamental Duties (Article 51 A) 157-159

9. Directive Principles of State Policy (Articles 36-51) 160-166

10. Civil Servants (Articles 308-323) 167-187

11. Amendment of the Constitution (Article 368) 188-201

REFERENCES 202

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 LIST OF CASES

 Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449 4

 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,
(2002) 5 SCC 111 6
 G. Basi Reddy v. International Crops Research Institute, (2003) 4
SC 225 7
 Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 8
 State of U. P. v. Radhey Shyam Rai, 2009 (3) SCALE 754 10
 Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128 14
 Bhikaji Narain Dhakras v. State of M.P., AIR 1955 SC 781 16
 State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC 656 18
 State of Bombay v. F.N. Balsara, AIR 1951 SC 318 25
 Shayara Bano vs. Union of India, (2017) 9 SCC 1 28
 State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75 36
 Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 39
 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 45
 Dr. Gulshan Prakash v. State of Haryana, (2010) 1 SCC 477 50
 T. Devadasan v. The Union of India and another, 1964 AIR 179,
1964 SCR (4) 680 53
 Indra Sawhney v. Union of India, AIR 1993 SC 477 56
 M. Nagaraj v. Union of India, (2006) 8 SCC 212 61
 State of Karnataka v. Appa Balu Ingale, AIR 1993 SCC1126; 1995
Supp (4) SCC 469 68
 Safai Karmachari Andolan v. Union of India, (2014) 11 SCC 224 71
 Balaji Raghavan v. Union of India, (1996) 1 SC 361 74
 Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 79
 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 83
 Secretary, Ministry of I & B, Govt. of India v. Cricket
Association of Bengal, (1995) 2 SCC 161 85
 Chintaman Rao v. State of Madhya Pradesh , 1950 SCR 759 90

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 Narendra Kumar v. Union of India, AIR 1960 SC 430 : (1960) 2
SCR 375 93
 Unni Krishnan vs State of Andhra Pradesh, 1993 AIR 2178, 1993
SCR (1) 594 99
 Pramati Educational & Cultural Trust v. Union of India, (2014) 8
SCC 1 99
 Selvi v. State of Karnataka (2010), AIR 2010 SC 1974, (2010) 7
SCC 263 105
 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 109
 Justice K.S.Puttaswamy (Retired). vs Union of India And Ors.,,
2017. 113
 DK Basu vs State of West Bengal , (1997) 1 SCC 416 117
 People‟s Union for Democratic Rights v. Union of India, (1982) 3
SCC 235 122
 Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11 129
 N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106 130
 Commissioner of Police v. Acharya Jagadishwarananda
Avadhuta, (2004) 12 SCC 770 132
 Bijoe Emanuel v. State of Kerala (1986) 3SCC 615 131
 Islamic Academy of Education v. State of Karnataka, (2003) 6
SCC 697 141
 P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC537 143
 Hon‟ble Shri Rangnath Mishra v. Union of India, 2003 (7) SCC
206 158
 Union of India v. Tulsiram Patel, (1985) 3 SCC 398 178
 Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC727 184
 T.K. Rangarajan v. Govt. of Tamil Nadu, (2003) 6 SCC 581 186
 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC225 192
 Kihoto Hollohon v.Zachillhu, 1992 Supp (2) SCC 651 195
 I.R. Coelho v. State of T.N., (2007) 2 SCC 1 197

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 1 Fundamental Rights (General)
TOPIC

1.1 „State‟ under Article 12

Article 12 states as In this Part, unless the context otherwise requires, “the
State” includes the Government and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India.
According to Article 12, the term 'state' includes--
(i) the Government and Parliament of India:
(ii) the Government and the Legislature of a State;
(iii) all local authorities; and
(iv) other authorities within the territory of India, or under the control of the
Central Government.
Government (Union and state), Parliament and State Legislature

 Parliament: The parliament comprises of the President of India, the

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

 Legislature: The legislature is that organ of the government which

enacts the laws of the government. It is the agency which has the
responsibility to formulate the will of the state and vest it with legal

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authority and force. In simple words, the legislature is that organ of the
government which formulates laws. Legislature enjoys a very special
and important in every democratic state. It is the assembly of the
elected representatives of the people and represents national public
opinion and power of the people.

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

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

 State Legislature: The legislative body at the state level is the State
Legislature. It comprises of the state legislative assembly and the state
legislative council.
Local Authorities
Before understanding what a local authority is, it is important to define
Authorities. According to Webster‟s Dictionary; “Authority” means a person
or body exercising power to command. When read under Article 12, the word
authority means the power to make laws (or orders, regulations, bye-laws,
notification etc.) which have the force of law. It also includes the power to
enforce those laws
Local Authority: As per Section 3(31) of the General Clauses Act, 1897,
“Local Authority shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the
Government within the control or management of a municipal or local fund.”
The term Local authority includes the following:

1. Local government: According to Entry 5 of the List II of VII Schedule

„local government‟ includes a municipal corporation, improvement
trust, district boards, mining settlement authorities and other local
authorities for the purpose of local self-government or village
administration.

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 Fundamental Rights (General)

2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was

held that within the meaning of the term local authority, village
panchayat is also included.
Other Authorities
The interpretation of the term 'other authorities' in Art. 12 has caused a good
deal of difficulty, and judicial opinion has undergone changes over time.
Today's government performs a large number of functions because of the
prevailing philosophy of a social welfare state. The government acts through
natural persons as well as juridical persons. Some functions are discharged
through the traditional governmental departments and officials while some
functions are discharged through autonomous bodies existing outside the
departmental structure, such as, companies, corporations etc.
An autonomous body may be a statutory body, i.e., a body set up directly by
a statute, or it may be a non-statutory body, i.e., a body registered under a
general law, such as, the Companies Act, the Societies Registration Act, or a
State Co-operative Societies Act, etc.
In Ajay Hasia, The Supreme Court laid down the following tests to adjudge
whether a body is an instrumentality of the government or not:
1) If the entire share capital of the body is held by the government, it goes a
long way towards indicating that the body is an instrumentality of the
government.
2) Where the financial assistance given by the government is so large as to
meet almost entire expenditure of the body, it may indicate that the body
is impregnated with governmental character.
3) It is a relevant factor if the body enjoys monopoly status which is
conferred or protected by the state.
4) Existence of deep and pervasive state control may afford an indication that
the body is a state instrumentality.
5) If the functions performed by the body are of public importance and
closely related to governmental functions, it is a relevant factor to treat the
body as an instrumentality of the government.
Once a body is characterised as an 'authority' under Art. 12, several significant
incidents invariably follow, viz.:

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1) The body becomes subject to the discipline of the Fundamental Rights

which means that its actions and decisions can be challenged with
reference to the Fundamental Rights.
2) The body also becomes subject to the discipline of Administrative Law.
3) The body becomes subject to the writ jurisdiction of the Supreme Court
under Art. 32 and that of the High Courts under Art. 226.
Tests to decide which “other authorities” could be considered as agencies or
instrumentalities of state
The cumulative effect of all the following factors has to be seen:
1. “If the entire share capital of the corporation is held by government, it
would go a long way towards indicating that the corporation is an
instrumentality or agency of government.”
2. The existence of “deep and pervasive State control may afford an
indication that the Corporation is a State agency or instrumentality.”
3. “It may also be a relevant factor…whether the corporation enjoys
monopoly status which is State conferred or State protected.”
4. “If the functions of the corporation are of public importance and closely
related to governmental functions, it would be a relevant factor in
classifying the corporation as an instrumentality or agency of
government.”
5. “Specifically, if a department of government is transferred to a
corporation, it would be a strong factor supportive of this inference” of the
corporation being an instrumentality or agency of government.

Som Prakash Rekhi v. Union of India

(1981) 1 SCC 449
[VR Krishna Iyer, O Chinappa Reddy and RS Pathak, JJ]
Facts:
The petitioner worked as a clerk under the Burmah Shell oil storage ltd. As he
qualified to receive the pension, he applied for a voluntary retirement scheme.
He retired on 1st April 1973, along with other benefits under the scheme, such
as the employee provident fund (EPF) and gratuity. In monetary terms, it
entitled him to Rs. 165.99 per month as pension and paid Rs. 86 per month as
supplementary retirement benefits (ex gratia) for 13 months. In the meantime,

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 Fundamental Rights (General)

the Central government took Burma Shell Oil Storage Ltd. over by enacting
the Burmah Shell (Acquisition of Undertakings in India) Act, 1976. The
company became a subsidiary under the existing Bharat Petroleum ltd. On
25th September 1975, Burmah Shell issued a letter informing the petitioner
that from out of his pension of Rs. 165.99, two deductions were made, one for
the EPF payment and the other for payment of gratuity. With this, the pension
payable to him was shown as Rs. 40.05. The monthly supplementary
retirement benefit of Rs. 86/- was also cut off, though it was at the discretion
of the employer and is liable to be stopped. Aggrieved by this measure, the
petitioner directly petitioned before the Supreme court under Article 32 of the
Indian constitution.
Issue:
Whether a company acquired by the central government is a State within the
meaning of article 12?
Observation:
The Apex court held that Article 12 of the Indian constitution when r/w Art.
298 (government to carry on trade), clearly envisions that “the State” in Art.
12 includes statutory corporations, registered societies, government
companies, or other like entities created for promoting economic activities.
The bench observed it is unjust for a public sector company to reduce an older
man‟s pension (petitioner) to Rs. 40/-from Rs. 250/- even if it is assumed to
be legal. The majority opinion clarified that if there is any reduction in the
pension consequent on the receipt of the same, there will be no real benefit to
the employee. It is nothing, but the Management takes away by the left hand
what it seems to confer by the right.
The bench, though, had a dissenting opinion from Justice Pathak, however,
unanimously allowed the appeal of the petitioner and agreed to provide him
with the relief. Bharat Petroleum Corporation was held to be a “state” within
the meaning of Article 12.
State-owned companies and corporations, though they are separate legal
entities in the eyes of the law, are instruments of the state in carrying on
various activities (as businesses). These corporations are representatives of
government departments, who would have otherwise carried on the same
task, and hence fall under the ambit of “State” mentioned in Art. 12 of the
Indian constitution.

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Gratuity and provident funds have two different roots. Payment of both
should be independent of the other, and any mutual deductions in an
employee‟s overall social security benefits are never a complete benefit.
Decision:
It is well known that “corporations have neither bodies to be kicked, nor souls
to be damned” and Government corporations are mammoth organisations It
is dangerous to exonerate corporations from the need to have constitutional
conscience; and so, that interpretation, language permitting, which makes
governmental agencies, whatever their mien, amenable to constitutional
limitations must be adopted by the court as against the alternative of
permitting them to flourish as an imperium in imperio.
The common sense signification of the expression “other authorities under the
control of the Government of India” is plain and there is no reason to make
exclusions on sophisticated grounds such as that the legal person must be a
statutory corporation, must have power to make laws, and must be created by
and not under a statute and so on.
The Supreme Court clarifies that social security allowances to employees after
retirement must be interpreted liberally to promote maximum social justice to
the working sections of society. It must prevent any bifurcations and should
not mislead with tactful and confusing financial modes. From the
constitutional law point-of-view, the court rightly points out that PSUs are the
key to establishing a welfare state, the organs and integral part of the state
itself, and hence also within Article 12 of the Indian Constitution.
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology
(2002) 5 SCC 111
[SP Bharucha, CJ and Syed Shah Mohammed Quadri, RC Lahoti, N Santosh
Hegde, Doraiswamy Raju, Ruma Pal and Arijit Pasayat, JJ]
Facts:
In 1972 Sabhajit Tewary, a Junior Stenographer with the Council ofScientific
and Industrial Research (CSIR) filed a writ petition under Article 32 of the
Constitution claiming parity of remuneration with the Stenographers who
were newly recruited to CSIR. His claim was based on Article 14 of the
Constitution. A Bench of five Judges of this Court denied him the benefit of
that article because they held in Sabhajit Tewary v. Union of India [(1975) 1
SCC 485] that the writ application was not maintainable against CSIR as it

6 © Umesh Jatav (Author)