CS ANKUSH BANSAL

[9996065006]

“CONSTITUTION OF INDIA”

1. INTRODUCTION

CONSTITUTION

Constitution is a document which provides a basic legal framework which regulates the country.
[Mother of all law]

 In the Context of India, a Constituent Assembly was set up in the year 1946 to frame the Constitution
of India.
 Adopted by the constituent assembly on 26th November 1949.
 The constitution of India came into force on 26th January, 1950 and contains rights, rules and
regulations accepted by one and all living on the land.

Contains- 395 Articles (divided into 22 Parts) and 12 Schedules.

 It deals with the structure of Government, delegation of power to All public authority –
 Legislative.
 Administrative, and
 Judicial.

 It is the Supreme Authority or in other words the supreme law of land. (i.e., above all laws/ people/
government/ judiciary/ public departments.)
 Union and States have to follow the constitutional provisions.
 Constitution must be followed and obeyed while enacting any laws.

CONSTITUTION OF INDIA SHIELD 1|Page

 CS ANKUSH BANSAL
[9996065006]
2. PILLARS OF OUR CONSTITUTION

3 PILLARS OF OUR CONSTITUTION

LEGISLATURE EXECUTIVE JUDICIARY

[Law making body] [Law executing body] [Law resolving body]

LEGISLATIVE EXECUTIVE COURTS IN

BODY BODY INDIA

Union State Central State Courts on Courts on

Legislature Legislature Govt. Govt. Civil Side Criminal side

Rajya Vidhan Supreme Court

Sabha Parishad
High Court
Lok Vidhan
Sabha Sabha Session
District
Courts Courts

Chief
Lower
Judicial
Courts Magistrate

Magistrate of 1st Class

Magistrate of 2nd Class

CONSTITUTION OF INDIA SHIELD 2|Page

CS ANKUSH BANSAL
[9996065006]
3. PREAMBLE TO CONSTITUTION OF INDIA
Preamble to the Constitution of India reads as:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a

‘SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC AND REPULIC’

and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief, faith, and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the Individual and the unity and Integrity of the Nation.
Although Preamble does not contain any substantive law, yet it is considered to be the most sacred part of the
Constitution of India. If any provision of Constitution of India is ambiguous, then that provision has to be
interpreted in the light of the contents of preamble.
The Supreme Court, in number of cases, has held that Constitution is to be read and interpreted in the light of
visions and values, pledges and sentiments expressed in the Preamble. The Preamble truly represents the SOUL of
our Constitution.

4. STRUCTURE OF THE CONSTITUTION

Constitution of India is basically federal but with certain unitary features.
SC were of the view that the federal features form the basic structure of the Indian Constitution.
Kesavananda
However, there is some controversy as to-
Bharati v. Whether the Indian Constitution establishes a federal system or
State of It stipulates a unitary form of Government with some basic federal features.
Kerala, AIR Thus, to decide whether our Constitution is federal, unitary or quasi federal, it
1973 would be better to have a look at the contents of the Constitution.

1) Essential features for the Federal Constitution/ Polity/ System

The federal constitution provides; for two sets of government:
Dual
 One at the centre and
Government  One each for the different States consisting the federation.
The federal constitution provides for a division of legislative and executive powers between
Government at the Centre and State Governments,
Distribution of Where only the union government /
LIST I- Parliament can make the laws. Contains 97
Power between Judiciary, defence, etc.
Union List Law made under Union List same for items
Central and all States.
Where only State Gov. can make the
State LIST II- laws. Contains 66 Public health, sanitary,
Governments State List Law made under State List differ for items roads, etc.
State to State.
LIST III- Where both union and state Contains 47 Marriage, Economic,
Concurrent List government can make the laws. items Social Planning.
Supremacy of The Constitution is the supreme law of our country. The Union and the state Government as
the Constitution well as their respective organs derive their authority from the constitution only.
Written The Constitution of India has the distinction of being the most lengthy and detailed
Constitution constitutional document.
Authority of The constitution is supreme. The judiciary of our country is totally independent and neither the
Judiciary legislature nor the executive can control the judiciary.

CONSTITUTION OF INDIA SHIELD 3|Page

CS ANKUSH BANSAL
[9996065006]
2) Features of the Unitary Nature
It confers power on parliament to legislate with respect to matter in the State List when the
Article 249 subject- matter becomes a matter of national concern as distinguished from State concern.
It provides that parliament shall, while a Proclamation of Emergency is in operation, have
Article 250 power to make laws for the whole or any part of the territory of India with respect to any of
the matters enumerated in the State List.
Single There is a single Citizenship for the whole Union and there is no provision for the separate
Citizenship citizenship for the states as in the case of US.
Single Judiciary There is no division of the Judiciary between the Union and the States. Articles 124 provides
System for the establishment and constitution of only one Supreme Court of India.
Breakdown of If the President of India is satisfied that the Government of a State cannot be carried on in
Constitutional accordance with the provision of the constitution, he can issue a proclamation to that effect
Machinery in a (Article 356), He can then assume all the functions of the Government of that State. Further,
State in such circumstances, the parliament may legislate for such a state.
To conclude, the Indian Constitution has federal characteristics and some unitary features. It is neither purely
federal nor purely unitary. It is a combination of both.

CONSTITUTION OF INDIA SHIELD 4|Page

CS ANKUSH BANSAL
[9996065006]
5. FUNDAMENTAL RIGHTS
 Introduction
A man, by birth, has certain rights which are universal and inalienable, and he could not be deprived of them.
These rights are known as Fundamental Rights.

It is the Duty of the State to recognize these rights and allow them a free play so that the human liberty is
preserved, human personality is developed and an effective cultured, social and democratic life is promoted.
PART III OF THE CONSTITUTION GUARANTEES 6 CATEGORIES OF FUNDAMENTAL RIGHTS.
Right to Equality
(Articles 14 to 18)

Right to Right to Freedom

Constitutional (Articles 19 to 22)
Remedies (A-32).

Cultural & Right against

Educational Exploitation
Rights (A-29&30) (A-23& 24)

Right to Freedom
of Religion
(A-25 - 28)

From the point of view of persons to whom the rights are available, the fundamental rights may be classified
as follows:
a) Articles 15, 16, 19 and 30 are guaranteed only to citizens.
b) Articles 14, 20, 21, 22, 23, 25, 27 and 28 are available to any person on the soil of India—citizen or
foreigner.
c) The rights guaranteed by Articles 15, 17, 18, 20, 24 are absolute limitations upon the legislative power.

 The fundamental rights are available to the people of India against the Sate and can
be enforced through the judiciary.
To whom the
 Right to enforce all the fundamental rights is itself made a fundamental right under
Fundamental
Article 32.
rights are
 Constitution has conferred on the Supreme Court and High Courts the power to grant
granted?
effective remedies in case of violation of fundamental rights by issuing appropriate
Can they be WRITS.
enforced?  Rights of enforcement of Fundamental Rights through Supreme Court may be
suspended when Emergency is proclaimed (Article 359).

CONSTITUTION OF INDIA SHIELD 5|Page

CS ANKUSH BANSAL
[9996065006]
6. CONCEPT OF STATE [ARTICLE 12]

DEFINITION OF STATE

Under Article 12, unless the context otherwise requires, “the State” includes –

All local or other authorities.

The Central The State Government and
Government and  Within the territory of India; or
the Legislature of each of the
Parliament of India States  Under the control of the
Government of India.

The expression ‘local authorities’ refers to The Supreme Court has held that ‘other
authorities like- authorities’ will include-
1) Municipalities,  Electricity Authorities.
2) District Boards,  Universities.
3) Panchayats,
4) Improvement Trusts,  Income tax department,
5) Port Trusts and  Life Insurance Corporation of India.
6) Mining Settlement Boards.

*The words “under the control of the Government of India” bring, into the definition of State, not only every
authority within the territory of India, but also those functioning outside, provided such authorities are under
the control of the Government of India. for e.g. Indian Embassy’s situated abroad.
Where courts exercise a judicial function, it cannot be regarded as State as the expression
A. R. Antualay v. ‘State’ covers only legislature and executive and not judiciary. However, where a court
R.S. Nayak exercises non-judicial functions, it can be considered as State.
Zee telefilms Ltd. The supreme court held that the Board of Council for cricket in India (BCCI) was not
V. Union of India. State for purpose of Article 12.
In Satish Nayak The Kerala High Court held that since a Stock Exchange was independent of Government
v. Cochin Stock control and was not discharging any public duty, it cannot be treated as ‘other authority’
Exchange Ltd. under Article 12.

In Ajay Hasia v. Khalid Mujib, AIR 1981, the Supreme Court has pronounced the following test for determining
whether an entity is an instrumentality or agency of the State:

(1) If the Entire Share Capital of the Corporation is held by the Government.

(2) If the Financial Assistance of the State is so much as to meet almost the entire expenditure of the
corporation.

(3) If the corporation Enjoys a Monopoly status which is conferred or protected by the State.
(4) Existence of Deep and Pervasive State control in any corporation, may afford an indication that the
corporation is a State agency or an instrumentality.
(5) If the Functions of the corporation are of public importance and closely related to government functions.
(6) If a Department of government is transferred to a corporation,

it would be a strong factor supporting an inference of the corporation being an instrumentality or agency of
government.

CONSTITUTION OF INDIA SHIELD 6|Page

 CS ANKUSH BANSAL
[9996065006]
7. JUSTIFIABILITY/ AMENDIBILITY OF FUNDAMENTAL RIGHTS [Article-13]

Article 13 provides that any LAW (Pre/Post constitution) will be invalid if the law is against
the Fundamental rights.

It provides that, State shall not make any law which takes away, amend or abridges the Fundamental rights.

The issue came up before the Supreme Court as to whether a Constitutional Amendment by which a
fundamental right is taken away or abridged is also a law within the meaning of Article 13.
The Court in the famous Golaknath case took the view that it includes such an amendment and, therefore,
even a Constitutional amendment would be void to the extent it takes away or abridges any of the
fundamental rights.
However, later a new clause has been added to Article 13 (i.e., clause -4) which invalidated the aforesaid
decision and provided that—
“Nothing in this Article shall apply to any amendment of this Constitution’’.
Finally, in Keshavananda Bharti v. State of Kerala Supreme Court had held that the fundamental rights can
be affected[amended] by Constitutional Amendment provided Basic structure of Constitution is not amended.

In a number of cases and the Courts have evolved following Doctrines for interpreting the
provisions of Article 13: -

Doctrine of Severability

Doctrine provides that all laws in force in India BEFORE the commencement of constitution shall be void to
the extent, they are inconsistent with the provisions of the constitution.
However, it further provides that only that part of the law will be declared invalid which is inconsistent with
the FR’s and the rest of the law will be valid.
Courts had held that invalid part of the law shall be severed and declared invalid if really it is severable and
only if after separating the invalid part the valid part is capable of giving effect to the legislative intent then
only it will survive. Else the entire law shall be declared invalid.

Doctrine of Eclipse
Though an existing law inconsistent with a fundamental right becomes in-operative from the date of the
commencement of the Constitution, yet it is not DEAD altogether.
A law made before the commencement of the Constitution remains ECLIPSED OR DORMANT to the extent
it comes under the shadow of the fundamental rights, [i.e. is inconsistent with it],
But the eclipsed or dormant parts become ACTIVE and EFFECTIVE AGAIN if the prohibition brought about
by the fundamental rights is removed by the AMENDMENT of the Constitution.

Doctrine of Waiver of Rights

The doctrine of waiver of rights is based on the premise that a person is his BEST JUDGE and that he has the
liberty to waive the enjoyment of such rights as are conferred on him by the State. However, the person must have
the knowledge of his rights and that the waiver should be voluntary.
CONSTITUTION OF INDIA SHIELD 7|Page
CS ANKUSH BANSAL
[9996065006]
8. RIGHT TO EQUALITY [ARTICLE 14-18]
 Article-14: Equality before the Law and Equal Protection of the Laws
Article 14 of the Constitution says that “the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India”.

The expression ‘equality before the law’ is a negative concept and it implies the absence
Article-14
of any special privilege in favour of any individual, whatever be his rank or status, and
Equality before
the equal subjection of all classes to the ordinary law.
the Law and
Equal The second expression “the equal protection of the laws” is a positive concept and it
implies equality of treatment in equal circumstances. In other words, same law should
Protection of
be applicable among equals or same law should not be applicable among unequal’s.
the Laws
Article 14 applies to all persons and is not limited to citizens. A corporation, which is a
juristic person, is also entitled to the benefit of this Article.

 Article 15: Prohibition of Discrimination on Grounds of Religion etc.

Prohibition of Discrimination on Grounds of

Religion etc.

Article 15(1) Article 15(2)

Prohibits the State from discriminating
against any citizen on grounds only of:
Religion, Race, Caste, Sex, Place of Birth or
any of them.
Lays down that no citizen shall be subjected to any
Disability, Restriction or Condition with regard to: -
a) Access to shops, public restaurants, hotels and places
of public entertainment; or
b) The Use of wells, tanks, bathing Ghats, roads and
places of public resort, maintained wholly or partially
out of State funds or dedicated to the use of the
general public.

Article 15(3) and 15(4)

Create certain exceptions to the right: -
 Article 15(3) the State can make special provision for women and children.
 Article 15(4) permits the State to make special provision for the advancement of—
(i) Socially and Educationally Backward Classes [SEBC]of citizens;
(ii) Scheduled Casts; [SC] and
(iii)Scheduled Tribes [ST].

CONSTITUTION OF INDIA SHIELD 8|Page

CS ANKUSH BANSAL
[9996065006]
 Article 16: Equality of Opportunity in Matters of Public Employment
Article 16 guarantees to all citizens equality of opportunity in matters relating to
Article 16 Employment or Appointment of Public Office under the State.
 Parliament can make a law requiring Residential Qualifications within that State
or Union Territory. for e.g. - Domicile Requirements. [Article 16(3)]
EXCEPTIONS
 A provision can be made for the Reservation of Appointments or Posts in favour of
provided in any Backward Class of Citizens. [Article 16(4)]
Article  Offices connected with religious institutions may be Reserved for the persons of a
particular religion. [Article 16(5)]

 Article 17: Abolition of Untouchability

Article 17 says that “Untouchability” is abolished and its practice in any form is forbidden. The enforcement
of any disability arising out of “Untouchability” shall be an OFFENCE punishable in accordance with law.
Accordingly, the Indian Parliament passed the Untouchability (Offences) Act, 1955. [Renamed in 1976 as the
“Protection of Civil Rights Act, 1955”

 Article 18: Abolition of Titles

ABOLITION OF TITLES

 in use before India’s Independence EXCEPT

and
In a military or academic
 any title conferred to any person No citizen of India shall
distinction, shall be
in India by British Government as accept any title from
conferred by the State.
it results in the inequality among any foreign State.
the people.

9. RIGHTS TO FREEDOM [ARTICLES 19-22]

Article 19(1), of the Constitution, guarantees to the citizens of India 6 freedoms, namely:

Right to Freedom of speech and expression;

Right to assemble peaceably and without arms;

Right to form associations or unions

Right to move freely, throughout the territory of India;

Right to reside and settle in any part of the territory of India;

Right to practise any profession, or to carry on any occupation, trade or business.

CONSTITUTION OF INDIA SHIELD 9|Page

CS ANKUSH BANSAL
[9996065006]
 Freedom of Speech and Expression [Article 19 (1)(a)]

The freedom of speech and expression under Article 19(1)(a) means the right to express one’s ideas and
opinions freely by word of mouth, writing, printing, pictures or any other mode.

Maneka Gandhi v. This freedom includes the Freedom of Press and Imposition of Pre-censorship
Union of India on Publication is violative of freedom of speech and expression.
Bijoe Emmanuel v. The Court had held that the freedom of speech and expression under Article
State of Keral 19(1) (a) includes the right to remain silent. [Right of Not to speak]
The Supreme Court has held that Right to Fly the National Flag freely with
Union of India v. respect and dignity is a fundamental right of a citizen within the meaning of
Naveen Jindal Article 19(1) (a) of the Constitution being an expression and manifestation of
his feelings and sentiments of pride for the nation.

The Supreme Court expressed the view that a Corporation is not a citizen within the meaning of Article 19
and, therefore, cannot invoke this Article, but if the State action impaired the rights of the shareholders as
well as of the company, the Court will not deny itself jurisdiction to grant relief.

Clause (2) of Article 19 specifies the limits upto which the freedom of speech and expression may be
restricted. It enables the Legislature to impose by law reasonable restrictions on the freedom of speech and
expression under the following heads:
PERMISSIBLE RESTRICTIONS [ARTICLE 19(2)]
 Sovereignty and integrity of India.
 Security of the State.
 Friendly relations with foreign States.
 Public Order.
 Decency or morality or
 Contempt of court.
 Defamation or
 Incitement to an offence.

 Freedom of Assembly [Article 19 (1)(b)]

The next right is the right of citizens to assemble peacefully and without arms.

PERMISSIBLE RESTRICTIONS [Article 19(3)]

This right is also, however, subject to reasonable restrictions which the State may impose in the interests of:
 The sovereignty and integrity of India,
 Public order.

 Right to Form an Association [Article 19 (1)(c)]

Right to form associations and unions is guaranteed so that people are free to have the members entertaining
similar views. [includes right not to be a member of an Association]

PERMISSIBLE RESTRICTIONS [Article 19(4)]

This right is also, however, subject to reasonable restrictions which the State may impose in the interests of:
 The sovereignty and integrity of India, or
 Public order, or
 Morality.

CONSTITUTION OF INDIA SHIELD 10 | P a g e

CS ANKUSH BANSAL
[9996065006]
 Freedom of Movement [Article 19 (1)(d)]
Right to move freely throughout the territory of India is another right.

PERMISSIBLE RESTRICTIONS [Article 19(5)]

It is also subject to the reasonable restrictions which the State may impose: -
 In the interests of the general public,
 For the protection of the interests of any scheduled tribe.

 Freedom of Residence [Article 19 (1)(e)]

Article 19(1) (e) guarantees to a citizen the right to reside and settle in any part of the territory of India.

PERMISSIBLE RESTRICTIONS [Article 19(5)]

This freedom is also subject to reasonable restrictions: -
 In the interests of general public, or
 For the protection of the interests of any Scheduled Tribe.

Certain areas may be banned for certain kinds of persons such as prostitutes (State of U.P. v. Kaushaliya)

 Freedom to Trade and Occupations [Article 19 (1)(g)]

Article 19(1) (g) of the Constitution guarantees that all citizens have the right to practice any profession or
to carry on any occupation or trade or business.

PERMISSIBLE RESTRICTIONS [Article 19(6)]

This freedom is also subject to reasonable restrictions:

 In the interests of the general public;
 For prescribing professional or technical qualifications necessary for carrying on any profession, trade or business;
 Which enables the State to carry on any trade or business which may leads to the exclusion of private
citizens, wholly or partially creation of State monopoly.
R.C. Cooper Banking Business will be done only by the State and not by any private person was
v. Union of challenged before the Supreme Court. However, the Supreme Court rejected the petition and
India held that the law is valid as State has got the power to create a monopoly in its favour.

 Article 20: Protection in Respect of Conviction for Offences

Article 20 guarantees to all persons — whether citizens or non-citizens-3 rights: -
 Ex-post facto laws are laws which punished what had been lawful when done.
 If a particular act was not an offence according to the law of the land at the time
(1) Protection when the person did that act, then he cannot be convicted under a law with which
Against Ex- retrospective effect declares that as an offence.

Post Facto  This protection is not available with respect to Procedural Law. Thus, no one has a
vested right in procedure.
Laws
 Thus, the meaning of the above 2 provision is that so far as criminal law creates a new
offence or increase the penalty.
(2) Protection  Double jeopardy means punishment for more than once for the same offence.
Against  No person can be Prosecuted and Punished for the same offence more than once.

CONSTITUTION OF INDIA SHIELD 11 | P a g e

CS ANKUSH BANSAL
[9996065006]
Double  It is, however, to be noted that the conjunction "and" is used between the words
Jeopardy prosecuted and punished, and therefore, if a person has been let off after
prosecution without being punished, he can be prosecuted again.
(3) Protection A person accused of any offence cannot be compelled to be a witness against himself.
Against Self- In other words, an accused cannot be compelled to state anything which goes against
Incrimination him.

 Article 21: Protection of Life and Personal Liberty

Article 21 confers on every person the fundamental right to Life and Personal Liberty. It says that: -

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Thus Article 21 seeks to prevent encroachment [deprive] upon personal liberty by the EXECUTIVE except in
accordance with law and in conformity with the provisions of law.

At present personal liberty includes various other liberties like right to bail, public interest litigation, right to
free legal aid, right to speedy trial, Right to privacy, etc.

Right to life includes Decent life in the Democratic society, right to live in pollution free environment, right to
education, etc.
In Philips Alfred Malvin v. Y.J. Gonsalvis and others, 1999.It was held that ‘Right to Life’ includes those
things which makes the life meaningful. For instances, the right of a couple to Adopt a Son.

 Article 21A: Right to Education

According to this, the State shall provide free and compulsory education to all children of the age of 6 to 14
years in such manner as the State may, by law, determine.

 Article 22: Protection against Arbitrary Arrest and Detention

(i) A person who is arrested cannot be detained in custody unless he has been informed,
Article 22
as soon as may be, of the grounds for such arrest.
provides the
(ii) Such person shall have the right to consult and to be defended by a legal practitioner
following
of his choice.
Safeguards
(iii) A person who is arrested and detained must be produced before the nearest
against
magistrate within a period of 24 hours of such arrest, [excluding the time of journey.
Arbitrary Arrest
And such a person shall not be detained in custody beyond twenty-four hours without
and Detention:
the authority of magistrate.]
However, Article 22 does not apply to following persons: -
 Alien enemies,
 Person arrested or detained under preventive detention law.
Preventive detention means detention of a person without trial.
Preventive
The object of preventive detention is not to punish a person for having done something
Detention
but to prevent him from doing it.

Safeguards Article 22 contains following safeguards against preventive detention: -

 No person can be detained beyond a period of 3 months unless this period has been
against
enhanced by a parliament.
Preventive  He has been intimated the grounds of his detention.
Detention  He was given a fair chance of presenting his defence.

CONSTITUTION OF INDIA SHIELD 12 | P a g e

CS ANKUSH BANSAL
[9996065006]
10. RIGHT AGAINST EXPLOITATION [ARTICLES 23 AND 24]

Articles 23 and 24 guarantee certain rights to weaker sections of the society to prevent their
exploitation by unscrupulous individuals or even by the state.
 Article 23 imposes a complete ban on traffic in human beings and forced labour.
 Article- 24 prohibits employment of children in factories, etc.

 Article 23: Prohibition of Traffic in Human Beings and Forced Labour

Article 23 imposes a complete ban on traffic in human beings, Begar and other similar forms of
forced labour. The contravention of these provisions is declared punishable by law.

 Article 24: Prohibition of Employment of Children

Article 24 provides that no child below the age of 14 years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.

11. RIGHT TO FREEDOM OF RELIGION [ARTICLE 25 TO 28]

 Article 25: Gives to every person: -

 Freedom of conscience, and
 The right to freely profess, practice and propagate religion.

 Article26: Freedom to Manage Religious Affairs

It grants to every Religious Denomination [Association] or any sect thereof the right: -

(i) To establish and maintain institutions of religious and charitable purposes;

(ii) To manage its own affairs in matters of religion;
(iii) To own and acquire movable and immovable property; and
(iv) To administer such property in accordance with law.
All these rights are subject to public order, morality and health & therefore, if they conflict then the right will
give way to these exceptions.

 Article 27: Freedom as to Payment of Tax for The Promotion of any Particular Religion

According to Article 27, no person can be compelled to pay any taxes, the proceeds of which are specially
appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious
denomination.

 Article 28: Freedom as to Attendance at Religious Instruction or Religious Worship in

Educational Institutions

Article 28 states that no religious instruction can be provided in any educational institution wholly
maintained out of State funds.
However, this prohibition does not extend to an educational institution which is administered by the State
but has been established under any endowment or trust which requires that religious instruction shall be
imparted in such institution.

CONSTITUTION OF INDIA SHIELD 13 | P a g e

CS ANKUSH BANSAL
[9996065006]
12. CULTURAL AND EDUCATIONAL RIGHTS [ARTICLES 29 AND 30]

(i) Any section of the citizens residing in the territory of Indian or any part
thereof having a distinct language, script or culture of its own has the right of
conserve [follow] the same.

(ii) No citizen can be denied admission into any educational institution

ARTICLE 29 maintained by the State or receiving aid out of State funds on grounds only of
Guarantees 2 rights religion, race, caste, language, or any of them.
ARTICLE 30 (i) All minorities, whether based on religion or on language, shall have the right
Right of Minorities to to establish and administer educational institutions of their choice.
Establish and (ii) The State cannot, in granting aid to educational institutions, discriminate
Administer Educational against any educational institution on the ground that it is under the
Institutions management of a minority, whether based on religion or language.

13. RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLE 32]

Article 32 guarantees the enforcement of Fundamental Rights.

Article 32 makes it a fundamental right that a person whose fundamental right is violated has the right to
move the Supreme Court by appropriate proceedings for the enforcement of this fundamental right.
A person need not first exhaust the other remedies and then go to the Supreme Court. On the other hand, he
can directly raise the matter before highest Court of the land and the Supreme Court is empowered to issue
directions or orders or writ.
The right guaranteed by Article 32 cannot be suspended except as provided in the Constitution. Constitution
does not contemplate such suspension except by way of President’s order under Article 359 when a
proclamation of Emergency is in force.
‘Ubi jus ibi remedium’ means where there is a right there is a remedy. A right without a remedy is useless.
The fundamental rights guaranteed by the Constitution are protected by adequate remedial measures. The
Constitution of India provides such remedial measures to all citizens of violation of any fundamental rights.

14. WRITS
A writ may be defined as a direction or order given by the Supreme
Court or the High Court to the executive for the enforcement of
fundamental rights as stipulated in Part III of the Constitution of India or for any other purpose.
The Part III does not merely declare the Fundamental rights of a citizen, but it provides a forum where
they can be enforced.

CONSTITUTION OF INDIA SHIELD 14 | P a g e

CS ANKUSH BANSAL
[9996065006]

ARTICLE 32 ARTICLE 226

 Article 32 provides that the Supreme
Court shall have power to issue directions
or order or writs for the enforcements of
any of the rights conferred by Part III of
the constitution.
 The right guaranteed above shall not be
suspended except as otherwise provided
by the Constitution. Such as President’s
order under Article 359 when a
proclamation of Emergency is in force.
 A person need not first exhaust the other
remedies and then go to the Supreme
Court. On the other hand, he can directly
raise the matter before highest Court of
the land, and the SC is empowered to
issue directions or orders or writ.
 Article 226 empowers every High Court
also, throughout the territories in relation
to which it exercises jurisdiction, to issue to
any person or authority within those
territories, directions, orders for any right,
or writs for the enforcement of
Fundamental Rights.
 This power of the High Court is not in
derogation to the power conferred on the
Supreme Court but it is addition to the
power of the Supreme Court under Article
32.
 Remedies under writ are provided only if: -
(i) There is no remedy available under the
ordinary law, or
(ii) The remedy available is inadequate.

TYPES OF WRITS

WRIT OF HABEAS CORPUS

WRIT OF MANDAMUS

WRIT OF PROHIBITION

WRIT OF CERTIORARI

WRIT OF QUO WARRANTO

CONSTITUTION OF INDIA SHIELD 15 | P a g e

CS ANKUSH BANSAL
[9996065006]
I. WRIT OF HABEAS CORPUS
Meaning The words ‘Habeas Corpus’ literally mean “to have the body”.
Issued by High Court or Supreme Court.
Issued when When a person is deprived of personal liberty or detained wrongfully.
The applicant may be the prisoner or any person acting on his behalf.
Every application for a writ of ‘habeas Corpus’ has to be accompanied by an affidavit
Who can apply
stating the nature and instances of the restraint, i.e., with the day and cause of his
caution, and detention
No person can be punished or deprived of his personal liberty except for violation of law
Rule and in the ordinary legal manner.
The writ of habeas Corpus is in the nature of an order calling upon the person who has
detained another, to produce the latter before the court in order to let the court know the
Reasons ground of his detention and to set him free if there is no legal justifications. The writ of
Habeas corpus is a remedy available to a person who is confined without legal
justification.
If the writ is issued, the detaining authority has to produce person before the court. This
Objective is in order to let the court know on what ground he has been confined and to set him free
if there is no justification for his detention.
The disobedience to this writ is met with by punishment for contempt of Court under the
Disobedience to Contempt of Courts Act. This is a powerful safe guard to protect a person from arbitrary
this writ act of executives and powerful individuals.

II. WRIT OF MANDAMUS

Meaning The word ‘Mandamus’ literally means- command.
Issued by Supreme Court and the High Court in each State.
Any government, Court, Corporation or Public authority to do or forbear from doing some
Issued to specific act which that body is obliged under law and not against discretionary duties.
To do or refrain from doing, as the case may be, and which is in the nature of public Duty
Reasons
and certain cases a statutory duty.
Objectives The purpose of the writ is to remedy defects of justice.
The writ of mandamus is, as a general rule, a matter for the discretion of the court.
 The person filing the application for writ of mandamus must have a legal right.
 Mandamus does not lie against the President or the Governor of a State for the exercise
of their duties and powers. (Article 361)
Features
 It does not lie also against a private Individual or body or private party.
 A writ of mandamus cannot be issued to a private Individual.
 The writ of mandamus may be refused by the Court if an alternative remedy exists
except in case of infringement of fundamental rights.

III. WRIT OF PROHIBITION

Meaning Prohibition commands inactivity.
The writ of prohibition, as its very name suggest, issued by a superior court, directing an
inferior court, forbidding it to continue proceeding:
Features With jurisdiction in excess of its jurisdiction; or

CONSTITUTION OF INDIA SHIELD 16 | P a g e

CS ANKUSH BANSAL
[9996065006]
With exercise of jurisdiction when it does not have one; or
With contravention of law.
It is a judicial writ but it can be issued to non- judicial public bodies in cases where
such bodies take quasi- judicial decisions.
Issued against The writ of prohibition also lies against a Judge of an inferior court where he is
interested in the suit or is otherwise biased; or he alters or rescinds his judgement.
Not available against a public officer who is not vested with judicial functions.
The writ of prohibition is based upon the principle, “Prevention is better than cure”
A writ of prohibition orders the immediate stoppage of trial of the case in the lower
Reasons
court. If any judge or any party proceeds with the case inspite of the writ, contempt
of court proceedings can be started against the person concerned.

IV. WRIT OF CERTIORARI

Meaning ‘To be more fully informed of’
Issued by This writ can be issued by a superior court.
To direct the judge of an inferior court or to the officer of an inferior body exercising
Issued to quasi- judicial acts.
Objective To ensure that the applicant to the writ will have more sure and speedy justice.
If the inferior court or inferior body is acting in excess or want of jurisdiction, and is
exercising judicial or quasi- judicial functions, the aggrieved party may pray for certiorari.
Reasons It requires that the record of the proceeding in some cause or matter pending before such
inferior court or body be transmitted to the superior court.
It is available to any person, wherever anybody of persons having legal authority to
determine questions affecting the rights of subjects.
The writ removes the proceeding from such body to the High Court, to quash (Reverse) a
decision that goes beyond its jurisdiction. Under the Constitution of India, all High Courts
Explanation can issue the writ of certiorari throughout their territorial jurisdiction when the
subordinate judicial authority acts.
(i) Without or in excess of jurisdiction or in
(ii) Contravention of the rules of natural justice or
(iii)Commits an error apparent on the face of the record.
However, it is the direction of the court to issue the writ.

V. WRIT OF QUO WARRANTO

Literal meaning of QUO warranto is What is your authority?
Meaning It is an order in the nature of an injunction restraining a person from acting in public office
to which he is not entitled.
The holder of the office has to show to the court under what authority he holds the office.
(i) The office is of public and of a substantive nature, or is
(ii) Created by statute or by the Constitution itself, and
Issued when
(iii)The respondent has asserted his claim to the office.
It can be issued even though he has not assumed the charge of the office.
To prevent the illegal assumption of any public office or usurpation of any public office by
Objective
anybody.
Against that person only who is occupying a public office or at least if the duties attached
Issued against
to the office are of a public nature.
Chief Minister, Advocate General, Chairman of a Municipality and a Member of a University.
Example
Who can Any private person can apply to the court for the writ, even if he has no personal interest
apply in the matter.

CONSTITUTION OF INDIA SHIELD 17 | P a g e

CS ANKUSH BANSAL
[9996065006]
15. DIRECTIVE PRINCIPLES OF STATE POLICY [ARTICLES 36 TO 51]

The Articles included in Part IV of the Constitution (Articles 36 to 51) contain certain Directives which are
the guidelines for the Government to lead the country.

Some of the important Directive Principles are enumerated below:

a) State to secure a social order for the promotion of welfare of the people:
b) The State must strive to promote the welfare of the people.
c) Certain principles of policy to be followed by the State. The State, particularly, must direct its policy
towards securing: -
 That the ownership and control of the material resources of the community are so distributed as
best to sub serve the common goods;
 Prevention of concentration of economic wealth to the common detriment;
 Equal pay for equal work for both men and women;
d) The State must take steps to organise the Village Panchayats.
e) The State must endeavour to provide a uniform civil code for all Indian citizens. [A-44]
f) Provision for free and compulsory education for all children up to the age of 14 years. [A- 45]
g) The State must promote the educational and economic interests of Scheduled Castes, Scheduled Tribes
and other weaker sections. [A-46]
h) The State shall endeavour to protect and improve the environment and to safeguard the forests and
wild life of the country.

CONFLICT BETWEEN FUNDAMENTAL RIGHT AND A DIRECTIVE PRINCIPLE

What will be the legal position if a law enacted to enforce a Directive Principle violates a Fundamental Right?

There are no conflicts, between the Fundamental Rights and the Directive Principles. Both are mentioned in
the Preamble and enshrined in the Constitution to achieve the objectives of the Constitution.
Initially, the Courts adopted a strict view in this respect and ruled that a Directive Principle could not override
a Fundamental Right, and in case of conflict between the two, a Fundamental Right would prevail over the
Directive Principle.

When the matter came before the Supreme Court in State of Madras v. Champakram
Dorairajan, where the validity of a Government order alleged to be made to give effect to a
Directive Principle was challenged as being violative of a Fundamental Right, the Supreme Court made the
observation that: -
“The Directive Principles of State Policy have to conform to and run as subsidiary to the chapter of
Fundamental Rights”.
However, insertion of Article 31-C led to a different legal situation as it provides that if any law is passed to
give effect to any Directive Principles, it cannot be challenged even if it violates Fundamental Rights under
Article 14 or 19.

CONSTITUTION OF INDIA SHIELD 18 | P a g e

CS ANKUSH BANSAL
[9996065006]
16. FREEDOM OF TRADE, COMMERCE AND INTERCOURSE [A- 301 TO 305]

This heading has been given to Part XIII of the Constitution. This part consists of 5 Articles- A- 301 to 305.
Article 301 in real sense creates an overall comprehensive limitation on all legislative powers of the Union and
the State which affect the freedom of trade, commerce and intercourse.

The trade and commerce throughout the territory of India shall be free and without restrictions. The
restrictions can generally may be by way of taxes. The taxes may be compensatory where they are levied for
any service provided it is not taken as restrictions. But if the taxes is levied to Regulate or to prevent certain
people from carrying on business, it amount to restrictions.

The freedom guaranteed by Article 301 is not made absolute and is to be read subject to the following
exceptions as provided in Articles 302-305.

Parliament to Impose
Restriction in the Public According to Article 302 Parliament may, by law, impose such restrictions on
Interest the freedom of trade, commerce and intercourse as may be required in the
[Article 302] public interest.

Parliament to make Parliament cannot by making any law give preference to one State over the
Preference or other or make discrimination between the States except when it is declared
Discrimination by that law that it is necessary to do so for the purpose of dealing with a
[A- 303 (1) & (2)] situation arising from scarcity of goods in any part of the territory of India.
Power of the State
Legislature to It enables state legislature to impose taxes on goods coming from other states,
Impose Tax [Article 304] if goods produced within the state are subjected to such taxes.

Saving of Laws Providing The laws which create State monopoly in any trade, etc. are saved from attack
for State Monopoly under Article 301, i.e., they are valid irrespective of the fact that they directly
[Article 305] impede or restrict the freedom of trade and commerce.

CONSTITUTION OF INDIA SHIELD 19 | P a g e