INTRODUCTION

• A Constitution means a document having a special legal sanctity

which sets out the frame-work and the principal functions of
the organs of Government of a State and declares the principles
governing the operation of those organs.
• Constitutional Law means the rule which regulates the structure
of the principal organs of the Government and their relationship
to one another, and determines their principal functions. The
rules consist of both legal rules and also conventions, which
without being enacted are accepted as binding by all those who
are concerned in the government.
• A State has diverse functions. In order to carry out its functions
and activities certain basic organs or agents are established.
There has to be a predictable body of norms and rules from
which the governmental organs must draw their powers and
functions. A Constitution lays down the powers of various
• The legal system can be divided into i) law governing the state
and ii) law by which the state governs or regulates the conduct
of its members. Laws like Contracts, Torts, Property and Criminal
Law fall in the second category. Constitutional Law,
Administrative Law and Public International Law fall in the first
category. These are laws which seek to govern the state. Laws
governing the state fall in the category of Public Law. Laws
governing the affairs of the citizens fall into category of private
law.
• Constitution of a country seeks to establish its fundamental or
basic organs of the government and administration, describe
their structure, composition powers and principal functions,
define inter-relationship of these organs with one another, and
regulate their relationship with people. A Constitution stands at
the top of a normative pyramid. It determines the State’s
fundamental political views. It lays the foundation for its social
values. It determines its commitments and orientations.
• Traditionally, a country’s government has 3 major organs;
Legislature, Executive and Judiciary. The Constitution may also
create any other organ which it finds as significant. For ex Indian
Constitution has provided for the creation of Finance Commission
every 5 years to settle financial relationship between Centre and
States and it also establishes an Election Commission to ensure
free and fair elections.
• Modern Constitutions guarantees Fundamental Rights which are
certain basic rights inherent in a human being and which no
government should seek to take away either by legislation or by
executive action. The judiciary is endowed with the function of
protecting these rights and acting as the guardian thereof. If the
legislature passes any law or the executive takes an action, so as to
infringe any fundamental rights, then Courts may declare such a
law or action as unconstitutional. The Constitutional Law of a
country consists of both ‘legal’ and ‘non-legal’ norms. Non-legal
norms arise in course of time as a result of practices followed over
 TYPES OF CONSTITUTION
• The Constitution of a country may be federal or unitary in nature.
In a federal constitution there is a Central government having
certain powers which it exercises over the entire country. Then
there are regional governments and each of such governments
has jurisdiction within a region. USA, Canada Australia etc are
examples of federal constitution. A federal constitution is a much
more complicated and legalistic document than a unitary
constitution since it has to settle many details like distribution of
power between central and regional governments. In a unitary
constitution the entire power is concentrated in the Central
government and it can delegates such of its powers to agencies as
it like. Britain Srilanka and Singapore have unitary constitutions.
• The Constitution may be written or unwritten. A written
Constitution is one which is written down in the form of a
Constitutional document. The British Constitution is considered
as unwritten because it is not embodied in one comprehensive
Constitutional document. It is interspersed in several statutes
which define some constitutional principles; in court decisions; in
common law principles and in conventions. Most of the modern
Constitutions are written in form. The USA wrote its Constitution
in 1787 and it is a brief and compact instrument. The difference
between written and unwritten is basic. A written constitution is
the formal source of all Constitutional Law in the Country. It is
regarded as the fundamental law of the Country and every organ
in the Country must act according to the Constitution. Judicial
review has come to be regarded as an integral part of written
constitution. The Courts play a much more creative role under
written constitution than in unwritten constitution. A written
constitution is also considered as rigid when compared to
unwritten constitution since there is a special procedure to amend
the Constitution. Also a Parliament functioning under written
constitution cannot claim for itself unlimited power to do what it
likes. It can do what the Constitution permits it to do and cannot
 HISTORICAL PERSPECTIVE
• The Constitution of India became effective on 26 January 1950.
Before the advent of the Constitution, India was governed
under the Government of India Act, 1935, which became
effective in 1937.
• The Act sought to change the character of Indian Government
from unitary to federal. The Indian Federation was to consist of
the Provinces and the States under the native princes. The
executive authority of the province was in the Governor
appointed by the Crown. He was to ordinarily act on the advice
of Ministers who were to be responsible to the Provincial
Legislature which was elected on a limited franchise. But the
Governor could exercise certain functions ‘in his discretion’ or
‘individual judgment’ in which case he was not bound by
ministerial advice but was subject to control of Governor
General.
• The executive authority at the centre was vested in Governor-
General appointed by the Crown. Though ordinarily the
Governor- General would act on ministerial advice, he could
discharge certain functions ‘in his discretion’ or ‘individual
judgment’ in which case he was not bound by ministerial advice
but was subject to control of Secretary of State for India who
was a member of British Cabinet.
• This Federal Scheme never became fully operative as the
princes did not join the Federation. Before 1947, effective
power and control over the Indian Administration lay with the
Secretary of State, Governor Generals and Governors. Indian
participation in the government process was minimal.
• A Constitution Assembly was set up and it started the process of
constitution making from December 9, 1946 and after 3 years of
hard work adopted the Indian Constitution on 26 Novemeber
1949.
• The Cabinet Mission came to India on 4 th March 1946. It
consisted of 3 British Cabinet Ministers and they suggested that
there should be a Union of India and the paramountcy of the
Crown was to lapse. They also suggested that for the purpose of
framing of a new Constitution a Constituent Assembly was to be
elected. The proposals to the Cabinet Mission were accepted
and in July 1946 elections to Constituent Assembly took place.
• The members of the Constituent Assembly were elected by the
Provincial Assembly by indirect election. Total strength of the
Assembly was 389 out of which 296 seats were allotted to
British India and 93 seats to princely states. Each province were
allotted seats in the Constituent Assembly in proportion to their
population. Seats allocated to each province were divided
among 3 principal communities; Muslims, Sikhs and General.
Representatives of that community were to be elected by
members of that community in the Provincial legislative
assemblies. Representatives of the Princely states were to be
 nominated by heads of princely states. 93 seats allotted to
princely states were not filled as they decided to stay away from
Constituent Assembly. The meeting of the Assembly was initially
boycotted by Muslim League as they insisted on separate state of
Pakistan. The first meeting was on December 9 1946 and
Dr.Rajendra Prasad was elected as President of Assembly. On
December 13, 1946, Jawaharlal Nehru moved the historic
“objectives resolution” which laid down fundamentals and
philosophy of Indian Constitution. Objectives Resolution read
i) India would be an independent, sovereign republic
ii) authority of the government is derived from the people
iii) guaranteed to all people Justice, Liberty and Equality
iv) adequate safeguards shall be provided for minorities and
backward classes.
• After the acceptance of partition members from Muslim League
from Indian Dominion entered the Assembly and representatives
• Total strength of the Assembly came down to 299 and strength
of Indian provinces were reduced to 229 and Princely states to
70. After the Indian Independence Act of 1947 assembly was
made a fully sovereign body which could frame any Constitution
it pleased. Assembly was the first Parliament of free India.
Assembly had 2 different functions; making of Constitution of
free India and enacting of ordinary laws of the Country. These
two functions continued till November 26, 1949. Constituent
Assembly continued till the first general elections of 1951-52.
• Constituent Assembly had 8 major committees and several
other minor committees. B.R.Ambedkar was the Chairman of
the Drafting Committee. He is known as the Chief Architect of
Constitution of India. Some provisions of the Constitution came
into effect from November 26 itself but major parts of the
Constitution came into effect from January 26 1950.
• Critics have argued that Constituent Assembly was not a
representative body as its members were not elected directly by
SALIENT FEATURES OF INDIAN CONSTITUTION
Indian Constitution is influenced by several other Constitutions.
The Indian Federalism is influenced by Canadian and Australian
federalism. Fundamental rights in India owe a great deal to
American Bill of Rights. The process of Constitutional
Amendment is a modified version of American system.
Parliamentary form of government followed in India has close
resemblance with British model. The financial relationship is
adjusted based on the Australian model and the Directive
Principles of State Policy are inspired from the Irish
Constitution. The Government of India Act, 1935 provides the
administrative details. However Indian Constitution cannot be
described as just a carbon copy of other Constitutions. While
adopting some of the principles and institutions developed in
other countries we have several provisions which are original in
conception and in no other systems we can find a parallel for
 I) Lengthiest Constitution
• Originally Indian Constitution consisted of 395 Articles arranged
under 22 parts and 8 Schedules. As of now the last numbered
Article is still 395 and the number of Schedules and parts have
increased to 12 and 25 respectively. There exists many reasons
for this prolixity. Firstly, Constitution deals with the organisation
and structure of government not only at the Central level but
also at the State levels. Secondly, all matter pertaining to centre
state relations are written down and included as a part of the
Constitution. Thirdly, Many of the unwritten conventions of the
British Constitution like principle of collective responsibility of
ministers and parliamentary procedure etc are found in the
Constitution. Fourthly, To remove mutual distrust among
various groups in India detailed provisions were included in the
Constitution on Fundamental Rights, safeguard to minorities,
Scheduled Tribes, Scheduled Castes and Backward classes.
 Fifthly, to ensure the future India be based on concept of social
welfare, the Constitution includes Directive Principles of State Policy.
Lastly, the Constitution contains not only the fundamental principles
of governance but also mainly administrative details such as the
provisions regarding citizenship, official language, government
services, electoral machinery etc. In other Constitutions, these
matters are usually left to be regulated by ordinary law of the land.
The framers of the Indian Constitution, however, felt that unless
these provisions were contained in the Constitution, the smooth and
efficient working of Constitution and the democratic process in the
country might be jeopardised.
II) Parliamentary form of government
• The Constitution of India has followed the Parliamentary form of
government and in this respect they have followed the British model
in toto. The reason for this was that we were accustomed to this type
of government. The essence of Parliamentary form of government is
its responsibility to the Legislature. The real executive power is
vested with Council of Ministers whose head is the Prime Minister.
• The President is only the Constitutional Head of the State. The Council
of Ministers is collectively responsible to the Lower House; Lok Sabha.
The members of the Lok Sabha are elected directly by the people on the
basis of adult franchise. This type of govt is hence called a responsible
form of government. However, the American Constitution establishes a
Presidential form of government. The President is directly elected by the
people for 4 years. All executive powers are concentrated in him. He is
not responsible to the Lower House. The members of the Cabinet are
not members of the Legislature. They are appointed by the President
and therefore, responsible to him. The framers of the Constitution has
preferred the Parliamentary system of government mainly due to two
reasons; 1) the system was already in existence in India and the people
were well acquainted with it 2) it provides for accountability of
Ministers in the legislature.
• Those who support the Presidential form of government argues that it
leads to a stable government and it is free from party and sectional
disputes. They also point out that Presidential system discourages
defections and President is free to choose his team of Ministers from
the best talent available in the Country.
 III) Unique blend of rigidity and flexibility
• A written Constitution is generally said to be rigid. A rigid
Constitution is one which requires a special method of amendment
of any of its provisions while in flexible Constitutions any of its
provisions can be amended by ordinary legislative process. Indian
Constitution though written is sufficiently flexible. Only few
provisions of the Constitution require consent of half of the State
legislatures.
IV) Fundamental Rights
• The incorporation of a formal declaration of Fundamental Rights in
Part III of the Constitution is deemed to be a distinguishing feature
of democratic state. These rights are prohibitions against the State.
The State cannot pass a law which takes away or abridges any of
the rights of the citizens guaranteed in Part III of the Constitution. If
it passes such a law it may be declared as unconstitutional by the
Courts. Supreme Court and High Courts are granted writ
jurisdiction to remedy a situation where fundamental rights are
• Fundamental rights are not absolute rights. They are subject to
certain restrictions. Our Constitution tries to balance between
individual liberty and social interest.
V) Directive Principles of State Policy
• The Directive Principles of State Policy is set out in Part IV of the
Constitution and it contains the aims and objectives to be taken up
by the State in the governance of the Country. Unlike the
Fundamental Rights these rights are not justiciable. If the State is
unable to implement any provisions of Part IV, no action can be
brought against the State in a Court of law. However the State
authorities will have to answer for them to the electorate at the time
of election. Inorder to achieve the idea of welfare state envisaged in
the Constitution, the States will have to implement them.
VI) Federation with strong centralizing tendency
• The most remarkable feature of our Constitution is that being a
federal Constitution it acquires a unitary character during
emergency. During the proclamation of emergency the distribution
 between Central and State government undergoes a vital
change. The Union Parliament is empowered to legislate on any
subjects mentioned in the State List. The Central government is
empowered to give directions to States as to the manner in
which it should exercise its executive powers. The financial
arrangements between the Centre and the State can also be
altered by the Union government. During Emergency all the
powers are concentrated on the Union govt and it acquires a
Unitary nature.
VII) Adult Suffrage
• Under the Indian Constitution every man and woman above 18
years of age has been given the right to elect representatives for
the legislature. Under Article 326, Constitution has adopted the
Universal Adult Suffrage without any qualification either of sex,
property, taxation or the like.
 VIII) Independent Judiciary
• Mere enumeration of fundamental rights in the Constitution
without any provision for their proper safeguards will not serve
any useful purpose. For this purpose an independent and
impartial judiciary with a power of judicial review has been
established under the Constitution of India. It is the custodian
of the rights of the citizens. It also plays the significant role of
determining limits of powers of Centre and States.
IX) Secular State
• A secular state has no religion of its own as recognized religion
of state. It treats all religion equally. The preamble declares that
all citizens of India shall have liberty of belief, faith and worship.
Article 25 to 28 of Constitution guarantees to every person
freedom of conscience and right to profess, practice and
propagate religion. In Secular state, state regulates the
relationship between man and man. It is not concerned with
 However, freedom of religion is not an absolute freedom, but
subject to regulatory power of the State. In the name of
religion nothing can be done which is against public order,
morality and health of the public.
X) Single Citizenship
• Indian Constitution provides only for a single citizenship unlike
the US Constitution. The American Constitution provides for
dual citizenship i.e, the citizen of America and a State
Citizenship. In India, there is no state citizenship. Every Indian is
the citizen of India and enjoys the same rights of citizenship no
matter in what state he resides.
XI) Fundamental Duties
• The Constitution 42nd amendment act of 1976 has introduced
Fundamental Duties for citizens. The fundamental duties are to
serve as a constant reminder to every citizen that while the
Constitution has specifically conferred on them Rights, it also
 XII) Judicial Review
• Judicial Review is interposition of judicial restraint on legislative as
well as the executive organs of the State. It is the power of courts to
pronounce upon the constitutionality of legislative acts. If the
provisions of the statutes are found to be violative of any of the
articles of the Constitution then the Supreme Court and High Court
can strike down those provisions. Judicial Review proceeds from the
assumption that there exists a Supreme Law and any act of the
ordinary law-making bodies which contravenes the provisions of the
supreme law must be void. The power of judicial review was
assumed by the Supreme Court of America in the case of Marbury v
Madison. Unlike the US Constitution Indian Constitution contains
express provisions for judicial review of legislations. In Kesavananda
Bharati case it has been held that Judicial review is the basic feature
of Indian Constitution and therefore it cannot be damaged or
destroyed by amending the Constitution. Again in L Chandrakumar v
UOI the SC held that power of judicial review vested in High Court
under Article 226 and in Supreme Court under Article 32 is part of
 QUASI-FEDERAL NATURE OF INDIAN CONSTITUTION
Essential Features of a Federal Constitution
• Distribution of powers between Union and State govt is an
essential feature of a Federal Constitution. Each of them is
originating from the Constitution and also is controlled by the
Constitution. In matters of national interest in which a uniform
policy is desirable authority is entrusted to the Union and
matters of local concern remains with the States.
• A Federal Constitution will be generally a written Constitution.
The Executive and Legislative powers of the Union and the
States are subordinate to and controlled by the Constitution. It
will be impossible to maintain supremacy of Constitution,
unless terms of Constitution have been reduced into writing.
• Generally a Federal Constitution will be a rigid Constitution.
Amendment of the Constitution is made a complicated process,
so that power of amending does not remain exclusively with
 State or Central government. Constitutional Supremacy can only
be maintained if it is not easily amendable.
• In a Federal system the Judiciary has the power to interpret the
Constitution. Division of power between Centre and State is to
be maintained by the Judiciary. The disputes between Centre
and the States have to be decided by the Supreme Court.
Quasi-Federal nature of Indian Constitution
• Various legislative powers are enumerated in Union list, State
list and Concurrent list. By way of Article 248, residuary powers
of legislation, that is power to legislate in respect of matters not
enumerated in either of the 3 lists is vested in the Parliament.
By way of Article 249, even in matters in State list, Parliament is
empowered to make laws, if Rajya Sabha declares by a
resolution supported by not less than 2/3 members present and
voting, that it is necessary or expedient in national interest for
Parliament to make laws with respect to any matter in State list.
• By Article 250, while a proclamation of emergency is in
operation in the Country under Article 352, Parliament is
empowered to legislate with respect to any matter in State List.
• Article 253 confers on the Parliament the capacity to legislate,
irrespective of scheme of distribution of powers, to implement
a treaty or a decision made at an international conference.
• Article 356 vests in the President, on the report of the governor
of a state that government of the State cannot be carried on in
accordance with provisions of the Constitution, the power to
assume to himself all the functions of the State government.
The legislative assembly of the State can be dissolved after the
approval of the Parliament.
• Article 155 states that Governor is appointed by the President.
The President appoints the State Governor on the advice of the
Prime Minister. Governor is the Constitutional head of the State.
Article 156(1) makes it clear that a Governor holds his office
• According to Article 3 of the Constitution, Parliament can by
way of a law establish new states out of existing states, alter
boundaries of the States, unite two or more states and can even
change the name and dimensions of a State. The power of
Parliament is plenary and that is the reason why India is called
an indestructible union of destructible units.
• Majority of the high revenue yielding subjects are placed in the
Union list with the result that States have to be dependent
upon Centre for most of their finances.
Wheare has described Indian Constitution as
quasi-federal and not strictly federal. Jennings has
characterised Indian Constitution as a federation with strong
centralizing tendency.
 PREAMBLE OF THE CONSTITUTION
• The preamble to an act sets out the main objectives which the
legislation is intended to achieve. In re Berubari Case the
Supreme Court has said that the Preamble to the Constitution is
the key to open the mind of makers and shows the general
purpose for which they made several provisions of the
Constitution.
• The Preamble serves the following purposes:
a) It indicates the source from which the Constitution comes, viz,
the people of India.
b) It declares the nature of Indian State. It declares India to be a
Sovereign, Socialist, Secular and Democratic Republic.
c) It declares the great rights and freedoms which the people of
India intended to secure to all its citizens. It specifies Justice,
Liberty, Equality and Fraternity as the objectives.
d) It reveals the Date of Adoption. November 26 th 1949 is the
 Sovereign
• The term Sovereign implies that India is an independent nation
with no authority above it. India is free to conduct its own
affairs both internal and external. India is neither a dependency
nor a dominion of any other nation. India is a member of UNO
but that in no way inhibits its Sovereignity.
Socialist
• The term was introduced by the 42nd amendment in 1976. Even
before that Constitution had a Socialist content in Directive
Principles of State Policy. Indian brand of Socialism is known as
democratic socialism which holds faith in mixed economy where
both Public and Private Sectors can co-exist. Democratic
Socialism aims to end poverty, ignorance disease and inequality
of opportunity.
Secular
• The term Secular was also added by the 42 nd amendment to the
 Constitution. Indian Constitution embodies positive concept of
secularism.
Democratic
• In India we have representative democracy where the elected
representatives exercise the Supreme power and thus carry on
the government. The term democracy is used in the Preamble
in the broader sense embracing not only Political democracy
but also social and economic democracy. Social democracy
means a way of life which recognizes Liberty, Equality and
Fraternity.
Republic
• In Monarchy Head of State comes into Office through
Succession, ex Britain. In a Republic Head of the State is always
elected directly or indirectly for a fixed period, ex USA. Republic
implies that Political Sovereignity is with the people and also
implies that all public offices are open to all Citizens without any
 Justice
• The term Justice in the Preamble of the Constitution embraces
3 distinct forms. Social, Economic and Political Justice. Social
Justice involves equal treatment of all Citizens without social
distinction based on Caste, Colour, Race, Religion Sex and so on.
No privileges are extended to any particular section of the
society and it also denotes improving the conditions of SC/ST
and OBC. Economic Justice involves elimination of glaring
inequalities in wealth, income and property. Political Justice
implies that all Citizens should have equal political rigths, equal
access to all Political Offices and equal vote in the government.
The ideal of Social, economic and Political Justice has been
taken from Russian revolution.
Liberty
• Liberty of thought, expression, belief and faith are guaranteed
and are enforceable in Court of Law in case of violation. Liberty
 Liberty conceived by the Preamble is not absolute but qualified.
Equality
• Preamble secures to all Citizens of India, equality of status and
of opportunity. It embraces 3 dimensions of equality. Civic,
Political and Economic. Article 14-18 guarantee civic equality.
Political Equality is expressed through Article 325 and 326. By
way of Article 325 no person is to be declared ineleigible for
inclusion in electoral rolls on grounds of race, religion, caste or
sex. By way of Article 326 elections to Lok Sabha and State
Assemblies are on the basis of adult suffrage. By way of Article
39 (b) the ownership and control of material resources of the
community are to be distributed in a manner which ensures
common good.
Fraternity
• Fraternity means a sense of brotherhood. By way of single
citizenship feeling of brotherhood is promoted. Fundamental
 duties state that it shall be the duty of every Indian Citizen to
promote harmony and the spirit of common brotherhood
amongst all people. Fraternity assures 2 things i) Dignity of the
individual 2) Unity and integrity of the nation. Fundamental
duties also envisage that every citizen should renounce
practices derogatory to women and every citizen has a duty to
uphold and protect sovereignity, unity and integrity of India.
Significance of Preamble
• Preamble contains the basic philosophy and fundamental
values. It contains the grand and noble vision of Constituent
Assembly and reflects the dreams and aspirations of founding
fathers of our Constitution. Former CJI M.Hidayatullah
described it as the Soul of our Constitution. In Berubari Union
case Supreme Court held that Preamble shows the general
purposes behind provisions of Constitution. It is a key to the
minds of makers of Constitution. Where the terms used in an
 Article are ambiguous or capable of more than one meaning, the
interpretation more suitable with the ideals in Preamble may be
taken. However Court opined that Preamble is not a part of the
Constitution.
• However in Kesavananda Bharti case Supreme Court rejected the
earlier opinion and held that Preamble is a part of the
Constitution. Constitution should be read and interpreted in light
of grand and noble vision expressed in Preamble. It was also held
that a) Preamble is not a source of power to legislature nor a
prohibition upon powers of legislature b) Preamble is non-
justiciable. Provisions are not enforceable in Court of Law.
• It was also held that Preamble can be amended however no
amendment can be done to the basic features of Indian
Constitution. Edifice of our Constitution is based on certain
elements in Preamble. If any of these elements are removed
structure will not survive. Thus by way of an amendment
Parliament cannot take away basic characteristics of Constitution
 UNION AND ITS TERRITORY
• Article 1 of Indian Constitution declares that the republic of
India shall be a “Union of States.” Although the Constitution was
federal in structure the drafting committee used the term
‘Union’ because it indicated the fact that States have no right to
secede from the federation. Indian Union is not result of an
agreement between units like the American Federation and
hence no State has the right to secede from it. The federation is
a Union because it is indestructible. Though the country and
the people can be divided into different states for convenience
of administration the country is an integral whole.
• The territory of India falls under 3 categories:
a) State territories
b) Union territories
c) Territories which may be acquired by govt of India
• Before the Constitution 7th Amendment Act, 1956, the union
consisted of States which were classified into 4 main categories,
Parts A, B,C and D of the First Schedule. The 7th Amendment has
abolished the 3 categories and placed all the States of the Union
on the same footing as a result of reorganization made by States
Reorganization Act, 1956.
• Article 2 deals with admission or establishment of a new state
into the Union of India which may be formed of the territories
not included in the existing states. Parliament can by law admit
into the Union or establish new States on such terms and
conditions as it thinks fit. Admission means the State concerned
is duly formed and already in existence while establishment
means formation of a State which was not in existence before. It
is worth noticing that the admission or establishment of a new
state will be “on such terms and conditions as Parliament may
think fit.” Here the Indian Constitution differs from the US where
the principle of equality applies even to new states admitted by
• Article 3 deals with formation of new states out of territories of
the existing states. Parliament under this Article can form a new
state by separation of territory from any state, or by uniting 2 or
more states or by uniting any parts of states etc. Parliament under
this Article can also increase or decrease the area of any State or
alter the boundaries or change the name of any state. The Indian
Constitution empowers the Parliament to alter the territory or
names of the States without their consent or concurrence. It can
form new states and can alter the area, boundaries or names of
existing states by a law passed by simple majority.
• The conditions for making such a law are:
1) No such bill shall be introduced except on the recommendation
of the President
2) President is required to refer the Bill to the affected State
legislative assemblies for expressing their views within a specified
time period.
Parliament is not bound to accept the views of State legislature.
 It is also not necessary to make fresh reference to State
legislature every time an amendment to the Bill is proposed and
accepted. President can extend the period specified for
expressing the views however if the State legislature does not
express its views within the period so specified or extended, the
Bill may be introduced in the Parliament even though the views
of the State have not been obtained.
• Thus it is clear that the very existence of a State depends upon
the sweet will of the Central government. By a simple majority
and by ordinary legislative process, Parliament may form a new
state or alter the boundaries etc of existing States.
Berubari Union Case (AIR 1960 SC 845)
• India – Pakistan Agreement entered into in 1958 for resolving
certain border disputes provided for transfer of one-half of area
of Berubari Union by India to Pakistan in exchange for Cooch-
Bihar enclaves. When the Central govt sought to implement the
agreement, a powerful political agitation was started against it.
The President referred the matter to Supreme Court for its
Advisory opinion under Article 143. The question involved was
can Parliament cede Indian territory to a foreign state by the
power under Article 3. The Supreme Court held that power of
Parliament under Article 3 to diminish the area of any State
does not cover ceding of Indian territory to a foreign state. The
agreement could be implemented only by way of an
amendment of Constitution in accordance with Article 368. SC
pointed out that Article 3 deals with internal re-adjustment of
territories of constituent States of India. The area diminished
under Article 3(c) continues to be part of Indian territory. Hence
an agreement involving a transfer of territory to a foreign-state
cannot be implemented by simply passing a law under Article 3.
For this an amendment of Constitution is necessary.
 FUNDAMENTAL RIGHTS
Historical Perspective
• Part III of the Constitution consists of Fundamental Rights. This
Chapter of Constitution has been described as the Magna Carta of
India. As early as 1215 the English people exacted an assurance
from King John for respect of the liberties. Magna Carta is the first
written document relating to fundamental rights of Citizens. In 1689
the Bill of Rights was written consolidating all important liberties
and rights of English people. In France Declaration of Rights of Man
and the Citizen declared the natural, inalienable and sacred rights of
man. The Americans incorporated the Bill of Rights into their
Constitution and became the first ones to give Constitutional status
to Fundamental Rights. The idea behind Fundamental Rights is that
certain elementary rights, such as right to life, liberty freedom of
speech and freedom of faith should be regarded as inviolable under
all conditions and that the shifting majority in legislature of the
Country should not have a free hand in interfering with these
freedoms.
• The idea of inherent human rights can be traced to the writings
of Locke and Rousseau. According to Locke man is born free and
he has by nature power to protect his property - that is his life,
liberty and estate. The declaration Of French Revolution stated
that the aim of all political association is the conservation of
natural and inalienable rights of man. The idea of guaranteeing
certain rights is to ensure that a person may have a minimum
guaranteed freedom.
• Fundamental Rights are entrenched in the Constitution so that
they may not be violated, tampered or interfered by an
oppressive government. A guaranteed right can be taken away
only by the elaborate and formal process of Constitutional
amendment rather than by ordinary legislation.
• Entrenchment means that the guaranteed rights cannot be
taken away by an ordinary law. A law curtailing or infringing the
an entrenched right would be declared to be unconstitutional.
 Need for Fundamental Rights
• Fundamental Rights are deemed essential to protect the rights and
liberties of the people against the encroachment of the power
delegated by them to their government. They are limitations upon
the government. These rights are regarded as fundamental
because they are most essential for the attainment by the
individual of his full intellectual, moral and spiritual status.
• The object behind inclusion of Chapter of Fundamental Rights in
Indian Constitution is to establish “a government of law and not of
man” a governmental system where the tyranny of the majority
does not oppress the minority. The Supreme Court in M.Nagaraj v
UOI has stated that the fundamental rights are not gift from the
State to citizens. Part III does not confer fundamental rights but
confirm their existence and give them protection. Individuals
possess basic human rights independently of any Constitution by
reason of basic fact that they are the human race.
• Absolute and unrestricted individual rights cannot exist in any
modern state. If people are given complete and absolute liberty
without any social control the result would be chaos and
anarchy. On the other hand if the State has absolute power to
determine the extent of personal liberty the result would be
tyranny. The Indian Constitution attempts to strike a balance
between these conflicting interests by enumerating
fundamental rights and by setting limits within which they can
be curtailed. The Constitution permits ‘reasonable’ restrictions
to be imposed on individuals in interest of Society.
• In Maneka Gandhi v UOI the Supreme Court has held that
provisions of Part III should be given widest possible
interpretation. Supreme Court has also clarified that these
fundamental rights are not mutually exclusive but they are all
parts of an integrated scheme in the Constitution.
 Precedents
• Judicial precedents are important sources of law. Labour of
Judges would be increased if every past decision could be
reopened in every case. As a result of following precedents the
law becomes certain and known. The practice of following
precedents creates confidence in the minds of litigants.
• An authoritative precedent is one which Judges must follow
whether they approve of it or not. A persuasive precedent is
one which judges are under no obligation to follow but which
they will take into consideration and to which they will attach
great weight.
• A Court of superior jurisdiction can overrule decision of a
subordinate court. In India the principle of Stare Decisis is found
in Article 141 of Constitution which states law declared by the
Supreme Court is binding on all Courts in India. Supreme Court
is free to depart from its previous decisions if valid reasons
exist.
 Principles of Natural Justice
• Principles of Natural Justice constitute basic element of a fair
hearing. These principles have their root in innate sense of man
for fair play and Justice. The breach of these principles would
prevent justice from being done. They are not codified in any
form. In Maneka Gandhi v UOI it has been laid down that law
and procedure must be fair just and reasonable.
• Audi Alteram Partem – A judge or any person exercising a
judicial function should hear both sides of every case. If one
does not listen to both sides, it becomes unfair to the party
unheard.
• Nemo Debet Esse Judex in Propria Causa - No one should be
made a judge in his own cause. There can be subject matter
bias, pecuniary interest or personal interest. Justice should not
only be done, but should manifestly be seen to be done. An
adjudicator is disentitled to decide the dispute when he is
 Rule of Law
• Dicey developed Rule of Law. According to him, it meant 3 things :
a) Supremacy of Law
b) Equality before law
c) Role of Courts as guarantors of liberty.
• Rule of law requires that government should be subject to law
rather than law subject to government. It excludes arbitrariness. A
person is ruled by law and law alone. A man may be punished for
breach of law but can be punished for nothing else.
• Equality before law or equal subjection of all classes to ordinary
law administered by ordinary law courts. From PM to Constable all
are responsible for their actions.
• Dicey stated that rights guaranteed in Constitution are not the
source but the consequences of rights of individuals. He
advocated that rights should be made enforceable through a
Court of Law.
 Fundamental Rights and Indian Constitution
• In India, if a law is incompatible with a Fundamental Right, the
law is void. A void law is regarded as non-est. The Indian
Political leaders who had suffered human rights violation at the
hands of the British were very positive towards the adoption of
rights into the Constitution. Also since Indian society was
fragmented into religious, cultural and linguistic groups it was
necessary to declare fundamental rights to give the people a
sense of security and confidence. Bill of rights was enacted in
the Constitution to minimise the danger of legislature enacting
oppressive laws. Fundamental Rights act as a fetter on plenary
legislative powers and they also helps a person to fully develop.
It provides safeguards to minorities, outlaws discrimination and
protects religious freedom and Cultural rights. Fundamental
Rights cannot be contravened or abridged by any statutory
provision.
 ARTICLE 12 – STATE
• Article 13(2) bars the ‘state’ from making any law infringing a
Fundamental Right. According to Article 12 the term ‘state’
includes –
a) The government and parliament of India
b) The government and legislature of each state
c) all local or other authorities within the territory of India
d) all local or other authorities under the control of Government
of India
• The term ‘State’ thus includes executive as well as the legislative
organs of the union and the state. Therefore, the actions of
these bodies can be challenged before the courts as violating
fundamental rights. ‘Local authorities’ as defined in Section
3(31) of General Clauses Act refers to authorities like
Muncipalities, Panchayats, District Boards etc.
• Other authorities - Today’s govt performs a large number of
functions because of the prevailing philosophy of 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 exisiting
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 act such as
Companies Act, Societies Registration Act etc. Questions have
been raised whether such bodies can be included within the
coverage of Article 12.
• In University of Madras v Santa Bai the Madras High Court held
that ‘other authorities’ could only indicate authorities of a like
nature. By applying the rule of ejusdem generis it was construed
 that it could only mean authorities exercising governmental or
sovereign functions. It could not include persons, natural or
juristic, such as University unless maintained by the State.
• In Electricity Board, Rajasthan v Mohanlal the Supreme Court
held that the expression ‘other authorities’ is wide enough to
include all authorities created by the Constitution or statute on
whom powers are conferred by law. It is not necessary that
statutory authority should be engaged in performing
governmental or sovereign function. The Court observed that
“the circumstance that the Board under the Electricity Supply
Act is required to carry on some activities of the nature of trade
and commerce does not indicate that board must be excluded
from the scope of the word state in Article 12.”
• In Sukhdev v Bhagatram 3 statutory authoritites LIC, ONGC and
Industrial Finance Corporation were held to be ‘other
authorities’ and thus fall within the term ‘State’.
• In Sukhdev case dismissed employees claimed reinstatement
from ONGC, LIC and Industrial Finance Corporation. Ray C.J held
that rules and regulations made in exercise of statutory
authority were delegated legislation, which if validly made, had
full force and effect of law. These regulations are binding not
only on the authorities but also on the public. However Mathew
J, adopted a new line of approach. He held 3 corporations were
‘other authorities’ within the meaning of Article 12. He
observed that the concept of State had changed radically in
recent years and State could no longer be looked upon simply as
a coercive machinery. Part IV shows the extent of services which
was expected from State for welfare of people. He held “A state
is an abstract notion. It can act only through instrumentality or
agency of natural or juridical persons. Therefore there is nothing
strange in the notion of State acting through a Corporation and
making it an agency or instrumentality of State.” He held
governing power must be subjected to fundamental
 constitutional limitations.
• In R.D.Shetty v International Airport Authority of India the broader
test suggested by Justice Mathew in Sukhdev v Bhagatram was
adopted. The Supreme Court held that if a body is an agency or
instrumentality of the government, then it may be an authority
within Article 12, whether it is a statutory corporation or a
government company. International Airport Authority created by an
Act of Parliament was held as State within the meaning of Article
12. Court laid down the following tests for determining whether a
body is an agency or instrumentality:-
i) Financial resources of the State is the chief funding source
ii) Existence of deep and pervasive state control
iii) Functions of the Corporation are governmental in nature or are
of public importance
iv) whether the Corporation enjoys monopoly status which is state
conferred or protected
v) whether a department of government is transferred to a
• In Ajay Hasiya v Khalid Mujib the agency or instrumentality test
was adopted by the Constitution bench of Supreme Court of
India. The validity of admission to Regional Engineering College
Srinagar was challenged. College was run by a society registered
under Societies Registration Act, 1893. The question was
whether the society was state for only then the admissions to
college could be challenged as violative of Article 14.
• A 5 judge bench of the Supreme Court held that society was an
instrumentality or agency of the government. It was held by the
Court that if agencies or instrumentalities of the government
were not held to be other authorities under Article 12, then
government would assign every state business to a Corporation
( TV, Radio,Telephone, Railways) and cheat the people out of
fundamental rights guaranteed to them. That would make a
mockery of the Constitution. He also held Fundamental rights
cannot be rendered futile by way of Judicial interpretation.
• In Central Inland Water Transport Copn v Brojonath Ganguly the
Corporation was owned by the Government, managed by
Chairman and Board of Director who were appointed and
removable by the government. Court held that Corporation was
State within Article 12 and an instrumentality of the State. It is
nothing but government acting behind a Corporate Veil,
carrying out a governmental activity.
• In Zee Telefilms ltd v Union of India the question involved was
whether the Board of Control for Cricket in India was ‘State’
within the meaning of Article 12. The Board was not created by
any statute, nor was a part of the share capital held by the
Government. There was no financial assistance given to the
Board by the Government and though the Board enjoyed a
monopoly status it was not granted to them by way of a law.
The control was only regulatory in nature. Functions of the
board were not governmental functions and the Board was not
 created by transfer of a government owned corporation and
was an autonomous body. The Board was not financially,
functionally or administratively dominated by or under the
control of government so as to bring it within the expression
‘State’ in Article 12. The State has not selected the Board to
perform these duties nor has it legally authorized the Board to
carry out these functions under any law or agreement. In the
absence of any such authorization, if a private body chooses to
discharge any such function which is not prohibited by law then
it would be incorrect to hold that such action of the body would
make it an instrumentality of the State.
• In Naresh v State of Maharashtra it was made clear that a
Fundamental right is not infringed by a judicial order and no
action, therefore lies against a Court or Judge on the ground of
breach of fundamental right, the reason being that what a
judicial decision purports to do is to decide the controversy
between the parties.
 Article 13
• Article 13(1) declares that all laws in force in the territory of India
immediately before the commencement of Constitution shall be
void to the extent to which they are inconsistent with provisions of
Part III of Constitution.
• Article 13(2) provides that State shall not make any law which
takes away or abridges the fundamental rights conferred by Part III
of the Constitution; and any law made in contravention of
fundamental rights shall to the extent of contravention be void.
• Article 13(3) defines the term law as including any order, by-law,
rule, regulation, notification, custom or usage having the force of
law. Thus not only legislative enactment, but anything mentioned
here can be challenged as infringing a fundamental right.
Article 13 provides for ‘judicial review’ of all legislations in
India. This power has been conferred on High Courts and Supreme
Court of India (Article 226, Article 32) which can declare a law
unconstitutional if it is inconsistent with Part III.
• Article 13(1) is prospective in nature. All pre-Constitution laws
inconsistent with Fundamental Rights will become void only
after the commencement of Constitution. They are not void ab
initio. Such inconsistent law is not wiped out so far the past Acts
are concerned. A declaration of invalidity by the Courts will
however be necessary to make the laws invalid.
• In Keshava Madhava Menon v State of Bombay, a prosecution
was initiated against petitioner under Press(Emergency Powers)
Act, 1931 in respect of a pamphlet published in 1949. Appellant
contended that Act was inconsistent with Article 19(1)(a) and
hence void. Supreme Court clarified that Article 13(1) could not
apply in this case as the offence was committed before the
commencement of Constitution and therefore proceedings
started in 1949 will not be affected. Article 13(1) does not have
any retrospective effect and voidness of existing law is limited to
date from those rights came into being.
• Any law made in contravention of Part III after the
commencement of the Constitution is dead from the very
beginning and cannot be taken notice of or read for any
purpose whatsoever. A void statute is unenforceable, non-est,
and devoid of any legal force. Rights cannot be built up under it
and no one can be punished for having refused obedience to it.
It will be regarded as having never at any time been possessed
of any legal force.
• However, some Fundamental Rights apply to all persons
(citizens as well as non citizens) while some of the rights such as
Article 19 apply only to citizens. A law inconsistent with a
Fundamental Right of the former type is ineffective qua all
persons. On the other hand, a law inconsistent with a
Fundamental Right available to citizens only, is non est only qua
citizens but not qua non-citizens who cannot claim the benefit
of Fundamental Right in question.
 PERSONAL LAWS
• In India several personal laws exist which are non-statutory
traditional systems of law having some affinity with concerned
religion. For ex, Hindu Law, Muslim Law, Parsi law etc. Article 44
itself recognizes the existence different personal laws as it lays
down that within a measurable time India should have a Uniform
Civil Code. When these laws are challenged before Court for
violation of Fundamental Right courts have adopted the policy of
non-interference keeping in view the susceptibilities of the groups
to which these laws apply. In State of Bombay v Narasu Appa Mali
it was held by the Court that framers of the Constitution wanted
to leave personal laws outside the ambit of Part III of the
Constitution and this intention is clear from the definition of the
word laws in force. The scheme of the Constitution, therefore,
seems to be to leave personal law unaffected except where
specific provision is made with regard to it and leave it to the
Legislatures in future to modify and improve it.
 Doctrine of Eclipse
• The doctrine of eclipse is based on the principle that a pre-
constitution law which violates the Fundamental Rights is not
nullity or void ab initio but becomes unenforceable( remains in
a moribund state). Such laws exist for all past transactions, and
for the enforcement of rights acquired and liabilities incurred
before the present Constitution came into force and for
determination of right of persons who have been given
fundamental rights by the Constitution.
• These laws are merely eclipsed for the time being by the
Fundamental Rights and as soon as the eclipse is removed the
law begins to operate from the date of such removal. By way of
a Constitution Amendment if the impugned Act is free from all
blemish or infirmity then it becomes enforceable against
citizens as well as non-citizens.
• In Bhikaji Narain v State of MP the doctrine of eclipse was
enunciated for the first time. A Legal provision enacted in 1948
authorising the State Government to exclude all private motor
transport business, became inconsistent with Article 19(1)(g)
when the Constitution came into force in 1950. In 1951, Article
19(1)(g) was amended so as to permit the State government to
monopolise any business. The question was whether the law
could be revitalised by the subsequent Constitution amendment
without being re-enacted. SC held that law in question was
eclipsed for the time being by a fundamental right. It was in a
dormant or moribund condition and once the amendment has
been passed the law would cease to be unconstitutional and
becomes enforceable. The doctrine of eclipse is made
applicable only to pre-constitution laws and not to post-
constitution laws the reason being that a post –constitution law
violating a fundamental right is a nullity from its very inception.
• In case the post-constitution law contravenes the Fundamental
rights limited to the citizens only, it will operate with respect to
non-citizens, but it will not be revived qua citizens merely by
the amendment of the Fundamental Right involved. The law
will have to be re-enacted after the constitutional amendment if
it is desired to make it operative qua the citizens as well. Such a
law will be regarded as still-born with respect to citizens and
even though it may be operative qua the non-citizens, and so it
will have to be re-enacted if it is desired to make it valid qua the
citizens.
DOCTRINE OF SEVERABILITY
• According to Article 13, a law is void only “to extent of
inconsistency or contravention.” The above provision means
that an Act may not be void as a whole, only a part of it may be
void and if that part is severable from the rest which is valid,
then the rest may continue to stand and remain operative.
 The Act will then be read as if the invalid portion was not there.
If however it is not possible to separate the valid from the
invalid portion, then the whole of the statute will have to go. If
the valid and invalid provisions are so inextricably mixed up that
they cannot be separated from one another, then invalidity of a
portion must result in the invalidity of the Act in its entirety.
• On the other hand, if they are so distinct and separate that after
striking out what is invalid, what survives can stand
independently, then it will be upheld notwithstanding that the
rest had become unenforceable. If after the invalid portion is
expunged from the statute, what remains cannot be enforced
without making alterations and modifications therein, then the
whole of it must be struck down as void. Even when the valid
provisions are distinct and separate from the invalid provisions,
but if they all form part of a single scheme which is intended to
operate as a whole then invalidity of a part will result in failure
• The intention of the legislature is the determining factor in
deciding whether the valid parts of a statute are separable
from the invalid parts. The test is whether legislature would
have enacted the valid parts had it known that the rest of the
statute was invalid. In determining the legislative intent on the
question of severability, it will be legitimate to take into account
the history of legislation, its object, the title and the preamble
to it. Severability is a question of substance and not of form.
• In State of Bombay v Balsara it was held that provisions of
Bombay Prohibition Act, 1949 which were declared as void do
not affect the entire statute, therefore, there is no necessity for
declaring the statute as invalid. Section 2(24) of the act defined
the word liquor. It covered the toilet and medicinal preparations
as well. The prohibition on sale, use and consumption applied
to these products also. This was challenged as an unreasonable
restriction under Article 19(1)(g). Since wine, beer, toddy etc
 are distinctly separate items from last category all liquids
containing alcohol. Doctrine of severability was applied. The
entire statute was not declared unconstitutional.
• In RMDC v UOI the Prize Competitions Act was involved. It was
broad enough to include competitions of gambling nature as
well as those involving skills. Under Article 19(1)(g) Parliament
could restrict Prize Competitions only of gambling nature but
not those involving skill. Provisions of the Act were thus held
severable in their application to competitions in which success
did not depend to any substantial extent on skill.
DOCTRINE OF WAIVER
• In view of Basheshar Nath v IT Commissioner it is now an
established proposition that an individual cannot waive of any
of his Fundamental Right. The doctrine of waiver could have no
application in case of Fundamental Rights. A citizen cannot
invite discrimination by telling the State
 ‘You can discriminate’ or get convicted by waiving the
protection given to him under Articles 20 and 21. The
Fundamental Rights are kept in the Constitution not merely for
individual benefit but these rights were a matter of public policy
and therefore the doctrine of waiver has no application in
Fundamental Rights. Fundamental Rights are mandatory on the
State and no person can relieve the State of the solemn
obligation imposed on it by the Constitution.
• In Basheshar Nath v Income Tax Commissioner the appellants
case was referred to Central Govt under Section 5(1) of Act to
investigation commission. Certain amount had escaped
assessment and appellant agreed to pay Rs 3,50,000 by way of
tax and penalty. In the mean time Section 5(1) of Income Tax
Act was declared void by the Court and he claimed that amount
paid under the settlement should be returned to him.
Department claimed that he had waived his fundamental right
under Article 14. Supreme Court held that Article 14 is a
 command issued by the Constitution to State with a view to
implement equality of status and opportunity and no person
can by any act or conduct relieve the state of solemn obligation
imposed on the Constitution.
• In Olga Tellis v Bombay Muncipal Corporation the petitioners
were living on pavaments and in slums in City of Bombay. In
1981 the Bombay Muncipal Corporation and state of
Maharashtra took a decision that all pavement dwellers and
slum dwelleres were to be evicted. These dwellers made a
promise to High Court to vacate the huts on October 15 1981.
However in Supreme Court they claimed that evicting a slum
dweller would amount to violation of right to livelihood under
Article 21. Govt took that stand that petitioners must be
estopped from contending in Supreme Court that huts
constructed by them on pavements cannot be destroyed
because of their right to livelihood. It was held that there
cannot be estoppel against Constitution. Doctrine of estoppel
• Right to livelihood was recognized as a Fundamental Right. State
has obligation to secure to its citizens an adequate means of
livelihood. Court also held that argument of estoppel is not valid
because if taken as valid, an all powerful state could easily
tempt an individual to forgo his precious personal freedoms on
promise of immediate benefits.
• Fundamental Rights under the Constitution cannot be bartered
away. They cannot be compromised no can there be any
estoppel against the exercise of Fundamental Rights available
under the Constitution. The Constitution has conferred
Fundamental Rights not only to benefit individuals but to secure
the larger interests of the community. The doctrine of non-
waiver developed by the Supreme Court of India denotes
manifestation of its role of protector of Fundamental Rights. In
United States of America, a Fundamental Right can be waived.
 Right to Equality
• Constitution of India guarantees the right to equality through
Article 14 to 18. Article 14 is the genus and Articles 15 and 16 are
the species. Article 14 outlaws discrimination in a general way and
guarantees equality before the law to all persons. Subsequent
Articles cover specific discriminatory situations.
• Article 7 of UDHR declares that all are equal before the law and are
entitled without any discrimination to the protection of laws. By
and large the same concept of equality inheres in Article 14 of the
Constitution. Equality is a basic feature of the Constitution of India
and any treatment of equals unequally or unequals as equals will
be violation of basic structure of Constitution of India. (M Nagaraj
v Union of India)
• Article 14 bars discrimination and prohibits discriminatory laws.
Article 14 is now proving as a bulwark against arbitrary or
discriminatory state action. Article 14 strikes at arbitrary state
action; both administrative and legislative.
• Article 14 declares the State shall not deny to any person equality
before law or the equal protection of the laws within the territory of
India. Equality before law is a british expression with a negative
concept implying absence of any special privilege in favour of
individuals. Equal protection of the law is a more positive concept
implying equality of treatment in equal circumstances. In substance
the two expressions mean one and the same thing.
• The words any person in Article 14 of the Constitution denote that
the guarantee of equal protection of laws is available to any person
which includes any company or association or body of individuals.
The protection of Article 14 extends to both the citizens and non-
citizens and to natural persons as well as legal persons.
• In National Legal Services Authority v Union of India the SC held that
hijras/transgender persons who are neither male nor female will also
fall within the expression person. It directed the Centre and State
govts to treat them as socially and educationally backward classes of
citizens.
 Article 14 permits classification but prohibits class legislation
• Article 14 does not mean that all laws must be general in character.
It does not mean that same laws should apply to all persons. The
varying needs of different classes of persons would often require
separate treatment. In fact, identical treatment in unequal
circumstances would amount to inequality. So a reasonable
classification is not only permitted but it is necessary if society is to
progress.
• Article 14 forbids only class legislation. Class legislation is that which
makes an improper discrimination by conferring particular privileges
upon a class of persons arbitrarily selected from a large number of
persons. In Class legislation no reasonable distinction can be found
justifying the inclusion of one and the exclusion of other from such
privilege.
• Thus Article 14 applies where equals are treated differently without
any reasonable basis. It applies in a case where the classification is
arbitrary, evasive or artificial. It must always rest upon some real
• Classification to be reasonable must fulfill the following 2
conditions :-
i) the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together
from others left out of the group.
ii) the differentia must have a relation to the object sought to be
achieved by the act.
• There must be a nexus between the basis of classification and
the object of the Act which makes the classification. It is only
when there is no reasonable basis for a classification that
legislation making such classification may be declared
discriminatory.
• There is always a presumption in favour of the constitutionality
of a statute and the burden is upon him who attacks it to show
that there has been a transgression of constitutional principles.
A law may be declared constitutional even though it relates to a
 single individual if on account of some special circumstances or
reasons the single individual may be treated as a class by itself.
• In D.S.Nakhara v UOI it was held that the society is composed of
unequals and a welfare state has to strive by both executive and
legislative action to help the less fortunate and to improve their
condition so that the social and economic unequality in the society
may be bridged. ..T he doctrine of classification was evolved to
sustain a legislation in order to help the weaker sections of society
or some segments of the society in need of succour. The State
therefore must satisfy the court that the twin tests have been
fulfilled.
• In Mithu v State of Punjab the Court struck down Section 303 of
IPC as unconstitutional on the ground that the classification
between persons who commit murders whilst under sentence of
life imprisonment and those who commit murder whilst not under
the sentence of life imprisonment for the purpose of making
sentence of death mandatory in the former class was violative of
• In Frank Anthony Public School Employee’s Association v UOI the
Court struck down Section 12 of Delhi School Education Act as
unconstitutional on the ground that it is violative of Article 14.
Section 10 of the act required that scales of pay, etc of
employees of recognized private schools must not be less than
those of govt schools. Section 12 excluded the operation of this
and some other sections to unaided minority schools. Court
held the discrimination made by Section 12 of the Act in pay
and other conditions of service of school teachers merely on
the ground of aided schools and unaided minority schools is
violative of Article 14.
• In Javed v State of Haryana Section 175(1) (g) of Haryana
Panchayati Raj Act was challenged on grounds of violation of
Article 14. The provision disqualifies a person having more than
2 children from contesting elections in Grama Panchayats.
Supreme Court held that the classification made by it is based
 on intelligible differentia and it is having nexus with the object
of popularisation of family planning programme. Grama
Panchayats have the responsibility to implement schemes for
family welfare and it is also a mandate of the Constitution. The
provision was held to be not violative of Article 14.
• In State of Maharashtra v Indian Hotel and Restaurant Assn
Section 33 A of Bombay Police Act, put a complete embargo on
holding dance performances of any kind in any type of eating
houses. However establishments of 3 star or above enjoyed
complete exemption from this restriction. This restriction was
held to be violative of Article 14 and Article 19(1)(g). Supreme
Court held that the presumption that enjoyment of same kind
of entertainment by the upper classes leads only to mere
enjoyment and in case of poor classes it would lead to
immorality and depravity was held as an elitist presumption. As
a result of the provision even obscene dances in establishments
with 3 star rating would escape criminal liability.
• In Krishna Singh v State of Rajasthan, the validity of Marwar
Land Revenue Act, 1949 was challenged on the ground that it
applied only to Marwar portion of the State of Rajasthan and
not to the whole of the state. The Supreme Court held the law
not to be violative of Article 14. It said that the peculiar
conditions of Marwar portions of the State required a special
law to be applied there.
• In Western India Theatre v Cantonment Board, a higher tax on
cinema-house containing large seating accomodation and
situated in fashionable and busy localities where the number of
visitors are more than the tax imposed on smaller cinema house
containing less accomodation and situated in a locality where
visitors are poor and numerous, was held not to be violative of
the equal protection clause of Article 14. The classification was
based on income of cinema-houses.
• In State of West Bengal v Anwar Ali Sarkar, Section 5(1) of
 West Bengal Special Courts Act was held as unconstitutional.
The act was passed to “provide for speedier trial of certain
offences.” It prescribed a special procedure which Courts had to
follow in the trial of cases referred to it. Supreme Court held
Section 5(1) unconstitutional because it conferred arbitrary
power on the Govt to classify offences or cases at its pleasure
and the Act did not lay down any policy or guidelines for the
exercise of discretion to classify offences. The Court held the Act
did not lay down any basis for classification nor did it mention
what kinds of cases were to be directed for trial by Special
Courts. It was also held the object as stated in the Preamble of
the Act ‘Speedier trial of certain offences’ was very vague to
constitute a reasonable basis for classification.
• In re Special Courts Bill the question referred to Supreme Court
under Article 143 for its advisory opinion was whether Special
Courts Bill, 1978 proposing to set up special courts for speedy
trials of offences committed by officers of high public offices
 during the emergency of 1975-1977 is constitutionally valid.
Supreme Court ruled that it did not violate Article 14 as the
classification made by the bill was valid. The offences were
classified in terms of period and the offenders were classified in
terms of high public offices. The objective was to decide such
cases speedily. Court held offences alleged to have been
committed during emergency constitute a ‘class’ by themselves
and so do the persons who have utilized the public offices as a
cover for committing those offences.
• A Single individual may constitute a valid class – In Chiranjit Lal
v Union of India owing to the mismanagement in Sholapur
Spinning mill the management threatened to shut down the
mill. The govt of India passed the Sholapur Spinning and
Weaving Co Emergency Provisions Act empowering the govt to
take over the control and management of the company and its
properties by appointing their own directors. A Shareholder
 challenged pointing out that a single company had been
selected by law and the same treatment had not been meted
out to all other companies or shareholders in identical manner.
Supreme Court held the act as valid and explained that a law
may be constitutional even though it applies to a single
individual if on account of some special circumstances that
single individual may be treated as a class itself. Sholapur
company formed a class by itself because the mismanagement
of the company prejudicially affected the production of an
essential commodity and had caused serious unemployment
amongst laborers.
• In Ameerunnisa Begum v Mahboob on the death of the Nawab
of Hyderabad a dispute arose between two rival parties
regarding succession to his property which resulted in
protracted litigation. Hyderabad legislature passed an act by
which claims of 2 parties were dismissed and property was
adjudged to other party . Supreme Court held the Act invalid
 on the ground that it did not furnish a reasonable basis for the
discrimination made by it. There was nothing to differentiate this
case from many other succession cases which has been prolonging
for a long time. Unlike the Chiranjit lal case in this case there was
no community interest involved.
Modern Concept of Equality
• In E.P.Royappa v State of Tamil Nadu Supreme Court has laid down
a new concept of equality. It was held that equality is the antithesis
to arbitrariness. Where an act is arbitrary, it is implicit in it that it is
violative of Article 14. Article 14 strikes at arbitrariness in state
action and ensures fairness and equality of treatment. The
doctrine of classification is not the end of Article 14. If the
classification is not reasonable the impugned legislation or
executive action would plainly be arbitrary and Article 14 would be
breached.
• In Ajay Hasiya case Supreme Court held that allocation of 1/3rd of
total marks for oral test was plainly arbitrary and unreasonable.
 In the instant case a large no of candidates were admitted on
the basis of high marks obtained in the interview while they had
obtained low marks in the written examination. Court held oral
interview cannot be considered as a satisfactory test for
assessing the capacity and caliber of candidates as it is
subjective and based on first impression.
• In Air India v Nargesh Meerza Regulation 46 of Air India
Regulation provided that an Air Hostess would retire from
service upon attaining the age of 35 years, or on marriage if it
took place within 4 years of service or on first pregnancy. The
Managing Director had the discretion to extend service by one
year at a time upto the age of 45. Supreme Court struck down
the regulations on age of retirement and pregnancy bar on the
services of air hostess as unconstitutional on the ground that
the conditions laid down therein were manifestly unreasonable
and arbitrary. It amounted to compelling the Air Hostess not to
have children and thus interfered with ordinary course of
 human nature. The provision for extension of service of Air
Hostess at the option of MD conferred discretionary powers
without laying down any guidelines or principles and it was also
struck down as unconstitutional. However it was held that
there was no unreasonableness or arbitrariness in the
provisions of the regulations which necessitates that an Air
Hostess cannot marry within first 4 years of service.
• A common tendency in modern democracies is to confer
discretionary power on the government or administrative
officers. In order to ensure that discretion is properly exercised,
it is necessary that statute in question lays down some norms or
principles according to which administrator has to administer
discretion. Many a time the statutes do not do this and leave
the administrator free to exercise his the discretion. This creates
the danger of official arbitrariness which is subversive of
doctrine of equality. If Power conferred by statute on any
authority of the State is vagrant and unconfined and no
 standards or principles are laid down by the statute to guide
and control the exercise of such power, the statute would be
violative of equality clause, because it would permit arbitrary
exercise of power which is antithesis of equality before law.
• It means that legislature cannot validly enact a provision
conferring arbitrary power on the Administration to be
exercised by it in its absolute discretion. When a statute vests
unguided and unrestricted power in an authority to affect the
rights of a person without laying down any policy or principle, it
would be affected by the vice of discrimination.
• Whenever there is arbitrariness in state action, Article 14
springs into life and judicial review strikes down that action.
Equality and arbitrariness are sworn enemies. Article 14 strikes
at arbitrariness in state action and ensures fairness and equality
of treatment. Every action of the State or instrumentalities must
be informed by reason. Article 14 guarantees a right of hearing
 to the person adversely affected by an administrative order.
Maneka Gandhi case is an authority for the proposition that the
principles of natural justice are an integral part of guarantee of
equality assured by Article 14.
• A welfare state has wide power to regulate and dispense leases,
licences, contracts etc. Even while conferring a benefit or largess,
or giving a contract, the government is subject to Article 14. The
government cannot lay down arbitrary and capricious standards
for the choice of persons with whom alone it will deal. Where the
govt is dealing with public, whether by giving jobs or entering
into contracts or issuing quotas or licences or granting any other
form of largess, the govt cannot act in its sweet will, like a private
person but the action must be in conformity with standard or
norm which is not arbitrary, irrational or irrelevant. In R.D.Shetty
v International Airport Authority Court held that when the govt
lays down some norms or standards of eligibility, then govt
cannot award the contract to someone not fulfilling the
 Article 15
• Article 15(1) directs the state not to discriminate against a
citizen on grounds only of religion, race, caste, sex place of birth
or any of them. The guarantee under Article 15 is available to
citizens only and not to every person like in Article 14.
• The word only used in Article 15(1) indicates that discrimination
cannot be made merely on the ground that one belongs to a
particular caste, sex, etc. It follows from this that discrimination
on grounds other than race, religion, caste, sex, place of birth is
not prohibited. It means that discrimination based on any of
these grounds and also on other grounds is not hit by Article
15(1).
• In State of Rajasthan v Thakur Pratap Singh under Section 15 of
Police Act 1861, the ‘Harijan’ and ‘Muslim’ inhabitants of the
village, in which additional force was stationed, were exempted
from the obligation to bear any portion of the cost of that force.
• The State government upon receiving the information that
inhabitants of certain villages in certain districts of Rajasthan
were harbouring dacoits and were receiving stolen property had
acted under Section 15 of Police Act. The State contended that
muslim and harijan inhabitants have been exempted from
liability to bear any portion of cost of additional force because
they were found to be peace loving and law abiding citizens, in
the 24 villages additional forces were posted. But even the state
had no case that there were no persons belonging to other
communities who were peace loving and law abiding. Hence
Supreme Court decided that the notification was contrary to
Article 15(1).
• In Shaikh Hussain Shaik Mohammed case (AIR 1951 Bom 285)
the petitioner was externed from Bombay under an order
passed by Assistant Commissioner of Police. Section 27 (2A)
enables the Police Commissioner to pass an order of
externment if a person has not been born in Greater Bombay
 and if he has been convicted of offences punishable under Chapter
12, 16 or 17 of IPC. It was open to Police Commissioner to take
action against a person under Section 27(2A) merely because he
has once been convicted of offences under those chapters in IPC
provided he was born outside Greater Bombay. Section 27 (2A) did
discriminate against persons who have been born outside Greater
Bombay and this was held to be contrary to provisions of Article
15(1). Therefore the provision was held to be void under Article
13.
• In D.P.Joshi v State of M.B it was held that a law which
discriminates on the ground of domicile does not violate Article
15(1). In this case a State Medical College rule which required
capitation fee from non-Madhya Bharat students for admission in
college was held to be valid as the ground of exemption was
domicile and not place of birth. It was held Place of birth is
different from domicile. What Article 15(1) prohibits is
discrimination based on place of birth and not based on domicile.
• Article 15(2) declares that no citizen shall be subjected to any
disability, restriction, or condition on grounds only of religion,
race, caste, Place of birth or any of them with regard to a)
access to shops, public restaurants, hotels and places of public
entertainment or b) the use of wells, tanks, baths and place of
public resort maintained wholly or partly out of State funds or
dedicated to use of general public.
• It is to be noted that while 15(1) of Article prohibits
discrimination by the State, 15(2) prohibits both the state and
private individuals from making discrimination.
• Article 15(3) declares that State is not prevented from making
any special provision for women and children. Article 15(3) and
15(4) constitutes exceptions to Article 15(1) and 15(2). Women
and Children require special treatment in account of their very
nature. Article 15(3) recognises the fact that women in India
have been socially and economically handicapped for centuries,
 and they cannot fully participate in the socio-economic
activities of the nation on an equal footing. The purpose of
Article 15(3) is to eliminate socio-economic backwardness of
women and empower them in such a manner to as to bring
about effective equality between men and women. Article
15(3) thus relieves the State from the bondage of Article 15(1)
and enables it to make special provision to accord socio-
economic equality to women.
• Thus women can be given special maternity relief and a law to
this effect will not violate Article 15(1). It would not be in
violation of Article 15 if educational institutions are established
by the State exclusively for women. The reservation of seats for
women in college does not offend Article 15(1).
• In Yusuf Abdul Aziz v State of Bombay Section 497 of IPC which
only punishes a man for adultery and exempts the woman from
punishment even though she may be guilty as an abettor was
held to be valid. Supreme Court observed that Article 14 and 15
 read together validate the last sentence of Section 497 IPC,
which prohibits the women from being punished as an abettor
of the offence of adultery.
• In Govt of AP v PB Vijaya Kumar the SC rules that under Article
15(3), the State may fix a quota for appointment of women in
govt services. A rule saying that all other things being equal,
preference would be given to women to the extent of 30% of
the posts was held valid with reference to Article 15(3). It was
argued before the Court that no reservation could be made in
favour of women as it would amount to discrimination on the
ground of sex in public employment which would be violative of
Article 16(2). Court held that “to say that under Article 15(3) job
opportunities for women cannot be created would be to cut at
the very root of the underlying inspiration behind this Article.
Making special provisions for women in respect of employment
or posts under the state is an integral part of Article 15(3).”
• The Special provision which the State may make to improve
women’s participation in all activities under the supervision and
control of the state can be in the form of affirmative action or
reservation. Thus Article 15(3) includes the power to make
reservations for women. Under Article 15(3) both reservation
and affirmative action are permissible in connection with
employment or posts under the State. The power conferred by
Article 15(3) is wide enough to cover the entire range of state
activity including employment under the State.
• In Salil Bali v UOI the SC held the provisions of Juvenile Justice
(Care and Protection of Children) Act, 2000 fixing 18 years as
the upper age limit for treating persons as Juveniles, was held
to be constitutionally valid. The basis of this fixation is Article 1
of Convention on Rights of Child. India is not only a signatory
but also ratified it on 11th December 1992. The essence of
Juvenile Justice Act and Rules is restorative and not retributive.
• Article 15(4) is another exception to Article 15(1) and 15(2). It
was added by Constitution first amendment act, 1951 due to
the decision in State of Madras v Champakam Dorairajan. In
that case Madras Government had by a G.O reserved seats in
State Medical and Engineering colleges for different
communities in certain proportions on the basis of religion, race
and caste. The govt defended it for promoting social justice for
all sections of people as required under Article 46. The Supreme
Court held the G.O void because it classified students on the
basis of caste and religion. It was also held the directive
principles cannot override Fundamental Rights.
• Article 15(4) confers only discretion and does not create any
constitutional obligation. Hence no mandamus can be issued
either to provide for relaxation or for reservation. A major
difficulty raised by Article 15(4) is regarding the determination
of who are ‘socially and educationally backward classes.’ Article
15(4) does not lay down any criteria to designate backward
 classes. It leaves the matter to the state to specify backward
classes, but the Courts can go into the whether the criteria used
by the State for the purpose is relevant or not.
• In M.R.Balaji v State of Mysore the Mysore govt issued an order
reserving 68% of the Seats in Medical and Engineering Colleges
for backward classes and there was sub-classification within the
backward classes. It was clarified by the Court that
‘Backwardness’ as envisaged by Article 15(4) is both social and
educational and not either social or educational. Though caste
may be a relevant factor it cannot be the sole test for
ascertaining whether a particular class is a backward class or
not. Article 15(4) speaks of class and not caste and class and
caste are not synonymous. It was also held that the special
provision should be less than 50% and the sub-classification
made by order between ‘backward classes’ and ‘more backward
classes’ was not justified under Article 15(4).
• In Indira Sawhney v Union of India (mandal commission case) the
Supreme Court held the sub-classification of backward classes into
more backward classes and backward classes can be done but as a
result of sub-classification the reservation cannot exceed 50%. It
was also held since caste represent an existing identifiable social
group it can well begin with Castes. Once a Caste satisfies the
condition of backwardness it becomes class. Creamy layer has to be
excluded from the application of special provision. It can be on the
basis of income or extent of holding.
• Article 15(5) was added by the Constitution 93rd amendment. This
was introduced to overrule the judicial decision in T.M.A Pai
Foundation v State of Karnataka wherein it was held that State
could not make reservation of seats in admissions in privately run
educational institutions. Article 15(5) was introduced to nullify the
effect of this judgment. It enabled the State to make provision for
reservation for any socially and educationally backward class of
citizens or for SC/ST in admission to private educational institutions
except the minority educational institutions.
• In Pramati Educational and Cultural Trust v Union of India it
was held that by excluding the minority institutions referred in
Article 30(1) of the Constitution, the secular character of India is
maintained. They are separate class and their exclusion from
Article 15(5) is not violative of the Constitution.

ARTICLE 16
• Article 16(1) guarantees equality of opportunity to all citizens in
matters relating to employment or appointment to any office
under the State. Article 16(2) states that no citizen can be
discriminated against or be ineligible for any employment or
office under the state, on the grounds only of religion, race,
caste sex, descent place of birth or residence or any of them.
• Article 16 deals with a very limited subject, public employment.
Article 16 is not attracted in the manner of appointment in a
private establishment. Article 15 is more general in nature and
and covers many varied situations of discrimination. The
prohibited grounds under Article 16(2) is somewhat wider than
those under Article 15(2) because Article 16(2) prohibits
discrimination on the additional grounds of descent and residence
apart from religion, race, caste sex and place of birth.
Article 14 is the genus and 16 is the species. Article 16 is only an
instance of application of general rule of equality laid down in
Article 14. Article 16 does not bar a reasonable classification of
employees. For ex; the distinction drawn between Commissioned
Officers on the one hand and the non-commissioned officers on
the other is not discriminatory or irrational. Article 16 is not
violated if different pay, perks or other privileges are granted to
these officers. Article 16 only means that those who are similarly
circumstanced are entitled to equal treatment. The expression
‘matters related to employment’ in Article 16(1) is not restricted
only to initial stage of appointment it includes all matters in
relation to employment such as salary, leave, promotion and even
• Reasonable rules can be made qualifications laid down or
reasonable tests employed for making selection for any
employment. It is permissible for the govt to prescribe
appropriate qualifications for appointment or promotion to
various posts. Educational qualification is an acceptable
criterion for determining suitability for appointment to a
particular post or cadre. Educational qualifications can be made
the basis for classification of employees in State service in the
matter of pay scales, promotion etc.
• Appointments based on the hereditary principle are bad
because ‘descent’ is a prohibited ground of discrimination
under Article 16(2). In Gazula Dasharatha Rama Rao v State of
Andhra Pradesh Section 6(1) of Madras Hereditary Village
Offices Act was held unconstitutional. The provision provided
that while choosing a new Village Munsif the Collector shall is
bound to select a person from the family of last occupant of the
post. It was held by the Court that Section 6(1) of the Act
 principle of discrimination on the basis of descent only and was
held to be in contravention of Article 16(2). The Village Munsif
was held to be an office under the state mentioned in Article
16(2).
• Appointment on compassionate grounds of a son, daughter, or
widow to assist the family to relieve economic distress because
of sudden demise in harness of govt servant has been held to
be valid over Articles 16(1) and Article 16(2). Such an
appointment is to be made according to rules and guidelines
that may have been framed by the concerned authority. No
person can claim appointment on compassionate grounds in
disregard of such rules and guidelines.
• Supreme Court has deduced the principle of equal pay for equal
work from Articles 14, 16 and 39(d). Thus where all relevant
considerations are the same, persons holding identical posts
and discharging similar duties should not be treated
differentially.
• Under Article 16(4) the State may make reservation of
appointments or posts in favour of any backward class of
citizens which in the opinion of the State is not adequately
represented in the public services under the State. The term
State denotes both the Central and State governments and their
instrumentalities. Article 16(4) is an enabling provision
conferring a discretionary power and it does not impose a
Constitutional duty nor confers any fundamental right on any
one for claiming reservation.
• Indra Sawhney v UOI known as the Mandal Commission case is
a significant pronouncement of the Supreme Court on the
question of reservation of posts for backward classes. Mandal
Commission was appointed by the govt of India in terms of
Article 340 of the Constitution in 1979 to investigate the
conditions of socially and educationally backward classes. One
of the recommendations of Commission was that for OBCs 27%
of government jobs be reserved. No action was taken on the
basis of the Mandal Report however, on 13 August 1990 VP
Singh Government at the centre issued an office memorandum
accepting the Mandal Commission recommendation. The
meomrandum led to widespread disturbances in the country
and the Narasimha Rao govt modified the above memorandum.
A 9 judge bench considered the validity of this memorandum
and few of the significant points emerging from this judgment
are:
i) Article 16(4) is not an exception to Article 16(1) but only an
instance of classification implicit and permitted in Article 16(1).
Even without Article 16(4) State could have classified backward
class of citizens in a separate category for special treatment.
Article 16(1) is a facet of Article 14. Just as Article 14 permits
reasonable classification so does Article 16(1).
ii) Reservations for other classes can be provided under Article
16(1). Article 16(4) is exhaustive of the provisions that can be
made in favour of the backward classes in matter of
employment. No reservations can be provided outside Article
16(4) in favour of backward classes.
iii) Once a Caste satisfies the criteria of backwardness, it
becomes a backward class for purposes of Article 16(4). Caste
may be used as a criterion because caste is often a social class in
India. Backwardness under Article 16(4) need not be social as
well as educational under Article 15(4). Backward class under
Article 16(4) is not same as socially and educationally backward
class in Article 15(4). Backwardness contemplated by Article
16(4) is mainly social backwardness. A backward class cannot
be identified only and exclusively with reference to economic
criterion. There is no constitutional bar in the State categorizing
the backward classes as backward and more backward.
iv) Court recommended the exclusion of Creamy Layer from the
benefit of reservation. Creamy layer means the socially
advanced members of a backward class. The govt can decide
the basis of exclusion.
v) The reservation in favour of SC, ST and other backward
classes (OBC) under Article 16(4) was described as Vertical
reservation whereas reservation made in favour of physically
handicapped can be referred as horizontal reservation. Even
after providing for the horizontal reservations, the overall
percentage of reservations in favour of backward class of citizen
remain the same.
vi) The Court has held that rule of reservation may not be
applicable to certain services and posts. The Court has included
the following posts in this category. Defence Services, Posts of
Pilots, all technical posts in establishments engaged in Research
and Development including those connected with atomic energy
and space and establishments engaged in production of defence
equipments.
vii) Court allowed the govt to notify which classes among the
several designated OBC’s are more backward and apportion
reserved vacancies among ‘backward’ and ‘More backward’.
 VIII) Court directed the establishment of a permanent body at
the Centre and the State which can look into complaints of
wrong inclusion or non-inclusion of groups, classes in the list of
OBC’s. Court held that there should be a periodic revision of lists
of OBC’s so as to exclude those who have ceased to be
backward or to include new classes.
IX) The total reservation cannot exceed 50% in one year. Unless
there is some extra-ordinary situation reservation under Article
16(4) cannot exceed 50% of the posts. Some relaxation in this
rule can be made with respect to people residing in far-flung
and remote areas of the Country who need some relaxation in
this rule to be a part of mainstream of national life.
• Article 335 of Indian Constitution states that the claims of
SC/ST in appointments to services and posts shall be taken into
consideration along with maintenance of efficiency of
administration. Reservations in favour of SC/ST or OBC can be
made only if it will not undermine the efficiency of
 administration.
AFTER INDRA SAWHNEY CASE
Article 16(4A)
• In Indra Sawhney it was opined that Article 16(4) was confined
to initial appointments only and it did not permit reservations in
the matter of promotions. By way of 77th amendment Article 16
4A has been added to the Constitution to allow reservation in
promotion to Scheduled Castes and Scheduled Tribes. However
no reservation can be made in respect of promotion posts for
the OBC’s.
Article 16 (4B)
• By way 81st amendment Article 16 (4B) was added to the
Constitution which envisages that unfilled vacancies in a year
are to be carried forward to subsequent years and the rule of
50% reservation laid down by the Supreme Court is applicable
only to normal vacancies and not to vacancies carried forward.
 Article 17 – Abolition of Untouchability
• Article 17 abolishes ‘untouchability’ and forbids its practise in
any form. The enforcement of any disability arising out of
untouchability is to be an offence punishable in accordance
with law.
• Parliament enacted the Untouchability Offences Act, 1955
inorder to remove untouchability from the society. It has now
been renamed as Protection of Civil Rights Act, 1955. If any
disabilities like preventing any person from entering any place
of public worship, or social disabilities like preventing access to
shop, public restaurants or places of public enterntainment and
refusing to admit persons to hospitals and refusing to sell goods
or render services to any person on grounds of untouchability is
a punishable offence under the Act.
• In Asiad Project Workers Case the Supreme Court held that
fundamental rights under Article 17 are available against private
individuals and it is the constitutional duty of the State to
 ensure that these rights are not violated. It should also be noted
that Article 15(2) helps in eradication of untouchability. In State
of Karnataka v Appa Balu Ingale the accused restrained the
complainants from taking water from a newly dug-up bore well
on the ground that they were untouchables. Supreme Court
upheld the Conviction under Protection of Civil Rights Act.
• Inorder to prevent the atrocities against SC/ST, Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act 1989 was
passed to eradicate those offences with speedy trial.
ARTICLE 18 – ABOLITION OF TITLES
• Article 18(1) prohibits the conferment of ‘titles’ by the State
with the exception of military and academic distinctions. By this
Article the framers of the Constitution sought to put an end to
practice followed by British in respect of conferment of titles.
The intention was to prohibit titles of nobility and all other titles
that carry suffixes or prefixes as they create a distinct unequal
 distinct unequal class of citizens. It is not intended that titles
like Field Marshal, Admiral, Chief Justice or Doctor indicating an
office or profession be discontinued. Titles like Maharaja,
Nawab, Dewan Bahadur etc are meant to be interdicted by
Article 18(1).
• In Balaji Raghavan v UOI it was contended that National
Awards ( Bhrata Ratna, Padma Sri, Padma Vibhushan) are titles
within the meaning of Article 18 of the Constitution and hence
the govt should be prevented from handing them over.
However SC held that National Awards are not violative of
principles of equality. Our Constitution prohibits hereditary
titles of nobility as they create a special class of people who
have access to special privileges. In view of clause(f) Article 51-A
it is necessary that there should be a system of award and
decorations to recognize excellence in performance of duties.
However awards conferred by the State are not to be used as
suffixes or prefixes.
• Article 18(2) prohibits a citizen from accepting any title from
foreign state. 18(3) prohibits a foreigner holding any office of
profit or trust under the State from accepting any title from any
foreign state without the consent of the President.
• Regulation 10 related to National Awards states that the
President may cancel and annul the awards of the decoration to
any person and thereupon his or her name shall be erased from
register and the awardee shall be required to surrender it, in
case of any misuse.
 Right to Freedom – Article 19
• The word ‘freedom’ in Article 19 of the Constitution means
absence of control by the State. Article 19(1)a-g guarantee to
Indian Citizens 6 freedoms, viz, of speech and expression,
peaceable assembly, association, free movement, residence and
practising any profession and carrying on any business.
Orginally Article 19 contained 7 freedoms. The freedom to
acquire and hold property was deleted in 1978 by 44 th
amendment.
• However, the freedoms guaranteed under Article 19(1) are not
absolute. Clauses (2) to (6) of Article 19 lay down the grounds
and the purposes for which a legislature can impose ‘reasonable
restriction’ on the rights guaranteed under Article 19. State
cannot travel beyond the contours of clauses (2) to (6) of Article
19 of the Constitution in curbing the fundamental rights
guaranteed under Article 19(1). A foreigner enjoys no rights
under Article 19. Article 19 confers certain Fundamental Rights
 on citizens and not on non-citizens of India. A foreigner does,
however, enjoy the fundamental right to life and personal
liberty under Article 21. It is available not only to every citizen
of this country but also to others.
• The restrictions under Article 19(2) to (6) can be imposed only
by or under the authority of law. No restriction can be imposed
by executive action alone without there being a law to back it
up. For adjudging the reasonableness of a restriction, the Courts
consider factors like duration and extent of restriction,
circumstances under which imposition has been authorised, the
nature of the right infringed, underlying purpose of the
restrictions imposed, extent and urgency of the evil sought to
be remedied thereby.
• A restriction should strike a proper balance between the
freedom guaranteed by any of the clauses and the social
control, so that freedom is restricted only to the extent
necessary to protect society of which citizen is only a part.
• The principle of proportionality has to be followed. Courts
would consider whether the restriction imposed on the
legislation on the Fundamental Right are disproportionate to
the situation and are ‘not the least restrictive of the choices’.
The restrictions should not be arbitrary or of an excessive
nature and it should strike a proper balance between
Fundamental Right guaranteed and restriction imposed
thereon. The restriction must have a direct and proximate
relation with the object of the Act.
• Any restriction imposed has the effect of promoting or
effectuating a Directive Principle can be presumed to be a
reasonable restriction in public interest. The reasonableness will
be tested both from procedural and substantive aspects. Onus is
on the State to justify that restrictions imposed on any
Fundamental Right guaranteed under Article 19 is reasonable
under Article 19(2) to (6). Thus Judges enjoy a broad discretion
while judging the reasonableness and this had led to
 Freedom of Speech and Expression – Article 19(1)(a)
• Freedom of speech is described as the mother of all other
liberties. Freedom of speech and expression opens up channels
of free discussion and it plays a crucial role in the formation of
public opinion on social, political and economic matters. It
embraces within its scope freedom of propagation and
interchange of ideas which would help formation of ones
opinion.
• Every citizen is entitled to participate in democratic process and
in order to enable him to intelligently exercise his right of
making a choice, free and general discussion of public matters is
absolutely essential.(J.Bhagwati in Maneka Gandhi case).
• Article 19(1)a guarantees to all citizens right to ‘freedom of
speech and expression.’ Under Article 19(2) reasonable
restrictions can be imposed on the exercise of this right. It
includes the freedom of communication and right to propagate
 or publish opinion. It also covers the right to paint or sing or
dance or to write poetry or literature. It also covers right to
choose one’s personal appearance or dress subject to Article
19(2). The freedom includes freedom to communicate or
circulate one’s opinion without interference to as large a
population as is possible.
• In PUCL v UOI [(2003) 4 SCC 399] it was held that securing
information on the basic details concerning candidates
contesting for elections to Parliament or State legislature
promotes freedom of expression and therefore right to
information forms an integral part of Article 19(1)(a). This right
to information under Article 19(1)(a) is not absolute and is
restricted by reasonable restrictions under Article 19(2) and is
further limited by right to privacy under Article 21.
• There is no geographical limitation to freedom of speech and
expression. This freedom is exercisable not only in India but
outside and if state action sets up barriers to its citizens
freedom of expression in any country in the world. In Tata Press
ltd v Mahanagar Telephone Nigam ltd MTNL was a licensee
under the Indian Telegraph Act who had the duty to control
telecommunication services within Delhi and Bombay. By rule
458 of Indian Telegraph rules, only mtnl could publish telephone
directories in the area of service. The Tatas were engaged in the
publication of TATA pages which was a buyers guide comprising
of advertisements given by businessmen traders and
professionals. MTNL wanted a permanent injunction against
this publication as according to them there was a breach of rule
458.
SC held that society has a strong interest in free flow of
commercial information. Article 19(1) (a) not just guarantees
freedom of speech it protects right of individual to listen and
receive such speech. Publication of advertisements was also
held to be protected under Article 19(1)(a). It was held MTNL
cannot restrict publication of Tata pages since it was a
 speech which is deceptive, unfair misleading or untruthful
would be hit by Article 19(2).
• In LIC v ManubhaI D Shah the respondent undertook research
into the working of LIC and published a paper depicting the
discriminatory practice followed by LIC. A member of LIC
published a counter in a magazine called Yogakshma which was
published by LIC. The respondent prepared a rejoinder and
requested it to be published in Yogakshma. But his request was
not accepted. The respondent contended that the refusal to
publish his rejoinder would violate fundamental rights under
Article 14 and Article 19(1)(a). Supreme Court held that since
LIC is a State within meaning of Article 12 it has to function in
the best interest of the community. Since LIC’s house magazine
is financed from public funds the refusal to violate respondents
rejoinder was unfair and arbitrary and is violative of
fundamental right under Article 19(1)(a) of the Constitution.
The right extends to use of media to answer criticism levelled
 against the views propagated by him. Freedom to air one’s
views is the lifeline of any democratic institution and any
attempt to stifle, suffocate or gag this right would sound a death
knell to democracy.
• Demonstration or picketing are visible manifestation of one’s
ideas and and in effect a form of speech and expression.
Demonstrations or picketings are protected under Article 19(1)
(a) provided they are not violent and disorderly. It has been
held that there is no fundamental right to resort to strike. Right
to strike is not included within the ambit of freedom of speech.
• In CPI(M) v Bharat Kumar and Ors the SC upheld the Full Bench
decision of Kerala High Court and held that calling for ‘Bundh’
by political party or organization is unconstitutional and hence
is illegal as it violates the right under Article 19 and Article 21.
No political party can call for Bundh on the ground that it is a
part of Fundamental Right under Article 19(1)(a).
• In K.A.Abbas v UOI the petitioner challenged the validity of prior
censorship of films under Cinematograph Act. His film ‘Tale of 4
Cities’ was denied a U Certificate. He claimed that since other forms
of speech and expression were not subject to pre-censorship there
is a violation of right to equality also. Court however held pre-
censorship as justified under Article 19(2) because motion pictures
were different from other forms of expression. They can stir up
emotions deeply than any other product of art. Hence the process
of film classification was held valid.
• In S.Rangarajan v Jagjivan Ram High Court revoked the U
certificate given to a film by Censor Board. The argument was that
film would create law and order problems in the state of TN
because of its treatment of issue of reservation. SC held state
cannot plead its inability to handle hostile audience problem.
Freedom of expression cannot be suppressed on account of threat
of demonstration and threats of violence. It was also held open
criticism of govt policies is not a ground for restricting expression.
• In Kedarnath v State of Bihar the meaning of Section 124A IPC
which deals with the offence of Sedition was discussed. The accused
in this case had given a speech criticizing the Congress Party.
Offence of Sedition is defined as exciting disaffection towards
government. However comments expressing disapprobation of the
measures of govt will not fall under this offence. It was held that the
gist of the offence of sedition is incitement to violence. The acts or
words complained must incite public disorder. This is not made an
offence in order to minister the wounded vanity of Governments
but the gist of the offence is incitement to violence.
• In Bijoe Emmanuel v State of Kerala the SC held that no person can
be compelled to sing National Anthem. Article 19(1)(a) includes the
freedom of silence. In this case 3 children belonging to Jehovas
witnesses were expelled from school for refusing to sing national
anthem. The children stood up respectfully when the National
Anthem was sung. SC noted that they did not commit any offence as
they did not show insult to national anthem and held their
expulsion is violation of their FR under Article 19(1)(a).
 Freedom of Press
• The fundamental right to freedom of press is implicit in the
freedom of speech and expression and is essential for political
liberty and proper functioning of democracy. Unlike the
American Constitution Article 19(1)(a) of Indian Constitution
does not expressly mention the liberty of press but it has been
held that liberty of press is included in freedom of speech and
expression. The liberty of press means liberty to print and
publish what one pleases, without previous permission.
• Freedom of press is not confined to periodicals and
newspapers. It includes pamphlets and circulars and every sort
of publication which affords a vehicle of information and
opinion. Freedom of press means freedom from interference
with content and circulation of newspapers. The purpose of
press is to advance public interest by publishing facts and
opinions without which a democratic electorate cannot make
responsible judgments.
• In Romesh Thapper v State of Madras the publisher editor and
printer of English Journal called ‘Crossroads’ approached SC
against a ban imposed on circulation of magazine by Madras
govt under Madras Maintenance of Public Order Act, 1949.
Magazine was published in Bombay but its entry and circulation
in Madras state was banned. The Act allowed for a ban on
circulation on grounds of Public Safety. However Article 19(2)
did not contain Public Safety or Public Order at that time. Govt
argued that Public Safety meant Security of State and it would
be covered by Article 19(2). However SC held that Public Safety
would deal with minor matters and it cannot be said to include
grave issues relating to Security of State. For a law to be valid it
was held it should be for protecting and preserving the Security
of State and not just for Public Safety. Order was held invalid.
• Court held that freedom of press includes freedom to circulate
and the provision prescribing the ban was outside restrictions in
Article 19(2). As a consequence of this judgment Public Order
 was inserted in Article 19(2) by I Constitutional Amendment.
• In Sakal Papers ltd v UOI the Newspaper (Price and Page) Act
1956 empowered Central govt to regulate price of newspapers
in relation to their pages and size. It also gave the power to govt
to regulate allocation of space for advertisements. As a
consequence of the Act the newspapers were forced to either
raise their prices or to reduce the total no.of pages. The
petitioners pointed out that increasing the price would affect
their Circulation which is in violation of Article 19(1)(a).
Government claimed that circulation will not be adversely
affected by increase in price. They pleaded that these measures
were taken to ensure that newcomers have a fair chance of
success in business.
• Supreme Court held that FR under Article 19(1)(a) guarantees
right to decide volume of circulation. If the space for
advertisement is curtailed, Price of newspapers would go up
which would result in circulation going down. Article 19(1)(a)
 cannot be curtailed or infringed for promoting welfare of
section of people unless it can be justified by Article 19(2). Even
though the object of the act was to prevent monopolies,
legitimacy of result intended to be achieved does not imply that
every means is permissible. Even if the end is desirable, the
means employed must not transgress limits laid down by the
Constitution. The entire order was struck down as
unconstitutional.
• In Bennett Coleman and Ors v UOI the question to be decided
was whether the newsprint policy for 1972-73 was violative of
Article 19(1)(a). There were restrictions imposed on import of
newsprint. Also the quantity of newsprint which could be used
was to be fixed by the Controller. It prohibited a common
ownership unit from starting new paper or new edition and the
maximum no of pages were limited to ten. Such a newspaper
was prohibited from increasing number of pages by reducing
circulation even within admissible quota. SC held
 that the individual rights of freedom of speech and expression
of editors, Directors and share holders are all expressed through
newspapers through which they speak. An examination of
provisions of newsprint policy indicated that the petitioners
Fundamental Rights had been infringed by restrictions on page
limit, prohibition against new newspapers and editions.
• The effect and consequence of impugned policy upon
newspapers is directly controlling growth and circulation of
newspapers. Direct effect is restriction upon circulation of
newspapers, direct effect is upon growth of newspapers
through pages. Direct effect is that newspapers are derived of
their area of advertisement and they are exposed to financial
loss. Freedom of press includes right of people to read. Fixation
of page limit will deprive newspapers of their economic vitality
but also restrict freedom of expression by reducing coverage of
news and views.
• In Express Newspapers v UOI (AIR 1958 SC 578) the validity of
Working Journalists Act, 1955 was challenged. The Act was
enacted to regulate conditions of service of persons employed
in newspaper industry eg payment of gratuity, hours of work,
leave, fixation of wages etc. It was contended that the Act
would adversely affect the financial position of a newspaper
which might be forced to close down and would violate Article
19(1)(a). However it was held by the SC that the act was passed
to ameliorate the service conditions of workmen in newspaper
industry and the restrictions imposed were reasonable under
Article 19(2).
Grounds of Restrictions
• Article 19(2) contains the grounds on which reasonable
restriction can be imposed on freedom of speech and
expression :-
 i) Sovereignity and integrity of India
ii) Security of the State
iii) Friendly relations with Foreign States
iv) Public Order
v) Decency or Morality
vi) Contempt of Court
vii) Defamation
viii) Incitement of Offence
• Sovereignity and integrity of India was added to 19(2) by way of
16th Constitutional Amendment. Freedom of Speech and
expression can be restricted so as not to permit any one to
challenge integrity or sovereignity of India or to preach cession
of any part from the Union.
• Security of the State refers to only serious and aggravated forms
of public disorder like rebellion or waging war against the State.
• Friendly relations with foreign state is a ground added to
Constitution by the 1st amendment. The object behind the
provision is to prohibit unrestrained malicious propaganda
against a friendly foreign state which may jeopardise the
maintenance of good relation between India and that State.
• Public Order was added to the Constitution by the 1 st
amendment, in order to meet the situation arising from
Supreme Courts decision in Romesh Thapper case. In that case
it was held that ordinary or local breaches of public order were
no grounds for imposing restriction on freedom of speech and
expression guaranteed by the Constitution. Public Order is
something more than ordinary maintenance of law and order. If
an act affects merely an individual it is not disturbing public
order, however if it disturbs the public tranquility or public
peace it disturbs public order. Ex communal disturbances or
Strikes
• Sections 292 to 294 IPC provide instances of restrictions on
freedom of speech and expression in interest of decency and
morality. These sections prohibit the sale or distribution or
exhibition of obscene books etc in public. The test applied in India
to determine whether a matter is obscene is the community
standard test developed in Aveek Sarakar v State of WB.
• Contempt of Court can be Civil Contempt or Criminal contempt.
Civil Contempt means wilful disobedience to any judgment,
direction order of the court. Criminal contempt means publication
of any matter which scandalises or tends to lower the authority of
Court or any act which prejudices judicial proceedings.
• Incitement to an offence was also added to Constitution by 1 st
amendment. An offence mean any act or omission made
punishable by any law for the time being in force. What
constitutes incitement will have to be determined by the Court
with reference to facts and circumstances.
 Right to Assemble peaceably and without arms – Article 19(1)(b)
• Article 19(1)(b) guarantees to citizens of India the right to
assemble peaceably and without arms. Under Article 19(3),
however the State can make any law imposing reasonable
restrictions on the exercise of this right in the interest of public
order and sovereignity and integrity of India. In T. Rangarajan v
State of Tamil Nadu it was made clear that there is no
fundamental right to strike.
• Section 141 IPC describes when an assembly can become
unlawful. An assembly of 5 or more persons becomes an
unlawful assembly if their common object is to resist execution
of any law or if it is to commit any mischief or criminal trespass.
• Section 144 CrPC empowers Magistrate to restrain an assembly,
meeting or procession if there is a risk of obstruction,
annoyance or injury to any person lawfully employed or danger
to human life, health or safety or disturbance of public
tranquility
 Freedom to form Association – Article 19(1)(c)
• Article 19(1)(c) of the Constitution of India guarantees to all its
citizens the right to form associations or unions or Co-operative
Societies. Under Article 19(4) state may impose reasonable
restrictions on this right in the interest of Public Order or
morality or sovereignity and integrity of India. The right includes
the right to form companies, societies, partnership, trade union
and political parties. The freedom to form association implies
freedom to join or not to join an association or union.
• In O.K.A Nair v UOI the question discussed was whether civilian
employees such as cooks, barbers, mechanics, boot makers,
tailors etc who were attached to Defence Establishments have a
right to form associations or unions. It was contended on their
behalf that they were not members of Armed Forces within the
meaning of Article 33. The Supreme Court rejected the
contention of Appellants and held the civilian employees of the
defence establishments answer the description of members of
 Armed Forces within Article 33 and therefore were not entitled
to form trade unions.
• Right to form association is fundamental right but recognition of
association is not a fundamental right and Parliament can,
therefore, by law impose restrictions on such right. In State of
Madras v V G Row an amendment to Criminal Law Amendment
Act 1908 provided that if state govt was of the opinion that any
association interfered with administration of law or it
constituted a danger to the public it could be declared as
unlawful. A representation against such a notification could be
made to an Advisory Board. SC held the restriction imposed is
not reasonable since an association could be declared unlawful
based on the subjective satisfaction of the govt.
• In G.K.Ghosh v E.X.Joseph Civil Service Conduct rule 4-B was
struck down which required a govt servant not to join or
continue to be member of an Association of govt servants if
recognition given to such association is withdrawn. Also in case
 a freshly formed association if no recognition is granted to it
within 6 months govt servants were not allowed to continue in
it. SC struck down the rule saying that the condition of
recognition made the right under Article 19(1)(c) illusory.

Right to move freely throughout territory of India- Article 19(1)

(d)
• Article 19(1)(d) of the Constitution guarantees to its citizens a
right to go wherever they like in Indian territory without any
kind of restriction whatsoever. They can move from one state to
another but also from one place to another within the same
state. This right is subject to reasonable restrictions mentioned
in Article 19(5) ie a) interest of general public or b) for the
protection of interest of Scheduled Tribe. What the Constitution
lays stress upon is that the entire territory is one unit so far the
citizens are concerned.
• The right of a citizen to move freely may also be restricted for
protection of interest of “Scheduled Tribes.” The object is to
protect the original tribes which are mostly settled in Assam.
These tribes have their own culture, language customs and
manners. It was considered necessary to impose restriction
upon the entry of outsiders to these areas.
• In State of UP v Kaushaliya SI of Police issued notices to
Prostitutes under Sect 20 of Suppression of Immoral Traffic in
Women Act, 1956 asking them to show cause as to why they
should not be required to remove themselves from the place
where they were residing. It was claimed by the respondents
that Sect 20 is in violation of Article 14 and Article 19(1)(g).
• Section 20 was held not violative of Article 14 since there is a
difference between prostitutes who carry on their business in
the sly and prostitutes who carry on their business in the
crowded part of the city. Section 20 seeks to restrict
movements of second category by removing them from public
 and vicinity of religious and educational institutions. It was held
to be a valid classification under Article 14. It was also held the
restrictions imposed by Sect 20 on movement and residence
were reasonable restrictions under Article 19(5). The magnitude
of the evil and the urgency of reform justified such measures.
Hence the fundamental rights were held not violated as the
reasonable restrictions were imposed in public interest within
the meaning of Article 19(5).
• In Rajneesh Kapoor v UOI it has been held that the requirement
of wearing helmet is not a restriction on free movement of
citizen. The paramount objective of wearing helmet is to save
his life.
FREEDOM OF RESIDENCE –ARTICLE 19(1)(e)
• Article 19(1)(e) states that every citizen of India has the right to
reside and settle in any part of territory of India. However under
Article 19(5) reasonable restrictions may be imposed on this
 right by law in the interest of general public or for protection of
interest of any Scheduled Tribe.
• In Ibrahim Wazir v State of Bombay Section 7 of Influx from
Pakistan (Control) Act empowered Central Govt to direct to
removal from India any person including an Indian Citizen who
had entered India without a valid Passport. The appellant had
come to India without a Passport and was deported. The Court
held the order of removal invalid on the ground that it imposed
an unreasonbale restriction on the Fundamental Right of a
Citizen to reside and settle in the country.
Freedom of Profession, Occupation Trade or Business - Article
19(1)(g)
• Article 19(1)(g) guarantees that all citizens shall have the right
to practise any profession or to carry on any occupation, trade
or business. However this right can be regulated according to
law. Under Article 19(6) state can make laws a) imposing
 reasonable restrictions in public interest b) prescribing
professional or technical qualification necessary for practicing
any profession or carrying on any trade c) enabling the State to
carry on any trade or business to exclusion of citizens wholly or
partially.
• In Excel Wear v UOI the petitioner was a registered firm who
manufactured garments for exports. Due to serious labour
trouble the factory was running into recurring loss. The
petitioners served a notice for its approval to close down the
factory. Section 25-O of the Industrial Disputes Act mandated
that the govt could refuse permission to close down the
business if it is satisfied that the reasons given were not
adequate. SC held Section 25-O as unconstitutional for violation
of Article 19(1)(g). It was held the refusal of permission to close
down a business is not a reasonable restriction in public interest
within the meaning of Article 19(6). The right to carry on a
business includes a right to close it anytime the owner likes it.
• In Khoday Distilleries ltd v State of Karanataka the SC held that a
citizen has no fundamental right to trade or business in liquor. The
State has power to prohibit the manufacture, sale or possession of
liquor as it is a dangerous article of consumption (res extra
commercium) and also because of directive principle contained in
Article 47. State can create monopoly in such business either in
itself or in any agency created for this purpose.
• In Chintaman Rao v State of MP a law authorized the govt to
prohibit all persons residing in certain area from engaging
themselves in the manufacture of bidi. The object of the law was
to provide adequate labour for agricultural purposes. SC held that
the law is invalid as it imposes unreasonable restrictions on the
bidi making business of the area. The Act prohibits persons such
as infirm, disabled, old women and children incapable of working
as agricultural labourers from engaging themselves in the business
of bidi making and thus earning their livelihood.
• In Unni Krishnan v State of AP it has been held that the right to
establish an educational institution and imparting education is
not a commercial activity. Such activity can neither be a trade or
business nor can it be a profession under Article 19(1)(g). The
reason for the judgment was fact that trade or business
normally connotes an activity carried on with profit motive and
education has never been commerce in this country.
• However in P.A.Inamdar v State of Maharashtra (7 member
bench) it has been held that right to establish an educational
institution, for charity or for profit, being an occupation is
guaranteed under the Constitution to all citizens under Article
19(1)(g) and for the minorities under Article 30. Education is an
occupation but it cannot be equated with trade or business. The
right under Article 19(1)(g) is subject to restrictions in Article
19(2). [SC reaffirmed what was held in TMA Pai foundation &
ors v State of Karnataka & ors]
• Article 19(6) enables the State to nationalise any trade or
business and carry it on itself to the exclusion of all citizens
wholly or partially. This was added by way of Constitution 1 st
amendment act after the decision in Motilal v UP Govt. In this
case the Allahabad High Court had struck down the decision to
nationalize road transport business in UP. Hence by 1 st
amendment of Constitution it was clarified that creation of
state monopolies shall not be considered to deprive a citizen of
freedom of trade or occupation. The validity of a law creating
State monopoly or nationalization of a business cannot be
challenged on the ground that the restrictions are
unreasonable. Right under Article 19 (1) (g)of the citizen is
constitutionally subject to overriding right of the state to create
a monopoly in any trade or business.
 Article 20(1) – Protection against Ex post facto law
• Article 20(1) states that if an act is not an offence on the date of
its commission, a law enacted in future cannot make it so. A
Law enacted later, making an act done earlier (not an offence
when done) as an offence, will not make the person liable.
• Article 20(1) prohibits legislature from making ex post facto
laws. An ex post facto law is a law which imposes penalties
retrospectively. However this protection is just for conviction so
a trial under a procedure different from what it was at the time
of the commission of the offence or by a special court
constituted after the commission of the offence cannot be ipso
facto be held unconstitutional.
• Article 20(1) protects a person from a penalty greater than that
which he might have been subjected to at the time of
commission of offence. In KedarNath v State of WB the accused
committed an offence in 1947, which was punishable by way of
 imprisonment or fine. The act was amended in 1949 and
additional fine was imposed. SC held that the enhanced
punishment cannot be made applicable to the accused.
• But the accused can take advantage of the beneficial provisions
of the ex-post facto law. So an ex-post facto law which is
beneficial to the accused is not prohibited by Article 20(1). In
Ratanlal v State of Punjab a 16 year old boy was sentenced to
rigorous imprisonment of 6 months. However after the
judgment the Probation of Offenders Act came into being which
provided that a person below the age of 21 should not
ordinarily be sentenced to imprisonment. SC by applying the
rule of beneficial interpretation held that the ex-post facto law
could be applied to reduce the punishment.
• Article 20(1) thus immunizes a person from a penalty greater
than what he might have incurred at the time of his committing
the offence.
 Article 20(2) – Guarantee against Double Jeopardy
• The roots of this doctrine are to be found in well established
maxim Nemo debet bis vexari which means “ a man must not be
put twice in peril for the same offence.” When a person has
been convicted for an offence by a competent court, the
conviction serves as a bar to any further criminal proceedings
against him for the same offence. The idea is that no one ought
to be punished twice for the same offence.
• Article 20(2) states that ‘no person shall be prosecuted and
punished for the same offence more than once.’ The Indian
provision only enunciates the principle of autrefois convict. If a
person has been prosecuted for an offence but acquitted, then
he can be prosecuted for the same offence again and punished.
However In USA and Britain a second trial is barred even when
the accused has been acquitted at the first trial for that offence
(autrefois acquit).
• A prosecution without punishment would not bring the case
within Article 20(2). Both prosecution and punishment should
co-exist for Article 20(2) to be operative. If the offences are
distinct then there is no question of the rule as to double
jeopardy being applicable. If one and the same act of a person
constitutes two different offences, then punishment for one
offence does not bar prosecution and punishment for other
offence.
• In State of Bombay v S L Apte a person was convicted under
Section 409 IPC for Criminal Breach of Trust. He was later
prosecuted on the same facts under Section 105 of Insurance
Act. Court held the later prosecution under Insurance Act would
not be barred under Article 20(2) because ingredients under
two offences were different. If the two offences are distinct
then notwithstanding the fact that the allegations of facts in
two complaints are same benefit of ban cannot be invoked.
• A limitation read into Article 20(2) is that the former
prosecution should be before a court of law, or a judicial
tribunal. When a civil servant is dismissed from government
service on grounds of misbehavior after a departmental inquiry,
his later prosecution on the same charges would not be barred
by Article 20(2). The earlier inquiry cannot be regarded as a
prosecution for a criminal offence.
• In S A Venkataraman v UOI a govt servant was dismissed after
an inquiry under Public Servants Inquiries Act. Thereafter he
was tried under Sections 161 IPC and also under Prevention of
Corruption Act. This trial was held not barred by Article 20(2).
The earlier inquiry did not amount to prosecution. Prosecution
in Article 20(2) would mean an initiation or starting of
proceedings of a criminal nature before a court of law or a
judicial tribunal in accordance with procedure described in
statute, which creates the offence and regulates procedure.
• In Maqbool Hussain v State of Bombay a person arrived at an
Indian airport from abroad. He was found in possession of gold
which was against the law at the time. The Customs authorites
confiscated the gold under Sea Customs Act. He was later on
charged for having committed an offence under Foreign
Exchange Regulations Act. The appellant contended that the
second prosecution was in violation of Article 20(2). The Court
held that Custom Authorities were not a court or judicial
tribunal and the adjudging of confiscation under the Sea
Customs Act did not constitute a judgment of judicial character.
Hence the prosecution under Foreign Exchange Regulation Act
was held as not barred.
Prohibition against Self-incrimination – Article 20(3)
• Article 20(3) provides that no person accused of any offence
shall be compelled to be a witness against himself. It implies no
one shall be compelled to give testimony which may expose him
to prosecution for crime. It is the duty of the prosecution to
 prove the offence. The accused need not make any admission or
statement against his own free will. This guarantee extends to
any person accused of an offence and prohibits all kinds of
compulsions to make him a witness against himself.
• Article 20(3) does not apply if the person is not an accused at
the time when he makes the statement. A person cannot claim
the privilege if at the time he made the statement he was not
an accused but became an accused thereafter. Privilege is
available in the trial stage as well as in the pre-trial stage ie
during the course of police investigations.
• In Nandini Satpathy v PL Dani FIR was lodged against her under
the Prevention of Corruption Act. She was interrogated by the
Police but she refused to answer a lot of questions claiming
protection under Article 20(3). It was explained by the Court
that “Compelled testimony” includes evidence procured not
only by physical threats or violence but also by mental torture,
 tiring interrogatives and intimidatory methods. It applies also to
techniques of psychological interrogation which causes mental
torture in a person subject to such interrogation. Right to
silence is available if the answer has a tendency to expose the
accused in guilt in some other accusation, even if the
investigation is not with reference to that.
• In State of Bombay v Kathi Kalu Oghad a 11 member bench
decided that seizures made under search warrant, compulsory
taking of photographs, finger-print or specimen signature of an
accused would not come within the prohibition of Article 20(3).
What is forbidden under Article 20(3) is to compel a person to
say something from his personal knowledge relating to charge
against him.
• Compulsion means duress which includes threatening, beating
or imprisoning of the wife, parent or child of a person. Thus
where the accused makes a confession without inducement,
threat or promise Article 20(3) does not apply.
• In Selvi v State of Karnataka the accused challenged the validity
of scientific techniques like Narcoanalysis, Polygraphy, and Brain
Mapping. A 3 judge bench unanimously held these 3 tests are
testimonial compulsions and are prohibited by Article 20(3). The
Compulsory administration of narcoanalysis techniques
constitutes cruel, inhuman or degrading treatment. A forcible
invasion into a person’s mental process is also an affront to
human dignity and liberty. It was held no such techniques
should be administered except on the basis of consent of
accused.
 Article 21 – Right to Life and Personal Liberty
• Article 21 says that no person shall be deprived of his life or
personal liberty except according to procedure established by
law. A person can be deprived of his life and personal liberty if
two conditions are complied with i) there must be a law ii) there
must be a procedure prescribed by that law provided that the
procedure is just fair and reasonable.
• In A.K.Gopalan v State of Madras the meaning of expression
procedure established by law came up for consideration.
A.K.Gopalan a communist leader was detained under
Preventive Detention Act,1950. The validity of the detention
order was challenged on the ground that it was violative of his
right to freedom under Article 19(1)(d). It was contended for
the detenu that the word ‘law’ in Article 21 does not mean
merely enacted law but it also incorporates the principles of
natural justice. It was also argued that reasonableness of the
law of preventive detention ought to be judged under Article
• It was submitted on behalf of the petitioner that expression
‘procedure established by law’ introduces into India the
American concept of procedural due process. Due process
means that Courts may declare a law invalid if it is not just or
reasonable. But what is just and fair is not a strict or rigid
concept, it varies from situation to situation. Due process has
two aspects. Substantive due process envisages that substantive
provisions of a law should be reasonable and not arbitrary.
Procedural due process envisages a reasonable procedure.
• However Supreme Court rejected the plea that the term law
meant rules of natural justice. The word law was used in the
sense of lex (state-made law) and not jus naturale (principles of
natural justice). It was also held that Article 20 to 22
constituted a comprehensive code relating to protection of life
and personal liberty and was not controlled by Article 19.
Article 19 could be invoked only by a free man and not one
under arrest. Preventive detention would be valid as long as it
 conformed with Article 22 and it would not be required to meet
the challenge under Article 19. SC held that various fundamental
rights operated in separate compartments and were mutually
exclusive .
• Supreme Court also held that procedure established by law is not
the same as due process of law. One major reason for the same
was that the draft constitution had contained the word due process
of law but these words were later dropped which indicated that the
Constituent Assembly did not desire to introduce into India the
concept of due process. This was done because the judicial
decisions in US on what was reasonable had not been uniform. It
varied from judge to judge and from time to time. Also the doctrine
of Police Power was developed in US to restrict the ambit of due
process. If the doctrine of due process were imported into India
then doctrine of police power might also have to be imported.
• Thus the SC held that to deprive a person of his life or personal
liberty a) there must be a law b) it should lay down a procedure c)
• The Court was thus concerned with the procedure as laid down
in the statute. Whether the procedure was fair or reasonable or
according to natural justice was not the concern of the Court.
The SC held that concept of due process as vague and variable.
This interpretation of Article 21 meant that Article 21
constituted a restriction only on the executive which could not
act without any law and it was impotent against legislative
power which could make any law, howsoever drastic to impose
restraints on personal liberty.
• However Fazal Ali J disagreed with majority and interpreted the
phrase procedure established by law as implying procedural due
process. He held freedom of movement was a part of personal
liberty and reasonableness of Preventive Detention Act should
be justiciable under Article 19(5).He also held that the
principles of natural justice was part of the general law of the
land and the same should be read into Article 21. It took nearly
3 decades for his views to be vindicated in Maneka Gandhi case.
 Bank Nationalization case – Rejection of mutual exclusivity theory
• R.C.Cooper v UOI or Bank Nationalization case resulted in the
overruling of ‘mutual exclusivity theory’. On July 1969 President
promulgated an ordinance nationalizing 14 banks having more
than 50cr as deposits. The Compensation was to be paid not in
cash but in Central govt securities payable after 10 years. Article 31
permitted acquisition of property for a public purpose while Article
19(1)(f)conferred the Fundamental Right to hold acquire and
dispose of property. The UOI took the stand that acquisition of
property would be governed only by Article 31 and Article 19 had
no application at all. Based on the judgment in Gopalan case it was
argued that when property is acquired Article 19(5)would have no
application.
• The majority held that theory of ‘mutual exclusivity’ was based on
an improper understanding of protection guaranteed by
fundamental rights. SC held state has the right to nationalize banks
but struck down the Act on the manner in which compensation
• It was clarified by the Court that if a law of acquisition permitted
the deprivation of property without granting any hearing to the
person whose property was compulsorily acquired, the law
would be struck down as violating Article 19(1)(f). If the law of
acquisition seeks to acquire a few properties in a particular area
and deliberately omits other properties which are similarly
placed, the law of acquisition can be challenged as violating
Article 14. Therefore, the mutual exclusivity theory was flawed
and ignored interdependence of Fundamental Rights.
MANEKA GANDHI CASE
• Section 10(3)(c) of the Passport Act allowed the passport
authority to impound a passport on certain grounds. Maneka’s
passport was impounded under the grounds of Public Interest.
She challenged this order on grounds of violation of right under
Article 21 since it was made without providing her an
opportunity of being heard.
• A law prescribing a procedure for depriving a person of personal
liberty has to meet the requirements under Article 19 as well as
under Article 14. The expression personal liberty includes those
aspects of liberty dealt under Article 19 as well. It was held the right
to travel abroad would fall under Article 21.
• Article 21 was reinterpreted so that procedure established should
be fair and reasonable. The procedure could not be something
arbitrary, unreasonable or unfair. The procedure under Article 21
should be “right just and fair and not arbitrary, fanciful or
oppressive.” It was also held that Law in Article 21 means
reasonable law and not any enacted piece. This interpretation made
procedure established by law synonymous with due process of law.
After Maneka Gandhi not only has the procedure established by law
to be just, fair, and reasonable but also the law itself has to be
reasonable as Articles 14 and Article 19 are to be read into Article
21. Thus Article 21 has emerged as the Indian version of American
concept of due process of law and has become the source of many
substantive rights and procedural safeguards to the people.
 Expansive interpretation of Article 21
• Article 21 which was lying dormant for nearly 3 decades was
brought to life by Maneka Gandhi decision. It assures to
everyone right to life and personal liberty. The term ‘life’ has
been given a very expansive meaning. By the term ‘life’
something more is meant than mere animal existence ( Munnv
Illinois).
• By the term life not just physical existence is guaranteed but the
quality of life is assured. The inhibition against its deprivation
extends to all those limbs and faculties by which life is enjoyed.
In Francis Coralie J Bhagwati held that “ right to life includes the
right to live with human dignity and all that goes along with it,
namely the bare necessaries of life such as adequate nutrition,
clothing and shelter over the head and facilities for reading,
writing and expressing oneself in diverse forms, freely moving
about and comingling with fellow human beings.”
• Right to live includes the right to live with human dignity. In
Olga tellis v Bombay Muncipal Corporation case it was held by
a 5 member bench of the SC that the right to life includes ‘right
to livelihood’ also. It was stated that if right to livelihood is not
treated as a part of constitutional right to life, the easiest way of
depriving a person of his right to life would be to deprive him of
his means of livelihood.
• In Paramanand Katara v UOI it has been held that it is the
professional obligation of all doctors whether govt or private to
extend medical aid to injured immediately to preserve life
without waiting for legal formalities to be completed by Police.
Right to health and Medical Assistance was held as a part of
Article 21.
• In P.Rathinam v UOI the SC held that a person has a right to die
and declared Section 309 IPC unconstitutional. The section
made attempt to suicide a criminal offence. It was held right to
live includes right not to live and a person cannot be forced to
 to enjoy right to life to his detriment, disadvantage or disliking.
However in Gian Kaur v State of Punjab a 5 judge bench
overruled the P.Rathinam’s case. It was held right to life does
not include right to die as suicide is something which is
incompatible and inconsistent with right to life. Court held
Section 309 of IPC is not violative of Article 21 of the
Constitution.
Right to Privacy
• The Constitution does not grant in specific and express terms
any right to privacy. However such a right has been culled from
Article 21 by the SC. The question whether right to privacy
could be implied from Article 21 was discussed for the first time
in Kharak Singh v State of UP. The provision in question was UP
Police Regulation 236 which allowed for domiciliary visits at
night as part of surveillance. The petitioner was accused of
dacoity but was let off due to lack of evidence. The Police
officials opened a history sheet in his name and his movements
 were recorded. It was held by the SC that out of 5 kinds of
surveillance referred in regulation 236 only the part dealing
with domiciliary visits was violative of Article 21 as there was no
law on which it could be justified. The Secret picketing of the
house was held not violative of Article 21 or Article 19(1)(d).
The majority of the judges held that right to privacy is not
constitutionally guranteed while the minority opinion was in
favour of inferring right to privacy from Article 21.
• In Govind v State of MP Court was once again considering the
validity of a regulation which provided for surveillance. Court
upheld the regulation by stating that regulation in question was
procedure established by law. Court accepeted a limited
Fundamental Right to Privacy as emanating from Article 19 and
Article 21. However it was clarified that right to privacy can be
restricted in public interest.
• In Rajagopal v State of TN the petitioner who was the Editor of
a tamil magazine called Nakkheeran, approached the SC seeking
protection from interference with the publication of
autobiography of Auto Shankar. Petitioner submitted that the
autobiography contained details of close nexus between
prisoner and several IPS and IAS officers and this caused the
authorities to force Auto Shankar to write a letter asking the
petitioner not to publish his autobiography. The SC held that
right to privacy is implicit in Article 21 and it is a right to be let
alone. No person can publish anything concerning anothers
family, marriage, procreation motherhood, education etc
without the consent of the party. The petitioner can only
publish, what is available as public records. But if they go
beyond that and publish his life story they may be invading his
right to privacy and will be liable for consequences. The state or
its officials cannot restrain the publication however if they are
affected their remedy is after publication.
• In PUCL v UOI the Court ruled that telephone conversation is an
important facet of man’s private life. Tapping of telephones is a
serious invasion of privacy. When a person is speaking on phone
he is exercising his right to freedom of speech and expression
and hence telephone tapping should come under permissible
restrictions under Article 19(2). Telephone tapping is
permissible in India under Section 5(2) of Telegraph Act.
Court issued procedural directions for exercise of power under
Section 5(2). The only grounds on which telephone tapping is
permitted are the ones mentioned in Article 19(2). An order of
tapping can be made only by Home Secty GOI and Home Secty
State govts. Periodical review of the order has to be done every
2 months. The review committee has to consist of Cabinet
Secty, law secty and Secty Telecommunication at central level.
The use of intercepted material shall be limited and each copy
of the material shall be destroyed as soon as its retention is no
longer necessary.
• In State of Maharashtra v Madhukar Mardikar it was held that
even a woman of easy virtue is entitled to privacy and no one
can invade her privacy as and when he likes. The respondent
was a Police Officer who visited the house of a lady and
demanded sexual intercourse with her. On her refusal he tried
to have her by force. The lady resisted and raised a hue and cry.
SC held that even though the lady was mistress of another
person her evidence cannot be thrown overboard solely due to
that reason. Accordingly the order of removal from service
against the respondent was directed to be implemented.
• In Roe v Wade the US Supreme Court has held that the right to
have an abortion is a part of fundamental constitutional
guarantee of privacy of the woman and the state can interfere
with the right only on limited grounds.
• In Justice KS Puttaswamy v UOI a 9 judge bench of the SC has
held that right to privacy is an intrinsic part of Article 21 and the
decision in kharak singh stands over-ruled.
• In Mr X v Hospital Z the appellant was HIV +ve. This aspect was
communicated to Y with whom appellant’s marriage was fixed.
The wedding was called off and appellant claimed damages
against the Hospital for breach of medical ethics and violation of
his right to privacy. SC held that right to privacy is a
fundamental right under Article 21 but restrictions can be
imposed on it. The disclosure by the Doctor was not violative of
rule of confidentiality or patient’s right to privacy as the lady
with whom the patient was likely to be married was saved by
such disclosure. Her right to life includes right to lead a healthy
life and in cases like this where there is a clash between 2
Fundamental Rights the right which would advance public
morality would be enforced through process of Court.
 Protection of Ecology and Environment
• In Subash Kumar v State of Bihar it was held that enjoyment of
pollution free water and air is included in ‘right to live’ under
Article 21 of Constitution.
• In Rural Litigation and Entitlement Kendra v State of UP Court
ordered the closure of lime stone quarries on the ground that
there was serious pollution caused by the quarries adversely
affecting safety and health of the people living in the area.
• In MC Mehta v UOI SC ordered the closure of tanneries at
Kanpur which lacked treatment plants and were causing large
scale pollution of Ganges.
• In Indian Council for Enviro-Legal Action v UOI if by action of
private corporate bodies a person’s fundamental right is
violated the Court would not accept the argument that it is not
‘State’ and therefore action cannot be taken against it. In this
case highly toxic effluents were discharged by industries
 obtaining the requisite licence and without any treatment. As a
result water in the wells of Bichari village in Rajasthan became
unfit for drinking. SC held the writ petition maintainable and
asked the govt to perform its duties.
• In Vellore Citizens Forum v UOI attention of the Court was
drawn to pollution caused by enormous discharge of untreated
effluent by tanneries in TN. Due to this discharge river water
became unfit for human consumption and the soil which got
contaminated became unfit for agricultural purposes. SC
directed the closure of these industries unless they install
pollution control devices. Fine of Rs.10,000 was imposed on
each tannery and this amount was to be used for restoration of
environment and also for compensating affected persons. SC
held that precautionary principle and polluter pays principle are
essential features of sustainable development and are accepted
as law of the land.
 Important Case Laws Under Article 21
• In M.H.Hoskot v State of Mahrashtra it was held that Article 21
contains the right to free legal aid. It was held as state’s duty
and not its charity.
• In Hussainara Khatoon v Home Secretary State of Bihar the SC
held that right to a speedy trial is a fundamental right implicit in
guarantee of life and personal liberty.
• In Francis Coralie v Union territory of Delhi detenu’s right to
have interview with his lawyer and family member was held
part of Article 21.Provisions of COFEPOSA which permitted only
one interview in a month to detenu with members of his family
were held violative of Article 14 and 21. Court held detenus
should be permitted to have atleast 2 interviews in a week with
frineds and families.
• In Murali S Deora v UOI the SC considering the adverse effect
of smoking on smokers and other persons directed the Central
 govt and State govts to immediately issue orders banning
smoking in public places. Court held a non-smoker is afflicted by
various diseases only because he is required to go to public
places. It is indirectly depriving of his life without due process of
any law.
• In Rudal Shah v State of Bihar SC held it had power to award
monetary compensation in appropriate cases where there has
been violation of constitutional rights of citizens. The petitioner
in this case had to remain in jail for 14 years because of
irresponsible behaviour of state officers even after his acquittal.
In Nilabati Behera v State of Orissa the SC awarded
compensation of Rs 1,50,000 to the mother of the deceased who
died in police custody due to beating. In Bhim Singh v State of JK
50000 rupees was awarded as compensation to the petitioner
who was an MLA, who was arrested and detained in police
custody to prevent him from attending the assembly session.
• In Vishaka v State of Rajasthan SC laid down exhaustive
 Article 21 A – Right to Education
• Constitution 86th amendment Act, 2002 introduced Article 21A
and made education for all children of age 6-14 years as a
fundamental right. Article 45 of DPSP directs the State to
provide free and compulsory education to all children until they
complete the age of 14 years. The framers of the Constitution
were of the view that in view of the financial condition of a new
state it was not feasible to make it a fundamental right under
Part III.
• In Unni Krishnan v State of A.P (1993) Court held that right to
education for children of the age of 6-14 years is a fundamental
right.
• Article 21A makes it obligatory for the govt to enact a central
legislation to give effect to constitutional amendment.
Parliament to give effect to 86th amendment Act enacted the
Right Of Children to Compulsory Education Act, 2009.
 ARTICLE 22 – SAFEGUARDS AGAINST ARBITRARY ARREST AND
DETENTION
• Article 22 prescribes the minimum procedural requirements
that must be included in any law enacted by the legislature in
accordance with which a person may be deprived of his life or
personal liberty.
• The first two clauses lay down the procedure which has to be
followed when a man is arrested under ordinary law of crimes
and the remaining provisions deal with persons detained under
preventive detention law.
• At one time it was thought that Article 22 was a complete code
in regard to laws providing for preventive detention and that
the validity of the order of detention should be determined
strictly according to terms within the 4 corners of Article 22. It
was held in Gopalan’s case that a detenu cannot claim freedoms
guaranteed by Article 19(1)(d). However this view was held
 wrong in Maneka Gandhi’s case. According to the view in
Maneka Gandhi case, a law relating to preventive detention
must satisfy not only requirements of Article 22 but also
requirements of Article 21. Procedure prescribed by preventive
detention law should be fair, just and reasonable.
• Article 22(1) and (2) guarantee four rights to a person who is
arrested for any offence under an ordinary law:-
i) right to be informed of the ground of arrest
ii) right to consult and to be represented by a lawyer of his own
choice
iii) right to be produced before a magistrate within 24 hours
iv) freedom from detention beyond said period except by order
of the Magistrate.
These Fundamental Rights guaranteed to arrested persons by
clauses (1) and (2) of Article 22 are available to both citizens
 as well as non-citizens and not to persons arrested and detained
under any law providing for preventive detention. Article 22(3)
provides 2 exceptions to the rule. It says rights given to arrested
person under 22(1) and 22(2) is not available to an enemy alien
and a person arrested under a law of Preventive detention.
• An accused has to be produced before the Magistrate within 24
hours. The Judicial Magistrate can authorise the detention in
either police custody or judicial custody. After the expiry of first
period of 15 days further remand can be only in judicial custody.
If the investigation is not completed within 90 days or 60 days
then the accused has to be given bail.
• Article 22(4) to (7) deals with preventive detention. As the
name indicates it is used as a preventive measure. The object is
to intercept a person before he commits a crime. The sole
justification of such detention is suspicion or reasonable
probability of detenu committing some act likely to cause harm
to society.
• Article 22(4) provides that no law providing for preventive
detention shall authorize the detention for a period more than
3 months unless an Advisory Board has opined that there is
sufficient cause for such detention. If the Advisory Board
reports that the detention was not justified then the
government should revoke the detention order. Article 22(7)
contains an exception to 22(4). It says Parliament can enact a
law and provide for detention for more than 3 months without
the opinion of Advisory Boards. Thus the opinion of Advisory
Board is not necessary in 1) when period of detention is less
than 3 months 2) when Parliament has passed a law under
Article 22(7).
• Article 22(5) gives two rights to detenu : 1) the grounds of
detention must be communicated as soon as possible 2) earliest
opportunity to make a representation against an order of
detention.
• The grounds of detention should be very clear and easily
understandable by the detenu. The inclusion of an extraneous
ground vitiates the order of detention. The grounds supplied to
the detenu cannot be vague, irrelevant or non-existent. Article
22(5) also requires that the detenu shall be afforded the earliest
opportunity to make a representation against order of detention.
This acts as a check against arbitrary exercise of power. The
materials and documents relied on in the order of detention must
be supplied to the detenu along with grounds. Mere supply of
grounds simpliciter would make the procedure unjust and
unreasonable. Inordinate delay in considering the representation
would also make the detention order invalid.
• The language used in the Preventive Detention Laws make it clear
that power of detention was to be exercised on the subjective
satisfaction of the detaining authority. However the Subjective
satisfaction can be challenged on grounds like mala fide,
vagueness, irrelevant or non-existent grounds or mechanical
• In ADM Jabalpur v S Shukla Section 16-A of MISA was
challenged which prohibited communication of grounds of
detention to detenu as well as to Court. It was argued that the
provision prevents the High Court from verifying whether the
detention was based on proper satisfaction of executive or not.
However Section 16A was held valid by the majority by stating
“it was a rule of evidence and it was not open either to detenu
or to Court to ask for grounds of detention.” The effect of this
decision was that Courts were barred from examining 1) the
question of mala fides of order of detention 2) subjective
satisfaction of the Executive while passing the order of
detention.
 RIGHT AGAINST EXPLOITATION – Article 23 and 24
• Article 23(1) proscribes traffic in human beings, begar, and
other similar forms of forced labour. It protects the individual
not only against the State but also against the private citizens.
The term begar means compulsory work without any payment.
The practice was widely prevalent in the erstwhile princely
States in India before the advent of the Constitution and it has
been abolished through Article 23(1).
• Traffic in human beings means buying and selling of human
beings as if they are chattels. Traffic in women for immoral
purposes is also covered in this expression. Article 23(2) states
that State can impose compulsory service for public purposes
and in imposing such service State shall not make any
discrimination grounds only of religion, race, caste, or class. The
State may thus exempt women from conscription for that will
be discrimination based on sex and this has not been forbidden
by Article 23(2).
• In R K Tangkhul v Khullakpa a village custom requiring every
house-holder to offer a day’s free labour to village headman was
held to be violative of Article 23(1).
• In PUDR v UOI (Asiad Case) the petitioner organization wrote a
letter to J Bhagwati complaining of violation of various labour
laws. The SC treated this letter as a writ petition. It was alleged in
the letter that minimum wages were not paid to the labourers,
the balance amount were being misappropriated by middle men.
There was no proper living conditions and medical facilities for
the workers and even children below the age of 14 were
employed in construction which is a direct violation of Article 24.
• Court clarified that every form of forced labour is within the
inhibition of Article 23. Even if remuneration is paid labour
supplied by a person would be hit by Article 23 if it is labour
supplied not willingly. Payment of wages less than minimum
wages would be regarded as forced labour. He stated where a
person is suffering from hunger or starvation when he has no
 resources at all to fight disease or to feed his wife he would
accept any work even if remuneration offered to him is less
than minimum wage. He is not acting as a free agent but under
the compulsion of economic circumstances and the labour or
service provided by him would be clearly ‘forced labour.’
• In State of Gujarat v Hon’ble High Court of Gujarat the SC has
ruled that a prisoner sentenced to rigorous imprisonment can
be made to do hard labour but he should be paid equitable
wages for it. No prisoner can be made to labour free of wages.
• Bonded labour is a serious socio-economic problem in India. In
this system a person is bonded to provide labour to another for
years and years until a debt is wiped out. This results in
exploitation of weaker sections of the society. SC has ruled that
bonded labour is unconstitutional under Article 23 and
Parliament has passed Bonded Labour System (Abolition) Act
1976 to give effect to Article 23.
• In Bandhua Mukti Morcha v UOI the plight of bonded labourers
working in large numbers in stone quarries in State of Haryana
was brought to the attention of SC. They were working under
inhuman and pathetic conditions without any medical aid or
safety features. State authorities were not enforcing any proper
laws. SC ordered the release of these persons from bondage.
Court also linked Article 23 and 21 by stating everyone has the
Fundamental Right to live with human dignity and free from
exploitation. SC asked the state authorities to draw up a
meaningful scheme for the rehabilitation of freed labourers
because other wise their condition would be much worse than
before.
• In Neerja Choudhary v State of MP Court insisted not only on
release of bonded labourers but also laid stress on their
rehabilitation. Court emphasized that “plainest requirement of
Article 21 and 23 is that bonded labourers must be identified
and released and on release they must be rehabilitated.
• Article 24 prohibits the employment of a child below the age of
14 years to work in any factory or mine or in any other
hazardous employment. A total ban on child labour is not
imposed under Article 24, only a partial ban is imposed. Article
39 of our Constitution imposes upon the State an obligation to
ensure that the health and strength of workers, men and
women and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength.
• The Child Labour (Prohibition and Regulation) Act 1986 have
been enacted to ensure implementation of this Fundamental
Right. The plight of children working in Sivakasi Cracker
Factories was brought to the notice of SC in M.C.Mehta v State
of Tamil Nadu. Court directed the setting up of a fund and
asked the offending employer to pay for each child a
compensation of Rs.20,000. It also asked the govt to ensure that
an adult member of child’s family get a job in lieu of the Child.
 Freedom of Religion (Articles 25 – 28)
• Constitution 42nd Amendment Act has inserted the word Secular
in the preamble. It only means that in matters of religion the
state is neutral. It eliminates God from the matters of the State
and ensures that no one shall be discriminated against on the
ground of religion. The State can have no religion of its own. It
should treat all religions equally.
• In a secular state the State is only concerned with its relation
between man and man and it is not concerned with relation of
man with God. In S.R.Bommai v UOI the SC has held that
Secularism is a basic feature of Indian Constitution. State is
neither anti-religion nor pro-religion but it treates all religions
equally. In Aruna Roy v UOI the National Education Policy was
challenged because it provided for valuse based education to
school children. Court held study of religions in school
education is not against secularism as it helps in removal of
 mutual misunderstanding and intolerance between different
communities.
• Article 25(1) guarantees to every person the freedom of
conscience and the right to profess, practise and propagate
religion. This right is subject to Public Order, Morality Health
and other provisions of the Constitution. By Article 25 (2) the
State is empowered to a) regulate or restrict any economic,
financial political or other secular activity which may be
associated with religious practice b) to provide for social welfare
reform and to throw open Hindu religious institutions of public
character to all classes and sections of Hindus.
• Freedom of conscience means absolute inner freedom of the
citizen to mould his own relation with God in whatever manner
he likes. To profess a religion means to declare freely and openly
ones faith and belief. To practise religion is to perform the
prescribed religious duties, rites and rituals and to exhibit his
beliefs and ideas. The word propagation means to spread and
 publicize his religious view for edification of others. The right to
propagate one’s religion does not give right to convert any
person to one’s own religion. In Rev Stainslaus v State of MP the
Constitutional validity of MP and Orissa legislations were
challenged in Court. Both the acts made forcible conversions a
criminal offence. Both the legislations were held valid and it was
clarified that there is no fundamental right to convert any
person to one’s own religion. What Article 25(1) guarantees is
not right to convert but right to transmit or spread one’s
religion by exposition of its tenets.
• The protection of Article 25 extends to rituals, ceremonies and
modes of worship which are integral part of religion. What
constitutes an essential part of religion has to be decided by
Courts. In Bhuri v State of J&K an act was challenged on the
basis of violation of Article 25 and 26, which had abolished the
hereditary post of Priest and made provision for appointment of
Priests by the State. SC held service of Priest is a secular activity
 and it can be regulated by the State. The performance of
religious service according to tenets and customs is an integral
part of religion and it cannot be regulated by the State. But the
State has powers to regulate appointment of Priest and can fix
his emoluments.
• In Ismail Faruqui v UOI the validity of Acquistion of Certain Area
at Ayodhya Act 1993 was challenged in SC. Through this Act the
right, title and interest over the disputed area was vested with
Central Government. It was contended that acquisition of
mosque violates the rights given under Article 25 and 26 of
Constitution. However it was held by the Court that a mosque is
not an essential part of practice of religion of Islam and Namaz
can be offered anywhere, even in open. Offer of prayer or
worship at a location would not be an essential or integral part
of religion unless the place has a particular significance to form
an essential on integral part thereof.
 Restrictions of Freedom of Religion
• In Acharya Jagdishwaranand v Commr of Police (Anand Marga
Case) the SC held that Tandava dance in procession or at public
places carrying lethal weapons and human skulls was not an
essential religious practice and hence order prohibiting such
procession was not violative of Article 25 and 26. Anand Marga
was held as a separate religious denomination but the Tandava
dance was found to be of very recent origin.
• In Javed v State of Haryana SC held that the provisions of
Haryana Panchayati Raj Act which disqualifies a person having
more than 2 children from contesting election to Panchayat was
not violative of Article 25. The Muslim law permits marrying 4
women but it does not mandate it as a duty. Freedom of
religion is subject to Public Order, morality and Health.
 Regulation of economic, financial, and secular activities
associated with religious practices (Article 25(2)a
• The freedom of religion extends only to those activities which
are essence of religion. It does not cover activities which are
secular and which do not form essence of religion. In Mohd
Hanif Qureshi v State of Bihar the petitioner claimed that
sacrifice of cows on the occasion of Bakrid was an essential part
of his religion. Court held it was not an essential part of
Mohammedan religion and hence could be prohibited by the
State under Article 25(2)a.
• In Adelaid v Commonwealth it was held that a person could
not be allowed in exercise of his freedom of religious practice
and profession to carry on an anti-war propaganda in guise of
religion when the nation is at war. Thus political activities arising
out of religious belief was held not protected by the
Constitution.
• In S.P.Mittal v Union of India the petitioner challenged the validity
of Aurobindo (Emergency Provisions) Act, 1980 on the ground that
it was violative of Article 25 and 26. The act was enacted after large
scale complaints about mismanagement of affairs of the Society. It
was held by SC that the Act is valid because teachings of Aurobindo
did not constitute a separate religion. The membership of the
society was open to any one subscribing its aim and objects without
losing his own religion. It was held the Society nor Auroville
constituted a religious denomination and were not entitled to
Article 25 and 26.
• Article 25(2)b states that state is empowered to make laws for social
welfare and social reform. It declares that where there is conflict
between need of social welfare and reform and religious practice,
religion must yield. Social evils cannot be practiced in the name of
religion. This clause empowers the State to throw open all Hindu
religious institutions of a public character to all classes and sections
of Hindus. It ensures an individual’s right to enter temple
irrespective of his caste, untouchability etc.
 Freedom to manage religious affairs – Article 26
• Article 26 says that subject to public order, morality and health
every religious denomination shall have the following rights :-
i) to establish and maintain institutions for religious and
charitable purposes
ii) to manage its own affairs in matters of religion
iii) to own and acquire movable and immovable property
iv) to administer such property in accordance with law
• The word religious denomination should satisfy 3 conditions;
a) collection of individuals who have a common faith
b) Common organization
c) it must have a distinctive name.
The various philosophies governing Hindu Society like Advaitas,
Dwaitas, Saivites and Ananda Marga etc has been held as a
religious denomination.
• Under Article 26 (b) a religious denomination is free to manage
its own affairs in matters of religion. The State cannot interfere
in the exercise of this unless they run counter to public order,
health or morality. Court has the right to determine whether a
particular rite or ceremony is regarded as essential by tenets of
a particular religion.
• Under Article 26(c) and (d) a religious denomination can acquire
property and they can administer such property in accordance
with law.
• Article 27 provides that no person shall be compelled to pay
any tax for the promotion or maintenance of any particular
religion or religious denomination. The reason underlying this
provision is that India being a Secular state and there being
freedom of religion guaranteed by the Constitution it is against
the policy of the Constitution to pay out of Public Funds any
money for the promotion or maintenance of particular religion
or religious denomination.
• Article 28(1) states that no religious instruction shall be
imparted in any educational institution wholly maintained out
of state funds. Under Article 28(3) no person attending any
educational institution recognized by the State or receiving aid
out of state funds shall be required to take part in any religious
instruction or attend any religious worship unless consent is
obtained. However in institutions administered by the State
but are established under any trust or endowment there is no
restriction on religious instructions.
• In D.A.V College v State of Punjab Section 4 of Guru Nanak
University Act was challenged which directed the University to
make provision for study and research on life and teaching of
Guru Nanak. SC held Section 4 as valid and clarified that
University encouraging an academic study of life and teaching
of Guru Nanak did not amount to religious instructions or
promotion of any particular religion.
 CULTURAL AND EDUCATIONAL RIGHTS – Articles 29 and 30
• According to Article 29(1) any section of citizens residing in any
part of India having distinct language, Script or culture of its
own has the right to conserve the same. According to Article
29(2) admission is not to be denied to any citizen into any
educational institution maintained by the State, or receiving aid
out of the state funds, on grounds only of religion, race, caste
language or any of them.
• The question of application of Article 29(2) arose for the first
time in State of Madras v Champakam Dorairajan. The
Communal GO of State of Madras allotted seats in medical and
engineering colleges in states proportionately to several
communities. A Brahmin candidate who did not get admission
into College challenged the GO as violative Article 29(2). SC held
the GO invalid as the only reason for denial of admission to
aggrieved party was that he was a Brahmin.
• In State of Bombay v Bombay Education Society an order issued
by Bombay govt banning admission of those whose mother
tongue was not English to a school using English as a medium of
instruction was declared invalid under Article 29(2). The govt
argued that such denial was meant for advancement of national
language. However SC held that the only ground for denying
admission in English schools to pupils whose mother tongue
was not English was only language and so the order is violative
of Article 29(2).
• Article 29(2) makes it clear that a private institution receiving
aid from the State cannot discriminate on grounds of religion,
Caste etc. To enforce the restrictions laid down in Article 29(2) a
High Court can issue a writ under Article 226 even against a
private institution receiving aid from the State.
• Article 15(4) was added by First Amendment of Constitution
after Champakam case to ensure advancement of socially and
educationally backward class of citizens or SC/ST.
 ARTICLE 30
• Article 30(1) gives linguistic or religious minorities the right to
establish and administer educational institutions of their choice.
Article 30(2) bars the State, while granting aid to educational
institutions, from discriminating against any educational
institution on the ground that it is under management of
linguistic or religious minority.
• The minorities have been given protection under Article 30 in
order to preserve and strengthen the integrity and unity of the
country. The expression ‘educational institution’ means
institutions that impart education at all levels from primary
school level upto postgraduate level as also professional
education. In TMA Pai Foundation case it was held whether a
community is a minority or not was to be determined with
respect to each state.
• The National Commission for Minority Educational Institutions
 Act, 2004 has set up a Commission under the Act to decide all
questions of status of an educational institution as Minority
Institution.
• The Court in TMA Pai was of the view that the right to establish
and administer an institution in Article 30(1) of the Constitution
comprises the following rights:
a) to admit students
b) to set up reasonable fee structure
c) to appoint staff
d) to take action in case of dereliction of duty on part of any
employees.
• Relation between Article 29 and 30 :- Article 29 protects the
rights only of India Citizens while Article 30 does not refer to
citizenship as a pre-condition. A minority community can
conserve its language, script or culture through educational
institutions but it does not mean that only such minority
 engaged in conservation of minority language. The advantage of
Article 30 is that it is available to all minority educational
institutions and not only to those whose object is to conserve or
promote the language of the minority.
• Article 30(1) grants minorities right to establish institutions of
their choice. Their Choice cannot be limited merely to
institutions seeking to conserve language, script or culture.
Minority whether based on religion or language has a right to
establish institutions of general secular character.
• Although Article 30(1) is couched in absolute terms in Kerala
Education Bill case it was clarified that the right conferred on
religious and linguistic minorities to administer educational
institutions is not an absolute right. State can make regulations
to ensure to maintain educational character and standard of
institution. The right to administer cannot encompass right to
maladminister.
• Conditions relating to Syllabus, curricula, courses, minimum
qualifications of teachers, their age of superannuation, library,
conditions concerning sanitary, health and hygiene of students
cannot be said to be violative of Article 30(1) as such measures
are necessary to maintain educational character and content of
minority institutions.
• In St.Xaviers College Ahmedabad v State of Gujarat Gujarat
University Act provided that governing body of every college
must include amongst its members a representative of
University nominated by VC, representatives of teaching and
non- teaching staff and of College students. The Supreme Court
declared the provision as non-applicable to minority institutions
because it displaced the management and autonomy in
administration was lost. Court emphasized that while University
could take steps to cure maladministration in a college, the
choice of personnel of management was a part of
administration which could not be interfered with.
• The next question which arose for consideration was whether
minority institutions have a fundamental right to affiliation.
Petitioners contended that right to establish educational
institutions of their choice would be without meaning if
affiliation is denied. The Court however held that there is no
fundamental right to affiliation to University. When a minority
institution applies to a University to be affiliated, it expresses
its choice to participate in the system of general education and
course of instruction prescribed by the University.
• Therefore measures for affiliation which regulate course of
study, qualifications and appointment of teachers, conditions of
employment of teachers, health and hygiene of students,
facilities for libraries and laboratories do not violate any
fundamental right of the minority institution under Article 30.
• In State of Kerala v Mother Provincial under Kerala University
Act 1969 governing body was to be constituted for each private
college consisting of 11 members of whom 6 were to be
nominated by the body which established the college. The body
would also consist of nominees of University and the
government and a representative of teachers of the College.
The SC declared these provisions invalid as they took away from
founders of institution right to administer their own institution.
Further power was vested in University Syndicate to veto any
action of the College Governing body. This provision was also
held invalid.
• In Frank Anthony Public School Employees Association v Union
of India Section 12 of Delhi School Education Act was under
challenge. The Act required that scales of pay and other
conditions of service of employees of a recognized private
school shall not be less than those of govt school employees.
However by Section 12 these beneficial provisions were held
 non-applicable to unaided minority schools. SC held Section 12
which made beneficial provision inapplicable to unaided
minority schools as discriminatory and violative of Article 14. It
was held the management of minority school cannot be
permitted under the guise of Article 30(1) to oppress or exploit
its employees.
• Article 15(5) was introduced by 93 rd amendment to overrule the
decision in T.M.A.Pai and P.A.Inamdar case wherein it was
observed that in unaided Private professional institution
(including minority institutions) the reservation scheme is
violative of Article 30 and Article 19(1)g. Article 15(5) provided
that State can make provision for reservation in admission for
socially and educationally backward classes of citizens or for
SC/ST even in private educational institutions, however minority
educational institutions were kept out of its purview.
• In Pramati Educational and Cultural Trust v Uoi the validity of
 Article 15(5) was challenged. It was held that by excluding
minority institutions in Article 30(1) the secular character of
India is maintained and not destroyed. They are a separate class
and there exclusion from Article 15(5) is not violative of
Constitution. The members of communities other than the
minority community which has established the school, cannot
be forced upon a minority institution because that will destroy
the basic character of Institution. [Right of Children to free and
Compulsory Education Act, 2009 was held ultra vires to the
extent it applied to minority schools aided or unaided.]
• Article 30(2) prohibits the State in granting aid to educational
institutions from discriminating against any educational
institutions on the ground that it is under management of a
minority whether based on religion or language.
 Right to Property
• Before 1978 there existed two main articles to protect private
property, viz Articles 19(1)(f) and Article 31. Both these
constitutional provisions were repealed by 44 th amendment.
Article 19(1)f guaranteed to Indian Citizens right to acquire,
hold and dispose of property. Article 19(5) however, permitted
the state to impose by law reasonable restrictions on this right
in the interest of general public or for protection of interests of
any Scheduled Tribe.
• Article 31(1) laid down that no person could be deprived of his
property without the authority of law. This provision has been
repealed through 44th amendment but it reappears as Article
300A. The original Article 31(2) stated that “No property shall
be taken possession of or acquired for public purposes unless
the law provides for compensation and either fixes the amount
of compensation or specifies the principles on which
compensation is to be determined.”
• As Article 31(2) originally stood in Constitution, the word
compensation was not qualified by any adjective like just, or
adequate unlike the US Constitution. In State of West Bengal v
Bella Banerjee it was clarified that compensation meant just
equivalent of the property acquired and it was a justiciable
matter which the Courts could adjudicate upon.
• The Central Govt became uneasy at the judicial insistence on
payment of full market value for the property acquired as it
thought it would place an onerous burden on country’s slender
resources. To get over this difficulty Constitution 4 th
Amendment Act was introduced. It amended Article 31(2) by
adding a clause : “….and no such law shall be questioned in any
Court on the ground that compensation provided by law is not
adequate.”
• 4TH amendment now debarred the Courts from going into
question whether quantum of compensation provided by law
for property being acquired by state was sufficient or not.
• In State of Gujarat v Shantilal SC clarified that it cannot go into the
question of adequacy of compensation unless the legislature
abused its legislative power and called something as
compensation which was not a compensation at all or was illusory.
Compensation cannot be challenged on the ground that it was not
fair or just compensation. However principles for determining
compensation could be challenged on the ground that they are
irrelevant to determination of compensation.
• R.C.Cooper v UOI ( Bank Nationalization case) was the next
important case. SC declared the relevant law unconstitutional by a
majority of 10 to 1. By this act, no compensation was provided for
certain items of property ex goodwill of bank, unexpired leases of
properties held by bank etc. The method specified to value lands
and buildings were not relevant to determination of compensation
for them etc. Court held that it could intervene not only when
compensation was illusory but also when relevant principles
appropriate to property in question were not applied to
• The judicial view in Bank Nationalization case was not palatable
to Central Govt so the the govt enacted 25 th amendment of
Constitution. The major change was to substitute the word
amount for the word compensation. The intention was to avoid
judicial review of quantum of money offered by govt.
• The effect of the change made in Article 31(2) by substitution of
the word ‘amount’ for ‘compensation’ was considered in
Kesavananda Bharati v State of Kerala. Court held that the
word amount does not mean compensation and courts could
not go into the adequacy or inadequacy. However, the amount
cannot be illusory or arbitrary or grossly low which would shock
judicial conscience. Though the amount need not be the market
value of the property yet it should have some reasonable
relationship with value of such property. The Court could still
invalidate the law as unconstitutional if it provided no amount
or some amount which was illusory.
• Finally in 1978, the 44th Constitutional Amendment removed
the Fundamental Right to property by repealing Article 31(1)
and 31(2). The right to property is now a legal right which can
now be regulated by ordinary law. Article 300A merely says “no
person shall be deprived of his property save by authority of
law.”
• Article 300 A constitutes a protection against executive organ of
the State. No person can be deprived of his property merely by
an executive fiat. An executive order depriving a person of his
property without being backed by law, is not constitutionally
valid. If there is no law there is no deprivation.
IX Schedule and Article 31B
• Article 31B which was added by Constitution First Amendment
Act, 1951 states that no act mentioned in the IX Schedule can
be invalidated on grounds of its violation of any Fundamental
Right.
• Article 31B is retrospective in nature. When a statute declared
unconstitutional by a Court is later included in Ninth Schedule, it is
to be considered as having been in that schedule from its
inception. The judicial decision is nullified when the statute is
included in Schedule.
• The scope of Article 31B is wider than Article 31A in so far as any
law included in the Ninth Schedule is immunized from all
fundamental rights. When an act is included in the Schedule all
the amendments made therein till the date of its inclusion in the
Schedule are protected. The protection of Article 31B extends to
the Act in question as it stands on the date on which it was
included in the Ninth Schedule. It does not protect any
amendment to the Act after the date of its inclusion in the
Schedule.
• A blanket protection is thus given to the statutes mentioned in the
Ninth Schedule howsoever violative of FR they may be. Even an act
declared unconstitutional is revived by inclusion in IX Schedule.
• Article 31B was meant to protect legislation dealing with property
rights and not any other type of legislation. But in practice Article
31B has been used to invoke protection for many laws not
concerned with property rights at all. Article 31B is thus being
used beyond the socioeconomic purposes which is its only
justification.
• In Waman Rao v UOI the SC has ruled that all amendments to the
Constitution before 24th April 1973 by which Ninth Schedule was
amended from time to time were valid and constitutional. But
amendments made on or after 24th April 1973 which amended IX
Schedule were open to challenge on the ground that they
damaged the basic structure of Indian Constitution.
• In IR Coelho v State of TN it was held that a law that abrogates the
rights guaranteed by Part III may violate the basic structure
doctrine or not. If it violates the basic structure such law will have
to be invalidated in exercise of judicial powers of Court. The actual
effect of the law on FR will be taken into consideration while
 Right to Constitutional remedies – Article 32 to 35
• Article 32 was described as the soul and heart of the
Constitution. Article 32(1) guarantees the right to move the SC
by appropriate proceedings for the enforcement of fundamental
rights conferred by Part III. Article 32(2) confers power on SC to
issue appropriate directions, orders or writs in the nature of
habeas corpus, mandamus, prohibition quo-warranto, and
certiorari.
• Article 32 is itself a fundamental right. Constitution makers have
provided for an effective remedy for the enforcement of Part III
rights under this article of Constitution. High Courts have power
to issue writs under Article 226 not only for enforcement of
fundamental rights but also for any other purpose.
• Locus Standi – The traditional rule is that right to move the
Supreme Court is only available to those whose fundamental
rights are infringed. However this above rule has been
 considerably relaxed by the SC. The Court now permits public
interest litigations or social interest litigations at the instance of
public spirited citizens for the enforcement of Constitutional and
other legal rights of any person or group of persons who
because of their poverty or socially or economically
disadvantaged position are unable to approach the Court for
relief.
• In SP Gupta v UOI the SC clarified that any member of public
having sufficient interest can approach the Court for enforcing
constitutional rights of other persons and redressal of a
common grievance. The Court also clarified that it would have
to be decided from case to case as to whether the person
approaching the Court for relief has sufficient interest and has
not acted with mala fides or political motives. Public Interest
Litigation was evolved with a view to render justice to poor,
deprived, the illiterate and downtrodden who have either no
access to justice or had been denied justice.
• In Bandhua Mukti Morch Case v UOI an organization dedicated
to cause of release of bonded labours who informed the SC
through a letter about the plight of bonded labourers. Court
treated the letter as a writ petition and appointed a commission
consisting of 2 advocates to visit these stone quarries and make
an inquiry and report to Court about existence of bonded
labourers.
• In M.C.Mehta v UOI there was leakage of oleum gas from one
of the units of Shriram Foods and Fertilizers. Court while
granting compensation held that under Article 32 it has power
to grant remedial relief which includes the power to grant
compensation in appropriate cases where the fundamental
rights of the poor and disadvantaged persons are violated.
However, Article 32 cannot be used as a substitute for claiming
compensation through the ordinary process of Civil Court. It is
granted in case of gross violation of FR or where the victims are
in a disabled position either economically or socially.
Judicial Activism – The power of Supreme Court for the protection
of constitutional rights of citizens are of the widest amplitude and
Court has adopted activist approach similar to Courts in USA by
issuing directions which may involve taking of positive action with
a view to secure enforcement of fundamental right. Examples are :
i) Hussainara Khatoon v State of Bihar – Court ordered the release
of undertrial prisoners who were kept in jail for many years.
ii) Murali S Deora v UOI – Ban on Public Smoking
iii) M.C.Mehta v State of TN – Child labour
iv) Shriram Food and Fertilizer case – Compensation for victims of
oleum gas case
v) Rural Litigation and Entitlement Kendra v State of UP – Closure
of lime stone quarries
vi) Nilabati Behera v State of Orissa – Compensation for custodial
death. Sovereign immunity was held not available in Public Law as
a defence.
• The SC has clarified that Article 32 itself being a fundamental
right the Court will give relief notwithstanding the existence of
an alternative remedy. The distinction between Article 32 and
Article 226 is that, whereas the right guaranteed by Article 32
can be exercised only for enforcement of fundamental rights
the right conferred by Article 226 can be exercised not only for
enforcement of fundamental rights but for any other purpose.
The power of High Court is wider than the power conferred by
Article 32 as they can issue writs also for enforcement of other
rights. The jurisdiction conferred on SC by Article 32 is an
important part of basic structure of Constitution.
• Rule of Res Judicata states that when a matter had been heard
and decided by High Court under Article 226 the writ under
Article 32 is barred. But there is an exception to rule of res
judicata. It is not applicable in the case of writ of habeas corpus
and where the petitioner has been refused a writ from High
Court he may file a petition for same writ under Article 32.
 TYPES OF WRITS
• Habeas Corpus – It mean “you may have the body.” The writ is
issued in form of an order calling upon a person by whom
another person is detained to bring that person before the
Court and to let the Court know by what authority he has
detained the person. If the cause shown discloses that detained
person has been detained illegally the Court will order that he
be released. The general rule is that an application can be
made by a person who is illegally detained but in certain cases
an application of habeas corpus can be made by any person on
behalf of the prisoner.
• Technicalities and legal necessities are no impediments to the
Court entertaining even an informal communication as a
proceeding for habeas corpus if the basic facts are found. The
burden to justify detention is placed on the detaining authority.
• Mandamus - A writ of mandamus commands a person or
public authority to do or forbear to do something in the nature
of a public duty. The duty sought to be compelled must be a
public duty. A private right cannot be enforced by writ of
mandamus. It is only granted when the applicant has a right to
compel the performance of some duty cast upon the authority.
• Writ of Mandamus cannot be granted to enforce an obligation
arising out of contract. Writ of Mandamus can be issued even
against a private authority in respect of public functions being
discharged by said authority. The Chief function of this writ is to
compel performance of public duties prescribed by Statute.
• Prohibition - Writ of Prohibition is issued primarily to prevent
an inferior court or tribunal from exceeding its jurisdiction or
acting contrary to rules of natural justice. It is issued by a
superior court to inferior courts for the purpose of preventing
inferior courts from exceeding their jurisdiction. When an
 inferior court takes up for hearing a matter over which it has no
jurisdiction, the person against whom the proceedings are taken
can move the Supreme Court for a writ of prohibition.
Prohibition lies only against judicial and quasi-judicial bodies
and does not lie against a public authority.
• Certiorari - Certiorari is generally granted when an inferior
court has acted without or in excess of its jurisdiction. It is also
available when the court or tribunal acts in flagrant disregard of
the procedure prescribed or when there is violation of
principles of natural justice. However the SC in Radhey Shyam &
Anr v Chhabi Nath & Ors has clarified that “inferior courts” does
not refer to judicial courts and hence judicial orders of civil
courts are not amenable to writ of certiorari. So writ of
certiorari lies against patently erroneous or without jurisdiction
orders of tribunals or courts other than judicial courts.
• Quo warranto - By this writ a holder of office is called upon to
show to Court under what authority he holds the office. The
object of writ of quo warranto is to prevent a person to hold an
office which he is not legally entitled to hold. The writ of quo
warranto would be issued by Courts if the person claiming it can
prove that i) the office in question is a public office and ii) it is
held by a person without legal authority. It is not necessary that
the petitioner for quo warranto must have a legal right in the
office. Any member of public can challenge the right of a person
to hold public office.
 Directive Principles of State Policy
• The Directive Principles of State Policy contained in Part IV of
the Constitution set out the aims and objectives to be taken up
by the States in the governance of country. This feature is
borrowed from Constitution of Ireland.
• At one time it was thought that State was mainly concerned
with maintenance of law and order. Such a restrictive role of the
State is no longer valid. Today every Welfare state has the duty
to promote the prosperity and well-being of the people. DPSPs
impose certain economic and social obligations on the State to
promote welfare of the people and achieve economic
democracy.
• The Directive Principles are the ideals which the Union and
State Governments must keep in mind while they formulate
policy or pass a law. The main object in enacting the directive
principles appear to have been to set standards of
 achievements before the Legislature and the Executive, by
which their success or failure can be judged. It was also hoped
that those failing to implement the directives might receive a
rude awakening at the polls.
• Article 38 - Article 38(1) provides that State shall strive to
promote welfare of people by securing a social order in which
justice – social, economic and political – shall inform all
institutions of public life. This directive only reaffirms what has
already been said in the Preamble according to which function
of Republic is to secure to all its citizens social, economic and
political justice. Article 38(2) provides that State shall strive to
minimise inequalities in income, status and opportunities.
• Article 39 – Article 39(a) requires the State to direct its policy
towards equal rights of men and women to adequate means of
livelihood. Article 39 (b) states that there should be distribution
of ownership and control of material resources of community to
 common good. Article 39(c) directs the State to ensure that economic
system does not result in concentration of wealth and means of
production to common detriment. Article 39(d) directs the State to
guarantee equal pay for equal work for both men and women. Article
39(e) directs the State to ensure that children are not forced by
economic necessity to enter avocations unsuited to their age or
strength.
• Pursuant to Article 39(d) Parliament has enacted the Equal
Remunerations Act 1976. In Randhir Singh v UOI the SC has held that
“Equal pay for equal work” though not a fundamental right is
certainly a constitutional goal and therefore it can be enforced
through Article 32. Article 39A directs the State to provide free legal
aid to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.
• Article 41 directs the State to ensure within the limit of its economic
capacity public assistance in case of unemployment, old age sickness
and disablement. (Social Security Measures).
• Article 42 directs the State to make provision for securing just
 and humane conditions of work and for maternity relief.
• Article 43 requires the State to secure living wage to all workers
and full enjoyment of leisure social and cultural opportunities.
Article 43 refers to living wage which is different to minimum
wage. The concept of living wage includes in addition to bare
necessities of life such as food and clothing provisions for
education of children and insurance etc.
• Article 43-A requires the State to take steps by suitable
legislation or in any other way to secure participation of
workers in management of undertakings.
• Article 44 requires the State to secure for the citizens a Uniform
Civil Code throughout territory of India. It is based on the
premise that there is no necessary connection between religion
and personal law in a civilized society. Marriage, Succession and
like matters are of secular nature and therefore they can be
regulated by law.
• Article 45 deals with provision for early childhood care and
education to children below the age of 6 years. This new article
was inserted by 86th amendment Act of the Constitution.
• Article 46 enjoins the State to promote with special care the
education and economic interest of weaker sections of the
people especially SC/ST and to protect them from social
injustice and of all forms of exploitation.
• Article 47 imposes duty on the state to raise the level of
nutrition and the standard of living of its people and to bring
about prohibition of consumption of intoxicating drinks.
• Article 48 directs the State to take steps to organise agriculture
and animal husbandry on modern and scientific lines and to
prohibit slaughter of cows and calves.
• Article 48-A requires the State to take steps to protect and
improve the environment and to safeguard the forests and
wildlife of the country.
• Article 49 requires the State to protect monuments and places
of national importance. Article 50 requires the State to take step
to separate Judiciary from the Executive in public services of the
State. Article 51 provides that the State should strive to a)
promote international peace and security, b) maintain just and
honourable relations between nations, c) foster respect for
international law and treaty obligations and d) encourage
settlement of international disputes by arbitration.
Relation Between DPSPs and Fundamental Rights
• Article 37 makes it clear that the DPSPs unlike Fundamental
Rights are not enforceable by any Court. They do not create any
justiciable right in favour of any individual unlike the
fundamental right which creates negative obligations on the
State. The Directive Principles guide the exercise of legislative
power but do not control the same. Courts were initially of the
opinion that if a law enacted to enforce a DPSP infringes a FR,
 the fundamental right would prevail over the Directive Principles
of State Policy. An example of that would be State of Madras v
Champakam Dorairajan where a govt order in conflict with Article
29(2) was held invalid even though it was made in pursuance of
Article 46. It was held Directive Principles should conform and run
as subsidiary to fundamental rights. DPSPs which were
unenforceable could not override the provisions found in Part III.
• However the 25th amendment added Article 31-C to the
Constitution which changed this position by conferring primacy on
Articles 39(b) and 39(c) over Articles 14, 19 and 31. Article 31-C
provided that a law giving effect to DPSPs under Article 39(b) and
39(c) cannot be challenged on grounds of infringement of FR
under Article 14, 19 and 31. The second part of 31-C said that
when the law in question made a declaration that the law was to
give effect to policies underlying Article 39(b) and 39(c) the courts
would be debarred from reviewing the same .
• The Constitutional validity of Article 31C was challenged in
Kesavananda Bharati v State of Kerala. The SC held the second
limb of the article as invalid. Thus a declaration mentioned in
original article 31-C could not be conclusive. Courts could verify
whether there was a nexus between the Act and the policy of
Directive Principles in Articles 39(b) and (c). If the Courts reach
a conclusion that declaration was merely a pretence and the
real purpose of the Act was accomplishment of some other
object then courts could suffice any provision therein violating
Articles 14, 19 and 31.
• While a law enacted to implement Articles 39(b)and (c) would
not be challengeable under Article 14, 19 and 31 it will not
protect a law which has some remote or tenuous connection
with a directive principle. Invalidation of second limb of Article
31 C avoids the possibility of State legislatures immunizing all
sorts of laws from judicial scrutiny.
• Article 31 C was amended in 1976 by way of Forty-second
amendment. Now Article 31C said that no law giving effect to
any of the Directive Principles would be deemed to be void on
the ground of its inconsistency with Articles 14 and 19. Thus
42nd amendment gave primacy to all Directive Principles, and
not only to Articles 39(b) and (c), over all Articles 14 and 19.
This change was justified on the ground that the rights of the
community must prevail over the rights of the individual.
• However in Minerva Mills v UOI this change was struck down. It
was held that “harmony and balance between FR and DPSP is
an essential feature of the basic structure of the Constitution.” It
was clarified that FR are not an end in themselves but are
means to an end. The end is specified in DPSP. The goals set out
in the Directive Principles are to be achieved without abrogating
the Fundamental Rights. Anything that destroys the balance
between the two parts will destroy the basic structure of
Constitution.
• SC has thereafter started to hold that FR and DPSP are
complimentary and supplementary to each other. The SC has shown
the tendency to interpret Fundamental Rights so as to promote the
values underlying Directive Principles. Directive Principles have been
used to broaden FR and to imply some more rights there from. In
Bandhua Mukti Morcha right to live with dignity enshrined in Article
21 was held to be derived from DPSP. In Unnikrishnan v State of AP
right to education was held implicit in Article 21 with the help of
Article 45. Right to health and social justice has been held to be a FR
of the workers. The Court has derived this right by reading Article 21
along with Articles 39(e), 41 43 and 48-A.
• Similarly Directive Principles are considered to while deciding the
‘reasonableness’ of restrictions under Article 19. A restriction
promoting any of the objectives of the DPSP could be regarded as
reasonable. Thus Article 47 which directs the State to bring about
prohibition of consumption of intoxicating drinks could be considered
while deciding reasonableness of a law imposing prohibition.
 Fundamental Duties
• Fundamental Duties were introduced into Constitution by 42 nd
Amendment of the Constitution. A new part Part IV-A consisting
of Article 51 A has been introduced into the Constitution.
Article 51A lays down the following guidelines: -
a) to abide by Constitution and respect its ideals and
institutions, National Flag and National Anthem
b) to cherish and follow the noble ideals which inspired our
national struggle for freedom
c) to uphold and protect the sovereignty, unity and integrity of
India
d) to defend country and render national service when called
upon to do so
e) to promote harmony and spirit of common brotherhood
amongst all the people of India and to renounce practices
derogatory to women
 f) to value and preserve rich heritage of our composite culture
g) to protect and improve natural environment including forests,
lakes, rivers and wildlife
h) to develop scientific temper, humanism, and spirit of enquiry
and reform
i) to safeguard public property and to abjure violence
j) to strive towards excellence in all spheres of individual and
collective activity
k) who is a parent or guardian to provide opportunities for
education to his child or ward between the age of 6 and 14
years.
• Article 51 A refers only to Indian citizens unlike some
Fundamental Rights which apply to all persons whether citizens
or non-citizens. Some of the duties are enforced through
ordinary law but some other duties like the ones in (b), (f), (h)
are not capable of legal enforcement. These can at best be
 regarded as directory. It has also been held that when Courts
are called upon to examine the reasonableness of a legislative
restriction on exercise of a freedom, the fundamental duties
enunciated under Article 51A are of relevant consideration.
AMENDMENT OF CONSTITUTION
• A federal constitution is generally rigid in character as the
procedure of amendment is complicated. Federal Constitutions
are usually criticized for being too conservative and too difficult
to alter. The framers of our Constitution were aware of this
criticisms but they were also aware of the fact that if the
Constitution was so flexible it would be playing to the whims
and caprices of ruling party. Hence they opted for a method
which is rigid as well as flexible.
• For the purpose of amendment the various Articles of the
Constitution are divided into 3 categories:- i) Amendment by
Simple majority ii) Amendment by Special majority iii)
Amendment by special majority and ratification by states
• A) Amendment by Simple Majority – The amendments
contemplated in Articles 4, 169 and 239-A can be made by
simple majority. These articles are excluded from purview of
procedure prescribed in Article 368.
B) Amendment by Special Majority - Articles of the
Constitution which can be amended by special majority are laid
down in Article 368. These amendments should be effected by a
majority of total membership of the House as well as by a
majority of not less than 2/3 of the members of that House
present and voting.
C) By Special Majority and Ratification by States – In matters
where states have important power under the Constitution any
unilateral amendment may affect the distribution of power.
Hence these Articles require in addition to the special majority
ratification by not less than ½ of State legislatures. The
following provisions require ratification by States: -
 i)Election of President – Article 54 and 55
ii) Articles dealing with SC, HC, - Articles 124 to 147, Articles 214
to 231
iii) Distribution of Legislative powers between Centre and State
– Articles 245 to 255
iv) goods and serviecs tax council – Article 279A
v) Article 368 itself
vi) Lists of vii Schedule etc.
• A bill to amend the Constitution may be introduced in either
House of Parliament. When a Bill is passed by both houses it
shall be presented to the President for his assent.
Amendment of Fundamental Rights – The question whether
fundamental rights can be amended under Article 368 came for
consideration of Supreme Court in Shankari prasad v uoi. The
validity of 1st Constitution Amendment which inserted Article 31
A and 31 B was challenged in this case. It was argued that the
 the word Law in Article 13(2) includes constitution amendment
as well. The SC rejected the argument and held the word Law in
Article 13(2) includes only an ordinary law made in exercise of
legislative powers and does not include constitutional
amendment which is made in exercise of constituent power.
Therefore a constitutional amendment will be valid even if it
abridges any fundamental right.
• In Sajjan Singh v State of Rajasthan the majority judgment given
in Shankari Prasad was approved. But in Goloknath v State of
Punjab the validity of Constitution 17th amendment Act which
inserted certain acts in IX Schedule was again challenged. SC
prospectively overruled its earlier decisions and held that
Parliament had no power to amend the Part III of the
Constitution. It was held that Article 368 merely lays down
procedure to amend Constitution and amendment was held as
a legislative process.
• An amendment was held to be law within the meaning of
Article 13(2) and therefore if it violates any fundamental rights
it may be declared void. It was stated that fundamental rights
are assigned a transcendental place under our Constitution and
therefore, they are kept beyond the reach of the Parliament.
• In order to remove the difficulties created by decision of SC in
Goloknath’s case Parliament enacted 24th amendment Act. It
added a new clause Article 13(4) which provides that nothing in
this Article shall apply to an amendment under Article 368. The
word Power was added to the heading of Article 368. It also
inserted a new subsection in Article 368 which clarified that
Parliament could exercise its constituent power and add, vary or
repeal any provision of the Constitution. Also by inserting
Article 368(3) it was stated that nothing in Article 13 shall apply
to any amendment made under this Article
• The validity of 24th amendment Act was challenged in
 Kesavananda Bharati v State of Kerala. Popularly known as the
Fundamental Right’s Case the validity of 24th,25th and 29th
amendment were challenged in this case. The Court by
majority overruled Goloknath’s case and held 24th amendment
as valid. The Court held that under Article 368 Parliament is not
empowered to amend the basic structure of Constitution. It was
held that there are inherent or implied limitations on amending
power of Parliament and the power to amend does not include
power to abrogate the Constitution. The Court by a majority of
7 to 6 held Parliament has wide powers to amend the
Constitution including every Article, but that does not include
the power to destroy or abrogate the basic structure of
Constitution.
• Basic structure are systematic principles underlying and
connecting provisions of Constitution. These principles are part
of Constitutional law even if not expressly stated.The main
object behind the theory is continuity of identity of Constitution
• Supremacy of the Constitution, Republican and democratic forms
of govt, separation of powers between legislature and executive
etc were held to be part of basic structure of Indian Constitution.
But Judges made it clear that they were only illustrative and not
exhaustive. It will have to be determined on the basis of facts in
each case.
• In Indira Gandhi v Raj Narain it was held that free and fair
elections were part of basic structure of Constitution. In Minerva
Mills v UOI harmony and balance between FR and DPSP was held
as part of basic structure along with limited power of Parliament
to amend the Constitution. Judicial review is also held a basic
feature of Indian Constitution.
• In Waman Rao an act prescribing ceiling limit on agricultural
holding was inserted in IX Schedule. The SC held that various
constitutional amendments by which additions were made to IX
Schedule on or after April 24, 1973, will be held valid only if they
do not damage or destroy the basic structure of Constitution.