The Constitution of India

College of Law

IIMT University, O Pocket Ganga Nagar Mawana

The Nature of the Constitution of India
Introduction

There is a huge difference of opinion when it comes to the nature of the Indian
Constitution. Some jurist like Kenneth C Wheare, said that India is quasi-federal
i.e. “similar to a federal system” because it has some features of federal and some
of the unitary Constitution. However, according to the makers of the Constitution,
it is federal in nature. Even Dr. B. R. Ambedkar defined it as a federal Constitution,
although the centre has certain powers to override the provinces.
The question of whether the Indian Constitution could be actually called a federal
Constitution could not be answered without looking into the meaning of federalism
and the essential features that are evident in a federal state.
Is the Constitution of India Federal?

There are certain features which are essential to

be present in the federal Constitution.
Federal Principle
The basic principle of federalism is the “division of power”. The centre and the
state are not subordinate but coordinate with each other. They work independently
in their own sphere. In other words, it seeks to bring unity in diversity and the
achievement of common national goals. Prevention, as well as the settlement of
conflict of the interests of the Centre and the States, is an important part of
federalism. This is the reason why the Indian federalism was devised with a strong
Centre. The Indian Constitution has adopted federal features, though it is not a
complete federal nation.
Essential characteristics of a federal
Constitution :

There are various characteristics which are quintessential for a Constitution to be termed as a
federal Constitution.
1- Supremacy of law
2- Distribution of Power
3- Written Constitution
4- Rigidity
5- Authority of Courts
1- Supremacy of Law
The Constitution is the supreme law. The term “law” involves rules, regulations,
bylaws, notifications, orders, ordinances and even the customs having a force of
law. A federal-state derives its existence from the Constitution. Every type of
power; be it legislative, administrative or judicial, irrespective of it being at the
centre or the state level, is controlled by or is subordinated to the Constitution.
Article 13(2) provided that the State shall not make any law which takes away
any of the rights guaranteed under Part III of the Indian Constitution and to the
extent of such contravention, the law is considered void.
2- Distribution of Power
In federalism, distribution of power forms an important and integral part. Distribution of power
between the centre and the state and other coordinate bodies present in the Constitution.
This division of governmental powers into national and regional governments is done by way of 3 lists
which are the Union, State and the Concurrent lists. These lists provided in the 7th Schedule to the
Constitution. Only the Central government deals with the issues mentioned in the Union List. State
government legislates on the areas mentioned in the State List while the Concurrent List contains
subjects where both the Center and the State can function. This concept is borrowed from the Canadian
Constitution. However, there are certain items which do not present in any of these three lists. These are
called residuary powers and lie primarily with the Centre as per the Entry 97 of Article 248. The reason
behind this is to make the Parliament competent enough to legislate on any subject which is not
identifiable at present. Thus, the principle of division of powers, which the concept under context,
promotes, highlights the federal structure of the Indian Constitution.
3- Written Constitution
A federal Constitution must be written. Since the federal nature of the Constitution involves a
lot of contracts hence it would be impractical not to have these written. Moreover to maintain
the supremacy of the Constitution it is imperative to have a written Constitution.
The United Kingdom does not have a written Constitution and therefore it is not regarded as
a federal country. The States in a federal system, come together and enter into a treaty and
the terms of the treaty are required to be in writing in the form of a written Constitution.
There is no denial of the fact that a written Constitution brings stability in the overall
governance of the country. If there were no written Constitution defining the scope of the
powers of Centre and the States, there will be chaos and confusion. Moreover,
misunderstandings and conflicts will arise between the Centre and the States who would seek
to cross over each other’s authority.
4- Rigidity
The Constitution should be rigid and permanent. A lousy set of the document cannot be said to a federal
Constitution. The method of the amendment should be rigid, otherwise, the basic principles of the Constitution
would be under threat. However, the rigidness of the Constitution should not be confused with inflexibility.
The Constitution is an organic document and should be flexible enough to accommodate according to the
changing times.
Rigidity in a Constitution also means that it cannot be amended unilaterally without the participation of the
states. In the United States, that is an example of classical federalism, it is an established rule that no part of
the Constitution can be amended without the ratification of at least 3/4th of the individual States. Another
example is Switzerland, where no amendment can be brought into force unless it is ratified by a majority of
votes i.e. referendum. Same is the case with Germany, where the states do have a major role to play in the
amendment of the Constitution but even the German parliament cannot amend as far as the federal features are
concerned like division of the federation into States or the participation of the States in making amendments in
the legislature, these features are exclusively made non-amendable because Germany is also a federal country.
5- Authority of Courts
The judiciary has the final authority to interpret the Constitution. The rationale for this provision is
that only an independent tribunal which is authorized to resolve disputes between the Centre and the
States could impartially resolve all the disputes between the Centre and the State government. As
regards to India, the Supreme Court is that federal tribunal which has such powers and competency.
The Supreme Court is authorised, to exercise such power, by way of the Article 131 of the Indian
Constitution. However, for solving the Inter-State Water Disputes the parliament has to create an ad-
hoc tribunal to resolve a specific water dispute between two states, for instance, the Cauvery Water
Disputes Tribunal which is dealing with the water dispute between Kerala, Karnataka and Tamil
Nadu. This power given to the Central Government to create a separate tribunal is although small but
significant unitary feature, the Bedgaon Border dispute case pending in Supreme Court. It is between
Maharashtra and Karnataka in which Maharashtra claims that the majority of the people in that region
are Marathi speaking so the region should belong to them while the Karnataka demands just the
opposite. Thus, an independent judicial court is a very necessary federal feature of the Constitution.
Provisions of the Constitution not supporting the
federal principle
Indian Constitution lays down a double polity system, where the Central Government is neither merely the
league of States nor the States that are the administrative units or agencies of the Central Government because
they have their own Constitutional identity. However, there are some strong centralizing tendencies present in
the Indian Constitution which confer maximum power on the Central Government. The reason for this
centralisation dates back in history at the time when the Constitution was made. At the time of the partition of
the country, the framers thought that if the Central government is not strong, then the country would get
fragmented. The Philadelphia Convention which resulted in the formation of the US Constitution also
mentioned the term “union”. This term was mentioned there in order to make it a more perfect Union and in
the express terms. It is highly probable that the intention of the Constituent Assembly behind adding the
expression Union was that they wanted to give an impression that it was an indestructible Union. They must
have been feared about the potential Balkanization of the Indian Union. The policy so adopted by the
Constituent Assembly was to have an intrinsic partiality in the favour of Centralization i.e. a unitary in spirit.
1) Appointment of Governors
2) Parliament’s power to legislate in the national interest
3) Parliament’s power to form new States and alter the
boundaries of existing States
4) Emergency provisions
1) Appointment of Governors
Appointment of the Governors of various States is done by the Central government. Governor is the
Constitutional Head of the State simultaneously he is also the representative of the Centre. The
Central government, under Article 355 has to ensure that there is no failure of Constitutional
machinery in the State and the states are protected from internal and external disturbance. So, to carry
out that mandate, the Central government has the authority under Article 356 of the Indian
Constitution, to impose President’s rule in the state, and it is the duty of the governor who has to
inform the Centre about the failure of the Constitutional machinery of the State. Governor, unlike
President, enjoys some discretionary powers i.e. he can keep a bill for the consideration of the
President. The Sarkaria Commission which studied the Centre-State Relations made certain
suggestions regarding the appointment of the governor in the state because there was no effective
consultation by the central government to the Chief Ministers of the States during such appointments.
It was thus recommended that the Governors should be some eminent person from any sphere of life.
2) Parliament’s power to legislate in the national
interest

Under Article 249, Parliament is empowered to make laws with respect to every matter enumerated in the
state list only if the Rajya Sabha passes the resolution by a two-thirds majority that it is necessary for the
national interest.
The Parliament makes law and it remains in force for 1 and 1/2 years i.e. the law will cease to have any
effect, 6 months after the resolution comes to an end because the resolution remains in force for 1 year.
The Centre can also make law if there is a request or consent by 2 or 3 States and such law could be
adopted by other States. When the national emergency is declared, the Central government gets concurrent
legislative power to make certain laws under the state list and if there is a conflict between the two, the
central law would proceed.
3) Parliament’s power to form new States and alter the
boundaries of existing States

Article 2 and Article 3 of the Indian Constitution, give the power to the Parliament to redraw the political map of
India; to create and abolish the name of the states, alteration of the boundaries of the States or even change their
names all this can be achieved by way of a simple majority in the Parliament. Moreover, the Constitution only
provides for consultation by the Centre of the concerned State. For example–when Andhra Pradesh was divided into
Telangana, then Andhra Pradesh Assembly had passed a resolution opposing the step, irrespective of the opposition
the Central Government continued with the separation. The provision, therefore, provides the consultation with the
State Assemblies. The President can only prescribe a time frame within which the State Assembly has to take a
decision on the proposal of separation of the State or to a merger of States. Examples such as Uttarakhand, Jharkhand
and Chattisgarh are also present. In 2007 too, the name of Uttaranchal was changed to Uttarakhand, this too was done
without amending the Constitution. Hence, the Central government has an upper hand as far as the creation or
abolition of the States is concerned.
4) Emergency Provisions

When the proclamation of an emergency takes place, the division of power

between the centre and the state takes a vital change. Under Article 356 of the
Constitution of India, if the President deems right that the condition of
governance of the state can’t take place according to the principles of the
Constitution, then the President can dissolve the legislature and other state
machinery and he can himself assume all the state’s functions.
Conclusion
The Indian Constitution empowers the Centre to interfere in the State matter
and thus places the State in a subordinate position which violates the federal
principles, therefore Indian Constitution is neither purely federal nor purely
unitary but it is a combination of both, It is quasi-federal Constitution i,e,
“unitary with federal features” or “federal with unitary features”.
.D. Basu’s conclusion on this point is that “The Constitutional system of India
is basically federal, but of course, with striking unitary features.”
Salient Features of the Constitution of
India:

The Constitution of India is a unique constitution. It is the largest written

liberal democratic constitution of the world. It provides for a mixture of
federalism and Unitarianism, and flexibility and with rigidity. Since its
inauguration on 26th January 1950, the Constitution India has been
successfully guiding the path and progress of India.
The salient features of the Constitution of
India can be discussed as follows:
(1) Written and Detailed Constitution:
• The Constitution is a wholly written document which incorporates the constitutional law
of India. It was fully debated and duly enacted by the Constitution Assembly of India. It
took the Assembly 2 years, 11 months and 18 days to write and enact the Constitution.
• Indian Constitution is a very detailed constitution. It consists of 395 Articles divided
into 22 Parts with 12 Schedules and 94 constitutional amendments. It is a constitution of
both the Centre and states of Indian Union It are indeed much bigger than the US
Constitution which has only 7 Articles and the French Constitution with its 89 Articles.
(2) Self-made and Enacted Constitution:

• Indian Constitution is a constitution made by the people of India acting

through their duly elected and representative body. The Constituent Assembly
that was organised in December 1946. Its first session was held on 9th
December, 1946. It passed the Objectives Resolution on 22 January, 1947.
• Thereafter, it initiated the process of constitution-making in the right earnest
and was in a position to finally pass and adopt the constitution on 26th
November, 1949. The constitution became fully operational with effect from
26th January 1950. We celebrate this day as our Republic Day. The
Constitution of India is thus a self-made and duly enacted constitution.
(3) Preamble of the Constitution:

The Preamble to the Constitution of India is a well drafted

document which states the philosophy of the constitution. It declares
India to be a Sovereign Socialist Secular Democratic Republic and a
welfare state committed to secure justice, liberty and equality for
the people and for promoting fraternity, dignity the individual, and
unity and integrity of the nation. The Preamble is the key to the
constitution. It states in nutshell the nature of Indian state and the
objectives it is committed to secure for the people.
(4) India is a Democratic Socialist State:

Although, right from the beginning the Indian Constitution fully

reflected the spirit of democratic socialism, it was only in 1976 that
the Preamble was amended to include the term ‘Socialism’. It is now
regarded as a prime feature of Indian state. India is committed to
secure social, economic and political justice for its entire people by
ending all forms of exploitation and by securing equitable distribution
of income, resources and wealth. This is to be secured by peaceful,
constitutional and democratic means.
(5) India is a Secular State:
India gives special status to no religion. There is no such
thing as a state religion of India. This makes it different from
theocratic states like the Islamic Republic of Pakistan or other
Islamic countries. Further, Indian secularism guarantees equal
freedom to all religions. The Constitution grants the Right to
Religious Freedom to all the citizens.
(6) India is a Democratic State:

• The Constitution of India provides for a democratic system. The authority of

the government rests upon the sovereignty of the people. The people enjoy
equal political rights. On the basis of these rights, the people freely
participate in the process of politics. They elect their government.
• Free fair and regular elections are held for electing governments. For all its
activities, the government of India is responsible before the people. The
people can change their government through elections. No government can
remain in power which does not enjoy the confidence of the people. India is
world’s largest working democracy.
(7) India is a Republic:

The Preamble declares India to be a Republic. India is

not ruled by a monarch or a nominated head of state.
India has an elected head of state (President of India)
who wields power for a fixed term of 5 years. After
every 5 years, the people of India indirectly elect their
President.
(8) India is a Union of States:
Article I of the Constitution declares, that “India that is Bharat
is a Union of States.” The term ‘Union of State’ shows two
important facts:

(i) That Indian Union is not the result of voluntary agreement among
sovereign states, and
(ii) that states of India do not enjoy the right to secede from the Union. Indian
Union has now 28 States and 7 Union Territories.
(9) Mixture of Federalism and Unitarianism:
While describing India as a Union of States, the Constitution provides for a federal structure with a
unitary spirit. Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a federation with
a unitary bias, or even as ‘a Unitarian federation.’

Like a federation, the Constitution of India provides for:

(i) A division of powers between the centre and states,
(ii) A written, rigid and supreme constitution,
(iii) Independent judiciary with the power to decide centre-state disputes and
(iv) Dual administration i.e. central and state administrations. However, by providing a very strong
centre, a common constitution, single citizenship, emergency provisions, common election commission,
common all India services etc. the Constitution clearly reflects its unitary spirit.
India is a federation with some Unitarian features. This mixture of federalism-Unitarianism has been
done keeping in view both the pluralistic nature of society and the presence of regional diversities, as
well as due to the need for securing unity and integrity of the nation.
(10) Mixture of Rigidity and Flexibility:
The Constitution of India is rigid in parts. Some of its provisions can be amended in a difficult way
while others can be amended very easily. In some cases, the Union Parliament can amend some parts of
the Constitution by passing a simple law.
• Article 368, of the Constitution provides for two special methods of amendment:
(i) Most of the provisions of the Constitution can be amended by the Union Parliament by passing an
Amendment Bill by a majority of total membership and 2/3rd majority of members present and voting
in each of its two Houses.
(ii) For the amendment of some specified parts, a very rigid method has been provided. Under it, first
the Union Parliament passes the Amendment Bill by a majority of total membership and 2/3rd majority
of members present and voting in each house , and then it goes to the State Legislatures for ratification.
The Amendment gets passed only when it is approved by not less than one half of the several states of
the Union.
• Thus the Constitution of India is partly rigid and partly flexible.
(11) Fundamental Rights:

Under its Part III Articles 12-35), the Constitution of India grants and
guarantees Fundamental Rights to its citizens. It is called the Indian
Bill of Rights. Initially, 7 Fundamental Rights were granted but after
the deletion of the Right to Property from the list of Fundamental
Rights (44th Amendment Act 1979) their number came down to six.
The Six Fundamental Rights are:
(i) Right to Equality:
(ii) Right to Freedom:
(iii) Right against Exploitation:
(iv) Right to Freedom of Religion:
(v) Cultural and Educational Rights:
(vi) Right to Constitutional Remedies (Art. 32):
(12) National Human Rights Commission (NHRC) and State
Human Rights Commission and Protection of Human Rights:

• With a view to protect the human rights of all the people the Protection of Human Rights
Act. 1993 was passed by the Union Parliament. Under it the National Human Rights
Commission was established. It is headed by a former Chief Justice of India. It acts as an
independent commission with a status of a civil court. It works for preventing the violations
of human rights of the people.
• Its cases of proved violations of human rights, the NHRC can order the grant of
compensation to the victims. Several State, Human Rights Commission are also working for
the protection of Human Rights. India is fully committed to protect the human rights of all
the people of the world.
(13) Fundamental Duties of the Citizens:
In its Part IVA (Article 51 A) the Constitution describes the following Fundamental Duties of a citizen:

1. Respect for the Constitution, the national flag and the national anthem;
2. Cherish the noble ideals of the freedom struggle;
3. Uphold and protect the sovereignty, unity and integrity of India;
4. Defend the country and render national service when called;
5. Promote the common brotherhood of all the people of India and renounce any practice derogatory to the dignity of women;
6. Preserve the rich heritage of the nation’s composite culture;
7. Project the natural environment and have compassion for living creatures;
8. Develop scientific temper, humanism and spirit of inquiry and reform;
9. Safeguard public property and abjure violence; and
10. Strive for excellence in all individual and collective activity.
11. Duty of the parents to send their children to schools for getting education.

• The Fundamental Duties are, however, not enforceable by the courts.

(14) Directive Principles of State Policy:

Part IV of the Constitution dealing with the ‘Directive

Principles of State Policy’ provides one of the most striking
features of the Indian Constitution. The Directive Principles
are instructions to the state for securing socio-economic
developmental objectives through its policies. These are to
be implemented by both the Union for the States.
(15) Bi-Cameral Union Parliament:

• The Constitution provides for a Bicameral Legislature at the Union level and names it as the Union Parliament. Its two Houses are: The Lok
Sabha and the Rajya Sabha. The Lok Sabha is the lower, popular, directly elected house of the Parliament. It represents the people of India.
• Its maximum strength stands fixed at 550. Presently Lok Sabha has 545 members. The people of each state elect representatives in proportion
to their population. Orissa has 21 seats out of which some seats are reserved for the people belonging to SCs and STs.
• Members of the Lok Sabha are directly elected by the people of India. All men and women of 18 years or above of age whose names are
registered in the voters lists vote in elections for electing the members of Lok Sabha .Every voter of 25 years or above of age is eligible to
contest elections to the Lok Sabha. The tenure of the Lok Sabha is 5 years. But the President acting under the advice of Prime Minister can
dissolve it earlier also.
• The Rajya Sabha is the upper and, indirectly elected second House of Parliament. It represents the states of the Indian union. Its maximum
membership can be 250. Presently, the Rajya Sabha has 245 members. Out of these 233 members are elected by all the State Legislative
Assemblies and 12 are nominated by the President from amongst eminent persons from the fields of Art, Science and Literature. Rajya Sabha is
a quasi-permanent house. Its 1/3rd members retire after every two years. Each member has a tenure of six years. Orissa has 10 seats in the
Rajya Sabha.
• Of the two houses, of Parliament, the Lok Sabha is a more powerful House. It alone has financial powers. The Union Council of Ministers is
collectively responsible before the Lok Sabha. However, the Rajya Sabha is neither as powerless as the British House of Lords and nor the Lok
Sabha is as powerful as the British House of Commons.
(16) Parliamentary System:
• The Constitution of India provides for a parliamentary system of government at the Centre as well as in every state
of the Union. The President of India is the constitutional head of state with nominal powers. The Union Council of
Ministers headed by the Prime Minister is the real executive. Ministers are essentially the members of the Union
Parliament.
• For all its policies and decisions the Council of Ministers is collectively responsible before the Lok Sabha. The Lok
Sabha can remove the Ministry by passing a vote of no-confidence. The Cabinet, in fact the Prime Minister has the
power to get the Lok Sabha dissolved by the President. On similar lines a parliamentary government is also at
work in each state.
(17) Adult-Suffrage:
Another feature of the Constitution is that it provides for universal
adult suffrage. All men and women enjoy an equal right to vote.
Each adult man and woman above the age of 18 years has the right
to vote. All registered voters get the opportunity to vote in elections.
(18) Single integrated State with Single
Citizenship:

India is the single Independent and Sovereign integrated state. Presently

it has 28 states and 7 Union Territories. All citizens enjoy a common
uniform citizenship. They are entitled to equal rights and freedoms, and
equal protection of the state.
(19) Single Integrated Judiciary:

The Constitution provides for a single integrated judicial system common for
the Union and the states. The Supreme Court of India works at the apex level,
High Courts at the state level and other courts work under the High Courts.
There are 21 State High Courts working in all parts of India. Orissa High
Court has been in existence since 1948 and it is located at Cuttack. The
Supreme Court is the highest court of the land. It controls and runs the judicial
administration of India.
(20) Independence of Judiciary:

The Indian Constitution makes judiciary truly independent. It is clear from

the following facts:

(a) Judges are appointed by the President,

(b) Only persons with high legal qualifications and experience are appointed as judges,
(c) Judges of the Supreme Court cannot be removed from office except through an extremely difficult process of
implement.
(d) The salaries of the judges are very high,
(e) The Supreme Court has its own staff. Indian judiciary has an autonomous organisation and status. It works as an
independent and powerful judiciary.
(21) Judicial Review:
The Constitution is the supreme law of the land. The Supreme Court acts as
the guardian protector and interpreter of the Constitution. It is also the
guardian of the Fundamental Rights of the people. For this purpose it
exercises the power of judicial review. By it, the Supreme Court determines
the constitutional validity of all laws made by the legislatures. It can reject
any law which is found to be unconstitutional.
(22) Judicial Activism:
Currently, Indian judiciary has been becoming more and more active
towards the performance of its social obligations. Through Public Interest
Litigation system (PIL) as well as through a more active exercise of its
powers, the Indian judiciary has been now very actively trying to secure all
public demands and needs due to them under the laws and policies of the
state.
(23) Emergency Provisions:

The Constitution of India contains special provisions for dealing with emergencies.
It recognises three types of possible emergencies:

(1) National Emergency (Article 352) an emergency resulting from war or external aggression or threat of
external aggressions against India or from armed rebellion within India or in any of its part;
(2) Constitutional Emergency in a State (Article 356) an emergency resulting from the failure of constitutional
machinery in any state; or some states and
(3) Financial Emergency (Article 360) an emergency resulting from a threat to financial stability of India.
The President of India has been empowered to take appropriate steps for dealing with these emergencies. During
the period of an emergency, the powers of the President, actually of the PM and the Union Council of Ministers
Cabinet increase tremendously. President can take all steps deemed essential for meeting an emergency. These
are called emergency powers of the President.
(24) Special Provisions relating to Scheduled Castes and
Scheduled Tribes:

With a view to protect the interests of people belonging to Scheduled Castes and Scheduled Tribes,
the Constitution lays down certain special provisions. It provides for reservation of seats in the
legislatures for the people belonging to Scheduled Castes and Scheduled Tribes. President can
nominate in Lok Sabha not more than two members of the Anglo-Indian Community in case he is of
the opinion that this community is not adequately represented in the House.
Reservation of some jobs for the people belonging to SCs, STs and OBCs has also been in
operation. The reservation system has been now extended upto the year 2020.Presently, a bill for
granting 33% reservation of legislative seats for women is in the process of getting enacted into law.
(25) Provisions regarding Language:
The Constitution lays down special provisions for defining the Language of the Union, Regional
Languages and Language of the Supreme Court and High Courts. It states that the official language of
the Union shall be Hindi in Devnagri script. But along with this, it also provides for the continuance
of English language. A state legislature can adopt the language of the province as its official language.
English continues to be the language of the Supreme Court and the High Courts. The Constitution
gives a directive to the Union to develop Hindi and popularise its use. In its Eighth Schedule, the
Constitution recognises 22 modern Indian Languages — Assamese, Bengali, Gujarati, Hindi,
Kannada, Kashmiri, Malayalam, Marathi, Oriya, Punjabi, Nepali, Manipuri, Konkani, Sanskrit,
Sindhi, Tamil, Telgu, Urdu, Bodo, Dogri, Maithli and Santhali.
(26) A Constitution Drawn from several Sources:
In formulating the Constitution of India, the founding fathers used several sources. The values and ideals of the national
movement guided their path. The national movement influenced them to adopt secularism as the ideal. Some provisions
of Government of India Act 1935 were used by them and several features of foreign constitutions influenced them, and
were adopted by them.
In adopting parliamentary system and bicameralism, the British Constitution influenced them. The US Constitution
influenced them in favour of republicanism, independence of judiciary, judicial review and bill of rights. The progress of
the (former) USSR after the 1917 Socialist Revolution influenced them to adopt socialism as a goal. Likewise, they were
influenced by the constitutions of Canada, Australia, Weimar Republic (Germany) and Ireland.
With all these features, the Indian Constitution is a constitution best suited to the Indian environment. The Constitution
has been helping India to organise and run her government and administration in an effective way both in times of peace
and war. The basic structure of the Constitution i.e. its most fundamental features can be described as: Preamble,
Fundamental Rights, Directive Principles, Secularism, Federalism, Republicanism, Independence of Judiciary, Rule of
Law, and Liberal Democracy.
Constitution of India/Citizenship

Citizenship constitutes the indispensable foundational principle of democratic polity.

According to Merriam-Webster Dictionary, a citizen means a person owing allegiance
to and entitled to the protection of a sovereign state. Citizenship provides rights such
as right to vote, and are also subjected to duties or obligation, such as paying taxes.
Citizenship is covered in Part II of the constitution, within articles 5-11. It took an
Citizenship
Article 5-8 conferred citizenship on each person who met the criteria below at the

• commencement of the Constitution:

• Domiciled in India and born in India
• domiciled not born in India but either of whose parents was born in India
• domiciled, not born in India but ordinarily resident for more than five years
• resident in India but migrated to Pakistan after 1 March 1947 and later returned to India on resettlement permit
• resident in Pakistan but who migrated to India after 19 July 1948 or who came after that date but had resided for more
than six months and got registered in prescribed manner
• resident outside India but who or either of whose parents or grandparents were born in India

Thus, Citizenship at the commencement of the constitution included provisions for Citizenship-by domicile, of migrants
Domicile

Domicile of a person is his permanent home. No person can be without a domicile and no person may have more
than one operative domicile. National boundaries do not constitute a hindrance in one’s choice of domicile. This
implies that a person may be national of one country, but his/her domicile may be another country. Domicile denotes
the connection of a person with a territorial system of law. In fact, citizenship is denoted by domicile and not vice-
versa. The latter is distinguishable from citizenship in as much as it is vitally connected with territory and not
membership of the community which is at the root of the notion of citizenship
There is only one citizenship, which is of the Union of India, there is no separate state Citizenship as in the United
States of America.
Migrants from Pakistan:

Article 6 provides citizenship rights to migrants from Pakistan before commencement of

constitution. A person who migrated from Pakistan to India before 19 July 1948 shall be
considered a citizen of India, provided either of the person's parents or any of his grandparents
were born in India as stated in the Government of India act, 1935 and has been residing since the
date of migration. For person/s migrated after 19 July 1948, the person should be registered as a
citizen of India by an officer from the Government of India, but for registration the subjected
person has to be a resident of India for at least six months, at the date of his application
Migrants to Pakistan

Article 7 makes special provisions regarding the citizenship rights of persons who migrated
to Pakistan after March 1 1947 but returned to India subsequently. Such person/s become
entitled to Citizenship of India, provided they fulfill the conditions stated for Migrants from
Pakistan stated in Article 6. IS is necessary that in such cases to the visits of the migrants
must not be for short/limited periods or be of a temporary nature or on purposes of business
or otherwise. It has to be noted that such cases are subjected to this article, as they were
before the commencement of the constitution, cases pertaining to the period thereafter are
Persons of origin residing outside India:
Article 8 provides that any person who or either of whose parents or grandparents was
born in India as defined in Government of India Act 1955 and who is ordinarily
residing in any country outside India shall be deemed to be a citizen of India if he has
registered as an Indian Citizen by the diplomatic or consular representative of India in
that country on an application made by him/her in the prescribed form to such
diplomatic or consular representative, whether before or after the commencement of the
Constitution.
Voluntary Acquisition of Citizenship of foreign
state:

Article 9 states no person shall be a citizen of India by virtue of

article 5, or be deemed to be a citizen of India by virtue of article
6 or article 8, if he has voluntarily acquired the citizenship of any
Continuance of the rights of citizenship:

Article 10 reads, every person who is or is deemed to be a citizen of India under any
of the foregoing provisions of article 5-10 shall continue to be a citizen of India,
subject to the provisions of any law that may be made by Parliament. In the other
words, the right of citizenship cannot be taken away from a person except through
express parliamentary legislation.
Parliament to regulate the right of citizenship by
law:

Article 11 in the foregoing provisions of this Part shall derogate

from the power of Parliament to make any provision with respect
to the acquisition and termination of citizenship and all other
matters relating to citizenship.
Indian Citizenship Act 1955

The Citizenship Act, 1955 that came into force with effect from 30th December 1955 deals with matters relating to the acquisition, determination
and termination of Indian citizenship. It provides for the acquisition of Indian citizenship by birth, by descent, by registration and by naturalization.
The act has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act
2003, the Citizenship (Amendment) Act, 2005, and the Citizenship (Amendment) Act, 2019.
The Original Act provided
• a person born in India after 26 January 1950 would, subject to certain exceptions be a citizen of India by Birth
• anyone born outside India after 26 January 1950, subject to certain requirements, would be a citizen of India if his/her father was an Indian
citizen at the time of his/her birth
• under certain conditions, certain category of persons could acquire Indian citizenship by registration in prescribed manner
• foreigners could acquire Indian citizenship on application for naturalization on certain conditions
• if any territory became part of India, the Government of India could by order specify the persons who would become citizens of India as a result
thereof
• citizenship could be lost by termination renunciation or deprivation on certain grounds
• a citizen of commonwealth country would have the status of commonwealth citizen of India. Government could make suitable provisions on the
basis of reciprocity.
What is equality and social justice?

Equality is when each person is seen as equal in the eyes of the law.
• A government that protects human rights makes one set of laws for everyone, not different laws for different
people.
• In the past, the law has discriminated against some groups based on their race, religion, gender, or sexuality.
• Social justice is when each person can exercise their rights within a society.
• A government that promotes social justice ensures that everyone has physical security, education, healthcare, and
employment.
Discrimination:
‘Discrimination’ is choosing to favour one thing over another.

• We discriminate all the time.

• We choose clothes of a certain colour over others, certain foods over others.
• We sometimes call people ‘discriminating’ to show that they have good taste.
• The problem is when we discriminate against people.
• Too often, people are discriminated against because of who they are.
• They may suffer from unemployment, lower wages, abuse, or violence because of their gender, race, religion, or
sexuality.
What causes discrimination?

• Most of us feel comfortable around people who are similar to us.

• We have a natural inclination to treat people like ourselves well.
• We fear the unknown and may feel challenged by people who do not share our
outlook on the world.
• In a fair and equal society, everyone learns about others and respects their views.
• We are less likely to fear people when we make an honest effort to understand how
What are the consequences of discrimination?

Victims of discrimination do not enjoy equality and social justice.

They are less likely to receive fair treatment in the courts, and have less security, education, and healthcare than
others.

They are more likely to be:

• Verbally and physically attacked
• Depressed
• Lonely
• Fearful and hateful of society
What is Article 14: Right To Equality

Article 14 of the Indian Constitution envisages the ‘Right to

Equality’ before the law. This ‘Right to Equality’ applies to all the
foreigners and Indians. Let us know in this article what kind of
equality does this article talks about?
Reasonable Classification and its Validity Under
[Article 14]:

Article 14 in India’s Constitution guarantees the right to equality for

every citizen of the country. It encompasses the general principles of
equality before the law and prohibits unreasonable discrimination
between two persons. It incorporates the idea of equality expressed in the
preamble.
Equality before Law [Article 14] :

• It is declared in the article that ‘the State shall not deny to any person equality before the law or equal protection of
law within the territory of India.’ The expressions of equal protection of law and equality before the law are
enshrined in the constitution. They guarantee the fundamental rights and aim to establish equality of status. The
two expressions seem identical, but they do not convey similar meanings.

Origin of Equality before Law

• The term has its origin from America and is somewhat a negative concept aiming at the implication of an absence
of some special privileges. This can be by the reason of birth, religion, sex, caste, etc and by the ordinary law in
favour of persons and all the equal subject of classes.
Equal Protection of Law:

The term has its origin from Britain and is somewhat a positive
concept aiming at equal treatment in identical situations. In other
words, the President or the Prime Minister of the country should be
Rule of Law
The Rule of Law in England called by Dicey is an aspect of the guarantee of
equality before the law. This means that irrespective of the rank of a person, his
condition would be subject to the jurisdiction of ordinary courts as no man is above
law. It is a requirement of the rule of law that no man should be subjected to
uncivilized, discriminatory and harsh treatment. This would be applicable even
when the objective is to secure a paramount need of law and order.
Meaning of the Rule of Law
The three meanings as given by Professor Dicey of the Rule Of Law are:

(i)- Supremacy of the law or the absence of arbitrary power:

(ii)- Equality before law:
(iii)- Absence of individual liberty:
 Rule of Law In India

(i) Supremacy of Law:

The very first meaning is that in goods no person is punishable or can be legally made to suffer. This is except for a
distinct infringement of law established in an ordinary legal manner before the land’s ordinary courts. It means a
person can be punished for an infringement of the law but can not be held responsible and punished for anything
else. Except in the case of a breach of law, a person cannot be punished. In accordance with the ordinary procedure,
an alleged offense needs to be proven in front of the court.
(ii) Equality before Law:

A person irrespective of his rank or condition would be subject to

the realm of the ordinary law. He would be amenable at the
jurisdiction of ordinary tribunals. Under Article 14, every person
has equal protection and is equal before law.
(iii)Individual Liberty:

Article 21 provides protection of life and personal liberty while Article 19 provides right to freedom which mentions
individual liberty like a fundamental right. The first and second of the Dicey’s rule apply to the Indian system but not
the third aspect of it. This is because the Constitution of India is the source of the right of individuals. Constitution is
the supreme law of the land. The laws passed by the legislature must be in consistency to the provisions of the
Constitution. A duty is imposed by the rule of law upon the state as a special measure so as to prevent and punish the
brutality of the police methodology. A basic feature is the embodiment of the rule of law in Article 14 of the Indian
constitution. Under Article 368 also, it cannot be destroyed or amended.
Exception To Rule of Law

The above mentioned rule of equality is not an absolute rule and contains a lot many exceptions to it and they are:
• The meaning of equality of law is not that the power lying at the hands of the private citizens is the same as that of
the public officials. The rule of law requires that the powers of the public officials must be clearly defined. The
abuse of such power or authority by the officials must be punishable in the courts. Example- No private person can
arrest another person whereas a police officer has the power to do so. This is not a violation of the rule of law.
• A certain class of people being subject to some special rules are not prevented by the rule of law. Example- Armed
forces members are controlled by their military rules; the medical council of India controls the medical practitioners.
• Special rules in the professions govern those specific members of society. These people are treated differently from
other citizens. Example- Doctors, police, lawyers, nurses, members of the armed forces, etc.
Reasonable Classification

If the classification is made on a reasonable basis, the legislature can deal with two sets of individuals. A reasonable
classification must be based on smart differences. This means that collectively grouped persons or things make a
properly defined, distinct class and may be exceptional from those left out of the group. Furthermore, this
classification basis must have a rational nexus to the object that the legislation in question seeks to achieve.
• Illustration- The law on maternity benefits applies to women working on the way to maternity, not to others.
Because the purpose of the law on maternity benefits is to grant privileges only to women who turn out to be
mothers when they need them. Hence, the category of men and women is based totally on an intelligible
differentia.
• Another illustration is of tax laws. Charities, libraries are exempted from sure tax whereas other residences are not.
Article 14 Permits Classification But Prohibits Class
Legislation

Article 14 guarantee equal protection of laws and they are:

• Neither means that the laws need to be general in character nor that it should be applicable to everyone, which
means, the same law applies to every person.
• It does not assess attainment or situations in the same position. Different classes have various needs that require
separate treatment.
• For safety and security different laws for varying places and legitimate control policies enacting laws lie at the best
interest of the state.
Meaning and Scope of the Right to Equality

The propositions laid in Ram Krishna Dalmia v. Tendolkar [2], explains the true scope and meaning to the right to equality and
holds a valid classification. It is as follows:
1- Even though relating to an individual person, a law would be constitutional if on account of some reasons or special
circumstances is applicable to him and not applicable to others. The individual person can be treated as a class.
2- There is a dependable assumption in favor of the constitutionality of a rule and the burden is upon him who attacks it to
demonstrate that there has been a reasonable transgression of established constitutional standards.
3- The assumption might be disproved in specific cases by showing that on the fact of the statue, there is no order and no
distinction peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits a specific
individual or class.
4- It must be assumed that the legislature accurately acknowledges and comprehends the need of its own people that its law is
directed to the problem made manifest by involvement and that its discrimination is based on satisfactory grounds.
5- So as to continue the assumption of constitutionality the court may take into consideration matters of basic knowledge, matters
of report, the historical backdrop of the times and may expect each condition of facts which can be conceived existing at the time
of the enactment.
6- Thus the legislation is allowed to perceive degrees of harm and may confine its limitation to those situations where the need is
considered to be the clearest.
7- While good faith and knowledge of the current conditions with respect to a legislature are to be assumed, if there is nothing on
the substance of the law or the surrounding conditions brought to the notice of the court on which the classification may
reasonably be viewed as based, the assumption of constitutionality can’t be conveyed to the degree dependably that there must be
some undisclosed and obscure explanation behind exposing certain people or organization to be unfriendly or discriminating
legislation.
8- The classification can be made on various bases like geographical or according to object or occupation.
9- The legislative classification no longer needs to be scientifically perfect or logically complete. There is no need for
mathematical nicety and perfect equality. Equal treatment no longer involves the same treatment. Similarly, remedy identity is no
longer enough.
10- There may be discrimination each inside the substantive as well as the procedural law. Article 14 applies to both. If the class
satisfies the test laid down inside the above propositions, the regulation could be declared constitutional. The query whether or
not a classification is reasonable and proper and no longer need to but, be judged more on common sense than on legal subtitles.
-----------------------------**********************-------------------------------------------
Freedom of speech and expression:

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The
Help of Decided Cases. What Are The Grounds on Which This Freedom Could Be Restricted.

Article 19(1) (a) of the Constitution of India states that, “all citizens shall have the right to
freedom of speech and expression”. The philosophy behind this Article lies in the Preamble of
the Constitution, where a solemn resolve is made to secure to all its citizen, liberty of thought
and expression. The exercise of this right is, however, subject to “reasonable restrictions” for
The main elements of right to freedom of speech and
expression are as under:
1. This right is available only to a citizen of India and not to foreign nationals.

2. The freedom of speech under Article 19(1) (a) includes the right to express one’s views and opinions at any issue
through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.

3. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the
interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order,
decency and morality and contempt of court, defamation and incitement to an offence.

4. This restriction on the freedom of speech of any citizen may be imposed as much by an action of the State as by its
inaction. Thus, failure on the part of the State to guarantee to all its citizens the fundamental right to freedom of
Decided Cases Which Explained Freedom of Speech And Expression

• Over the years, judicial creativity, judicial wisdom and judicial craftsmanship have widened the scope of freedom
of speech & expression by including in it the following aspects-

a. Freedom of Press
b. Freedom of Commercial speech
c. Right to Broadcast
d. Right to information
e. Right to criticize
f. Right to expression beyond national boundaries

• g. Right not to speak or Right to silence is also included in the Right to speech and expression.
The Grounds on Which This Freedom Could Be
Restricted
Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under following heads:

I. security of the State,

II. friendly relations with foreign States
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.
----------------------------------***************************--------------------------------
Protection Against Conviction of Offences
[Article 20] :
Protection Against Conviction of Offences:
• Art. 20 of Indian Constitution provides for protection in respect of conviction of offences. In other words, it lays
down certain safeguards to the person accused of crimes as stated below:
1. Ex post facto law (Art. 20(1)).
2. Double Jeopardy (Art. 20(2); and
3. Self-incrimination (Art. 20(3).
1.Ex Post Facto Law

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

Eg.: The Dowry Prohibition Act, 1961 came into force from 20.5.1961. A person guilty of
accepting dowry is punishable under the Act after 20.5.1961 and not before 20.5.1961.
Ex post facto laws are of three kinds as
follows:

(a) A law which declared some act or omission as an offence for the first time after the
completion of that act or omission.
(b) A law which enhances the punishment or penalty for an offence subsequent to the
commission of that offence.
(c) A law which prescribes a new and different procedure for the prosecution of an
Article 20(1) provides:

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

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

The second part of clause (1) protects a person form ‘a penalty greater than that which he might have been subjected
to at the time of the commission of the offence.’
For Example:

If a person ‘A’ commits an offence in the year 1947, as per the act in that
year the punishment was imprisonment of fine or both the same act was
amended in 1949 which enhanced the punishment of the same offence by
as additional fine. In such a case the punishment enhanced would not be
applicable to the act of 1947, the same would be set-aside.
Self Incrimination [Art. 20(3)]:

The expression ‘self-incrimination’ means “conveying information based upon personal

knowledge of the person giving information involving himself to be the prime part
taken in the offence.” A person shall not be asked to make statements against himself
(i.e. self harming statements/confessional statements).

Clause 3 of Art. 20 of the Indian Constitution prohibits self-incrimination. It says that

“No person accused of any offence shall be compelled to be a witness against himself”.
Art. 20(3) is based on the common law maxim nemo tenetur prodere accussare
Ingredients
The protection under Art. 20(3) is available, provided the following conditions are fulfilled.

(i) The person (seeking protection under Clause 3 of Art. 20) must be ‘accused of an offence’.
(ii) The protection is against ‘compulsion to be a witness’. (He is compelled to give witness); and
(iii) The compulsion relates to giving evidence ‘against himself’.

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

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

The 2 and 3 ingredient i.e. compulsion to be witness and compulsion to give evidence “against himself”, shall be taken
together as both points convey similar viewpoint/meaning.
Both the ingredients can be understood through the
various sections of Indian Evidence Act, 1872, which
states as follows:
According to Sec. 25 of the Act Confessional Statement (Self harming statement/statement made
against himself) made by a person/accused to police officer is inadmissible.

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

Accordingly to Section 27 “when an information given by the accused in police custody leads to
discovery of an incriminating material object, like jewellery, weapons etc. that portion of the
information can be proved.
For Example:
‘P’ is tried for murder, if P in a police custody says, “I have killed Q’ and buried the dead body in my garden. I will show you
the place, where I boiled the body” Accordingly if Q's body is traced out, P's statement is admissible under Sec. 27.

Now one question here arises, whether Section 27 of Indian evidence Act is violative of Article 20(3) of India Constitution.
This question was resolved in a case[1]

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

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

We can observe that each clause of Art. 20 is designed to protect the

people against the excess of the legislature, the judiciary and the executive
respectively. These protections are available to both citizens and foreigners
for criminal cases only and not for
Article 21 of the Constitution of India – Right to Life
and Personal Liberty

INTRODUCTION
Article 21 reads as:
• “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
• According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic
society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
• This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living
constitution, the foundation of our laws.
• Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined
Article 21 secures two rights:

(1) Right to life, and

(2) Right to personal liberty.
• The Article prohibits the deprivation of the above rights except according to a procedure established by law. Article
21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of
the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.
• Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner
can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in
Article 19 (1) (e).
MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

‘Everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly the most fundamental of all rights. All other rights
add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings,
one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it. There
would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will examine the right
to life as interpreted and applied by the Supreme Court of India.
• Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure
established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or
continued drudgery through life. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health,
right to pollution free air, etc.
• Right to life is fundamental to our very existence without which we cannot live as a human being and includes all those aspects of life, which go to
make a man’s life meaningful, complete, and worth living. It is the only article in the Constitution that has received the widest possible
interpretation. Under the canopy of Article 21, so many rights have found shelter, growth, and nourishment. Thus, the bare necessities, minimum
and basic requirements that are essential and unavoidable for a person is the core concept of the right to life.
• In the case of Kharak Singh v. State of Uttar Pradesh[i], the Supreme Court quoted and held that:
• By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the
pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.
• In Sunil Batra v. Delhi Administration[ii], the Supreme Court reiterated with the approval the above observations and held that the “right to life”
included the right to lead a healthy life so as to enjoy all faculties of the human body in their prime conditions. It would even include the right to
protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the right to live in peace, to sleep in peace
Right To Live with Human Dignity

• In Maneka Gandhi v. Union of India[iii], the Supreme Court gave a new dimension to Art. 21 and held that the right to live is
not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the
Court in Francis Coralie v. Union Territory of Delhi[iv], observed that:
• “The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities 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 mixing and mingling with fellow human beings and must include the right to basic necessities the
basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of
human self.”
• Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti Morcha v. Union of India[v]
. Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:
• “It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with
human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses
(e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of
workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in
a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and
Right Against Sexual Harassment at Workplace

• Art. 21 guarantees the right to life right to life with dignity. The court in this context has observed that:
• “The meaning and content of fundamental right guaranteed in the constitution of India are of sufficient amplitude
to encompass all facets of gender equality including prevention of sexual harassment or abuse.”
• Sexual Harassment of women has been held by the Supreme Court to be violative of the most cherished of the
fundamental rights, namely, the Right to Life contained in Art. 21.
In Vishakha v. State of Rajasthan[x], the Supreme Court has declared sexual harassment of a working woman at her work
as amounting to the violation of rights of gender equality and rights to life and liberty which is a clear violation of Articles
14, 15 and 21 of the Constitution. In the landmark judgment, the Supreme Court in the absence of enacted law to provide for
effective enforcement of basic human rights of gender equality and guarantee against sexual harassment laid down the
following guidelines:
1- All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to
prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(i) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in
appropriate ways.
(ii) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include
rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(iii) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the
Industrial Employment (Standing Orders) Act, 1946.
(iv) Appropriate work conditions should be provided in respect of work, leisure, health, and hygiene to further ensure that there is no
hostile environment towards women at workplaces and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.

2- Where such conduct amounts to specific offenses under I.P.C, or under any other law, the employer shall initiate
appropriate action in accordance with law by making a complaint with the appropriate authority.
3- The victims of Sexual harassment should have the option to seek transfer of perpetrator or their own transfer.
Right Against Rape:
Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right to life right to live
with human dignity. Right to life, would, therefore, include all those aspects of life that go on to make life
meaningful, complete and worth living.
In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court held that:
“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It
destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will
power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in
derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also
violative of the victim’s most cherished of the fundamental rights, namely, the right to life with human dignity
contained in Art 21”.
Right to Reputation:

Reputation is an important part of one’s life. It is one of the finer graces of human
civilization that makes life worth living. The Supreme Court referring to D.F.
Marion v. Minnie Davis in Smt. Kiran Bedi v. Committee of Inquiry held
that “good reputation was an element of personal security and was protected by the
Constitution, equally with the right to the enjoyment of life, liberty, and property.
The court affirmed that the right to enjoyment of life, liberty, and property. The
court affirmed that the right to enjoyment of private reputation was of ancient
origin and was necessary to human society.”
Right To Livelihood:

To begin with, the Supreme Court took the view that the right to life in Art. 21
would not include the right to livelihood. In Re Sant Ram, a case which arose
before Maneka Gandhi case, where the Supreme Court ruled that the right to
livelihood would not fall within the expression “life” in Article 21. The court said
curtly:
“The right to livelihood would be included in the freedoms enumerated in Art.19, or
even in Art.16, in a limited sense. But the language of Art.21 cannot be pressed into
aid of the argument that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”
HIV Not a Sound ground for Termination:

In MX of Bombay Indian Inhabitants v. M/s. ZY, it was held that a person tested
positive for HIV could not be rendered “medically unfit” solely on that ground so as to
deny him the employment. The right to life includes the right to livelihood. Therefore,
the right to livelihood cannot hang on to the fancies of the individuals in authority. Even
though the petitioner might have been a nuisance to others and conducted themselves
either in a disorderly way or unbecoming on their profession but, that in itself, it is not
sufficient for the executive to take away their source of livelihood by executive fiat.
Right to Work Not a Fundamental Right under

• In Sodan Singh v. New Delhi Municipal Committee, the five-judge bench of the Supreme Court distinguished the
concept of life and liberty within Art.21 from the right to carry on any trade or business, a fundamental right
conferred by Art. 19(1)(g) and held the right to carry on trade or business is not included in the concept of life and
personal liberty. Article 21 is not attracted in the case of trade and business.
• In Secretary, State of Karnataka v. Umadevi, the Court rejected that right to employment at the present point of
time can be included as a fundamental right under Right to Life under Art. 21.

Right to Shelter
• In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the right to shelter has been held to be a
fundamental right which springs from the right to residence secured in article 19(1)(e) and the right to life
guaranteed by article 21. To make the right meaningful to the poor, the state has to provide facilities and
opportunities to build houses.
Right to Social Security and Protection of Family

• Right to life covers within its ambit the right to social security and protection of family0. K. Ramaswamy J.,
in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose, held that right to social and
economic justice is a fundamental right under Art. 21. The learned judge explained that the right to life and dignity
of a person and status without means were cosmetic rights. Socio-economic rights were, therefore, basic
aspirations for meaning the right to life and that Right to Social Security and Protection of Family were an
integral part of the right to life.
• In N.H.R.C. v. State of Arunachal Pradesh, (Chakmas Case), the supreme court said that the State is bound to
protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit anybody or
group of persons to threaten other person or group of persons. No State Government worth the name can tolerate
such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group
from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations.
Right Against Honour Killing

• A division bench of Allahabad high court, In Surjit Kumar v. State of U.P., took serious note on harassment, in ill-
treatment and killing of a person who was a major, for wanting to get married to a person of another caste or
community, for bringing dishonor to family since inter caste or inter-community marriage was not prohibited in law,
the court said that such practice of “honor killing” was a blot on society. The court, therefore, directed the police to
take strong measures, against those who committed such ‘honor killing’.

Right to Health

• In State of Punjab v. M.S. Chawla, it has been held that- the right to life guaranteed under Article 21 includes within
its ambit the right to health and medical care.
• The Supreme Court in Vincent v. Union of India, emphasized that a healthy body is the very foundation of all human
activities.Art.47, a Directive Principle of State Policy in this regard lays stress note on the improvement of public
Right to Medical Care

In Parmananda Katara v. Union of India, the Supreme Court has very

specifically clarified that preservation of life is of paramount importance.
The Apex Court stated that ‘once life is lost, status quo ante cannot be
restored.’ It was held that it is the professional obligation of all doctors
(government or private) to extent medical aid to the injured immediately
to preserve life without legal formalities to be complied with the police.
No Right to Die
• Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to live or a right to die if a person chooses to end
his life? If so, what is the fate of Sec. 309, I.P.C., 1860, which punishes a person convicted of attempting to commit suicide? There has been a
difference of opinion on the justification of this provision to continue on the statute book.
• This question came for consideration for the first time before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal. In
this case, the Bombay High Court held that the right to life guaranteed under Article 21 includes right to die, and the Hon’ble High Court
struck down Section 309 of the IPC that provides punishment for an attempt to commit suicide by a person as unconstitutional.
• In P. Rathinam v. Union of India, a two-judge Division Bench of the Supreme Court, took cognizance of the relationship/contradiction
between Sec. 309, I.P.C., and Art. 21. The Court supported the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held
that the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking.
• The court argued that the word life in Art. 21 means right to live with human dignity and the same does not merely connote continued
drudgery. Thus the court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail the right not to live a forced
life. The court further emphasized that “attempt to commit suicide is in reality a cry for held and not for punishment.”
• The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State of Punjab. The question before the court was
that if the principal offense of attempting to commit suicide is void as being unconstitutional vis-à-vis Art.21, then how abetment can thereof
be punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’ having been included in Art.21 (Rathinam ruling), and Sec. 309
having been declared unconstitutional, any person abetting the commission of suicide by another is merely assisting in the enforcement of his
fundamental right under Art. 21.
“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore,
Euthanasia and Right to Life

Euthanasia is termination of the life of a person who is terminally ill or in a permanent vegetative state. In Gian Kaur
v. State of Punjab, the Supreme Court has distinguished between Euthanasia and attempt to commit suicide. The
court held that death due to termination of natural life is certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural
death that has already commenced.
The court further held that this may fall within the ambit of Right to live with human dignity up to the end of natural
life. This may include the right of a dying man to also die with dignity when his life is ebbing out. This cannot be
equated with the right to die an unnatural death curtailing the natural span of life.
Sentence of death –Rarest of rare cases
• The issue of abolition or retention of capital punishment was dealt with by the law commission of India. After collecting as much
available material as possible and assessing the views expressed by western scholars, the commission recommended the retention
of capital punishment in the present state of the country. The commission held the opinion that having regard to the conditions of
India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country,
to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country,
India could not risk the experiment of abolition of capital punishment.
• In Jagmohan v. State of U.P[lviii], the Supreme Court had held that the death penalty was not violative of Articles 14, 19 and 21.
It was said that the judge was to make the choice between the death penalty and imprisonment for life on the basis of
circumstances, facts, and nature of crime brought on record during trial. Therefore, the choice of awarding death sentence was
done in accordance with the procedure established by law as required under article 21
• But, in Rajindera Parsad v. State of U.P.[lix], Krishna Iyer J., speaking for the majority, held that capital punishment would not be
justified unless it was shown that the criminal was dangerous to the society. The learned judge plead for the abolition of the death
penalty and said that it should be retained only for “white collar crimes”
• However, in Bachan Singh v. State of Punjab[lx], the leading case of on the question, a constitution bench of the supreme court
explained that article 21 recognized the right of the state to deprive a person of his life in accordance with just, fair and reasonable
procedure established by valid law. It was further held that the death penalty for the offense of murder awarded under section 302
of I.P.C did not violate the basic feature of the constitution.
Right to get Pollution Free Water and Air:

• In Subhas Kumar v. State of Bihar[lxi], it has held that a Public Interest Litigation is maintainable for ensuring
enjoyment of pollution-free water and air which is included in ‘right to live’ under Art.21 of the constitution. The
court observed:
• “Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of
pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for removing the pollution
of water or air which may be detrimental to the quality of life.”
Right to Clean Environment:

• The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the dangers
of diseases and infection. Maintenance of health, preservation of the sanitation and environment have been held to
fall within the purview of Article 21 as it adversely affects the life of the citizens and it amounts to slow poisoning
and reducing the life of the citizens because of the hazards created if not checked.
• The following are some of the well-known cases on the environment under Article 21:
• In M.C. Mehta v. Union of India (1988), the Supreme Court ordered the closure of tanneries that were polluting
water.
Right Against Noise Pollution:

In Re: Noise Pollution, the case was regarding noise pollution caused by obnoxious levels of noise due to bursting
of crackers during Diwali. The Apex Court suggested to desist from bursting and making use of such noise making
crackers and observed that:
“Article 21 of the Constitution guarantees the life and personal liberty to all persons. It guarantees the right of
persons to life with human dignity. Therein are included, all the aspects of life which go to make a person’s life
meaningful, complete and worth living. The human life has its charm and there is no reason why life should not be
enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort, and quiet within his house
has a right to prevent the noise as pollutant reaching him.
Right to Know or Right to Be Informed
• Holding that the right to life has reached new dimensions and urgency the Supreme Court in R.P. Ltd. v.
Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy had to function
effectively, people must have the right to know and to obtain the conduct of affairs of the State.
• In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link between Art.21 and
Right to know, particularly where “secret government decisions may affect health, life, and livelihood.

PERSONAL LIBERTY
• Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English
Magna Carta provided that,
• The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of liberty.
What can be more important than liberty? In India, the concept of ‘liberty’ has received a far more expansive
interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily
restraint, and has held that it encompasses those rights and privileges that have long been recognized as being
essential to the orderly pursuit of happiness by free men.
Right to Privacy

• As per Black’s Law Dictionary, privacy means “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live
without unwarranted interference by the public in matters with which the public is not necessarily concerned.”
• Although not specifically referenced in the Constitution, the right to privacy is considered a ‘penumbral right’ under the Constitution, i.e. a right that has
been declared by the Supreme Court as integral to the fundamental right to life and liberty. Right to privacy has been culled by the Supreme Court from Art.
21 and several other provisions of the constitution read with the Directive Principles of State Policy. Although no single statute confers a crosscutting
‘horizontal’ right to privacy; various statutes contain provisions that either implicitly or explicitly preserve this right[lxx].
• For the first time in Kharak Singh v. State of U.P.[lxxi] question whether the right to privacy could be implied from the existing fundamental rights such as
Art. 19(1)(d), 19(1)(e) and 21, came before the court. “Surveillance” under Chapter XX of the U.P. Police Regulations constituted an infringement of any
of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits at night”, was
held to be in violation of Article 21. A seven-judge bench held that:
• “the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this court in Kharak Singh’s case. Although the majority
found that the Constitution contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty expansively to include a right to
dignity. It held that “an unauthorized intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law
right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilization”
• In Govind v. State of Madhya Pradesh[lxxii], The Supreme Court took a more elaborate appraisal of the right to privacy. In this case, the court was
evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police surveillance of
habitual offenders including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down these invasive provisions
Scope and Content of Right to Privacy:

Tapping of Telephone
Emanating from the right to privacy is the question of tapping of the telephone.
• In R.M. Malkani v. State of Maharashtra, the Supreme Court held that the telephonic conversation of an innocent
citizen will be protected by Courts against wrongful or high handed’ interference by tapping the conversation. The
protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of
public servants.

Disclosure of Dreadful Diseases

• In Mr. X v. Hospital Z, the question before the Supreme Court was whether the disclosure by the doctor that his
patient, who was to get married had tested HIV positive, would be violative of the patient’s right to privacy. The
Supreme Court ruled that the right to privacy was not absolute and might be lawfully restricted for the prevention
of crime, disorder or protection of health or morals or protection of rights and freedom of others.
Right to privacy and subjecting a person to medical tests

• It is well settled that the right to privacy is not treated as absolute and is subject to such action as may be lawfully
taken for the prevention of crimes or disorder or protection of health or morals or protection of rights and freedom
of others. In case there is a conflict between the fundamental rights of two parties that which advances public
morality would prevail.
• A three-judge bench in case of Sharda v. Dharmpal, ruled that a matrimonial court had the power to direct the
parties to divorce proceedings, to undergo a medical examination. a direction issued for this could not be held to
the violative of one’s right to privacy but court, however, said that for this there must be a sufficient material.

Right to Privacy- Woman’s Right to Make Reproductive Choices

• A woman’s right to make reproductive choices includes the woman’s right to refuse participation in the sexual
activity or alternatively the insistence on the use of contraceptive methods such as undergoing sterilization
procedures woman’s entitlement to carry a pregnancy to its full term, to give birth and subsequently raise children.
Right to go abroad

• In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, the Supreme Court has included Right to
travel abroad contained in by the expression “personal liberty” within the meaning of Article 21.
• In Maneka Gandhi v. Union of India, the validity of Sec. 10(3)(c) of the passport Act 1967, which empowered
the government to impound the passport of a person, in the interest of the general public was challenged before the
seven-judge Bench of the Supreme Court.
• It was contended that, right to travel abroad being a part of the right to “personal liberty” the impugned section
didn’t prescribe any procedure to deprive her of her liberty and hence it was violative of Art. 21.
Right against Illegal Detention

• In Joginder Kumar v. State of Uttar Pradesh, the petitioner was detained by the police officers and his
whereabouts were not told to his family members for a period of five days. Taking the serious note of the police
high headedness and illegal detention of a free citizen, the Supreme Court laid down the guidelines governing
arrest of a person during the investigation:
• An arrested person being held in custody is entitled if he so requests to have a friend, relative or other person told
as far as is practicable that he has been arrested and where he is being detained.
• The police officer shall inform the arrested person when he is brought to the police station of this right. An entry
shall be required to be made in the diary as to who was informed of the arrest.
• In the case of D.K. Basu v. State of West Bengal, the Supreme Court laid down detailed guidelines to be followed
by the central and state investigating agencies in all cases of arrest and detention till legal provisions are made in
that behalf as preventive measures and held that any form of torture or cruel inhuman or degrading treatment,
whether it occurs during interrogation, investigation or otherwise, falls within the ambit of Article 21.
Article 21 & Prisoner’s Rights:

• The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason of their
conviction deprived of all the fundamental rights that they otherwise possess. Following the conviction of a convict
is put into a jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory
of India. But a convict is entitled to the precious right guaranteed under Article 21 and he shall not be deprived of
his life and personal liberty except by a procedure established by law.
• In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21. The Court has
interpreted Article 21 so as to have widest possible amplitude. On being convicted of a crime and deprived of their
liberty in accordance with the procedure established by law. Article 21, has laid down a new constitutional and
prison jurisprudence. The rights and protections recognized to be given in the topics to follow.
Right to Free Legal Aid & Right to Appeal

• In M.H. Hoskot v. State of Maharashtra, the Supreme Court said while holding free legal aid as an integral part of
fair procedure the Court explained that “ the two important ingredients of the right of appeal are; firstly, service of
a copy of a judgement to the prisoner in time to enable him to file an appeal and secondly, provision of free legal
service to the prisoner who is indigent or otherwise disabled from securing legal assistance. This right to free legal
aid is the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness;
this cannot be termed as government charity.
Right to Speedy Trial

• In Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the notice of the Supreme Court that an
alarming number of men, women, and children were kept in prisons for years awaiting trial in courts of law. The Court
took a serious note of the situation and observed that it was carrying a shame on the judicial system that permitted
incarceration of men and women for such long periods of time without trials.
• The Court held that detention of under-trial prisoners, in jail for a period longer than what they would have been
sentenced if convicted, was illegal as being in violation of Article of 21. The Court, thus, ordered the release from jail
of all those under-trial prisoners, who had been in jail for a longer period than what they could have been sentenced
had they been convicted
• In A.R. Antulay v. R.S. Nayak, a Constitution Bench of five judges of the Supreme Court dealt with the question and
laid down certain guidelines for ensuring speedy trial of offenses some of them have been listed below:
• Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried speedily.
• Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry,
Right to Fair Trial
• Free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in Zahira Habibullah
Sheikh v. State of Gujarat said that right to free and fair trial not only to the accused but also to the victims, their
family members and relatives, and society at large.

Right to Bail
• The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe present-day unsatisfactory
and irrational rules for bail, which insists merely on financial security from the accused and their sureties. Many of
the undertrials being poor and indigent are unable to provide any financial security. Consequently, they have to
languish in prisons awaiting their trials.
• But incarceration of persons charged with non-bailable offenses during the pendency of trial cannot be questioned
as violative of Article 21 since the same is authorized by law. In the case of Babu Singh v. State of Uttar Pradesh[,
the Court held that right to bail was included in the personal liberty under Article 21 and its refusal would be the
deprivation of that liberty which could be authorized in accordance with the procedure established by law.
No right to Anticipatory Bail

• Anticipatory bail is a statutory right and it does not arise out of Article 21. Anticipatory bail cannot be granted as a
matter of right as it cannot be granted as a matter of right as it cannot be considered as an essential ingredient of
Article 21.

Right against Handcuffing

Handcuffing has been held to be prima facie inhuman and therefore unreasonable, over-harsh and at first flush,
arbitrary. It has been held to be unwarranted and violative of Article 21. In Prem Shankar v. Delhi
Administration, the Supreme Court struck down the Rules that provided that every under-trial who was accused of a
non-bailable offence punishable with more than three years prison term would be routinely handcuffed. The Court
ruled that handcuffing should be resorted to only when there was “clear and present danger of escape” of the accused
Right against Solitary Confinement
• It has been held that a convict is not wholly denuded of his fundamental rights and his conviction does not reduce to
him into a non – person whose rights are subjected to the whims of the prison administration. Therefore, the imposition
of any major punishment within the prison system is conditional upon the observance of procedural safeguard.
• In Sunil Batra v. Delhi Administration, the petitioner was sentenced to death by the Delhi session court and his appeal
against the decision was pending before the high court. He was detained in Tihar Jail during the pendency of the
appeal. He complained that since the date of conviction by the session court, he was kept in solitary confinement.

Right against Custodial Violence

• The incidents of brutal police behaviour towards persons detained on suspicion of having committed crimes are a
routine matter. There has been a lot of public outcry from time to time against custodial deaths.
• The Supreme Court has taken a very positive stand against the atrocities, intimidation, harassment and use of third-
degree methods to extort confessions. The Court has classified these as being against human dignity. The rights under
Article 21 secure life with human dignity and the same are available against torture.
Death by hanging not violative of Article 21
In Deena v. Union of India, the constitutional validity of the death sentence by hanging was challenged as being
“barbarous, inhuman, and degrading” and therefore violative of Article 21. Referring to the Report of the UK Royal
Commission, 1949; the opinion of the Director General of Health Services of India, the 35 th Report of the Law
Commission; and the opinion of the Prison Advisers and Forensic Medicine Experts, the Court held that death by
hanging was the best and least painful method of carrying out the death penalty, and thus not violative of Article 21.

Right against Public Hanging

The Rajasthan High Court, by an order, directed the execution of the death sentence of an accused by hanging at the
Stadium Ground of Jaipur. It was also directed that the execution should be done after giving widespread publicity
through the media.
On receipt of the above order, the Supreme Court in Attorney General of India v. Lachma Devi held that the
direction for execution of the death sentence was unconstitutional and violative of Article 21. It was further made
clear that death by public hanging would be a barbaric practice. Although the crime for which the accused has been
found guilty was barbaric it would be a shame on the civilized society to reciprocate the same. The Court said, “a
barbaric crime should not have to be visited with a barbaric penalty.”
Right against Delayed Execution
• In T.V. Vatheeswaram v. State of Tamil Nadu, the Supreme Court held that delay in execution of death sentence
exceeding 2 years would be sufficient ground to invoke protection under Article 21 and the death sentence would be
commuted to life imprisonment. The cause of the delay is immaterial, the accused himself may be the cause of the delay.
• In Sher Singh v. State of Punjab, the Supreme Court said that prolonged wait for execution of a sentence of death is an
unjust, unfair and unreasonable procedure and the only way to undo that is through Article 21. But the Court held that
this cannot be taken as the rule of law and applied to each case and each case should be decided upon its own faces.
Right to Write a Book
• In State of Maharashtra v. Prabhakar Pandurang, the petitioner while under detention in jail wrote a book on science
and sought the permission from the Government to send the manuscript of the book to his wife for publication, to which
the Government refused. The Court held that this was an infringement of personal liberty and that Article 21 included
the right to write the book and get it published.
Right against Bar Fetters
• In Sunil Batra v. Delhi Administration, the Supreme Court gave Right against Bar Fetters and held that treatment that
offended human dignity and reduced man to a level of the beast would certainly be arbitrary and could be questioned
under Article 21, but the right is not absolute.
ARTICLE 21 AND THE EMERGENCY
In A.D.M. Jabalpur v. S. Shukla, Popularly known as habeas corpus case, the
supreme court held that article 21 was the sole repository of the right to life and
personal liberty and therefore, if the right to move any court for the enforcement of
that right was suspended by the presidential order under Article 359, the detune would
have no locus standi to a writ petition for challenging the legality of his detention.
In view of the 44th amendment, 1978, the observation made in the above-cited
judgments are left merely of academic importance.
-----------------------*****************--------------------------
All you need to know about :
What is preventive detention?

Under Section 151 of The Criminal Procedure Code, 1973 (Cr.PC) preventive detention is
action taken on grounds of suspicion that some wrong actions may be done by the person
concerned.
A police officer can arrest an individual without orders from a Magistrate and without any
warrant if he gets any information that such an individual can commit any offense.
Article 22 of the Indian Constitution provides protection against arrest and detention in
certain cases.
Does the constitution provide any safeguard against misuse of preventive detention?

The Article 22 of the Indian Constitution provides safeguards against the misuse of police powers to make arrests and detentions.
• The clause(2) of Article 22 reads, “Every person who is arrested and detained in custody shall be produced before the nearest magistrate
within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
• The clause (4) of the article states that no individual can be detained for more than 3 months unless a bench of High court judges or an
Advisory board decides to extend the date.
• The clause (4) of Article 22, reads as, “No law providing for preventive detention shall authorise the detention of a person for a longer
period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as,
Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for
such detention:
• The clause(5) of the Article 22 states that the detained individual should be made aware of the grounds he/she has been detained (in
pursuance of the order) and should provide him/her with an opportunity of making a representation against the case.
• The clause(5) of Article 22 reads as, “When any person is detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been
made and shall afford him the earliest opportunity of making a representation against the order.”
• Parliament may by law prescribe the circumstances under a person may be detained for a period longer than three months under any law
What is the difference between preventive detention
and an arrest?

• An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced
before a magistrate within the next 24 hours.
• In case of preventive detention, a person is detained as he/she is simply restricted from doing
something that might deteriorate the law and order situation.
--------------********------------
Right to freedom of religion
Right to freedom of religion
[Articles 25-26]

India is a Secular State

the concept of secularism is implicit in the preamble of the constitution which declares the resolve of the people to
secure to all its citizens “ liberty to thought, belief, faith, and worship”. The constitution ( 42 nd Amendment ) Act,
1976,has inserted the word ‘Secular; in the preamble. The constitution is intended merely to spell out clearly the
concept of ‘ Secularism’ in the constitution. There is no mysticism in the secular character of the State. In India, a
Secular State was never considered as an irreligious or atheistic State. It only means that in matters of religions but
interferes with none . Explaining the secular character of the Indian Constitution the Supreme Court said, “ There is
no mysticism in the secular character of the State. Secularism is neither anti-God nor pro-God, it treats alike the
devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures the no one shall
he discriminated against on the ground of religion. The state can no have no religion of its own. It should treat all
religions equally. The State must extent similar treatment to the church. The Mosque and the Temple. It is not
concerned with the relation of man with God. It is left to the individual’s conscience. Every mand should be allowed
to go Heaven in his own way. Worshipping God should be according to the dictates of one’s own conscience. Man is
Secularism means developing, understanding and
respect for different religions

In Aruna Raoy v. Union of India, the validity of the new National Education policy, 2002 which provided for value
based education to school children based on basis of all religions was challenged as violative of Art. 28 and anti
secular. The court held that study of religions in school education is not against the secular philosophy of the
constitution. Justice Dharmadhikari said that from the experience of the working of constitution for more than 50
years it is clear that the complete neutrality towards religion and apathy for all kinds of religious teachings in
institutions of the state have not helped in removing mutual misunderstanding and intolerance inter se between
sections of the people of different religions faiths and beliefs. Secularism therefore is susceptible to positive meaning
that is developing, understanding and respect towards different religions.
Freedom of religion in India

Article 25 (1) guarantees to every person the freedom of conscience and the right to profess, practice and
propagate religion. The right guaranteed under Article 25 (1) like other constitutional rights, is not
absolute. This right is, subject to public order, morality and health and to the other provisions of part lll
of the constitution. Also, under sub-clauses (a) and (b) of clause (2) of Article 25 the State is empowered
by law---
(a) To regulate of restrict any economic, financial, political or other secular activity which may be
associate with religious practice;
(b) To provide for (i) social welfare and reform, and (ii) to throw open Hindu religious institutions of a
 What is the religion?

The term of religion is not defined in the Constitution and indeed it is a term which is hardly
susceptible to any rigid definition. The Supreme Court has defined it broadly. Religion is a matter
of faith individuals or communities and it is not necessarily theistic. A religion has its basis in “ a
system of beliefs of doctrines which are regarded by those who profess that religion as conducive
to their spiritual well being”. Religion is thus essentially a matter of personal faith and belief.
Every person has right not only to entertain such religious belief and ideas as may be approved by
his judgment or conscience but also exhibit his belief and ideas by such overt acts which are
sanctioned by his religion. Thus under Art. 25 (i) a person has a two-fold freedom :-
(a) Freedom of conscience;
(b) Freedom of profess, practise and propagate religion.
Non Brahman can be appointed as pujari in
temple

In N. Aditya v. Travancore Dewaswom Board, the Supreme Court

held- Brahmins do not have monopoly over performing puja in a
temple. A non Brahmin can be appointed as a pujari if he is property
trained and well versed with rituals to be performed and mantras to be
The word ‘religion’ used in Articles 25 and 26 of the constitutional personal to the
person having faith and belief in the religion and the Act is constitutional as it
regulates only the secular activities connected with religion, and not matters are
integral part of religion.

• Acquisition of place of worship

• Shifting of property connected with religion
• Noise pollution in the name of religion not allowed
• National education
• Religious freedom-includes cremation ground.
Restriction of freedom of Religion

1- Religious liberty to public order, morality and health

2- Regulation of economic, financial, political secular activities
associated with religious practices
3- Social welfare and social reforms
Freedom of manage religious affairs

Article 25 says that, subject to public order, morality and health every religious
denomination of any section of it shall have the following rights:-
(a) To establish and maintain institutions for religious and charitable purposes,
(b) To manage its own affairs in matters of religion,
(c) To own and acquire movable and immovable property,
(d) To administer such property in accordance with law.
Freedom from taxes for promotion of any
particular religion
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.
This Article emphasizes the secular character of the state. The public money
collected by way of tax cannot be spent by the state for the promotion of any
particular religion.
The prohibition is against giving aid to any particular religion. This means that if
state aid is extended to all religious institutions along with secular ones alike
Prohibition of Religious Institution in state-
aided Institution

According to Article 28 (1) no religious instruction shall be imparted in any educational institution
wholly maintained out of state funds. But this clause shall not apply to an educational institution which
is administered by the state but has been established under any endowment or trust which requires that
religious instruction shall be imparted in such institutions. Under clause 1 (3) no person attending any
educational institution recognized by the state or receving aid out of state funds shall be required to
take part in any religious instruction that may be imparted in such institution or to attend any religious
worship that may be conducted in such institution or to any premises attached thereto unless such
person or if such person is a minor his guardian has given his consent thereto.
Thus Article 28 mentions four types of educational institution:-

(a) Institutions wholly maintained by the State.

(b) Institutions recognized by the State.
(c) Institutions that are receiving aid out of the State fund.
(d) Institutions that are administered by the State but are established under any trust or endowment.

------------------------************************------------------------------------
Introduction

The constitution of India is considered as the longest written constitution of

any sovereign nation in the world. At its birth, it had 395 articles in 22 parts
and 8 Schedules and it currently has a Preamble, 25 Parts with 12 schedules,
5 appendices, 101 amendment and 448 articles. January 26 is celebrated as
the Republic Day every year. The importance of the Constitution was given
effect after 67 years and later on, it was amended 101 times also.
DPSPs: Its Genesis, and its Meaning

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

The Preamble of the Constitution is called the key to the mind of the drafters of the Constitution.
It lays down the objectives that our Constitution seeks to achieve. Many scholars believe that
DPSPs is the kernel of the Constitution. The Directive Principles of the State Policy (DPSPs) lay
down the guidelines for the state and are reflections of the overall objectives laid down in the
Preamble of Constitution. The expression “Justice- social, economic, political” is sought to be
achieved through DPSPs. DPSPs are incorporated to attain the ultimate ideals of preamble i.e.
Justice, Liberty, Equality and fraternity. Moreover, it also embodies the idea of the welfare state
which India was deprived of under colonial rule.
Enforceability of DPSPs
Many times the question arises that whether an individual can sue the state
government or the central government for not following the directive
principles enumerated in Part IV. The answer to this question is in negative.
The reason for the same lies in Article 37 which states that:
“The provisions contained in this Part shall not be enforceable by any
court, but the principles therein laid down are nevertheless fundamental in
the governance of the country and it shall be the duty of the State to apply
Importance of DPSPs for an Indian citizen

Regardless of the non-justiciable nature of DPSPs, a citizen should be aware of them. As the
Article 37 itself describes these principles as fundamental in the governance of the country. The
objective of the DPSPs is to better the social and economic conditions of society so people can live
a good life. Knowledge of DPSPs helps a citizen to keep a check on the government.
A citizen can use DPSPs as a measure of the performance of the government and can identify the
scope where it lacks. A person should know these provisions because ultimately these principles
act as a yardstick to judge the law that governs them. Moreover, it also constrains the power of the
state to make a draconian law. Through various judicial pronouncements, it is settled principle now
that balancing DPSPs and Fundamental rights is as important as maintaining the sanctity of
Fundamental Rights. Non following a directive principle would directly or indirectly affect the
Fundamental Right which is considered as one of the most essential parts of the Constitution.
Directive Principles of State Policy:

A welfare state is a concept of government in which the state plays a key role in the protection and
promotion of economic and social well-being of its citizens. A welfare state is based on the principles of
equality of opportunity and equitable distribution of wealth. Under this system, the welfare of its citizens is
the responsibility of the state. India was not a welfare state before independence. The British rule was not
very interested in protecting and promoting the welfare of the people. When India attained independence, it
had innumerable problems and challenges. The social and economic inequality was all pervasive.
Economically, India’s situation was miserable. Socially also India was having a number of problems. There
were social inequalities and all the vulnerable sections of the society such as women, dalits, children were
deprived of basic means of living. The Constitution makers were very much aware of the problems. That is
why, they decided that India would be a welfare state. Accordingly, the Constitution has extensive provisions
to ensure social and economic welfare of the people of India. In this regard two specific provisions have
been made, one in the form of Fundamental Rights and the other as Directive Principles of State Policy
Types of Directive Principles

If you go through the directive principles stated in the Constitution, you will find that they
are of different types. Some are concerned with socio economic development; some are
related to Gandhian thought, and some to foreign policy. The Constitution does not classify
them under different heads, but for our better understanding, we may classify them under
the following specific categories:

1- Principles promoting social and economic equality;

2- Principles related to Gandhian thought;
3- Principles related to International peace and security; and
1- Principles promoting social and economic equality
There are certain principles that are very important for realizing the goals of social and economic democracy in India.
Many people in India have been suffering from social and economic inequalities since ages. The following principles, in
particular, are aimed at ensuring economic and social equality:
1. The state should ensure for its people adequate means of livelihood.
2. The state should ensure fair distribution of the material resources of the country for the common good.
3. The state should distribute the wealth in such a way that the wealth is not concentrated in a few hands.
4. There should be equal pay for equal work for both men and women.
5. The state is directed to take steps to impart compulsory and free education to the children up to the age of 14 years.
6. The state should try to secure participation of workers in the management of the factory.
7. Childhood and Youth should be protected against exploitation. Men, women and children should not be forced by
economic necessity to enter jobs and vocations not suited to their age or strength.
8. The state should ensure to the people (a) the right to work (b) the right to education (c) the right to state assistance in
cases of unemployment, old age, sickness and disablement.
9. The state should make provisions for securing just and humane conditions of work for the workers and maternity relief
2- Principles related to Gandhian thought
Gandhian thinking promotes a non-violent social order. Swaraj ( Self-rule) , Sarvodaya ( welfare for all ) and
svavlambam(self-reliance) are the basic principles of Gandhian thought. We are all well aware that Mahatma Gandhi
was in the forefront of freedom movement. His philosophy and actions guided not only our freedom movement but
also the framing of the Indian Constitution. The following Directive Principles in particular reflect Gandhian thought:
1. The state shall promote the educational and economic interests of the weaker sections of the society and in
particular the interests of the scheduled castes and scheduled tribes.
2. The state shall take steps to organize the village panchayats. These panchayats should be given such powers and
authority as may be necessary to enable them to function as units of self government.
3. The state shall make efforts to prevent the consumption of alcoholic drinks and other harmful drugs.
4. The state shall try to promote cottage industries in rural areas.
5. The state shall take steps to improve the quality of livestock and ban the slaughter of cows and calves and other
draught cattle.
3- Principles related to International Peace and Security

The Constitution makers included some principles which provide guidelines to our
foreign policy. These are:
1. The state shall promote international peace and security.
2. The state shall endeavor to maintain just and honorable relations with other
nations.
3. The state shall foster respect for international laws and treaty obligations.
4. The state shall encourage settlement of international disputes by arbitration, i.e.
mutual agreement.
4- Miscellaneous Principles

Besides, there are some notable Directive Principles which do not come under any
of the above mentioned categories. These are as follows:
1. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the
country.
2. The state shall take steps for the maintenance and protection of the historical monuments, places or objects of
national importance.
3. The state shall aim at establishing a uniform civil code for all citizens throughout the country.
4. The state shall take steps to separate the Judiciary from Executive.
The Relation Between the Directive Principles of State Policy and Fundamental
Rights
What are Fundamental Rights and DPSP?

Fundamental rights and DPSP as cherished in the Constitution of India together comprises the human rights of an individual. The Constitution
expresses fundamental rights as an idea which appeared in India in 1928 itself. The Motilal Committee Report of 1928 clearly shows inalienable rights
derived from the Bill of Rights enshrined in the American Constitution to be given to the individual. These rights were preserved in Part III of the
Indian Constitution. of India.
Fundamental rights are also known as Inherent rights because they are inherent to every person by birth. These are the rights which provide an
individual with some basic rights for the purpose of survival. No discrimination is made on the basis of religion, caste, race etc. and if any person feels
so that his fundamental rights are being infringed then he can surely approach to court for the violation of his rights.
There are six fundamental right mentioned under the Constitution of India
(1) Right to equality
(2) Right to freedom
(3) Right to freedom of religion
(4) Right against exploitation
(5) Cultural and educational rights
Right to Equality

Freedom Law is supreme in nature and everyone is equal before the law and equal treatment should be given to
everyone. No discrimination should be done on the basis of race, caste, creed or gender. An equal amount of
opportunity should be given to every individual in the field of employment. Abolition of untouchability and titles.

Right to Freedom

Every individual has the right to freedom to form an association, peacefully assemble, to travel or move freely reside
and settle at any location and to go or opt for any profession throughout the territory of India. Right to education, life,
liberty and dignity also fall under this right, protection in respect of arrest and detention and conviction of an offence.
Right against Exploitation

Prohibition of Child labour and Human trafficking and forced labour is a result of this right.

Right to Freedom of religion

This right provides us with the freedom to follow any religion without any question mark and
freedom to attend any religious ceremony at a religious institution or education centre and pay tax
for the promotion of religion. Nobody can force any individual who is not interested in paying
any kind of tax for religious purposes.
Cultural and educational Right

It provides protection to different languages and varieties of culture present in India. It also protects the rights and culture of
minorities. Establishing educational institutions and primary education to every child below the age of 14 years comes under
this head.

Rights to seek Constitutional remedies

An individual has the right to move in any court of law if they feel fundamental rights are being violated. Our constitution consists of 5
writs. Here writs mean the “Order of court”. If only fundamental rights are violated then the individual can directly approach to Supreme
Court of India. The writs are explained below:
1- Habeas corpus
2- Mandamus
3- Prohibition
4- Certiorari
Habeas Corpus

It simply means to ‘Produce the body’. This writ is issued to produce a person who has been detained and to present
him before the court to release if such detention is illegal.

Mandamus

This means ‘We Command’. It is an order given by the Superior Court to the Inferior Court to perform a public duty.

Prohibition

It is basically known as Stay order which prohibits from doing certain actions by the authority where it has no
Certiorari

This means ‘to be Certified’. This order can be issued by the Supreme Court for quashing the order which is already
passed by any inferior court, tribunal or authority.
Quo – warranto

• It signifies by what authority? It is a writ issued to restrain a person from holding a public office to which he is not
entitled.
DPSPs and Amendments
• For amending the Directive Principles of State Policies, the Constitutional amendment is required. It has to be passed by the special majority of both
the houses of the Parliament. Post-independence there have been number of amendments to the constitution and some of them are pertaining to
DPSPs.
• Beginning with the 42nd Constitutional Amendment 1976, it made four changes in DPSPs. Firstly, it amended Article 39 which obligates the state to
secure a social order for the promotion of the welfare of the people. Moreover, it added Article 39-A which makes it the duty of the state to provide
for equal justice and free legal aid. By the virtue of this Article, Parliament came up with the law called the Legal Services Authorities Act, 1987. It
also added Article 48A which deals with the protection and improvement of environments. The Water Pollution, Air Pollution, Environmental
Pollution Acts, The Forest Act etc demonstrate the application of the principles laid down in Article 48A.
• 44th Constitutional Amendment, 1978 added Article 38 clause (2) which directs the state to minimize inequalities in income, to eliminate
inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or
engaged in different vocations.
• 73rd Constitutional Amendment, 1992 which brought Panchayats in Part IX of the Constitution had its genesis in Article 40 of the constitution. It
deals with the Organization of village Panchayats.
• 86th Constitutional Amendment, 2002 inserted Article 21-A in the Constitution of India. It provides Right to free and compulsory education of all
children in the age group of six to fourteen years as a Fundamental Right. The roots of this amendment are in Article 41 which talks about Right to
work, to education and to public assistance in certain cases.
• 97th Constitutional Amendment 2011 added Article 43-B it authorizes the state to promote voluntary formation, autonomous functioning,
Conclusion

It can be concluded by saying that the basic feature of the

constitution is to maintain harmony between fundamental rights
and DPSP. They are complementary and supplementary to each
other. The theme of fundamental rights must be made in light to
DPSP.
Procedure of Amendment of the Constitution:

Method of Amendment

To evolve and change with all changes in the society and environment is a necessity for every constitution. The
makers of the Constitution of India were fully aware of this need. As such, while writing the constitution, they also
provided for a method of its amendment. Further they of decided, to make the constitution both rigid as well as
flexible. They laid down a flexible amendment method in respect of its some parts and for several others they
provided for a rigid method.
Method of Amendment:

Part XX of The Constitution of India contains only one Article 368. It deals with the
power of the Parliament to amend the constitution. It lays down two special
methods for the amendment of various parts of the constitution. Along with it the
Union Parliament has the power to change some specified features/parts of the
Constitution by passing an ordinary law.
Two Special Methods of Amendment under
Art .368

I. Amendment by 2/3rd Majority of Parliament:

II. Amendment by 2/3rd Majority of the Parliament plus Ratification by at least half
of the several State Legislatures:
I. Amendment by 2/3rd Majority of Parliament:

Most parts of the Constitution (with exception of some specific provisions) can be
amended by this method. Under this method, the Constitution can be amended by
the Union Parliament alone. For this purpose an amendment bill can be passed by
each of the two Houses of Union Parliament by a majority of its total membership
(i.e. absolute majority) and by a two-third majority of members present and voting
in each House. It is a rigid method in so far as it prescribes a special majority for
amending the constitution but it is considered to be a flexible method because under
it the Union Parliament alone can pass any amendment.
II. Amendment by 2/3rd Majority of the Parliament plus Ratification
by at least half of the several State Legislatures:

In respect of some specified provisions of the Constitution, a very rigid method of amendment has
been prescribed.
In respect of these the amendment-making involves two stages:
First, the amendment bill is to be passed by both the Houses of the Union Parliament by a majority
of total membership and a 2/3rd majority of members present and voting in each House.
Secondly, after this the amendment bill has to secure ratification from at least half of the several
State Legislatures (now at least 14 state legislatures).Only then it gets finally passed and
incorporated as a part of the Constitution when the President puts his signatures on the bill.
The following provisions of the constitution can be amended by this
rigid method:

(i) Election of the President.

(ii) Scope of the executive power of the Union.
(iii) Scope of the executive power of a State.
(iv) Provisions regarding High Courts in Union Territories.
(v) Provisions regarding Supreme Court of India.
(vi) Provisions regarding High Courts in States.
(vii) Legislative Relations between the Union and States.
(viii) Any of the Lists in the Seventh Schedule. (Division of Powers between the Union and States)
(ix) Representation of States in the Parliament.
III. Additional Amendment-making by A Simple
Majority in the Two Houses of Parliament:

In respect of some provisions of the Constitution the Parliament has been

given the power to make necessary changes by passing as a law in the
normal way i.e. by simple majority of members of both of its Houses. It
is, indeed, an easy method of amendment.
It applies to the following provisions of the Constitution:

(i) A Admission/ formation of new States and alteration of areas, boundaries or names of existing States.
(ii) Citizenship provision.
(iii) Provision regarding delimitation of constituencies.
(iv) Quorum of the two Houses of Parliament.
(v) Privileges and Salaries and allowances of the MPs.
(vi) Rules of procedure in each House of the Parliament.
(vii) English as a language of the Parliament.
(viii) Appointment of Judges and jurisdiction of Supreme Court.
(ix) Creation or abolition of Upper Houses in any state.
(x) Legislatures for Union Territories.
(xi) Elections in the country.
(xii) Official language of India.
(xiii) Second, fifth and sixth Schedules of the Constitution.
Main Features of the Amendment Method:

1. Fart XX of the Constitution deals with Amendment of the Constitution. It has only one Article i.e. Article 368.
2. The power to amend the constitution is mainly with the Union Parliament. No amendment can be made without
Parliament’s action and consent. Union Parliament alone has the power to initiate bills for amending the
constitution.
3. There are three basic ways in which amendments can be made:
(i) Most provisions can be amended by the Union Parliament by passing an amending act by a majority of total
membership, and a 2/3rd majority of members present and voting in each House.
(ii) Ten provisions of the constitution can be amended,
(a) By passing of the amendment bill by 2/3rd majority of the members of each of the two Houses of Parliament,
(b) It becomes finally passed when approved by at least half of the state Legislatures.
4. Signature of the President is required as the final act which transforms a duly enacted
amendment bill into an Amendment Act.
5. State Legislatures have been denied the power to initiate amendments.
6. All amendments are subject to the Judicial Review power of the courts. (The
Supreme courts and State High Courts only) Any part of any amendment or any
amendment as a whole can be declared invalid by a court in case it is found to be
unconstitutional.
7. The Parliament has the power to amend every part of the Constitution. However, the
Supreme Court has ruled that the Parliament has no power to change the ‘Basic
Structure of the Constitution’.
• These are the main features of the method of Amendment of the Constitution of India.
Method of Amendment: Critical Evaluation:

Main points of criticism:

1. Undemocratic:
The critics hold that since the process of amendment does not provide for a system of getting consent or approval of the
people of India, it is an undemocratic method.
2. Very Flexible:
The Parliament alone can amend most of the constitutional provisions. The flexibility of the constitution is evident from the
fact that during the past 60 years 94 constitutional amendments have been made.
3. Very Rigid:
Some scholars feel that the Constitution of India is very rigid. It worked as a flexible constitution during 1950-1989 only
because of the presence of single party dominance in Indian politics. In this era of coalition governments, it has become a
4. Lack of Procedure for resolving deadlocks over Amendment Bills:
The Constitution does not provide for any method of resolving deadlocks between the two Houses
of parliament over an amendment bill.
5. Less Importance to States:
Except for the ‘ten provisions’ listed by Article 368, all parts of the Constitution can be amended
by the Union Parliament alone without the consent of the State Legislatures. States do not have
even the right to propose amendments.
6. The provision for Judicial Review over Amendments:
Some critics also object to the system of judicial review which permits the Supreme Court and
every High Court to judge the constitutional validity of the amendments passed by the Parliament.
This makes the Supreme Court of India a super legislature with the negative power of the
rejecting duly passed amendments. On all these grounds, the critics strongly criticise the method
Justification:

In defence of the amendment method, it can be said that:

(1) It is the best possible method of amendment. It has both the quality of being rigid as well as flexible. It strikes
a good balances.
(2) In a developing country like India, the constitution is an instrument of social change and that is why it has
undergone frequent amendments.
(3) The detailed and lengthy size of the constitution and its character as a common constitution of both the Union
and States, have also been responsible for the incorporation of several and frequent amendments.
(4) The existing method of Amendment stands justified as a natural necessity of India’s pluralist society and
developing polity.
• The amendment method has helped the Constitution to change in response to the changes in Indian society and
polity.
 Basic structure (doctrine) of the Constitution

The constitution empowers the Parliament and the State Legislatures to make laws within their
respective jurisdiction. Bills to amend the constitution can only be introduced in the Parliament,
but this power is not absolute. If the Supreme Court finds any law made by the Parliament
inconsistent with the constitution, it has the power to declare that law to be invalid. Thus, to
preserve the ideals and philosophy of the original constitution, the Supreme Court has laid down
the basic structure doctrine. According to the doctrine, the Parliament cannot destroy or alter the
basic structure of the doctrine.
What is the Basic Structure Doctrine?

There is no mention of the term “Basic Structure” anywhere in the Indian

Constitution. The idea that the Parliament cannot introduce laws that would amend
the basic structure of the constitution evolved gradually over time and many cases.
The idea is to preserve the nature of Indian democracy and protect the rights and
liberties of people. This doctrine helps to protect and preserve the spirit of the
constitution document.
It was the Kesavananda Bharati case that brought this doctrine into limelight. It
held that the “basic structure of the Constitution could not be abrogated even by a
constitutional amendment”. The judgement listed some basic structures of the
constitution as:

• Supremacy of the Constitution

• Unity and sovereignty of India
• Democratic and republican form of government
• Federal character of the Constitution
• Secular character of the Constitution
• Separation of power
• Individual freedom
Over time, many other features have also been added to this list of basic structure features. Some of
them are:

• Rule of law
• Judicial review
• Parliamentary system
• Rule of equality
• Harmony and balance between the Fundamental Rights and DPSP
• Free and fair elections
• Limited power of the parliament to amend the Constitution
• Power of the Supreme Court under Articles 32, 136, 142 and 147
• Power of the High Court under Articles 226 and 227
• Any law or amendment that violates these principles can be struck down by the SC on the grounds that they
Evolution of the Basic Structure Concept
The concept of the basic structure of the constitution evolved over time. In this section, we shall
discuss this evolution with the help of some landmark judgement related to this doctrine.

Shankari Prasad Case (1951)

In this case, the SC contended that the Parliament’s power of amending the Constitution under Article 368 included the
power to amend the Fundamental Rights guaranteed in Part III as well.

Sajjan Singh case (1965)

In this case also, the SC held that the Parliament can amend any part of the Constitution including the Fundamental Rights.
It is noteworthy to point out that two dissenting judges in this case remarked whether the fundamental rights of citizens
could become a plaything of the majority party in Parliament.
Golaknath case (1967)

• In this case, the court reversed its earlier stance that the Fundamental Rights can be amended.
• It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13, and that to
amend the Fundamental rights a new Constituent Assembly would be required.
• Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the
power to amend the Constitution. This case conferred upon Fundamental Rights a ‘transcendental position’.
• The majority judgement called upon the concept of implied limitations on the power of the Parliament to amend
the Constitution. As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the
citizens.
• In giving to themselves the Constitution, the people had reserved these rights for themselves.
Kesavananda Bharati case (1973)
• This was a landmark case in defining the concept of the basic structure doctrine.
• The SC held that although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the Constitution could not be
abrogated even by a constitutional amendment.”
• The judgement implied that the parliament can only amend the constitution and not rewrite it.
The power to amend is not a power to destroy.
• This is the basis in Indian law in which the judiciary can strike down any amendment passed by
Parliament that is in conflict with the basic structure of the Constitution.
Indira Nehru Gandhi v. Raj Narain case (1975)

• Here, the SC applied the theory of basic structure and struck down Clause(4) of article 329-A,
which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the
Parliament’s amending power as it destroyed the Constitution’s basic features.
• The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act
placed the election of the President, the Vice President, the Prime Minister and the Speaker of
the Lok Sabha beyond the scrutiny of the judiciary.
• This was done by the government in order to suppress Indira Gandhi’s prosecution by the
Allahabad High Court for corrupt electoral practices.
Minerva Mills case (1980)
• This case again strengthens the Basic Structure doctrine. The judgement struck down 2 changes
made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of
the basic structure.
• The judgement makes it clear that the Constitution, and not the Parliament is supreme.
• In this case, the Court added two features to the list of basic structure features. They were:
judicial review and balance between Fundamental Rights and DPSP.
• The judges ruled that a limited amending power itself is a basic feature of the Constitution.
Waman Rao Case (1981)

• The SC again reiterated the Basic Structure doctrine.

• It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it
should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to
that date.
• In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed
the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
• The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective
umbrella” to land reforms laws.
• This was done in order to prevent them from being challenged in court.
• Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of
fundamental rights shall be void.
• Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to
challenge in a court, even if they go against fundamental rights.

• The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and those
Indra Sawhney and Union of India (1992)

SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in
favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs
with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved
quota should not exceed 50%, etc.)
Here, ‘Rule of Law’ was added to the list of basic features of the constitution.
S.R. Bommai case (1994)

• In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the imposition of President’s
Rule on states).
• In this case, there was no question of constitutional amendment but even so, the concept of basic doctrine was
applied.
• The Supreme Court held that policies of a state government directed against an element of the basic structure of the
Constitution would be a valid ground for the exercise of the central power under Article 356.
• Read more on the SR Bommai case.
• The doctrine of the basic structure helps to prevent legislative excesses, as was evident in the Emergence Era. This
is required as a shield against an all-powerful parliament, which can resort to an overuse of Article 368. There is
another school of thought, however, that says that if amendments help a constitution to survive, they must include
changes in the allegedly basic part of the Constitution.
------------------------------------------****************************------------------------------------------
Judicial Activism [ Meaning Concept, & Criticism]

Judicial activism is a concept that originated in the US in 1947. It has

been seen in India since the Emergency days. Judiciary and judicial
activism are important topics to be understood by the aspirants for. The
article will introduce you to judicial activism, its methods, significance
and pros and cons.
Judicial Activism
The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The active role
of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is
known as judicial activism. This entails, sometimes overstepping into the territories of the executive. Candidates
should know the judicial overreach is an aggravated version of judicial activism.
Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups,
because of the efforts of justices V R Krishna Ayer and P N Bhagwati.
The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from
the traditional precedents in favour of progressive and new social policies.”
The concept of Public Interest Litigation (PIL) is always talked of when judicial activism is discussed.
Judicial Activism Methods
There are various methods of judicial activism which are followed in India. They are:
1- Judicial review (power of the judiciary to interpret the constitution and to declare any such law
or order of the legislature and executive void, if it finds them in conflict with the Constitution)
2- PIL (The person filing the petition must not have any personal interest in the litigation, this
petition is accepted by the court only if there is an interest of large public involved; the aggrieved
party does not file the petition).
3- Constitutional interpretation.
4- Access of international statute for ensuring constitutional rights.
5- Supervisory power of the higher courts on the lower courts.
Significance of Judicial Activism

• It is an effective tool for upholding citizens’ rights and implementing constitutional principles when
the executive and legislature fails to do so.
• Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed.
The Indian judiciary has been considered as the guardian and protector of the Indian Constitution.
• There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13
read with Articles 32 and 226 of the Constitution provides the power of judicial review to the
higher judiciary to declare any executive, legislative or administrative action void if it is in
contravention with the Constitution.
• According to experts, the shift from locus standi to public interest litigation made the judicial process
more participatory and democratic.
• Judicial activism counters the opinion that the judiciary is a mere spectator.
Judicial Activism Examples
It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973.
• In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had
they been convicted.
• Golaknath case: The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended
or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to
amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to
amend the Constitution but does not confer on Parliament the power to amend the Constitution.
• Kesavananda Bharati case: This judgement defined the basic structure of the Constitution. The SC held that although no part of the
Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution
could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down
any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
• In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on the grounds that the process
of allocation was flawed.
• The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions in 2018.
• The SC invoked terror laws against alleged money launderer Hasan Ali Khan.
Pros & Cons Of Judicial Activism
Judicial Activism in simple words means when judges interrupt their own
personal feelings into a conviction or sentence, instead of upholding the
existing laws. For some reason, every judicial case has a base of activism
within it, so it is imperative to weigh the pros and cons to determine the
aptness of the course of action being carried out.
Pros associated with Judicial Activism India

• Judicial Activism sets out a system of balances and controls to the other branches of the government. It
accentuates required innovation by way of a solution.
• In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal
judgment.
• It places trust in judges and provides insights into the issues. The oath of bringing justice to the country
by the Judges does not change with judicial activism. It only allows judges to do what they see fit
within rationalised limits. Thus showing the instilled trust placed in the justice system and its
judgments.
• Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government
when it interferes and harms the residents.
• In the issue of majority, It helps address problems hastily where the legislature gets stuck in taking
Cons Associated with Judicial Activism

• Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In
a way, it limits the functioning of the government.
• It clearly violates the limit of power set to be exercised by the constitution when it overrides
any existing law.
• The judicial opinions of the judges once taken for any case becomes the standard for ruling
other cases.
• Judicial activism can harm the public at large as the judgment may be influenced by personal or
selfish motives.
• Repeated interventions of courts can diminish the faith of the people in the integrity, quality,
and efficiency of the government.
Judicial Activism Criticism

Judicial activism has also faced criticism several times. In the name of judicial activism, the
judiciary often mixes personal bias and opinions with the law. Another criticism is that the theory
of separation of powers between the three arms of the State goes for a toss with judicial activism.
Many times, the judiciary, in the name of activism, interferes in an administrative domain, and
ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group
are involved. In this context, judicial restraint is talked about.
Also read: PIL Under Scrutiny: RSTV – The Big Picture
Judicial Activism VS Judicial Restraint
As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the
legal and constitutional rights of the citizens. Judiciary exercises its own power to
implement or strike down the laws and rules that infringes the right of the citizens or is
for the good of the society at large, whatever the case may be.
While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar
opposite of the activism which puts obligations on it to follow constitutional laws while
implementing its duties. It encourages the judiciary to respect the laws or rules set out
in the constitution.
Judiciary has gained power with judicial activism as the judges can take up issue suo-
motu wherever they think that constitutional laws are being violated, however, with
judicial restraint, the same judiciary has to abide by the executive who is given the sole power to
Way forward in Judicial Activism

Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution.
When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could
be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in
the Constitution.
If judges can freely decide and make laws of their choices, it would not only go against the principle of
separation of powers but will result in chaos and uncertainty in the law as every judge will start writing
his own laws according to his fads and quirks.
Judicial exercise has to be respected to maintain a clear balance.
Making laws is the function and duty of the legislature, to fill the gap of laws and to implement them in
a proper manner. So that the only work remaining for the judiciary is interpretations. Only a fine
Judicial Activism and Judicial Restraint

The Judiciary has been assigned active role under the constitution. Judicial activism and
judicial restraint are facets of that uncourageous creativity and pragmatic wisdom.

The concept of Judicial activism is thus the polar opposite of Judicial restraint. Judicial
activism and Judicial restraint are the two terms used to describe the philosophy and motivation
behind some judicial decision. At most level, judicial activism refers to a theory of judgment
that takes into account the spirit of the law and the changing times, while judicial restraint
relies on a strict interpretation of the law and the importance of legal precedent.

Meaning and Definition of Judicial Restraint and Judicial Activism

Judicial Restraint
Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power.
It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicially-
restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.

The courts should hesitate to use judicial review to promote new ideas or policy preferences. In short, the courts
should interpret the law and not intervene in policy-making.

Judges should always try to decide cases on the basis of:

1. The original intent of those who wrote the constitution.
2. Precedent – past decisions in earlier cases.
3. The court should leave policy making to others.

They “restrain” themselves from setting new policies with their decisions.
Trends in Judicial Restraint

There is broad (though not absolute) separation of powers in the Indian Constitution vide Divisional Manager, Aravali Golf Course vs. Chander Haas,
2008. The Constitution of India did not provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs. Thus,
the need arises for the judiciary to lay down its own limitations.

One of the examples of judicial restraint is the case of State of Rajasthan v Union of India, in which the court rejected the petition on the ground that it
involved a political question and therefore the court would not go into the matter.

In S.R. Bommai v Union of India The judges said that there are certain situations where the political element dominates and no judicial review is
possible.

The exercise of power under Art.356 was a political question and therefore the judiciary should not interfere. Ahmadi J. said that it was difficult to
evolve judicially manageable norms to scrutinize the political decisions and if the courts do it then it would be entering the political thicket and
questioning the political wisdom, which the court must avoid.

In Almitra H. Patel Vs. Union of India, where the issue was whether directions should be issued to the Municipal Corporation regarding how to
make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve
their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law.
Judicial Activism vs. Judicial Restraint
The difference between judicial activism (“loose constructionist”) and “judicial restraint (“strict constructionist”). These are ways
of interpreting the Constitution. A judge who is a strict constructionist might rule in cases in a way that reads the Constitution very
literally or relies on the original intent of the framers. A judge that is a judicial activist might rule in a very broad manner that takes
into account how times have changed since 1787.

Judicial Activism and Judicial Restraint are two opposite approaches. Judicial activism and judicial restraint, which are very
relevant in the United States, are related to the judicial system of a country, and they are a check against the fraudulent use of
powers of the government or any constitutional body.

1. Judicial activism is the interpretation of the constitution to advocate contemporary values and conditions.

On the other hand, judicial restraint is limiting the powers of the judges to strike down a law.

2. In the judicial restraint, the court should upload all acts of the congress and the state legislatures unless they are violating the
constitution of the country.

In judicial restraint, the courts generally defer to interpretations of the constitution by the congress or any other constitutional body.
3. In the matter of judicial restraint and judicial activism, the judges are required to use their
power to correct any injustice especially when the other constitutional bodies are not acting. This
means that Judicial activism has a great role in formulating social policies on issues like
protection of rights of an individual, civil rights, public morality, and political unfairness.

4. Judicial activism and judicial restraint have different goals.

Judicial restraint helps in preserving a balance among the three branches of government,
judiciary, executive, and legislative. In this case, the judges and the court encourage reviewing an
existing law rather than modifying the existing law.

5. When talking about the goals of judicial activism, it gives the power to overrule certain acts or
judgments.
For example,
the Supreme Court or an appellate court can reverse some previous decisions if they were faulty. This judicial system also acts as
checks and balances and prevents the three branches of government, judiciary, executive and legislative from becoming powerful.

6. Judicial activism is the interpretation of the constitution to advocate contemporary values and conditions.

Judicial restraint is limiting the powers of the judges to strike down a law. In judicial restraint, the court should upload all acts of
the congress and the state legislature unless they are violating the constitution of the country.

7. In Judicial activism, the judges are required to use their power to correct any injustice especially when the other constitutional
bodies are not acting. Judicial activism has a great role in formulating social policies on issues like protection of rights of an
individual, civil rights, public morality, and the political unfairness.

8. Judicial restraint Judges should look to the original intent of the writers of the Constitution.

Judicial activism judges should look beyond the original intent of the framers (after all they were mere humans too and not
infallible to making mistakes).

9. Judicial restraint Judges should look at the intent of the legislatures that wrote the law and the text of the law in making
decisions any changes to the original Constitution language can only be made by constitutional amendments.
Conclusion
When Judges start thinking they can solve all the problems in society and start performing
legislative and executive functions (because the legislature and executive have in their perception
failed in their duties), all kinds of problems are bound to arise. Judges can no doubt intervene in
some extreme cases, but otherwise they neither have the expertise nor resources to solve major
problems in society. Also, such encroachment by the judiciary into the domain of the legislature
or executive will almost invariably have a strong reaction from politicians and others.
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