Indian Polity

Sources Rabindaran
(Director)
Class notes
Two volumes of Yellow Book
Constitution at work - XI NCERT /
Newspaper/Recitals/CA lectures
Second source material -> M. Laxmikant for me
or
Polity by Spectrum
What is the Constitution?
Supreme law of the land
Sum total of all the laws that are used for Administration of
/

country

...
1) the constitution
2) Statutory Laws By legislator
Permanent
Regular law
IPC
passed by
CPC
higher
CrPC
legislature
Indian Citizenship Act
Medical termination of Pregnancy Act
Parliament/state
↑

legislature

Approved by parliament/state legislature

3) Ordinances

By President/Governor7 By Executive
Temporary 6M +6W

4) Judicial Decisions

Made by SC/HC only (not lower/district court)

&

Right of
Medical termination of Pregnancy Act
Reputation also
Women enjoy bodily autonomy

2017 -> Right to Privacy

Under A21 -> Right to life

5) Applicable Rules of International Law

Ex. Indus Water Treaty, 1960
USA-Saudi Arabia Treaties Not applicable to India law of land
6) Bye laws
Passed by lower legislature (Municipalities and Panchayats)

7) Rules, Regulations, Notifications, Order, Directions etc.

Framed by government (Executive)

 8) Personal laws

Regulates Marriage, Divorce, Adoption of Children, Inheritance of property

Practice / customs values

↓
Made by Non-state Institutions
evolved with time on
based Religious practices
1 - 7 -> made by State institutions with in communities

UCC -> statutory law Constitution only says that

Personal law disappears UCC should be implemented

Constitution is the highest law in country

No law above it

All other inferior -> if violates -> invalid

Conforms to the constitution -> valid

Why?
Constitution
1) Organic Law
Creates administrative structure/system is called Organic Law

Central -> Railway, defence etc. Executive, Legislature, Judiciary

·

State -> law, police, Law and Order etc. Policy Law Interpret the
making law - SC
Local government -> local issue
Executive, Legislature, Judiciary
Executive
Panchayat president
Subordinate court HC
Vice President of panchayat Mayor
Judiciary -> Gram Nayalaya (village court)
Legislature -> Panchayat, Municipal Corporation
2) India is Political Unity or entity because of constitution
3) Ideals & Aspiration aims/goals (ends)
Values Justice
(means) Liberty
Sovereign Equality
Socialist Fraternity
Secular
Democratic
Republic
4) Relationship between people <———> government

Legal -> citizenship

 Written & Unwritten Constitution

Written Unwritten
UK, NZ, Israel

a) provisions codified a) not codified in

into a single legal single legal document
document not
haphazard
2) enacted 2) Evolved
a) multiple sources
a) Single authority
John-II
b) definite beginning i) Magna Carta 1215 CE
USA - 20th March, 1789 (great charter)
A265 of the Indian Constitution
395 Articles, 8 Schedules
ii) parliament
3) constitution is the
iii) historical accidents
creator of parliament Robert Walpole - 1st head of cabinet
4) Supreme constitution (1717)/ 1st PM of England because
5) judiciary enjoys wider King stopped coming to parliament
powers (both against Executive
3) parliament is a creator of
and Legislature) and Judicial
constitution
Review is well established
4) Supreme Parliament
6) Rigid/flexible or both
5) restricted power judiciary and JR is
Rigid if more than one authority is
partially established
needed to amend the constitution
USA
6) flexible
CAB -> Congress (2/3)
England
Ratified 3/4*50 = 38 or more states
Sri Lanka
CAB -> parliament (2/3)

CAA Attributes of a sovereign state:

India 1. Territory
CAB -> parliament (2/3) 2. population
3. government
Art368
Assent/CAA 4. Independence

10% of Constitution
1/2*31 = 16 or more
 7) federal or unitary 7) unitary
8) Marked distinction 8) no marked distinction
9) governed less by conventions
9) more by conventions
and more by its own provisions
Conventions in India
Speaker - ruling party
Dupty Speaker - opposition party
Parliament meets 3 times
COM if defeated in
parliament, they should
resign

Part III
Fundamental Rights
Based on Bill of Rights of USA

1791 -> Amendments I to X

Right - claim that is due to any person based on a fair, just or reasonable demand or
supported by moral or ethical principles

Legal Rights
Guaranteed under Law and operates in the public domain . Real and enforceable right.
Violation create Legal obligations and the violator can be held responsible and maybe
punished in a court of law

Moral Rights
It is supported by moral principles but not guaranteed under law. It operates in the
private domain not in public domain. Not a real and enforceable right. Violation does not
create legal obligation

Civil Rights
Rights that are essential to free and complete development of an individual self.
Without civil rights no civilised life is possible in society. Right to life, right to
liberty, right to free speech, right to freedom of religion, right to equality etc.
are examples of civil rights. Fundamental rights are largely civil rights
Political Rights
These are the rights that allow opportunity to individual to participate in administration of
the country. Whereas civil rights are enjoyed by a person in his individual capacity political
rights are enjoyed by a person not in his individual capacity but as a member of the group
called Citizenry. Right to vote, right to contest elections, right to occupy high constitutional
offices such as president, vice president, judges etc.are examples of political rights

Social Rights
These are the rights which seek to established equality of status among the people in
the society. The right against untouchability, right against exploitation, the prohibition on
the state from conferring titles etc. are examples of social rights. They are included
under part III and IV of the Constitution

Economic Rights

These Are the rights that seek to establish a welfare state and the country by promoting
equitable distribution of resources and prevention of concentration of wealth in fewer
hands. Together with social rights the economic rights seek to establish The egalitarian
society. Right to employment, right to participation of workers in the management of
industries, right to equal pay for equal work for both men and women etc. are examples of
economic rights. They are provided under part IV of the Constitution.

Natural Rights
These are the rights that are regarded as inherent to an individual by virtue of having
been born in this world. They are moral rights, unless they are guaranteed under law
where they become legal rights. Right to life, right to liberty, right to free speech, right
to freedom of movement, right to religion are examples of natural rights. Civil rights are
largely natural rights.
Human Rights
These are the rights that are considered to be a essential for an individual to lead A
dignified human existence in a society. They are moral rights unless guaranteed under
law where they become legal rights
Human
Man
Sociological
Biological enitity

Society

India does not guarantee

Right to statehood / Right to citizenship (certain conditions required other than born in
India)
 Classification of legal rights

Legal Rights

Non-constitutional Rights/
Constitutional Rights
Extra constitutional
Rights/ ordinary legal
rights/ largely statutory
FRs Other constitutional rights rights
1) right not to be taxed 1) consumer rights
without the authority of 2) Labour rights Legal Services
law (Art 265) including right to strike Authorities Act
2) right to property 3) Right to free legal aid 1987
(Art. 300A) 4) right to employment
3) Right to freedom of 5) Right to enforce a MNREGA
interstate trade and contract
commerce (Art 301) 6) right to marry
4) right to universal 7) right to adopt a child
suffrage (A325) 8) right to inheritance
5) Right to adult
suffrage. (A326)
Difference between FRs and other legal rights
If fundamental rights of an individual are violated than the aggrieved
individual can approach the Supreme Court directly by filing a writ petition
under article 32 of the Constitution. If the other legal rights or violated than
the aggrieved individual cannot approach the Supreme Court directly instead
he has to approach either the High Court by filing a writ petition under article
226 or by filing the ordinary legal suit before the subordinate court

Article 12
Meaning of the term “state”
1. Legal sense - a sovereign and independent country

2. Federal sense - unit of a federation

3. Administrative sense - any authority that exercises governmental nor executive
or administrative functions or any authority that functions under the control of
the government
 Is judiciary part of state? Yes and No

Judicial Functions Administrative Functions

No Yes

Nature of FRs
1) fundamental rights are enjoyed by the individual
2) fundamental rights are enforceable against the state however some of the
fundamental rights such as right against untouchability, right against exploitation, right
to freedom of movement, right to privacy, right to reputation Are enforceable against
individual as well
3) The fundamental rights are duties of the state and state has to respect the
fundamental rights of the individual
4) fundamental rights are negative obligation of the state
5) fundamental rights are regarded as limitation upon the powers of the state
6) seek to prevent the state to become authoritarian. Further the fundamental rights
provides Doctrine of Limited Government.
7) Fundamental rights enjoyed by the individual are not absolute rights. They are
restricted rights except the right against Untouchability which is given in absolute
term.

Grounds of Reasonable Restrictions

1) interest of sovereignty and territorial integrity of India

2) security of the country
3) maintenance of friendly relation with the foreign state
4) public Order, morality or decency
5) in case of contempt of court, defamation, incitement to an offence
6) for the promotion of well-being of backward classes of citizens including schedule
castes, scheduled Tribes, women, children and weaker section of society

Classification of FRs
A. Availability
B. Enforceability
C. Subject Matter
Availability

Citizens = All FRs

Aliens : Friendly = All except FR given u/A 15,16,19,29&30

Non friendly alien (No FR) [Those countries with whom India is
currently involved in war]
Enforceability

Self executory FRs = don’t require subsequent legislation to be

passed for implementation, FRs complete within themselves
Non-self = incapable of implementation by themselves and
require a subsequent legislation to be passed by state for
their implementation. They are considered to be incomplete FRs
- Art 17,18,21-A,23&24

A17 Civil Rights Protection Act 1955

A18(2) Declaratory
A21-A - 86th CAA 2002 Right to Education
RTE Act 2009 - school within 3-5 km radius
A23 - Right against exploitation
Prohibits
• Traffic in human beings
• Begar (bondage labour
• Similar form of forced labour

Forcing people into slavery, servitude and immoral activities

Modern slavery - Wage slavery, marriage
Immoral Traffic (Prohibition) Act 1956
Bondage labour (abolition and rehabilitation) act 1976

A24 - prohibits the employment of children below the age of 14 in

Hazardous industries
Not complete ban (allowed in non hazardous)
Child labour (prohibition and regulation) act 1986 - defines conditions
2011 - Amendment to 1986 Act - define child as under 18 years of age
Complete ban on child labour
Except in Audio visual industries, family business, family agriculture

Subject Matter
 1. Right to Equality (Art14-18)
2. Right to Freedom (Art19-22)
3. Right against exploitation (Art23-24)
4. Right to freedom of religion (Art24-28)
5. Cultural and educational rights (Arts29-30) [Minority Rights]
6. Right to Constitutional Remedies (Art32)

Doctrine of Judicial Review (JR) & the FRs

Judicial Review means the power of higher judicatory to declare a law made by
the state as unconstitutional and void if the law violates one or more provisions
of the constitution to the extent of such violation. The doctrine of judicial review
originated under the US constitution. It has been adopted in the Indian
constitution implicitly under the Writ jurisdiction of SC and HC given under Art32
and 226 respectively. However when it comes to the protection of Fundamental
Rights JR has been given explicitly under Art 13(2). Art 13(2) provides that if
the state enacts any law that takes away or abridges one or more of the FRs
the law shall be declared as unconstitutional and void to the extent of its
violation of FRs.
Judicial Review is applied by the courts based on the following principles.
1. If a law passed by the state is capable of 2 interpretation where 1
interpretation makes the law intra vires to the constitution and other
interpretation makes its ultra vires the constitution than the court shall prefer
that interpretation which makes the law intra vires the constitution and uphold
the constitutional validity of the law and reject the other interpretation.
However if the law is capable of only one interpretation which interpretation
makes the law ultra vires the constitution than and than only the court can
apply Judicial review and declare the law as unconstitutional and void.
2. Ordinarily the judiciary shall not apply judicial review on a law that has not
yet been brought into legal enforceability
3. Ordinarily the judicial shall not apply JR suo motu

JR has benefited in maintaining the supremacy of the constitution, Rule of law,

federalism, separation of power, independence of the Judiciary, judicial review
itself and the protection of the FRs of the individuals. Because of it’s importance
the SC in Keshavananda Bharti vs State of Kerala, 1973 case held that JR is a
part of the Basic Structure of the constitution high cannot be taken away even
by the means of an amendment of the constitution.

Amendability of the FRs and the Doctrine of Basic structure of the constitution
 A368 Art 13(2)
CAB - Special Majority
Kameshwar Prasad vs. state of Bihar 1951
Land reform act violates Art 14, 19 & 32
Unconstitutional and void
State of Madras vs C. Dorairajan 1951
Reservation policy violates Art 14, 15

1st CAA 1951

Art 15, 19 & 31 amended

Shankari Prasad vs. UOI 1951
a) Constituent legislative power u/a 368
b) Ordinary legislative power outside Art 368
Any enactment made under A368 is called a Constitution Amendment act which does not
fall under Art 13(2)
Any enactment made ordinarily is called Ordinary Law falls under A13(2)

”Law” in A13(2) includes

a) Statutory Laws
b) Ordinances
c) Bye laws Constitutionally Valid
d) R,R,N,O,D etc
e) Personal Laws
But not CAA

4th & 16th CAA subsequently amended Art 19 & 31

Sajjan Singh vs State of Rajasthan 1965 Valid
17th CAA amended Art 19 & 31
Golaknath vs state of Punjab 1967
a) Overruled it’s earlier decision in Sajjan Singh and Shankari Prasad
b) 17th CAA unconstitutional and void
c) Under constitution parliament enjoy only one type of legislative power called
ordinary legislative powers
d) It refuse to acknowledge parliament enjoyed constituent legislative power on the
ground that A368 merely contains the procedure to amend the constitution but didn’t
confer the power on parliament to amend the constitution
e) FRs had been given a transcendental (overriding) and can’t be amended by
parliament
24th CAA 1971
Changes
1) Title of Art 368 “Power of Parliament to amend the constitution and the procedure
therefore
2) CAA made under A368 does not fall u/A 13
“Law” as given u/A 13(2) = CAA

Keshavananda Bharti Case

a) overruled Golaknath
b) 24th CAA is constitutionally valid
c) acknowledge constituent legislature power of parliament u/A 368, can amend any
part of constitution including FRs
d) Power is not unlimited but it is limited to the extend of not destroying the basic
structure of the constitution

Basic structure
The doctrine of basic structure is not mentioned explicitly in the constitution, it is a
judicial innovation made by the SC in Keshavananda Case. Basic structure means
those provisions of the constitution without which the constitution would lose its basic
character. The SC has not defined what is basic structure but in a number of cases it
has identified the following provisions of the constitution as parts of the basic
structure:
1) Sovereign nature of the country
2) Supremacy of the constitution
3) Mandate to build a welfare state
4) Secularism
5) Democracy
6) Republican form of government
7) parliamentary form of government
8) free and fare elections
9) rule of law
10) federalism
11) separation of power
12) judicial review
13) independence of judiciary
14) balance between FRs and DPSP
15) FRs given under Art 14, 15, 19, 21
16) Balance among the 3 organs of the government

42nd CAA 1976 -> added clauses 4 & 5 to Art 368

368(4) -> no judicial review for CAA
368(5) -> no limitation on amending power of parliament
Minerva Mills vs UOI 1980
Court held Art 368 (4 & 5) unconstitutional -> took away JR and disturbed the
balance between 3 organs of the state which are held to be a part of basic
structure of the constitution

Right to Equality (A14-18)

A 14 Core or lead
14, 19, 21 -> triumvirates of FRs
trinity or three-some

14 15-18
Availability Wider Narrow
Applicability
Available to Citizens and foreigners Mostly to citizens
General clause Particular clauses

Art 14

a) Equality before law (EBL)

b) Equal protection of laws (EPL)

EBL : England, negative concept

essentially means absence of privileges in the eye of law
1. All persons are equal in the eye of law
2. All persons weather high or low in rank or position are subject to the ordinary
law of the land
3. All persons weather high or low in rank or position are equally amenable to the
jurisdiction of ordinary court of the country
Indra Gandhi trail in special court for atrocities during National Emergency -
Unconstitutional by SC
Special court under CBI for MP-MLA court
A.V Dicey
Popularised rule of law -> equality before law

Implicit under the constitution

Rule of Law
 Lex supremus
Law is supreme-> law is the highest authority in the country
“Be you ever so high, the law is always above you”
Predominance of legal spirit in the administration of the country -> government is
subordinate to law and not vice versa

Principles that governs the rule of law: A.V. Dicey

1. No man shall be punished or made to suffer in body or goods except for the violation
of law for ex. Confiscation, fine etc
Such a violation of law must be established in ordinary court of law in ordinary legal
manner for ex. CrPC
2. All persons weather high or low in rank or position shall be subject to the jurisdiction
of the ordinary law of land
3. All persons weather high or low in rank or position shall be equally amenable to the
jurisdiction of the ordinary courts of the country so the courts enjoy automatic
jurisdiction over all citizens of the country
One can sue or can be sued in any court of the country
4. The constitution is the result of the ordinary law of land (not true for Indian
Constitution [the constitution is the supreme law of the land and all other laws in order
to be legally valid shall conform to the constitution] but holds true for Unwritten English
constitution)

Significance of Rule of law

1. Earlier basis of administration was Rex Lex (King was law), before rule of law became a
legal concept. Now the basis of administration is Lex Rex (Law is king)
2. Essential for the functioning of a democracy, integral part of democratic function
3. Rule of Law is a basic structure of the constitution which cannot be taken away even by
means of an amendment to the constitution
4. Constitution imposes the responsibility of the protection of Rule of law on SC and HC by
conferring writ jurisdiction on them under A32 and A226 respectively.
5. SC held that rule of law is immutable principle of administration with the exception
given to president and governor of a state.
Exceptions
A361
1. The president or governor of state is not answerable to a court of law in exercise of
his executive functions
2. No criminal action whatsoever can be initiated or continued against the president or
governor of the state during his term of office
3. No civil proceedings in which relief is claimed i.e. compensation can be instituted
against the president or the governor of the state except after the expiry of a 2 month
notice issue on him
u/A 105 & 194
4. A MP or MLA Is not answerable to the court of law for whatever he has
spoken, reviled or voted in the house or the committees of thereof. He is
answerable to the house to which belongs but not to the court of law

Under International law

5. The visiting heads of the state, heads of government, other ministers, foreign
diplomats who are posted in the country are not subject to the jurisdiction of
the local court
persona non-grata - unwanted person and leave the country within 24 hours

Equal protection of the Laws

USA, positive concept

Based on the Aristotelian concept of equality

= Meaningful only when the equal law are applied for equal persons
Like should be treated alike
(Similar) (similarly)
Alike should not be treated likes
(Dissimilar) (similarly)

As a legal concept it originated under the US constitution. It is regarded as a

positive concept. It is based on the Aristotelian concept of equality. According to
Aristotle the principle of equality is meaningful only when it is applied among
people who are placed in similar circumstances. If two persons are placed in
dissimilar circumstances, identical treatment given to them amounts to the worst
form of inequality that has been practiced therefore the principle of equality
is applied by taking into consideration the circumstances under which people are
placed

Equal protection of the laws means equality of treatment among persons who are
placed in equal circumstances. The like should be treated alike and the alike
should not be treated like. Among equals the law must be equal and equally
administered. Equal protection of the laws guarantees neither equality of
treatment among unequals nor inequality of treatment among equals. It only
guarantees equality of treatment Among equals. The state is under a duty to
ensure that people are placed in similar circumstances before applying the law
uniformly among them. However if people can not be placed in similar
circumstances equal protection of the laws allow the state to classify people into
different categories on a reasonable basis and their after apply the law
differently among different groups as they are placed in dissimilar circumstances.
The reservation policy of the government in favour of backward classes of
citizens is constitutionally protected under equal protection of the laws as the
citizens are placed under different circumstances on the basis of social and
educational backwardness. According to the SC equal protection of the laws
constitutionally requires that creamy layer among the OBCs shall be identified
and removed from the benefits of the reservation to ensure 27% of reservation
is applied uniformly among rest of the OBC communities. Equal protection of the
laws recognises the fact that people are not placed in similar circumstances in
terms of talents but it seeks to ensure that people must be given equal
opportunities to develop these talents.

Rule by law
Fair, just and reasonable law - legal and morally correct
Droit justum (Just law)
Apartheid law was Droit injustum (unjust law), Taliban Rule
In a country where rule of law prevails, it is presupposed that law of land which
is used in administrative of the country is fare, just and reasonable. It enjoys
not only legal but moral authority. It’s objective is to render justice to all
section of the population, such a law is called droit justum i.e. Just law
Rule by law prevails in a country where the law of the land that is used in the
administration of the country is not fare, just and reasonable. It may enjoy legal
but not moral authority. It’s aim is not to render justice to all but to confers
certain privileges on one section of the population and deny the same to the
other sections. In such a system the law is used as an instrument of oppression,
such a legal system is called droit injustum that is unjust law. The British colonial
rule in India, apartheid rule in SA, Taliban rule in Afghanistan are examples of
rule by law
Principles of Natural Justice and relations with Right to equality
SC in Tata Cellular vs UOI held that right to equality me dates that every
action of the government shall be fare, just and reasonable, transparent,
unbiased, rational and in public interest
RTE essentially means non arbitrariness. PNJ also stand for non arbitrariness,
court called them complementary to each other. Further PNJ are an ingredient
of RTE. Because of this violation of PNJ leads to violation of RTE
Principles
1. No men shall be punished without being heard (Maxim: Audi Alteram
Partem), Proper hearing, fair trail, speaking order must be issued by
deciding authority (means an order supported by detailed reasons)
2. No Man shall be a judge of his own case, judge must recuse in case of
conflict of interest (conflict between public duty and private interest),
includes any authority be it judicial or non judicial
3. An authority shall act bonafide (good faith) act with honesty and sincerity
without any bias

Aims of PNJ
1. To eliminate arbitrariness and include a measure of fairness
2. To ensure each decision is supported by reasons
3. To humanise the decision making process

Sources
Emerged out of human ability to think and rationalise and born out of human
consciousness
They are universal in nature
One of the basic rights of the individuals and binding on all authorities
Not incorporated principles of the constitution but the inherent principles of the
constitution
Maneka Gandhi vs UOI, 1978 - inherent under Right to life (A21)
Central Inland water transport cooperation limited vs Brojo Nath Ganguly, 1986 -
inherent under A14

Exceptions to PNJ
1. In case of offices of pleasure tenure (e.g. governor) in the interest of
effective administration
2. in case of contempt of court; Parliamentary standing committee on Law and
justice recommended in such cases the judge concern may recuse himself
3. CJ of a court acting as a master of Roaster
He enjoys two exclusive powers
a) to distribute/allocate the cases filed before the court to various
benches of the court
b) to decide on the composition of judges of a bench
Recommendation- Practice followed in European Court of Human Rights and
Supreme Court of UK should be introduced in India - collegium of 3 senior most
judges will act as master of roaster and if some judge have an inherent interest
4th judge will be appointed and the other judge gets recused
Right against Discrimination (Art 15)
Art 15(1) State shall not discrimination against the citizens on ground only of
religion, race, caste, sex, place of birth or any of them
For citizen, prohibits state only not individuals, can be on only enforced against
state
“Only”means that these 5 ground alone cannot be the sole ground for
discrimination, they can be one of the grounds but not the only ground for
discrimination. If there is a ground other than these 5 grounds on which valid
discrimination is allowed than A15(1) doesn’t prohibit the above 5 being additional
ground for discrimination. Therefore they cannot be the first or main ground for
discrimination but can be additional ground for discrimination.

Kerala state electricity board vs Siniya Mol 2008

Peculiar nature of job of electric workers in erection and maintaince department
+ sex can be criteria for discrimination

Art 15(2)
No citizen shall be denied access to public places such as shops, malls, restaurants,
hotels, public roads, public wells, bathing grounds etc. on grounds
only of religion, race, caste, sex, place of birth or any of them
Applicable to both state and individual
Subject to reasonable restrictions- public order, public health, morality and
decency (attire also included)

Art 15(3)
Nothing in this article shall prevent the state from making special provisions in
favour of women and children
Confers the power on state to make special provisions in favour of women and
children
It is an exception to Art 15(1) because women are vulnerable in patriarchal
society
Wide scope - not restricted to any single field for e.g. 73rd and 74th CAA 1992 -
not less than 1/3 seats reserved in PRI and Municipalities
108th CAB, 2013 (passed in RS but failed in LS) - not more than 1/3 in LS and LA
4-30% reservation in Public employment in various states
Section 437 of IPC - bail of softer grounds to women
ICDS (integrated child development services) exclusive for children
Development of Women and Children in Rural Area
Matru Vandana Scheme
Maternity benefits scheme
Art 15(4)
Introduced by 1st CAA 1951
State of Madras vs C. Dorairajan 1951 = government of madras introduced
reservation for backward classes of citizens in educational institutions => SC held
it Unconstitutional and void
It confers the power on state to make special provisions in favour of backward
class of citizens who are socially and educationally backward, including the SCs
and STs
Wider scope
Reservation of seats in favour of SC and ST in government educational
institutions, scholarship facilities, scholarship facilities for SC and ST, free hostel
facilities, development of housing colonies, free coaching facilities, various socio
economic welfare programmes etc.

Art 15(5)
93rd CAA 2005 - to provide reservation for OBCs as well
It confers the power on state to provide by law reservation of seats in favour of
backward classes of citizens who are socially and educationally backward
including SCs and STs in educational institutions, weather aided or unaided by
state but excluding minority educational institutions

15(4) 15(5)
1. wider scope 1. Narrow
2. both by executive order and 2. Only by legislature
legislative measures 3. private can also be included (so
3. government and government far not included)
aided institutions 4. extended to all backward
4. In practice SC and ST classes
Central Educational Institutions (Reservation of seats) Act 2006
27% for OBCs in IITs, NITs, IIMs, AIIMS
But not in research oriented institutions- BARC, IISc
Ashok Kumar Thakur vs UOI, 2007
SC held it constitutional provided the clause of creamy layer is included
Art 15(6) : 103rd CAA 2019
EWS reservation policy in educational institutions
It confers the power on state to make special provisions in favour of
economically weaker classes of citizens other than backward classes of citizens
and reserve not more than 10% of seats in favour of economically weaker
classes of citizens other than backward classes of citizens in educational
institutions including private educational institutions weather aided or unaided
by state but excluding minority educational institutions
Art 15(1) & 15(2) Art 15(3) to (6j
1. Confer FR against discrimination 1. No FR, instead they confer the power
in favour of citizens on state to make special provisions in
2. They impose duty on state to favour of certain categories of citizens
respect FR of Citizens 2. They impose no duty on state to make
3. Equality before law special provisions for citizens, they are
enabling clauses, not mandatory but
discretionary in favour
3. Equal protection of the laws
Right to Equality of opportunity in matters of public employment (Art 16)
16(1) : Equality of opportunity for all citizens in matter of public employment
16(2) : state shall not discriminate against citizens in matter of public
employment on grounds only of religion, race, caste, sex, decent, place of birth,
residence or any of them
Domicile is not included
Residence is something which a citizen select whereas Domicile means a citizen
who is recognised by state as a permanent resident of that state
Domicility means a person having been recognised by a state as a permanent
resident of a state on a reasonable basis, a person can have not more than one
place of domicility. On the other hand a resident is a person who chooses to
live at a place anywhere in the country for which he does not need the official
recognition of the state. A person can have more than one place of residence

Haryana state employment of local persons Act 2020

Enforce from jan 2022 and for a period of 10 years - Sunset legislation = a
law passed to remain in force for a fixed period of time
It reserves not more than 75% of seats in private sector in state of Haryana
for local persons
Against A19(1)(g) and Art 21 : Right to livelihood

16(3) : it confers the power on the parliament to provide by law prescribing

residence as the grounds for qualification in certain categories of employment
under the state
Exception to Art 16(2) like Nizam of Hyderabad’s Mulk rules - Class III and
Class IV post were reserved for local population only, parliament extended it
for 10 years after Independence
Public employment (Requirement as to residence) Act 1957 - for Andhra
Paresh, Himachal Pradesh and Manipur (Mulk Rules also incorporated later)
Under the Mulk rules formulated by Nizam of Hyderabad, all the Class III and
Class IV post under the government of Hyderabad were reserved for local
residents on the ground that they were socially, educationally and
economically backward. The Mulk rules became unconstitutional and void when
COI entered into force as they violated Art 16(2). Since the poor conditions of
local population in Hyderabad continued the parliament enacted a law under
Art 16(3) which extended the applicability of the Mulk rules for 10 more
years. Subsequently the parliament enacted Public employment requirement as
to residence Act 1957 which reserved all the Class III and class IV post
under the governments of Andhra Pradesh, Himachal Pradesh and Manipur for
the local residents. With improvements in conditions of the local population the
above act was withdrawn in 1974. By its vary nature a law made under Art
16(3) is considered to be temporary and expected to remain in force so long as
the special conditions exits in a part of the country
Reservation of seats in Public Employment (Art 16(4))
It confers the power on the state to make reservation of seats in matters of
public employment in favour of backward classes of citizens provided the
backward classes of citizens in the opinion of the state are not adequately
represented under the employment of the state.

Indra Sawhney vs UOI, 1992

The SC :
1. Held that the backward clas sreservation policy as constitutionally valid
provided such a policy satosfiees 5 constitutional requirements
a) Backward class of citizens shall be socially and educationally backward
b) backward class citizens are not adequately represented in public
employment
c) the overall reservation made in favour of Backward class of citizens
including SC, ST and OBCs shall not exceed 50% under normal circumstances.
This is called Rule of Vertical reservation as laid down by the SC
d) A concept of creamy layer shall apply in case of OBC reservation policy
e) the backward class reservation policy shall not effect the overall
efficiency in the administration as provided under A335
2. A 16(4) provides all that can be done by the state in the area of backward
class reservation in public employment. There is no other provision in the
constitution that deals with this subject matter. A 16(4) is an enabling clause.
It neither confers a FR to reservation on the backward classes of citizens nor
imposes a duty on state to make reservation of seats in favour of backward
classes of citizens. Art 16(4) is not mandatory but discretionary in nature.
3. The backwardness that is contemplated under Art 16(4) is mainly social. It
need not be both social and educational
Art 15(4) - social and educational backwardness
4. Under A16(4) the state is empowered to provide reservation of seats for
yeh backward classes only at the initial stage of recruitment into the public
employment but not subsequently in the form of reservations in promotions,
which policy was held to unconstitutional and void
5. There are certain jobs and courses where merit alone counts where no
reservation policy can be made. This includes airline pilots, nuclear scientists,
super speciality courses and employment in the field of medicine, research
oriented employment etc.
6. The constitutionally provided grounds for reservation under A16(4) are social
and educational backwardness. Economic backwardness is no ground under
A16(4) to extend reservation facilities to any section of the citizens. The court
held 10% of the seats reserved for EWS by the Narasimha Rao Government in
1991 as unconstitutional and void
 7. The reservation policy shall be applied on a year to year basis. It shall not be
applied on the total No of seats counted over 2 or more years
8. The state under A16(4) is empower to classify OBC citizens as backward and
most backward leading to subcategorisation of OBC category provided it is done on
reasonable basis - MBC, SBC (special BC) OBC Muslims etc.
9. A16(4) allows the state to follow the carry forward policy wherein the unfilled
vacancies reserved for the SC and ST can be carry forward to the following year
wherein the unfilled/back-log should be filled only by SC and ST communities

Rule of Vertical Reservation

(open) 50% can Violated only on

50.
quantifiable data

50%. (BC

Maratha Reservation Policy

2013 SC + ST + OBC = 15%
Exclusive reservation to Martha = 16% in Public employment and 14% in educational
institutions
Jaishri Patil vs CM, State of Maharashtra 2021
SC held this as unconstitutional and void
1. The Maratha community is neither socially nor educationally backward. It is a
dominant community and a part of national mainstream. It doesn’t qualify to
enjoy the OBC reservation facilities
2. The state failed to produce quantifiable data in support of its claim of existence
of an extraordinary situation justifying the breach of rule of vertical reservation
3. Maratha reservation policy violated the Goldilocks solution laid down by the SC.
Under this solution enough % of seats have been made available for the state to
meet the social justice norms to promote the well being of backward classes
without endangering the right to equality of opportunities that is guaranteed to
the other sections of the citizens by Art 16(1)
Tamil Nadu Government’s Reservation Policy
SC - 18%
ST - 1%
OBC - 50%
69%
1st CAA 1951 -> Art 15(4), Art 31-A, Art 31B, IX schedule
Shankari Prasad vs UOI 1951
I.R. Coelho vs State of TN 2007
Basic structure, 284 enactments under Schedule IX, 66 before 24th April, 1973

By the 1970s the TN reservation policy provided for reservation for 69% of seats
reserved for backward class of citizens. it became unconstitutional and void when
SC laid down vertical Reservation. TN government was forced to scale down the
Quota of reservation to 50%. However in 1994 the TN legislature passed the TN
Backward classes of Citizens (Reservation of Seats) Act 1994 which reintroduced
the 69% reservation policy both in public employment and education institutions for
the backward classes of citizens thereby exceeding the limit fixed by vertical
reservation. The parliament place the above act under IX th Schedule and thus
that became immune from Judicial Review. It was the first CAA that introduced IX
th schedule to the constitution. Art 31B provides that any enactment placed under
the IXth schedule to the constitution shall not be challenged before the court of
law on the ground that it violates the FR given under A14 and 19. The SC in
Shankari Prasad case upheld the constitutionality of 1st CAA including the IXth
schedule was placed beyond judicial scrutiny and any act placed under 9th
schedule could not be challaned before court of law.

Since the TN Reservation Act 1994 could not be challenged in court of law, the
constitutionality of IXth schedule was challenged before the SC in I.R. Coelho vs
State of TN 2007 case. The constitutionality of the IXth scheduled was challenged
before sc on the ground that it is violative of basic structure of the constitution by
taking away the power of juiced review from the court. The SC held the out of
the 284 Acts that have been placed under IXth schedule, 66 enactments were
placed before 24th April 1973 that is the date on which SC pronounced its
judgement in the Keshavananda Bharti Case. The doctrine of Basic structure came
into existence on 24th April 1973. If these 66 enactments are be said to be
violative of the basic structure doctorice they will continue to enjoy judicial
immunity and cannot he challenge before court of law however the remaining 218
enactments that were placed on and after 24th April are subject to the doctrine
of basic structure and they can be challenged before the court of law. Thus TN
reservation policy is challenged in SC in C.V Gayatri vs SoTN case and the court is
yet to decide its judgement
Reservation in promotion
77th CAA 1995 -> Art 16(4A)
Confers the power in state to reserve seats in favour of SC and ST in promotion
provided these communities are not adequately represented in public employment
M Nagraj Vs UOI 2006 case - SC held it constitutionally valid provided 3
constitutional requirements are satisfied:
a) SC and ST are socially backward
b) not adequately represented in public employment
c) such a reservation policy does not disturb the overall efficiency in the
administration
Jairnail Singh vs Lachchmi Narain Gupta, 2018 - SC reaffirmed its decision and
also held that such a policy is subject to the concept of creamy layer (to reach
weakest among the weak)

Carry forward policy

Under the carry forward policy the state is allowed to carry forward the
backlog vacancies which remain unfilled due to the non availability of the
qualified candidates. This policy is followed only in case of SC and ST
communities and in case of recrument into public employment but not in case of
admission into educational institutions. This SC in Indra Sawhney case held that
carry forward policy is constitutionally valid provided it does not violate the rule
of vertical reservation
In order to avoid any constitutional challenge to carry forward policy, the
Parliament enacted 81st CAA 2000 that introduced Art 16(4B). It provides that the
vacancies provided under carry forward policy shall always remains separate from
the regular vacancies falling in a particular year. Theses two categories of vacancies
are not to be clubbed together to find out the ceiling of 50% has been exceeded

The carry forward policy is followed only in case of public employment but not in
the case of educational institutions
Sub Categorisation of OBC of Citizens
OBC Muslims

TN :
20% ↓ 30% 18% 1%
MBC OBC SC ST 69%
3.1.
10.5% OBC 50%
Vanniyars
S of AP vs T.Muralidhar Rao 2010
- subcategorisation is valid
4% 23%
AP/OBC/27%
OBC Rest of OBC
-

Muslims
Rohini Commission
Oct 2017
Interim report March 2021 - 5 year data, 2633 caste groups are added
10 caste groups have enjoyed 1/4th of the OBC reservation
37 (10+27) - 2/3
100 (37+63) - 3/4
>1000 castes - 0%
4 subgroups to distribute 27% reservation
1 - 2%
2 - 6%
3 - 9%
4- 10%
When a section of the backwards class population say the OBC is subdivided into
smaller groups on the basis of Social and educational level of attainment and
thereafter the quota of benefits reserved for that section of backward classes is
redistributed among subgroup than it is called subcategorisation of the communities.
The SC in Indra Sawhney Case held this subcategorisation of the backward class
communities as constitutionally valid provided it is done on a reasonable basis. The SC
in state of AP vs T.Murlidhar Rai reaffirmed this decision and upheld the AP
government subcategorisation of OBC as constitutional valid

Justice Rohini Commision

Also referred to as OBC subcategorisation Commission. Appointed by the Central
Govenrment in October 2017 to examine the possibility of creating subcategorisation
within the central list of OBC to ensure equitable distribution of reservation benefits
among the OBC communities. The Commision submitted its interim report in March
2021. Based on the past 5 year data the Commision in its report had indicated that
there are 2633 OBC caste in the centre list and the benefits had been largely
couriered by a small minority of the caste grouped. It indicated that 10 caste have
enjoyed 1/4 of the Benefits
The Commission had also indicated that OBC communities can be subdivide among 4
smaller groups and the 27% reservation quota can be redistributed amongst these groups
in the following manner :
Sub group 1 = 2%
Sub group 2 = 6%
Sub group 3 = 9%
Sub group 4 = 10%
So the commission is expected to submit its final report by the end of Jan 2023
EWS Reservation Policy

In 16(6) Jankit Abhiyan vs UOI 2022 case the constitutionality of the EWS
reservation policy was challenged before the SC on the following 3 grounds
1) can economic criteria be a basis of affirmative action laedung to
2) 10% of the seats under EWS voialtes the rule of vertical reservation
3) is the exclusion of the SC, ST and OBC from the preview of EWS reservation
violates the right of backward classes

The SC while upholding the constitutionality of EWS reservation held that the state
can make economic backwardness as a criterion for extending reservation benefits.
It is protected under the preamble which seeks to extend wholesome justice to the
people i.e. Political, Social and Economic. Further part IV of the Constitution seeks
to create an egalitarian society in the country. The court also held that the rule of
vertical reservation applies to only caste based reservation i.e, backward classes.
Further the 50% ceiling can be extended under circumstances. The court further
held that the backward classes of Citizens are not excluded the benefits of EWS
reservation,it may lead to double benefits for backward classes which will amount
to discrimination with the other communities
On the other hand the minority judgement held that economic backwardness can
only be a ground for extending poverty elevating schemes but not introducing
reservation policy. Further nearly 90% of the the citizens who are economically
backward belong to SC, ST communities and their exclusion from EWS violates the
right under A16(1).

Distinguishing features of the SC judgement

Reservation original aim was adequate representation for the backward classes in
public employment and it was a compensatory mechanism to undo social injustice
done to backward classes. However now the basis of reservation has also been
made to include the class based reservation apart from caste based reservation.
Further earlier, reservation was community centric, given based on the community
but now it is made individual centric as well
 Article 17 - Right Against untouchability
1) it abolished untouchability
2) it prohibits the practice of untouchability in all forms
3) it declares untouchability as a punishable offence
However it doesn’t prescribe punishment. Art 35 leaves it to the parliament to
prescribe by law for the punishment of UT
Untouchability (Offences) Act, 1955
It made the UT as non-cognisable and bailable offence
1976 - name changes to Civil Rights (Protection) Act, 1955
Cognisable and non-bailable offence

Cognisable Non-cognisable

1. Serious offence for which the Non-serious

law prescribes a punishment of E.g (Public nuisance)
more than 3 years of
imprissionment Can only act on the direction of
2. Police can take suo motu action court
and arrest a person without
arrest warrant Bailable
3. Non-bailable offences

SC & ST (Prevention of Atrocities) Act 1986 (POAA)

Main provisions :
1) A person can be arrested under this act without any preliminary enquiry made
in the complained filed under this act
2) No anticipatory bail can be granted under this act
3) a public servant can be arrested without the prior sanction of his appointing
authority

Subhash Kashinath Mahajan vs State of Maharashtra 2018, the constitutionality of

this act on the basis of that it violates the Art21 of COI - SC held it
constitutionally valid
To prevent the misuse of this act, guidelines were provided
• No arrest can be made under this arrest without a preliminary enquiry
conducted by a senior police officer on aligation made in the complaint
• Anticipatory bail can be granted under this act except when primafacie case
of atrocities is made against the accused => Judicial Legislation
• A public servant can not be arrested without the prior sanction of its
appointing authority
2018 Amendment to POAA
Original rules were restored
Prithviraj Chauhan vs. UOI 2020 case (3 judge bench) - constitutionally valid
NCRB Report on POAA
20% increase in past 3 years
Reasons:
1) Better reporting of the crimes by the Alert media and by the members of SC
and ST communities
2) The successful mobilisation of Dalit under Tribals and increase in the literacy
rate among the 2 communities have made them more aware of their rights and
the legal means by which they can protect their rights
3) Outside encroachment on the Dalit and tribal land leading to new kind of land
based crime committed
4) the continued practice of untouchability even in urban centres
5) the increase No of inter cast marriages involving Dalit, tribals and others
leading to caste based violence including honour killings committed against them

Steps taken by the government

1) Amendment made in 2018 to the POAA
2) Establishment of special courts at district level to deal exclusively with the
cases filed under POAA
3) the appointment of public prosecutor to assist these special courts to fast
track the cases filled under POAA

Suggestions:
Untouchability is a social evil. It cannot be handled only through legal process.
The social education of the masses and the need to protect the human rights of
SC and ST must be promoted. Such measures should start from the school level
SC and ST candidates who are elected to the offices of President and Vice
president of the panchayats must be allowed to function in an autonomous
manner
Social senstetisation of the police to understand the link between atrocities
committed under POAA and the disturbance in law and order in the country
Article 18 The state and Conferment of Titles (Art 18)

Art 18(1) Prohibits the state from conferring any title on any individual.
However it allows the state to recognise Academic and Military distinctions. E,g
Paramveer Chakra, Mahaveer Chakra, Vishist Seva Medal, Ativishist Seva Medal,
Ph.D, D.Sc, D.Litt
Awards :
1) Meritorious service rendered by an individual either to a nation or to a
society
2) An award is conferred without any regard based on religion, race, caste, sex,
place of birth, occupation etc.
3) Awardee not to use award by prefixing or suffixing it to its name
4) Award doesnt create artificial social distinctions in the society

Titles:
1) for the services rendered to the nation or society or the government (Quid
Pro Quo)
2) such a rule is not strictly followed for e.g. Sir, Dewan Bahadur, Rai Bahadur,
Rao Bahadur
3) free to use
4) creates social hierarchy

Padma Awards and their Constitutionality

Balaji Raghavan vs. UOI 1996
SC held that Padma awards are constitutionally valid. They are in the nature of
the state recognising academic distinctions. Further the court held what A18(1)
prohibits is the hereditary titles of the nobility. Further right to equality
doesn't mandate that merit shall not be recognised by the state

A18(2)
It prohibits a citizen from receiving any title from any foreign state
Indian citizens are allowed to recive awards from foreign state. E.g Honoris
Cause (Honorary Doctrate), Legion d'Honneur (France Government), Order of
British Empire (OBE) [Nishan-i-Pakistan = award]
Declaratory provision

A18(3)
It prohibits a foreigner who is in the sevice of government in India from
receiving any title from any state without the prior permission of the President
of India. This is to ensure the loyalty to Indian government
Right to Freedom (Art19)

19(1) Six FRs - Democratic, citizen, against state expect R to Freedom of Movement
Which is enforced again state and individuals
19(2) to (6)
Restrictions can be placed
Not absolute right

19(1)(a): Right to Freedom of Speech and Expression

(b): Right to assemble
(c): right to form associations
(d): right to freedom of movement Inferred rights -
(e): right to reside or settle anywhere in the country not explicitly
(g): right to avocation given in
Constitution but
Art 19(1)(a) : FSE, Right to Equality, Right to life = core of FRs derived implicitly
Base minimum by the judiciary
Maneka Gandhi vs UOI 1978 by giving a wider
Not limited by geographical and political borders interpretation to
Inalienable adjunct to Right to life u/A 21 the existing
Inseparable part provisions of the
Composite right - contains many rights from within constitution

Meanings of FSE
1. His own views and opinions freely and openly i.e. without undue restrains from
state, can chose any medium to express view and opinion, Right to silence is also
included
2. Right of citizen to express other views and opinion -> FR to press includes print
media, digital media (implicit right)
3. Right to have access to information => RTI is FR
4. Right to make informed choices especially in an election

UOI vs Association for Democratic Reforms 2002 case directed all the contesting
candidates in an election to disclose their assets and liabilities, educational
qualifications, criminal convictions ,if any, and pending criminal case, if any, in court
of law
5. Right to dissent - Right to take a view against the government = safety valve of
democracy
6. People’s Union for Civil Liberties vs UOI 2013 case the SC held that the right
to vote is not a fundamental right but the act of casting one’s ballot in an election
is nothing but expression of one’s political opinion and this is an FR u/A19(1)(a)
therefore to enable the citizens to express their political opinions fully the SC
directed the election commission to include NOTA as the last option in Ballot paper
FSE & the use of Internet
Anuradha Bhasin vs UOI 2020
Intelligible differentia
Print Digital
1. Travels slowly and 1. Lightening speed and millions of
reaches limited people people
2. Cost 2. Almost no money
3. Central authority to 3. No Central Authority
Filter
ITA 2000
Section 499 Cognisable and
Non-cognisable non bailable
2year 3 yrs

Faheema Shirin vs State of Kerala 2019

Right to Internet is FR u/a A21

In Anuradha Bhasin vs UOI 2020 case,two important questions of law namely

1) whether the access to the internet in itself is a FR available to the citizens under
A19(1)(a)
2) Can the internet and its services be suspended by the state

SC held that citizens under A19(1)(a) enjoy the FR to express their views and
opinion on the internet. They also enjoy the FR to carry on business of trade
through the internet. The state can suspend the internet and services but only on
the grounds that are mentioned under 19(2). Further the state has to issue a public
notification indicating the suspension of the internet and its service along with the
ground and purpose of suspension. The state should also establish a nexus between
ground and purpose of suspension. The public notification is essential and to enable
the citizens to challenge the constitutionally of such a suspension before a court of
law. The court pointed out that if a softer option is available to achieve the same
purpose the harder option of suspending the internet is unjustified. Further
suspension of internet and its services for an indefinite period is inadmissible.
However the SC did not clearly answer the question as whether access to the
internet in itself a FR available under A19(1)(a) Thus this question continues to
remains as a substantive question of law as to the interpretation of the constitution
by the SC
However the HC of Kerala in Faheema Shirin vs State of Kerala 2019 case held that
access to the internet is FR available under the A21
FSE & the Sedition law

Section 124A of IPC defines sedition as that if a person through written or oral
means or through any action creates disaffection or disloyalty among the people
against the lawfully established government. It prescribes a maximum punishment
of life imprisonment for sedition
Regarding the constitutionality of Section 124A there are two view points
Antagonists :
Who are opposed to section 124A in view that it violates the Freedom of Speech
and Expression and should be decriminalised on the following grounds:
1. It is a colonial provision introduced by British with the intent to suppress the
emerging nationalistic and democratic spirit among the people of India. It is
anti democratic in nature and doesn’t deserve a place in a democratic political
setup like that of India
2. it create a sense of fear in the minds of citizen and they are confused when
their free speech may be misinterpreted by the state. Even the legitimate
criticism against the wrongdoing of government officials may not be possible
as it creates a chilling effect in the minds of the people therefore it violates
the freedom of speech and expression and declared as unconstitutional and
void
3. Section 124A is one of the highly misused provisions of the law therefore the
legal process of court appearances in itself amounts to punishment and
discourages the citizens from using their freedom of speech and expression

On the other hand the

Protagonist :
Who favours to retain the Section 124A argue :
1. In the absence of a penal provision and with the kind of internal and external
security threats the country is facing it will endanger the public peace and
national security. India cannot afford to scape Section 124A
2. In Kedar Nath Singh vs State of Bihar 1962 case the SC has already upheld
the constitutional validity of section 124A
3. if section 124A is misused by the state the approach should be to introduce
regulatory measures to prevent such a misuse but not to get it scraped
The SC on Section 124A:
In Kedar Nath case SC laid down a test when free speech amounts to sedition. For
this purpose it identified 3 factors namely
a) Discussion
b) Advocacy
c) Incitement to violence
The court held so long as the citizens are engaged in free speech at the level of
Discussion or advocacy and in the process however strong or intense or vociferous
the citizens maybe in their criticism against the government, it does not amount to
sedition. The citizens are within their constitutional right if Free speech. Only when
they indulge in incitement to violence it amounts to sedition. Therefore at the core
of sedition lies violence.

Reforms suggested
1. The essence of SC judgement in Kedar Nath case may be incorporated into
Section 124A in the form of a provision to prevent its misuse
2. the maximum punishment under Section 124A maybe reduced to 5-7 yrs of
imprisonment
3. An advisory board consisting of retired judges of HC maybe established in each
state to oversee the cases filed under Section 124A

Recent developments:
On the petition filed before the SC questioning the constitutionality of Section
124A the SC in May 2022 observed that the intent of the British in introducing
Section 124A was to exercise colonial control over the people of India. It has put
section 124A in abeyance till it decides on its constitutionality
FSE and Hate Speech

There is no provision in law that specifically deals with hate speech. However it is
dealt with under the followings provisions of the law based on the subject matter
of hate speech:
1. Section 124A of IPC penalises sedition
2. Section 153A penalises creating enimities between two community on the basis
of religion, race, caste etc.
3. section 295A penalises deliberate actions intended to outrage the religious
sentiments of a section of population
4. Section 7 of Civil Rights Protection Act penalises promotion of intolerance and
practice of untouchability

Impact
In Pravasi Bhilai Sangathan vs UOI 2014 case SC observed that hate speech apart
from causing distress in individuals has the potential to destroy peace and stability
in society and effect the national security by creating intolerance among the
communities, promoting genocide, xenophobia and ethnicity based violence. It
pointed out the the need for the state to enact a specific law to defend hate
speech and also to lay down a test to determine what amounts to hate speech

The law commission of India has also recommended for including two specific
provisions in the IPC namely Section 153C and 505A to cover hate speech if
directed against communities and against individual members respectively. The
parliamentary standing committee on home affairs has recommended for including
a separate provision in Information Technology Act 2000 to cover online hate
speech

Recent developments
Currently the SC is dealing with a petition seeking an independent inquiry into
alleged hate speeches that were reported to be have delivered at Dharm Sansad
(religious parliament meet) held at Haridwar, Delhi and Uttarakhand. In October
2022 The SC issued 3 directions:
1. It directed the governments of UP, Uttarakhand and Delhi to submit action
taken reports on the alleged hate speeches delivered within their respective
jurisdiction
2. It directed the authorities concerned to take suo moto action against those
alleged hate speeches without waiting for any specific complaint filed in this
regard by the public
3. Any failure to take suo moto action will be treated as contempt of the court
and necessary action will be initiated against such officials
Art 19(1)(b) : FR to assemble peacefully without carrying arms

It includes:
1. Right to hold a meeting - stationary assembly
2. Right to take out an procession - mobile assembly
3. Right to carry a picketing
Corollary of 19(1)(a) - something which is inherent and ancillary / implicit

It can be restricted on ground of Maintenance of Public order, morality and

decency

Art 19(1)(c): FR to form associations or unions or cooperative societies

97th CAA 2011

Right to form any kind of association

Union is nothing but a kind of association formed by workers within an
organisation to protect their interests against the management
It is FR to form Union - don’t confer a FR to Strike
Right to Strike is ordinary legal right
CPI (M) vs Bharat Kumar 1998
CPI argued that right to strike is double FR - under A19(1)(b) and A19(1)
(a); court - it violates 3 FRs

Band is Hindi term equivalent to General strike where it threatens a total

shutdown of the society and also carries an element of Coercion - it
violates : Complete shutdown of transportation so 19(1)(d), people won’t be
able to earn - Art 21 Livelihood, citizens are also afraid of expressing their
view - Art 19(1))(a)
Kerala HC - anyone calling the Bandh will be now in Contempt of court
A hartal is localised in character confined to a single or less No of organisations
Hartal is legal
Hartal is equivalent to ordinary strike

A 33 - confers the power on the state to restrict the availability of rights

under A19(1)(c) to the members of Armed forces, police forces etc.
Army Act
Police act
Denied to form a political association and union has been restricted
Art 19(1)(d) : FR to Freedom of movement throughout the territory of India
No part of country can be made restricted
• Right to move inside the country
• Right to travel abroad
• Right to return back to the country

Art 19(1)(d) only guarantee the 1st right, rest two are under A21
Can be restricted in the interest of ST and General public - Inner line
permit(IPL) system - it is a policy measure undertaken by the Center whereby
it restricts the freedom of movement of the individuals to certain parts of the
country in order to protect the interest of the STs, at present it is in operation
in Arunachal Pradesh, Mizoram, Nagaland and Manipur
ILP is a special pass issued by a state government that the ILP system is in
operation to allow individuals to travel to certain restricted regions of the
country.

19(1)(e) : FR to reside (temporarily) or settle (permanently)

Corollary of 19(1)(d)
Subject to restrictions on the same grounds - ST and General grounds

19(1)(g) : FR to Avocation
Protection in respect of Conviction for offences (Art20)
Art 20 prohibits the state from :
a) enacting ex-post facto criminal legislation [Art20(1)]
b) prohibits the practice of double jeopardy [Art20(2)]
c) prohibits the state to compelling an accused to provide self-incriminating
evidence [Art20(3)]

Act passed on 25/1/23 - prospective

Act applicable from 1/4/22 - retrospective
Art20(1) no criminal legislation can be given retrospective effect. All criminal
legislations can be given only prospective legal effect. However cilvil legislation can
be given either prospective or retrospective effect. The aim of Art20(1) is to
protect an individual from getting convicted and punished unfairly in a court of law
Under Art20(1) a person can be punished for the performance of an act only if the
said act was declared as a criminal offence in the law at the time of its
commission. An act which was not a criminal offence at the time of its commission
according to the law can not be subsequently made into a criminal offence and the
person is punished for that. Further under Art20(1) no person can be given a
punishment greater than what is prescribed in the law at the time of its
commission

Art 20(2)
No person can be punished twice for the same offence
Executive and legislature are outside the ambit of this
Doesn’t cover a civil court, only criminal tribunal and criminal courts
Defamation - monetary compensation under Civil wrong, punished under criminal
offence
Under Art20(2) no person can be prosecuted and punished more than once for the
commission of a single offence. Since only the criminal courts and criminal tribunals
alone enjoys the authority to prosecute and punish an individual the prohibition
imposed up by Art 20(2) applies only to the above two bodies. Art20(2) doesn’t
cover civil courts, the executive and the legislature as they do not enjoy the
authority to prosecute and punish an individual. Therefore if a civil servant is
convicted and sentenced to imprisonment by a court of law on charges of
corruption and subsequently of his parent department dismisses him from service
the subsequent dismissal doesn’t amount to double jeopardy

Art 20(3) : self incrimination means self incremental injury

Applies to police not to judicial and legislature
Specimens (fingerprint, handwriting, blood etc.) are outside this protection
Narco- analysis test - polygraph or lie detector test, Brain mapping, Narco-drug test
(sodium pentathol is used) are only to help, not admissible in court of law
M. Salvi vs State of Karnataka 2010
SC held that These test are null and void if taken against the will of accused
Art20(3) prohibits the police from complying an accused to make confessional
statements. The purpose of Art20(3) is to prohibit the police to inflict torcher
and other 3rd Degree methods on the accused as part of its criminal
investigation. Therefore if an accused makes a confessional statement to the
police either voluntarily or otherwise, it is not admissible as evidence in court
of law. Art20(3) doesn’t cover the judiciary and the legislature because they
are not in a position to inflict torcher on the accused, therefore if an accused
makes an confessional statement voluntarily to a judicial magistrate than it is
admissible in a court of law. Art20(3) protect only an accused but not a
suspect or any individual as they don’t need the protection under Art20(3) as
they are not under the custody of police
On the question of legality of submission of specimens by an accused in the
form of signature, handwriting, fingerprints, body fluids etc to the police for
forensic experiment the SC held that Art 20(3) doesn’t extend the protection
to the accused on the ground that the outcome of a forensic test result un
such cases will not be different whether the accused submits the specimens
voluntarily or otherwise.
In M Selvi vs State of Karnataka 2010 case the SC held that narco analysis
test conducted on a subject in the form of polygraph or lie detector test,
brain mapping, narco drug test without his consent is unconstitutional and void
on the ground that they violate the right to privacy under A21 and right
against self incrimination under A20(3)