ASWIN JOSHY P , PH - 7909173116

CONSTITUTIONAL LAW 1 NOTES

MODULE - 1

The Constitution of India is the pride of our nation. It is the supreme law of India and nobody
in India even the President has the power to do something that violates the constitutional rule

Constitution of India is the longest constitution in the world . It gives the people their
fundamental rights and sets rules and guidelines that the government must follow.

Constitution of India lays down an important framework that demarcates the structure of the
political system, powers, and duties of government institutions and gives the people their
fundamental rights and duties towards the country.

The main aim of the constitution is to protect the fundamental rights of the people. On 26
November 1949, the constitution was adopted by the Constituent Assembly of India.
Although it came into effect on 26 January 1950

The constitution declares India a sovereign, socialist, secular, and democratic republic. It
ensures that all the citizens of this country will get equality, liberty and justice.

Meaning of the Indian Constitution:

1. Sovereign: The Indian Constitution establishes India as a sovereign nation, which

means it is independent of any external control and can make decisions without
interference from other countries.
2. Socialist: The Constitution aims to promote social justice and reduce inequalities in
society through various provisions, such as the right to equality, reservation policies,
and welfare programs.
3. Secular: India is a secular country according to its Constitution. It ensures equal
treatment and protection to individuals of all religions and prohibits discrimination
based on religion.
4. Democratic: The Indian Constitution establishes a democratic system of government
where power is vested in the hands of the people. It guarantees universal adult
suffrage, periodic elections, and the right to participate in the political process.
5. Republic: India is a republic, which means the head of state is an elected individual
rather than a hereditary monarch. The President of India is the titular head of the
country, and the real executive power is vested in the Council of Ministers headed by
the Prime Minister.

Nature of the Indian Constitution:

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

1. Lengthy and Detailed: The Indian Constitution is one of the lengthiest and most
detailed constitutions in the world. It consists of a preamble and 470 articles, divided
into 25 parts, along with various schedules and amendments.
2. Federal in Structure: The Indian Constitution establishes a federal system of
government, where powers are divided between the central government and the states.
However, it also has unitary features, granting the central government significant
authority during emergencies.
3. Flexible and Adaptable: The Constitution of India is designed to be flexible and
adaptable to changing circumstances. It includes provisions for amendments, allowing
for modifications to be made as per the evolving needs of the country.
4. Fundamental Rights and Directive Principles: The Indian Constitution enshrines
fundamental rights, which are the individual liberties and freedoms guaranteed to
every citizen. It also includes directive principles of state policy, which lay down the
goals and principles for the government to work towards in the interest of the welfare
of the people.
5. Judicial Supremacy: The Constitution establishes an independent judiciary as the
guardian and interpreter of the Constitution. The Supreme Court of India has the
power of judicial review, which means it can examine the constitutionality of laws
and government actions.

Overall, the Indian Constitution reflects the values of democracy, social justice, equality, and
secularism. It provides the framework for the governance of India and ensures the protection
of individual rights and freedoms.

Different types of Constitution

A written constitution is single, formal document that describes the arrangement of

governance in a country.

The written format of the Indian Constitution provides clarity and certainty regarding the
powers and limitations of the government, the rights and freedoms of citizens, and the
structure and functioning of institutions. It serves as a legal and constitutional framework for
the functioning of the Indian democracy.

The written nature of the Indian Constitution means that its provisions are explicitly stated in
a single document, making it accessible and available for reference.

The written nature of the Indian Constitution also facilitates its amendment. Amendments to
the Constitution can be made through a defined process outlined within the document itself.
An unwritten constitution refers to a system of governance where the fundamental
principles, laws, and practices are not explicitly codified in a single written document.
Instead, the constitution evolves from historical, legal, and political traditions, precedents,
conventions, and statutes. Unlike a written constitution, an unwritten constitution relies on a
combination of sources to determine the governance framework of a country.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

It is important to note that India does not have an unwritten constitution. The Indian
Constitution is a written document that explicitly lays out the fundamental principles, rights,
and duties of citizens, as well as the structure and functions of the government.

Examples of countries with unwritten constitutions include the United Kingdom and New
Zealand. In the United Kingdom

The Flexible or Elastic Constitution is the kind of constitution that can easily be changed.
For this type, constitutional law can be amended in the same way as ordinary law

It's important to note that the Indian Constitution is not considered a flexible constitution.

Rigid Constitution

The Constitution of India is not typically referred to as a flexible constitution. Instead, it is

often described as a rigid constitution. The process of amending the Indian Constitution is
more structured and requires specific procedures to be followed.

Unitary Constitution

The world’s major countries utilize the unitary form of constitution. The word ‘unitary’
means having the quality of oneness. The unitary constitution is that form of constitution in
which the supreme governing authority of a state is concentrated in a single place.

As per a unitary constitution, in a unitary state, there is a single central government, this
government is the ultimate authority and control the state administration.

The state has sovereign power and the legal department to create, organize or eliminate the
lower level of government

172 countries in the world follow the unitary constitution. Some of them are Afghanistan,
Armenia, Benin, Chile, Egypt, Fiji, Iran, Kenya, Peru, Taiwan, Denmark, Japan etc.

Federal Constitution

Federal constitution represents the contrast of the unitary constitution.

The English word Federal derived from the Latin term ‘foedus’ which means a formal
contract between nations, peoples or a treaty.

A federal constitution is a national document, drafting the rules and regulations of the
government and it affects functions of government.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

In this constitution, the supreme power is divided between the central and state government
and both the government is independent in their domain.

The Salient Features Of The Indian Constitution

Salient Features of Constitution of India: The Indian Constitution opens with preamble. The
Constitution’s aims, goals, and fundamental precepts are outlined in the Preamble.

The list salient features of Indian Constitution is discussed below:

1. Lengthiest Written Constitution
There are two types of constitutions: written (like the American Constitution) and unwritten
(like the British Constitution).

The Indian Constitution holds the title of being the world’s longest and most comprehensive
constitution to date. In other words, of all the written constitutions in the world, the Indian
Constitution is the longest. It is an extremely thorough, intricate, and extensive document.

2. Drawn from Various Sources

● The majority of the clauses of the Indian Constitution were derived from other
nations' constitutions as well as the Government of India Act 5 of 1935.
● Dr. B.R. Ambedkar proudly declared that the Indian Constitution was drafted after
"ransacking all known Constitutions of the World."
● The structural element of the Constitution is heavily influenced by the Government
of India Act of 1935.
● The philosophical sections of the Constitution (the Fundamental Rights and the
Directive Principles of State Policy) are based on the American and Irish
constitutions, respectively.
● The political aspects of the Constitution (the notion of Cabinet Government and the
relationships between the Executive and the Legislature) were heavily influenced by
the British Constitution.
● Other sections of the Constitution were adapted from the constitutions of Canada,
Australia, Germany, the former Soviet Union (now Russia), France, South
Africa, Japan, and others.
● The Government of India Act, 1935, had the most significant impact and material
source of the Constitution.
● This Act is the source of the Federal Scheme, Judiciary, Governors, Emergency
Powers, Public Service Commissions, and the majority of administrative details.
● More than half of the provisions in the Constitution are similar or closely related to
the Act of 1935.

3. Blend of Rigidity and Flexibility

There are two types of constitutions: stiff and flexible.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

A rigid constitution, like the American Constitution, is one that must be amended through a
certain process.

A flexible constitution, like the British Constitution for instance, is one that can be changed
in the same way that regular laws are produced.

The Indian Constitution is a special illustration of how rigidity and flexibility may coexist. A
constitution’s amendment process determines whether it is rigid or flexible.

4. Federal System with Unitary Bias

A federal structure of governance is established under the Indian Constitution.

Every characteristic of a federation is present, including two governments, a division of

powers, a written constitution, the supremacy of the Constitution, its rigour, an independent
judiciary, and bicameralism.

K C Wheare has alternately defined the Indian Constitution as “federal in form but unitary in
spirit” and “quasi-federal”.

5) Parliamentary Form Of Government

● The Constitution makers preferred a parliamentary system of government. Our newly
formed democracy could not afford any confrontations between the executive and the
legislature.
● This could happen only when they were separate and independent of each other.
● The President of India is the constitutional head of the Union Executive, but he
exercises the executive power vested in him, in accordance with the advice of the
Union Council of Ministers.
● The real executive power thus vests with the Council of Ministers with the Prime
Minister as the head.
● The Council of Ministers is collectively responsible to the Lok Sabha. The same is
true of the relationship between the Governors and the Council of Ministers in the
States. therefore, it is one of the important salient feature of Indian constitution.

6. Synthesis of Parliamentary Sovereignty & Judicial Supremacy

The British Parliament is linked to the theory of parliamentary sovereignty, while the
American Supreme Court is linked to the doctrine of judicial supremacy.

The Indian Supreme Court has less judicial review authority than the US Supreme Court,
much as how the Indian parliamentary system varies from the British one.

This is so that it can be contrasted with the Indian Constitution’s “procedure established by
law” and the American Constitution’s guarantee of “due process of law” (Article 21).

7. Rule of Law

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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This axiom states that men are not infallible and that hence people are ruled by law rather
than men.

The statement is essential to a democracy. The notion that the rule of law is supreme in a
democracy is more significant.

The main component of law is custom, which is nothing more than the ordinary people’s
ingrained behaviors and beliefs over a lengthy period of time.

Rule of law, in the end, refers to the supremacy of the collective knowledge of the people

8. Integrated and Independent Judiciary

A single, integrated judicial system exists in India.

The Indian Constitution also establishes an independent judiciary by preventing the

legislature and government from having any influence over it.

The supreme court of the legal system is known as the Supreme Court.

The state-level High Courts are superior courts to the Supreme Court.

District courts and other lower courts fall within the high court’s hierarchy of subordinate
courts.

As the highest court of appeal, the protector of people’ basic rights, and steward of the
Constitution, the Supreme Court is a federal court.

As a result, the Constitution contains a number of safeguards that guarantee its independence

9. Fundamental Rights
The Indian Constitution guarantees 6 Fundamental Rights:

● Right to Equality (Article 14-18)

● Right to Freedom (Article 19-22)
● Right against Exploitation (Article 23-24)
● Right to Freedom of Religion (Article 25-28)
● Cultural and Educational Rights (Article 29-30)
● Right to Constitutional Remedies (Article 32)

10. Directive Principles Of State Policy

● Part IV of the Indian Constitution deals with the Directive Principles of State Policy.
● It is the duty of every State to apply these principles while making any new
legislation.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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● The Directive Principles of State Policy is similar to the ‘Instrument of Instructions’

that is in the Government of India Act 1935.
● They are basically instructions to the legislature and executive that have to be
followed while framing new legislation by the State.

11. Fundamental Duties

● The Swaran Singh Committee of 1976 added a list of 11 Fundamental Duties in the
constitution by adding a new Part-IVA and Article 51A in constitution.
● Swaran Singh Committee was formed in 1976 after the internal emergency of 1975
which recommended adding a list of Fundamental Duties which every citizen of India
should abide by.
● The 11 Fundamental Duties act as a moral obligation on every citizen of India and
these Fundamental Duties are non-justiciable in nature i.e., one cannot move to court
if someone is not obliging their duty as a citizen of India.
● The new Part IVA with Article 51A was added to the Constitution of India and it was
inspired by the Constitution of the USSR.

12 .Secularism
● The Constitution of India stands for a secular state, i.e. it gives equal importance to all
religions.
● It also does not uphold any particular religion as the official state religion. The
Western concept of secularism connotes a complete separation between religion and
the State.
● This concept is inapplicable in the Indian situation where the society is multireligious.
● Hence, the Indian Constitution embodies the positive concept of secularism, i.e.
giving equal respect to all religions and protecting all religions equally.

13 .Universal Adult Franchise

● The concept of Universal Adult Franchise/Adult suffrage allows every citizen of India
who is above eighteen years the right to vote in democratic elections.
● Any adult who is eligible to vote should not be discriminated against on the basis of
gender, caste, and religion.
● This provision was added in the 61st amendment which is also known as the
Constitution Act, of 1988, which changed the voting age from 21 to 18.
● Article 326 of the Indian Constitution guarantees this right.

14. Single Citizenship

● Despite the fact that the Indian Constitution is federal and envisions a dual polity
(Centre and states), it only provides for one citizenship, namely Indian citizenship.
● In India, all citizens, regardless of the state of birth or residence, enjoy the same
political and civil rights of citizenship across the country, and no distinction is made
between them.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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● Despite the constitutional guarantee for single citizenship and equal rights for all
citizens, India has seen sectarian riots, class battles, caste warfare, language
confrontations, and ethnic problems.
● This indicates that the Constitution's long-held objective of creating a cohesive and
integrated Indian country has not been completely released.

15.Independent Bodies
● The Indian Constitution establishes some autonomous entities in addition to the
legislative, executive, and judicial parts of the government (both central and state).
● The Constitution envisions them as the foundation of India's democratic form of
government.
● They are as follows:
○ Election Commission.
○ Comptroller and Auditor-General.
○ Union Public Service Commission.
○ State Public Service Commission.

16 .Emergency Provision
○ These provisions are included in part VIII of the constitution.
○ National emergency- under article 352.
○ State emergency- under Article 356.
○ Financial emergency- under article 360.

17 .Three-Tier Government

The Indian Constitution originally called for a dual polity and included clauses describing the
structure and authority of the Centre and the States.

Later, a third level of governance (local government), which is absent from all other
international constitutions, was added by the 73rd and 74th Constitutional Amendment Acts
(1992).

By adding a new Part IX and a new schedule 11 to the Constitution, the 73rd Amendment
Act of 1992 gave the panchayats (rural local governments) formal status.

Similar to this, the 74th Amendment Act of 1992 provided urban local governments
(municipalities) official recognition by introducing a new Part IX-A and schedule 12 to the
Constitution.

18. Co-operative Societies

The 97th Constitutional Amendment Act of 2011 granted cooperative societies a

constitutional status and provided for their protection.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

It gives the Parliament the authority to create the necessary laws regarding multi-state
cooperative societies, and it gives state legislatures the authority to do the same for other
cooperative societies.

Preamble and its Role in the Interpretation of the Indian Constitution

A Preamble is the introduction of a constitution or it won’t be wrong if we call the preamble

the summary of the entire constitution of India. A constitution is incomplete without its
preamble; Similarly, the constitution of India cannot be called a complete one without its
preamble. The preamble itself describes the whole constitution.

It is based on the objective resolution passed by Pt. Jawaharlal Nehru in the Constituent
Assembly. Even the former Chief Justice of India remarked Preamble as the “soul of the
Constitution.”

If the Constitution was an entire movie, then the preamble would be the trailer.

The Preamble of the Indian Constitution is an introductory statement that sets out the
objectives and guiding principles of the Constitution.

It serves as a preface or an introductory note to the Constitution and outlines the ideals and
aspirations of the framers of the Constitution.

While the Preamble is not enforceable in a court of law, it plays a significant role in the
interpretation and understanding of the Indian Constitution.

Here are some key aspects of the Preamble and its role in the interpretation of the
Constitution:

1. Source of Power and Authority: The Preamble declares that the Constitution derives
its authority from the people of India.

It establishes that the power and sovereignty of the country rest with its citizens. This
principle is fundamental in interpreting the distribution of powers between the
government and the people.

2. Statement of Objectives: The Preamble states the objectives that the Constitution
seeks to achieve, such as justice, liberty, equality, fraternity, and the promotion of
unity and integrity of the nation.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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These objectives provide a framework for interpreting the fundamental rights and
directive principles of the Constitution and guide the courts in interpreting laws to
promote these ideals.

3. Basic Structure of the Constitution: The Preamble is considered an integral part of

the Constitution and is relied upon in determining the basic structure doctrine.

The Supreme Court of India has held that any amendment to the Constitution that
violates or destroys the basic structure of the Constitution is unconstitutional.

4. Interpretative Aid: The Preamble acts as an interpretative aid in understanding the

intent and purpose of the Constitution.

It provides insight into the historical context and the ideals that influenced the framers
of the Constitution. In cases where the language of the Constitution is ambiguous or
open to interpretation, the Preamble can help in resolving doubts and understanding
the underlying principles.

5. Evolution of Constitutional Jurisprudence: The Preamble has been referred to by

the courts in various cases to interpret and clarify provisions of the Constitution.

It has been relied upon to uphold the principles of secularism, socialism, and
democracy, and to expand the scope of fundamental rights and promote social justice.

In summary, the Preamble of the Indian Constitution serves as a guiding light for interpreting
the Constitution and understanding its underlying principles and objectives.

While it is not enforceable in a court of law, it provides a moral and philosophical foundation
for the Constitution and plays a significant role in shaping constitutional jurisprudence in
India.

Interpretation of Preamble with Constitution and its case laws

As we all know, “India has a borrowed constitution or has a mixture of all constitutions of the
world.” America was the first country to have its own preamble for its written constitution.
Later this path was followed by India. Our preamble is based on the objective resolution
drafted and moved by Jawaharlal Nehru on 13th December 1946 and also passed by the
Constituent Assembly.

N.A. Palkhiwala rightly said, “Preamble is an identity card of Constitution and it is an

introduction to the statue.”

K.M. Munshi viewed the Preamble as the “political horoscope of the Constitution.”

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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Some landmark case laws whose judgments have interpreted and changed the facet of the
preamble have been mentioned below: –

● It was in the case of I.C. Golak Nath vs. State of Punjab,, “where the Supreme
Court held that the preamble sets out the main objectives which the legislation is
intended to achieve. It further said that the preamble serves as a mind opener for
the makers of the constitution.”

● Re. Beriberi Union and Exchange of Enclaves– In the former case, the Apex
court held that the preamble is not a part of the constitution and hence as it has
limited application, so it can only be resorted to where there is any ambiguity in
the statute.
● The Court held that the preamble indicates the source of the constitution. It is an
introduction to the statute, useful to understand the legislative intention and its
policies.”

● Keshavananda Bharti Sripadagalvaru Vs. State of Kerala– The Supreme Court

rejected the view given in the Berubari case and held that preamble is a part of the
Indian Constitution. In any ordinary statute, the preamble does not get so much of
significance, the preamble of the constitution seeks to have a great significance and
it reflects the whole document in a single paragraph.

This particular case gave rise to a major judgement which in one way regained the
importance of the Preamble of the Constitution. The apex court also said that the preamble
emphasizes the principle of equality as a basic structure of the constitution.. As it is a basic
structure of the constitution, no one can find an error in it unnecessarily.

It was held that the basic elements in the preamble cannot be subjected to amendment under
Article 368 of the Constitution.

● , the Supreme Court with relying upon the preamble and Articles 14 and 16 held
that Article 39(d) envisages a constitutional “right of equal pay for equal work.

Module -2

Concept of state

Article 12 of the Indian Constitution, which defines ‘State’.

The fundamental rights guaranteed by the Indian Constitution have been laid down in Part III
of the constitution, starting from Article 12 to Article 35.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

Article 12 states that the Central Government, the Parliament, State Government, and State
Legislatures come within the definition of “state”. Apart from these, certain local authorities
and other authorities are also said to be “state”

The apex court of the country through its various landmark judgments has laid down the tests
for determining whether a body would fall within the meaning of the term local authorities
and other authorities and hence would be considered “state” or not.

It has also been laid down that judiciary in the exercise of its administrative functions can
come under the definition of “state” but not in the exercise of its judicial function.

Article 12 states

“In this Part, unless the context otherwise requires, “the state” includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of the Government
of India.“

The authorities that are expressly included within the definition of Article 12 are as follows:

1. Government and Parliament of India;

2. Government and Legislature of each of the States;

These legislative and executive wings of the Union and the States are expressly and
specifically mentioned in the concerned article.

However, the other two categories i.e., “local authorities” and “other authorities” are not
quite specific. The bodies that come under these two categories have been analyzed by the
Supreme Court through its various judgments.

Local Authorities

The expression “local authorities” usually refers to authorities such as municipalities,

District Boards, Panchayats, mining settlement boards, etc.

Anybody functioning under the state; owned; controlled and managed by the “state” and
carrying out a public function is a local authority and comes within the definition of the state.

The Supreme Court in the case of Union of India v. R.C. Jain laid down the test for
determining which bodies would be considered as a local authority under the definition of
state enshrined under Article 12 of the constitution. The issue in this case broadly was

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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‘Whether Delhi Development Authority (DDA) is a local authority or not?’ The Court held
that if an authority: Has a separate legal existence Functions in a defined area Has the power
to raise funds on its own Enjoys autonomy i.e., self rule and Is entrusted by statute with
functions which are usually entrusted to municipalities, then such authorities would come
under ‘local authorities’ and hence would be ‘state’ under Article 12 of the Constitution.

The Supreme Court's decision in the case of Union of India v. R.C. Jain provided guidance on

determining whether a body can be considered a "local authority" and thus fall within the

definition of "State" under Article 12 of the Indian Constitution.

According to the Court's ruling, for an authority to be considered a local authority, it must

satisfy the following criteria:

1. Separate Legal Existence: The authority must have a distinct and separate legal
identity, separate from the State or any other entity.
2. Defined Area: The authority should operate within a specific geographical area or
jurisdiction.
3. Power to Raise Funds: The authority should possess the power to raise funds
independently, either through taxation, levies, or other means.
4. Autonomy: The authority should enjoy a certain degree of autonomy or self-rule in its
decision-making and functioning.
5. Entrusted with Municipal Functions: The authority must be entrusted by statute with
functions that are typically associated with municipalities or local governing bodies.

If an authority fulfills these criteria, it can be classified as a "local authority" and thus

considered a part of the "State" under Article 12 of the Constitution. This means that such

authorities would be subject to constitutional obligations, including the protection of

fundamental rights.

The interpretation provided by the Supreme Court in this case helps in determining the

inclusion of various bodies or authorities as "local authorities" under the definition of "State"

and ensures that they are held accountable for their actions and decisions in relation to the

exercise of public functions.

Other Authorities

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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The term ‘other authorities’ under Article 12 encompasses those authorities that do not fall
within the first three categories. ‘Other Authorities’ though not defined in the constitution has
been widely interpreted through various judgments and now includes a number of authorities
under it.

The Supreme Court in the case of Rajasthan Electricity Board v. Mohan Lal laid down the
conclusive test for determining the bodies that would come under the ambit of ‘other
authorities’. The court held that if an authority

1. has the power to issue directions and any offense against them is punishable by
law
2. has the power to make rules that would have statutory effect
3. is an agency or instrumentality of state for carrying out trade or business which
otherwise would have been carried out by the state departments, such authorities
would come within the purview of ‘other authorities’ and hence would be
considered ‘state’.

In the case of Sukhdev Singh v. Bhagatram, the question before the court was ‘whether
ONGC (Oil and Natural Gas Corporation), LIC (Life Insurance Corporation of India) and
IFC (International Finance Corporation) created by statutes would come under the purview of
‘state’ under Article 12.’

The court, in this case, followed the test laid down by the court in the case of Rajasthan
Electricity Board and held these authorities to be ‘state’ as they came within the meaning of
‘other authorities’ under Article 12.

Another case, Sabhajit Tewary v. Union of India was decided by the same bench and on the
same day on which Sukhdev Singh’s case was decided.

The question before the court, in this case, was whether the Council of Industrial and
Scientific Research(CISR), which is registered under the Societies Registration Act, 1898
would come within the definition of ‘state’ under Article 12. The Supreme Court observed
that a body would be ‘state’ if :

1. It is performing essential state function and

2. It is under the pervasive control of the Government.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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The court held CISR not to be ‘state’ as per the above said requirement.

In the case of R.D.Shetty v. The International Airport Authority of India, a similar

question was raised before the court that whether International Airport Authority is a state.
The court through J.Bhagwati laid down the following test to determine whether a body is
included within ‘other authorities’ and comes within the definition of ‘state’ :

1. The financial assistance given by the State and magnitude of such assistance;
2. If any usual or extraordinary assistance is provided by the State’;
3. Nature and extent of control of management and policies of the corporation by the
state;
4. The state conferred or state protected monopoly status;
5. The function carried out by the corporation would ascertain whether the body is an
instrumentality or agency of the state or not;
6. If one of the body is transferred to the government.

The above-said parameters broadly determine whether an authority is ‘other authority’ as per
the definition of ‘state’ under Article 12. Considering these tests, International Airport
Authority was held to be ‘state’.

Again, in the case of Ajay Hasia v. Khalid Mujib, a similar question arose before the court
that whether a college that was established by a registered society would come under the
definition of ‘state’ or not.

The court, in this case, approved the tests for determining ‘other authorities’ as laid down in
the case of R.D.Shetty. The court further observed that

“These tests are not final or conclusive in nature. It must be noted that ‘other authorities’
cannot include every autonomous body which has some connection with the government and
that ‘other authorities’ is also subject to certain wise limitations”.

The court further held that on considering the factors mentioned in the case of R.D.Shetty, if
a corporation is an instrumentality or agency of the government, it must become within the
meaning of ‘other authority’ and would be ‘state’.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
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The next case that came before the court on a similar issue was Pradeep Kumar Biswas v.
the Indian Institute of Chemical Biology. The question before the court was whether CISR
was an instrumentality of the state or comes within ‘other authorities’ under Article 12 or not.

It was held that there is no strict rule that every registered society having any connection with
the government, to be declared as ‘state’. If any of the objective tests laid down in the case of
Ajay Hasia is not fulfilled, then the check must be whether the body is functionally,
financially, and administratively held by the government. If this condition is fulfilled, then
also the body would come under ‘other authority’ and hence would be ‘state’ under Article
12.

The case of Pradeep Kumar Biswas acts as a precedent for all further cases related to the
interpretation of ‘other authorities’.

Further, in the case of Zee Telefilms v. Union of India, when the issue came before the court
whether BCCI is a state or not, the court again applied the tests laid down in Ajay Hasia and
Pradeep Kumar’s case and held BCCI, not a state.

It must be noted that Article 12 of the Constitution does not specifically talk about Judiciary.
The answer to the question of whether the judiciary is a state or not is discussed below in
detail.

Judiciary

Under Article 12 of the Indian Constitution,

the term “State” has been defined to include the government and Parliament of India, the
government and Legislature of each of the states, and all local or other authorities within the
territory of India or under the control of the Government of India.
The Judiciary, being one of the three pillars of Indian democracy, is not specifically
mentioned as an “other authority” under Article 12.
No, the judiciary is not considered a "State" under Article 12 of the Indian Constitution. The
term "State" in Article 12 includes the government and its instrumentalities, such as the
executive, legislative, and administrative bodies. However, the judiciary is considered a
separate and independent branch of the government.

The judiciary in India is tasked with the interpretation and application of laws, the protection
of fundamental rights, and the resolution of disputes. While the judiciary plays a crucial role
in upholding the rule of law and safeguarding constitutional principles, it is not considered
part of the "State" as defined under Article 12.

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The inclusion of the term "State" in Article 12 is primarily to ensure that fundamental rights
are protected from infringement by government actions and the actions of entities exercising
governmental or public functions. The judiciary, being a separate and independent branch, is
not considered within the scope of the definition of "State" for the purposes of Article 12.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra (1967), the Supreme

Court of India held that the judiciary is not considered an "other authority" under Article 12

of the Indian Constitution. However, the court recognized that in certain circumstances, the

judiciary may be subject to the writ jurisdiction of the High Court and Supreme Court.

The judiciary, being a separate and independent branch of the government, is subject to the

Constitution of India. The power of judicial review, which allows the judiciary to examine the

constitutionality of laws and government actions, is inherent in the judiciary to ensure that

constitutional guarantees are not violated.

While the judiciary is not considered a "State" under Article 12, it plays a crucial role in

upholding the rule of law and protecting fundamental rights. Through the exercise of its

powers of judicial review, the judiciary acts as a check on the actions of the executive and

legislative branches of government, ensuring that they conform to the provisions of the

Constitution.

In the case of R.S. Nayak v/s A.R. Antulay (1984), the Supreme Court of India addressed
the question of whether the judiciary is considered a "State" under Article 12 of the Indian
Constitution.

The court reaffirmed that the judiciary is not included within the definition of "State" under
Article 12.

However, the court also emphasized that the judiciary is subject to the Constitution and must
act in accordance with its principles.

This includes upholding the principles of separation of powers and judicial independence.

The court acknowledged that these principles are fundamental features of the Constitution
and play a vital role in maintaining the rule of law and protecting citizens' rights.

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Although not considered a "State" under Article 12, the judiciary has a constitutional duty to
interpret and apply the law, including reviewing the constitutionality of legislative actions.

The court's judgment in R.S. Nayak v/s A.R. Antulay highlights the judiciary's role in
safeguarding the constitutional principles and ensuring the proper functioning of the
democratic system.

Centre-State Relationship
Because of the Indian Constitution’s federal nature, the authorities have been divided
between the center and the states. However, the same notion does not apply to democracy’s
judicial pillar, as the Constitution mandates an integrated judicial system to protect federal
and state laws.

Relations between center and the states will be examined under three major headings:

● Legislative relations between centre and state

● Administrative relations between centre and state
● Financial relations between centre and state

The Legislative relations between centre and state are divided into four categories:

1. The territorial scope of Central and state legislation.

2. Legislative subjects are distributed.
3. State-level parliamentary legislation.
4. The federal government’s power over state legislation.

Territorial Extent of Central and State Legislation

● Article 245(1): Parliament has the power to enact laws that apply to all or part of
India’s territory. A state legislature can pass laws that apply to the entire state or only
a portion. Except for an essential link between the state and the object, the laws
enacted by a state legislature are not applicable beyond the state

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● Legislation passed by Parliament has an extraterritorial effect (outside of Indian

Territory). Laws enacted by Parliament govern the Indian Subjects and their property
in any part of the world
● The President has the authority to issue regulations for the peace, progress, and good
governance of the Union Territories of the Andaman and Nicobar Islands,
Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, and Ladakh, and such
regulations may amend or repeal a law passed by Parliament relating to such territory
● The Governor has the authority to direct that a Parliamentary act does not apply to a
designated area in the state or apply with specific modifications and exceptions
● Any other Act of Parliament that does not apply to an autonomous district or tribal
region may be directed by the Governor of Assam. In Meghalaya, Tripura, and
Mizoram, the President has similar powers over tribal areas

Distribution of Legislative Subjects

● List-I (the Union List)

● , List-II (the State List),
● and List-III (the Concurrent List) in the Seventh Schedule of the Constitution provide
a three-fold distribution of legislative subjects among the Union and the states
● One hundred subjects (originally 97) on the Union List: The subjects specified in the
Union List are of national importance, and only Parliament has the authority to enact
legislation on them
● Only the States have exclusive power to establish legislation for the State List, which
now has 61 subjects (up from 66)
● Concurrent List (originally 47) with 52 subjects: On the subjects listed in the
Concurrent List, both the Union and the States have the authority to make laws. In a
contradiction between the Central and State laws, the Central law takes precedence
● Article 248: Residuary Powers: Parliament has sole authority to pass legislation on
issues not included by any three lists. Courts decide whether a particular matter falls
under the residuary control or not

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● When two or more topics overlap, the order of predominance is Union > Concurrent >
State
● In the event of a conflict between Central and state legislation on a topic listed in the
Concurrent List, the Central law takes precedence. However, if state law has been
reserved for the President’s consideration and has got his consent, the state law is
valid in that state. However, the Parliament may still have the authority to overturn
such legislation by enacting a new law on the same subject

Parliamentary Legislation in the State Field

● Under the following five unusual circumstances, the Constitution empowers

Parliament to pass laws on any issue listed in the State List
● When the Rajya Sabha passes a resolution declaring that it is necessary for the
national interest for Parliament to pass legislation, the Parliament gains the authority
to pass legislation on the State List
● Two-thirds of the members present and voting should vote in favour of such a
resolution
● The resolution is valid for one year and can be renewed as many times as needed, but
not for more than one year
● The legislation enacted loses its force six months after the resolution is no longer in
force
● This provision does not limit the ability of state legislatures to pass laws on the same
subject. In the event of a conflict between state law and legislative law, the latter will
prevail.

During a national emergency, under Article 250

● During a National Emergency, the article enables Parliament to pass laws that apply to
the entire country or any part of India’s territory on all topics on the State List

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● However, such a statute might be repealed six months after the emergency
proclamation has ended
● A state legislature’s ability to pass laws on the same issue is also unrestricted in this
case. However, if a legislative and state law conflict, the latter takes precedence

Article 252

● When state legislatures issue resolutions: When the legislatures of two or more state
governments pass resolutions requesting that the Parliament enact laws on a subject
listed in the State List, the Parliament can enact laws to regulate that subject
● A law approved in this manner is only applicable to the states that have passed the
resolutions
● However, any other state government may adopt it later by enacting a resolution in its
legislature to that effect. Only the Parliament, not the legislatures of the involved
states, can alter or repeal such a statute
● The impact of approving such a resolution is that the state legislature’s power over
that issue is completely surrendered. It is placed entirely in the hands of Parliament,
which can then create legislation about it
● Article 253 gives Parliament the power to enact legislation for the entire country or
any part of India’s territory to execute treaties, international agreements, and
conventions
● Article 256-During President’s Rule: When the President’s Rule is imposed in a state,
the Parliament is given the right to pass legislation on any subject listed in the State
List that pertains to that state
● A law passed by Parliament remains in effect even after the President’s term ends.
This means that the length of time for which a regulation is in effect does not coincide
with the duration of the President’s administration
● The state legislature can later repeal, amend, or re-enact such legislation

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Centre’s Control over State Legislation

● Furthermore, the Constitution enables the Centre to exercise control over the state’s
legislative concerns in the following ways, despite the Parliament’s capacity to
legislate directly on state subjects in extraordinary circumstances
● Certain types of measures passed by the state legislature may be reserved for review
by the President by the Governor. The President has complete control over them. (See
Article 200.)
● Bills on specific issues in the State List may only be introduced in the state legislature
with the President’s prior approval. (For example, bills restricting and limiting the
freedom of trade and business.)
● During a financial emergency, the Union government can direct states to hold money
bills and other financial bills passed by state legislatures for review by the President

The Indian Constitution’s power distribution between the Centre and the States is based on
the scheme established by the Government of India Act of 1935. Though the federal
provision was never implemented, it served as a model for India’s federal state, which was
established in the 1950 Constitution. However, this Act established autonomous provinces as
the first step in the federation’s formation.

Evolution of Fundamental rights in India

The evolution of fundamental rights in India can be traced back to the freedom struggle and
the demand for individual liberties and civil rights. The framers of the Indian Constitution
were deeply influenced by the principles of human rights, justice, and equality. They
recognized the importance of protecting the fundamental rights of the citizens to ensure their
dignity and freedom.

The concept of fundamental rights in India evolved through various stages:

1. Pre-Constitution Era: During the pre-Constitution era, several movements and leaders
emphasized the need for fundamental rights. Prominent leaders such as Mahatma
Gandhi, Jawaharlal Nehru, and B.R. Ambedkar emphasized the importance of civil
liberties, equality, and social justice.

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2. The Government of India Act, 1935: The Government of India Act, 1935, served as a
significant influence on the development of fundamental rights in India. It included
provisions that safeguarded certain rights and freedoms of individuals.
3. The Constituent Assembly Debates: The Constituent Assembly of India, tasked with
drafting the Indian Constitution, extensively deliberated on the inclusion and scope of
fundamental rights. The discussions revolved around the need to protect individual
freedoms, provide social and economic justice, and promote equality.
4. Incorporation in the Constitution: The Indian Constitution, adopted on January 26,
1950, enshrined fundamental rights as an integral part of Part III (Articles 12-35).
These rights are guaranteed to every citizen of India and aim to protect their
individual liberties and ensure equality before the law.
5. Nature and Scope: The fundamental rights in the Indian Constitution encompass a
wide range of rights, including the right to equality, right to freedom of speech and
expression, right to life and personal liberty, right against discrimination, right to
freedom of religion, right to education, and right to constitutional remedies.
6. Amendments and Judicial Interpretation: Over the years, certain amendments have
been made to the Constitution to clarify and expand the scope of fundamental rights.
Additionally, the judiciary, particularly the Supreme Court of India, has played a vital
role in interpreting and safeguarding these rights through landmark judgments. The
court has expanded the scope of fundamental rights and established principles such as
the basic structure doctrine, which protects the essential features of the Constitution.

The evolution of fundamental rights in India reflects the country's commitment to protecting
the rights and liberties of its citizens. These rights serve as a cornerstone of Indian democracy
and play a crucial role in ensuring justice, equality, and dignity for all individuals.

THE CONCEPT OF STATE ACTION UNDER ARTICLE 12 OF THE INDIAN

CONSTITUTION
The concept of state action under Article 12 of the Indian Constitution is significant in
determining the scope and applicability of fundamental rights. Article 12 defines the term
"State" for the purposes of the Constitution, and it includes the government and Parliament of
India, the government and Legislature of each state, and all local or other authorities within
the territory of India or under the control of the Government of India.

The term "State" as defined in Article 12 is crucial because fundamental rights are
enforceable against the State and its instrumentalities. It establishes the jurisdiction of the
courts to examine violations of fundamental rights and provides individuals with a
mechanism to seek remedies for such violations.

The concept of state action is closely related to the doctrine of horizontal and vertical
application of fundamental rights. Vertical application refers to the enforcement of
fundamental rights against the State, while horizontal application refers to the enforcement of
fundamental rights against private individuals or entities.

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Under Article 12, state action is not limited to the actions of the government or governmental
bodies. It also includes actions of entities or authorities that perform public functions or have
a significant nexus with the State. The Supreme Court of India has interpreted the term
"State" broadly to include not only traditional government entities but also bodies that are
functionally or financially controlled by the government.

The Supreme Court has laid down tests and principles to determine whether an entity falls
within the definition of "State" under Article 12. These include the control test, the function
test, and the instrumentality test. The control test examines the extent of control exercised by
the government over the entity. The function test focuses on whether the entity performs
public functions or exercises governmental powers. The instrumentality test evaluates
whether the entity is an instrumentality or agency of the government.

The interpretation of state action under Article 12 has evolved through various landmark
judgments of the Supreme Court. The Court has adopted a liberal and purposive approach to
ensure the protection and enforcement of fundamental rights. It has expanded the scope of
state action to include private entities or individuals in certain circumstances, particularly
when they perform public functions or exercise powers akin to the State.

In summary, the concept of state action under Article 12 of the Indian Constitution
establishes the scope of fundamental rights and determines the entities against which
individuals can seek remedies for violations of their rights. It ensures that fundamental rights
are enforceable not only against the State but also against entities or authorities closely
connected to the State and performing public functions.

LIMITATION ON STATE ACTION UNDER ARTICLE 12 OF THE INDIAN

CONSTITUTION

Article 12 of the Indian Constitution defines the term "State" and broadens the scope of

fundamental rights, there are certain limitations on state action under Article 12. These

limitations help to maintain a balance between the exercise of fundamental rights and the

legitimate functions of the State. Some of the key limitations on state action are as follows:

1. Applicability to governmental actions: Article 12 primarily applies to actions of the

government, Parliament, and state legislatures. It encompasses actions taken by
various branches of the government and its instrumentalities. Private individuals or
entities generally fall outside the purview of Article 12 unless they are performing
public functions or are significantly controlled by the government.
2. Inapplicability to purely private actions: Article 12 does not extend to purely private
actions or interactions between private individuals. Fundamental rights, as guaranteed
by the Constitution, are primarily enforceable against the State and its

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instrumentalities. They do not impose direct obligations on private individuals or

entities unless they are performing public functions.
3. Non-inclusion of independent constitutional bodies: Certain independent
constitutional bodies like the Election Commission, Comptroller and Auditor General
(CAG), and National Human Rights Commission (NHRC) are not specifically
mentioned in Article 12. However, the actions of these bodies may still be subject to
the scrutiny of fundamental rights based on their functions and powers.
4. Reasonable restrictions: Fundamental rights are not absolute and can be subject to
reasonable restrictions imposed by the State in the interests of sovereignty, security,
public order, morality, and the like. The State can place reasonable restrictions on the
exercise of fundamental rights as long as they meet the constitutional requirements of
reasonableness and proportionality.
5. Exclusion of private contracts: Private contracts entered into by the State or its
instrumentalities generally do not fall within the ambit of state action under Article
12. The enforcement of contractual obligations between private parties is governed by
contract laws and is not necessarily subject to fundamental rights scrutiny unless there
is a violation of specific constitutional rights.

It is important to note that the interpretation and application of these limitations may vary

based on judicial pronouncements and specific factual circumstances. The Supreme Court of

India plays a crucial role in determining the scope and extent of state action under Article 12

and its limitations through its landmark judgments and evolving jurisprudence.

Doctrine of Ultra Vires

In the context of the Constitution of India, the doctrine of ultra vires refers to the principle

that any action or law that goes beyond the powers granted by the Constitution is void and

unenforceable. The term "ultra vires" is derived from Latin, meaning "beyond the powers."

According to this doctrine, if any legislative or executive action is inconsistent with or in

violation of the provisions of the Constitution, it is considered ultra vires and has no legal

effect. This principle acts as a check on the exercise of power by the government and ensures

that it operates within the limits prescribed by the Constitution.

The doctrine of ultra vires applies to both the central government and the state governments

in India. It allows the judiciary to strike down laws or actions that are found to be

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unconstitutional, thereby safeguarding the supremacy of the Constitution and protecting the

fundamental rights of individuals.

The Supreme Court of India has played a significant role in applying the doctrine of ultra

vires and determining the validity of legislative and executive actions. Through its power of

judicial review, the court has the authority to declare laws or actions as ultra vires and nullify

them if they are found to be inconsistent with the provisions of the Constitution.

It is important to note that the doctrine of ultra vires is a fundamental principle of

constitutional law in India and serves as a mechanism to prevent the abuse of power and

ensure the adherence to constitutional principles.

The doctrine of judicial review

The doctrine of judicial review is an essential feature of the Constitution of India, which
empowers the judiciary to review the constitutionality of legislative and executive actions. It
allows the courts to examine laws, regulations, and government decisions to ensure that they
are in conformity with the provisions of the Constitution.

Under the Indian Constitution, the power of judicial review is derived from Article 13, which
declares that any law that contravenes the fundamental rights guaranteed under Part III of the
Constitution shall be void. This provision establishes the supremacy of the Constitution and
grants the judiciary the authority to strike down laws that violate fundamental rights.

The concept of judicial review in India is primarily based on the principle of the separation of
powers. The judiciary acts as the guardian of the Constitution and has the responsibility to
interpret and uphold its provisions. Through judicial review, the courts can examine the
constitutionality of laws and actions, determine their validity, and protect the rights of
individuals.

The power of judicial review in India is not limited to fundamental rights but also extends to
the review of legislative and executive actions for their conformity to the basic structure of
the Constitution. The Supreme Court of India has held that certain fundamental features of
the Constitution, such as the supremacy of the Constitution, the rule of law, and judicial
independence, cannot be amended or abrogated by the Parliament.

The judiciary in India exercises its power of judicial review through writ jurisdiction, which
includes writs like habeas corpus, mandamus, certiorari, prohibition, and quo warranto.

Citizens can approach the higher courts, particularly the Supreme Court and the High Courts,
to challenge the constitutionality of laws and seek appropriate remedies.

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The doctrine of judicial review in India acts as a crucial mechanism for maintaining the
balance of power, protecting fundamental rights, and upholding the constitutional principles
and values enshrined in the Indian Constitution.

Doctrine of Severability
The doctrine of severability, also known as the separability doctrine, is a legal principle that
allows a court to strike down a specific provision or section of a statute as unconstitutional
while keeping the remaining parts of the legislation intact. In other words, if a particular
section of a law is found to be unconstitutional, the court can "sever" or remove that section
from the statute, preserving the constitutionality of the remaining provisions.

In India, the doctrine of severability is grounded in Article 13 of the Indian Constitution.

Article 13 declares that any law that violates or abridges the fundamental rights guaranteed
under Part III of the Constitution shall be void to the extent of such contravention. This
provision ensures that laws inconsistent with fundamental rights are rendered invalid.

When a court determines that a specific provision of a law is unconstitutional, it assesses

whether the unconstitutional part can be separated from the rest of the statute. If the court
finds that the unconstitutional portion can be severed without affecting the overall purpose
and functioning of the legislation, it will declare only that particular provision as void,
leaving the remaining provisions in force.

The doctrine of severability serves the purpose of preserving legislative intent and ensuring
that valid provisions of a law continue to operate even if certain portions are found
unconstitutional. It prevents the entire statute from being struck down when only a part of it
is problematic or infringing upon constitutional rights.

It is important to note that the applicability of the doctrine of severability may vary
depending on the specific circumstances and the nature of the unconstitutional provision.
Courts have the authority to determine whether severability is appropriate in each case, taking
into consideration factors such as legislative intent, the interconnectedness of provisions, and
the overall effect of striking down the unconstitutional part.

Overall, the doctrine of severability under Article 13 of the Indian Constitution provides a
mechanism for the courts to uphold the constitutionality of valid provisions while eliminating
those that violate fundamental rights. It helps maintain a balance between preserving the
integrity of the law and protecting the constitutional rights of individuals.

Rules regarding the Doctrine of severability

In the case of RMDC vs. The State of Bombay, the court established the following rules or
principles about the theory of severability:

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● The legislature's intent is the decisive factor in evaluating whether the legitimate
sections of a legislation may be separated from the invalid parts. If the legislature had
realized that the rest of the Act was illegal, it would have enacted the valid section.
● If the lawful and invalid provisions are so intricately intertwined that they cannot be
separated, then the invalidity of a component of the Act must result in the Act's whole
invalidity.
● On the other hand, if they are sufficiently different and separate that, after striking out
the invalid, what remains is a full code in and of itself, it will be upheld even if the
rest is no longer enforceable.
● Even though the lawful provisions are different and distinct from the invalid
provisions, if they all constitute part of a single scheme that is meant to be operational
as a whole, the invalidity of one portion will result in the failure of the entire scheme.
● The separability of a statute's valid and invalid provisions is not determined by
whether the law is enacted in the same section or in separate sections; what matters is
the substance of the matter, which must be determined by examining the act as a
whole and the setting of the relevant provisions therein.
● If the remaining section of the act cannot be enforced without making changes and
adjustments, the entire statute must be declared void, since it would otherwise
constitute judicial legislation.
● It will be reasonable to consider the history of legislation, its goal, title, and preamble
in evaluating legislative intent on the matter of separability.

Doctrine of Severability - Cases

A.K. Gopalan v. State of Madras
● The Supreme Court ruled that if the challenged Act violates the Constitution, only the
section that violates the Constitution would be unconstitutional, not the entire act, and
that every effort should be taken to salvage as much of the act as possible.
● It is severable if the invalid part's deletion does not affect the essence or structure of
the legislature's goal.

State of Bombay v. FN Balsara

● Another judgment, State of Bombay vs. FN Balsara, AIR 1951 SC 318, concluded
that the portions of the Bombay Prohibition Statute 1949 that were deemed invalid
and unconstitutional did not undermine the legality and goals of the entire act. As a
result, there was no need to declare the entire act invalid.

Minerva Mills vs union of India, 1980

● The Supreme Court of India struck down sections 4 and 55 of the 42nd Amendment
Act 1976 in the case of Minerva Mills versus Union of India, 1980. The court stated
that certain portions were beyond the jurisdiction of the legislature to change. The
other act remained in effect

MODULE 3

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Right to Equality Articles 14 to 18

Part III of the Indian Constitution enshrines the Fundamental Rights, which are a set of basic

rights guaranteed to all citizens of India.

These rights are considered fundamental because they are essential for the overall

development and well-being of individuals and ensure their dignity, freedom, and equality.

The Fundamental Rights are justiciable, meaning that individuals can directly approach the

courts to seek enforcement and protection of these rights.

They serve as a shield against arbitrary actions by the state and empower citizens to exercise

their freedoms without undue interference.

The Fundamental Rights include a range of individual rights, such as the right to equality,

right to freedom of speech and expression, right to protection against discrimination, right to

life and personal liberty, right to freedom of religion, right to education, and several others.

It's important to note that while these rights are guaranteed to all citizens, certain rights like

the right to equality and right to life are available to both citizens and non-citizens in India.

1. RIGHT TO EQUALITY (ARTICLES 14-18)

(i) Article 14 : Provides for equality before law or equal protection of law to all persons

within the territory

(ii) Article 15 : Prohibits 'the state' from discriminating against any citizen on grounds only

of religion, race, caste, sex, or place of birth.

(iii) Article 16 : Provides for equality of opportunity to all citizens in matters of public

employment.

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(iv) Article 17 : Provides for abolition of untouchability.

(v) Article 18 : Provides for abolition of titles.

ARTICLE 14

‘The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.’

● Article 14 tries to achieve ‘equality of status’ for all people.

● It aims at establishing the ‘rule of law’ in India.
● This guarantee available to both citizens and non- citizens.
● It applies to all persons, natural as well as juristic.

Equality Before the Law

It is the absence of any special privileges in favour of any person.
Equal adherence to the common law of the territory by all people.
No person is above the law

Equal Protection of Law

The equality of treatment under equal circumstances.
Applying the same laws uniformly to everyone.
The like should be treated alike sans any discrimination

Main Aspects of Article 14 :

1. Equality before the law: Article 14 ensures that every person, whether a citizen or a
non-citizen, is entitled to equality before the law. It prohibits the State from denying
this equality to anyone within the territory of India.
2. Equal protection of the laws: Along with equality before the law, Article 14 also
guarantees equal protection of the laws. This means that all individuals should be
treated equally under the laws, without any discrimination or arbitrary distinctions.
3. Equality of status and rule of law: The objective of Article 14 is to establish "equality
of status" among all individuals. It aims to eliminate any unjustifiable privileges or
discrimination based on caste, race, religion, gender, or other grounds. It also
promotes the principle of the "rule of law," which means that laws should be applied
uniformly to all individuals without any favoritism or bias.
4. Applicability to all persons: Article 14 applies to all persons, whether they are natural
persons (individuals) or juristic persons (entities such as corporations, organizations,

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etc.). It ensures that all individuals, regardless of their legal status, are treated equally
and have equal access to justice.

The right to equality under Article 14 is one of the fundamental pillars of the Indian

Constitution, emphasizing the principles of fairness, justice, and non-discrimination. It forms

the basis for challenging any unequal treatment or arbitrary actions by the State.

Reasonable classification
Classification is necessary for better public welfare.
To protect this classification from undue influence a test was formulated in the case of State
Of Bombay V. F.N. Balsasra 1951.

Test list down two essential conditions necessary to establish the reasonable classification:
1) intelligible differentia
2) rational Nexus

In Indira Nehru Gandhi VS Raj Narain 1975 Supreme Court held that rule of law
embodied in article 14 of the Constitution is the basic feature of the constitution and it cannot
be destroyed by the amendment of the constitution.

E.P. Royappa v. State of Tamil Nadu, 1974

The Supreme Court in EP Royappa vs State of Tamil Nadu 1974 laid down a new concept of

equality which is different from the traditional concept of reasonable classification. The

Supreme Court held that equality is a dynamic concept and it cannot be cabined for confined

to the traditional or doctrinaire limits. Equality is antithesis to arbitrariness.

Maneka Gandhi's Case

In Maneka Gandhi's Case, the Govt. had impounded the passport, and this was held as
"not justified".

The Supreme Court held that equality was not limited to the "judicial formula" of
reasonable classification.

It was much -wider. The Legislative Act should not only pass the two tests of
reasonable classification, but also be NOT ARBITRARY.

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Accordingly, impounding a passport without hearing was "not fair". (The petitioner
was heard &passport issued.)

In International Airport Authority Case, the court held that equality had an "activist
magnitude" and embodied guarantee against arbitrariness.

Air India v Nargesh Meerza, [1978] 2 SCR 621

In the case of Air India v. Nargesh Meerza, the regulation of the Indian Airlines provided that

an Air Hostess had to retire from their services on attaining the age of 35 or if they married

within 4 years of their service or on their first pregnancy whichever occurred earlier.

The court held that terminating the services of an air hostess on the grounds of pregnancy

amounted to discrimination as it was an unreasonable ground for termination.

The regulations provided that after 4 years of service the air hostess could marry therefore the

grounds of pregnancy was not reasonable.

Thus, it was held that this regulation flagrantly violated Article 14 and such termination

would not be valid.

Article 15
The Article declares prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.

Article 15 (1): The state shall not discriminate against any citizen on the above grounds.

Article 15 (2): No citizen shall not discriminate or cause restriction, on the above five
grounds, to any citizen with regard to:

● access to parks, hotels, shops, public restaurants and places of public entertainment
● the use of tanks, bathing ghats, wells, roads and places of public resort dedicated to
the use of the general public

That means, Article 15 (1) prohibits the state, while Article 15(2) prohibits both state and the
citizens to discriminate against any person on the above mentioned five grounds. However,
the state may take special care towards women, children and socially and educationally
backward classes.

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Article 15 (3): It states that the State may make any special provision for women and
children.

Article 15 (4): It states that the State can make any special provision for the advancement of
any socially and educationally backward classes of citizens including Scheduled Castes and
the Scheduled Tribes.

Discrimination means unfavourable distinction or negative discrimination, which is

prohibited. From Article 15 (3) and (4), we can understand that the constitution allowed
favourable distinction or positive discrimination in favour of women and children.

For example, the Uniongovernment enacted many acts, say, the Maternity Benefit
(Amendment) Act 2017 and Child labour (Prohibition & Regulation) Act for the welfare and
development of women and children.

Case laws on Article 14

Champakam Dorai Rajan v. State of Madras, 1951
In the case, the Madras state reserved some seats for the backward classes of the society but
the Supreme court declares it as a violation of article 15 of the constitution.

1st Constitutional Amendment Act

The amendment says that state can provide any reservation for the educationally and socially
backward sections and hence it would not be considered as the violation of the article.

However, a question arises as to how to check the backwardness.

M.R. Balaji v. State of Mysore, 1962

In this case, the state provided reservations, which went up to 68%, which was declared to be
unconstitutional.

The court made the following declarations

● Backwardness must be both social and educational
● Caste cannot be sole determinant to check backwardness, poverty and occupational
● For the first time, the court defined 50% ceiling limit for reservations.
● Ruled out the further classification of backward classes into backward and more
backward classes

Indira Sawhney v. Union of India

The court, in this case, reversed the M.R. Balaji case judgement as under:

● Caste can be the sole determinant in judging backwardness

● Validated further classification of backward classes into backward and more backward
classes

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93rd Amendment
This amendment inserted Article 15 (5), which says that the State can make special
provisions relating to the admission of socially and educationally backward classes to
educational institutions including private educational institutions, whether aided or unaided.

T.M.Pai Foundation v. State of Karnataka, 2003

The court held that the state has discretionary powers in relation to Article 15 (5).

ARTICLE -16

Article 16 deals equality of opportunity in matters of public employment. It embodies the

particular application of the general rule of equality laid down in Article 14 with reference to

employment for appointment under the state.

Article 16 (1) provides for equality of opportunity for all citizens in matter of employment

for appointment to any post under the state.

Article 16 (2) for the states that citizens shall not be discriminated in respect to any

employment under the state on the ground of religion race cast sex decent place of work

residence or any of them.

Article 16 (3) enables the state to make laws with respect to any class of employment for

appointment under state or Union Territory or local authorities, prescribing requirements as to

residence within the state or union territory. (residence as a ground of reservation)

Article 16 (4) enables the state to make provisions for reservation of post in government jobs

in favor of any backward classes of citizens which in the opinion of the states are not

adequately represented in the service of the state. (Reservation for backward classes).

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Article 16 (4-A) was added by the 77th constitutional amendment 1995. it empowers the state

to make any provisions for reservation in matters of promotions for SCs and STs. 78 The

85thConstitutional Amendment 2001 the provision for reservation in promotion with

Consequential seniority was added.

Article 16 (4-B) was added by the 81st constitutional amendment act 2000. it sought to end

the 50% reservation limit for SC ST and other backward classes. it enables the state to fill

backlog vacancies of previous years without considering the 50% ceiling limit

article 16 (5) states that law which provides that incumbent of the office in connection with

the affairs of any religious domination and institution will be formed from a particular

religion or denomination shall not be affected by clause (1) and (2) of article 16.

Article 16 (6) was added by 103 rd Constitutional Amendment, 2019. it enables the state to

make any provisions for reservation of appointment or post in favour of any economically

weaker sections of citizens other than those mentioned in clause 4 in addition to the existing

reservation and subject to the maximum of 10% of the post in each category.

Clauses (3),(4),(4-A) for 5 of the article 16 are exceptions to the general rule of equality in

matters of employment or appointment

CASES LAWS ON ARTICLE 16

Balbir Kaur Vs. Steel Authority Of India Ltd. (AIR 2000 SC 1596)

In this case, the apex court held that appointment on compassionate grounds of a son,

daughter, or widow to assist the family to relieve economic distress because of the sudden

demise in hardness of a govt. The servant has been held to be valid.

Shiv Charan Singh Vs. State Of Mysore (AIR-1965)

Provisions for compulsory retirement of govt servants in public interests do not infringe

Articles 14 and 16.

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Randhir Singh Vs. Union Of India (AIR-1982)

It has been held that equal pay for equal work although not expressly declared to be a

Fundamental right is clearly constitutional under Article-14, 16, and 39 (c) of the constitution

and can be enforced by the courts.

Devdason Vs. Union Of India (AIR-1964)

In this case, the constitutional validity of the “carry forward rule” in services was involved.

The Supreme Court by a majority of 4 to 1 struck down the carry forward rule as

unconstitutional on the ground that the power vested in govt. under Art.16(4) could not be

exercised so as to deny reasonable equality of opportunity in matters of public employment

for members of classes other than backward.

Akhil Bhartiya Sashit Karamchari Vs. Union Of India

In this case, while overruling the T. Devadasan case, S.C held that the carry forward rule is

valid. Court held that the ceiling limit of 50% is just a guideline, and if it’s required the

ceiling limit of 50% can be exceeded as well. In this case, the reservation reached up to 64%

and it was held to be valid.

Indira Sawhney Vs. Union Of India (AIR 1993 SC 477)

The case of Indira Sawhney v. Union of India, commonly known as the Mandal Commission

case, is a landmark judgment of the Supreme Court of India delivered in 1992. The case

primarily dealt with the constitutional validity of the reservations in government jobs and

educational institutions for Other Backward Classes (OBCs) based on the recommendations

of the Mandal Commission.

In this case, several petitions were filed challenging the implementation of reservations for

OBCs in public employment and educational institutions as provided by the Mandal

Commission report. The Supreme Court examined the constitutional validity of the

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reservations and laid down important principles. Here are some key points from the

judgment:

1. Ceiling of 50%: The Supreme Court held that reservations should not exceed the limit
of 50% in any given year. It stated that the limit was a rule of thumb and should not be
ordinarily exceeded, except in extraordinary situations and under compelling reasons.
2. Social and Educational Backwardness: The Court recognized the concept of social
and educational backwardness as the basis for providing reservations. It held that
backwardness should be determined not only by caste but also by considering other
relevant factors such as poverty, occupation, lack of access to education, etc.
3. Inclusion of Creamy Layer: The Court upheld the exclusion of the creamy layer
within the OBC category from reservations. It held that the benefits of reservations
should reach the truly disadvantaged sections of society and not be enjoyed by the
affluent or advanced sections within the OBCs.
4. Quantifiable Data: The Court emphasized the importance of collecting and
considering quantifiable data regarding backwardness, inadequacy of representation,
and the overall impact of reservations. It stated that the determination of
backwardness should be based on objective factors and not solely on the subjective
assessment of the authorities.
5. Review of Reservations: The Court directed the periodic review of reservations by the
state governments to assess the continuing need for reservations and their impact on
society. It emphasized that reservations should not be made permanent and should be
revisited from time to time.

The judgment in the Indira Sawhney case provided important guidelines regarding the

implementation of reservations for OBCs in India. It recognized the constitutional validity of

reservations as a means to address social and educational backwardness but also laid down

certain limitations and principles to ensure that the benefits reach the deserving sections of

society.

E.P. Royappa Vs. State Of Tamil Nadu 1974 S.C

In this case, justice Bhagwati has held that the concept of equality is not limited only to the
concept of reasonable classification. A reasonable classification is just one of the tools to
attain equality. The concept of fairness, justice, equity, reasonableness, and non-arbitrariness
is certain concepts that are the real faces of the concept of equality. Thus, if under any law or
executive action reasonableness or justice is denied or an arbitrary action is taken it is per-se
a denial of equality.

Ajay Hasia Vs. Khalid Mushis 1981

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S.C, justice Bhagwati held that arbitrariness is antithetical to equality. Equality and
arbitrariness cannot go hand in hand. A reasonable classification is just one face of equality
and we have to check the purpose of law and then reasonable classification.

ARTICLE 17: ABOLITION OF UNTOUCHABILITY IN INDIA

"Untouchability is abolished and its practice in any form is forbidden. The enforcement of
any disability arising out of untouchability shall be an offence punishable in accordance with
law."

Article 17 aims to eliminate the social evil of untouchability, which is a practice rooted in the
caste system in India. It declares untouchability as illegal and prohibits its practice in any
form. The article further states that enforcing any disability arising out of untouchability is an
offense punishable by law.

The Constitution of India recognizes the inherent dignity and equality of all individuals, and
Article 17 reinforces this principle by condemning and prohibiting the discriminatory practice
of untouchability.

The article reflects the commitment of the Indian state to promote social justice and equality,
and it provides a legal framework to combat the age-old practice of untouchability and its
associated discrimination.

People’s Union for Democratic Rights v. Union of India, AIR 1982

The Supreme Court ruled that the state must intervene straight away if any private individual

violates the rights guaranteed by Article 17 of the Constitution. This is done to make sure that

the underprivileged SC and ST group of untouchables won’t have to go to court to enforce

their basic rights.

State M.P. And Another v. Ram Krishna Balothia and Another

In this case, Apex Court held that Section 18 of the Scheduled Castes and Scheduled Tribes
Act which makes offenses under this Act non-bailable offenses makes the Anticipatory bail
provision not applicable to this Act.

Suhasini Baban Kate (Sou.) v. the State of Maharashtra

In this case, the complainant was thirty years old woman. Her credit has had no bad
antecedents. She was a mother of three children the youngest one was one year old. The

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alleged occurrence occurred because of impulsive action and all of a sudden the alleged
utterances were probably from the momentary rising in temper. She was detained for three
years. As per the severity of the crime, it was considered unfair to bring her off to jail so she
was released under the probation that has been served in the interests of justice, even if the
mandatory term was of one month.

People’s Union for Democratic Rights v. Union of India, AIR 1982

In this Court, it was said that if the rights provided under Article 17 be violated by any
private individual then it is the responsibility of the State to take immediate action in this
regard. It should be ensured that poor SC and ST people should not come to Court just for
enforcing fundamental rights.

Safai Karamchari Andolan and Ors. v. Union of India and Ors.

In this case, a writ was filed under Article 32 by the Petitioners praying for the enforcement
of the Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 by the
Central Government, State Governments, and Union Territories. In this case, there were
various directions issued by the Court which are:

● Rehabilitation of all the manual scavengers.

● Provision of giving scholarships to the children of scavengers
● Providing one-time cash assistance to scavengers
● One member of each family should be provided skills training to earn a livelihood
● Other legal assistance needed by them
● Provision for compensation for every sewer death

Article 18 of the Indian Constitution

Article 18 consists of four clauses that deal with the prohibition of titles and awards.

Article 18 (1)prohibits the state from conferring titles on individuals, whether citizens or

non-citizens, except in cases related to military and academic distinctions. This means that

the government cannot grant titles like "Sir," "Lord," or any hereditary titles. However, titles

awarded by universities or academic institutions are allowed.

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Article 18 (2) prohibits Indian citizens from accepting titles from foreign states without the

permission of the President. This provision aims to ensure that Indian citizens do not hold

titles from foreign nations that may create conflicts of interest or loyalty.

Article 18 (3)applies to individuals who are not Indian citizens but hold an office of profit or

trust under the Indian government. It prohibits them from accepting titles from foreign states

without the President's assent. This clause also seeks to maintain loyalty and prevent conflicts

of interest.

Article 18 (4) prohibits any individual, whether a citizen or non-citizen, holding an office of

profit or trust under the Indian government, from accepting gifts, emoluments, or offices from

foreign states without the President's assent. This provision ensures that individuals in such

positions do not compromise the sovereignty or integrity of the Indian state.

It's worth noting that the modern awards like Bharat Ratna, Padma Vibhushan, Padma

Bhushan, and Padma Shri, established in 1954, are considered permissible under Article 18.

These awards are viewed as acknowledgments of exceptional achievements in various fields

and are not considered titles in the traditional sense.

Article 18 does not protect any fundamental rights but instead sets limits on the executive and

legislative powers concerning the conferring of titles and acceptance of foreign awards.

What is meant by the term “titles”

A ‘title’ is anything that is attached to one’s identity as a prefix or suffix, such as Sir, Nawab,
Maharaja, and so on. Titles and titular achievements must not be granted in a democratic
country. It will be counterproductive to the development of social justice.

Titles refer to any inherited designations (such as Rai Bahadur, Khan Bahadur, Sawai, Rai
Sahab, Zamindar, Taluqdar, and so on) used by people during the colonial period, and the
objective of this Article 18 in our Constitution is to maintain fairness among everyone.

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It excludes military and scholarly professionals, as well as civilian honours such as Padma
Shri, Padma Bhushan, Padma Vibhushan, and Bharat Ratna, with the limitation that no one
will ever use them as a suffix or prefix to their names.

Case Laws on Article 18 :

In Balaji Raghavan vs UOI (1996) 1 SCC 361., the Supreme Court upheld the validity of
civilian honors but criticized the government for not exercising restraint in awarding these. It
held that the national awards were not meant to be used as titles and those who have done so
should forfeit the award.

Indira Jaising v. Supreme court of India AIR 2017 SC 5017 In this case, a petition was filed
regarding use of the designation like senior advocate before the name of an advocate. It was
held by the Supreme Court that it is not the title it is merely a distinction and thus it is not
violative of Article 18 of the Indian constitution.

Article 19
Article 19 of the Indian Constitution guarantees certain fundamental rights related to freedom

of speech and expression, freedom of assembly, freedom to form associations or unions,

freedom of movement, freedom to reside and settle in any part of India, and the right to

practice any profession, occupation, trade, or business. Let's take a closer look at each clause

of Article 19:

1. Article 19(1)(a): Freedom of Speech and Expression This clause guarantees the right
to freedom of speech and expression, which includes the freedom to express one's
opinions, thoughts, beliefs, and ideas through various means such as speech, writing,
printing, painting, etc. However, this right is subject to reasonable restrictions
imposed in the interests of sovereignty and integrity of India, security of the state,
friendly relations with foreign states, public order, decency, or morality, or in relation
to contempt of court, defamation, or incitement to an offense.
2. Article 19(1)(b): Freedom to Assemble Peacefully and Without Arms This clause
ensures the right of citizens to peacefully assemble and hold meetings or processions.
However, similar to freedom of speech, this right is subject to reasonable restrictions
in the interest of public order.

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3. Article 19(1)(c): Freedom to Form Associations or Unions This clause grants

individuals the right to form associations, unions, or cooperative societies. Citizens
have the freedom to come together for a common purpose and collectively pursue
their interests. However, this right can be restricted in the interest of public order,
morality, or the sovereignty and integrity of India.
4. Article 19(1)(d): Freedom of Movement Throughout the Territory of India This clause
guarantees the right of citizens to move freely throughout the country, reside in any
part of India, and settle in any place of their choice. However, reasonable restrictions
can be imposed on this right in the interest of the general public or for the protection
of scheduled tribes.
5. Article 19(1)(e): Freedom to Reside and Settle This clause ensures the right of
citizens to reside and settle in any part of India. Similar to freedom of movement, this
right is subject to reasonable restrictions in the interest of the general public or for the
protection of scheduled tribes.
6. Article 19(1)(g): Freedom to Practice Any Profession, Occupation, Trade, or Business
This clause guarantees the right to choose and pursue any profession, occupation,
trade, or business of one's choice. However, this right is subject to reasonable
restrictions imposed in the interest of the general public or for the protection of certain
professional or technical qualifications.

It's important to note that while these rights are fundamental, reasonable restrictions can be

imposed on them by the state in the interest of various specified factors mentioned above.

The scope and extent of these restrictions have been interpreted and clarified by the judiciary

through various landmark judgments over the years.

Ramesh Thaper v. State of Madras

In the case of Romesh Thappar v. State of Madras (1950), the Supreme Court of India indeed

held that the freedom of speech and expression, as guaranteed under Article 19(1)(a) of the

Indian Constitution, encompasses the right to express one's opinions and ideas freely through

various forms such as word of mouth, writing, printing, pictures, or any other

communicational medium or visible representation.

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The Court drew inspiration from the U.S. Supreme Court's decision in Lovell v. City of

Griffin (1937), which emphasized that freedom of speech and expression includes the right to

communicate and disseminate ideas and information through different mediums. The Indian

Supreme Court recognized that this freedom is crucial for the proper functioning of the

democratic process and the exchange of diverse viewpoints.

The judgment in Romesh Thappar v. State of Madras played a pivotal role in establishing the

broad scope of the freedom of speech and expression in India and set the foundation for

future cases that further elaborated on this fundamental right.

Sakal Papers (P) Ltd. v. Union of India

In the case of Sakal Papers (P) Ltd. v. Union of India, the Supreme Court recognized the right

of a newspaper not only to publish its content but also to determine the volume of circulation

in order to effectively exercise the freedom of speech and expression guaranteed under

Article 19(1)(a) of the Indian Constitution.

The case involved the Price and Page Control Order of 1960, which was issued under the

provisions of the Price and Page Act of 1956. This order allowed the Central Government to

regulate the rates and distribution of advertising space in newspapers, including specifying

the maximum number of pages that a newspaper could print at a particular price. By limiting

the number of pages, the distribution rate of the newspaper would be affected, potentially

restricting the dissemination of news, ideas, and knowledge.

The Supreme Court held that the imposition of such restrictions on the number of pages of a

newspaper infringed upon the freedom of the press. It stated that the freedom of the press

includes not only the right to publish content but also the right to determine the manner of its

circulation and the volume of circulation required to effectively convey the ideas and

opinions of the newspaper.

Therefore, the Court found that the Price and Page Control Order, by limiting the space for

publication and potentially reducing circulation, violated the fundamental right to freedom of

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speech and expression. The judgment reaffirmed the importance of a free and vibrant press in

a democratic society and highlighted the need to protect the autonomy of newspapers in

determining their content and circulation.

Article 20
Article 20: Protection against the conviction of offenses
Article 20 of the Constitution of India is a fundamental right which safeguards the rights of

an accused/convict. It lays down three concepts:

1. Article 20(1): Ex-post-facto law

2. Article 20(2): Double Jeopardy

3. Article 20(3): Right against self-incrimination

Article 20(1): Ex-post-facto law

Every law has two natures

● Prospective and

● Retrospective

A law is prospective in nature if legislation is made in the purview of future acts. A

retrospective law governs the past acts of the convicts. It grants a prior transaction different

legal consequences than those that applied to it at the time it occurred or transpired.

Ex Post Facto laws are passed after a crime has been committed, making what was previously

legal now criminal. Speaking, it's a law that makes such previously legal behaviour illegal.

For instance, suppose "A" stole on November 17th, which was not illegal on that specific day.

The legislature passed a measure making theft an offense on November 20th. Ex Post Facto

laws held A accountable for whatever punishment the legislature had established; therefore,

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A was required to take the same punishment under the new laws even though he was unaware

of the consequences of his actions at the time he committed them.

Article 20(1) provides: No person shall be convicted of any offense except for violation of a

law in force at the time of the commission of the act charged as an offense, 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 offense.

● There are two aspects in Article 20 (1).

● According to the first aspect, no one may be found guilty of a crime unless they

committed an illegal or forbidden act when the relevant law was passed. Any law that

is in effect when the act is performed must be implemented, and violators must be

punished and brought to justice for their actions. This justifies using the phrase "law

in force" in Article 20 (1).

● A law passed after an act has been committed indicates that an act that was lawful

before the legislation's enactment may now be considered unlawful. However, Article

20 (1) will protect the act's interests and prevent the perpetrator from being held

accountable for the law's violations.

Article 21 of Constitution of India: Protection of Life and Personal Liberty

Article 21 states that “No person shall be deprived of his life or personal liberty except
according to a procedure established by law.” Thus, article 21 secures two rights:
​ Right to life, and
​ 2) Right to personal liberty.

The Government of India Act, 1935 provided for the establishment of Article 21 of the Indian
Constitution. It declares that no person shall be deprived of his life or personal liberty except
according to the procedure established by law.

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Article 21 comes under the Part III of the Indian constitution and is one of the fundamental
rights guaranteed to all citizens of India. In this article, we will discuss various rights and
liberties that are a part of Article 21.
Article 21 of Indian constitution

​ Article 21 is a fundamental right and is included in Part-III of Indian Constitution.

​ This right is available to all citizens as well as non-citizens alike.
​
​ Supreme Court has described this right as the “heart of fundamental rights”
​
​ According to Justice Bhagwati, Article 21 “embodies a constitutional value of
supreme importance in a democratic society.”
​
​ Article 21 secures two rights: The right to life and the Right to personal liberty.
​
​ Article 21 cannot be suspended during an emergency.

Meaning and Scope of Article 21 of Indian Constitution

The right to life in Article 21 of Indian constitution does not mean animal existence or the
mere act of breathing. It guarantees the right to a dignified life. Some of the rights that are
currently included in the ambit of Article 21 includes (mentioned in Menaka Case):
​ Right to live with human dignity.
​ Right to the decent environment including pollution-free water and air and protection
​ against hazardous industries.
​ Right to livelihood.
​ Right to privacy.
​ Right to shelter.
​ Right to health.
​ Right to free education up to 14 years of age.
​ Right to free legal aid.
​ Right against solitary confinement.
​ Right to a speedy trial.
​ Right against handcuffing
​ Right against inhuman treatment.
​ Right against delayed execution.
​ Right to travel abroad.
​ Right against bonded labor.
​ Right against custodial harassment.
​ Right to emergency medical aid.
​ Right to timely medical treatment in a government hospital.
​ Right not to be driven out of a state.
​ Right to a fair trial.
​ Right of prisoner to have necessities of life.

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​ Right of women to be treated with decency and dignity

​ Right against public hanging.
​ Right to hearing.
​ Right to information.
​ Right to reputation.
​ Right of appeal from a judgment of conviction
​ Right to social security and protection of the family
​ Right to social and economic justice and empowerment
​ Right against bar fetters
​ Right to appropriate life insurance policy
​ Right to sleep
​ Right to freedom from noise pollution
​ Right to electricity

History Judgements Related To Article 21 of Indian Constitution

Now, let us look at some of the historic judgments that widened the scope of Article 21:

1. Kharak Singh vs. the State of UP and Others: Right to privacy was included in
Article 21 by this case.
2. Sunil Batra vs. Delhi Administration: In this case, Supreme Court deemed the fatal
handcuffs for the convicted persons as unconstitutional as it suggests inhuman
behavior towards the prisoner. The court reiterated the clause “protection to the
convicted and accused person” under Article 21.
3. Mohini Jain vs. the State of Karnataka, 1992 SC: The SC held that the Right to life
also includes the Right to education.
4. Unni Krishnan vs. the State of Andhra Pradesh, 1993 SC: In this case, SC fixed
the age that right to education is a fundamental right to the children for the age of
6-14 years.
5. Subhash Kumar vs. the State of Bihar: SC included the right to get pollution-free
air in the ambit of the right to life.
6. Lachma Devi vs. Attorney General of India: In this case, SC made the execution of
a death sentence at a public place unconstitutional.
Cases laws on Article 21 of the Indian Constitution

1. A.K Gopalan vs. the State of Madras, 1951: The Supreme court has taken a narrow
interpretation of Article 21 in this case. It held that the protection under Article 21 is
available only against arbitrary executive action and not from arbitrary legislative
action. This means that the state can deprive a person of the rights available in Article
21 based on a law.
2. Maneka Gandhi vs. UOI, 1978: In this case, the SC overruled its judgment of the
Gopalan Case by taking a wider interpretation of Article 21. It ruled that the right to
life and personal liberty of a person can be deprived by law on the condition that the

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procedure prescribed by that law is reasonable, fair, and just. Further, it clarified that
the right to life does not merely mean animal existence. It held that all those aspects
of life which go to make a man’s life meaningful, complete, and worth living will be
included in this.
Article 21A
The State shall provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law, determine. [86th Constitutional
Amendment 2002]

Reasons behind RTE Act 2009

The reasons behind the enactment of the Right to Education (RTE) Act in 2009 can be traced
back to several key developments and initiatives:

1. Constitutional provisions: The Constitution of India, since its adoption in 1950, had
provided for the importance of education under Article 45 as one of the Directive
Principles of State Policy.

This laid the foundation for emphasizing the need for universal education.

2. Kothari Commission: In 1968, the first National Commission on Education, headed

by Dr. D.S. Kothari, was established. The commission submitted its reports, which
recommended various changes and reforms in the education system, including the
promotion of equal access to quality education.

3. Constitutional amendments: Over the years, several constitutional amendments were

made to strengthen the right to education. In 1976, education was made a concurrent
subject, shared by the central and state governments. In 1997, a constitutional
amendment was introduced to make education a fundamental right.
4. Judicial rulings: In 1993, the Supreme Court, in the cases of Mohini Jain and
Unnikrishnan vs. State of Andhra Pradesh, ruled that the right to education is a
fundamental right derived from the right to life guaranteed under Article 21 of the
Indian Constitution.

This reinforced the significance of education as a fundamental right.

5. 86th Constitutional Amendment: In 2002, the 86th Constitutional Amendment Act

was passed, which inserted Article 21A into the Indian Constitution.

This article provided for the right to free and compulsory education for children
between the ages of 6 and 14.

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It also brought changes to Article 45, which originally dealt with free and compulsory
education for children.

6. CABE committee report: In 2005, a committee was constituted under the Central
Advisory Board of Education (CABE) to draft the Right to Education Bill. The
committee submitted its report, which formed the basis for the formulation of the RTE
Act.

Based on these developments, the Right to Education Act was finally enacted in 2009.

The Act aimed to provide free and compulsory education to all children in the age group of 6
to 14 years and ensure equal access to quality education.

It laid down various provisions and safeguards to promote inclusive and equitable education
for all children in India.
CASE LAWS

Mohini Jain vs State of Karnataka.

In the case of Mohini Jain v. State of Karnataka, Miss Mohini Jain, a student from Meerut,
applied for admission to the MBBS course in a private medical college in Karnataka for the
academic session starting in 1991.

The college management asked her to pay a tuition fee of Rs 60,000 for the first year and
provide a bank guarantee for the remaining years' fees.

However, Miss Jain's father informed the management that the requested amount was beyond
their means.

As a result, the college management denied Miss Jain's admission to the medical college.

Miss Jain approached the court and alleged that the management had also demanded an
additional amount of Rs 4,50,000, which the management denied.

The case revolved around the issue of the college management's demand for a high fee and
whether it was a violation of the right to education.

Miss Jain argued that the management's demand for an exorbitant amount of money deprived
her of the opportunity to pursue her education and violated her fundamental rights.

The Supreme Court, in its judgment, held that education is a fundamental right that flows
from the right to life guaranteed under Article 21 of the Indian Constitution.

The court emphasized that access to education should not be denied or restricted based on the
financial capacity of the individual or their family.

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It stated that the state and private educational institutions have a duty to provide equal
opportunities for education to all, regardless of their economic status.

In this particular case, the court ruled in favor of Miss Mohini Jain, declaring that the
college's demand for an excessive fee and the denial of admission on that basis was a
violation of her right to education.

The court ordered the college to admit Miss Jain without any further financial burden or
conditions.

This case played a significant role in establishing the right to education as a fundamental
right and setting a precedent for ensuring access to education for all individuals, irrespective
of their economic background.

Unni Krishnan, J.P & Orsvs State of Andhra Pradesh

In the case of Unni Krishnan, J.P. & Ors v. State of Andhra Pradesh, petitions were filed by
private educational institutions challenging state laws enacted to regulate the capitation fees
charged by these institutions. The laws in question were implemented in the states of Tamil
Nadu, Karnataka, Andhra Pradesh, and Maharashtra.

The state laws aimed to address the issue of exorbitant capitation fees charged by private
educational institutions for admission to professional courses. The laws defined capitation
fees as any additional fees collected by the management of these institutions over and above
the prescribed fees. The objective of the laws was to curb the practice of charging excessive
fees, which often led to the commercialization of education and restricted access for
deserving students from economically weaker backgrounds.

The private educational institutions challenged these state laws on the grounds that they
violated their right to administer and manage their institutions autonomously, as guaranteed
by Article 19(1)(g) of the Indian Constitution, which protects the right to practice any
profession or occupation. The institutions argued that the laws imposed unreasonable
restrictions on their ability to determine their own fee structure.

The Supreme Court, in its judgment, upheld the validity of the state laws. The court
recognized that education is a noble and charitable activity and emphasized that it should not
be treated as a commercial enterprise. The court held that the right to education was a
fundamental right that flows from the right to life under Article 21 of the Indian Constitution.
It stated that the state had a duty to ensure that educational institutions did not engage in
unfair practices and that admissions were based on merit rather than financial capacity.

The court concluded that the state laws aimed at regulating capitation fees were justified as
they sought to prevent the exploitation of students and ensure equal opportunities for

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education. It held that the right to administer educational institutions did not include the right
to charge exorbitant fees that would impede access to education.

This landmark judgment played a crucial role in curbing the practice of charging capitation
fees by private educational institutions and ensuring that admissions were based on merit. It
reaffirmed the state's role in regulating educational institutions to promote the accessibility
and affordability of education.

Article 22: Protection against arrest and detention in certain cases

22(1): No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and
to be defended by, a legal practitioner of his choice.

22(2): 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.

22(3): Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive
detention.
22(4): No law providing for preventive detention shall authorise the detention of a person for
a longer period than three months unless—[44th Constitutional Amendment 1978]
(4)(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:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond
the maximum period prescribed by any law made by Parliament under sub-clause (b) of
clause (7); or

(4)(b): such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).

22(5): 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.
22(6): Nothing in clause (5) shall require the authority making any such order as is referred to
in that clause to disclose facts which such authority considers to be against the public interest
to disclose.

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22(7): Parliament may by law prescribe—

22(7)(a): the circumstances under which, and the class or classes of cases in which, a person
may be detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in accordance with
the provisions of sub-clause (a) of clause (4);
22(7)(b): the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and
22(7)(c): the procedure to be followed by an Advisory Board in an inquiry under sub-clause
(a) of clause (4).

Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar

Facts of the Case: The writ of habeas corpus was filed before the Supreme Court regarding
the release of 17 under-trial convicts which were disclosed in the Bihar newspaper. The
government of Bihar then asked to reveal the year-by-year disintegration of under-trial
inmates.

ISSUE:

1. Whether right to quick trial shall be included in Article 21 of the constitution?

2. Whether it is permissible to require the provision of free legal representation?

Judgment: The apex Court rules out that all the 17 under-trial detainees have to be released
as their detention is illegal and a violation of Article 21 of the constitution because they had
already served more time in jail than the maximum period for which they should have been
charged.

The State Government should appoint a lawyer at its own expense to file a bail application on
behalf of under-trial detainees accused of crimes that are eligible for bail when they are
brought before the Magistrates on subsequent remand dates. This will limit remand and
enable a speedy trial to start.

A.K. GOPALAN V. STATE of MADRAS

Facts of the Case: The petitioner was detained under the Preventive Detention Law; therefore
he filed a writ of Habeas Corpus u/a 32 of the Constitution before the Supreme Court of
India.

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Issues:

1. Whether the detention of the petitioner is violates article 22 of the constitution?

2. Whether the sec 7, and 8,9,10 of the act violate articles 13, 19, and 21 of the
constitution?

JUDGEMENT:

Firstly, the Apex court declared that his detention does not violate article 22 because the
arrest is clearly done with the “procedure established by law”.

Secondly, SC further opined that the relevant sections 7, 8, 9, and 10 are not invalid. Hence,
SC declared that the said detention is legal.

JOGENDER KUMAR V. STATE OF UTTAR PRADESH

Facts of the Case: The petitioner was called on by the SSP for some enquiry in the Police
Station. The petitioner along with his brother goes to the police station after enquiry police
kept the petitioner in his custody. Subsequently, the petitioner’s brother along with his
relatives goes to the police to enquire about the well-being of his brother. They discovered
that the petitioner had been transported to an unnamed location.

The police officers claimed that because the advocate was collaborating with them in a
kidnapping case, he had been released and there had been no justification for keeping him in
custody.

ISSUES: When and on what grounds can an arrest be made?

JUDGEMENT: The Hon’ble Apex Court had extensive discussions over a number of laws
and reports. It was said that no arrests could be made because doing so would be legal for the
police officer. Unless the crime is a serious offence, the officer making the arrest must have a
good reason for believing that the arrest is necessary and justifiable.

Additionally, it was requested that the departmental guidelines be updated to state that a
police officer making an arrest must also note the circumstances of the arrest in the case
diary.

Right against exploitation (Article 23 & 24 of the Indian Constitution)

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The Right Against Exploitation (Article 23 & 24 of the Indian Constitution) is a provision of

the Indian Constitution that safeguards each person's dignity. Additionally, it prohibits the

following forms of coercion or incentive used to exploit or misuse services:

● It makes buying and selling human beings as a commodity illegal, known as human

trafficking. Additionally, it prohibits the employment of women or girls for immoral

purposes.

● The use of forced labour of any kind, including slavery and bonded work, is

forbidden. A practice known as "Begar" calls for a worker to offer his master a free or

inexpensive service.

● The state has been given the authority to require such people to perform the required

service in order to halt the practice. It is against the law for the government to

discriminate based on religion, colour, race or other factors

● Employing minors under 14 in mines, factories, or other hazardous jobs is prohibited.

Many people in our nation are deprived and underprivileged. They could also be the target of

abuse from others. Typically, exploitation takes the following shapes:

● Forced labour that goes unpaid, such as begging

● Enslavement and human trafficking for the purpose of prostitution and devadasi-like

behaviour

Historically, landlords, moneylenders, and affluent individuals have all used forced labour. In

reality, there are still several locations where bonded labour is practised, such as brick kiln

employment. The Indian constitution outlawed both activities in part III, and bonded labour is

now a criminal offence.

Provisions of right against exploitation article 23-24

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Our constitution has specific safeguards to prevent the exploitation of weaker groups of

society in order to protect against discrimination and foster personal liberty. The clause is

written in Article 23.

Article 23 - Prohibits forced labour, beggar labour, and other similar kinds of human

trafficking. Any infringement of this clause will result in legal sanctions.

Additionally, Article 24 includes a particular clause designed to stop the exploitation of

children.

Article 24 states that no kid under the age of fourteen may be employed in a mine, factory, or

in any other dangerous occupation.

Article 23 of the Indian Constitution

The prohibition on forced labour and other related forms of human trafficking is found in

Clause 1 of Article 23. Additionally, it declares that any violation of this clause would result

in legal consequences. It expressly forbids:

Human trafficking is used to describe the buying and selling of people, typically for the

purposes of forced labour, forced prostitution, or sexual enslavement.

Begar: This is a type of forced labour, which is when someone is made to work for free.

More forms of forced labour: This includes additional forms of forced labour where the

employee/worker is paid less than the minimum wage. This includes forced labour, where

any person is required to work in exchange for meagre pay in order to pay off a debt, forced

labour in jail, when prisoners who have been sentenced to hard labour are required to work

for nothing, etc.

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As a result, Article 23 has a very broad reach because it ensures that no one is coerced into

doing anything. For example, it prohibits forcing a landless, underpaid labourer to do

gratuitous services. A woman or kid cannot be forced into prostitution, either.

Exceptions under Article 23 (2)

For a public good, such as national security, eliminating illiteracy, or ensuring the efficient

operation of public utilities including water, electricity, postage, train, and air services, the

state may impose mandatory services.

The state is not allowed to discriminate on the basis of religion, caste, race or class, or any

combination of these, while enforcing any such requirement for public reasons. Given that

sex is not a prohibited basis for discrimination, women may be excluded from being required

to serve in the public sector. The word "class" is only used in a financial context.

However, India has never before in its history passed a similar law at the national level. A

legislation that stated that an able-bodied individual could be called in to help with blood

impediments existed in Nagaland for a brief period of time.

People’s Union for Democratic Rights v. Union of India (1983)

The SC interpreted the scope of Article 23. The petitioner carefully examined the working

circumstances of various individuals employed by Asiad projects. It was found that the

workers were highly exploited, received earnings below the minimum rate, and endured an

awful working environment. It was a PIL.

J. PN Bhagwati noted that Article 23 has a broad and unrestricted scope. Not only is "begar"

prohibited, but all forms of forced labour, regardless of their existence, are also targeted by

this article. Forced labour of any kind is never permitted.

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No one may be made to do labour or services against their will, even if it is specified in a

service agreement.

Under Article 23, the word "force" has a fairly broad definition. It identifies economic

situations that force a person to labour against his will for less than minimum wage and

physical or legal pressure.

Bandhua Mukti Morcha v. Union Of India (1984)

An organisation called Bandhua Mukti Morcha campaigns against India's pervasive system of

bonded labour.

This case is unique in that it was the first time a letter to J.Bhagwati was accepted by the

court and treated as a PIL petition. The letter detailed the plight of numerous labourers who

were subjected to unbearable and inhumane working conditions in the Faridabad area of Uttar

Pradesh.

The court established guidelines for identifying bonded workers and made it clear that it was

the responsibility of the state government to locate, free, and rehabilitate the bonded workers.

Article 24 of the Indian Constitution

According to Article 24, a youngster under the age of fourteen is not permitted to work in a

factory or perform any other dangerous tasks.

As a result, it is illegal to employ children under the age of 14 in risky or unhealthy jobs that

could weaken their mental and physical health.

Peoples Union for Democratic Rights v. Union of India (1982)

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The Supreme Court decided that construction work was a particularly risky job that no one

under the age of 14 should perform. The court also emphasised Article 24's horizontal aspect.

The prohibition of Article 24 could be applied to both States and private individuals.

MC Mehta Vs. State of Tamil Nadu

MC Mehta brought the plight of children working in Sivakasi cracker industries to the court.

In this instance, the Supreme Court ordered the establishment of a Child Labor Rehabilitation

Welfare Fund and demanded that the employer provide the child with a compensation of Rs.

20,000.

Module -4

Module -4
Concept of secularism
Secularism in India refers to the equal status and treatment of all religions.
Impartiality or non-interference by the Government of the country in matters of
religion.

Proclaimed in the amended Preamble to the Constitution of our country. It reads as

follow: “We, the people of India, having solemnly resolved to constitute India into a
Sovereign, Socialist, Secular, Democratic, Republic”, etc.

The concept of secularism in India is defined and enshrined in the Indian Constitution.
India follows a unique model of secularism that aims to maintain a neutral and
unbiased approach towards all religions, while at the same time ensuring freedom of
religion and equal treatment for all its citizens, irrespective of their religious beliefs.

The Indian concept of secularism is based on the principle of "Sarva Dharma Sama
Bhava," which means equal respect for all religions. It recognizes the importance of
religious tolerance, harmony, and coexistence in a diverse society like India, which is
home to people practicing various religions.

The Indian Constitution guarantees the right to freedom of religion under Article 25,
which includes the freedom to profess, practice, and propagate any religion of one's

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choice. It also prohibits discrimination based on religion and ensures equal treatment
before the law for all individuals, regardless of their religious affiliations.

At the same time, the Indian Constitution also maintains a clear separation between
the State and religion. The State is not aligned with any particular religion and does
not promote or favor any specific religious group. The government is mandated to
treat all religions equally and to remain neutral in matters of religion.

The concept of secularism in India goes beyond mere separation of religion and state.
It encompasses the idea of inclusiveness, mutual respect, and protection of minority
rights. The state takes responsibility for safeguarding the rights and interests of all
religious communities and strives to ensure a harmonious coexistence among them.

However, it is important to note that the implementation and interpretation of

secularism in India have been subject to various debates and challenges over the years.
The concept of secularism is continuously evolving, and its practical application may
vary in different contexts and situations.

Overall, the Indian concept of secularism aims to foster religious harmony, protect
individual freedoms, and maintain a diverse and pluralistic society where people of all
religions can live together peacefully.
The Indian Constitution includes several provisions that reflect the principles of
secularism and promote religious equality and freedom. Here are some of the key
provisions:

Article 14: It guarantees equality before the law and equal protection of the law to all
individuals, irrespective of their religion.

Article 15: It prohibits discrimination on the grounds of religion, race, caste, sex, or
place of birth.

Article 16: It ensures equality of opportunity in matters of public employment and

prohibits discrimination based on religion.

Article 25: It grants the freedom of conscience and the right to freely profess, practice,
and propagate religion.

Article 26: It grants religious denominations the freedom to manage their religious
affairs, including the right to establish and maintain religious institutions.

Article 27: It prohibits the State from levying taxes for the promotion or maintenance
of any particular religion.

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Article 28: It ensures religious freedom in educational institutions, both maintained by

the State and receiving aid from the State.

Article 29: It protects the cultural and educational rights of minorities, including the
right to preserve their language, script, and culture.

Article 30: It grants minorities the right to establish and administer educational
institutions of their choice.

Article 44 (Part IV): It directs the State to strive for a Uniform Civil Code, which
would promote gender equality and secular principles in personal laws.

Directive Principle of State Policy (Article 51A, clause (e)): It encourages citizens to
promote harmony and the spirit of common brotherhood among all religions.

These provisions collectively reflect the commitment of the Indian Constitution

towards secularism, religious equality, and freedom.

They aim to ensure that the State remains neutral in matters of religion, treats all
individuals and communities equally, and protects the rights and freedoms of
individuals to practice and propagate their religion.

Secularism-- Constitutional Precepts

Article 14--equality before law;

Article 15--prohibition of discrimination on grounds of religion, race, caste, sex or

place of birth

The provisions relating to “Right of Freedom of Religion” of the Articles 25 & 28 of

the Constitution of India make India a secular state.

To make assurance doubly sure, the 42nd amendment of the constitution inserts the
term “secular” in the preamble of the constitution.

Article 25 of Indian Constitution grants freedom to every citizen of India to profess,

practice and propagate his own religion.

The constitution, in the preamble professes to secure to all its citizen’s liberty of
belief, faith and worship.

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Caste system or untouchability cannot be practised in the case of entry into public
Hindu temples.

Discrimination in public employment on grounds of religion is prohibited by Article

16.

Article 29 of the Indian constitution assures that the state shall not impose on a
minority community any culture other than its own.

Article. 30 grant the minority community, the right to establish and administer their
own educational institution

Sardar Taheruddin Syedna Saheb v. State of Bombay

The Hon’ble Supreme Court for the first time discusses the concept of
Secularism."Sardar Taheruddin Syedna Saheb v. State of Bombay" is a landmark case
in Indian constitutional law. In this case, the Hon'ble Supreme Court of India
discussed the concept of secularism.

The case revolved around a challenge to the Bombay Prevention of Excommunication

Act, 1949, which sought to prohibit excommunication within religious communities.
The court examined whether the Act violated the freedom of religion guaranteed
under Article 25 of the Indian Constitution.

The court, in its judgment, recognized the secular nature of the Indian Constitution. It
held that secularism in the Indian context means equal respect and tolerance for all
religions. The court observed that the Constitution does not endorse or promote any
particular religion but rather ensures the freedom of religion for all individuals.

The court emphasised that the state must maintain neutrality and impartiality in
matters of religion.

It should not interfere with the religious practices or internal affairs of religious
communities unless such practices are deemed to be against public order, morality, or
health.

The case of Sardar Taheruddin Syedna Saheb v. State of Bombay contributed to the
understanding and development of secularism in India's legal framework.

It established the principle that the Indian Constitution upholds the values of religious
tolerance, equality, and non-discrimination, while maintaining the state's neutrality in
religious matters.

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S.R. Bommai v. Union of India

the court laid down the modern concept of the Secularism and held that secularism is
the part of the basic structure of the Constitution

Religious freedom

Article 25: Freedom of conscience and free profession, practice and propagation
of religion.

Article 26: Freedom to manage religious affairs.

Article 27: Freedom as to payment of taxes for promotion of any particular

religion.

Article 28: Freedom as to attendance at religious instruction or religious worship

in certain educational institutions.

Article 25 of the Indian Constitution guarantees the freedom of conscience and the
right to freely profess, practice, and propagate religion. Here are the key points of
Article 25:

Freedom of Conscience: Every individual has the right to have their own beliefs and
thoughts regarding religion, and they are free to adhere to any religion or none at all.

Freedom to Profess: Every individual has the right to openly declare and profess their
religious beliefs.

They can publicly express and proclaim their faith.

Freedom to Practice: Every individual has the right to practice and observe their
religion's rituals, ceremonies, worship, and other religious activities

They can follow the customs, traditions, and practices of their religion.

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Freedom to Propagate: Every individual has the right to propagate, spread, and
promote their religion.

They can share their religious beliefs and ideas with others, with the intention
of converting or attracting followers.

It is important to note that these freedoms are subject to public order, morality, and
health, and they do not include activities that may disturb the peace, affect the welfare
of others, or infringe upon the rights of others. The State can impose reasonable
restrictions on these freedoms in the interest of public order, morality, and health.

Article 25 upholds the principle of religious freedom and ensures that individuals have
the right to freely practise and propagate their religion in India. It promotes religious
pluralism and protects the rights of individuals to follow their own beliefs and
religious practices.

Article 26 of the Indian Constitution guarantees the freedom to manage religious

affairs to religious denominations or their sections. Here are the key provisions of
Article 26:

Right to Establish and Maintain Institutions: Religious denominations or their sections

have the right to establish and maintain institutions for religious and charitable
purposes. This includes the establishment of temples, mosques, churches, gurudwaras,
and other religious or charitable institutions.

Right to Manage Religious Affairs: Religious denominations have the autonomy to

manage their own affairs in matters of religion. This includes the power to regulate
religious ceremonies, rituals, and practices, appointment of religious leaders,
administration of religious properties, and governance of internal religious matters.

Right to Own and Acquire Property: Religious denominations have the right to own
and acquire movable and immovable property. They can acquire property through
purchase, donation, or any other lawful means. This allows religious denominations to
possess and manage properties for the promotion and practice of their religion.

Right to Administer Property: Religious denominations have the right to administer

the properties they own in accordance with the law. They can make decisions
regarding the use, maintenance, and disposition of their properties.

It is important to note that these rights are available to religious denominations or their
sections and not to individuals.

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These rights are subject to public order, morality, and health, but they are not subject
to other provisions relating to fundamental rights.

This means that the State cannot interfere in the internal religious affairs and
management of religious institutions unless it is necessary to maintain public order,
morality, and health.

The Supreme Court has also laid down certain criteria to determine whether an
organisation qualifies as a religious denomination, including having a system of
beliefs, a common organisation, and a distinctive name.

The court has recognized certain organisations, such as the Ramakrishna Mission and
Ananda Marga, as religious denominations within the Hindu religion, while ruling that
the Aurobindo Society does not qualify as a religious denomination.

These rights under Article 26 are subject to public order, morality, and health, but they
are not subject to other provisions relating to fundamental rights.

Article 27 of the Indian Constitution ensures freedom from taxation for the
promotion or maintenance of any particular religion or religious denomination.

It prohibits the compulsion of individuals to pay taxes specifically for the promotion
or support of a particular religion.

This provision is aimed at maintaining the principle of secularism and prevents the
state from favouring, patronising, or supporting one religion over others using public
funds collected through taxation.

The intention is to ensure that taxes collected from all citizens are not utilised
exclusively for the benefit of a specific religion or religious denomination.

However, it is important to note that Article 27 applies only to taxes and not fees. Fees
can be imposed for the secular administration and regulation of religious institutions
or for providing specific services or safety measures to pilgrims.

For example, fees may be charged for the upkeep and maintenance of religious sites
or for regulating the functioning of religious endowments.

In summary, Article 27 prohibits the use of public funds collected through taxation for
the promotion or maintenance of any particular religion, safeguarding the principle of
secularism in the country.

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Minority rights under indian constitution

An ethnic group refers to people who share culture, language, beliefs, and traditions.

In the 19th century, certain ethnic groups united and established their own
nation-states within the territories they inhabited.

However, some ethnic groups residing in the same territories differed significantly and
were unwilling to change their language, religion, or traditions in order to conform to
the newly formed nation.

Some groups were also compelled to change their nationalities due to shifting state
borders.

Although these groups may exhibit cultural differences from mainstream society, they
strive to preserve their distinct identity.

They represent a smaller, unique subset of individuals that differs from the majority.

In India, there is a diverse array of religions, cultures, traditions, and heritage.

The country is home to eight major religious belief systems, each with its own distinct
heritage and culture.

From Kashmir to Kanyakumari, there are 22 officially recognized languages,

encompassing over 800 dialects.

In a closely-knit democratic society like India, minority groups are valued for their
differences, and while they possess minority rights, the decision to identify with a
particular minority group remains an individual choice.

The term "minority" originates from the Latin word "Minor," meaning "small in
number," and is combined with the suffix "-ity" to convey this meaning.

According to the United Nations, minorities are defined as "any group or community
that is socially, politically, and economically non-dominant and inferior in
population."

The Indian constitution does not explicitly define the term "minority" anywhere.

Articles relating to the protection of minority rights

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The Constitution of India includes specific articles aimed at safeguarding the rights of
minorities. Article 14 of the Indian constitution emphasises the need to prohibit
unequal treatment and calls for laws that ensure equal treatment for all.

Article 14(1) establishes the principle of Equality Before Law, which means that
regardless of one's status, if an act is not legally justified, the law treats everyone
equally and assigns the same responsibilities.

This concept is often symbolised by the blindfolded Lady Justice, representing equal
treatment for all individuals under the law.

There are two articles in the Indian Constitution that pertain to cultural and
educational rights: Article 29 and Article 30.

Article 29 focuses on the protection of minority interests.

According to Article 29(1), any group residing within the jurisdiction of India is
entitled to preserve and promote its own language, script, literature, and culture.

Article 29(2) prohibits the denial of admission to state-aided educational institutions

based on factors such as race, caste, religion, or language.

Article 30 holds great significance for minority communities in India.

Article 30(1) grants minority communities the right to establish and administer
educational institutions of their choice to protect their culture and heritage.

Subclause 30(1A) strengthens the position of minority educational institutions in cases

of compulsory acquisition, ensuring that the compensation amount for property
acquisition does not infringe upon the rights guaranteed by clause (1).

According to Article 30(2), the government is prohibited from discriminating against

any educational institution run by a minority group, irrespective of their religion or
language, when providing aid.

Contrary to the traditional view, the scope of Article 29 is broader than Article 30.

Article 30 specifically addresses religious and linguistic minorities, while Article 29

applies to all citizens of India, including the majority population.

Article 29 only applies to Indian citizens, whereas Article 30 can be invoked by both
citizens and non-citizens of India.

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The Supreme Court, in the case of S.K. Patro v. State of Bihar, has ruled that to claim
the privileges under Article 30, a member of a minority community must be a resident
of India. Foreigners who are neither residents nor citizens of India do not fall under
the purview of Article 30.

Case laws

The case of DAV College, Bathinda v. State of Punjab revolves around the rights of
minority groups regarding the use of their own languages in educational institutions.

In the case of Ravneet Kaur v. Christian Medical College, the court established that
a private institution that does not receive financial assistance from the State is not
allowed to discriminate against an individual based on their religion when it comes to
admission.

In this particular case, the university issued a directive stating that Punjabi would be
the sole medium of instruction in affiliated colleges.

In the case of State of Madras v. Champakam, the issue regarding Article 29(2) was
raised and challenged for the first time.

The Supreme Court ruled that the classification made by the government order, which
was based on race, religion, and caste, was in conflict with Article 29(2) of the
Constitution.

The court determined that the rights granted to minorities under Article 30 of the
Constitution guarantee their ability to establish and administer educational institutions
of their choice.

This includes the right to provide instruction in their own language.

The university's decision to enforce instruction only in Punjabi was deemed a

violation of the minority's right to use Hindi as their language, thereby infringing upon
Article 30(1).

While a university has the authority to set standards for the qualifications of academic
staff, the process of selection and recruitment of staff members remains the
responsibility of the minority educational institutions themselves.

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The Kerala Education Bill introduced certain laws aimed at safeguarding the salaries
and working conditions of teachers in educational institutions.

These provisions were intended to be applied equally to minority institutions

established under Article 30 of the Constitution.

However, the minority educational institutions argued that the bills, which regulated
matters such as salaries, appointments, and qualifications, violated their administrative
autonomy and the way they wanted to manage these aspects.

In response, the Supreme Court ruled that minority institutions could not exploit
teachers under the guise of minority rights.

They emphasized that these institutions must treat their teachers fairly and in a
dignified manner.

The Court noted that when the bill provides for minimum salaries and qualifications, it
is ensuring the protection of the individuals working in these institutions.

The State has a responsibility to safeguard the rights and well-being of those
employed in such educational institutions.

In the St. Xavier's College vs. State of Gujarat case, the Supreme Court of India
delivered a judgment on December 12, 1974. The case revolved around St. Xavier's
College, Ahmedabad, which is affiliated with the University of Gujarat. The state
government sought to regulate the admission process of the college, which the
institution challenged, claiming a violation of its rights under Article 30(1).

The Supreme Court's judgment in this case affirmed the autonomy and rights of
minority educational institutions. The court held that minority institutions have the
right to admit students of their choice, as long as the selection criteria are fair,
transparent, and non-exploitative. The judgment emphasized that minority institutions
have the freedom to administer their educational institutions to preserve and promote
their cultural and linguistic identity.

The court recognized that the purpose of Article 30(1) is to ensure that minorities can
establish and administer educational institutions of their choice without any
interference that may undermine their distinctive character. It emphasized that the
spirit of this article is to protect the educational rights of minorities and enable them to

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provide quality education to their community while contributing to the overall

development of the nation.

The St. Xavier's College vs. State of Gujarat case remains an important precedent in
Indian jurisprudence concerning minority rights in the field of education.

MINORITY RIGHTS AND EDUCATION

Having a solid grasp of history is crucial for a good political understanding because
knowing our past helps us comprehend the present.

In the case of contemporary Indian politics, this understanding is closely tied to our
freedom movement, which laid the foundation for the current state of affairs.

The pillars of our constitution, namely democracy, secularism, social justice, and
fundamental and minority rights, were shaped through sustained political mobilisation
during that time.

Given the recent resurgence of Hindutva forces, the protection of minority rights has
gained significance and requires the safeguarding that was assured during the
country's struggle for independence.

The framers of our Constitution foresaw such events and included provisions to
protect minority rights.

Article 29 and Article 30 grant minorities the right to establish and manage
educational institutions of their choice.

However, these rights are not absolute, as the Supreme Court has imposed varying
degrees of limitations over the past 50 years.

In some cases, these restrictions have even resulted in the complete loss of
autonomous status for minority institutions.

During the Constituent Assembly, G.B. Pant emphasised the need to fully satisfy
minorities, recognizing that without their contentment, progress and lasting peace

would be difficult to achieve.

The freedom struggle led to the emergence of two key political norms in Indian
politics, guided by pragmatic and normative principles.

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Firstly, no group is privileged solely based on majority status.

Secondly, groups must be protected from majoritarian agendas precisely because they
are in the minority and therefore vulnerable.

These principles align with the fundamental tenets of liberal democracy, which aim to
safeguard the rights of every individual, even when the majority may hold opposing
views.

PROVISIONS IN THE INDIAN CONSTITUTION

Article 29(1) of the Indian Constitution provides protection to every section of citizens
who possess a distinct language, script, or culture, ensuring their right to preserve and
conserve the same.

The conservation of language, script, or culture by minority communities is effectively

achieved through educational institutions.

Hence, the right to establish and manage educational institutions of their choice is
essential, and this right is conferred upon all minorities by Article 30(1).

It is important to note that Article 29(1) does not limit the scope of Article 30(1) nor is
it restricted by that Article.

Article 30(1) grants linguistic or religious minorities two rights: (1) the right to
establish educational institutions, and (2) the right to administer them.

Additionally, Article 30(2) prohibits the State from discriminating against any
educational institution based on the grounds that it is under the management of a
linguistic or religious minority, particularly when providing aid to such institutions.

REGULATION OF MINORITY EDUCATIONAL INSTITUTIONS

Since 1950, various governments have implemented numerous schemes aimed at

undermining the rights of minority institutions and subjecting them to increasing state
regulation.

In the case of Kerala Education Bill, 1957, the Supreme Court held that the right to
administer an educational institution does not include the right to mismanage it.

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While minority institutions have the constitutional right to administer their

institutions, the state can impose reasonable regulations as a condition for granting aid
to ensure the excellence of these institutions.

Regulations imposed by the legislature or executive, as a requirement for receiving

grants or recognition, must be aimed at maintaining the educational character of the
minority institution and ensuring its effectiveness.

The objective of granting special rights to minorities is not to create a privileged or

pampered section of the population but to provide minorities with a sense of security
and confidence.

In the case of Sidharajbhai v. State of Gujarat, Justice Shah introduced a new

approach, emphasising that regulations must meet a dual test of reasonableness and
must contribute to the educational mission of the institution and its effectiveness in
serving the minority community.

If this approach had been consistently followed, the subsequent jurisprudence of the
Court in this area would have been clearer and more supportive of protecting minority
rights.

In St. Stephen's College v. University of Delhi, the apex court ruled that
minority-aided institutions have the right to give preference to candidates from their
own community while adhering to university standards.

The state may regulate the intake of such candidates based on the needs of the
community in the institution's intended area of service.

However, the intake of non-minority candidates should not exceed 50% of the annual
admissions, and their admission should be based solely on merit.

The landmark judgement of the Supreme Court in the T.M.A. Pai Foundation case in
2002 represented a turning point in the Court's perspective on minority educational
institutions.

The Court expressed support for freeing minority institutions from government
control, except for maintaining academic standards through qualifications for teachers
and minimum eligibility for students.

The key points of the judgement are as follows:

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Unaided minority institutions have the right to admit students without regulation by
the state or university, as long as the admission process is transparent and merit-based.

The right to admit students is inherent in the right to administer educational

institutions.

Aided minority institutions should admit a reasonable number of non-minority

students to maintain the rights of minority communities under Article 30(1) while also
respecting the rights of citizens under Article 29(2).

The determination of a reasonable number depends on various factors and is the

responsibility of the relevant state government.

The procedure and method of admission in minority institutions that are completely
free from government or university control should be fair, transparent, and
merit-based.

In the case of aided institutions, the government or university may consider the
inclusion of weaker sections of society in the admission process.

Unaided minority institutions have the freedom to determine the appropriate fees and
charges, as long as they are not perceived as charging capitation fees for profiteering.

Non-minority students seeking admission to aided minority institutions should be

admitted based on competitive merit through a state government-conducted entrance
test.

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Regulations in the national interest should apply to all educational institutions,

regardless of whether they are run by the majority or minority.

However, some crucial issues regarding unaided educational institutions have been
left unresolved, inviting future controversy and litigation.

The court has evaded decisions on whether sects or denominations within a majority
religion are entitled to minority protection under Article 30(1) and whether minority
eligibility applies to institutions without religious or linguistic motivation or
authorization.

The Supreme Court's approach to minority rights and institutions has been
inconsistent over time, with an initial sensitivity followed by increasing regulatory
control. The recent decision in the T.M.A. Pai case shows signs of hope but also raises
unanswered questions that may lead to future disputes.

Right to Property
The Right to Property ensures an individual's entitlement to own and possess private
property, unless specifically prohibited by law.

This right is recognized in the majority of constitutions worldwide, with the exception
of those that establish a communist system of government.

The Universal Declaration of Human Rights also acknowledges the importance of this
right.

Right to Property Article

Article 300A of the Indian Constitution establishes and safeguards the Right to
Property. This article is included in Part XII of the Constitution.

It explicitly states that no person can be deprived of their property except by the
authority of law.
It is important to note that this provision was not present in the original Constitution
when it was initially drafted.

Right to Property is a Fundamental Right?

Before 1949, the Government of India Act of 1935 included provisions regarding the
Right to Property.

This law protected the property of zamindars (landlords) and peasants, allowing the
government to acquire property only for public purposes.

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In the original Indian constitution, the Right to Property was considered a

Fundamental Right under Article 19(1)(f) and Article 31.

However, this status was changed through a constitutional amendment.

The First Amendment to the Indian Constitution introduced Article 31A and Article
31B, which made legislation granting zamindars possession over their property
immune to legal challenge in court.

This amendment aimed to safeguard the land reforms and redistribution of property
implemented by the government.

Why Right to Property Removed from Fundamental Rights?

The Right to Property was removed from the list of fundamental rights in the Indian
Constitution through the 44th Amendment Act of 1978.

There were several reasons behind this decision:

Socialist goals: The amendment aimed to align the Constitution with the socialist
goals and principles set forth in the Directive Principles of State Policy.

The government believed that removing the Right to Property as a fundamental right
would facilitate a more equitable distribution of wealth and resources.

Land acquisition issues: The government faced numerous litigations and challenges
related to land acquisition for developmental projects.

These legal battles and delays were seen as hindrances to progress and the overall
development of the country.

Removing the Right to Property as a fundamental right was intended to expedite land
acquisition for public purposes.

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Public interest: The amendment emphasised the primacy of public interest over
private property rights.

It was argued that the needs of the community and the welfare of the larger society
should take precedence over individual property rights.

Economic reforms: The removal of the Right to Property as a fundamental right was
also seen as a step towards implementing economic reforms.

The government aimed to introduce policies that would encourage investment,

industrial growth, and economic development.

Removing strict constitutional protections for property rights was seen as a way to
achieve these objectives.

It is important to note that even though the Right to Property was removed from the
list of fundamental rights, it continued to be protected as a legal right under Article
300A of the Constitution, which guarantees that no person can be deprived of their
property except by the authority of law.

Right to Property Amendment

In 1978, the Indian Parliament passed the 44th Amendment Act, which introduced
several changes to the Constitution.

One of the notable changes was the removal of the Right to Property from Part III of
the constitution, where fundamental rights are enumerated.

However, it is important to clarify that this amendment did not impact the right of
minority institutions to own and possess property, as guaranteed under Article 30 of
the Constitution.

The protection of property rights for minority institutions remained intact despite the
amendment.

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Right to Property is a Legal Right

Article 300A of the Indian Constitution indeed recognizes the right to property as a
legal right.

It establishes two conditions for the state to acquire property: the acquisition should be
for a public purpose, and it should provide for the payment of compensation to the
owner.

The current status of the Right to Property is that it is a legal right rather than a
fundamental right.

This means that it can be regulated, restricted, or modified by law without requiring a
constitutional amendment.

In case of a violation of this right, individuals or parties cannot directly approach the
Supreme Court through writs but can approach the High Court and file a petition.

Although the right to property is protected from executive action, it is not immune
from legislative action.

In other words, if the Parliament passes a law allowing the acquisition of private
property by the state, it is legally justified.

Furthermore, there is no guaranteed right to compensation in the event of the state

acquiring property under legislation enacted by Parliament.

Right to Property Supreme Court Judgements

The following judicial cases highlight how the interpretation of the Right to Property
done by the Supreme Court (SC) has evolved over a period of time.

The SC in the Bank Nationalisation case has held that there remains the right to
reasonable compensation for the property taken over by the state.

At the same time, the court has upheld the Doctrine of Eminent Domain, by which
the state can take away private property for public purposes.

In the Jilubhai Nanbhai Khachar case of 1995, SC held that the Right to Property as
given under Article 300A of the Constitution is not part of the Basic Structure of the
Indian constitution. It is only a legal right.

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Courts have time and again held that the state has no right to interfere in citizens’
private property unless it is done by the authority of law.

This was most recently reiterated by the court in Ravindran vs District Collector,
Vellore case of 2020.

In January 2020, SC in Vidya Devi vs the State of Himachal Pradesh and others
held that the Right to Property is a human right. In this case, the court held that the
state cannot use the Doctrine of Adverse Possession to take away the property of its
subjects without following the due procedure.

The doctrine of eminent domain

The doctrine of eminent domain is a legal concept that allows the government to
acquire private property for public use.

It helps in understanding the limitations of the right to property.

While individuals have a constitutional right to property under Article 300A and a
statutory right under the Transfer of Property Act, 1881, the government can exercise
its power to use private property for public purposes, such as the construction of roads
and bridges.

However, it is essential that adequate compensation is provided to the property owner

in such cases.

The key principles of the doctrine of eminent domain include:

Public Benefit: The government can acquire property only if it is for the benefit of the
public. The use of the property should serve a public purpose.

Compensation: When private property is taken by the government, the property owner
must be compensated.

The compensation should be fair and just, providing adequate value for the property
being acquired.

However, over time, the use of the doctrine of eminent domain has evolved and been
replaced by different legal provisions and mechanisms.

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Right to Legal Rights

Legal rights are rights that are recognized and established by the state through its
statutes or laws.

These rights are granted to the people within the framework of a government's legal
system and are considered privileges.

They are specific to a particular state or country and can vary over time. Legal rights
are protected under ordinary laws and can be modified or revoked by the legislature
through amendments to the law.

Unlike constitutional rights, which are derived from the Constitution and cannot be
waived, legal rights are derived from laws and can be waived by individuals.

For example, rights such as the right to property ownership or the right to a patent are
considered legal rights that are established through specific laws.

The Indian Constitution provides for various legal rights that are essential for the
protection and promotion of individual rights and freedoms.

These legal rights are enshrined in different provisions of the Constitution and play a
crucial role in ensuring justice, equality, and fairness in the legal system.

Some important legal rights recognized in the Indian Constitution include:

Right to Equality: Article 14 guarantees the right to equality before the law and equal
protection of the law.

It prohibits discrimination on grounds of religion, race, caste, sex, or place of birth.

Right to Freedom: Articles 19 to 22 provide for several freedoms, including the

freedom of speech and expression, freedom of assembly, freedom to form
associations, freedom of movement, and the right to protection of life and personal
liberty.

Right against Exploitation: Articles 23 and 24 prohibit trafficking in human beings,

forced labour, and child labour.

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They provide for the right against exploitation and ensure the protection of vulnerable
sections of society.

Right to Freedom of Religion: Article 25 guarantees the freedom of conscience and

the right to freely profess, practice, and propagate religion.

It ensures religious freedom and protects the individual's right to follow their chosen
faith.

Cultural and Educational Rights: Articles 29 and 30 provide for the protection of the
interests of minorities, including the right to conserve their language, script, and
culture.

Article 30 grants minority educational institutions the right to establish and

administer educational institutions of their choice.

Right to Constitutional Remedies: Article 32 empowers individuals to directly

approach the Supreme Court for the enforcement of their fundamental rights.

It provides for the right to constitutional remedies, ensuring access to justice and the
protection of fundamental rights.

These are just a few examples of the legal rights enshrined in the Indian Constitution.

The Constitution recognizes and guarantees a wide range of rights to safeguard the
interests and welfare of the citizens.

Right to Constitutional Remedies

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It is crucial to bear in mind the basic rights bestowed upon every Indian citizen by the
Constitution.
Article 226, along with Article 32, ensures that all citizens have the Right to
Constitutional Remedies, which encompasses the principles of equality before the law
and equal protection of laws.
Individuals often exercise this right by submitting a Writ Petition to the High Courts
and the Supreme Court of India.

What are Constitutional Remedies?

Article 226 and Article 32 of the Indian Constitution provide for the right to
constitutional remedies.
This article is a fundamental right and guarantees equality in every aspect.
Constitutional remedies are available to every citizen of India.

A writ petition is a formal request made to a court for the enforcement of a

constitutional right.

Legal Provision for the Constitutional Remedies

Article 32: Article 32, known as the essence of the Indian constitution according to Dr.
Ambedkar, empowers the Supreme Court to issue writs for the enforcement of
Fundamental Rights.

This power falls under the court's original jurisdiction, which refers to its authority to
hear a case for the first time.

Article 32 also encompasses the power of judicial review, allowing the Supreme Court
to declare a law unconstitutional if it contradicts any provision of the constitution.

Article 226: Article 226 grants the High Courts the authority to issue writs for the
enforcement of Fundamental Rights.

This article also emphasises the principle of equality in all aspects.

Article 226 confers extensive power upon the High Court, enabling it to issue writs
against various bodies and authorities in cases of Fundamental Rights violations.

Writ Petition

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A writ petition is a formal legal document submitted to a court to seek redress for the
infringement of fundamental rights by an authority.

It is a fundamental right guaranteed by Article 226 and Article 32 of the Indian

Constitution, which upholds the principle of equality in all spheres.

When an individual's fundamental rights are violated by the state or its agencies, a
writ petition can be filed as a recourse.

Its purpose is to ensure that the state acknowledges and safeguards the rights of its
citizens.

Different types of Writs

In the Indian legal system, there are five types of writs that can be issued by courts to
provide legal remedies. These writs are as follows:

Habeas Corpus: Habeas Corpus means "to have the body." This writ is used to
protect an individual's right to personal liberty.

It is filed to seek the production of a person who is detained unlawfully or without

proper legal justification.

The court examines the legality of the detention and can order the release of the
person if the detention is found to be unlawful.

Mandamus: Mandamus means "command" or "order." This writ is issued to a public

official, government department, or a lower court directing them to perform a specific
duty that they are obligated to perform but have failed to do so.

It is used to ensure that public officials and authorities fulfil their legal obligations.

Prohibition: Prohibition is a writ that is issued by a higher court to prevent a lower

court or tribunal from exceeding its jurisdiction or acting beyond its authority.

It is used to restrain a lower court from continuing with proceedings that are outside
its legal competence.

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Certiorari: Certiorari means "to be certified" or "to be informed."

This writ is issued by a higher court to review the decision of a lower court or tribunal.

It is used when there is an error of law on the face of the record or a jurisdictional
error, and the higher court is called upon to correct or quash the decision.

Quo Warranto: Quo Warranto means "by what authority." This writ is used to inquire
into the legality of a person holding a public office, position, or franchise.

It questions the authority or credentials of a person occupying a public position and

can lead to the removal of the person if it is found that they are holding the position
unlawfully or without the necessary qualifications.

These writs serve as powerful tools to safeguard fundamental rights and ensure legal
remedies in case of their violation or unlawful actions by authorities.

Important Habeas Corpus Judgements

Sunil Batra V. Delhi Administration AIR 1980 SC 1579

Sunil Batra, the petitioner, was a prisoner who wrote a letter to the court regarding the
treatment meted out to a fellow prisoner of his in Tihar Jail.

In this, the Supreme Court allowed letters to be accepted by the court and converted
into habeas corpus (or other) writ petitions.

This has been legally termed as ‘epistolary jurisdiction’.

Further, the court expanded the provisions of habeas corpus even to prisoners, holding
that even prisoners’ rights were to be safeguarded by the provisions guaranteed under
the Constitution.

Kanu Sanyal V. District Magistrate 1974 AIR 510

Kanu Sanyal, the petitioner, was a member of a Naxalite group allegedly involved in
illegal activities. He was wrongfully detained in a Darjeeling jail for which he moved
the Supreme Court. In this judgement, the Supreme Court held that a court may
examine the legality of detention without the person being present before it.

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A.K. Gopalan v. The State of Madras

In the instant case, the preventive detention act was examined based on its
constitutional validity. If a legislature restraints a person from his personal liberty
should be competent enough to make such law in the first place. Detention is turned
out to be unlawful if the law backing it up is unlawful. A person has the right to
approach the court. A person can file an appeal in the supreme court against the order
of high court in case of accepting or refusing the application for the writ of habeas
corpus.

Important mandamus Corpus Judgements

The courts are unwilling to issue writ of mandamus against high dignitaries like the
President and the Governors. In the case of S.P. Gupta v. Union of India, judges
were of the view that writ cannot be issued against the President of India for fixing the
number of judges in High Courts and filling vacancies.

In C.G. Govindan v. State of Gujarat, it was refused by the court to issue the writ of
mandamus against the governor to approve the fixation of salaries of the court staff by
the Chief Justice of High Court under Article 229. Hence, it is submitted that the
Governor or the President means the state or the Union and therefore issuance of
mandamus cannot take place.

In Rashid Ahmad v. Municipal Board , it was held that in relation to Fundamental

Rights the availability of alternative remedy cannot be an absolute bar for the issue of
writ though the fact may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher
of a book had applied for the writ of mandamus against the Director of Public
Instruction for the inclusion of his book in the list of books which were approved as
text-books in schools. But the writ was not allowed as the matter was completely
within the discretion of D.I.P and he was not bound to approve the book.

Landmark Case Laws for Writ of Prohibition

In the case of East India Commercial Co. Ltd v. Collector of Customs a writ of
prohibition was passed directing an inferior Tribunal prohibiting it from continuing
with the proceeding on the ground that the proceeding is without or in excess of
jurisdiction or in contradiction with the laws of the land, statutes or otherwise.

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Also, it was held in the case of Bengal Immunity Co. Ltd , the Supreme Court
pointed out that where an inferior tribunal is shown to have seized jurisdiction which
does not belong to it then that consideration is irrelevant and the writ of Prohibition
has to be issued as a right.

R.M.D. Chamarbaugwala v. Union of India (1957): This case established that the
writ of prohibition can be used to prevent a lower court or tribunal from exceeding its
jurisdiction or from acting in a manner that is contrary to the rules of natural justice.

Suk Das v. Union Territory of Arunachal Pradesh (1986): This case clarified that
the writ of prohibition can be used to prevent a lower court or tribunal from
proceeding with a case in the absence of jurisdiction.

State of Maharashtra v. Prabhakar Pandurang Kunte (1989): This case

established that the writ of prohibition can be used to prevent a lower court or tribunal
from acting in a manner that is violative of the principles of natural justice, such as by
denying a party the right to a fair hearing.

State of Gujarat v. Vora Fatesingh Ranchhodbhai (1990): This case established

that the writ of prohibition can be used to prevent a lower court or tribunal from
causing prejudice to a party.

Indian Council for Enviro-Legal Action v. Union of India (1996): This case
clarified that the writ of prohibition can be used to prevent a lower court or tribunal
from improperly exercising discretion.

State of Andhra Pradesh v. K. Satyanarayana (2009): This case established that the
writ of prohibition can be used to prevent a lower court or tribunal from proceeding
with a case in the absence of jurisdiction.

Union of India v. R. Gandhi, President, Madras Bar Association (2010): This case
clarified that the writ of prohibition can be used to prevent a lower court or tribunal
from acting in a manner that is violative of the principles of natural justice, such as by
denying a party the right to a fair hearing.

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Landmark Case Laws for Writ of certiorari

Basappa vs Nagappa[AIR 1955 SC 756]

In this case, the Supreme Court examined the writ of Certiorari under the Indian
context.

It was stated that the Court does not change, or substitute the judgement of a lower
court by this writ, but rather examines the jurisdiction of the tribunal below and
observes the qualifying conditions in the course of such a judgement being issued.

The limitations and scope of this writ were formulated in this judgement.

Hari Vishnu Kamath vs Syed Ahmad Ishaque [1955 AIR 233]

In this judgement, the Supreme Court stated that Certiorari was not merely “an appeal
in disguise”. It does not bring order into a decision, but only corrects any errors that
occurred.

The case involved elections to Lok Sabha in which the appellant complained that the
ballots should be cancelled as voters were given the wrong ballot papers.

The Court made it clear that it acts on a writ of Certiorari as a court of supervisory, not
appellate jurisdiction.

Important Quo Warranto Judgements

Amarendra Chandra v. Narendra Kumar Basu, (1951)

In this case, the members of the Managing Committee of a school in Calcutta were the
respondents.

The application for quo warranto was prayed for, to question the authority by which
these members occupied their posts.

The Court held that the writ of quo warranto would not be applicable to an office of a
private nature.

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University of Mysore vs CD Govinda Rao [1965 AIR 491]

In this case, the Supreme Court held that the writ of Quo Warrant can be held only
against an office of ‘substantive nature’.

The petition was against the appointment to the post of Research Reader in English by
the University of Madras.

It was held by the Court that, on the occasion of filing such writ petition, the Court
should be convinced that the office in question is a public office and is held by a
usurper without legal authority before he or she can effectively claim a writ of quo
warranto.

S. Chandramohan Nair v. George Joseph [2010 (11) JT 38]

In this case, the appointment of the appellant as a member of the State Consumer
Commission was challenged on the ground that his name was not recommended by
the Selection Committee.

The Supreme Court observed that the Division Bench of the Kerala High Court was in
error while issuing the writ of quo warranto, and quashed the appellant’s appointment
to the State Commission.

The respondent was also labelled as a ‘busybody’ and ‘interloper’, as he had no

relation to the State Commission and failed to prove how the appointment would
adversely affect the samiti of which he was general secretary.

Locus standi

Locus Standi, also known as standing, is a legal principle that determines whether an
individual has the right to bring a lawsuit.

It requires the person to demonstrate a direct injury or grievance resulting from the act
being challenged. Instead of considering broader public interests or issues like
environmental conservation, distributive justice, or participatory democracy, courts
primarily focus on the identification of the individual bringing the action

. They ask questions such as: Who is the person? Are they personally affected? Do
they have a sufficient personal interest in the matter?

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The term "locus standi" is derived from Latin, with "locus" meaning "place" and
"standi" meaning "to stand."

It signifies a party's legal right to initiate a lawsuit and involves showing the court that
the law or action being challenged has a significant relation to the party and has
caused them harm justifying their involvement in the case.

The U.S. Supreme Court has affirmed that locus standi determines whether a litigant is
entitled to have the court decide the merits of the case or specific issues.

For a person to establish locus standi, certain factors must be met.

Firstly, the plaintiff must have suffered or will imminently suffer a concrete and
particularized injury, which is a violation of a legally protected interest.

The injury must be actual, distinct, and not abstract. It can be both economic and
non-economic.

Secondly, there must be a causal connection between the injury and the conduct being
complained of.

The injury should be traceable to the defendant's actions and not the result of an
independent third party.

Finally, there should be a likelihood that a favorable court decision will redress the
injury, meaning it has a practical chance of providing relief rather than being merely
speculative.

In the Indian context, an individual whose constitutional or legal rights have been
violated traditionally seeks relief under Article 226 of the Indian Constitution.

However, the Supreme Court has recently adopted a more liberal approach to the
Locus Standi clause.

It now allows public-spirited individuals to file writ petitions on behalf of others or

classes to protect their constitutional and statutory rights, even if those individuals or
classes cannot personally claim the High Court's jurisdiction due to poverty or other
socio-economic limitations.

Article 226 is broader in scope than Article 32 of the Indian Constitution.

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Under Article 226, the aggrieved party can approach the High Court for violations of
not only their fundamental rights but also their legal rights.

On the other hand, Article 32 only allows individuals to approach the Supreme Court
for violations of fundamental rights.

Public interest litigation

In public interest litigation (PIL), the strict rule of locus standi, which applies to
private litigation, is relaxed to accommodate the interests of socially or economically
vulnerable individuals who may be unable to protect themselves.

Courts have established a broader rule for PIL cases in modern times.

Under this rule, any member of the public who acts in good faith and possesses
sufficient interest in seeking redress for a public wrong or injury, as long as they are
not a mere busybody or meddlesome interloper, may be granted the right of locus
standi.

Public interest litigation aims to ensure that the provisions of the Constitution or the
law are fully upheld in order to advance the interests of the community, disadvantaged
groups, individuals, or the public at large.

It recognizes that any person who acts in good faith and with sufficient involvement is
permitted to initiate such litigation.

The focus is on the cause of the community or public interest, rather than the narrow
individual interests typically considered in private litigation.
Case Laws

Bandhu Mukti Morcha Vs Union of India

The Court held in this case that the Public Interest Litigation is not adversary
litigation, but rather a challenge and incentive for the government and its officers to
make basic Human Rights meaningful to the poor and vulnerable.

As a result, the court is assisting them in achieving their constitutional objectives.

Article 32 of the Constitution gives the court the authority to name a Commission to
investigate human rights violations.

Akhil Bhartiya Soshit Karmachari Sangh Vs. Union of India

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The Supreme Court ruled in this case that the Akhil Bhartiya Soshit Karmachari
Sangh (Railway) could file a writ-petition under Article 226 of the Indian Constitution
through an unregistered association for the redressal of a popular grievance.

The current Constitutional jurisprudence, according to Krishna Iyer, J, is access to

justice through “class actions,” “public interest litigation,” and “representative
proceedings.”

S.P Gupta v Union of India

A group of lawyers filed a writ petition about the appointment of judges under Article
226 of the Constitution.

Since the lawyers had a genuine interest in the disposition of cases and the
appointment of judges, the petition was granted. In India, this case ushered in a new
age of public interest litigation.

PIL is one of the most powerful instruments for enforcing public duties that were
previously carried out unlawfully, causing injury to society.

Module 5
Directive Principles of State Policies

Article 36-51 of the Indian constitution establishes the Directive Principles of State
Policy, which are considered fundamental principles for the state to adhere to.

These principles, outlined in Part IV of the Constitution, serve as a guiding policy for
the government in various areas.

The article mandates that these principles be fully recognized, observed, and
integrated into the functioning of all state departments, including the Executive,
Legislature, and Judiciary.

Essentially, Article 36-51 provides clear directives to the state institutions, ensuring
their adherence to these principles across different fields.

CLASSIFICATION OF STATE POLICY DIRECTIVE PRINCIPLE

The Directive Principles of State Policy are not expressly defined in the Indian
Constitution, however, they can be divided into three groups for better understanding
and direction. The following are some of them:

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● Principles of Socialism
● Gandhian Principles
● Liberal-Intellectual Principles

Objective of Directive Principles of Our State Policy:

The Directive Principles of Our State Policy serve to safeguard fundamental rights and
prevent their infringement.

They act as a form of legal mechanism that can be employed to monitor the
implementation of these principles in certain aspects, while ensuring that no
unnecessary complications arise in areas where rights are not violated.

The Directive Principles can be seen as educational instruments, lacking strong legal
enforceability. Nonetheless, they hold substantial importance in shaping policy
formulation in India.

Failure to uphold these principles could give rise to a constitutional crisis or

significant challenges arising from violations committed by state authorities.

List of Directive Principles of State Policy

Article 36- Defines the “state”.

Article 37-Part IV of the Indian Constitution shall not be enforceable in any court of
law.
Article 38-Social, Political and Economic Justice.
Article 39-Principles of Policy.
Article 39A-Free Legal aid.
Article 40-Organization of Panchayats.
Article 41-Welfare Government.
Article 42-Securing just and humane work and maternity relief.
Article 43-Fair wages and a decent standard of life.
Article 43-A-Workers’ participation in management.
Article 43-B-Promotion of Cooperatives.
Article 44-Uniform Civil Code.
Article 45-Infant and Child Care.

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Article 46-Protection of SCs, STs and other weaker sections from exploitation.
Article 47-Nutrition, Standard of living and public health.
Article 48-Scientific agriculture and animal husbandry.
Article 48-A-Environment and Wildlife Protection.
Article 49-Protection of monuments and places and objects which have national
importance.
Article 50-Judiciary should be separate from the Executive.
Article 51-The state shall promote international peace and security.
Functions of Directive Principles of Our State Policy:
The functions of the directive principles are as follows:
1) Function as supplementary to the Fundamental rights.
2) Protect Fundamental Rights from violation.
3) Perform a balancing function between Fundamental Rights and Directive
Principles.
4) Be the basis for making a uniform civil code for India.
5) Be the basis for constitutional amendments for removing social evils like
untouchability, etc.
6) Be used as a tool to ensure self-governance of people in local government bodies,
gram panchayats, municipal wards etc.
How are Directive Principles of Our State Policy different from Fundamental Rights:
There is a difference between Directive Principles of Our State Policy and
Fundamental Rights in the following ways:
(a) Directive Principles are part of the basic structure of our constitution.
(b) Fundamental Rights are amendable, but the Directive Principles cannot be
amended.
(c) Fundamental Rights are enforceable just in case of violation, but directive
principles have no such enforcement.
(d) Fundamental Rights are available to all citizens and can be enforced by any court,
but the Directive Principles of Our State Policy are only applicable to certain social
classes or groups.

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(e) Fundamental Rights can be restricted in the interest of public welfare, but the
Directive Principles cannot be restricted.
(f) Fundamental Rights are justiciable, but directive principles are not justiciable.
Supremacy of Fundamental Rights over Directive Principles:
Article 36 under the name “Directive Principles” has been put into our constitution
before fundamental rights. It is because there were several debates and discussions in
our country and among our founding fathers on whether directive principles of
fundamental rights should have a primary place in our constitution. The debate was all
about which one is the most important and effective method to protect fundamental
rights from violation. In the end, it was decided that both should be considered
fundamental but that there should be an ever-present rule of precedence.
Thus, we have a supreme rule of precedence where Fundamental Rights are supreme,
but Directive Principles are supplementary and complementary to them. The Directive
Principles form a part of the basic structure of our constitution as per Article 40-A,
Part IV.
On the issue of supremacy and priority between fundamental rights and Directive
Principles, even after 70 years since we have a constitution nobody seems to be in
disagreement over the importance of Directive Principles. In fact, when we look at
historical documents written by these same framers, they all express commitment
towards natural justice principles.

Three Main Divisions Of The Directive Principles

These state policies are divided into three categories: economic and social principles,
the Gandhian regulations, Principles, and Policies that relate to international peace and
security, and miscellaneous.

● The economic and social principles comprise the following guidelines;

● To provide adequate means of living for both men and women.
1. They help reorganize the economic system to avoid the concentration of
wealth in a few hands.
2. They help secure equal pay for equal work for both men and women.
3. They secure suitable employment and healthy working conditions for
men, women, and children.
4. They guard the children against exploitation and moral degradation.
5. They are making adequate provisions for securing the right to work,
education, and public assistance in unemployment, old age, sickness,
and disablement.
6. They are making provisions for securing just and humane work
conditions and for maternity relief.

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7. They are taking steps to secure workers’ participation in the

management of undertakings etc.
8. They promote the education and economic interests of working sections
of the people, especially the SCs and STs.
9. They are securing all the workers’ reasonable leisure and cultural
opportunities.
10. They make efforts to raise the standard of living and public health.
11. They provide early childhood care and education to all children until
they complete six years.

● Some principles are based on the ideals advocated by Mahatma Gandhi. These
Principles are as follows.
1. To organize village Panchayats.
2. To promote cottage industries in rural areas.
3. To ban intoxicating drinks and drugs that are dangerous to health.
4. To preserve and improve the cattle breeds and prohibit the slaughter of
cows, calves, and other milch and animals.

● Directive Principles of State Policy that is related to International Peace And

Security: India renders active cooperation for global peace and security, and for
that, the state shall endeavor to
1. Promote international peace and security.
2. Maintain just and honorable relations between nations.
3. They foster respect for international laws and other treaty obligations.
4. They encourage settlements of international disputes by mutual
agreement.

● The Directive Principles also call upon the state.

1. Uniform civil code of our country.
2. To protect historical monuments.
3. To save the environment from pollution and protect wildlife.
4. Helps in making arrangements for disbursement of free legal justice
through suitable legislation.

Directive Principles On Education

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The government has been promoting education for everyone since independence. The
literacy rate in our country was only fourteen percent during the liberation.
1. The attempts have been successful in certain areas, mainly the big cities. Still, a
significant portion of the country is illiterates. The higher population of
illiterate people are between the age of fifteen to thirty-five.
2. Since the nineteenth century, the government has launched many educational
programs and missions to promote the illiteracy urge throughout the country.
3. DPSP articles have supported the government to provide education for the
underprivileged and other children deprived of academic training.
4. Several open and night schools have been established to reach out to primary
education and teach young children of various ages. The educational policies
have proven that age has no barrier to learning and gaining basic academic
skills.
5. The 86th Amendment Act, 2002 list of Fundamental Rights under Article 21A
states that children under fourteen years will be given free and compulsory
education in government centers and schools.

Fundamental Rights And Directive Principles

The relationship between fundamental rights and the directive principles of state
policy are complementary to each other. The DPSP articles and the rights are both
developed and evolved based on the government’s attitude towards them equally. Both
sections of the article are dependent on each other, and they are the core of our
constitution.
The ordinary people and their popular demands are mainly considered via the
fundamental policies involved with the directive principles. Hence, the rights and the
regulations are also complementary to each other.
1. The socio-economic are much attended by the directive principles, which are
again supported by the fundamental rights section.
2. Child labor has been attempted to be critically ousted by the fundamental and
directive principle.
3. Several missions and principles promoted by these principles support education
and a proper development environment for deprived children.
4. The employment of children below fourteen years old is banned.

The state is desired to follow these fundamental rights and the directive principles of
the state policies. However, these DPSP articles are not enforceable by the
constitution; they form articles 36 to 51 of the constitution. And the fundamental
rights comprise articles 14 to 31 of the constitution.

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Fundamental Duties of Indian Constitution

In 1976, the Indian constitution of India added the fundamental duties of Indian
citizens. The Swaran Singh Committee has suggested adding fundamental duties, and
then these duties abide by the Indian Constitution. The Swaran Singh Committee was
constituted by the former prime minister Indira Gandhi. It was introduced just after the
proclamation of a national emergency in India.
However, In 2002, the Indian Constitution added one more fundamental duty 2002. It
was added to demonstrate the importance of education for the nation’s growth. So,
from 2002, there is one more Fundamental Duty added in the constitution, and 11
duties are listed. These fundamental duties are important to promote harmony in the
whole country. These duties are Abide by the Indian Constitution and are compulsory
to follow by every Indian citizen.
Need Of Fundamental Duties

India is a land rich in diversity. People belonging to different religions, regions, caste,
and creeds reside here. Hence, there was a need to maintain harmony and brotherhood
among all the citizens of India. To ensure that, the government framed certain
fundamental duties that all the citizens of India need to abide by. The main objectives
of fundamental duties were to play an important role in maintaining the unity,
integrity, and sovereignty of our country.
Swaran Singh Committee Recommendations

Amid the internal emergency, the Swaran Singh Committee was formed to
recommend that the then government incorporate their new idea of fundamental duties
in the constitution. The congress government acknowledged this recommendation.
Hence, it came into force in 1976. The recommendations were acknowledged by the
congress government and the 42nd constitutional amendment act of 1976 enacted it.
Only eight fundamental duties were recommended by the Swaran Singh Committee.
But the 42nd constitutional amendment act of 1976 included ten fundamental duties.
The recommendations provided by the committee which were not incorporated are:

● Refusal to observe or non-compliance with these fundamental duties would call

for punishment/penalty
● Any law imposing this penalty will not be challenged in court on the basis of a
violation of fundamental rights or a breach of any other provision of the
constitution
● Paying taxes should be enlisted as a fundamental duty

Article 51A of The Indian Constitution , or

11 Fundamental Duties mentioned in the Indian Constitution

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The fundamental duties can be listed as a key framework within the country.
1. Respect Ideals and Institutions

The concepts of respecting of national property are the National flag, National
Anthem, and the significant features of Nation. On the contrary, abide by the
constitution while demonstrating the structure of existing institutions.
2. Cherish the National freedom strugglers

Mentioned features enable us to cherish the following of nobles and their contribution
towards our country can be developed by the words with the enthusiast mindset. Apart
from this, the key framework that needs to apply through core perception towards the
country and clear objectives that decoratively verifies the overall structure.
3. Protect the Sovereignty

Protecting sovereignty along with facilitating through the Unity and Integrity of India
consist of the basic phenomena by conclusively applying the overall features. On the
contrary, the upholding of sovereignty identifies the united structure of India.
4. Defend the Nations

Fundamental duties enable the mindset to defend the nations during the demand of
nations’ protection in a formative structure while constructively accessing the key
framework. Moreover, it has persisted in rendering national service to own nations as
well as facilitating the integral structure within the country.
5. Promote the Harmony

Promoting harmony and sparkled the spirit among the citizens of India as a common
unity mindset while accessing the diversities such as religious, linguistic, and regional
mindset. On the contrary, advocating renouncing the derogatory helps in simplifying
the dignity of women in a constructive way for prior specifications.
6. Preserve the Heritage

The basic concept of the fundamental duties is obliged to preserve the existing
heritage and impart the valuable sections of this while advocating the composite
culture in an organized way. Along with this, the phenomenon that requires the
preservation belongs to the national heritage within the country.
7. Protect and improve the national Harmony

Protecting and improving the national harmony through the protection of natural
resources such as trees, lakes, rivers, wild animals, and compassion of living
creatures. Moreover, it is an essential part of the country.

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8. Develop the scientific temper

Developing the scientific temper among the humanitarian is the crucial part of
fundamental duties and enables the core perspective within humanism while
facilitating the spirit of inquiry and reforms. On the contrary, the basic phenomena
that are required for implementing the significance structure within the country are
just highlighting the core concept of developing innovation and modernization within
existing miniatures.
9. Protect the public property

Mentioned fundamental duties are entitled with the protection of public property and
adjust the rhythm for making the proper guidelines in a constructive mindset for
allowing the entire sections of public property. On the other hand, it enables the
humanitarian the significance of existing prosperity and allows the mindset that can
stand for the preservation of national property.
10. Strive against the Excellence

Mentioned rights have enabled the core perspective of striving for excellence against
the sphere of individuals as well as achievement of endeavors while forming the
existence of raising the higher levels. On the contrary, the essential part of this is to
strive against the collective study along with the entire phenomena of processing the
nation constantly through the effective mindset.
11. Imparting education opportunity to children

Mentioned fundamentals duties enable to advocate the relevance mindset relate to the
entire phenomena of providing the education to children aged six to fourteen age
groups. Moreover, the issues that assisted through the basic conception of imparting
education to every corner of the children.
Fundamental Duties: Non-enforceable and Non-justiciable

● The fundamental duties are non-enforceable and non-justiciable in nature

● No citizen can be penalised by a court for violating the fundamental duties
● Just like the directive principles of the state policy in the constitution,
fundamental duties are non-enforceable

Fundamental Duties: Prominent Features

● Fundamental duties are categorised into two

1. Moral Duties (e.g. cherishing the noble idea of the freedom struggle)
2. Civil duties(e.g. respect the institution and national flag/ national anthem)
● The Fundamental Duties are restricted to citizens only, whereas the
fundamental rights expands to all persons

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● The Constitution does not provide for their direct enforcement by courts but the
Parliament is free to enforce them by suitable legislation
● These duties also emphasise the values which have been a part of the Indian
practices

Fundamental Duties: Criticism

● Narrow Coverage: It covers only the essential duties. Voting, paying taxes, and
family planning does not come under this
● Ambiguous: Some of the duties are unclear and difficult to understand for a
layman. It includes Phrases like noble ideas, scientific temper, etc.
● Non-Justiciable: Due to their non-justiciable character, they have been depicted
as code of moral precepts by the critics.
● Reduced Significance: Insertion of Fundamental duties as an appendage to Part
IV of the Indian constitution has decreased their value and importance; they
should have been added after Part III so as to keep them on par with
Fundamental Rights.

Scope of Amending power of Parliament

The scope of the amending power of the Parliament in India is outlined in Article 368
of the Indian Constitution. This article confers upon the Parliament the authority to
amend various provisions of the Constitution. However, there are certain limitations
and procedures that need to be followed in exercising this power.

​ Subject Matter: The Parliament has the power to amend any part of the
Constitution, including its provisions related to fundamental rights, directive
principles of state policy, the federal structure, and the powers of the President
and Governors.
​
​ However, certain basic features of the Constitution, such as secularism,
democracy, and federalism, cannot be amended as they form its basic structure.
​
​ Procedure: The procedure for amending the Constitution is laid down in Article
368 itself. It requires that an amendment must be passed by each House of
Parliament with a special majority, which includes a two-thirds majority of the
members present and voting, as well as a majority of the total membership of
the House.
​
​ In certain cases, if the amendment affects the federal structure or the powers of
the states, it must also be ratified by at least half of the state legislatures.
​
​ Judicial Review: While the Parliament has wide powers to amend the
Constitution, the Supreme Court of India has the authority to review the
constitutional validity of the amendments.
​

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​ The Court can strike down an amendment if it violates the basic structure of
the Constitution or infringes upon fundamental rights.
​
​ Limitations: Although the Parliament's amending power is extensive, it is not
unlimited. As mentioned earlier, certain basic features of the Constitution
cannot be amended.
​
​ Additionally, amendments that seek to diminish the democratic or federal
character of the Constitution are subject to stricter scrutiny by the judiciary.

The amending power of the Parliament reflects the balance between maintaining the
integrity of the Constitution and allowing for necessary changes to meet the evolving
needs of society.

It provides a mechanism for the democratic and orderly modification of the

Constitution while upholding its fundamental principles and values.

Amendment Of Indian Constitution

The Indian Constitution recognizes the importance of adapting laws to the evolving
needs of society. Just as society changes, the law must also change to cater to the
welfare of the people. The Indian Constitution strikes a balance between flexibility
and rigidity. It is designed to accommodate amendments whenever the need arises.

The framers of the Constitution had the foresight to create a flexible framework that
can adapt to the changing times.

This ensures that the law can evolve alongside the nation. Article 368 of the
Constitution grants extensive powers to the Parliament to amend the Constitution in
any area they deem necessary.

The unlimited power of the Parliament to make amendments reflects the intention to
keep the Constitution relevant and responsive to the aspirations of the people.

It allows for modifications to be made in various aspects of the Constitution as and

when required.

By providing this mechanism, the Constitution ensures that the law remains in tune
with the dynamic nature of society, promoting the betterment of the people.

Amendment Of Indian Constitution Under Article 368

The process of amending the Indian Constitution is outlined in Article 368. The
procedure is as follows:

​ The amendment bill is introduced in both the Houses of Parliament.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

​ The bill must be passed by an absolute majority, which means it needs the
support of at least two-thirds of the members present and voting, even if there
are vacancies or absences.
​
​ If there is a disagreement between the two Houses, a joint meeting is not
convened.
​
​ Once the bill is passed by the required majority, it is sent to the President for
approval.
​
​ If the amendment affects any provisions mentioned in Article 368 itself, it must
also be ratified by at least half of the states.
​
​ This ratification is done through a decision passed by the state legislature.
However, this ratification must occur before the amended law is submitted to
the President for approval.

In summary, the amendment process under Article 368 involves the introduction and
passage of the bill in Parliament, approval by the President, and, if necessary,
ratification by the state legislatures.

What is the basic structure doctrine?

● In 1973, a 13-judge Constitution Bench ruled in Kesavananda Bharati v. State
of Kerala that Article 368 does not enable Parliament to amend the basic
framework of the document.
● The historic ruling came to be known as the basic structure doctrine — a
judicial principle that the Constitution has certain basic features that cannot be
altered or destroyed by amendments by Parliament.
● Over the years, various facets of the basic structure doctrine have evolved, and
are not openly defined by the judiciary.
Elements Of Basic structure:
The doctrine of basic structure though is not exactly defined but through its contents
which have been provided by the judicature clarifies a scope defining the frame or the
structure of the constitution. From time-to-time basic structure is enhanced with some
new contents and hence the Supreme Court is yet to define the exact basic structure of
the constitution.

● Supremacy of the constitution

● Rule of law

● Sovereignty, liberty and republic nature of Indian polity.

● Judicial review

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

● Harmony and Balance between fundamental rights and directive

principles.

● Separation of power.

● Federal character.

● Parliamentary system.

● Rule of equality.

● Unity and integrity of the nation.

● Free and fair elections. o Powers of SC under Article 32,136,142,147

● Power of HC under Article 226 and 227.

● Limited power of parliament to amend the constitution.

● Welfare state.

● Freedom and dignity of an individual.

● The Basic Structure concept got highlighted in various judgments of Supreme

Court such as Indira Nehru Gandhi, Minerva Mills, Waman Rao and
I.R.Coelho etc.

Significance of Basic Structure:

● The basic structure doctrine is a testimony to the theory of Constitutionalism

to prevent the damage to essence of COI by brute majority of the ruling
majority.

● The basic doctrine saved the Indian democracy as it acts as a limitation of

constituent power or else unlimited power of parliament might have turned
India into a totalitarian

● It helps us to retain the basic tenets of our constitution so meticulously

framed by the founding fathers of our Constitution.

● It strengthens our democracy by delineating a true separation of power

where Judiciary is independent of other two organs. It has also given immense
untold unbridled power to Supreme Court and made it the most powerful court
in the world

● By restraining the amending powers of legislative organ of State, it

provided basic Rights to Citizens which no organ of State can overrule.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

● Being dynamic in nature, it is more progressive and open to changes in time

unlike the rigid nature of earlier judgements.

How did the basic structure doctrine evolve?

● Shankari Prasad Case (1951) – The Court upheld that under Article 368,
the Parliament has the power to amend the Constitution including the
Fundamental rights.
● Sajjan Singh v. State of Rajasthan (1965) – The Court reiterated the
Parliament’s power to amend any part of the Constitution.
● I.C. Golak Nath v. State of Punjab (1967) - The Supreme Court held that
Parliament could not curtail fundamental rights guaranteed under the
Constitution.
● The term ‘basic structure’ was first used in this case, by lawyer M.K Nambyar.
● The then government enacted the 24th, 25th and 29th Constitutional
(Amendment) Acts that gave Parliament uncontrolled power to alter or even
abolish any fundamental right.
● Kesavananda Bharti Case (1973) - The Supreme Court held that although
Parliament has the power to amend any part of the Constitution, it could not
use this power to alter or destroy its “basic structure”.
● The verdict also made it clear that judicial review was only part of a system of
checks and balances to ensure constitutional functionaries do not exceed their
limits.
● Indira Gandhi v. Raj Narain (1975) - The basic structure theory was applied
for the first time and the independent conduct of elections was categorized as
basic structure
● Minerva Mills case (1980) - It pertained to the 42nd Amendment Act
introduced by the Indira Gandhi government.
● In a majority verdict, the top court upheld the power of judicial review of
constitutional amendments.
● Waman Rao case 1981- SC clarified that doctrine would be apply to
constitutional amendments enacted after April 24, 1973 (Kesavananda Bharati
case) (Including 9th schedule)

What are the criticisms of theBasic structure doctrine?

● Judicial overreach - Its critics believe that the doctrine gives the judiciary the
power to impose itself over a democratically formed government.
○ For instance, the NJAC judgment in 2015 has been termed as the
“tyranny of the unelected”.
● Separation of powers - It is said to be inconsistent with the principle of
separation of powers.
● Vague - Basic structure doctrine is criticised for its vagueness as it has been
left open before the judiciary to decide the same on the case to case basis.

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha
ASWIN JOSHY P , PH - 7909173116

○ In Kesavananda Bharti v. State of Kerala, each of the judges on the

bench had their own conclusion.
● Basic nature - A doctrine in Constitutional sense can only be said
Constitutional when it has a Constitutional genesis thus raising the question “Is
the doctrine of basic structure really basic?”

Constitutional Law 1 Notes by Aswin Joshy P . BA LLB @ Al Azhar Law College Thodupuzha