NOTES ON CONSTITUTIONAL LAW

[SHAILESH SINGH SIR]

PROTOTYPE

CONTENTS –

 SCHEME OF FUNDAMENTAL RIGHTS

 ORDER / HIERARCHY OF RIGHTS
 CONCEPTS / THEORIES OF RIGHTS
 HISTORICAL CONTEXT – HUMAN RIGHTS EVOLUTION
 CHARACTERISTICS OF FUNDAMENTAL RIGHTS
 ARTICLE 12 – THE STATE
1. SCHEME OF FUNDAMENTAL RIGHTS
6 FUNDAMENTAL RIGHTS –

i. RIGHT TO EQUALITY [ARTICLE 14-18]

ii. RIGHT TO FREEDOM [ ARTICLE 19-22]

iii. RIGHT AGAINST EXPLOITATION [ ARTICLE 23-24]

iv. RIGHT TO FREEDOM OF RELIGION [ ARTICLE 25-28]

v. CULTURAL AND EDUCATIONAL RIGHTS [ARTICLE 29-30]

vi. RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLE 32]

2. ORDER OF RIGHTS
i. DIVINE RIGHTS

ii. NATURAL RIGHTS

iii. HUMAN RIGHTS ( based on dignity; Concept of Right & Wrong)

iv. CONSTITUTIONAL RIGHTS

v. FUNDAMENTAL RIGHTS

vi. LEGAL RIGHTS

3. HISTORICAL CONTEXT – HUMAN RIGHTS EVOLUTION

4. CHARACTERISTICS OF FUNDAMENTAL RIGHTS
 Guaranteed by the State.
 Not absolute. Could be amended or repealed.
 Amended on the grounds of Reasonable Classification.
 Available to the people against the State.
 The Statutory Support ( Article 17 & 21A)
- ARTICLE 21 A [86TH AMENDMENT ACT]
- ARTICLE 51 A & 51 a
- RIGHT TO EDUCATION ACT, 2005
- ARTICLE 17 – End of Untouchability
- The Scheduled Caste and Scheduled Tribes (Protection) Act,
1989
 Nature of Fundamental Rights – These are negative rights, i.e.,
they prohibit the State, whereas the Directive Principles are the
positive rights, i.e., they enforce the State. All Fundamental Rights
are negative rights except Article 19.
 All Fundamental Rights are available to the citizens against the
State.
 STRIKING BALANCE between the individual liberty and social
need.
 Public welfare and social control ; not absolute.
 Suspension of Fundamental Rights –
- There are certain provisions – Article 33, 34, 368, 352, Article
358 (suspends Article 19), Article 359 (suspends Article 20,21)
- Article 358 – Basic Structure ; Absolute power of Parliament
- Restriction – Rights must be justifiable and reasonable.
 - Article 34 – MARSHALL LAW
- Article 33 – MILITARY LAW 1930; NAVY LAW 1940; AIR FORCE
1940.

5. ARTICLE 12 – THE STATE

According to the Definition of the state under Article 12, the State
includes –

- Government and Parliament of India

- Government and Legislature of Each State
- Local Authorities
- Other Authorities

 Reference – GOVERNMENT CLAUSES ACT, 1897

- Section 3 (8) b (i) & (iii)
- Section 3 (60) (c) – Government means Governor of State
Government
 EJUSDEM GENERIS (Latin term)
- Same functioning body
- Local Authorities – Local Officer – Those officers appointed by
Central as well as State Government.
 OTHER AUTHORITIES – MULTIPLE INTERPRETATION

CASE – University of Madras v. Shanta Devi (1945)

CASE – Asha Lata v. Vikram University (1961)

CASE – Mohan Singh v. Pepsu (1954)

 - Those bodies that are constitutional and lawful, can function
their powers.
- High Courts decided that if any body uses its provided powers
(constitutional or lawful), it can be considered as other
authorities under article 12.
- Source of law in the world is ROME.
- The Supreme Court rejected the EJUSDEM GENERIS saying that
any body cannot be defined as an other authority.

REJECTION OF APPLICATION OF PRINCIPLE OF EJUSDEM GENERIS

CASE – Sukhdev Singh v. Bhagat Ram (1975)

CASE – Raman Dayaram Shetty v. International Airport Authority

of India (1979)

CASE – Sabhajit Tiwari v. Union of India (1975)

CHARACTERISTICS TO BE A STATE –

- Capital Government – whole expenditure by Government itself

- Guardianship / Full Protection
- Overall control by the Government
- If it is the Department of the Government, it would work as an
Other Authority, else a Public Sector

CASE – Somprakash Rekhi v. Union of India (1981)

- The Government Company is an authority

- The Registered Company is an authority
CASE – M. M. Ahmed & Company v. Union of India (1992)

- Any other authority constituted by the Indian legislation

- Cooperative Society – New Trend of State ; controlled by the
State as well.

CASE – P. Bhakaran v. Additional Secretary Department of Thiruvan

(1986)

CASE – P. K. Ramchandra Iyyer v. Union of India

CASE – Lena Khan v. Union of India

- Agencies
- Istomentalities , considered as EJUSDEM GENERIS
- Banking Act made by the Parliament

Whether the Judiciary is a State in itself? Is the judiciary included in

the word STATE?

CASE – Virginia v. Rives (1880 / 100 US 313)

- The Fundamental Rights are protected by the judiciary.

CASE – Premchand Garg v. Excise Commissioner (1963)

- Supreme Court held that the rules & regulations made by

judiciary are unconstitutional if they are against Fundamental
Rights

CASE – Budhan Choudhary v. State of Bihar (1955)

- The judiciary would be bound if it is included in the STATE

- Independence of Judiciary is necessary for separation of power
CASE – Naresh Shridhar Mirajkar v. State of Maharashtra (1967)

- The question ‘whether the judiciary is a STATE’ first arose in

this case
- The court did not give any certain decision
- The judiciary is not liable for remedies
- As per M. Hidayatullah J.,
If Judiciary is administrative, it could be challenged
[Article 12]
If Judiciary is judicial, it could not be challenged [ARTICLE
32]

CASE – A. R. Antulay v. R. S. Nayak (1988)

- Any decision against the Fundamental Rights, will be void after

declaration
- According to Article 32, Supreme Court is not held liable for any
remedy regarding the decision

ARTICLE 13 (1) – PRE-CONSTITUTIONAL LAW

ARTICLE 13 (2) – POST-CONSTITUTIONAL LAW

CASE HIERARCHY REGARDING JUDICIAL REVIEW –

CASE – Marbury v. Madison (1803)

- This case removed the absence of Judicial Review

 - As per MARSHALL J. – The Apex Court has the power to review
any decision, an addition to the system of ‘Check and balance’
- Objective – To prevent any one branch of Federal Government
from becoming too powerful

CASE – A. K. Gopalan v. State of Madras (1950)

- As per KANIYA J. – Article 13 is actually a warning

- If this article did not exist, still judiciary holds the right to
review any provision or law
- Article 13 does not affect the absolute power of judiciary

CASE – Keshwanand Bharti v. State of Kerela (1973)

- As per KHANNA J. – For the sake and regulation of the Federal

Structure, Judicial review is mandatory

CASE – Smt. Indira Nehru Gandhi v. Raj Narain (1975)

- As per A. N. RAY CJ. – He said that the power of judicial review

[Article 13] could be deducted through an amendment in
Article 368

CASE – L. Chandra v. Union of India (1991)

- Judicial Review under Article 13 is the basic structure of Indian

Constitution, i.e., any amendment in it can be further
challenged in the Apex Court

THE 2 TYPES OF EFFECTS UNDER ARTICLE 13 -

 RETROSPECTIVE EFFECT
 PROSPECTIVE EFFECT
 - The Fundamental Rights do not have Retrospective Effect

CASE – Keshav Madhav Menon v. State of Bombay (1955)

- Objective – To check whether the sections 15(1) and 18(1)

[read with – sections 2(6) and 2(10)] of the INDIAN PRESS
(EMERGENCY POWERS) ACT, 1931, were inconsistent with
ARTICLE 19(1)(a) [read with ARTICLE 19(2)]

CASE – Panna Rao v. Union of India

DOCTRINES RELATED TO ARTICLE 13 –

 DOCTRINE OF SEVERABILITY
- Also known as DOCTRINE OF SEPERABILITY
- Applicable to both Pre-Constitutional Law & Post-Consitutional
Law

CASE – R. M. D. Chamarbaugwalla v. Union of India (1957)

- The Supreme Court held with regards to interpretation of

ARTICLE 13(1) that was binding on all subordinate courts
- This case made the DOCTRINE OF SEVERABILITY the essential
part in interpretary clause of this Constitution
- After the separation of the particular unconstitutional part, if
the object of the law do not get affected
- Introduction of valid and invalid part of the law (Pre-
Constitutional OR Post-Constitutional)
- a. If both are separable – the valid part should be adopted and
invalid should be removed
 - b. If both are inseparable – the whole portion should be
removed
- Points to be kept in mind during the interpretation of the law –
Historical Background
Intention of the legislative body
Objective of the Act
Title of the Act [Short & Long both]
PREAMBLE

CASE – A. K. Gopalan v. State of Madras (1950)

- An Act should be unconstitutional to the extent of such

inconsistency, not the whole part
- PREVENTIVE DETENTION ACT – SECTION 14 –
The section of this Act was against the Fundamental
Rights
Section 14 was repealed as it was declared as
unconstitutional and, therefore, the Act was remained as
it was

CASE – State of Bombay v. F. N. Balsara (1951)

- MUMBAI DETENTION ACT –

A few sections were declared unconstitutional as they were
against the Article 19 (1)(f) of Fundamental Rights

CASE – A. P. Krishna Naidu v. State of Madras

- LAND REFORMS ACT, 1961 [Post-Constitutional]

- Article 14, 19, 31 (2) were affected by Section 5 and Section 50
of this Act
- Supreme Court declared section 5 & 50 as unconstitutional
 - As per Article 13(2), not only the overlapping provision, but the
whole Act was declared invalid
 DOCTRINE OF ECLIPSE
Regarding ARTICLE 13(1)

CASE – Bhikhaji Narain Dhakras v. State of Madhya Pradesh (1985)

- The MOTOR VEHICLES ACT, 1939 was amended by the C. P. &

BERAR MOTOR VEHICLES (AMENDMENT) ACT, 1947, which the
petitioners in this case contested as unconstitutional
- The C. P. & BERAR MOTOR VEHICLES (AMENDMENT) ACT, 1947
permits the State to control over transportation at 100%
- Article 19 (1)(g) – Right To Freedom of Trade, Business and
Occupation
- In 1st Constitutional Amendment Act, 1951, clause (6) was
added to Article 19
- Article 19(6) puts restriction on Article 19 (1)(g)

CASE – Ramchandra Palai v. State of Orissa

- ORISSA MOTOR VEHICLES ACT, 1947

- Some decisions of previous case were followed

Regarding ARTICLE 13(2)

CASE – Sageer Ahmed v. State of Uttar Pradesh (1954)

- UP ROADWAYS ACT, 1951

- After 1ST CAA, 1951, clause (6) was added (mentioned above)

CASE – Deep Chandra v. State of UP

 - As per SABBA RAO J. – There is a huge difference between
ARTICLE 13(1) & ARTICLE 13(2), in relevance of the DOCTRINE
OF ECLIPSE
- If amendment is within the invalid part – then DOCTRINE OF
SEVERABILITY is applied
- If amendment is occurred in Parliament – then DOCTRINE OF
ECLIPSE is applied

Other Case References –

CASE – Mahendra Lal v. State of UP (1963)

CASE – A. P. Krishna Naidu v. State of Madras

CASE – Jagannath v. Authorised Officer (1962)

CASE – State of Gujarat v. Ambika Mills (1972)

CASE – D. Rani Reddy v. State of Andhra Pradesh (1974)

 DOCTRINE OF WAIVER
- Any ‘citizen’ or ‘person’ cannot waive off any Fundamental
Right provided to him/her – In Indian Reference

CASE – Behram Khurshid Pesikaka v. State of Bombay (1955)

- This was the next significant case that addressed the

relationship between Article 13(1) and the justification of Pre-
Constitutional Laws that violated the Fundamental Rights
(1955)
- BOMBAY PROHIBITION ACT, 1949 – Section 66(b) was used to
accuse the appellant
 - This case stated that the Nature of Fundamental Rights are
collective with INDIVIDUALISM
- Fundamental Rights are subject-matter to the Public Policy

Other Case References –

CASE – Basheshar Nath v. Income Tax Commissioner (1959)

CASE – Muttaiah v. Income Tax Commissioner (1955)

CASE – Olga Tellis & Ors v. Bombay Municipal Corporation & Ors (1985)

 DOCTRINE OF REASONABLE CLASSIFICATION

- SOCIAL MORALITY AND CONSTITUTIONAL MORALITY
- It does not mean that the same law(s) being applied to
different persons
- However, this doctrine is not permitted, but considered as
necessary

Case References –

CASE – Charanjeet Lal v. Union of India (1951)

CASE – Abdul Rahman v. Pinto (1951)

CASE – State of Bombay v. F. N. Balsara

CASE – Kedarnath v. State of West Bengal

CASE – Jagjit Singh v. The State (1954)

- First described the Doctrine

CASE – R. K. Garg v. Union of India (1981)

CASE – R. C. Cooper v. Union of India (1970)

CASE – Air India v. Nargis Mirza (1981)

 CLASS LEGISLATION
 PURPOSE OF LEGISLATION
 INTELLIGIBLE DIFFERENTIA – Classification must be done on
reasonable grounds
 GENDER – A Class Legislation
 REGION
 HISTORICAL GROUND
 BUSINESS, TRADE AND DURATION

RATIONAL RELATION BETWEEN DIFFERENTIA & OBJECT OF THE LAW

CASE – Kathi Raning Rawat v. State of Swarashtra (1952)

CASE – Harak Chand v. Union of India

CASE – Ramkrishna Dalmia v. Tendulkar J. (1988)

CASE – Re Special Courts Bill (1975)

- When the Constitution answers as per the Court Interpretation,

- GENDER
- REGION
- SPECIAL COURT(S)
- TAXATION LAWS
- OBJECT
PART IV – DUTIES OF STATE

PART V – DUTIES OF CITIZEN

 THE SWARN SINGH COMMITTEE

- ARTICLE 51(A) was added through the 42nd Constitutional
Amendment Act, 1976
- The 86th Constitutional Amendment Act, 2002 - The 11th duty
was added to the original 10 Fundamental Duties
- JAPANESE CONSTITUTION included initially the Fundamental
Duties within it
- According to the Indian Constitution, the Fundamental Duties
are not enforceable, unless there is any respective law

CASE – Surya Narayan v. Union of India (1952)

- The Supreme Court held that the Fundamental Duties are not
Public Duties, but are Individual Duties for citizens
- Public Duties – The duties performed by the Public served
- The IRISH CONSTITUTION – The basic source of the DIRECTIVE
PRINCIPLES OF STATE POLICY
- The Conceptual Source of the Fundamental Duties –
ARTHASHASHTRA (BY KAUTILYA)
 CLASSIFICATION –
- Principle as to Social Order [Article 38 – 39(d)] & Economic
Needs
- Organisation
- Social Justice – The PREAMBLE
- Fundamental Duties –
 42nd Constitutional Amendment Act, 1976 – Included
Article 51(A)
86th Constitutional Amendment Act, 2002 – Addition of
clause (k), i.e., the 11th Fundamental duty

 2 FUNCTIONS OF STATE –
- The CONSTITUTIONAL FUNCTION
- THE ADMINISTRATIVE FUNCTION

 ARTICLE 39(a) – MINIMUM WAGES ACT

 ARTICLE 41 –
- Economy of State depends upon consolidated factors
- Right To Work is a Fundamental Duty as well
- Development of Infrastructure ( For Education)

CASE – State of Madras v. Champakam Dorairajan (1951)

- Status of Directive Principles of State Policy (DPSP) in relation

to Fundamental Rights
- Articles in reference –
ARTICLE 29(2)
ARTICLE 46
ARTICLE 15(4)
ARTICLE 37
 - TOTAL DIVISIONS OF CLASSES – 14 (EDUCATIONAL INSTITUTES)
6 – reserved for Non-Brahmins
2 – reserved for Brahmins
2 – reserved for Backwards
2 – reserved for Harijans
1 – reserved for Anglo-Indians & Christians
1 – reserved for Muslims

CASE – Mohammad Haneef Qureshi v. State of Bihar (1958)

- DPSP should be implemented, but it should be taken in

awareness if the Fundamental Rights are not violated
- 25th Constitutional Amendment Act, 1971 - Related Articles –
31(c), 14, 19, 31, 39(b), 39(c)
- 42nd Constitutional Amendment Act, 1976

CASE – Unikrishnan v. State of Andhra Pradesh

- Relation between the FRs and DPSP was described in this case
- DPSP and FRs are complimentary as well as supplementary to
each other (As per the SC verdict)

CASE – Ashok Kumar v. State of Uttar Pradesh Gupta

- ARTICLE 38 is not only the DPSP. It is indeed a Fundamental

Right, as per ARTICLE 21 (A Judicial Approach).