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LL.B. Semester - II

108 - CONSTITUTIONAL LAW- I

Source : Internet. Dedicated to students of the subject.

11-Apr-2016. Version-1.4. Compiled by ketan.bhatt@iitbombay.org for his

personal use.

Gujarat University Syllabus is in BOLD text. References to questions listed

herein below, are to such questions which were asked in Gujarat University examinations.

OBJECTIVES :

India is a democracy and her Constitution embodies the main principles of the

democratic government — how it comes into being, what are its powers, functions, responsibilities and obligations how power is limited and distributed. Whatever might have been the original power base of the construction today it seems to have acquired legitimacy as a highest norm of public law. A good understanding of the Constitution and the law, which has developed through constitutional amendments, judicial decisions, constitutional practice and conventions is therefore, absolutely necessary for a student of law. He must also know the genesis, nature and special features and be aware of the social, political and economic influence of the Constitution.

The purpose of teaching constitutional law is highlight it never ending growth.

Constitutional interpretation is bound to be influenced by one’s social, economic of political predilections. A student must, therefore, learn how various interpretations of the constitution are possible and why significant interrelation was adopted in a particular situation. Such a critical approach is necessary requirement in the study of constitutional law.

Judicial review is an important aspect of constitutional law. India is the only

country where the judiciary has the power to review even constitutional amendments. The application of basic structure objective in the evaluation of executive actions is an interesting development of Indian constitutional law. The concept of secularism and federalism engraved in the constitution are, and are to be interpreted progressively.

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CONTENTS

Module-1)

Preamble of the Constitution :

Module-2)

Fundamental Rights - I :

Module-3)

Fundamental Rights – II :

Module-4)

Directive Principles of State Policy and Fundamental

Duties :

SYLLABUS :

Q : 2014 : Discuss the citizenship and acquisition and termination under

constitution as well as citizenship act 1955

ANS : Refer to page--- of notes on “political science”

Module-1) Preamble of the Constitution :

1)Preamble 1

2)Preamble 1

: purpose, objectives importance

– Whether a part of the Constitution, Application of

Basic Structure Theory to the Preamble -

3)Amendment 1

made in the Preamble : Effects thereof

4)Use 1

of Preamble in Interpretation of Constitutional

Provisions

5)Salient 1

Features of the Constitution of India

Module-1 Questions :

Q : Explain purpose, objectives and importance of Preamble

Q : 2012, 5 : What is preamble ? Is preamble part of constitution? How far

is the preamble useful in interpreting the constitution?

Q : 2013 : Write short note : Use of preamble in interpretation of

constitutional provisions.

Q : 2015 : Explain : basic structure theory to the preamble / power of

parliament to amend the constitution.

Q : 2013 : Write the preamble of the constitution. What amendments have

been made by 42nd constitution amendment act 1976

Q : 2012 : Describe the main characteristics of the constitution of India.

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Q : 2013 : Explain in detail the salient features of the constitution of

India.

Q : Discuss : Independence of the judiciary.

Q : 2013 : Write short note : Federalism.

Q : 2015 : “Constitution of India is quasi-federal” Discuss.

Q : 2014 : “Indian constitution can be both unitary as well as federal

according to the requirement of time and circumstances” Discuss.

Go To Contents.

Module-1 ANSWERS :

Q : Explain purpose, objectives and importance of Preamble

Ans
Ans

:

What is Preamble?

:

The word 'constitution' comes from the latin word “constitution”. The constitution of India is the fundamental law which establishes the character of the nation and the government and the preamble defines the basic principles of governance.

- It is thus, the most basic law of the nation from all other laws are derived

Text of Preamble

:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a sovereign socialist secular democratic republic

and to to secure to all its citizens :

JUSTICE social, economic and political

LIBERTY of thought, expression, belief, faith and worship,

EQUALITY of status and of opportunity

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and to promote among them all,

FRATERNITY, assuring the dignity of the individual and, the unity and integrity of the nation;

In our Constituent Assembly, this twenty-sixth day of November,

1949,

DO hereby adopt, enact and give to ourselves this constitution.

Explain purpose, objectives and importance of Preamble

:

“WE, the people of India” signifies the source from which the constitution came in to existence, namely the people of India. It means that the political power of the Indian Republic, ultimately vests with the people themselves. It also means that the constitution was not imposed by any force external to India. At the same time it be also noted that, in reality the constitution was framed by the Constituent Assembly which was elected by very limited franchisee and as Justice Mathew once observed, the Constituent Assembly represented, at the most, mere 28.5% of Indian adult population.

Secondly, the preamble throws light on aims and objects of the constitution. The declared object of the constitution is to secure for all its citizens, Justice, Liberty, Equality and Fraternity, which are also popularly known as four pillars of preamble to the constitution.

Here follows brief narratives for various principles of governance as documented in the form of preamble to the constitution.

SOVEREIGN : India is a sovereign, because its constitution does not recognize superiority of any authority other than “WE the people of India”. i.e. sovereignty resides with people of India. In effect it means that India is inherently powerful to legislate for itself without any external influence whatsoever.

NB : It should be noted that neither India's membership of United Nations, nor its membership of Commonwealth Nations is, in any way, a limitation on India's sovereignty,

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DEMOCRATIC : Fundamental principle of democracy is that nation's governance is carried for the benefit of people and that the mass of adult population has a share in governance of the nation. In India, our democracy is indirect or representative democracy where in the electorate choose their representatives who form the government and also legislate for the nation.

SOCIALIST : This phrase was not part of the preamble when the constitution was adopted in 1949, however it was added by 42 nd amendment in 1976 on the recommendations of the Swaran Singh committee to highlight the concept of socialism which had always have been an inherent principle of governance. Socialism in the sense of “classless society” and economic empowerment of the vulnerable segments of the society is an important feature of Indian Constitution.

SECULAR : This phrase was not part of the preamble when the constitution was adopted in 1949, however it was added by 42 nd amendment in 1976 to emphasis the secular nature of the state. Here the term 'secular' does not mean 'irreligious'. It means state shall be religion neutral and that there shall not be any official religion of the state and that all citizens are at liberty to practice and profess a religion of their choice.

REPUBLIC : The term 'republic' has two connotation. In the narrower sense it means opposite of monarchy. And in wider sense, republic means a government where no single person holds the public power as a proprietary right, but all the power is exercised for the common good. People of India are the subjects as well as free citizens at the same time.

SOCIAL JUSTICE : Social justice and equality are complimentary to each other. “Rule of la” is the patent instrument of social justice to bring about equality. For example, human working condition, ban on forcer labor, abolition of titles, etc are programmes of social justice.

LIBERTY : The constitution regards liberty of thought, expression, belief, faith and worship to be essential to the development of individual and

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the nation and therefore this important principle has found its place in preamble itself.

EQUALITY : Equality of status and opportunity is also one important object of our constitution. Accordingly, discrimination by state between citizens merely on the grounds of race, religion, caste, creed, sex, place of birth is illegal and that all public places are thrown open for all citizens and constitution guarantees, all citizens, equality before law and equal protection of law, as justiciable right.

FRATERNITY : Although all the ideals mentioned in the preamble have reference to basic human needs, the ideal of 'fraternity' is of special significance in a country that is as vast and diverse as India. Fraternity requires sharing of feeling of commonness and concern for one another. In order to counter the disruptive forces of regionalism, communalism, and linguistic divisiveness, it was very wise decision of Constituent Assembly to adopt the spirit of common brotherhood of all Indians as an essential ingredient in the interest of unity and integrity of the nation.

Go To Module-1 Questions.

Q : 2012, 5 : What is preamble ? Is preamble part of constitution? How far

is the preamble useful in interpreting the constitution?

Q : 2013 : Write short note : Use of preamble in interpretation of

constitutional provisions.

 

Ans
Ans

:

Text of Preamble :

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a sovereign socialist secular democratic republic

and to to secure to all its citizens :

JUSTICE social, economic and political

LIBERTY of thought, expression, belief, faith and worship,

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EQUALITY of status and of opportunity

and to promote among them all,

FRATERNITY, assuring the dignity of the individual and, the unity and integrity of the nation;

In our Constituent Assembly, this twenty-sixth day of November,

1949,

DO hereby adopt, enact and give to ourselves this constitution.

IS Preamble a part of the constitution ? Use of preamble in interpretation

of constitutional provisions

:
:

It is a well established rule of interpretation that it is only when a law is ambiguous (ie not clear), that a preamble can be used to throw light on the express provisions of the enactment. However, when the enactment itself is expressed in clear and unambiguous terms, preamble can not be used to create an imaginary issue/ ambiguity to draw a clarification from the preamble, as doing so would mean frustration of the main enactment itself. (Gopalan -vs- State of

Madras,

1950
1950

).

1950 . In Gopalan's case it was contended that, since the preamble seeks to give India a democratic constitution, Art-21 should be read in such a way as to invalidate any law which is opposed to the principle of natural justice. However, in Gopalan's case the SC rejected the contention and observed that the term 'law' in Art-21 refers to positive/ state made law ONLY.

1960. In Re. Berubari Union (and exchange of enclaves) case the SC observed that the preamble can not control the unambiguous language of the constitution. However, the preamble to the constitution is a “KEY to open the minds of its makers”. Nevertheless, the preamble is NOT a part of the constitution.

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1967. In Golaknath v.s State of Punjab case the Supreme Court held that- the Preamble contained in nutshell the idea and aspiration of the constitution.

1973. Subsequently, in the Keshavananda Bharti -vs- State of Kerala

( 1973
(
1973

), a majority of the full bench of the SC conclusively resolved the

issue by holding that the objectives stated in the preamble reflect the BASIC STRUCTURE of the constitution which can not be amended by exercising the power of amendment under Art-368 of the Constitution. And that the preamble is indeed a part of the constitution.

It is noteworthy that, reliance on preamble by the SC is reflected, inter alia, in following cases :

1982. SC relied upon the preamble, Art-14 and Art-16 to come to a

conclusion that Directive Priinciple contained in Art-39A proving for

equal pay for equal work is infact a constitutional right (Randhir Singh -vs- Union of India)

1983. The SC had no hesitation in striking down a statute as

violative of Art-14, read with the preamble which lays down a socialist goal(D S Nakara -vs- Union of India

1984. SC in the case of Pradeep Jain -vs- Union of Indiarelied upon

the words “integrity of India” to support its decision in that case.

Go To Module-1 Questions.

Q : 2015 : Explain : basic structure theory to the preamble / power of

parliament to amend the constitution.

 Ans :
Ans
:

Amendments in constitution at time become necessary to adapt to the changing needs of nation, to overcome the difficulties which may encounter in future in working of the constitution and to realize any popular demand for changing the political system e.g State reorganization, special provisions of ST SCs, lowering of age for voting etc.

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However the amendment of constitution have often been used to achieve political purposes or to override judicial verdicts.

For providing the compatibility of Constitution with the changing society needs, constitution makers provided the Art 368 - Power of Parliament to amend the Constitution. Procedure for the purpose fall under 3 categories.

(a)

Amendment by Simple Majority.

(b)

Amendment by special Majority.

(c)

Amendment by special majority and rectification by states.

Sankari parsad V/s Union of India AIR 1951 SC 455 : This is the case which in route the theory of Basic Structure, in this case SC held that

• The power to amend the Constitution including the fundamental rights is contained in the Art 368,

• And that the word “Law” in Art 13 includes only an ordinary law and does not include constitutional amendment which is made in exercise of constituent power.

• i.e. Parliament is empowered to amend the constitution so as to compromise fundamental rights of citizens

In Sajjan Singh v/s State of Punjab, SC held that the word amendment of constitution means amendment of all the provisions of constitution, include Part-III, the fundamental rights.

Golak Nath V/s State of Punjab AIR 1971 SC 1643

• SC held that Parliament cannot amend the FR,

• SC rejected the argument- Amendment of Constitution was Sovereign Power without any implied limitation.

Kesavananda Bharti’s V/s State of kerela AIR 1973 SC 1461 : This is the case in which the theory of Basic Structure emerged for the first time.

• The Golak Nath Case was overruled, and SC held that Art 368, even before 24th Amendment contained the power as well as procedure of amendment.

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• The Parliament has a wide powers of amending the constitution but these powers are not of unlimited nature, and powers under Art-368 does not

include the power to destroy or abrogate the “Basic feature of

constitution”.

Basic Structure Theory : According to Sikri, CJ, the basic structure was build on the basic foundation i.e. the freedom and dignity of the individual, the feature of Basic Structure Theory are :

a. Supremacy of Constitution.

b. Republican and Democratic form of Government and sovereign of

the country.

c. Secular and federal character of Constitution and

d. Separation of power between Legislature, executive and

Judiciary.

According to Shelat and Grover, J.J Basic Structure Theory also included :

a. Fundamental Right

b. Directive Principle.

Indira Gandhi V/s Raj Narain AIR 1975 SC 2299 : In this case 39th Amendment 1975 was passed by parliament for validating with retrospective effect the election of PM Indira Gandhi which was declared invalid by Allahabad High Court on the ground of having committed corrupt practice. As a result, a new article 329A was added to provid that the election of a person who holds the office of PM can be challenged only before such a body or forum as may be established by Parliament by law and not in court.

The SC in this case enlarged the list of Basic Structure which had emerged in Keshavanand Bharti’s Case :

a. Sovereign democratic republic status

b. Equality of status and opportunity of an individual

c. Secularism and freedom of conscience and religion

d. 'government of laws and not of men' i.e. the rule of law

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Minerva Mills V/s Union of India AIR 1980 SC 1789 : SC struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending

power itself is a basic feature of the Constitution

L. Chandra Kumar case : "That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".

Conclusion :

- Now we can say, there is no hard and fast rule for basic feature of the Constitution.

- Different judge keep different views regarding to theory of basis structure.

However, it is a settled position that "No law can be enacted or amended in a manner that violates the spirit of the preamble"

Go To Module-1 Questions.

Q : 2013 : Write the preamble of the constitution. What amendments have

been made by 42 nd constitution amendment act 1976?

 Ans :
Ans
:

42 nd Constitutional Amendment

:

42 nd Constitutional Amendment was enacted during the Emergency (25 June 1975 – 21 March 1977) by the Indian National Congress government headed by Indira Gandhi. The 42 nd Amendment is regarded as the most controversial constitutional amendment in Indian history. This amendment brought about the most widespread changes to the Constitution in its history, and is sometimes called a "mini-Constitution" or the "Constitution of Indira".

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Then Prime Minister Indira Gandhi set up a committee in 1976 under the Chairmanship of then Minister of External Affairs Swaran Singh "to study the question of amendment of the Constitution in the light of experience"

Objective

- The amendment removed election disputes from the purview of the courts.

- The amendment transferred more power from the state governments to the central government, eroding India's federal structure.

- The third purpose of the amendment was to give Parliament

unrestrained power to amend any parts of the Constitution, without judicial review.

- The fourth purpose was to make any law passed in pursuance of a Directive Principle immune from scrutiny by the Supreme Court.

Almost all parts of the Constitution, including the Preamble and amending clause, were changed by the 42nd Amendment, and some new articles and sections were inserted.

- The 42 nd Amendment amended the Preamble and changed the

description of India from "sovereign democratic republic" to a "sovereign, socialist secular democratic republic", and also changed the words "unity of the nation" to "unity and integrity of the

nation".

- The amendment stripped the Supreme Court of many of its

powers and moved the political system toward parliamentary sovereignty.

- It curtailed democratic rights in the country, and gave sweeping powers to the Prime Minister's Office.

- It gave primacy to the Directive Principles, by stating that "no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights".

- The amendment gave Parliament unrestrained power to amend

any parts of the Constitution, without judicial review. This essentially invalidated the Supreme Court's ruling in Kesavananda Bharati v. State of Kerala in 1973. The amendment to article 368

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[5] prevented any constitutional amendment from being "called in question in any Court on any ground". It also declared that there would be no limitation whatever on the constituent power of Parliament to amend the Constitution

- It transferred more power from the state governments to the central government, eroding India's federal structure.

- The 42nd Amendment also added a new section to the Article on

"Fundamental Duties" in the Constitution. The new section required citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities."

The Act was passed in accordance with the provisions of Article 368 of the Constitution, and was ratified by more than half of the State Legislatures, as required under Clause (2) of the said article.

Partial restoration to position prevailing before 42 nd Amendment :

- The Janata government then brought about the 43rd and 44th

Amendments in 1977 and 1978 respectively, to restore the pre- 1976 position to some extent. However, due to lack of majority in Rajyasabha, the Janata Party was not able to fully achieve its objective of restoring the Constitution to the condition it was in before the Emergency. The 43rd and 44th Amendments repealed the 42nd Amendment's provision that Directive Principles take precedence over Fundamental Rights, and also curbed Parliament's power to legislate against "anti-national activities"

- 1980, in its judgment on Minerva Mills v. Union of India, the

Supreme Court declared unconstitutional two provisions of the 42nd Amendment which prevent any constitutional amendment from being "called in question in any Court on any ground" and accord precedence to the Directive Principles of State Policy over the Fundamental Rights of individuals respectively. Justice Chandrachud wrote, "Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic

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features of our Constitution and therefore, the limitations on that power can not be destroyed

Go To Module-1 Questions.

Q : 2012 : Describe the main characteristics of the constitution of India.

Q : 2013 : Explain in detail the salient features of the constitution of

India. Ans :
India.
Ans
:

India as a nation came in to being due to union of some 552 independent states with the rest of the India under the constitution. The success of Indian federalism and Union-State relationships are due to wisdom with which the constitution balanced distribution of powers, as a result of which the entire subcontinent of India has been unified and consolidated in to a compact nation in a manner which is unprecedented in the history.

Following may be said to be the salient features of Indian Constitution,

(1) Indian Constitution is one of the longest and detailed constitutional document. When it was enacted, it had 395 articles and 8 schedules. Today, after 100 amendments, there are nearly 500 articles and 12 schedules to the constitution of india. Word count of the constitution is nearly one-lakh. In contrast, constitution of USA has mere 7 articles.

(2) Indian constitution includes constitution of states as well.

(3) Indian constitution is federal in character and provides for a division of powers between union and states with strong center.

(4) Though Indian constitution is federal in nature, it is perhaps the most flexible of all federal constitutions. Most of the provisions of the constitution can be amended by the parliament and only in a few cases amendments need to be ratified by states.

(5) And attempt is made in the constitution to reconcile the theory of parliamentary sovereignty and the principle of the supremecy of the constitution.

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(6) The constitution makes provision for Directive principles which are fundamental in governance of the nation.

(7) The constitution contains elaborate provisions dealing with fundamental rights as well as fundamental duties of citizens.

(8) The constitution also provides for independent judiciary, having the power of judicial review. And the constitution also attempts to reconcile the principles of judicial review and parliamentary supremacy. Indian constitution wonderfully adopts the via media between (i) the American system of Judicial supremecy over legislatures, and (ii) English principle of parliamentary supremacy wherein judiciary is denied any power to sit as a court of appeal against parliament.

(9) Though, the constitution is federal in nature, it provides for single citizenship. There is nothing like separate citizenship of states (as in case of USA).

(10) Another important feature of our constitution is the concept of secular state with complete freedom of religion which infact is a fundamental right of citizen. There is no state religion.

(11) Another interesting feature of the constitution is that it super- imposes an elected president upon a cabinet system of government which is responsible to the parliament.

Go To Module-1 Questions.

Q : Discuss : Independence of the judiciary.

 Ans :
Ans
:

India has adopted a federal constitution with distribution of powers

between center and the states. An independent judiciary is the essence of the federal character of the constitution. It is imperative that the judiciary be impartial and independent of the legislative and executive branches of the country to ensure the functioning of the government in accordance with the constitution. The supreme court,

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being the guardian of the constitution, ensures that the fundamental rights of the citizens are not violated. To let the judiciary fulfill this big responsibility efficiently, the constitution has provided several measures that ensure the independence of the judiciary.

Appointment of the Judges : As of now, due to the decision in Judges

Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensure the independence of the judiciary.

The procedure of appointment of the Chief Justice and other judges

has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the supreme court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges.

Until 1973, the senior most judge of the supreme court was

appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ bypassing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word "consult" does not mean that the president is bound by the advise. He is free to make his own decision.

In 1977, in the case of Union of India vs Sankalchand Seth, which

was related to the transfer of a Judge from one high court to another under art 222, SC held that the President has the right to differ from the advice provided by the CJ.

1980 Judges Transfer Case 1 : In the case of S P Gupta vs Union of

India, 1982 SC unanimously agreed with the meaning of the word 'consultation' as determined in the Sankalchand's case. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive.

1982 Judges Transfer Case 2 : This matter was raised again in the

case of SC Advocates on Record Association vs Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high

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courts and supreme court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them.

1999 Judges Transfer Case 3 : A controversy arose again when the

CJ recommended the names for appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ without proper consultation with other judges is not binding on the govt.

Fixed Tenure :

A SC Judge has a fixed tenure until retirement age. He cannot be

removed except by a presidential order passed with a simple majority as well as by 2/3 majority of each house of the parliament present and voting. No judge has ever been removed by a presidential order in India. The proceedings to remove were started to Justice V Ramaswamy, but the motion was not approved because lack of required majority.

1995 In the case of C Ramachandran Iyer vs A N Bhattacharjee

1995, pressure was put the the local bar association on the judge to resign. In this case, the SC held that only the Chief Justice of the SC can be the prime mover of the action against erring judges. Thus, after this case, action against judges was allowed only through in-house procedures of the judiciary.

Salary :

The salary of the judges cannot be changed, after the appointment,

to their disadvantage.

Art 121 :

No discussion about the judges in the parliament is permitted,

except for the discussion about his removal.

Art 129 and 215 : Power to punish for its contempt :

The SC and the High Courts have the power to punish anybody for

civil and criminal contempt of itself under art 129 and 215.

Art 50 Separation of judiciary from executive :

Art 50 urges the state to take steps to separate the judiciary from

the executive in the public service of the state

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Art 124(7) Prohibition on practicing before any court :

Art 124 prohibits a retired judge from appearing and pleading

before any court or tribunal.

Go To Module-1 Questions.

Q : 2013 : Write short note : Federalism.

Q : 2015 : “Constitution of India is quasi-federal” Discuss.

Ans
Ans

:

Intro :

Typically, democratic constitutions are classified into two categories

- Unitary and Federal.

In a unitary constitution, all the powers are concentrated in a

central authority. The states or the constituents of the country are subordinate to such central authority.

In a federal constitution, powers are distributed among the center

and the states. States are not subordinates of the center.

A constitution should be called federal if it displays federal character

predominantly.

A constitution should be called unitory if it displays unitory

character predominantly.

Constitution of India is silent as to its nature, federal or unitary.

Unitary nature of Indian constitution

: Indian constitution incorporates

many features of a unitary state. The unitary features of Indian constitution are given below :

Article 1 of the Constitution describes India as a “Union of States.”

This means, India is a union comprising of various States which are integral parts of it. HOWEVER, the States of India can not break away from the union. They do not have the right to secede from the union. Which is a strong unitary feature because, in a true federation, the constituting units or the States have the freedom to come out of the union.

Constitution provides for single citizenship an integrated judiciary,

dominance of bureaucracy, uniformity at the top levels, and above all gives greater powers to the union Government.

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The Indian constitution sets up a very powerful union Government.

A

review of the division of powers in the Indian constitution clearly

shows strong bias in favor of the union Government and several limitations on the autonomy of state Governments. For example, during the proclamation of a national emergency the union government can legislate on the subjects in the state list and can control the executive powers of the state government.

It

is not only during an emergency that the Indian constitution

becomes unitary in character. Even in its normal working, the union Parliament can reorganize the states or alter the boundaries by a simple majority vote, even without the consent of the legislature of the state so affected.

In case there is a conflict between a union law and a state law, the

union law will prevail.

The state governors are appointed by the President.

State governments don’t have separate constitution of their own.

They derive their powers from the same constitution, i.e., the Constitution of India.

There is a single judicial system in India. The highest judicial forum

is

the Supreme Court. The high courts and other lower courts are

sub-ordinate to Supreme Court.

Residuary Powers : Unlike the US or the Pakistan provinces the

residuary powers has been given to the Union Government in the Indian Constitution. This is definitely a source of strength for the Centre.

Financial Dependence : On the whole, the states of the Indian

Union do not possess independent sources of income, but are dependent upon the Centre. Financial dependence of the Centre makes them dependent in policy and administration as well.

Single Administration system : Though there are Central and the

State public services, yet administrative system is on the whole one and integrated for the whole country. The All-Indian Services (Police and Administrative) are controlled by the Centre and their members hold key posts in the state Administrations.

Single Election Commission : Again there is one Election

Commission for conducting and supervising general elections all over the country.

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Federalism Defined :

Federalism constitutes a complex governmental mechanism for the

governance of a country. It seeks to draw a balance between the forces working in favour of concentration of power in the Centre and those urging a dispersal of it in a number of units.

A federal Constitution envisages a demarcation of governmental

functions and powers between the Centre and the regions by the sanction of the Constitution, which is a written document. From this follows two necessary consequences-

(i) That the invasion by one level of government on the area

assigned to the other level of the government is a breach of the Constitution.

(ii) That any breach of the Constitution is a justifiable issue to be

determined by the Courts as each level of government functions within the area assigned to it by the Constitution.

Federation is an association of states, which has been formed for

certain common purposes, but in which the member states retain a large measure of their original independence. A federal government exists when the powers of the government for a community are divided substantially according to a principle that there is a single independent authority for the whole area in respect of some matters and there are independent regional authorities for other matters, each set of authorities being co-ordinate to and subordinate to the others within its own sphere.

Federal nature of Indian constitution

: Following defining features of

federalism are present in Indian Constitution :

1. Distribution of Powers between center and states. One of the

essential marks of federal government is the division and distribution of powers. The Indian Constitution has clearly distributed powers between the Union and the Stateswith a very elaborate scheme of distribution of powers. The Constitution has divided them into three lists :

The Union List of about 97 powers

The State List of about 66 powers and

The Concurrent List of 47 powers

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The Union List mentions subjects about which the Union

Parliament makes laws. The State List mentions matters about which the state legislatures make laws while the Concurrent List mentions such matters about which both the Central Parliament and the State Legislatures have concurrent power of legislation.

2. Written constitution and Rigidity of the Constitution : The

Constitution of India is written and is also fairly rigid. The provisions that deal with the distribution of powers between the Centre and the States cannot be unilaterally changed by Parliament, the central legislature.

3. Independent Judiciary : Constitution provides for a Supreme

Court with power to interpret the constitution and decide the constitutional disputes between the Union and the States. It can declare any law of Parliament or of a State Legislature to be unconstitutional and void if it contravenes any provision of the constitution.

Discussion : It is noteworthy that all the structural features of a

federal system have been incorporated in the Indian Constitution. However, there are certain provisions that affect its federal character.

1. Appointment of the Governor of a State :

Art 155 and 156 provide that the Governor, who is the

constitutional head of a State, is to be appointed by the President and stays only until the pleasure of the President. Further, that the Governor can send the laws made by the state for assent from the President, who can veto the law.

It should be noted that Governor is only a ceremonial head and

he works on the advice of council of ministers. In past 50 yrs, there has been only one case (re Kerala Education Bill), where amendments to a state law were asked by the center and that too after the opinion of the Supreme Court. Thus, it does not tarnish the federal character and states are quite free from outside control.

2. Power of the parliament to make laws on subjects in the State

list :

Page - 22 of 105

Under art 249, center is empowered to make laws on subjects in

the state list. On the face of it, it looks a direct assault on the power of the states. However, this power is not unlimited. It is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3 majority. It should be noted that Rajya Sabha is nothing but the representative of the states. So an approval by Rajya Sabha means that States themselves are giving the power to the center to make law on that subject.

3. Power to form new states and to change existing boundaries :

Under Art 3, center can change the boundaries of existing states

and can carve out new states. This should be seen in the perspective of the historical situation at the time of independence. At that time there were no independent states. There were only provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new states was kept so that appropriate changes could be made as per requirement. It should be noted that British India did not have states similar to the States in the USA.

4. Emergency Provisions :

Center has the power to take complete control of the State in the

following 3 situations : In all the following cases, an elected state government can lose control of the state and a central rule can be established.

An act of foreign aggression or internal armed rebellion (Art

352)

Failure of constitutional machinery in a state (art 356)

Financial Emergency (art 360)

In the first case, it is very clear that such a provision is not only

justified but necessary to protect the existence of a state. A state cannot be left alone to defend itself from outside aggression.

In the third case also, it is justified because a financial

emergency could cause severe stress among the population,

Page - 23 of 105

plunge the country into chaos and jeopardize the existence of the whole country. Such provisions exist even in USA.

It is the second provision which is most controversial. It gives the

center the power to take over the control of a state. However, such an action can be taken only upon the advice of the governor and such an advice is not beyond the purview of the Supreme Court. In a recent case, Supreme court ruled that the imposition of Presidential rule in the state of Bihar was unconstitutional.

Conclusion :

Thus, it can be safely said that Indian Constitution is primarily

federal in nature even though it has unique features that enable it to assume unitary features upon the time of need.

The framers of the Indian Constitution attempted to avoid the

difficulties faced by the federal Constitutions of U.S.A, Canada and Australia and incorporate certain unique features in the working of the Indian Constitution.

Thus, our Constitution contains certain novel provisions suited to

the Indian conditions. The Indian constitution is neither purely federal nor purely unitary but is a combination of both.

According to Wheare, in practice the Constitution of India is quasi-

federal in nature and not strictly federal.

Sir Ivor Jennings was of the view that India has a federation with a

strong centralizing policy.

In the words of D.D.Basu The Constitution of India is neither purely

federal nor unitary, but is a combination of both. It is a union or a composite of a novel type.

Go To Module-1 Questions.

Q : 2014 : “Indian constitution can be both unitary as well as federal

according to the requirement of time and circumstances” Discuss.

 Ans :
Ans
:

Typically, democratic constitutions are classified into two categories -

Unitary and Federal. In a unitary constitution, all the powers are concentrated in a central authority. The states or the constituents of

Page - 24 of 105

the country are subordinate to such central authority. In a federal constitution, powers are distributed among the center and the states. States are not subordinates of the center. According to Prof. Wheare, the constitutions of USA, Australia, and Switzerland are prime examples of a federal constitution.

Dr. Ambedkar has categorically said in Constituent Assembly

discussions that notwithstanding certain provisions that centralize the powers, Indian Constitution is essentially federal. Prof. Wheare and some other academicians, however, are hesitant in calling it a federal constitution and prefer to term it as "quasi-federal" or "federal with strong centralizing tendency".

Though, it should be noted that even prof. Wheare accepts the

existence of certain provisions in the American constitution, such as dependence of Senate on States, that are contrary to federal character. However, he says that while the principles of federalism should be rigid, the terminology of "federal constitution" should be wide. A constitution should be called federal if it displays federal character predominantly.

The following are the defining features of federalism, and which ALL

are present in the Indian Constitution.

1. Distribution of Powers between center and states.

2. Supremacy of the Constitution.

3. Written Constitution.

4. Rigidity of the Constitution.

5. Independent Judiciary.

However, there are certain provisions that affect its federal character.

1. Appointment of the Governor of a State : Art 155 and 156

provide that the Governor, who is the constitutional head of a State, is to be appointed by the President and stays only until the pleasure of the President. Further, that the Governor can send the laws made by the state for assent from the President, who can veto the law. It should be noted that Governor is only a ceremonial held and he works on the advice of council of ministers. In past 50 yrs, there has been only one case (re Kerala Education Bill), where amendments to a state law were asked by the center and that too

Page - 25 of 105

after the opinion of the Supreme Court. Thus, it does not tarnish the federal character and states are quite free from outside control.

2. Power of the parliament to make laws on subjects in the State

list. Under art 249, center is empowered to make laws on subjects in the state list. On the face of it, it looks a direct assault on the power of the states. However, this power is not unlimited. It is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3 majority. It should be noted that Rajya Sabha is nothing but the representative of the states. So an approval by Rajya Sabha means that States themselves are giving the power to the center to make law on that subject.

3. Power to form new states and to change existing boundaries

Under Art 3, center can change the boundaries of existing states and can carve out new states. This should be seen in the perspective of the historical situation at the time of independence. At that time there were no independent states. There were only provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new states was kept so that appropriate changes could be made as per requirement. It should be noted that British India did not have states similar to the States in the USA.

4. Emergency Provisions : Center has the power to take complete

control of the State in the following 3 situations :

An act of foreign aggression or internal armed rebellion (Art 352)

Failure of constitutional machinery in a state (art 356)

Financial Emergency (art 360)

In all the above cases, an elected state government can lose control of

the state and a central rule can be established. In the first case, it is very clear that such a provision is not only justified but necessary to protect the existence of a state. A state cannot be left alone to defend itself from outside aggression. In the third case also, it is justified because a financial emergency could cause severe stress among the population, plunge the country into chaos and jeopardize the existence of the whole country. Such provisions exist even in USA. The second provision is most controversial. It gives the center the power to take over the control of a state. However, such an action can be taken only upon the advice of the governor and such an advice is not beyond the

Page - 26 of 105

purview of the Supreme Court. In a recent case, Supreme court ruled that the imposition of Presidential rule in the state of Bihar was unconstitutional.

Thus, it can be safely said that Indian Constitution is primarily federal

in nature even though it has unique features that enable it to assume unitary features upon the time of need.

Go To Module-1 Questions.

Module-2) Fundamental Rights - I :

2

1)Concept

of “State” under Article 12 and judicial approach,

Meaning of Law under Article 13

2

2)Right

to equality and protective discrimination, Equality of

opportunity in the matter of Public Employment

2

3)Freedoms

guaranteed to citizens of India under Article 19

and reasonable restrictions

2

4)Right

against exploitation, Abolition of untouchability and

Titles

2

5)Right

of Self-incrimination and Principle of Double Jeopardy

2

6)Constitutional

Remedy for the enforcement of Fundamental

Rights (Writ remedies under Articles 32, Distinction from writs under Article 226)

Module-2 QUESTIONS :

Q. What do you understand by fundamental rights? Discuss with respect to

Indian Constitution.

Q : 2015 : Explain meaning of “law” under Art-13.

Q : What is meant by Judicial Review (Art-13)?

Q : 2014 : “Equality before law” and “Equal protection of law” discuss under

the right to equality.

Q : 2015 : Explain in detail about right to equality with special reference

to equality of opportunity in the matter of public employment.

Q : 2013 : Explain the constitutional provisions providing “protective

discrimination” for backward classes.

Page - 27 of 105

Q : 2012, 3 : What freedoms have been conferred to the citizens by the

constitution of India? Have any restrictions been imposed on such

freedoms? Are these freedoms absolute?

Q : 2015 : (Syllabus-2.4 & 3.4) Explain the provisions of the “right against

exploitation” with special reference to “trafficking in human beings”.

Q : 2014 : Explain : Right against exploitation.

Q : 2014 : What safeguards does Art-20 of the constitution provide for the

person accused of offence?

Q : 2013 : Write short note : Principle of double jeopardy.

Q : Discuss in detail : Constitutional remedies. Compare jurisdictions under

Art-32 and Art-226.

Q : 2013 : Write short note : Constitutional remedies.

Q : 2014 : Explain : Difference between Art-32 and Art-226.

Q : 2015 : In the matter of writ jurisdiction the supreme court and the

high court are concurrent, one in Art-32 and the other in Art-226. Compare the two jurisdictions.

Q : 2012 : “If Art-32 is taken away from the constitution of India, the

part dealing with fundamental rights would be rendered meaningless” Explain.

Q : 2014 : Explain : Habeas corpus writ.

Q : 2014 : Explain : Writ of mandamus.

Q : Explain : Writ of Certiorari.

Q : Explain : Writ of Prohibition.

Q : Explain : Writ of Quo Warranto.

Go To Contents.

Module-2 ANSWERS :

Q. What do you understand by fundamental rights? Discuss with respect

to Indian Constitution.

Ans
Ans

:

“A man is born with a title to perfect freedom and an uncontrolled

enjoyment of all the rights and privileges of the law of nature and

Page - 28 of 105

he has by nature a power to preserve his property – that is his life, liberty and estate, against the injuries and attempts of other men”

--- John Locke

The general concept of fundamental rights :

The rights that are basic to the advancement of the human

race are called Fundamental Rights. All other rights are derived from these rights as direct implications or application of their principles. It is an accepted belief among the philosophers that these rights are nothing but "natural human rights", which distinguish between humans and animals and which have been so instrumental in bringing humans from the stone age to the present age. Among all, the right to life and liberty is considered to be the most basic.

The history of legally enforceable fundamental rights

probably starts from Magna Carta, which was a list of rights extracted from Kind John by the people of England in 1214 AD. This was followed by the "Bill of Rights" in 1689 in which Englishmen were given certain civil and political rights that could not be taken away. Later on the French compiled the "Declaration of the rights of Man and of the Citizen" after the French Revolution in 1789.

The most important advancement in history of fundamental

rights occurred when the USA incorporated certain fundamental rights in the form on "Bill of Rights" in their constitution by the way of first 10 amendments. These rights were deemed to be beyond the vagaries of politics. The protection by the constitution meant that these rights could not be put to vote and were not dependent on the whims of politicians or of the majority.

After this, nearly all democracies of the world have given a constitutional sanctity to certain inalienable rights available to their citizens.

Need for Fundamental Rights :

1. Rule of Law : These rights are a protection to the citizens

against the govt and are necessary for having the rule of law and not rule of a government or rule of a person. Since explicitly given by the constitution to the people, these rights

Page - 29 of 105

dare not be transgressed by the authority. The govt. is fully answerable to the courts and is fully required to uphold these rights.

2. First fruits of the freedom struggle : After living in

subjugation for such a long time, people had forgotten what is meant by freedom. These rights give people hope and belief that there is no stopping to their growth. They are free from the whims of the rulers. In that sense, they are first fruits of the lengthy freedom struggle and bring a sense of satisfaction and fulfillment.

3. Quantification of Freedom : Even citizens in gulf countries

or communist countries are free. Then how is our freedom different from theirs? The list of fundamental rights is a clear measurement for how free we really are. As an example, every Indian citizen in free to practice a religion of his choice, but that is not so in the gulf countries. Our right to speech and expression allows us to freely criticize the govt. but this is not so in China.

Justiciability of FR : The Fundamental Rights are justiciable. When

we say word “justiciable”, it means that the citizens can seek the assistance of the courts for the enforcement of their Fundamental Rights under article 32 (Supreme Court) and article 226 (High Courts). Any citizen can petition the court to issue the writs whenever his FR are violated.

In the case of Menaka Gandhi vs Union of India AIR 1978, J.

 

Bhagvati has said, “FR represent the values that are cherished by the people of this country since the vedic ages and are essential to protect the dignity of individual and to create conditions in which every human being is able to develop his personality to the fullest. These rights are necessary for a human being for attaining full social, intellectual, and spiritual status”.

Brief details of fundamental Rights in Indian Constitution

:

Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the fundamental rights available to the citizens of India.

Page - 30 of 105

These rights can be grouped into 6 categories -

1. Articles 14-18 Right to Equality : Articles 14 to 18 of the

Indian Constitution have been devoted to the Right to Equality. This right ensures social and political equality to the citizens of India. The Right to Equality means the following things :

Article 14 guarantees to all persons equality before the

law and equal protection of laws within the territory of India.

Article 15 : The state shall not discriminate against any

citizen on grounds only of religion, race, caste, sex or place of birth.

Article-14 asserts the supremacy of law or Rule of law.

Every citizen irrespective of his status is subject to the same law and the same courts. Any law which is discriminatory in its character will be held unconstitutional.

The citizens will not be subjected to any disability on

any of the above mentioned grounds in regard to access to shops, hotels, places of public entertainment or the use of wells, tanks, ghats, roads and other public places wholly or maintained out of state funds.

However, this brings us to an important question.

Should people living in unequal circumstance be treated equally? In Indian Constitution, the answer is a resounding no.

We have adopted the mantra of "equal treatment

under equal circumstances".

This is reflected in Art 15, which, while prohibits the

state from discriminating between the citizens only on the grounds of Caste, Race, Religion, Sex, and Place of Birth or all of them

Art 15(1, 3, 4) also allows the state to make special

provisions for Women and Children and for Backward classes.

Page - 31 of 105

Article 16 has guaranteed equality of opportunity in

matters relating to employment or appointment to public services to all citizens irrespective of religion, race, sex, descent, place of birth or residence.

Article 17 has declared untouchability in any form as

unconstitutional.

Article 18 has laid down that no titles, not being military

or academic distinction, shall be conferred by the State.

NB : Nothing in the above Article 16 will prevent the state

from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Equal protection of the law : The cases of Lindsley v

Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v Union of India SC AIR 1951 are important cases that illustrate the concept of equal protection of the law. In these cases, the SC of both the countries held that all persons similarly circumstanced should be treated equally. Only like should be treated alike and thus a reasonable classification can be done.

Principle of equality : Several cases such as Randhir Singh

vs Union of India 1982 (Equal pay for equal work) illustrate the principle of equality .

2. Artticles 19-22 Right to Freedom :

Art-19 : A citizen of India is given freedom of Speech and

Expression, freedom of Assembly, freedom of Association, freedom of Movement, freedom of Residence, and Freedom of Profession and Occupation through Art. 19.

Art. 20 gives protection with respect to conviction of

offenses. This includes the principles of ex-post facto law :

A person can only be with charged with an offence of an action if the said action was illegal as per the law of the time when the action was committed.

Page - 32 of 105

double jeopardy: A person cannot be charged with the

same crime if he has already been produced before the court and a verdict has been pronounced.

self incrimination: A person will not be forced to testify

against himself.

Art. 21, which is the most important and diverse of all the

rights to freedom, is the Protection of Life and Personal Liberty.

Menaka Gandhi v Union of India AIR 1978 was a

landmark case that gave wide interpretation of this right. In this case the SC held that citizen's right is not only about having any kind of life but a life of dignity. The freedom is not just physical but mental as well as spiritual. This encompasses several rights such as right to travel abroad (Satvant Singh v Ass. Passport Office AIR 1967) and right to pollution free water and air ( Subhash Kumar vs State of Bihar AIR 1991).

Further, Constitution Amendment Act 86, 2002 makes

free and compulsory education to children under Art. 21A as a fundamental right.

Art. 22 gives protection from illegal arrest or detention. It

provides that a person must be informed of the grounds of arrest as soon as possible, be allowed to speak to a lawyer of his choice, and be produced before a magistrate within 24 hrs of detention.

3. Art 23-24 Right Against Exploitation :

Article 23, traffic in human beings and begar and 9ther

similar forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

Of course, nothing in the above Article shall prevent

the state from imposing compulsory service for public purposes, and in imposing such service, the state shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Page - 33 of 105

Article 24 says that "No child below the age of fourteen

years shall be employed to work in any factory or mine or engaged in any other hazardous employment."

4. Art 25-28 Freedom of Religion :

Article 25 gives freedom of conscience and freedom to

profess, practice and propagate any religion subject of course to public order, morality and health.

Article 26 grants every citizen the right to establish and

maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law.

Article 27 "No person shall be compelled to pay any taxes,

the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination".

Article 28 states "No religious instruction shall be

imparted in any educational institution wholly maintained out of State funds." But the educational institutions established by trusts or endowments and managed by them would be free to impart any religious instruction in them as they deem essential.

NB : The Articles relating to the freedom of religion have helped to establish a Secular State in India with the State adopting an attitude of strict impartiality in matters of religion.

5. Art 29-30 Cultural and Educational Rights : These articles

ensure, to every section of the citizens, the protection of their language, script or culture.

Article 29 states that "Any section of the citizens residing

in the territory of India or any port thereof having a distinct language, script or culture of its own shall have the right to conserve the some."

No citizen shall be denied admission into any

educational institution maintained by the State or

Page - 34 of 105

receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30 states that "All minorities, whether based on

religion or language, shall have the right to establish and administer educational institutions of their choice."

The State shall not, in granting aid to educational

institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

6. Art 32 Right to Constitutional Remedies : In the absence of

this right all other rights are of no consequence since they could not be enforced. This right makes the other rights as justiciable. Dr Ambedkar, the chief architect of our constitution, has said that Article 32 is the soul of our constitution. All the talk of rights is useless if there is no recourse against their transgression. Under this article, a citizen is free to go to the Supreme Court for violation of his fundamental rights.

The right to move the Supreme Court by appropriate

proceedings for the enforcement of the rights conferred by the Constitution has been guaranteed under Arlicle 32.

The Supreme Court shall have the power to issue

directions or order or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

The right guaranteed by this Article shall not be

suspended except as otherwise provided for by the Constitution.

This right can only be suspended during an Emergency by

the President of India under Article 359.

These above-mentioned writs can also be issued by the

High Courts for protecting Fundamental Rights under Article 226 of the Constitution within their territorial jurisdiction.

Page - 35 of 105

Scope of Fundamental Rights :

Widest Possible Interpretation :

SC in A K Gopalan vs State of Madras AIR 1950 had held

that the various rights given under part III talk about different things and are not be interlinked.

This view, however, has been rightly rejected by the SC in

Menaka Gandhi vs. Union of India AIR 1978 case. In this case, J Bhagvati said that the role of SC should be to interpret these rights in the widest possible manner and it should not attenuate these rights by being confined to their narrow definition.

All these rights are not mutually exclusive and form an

integrated theme of the constitution. J Beg said that their waters must mix to form a grand flow of unimpeded and impartial justice.

Thus, any law that takes away the life or liberty of a

person, must also satisfy the test of reasonableness under art. 14.

Natural Justice and Due Process : In Menaka Gandhi's case, SC has

held that any law that takes away the life or liberty of a person under art. 21, must be just, fair, and reasonable. It must satisfy the principle of natural justice, which is a basic component of fair procedure under Art. 21. While Art 21 does not contain the "due process" clause of the American Constitution, the effect is the same because natural justice is a distillate of due process i.e. natural

justices can only be delivered through due process.

Expanding the role of writ of Habeas Corpus : The case of Sunil

Batra vs Delhi Admin AIR 1980, SC has given tremendous power to the writ of Habeas Corpus. It allows the judiciary to even enforce the fundamental rights in a prison. Even prisoners are humans and must be treated with dignity. They cannot be stripped off of their fundamental rights, thus menial or forced work without pay, solitary confinement, degrading punishment, is not allowed. This case has also allowed people who are not directly involved but have any kind

Page - 36 of 105

of interest to approach the court. The objective is to remove injustice wherever it is found in the society.

Absoluteness of Fundamental Rights : "Your freedom ends where

my freedom starts" is a well known saying.

The constitution gives you the right to propagate your

religion. But does that mean you should force me to hear religious activities over the loudspeaker?

The constitution gives you the freedom of speech and

expression. But does that mean you can publish and sell pornography freely in open market?

These illustrations clearly tell us that no right is absolute.

Indian Constitution also takes the same stand and specifies

the limits of these rights. These rights extend only until they do not affect security of the state, public order, social decency, right of other people.

The constitution allows reasonable restrictions to be placed

on these rights. SC in A K Gopalan vs State of Madras 1950 has also held that Fundamental Rights are not absolute.

Suspension of Fundamental Rights : Under art 358, freedoms given

under art 19 are suspended when the president proclaims emergency. Further, under art 359, president may also suspend the right to move courts for violation of rights given in part III except art 20 and 21.

According to the 44th Amendment, Freedoms listed in Article

19 can be suspended only in case of proclamation on the ground of war or external aggression.

Conclusion / Critical Analysis : Indian Constitution was written after

a through analysis of existing constitution of the world. The framers of the constitution have incorporated the good things from all the places. As such it is more fair and consistent than religious books. It is for the foresight of the framers of the constitution that the country is integrated and has progressed.

Go To Module-2 Questions.

Page - 37 of 105

Q : 2015 : Explain meaning of “law” under Art-13.

Ans
Ans

:

Art 13 :

1. All laws in force in the territory of India immediately

before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

2. The State shall not make any law which takes away or

abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

3. In this article, unless the context otherwise requires,—

“law” includes any Ordinance, order, bye-law, rule,

regulation, notification, custom or usage having in the territory of India the force of law;

“laws in force” includes laws passed or made by a

Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

4. Nothing in this article shall apply to any amendment of this

Constitution made under article 368.

Go To Module-2 Questions.

Q : What is meant by Judicial Review (Art-13)?

Ans
Ans

:

and then go on to discuss indian caselaws –- golaknath +

kesavananda

Judicial review is the doctrine under which legislative and executive

actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are

Page - 38 of 105

incompatible with a higher authority, such as the terms of a written constitution.

The concept of Judicial Review started from the case of Marbury vs

Madison in 1800 in the USA. In this case, justice John Marshall held that judiciary has inherent power to review actions by legislature even if no explicit provision is given in the constitution.

Indian Situation : By adopting a written constitution and an

independent judiciary, India has provided the rule of law instead of rule of men to the citizens. However, the rule of law will be rendered useless if the legislature is able to make laws that violate the fundamental rights of the citizen. Thus, the constitution in Art 13 has provided the judiciary with the power to review laws made by the legislature. This is called Judicial Review.

Art 13 :

1. All laws in force in the territory of India immediately

before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

2. The State shall not make any law which takes away or

abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

3. In this article, unless the context otherwise requires,—

“law” includes any Ordinance, order, bye-law, rule,

regulation, notification, custom or usage having in the territory of India the force of law;

“laws in force” includes laws passed or made by a

Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

4. Nothing in this article shall apply to any amendment of this

Constitution made under article 368.

Page - 39 of 105

In the case of L Chandra Kumar vs Union of India SC AIR 1997 held

that the power vested in SC by art 32 and High Court by art 226 over legislative action is a basic feature.

Doctrine of Severability : AK Gopalan vs State of Madras SC AIR

1950 : Only section 14 of Preventive detention act is void and not the whole act.

Go To Module-2 Questions.

Q : 2014 : “Equality before law” and “Equal protection of law” discuss

under the right to equality.

Q : 2015 : Explain in detail about right to equality with special

reference to equality of opportunity in the matter of public

employment. Ans :
employment.
Ans
:

The fundamental rights are guaranteed to protect the basic human rights

of all citizens of India. One of such fundamental rights is the Right to Equality. Right to Equality refers to the equality in the eyes of law, without any unfairness on grounds of caste, race, religion, place of birth sex. It also includes equality of prospects in matters of employment, abolition of untouchability and abolition of titles.

Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the

Right to Equality in detail. This fundamental right is the major foundation of all other rights and privileges granted to Indian citizens. It is one of the chief guarantees of the Constitution of India. Thus, it is imperative that every citizen of India has easy access to the courts to exercise his/her Right to Equality.

Various articles under the Right to Equality are explained as follows :

Art-14 : Equality Before Law : Equality before law is well defined under

the Article 14 of the Constitution which ensures that every citizen shall be likewise protected by the laws of the country.

Art-14
Art-14

: The State shall not deny to any person equality before the

law or equal protection of the laws within the territory of India.

Page - 40 of 105

The first expression equality before the law, is a somewhat negative

concept which is said to be have taken from English common law, is a declaration of equality of all person within the territory of India, implying there by the absence of any special privilege in favor of any individual. Ever person whatever be his rank or position is subject to the jurisdiction of the ordinary court.

The second expression the equal protection of the law which is

rather a corollary of the first and is to be taken from US, it is a more positive concept implying equality or treatment in equal circumstances.

Art-14 means that the State will not distinguish any of the Indian

citizens on the basis of their gender, caste, creed, religion or even the place of birth. The state cannot refuse equality before the law and equal defense of the law to any person within the territory of India. In other words, this means that no person or groups of people can demand for any special privileges. This right not only applies to the citizens of India but also to all the people within the territory of India.

“Equal protection of law” has been given in article 14 of our Indian

constitution which has been taken from section 1 of the 14th amendment act of the constitution of the united state. Here, it means that each person within the territory of India will get equal Protection of laws.

“The Rule of Law" embodied in Article 14 is the “ Basic feature” of the

Indian constitution. Hence it cannot be destroyed even by an amendment of the constitution under article 368 of the constitution.

Art-15 : Social Equality and Equal Access to Public Areas :

The right of Social Equality and Equal Access to Public Areas is clearly

mentioned under the Article 15 of the Constitution of India stating that no person shall be shown favoritism on the basis of color, caste, creed language, etc. Every person shall have equal admittance to public places like public wells, bathing ghats, museums, temples etc. However, the State has the right to make any special arrangement for women and children or for the development of any socially or educationally backward class or scheduled castes or scheduled tribes. This article applies only to citizens of India.

Art-16 : Equality in Matters of Public Employment :

Page - 41 of 105

Art-16 of the Constitution of India clearly mentions that the State shall

treat everyone equally in the matters of employment. No citizen shall be discriminated on the basis of race, caste, religion, creed, descent or place of birth in respect of any employment or office under the State. Every citizen of India can apply for government jobs.

However, there are some exceptions to this right. The Parliament may

pass a law mentioning that specific jobs can only be filled by candidates who are residing in a particular area. This requirement is mainly for those posts that necessitate the knowledge of the locality and language of the area. Apart from this, the State may also set aside some posts for members of backward classes, scheduled castes

or scheduled tribes which are not properly represented in the services under the State to uplift the weaker sections of the society. Also, a law may be passed which may entail that the holder of an office of any religious institution shall also be a person professing that specific religion. Though, this right shall not be granted to the overseas citizens of India as directed by the Citizenship (Amendment) Bill,

2003.

Art-17 : Abolition of Untouchability :

Art-17 of the Constitution of India abolishes the practice of

untouchability in India. Practice of untouchability is declared as a crime and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (and now Protection of Civil Rights Act in 1976) states punishments for not allowing a person to enter a place of worship or from taking water from a well or tank.

Art-18 : Abolition of Titles :

Art-18 of the Constitution of India prohibits the State from granting any

titles. Citizens of India are not allowed to accept titles from a foreign State. Titles like Rai Bahadurs and Khan Bahadurs given by the British government have also been abolished. Nevertheless, academic and military distinctions can be conferred upon the citizens of India. The awards of ‘Bharat Ratna’ and ‘Padma Vibhushan’ cannot be used by the beneficiary as a title and is not prohibited by the Constitution of India. From 15 December 1995, the Supreme Court has sustained the validity of such awards.

Page - 42 of 105

Underlying Principle in “Right to Equality” :

Underlying principle of equality is: not the uniformity of treatment to

all in all respect, but rather equal must be treated equally while unequal must be treated differently.

Maneka Gandhi v/s Union of India : Article 14 strikes at arbitrariness

in state action and ensure fairness and equality of treatment, the principle of reasonableness, which logically as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence.

Difference between class legislation and reasonable classification :

Article 14 forbids class legislation but permits reasonable classification

provided that it is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and the differentia has a rational nexus to the object sought to be achieved by the legislation in question

Thus, Art-14 permits classification but prohibits class legislation the

equal protection of law guaranteed by article 14 does not mean that all laws must be general in character.

It does not mean that the same laws should apply to all persons. It

does not mean that every law must have universal application for, all person are not, by nature, attainment or circumstances in the same position. The varying need of different classes of persons often require separate treatment.

From the very nature of society there should be different places and

the legislature controls the policy and enacts laws in the best interest of the safety and security of the state. In fact, identical treatment to unequal circumstances would amount to inequality.

Thus, a reasonable classification is permitted for the develop society.

article is forbids is class-legislation but it does not forbids reasonable classification. The classification, however, must not be “Arbitrary or artificial” but must be based on some real and substantial Distinction bearing a just and reasonable relation to the object sought be achieved by the legislation.

Conclusion :

Page - 43 of 105

The ‘Right to Equality’ should not only remain on papers. This right

should be properly exercised; otherwise it will lose its essence if all the citizens of India, especially the weaker and backward classes do not have equal rights and equality before law.

Go To Module-2 Questions.

Q : 2013 : Explain the constitutional provisions providing “protective

discrimination” for backward classes.

Ans
Ans

:

Go To Module-2 Questions.

Q : 2012, 3 : What freedoms have been conferred to the citizens by the

constitution of India? Have any restrictions been imposed on such

freedoms? Are these freedoms absolute?

Ans
Ans

:

Following freedoms have been conferred to the citizens by the

Constitution of India

: Artticles 19-22 Right to Freedom :

Art. 19 : A citizen of India is given freedom of Speech and

Expression, freedom of Assembly, freedom of Association, freedom of Movement, freedom of Residence, and Freedom of Profession and Occupation through Art. 19.

Art. 19 (1) All citizens shall have the right—

1. (a) to freedom of speech and expression;

2. (b) to assemble peaceably and without arms;

3. (c) to form associations or unions;

4. (d) to move freely throughout the territory of India;

5. (e) to reside and settle in any part of the territory of India; and

6. (g) to practise any profession, or to carry on any occupation, trade or business.

Page - 44 of 105

Art. 20 gives protection with respect to conviction of

offenses. This includes the principles of

ex-post facto law : A person can only be with charged

with an offence of an action if the said action was illegal as per the law of the time when the action was committed.

double jeopardy: A person cannot be charged with the

same crime if he has already been produced before the court and a verdict has been pronounced.

self incrimination: A person will not be forced to testify

against himself.

Art. 21, which is the most important and diverse of all the

rights to freedom, is the Protection of Life and Personal Liberty.

Menaka Gandhi v Union of India AIR 1978 was a landmark

case that gave wide interpretation of this right. In this case the SC held that citizen's right is not only about having any kind of life but a life of dignity. The freedom is not just physical but mental as well as spiritual. This encompasses several rights such as right to travel abroad (Satvant Singh v Ass. Passport Office AIR 1967) and right to pollution free water and air ( Subhash Kumar vs State of Bihar AIR 1991).

Further, Constitution Amendment Act 86, 2002 makes free

and compulsory education to children under Art. 21A as a fundamental right.

Art. 22 gives protection from illegal arrest or detention. It

provides that a person must be informed of the grounds of arrest as soon as possible, be allowed to speak to a lawyer of his choice, and be produced before a magistrate within 24 hrs of detention.

Restrictions on freedoms : Absoluteness of Freedoms

:

Every human desires to do many things as per his whims and

fancies. However, in a civil society such desires must be curbed to certain extent in larger national/ public interest and also in respect of similar desires of other human beings.

Page - 45 of 105

Thus, rights to freedom are NOT an absolute rights. Art-19 and Art-34 of the Constitution imposes restrictions as follows :

Art. 34 : Martial Law restrictions : Notwithstanding anything

in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

Art. 19(2) : Case of Romesh Thaper vs State of Madras

(1950) : In that case, Madras Govt. prevented the entry an circulation of the new paper 'Cross Roads' published by Romesh Thaper, in the state of Madras. It argued that the circulation of the paper affects public safety. However, SC held that the public safety falls outside the scope of 19 (2) and thus the govt action was invalid. This decision prompted the govt. to amend the constitution in 1951 and clause 19(2) was inserted as follows :

Art 19 (2) says that nothing in Art 19 (1) (a) shall affect

the operation of any law or prevent the state from making any law, in so far as such law imposes reasonable restrictions on exercise of the right conferred by the said clause in the interest of -

sovereignty and integrity of the country.

security of the state

friendly relations with foreign states.

public order

decency and morality

defamation

contempt of court

incitement of an offence.

Page - 46 of 105

Apart from clause-2 of Art. 19, clauses-3,4,5,6 of Art-19 also

imposes reasonable restriction on freedoms guaranteed under the Constitution :

Test of reasonable restrictions

: It is important to note that

the clauses-2,3,4,5,6 of Art-19 mentions the words "reasonable restrictions". Thus, any law restricting the freedoms must satisfy the criteria of reasonableness. Reasonable restriction means intelligent care and discussion that the restriction is not beyond what is required for public interest. It should not be arbitrary and excessive. Further, the restriction can only be imposed by law and not by executive or departmental decision.

Spanning several cases, SC has laid down the following

guidelines :

It is the courts and not the legislature that will decide

whether a law is reasonable or not.

Reasonable means that the law is not arbitrary and the

restriction is not beyond what is required in public interest. The time and duration of the restriction cannot be unlimited.

There is no fixed standard for reasonableness. Each

case must be decided on its own merits.

The restriction must be reasonable from substantiative

as well as procedural stand point.

Restrictions imposed due to implementation of

Directive Principles may deemed to be reasonable.

The test of reasonability must be objective in the

sense that it does not matter what a Judge or Court thinks what is reasonable but what a normal reasonable person would think.

The restriction must have a relation to the object that

is sought through the law and must not be excessive.

It is the reasonableness of the restriction that a court

has to determine and not the reasonableness of the law itself.

Restriction may amount to prohibition.

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Conclusion / Critical Analysis : Freedom of speech and expression is

indeed the most important of all freedoms. However, today, this right is being routinely suppressed under the guise of morality and decency or public order. Even a slight criticism of a public leader or authority causes the political parties to involve in damage of public property. Any book that talks about problems in a religion is banned in the name of public order. It is extremely unfortunate that the executive, instead of the upholding people's right to speech and expression by preventing unscrupulous element from hurting the author, is more interested in stifling the voice by banning their works. By doing this they are not doing their job responsibly.

Go To Module-2 Questions.

Q : 2015 : (Syllabus-2.4 & 3.4) Explain the provisions of the “right against

exploitation” with special reference to “trafficking in human beings”.

Ans
Ans

:

Q : 2014 : Explain : Right against exploitation.

Click here to read the answer

Go To Module-2 Questions.

Q : 2014 : What safeguards does Art-20 of the constitution provide for the

person accused of offence?

Q : 2013 : Write short note : Principle of double jeopardy.

Ans
Ans

:

The Article 20 is one of the pillars of fundamental rights guaranteed by

the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences. When an individual as well as corporations are accused of crimes, the provisions of Article 20 safeguard their rights.

The striking feature of the Article 20 is that it can’t be suspended during

an emergency period.

Art-20
Art-20

: Protection in respect of conviction for offences :

(1) No person shall be convicted of any offence except for violation of

a law in force at the time of the commission of the Act charged as an

Page - 48 of 105

offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence

more than once.

(3) No person accused of any offence shall be compelled to be a

witness against himself.

Art-20 gives protection with respect to conviction of offenses. This

includes the principles of,

1. Ex-post facto law : A new law can not punish an old act.

2. Double jeopardy

3. self incrimination

1. Ex-post facto law : A new law can not punish an old act.

Article 20 (1) says that no person shall be convicted of any offence

except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

A person can only be with charged with an offence of an action if the

said action was illegal as per the law of the time when the action was committed. Thus Art-20 has set certain limitations on the legislative powers of the Union and State legislatures.

In other words, when a legislature declares an act to be an offence or

provides a penalty for an offence, it can’t make the law retroactive so as to prejudicially affect the individuals who have committed such acts prior to the enactment of that law.

2. Double jeopardy: There is a law maxim related to this – nemo debet

bis vexari. This means that no man shall be put twice in peril for the same offence.

The Constitution of India prohibits double punishment for the same

offence. That is reflected in the clause (2) of Article 20, which safeguards an individual from facing multiple punishments or successive criminal proceedings for the same crime. According to this

Page - 49 of 105

clause, no person shall be prosecuted and punished for the same offence more than once.

If someone has been put on trial and punished in a previous

proceeding of an offence, he can’t be prosecuted and punished for the same proceedings of an offence again in subsequent proceeding. If any law provides for the double punishment, it will be considered void.

Although Article 20 disapproves of the doctrine of ‘Double Jeopardy’, it

does not give immunity from proceedings under a different statute (law) before a court of law or tribunal. Hence, a public servant who has been punished for an offence in a court of law may yet be subjected to departmental proceedings for the same offence.

It is to be noted that Article 20 provides protection against double

punishment only when the accused has been ‘prosecuted’ and ‘punished’ once. Also, the Article does not prevent subsequent trial and conviction for another offence even if the two offences have some common aspects.

3. self incrimination: A person will not be forced to testify against

himself.

The immunity from self-incrimination is conferred in the Article 20(3)

of the constitution which states that the accused can never be compelled to be a witness against himself. In short, no individual can be forced to accuse himself.

The scope of this immunity has, prima facie, been widened by the

Supreme Court by interpreting the word ‘witness’ as inclusive of both oral and documentary evidence. Hence, no person can be compelled to furnish any kind of evidence, which is reasonably likely to support a prosecution against him.

However, this ‘Right to Silence’ is not called upon in case any object or

document is searched and seized from the possession of the accused. For the same reason, the clause does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him.

The accused is presumed to be innocent till his guilt is proved. It is the

duty of the prosecution to establish his guilt.

This immunity is only limited to criminal proceedings.

Page - 50 of 105

The Article 20 (3) can be rightfully used as an anchor only by those

accused of an offence and against whom an FIR has been lodged, which in normal course would result in prosecution.

Go To Module-2 Questions.

Q : Discuss in detail : Constitutional remedies. Compare jurisdictions

under Art-32 and Art-226.

Q

: 2013 : Write short note : Constitutional remedies.

 

Q

: 2014 : Explain : Difference between Art-32 and Art-226.

 

Q

: 2015 : In the matter of writ jurisdiction the supreme court and the

high court are concurrent, one in Art-32 and the other in Art-226.

 

Compare the two jurisdictions.

 

Q

: 2012 : “If Art-32 is taken away from the constitution of India, the

 

part dealing with fundamental rights would be rendered meaningless”

Explain. Ans :
Explain.
Ans
:

Quotes :

Injustice Anywhere Is A Threat To Justice Everywhere --- Martin

Luther King Jr

True Peace Is Not Merely The Absence Of War, It Is The Presence Of

Justice (Jane Addams)

The Essence Of Justice Lies In Rule Of Law, ie Supremacy Of Law

Art-32 : Right to Constitutional Remedies (Part-III)

:

Intro :

A declaration of fundamental rights is meaningless unless there is

effective machinery for the enforcement of the rights. Hence the framers of the Constitution were in favour of adopting special provisions guaranteeing the right to constitutional remedies. This, again, is in tune with the nature in general of the various provisions embodied in the chapter on Fundamental Rights.

Article 32 of the Indian constitution provides for constitutional

remedies against the violation or transgression of fundamental rights. The fundamental rights are of highest importance to the

Page - 51 of 105

individuals. They are basic conditions for the fullest development of personality.

The Writ Jurisdiction of Supreme Court can be invoked under Article

32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance. In addition, enforcement also depends upon the degree of independence of the Judiciary and the availability of relevant instruments with the executive authority.

Art-32 : Remedies for enforcement of fundamental rights

:

(1) The right to move the Supreme Court by appropriate

proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or

orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme

Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause

(2).

(4) The right guaranteed by this article shall not be suspended

except as otherwise provided for by this Constitution.

 

Art-32A
Art-32A

: [Constitutional validity of State laws not to be considered in

proceedings under article 32 ----- Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 3 (w.e.f. 13-4-1978)]

Article 32 has four sections :

 

The first section is general in scope and says that "the right to

move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed".

Page - 52 of 105

The second section deals, in more specific terms, with the power of

the Supreme Court to issue writs including writs in the nature of habeas-corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights.

The third section empowers Parliament to confer the power of

issuing writs or orders on any other court without prejudice to the power of the Supreme Court in this respect. So far, Parliament has not passed any law conferring the power of issuing writs on any courts. The last section deals with the conditions under which this right can be suspended.

The fourth section provides that fundamental rights can be

suspended during the period of emergency, as laid down in Article 359 of the Constitution.

Enforcement of fundamental rights : Indian Constitution, like most of

Western Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights. These are as under :

(a) The Fundamental Rights provided in the Indian Constitution are

guaranteed against any executive and legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under Article 13 of the Constitution.

(b) In addition, the Judiciary has the power to issue the prerogative

writs. These are the extra-ordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as well as the Supreme Court may issue the writs.

(c) The Fundamental Rights provided to the citizens by the

Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution.

(d) A Fundamental Right may also be enforced by way of normal

legal procedures including a declaratory suit or by way of defence to legal proceedings.

Importance of Art-32 Heart and Soul of the Constitution

:

Page - 53 of 105

Article 32 is referred to as the "Constitutional Remedy" for

enforcement of Fundamental Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be denied to any person.

Dr B R Ambedkar described Article 32 as the most important one.

He said,

"If I was asked to name the particular Article in this

Constitution as the most important without which this Constitution would be a nullity, I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.

Hereafter, it would not be possible for any legislature to take

away the writs which are mentioned in this Article. It is not that the Supreme Court is left to be invested with the power to issue these writs by a law to be made by the legislature at its sweet will."

Article 32 makes the Supreme Court the defender and guarantor of

the fundamental rights. Further, power to issue writs comes under original jurisdiction of the Supreme Court. This means that a person may approach SC directly for remedy rather than by way of appeal.

An application made under Article 32 of the Constitution before the

Supreme Court, cannot be refused on technical grounds.

In addition to the prescribed five types of writs, the Supreme Court

may pass any other appropriate order.

Moreover, only the questions pertaining to the Fundamental Rights

can be determined in proceedings against Article 32.

Under Article 32, the Supreme Court may issue a Writ against any

person or government within the territory of India.

Where the infringement of a Fundamental Right has been

established, the Supreme Court cannot refuse relief on the ground that the aggrieved person may have remedy before some other court or under the ordinary law.

The relief can also not be denied on the ground that the disputed

facts have to be investigated or some evidence has to be collected.

Even if an aggrieved person has not asked for a particular Writ, the

Supreme Court, after considering the facts and circumstances, may

Page - 54 of 105

grant the appropriate Writ and may even modify it to suit the exigencies of the case.

Normally, only the aggrieved person is allowed to move the Court.

But it has been held by the Supreme Court that in social or public interest matters, any one may move the Court.

A Public Interest Litigation can be filed before the Supreme Court

under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions.

There are mainly five types of Writs –

(i)

(ii) Writ of Mandamus,

(iii) Writ of Quo-Warranto,

(iv) Writ of Prohibition, and

(v)

Writ of Habeaus Corpus,

Writ of Certiorari.

Limitations on Art-32 jurisdiction : Like fundamental rights

themselves, the right to constitutional remedies under Article 32 are not without limits. The constitution visualizes there situations when fundamental rights may be denied hut constitutional remedies will not be available i.e. Article 32 will not be applicable.

Firstly, Article 33 empower the Parliament to modify application of

fundamental rights to armed forces and the Police to ensure proper discharge of their duties.

Secondly, under Article 34, during the operation of Martial law in

any area, the Parliament may indemnify any person in the service of the central or a state government for acts for the maintenance or restoration of law and order.

Thirdly, during emergency proclaimed under Art 352 of the

constitution, the fundamental rights guaranteed to the citizens, will remain suspended. Article 358 authorize the Parliament to restrict fundamental rights guaranteed by Art 19 during the pendency of an emergency under Article 352.

Article 359 empower the President to suspend the right to move the

courts for the restoration of fundamental rights. In other words, Article 359 empowers the President to suspend Art 32 of the

Page - 55 of 105

constitution. Such an order however is to be submitted to the Parliament, and the Parliament has the right to disapprove the Presidential order.

Art-226 : Power of HCs to enforce fundamental rights

:

Art-226 : Power of High Courts to issue certain writs

:

(1) Notwithstanding anything in article 32 every High Court shall

have power, throughout the territories in relation to which it

exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part

III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or

writs to any Government, authority or person may also be exercised

by any High Court exercising jurisdiction in relation to the territories

within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by

way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-

(a) Furnishing to such party copies of such petition and all

documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so

Page - 56 of 105

disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.]

(4) The power conferred on a High Court by this article shall not be

in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

Art-226A

: [Constitutional validity of Central laws not to be considered

in proceedings under article 226 ----- Rep. by the Constitution (Forty- third Amendment) Act, 1977, s. 8 (w.e.f. 13-4-1978)]

Difference between Art-32 and Art-226

:

Similarities : Power of issuing writs comes under original jurisdiction

(to hear the matter at first instance) of both Supreme Court and High Courts. An aggrieved person has option to move any of them.

Differences :

While Supreme Court has power to issue writs via article 32, High

Courts have this power via article 226.

While Supreme Court has power to issue writs for enforcement of

ONLY Fundamental rights, High Courts can issue writs for enforcement of fundamental rights as well as any other matter also. Thus, High Court has a wider jurisdiction from Supreme Court in matter of issuing writs.

During emergency, SC can not grant relief on suspension of FR.

However, HCs will continue to grant relief.

Supreme Court cannot refuse to exercise its writ jurisdiction mainly

because article 32 itself is a fundamental right and supreme court is guarantor or defender of fundamental rights. However, for high courts, exercising the power to issue writs is discretionary.

Supreme Court can issue a writ against any person or authority

within the territory of India while high court can issue such writ under its own territorial jurisdiction. Thus, High court’s writ jurisdiction is narrower in terms of territorial extent.

Page - 57 of 105

ARTICLE 32

ARTICLE 226

Fundamental Right

Constitutional Right

Can Be Suspended During Emergency

Cannot Be Suspended

Limited Scope (fundamental Rights Only)

Wider Scope (FR + Other Rights)

Wider Jurisdiction (All Over India)

Limited Jurisdiction (Concerned State Only)

Go To Module-2 Questions.

Q : 2014 : Explain : Habeas corpus writ.

Ans
Ans

:

Habeas Corpus literally means ‘to have the body of’. A writ of habeas

corpus is known as "the great and efficacious writ in all manner of illegal confinement",[Note 1] being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released.

Such a writ can be issued in following example cases :

When the person is detained and not produced before the

magistrate within 24 hours

When the person is arrested without any violation of a law.

When a person is arrested under a law which is unconstitutional

When detention is done to harm the person or is malafide.

Habeas corpus writ is called bulwark of individual liberty against

arbitrary detention. The Indian judiciary has dispensed with the

Page - 58 of 105

traditional doctrine of locus standi, so that if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions of the Indian judiciary.

Habeas corpus writ is applicable to preventive detention also. This writ

can be issued against both public authorities as well as individuals. The Indian judiciary, in a catena of cases, has effectively resorted to the writ of habeas corpus to secure release of a person from illegal detention.

Examples :

In October 2009, the Karnataka High Court heard a habeas corpus

petition filed by the parents of a girl who married a Muslim boy from Kannur district and was allegedly confined in a madrasa in Malapuram town

The habeas writ was used in the Rajan case, a student victim of

torture in local police custody during the nationwide Emergency in India in 1976.

On 12 March 2014, Subrata Roy's counsel approached the Chief

Justice moving a habeas corpus petition. It was also filed by the Panthers Party to protest the imprisonment of Anna Hazare, a social activist.

Habeas corpus has certain limitations. Though a writ of right, it is not

a writ of course.[Note 2] It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial.

Go To Module-2 Questions.

Q : 2014 : Explain : Writ of mandamus.

Ans
Ans

:

The Latin word mandamus means "we order". Writ of Mandamus is a

command (in the form of an Order) directed to the inferior court,

Page - 59 of 105

tribunal, board, corporation or any administrative authority or a person requiring the performance of a specific duty fixed by law or associated with the office occupied by the person. It is a type of extra- ordinary remedy available to the appellants to compel the authority to perform a duty cast upon them.

The direction can be given by the Supreme Court or the High Court of

a state.

The court can direct to do or not to do a specific act.

Writ cannot be issued against a private individual

It cannot be issued in matters where the authority is using his

discretionary powers of the public authority.

Writ cannot be issued to the Government for the enhancement of

dearness allowance as it is a discretionary power of the Government.

Writ should not lie in a civil liability, which should be solved in civil

courts by way of civil suits.

Writ cannot be issued to a private medical college

Writ cannot be issued to any legislative body to enact a particular Act.

Writ cannot be issued against the President or Governor or a state

Writ cannot be issued when alternative remedies are available.

The sine qua non for mandamus is the existence of a statutory public

duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus.

Grounds for Writ of Mandamus : The Writ can granted against a public

authority if :

Acted against the law

Exceeded his limits of power

Acted with mala fides

Did not apply his mind

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Abused his discretionary powers

Did not take into account relevant consideration

Has taken into account irrelevant consideration

Limitations :

The primary scope and function of mandamus is to "command" and

"execute" rather than to "enquire" and "adjudicate". It cannot be issued to change the decision of a body so as to suit the petitioner. Obligations which are not of statutory nature cannot be enforced by mandamus.

The writ petition is not maintainable when a remedy provided for

under the Code of Civil Procedure is available. For example, the High Court cannot entertain writ petitions for mandamus to the Government who fails to deposit and pay in the requisite time an enhanced compensation account as ordered by a lower Court. The petitioners in this case would be directed to approach the executing Court for appropriate relief.

Go To Module-2 Questions.

Q : Explain : Writ of Certiorari.

Ans
Ans

:

Certiorari is the present passive infinitive of the Latin verb certioro,

certiorare ("to inform, apprise, show"). Thus, certiorari translates 'to be informed, apprised or shown'.

Certiorari, often abbreviated as cert, is a writ (order) of a higher court

to a lower court to send all the documents in a case to it so the higher court can review the lower court’s decision. Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court. A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court.

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However, unlike a writ of prohibition, superior courts issue writs of

certiorari to review decisions which inferior courts have already made. The writ of prohibition is the counterpart of the writ to certiorari which too is issued against the action of an inferior court. The difference between the two was explained by Justice Venkatarama Ayyar of the Supreme Court in the following terms :

When an inferior court takes up for hearing a matter over which it

has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings.

On the other hand, if the court hears the cause or matter and gives

a decision, the party aggrieved would have to move the superior court for a writ of certiorari and on that an order will be made quashing the decision on the ground of want of jurisdiction.

Grounds for issuance of Certiorari : Writ of certiorari can be issued on

any of the following grounds :

(a) Want or excess of jurisdiction

(b) Violation of procedure required to be followed.

(c) Violation of principle of natural justice.

(d) Error of law apparent on the face of the record.

Conclusion : Certiorari is a supervisory writ, serving to keep "all

inferior jurisdictions within the bounds of their authority, thereby protecting the liberty of subjects, by speedy and summary interposition"

Go To Module-2 Questions.

Q : Explain : Writ of Prohibition.

Ans
Ans

:

A writ of prohibition may be directed by any court of record (i.e.,

higher than a misdemeanor court) toward any official body, whether a court or central/ state/ local Government, that is within the court's jurisdiction. It is issued primarily to prevent such inferior court/ bodies

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from exceeding their jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge from hearing a case in which he is personally interested. Inferior courts include tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the property or rights of the citizen and acting in a summary way or in a new course different from the common law.

These Writs may be issued as “alternative” or “peremptory.”

An alternative Writ directs the recipient to immediately act, or

desist, and “Show Cause” why the directive should not be made permanent.

A

peremptory Writ directs the recipient to immediately act, or

desist, and “return” the Writ, with certification of its compliance, within a certain time.

The difference between writs of prohibition and certiorari, was

explained by Justice Venkatarama Ayyar of the Supreme Court in the following terms :

When an inferior court takes up for hearing a matter over which it

has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings.

On the other hand, if the court hears the cause or matter and gives

a decision, the party aggrieved would have to move the superior

court for a writ of certiorari and on that an order will be made quashing the decision on the ground of want of jurisdiction.

The writ is issued in both cases where there is excess of jurisdiction

and where there is absence of jurisdiction (S. Govind Menon vs. union of India, AIR 1967 SC 1274).

There may be a case where proceeding of an inferior court is partly

within and partly without jurisdiction. In those cases writ of prohibition will lie only against acts which are in excess/ without jurisdiction.

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The writ can be issued only when the proceedings are pending in a

court. If the proceeding has matured into decision, writ will not lie.

It is well established that the writ of prohibition lies only against ANY

body exercising public functions of a judicial or quasi- judicial character and cannot in the nature of things be utilized to restrain legislative powers.

Go To Module-2 Questions.

Q : Explain : Writ of Quo Warranto.

Ans
Ans

:

The meaning of the term Quo Warranto is ‘by what authority’. The writ

of quo warranto may be issued against a person holding a public office or governmental privilege. The issue of summon is followed by legal proceedings, during which an individual’s right to hold an office or governmental privilege is challenged.

The writ requires the concerned person to explain to the Court by

what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. The writ is issued by the Court after reviewing the circumstances of the case.

There are a few conditions which must be fulfilled for the grant of the

writ of quo warranto in India :

The concerned office must be a government unit or public office

which performs public duties. Examples of such office members are advocate general, university officials, members of a municipal board.

The public office must have a real existence. It should be

permanent and cannot be terminated.

A person against whom the writ of quo warranto is issued must

have the real possession of the public office.

The writ shall be issued only when the public office is held by a

particular person in an illegal manner

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The person initiating proceedings of writ of qua warranto need not

necessarily have a direct or personal interest as distinct from the interest which he may have in common with the public. It is open to a private individual to bring it to the notice of the Court that a person who is disqualified to hold an office is still holding it. This includes a voter or a member of any of the local bodies. A member of the Legislative Assembly of a State can apply for a writ of quo warranto against the Speaker. He has a right to know by what authority the Speaker of the body functions as such.

In this connection the following observations of the Nagpur High Court

in C.D. Karake v. T.L. Shevde may also be noted :

“In proceedings for a writ of quo warranto, the applicant does not seek

to enforce any right of his as such, nor does he complain of any non- performance of duty to him. What is in question is the right of the non-applicant to hold the office and order that is passed is an order outing him from that office.”

Go To Module-2 Questions.

Module-3) Fundamental Rights – II :

3

1)Right

to life and personal liberty, due process of law (Article

21)

3

2)Safeguards

against arbitrary Arrest and Detention

3

3)Right

to Freedom of Religion & Secularism

3

4)Prohibition

of Traffic in Human beings and forced labour

3

5)Prohibition

of Employment of Children in factories etc.

3

6)Right

to Education (Article 21 and 21-A and its

developments)

3

7)Cultural

and Educational Rights : Articles 29 & 30

Module-3 QUESTIONS :

Q : 2014 : Discuss the provision relating to fundamental right to protection

of life and personal liberty under Art-21.

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Q : 2012 : “No person shall be deprived of his life or personal liberty

except according to procedure established by law” Explain this statement.

Q : 2013 : Explain in detail the scope of personal liberty under Art-21.

Q : 2013 : What constitutional safeguards are provided for an arrested

person?

Q : 2014 : Explain the meaning of “secular state”. Critically examine the

right to freedom of religion under the constitution of India.

Q : 2013, 5 : Write short note : Secularism.

Q : 2015 : (Syllabus-2.4 & 3.4) Explain the provisions of the “right against

exploitation” with special reference to “trafficking in human beings”.

Q : 2015 : Explain in detail right to education with special reference to Art-

21 and Art-21A with its development.

Q : 2013 : Write short note : Right to education.

Q : 2014 : Explain : Free and compulsory education.

Q : 2012 : How does constitution of India afford protection to the cultural

and educational interests and rights?

Q : 2014 : Discuss the provisions relating to cultural and education rights

in respect of minorities under the Indian constitution.

Go To Contents.

Module-3 ANSWERS :

Go To Module-3 Questions.

Q

: 2014 : Discuss the provision relating to fundamental right to protection

of

life and personal liberty under Art-21.

 

Q : 2012 : “No person shall be deprived of his life or personal liberty

 
 

except according to procedure established by law” Explain this

 

statement.

 
 

Q : 2013 : Explain in detail the scope of personal liberty under Art-21.

 
Ans
Ans

:

http://www.legalserviceindia.com/articles/art222.htm

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The fundamental right under Article 21 is one of the most important

rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court. It is the most important and diverse of all the rights to freedom as guaranteed in our constitution. Further, 86th Constitution Amendment Act 2002 makes free and compulsory education to children under Art-21A as a fundamental right.

Art-21
Art-21

: Protection of Life and Personal Liberty :

No person shall be deprived of his life or personal liberty except

according to procedure established by law.

Art-21A
Art-21A

: Right to education :

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.

Discussion :

Though the phraseology of Article 21 starts with a negative word, the

word 'No' has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against state only.

Violation by private individual :

The fundamental right guaranteed under Article 21 relates only to

the acts of State or acts under the authority of the State which are not according to procedure established by law.

The main object of Article 21 is that before a person is deprived of

his life or personal liberty by the State, the procedure established by law must be strictly followed.

If an act of private individual amounts to encroachment upon the

personal liberty or deprivation of life of other person, then such violation would not fall under the parameters set for the Article 21. In such a case the remedy for aggrieved person would be either under Article 226 of the constitution or under general law. But, where an act of private individual supported by the state infringes

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the personal liberty or life of another person, the act will certainly come under the ambit of Article 21.

What is 'state' : The state cannot be defined in a restricted sense. It

includes Government Departments, Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, but it does not include non-statutory or private bodies having no statutory powers. For example: company, autonomous body and others.

Meaning of "Right to Life" : Right to life means the right to lead

meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down and it will be available not only to every citizen of the country.

Meaning of "Personal Liberty" : Personal Liberty means freedom from

physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution.

Meaning of "Procedure established by Law" : Procedure established by

Law means the law enacted by the State. Term 'Deprived' has also wide range of meaning under the Constitution. These ingredients are the soul of this provision.

The scope of Article 21 was a bit narrow till 1950s, as it was held by

the Apex Court in A K Gopalan vs State of Madras that the contents and subject matter of Article 21 and 19(1)(d) are not identical and they proceed on total principles. In this case the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19(1)(d). At that time Gopalans case was the leading case in respect of Art-21 along with some other Articles of the Constitution, but, post Gopalan, the scenario in respect of scope of Art-21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law.

Caselaws :

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Whether the reasonableness of a penal law can be examined with

reference to Article 19, was the point in issue in the case of Maneka Gandhi v. Union of India , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty. In this case the SC held that citizen's right is not only about having any kind of life but a life of dignity. The freedom is not just physical but mental as well as spiritual.

This view has been further relied upon in a case of Francis Coralie

Mullin v. The Administrator, Union Territory of Delhi and others as follows:

Article 21 requires that no one shall be deprived of his life or