Notes On 108 Constitutional Law Paper - I - V1.6 - by Ketan Bhatt

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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 ones 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.
http://duralex.bhatt.net.in/
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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..1)Preamble : purpose, objectives importance
1..2)Preamble Whether a part of the Constitution, Application of
Basic Structure Theory to the Preamble -
1..3)Amendment made in the Preamble : Effects thereof

1..4)Use of Preamble in Interpretation of Constitutional
Provisions
1..5)Salient 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 :
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 :
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 . 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), 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.
Q : 2015 : Explain : basic structure theory to the preamble / power of
parliament to amend the constitution.
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 Bhartis 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 Bhartis 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"
Q : 2013 : Write the preamble of the constitution. What amendments have
been made by 42nd constitution amendment act 1976?
Ans :
42nd Constitutional Amendment :
42nd 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 42nd 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 42nd Amendment :
- The Janata government then brought about the 43rd and 44th
Amendments in 1977 and 1978 respectively, to restore the pre1976 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
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 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 superimposes an elected president upon a cabinet system of government
which is responsible to the parliament.
Q : Discuss : Independence of the judiciary.
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.
Q : 2013 : Write short note : Federalism.
Q : 2015 : Constitution of India is quasi-federal Discuss.
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 dont 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
Page - 21 of 105
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 quasifederal 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.
Q : 2014 : Indian constitution can be both unitary as well as federal
according to the requirement of time and circumstances Discuss.
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.
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 :
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
http://www.legalservicesindia.com/article/article/position-offundamental-rights-during-emergency-589-1.html
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.
Page - 37 of 105
Q : 2015 : Explain meaning of law under Art-13.

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.
Q : What is meant by Judicial Review (Art-13)?
Ans :
hypothesis ---> https://en.wikipedia.org/wiki/Judicial_review

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.
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 :
http://www.legalblog.in/2011/02/right-to-equality-article-14reasonable.html
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 : 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.
Q : 2013 : Explain the constitutional provisions providing protective
discrimination for backward classes.
Ans :
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 :
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.
Page - 47 of 105
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.
Q : 2014 : Explain : Right against exploitation.
Ans :
Click here to read the answer
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 :
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 cant be suspended during
an emergency period.
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 cant 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 cant 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.
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 :
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 : [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)
Writ of Habeaus Corpus,
(ii) Writ of Mandamus,

(iii) Writ of Quo-Warranto,
(iv) Writ of Prohibition, and
(v)
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 (Fortythird 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 courts 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
Cannot Be Suspended
Emergency
Limited Scope (fundamental
Wider Scope (FR + Other Rights)
Rights Only)
Wider Jurisdiction (All Over India) Limited Jurisdiction (Concerned
State Only)
Q : 2014 : Explain : Habeas corpus writ.
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.
Q : 2014 : Explain : Writ of mandamus.
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 extraordinary 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
Page - 60 of 105
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.
Q : Explain : Writ of Certiorari.
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 courts 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.
Page - 61 of 105
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"
Q : Explain : Writ of Prohibition.
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
Page - 62 of 105
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.
Page - 63 of 105
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.
Q : Explain : Writ of Quo Warranto.
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 individuals 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
Page - 64 of 105
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 nonperformance 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.
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

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

of life and personal liberty under Art-21.
Page - 65 of 105
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 : Explain in detail right to education with special reference to Art21 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 :
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 :
http://www.legalserviceindia.com/articles/art222.htm
Page - 66 of 105
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 : 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 : 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
Page - 67 of 105
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 :
Page - 68 of 105
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
personal liberty except by procedure established by law and this
procedure must be reasonable, fair and just and not arbitrary,
whimsical or fanciful. The law of preventive detention has
therefore now to pass the test not only for Article 22, but also of
Article 21 and if the constitutional validity of any such law is
challenged, the court would have to decide whether the
procedure laid down by such law for depriving a person of his
personal liberty is reasonable, fair and just.
In another case of Olga Tellis and others v. Bombay Municipal
Corporation and others , it was further observed : Just as a mala
fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. It is therefore
essential that the procedure prescribed by law for depriving a
person of his fundamental right must conform the norms of justice
and fair play. Procedure, which is unjust or unfair in the
circumstances of a case, attracts the vice of unreasonableness,
thereby vitiating the law which prescribes that procedure and
consequently, the action taken under it.
The protection of Article 21 was further widened in the case of
Bandhua Mukti Morcha v. Union of India and others in respect of
bonded labour and weaker section of the society. It lays down as
follows :
Article 21 assures the right to live with human dignity, free from
exploitation. The state is under a constitutional obligation to see
that there is no violation of the fundamental right of any person,
particularly when he belongs to the weaker section of the
Page - 69 of 105
community and is unable to wage a legal battle against a strong
and powerful opponent who is exploiting him. Both the Central
Government and the State Government are therefore bound to
ensure observance of the various social welfare and labour laws
enacted by Parliament for the purpose of securing to the
workmen a life of basic human dignity in compliance with the
directive principles of the state policy.
It was observed in Unni Krishnan v. State of A.P. case that Article
21 is the heart of Fundamental Rights and it has extended the
Scope of Article 21 by observing that the life includes the education
as well as, as the right to education flows from the right to life. The
expanded scope of Article 21 has been explained by the Apex Court
in the case of Unni Krishnan wherein the Apex Court itself provided
the list of some of the rights covered under Article 21 on the basis
of earlier pronouncements. Some of these are listed below :
(1) The right to go abroad (Satvant Singh v Ass. Passport Office
AIR 1967).
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
As a result of expansion of the scope of Article 21, the Public Interest

Litigations in respect of children in jail being entitled to special
protection, health hazards due to pollution and harmful drugs, housing
for beggars, immediate medical aid to injured persons, starvation
deaths, the right to know, the right to open trial, inhuman conditions
in aftercare home have found place under it. Through various
judgments the Apex Court also included many of the non-justifiable
Directive Principles embodied under part IV of the Constitution and
some of the examples are as under:
(a) Right to pollution free water and air (Subhash Kumar vs State of
Bihar AIR 1991).
Page - 70 of 105
(b) Protection of under-trial.
(c) Right of every child to a full development.
(d) Protection of cultural heritage.
The Apex Court in the case of S.S. Ahuwalia v. Union of India and
others it was held that in the expanded meaning attributed to Article
21 of the Constitution, it is the duty of the State to create a climate
where members of the society belonging to different faiths, caste and
creed live together and, therefore, the State has a duty to protect
their life, liberty, dignity and worth of an individual which should not
be jeopardized or endangered. If in any circumstance the state is not
able to do so, then it cannot escape the liability to pay compensation
to the family of the person killed during riots as his or her life has
been extinguished in clear violation of Article 21 of the Constitution.
While dealing with the provision of Article 21 in respect of personal
liberty, Hon'ble Supreme Court put some restrictions in a case of
Javed and others v. State of Haryana , AIR 2003 SC 3057 as follows :
at the very outset we are constrained to observe that the law laid
down by this court in the decisions relied on either being misread or
read divorced of the context. The test of reasonableness is not a
wholly subjective test and its contours are fairly indicated by the
Constitution. The requirement of reasonableness runs like a golden
thread through the entire fabric of fundamental rights.
Conclusion : The Apex Court has time and again upheld importance on
reasonableness and rationality of the provision, and rules that, "in the
name of undue stress on Fundamental Rights and Individual Liberty, the
ideals of social and economic justice cannot be given a go-by".
Thus it is clear that the provision Article 21 was constructed narrowly
at the initial stage but the law in respect of life and personal liberty of
a person was developed gradually and a liberal interpretation was
given to these words. New dimensions have been added to the scope
of Article 21 from time to time. It imposed a limitation upon a
procedure which prescribed for depriving a person of life and personal
liberty by saying that the procedure which prescribed for depriving a
person of life and personal liberty by saying that the procedure must
Page - 71 of 105
be reasonable, fair and such law should not be arbitrary, whimsical
and fanciful.
It can be said that the protection of life and personal liberty has got
multi dimensional meaning, and any arbitrary, whimsical and fanciful
act of the State which deprives the life or personal liberty of a person
would be against the provision of Article 21 of the Constitution.
Q : 2013 : What constitutional safeguards are provided for an arrested
person?
Ans :
http://www.gktoday.in/article-22-and-preventive-detention-in-india/
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.
Art-22 : Protection against arrest and detention in certain cases :
(1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest nor
shall he be denied the right to consult, and to be defended by, a legal
practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey from
the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the
authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law
providing for preventive detention.
(4) No law providing for preventive detention shall authorize the
detention of a person for a longer period than three months unless
(a) an Advisory Board consisting of persons who are, or have
been, or are qualified to be appointed as, Judges of a High Court
Page - 72 of 105
has reported before the expiration of the said period of three
months that there is in its opinion sufficient cause for such
detention:
Provided that nothing in this sub-clause shall authorize the
detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-clause
(b) of clause (7); or
(b) such person is detained in accordance with the provisions of
any law made by Parliament under sub-clauses (a) and (b) of
clause (7).
(5) When any person is detained in pursuance of an order made under
any law providing for preventive detention, the authority making the
order shall, as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such
order as is referred to in that clause to disclose facts which such
authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of
cases in which, a person may be detained for a period longer
than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board in
accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class
or classes of cases be detained under any law providing for
preventive detention; and
(c) the procedure to be followed by an Advisory Board in an
inquiry under sub-clause (a) of clause (4).
Discussion :
Rights of an Arrested Person : Art-22(1) and 22(2) :
A person cannot be arrested and detained without being informed why
he is being arrested.
Page - 73 of 105
A person who is arrested cannot be denied to be defended by a legal
practitioner of his choice. This means that the arrested person has
right to hire a legal practitioner to defend himself/ herself.
Every person who has been arrested should be produced before the
nearest magistrate within 24 hours.
The custody of the detained person cannot be beyond the a period
decided by the authority of magistrate.
Exception :
However, Article 22(3) says that the above safeguards are not
available to the following :
If the person is at the time being an enemy alien.
If the person is arrested under certain law made for the purpose
of Preventive Detention
The first condition above is justified, because when India is in war, the
citizen of the enemy country may be arrested. But the second clause
was not easy to justify by the constituent assembly. This was one of
the few provisions which resulted in stormy and acrimonious
discussions.
Preventive Detention Laws : A person can be put in jail / custody for two
reasons. One is that he has committed a crime. Another is that he is
potential to commit a crime in future. The custody arising out of the later
is preventive detention and in this, a person is deemed likely to commit a
crime. Thus Preventive Detention is done before the crime has been
committed.
Issues :
The definition of Preventive detention itself is so confusing. For
example:
How one can say that a person will do a crime in future?
What are the implications of arresting a person without having
committed a crime?
Why Preventive Detention in peacetime. Isnt it against the
safeguards of our own citizens as provided by Article 22?
Page - 74 of 105
The preventive detention laws are repugnant to modern democratic
constitutions. They are not found in any of the democratic
countries. In England, the preventive detention law was resorted to
only during the time of war. Of the provisions of the Preventive
Detention are unlawful in most countries like USA & UK, then why
we India has such thing?
The answer of above question is as follows : India is a country having
multi-ethnic, mutli-religious and multi-lingual society. Caste and
communal violence is very common in India. Apart from that the
circumstances at the time , when our constitution came in force
demanded such provisions. This is evident from following statement of
Dr. Bhimrao Ambedkar:
.in the present circumstances of the country, it may be necessary
for the executive to detain a person who is tempering either with
the public order or with the defense services of the country. In such
case, I dont think that the exigency of the liberty of an individual
shall be above the interests of the state Dr. B R Ambedkar.
However, the provisions of the constitution seem to be ambiguous and
this ambiguity has been tried to do away with some provisions. These
provisions are mentioned in Article 22 (4), 22(5), 22 (6). Here is a
summary of these provisions :
Every case of preventive detention must be authorized by law
and not at the will of the executive.
The Preventive detention cannot extend beyond a period of 3
months.
Every case of preventive detention must be placed before an
Advisory Board composed of Judges of the High Court (or
persons qualified for Judges of the High Court)
The case must be presented before the Advisory Board within 3
months.
A continued detention after 3 months must be having approval of
the Advisory Board.
The person shall be given opportunity to afford earliest
opportunity to make a representation against the preventive
detention.
No person can be detained indefinitely.
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Article 22 (7) provides exception to the above provisions. This
Article mandates that :
When parliament prescribes by law the circumstances under
which a person may be kept in detention may be kept in
detention beyond 3 months without the opinion of the advisory
board.
Parliament by law can also describe under the same law, the
maximum period of detention.
Historical background of Preventive detention in India : India has a
long history of Preventive Detention. India is one of the few
countries in the world whose Constitution allows for preventive
detention during peacetime. The opponents to this law say that these
provisions are without any safeguards that elsewhere are understood
to be basic requirements for protecting fundamental human rights.
For example, the European Court of Human Rights has long held
that preventive detention is unlawful under the European
Convention on Human Rights regardless of the safeguards
embodied in the law.
The following are some historical landmarks related to Preventive
Detention in India : In India the history of preventive detention
dates back to the early days of the British rule when under the
Bengal Regulation III of 1818 (the Bengal State Prisoners
Regulation) the government was empowered to detain anybody on
mere suspicion.
Rule 26 of the Rules framed under the Defense of India Act 1939
allowed the detention of a person if it was satisfied with respect
to that particular person that such detention was necessary to
prevent him from acting in any manner prejudicial to the
defense and safety of the country .
Post Independence, The first Preventive Detention Act was
passed in 1950. The validity of this act was challenged in the
Supreme Court in the Gopalan v/s State of Madras Court. The
Supreme Court held this act constitutionally valid except some
provisions. This act expired in 1969, and before it expired, it was
amended for 7 times, each expansion was to make it valid for 3
more years and this it was extended till 31 December 1969.
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In 1971, the Maintenance of Internal Security Act (MISA) was
passed. MISA was basically a modified version of the PDA Act. It
was abolished in 1978.
Another law, Conservation of Foreign exchange and Prevention of
Smuggling Activities (COFEPOSA) was enacted in 1974 and it
continued.
In the heat of the terrorism in Punjab the Terrorist & Disruptive
Activities (Prevention) Act or infamous TADA was enacted in
1985. It was renewed in 1989, 1991 and 1993 and lapsed in
1995 due to increasing unpopularity due to widespread
allegations of abuse. The main abuse was that a confession
before a police officer, even though being given under torture,
was admissible as evidence in court.
Another similar act Prevention of Terrorism Ordinance (POTO) of
2001 came into force.
Both the TADA & POTO were later succeeded by another
controversial Prevention of Terrorist Activities Act (POTA) during
2002-04. This act was supported by the NDA Government but
later was scrapped by the UPA government.
After the Bombay attacks of November 26, 2008 parliament
enacted another anti terror law known as Unlawful Activities
(Prevention) Act.
Preventive Detention as Evil of Article 22 :
Constitution of India has several flaws and Article 22 is the worst
flaw in that.
Under Article 22, preventive detention may be implemented any
time and the constitution expressly allows an individual to be
detained without charge or trial so it is a devastating blow to
personal liberties of the citizens of the country.
It obviates the Article 4 of the International Covenant on Civil and
Political Rights (ICCPR) which permits that rights can only be
limited in time of public emergency which threatens the life of the
nation because it allows detention in peacetime as well.
It does not provide any procedural protections such as to reduce
detainees vulnerability to torture and discriminatory treatment;
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and to prevent officials misusing preventive detention for
subversive activities.
The long period of detaining (3 months) poses a threat of torture.
Constitution of India allows the government to pass preventive
detention laws against its own citizens in the name of national
security and maintenance of public order as per Entry 9 of List I
and Entry 3 of List III of the Constitution,
In the absence of proper safeguards, preventive detention has been
misused, particularly against the Dalits and the minorities.
The Power of states to form similar legislations has been misused.
Before a preventive detention case is brought before the High
Court, a three member Advisory Board headed by a sitting High
Court Judge is constituted by the government to examine whether
the detention is justified or not. But, the proceedings of the Board
are confidential except for that part of the report which expresses
the opinion of the Board.
Opponents View to Preventive Detention :
The constitutional philosophy of personal liberty is an idealistic
view, the curtailment of liberty for reasons of States security;
public order, disruption of national economic discipline, etc. are
envisaged as a necessary evil to be administered under strict
constitutional restrictions.
India is a large country and many separatist tendencies against the
national security and integrity existed and existing and a strict law
is required to counter the subversive activities.
The number of persons detained in these acts is not a very large
and due attention is made before preventive detention.
Having such kind of acts has a restraining influence on the antisocial and subversive elements.
The state should have very effective powers to deal with the acts in
which the citizens involve in hostile activities, espionage, coercion ,
terrorism, etc.
Such acts are required to deal with the antisocial elements such as
terrorist attacks on innocent people which target lot of lives.
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Conclusion: The PDA is a necessary evil. In a country like India
where a lot of subversive activities are being carried out by our own
citizens, the philosophy of the Article 22 remains valid even today akin
to the conditions prevalent in the country at the time of independence.
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.
Ans :
Intro : The Preamble establishes India as a Secular State. It means that
the state does not give any preference to any religion. India is a country
of multifarious religions, beliefs and sects. Its people profess and
practice different religions. But, India as a Union of states has no official
religion. There is no state-recognized place of worship. The state does
not identify itself with or favour any particular religion. State laws and
policies prohibit any discrimination on the grounds of religion. It treats all
religious equally and confers equal protection to citizens to profess,
propagate and practice their religions.
The word 'Secular' was added by the Constitution (forty-second
Amendment)Act, 1976. Even before the 42nd Amendment, operation of
the concept of secularism was visible in the Fundamental Rights and
Directive Principles. This has also been given the status of Basic
Structure of the Constitution in Keshavananda Bharati's case.
In the case of SR Bommai vs Union of India AIR 1994, SC held that
secularism is a basic feature of the constitution and a state govt. can
be dismissed on this ground. It further observed that no party can
simultaneously be a religious party as well as a political party.
What is religion : Constitution of India does not define the term
'Religion'.
THE CONCEPT : Identity crisis is amongst the major concern for men,
since its existence. For the same, we came up with an idea of
associating us with someone OR something greater than us. Namely,
GOD, something superior, sacred, divine and not human. The people
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with the same idea of GOD came together, gave themselves an
identity, shared common views on their culture and gave birth to
RELIGION. Many scholars have given considerably acceptable
definitions as "Religion is a Cultural System"
Interestingly, the term 'Law' shares the same problem as religion;
problem of an exact definition. Law can be considered as a set of rules
which controls the human conduct in the society. Law and Religion,
both conduct the human behavior, making them inseparable and they
intersect in todays world. Law is sanctioned by the State, whereas
religion is supposed to be sanctioned by GOD.
Legal definition : The Supreme Court has observed that : In the
background of the provisions of the Constitution and the light shed by
judicial precedent we may say that religion is a matter of faith. It is a
matter of belief and doctrine. It concerns the conscience, i.e., the
spirit of man. It must be capable of expression in word and deed, such
as worship or ritual SP Mittal v Union of India
Preamble :
The preamble to the Constitution, (which contains the ideals and
aspirations or the objects which the Constitution makers intended to
be realized), clearly proclaims that India is a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC. The expression "Socialist Secular"
was inserted in the preamble by the Constitution (42nd Amendment)
Act, 1976. The object of inserting this expression was to spell out
expressly the high ideas of socialism and secularism and the integrity
of the Nation. In short, the object of the Government, in making this
amendment was to make explicit what was already provided in the
Constitution.
Even before the word 'secular' was inserted in the preamble in 1976,
in 1973 the Supreme Court observed that secularism was a basic
feature of the Constitution. So far as secularism is concerned, Articles
25 to 30 provide for the same. In Kesavanada V State of Kerala (AIR
1973 S.C. 1461) and in Indira V Rajnarain (AIR 1975 S.C. 2299) the
Supreme Court has observed that by secularism it is meant that the
State shall not discriminate against any citizen on the ground of
religion only and that the State shall have no religion of its own and all
persons shall be equally entitled to the freedom of conscience and the
right freely to profess, practise and propagate religion. To spell out the
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above ideas which in fact existed prior to 1976, the preamble to the
Constitution was amended in 1976.
Fundamental Right :
The right to freedom of religion is a fundamental right guaranteed
under Article 25 of the Constitution of India. Article 25 reads as
follows : Art-25 : Right to Freedom of Religion :
(1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom
of conscience and the right freely to profess, practice and
propagate religion.
(2) Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law (a) regulating or restricting any economic financial political or
other secular activity which may be associated with religious
practice;
(b) Providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character to all
classes and sections of Hindus.
Explanation I. The wearing and carrying of Kirpans shall be deemed
to be included in the profession of the Sikh religion.
Explanation II. In sub-clause (b) of clause (2), the reference to
Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to
Hindu religious institutions shall be construed accordingly.
Discussion : Art-25 guarantees that every person in India shall have the
freedom of conscience and shall have the right to profess, practice and
propagate religion.
Restrictions : Rights under Art-25 are subject to the restrictions that
may be imposed by the State on the following grounds, namely : (1) public order, morality and health;
(2) other provisions of the Constitution;
(3) regulation of non-religious activity associated with religious
practice;
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(4) social welfare and reform;
(5) throwing open of Hindu religious institutions of a public
character to all classes of Hindus.
The freedom of religion conferred by this Article is not confined to
citizens of India alone but extends to all persons including aliens and
individuals exercising their rights either in their individual capacity or
on behalf of some church or institution.
A person has freedom to believe in the religious tenets of any sect or
community. The right is not only to entertain such religious beliefs as
may be approved by his judgment or conscience but also to exhibit his
sentiments in overt acts as are enjoined by his religion. According to
this Article, he may 'profess, practice and propagate his religion'.
To profess a religion means the right to declare freely and openly
one's faith. Modes of worship considered by a religion to be its
integral and essential part are also secured. Freedom of conscience
would be meaningless unless it is supplemented by the freedom of
unhampered expression of spiritual conviction in word and action.
To practice one's religion means a person's right to entertain beliefs
and doctrines concering matters, which are regarded by him to be
conducive to his spiritual well being.
The right to propagate one's religion means the right to
communicate the person's beliefs to another person or to expose
the tenets of that faih, but would not include the right to convert
another person to the former's faith, because the latter is equally
entitled to freedom of conscience.
Ofcourse, the any person is free to adopt another religion in the free
exercise of his conscience. Thus, Article 25(1) guarantees to every
person not only the right to entertain such religious beliefs as may
appeal to his conscience, but also the right to exhibit his belief in his
conduct by such outward acts as may appear to him proper in order to
spread his ideas for the benefit of others. Therefore, every person is
guaranteed the freedom to practice his religion- or to spread it if he so
wishes - if that freedom is not abused to commit crimes or indulge in
anti social activities.
Religious conversion is not a fundamental right :
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Any attempt to impose a ban on all religious conversions would
interfere with one's right to propagate one's religion under Article
25(1), apart from infringing the right to freedom of speech guaranteed
under Article 19(1) of the Constitution. The Supreme Court has held
that there is no fundamental right to convert another person to one's
religion as such a right would infringe on the right to freedom of
conscience guaranteed to all citizens of the country alike.
Rev Stainislaus vs State of M.P. (A.I.R. 1997 SC 908) : The Supreme
Court has upheld the validity of the Acts passed by the Madhya
Pradesh and Orissa Govts., which prohibited forcible conversion from
one religion to another in a manner reprehensible to the conscience of
the community and which made conversions by force, fraudulence or
allurement an offence.
The resultant position is that Article 25(1) of the Constitution does not
guarantee the right to convert but only the right freely to profess,
practice and propagate one's religion. Forcible conversion which is
likely to give rise to an apprehension of breech of public order and
which is reprehensible to the conscience of the community is not
permissible under this Article.
Ans :
http://www.legalservicesindia.com/article/article/extent-to-whichimmoral-trafficking-is-addressed-595-1.html
What is exploitation?
Ever since the dawn of civilization in every society, the stronger
exploited the weak. Slavery was the most prevalent and perhaps the
cruelest form of human exploitation. Our constitution does not
explicitly forbid slavery. The scope of Article 23 is far wide. Any form
of exploitation is forbidden. Thus forcing the landless labour to render
free service by the land-owner is unconstitutional. Equally, forcing
helpless women into prostitution is a crime. The intention of the
constitution is that whatever a person does must be voluntary. There
must not be any element of coercion involved behind a mans action.
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The state however may call upon citizens to render national service in
defence of the country. Thus conscription is not unconstitutional. But
in compelling people to render national service, the state must not
discriminate on grounds of race, sex, caste or religion.
What is human trafficking? : The most comprehensive definition of
human trafficking is the one adopted by the UN Office of Drugs and
Crime in 2000, known as the UN Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children, 2000
under the UN Convention against Transnational Organized Crime
(UNTOC). Accordingly,
a) Trafficking in persons shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or
use of force or other forms of coercion of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of
the giving or of receiving of payments or benefits to achieve the
consent of a person having control over another persons, for the
purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour services, slavery or practices similar to
slavery, servitude or the removal of organs;
b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subpara graph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have
been used;
c) The recruitment, transportation, transfer, harbouring or receipt of a
child for the purpose of exploitation shall be considered trafficking in
persons even if this does not involve any of the means set forth in
sub paragraph (a) of the article;
d) Child shall mean any person under eighteen years of age.
Constitutional provisions : The Indian Constitution specifically bans the

traffic in persons. Article 23, in the Fundamental Rights section of the
constitution, prohibits "traffic in human beings and other similar forms of
forced labour".
Art-23 : Prohibition of traffic in human beings and forced labour :
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(1) Traffic in human beings and begar and other similar forms of
forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.
(2) Nothing in this 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.
Art-24 : Prohibition of employment of children in factories, etc.
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.
Discussion :
The right against exploitation, given in Art-23 and 24, provides for two
provisions, namely the abolition of trafficking in human beings and
Begar (forced labour), and abolition of employment of children below
the age of 14 years in dangerous jobs like factories, mines, etc.
Forced labour : Child labour is considered a gross violation of the spirit
and provisions of the constitution. In an environment of all pervading
poverty, children are often forced to seek employment to earn a living.
Employers often find it less costly to engage child labour at a cheap
price. But children so employed do not get opportunities for
development. Thus, employment of child labor is a form of traffic in
human beings. Hence it is justifiably forbidden. But employment of
child labor cannot be effectively checked unless there is overall
improvement of economic conditions of the poorer sections of the
society. This provision of the constitution remains a pious wish even
today.
Trafficking in humans for the purpose of slave trade or prostitution is
also prohibited by law.
Exceptions : An exception is made in employment without payment
for compulsory services for public purposes. Compulsory military
conscription is also covered by this provision.
The income generated by trafficking is comparable to the money
generated through trafficking in arms and drugs. Trafficking in human
beings take place for the purpose of exploitation which in general
could be categorized as (a) Sexual and (b) Non-Sexual.
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(a) Human trafficking for sexual purpose : This includes trafficking
for prostitution, Commercial sexual abuse, Paedophilia,
Pornography, Cyber sex, and different types of disguised sexual
exploitation that take place in some of the massage parlours,
beauty parlours, bars, and other manifestations like call girl racket,
friends clubs, etc.
(b) Human trafficking for non-sexual purpose : Non sex based
trafficking could be for different types of servitude, like domestic
labour, industrial labour, adoption, organ transplant, camel racing,
marriage related rackets etc.
But the growing traffic in women is principally for the purpose of
prostitution. Prostitution is an international problem which can be
found in both developing and industrialized nations. Unfortunately,
society remains tolerant of this abominable crime against women.
There are ways of getting women into prostitution that are common to
many countries; then there are particular methods unique to a
country. Probably the three most common methods are false
employment promises, false marriages and kidnapping. But what
makes women and girls vulnerable are economic distress, desertion by
their spouses, sexually exploitative social customs and family
traditions.
Q : 2015 : Explain in detail right to education with special reference to Art21 and Art-21A with its development.
Q : 2013 : Write short note : Right to education.
Q : 2014 : Explain : Free and compulsory education.
Ans :
History :
Art-45 (original text) : The State shall endeavour to provide, within a
period of ten years from the commencement of this Constitution, for
free and compulsory education for all children until they complete the
age of fourteen years.
Note : Art-45 shall stand substituted by the 86th Constitutional
Amendment) 2002, (which is YET not in force, date to be notified)
as 45. The State shall endeavour to provide early childhood care
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and education for all children until they complete the age of six
years.
In 1992, India became signatory to the UN Convention on Rights of
the Child. Article 28 of this Convention asks the states to recognize
right of education for every child and make primary education
compulsory.
In 1993, Supreme Court Gave its landmark judgment in the
Unnikrishnan JP vs State of Andhra Pradesh & Others. In this case, SC
held that Education is a Fundamental right flowing from Article 21.
There are five articles in the constitution of India which have Children as
their special focus. These articles are Article 21A, 24, 39 & 45 and 51A
(k). Thus special provisions for children find place in our constitution in
Fundamental Rights, Directive Principles as well as Fundamental Duties.
Article 21A: The Right to Education inserted in constitution via 86th
amendment act. Article 24: No child below the age of 14 years shall be
employed to work in any factory or mine or engaged in hazardous
employment. Article 39 (f): The State shall, in particular, direct its policy
towards securing (f) that children are given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and dignity
and that childhood and youth are protected against exploitation and
against moral and material abandonment. Article 45 : The State shall
endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education
for all children until they complete the age of fourteen years. Article
51A(k): who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the age of
six and fourteen years.
Accordingly, 86th Constitutional Amendment of 2002 included the Article
21A in the Indian constitution making Education a fundamental Right.
This amendment, however, specified the need for a legislation to describe
the mode of implementation of the same which necessitated the drafting
of a separate Education Bill.
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.
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The Right of Children to Free and Compulsory Education (RTE) Act, 2009,
represents the consequential legislation as envisaged under Article 21-A.
Accordingly every child has a right to full time elementary education of
satisfactory and equitable quality in a formal school which satisfies
certain essential norms and standards. RTE Act describes the modalities
of the importance of free and compulsory education for children between
6 and 14 in India under Article 21A of the Indian Constitution. When the
act came into force in 2010, India became one of 135 countries to make
education a fundamental right of every child. With this, India has moved
forward to a rights based framework that casts a legal obligation on the
Central and State Governments to implement this fundamental child
right as enshrined in the Article 21A of the Constitution, in accordance
with the provisions of the RTE Act.
It is noteworthy that the title of the RTE Act incorporates the words free
and compulsory.
Free education means that no child, other than a child who has been
admitted by his or her parents to a school which is not supported by
the appropriate Government, shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from pursuing and
completing elementary education.
Compulsory education casts an obligation on the appropriate
Government and local authorities to provide and ensure admission,
attendance and completion of elementary education by all children in
the 6-14 age group.
The RTE Act provides for the:
Right of children to free and compulsory education till completion of
elementary education in a neighbourhood school.
It makes provisions for a non-admitted child to be admitted to an age
appropriate class.
It specifies the duties and responsibilities of appropriate Governments,
local authority and parents in providing free and compulsory
education, and sharing of financial and other responsibilities between
the Central and State Governments.
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It lays down the norms and standards relating inter-alia to Pupil
Teacher Ratios (PTRs), buildings and infrastructure, school-working
days, teacher-working hours.
It provides for rational deployment of teachers by ensuring that the
specified pupil teacher ratio is maintained for each school, rather than
just as an average for the State or District or Block, thus ensuring that
there is no urban-rural imbalance in teacher postings. It also provides
for prohibition of deployment of teachers for non-educational work,
other than decennial census, elections to local authority, state
legislatures and parliament, and disaster relief.
It provides for appointment of appropriately trained teachers, i.e.
teachers with the requisite entry and academic qualifications.
It prohibits (a) physical punishment and mental harassment; (b)
screening procedures for admission of children; (c) capitation fee; (d)
private tuition by teachers and (e) running of schools without
recognition,
It provides for development of curriculum in consonance with the
values enshrined in the Constitution, and which would ensure the allround development of the child, building on the childs knowledge,
potentiality and talent and making the child free of fear, trauma and
anxiety through a system of child friendly and child centred learning.
It defined "Children belonging to Disadvantaged Group" as a child who
Belongs to SC & ST, Socially and educationally backward class, or such
other group having disadvantage owing to social, cultural, economical,
Geographical, Linguistic, Gender or such other factors. These children
have the same right as of other children. The act mandates 25%
reservation for disadvantage sections of the society
it mandate that state will ensure that no non-teaching work is given to
the teachers. The act recommends quality teachers and mandates that
untrained teachers will have to upgrade themselves in 5 years.
Challenge to RTE Act 2009 :
RTE Act 2009 defines the schools as recognized schools
- that are aided by the government and local authorities
- that are not aided by the government and school authorities.
ie private schools have not been ruled out by the act. This mandate
is for all schools without exception
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An association of schools challenged the constitutional validity of
RTE Act. They claimed it to be an unconstitutional infringement on
the rights of private and minority schools and that the government
was trying to enforce reservation and regulate affairs of private
unaided and minority educational institutions. On 12 April 2012, a
three judge bench of the Supreme Court delivered its judgement by
a majority of 2-1. Held that providing such reservation is not
unconstitutional, but stated that the Act will not be applicable on
unaided private MINORITY schools and boarding schools.
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.
Ans :
Cultural and educational rights of the minorities are very important and
essential which work as a tool for the up-liftment of the minorities.
Culture plays a vital role for the congenial development of children who
belong to the community of minorities and that is why the preservation
of culture, language and religion are important.
Without education the progress of a community is not possible and the
transformation of a society depends on education.
All over the world it has been found that there is a huge gap between the
minority and majority communities. For the sake of equality and a
healthy relationship between the communities there need some special
right of the minority. The world human right documents also recognized
the cultural and educational rights of the minorities.
Definitions :
'Minority' : The word minority has not been defined by the
constitution. According to English Language Dictionary, minority
means: The Minority of people or things, is a number of them that
form less than half of the large group, used especially when the
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number is much less than half of the large group. Backward classes
are not minorities (Kerala Education Bill, 1958). They are treated as
part of Hindu community
'Culture' means : The custom and belief, art, way of life and social
organization of a particular country or group.
International position :
Right to Culture under Universal Declaration of Human Rights : Article
27 of the Universal Declaration of Human Rights says that "Everyone
has the right freely to participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its
benefits."
Here, the expression everyone has the right freely to participate in
the cultural life of the community implies that it is duty of
governments not merely to respect the right of everyone to
participate in the cultural life of the community but also to provide
everyone with the effective means of participating in the cultural
life6.
Educational Right under Universal Declaration of Human Rights :
Article 26(1) of the UDHR says that everyone has the right to
education. Education shall be free, at least is the elementary and
fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available
and higher education shall be equally accessible to all on the basic of
merit.
Situation in India : India is a vast land where resides different races,
languages, cultures and castes. Indian people are not integrated by
racial unity, unity of language and literature, geographical proximity,
historical unity, religious unity, unity of economic interest and cultural
unity. Hence, it is essential to protect the interest and identities of the
minority.
Cultural and Educational Rights of Minorities and Indian Constitution :
The Indian constitution guarantees Cultural and Educational Rights
under articles 29 and 30. In India education finds place in the
Concurrent list.
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The founding father tried to satisfy the hope, aspiration and desire of
the minority by safeguarding the cultural and educational rights of the
minority. At the Fifth Session of the Constituent Assembly of India, the
Chairman (The Honorable Dr. Rajendra Prasad) assured the
minorities :
To all the minorities in India we give the assurance that they will
receive fair and just treatment and there will be no discrimination in
any form against them. The religion, their culture and their language
are safe and they will enjoy all the right and privileges of citizenship,
and it will be expected in their turn to render loyalty to the country in
which they live and its constitution."
Article 29 : This article seeks to protect the interests of the minority
communities. This article confers the freedom to all citizens, residing in
different parts of the land, to conserve their distinct languages, scripts or
cultures. The state shall not impose upon it any culture other than the
communitys own culture.
This article further assures that no citizen shall be denied admission into
any state-run or state-aided educational institution on grounds only of
religion, race, caste, language or any of them.
Ref : Kerala Education Bill (1958) and State of Madras vs. Compakam
(1951).
Article 30 : It provides that all minority communities (religion or
linguistic), have the right to establish and administer educational
institutions of their choice. In granting aid to educational institutions, the
state shall not discriminate on the grounds of religion or language.
Art-30 confers,
The right to establish an educational institution by the minorities,
The right to administer it and
The right to get state-grants for it without discrimination.
The right stipulated in Article 30 is under the regulatory power of the

state. So long as the minority is not deprived of their right guaranteed by
the constitution, a law regulating certain matters concerning industrial
relation, academic matters and the like shall not be considered as
infringement on Article 30.
Page - 92 of 105
The Scope of Minority Rights :

The scopes of the rights of minorities are very wide. It is for the
protection of the interest of the minorities. By the virtue of the
constitutional mandate, the minorities are getting a special status. The
legal positions of the rights of minorities are subject to the regulatory
power of the State. It must be keep in mind that minorities in a State
must be counted on the basic religion or language only. Accordingly
SC and ST are not minorities.
Can a Madarsa Can be acquired by the Government? Yes, The article
30(1A) was inserted by the 44th Amendment Act 1978. This article
provides that if while making any law which provides for the
compulsory acquisition of any property of any educational institution
established and administered by a minority, the State shall ensure
that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate
the right guaranteed under that clause. This clause makes it clear that
such acquisition requires conformable compensation.
Right to administer education institution : In a single sentence, right to
administer means managing, maintaining, moulding, organizing and
planning, the internal affairs of the institution. In a very general sense
right to administer of a minority education institution indicates the power
to appoint teaching and non-teaching staff, admission of the student and
deciding the medium of instruction etc.
In Re Kerala Education Bill, the Supreme Court has observed : The
right conferred on the religious and linguistic minority to administer
educational institutions of their choice is not an absolute right.
Module-4) Directive Principles of State Policy and Fundamental Duties :

4..1)Directive Principles: Nature, ideals, Distinction from
Fundamental Rights & Inter-relationship with fundamental
rights
4..2)Non-enforceability of Directive Principles before the court
Page - 93 of 105
4..3)Classification of Directive Principles, Uniform Civil Code
4..4)Reading Directive Principles into Fundamental Rights
4..5)Fundamental Duties
Q : 2012 : Discuss the importance of Directive Principles of the state policy

and distinguish between the fundamental rights and Directive Principles of
state policy.
Q : 2013, 5 : Explain the directive principles and its nature. State the
distinction from fundamental rights & interrelationship with fundamental
rights.
Q : 2014 : Discuss the nature and importance of directive principles of
the state policy.
Q : 2013 : Write short note : Classification of directive principles.
Q : Distinction between Fundamental Rights and Directive Principles
Q : 2013, 5 : Write short note : Uniform civil code.

Q : 2012 : What are the fundamental duties of a citizen of India under partIVA of the Indian constitution? Discuss.
Q : 2013 : What are those fundamental duties abiding of which is binding
on every citizen of India?
Q : 2014, 5 : Explain in detail : Fundamental duties of citizen.
Go To Contents.
Module-4 ANSWERS :
Q : 2012 : Discuss the importance of Directive Principles of the state policy
and distinguish between the fundamental rights and Directive Principles of
state policy.
Q : 2013, 5 : Explain the directive principles and its nature. State the
distinction from fundamental rights & interrelationship with fundamental
rights.
Q : 2014 : Discuss the nature and importance of directive principles of
the state policy.
Q : 2013 : Write short note : Classification of directive principles.
Page - 94 of 105
Ans :
http://www.importantindia.com/2032/directive-principles-of-state-policyin-the-indian-constitution/
http://byjus.com/content/sitesimages/images/pdf/Polity-Lecture-2notes.pdf
The Constitution of India aims to establish not only political democracy
but also socio-economic justice to the people to establish a welfare state.
With this purpose in mind, our Constitution lays down desirable principle
and guidelines in Part IV. These provisions are known as the Directive
Principle of State Policy.
The Directive Principles of State Policy contained in Part IV, Articles 3651 of the Indian constitution constitute the most interesting and
enchanting part of the constitution.
The Directive Principles may be said to contain the philosophy of the
constitution. The idea of directives being included in the constitution was
borrowed from the constitution of Ireland. As the very term Directives
indicate, the Directive principles are broad directives given to the state in
accordance with which the legislative and executive powers of the state
are to be exercised.
As Nehru observed, the governments will ignore the directives Only at
their own peril. Directive principles seek to combine political justice with
economic and social justice.
Art-37 : Application of the principles : The provisions contained in this
Part shall not be enforceable by any court, but the principles therein laid
down are nevertheless fundamental in the governance of the country and
it shall be the duty of the State to apply these principles in making laws.
Classification of directive principles : The Directive Principles may be
classified into 3 broad categories
1
Socialistic
Gandhian and
Liberal-intellectual and International principles
(1) Socialistic Directives : Principal among this category of directives

are
(a) securing welfare of the people (Art. 38)
Page - 95 of 105
(b) securing proper distribution of material resources of the
community as to best sub serve the common-good, equal pay for
equal work, protection of childhood and youth against exploitation.
etc. (Art.39),
(c) securing right to work, education etc. Art. (41),
(d) securing just and humane conditions of work and maternity
relief (Art. 42) etc.
(2) Gandhian Directives : Such directives are spread over several Arts.
Principal among such directives are
(a) to organize village panchayats (Art. 40),
(b) to secure living wage, decent standard of life, and to promote
cottage industries (Art.43),
(c) to provide free and compulsory education to all children up to
14 years of age (Art. 45),
(d) to promote economic and educational interests of the weaker
sections of the people, particularly, the scheduled castes and
scheduled tribes,
(e) to enforce prohibition of intoxicating drinks and cow-slaughter
and to organize agriculture and animal husbandry on scientific lines
(Arts. 46-48).
(3) Liberal intellectual and International directives : Principal among
such directives are,
(a) to secure uniform civil code throughout the country (Art.44),
(b) to separate the judiciary from the executive (Art.50),
(c) to protect monuments of historic and national importance and
(d) to promote international peace and security.
(e) to strive to maintain just and honourable relations among
various states in the world.
(f) to promote respect for International treaties, agreements,
and law.
(g) to settle international disputes by arbitration
Discussion :
Page - 96 of 105
On the whole, Part IV contains a formidable list of directives given to
the executive and the legislatures to follow in issuing orders or making
laws. These directives make India a plastic state. The directives may
be used by any party with any ideology. In fact, the Directive
Principles are codified versions of democratic socialist order as
conceived by Nehru with an admixture of Gandhian thought.
Part IV of the constitution does not form an operative part of the
constitution. The directives are non-justiciable in character. The courts
cannot compel the governments to enforce the directives.
But if there is no judicial sanction behind the directives, there are
certainly political sanctions. Art. 37 make the directives, fundamental
in the governance of the country and in making laws. Hence the
government cannot totally ignore them, for fear of adverse popular
reaction. The opposition inevitably takes the government to task
whenever the directives are blatantly ignored, thus scoring a political
point.
Contribution of Directive Principles : Many critics have called these
Directive Principles of State Policy as not better than New Year
Greetings. Even the rationale of inserting such high sounding
promises has been questioned. It has been asserted that
Directives are in the form of holy wishes having no legal sanction
behind them. Government is not bound to implement them. Critics
point out that they are not formulated keeping the practical aspect
these ideals in mind. Despite all this, it can not be said that these
Principles are absolutely useless. They have their own utility and
significance. The Directive Principles are just like a polestar that
provide direction. Their basic aim is to persuade the government to
provide social and economic justice in all spheres of life. Many of them
have been implemented very successfully. Actually, no government
can afford to ignore these instructions as they are the mirror of the
public opinion and also reflect the basic spirit of the Preamble of our
Constitution. Some of the steps taken in this direction are being listed
below :
(1) Land reforms have been introduced and Jagirdari and Zamindari
systems have been abolished.
(2) There has been rapid industrialisation and tremendous increase
in the agricultural production through Green Revolution.
Page - 97 of 105
(3) National Commission for the Welfare of Women has been
established.
(4) Ceiling has been placed on land and property to fix the limit of
persons holdings.
(5) The privy purses of ex-princes have been abolished.
(6) Life Insurance, General Insurance and most of the banks have
been nationlised.
(7) In order to reduce economic disparity, Right to Property has
been deleted from the chapter on Fundmental Rights.
(8) Subsidized public distribution schemes have been launched to
help the poor people.
(9) The rules require that both men and women are paid equal
wages for equal work.
(10)Untouchability has been abolished. Sincere efforts have been
made for the upliftment of the SCs ,STs and of other Backward
Classes.
(11)Through 73rd and 74th Amendments to the constitution, (1991
& 1992 respectively), Panchayati Raj has been given the
constitutional status with more powers.
(12)Small scale and village industries and Khadi Gram Udyog have
been encouraged to bring prosperity to the rural areas.
(13)India has also been actively co-operating with the U.N. to
promote international peace and security.
Conclusion :
The non-justiciability of part IV has exposed the directives to
trenchant criticism. Jennings calls them pious aspirations, and
Fabian socialism without socialism. Where characterizes them as
paragraphs of generalities.
Yet many scholars appreciate the value of the directives. Sir B. N. Rau
regards them as moral precepts with an educative value. Ambedkar
considered them as powerful instruments for the transformation of
India from a political democracy into an economic democracy. The
directive principles according to Granville Austin, are positive
obligations to find a middle way between individual liberty and
Public good. The directives constitute a sort of instrument of
Page - 98 of 105
instruction to all governments in the great task of transforming a
laissez-fire society into a welfare state, a socialistic pattern of society
and eventually into a socialist society.
There are many hindrances in the non-implementation of Directive
Principles of State Policy. The main reasons are (a) lack of political
will on the part of the states, (b) lack of awareness and organized
action on the part of the people and (c) limited material resources
Q : Distinction between Fundamental Rights and Directive Principles
Ans :
The Fundamental Rights are claims of the citizens recognized by the
state. They are in the nature of denial of certain authority to the
government. They are, therefore, negative in nature.
The Directive Principles are like positive directions that the
government at all levels must follow to contribute to the establishment
social and economic democracy in India.
Another point of difference is that while the Fundamental Rights are
justiciable and are enforceable by the court of law, the Directive
Principles are non-justiciable. In other words, the Supreme Court and
the High Courts have the powers to issue orders or writs for enforcement
of Fundamental Rights. The Directive Principles of State Policy, on the
other hand, confer no legal rights and create no legal remedies.
However, this should not lead us to conclude that the Directive Principles
are inferior or subordinate to the Fundamental Rights.
Relationship between Fundamental Rights and Directive Principles :
Inspite of these differences, there is a close relationship between the
two. Fundamental Rights and Directive Principles are complementary
and supplementary to each other.
Whereas the Fundamental Rights establish political democracy, the
Directive Principles establish economic and social democracy. No
government can afford to ignore them while formulating its plans and
policies as it is responsible for all its actions to the people in general.
Page - 99 of 105
Although there is no legal sanction behind these principles, the ultimate

sanction lies with the people. The people with their opinion will never let
the ruling party to acquire power again if it fails to adhere to these
guiding principles.
Thus, our Constitution aims at bringing about a synthesis between
Fundamental Rights and Directive Principles of state
policy and together, they form the core of the Constitution
Q : 2013, 5 : Write short note : Uniform civil code.
Ans :
https://www.scribd.com/doc/186329134/Uniform-Civil-Code-in-India-Abrief
http://www.lawctopus.com/academike/need-uniform-civil-code-india/
I personally do not understand why religion should be given this vast,
expansive jurisdiction, so as to cover the whole of life and to prevent the
legislature from encroaching upon that field. -Dr. B R Ambedkar,
Constituent Assembly Debates
Article 44 lays down a very important directive principle, it says that
State shall endeavor to secure for its citizens, a Uniform Civil Code,
throughout the whole of India. Unfortunately as clarified by Article 37,
these directive principles are not enforceable by any court of law. But
they are fundamental to the governance of the nation.
Art-44 : Uniform civil code for the citizens :
The State shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India.
What is Uniform Civil Code : Uniform civil code would mean that all
citizens, irrespective of their religion, caste, community, gender etc.
would be governed by the same law in the matters of marriage, divorce,
adoption, guardianship, maintenance, inheritance, succession etc. This
will encourage and enhance national social integration and eliminate
contradictions and separation of ideologies based on religion. It would
also be effective in administration of justice, provide a common platform,
Page - 100 of 105

will protect those who are oppressed in society and promote national
unity, especially unity in thought when it comes to opinion on such
issues. These matters, as the SC opined, are of a secular nature and
should not be governed by religious thought. Some even debate over the
idea of an option uniform civil law on these matters, giving free choice to
citizens and being the first step in the direction of achieving Article 44. It
will also aid in changing social conditions of society.
Need for Uniform Civil Code and Situation (Except Goa) : Today, India
has a uniform system of criminal and commercial law that applies to all
persons regardless of their religious identity. However, citizens are
governed by separate personal laws often based on their religion, caste
and community. For example, Hindu law governs Hindus and prohibits
monogamy, while Islamic Law in India allows for monogamous
marriages. Hindu Marriage Act, Muslim Law Board, Parsi Marriage Act
etc.
Religion based marriage laws :
Hindu : The Hindu Marriage Act, 1955 is the marriage law
legislation applicable to the majority population, constituted of
Hindus, which is an Act to amend and codify the law relating to
marriage among Hindus.
Muslim : The Muslim Personal Law (Shariat) Application Act, 1937,
The Dissolution of Muslim Marriages Act,1939, The Muslim Women
(Protection of Rights on Divorce) Act, 1986 and The Muslim Women
( Protection of Rights on Divorce) Rules, 1986, apply to Muslims
living in India.
Christian : The Christian Marriage Act, 1872, was enacted as an Act
to consolidate and amend the law relating to the solemnization of
the marriages of Christians in India and the Divorce Act, 1869 as
amended in 2001, is an Act to amend the law relating to divorce
and matrimonial causes relating to Christians in India.
Parsi : The Parsi Marriage and Divorce Act, 1936 as amended in
1988, is an Act to amend the law relating to marriage and divorce
among the Parsis in India.
Special Marriage Act, 1954, as an Act to provide a special form of
marriage in certain cases, for the registration of such and certain
other marriages and for divorces under this Act. This enactment of
solemnizing marriage by registration is resorted to by Hindus, nonhttp://duralex.bhatt.net.in/
Page - 101 of 105

Hindus and foreigners marrying in India who opt out of the
ceremonial marriage under their respective personal laws.
These personal laws are varied in their sources, philosophy and
application. Thus, a major constraint arises while bringing people
governed by different religions under one roof.
A uniform civil code administers the same set of secular civil laws to
govern all people irrespective of their religion, caste and tribe. This
supersedes the right of citizens to be governed under different
personal laws based on their religion or caste or tribe. Such codes are
in place in most modern nations.
Situation in Goa (UT) : The Goa Civil Code, also called the Goa Family
Law, is the set of civil laws that governs the residents of the Indian state
of Goa. In India, as a whole, there are religion-specific civil codes that
separately govern adherents of different religions. Goa is an exception to
that rule, in that a single code governs all Goans, irrespective of religion,
ethnicity or linguistic affiliation. Thus, every birth, death and marriage is
to be compulsorily registered, equal division of property is to be done
irrespective of gender between husband and wife or between children.
There is rule of monogamy for all residents, and Muslims, who register
their marriage in Goa are prohibited to have more than one wife and
divorce is nonexistent on the pronouncement of triple talaq by the
husband.
Important Cases
Shah Banos Case (Mohd. Ahmad Khan v. Shah Bano Begum) in 1985 :
Shah Bano, a 62 year old Muslim woman and mother of five, was
driven out of her "matrimonial home" by her husband in 1975. In April
1978 she filed a case against her husband, Mohammed Ahmad Khan,
asking him for a maintenance amount of INR500. On November 1978
her husband gave an irrevocable talaq (divorce) to her which is his
privilege under Islamic Law. Mr. Khan then filed a case against Shah
Bano in the Supreme Court claiming that Shah Bano is not his
responsibility anymore because Mr Khan had a second marriage which
is also permitted under Islamic Law. Shah Bano, because she had no
means to support herself and her children, approached the courts for
securing maintenance from her husband. When the case reached the
Supreme Court of India, seven years had elapsed. The Supreme Court
invoked Section 125 of Code of Criminal Procedure, which applies to
Page - 102 of 105

everyone regardless of caste, creed, or religion. It ruled that Shah
Bano be given maintenance money, similar to alimony.
In 1986, the Congress, which had an absolute majority in Parliament
at the time, passed an act The Muslim Women (Protection of Rights on
Divorce) Act 1986 that nullified the Supreme Court's judgment in the
Shah Bano case. The Shah Bano case once again spurred the debate
on the Uniform Civil Code in India.
Sarla Mudgal v. Union of India (1995) : This case had 4 petitioners with
similar facts.
First, Kalyani, was a registered society, a welfare org. for needy
families and women in distress.
Secondly, Meena Mathur, her husband had married another women,
Sunitha alias Fatima, after a decade of their marriage, both her
husband and the woman he married had converted to Islam for the
sole purpose of polygamy. Sunita alias Fatima, contended that she
had converted to Islam and married the 2nd petitioners husband, a
son was born out of this union, he said afterwards, on insistence of
his earlier wife, he reverted back to Hinduism, and agreed to
maintain Meena and her children. She demanded protection and
maintenance under both personal laws.
Thirdly, Geeta Rani, was married in 88 and in 91, she learned that
her husband ran away with one Deepa, and after conversion to
Islam, married her.
Fourthly, Sushmita Ghosh, married in 84 and in 92 her husband
told her that he embraced Islam and was going to marry another
Hindu woman.
Bench, headed by Justice Singh, held that an errant Hindu husband
cannot circumvent the provisions of Hindu Law and would be
punishable under the IPC. He urged the need for uniform civil code in
the country at numerous times in the judgment.
Q : 2012 : What are the fundamental duties of a citizen of India under partIVA of the Indian constitution? Discuss.
Q : 2013 : What are those fundamental duties abiding of which is binding
on every citizen of India?
Page - 103 of 105

Q : 2014, 5 : Explain in detail : Fundamental duties of citizen.
Ans :
http://www.legalservicesindia.com/article/article/fundamental-dutiesunder-the-constitution-as-legally-enforceable-duties-under-differentstatutes-1778-1.html
The Constitution (forty-secondAmendment) Act, 1976 added Part IV-A,
Article 51-A on Fundamental Duties of citizens, to the Constitution. These
are eleven in number.
Art-51A : Fundamental Duties : It shall be the duty of every citizens of
India (a) To abide by the Constitution and respect its ideals and institutions,
the National Flag and the National Anthem;
(b) To cherish and follow the noble ideals which inspired our national
struggle for freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called
upon to do so;
(e) To promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
regional or sectional diversities; to renounce practices derogatory to
the dignity of women;
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures;
(h) To develop the scientific temper, humanism and the spirit of
inquiry and reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels of
endeavour and achievement.
(k) who is a parent or guardian to provide opportunities for education
to his child or, as the case may be, ward between the age of six and
fourteen years
Page - 104 of 105

Discussion :
The legal utility of fundamental duties is similar to that of the
directives; while the Directives are addressed to the state, so are the
duties addressed to the citizens, without any legal sanction for their
violation. The citizen, it is expected, should be his own monitor while
exercising and enforcing his Fundamental rights. He should keep in
mind that he owes the duties specified in Article 51-A to the State and
if he does not care for the duties, he does not deserve the rights.
Of course, the duties as such are not legally enforceable in the Courts
of law, but if a law has been made to prohibit any act or conduct in
violation of the duties, it would be reasonable restriction on the
relevant Fundamental Rights.
However, the fundamental Duties are not enforceable by mandamus or
any other legal remedy
Directions to State/Central Government.Since the Fundamental
Duties are not addressed to the State, a citizen cannot claim that he
must be properly equipped by the state so that he may perform his
duties under Article 51-A.
Courts have also used fundamental duty To safeguard public property
and to abjure violence while dealing with damage caused to public
property during various agitations and riots.
Supreme Court in Bijoe Emmanuel v. State of Kerala (AIR 1987
SC478) held that duties imposed on the citizens may be enforced
through the enactment of legislations.
For example 'The Prevention of Insult to National Honours Act,
1971'punishes a person who insults the national honours.
Also as stated by the Supreme Court in Mohan Kumar v. Union of India
AIR 1992 SC 1, the courts may enforce the duties while balancing and
harmonizing them with the Fundamental Rights.
Fundamental duties can be used for interpreting ambiguous statutes;
See Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455; Surya v.
Union of India, AIR 1982 Raj 1.
Conclusion
The Directive Principles of State Policy and Fundamental Duties are
sections of the Constitution of India that prescribe the fundamental
obligations of the State to its citizens and the duties of the citizens to
Page - 105 of 105

the State. The Fundamental Duties are defined as the moral
obligations of all citizens to help promote a spirit of patriotism and to
uphold the unity of India. These duties, set out in Part IVA of the
Constitution concern individuals and the nation. Citizens are morally
obligated by the Constitution to perform these duties. The
Fundamental Duties are however, not legally enforceable, i.e. without
any legal sanction in case of their violation or non-compliance.
There is a need for these duties to be obligatory for all citizens,
subject to the State enforcing the same by means of a valid law, or
else the law stands in a very disadvantageous position.
Go To Contents.
SUGGESTED READING :
Constitutional Law of India : D. D. Basu
Introduction to the Constitution of India D.D. Basu
Shorter Constitution of India : Durga Das Basu
Constitutional Law of India : V. N. Shukla
Constitutional Law of India : M. P. Jain
Constitution of India : J. N. Pandey
Constitutional Law of India (Vol. 1-3): H. M. Seervai
Constitutional law of India : P. M. Baxi
Introduction to the Constitutional Law of India : Narendra Kumar, Alahabad
Law Agency

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

Module-1) Preamble of the Constitution :

Module-1) Preamble of the Constitution :

1..3)Amendment made in the Preamble : Effects thereof

1..5)Salient Features of the Constitution of India

Q : Explain purpose, objectives and importance of Preamble

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

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

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

Q : Discuss : Independence of the judiciary.

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

DEMOCRATIC : Fundamental principle of democracy is that nation's

However the amendment of constitution have often been used to achieve

Unitary nature of Indian constitution : Indian constitution incorporates

Module-2) Fundamental Rights - I :

2..2)Right to equality and protective discrimination, Equality of

2..3)Freedoms guaranteed to citizens of India under Article 19

2..4)Right against exploitation, Abolition of untouchability and

2..5)Right of Self-incrimination and Principle of Double Jeopardy

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

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

Q : 2013 : Explain the constitutional provisions providing protective

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

Q : 2014 : Explain : Habeas corpus writ.

The rights that are basic to the advancement of the human

The history of legally enforceable fundamental rights

The most important advancement in history of fundamental

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

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

3. Quantification of Freedom : Even citizens in gulf countries

Article 14 guarantees to all persons equality before the

Article 15 : The state shall not discriminate against any

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

The citizens will not be subjected to any disability on

However, this brings us to an important question.

We have adopted the mantra of "equal treatment

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

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

Article 16 has guaranteed equality of opportunity in

Article 17 has declared untouchability in any form as

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

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

Equal protection of the law : The cases of Lindsley v

Principle of equality : Several cases such as Randhir Singh

2. Artticles 19-22 Right to Freedom :

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

Art. 20 gives protection with respect to conviction of

double jeopardy: A person cannot be charged with the

self incrimination: A person will not be forced to testify

Menaka Gandhi v Union of India AIR 1978 was a

Further, Constitution Amendment Act 86, 2002 makes

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

3. Art 23-24 Right Against Exploitation :

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

Of course, nothing in the above Article shall prevent

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

4. Art 25-28 Freedom of Religion :

Article 25 gives freedom of conscience and freedom to

Article 26 grants every citizen the right to establish and

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

Article 28 states "No religious instruction shall be

NB : The Articles relating to the freedom of religion have