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CONSTITUTIONAL LAW OF INDIA - I

TOPIC I INTRODUCTION

Constitution is the basic and fundamental law dealing with nature, function, power, working and
structure of the Government and its organs, ie, legislature, executive and judiciary. It also explains
the relation between State and citizens, their fundamental rights and duties. It is the lengthiest
Constitution in the world having 26 parts, 448 Articles and 12 schedules. The Constitution was
adopted on 26th November 1949 and it was enacted on 26th January 1950. The former day is
celebrated as National Law Day and later day is celebrated as National Republic Day. It contains
provisions in regard to legislative, administrative and judicial functions of the State. It embodies
detailed provisions regarding organization of Public Service Commissions, Election Commission,
Finance Commission, Commission on Schedule Caste and Commission on Schedule Tribes. The
Constitution envisages a dual structure of Government namely Union and States, but it only provide
single citizenship.

Constitution establishes India into a sovereign, socialist, secular and democratic republic. India is a
sovereign state with internal and external sovereignty. Our socialist concept is created on the spirit
of Gandhism and Marxism. Secularism is a basic feature of Indian Constitution. The words
Socialism and Secularism and integrity were incorporated in the 42nd Amendment in 1976. We
follow the concept of positive secularism. The Constitution is federal in character and quasi federal
in spirit. It create an Independent and impartial judiciary, which is separated from executive and
legislature.

TOPIC II PREAMBLE

We the people of India, having solemnly resolved to Constitute India into a Sovereign Socialist
Secular Democratic Republic and to secure to all its citizens,

Justice.social, economic and political

Liberty of thought, expression, belief, faith and worship

Equality of status and 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 twentysixth day of November, 1949, do Hereby Adopt, Enact and
give to ourselves this Constitution.

The preamble makes India in to a sovereign democratic republic. It is secular and socialist in
character.

The following are the objectives which the Preamble secures to every citizen.

Justice.social, economic and political

Liberty of thought, expression, belief, faith and worship.

Equality of status and opportunity

Fraternity assuring the dignity of the Individual and the Unity and integrity of the Nation

The following are the objectives which Preamble secures to Union of India.
1. Sovereignty
2. Socialism
3. Secularism
4. Democracy
5. Republic.

The word sovereign means that Constitution does not recognize legal supremacy of another country.
The word socialism means a society which ensure to its citizens economic and social equality and
justice. The term secularism means a State which has no religion of its own as recognized religion
of State. The term Democracy means a Government established by the Constitution which gets its
authority from the will of the people. The term Republic signifies that there shall be an elected head
of the State (President of India) who will be the Chief Executive Head.

The significance of the preamble is being explained by the judiciary at several occasions
through the following Judicial Decisions

Re BerubariUnion ,AIR 1960 SC 845. The Supreme Court held that the preamble is the key to
open the minds of the framers of the Constitution. The Court further held that Preamble contains the
basic intention, thought and dreams of the makers of the Constitution.

In GolakNathv. State of Punjab, 1967 AIR 1643, the Supreme Court upheld the decision of Re
Berubari and held that Preamble is not a part of Indian Constitution and therefore not subject to
constitutional amendment.

In KesavanandaBharathiv. State of kerala,(1973) 4 SCC 225, the Supreme Court rejected the
contention laid down in GolakNaths case and held that the Preamble is a part of the Constitution. It
can be amended without destroying the basic structure. In the same case the doctrine of basic
structure was adopted by the Supreme Court.It was also held that all the provisions in the Preamble
form part of the basic structure.

In Excel Wear v.Union of India,1979 AIR 25, the Supreme Court considered the effect of word
socialist in the preamble and held that socialism laid down in the Preamble is a basic structure of
Constitution and the above decision was upheld by the Supreme Court in Minerva Mills v. Union of
India,1980 AIR 1789,and

D.S. Nakarav.Union of India,1983 AIR 130.

In Indira Nehru Gandhi v.Raj Narayan1972 AIR 1302, the Supreme Court held that the
democracy laid down in the Preamble is a basic structure.

In S.R. Bommaiv. Union of India1994 AIR 1918, it was held that the secularism is the basic
structure of Indian Constitution.

TOPIC III THE UNION AND ITS TERRITORY (PART I) (ARTICLE: 1-4)

Name and territory of the Union (Article 1)

India, that is Bharat, shall be a Union of States. The State and the territories shall be specified in the
first schedule.

The territory of India shall include:


(a) The territories of the States.
(b) The union territories specified in the first schedule and

(c) Such other territories as may be acquired by the union.

The Union of India was formed not based on the agreement among the States. They are the creation
of the Parliament. The States have no right to succeed from the Union. The States can be formed
and changed by the Parliament for its convenience.

In the original Constitution the States were divided into three categories enumerated in Part A, Part
B and Part C of the first schedule. The number was 10, 8 & 9 respectively. With the gradual
assimilation of the princely states in 1956 the three types were converted into one and the number
was reduced to 15. Now, Union of India consist of 28 States and 7 Union Territories.

Admission or establishment of new States (Article 2).

The parliament by law admit into the Union or establish new states on such terms and conditions as
it thinks fit.

Formation of new States and alteration of areas, boundaries or name of existing States
(Article 3)

A new State can be formed in the following ways.

1. Separation of territory from any State or by uniting two or more States or part of States.
2. By increasing the area of any State.
3. By diminishing the area of any State.
4. By altering the boundaries of any State.
5. By altering the name of any State. .
As per Article 4 while exercising the power under Article 2 and 3, parliament by law can make
necessary changes to first and fourth schedule of Indian Constitution. Article 4 itself declares
that a law made under Article 2 and 3 shall not be deemed to be an amendment of the
Constitution within the meaning of Article 368.

TOPIC IV CITIZENSHIP (Part II) (Article 5 to 11)

Citizenship is defined as the official membership given to an inhabitant of a political community


having full fledged civil and political rights under the Constitution. The citizenship is the
membership of the State offered by the Constitution.

Citizenship at the commencement of the Constitution (Article 5).At the commencement of the
Constitution every person who has his domicile in the territory of India and

(a) Who was born in the territory of India, or


(b) Either of whose parents was born in the territory of India or

(c) Who has been ordinarily resident in the territory of India for not less than five
years immediately preceding such commencement shall be a citizen of India .

Pradeep Jain v.Union of India,1984 AIR 1420. In this case the Supreme Court held that there is
only one domicile i.e., domicile of the country and there is no separate domicile for a State.
Meaning of Domicile
Domicile means permanent home or place where a person resides with an intention to residing there
for an indefinite period. Domicile should be distinguished from residence. Mere residence in a place
is not sufficient to constitute domicile.

Right of citizenship of certain persons who have migrated to India from Pakistan (Article
6).The Article deals with citizenship of persons who have migrated to India from Pakistan. They
shall be deemed to be a citizen of India at the commencement of this Constitution.

(a) he or either of his parents or any of his grand parents was born in India as defined in the
Government of India Act, 1935; and

(b) (i) in the case where such person has so migrated before the 19th day of July 1948, has been
ordinarily resident in the territory of India since the date of his migration, or

(ii) in the case where such person has so migrated on or after the 19th day of July, 1948, he has
been registered as a citizen of India by an officer appointed in that behalf by the Government
of India and he should make an application for citizenship.

Provided that no person shall be so registered unless he has been resident in the territory of India for
at least six months immediately preceding the date of his application.

Rights of citizenship of certain migrants to Pakistan (Article 7)-A person who has after the 1st
day of March, 1947, migrated from the territory of India to the territory now included in Pakistan
shall not be deemed to be a citizen of India.

Provided that if a person returned to India from Pakistan under a permit for resettlement he can be
admitted as a citizen of India.

Rights of citizenship of certain person of Indian origin residing outside India (Article 8)-They
can acquire citizenship by submitting an application before the Diplomats and Counsellors office.

Persons voluntarily acquiring citizenship of a foreign State not to be citizens (Article 9)- No
person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by
virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign state.

Continuance of the rights of citizenship (Article 10)- According to this Article, person enjoys the
continuance of citizenship subject to the provisions of any law that may be made by the Parliament.

Parliament to regulate the right of citizenship by law (Article 11)- This Article empower the
Parliament to make any provision with respect to the acquisition and termination of citizenship and
all other matters relating to citizenship.

By the power conferred under Article 11 of Indian Constitution the Indian Citizenship Act 1955 was
enacted. The law relating to citizenship is now governed by Part II of the Constitution and Indian
Citizenship Act, 1955.

The Citizenship Act prescribes the following ways of acquiring citizenship.

The Citizenship Act 1955 provides provision for acquisition and termination of citizenship.

1. Citizenship By Birth- Every person born in India after 26th January 1950 is a citizen of India
by birth.
2. Citizenship by descent- A person who was born outside India on or after January 26, 1950
shall be a citizen by descent if either of his parents is a citizen of India at the time of persons
birth.

3. Citizenship by Registration- A person not covered by birth and descent may acquire
citizenship by registration if he satisfies certain conditions. Such persons fall in various
categories i.e., person married to citizens of India, persons of Indian origin, etc.

4. Citizenship by naturalization- It is citizenship offered by the Government of India to


foreigners. The following conditions are required.
(a) He must not be a citizen of a country where Indian citizens are prevented from becoming
citizens by naturalization.
(b) He has removed his citizenship of the other country.
(c) He must take on oath of allegiance.
(d) He is of good character.
(e) He must know any of the language recognised by the Constitution.
(f) He should affirm his intention to make India as his permanent land.

5. Citizenship acquired by incorporating of territory- If a new territory becomes part of India, the
Government shall specify the persons of that territory who shall be citizens of India. Termination
of Citizenship

The Central Government may deprive a persons citizenship if it is satisfied that

1. The certificate of registration or naturalization was obtained by means of fraud, false


representation, or the concealment of any material fact.

2. The citizen has shown himself by act or speech to be disloyal or disaffection towards the
Constitution of India.

3. The citizen has, during any war in which India be engaged, unlawfully traded or
communicated with an enemy or being engaged to or associated with any business.

4. The citizen has, within five years after registration or naturalisation being sentenced in any
country to imprisonment for a term of not less than two years.

5. The citizen has been ordinarily resident outside India for a continuous period of seven years
and during that period neither a student or in the Government of India or of an international
organization of which India is a member.

TOPIC V FUNDAMENTAL RIGHTS (PART III) (Articles 12 to 35)

The fundamental rights were incorporated from the U.S. Constitution. Part III is considered to be
the Magna Carta of the Indian Constitution. Fundamental Rights are the basic human rights without
which man cannot live as a human being. The dignity and worth of human being is included in
fundamental right. These rights are essential for man for developing his skill, talent, intelligent,
knowledge etc. Fundamental Rights offers some elementary rights such as right to life, liberty,
freedom of speech etc. Fundamental Right are not absolute. Almost all Fundamental Right are
subject to reasonable restrictions. These rights cannot be taken away by legislative process. Our
Constitution contains provisions for suspension of these rights. (Article 358 & 359).
The following are the classification of Fundamental Rights

(1) Right to Equality (Articles 14-18)


(2) Right to Freedom (Articles 19-22)

(3) Right against Exploitation (Articles 23-24)

(4) Right to Freedom of Religion (Articles 25-28)

(5) Cultural and Educational Rights (Articles 29-30)

(6) Right to Constitutional Remedies (Articles 32)

Definition of the term State (Article 12). The fundamental right enforceable against State is
clearly defined under Article 12 of the Constitution. The State under Article 12 means the Govt. and
Parliament of India and the Government and the legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government of India.

Judicial review have given a wide scope to the expression other authorities in Art. 12 Laws
inconsistent with or in derogation of the fundamental rights (Article 13)

As per Article 13(1) All laws in force in the territory of India immediately before the
commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III,
shall to the extent of such inconsistency, be void.

Article 13(2) states that the State shall not make any law which takes away or abridges fundamental
rights and any law made in contravention of this clause shall, to the extent of the contravention be
void.

As per Article 13(3)(a) Law includes any ordinance, order, bye-law, rules, regulation, notification,
custom or usage having in the territory of India.

As per Article 13(3)(b) Laws in force includes laws passed or made by a legislature or other
competent authority in the territory of India.

Article 13(4) has been incorporated in Part III in the 24th Constitutional Amendment in 1971. It
provides that nothing in this Article shall apply to any amendment of this Constitution made under
Article 368.

Judicial Review (Article 13)


Judicial Review means a comprehensive judicial enquiry of legislative and executive act. It is the
authority of the judiciary to interpret and pronounce upon the Constitutionality of a legislation. It is
also the power to reject the enforceability of any law which is unconstitutional. Article 13, Article
32 and Article 226 confer the power of judicial Review.

In AKGv.State of Madras ,1950 AIR 27The Supreme Court observed that Constitution is the
supreme law, any statute can be held valid only if it is in conformity with fundamental rights. The
judiciary have the absolute power to test the validity of any State action.

TOPIC VI RIGHT TO EQUALITY (ARTICLE 14 TO 18)

Equality before law and equal protection of law (Article 14)


As per Article 14, the State shall not deny to any person equality before the law or the equal
protection of the laws with in the territory of India. The concept of equality is derived from the
Universal Deceleration of Human Rights (UDHR) 1949. It originally derived from American and
British Constitution. All person are treated equal before law with out checking their caste, race, sex,
place of birth etc. Equal protection means equal law should be applied to all in the same situation.
The concept of equality is embodied in the preamble. The concept of Rule of Law has been
incorporated under Article 14 of the Indian Constitution which was propounded by an English jurist
Dicey. Under the Rule of Law, law is the supreme and all are subordinate to it. The King and
ordinary man are equal before law and they are not above the law. Protection of Article 14 extends
to both citizens and non-citizens and to natural persons as well as legal persons.

Reasonable Classification and Article 14.


Article 14 does not means that the same laws should be applied to all persons. All persons of our
society are not in the same position. So absolute equality is not possible. The different classes
requires separate treatment. Article 14 prohibits class legislation, but it allows reasonable
classification based on real and substantial grounds.

There are two tests.


1. Intelligible differentia
2. Rational nexus.

1. Intelligible differentia- The classification must be founded on intelligible


differentia which distinguishes person or things that are grouped together from others left out of the
group. They are:

(a) Intelligible differentia on geographical bases- A classification based on geographical limits, if


it is relevant to the purpose of law it is valid.
(b) Historical consideration- Classification based on historical consideration can be held valid if it
is not violative of the provisions of the Constitution. Some immunity from civil cases offered to ex-
rulers of India under Section 87 B of the CPC was justified by the court based on reasonable
classification on account of historical consideration.

(c) Classification on nature of person- Under Section 197 of the Cr.PCthe distinction made
between public officials and non officials is held valid. It requires the Government sanction for the
prosecution of public servant.

(d) The classification on the basis of nature of business- The classification into big business and
small business is held valid.

(e) Classification which treats State different from private persons is a valid rule.

(f) Classification based on the object of the law is permissible

(g) - In such case equals should be treated equally and unequals and equals should not be treated
alike.

(h) Discrimination in favour of person residing in backward area is permissible.

(i) Classification on the basis of profit motive and service motive is permissible.

(j) Classification on the basis of citizen and non-citizen is permissible.


2. Rational Nexus- The differentia must have a rational relation to the object
sought to be achieved by the concerned Act. In a classification the object to
be achieved in the legislation have rational nexus or relevance.
Classification should have a rational basis to the object of the law.

Prohibition of Discrimination on ground of religion, caste, race, sex or place of birth (Article
15)
Article 15(1) - states that the State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.

As per Article 15(2) the above discriminations are prohibited in shops, public restaurants, hotels and
places of public entertainment.

Article 15(3) Empowers the State to make special provision for women and children..

Article 15(4) was added by the 1st constitutional amendment in 1951, as a result of the decision in
ChempakamDuraiRajanv.State of Madras,AIR 1951 Mad 120. Under this clause, the State is
empowered to make special provisions for the advancement of any socially and educationally
backward classes of citizens or for the scheduled castes and scheduled tribes.

In ChempakamDuraiRajanv. State of MadrasAIR 1951 Mad 120. In this case the Madras
Government reserved seats in State Medical and Engineering Colleges for different communities in
certain proportion only on the ground of caste and religion. The State argued that it has a
constitutional duty to implement Article 46 of Indian Constitution which permits the State to make
laws for the advancement of economically and educationally backward classes. The court held that
the law is void because here the reservation was based on caste and religion only and therefore
violates Article 15(1). The court further held that unenforceable directive principle of state policy
(Article 46) cannot over ride enforceable fundamental rights (Article 15). In order to remove the
difficulty arised out of the above decision, Article 15(1) was added in first constitutional
amendment. .

Article 15(5)was included in 93rd Amendment, 2005. Nothing in this Article or in sub-clause (g) of
clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or unaided by
the State, other than the minority educational institutions referred to in Clause (1) of Article 30.

Equality of opportunity in matters of public employment (Article 16)

Under Article 16(1) there shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.

Article 16(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them, be ineligible for or discriminated against in respect of any
employment or office under the State.

Article 16(3) is an exception to Article 16(2) which prohibits discrimination on the ground of
residence. Residence may be laid down as a condition for particular classes of employment. But the
power to do such regulation is exclusively vested in parliament and not on the State legislature.
Article 16(3) enables parliament by law to prescribe residence within a state as a necessary
qualification for any particular class or classes of employment under the state.

Pradeep Jainv.Union of India ,1984 AIR 1420


. The Supreme Court held that, the residential requirements for admission to a medical college is
valid under Article 14 and Article 16(3) of Constitution.

The essentials of Article 16(3).


1. The qualification of residence is only for State service.

2. This is to be prescribed by the law of Parliament.

3. It is residence and not place of birth which is permissible.

4. It can be prescribed to whole of the State and not any part of the State.

Article 16(4). Nothing in this Article shall prevent the State from making any provision for the
reservation of appointments in favour of any backward class of citizens, which in the opinion of the
State, is not adequately represented in the services under the State.

Article 16(4) deals with protective discrimination in public employment. This Article was
introduced to offer reservation in Government or pubic employment to certain classes of Indian
community who are not adequately represented in the public employment. It must be only on the
basis of two consideration. One is that such classes of citizens are to be backward and secondly they
are not adequately represented in the service of the State. When the backward classes are given
reservation the State should not reduce the basic qualifications fixed for appointments.

Mandal Case.In 1979 Government of India appointed a Commission which was headed by
Shri.B.P. Mandal to investigate and trace out the other backward classes to offer reservation in
public employment. The Commission identified 3473 castes as backward classes and recommended
the reservation of 27% in the public employment.

The Mandal commission traced out the backward classes based on the following criteria.

(1) It include a caste, in a backward class it should be socially backward.

(2) The majority of caste is to earn its livelyhood from daily earnings.

(3) More than 25% of males and females should marry before the age of 17

(4) In such a caste, persons who are yet to pass SSLC should be less than 25%.

(5) More than 25% of such a caste should have an average income and wealth below 25% of the
state average.

(6) 50% of families of such a caste can get drinking water only from half a kilometer away from
their home.

On the basis of Mandal Commission report the Supreme Court has decided the historic case Indira
Sawhneyv. Union of India,AIR 1993 SC 477popularly known as Mandal Commission Case and
held that

(1) The decision of Government to reserve 27% for backward class seats in Government Service
is valid
(2) The decision to reserve 10% of Government job for the economically backward classes of
higher caste is illegal.
(3) The total reservation shall not exceed 50%
(4) Backward classes of citizens are to be identified on economic basis.
(5) Article 16 (4) is not an exception to Article 16(1)
(6) The backward classes are not be identified purely based on a single criteria alone.
(7) The dispute regarding any new criteria in this connection is to be raised only in the Supreme
Court.

Based on the directions of the Supreme Court the Central Government appointed an expert
committee under Justice Ramanandan to identify the creamy layer in the backward classes.

The committee identified the creamy layer on the following categories.

(1) President, Vice-President, Supreme Court judge and High Court judge, Chairman and member
of UPSC and PSC, Chief Election Commission, Controller and Audit General, Governors,
Ministers and Member of Legislatives.

(2) Class I officers of Centre and State public undertakings, Military and Para Military forces etc.

Article 16(4A) has been added in the 77th constitutional amendment in 1995. Nothing in this
Article shall prevent the State from making any provision for reservation (in matters of promotion,
with consequential seniority, to any class) or classes of posts in the services under the State in
favour of the Scheduled Castes and Scheduled Tribes which, in the opinion of the State, are not
adequately represented in services under the State. The words (in matters of promotion, with
consequential seniority, to any class) was added in 85th amendment, 2001.

Article 16(4B) was incorporated in 81st constitutional amendment in 2001. As per Article 16(4)B
the reservation shall be carried forward to the subsequent years in case of unfilled vacancies. They
are not be clubbed for finding out whether the quota of 50% has been exceeded.

In case of direct recruitment the spirit of Article 16(1) should be followed. Recruitment made
without advertisement to such post violates equality of opportunity and natural justice.

The main object of Article 16 is to create a constitutional right to equality of opportunity in the
matter of public employment. The right guaranteed under this Article is no longer available to a
foreigner.

Equal pay for equal work is a constitutional right guaranteed under Article 14, Article 16(1) and
Article 39(d).

Article 16(5) states that nothing in this Article shall affect the operation of any law which provides
that the incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a particular
religion or belonging to a particular denomination.

Abolition of Untouchability (Article 17)

The caste system is one of the oldest and most elaborate systems of social organization. It is based
on a religious philosophy which supports a functional division of society. These groups constitute a
hierarchy in which the Brahmins occupies the top position and Sudra the bottom one. Caste, as a
social institution has deep roots in our society. An individual, is born, lives and dies within the
limits of his caste. He therefore stays within the caste sentiments.

Article 17 of our Constitution abolishes untouchability. Untouchability is abolished and its practice
in any form is also forbidden. The enforcement of any disability arising out of untouchability shall
be an offence punishable in accordance with law. The principal object of Article 17 is to ban the
practice of untouchablility in any form. The term untouchabliity is not defined in the Constitution. It
is a social evil based on Indian caste system. It is the social disability imposed on certain classes of
persons by reason of their birth in certain caste. Article 17 enables the parliament to enact a law for
punishing the offenders who practice the evil of untouchablility. Accordingly the parliament enacted
the Protection of Civil Rights Act 1955. The right guaranteed under Article 17 is available not only
against State but also against private person. Any discrimination on the ground of untouchablility is
an offense. Such offence includes

(1) Prevention of a person from entering into any places of public worship based on caste.
(2) Creation of social disabilities.
(3) Prevention of entry into any shop or public restaurant or place of public entertainment.
(4) Refusal to admit persons into hospital etc.

Abolition of titles (Article 18)

Under Article 18(1) states that no title, not being a Military or academic distinction shall be
conferred by the State.

Article 18 (2) states that no citizen of India shall accept any title from any foreign State.

Article 18(3) No person who is not a citizen of India shall, while he holds any office of profit or
trust under the State, accept without the consent of the President any title from any foreign State.

Article 18(4) No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind from or under any
foreign state.

TOPIC VII RIGHT TO FREEDOM (ARTICLE 19 TO 22)

Protection of certain rights regarding certain freedoms (Article 19). They are

Freedom of speech and expression- Article 19(1)(a)

Freedom to assemble peacefully and without arms- Article 19(1)(b)

Freedom to form associations or unions- Article 19(1)(c)

Freedom to move freely throughout the territory of India- Article 19(1)(d)

Freedom to reside and settle in any part of the territory of India- Article 19(1)(e)

Freedom to practise any profession, or to carry on any occupation, trade or business- Article
19(1)(g)

The reasonable restrictions to the above freedoms are laid down in Article 19(2) to 19(6) inserted by
the First Constitutional Amendment in 1951.
The grounds for Reasonable restriction to freedom of speech and expression under Article 19(1)(a)
are dealt in Article 19(2). They are:

1. Sovereignty and integrity of India.


2. The security of the State.
3. Friendly relations with Foreign States
4. Public Order.
5. Decency or Morality
6. Contempt of Court
7. Defamation
8. Incitement to an Offence.

The restrictions under Article 19(2) can be imposed only by a law. It cannot be imposed by an
executive authority by way of rules, orders and byelaw. The Court is the real body to decide validity
of reasonableness.

Reasonable Restrictions under Article 19(1)(b) and 19(1)(c) are laid down in Article 19(3) and
Article19(4) are

1. Sovereignty and integrity of India


2. Public Order or Morality
Reasonable Restrictions under Article 19(1)(d) & Article 19(1)(e) are laid down in Article 19(5).
They are

3. Interest of General Public.


4. Protection of the interests of any scheduled tribe.
Reasonable Restrictions under Article 19(1)(g) is laid down under Article 19(6).

5. Interest of the general public.


6. Professional or technical qualifications necessary for practicing any profession or earning
on any occupation, trade or business. E.g. LL.B for Advocate, MBBS for Doctors, B Tech
for Engineers.
7. Monopoly of the State to carry any profession, business, trade or occupation. Example
Electricity, telecommunication, transport, etc.
The right under Article 19(1)(a) to Article19(1)(g) are available only to citizens.

Freedom of Speech and Expression


Article 19(1)(a) states that all citizens shall have the freedom of speech and expression. This right is
available only to citizens. This freedom is the basic stone of democracy. It refers to the freedom of
expression of ones ideas through any communicable medium or visible representation like
publication, signs, gestures, etc.

InCommunist Party of India (M)v.Bharat Kumar &Others,AIR 1997 Ker 291


, The Kerala High Court held that calling off for a bandh violate the rights guaranteed under Article
19(1)(a) & Article 21.

Freedom of Press
citizens have the right to know about the affairs of the Government. In this regard freedom of
speech and expression includes freedom of information. Right to Information Act of 2005 is an
outcome of Article 19(1)(a).

Freedom of Assembly and Association


Freedom of Assembly is the basic democratic right. But it should be peaceful, non-violent and
should not breach public peace. Article 19(1)(c) guarantees the freedom to form Association. The
right to form association means the right to form companies, societies, partnership, trade-union,
political parties, etc.

In BalaKotaihv.Union of India ,AIR 1958 SC 232. The Supreme Court held that public servant
defined under Section 21 of IPC has no right to form Association.

Right to move and settle

Lucyv.State of Goa,AIR 1990 Bom 355. It was held that a person suffering from AIDS can be
restricted in his movements by law.

Freedom of profession, trade or business


Article 19(1)(g) guarantees freedom to practice any profession, or to carry on any occupation, trade
or business. The order to close a shop for a day is a reasonable restriction for health and efficiency
of workers. The refusal to issue licence to a meat shop in a particular place based on law and order
problem is a reasonable restriction.

In Excel Warev. Union of India,1979 AIR 25,the Supreme Court held that the right to carry on
business under Article 19(1)(g) include right to stop or close down the business. No one has a
fundamental Right to carry on a business at a place decided by him.

Art.19(1)(d) to Art.19(1)(g) shows the unity of India.

Protection in Respect of Conviction for Offences (Article 20)

1. Protection against Ex post facto law. (Article 20(1))

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 or 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 legislature can make prospective as well as retrospective laws. But Article 20(1) prohibits the
legislature to make retrospective criminal substantive laws. But it does not prohibit imposition of
civil liability retrospectively. (A criminal procedural law can also have retrospective effect and it is
not prevented by Article 20(1))

In KedarNathv.State of West BengalAIR 1954 SC 660, the Supreme Court held that, a penalty
greater than that which he might have been subjected to at the time of the commission of the offence
is violation of Article 20(1) of the Constitution.
Protection against Double Jeopardy (Article 20(2))

Article 20(2) says that no person shall be prosecuted and punished for the same offence more than
once. It means that if he is prosecuted for the same offence for which he has already been
prosecuted he can take complete defence of his former conviction.

For the application of double jeopardy the following conditions must be fulfilled

1. The person must be accused of an offence.


2. The prosecution should have taken place before a competent Court or a Tribunal.
3. He is prosecuted and punished in the previous proceedings.
4. The offence should be of the same for which he was prosecuted and punished.
In MaqboolHussainv. State of Bombay,1953 AIR 325, the appellant brought gold into India
without legal authority. The gold was at first confiscated by the customs authorities. Later he was
charged on the offence under the Foreign Exchange Regulation Act (FERA). He claimed protection
under the principle of double jeopardy. The Court held that customs authorities is neither a Court
nor judicial Tribunal. Therefore prosecution under FERA is valid.

Prohibition against self-incrimination (Article 20(3))

Article 20(3) states that when a person has committed any offence shall not be compelled to be a
witness against himself.

The essentials of Article 20(3)

1. The person is to be accused of an offence.


2. There should be an element of compulsion to be a witness.
3. This compulsion is to be a witnesses against himself.
No witness can claim this protection. The immunity under Article 20(3) does not extend to
compulsory production of material objects or compulsion to give specimen writing, specimen
signature, finger impression or compulsory exhibition of the body or giving of blood specimens.

Protection of Life and Personal Liberty (Article 21)

No person shall be deprived of his life or personal liberty except according to procedure established
by law.

Important Points

1. It is a Fundamental right available to both citizens and non citizens.


2. The right under Article 21 is against executive and legislative action.
3. Right to protect life and personal liberty was incorporated from the US Constitution.
4. Right to life and personal liberty include a variety of other human rights of a person.
5. For the protection of Article 21 it is necessary to wipe out police cruelty and third degree
methods.
6. The right to travel abroad is a part of persons individual liberty so a person making his regular
travel outside the nation cannot be prevented without sufficient reason.
7. The refusal to grant bail even in a murder case without reasonable ground is a deprivation of
personal liberty under Article21.
The Right to life and Personal liberty includes

The Right to go abroad The Right to Privacy, The Right against Solitary Confinement, The Right to
legal aid, The Right to Speedy Trial, The Right against handcuffing, The Right against delayed
execution, The Right against custodial violence ,The Right against public hanging, The Right to
Shelter The Right to be treated by doctor ,The Right to education The Right to livelihood ,The Right
to live with human dignity, The Right to be released and rehabilitated, The Right to free and fresh
environment, the Supreme Court held that Article 21 guarantee not only right shelter but also right
to food, water, decent environment, medical care,. right to privacy is a right. The right to health
P. Rathinamv.Union of India ,1994 AIR 1844. The Supreme Court held that punishment for
attempt to commit suicide under Section 309 IPC is to unconstitutional because right to life include
right to die. But in GianKaurv. State of Punjab,1996 AIR 946, 1996 overruled the above
decision and held that right to die is not a fundamental right therefore Section 309 is not
unconstitutional.

Vishakhav.State of Rajasthan(1997) 6 SCC 241. The Supreme Court held that sexual
harassment in the workplace is a violative of Articles 14, 15(3) and 21 of the Constitution.

Air India Statutory Corporationv.United Labour Union[1997 (9) SCC 377]


. The Supreme Court held that right to work is not a fundamental right. But it can be claimed after
employment

The following cases the Supreme Court established the vicarious liability of the State and held
that right to life and liberty under Article 21 include right to compensation.

Peoples Union for Democratic Rights v. State of Bihar1987 AIR 355


. The Supreme Court directed to pay compensation to those who suffered injuries on account of
police atrocities.

Right to Education (Article 21A) (86th Constitutional Amendment 2002)


As per Article 21A, The State shall provide free and compulsory education to all children of the age
of six to fourteen years in such manner as the State may, by law, determine. The Right to Education
Act, 2010 is an outcome of Article 20A.

Protection against arrest and detention in certain cases (Article 22)

Article 22(1) states that a person arrested shall be informed the ground for his arrest and shall be
given the right to consult and to be defended by a legal practitioner of his choice.

Article 22(2) states that 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.

In D.K. Basuv.State of West Bengal (1991).In this landmark case, D.K. Basu, Executive Chairman
of Legal Aid services, West Bengal send a letter to Chief Justice of India reporting various reports
on death in police custody. The letter was considered as a writ petition and the Court issued
following guidelines regarding the arrest and detention of any individual.

1. The police personals carrying out the arrest should bear clear and visible identification and
name tag with their designation.
2. The police officer carrying out the arrest of a person shall prepare a memo of the arrest.
3. It is to be attested by either his relative or a respectable person of the locality.

4. A person who has been arrested must be allowed to communicate to another person or his
relative about the arrest.

5. The time and place of arrest is to be notified by the police to his relative or friend.

6. The person arrested must be made aware of his right to arrest.

7. Place of detention must be entered into the police diary kept by the officer.

8. On the request of the arrestee, condition of his body must be recorded at the time of his arrest.

9. The person should be subjected to Medical examination by a trained and approved doctor
within 48 hours.

10. Copies of all documents including the memo should be sent to the Magistrate of the locality.

11. The arrestee should be permitted to meet his lawyer as early as possible.

Article 22 (3) state that nothing is clause (1) and (2) of Article 22 shall apply.

a. to any person who for the time being is an alien enemy.

b. to any person who is arrested or detained under any law providing for preventive detention.

Article 22 (4) states that subject to certain conditions no law providing for preventive detention shall
authorize the detention of a person for a period longer than 3 months.

Article 22 (5) states that the detaining authority should inform the ground for detention.

Article 22 (6) states that the authority should not inform the ground for preventive detention if it is
against public interest.

Preventive detention means detention of a person without trial. The object of prevention detention is
to prevent a person from doing something on any grounds which are specified in the Constitution. It
is not a punitive detention. Preventive detention is needed when the evidence available is needed to
prevent a person from limiting such actions stipulated in the Constitution. .

TOPIC VIII RIGHT AGAINST EXPLOITATION


(ARTICLE 23 AND ARTICLE 24)

Prohibition of Traffic in Human Beings and Forced Labour (Article 23)

Article 23 (1) states that traffic in human beings and begging and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.

Article 23 (2) states that this Article shall prevent the State from imposing compulsory service for
public purpose and in imposing such service the State shall not make any discrimination on grounds
only of religion, race, or class or any of them.

Traffic in human beings refers to selling and buying of human beings, making use of them for
immoral purposes. Article 23 empowers the parliament to make laws under this provisions for
prohibiting and punishing this type of exploitation.
It also prohibit begging by any person. Begging means involuntary work without payments.

When labour or service is taken by the State, State cannot pay lesser wages. The customary practice
requiring each householder of the village to offer one days free labour to the Headman of the
Village is violative of Article 23.

In Vishal Jeetv.Union of India ,1990 AIR 1412, it was held that traffic in human beings includes
devadasis.

Prohibition of employment of children in factories, etc. (Article 24)

Under Article 24 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.

Article 24 prohibits employment of children below the age of 14 years in factories, mines, ships,
plantations and hazardous employment.

M.C. Mehtav.State of Tamil Nadu (1997).In this case the Supreme Court while interpreting Article
24 gave certain guidelines regarding Child Labour. They are;

1. To set up a Child Labour Rehabilitation Welfare Fund for rehabilitation of children.


2. To conduct a survey about working children within 6 months.

3. Employment given to the child should be only within his capacity.

4. Steps should be taken for rehabilitation and education of such children.

5. Working hours of child in non-hazardous work should not exceed 6 hours a day.

6. The Secretary of the Ministry of labour would submit its report within one year.

7. Court further directed to education; health and nutrition of child labour.

8. The offender employer should deposit Rs. 20,000 to child labour rehabilitation welfare fund.

9. Adult member of such child should be given employment.

10. The responsibility to implement the above conditions vested in State governments.

TOPIC IX RIGHT TO FREEDOM OF RELIGION


(ARTICLE 25 TO ARTICLE 28)

Freedom of conscience and free profession, practice and propagation of religion (Article 25)

Article 25(1) states that subject to public order, morality and health and to the other provisions of
Part III, all persons are equally entitled to freedom of conscience and the right to freely profess,
practice and propagate religion of his choice.
Article 25(2) states hatNothing 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.
Article 25(1) ensures equality of all religions, thereby promoting secularism

Freedom of conscience under Article 25(1) means the absolute inner freedom of the citizen to his
own relation with God, in the manner that he profess.

To profess religion means to declare freely and openly ones faith and belief. To practice means to
perform the prescribed religious duties, rites and rituals and to exhibit his religious beliefs. To
propagate, means to spread and publish ones religious views for others. Religion is a matter of
faith, but belief in God is not essential to constitute religion.

Grounds for Reasonable restrictions for Article 25(1)

1. Public Order
2. Morality
3. Health
4. Other provisions of Part III.
In Church of God in India v. KKR Majestic Colony Welfare Association ,AIR 2000 SC
2773. the Supreme Court held that no religion prescribes that payers should be performed by
disturbing the peace of others.

Freedom to Manage religious affairs (Article 26)

Subject to public order, morality and health, every religious denomination or any section of these
shall have the right to establish and maintain institutions for religious and charitable purposes.

a. To manage its own affairs in matters of religion.


b. To own and acquire movable and immovable property and
c. To administer such property in accordance with law.
Grounds for reasonable restrictions for Article 26 are public order, morality and health.

Freedom as to payment of taxes for protection of any particular religion (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.

Tax means compulsory extraction of money by public authority for public purpose and not
payment made for service rendered. The public money collected by way of tax cannot be spent for
the promotion of any particular religion. Article 27 is one of the essential element of secularism
because there is equal treatment for all religion for taxing matters. Secularism means a republic
where there is equal treatment for all religion. Under Article 27 if the State extracts money through
a tax whose proceeds are assigned for the benefit of a particular religion, obviously the State shall
favour that particular religion. It is prohibited in India. In these regard there is a clear difference
between tax and fee. Fee for religious practice can be charged for defraying expenses of
administrative regulations.

Freedom as to attendance at religious instruction or religious worship in certain educational


institutions (Article 28 )

Article 28(1) states that No religious instruction shall be provided in any educational institution
wholly maintained out of the State funds.

Article 28(2) states that Nothing in Clause (1) shall apply to an educational institution which is
administered by the State but has been established under any endowment or trust which requires that
religious instruction shall be imparted in such institution.

In case of institution wholly maintained by the State, no religious intervention can be imparted.
Institutions recognized by the State or institutions that are receiving aid out of State funds, religious
instructions can be imparted. Institution that are administered by the State, but are established by
any trust then there shall be no restriction on religious instructions.

TOPIC X CULTURAL AND EDUCATIONAL RIGHTS (ARTICLE 29-30)

Protection of interests of Minorities (Article 29)

Article 29(1) states that any Section of the citizens residing in the territory of India or any part there
of belong a distinct language, script or culture of its own shall have the right to conserve the same.

Article 29(2) states that no citizen shall be denied admission into any educational institutions
maintained by the state or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them.

Right of Minorities to establish and administers educational institutions (Article 30)

Article 30(1) states that all Minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.

Article 30(2) provides that 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.

The word Minority has not been defined in the Constitution. The term Minority includes only
those non-document groups in a population which possess and wish to preserve stable ethnic,
religious or linguistic traditions of characters marked by different from those of the rest of the
population.

Article 30(1) guarantees two rights on the minorities.

(1) The right to establish an educational institution and

(2) The right to administer the institution so established.

St. Xaviers Collegev.State of Gujarat,1974 AIR 1389. The Supreme Court held that the right
conferred under Article 30(1) is not as absolute right there are some regulations in this right.

In Manager St. Thomas, U.P. School and another v. Commissioner and Secretary to General
Education Department and others, AIR 2002 SC 756, it was held that the school established
and administered by an individual of a minority community for the benefit of the community is
entitled to the benefit of a minority institution.

TOPIC XI RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

Remedies for enforcement of rights conferred by Part III (Article 32)

Article 32(1),The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by part III of Constitution.

Article 32(2), the Supreme Court shall have power to issue directions or orders or units, including
writs in the nature of habeas Corpus, mandamus, prohibition, quo warrantoand certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of
Constitution.

Article 32(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).

Article 32(4),The right guaranteed by this Article shall not be suspended expect as otherwise
provided by the Constitution.

A declaration of fundamental rights is meaningless unless there is an effective machinery for the
enforcement of the rights. In this regard Article 32 is the heart and soul of the Constitution. Article
32 of Indian Constitution empowered the Supreme Court to issue writs. As per Article 32 five kinds
of writs are recognised. They are Habeas Corpus, Mandamus, Prohibition, Quo Warranto and
Certiorari. In India the Supreme Court and High Courts are legally authorised to issue writs. Article
226 empowered the High Court to issue writs.

IMPORTANT POINTS
1. The right guaranteed under Article 32 is itself a fundamental right.
2. Article 32 can be only invoked, when there is violation of fundamental right.
3. The right cannot be suspended except as provided in Article 359.
4. As per Article 32, Supreme Court is the guarantor of fundamental rights.
5. An aggrieved person may approach the Supreme Court in the first instance.
6. Availability of alternate remedy is no bar to relief under Article 32.
7. There is no territorial limitation of the powers of the Supreme Court under Art. 32. The
writ issued by Supreme Court operates all over India.
8. The grant of a writ is not discretionary but as a matter of right.
9. The right cannot be abridged or taken away by legislation.
10. As per Article 32(3) the parliament has the power to make and confer the writ
jurisdiction to any court within the territory of India.
11. Writ jurisdiction has been incorporated from England and in England this jurisdiction
of court is called prerogative writs.

12. Locus Standi. It means the legal capacity of a person to initiate court proceedings. A person
who approaches the court must prove his right to sue for a particular case. But this rule does
not strictly apply in the case of a writ like Habeas corpus and Quo-warranto. In the case of
public interest litigation locus standi is liberal. Justice Bhagawati and Justice Krishna Iyer
liberalized the concept of locus standi in Public Interest Litigation.

13. Amenability to Writ Jurisdiction. Amenability means against whom the writ lie. A writ of
Habeas corpus may be issued against a public authority as well as a private individual and a
writ of quo-warranto can be issued only against a public office. Writ of Mandamus can be
issued only against public authority. A writ of prohibition and Certiorari are issued only
against subordinate courts, tribunals and quasi judicial authority.

14. Alternative Remedy. An alternative remedy is not a bar to issue writ under Article 32. But as
per Article 226 alternative remedy is a bar. Writs are considered to be extra-ordinary judicial
remedies. The High Court will not therefore issue a writ if there is an alternative remedy
available to the petitioner.

15. Delay and Laches. Laches means inordinate delay. The Limitation Act, 1965 is not
applicable to writ proceedings. If the court finds that there is inordinate delay in filing the writ
petition without sufficient cause, the court may dismiss the petition on that grounds.

16. Writ Jurisdiction under Article 32 and Res Judicata. The Rule of res judicata has been laid
down in Sec.11 of CPC, 1908. As per Sec.11 res judicata means once a matter is finally
decided by a court or forum then no party can be permitted to reopen it in subsequent
litigation. Hence a writ petition decided by High Court under Article 226 cannot be reopen in
Supreme Court under Article 32 of Constitution. The general principle of res judicata applies
to writ petitions under Article 32. InGulamSarvarv.Union of India1967 AIR 1335, the
Supreme Court held that the rule of res judicata is not applicable in case of a writ of habeas
corpus.

KINDS OF WRITS

1. Certiorari

The writ of certiorari is issued to quash a decision taken by an inferior court, administrative tribunal
or quasi-judicial authorities. A writ of certiorari is issued against an authority if such authority acts
without jurisdiction, in excess of its jurisdiction or fail to exercise jurisdiction vested in it by law.
Moreover a writ of certiorari may be issued by High Court or Supreme Court if there is an error of
law which is apparent on the face of record or if there is any non-observance of natural justice from
a court or tribunal.

2. Prohibition

If a judicial or quasi judicial authority exceeds its jurisdiction or tries to exercise jurisdiction not
vested in it then the writ of prohibition can be issued. When an inferior court take up for hearing a
matter over which it has no jurisdiction the person against whom the proceeding are taken can move
the Supreme Court and High Court for a writ of prohibition. The moral underlying the writ of
prohibition is prevention is better than cure. The writ of prohibition is issued by a superior court
to an inferior court or tribunal from exercising jurisdiction which is not vested in it. It forbids and
compels the inferior court or tribunal to travel outside its legal limits or jurisdiction and also
prevents it from violating the rules of natural justice..

3.Quo-warranto

Quo-warranto literally means what is your authority. The writ of quo-warranto may be
issued against the holder of a public office of a substantive nature. In this type of writ the person
concerned is called upon to the court to explain by what authority he holds the office. The court by
this writ examines the legality of the claim of a person to a public office or franchise. Quo-warranto
proceeding is an exception to the rule that only a person who is aggrieved may apply for a writ.
4. Mandamus

Mandamus literally means a command or an order. It is a command directing any public authority to
do the thing or perform the act specified in the writ. The thing or act must be in the nature of a
public duty. The command is issued to do or not to do a particular act to a public authority..

Mandamus will not lie:-


1. Where there is a discretion to act or not to act as distinguished from a duty the authority cannot
be ordered to exercise the discretion.
2. Against a private individual or organisation unless they are entrusted with a public duty.
3. Against a company even though it may be a government company.
4. The President or the Governor of a State for the exercise or performance of the duties of his
office.
5. The High Court or its Chief Justice or a Judge acting in judicial capacity provided it may lie in
its administrative capacity to question the appointments or disciplinary orders.
5. Habeas corpus

Habeas Corpus literally means have his body. This writ is issued against unlawful detention.
Unlawful detention is violative of Article 21 of Indian Constitution. Unlawful detention means
detention without the support of law. This is a writ in the nature of an order calling upon the person
who has detained another to produce the latter before the court. The object of the writ of the Habeas
corpus is to release a person from illegal detention and not to punish the detaining authority.

In KanuSanyalv. District Magistrate1974 AIR 51, the Supreme Court held that a writ of Habeas
Corpus shall be issued where:-
1. the detention is in violation of the prescribed rules of procedure.
2. The order of arrest is in violation of any law.
3. A person has been detained by private individual.
4. A person is detained under a law which is unconstitutional.
5. The order of detention is malafide.
ADM Jabalpur v.ShivakantShukla1976 AIR 1207is known as the Habeas Corpus case.
National emergency was proclaimed in 1975, as a result of internal disturbances, the president
issued, an order, suspending enforcement of Article 14, 21 and 22. The question before the Supreme
Court was whether the right to personal liberty could be enforced in a court of law since it was
suspended. By a majority of four to one held that the judicial protection against illegal arrest and
detention would be zero and petitioner did not have any standing to approach the court.
Fundamental Rights and National Emergency
As per Article 358, at the time of national emergency on the grounds of war or external aggression,
right guaranteed under Article 19 is automatically suspended.
As per Article 359, at the time of national emergency President by order is empowered to suspend
any of the fundamental rights except Article 20 and 21 guaranteed under Part III of the Constitution.
TOPIC XII SAVING OF CERTAIN LAWS
Article 31A, 31B and 31C which provides immunity to certain laws from challenge on the ground
of violation of the fundamental rights conferred by Article 14 or 19.

1. Saving of Laws Providing for Acquisition of Estate (Article 31-A)


Article 31-A was added by the First Constitutional Amendment Act, 1951 which provides that a
law which comes under any of the Sub clauses of a Clause (1) of this Article shall not be open to
challenge on the ground of infringement of Article 14 or Article 19. But such law is a law made by
the legislature of a State, the provisions of Article 31A will apply only if the law has been assented
by the President.

The Sub clause of Clause (1) of Article 31-A are:

1. Acquisition of Estates (Article 31-A(1)(a))


2. Taking over the management of property (Article 31-A-(1)(b))
3. Amalgamation of corporations (Article 31-A(1)(c)) and Article 31-A(1)(d).
4. Modification of Rights of Mine Owners. (Article 31-A(1)(e).
2. Validation of Certain Acts and Regulations (Article 31-B)
Article 31-B provides that to the generality of the provisions contained in Article 31-A none of the
Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be
deemed to be void, on the ground that such Act, Regulation or provision is inconsistent with, or
taken away or abridges any of the rights conferred by any provision of Part III, and notwithstanding
any judgment, decree or order of any court or tribunal to the contrary, and each of the said Acts and
Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue
in force.

Article 31-B was added in First Amendment Act in 1951. It is to be read with Ninth Schedule to the
Constitution which was also added by the Constitution (First Amendment) Act, 1951. The object
was to protect certain Acts and Regulations from being declared void on the ground of their being
violative of fundamental rights.

3. Saving of Laws Giving Effect to Certain Directive Principles (Article 31-C)


Article 31-C was inserted by the Constitution Twenty Fifth Amendment Act, 1971which provides
that no law giving effect to the policy of the State towards securing the directive principles
contained in Article 39(b) or Article 39(c), shall be deemed to be void on the ground that it is
inconsistent with or takes away or abridges any of the rights conferred by Article 14 and Article 19.

TOPIC XIII IMPORTANCE OF ARTICLE 33 TO 35

Members of Armed Forces and Fundamental Rights (Article 33)


Article 33 enables the parliament to modify fundamental rights in relation to military, para-military,
police and analogous forces. The object of Article 33 is to ensure proper discharge of their duties
and the maintenance of discipline among the members of these forces. The restrictions on
fundamental rights under Article 33 can be imposed only to parliament by law.

Restrictions on Fundamental Rights during the Operation of Martial Law (Article 34)
Article 34 empowers the Parliament by law indemnify any person for acts done during the operation
of martial law. This power of parliament is subject to two conditions. They are:

(1) the act must have been done in connection with the maintenance or restoration of order
and
(2) martial law must be in force in the area where the act was done.

Legislation to give Effect to the Provisions of Part III (Article 35)


As per Article 35(a)(i) Parliament to make laws with respect to any of the matters which under
Article 16(3), Article 32(3), Article 33 and Article 34, Parliament alone competent to do so and no
State legislatures have power to do so.

Article 35(a)(ii) further confer on parliament to make laws for prescribing punishments for those
acts which are declared offences under Part III relating to fundamental rights.

TOPIC-XIV DIRECTIVE PRINCIPLES OF STATE POLICY - (PART IV) (ARTICLE 36-


51)

The Directive Principles of State Policy are the ideals which the Union and State Government must
keep in mind while they formulate policy or pass a law. The Directive Principles of State Policy lay
down certain economic and social policies to be pursued by the various governments in India. It is
classified into social and economic charter, social security charter and community welfare charter.

Definition of State (Article 36). In this Part, unless the context otherwise requires, the State has
the same meaning as in Part III.

The Directive Principles of State Policy are addressed to the State. The term State has been defined
by Article 36 to have the same meaning as is given to this term in Article 12 of the Constitution
relating to fundamental rights. Therefore the term State not only includes the legislature and the
Executive but it also includes its agencies and instrumentalities.

Exclusion of judicial review in relating to the subject of Part IV (Article 37).The provisions
contained in Part IV shall not be enforceable by any court, but the principle 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.

State to secure a social order for the promotion of welfare of the people(Article 38). It ensure
the State to promote as the welfare of the people.

Article 38(1)- The State shall strive to promote the welfare of the people by securing and protecting
as effectively as it may a social order in which justice, social, economic and political, shall inform
all the institutions of the national life.

Article 38(2)- The State shall, in particular, strive to minimize the inequalities in income, and
endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in different areas or engaged in different
vocations.

Certain principles of policy to be followed by the State.(Article 39). They are

They are,

a. Equal right of men & women to adequate means of livelihood.


b. Distribution of ownership and control of the material resources of the community to the
common good.
c. Distribution of wealth into different levels of economy.
d. Equal pay for equal work for both men and women.
e. To protect health and strength of workers.
f. To give sufficient opportunities and facilities to children to dwelling their intellectual &
physical skill and Child hood.
Equal justice and free legal aid.(Article 39 A).42nd Amendment, 1976. The State shall secure that
the operation of the legal system promotes justice, on a basis of equal opportunity and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure
that opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities.

Kishorev. State of Himachal Pradesh ,1990 AIR 2140Supreme Court held that legal aid is a
right under Article 21 & 39A.

Organization of village panchayats (Article 40).The State shall take step to organize village
panchayats and confer them with such powers and functions as may be necessary.

Right to work, to education and to public assistance in certain cases (Article 41). It states that
the State shall, within the limits of its economic capacity and development, make effective provision
for securing the right to work, to education and to public assistance in case of unemployment, old
age, sickness and disablement.

Provision for just and human conditions of work and maternity relief (Article 42).

Living wage, etc., for workers (Article 43). The State shall endeavour to secure, by suitable
legislation or economic organization or in any other way, to all workers, agricultural, industrial or
otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full
enjoyment of leisure and social and cultural opportunities and, in particular, the State shall
endeavour to promote cottage industries on an individual or co-operative basis in rural areas.

Participation of workers in management of industries (Article 43A) (42nd Amendment, 1976.)

Uniform civil code for the citizens (Article 44). The State shall endeavour to secure for the
citizens a uniform civil code throughout the country.

Provision for free and compulsory education for children (Article 45).It provide childhood care
and education for all children until they complete the age of six years 86th Amendment, 2002.

Promotion of educational and economic interests of scheduled caste, scheduled tribes and
other weaker sections (Article 46). The State shall promote with special care, educational and
economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Duty of the state to raise the level of nutrition and the standard of living and to improve
public health (Article 47). The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its primary duties
and, in particular, the State shall endeavour to bring about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Organizing agriculture and animal husbandry (Article 48).


Protection and improvement of environment and safeguarding of forests and wild life (Article
48 A).(42nd Amendment, 1976).The State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country.

Protection of monuments and places and objects of national importance (Article 49). It shall be
the obligation of the State to protect every monument, place or object of artistic or historic interest.

Separation of judiciary from executive (Article 50).

Promotion of International Peace and Security (Article 51).

The State shall endeavour to-

(a) promote international peace and security


(b) maintain just and honourable relations between nations
(c) foster respect for international law and treaty obligations in the dealings of organized people
with one another, and
(d) encourage settlement of international dispute by arbitration.

TOPIC - CONCEPT OF BASIC STRUCTURE

The doctrine of basic structure or framework of the Constitution owes its evolution in the ratio of the
majority judgments in KeshavanandaBharati in the year 1973 in which the Supreme Court held that while
parliament has the power to amend any provision of the Constitution in accordance with the procedure for
amendment laid down by the Constitution itself. This power cannot be so exercised as to alter or destroy the
basic structure or framework of the Constitution. Thus the amending power of parliament is absolute but is
limited in scope. This was a new theory propounded by the Supreme Court for Judicial review of
Constitutional amendments.

The need for making this doctrine is evolved from Sankari Prasads case ,1951 AIR 458 in which the
Supreme Court held that constitutional amendment will be valid even if it abridge or takes away any of the
fundamental rights.

In Sajjan Singhs case,1965 AIR 845, the Supreme Court held that the word amendment of the
Constitution means amendment of all the provisions of the Constitution.

In Golaknaths case,1967 AIR 1643) the Supreme Court by a majority of 6 to 5 prospectively


overruled its earlier decisions in Sankari Prasad and Sajjan Singh cases and held that parliament has no
power from the date of that decision to amend part III of the Constitution so as to take away or abridge the
fundamental rights. Inorder to remove difficulties created by the decision of Supreme Court in Golaknaths
case parliament enacted the 24th Amendment Act.

The 24th Amendment, not only restored the amending power of the parliament, but also extended its scope
by adding the words, to amend by way of the addition or variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this.

The validity of the Constitution (24th Amendment) Act 1971 was challenged in KesavanandaBharativ.State
of Kerala (1973), popularly known as Fundamental Rights Case. The Court by majority 7 to 6 overruled
the Golaknaths case which denied parliament, the power to amend fundamental rights. The Court held that
under Article 368, the parliament can amend the constitution without destroying the basic structure or
framework of the Constitution.
Following are the basic structure of the Constitution according to the Supreme Court as laid down in
KesavanandaBharatis,1973) 4 SCC 225case.

1) Supremacy of the Constitution


2) Republican and democratic form of Government
3) Secular character of the Constitution
4) Federal character of the Constitution
5) Separation of power between the legislative, the executive and the judiciary
6) Sovereignty of the country.
7) Dignity of the individual
8) Unity and integrity of the nation
9) Parliamentary democracy and
10) Judicial review under Article 13.
In Indira Gandhi Case,1975 AIR 1590,the Supreme Court applied the theory of basic structure. The
Supreme Court added the following features as basic features of the Constitution.

(1) Rule of Law under Article 14


(2) Judicial Review under Article 13
(3) Democracy, which implies free and fair election Article 324
(4) Jurisdiction of the Supreme Court under Article 32.
In Minerva Mills v. Union of India,1980 AIR 1789, the following were declared as basic structure.

(1) Judicial review


(2) Democratic form of Government
(3) Rule of Law
TOPIC XV FUNDAMENTAL DUTIES (PART IV A) ARTICLE 51A (42nd Amendment,
1976)

The fundamental duties has been incorporated under the recommendations of Swaran Singh
Committee. It initially had 10 fundamental duties. Eleventh one was added in the 86th Amendment,
2002.

It shall be the duty of every citizen 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. (86th Amendment, 2002)
. Certain direct principles of state policy are judicially recognized as part of Article 21. They
are:

1. Article 39(a) states that the citizens, men and women equally, have the right to adequate
means of livelihood. In Olga Tellisv.Bombay Municipal Corporation1986 AIR 180, the
Supreme Court has declared that the right to life guaranteed by Article 21 include the right to
livelihood.

2. Article 39(d) states that there is equal pay for equal work for both men and women. In P.R.
RamachandraIyerv.Union of India,1984 AIR 541the Supreme Court held that denial of
equal pay for equal work for both men and women is violative of Article 14, Article 16 and
Article 21 of Indian Constitution.

3. Article 39A deals with equal justice and free legal aid. In HussainaraKhatoonv.Home
Secretary, Bihar,1979 AIR 1369, In ManubhaiPragaji v. State ofMaharashtra,1996
AIR 1. The Supreme Court held that the State is held to be under a duty to provide legal
assistance to the poor and weaker sections and it must pay to the lawyer as fixed by the court.
In this regard right to life include right to free legal aid.

4. Article 41 and Article 45 of Indian constitution emphasis the importance of right to education.
In Unni Krishnan v.State of A.P.,1993 AIR 2178. The Supreme Court held that right to life
include right to education. 86th Constitution amendment was the outcome of the above judicial
decision, a new Article 21A was inserted in the said amendment which guarantee free and
compulsory education to children up to the age of 14 years.

5. Article 48A requires that the State shall endeavour to protect and improve the environment and
to safeguard the forests and wildlife of the country. In M.C. Mehta v. Union of India,1987
AIR 1086, the SC held that pollution free environment is part of right to life of individuals,
in this regard right to life include right to pollution free environment.

TOPIC XX LEGAL DOCTRINES UNDER INDIAN CONSTITUTION

1. Doctrine of Severability
This doctrine shall be applied to those cases when there is an issue of invalidity and unconstitutional
of any part of a statute. Then the question arises, whether the whole Act should be declared void or
only that part, which is inconsistent with the Constitution. Article 13(2) provide that the State shall
not make any law which taken away or abridges the rights conferred by Part III and any law made in
contravention of this clause shall, to the extent to the contravention, be void. The word to the
extent to the contravention, be void means the entire statute is not void only that part of statute
which is inconsistent with fundamental rights only void.

In a particular section of a statute, there may be more than on sub-sections. Sometimes the first sub-
section may be valid and the second void. In such a case, the court may delete the second sub-
section by treating it as severable. This doctrine was applied by Supreme Court in RMD
Chamarbangwallav.Union of India1957 AIR 628,. In this regard an invalid portion of a statute
does not vitiate entire provisions of the statute. The constitutional courts are competent to declare
the invalid portion as void and remaining portion as valid.

Exception
This doctrine is subject to one exception. Sometimes, it happens that valid and invalid parts are so
closely mixed up that they cannot be separated. In such case the whole Act is held to be void.

2. Doctrine of Eclipse
According to this doctrine where a pre-constitutional law is unconstitutional on the ground of
violation of fundamental rights. The law may be revived by the removal of that limitation by an
amendment of the Constitution with effect from that date on which the amendment comes into
effect, the impugned law is absolutely valid. This law was merely eclipsed for the time being by the
fundamental rights. As soon as the eclipse is removed from the law, it becomes enforceable against
citizens as well as non-citizens.

In MahendraLal Jainv.State of UP ,1963 AIR 1019, the Supreme Court held that the doctrine of
eclipse is applicable only to pre-Constitution laws and not to post Constitution laws.

3. Doctrine of Ultra Vires


The word ultra vires literally means beyond or beyond power. Article 13(2) prohibits the State to
make any law which takes away or abridges rights conferred by Part III of the Constitution. If a
State makes such a law then it will be ultra vires and void to the extent of the contravention. This is
the principle of ultra vires. Hence in such cases a totally new Act has to be enacted. In short, all
laws made after the commencement of the Constitution, and inconsistent with fundamental rights
become void ab initio.

However there are two exceptions.

1. Article 13(2) is subject to Article 31C. As per Article 31C, any law made for the purpose of
implementing the principles contained in Article 39(b) and 39(c) were no longer to be subject
to the provisions of the fundamental rights laid down by Article 14 and 19 of the Constitution.
In other words such laws may violate these articles and still shall be valid. Hence by virtue of
Article 31C, Directive Principles of State Policy contained in Article 39(b) and Article 39(c)
will have superiority over the fundamental rights contained in Article 14 and Article 19.

2. Article 13(2) is also subject to Article 13B which save all Acts and Regulations specified in
the 9th Schedule even if they or any provisions of the Acts and Regulation are inconsistent with
or take away or abridge any of the fundamental rights. This protection is however available
only to those Act and Regulations inserted before the date of the historic judgement in
KeshavanandaBharati v. State of Kerala(1973)4 SCC 225. The validity of the Acts inserted
after that date will be decided on the touchstone of basic structure of the Constitutions.

4. Doctrine of Waiver
This doctrine has been incorporated from USA. This doctrine means that a person cannot waive his
fundamental rights. there is no waiver of ones fundamental rights. These rights have been put in the
Constitution not merely for the benefit of the individual but as a matter of public policy for the
benefit of the general public.

5. Doctrine of Prospective Overruling


Prospective overruling means the overruling of a well-established precedent limited to future
situations. This doctrine has been incorporated by the Supreme Court from the Supreme Court of
America. In GolakNathv. State of Punjab,1967 AIR 1643) the Supreme Court overruled it
earlier decisions namely Sajjan Singh v. State of Rajasthan (1965) and Sankari Prasad v. Union
of India, 1951 AIR 458 and held that the fundamental rights could not be altered hereafter by any
law passed, even though the change is made through the provisions of Article 368 of the
Constitution. In the light of this ruling, the first, fourth and seventeenth amendments infringing the
right to property given in Article 31-A and Article 31-B are invalid. But the Supreme Court did not
give retrospective effect to the new ruling and such enactment which affect the right to property or
any other fundamental rights will be invalid only in future.

6. Doctrine of Proportionality
Article 9(1)(a) to Article 9(1)(g) of Constitution guarantee six valuable freedom to its
citizens. The freedom include freedom of speech and expression, freedom of peaceful assembly,
freedom to form associations and unions, freedom to move freely throughout the territory of India,
freedom to reside and settle and freedom to practice any profession or occupation or trade or
business.

This freedoms are not absolute, it is subject to reasonable restriction on certain grounds
specified in Article 19(2) to Article 19(6). This was incorporated in the First Constitutional
Amendment Act in 1951. The legislation are competent to make laws for restricting the freedoms
guaranteed under Article 19(1)(a) to Article 19(1)(g). However the restrictions imposed by
legislation should be reasonable. The reasonableness of the restriction will be tested by the
constitutional court. If the restrictions imposed by legislation are found to be unreasonable, the
constitutional courts can declare that law as unconstitutional. If the administrative authorities vested
with discretionary power to impose restrictions imposes unreasonable restriction, then also the
Supreme Court and High Court test the administrative action and declare it as unconstitutional. The
reasonableness of the restrictions imposed by the statute and administrative actions will be tested by
the court by applying the doctrine of proportionality.