Table of Contents

UNIT 1 – Constitution: Definition and Meaning .................................................................. 10

I. INTRODUCTION .................................................................................................................. 10

II. HISTORY OF THE INDIAN CONSTITUTION................................................................ 11

III. CHARACTERISTICS OF THE INDIAN CONSTITUTION ........................................... 16

IV. OBJECTIVES OF THE INDIAN CONSTITUTION .................................................... 20

V. CONSTITUTIONALISM: MEANING & NATURE ......................................................... 21

VI. CONSTITUTIONAL CONVENTIONS .......................................................................... 26

UNIT 2 – The Preamble.......................................................................................................... 31

I. INTRODUCTION .................................................................................................................. 31

II. HISTORY OF THE PREAMBLE ........................................................................................ 31

III. COMPONENTS OF PREAMBLE ....................................................................................... 32

IV. KEYWORDS OF THE PREAMBLE .............................................................................. 32

V. OBJECTIVES OF THE PREAMBLE ................................................................................. 33

VI. IMPORTANCE OF OBJECTIVES ................................................................................. 33

VII. STATUS OF PREAMBLE ................................................................................................ 33

VIII. AMENDMENT OF THE PREAMBLE........................................................................... 34

UNIT 3 – The Nature of Federalism ...................................................................................... 35

I. MEANING .............................................................................................................................. 35

II. CHARACTERISTICS OF FEDERALISM ......................................................................... 35

III. TYPES OF FEDERALISM ................................................................................................... 36

IV. BENEFITS OF FEDERAL FORM OF GOVERNMENT............................................. 36

V. FEDERLISM IN INDIA ........................................................................................................ 37

VI. FEDERALISTIC CHARACTERISTICS IN INDIA ..................................................... 37

VII. ARTICLE 263 .................................................................................................................... 38

VIII. ADVANTAGES AND DISADVANTAGES .................................................................... 38

IX. ARTICLE 1: THE UNION & ITS TERRITORY .............................................................. 38

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 X. ARTICLE 2: ADMISSION OR ESTABLISHMENT OF NEW STATES ....................... 39

XI. ARTICLE 3: FORMATION OF NEW STATES AND ALTERATION OF AREAS,

BOUNDARIES OR NAMES OF EXISTING STATES .............................................................. 39

XII. CASES................................................................................................................................. 39

XIII. UNION TERRITORIES AND STATES ......................................................................... 40

UNIT 4 – Citizenship .............................................................................................................. 42

I. INTRODUCTION .................................................................................................................. 42

II. ARTICLE 5: CITIZENSHIP AT THE COMMENCEMENT OF THE CONSTITUTION

(BY DOMICILE) ............................................................................................................................ 43

III. ARTICLE 6: MIGRATION FROM PAKISTAN (CITIZENSHIP BY MIGRATION) . 43

IV. ARTICLE 7: RIGHTS OF CITIZENSHIP OF CERTAIN MIGRANTS TO

PAKISTAN ...................................................................................................................................... 44

V. ARTICLE 8: CITIZENSHIP OF INDIA PERSONS OF INDIAN ORIGIN RESIDING

OUTSIDE INDIA ............................................................................................................................ 44

VI. ARTICLE 9 ........................................................................................................................ 44

VII. ARTICLE 10 ...................................................................................................................... 45

VIII. CITIZENSHIP ACT, 1955 ................................................................................................ 45

IX. CITIZENSHIP (AMENDMENT) ACT ............................................................................... 46

X. PERSON OF INDIAN ORIGIN (PIO) & OVERSEAS CITIZEN OF INDIA (OCI) ..... 46

XI. TERMINATION OF INDIAN CITIZENSHIP ................................................................... 47

XII. NATIONAL REGISTER OF CITIZENS (NRC) ........................................................... 48

XIII. ILLEGAL MIGRANTS (DETERMINATION BY TRIBUNAL) ACT ....................... 49

XIV. CITIZENSHIP ACT, 1955 ................................................................................................ 49

UNIT 5 – Foundation of Fundamental Rights & Concept of State ..................................... 51

I. CONCEPT OF FUNDAMENTAL RIGHTS....................................................................... 51

II. WHAT ARE FUNDAMENTAL RIGHTS?......................................................................... 52

III. FONDATIONAL GENESIS OF FUNDAMENTAL RIGHTS .......................................... 53

IV. CHARACTERISTICS OF FUNDAMENTAL RIGHTS ............................................... 54

V. FUNDAMENTAL RIGHTS IN INDIA ............................................................................... 54

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 VI. FUNDAMENTAL RIGHTS & HUMAN RIGHTS ........................................................ 54

VII. CASE LAWS ...................................................................................................................... 55

UNIT 6 – Foundation of Fundamental Rights & Concept of State ..................................... 56

UNIT 7 – Foundation of Fundamental Rights & Concept of State ..................................... 56

I. INTRODUCTION .................................................................................................................. 56

II. DEFINITION OF ‘STATE’ .................................................................................................. 57

III. EXPANSION OF “OTHER AUTHORITIES” – JUDICIAL EVOLUTION .................. 57

IV. ARTICLE 12: FUNDAMENTAL RIGHTS IN INDIA.................................................. 57

V. CASE LAWS .......................................................................................................................... 60

VI. WHETHER JUDICIARY IS A STATE? ........................................................................ 66

VII. WHICH ORGANISATIONS ARE STATE? .................................................................. 68

UNIT 8 – Article 13................................................................................................................. 70

I. INTRODUCTION .................................................................................................................. 70

II. ARTICLE 13........................................................................................................................... 70

III. DOCTRINE OF SEVERABILITY (TO SEPARATE) ....................................................... 71

IV. DOCTRINE OF ECLIPSE ............................................................................................... 73

V. IS CONSTITUTIONAL AMENDMENT ACT A LAW? .................................................. 74

VI. JUDICIAL REVIEW ........................................................................................................ 75

VII. JUDICIAL ACTIVISM..................................................................................................... 84

VIII. JUDICIAL RESTRAINT .................................................................................................. 85

IX. JUDICIAL OVERREACH ................................................................................................... 85

X. R.M.D.C V. UNION OF INDIA ............................................................................................ 86

UNIT 9 – Fundamental Right to Equality ............................................................................. 96

I. CONCEPT OF RULE OF LAW VS. ARTICLE 14 ........................................................... 96

II. INTRODUCTION .................................................................................................................. 97

III. “EQUALITY BEFORE LAW” ............................................................................................ 97

IV. “EQUAL PROTECTION OF LAW” .............................................................................. 97

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 V. DIFFERENCE BETWEEN EQUALITY BEFORE LAW AND EQUAL PROTECTION
OF LAW .......................................................................................................................................... 98

VI. EXCEPTION TO EQUALITY BEFORE LAW............................................................. 98

VII. ARTICLE 14 & REASONABLE CLASSIFICATION .................................................. 99

VIII. RULE AGAINST DISCRIMINATION ........................................................................... 99

IX. TEST FOR REASONABLE CLASSIFICATION .............................................................. 99

X. RULE OF EQUALITY AMOUNGST EQUALS .............................................................. 100

XI. CASES ................................................................................................................................... 100

XII. OLD AND NEW DOCTRINE ........................................................................................ 100

XIII. CASES............................................................................................................................... 101

UNIT 10 – Article 15............................................................................................................. 104

I. INTRODUCTION ................................................................................................................ 104

II. SECTIONS............................................................................................................................ 105

III. ARTICLE 15(3) .................................................................................................................... 105

IV. ARTICLE 15(4)................................................................................................................ 105

V. ARTICLE 15(5) .................................................................................................................... 105

VI. CASE LAWS .................................................................................................................... 106

UNIT 11 – Article 16............................................................................................................. 107

I. INTRODUCTION ................................................................................................................ 107

II. EXCEPTIONS TO ARTICLE 16 ....................................................................................... 107

III. CASE LAW........................................................................................................................... 108

IV. EWS QUOTE ................................................................................................................... 110

V. RELATIONSHIP BETWEEN ARTICLE 14, 15 AND 16 ............................................... 111

UNIT 12 – Article 17 & 18.................................................................................................... 112

I. ARTICLE 17......................................................................................................................... 112

II. ARTICLE 17 IN RECENT TIMES.................................................................................... 112

III. SAFAI KARAMCHARI ANDOLAN V. UOI (2014)........................................................ 113

IV. ARTICLE 18 .................................................................................................................... 113

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 V. ARE BHARAT RATNA, PADMA VIBHUSHAN, PADMASHREE, ETC. VIOLATIVE
OF ART. 18?.................................................................................................................................. 114

UNIT 13 – Article 19............................................................................................................. 115

UNIT 14 – Article 19............................................................................................................. 115

UNIT 15 – Article 19............................................................................................................. 116

UNIT 16 – Article 19............................................................................................................. 116

I. ARTICLE 19......................................................................................................................... 116

II. ISSUES DISCUSSED IN THE CONSTITUENT ASSEMBLY....................................... 118

III. PURPOSE ............................................................................................................................. 118

IV. ARTICLE 19(1)(A) READ WITH ARTICLE 19(2) .................................................... 119

V. ARTICLE 19(1)(B) READ WITH ARTICLE 19(3) ......................................................... 119

VI. ARTICLE 19(1)(C) READ WITH ARTICLE 19(4) & ARTICLE 33 ........................ 119

VII. ARTICLE 19(1)(D) READ WITH ARTICLE 19(5) .................................................... 120

VIII. ARTICLE 19(1)(E) READ WITH 19(5) & ARTICLE 35A ........................................ 120

IX. ARTICLE 19(1)(G) READ WITH ARTICLE 19(6)......................................................... 120

X. CASE LAWS ON ARTICLE 19 ......................................................................................... 120

XI. SUSPENSION OF ARTICLE 19 (ARTICLE 358) ........................................................... 121

XII. FREEDOM OF PRESS ................................................................................................... 121

XIII. ROMESH THAPAR V. STATE OF MADRAS (1950) ................................................ 122

XIV. FILM CENSORSHIP CASE .......................................................................................... 122

XV. FREEDOM OF SPEECH ON SOCIAL MEDIA ......................................................... 123

XVI. UNION OF INDIA V. NAVEEN JINDAL (AIR 2004 SC 155) ................................... 123

XVII. SHYAM NARAYAN CHOUSKEY V. UNION OF INDIA (2018) 2 SCC 574 .......... 124

XVIII. OTHER CASES ........................................................................................................... 126

XIX. ARTICLE 19(1)(F) & ARTICLE 31 – TO ARTICLE 300A – RIGHT TO PROPERTY

128

UNIT 17 – Article 20............................................................................................................. 130

UNIT 18 – Article 20............................................................................................................. 130

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UNIT 19 – Article 20............................................................................................................. 130

I. ARTICLE 20 (1) ................................................................................................................... 130

II. PART I OF ARTICLE 20 (1) .............................................................................................. 131

III. PART II OF ARTICLE 20 (1) ............................................................................................ 131

IV. ARTICLE 20 (2)............................................................................................................... 132

V. SCOPE OF ARTICLE 20 (2) .............................................................................................. 132

VI. MAQBOOL HUSAIN V. STATE OF BOMBAY (1953) ............................................. 133

VII. ARTICLE 20 (3) – PRIVILEGE AGAINST SELF INCRIMINATION .................... 133

VIII. COMPONENTS OF ARTICLE 20 (3) IN INDIA ........................................................ 134

IX. MOHD. DASTAGIR V. STATE OF MADRAS (1960) .................................................... 134

X. NANDINI SATPATHY V. P.L. DANI (1978).................................................................... 134

XI. CASE LAWS ON ARTICLE 20 (3) ................................................................................... 135

UNIT 20 – Article 21............................................................................................................. 137

I. INTRODUCTION ................................................................................................................ 137

II. PRINCIPLES OF NATURAL JUSTICE .......................................................................... 138

III. PROTECTION OF LIFE AND LIBERTY ....................................................................... 138

IV. COMPONENTS OF ARTICLE 21 ................................................................................ 139

V. FRACIS CORALIE MULIN V. UT OF DELHI............................................................... 140

VI. ENVIRONMENTAL JURISPRUDENCE .................................................................... 140

VII. RIGHTS OF THOSE IN JAIL / ACCUSED................................................................. 141

VIII. CONSTITUTIONAL TORTS : COMPENATORY JUSTICE ................................... 142

IX. RIGHT TO PRIVACY V. ARTICLE 21 ........................................................................... 143

X. JUDGE’S VIEWS ................................................................................................................ 144

XI. THE THIRD GENDER & ARTICLE 21........................................................................... 144

XII. NEWER INTERPRETATIONS..................................................................................... 145

XIII. DECREMINALISATION OF SUICIDE....................................................................... 145

XIV. EUTHANASIA: CHALLAENGE TO LAW................................................................. 146

XV. COMMON CAUSE V. UNION OF INDIA (2018) ....................................................... 146

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 XVI. TRANSFORMATIVE CONSTITUTIONALISM & ARTICLE 21 ........................... 147

XVII. VARIED INTERPRETATIONS OF ARTICLE 21 ..................................................... 147

XVIII. REFUGEES & ARTICLE 21 (MARCH – APRIL 2021) ........................................ 148

XIX. ARTICLE 21 V. EMERGENCY .................................................................................... 148

XX. ARTICLE 21A: RIGHT TO EDUCATION ................................................................. 148

XXI. THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT

2010 149

UNIT 21 – Article 22............................................................................................................. 152

I. ARTICLE 22 – PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN

CASES............................................................................................................................................ 152

II. CONSTITUENTS ................................................................................................................ 153

III. OVERVIEW ......................................................................................................................... 153

IV. FRACIS CORALLIE MULLIN V. THE ADMINISTRATOR, UT OF DELHI (1981)

154

V. LEGISLATIVE POWERS WITH RESPECT TO PREVENTIVE DETENTION ....... 154

VI. PREVENTIVE DETENTION ........................................................................................ 155

VII. PREVENTIVE DETENTION LAWS IN INDIA ......................................................... 155

VIII. MISUE OF THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT

156

IX. CASE LAWS ON PREVENTIVE DETENTION ............................................................. 156

X. DK BASU V. STATE OF WEST BENGAL – DK BASU GUIDELINES ...................... 158

XI. SAFEGAURDS AGAINST PREVENTIVE DETENTION & ARREST ........................ 159

XII. WINDENING SCOPE OF P.D. ...................................................................................... 160

XIII. UNION OF INDIA V. DIMPLE HAPPY DHAKAD (2019)........................................ 160

XIV. JAYANARAYAN SUKUL V. STATE OF WEST BENGAL (1970) .......................... 160

XV. ICCHU DEVI CHORONIA V. UNION OF INDIA (1981) ......................................... 161

UNIT 22 – Right Against Exploitation ................................................................................ 162

I. ARTICLE 23......................................................................................................................... 162

II. CAUSES OF HUMAN TRAFFICKING IN INDIA ......................................................... 163

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 III. LAWS FOR CURBING HUMAN TRAFFICKING IN INDIA CONSTITUTITONAL &
LEGISLATIVE PROVISIONS ................................................................................................... 163

IV. MEASURES TAKEN BY THE GOVERNMENT ....................................................... 164

V. NEW CHALLENGES ......................................................................................................... 164

VI. EXCEPTIONS TO ARTICLE 23 .................................................................................. 165

VII. PEOPLE’S UNION FOR DEMOCRATIC RIGHTS V. UNION OF INDIA (1982) –

ASIAD CASE ................................................................................................................................ 165

VIII. ARTICLE 24 .................................................................................................................... 165

IX. LAW FOR THE PROTECTION OF CHILDREN .......................................................... 166

X. EFFORTS BY GOVERNMENT OF INDIA TO CONTROL CHILD LABOUR ......... 167

XI. CASE LAWS [ARTICLE 24] ............................................................................................. 167

UNIT 23 – Freedom of Religion, Cultural & Educational Rights ..................................... 168

UNIT 24 – Freedom of Religion, Cultural & Educational Rights ..................................... 168

I. INTRODUCTION ................................................................................................................ 168

II. MEANING OF RELIGION ................................................................................................ 169

III. ARTICLE 25......................................................................................................................... 169

IV. ARTICLE 25 – OVERVIEW.......................................................................................... 169

V. ARTICLE 26......................................................................................................................... 170

VI. ARTICLE 27 .................................................................................................................... 171

VII. ARTICLE 28 .................................................................................................................... 171

VIII. SECULARISM ................................................................................................................. 172

IX. CASE LAWS ........................................................................................................................ 172

X. COMMUNALISM ............................................................................................................... 174

XI. WHAT STATE HAS DONE? ............................................................................................. 175

XII. NEW CHALLENGES ..................................................................................................... 176

UNIT 25 – Cultural & Educational Rights .......................................................................... 177

I. MINORITY COMMUNITIES IN INDIA ......................................................................... 177

II. WHY RECOGNITION REQUIRED ................................................................................. 178

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 III. ARTICLE 29: PROTECTION OF INTEREST OF MINORITY ................................... 178

IV. NATURE OF ARTICLE 29 ............................................................................................ 178

V. ARTICLE 29(1) .................................................................................................................... 179

VI. SCOPE OF ARTICLE 29(1) ........................................................................................... 179

VII. CASE LAWS .................................................................................................................... 179

VIII. ARTICLE 30 – RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER

EDUCATIONAL INSTITUTITONS .......................................................................................... 180

IX. WHO IS MINORITY? ........................................................................................................ 180

X. T.M. PAI FOUNDATION V. KARNATAKA ................................................................... 181

XI. ARTICLE 29(2) .................................................................................................................... 181

XII. ARTICLE 30(1)................................................................................................................ 181

XIII. ARTICLE 30(2)................................................................................................................ 182

XIV. WAY FORWARD............................................................................................................ 182

XV. LANDMARK JUDGMENTS ......................................................................................... 182

XVI. PROBLEMS FACED BY MINORITIES IN INDIA.................................................... 183

XVII. CAUSES FOR ANGER AGAINST MINORITIES...................................................... 184

XVIII. GOVERNMENT INITIATIVES ............................................................................... 184

XIX. ARTICLE 31 .................................................................................................................... 186

UNIT 26 – Right to Constitutional Remedies ...................................................................... 188

UNIT 27 – Directive Principles of State Policy & Fundamental Duties ............................ 189

UNIT 28 – Directive Principles of State Policy & Fundamental Duties ............................ 190

UNIT 29 – Directive Principles of State Policy & Fundamental Duties ............................ 191

UNIT 30 – Fundamental Duties........................................................................................... 192

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 UNIT 1 – Constitution: Definition and Meaning

COURSE OUTLINE
I] Constitution – Definition and Meaning
1. Constitution and Constitutionalism
2. History of the Indian Constitution
3. Constitution and Statutory Laws: Difference
4. Salient Features of the Indian Constitution
5. Nature of the Indian Constitution
6. Constitutional Conventions

II] Cases
1. Chairman Rly Board v. Chandrima Das AIR 2000 SC 988
2. Maneka Gandhi v. UOI, AIR 1978 SC 597

I. INTRODUCTION
Three Branches of the government:
1. Judiciary
2. Executive
3. Legislative
Judiciary doing the work of the Legislative: Vishaka Guidelines: They were stated in a
judgement. These guidelines were so concise that they acted as laws till the laws were made.
(POSH Act)
Judiciary doing the work of the Executive: Exams needed to appoint officers (entire
administration)

Division of Power: Centre & State

Separation of Power: Judiciary, Executive & Legislative

Statutory Right Constitutional Right Fundamental Right

Given by the Legislation Given by the Constitution Part 3 of the Constitution
but not under Part 3

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 Human Rights from a Right to Vote Right to Life
Convention; Right to File
F.I.R

II. HISTORY OF THE INDIAN CONSTITUTION

Before gaining independence in the year 1947, India was basically divided into two main
sections of the society, namely The British India (which consisted of 11 Provinces) and the
Princely states ruled by Indian princes as per the Subsidiary Alliance System. The two sections
later merged together to form the Indian Union, but many of the rules and regulations from
British India are still being followed even now. The historical evolution of the Constitution of
India can be traced back to many regulations and Acts passed before India gained its
Independence.
It was a series of many incidents and events which resulted in the development of the
Constitution of India. Prior to the constituent assembly that convened in 1948 to draft the Indian
constitution adopted in 1950 and still in force to date, the fundamental law of India was mostly
embodied in a series of statutes enacted by the British Parliament.

Fortification of India: British built forts to have geographic advantage, strategic protection &
arms collection. First Fort: Fort Williams, Kolkata
Company Rule (1773 – 1858) > Crown Rule (1858 – 1947) > Constituent Assembly

1. Regulating Act 1773

a. First time the British Parliament resorted to regulating the affairs of the East India
Company.
b. The Governor of Bengal was made the Governor-General of Bengal (Warren Hastings).
c. An Executive Council of the Governor-General was created with 4 members.
d. Centralising Tendencies: Madras and Bombay were made subordinate to Bengal
Presidency.
e. Supreme Court was established at Calcutta as the Apex Court in 1774.
f. Prohibited company officials from engaging in private trade and from accepting gifts
from Indians (to control corruption).
g. Separation of administration and judiciary was established.

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2. Pitt’s India Act 1784
a. Corruption kept growing
b. Commercial and political functions of the company separated.
c. Civil and Economic Administration separated
d. The Court of Directors managed the commercial activities while the Board of Control
managed political affairs.
e. The company territories in India were called ‘British possession in India’.
f. Governor’s Councils were set up in Madras and Bombay as well.

3. Charter Act 1813

a. Governor-General of Bengal was designated the Governor-General of India (Lord
William Bentinck1); because more parts of India came under British Rule
b. The legislative powers of the Bombay and Madras Presidencies were removed.
c. This act ended the commercial activities of the company and it was transformed into an
administrative body (central tendencies started showing up)
d. The legislative and executive powers of the Governor-General’s Council were
separated.
e. A Central Legislative Council was created of 6 members out of which 4 were appointed
by the provisional governments of Madras, Bombay, Agra and Bengal.
f. The Indian Civil Service was opened as a means to recruit officers for administration
through open competition.
g. The East India Company had monopoly of tea and opium

4. Charter Act, 1853

a. Central Legislative Council was created. There were 6 members out of which 4 were
appointed by provisional governments of Madras, Bombay, Agra, Bengal (Council
members increased due to increase in territorial power)
b. Indian Civil Service established to recruit officers for administration. It was an open
competition but only for Britishers as they considered themselves elite (white man
syndrome).
c. Separation of legislative and executive powers of Governor-General’s council was done

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5. Government of India Act 1858
a. After the 1857 revolt2, the rule of the company was ended and the British possessions
in India came directly under the British Crown.
b. The office of the Secretary of State for India (usually a British MP) was created. He
was assisted by a 15-member Council of India. He had civil & administration powers.
c. The Indian administration was under his authority and the Viceroy (military powers)
was his agent. The Governor-General was designated the Viceroy as well (Lord
Canning).
d. Viceroy was slightly subordinate to Secretary of State.
e. The Court of Directors and the Board of Control were abolished; no need to separate
political & commercial

6. Indian Councils Act 1861

a. Now that the power is with the crown directly as it wants to curb any kind of Revolt by
Indians.
b. It was an era when everyone was demanding freedom from European Control.
c. Appeasement was used by Britishers.
d. Indians were given representation in the Viceroy’s Councils but were not given any
powers (no voting rights). 3 Indians entered the Legislative Council.
e. Provisions were made for the entry of Indians in the Viceroy’s Executive council also
as non-official members.
f. Portfolio system was recognised – different ministers. These positions were given to
the elite Indians so that they could convince the common Indians to accept the British
rule and their fate.
g. Decentralisation initiated with the presidencies of Madras and Bombay being restored
their legislative powers.
h. Indirect elections (nominations) were introduced.
i. Legislative Councils expanded.
j. Gave more functions to the legislative councils such as the discussion of budget and
questioning the executive.

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 k. Indian Congress was established. Indians started understanding numerous rights,
exploring the world & leaders came together.

7. Indian Councils Act 1892

a. Indirect Election introduced – voting rights to elite Indians (Indirect Elections)
b. Legislative councils expanded.
c. More functions to legislative councils such as discussion of budget and questioning the
executive.

8. Indian Councils Act 1909 (Morley-Minto Reforms)

a. Demands of the Indians increased
b. Direct elections to the legislative councils were introduced for the first time. Everyone
was given voting rights; but at the same time introduced separate communal elections
(division on communal lines).
c. Central Legislative Council became the Imperial Legislative Council.
d. The number of members of the legislative council was increased from 16 to 60.
e. The concept of the separate communal electorate was accepted. Muslims, Sikhs, Hindu
were represented differently.
f. For the first time, an Indian was made a member of the Viceroy’s Executive
Council. (Satyendra Prasad Sinha – Law Member).
g. World War is going to happen (1914) Europe starts facing troubles globally.

9. Government of India Act 1919 (Montague-Chelmsford Reforms)

a. Central and provincial subjects were separated.
b. Diarchy (Executive Branch) was introduced in the provincial governments with
executive councillors being in charge of the reserved list and the ministers in charge
of the transferred list of subjects. Authoritarian (Reserved list: justice, police, land,
revenue, etc.) & Popularly Responsible (Transferred Subjects: LSG, education, public
health, etc.). Created Basis for Schedule 7: Centre & State List.
c. Central & Provincial Subjects separated
d. The ministers were nominated from among the elected members of the legislative
council and were responsible to the legislature.

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 e. A bicameral legislature was introduced for the first time at the centre. Twi houses
established: Elitist & Masses. (Legislative council and legislative assembly later to
become Rajya Sabha and Lok Sabha3 respectively).
f. It mandated 3 members of the Viceroy’s executive council to be Indians.
g. This act provided for the first time, the establishment of a public service commission in
India (present day VISC).
h. This act extended the right to vote and with this, about 10% of the population acquired
voting rights, even women.
i. Polity – Governance, Administration

10. Government of India Act 1935

a. An all-India Federation was proposed which would consist of British India and the
princely states. This never materialised though.
b. Subjects were divided between the centre and the provinces. Centre was in charge of
the Federal List, provinces in charge of the Provincial List and there was a Concurrent
List which both catered to.
c. Diarchy was abolished at the provincial level and introduced at the centre.
d. More autonomy was accorded to the provinces and in 6 out of 11 provinces, the
bicameral legislature was introduced.
e. A federal court was established and the Indian Council abolished.
f. Burma and Aden were severed off from India.
g. This act provided for the establishment of the RBI.
h. This Act continued until it was replaced by the new Indian Constitution.

11. Indian Independence Act 1947

a. India was declared independent and sovereign.
b. The Viceroy and the Governors were made constitutional (nominal) heads.
c. Set up responsible governments at the centre and the provinces.
d. Assigned both legislative and executive powers to the Constituent Assembly of India.
Key Timelines in the 1948 Constitutional Process

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 a. 1946 – Britain decides on to grant independence to India and cabinet mission is
dispatched to India to discuss modalities for transfer of power
b. 14th August, 1947 – Proposal for creation of committees is tabled
c. 29th August, 1947 – Drafting committee is established
d. 6th December, 1947 – Constituent Assembly formally convenes for the first time,
following elections, to start the process of writing a constitution
e. 4th November, 1947 – Draft is finalized and submitted
f. 1948-1949 – Constituent Assembly meets in sessions open to the public
g. 26th November, 1949 – Constituent Assembly adopts final draft making it official
h. 26th January, 1950 – Constitution of India is adopted

III. CHARACTERISTICS OF THE INDIAN CONSTITUTION

1. World’s Longest Constitution
a. The Indian Constitution contains 395 articles and 12 schedules, making it the world's
longest written constitution. Just compare it with other countries Constitutions. For
example, the UK has no written constitution, while the US Constitution contains only
seven articles.
b. Not only this but since 1951 about 90 articles and more than 100 amendments have
been added. However, since the Articles are not added separately as part of an
existing article (e.g., Article 21A, 35A etc.) the total number of articles remains the
same at 395.

2. Taken from Various Sources

a. The Government of India Act, 1935: The subjects are divided into centre, state and
concurrent lists.
b. Objective Resolution 1946: these resolutions fundamentally reflected the aspirations
of the individuals who were writing the constitution (later these were included in the
Preamble). Skeleton of constitution given by Jawaharlal Nehru.
c. The Constitutions across the world:
a. Britain
i. Parliamentary government
ii. Rule of Law

16
 iii. Legislative procedure
iv. Single citizenship
v. Cabinet system
vi. Prerogative writs
vii. Parliamentary privileges
viii. Bicameralism
b. Ireland
i. Directive Principles of State Policy
ii. Method of Election of the president
iii. Members nomination to the Rajya Sabha by the President
c. United States of America
i. Impeachment of the president
ii. Functions of president and vice-president
iii. Removal of Supreme Court and High court judges
iv. Fundamental Rights
v. Judicial review
vi. Independence of judiciary
vii. The preamble of the constitution
d. Canada
i. Centrifugal form of federalism where the centre is stronger than the states.
ii. Residuary powers vest with the centre
iii. Centre appoints the Governors at the states
iv. Advisory jurisdiction of the supreme court
e. Australia
i. Concept of Concurrent list
ii. Article 108 i.e., Joint sitting of the two houses
iii. Freedom of trade and commerce
f. USSR (Now Russia)
i. Fundamental duties
ii. The ideals of justice (social, economic and political), expressed in the
Preamble.
g. France
i. Concept of “Republic”
ii. Ideals of Liberty, Equality and Fraternity (contained in the Preamble).

17
 h. Germany
i. Fundamental Rights are suspended during Emergency
i. South Africa
i. Election of members of the Rajya Sabha
ii. Amendment of the Constitution
j. Japan
i. Concept of “procedure established by Law”

3. Written Constitution
a. A Constitution that has been systematically and meticulously written down and
embodied in a single document.
b. Written constitutions like the Indian Constitution are framed by analysis and
discussion on any possible issue and compiled in a step-by-step matter with subsequent
changes made instantaneously or with time.
c. The Constitution is supreme where there is a written constitution.
d. Such Constitutions work best in a Democracy.
e. codified, uniformity, continuity

4. Federal System with Unitary Features

a. The Indian Constitution includes all the federal characteristics of governance such as
dual government system (centre and state), division of powers between the three state
organs (executive, judiciary and legislature), constitutional supremacy, independent
judiciary and bicameralism (lower and upper house); yet it has centralizing tendency
b. It is a quasi-federal constitution, where despite having two clear sets of Government –
the centre & the state, the higher power is placed with the Central Government

5. Parliamentary Form of Government

On the pattern of the British parliamentary system of government, the Indian Constitution has
opted for the parliamentary form of government. It explains a bicameral legislative composed
of the President of India & the two houses – Lok Sabha and Rajya Sabha.
a. Executives are members of the legislature
b. Collective responsibility to the legislature of the Council of Ministers
c. Rule of the majority party
d. Prime Minister's or chief minister's leadership in the state

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 e. Lower house dissolution (Lok Sabha and state assemblies)
f. Government from the Cabinet

6. Balance between the Sovereignty of Parliament and Judicial Supremacy

a. The notion of parliamentary sovereignty is taken from the British while the principle of
judicial supremacy is associated with the USA. It means that any law must be followed
(Parliamentary Sovereignty) granted that it doesn’t violate any rights (Judicial
Supremacy).
b. The Supreme Court is vacuumed by Articles 13, 32 and 136 with the power of judicial
review. By its power of judicial review, it can strike down any parliamentary law as
unconstitutional.
c. On the other hand, the Parliament, being the representative of the people's will, has the
authority to make laws, and it can also amend the major part of the Constitution through
its vested powers under Article 368

7. Independent Judiciary
a. In India, unlike the United States where there is a two-tiered judiciary, a single judicial
system prevails with the Supreme Court at the top, the State and District High Courts
and other subordinate courts below and subject to the supervision of the High Courts.
b. It is the duty of all levels of courts in India to enforce both central and state laws unlike
in the US, where federal courts adjudicate on federal matters and state courts on state
matters.
c. The Judiciary is an independent pillar that is different from the executive & the
legislative.

8. Directive Principles of State Policy

a. In Part IV of the Constitution, the Directive Principles of State Policies (DPSPs) aims
to make India a welfare state.
b. Dr. B.R. Ambedkar calls the Directive Principles as the Indian Constitution's novel
feature”. The Principles of the Directive are inherently unjustifiable, that is, they are
not enforceable for their violation by the courts. Acts as a guiding force.

19
9. Combination of Rigidity and Flexibility
a. The Indian Constitution strikes a fine balance between rigidity and flexibility when it
comes to ease of modification. Article 368 lays down two types of modifications:
1. Some provisions may be amended by a Special majority parliamentary
majority, i.e., a 2/3rd majority of the members of each House present and vote
and majority (i.e., more than 50 %) of each House's total membership (E.g.: Art
249 – Parliament’s power to legislate in the state list; Art 312 – All India
Services)
2. Some other provisions can be amended by a special parliamentary majority
and with half of the total states ratifying them. This ensures that with the
widest possible majority, the Constitution is amended. (E.g.: Art 61 –
Impeachment of the President; Removal of judges – Art 124)

IV. OBJECTIVES OF THE INDIAN CONSTITUTION

The Constitution is the supreme law and it helps to maintain integrity in the society and
to promote unity among the citizens to build a great nation. The main objective of the Indian
Constitution is to promote harmony throughout the nation.
The factors which help in achieving this objective are: Justice: It is necessary to maintain order
in society that is promised through various provisions of Fundamental Rights and Directive
Principles of State Policy provided by the Constitution of India.
It comprises three elements, which is social, economic, and political:
a. Social Justice – Social justice means that the Constitution wants to create a society
without discrimination on any grounds like caste, creed, gender, religion, etc.
b. Economic Justice – Economic Justice means no discrimination can be caused by
people on the basis of their wealth, income, and economic status. Every person must be
paid equally for an equal position and all people must get opportunities to earn for their
living
c. Political Justice – Political Justice means all the people have an equal, free and fair
right without any discrimination to participate in political opportunities.
Equality: The term ‘Equality’ means no section of society has any special privileges and all
the people have given equal opportunities for everything without any discriminations.
Everyone is equal before the law.

20
Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have
political views and behaviour in society. Liberty does not mean freedom to do anything, a
person can do anything but in the limit set by the law.
Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment
with the country and all the people. Fraternity helps to promote dignity and unity in the nation.

V. CONSTITUTIONALISM: MEANING & NATURE

1. Meaning
a. The principles, spirit, or system of government in accordance with a constitution,
especially a written constitution
b. Constitutionalism is a political philosophy based on the idea that government authority
is derived from the people and should be limited by a constitution that clearly expresses
what the government can and can't do.
c. Constitutionalism to be a natural corollary to fundamental government of the country.
d. Tangible and intangible constitution; moral & ethical aspect of constitution. Example:
Constitution but no Constitutionalism: German Constitution (Nazi, Holocaust).
e. Rule of Law & Constitutionalism traced back to Upanishad
f. Spirit of Governance
g. Not a new concept, theories come after the Development of administrative structure in
the kingdom.
h. Written and unwritten Constitution: Flexible, as per changing leadership, including
scope of Constitution to fail. Example: Iran-US attack: Falling of Sadam Hussain.
Example: Sri Lanka, Myanmar, Afghanistan: failing of spirit.
i. Also shows that there are limitations & increased accountability on the powers assigned
by the Constitution.
j. Antithesis of arbitrary rule.

2. Definitions
a. Charles H. McIIawain - “it is a legal limitation on government; it is the antithesis of
arbitrary rule”

21
 b. Howard Jay Graham - “constitutionalism...is the art and the process of assimilating and
converting statute and precedent, ideals and aspirations, into the forms and the Rule of
Law—into a Fundamental and Supreme Law”.

3. Concept of Constitutionalism
a. The concept of constitutionalism is a mechanism that provides legitimacy to a
democratic government.
b. It cannot and should not be confused with the legality of the acts of the officials in a
government setup. Constitutionalism is far more important than having a written
Constitution.
c. With some exceptions most of the countries have Constitutions but it in no way means
that they practice constitutionalism.
d. Some of the basic principles developed over time that embody the concept of
constitutionalism are separation of powers, judicial control and accountable
government.

4. Origin of the concept of Constitutionalism

a. Way back in 1215, King John of England was forced by a group of wealthy nobles to
sign a document called the Magna Carta
b. Magna Carta (Sort of a peace treaty between the nobles & the monarch) – precedent for
limited Government & accountable Government. (King John taxed his own people for
including wealth in government possession).
c. 1689 - the English Bill of Rights was signed by King William III of England – Glorious
Revolution
d. The English Bill of Rights outlined what rights English citizens possessed, and placed
limits on the monarch and Parliament. The English Bill of Rights is a foundational
constitutional document that helped inspire the American Bill of Rights, which became
the basis for human rights & Fundamental Rights.

5. Social Contract Theory

a. Political theorist John Locke played a huge role in cementing the philosophy of
constitutionalism

22
 b. SCT – the government itself is a sort of contract between the people and the state, and
if the state abuses its power or doesn't hold up its end of the bargain, the people have
the right to make the contract null and void.
c. Locke’s Social Contract was devoted to sovereignty and law - Sovereignty derived from
the people’s will. If people’s will in the contract is infringed, the State will fail.
d. He argued that sovereignty did not reside in the state but with the people, and that the
state was supreme, but only if it was bound by civil and natural law.

6. American Constitutionalism
a. Founding fathers of USA deeply influenced by Locke
b. All the thinkers concurred those laws, rather than men, should be the final sanction and
that government should be responsible to the governed.
c. prescribed a constitution with a balance of executive and legislative power checked by
an independent judiciary.
d. to safeguard state liberties and the rights of property, the founding fathers gave the
federal government insufficient revenues and coercive powers, as a result of which the
constitution was stigmatized as being “no more than a Treaty of Alliance.”

7. Important characteristics of constitutionalism

a. Fundamental law and legitimacy of government - it describes and prescribes both the
source and the limits of government power derived from fundamental law
b. Civil rights and liberties - Constitutionalism is not simply about the power structure of
society. It also asks for a strong protection of the interests of citizens, civil rights as
well as civil liberties, especially for the social minorities, and has a close relation with
democracy
c. Rigidity & Flexibility (Section 368)

8. Indian Constitutionalism
a. The concept of Rule of Law and Constitutionalism can be traced back to the Upanishad
b. “It provides that Law is the King of Kings”
c. It is more powerful and higher than the Kings and there is nothing higher than law
d. By its powers the weak shall prevail over the strong and justice shall triumph

23
“Law is the king of kings, far more rigid and powerful than they; there is nothing higher
than law; by its prowess, as by that of the highest monarch, the weak shall prevail over the
strong.”
– Brihadaranyaka Upanishad
e. In India, constitutionalism is considered to be a natural corollary to the fundamental
governance of the country.
f. The Constitution of India with the aid of various legislations has developed a detailed
and robust mechanism to put into place administrative mechanisms for the smooth
functioning of the machinery of governance.

9. Positive Views of Constitutionalism in India

This type of constitutionalism objects that constitutionalism should not be seen only through
the limitation applied to the state. Positive constitutionalism also promotes that the state should
be seen as a welfare state. The state should form a competent and efficient system that makes
sure that the welfare of the citizens. It also says that the constitution will not have the elements
of constitutionalism if it does not respect the diversification or variation in the population. This
concept was not present in the constitution of some countries, and they added this principle
through amendments, legislation, and interpretation done by the judiciary. Aspects of
Constitution that enables Constitutionalism, promoting governance (Part IV of Constitution:
DPSP).

10. Negative Views of Constitutionalism in India

It means a type of constitutionalism that prohibits an entity from doing something. The meaning
of constitutionalism is often inferred negatively as it talks about restricting the powers of the
state. If we look at constitutionalism in that way, then we can presume that the state can become
a threat to society if not restrained. This restriction of power is not always desirable in the case
of health benefits schemes or schemes that aim to eradicate poverty. For India, where the
government's main goal is providing justice, this view of constitutionalism is not the best.
Restriction is not desirable in case of health benefit schemes. Is Part III of the Constitution:
Restriction of Governance.

11. Courts in India on Constitutionalism

The concept of constitutionalism has been recognised by the Supreme Court:

24
 1. RAMESHWAR PRASAD V. UNION OF INDIA. The Court stated, “The
constitutionalism or constitutional system of Government abhors absolutism – it is
premised on the Rule of Law in which subjective satisfaction is substituted by
objectivity provided by the provisions of the Constitution itself.”
2. IR COEHLO V. STATE OF TAMIL NADU4. the Court held that
Constitutionalism is a legal principle that requires control over the exercise of
governmental power to ensure that the democratic principles on which the government
is formed shall not be destroyed.
3. Chief Justice Chandrachud in MINERVA MILLS observed, – “The
Constitutionalism is a precious heritage and, therefore, you cannot destroy its identity”.

12. Principles of Constitutionalism

a. Separation of Power – Responsible Government
b. Popular Sovereignty – Rule of Law
c. Independent Judiciary – Individual Rights
d. Civilian Control of Forces – Forces Accountability

13. Difference between Constitution and Constitutionalism

Constitution
a. Organic Documentary
b. Widest and longest document
c. Separation of power
d. Federalism with unitary features

Constitutionalism
a. Restrainment of powers
b. 42nd Amendment
c. 44th Amendment
d. Freedom and Liberty
e. Judicial Review
f. Independence of Judiciary

4
https://byjus.com/free-ias-prep/coelho-case-2007-sc-judgements/

25
 g. Popular Sovereignty
h. Constitutionalism abhors Absolutism

14. Constitutionalism in Current Times in India: Critical Analysis

a. Governments have learned to use government apparatus for their own benefits instead
of benefitting the citizens.
b. The government by giving backdoor entries to corporate interests in policy-making has
vitiated the policymaking process whose primary aim is the welfare
c. The problem is that the Constitution cannot interpret itself and has to be interpreted by
the men who hold power – and the selfishness of humans can be seen to have been
incorporated.
d. The institutions that were the bulwark of Constitutionalism are either crumbling or have
been effectively rendered weak and incapable.
e. Checks and balances have been diluted to a point where their importance is merely
academic.
f. The criminalisation and influence of money power into the corridors of politics and
governance have worsened an already volatile system.
g. The frustrations that are building up due to the apathy of the government in utter
disregard of constitutionalism are extremely dangerous and this steep fall needs to be
stopped.

VI. CONSTITUTIONAL CONVENTIONS

1. Introduction
a. The constitution has been composed in such a manner that it consolidates within itself both
written rules as well as certain uncodified rules.
b. The written rule showcases the specific action that has to be taken in a particular situation;
on the other hand, the uncodified rules come into force when there is no written law on that
particular scenario.
c. These uncodified rules have been over the period termed by various jurists and scholars as
Constitutional Conventions.
d. The analysis of constitutional convention has constantly been made on a presumption of its
existence in the constitution.

26
e. These conventions often fall within the realm of rules of political practice and are observed
as binding by those to whom they apply. They are not interpreted nor are they enforced,
but they hold importance in the present Scenario.

2. Scope
Constitutional Conventions are not framed by the legislature so they don’t acquire the status of
law or rules and as a result, are neither interpreted nor enforced by the judiciary, though it still
maintains its binding character. Despite not being recognized as law the convention holds
importance in the present scenario.

3. Nature
a. The commands behind the constitutional conventions are moral and political.
b. These conventions set forward some norms that govern the behaviour of a person who is in
power, or regulate the working of various institutions under the constitution and their
relation with each other. In this manner conventions are equally important as written rules.
c. There are certain situations, where unwritten rules hold much more value than written rules,
d. Example: as per constitution the appointment of Prime Minister has to be done by President,
but the constitution remains silent as to who should be appointed as the Prime Minister. In
this area, the constitutional convention comes into effect and due to nature of post involved,
it acquires much more value

“Act of various institutions in A state and the political personalities are governed by two
sets of rules. One set of rules consists of laws that are enforceable in the court of law and
these rules can be written, unwritten, enacted by legislation, by custom, tradition, judge-
made laws, etc. The second set of rule consists of conventions, habits, practices that govern
the behaviour of various personalities but are not enforceable in the court of law.”
– A.V. Dicey

And this second set of rules, which are not exact laws, are termed by him as “Conventions of
the Constitution” or “Constitutional Morality”.
“Non-legal, Generally Agreed Rules About How Government Should Be Conducted And,
In Particular, Governing the Relations Between Different Organs of Government.”
– Fenwick, H

27
 4. Characteristics
a. The non-legal rights, obligation, power of the person holding office in the three branches
of the government, and the relation between each government organ and government is
defined and implemented by conventions.
b. The conventions can be asserted in common terms and their applicability in most situations
are clearly and precisely stated. However, in certain circumstances, they are uncertain and
debatable.
c. The constitutional conventions are different from rules of law but still they have the ability
to alter the applicability of rules of law. Despite the differences, conventions in most of the
situations are considered equal to the rule of law and in certain situations even more
important than the laws.

5. Need
a. The creators of the Constitution have left certain areas of discretion for political actors.
This freedom gives liberty which may sometimes lead to misuse of the same
b. A fact about the Indian Constitution situation is that enough heed has not been paid to bring
decent conduct and convention code in matters of discretion. The conduct code that was
created in the earlier year has been discontinued and is not functioning properly as per the
need.
c. Discretion has led to many social, political and economic disputes due to which more
dependents have been placed upon an extra-constitutional method for settling the same and
this point raises a concern as despite having the lengthiest and detailed law there is still a
need to go for non-constitutional methods.
d. Hence these extra-constitutional arrangements are to be halted plus misuse has to be
regulated and for this relevant code and conventions are required.
1. Hung Lok Sabha Situation
The Prime Minister is asked to show a majority in the house by a vote of confidence. However,
there may arise a state of hung Lok Sabha where neither party acquires majority. In such a
situation, it is upon the President to decide which leader will be in a position to grasp such
majority support. This very area and power of the President fall under the domain of
constitutional convention. Presently is a settled convention that it is not always the leader of a
single largest party who will be called to be the leader of the majority in the house. The
President will call that person who can command the majority whether or not he is the leader
of the single largest party.

28
 2. Appointment of Prime Minister by President
Article 75(1): As per the constitution under normal circumstances, the leader of the majority in
Lok Sabha, i.e., the house of the people, will be selected as the Prime Minister.
But under conditions where the Prime Minister died in office or resigns, it is the President who
will exercise his discretion and judgment while making the decision.
3. Dissolution of the House
The Lok Sabha and Vidhan Sabha dissolve after every 5 years which is the end of their term.
However, there are circumstances when the house is dissolved before such tenure, and such
decision is taken by the President or Governor, hence, bringing in light the conventions.
Article 74(1) of the Constitution clearly states that the President has to act as per the advice of
the ministers, however in the case of Shamsher Singh vs State of Punjab - the court enlisted
certain reservations where the President is not obliged to act on advice.
Such exceptions include a situation regarding the dismissal of the government where it has lost
the majority and is denying leaving the office and the dissolution of the house is required.

6. Constitutional Convention and Constitutionalism

Most constitutional scholars claim that there is more to the constitution than constitutional law.
It brings out the essence of the constitution.

7. Enforceability of Constitutional Conventions

a. The constitutional conventions are not enforceable by the courts as they are not laws or
rules written in any legislation of the country.
b. What are rules? The rules are defined as “statements prescribing conduct that has to be
taken in a given situation and which imposes an obligation on those who are regulated by
the rule.”
c. The conduct of the members of the Parliament is governed by various practices, customs,
and constitutional conventions.
d. Concerning traditions and custom, there is no strict penalty in case of failure; however, the
same cannot be said for constitutional convention even though they are not enforced by the
court.
e. Hence it can be said that constitutional conventions are a binding set of rules but lack legal
enforceability.

29
 8. Indian Judiciary on Constitutional Convention
a. Constitutional convention doesn’t fall under the domain of court’s interpretation but
Judiciary as a custodian of the constitution has always come forward in interpreting the
same.
b. One of the prominent examples was discrediting the executive role in the appointment of
the judges and thus upholding the existing constitutional convention regarding appointment
and independence of the judiciary.
c. The Supreme Court also pointed out that “any convention which is against existing
constitutional principles or is against the basic intention of any law cannot be accepted as
a constitutional convention. Furthermore, the origin of such convention must be proved
within its provision itself.”

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 UNIT 2 – The Preamble

COURSE OUTLINE
I] The Preamble
1. Parts of the Preamble
2. Amendment in the Preamble
3. Constitutional Validity of Forty-Second Amendment
4. Interpretational Value of the Preamble
5. Preamble – Is it a part of the Indian Constitution?

II] Basic Reading

1. Re Berubari Union, AIR 1960 SC 845
2. Golak Nath v. State of Punjab, AIR 1967 SC 1643
3. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461
4. Excel Wear v. Union of India, AIR 1979 SC 25

I. INTRODUCTION
A preamble is an introductory statement in a document that explains the document’s philosophy
and objectives.
In a constitution, it presents the intention of its framers, the history behind its creation, and the
core values and principles of the nation.
The preamble basically gives idea of the following things/objects:
a. Source of the Constitution
b. Nature of Indian State
c. Statement of its objectives
d. Date of its adoption

II. HISTORY OF THE PREAMBLE

The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal Nehru’s
Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947.

31
Although not enforceable in court, the Preamble states the objectives of the Constitution, and
acts as an aid during the interpretation of Articles when language is found ambiguous.

III. COMPONENTS OF PREAMBLE

It is indicated by the Preamble that the source of authority of the Constitution lies with
the people of India.
Preamble declares India to be a sovereign, socialist, secular and democratic republic.
The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens
and promote fraternity to maintain unity and integrity of the nation.
The date is mentioned in the preamble when it was adopted i.e., November 26, 1949.

IV. KEYWORDS OF THE PREAMBLE

We, the people of India: It indicates the ultimate sovereignty of the people of
India. Sovereignty means the independent authority of the State, not being subject to the control
of any other State or external power.
Sovereign: The term means that India has its own independent authority and it is not a
dominion of any other external power. In the country, the legislature has the power to make
laws which are subject to certain limitations.
Socialist: The term means the achievement of socialist ends through democratic means. It
holds faith in a mixed economy where both private and public sectors co-exist side by side (as
against capitalism and communism) (It was added in the Preamble by 42nd Amendment, 1976).
Secular: The term means that all the religions in India get equal respect, protection and support
from the state.
(It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976)
Democratic: The term implies that the Constitution of India has an established form of
Constitution which gets its authority from the will of the people expressed in an election.
Republic: The term indicates that the head of the state is elected by the people. In India, the
President of India is the elected head of the state.

32
V. OBJECTIVES OF THE PREAMBLE
a. Justice: Social, Economic, Political
b. Liberty: Thoughts, Expressions, Belief, Faith & Worship
c. Equality: Status, Opportunity

VI. IMPORTANCE OF OBJECTIVES

a. It provides a way of life. It includes fraternity, liberty, and equality as the notion of a
happy life and which cannot be taken from each other.
b. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor
can liberty and equality be divorced from fraternity. Without equality, liberty would
produce the supremacy of the few over the many. Equality without liberty would kill
individual initiative. Without fraternity, liberty would produce the supremacy of the few
over the many. Without fraternity, liberty and equality could not become a natural course
of things.
c. GOLAKNATH V. ST OF PUNJAB: The preamble is not a platitude but the,
mode of its realisation is worked out in detail in the Constitution. The preamble cannot
prohibit or control in any way or impose any implied prohibitions or limitations of power
to amend the Constitution contained in Art. 368.

VII. STATUS OF PREAMBLE

The preamble being part of the Constitution is discussed several times in the Supreme Court.
a. BERUBARI CASE5: It was used as a reference under Article 143(1) of the
Constitution which was on the implementation of the Indo-Pakistan Agreement related
to the Berubari Union and in exchanging the enclaves which were decided for
consideration by the bench consisting of eight judges.
Through the Berubari case, the Court stated that ‘Preamble is the key to open the mind
of the makers’ but it cannot be considered as part of the Constitution. Therefore, it is
not enforceable in a court of law.

5
https://www.drishtiias.com/to-the-points/Paper2/major-constitutional-amendment-part-1

33
 b. KESAVANANDA BHARATI CASE6: In this case, for the first time, a bench
of 13 judges was assembled to hear a writ petition.
The Court held that: The Preamble of the Constitution will now be considered as part
of the Constitution. The Preamble is not the supreme power or source of any restriction
or prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution. So, it can be concluded that preamble is part of the
introductory part of the Constitution.
c. In UNION GOVERNMENT VS LIC OF INDIA (1995), the Supreme Court
has once again held that Preamble is the integral part of the Constitution but is not
directly enforceable in a court of justice in India.

VIII. AMENDMENT OF THE PREAMBLE

42nd Amendment Act, 1976: After the judgment of the Kesavananda Bharati case, it was
accepted that the preamble is part of the Constitution.
As a part of the Constitution, preamble can be amended under Article 3687 of the Constitution,
but the basic structure8 of the preamble cannot be amended. As of now, the preamble is only
amended once through the 42nd Amendment Act, 19769:
a. The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through
42nd Amendment Act, 1976.
b. ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.
c. ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.

6
https://www.drishtiias.com/daily-updates/daily-news-analysis/basic-structure-of-constitution
7
https://www.drishtiias.com/to-the-points/Paper2/debate-on-the-procedure-of-amendment
8
https://www.drishtiias.com/daily-updates/daily-news-analysis/basic-structure-of-constitution
9
https://www.drishtiias.com/to-the-points/Paper2/major-constitutional-amendments-part-3

34
 UNIT 3 – The Nature of Federalism

COURSE OUTLINE
I] The Nature of Federalism
1. Union and its territory
2. Difference in status of the States and Union Territories
3. Power to create/extinguish a State
4. Alteration of name, area and boundary of existing states Act

II] Cases
1. Babulal Parate v. State of Bombay, AIR 1960 SC 51
2. In Re: The Berubari Union and Exchange of Enclaves Reference, AIR 1960 SC
845
3. N. Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1962 SC 797
4. Maganbhai Ishwarbhai Patel etc. v. Union of India (UOI) and Anr. AIR 1969 SC
783
5. R.C. Poudyal v. Union of India, AIR 1993 SC 1804

I. MEANING
A federation is an agreement between two or more sovereign states to create a new state in
which each will exercise specific powers – vide Constitution
The constitution defines and explains the powers and the jurisdiction of each government.
Federalism is a system of government in which powers have been divided between the centre
and its constituent parts such as states or provinces. It is an institutional mechanism to
accommodate two sets of politics, one at the centre or national level and second at the regional
or provincial level.

II. CHARACTERISTICS OF FEDERALISM

a. Supremacy of the Constitution
1. A Written Constitution
2. Rigid Constitution

35
 3. Sovereignty of the Amending Body
b. Division of Powers
1. Canadian Method
2. American Method
3. Indian Method
c. Supremacy of Judiciary
1. Constitution is an important document and the basic law of the country
2. A federation can remain intact only when the constitution remains inviolable
3. Supreme Court is the Guardian of the Constitution
d. Bicameral Legislature
1. 2 Governments
2. The two houses represent the two interests - Normally the Lower House
represents the interests of the nation and the upper house represents the interests
of the provinces.

III. TYPES OF FEDERALISM

a. Holding Together Federation: In this type, powers are shared between various
constituent parts to accommodate the diversity in the whole entity. Here, powers are
generally tilted towards the central authority. Example: India, Spain, Belgium.
b. Coming Together Federation: In this type, independent states come together to form a
larger unit. Here, states enjoy more autonomy as compared to the holding together kind
of federation. Example: USA, Australia, Switzerland.

IV. BENEFITS OF FEDERAL FORM OF GOVERNMENT

a. Federal governments are best used in large countries where there exists a diverse group
of people with diverse needs but a common culture that unites them together.
b. No right to secede from union
c. No right to conduct independent foreign policy
d. Works as one unit

36
V. FEDERLISM IN INDIA
a. We have a Co-operative Federalism: concept of interdependence rather than
independence
b. India is a federal system but with more tilt towards a unitary system of government. It
is sometimes considered a quasi-federal system as it has features of both a federal and
a unitary system.
c. Elements of federalism were introduced into modern India by the Government of India
Act of 1919 which separated powers between the Centre and the provincial legislatures.
d. It means both are made dependent on the other. If states are dependent on union,
financially, union is dependent on state for implementation. They have to depend on
state for execution of union laws and policies.
e. Hence India is also seen as an example of ‘Executive federalism’
f. Not just co-operative but also competitive federalism in India now
g. Federalism is “a stable union of unstable states” in India
h. “Federation-sui-generis” which means “Federation of its own kind”

VI. FEDERALISTIC CHARACTERISTICS IN INDIA

a. Division of Powers between various levels
b. The supremacy of the Constitution
c. A Written Constitution
d. Rigidity
e. Independence of Judiciary
f. Dual Government Polity
g. No Dual Citizenship
h. Bicameralism
States have to exercise their executive authority accordingly the law created by the Central
government. It may not hamper on the executive power of the Union within the States.
Governors are appointed by the Central government to check the working of the States
Centres have the authority to amend the legislative discretion of the state by taking permission
from Rajya Sabha. The centre has authority to acquisition the executive of the States due to the
queries like national security or failure of constitutional machinery of the State.

37
VII. ARTICLE 263
Article 263 of the Constitution has given the information for the establishing up of an Inter-
State Council for discussion, surveys, and suggestions for better coordination of relation
between the States and Central government. The National Integration Council and the National
Development Council are the two other imperative forums that ensure chances for discussion
to sort out differences of opinion. The Zonal Councils establish up under the State
Reorganisation Act, 1956 ensure another institutional mechanism for inter-state and centre-
state cooperation to sort out the differences and strengthen the framework of cooperation.

VIII. ADVANTAGES AND DISADVANTAGES

a. Clearly stated category wise listed in 7 schedules – yet centralizing tendencies &
residuary powers
b. Article 265 of the constitution states that it is compulsory for the central government to
share revenue - For this, the finance committee has been constituted by the Indian
constitution through article 280 for the distribution of revenue between the state and
central government – yet there is a discrimination which we see about the sharing of
revenue
c. A Lack of dispute solving mechanism
d. The absence of industrialization and financial activity in the eastern and northern region
resulted in the underdevelopment of these that’s why a demand of separate state exists
in some state.
e. Political will at the centre affects the progress of the state

IX. ARTICLE 1: THE UNION & ITS TERRITORY

a. India, that is Bharat, shall be a Union of States. The States and the territories thereof
shall be as specified in the First Schedule. The territory of India shall comprise:
1. the territories of the States;
2. the Union territories specified in the First Schedule; and
3. such other territories as may be acquired.
b. Read with SCHEDULE I & Art. 246 & SCHEDULE VII

38
X. ARTICLE 2: ADMISSION OR ESTABLISHMENT OF NEW STATES
Parliament may by law admit into the Union, or establish, new States on such terms and
conditions as it thinks fit.

XI. ARTICLE 3: FORMATION OF NEW STATES AND ALTERATION OF

AREAS, BOUNDARIES OR NAMES OF EXISTING STATES
a. Parliament may by law:
1. form a new State by separation of territory from any State or by uniting two or more
States or parts of States or by uniting any territory to a part of any State;
2. increase the area of any State;
3. diminish the area of any State;
4. alter the boundaries of any State;
5. alter the name of any State:
b. Provided that no Bill for the purpose shall be introduced in either House of Parliament
except on the recommendation of the President and unless, where the proposal contained
in the Bill affects the area, boundaries or name of any of the States, the Bill has been
referred by the President to the Legislature of that State for expressing its views thereon
within such period as may be specified in the reference or within such further period as the
President may allow and the period so specified or allowed has expired.

XII. CASES
a. MULLAPERIYAR ENVIRONMENTAL PROTECTION FORUM V.

UOI: The power of parliament in this regard are exclusive and plenary.
b. BERUBARI UNION & EXCHANGE OF CONCLAVES [AIR 1960 SC

845]: Sir Radcliffe apportioned the district of Jalpaiguri between the two countries by
giving some thanas to India while remaining thanas to Pakistan. During the process, he
omitted one, i.e.; Berubari Union No. 12, and was later awarded to India on 12th of August,
1947. The omission made by the commission and erroneous depiction on the map gave
Pakistan the liberty to claim the territory as its own. Nehru-Noon Agreement. Presidential
Reference to the Supreme Court of India

39
 Held: The Supreme Court examined Article 3 in detail and held that the Parliament cannot
make laws under this article in order to execute the Nehru-Noon agreement – requires
CONSTITUTIONAL AMENDMENT only. Hence, the 9th Amendment Act was passed to
enforce the agreement.
c. MAGANBHAI PATEL V. UOI [AIR 1969 SC 783]: Hostilities broke out
between India and Pakistan on boundary dispute in Kutch – matter referred to International
Arbitral Tribunal.
Question arose: whether the arbitral award could be implemented by an executive order or
Constitutional Amendment reqd.?
Held: The Supreme Court explicitly held that a settlement of boundary dispute cannot
amount to a cession of territory. It was observed by the Court that adjustment of boundary
between two sovereign nations is well-recognised in International Law and should also be
recognised by domestic courts.
The implementation of settlement of boundary disputes can be carried out by the Executive
unless a cession of home territory is involved, wherein then Parliamentary interference
should be expected
d. R.C. PAUDYAL V. UOI [AIR 1993 SC 1804]: This case largely deals with the
issue of reservation in the then newly constituted Legislative Assembly of Sikkim. The case
focuses on the constitutional validity of the reservations made by the Parliament in the state
of Sikkim and determines the concerns related to such representations. In order to fathom
the context for an argument the court largely relies on, it is imperative to know the historical
circumstances due to which these reservations were put into question.

XIII. UNION TERRITORIES AND STATES

UNION TERRITORIES STATES
The union territory is not independent. The The states are independent units, they are
union territory is administered by the administered by the legislature of the state,
chairpersons who are selected by the choice they can be of two types: unicameral and
of the president of the nation. bicameral.
There are some union territories: Dadar, The states have Governors and chief
Chandigarh, Nagar Haveli, Lakshadweep, ministers and a council of the ministers
Daman Diu which have administrators, and

40
the other 5 UT are being governed by
Lieutenant Governors.
The executive head is the Lt. Governor The executive head is the Governor
The executive head Should be unitary in the The executive head must be federal in the
terms of character. terms of character.
The president appoints an LG or an The chief minister is selected by the
administrator elections.

41
 UNIT 4 – Citizenship

COURSE OUTLINE
I] Citizenship
1. Constitutional Provisions (Articles 5 to 11)
2. Dual Citizenship
3. The Citizenship Act, 1955

II] Cases
1. Pradeep Jain (Dr.) v. Union of India, AIR 1984 SC 1420
2. Hari Shanker Jain v. Sonia Gandhi, (2001)
4. Kumari Chandra v. State on 1st August, 2018

III] Reference Reading

1. Math, Suresh Bada et al. “Insanity Defense: Past, Present, and Future.” Indian
Journal of Psychological Medicine Vol. 47, 4 (2015): 381-387.

I. INTRODUCTION
Citizenship signifies the relationship between individual and state. Like any other modern state,
India has two kinds of people—citizens and aliens.
Citizens are full members of the Indian State and owe allegiance to it. They enjoy all civil and
political rights. Citizenship is an idea of exclusion as it excludes non-citizens. There are two
well-known principles for the grant of citizenship: While ‘jus soli’ confers citizenship on the
basis of place of birth, ‘jus sanguinis’ gives recognition to blood ties.
From the time of the Motilal Nehru Committee (1928), the Indian leadership was in favour of
the enlightened concept of jus soli. The racial idea of jus sanguinis was also rejected by the
Constituent Assembly as it was against the Indian ethos.

42
II. ARTICLE 5: CITIZENSHIP AT THE COMMENCEMENT OF THE
CONSTITUTION (BY DOMICILE)
a. At the commencement of this Constitution, every person who has his domicile in the
territory of India and –
1. who was born in the territory of India; or
2. either of whose parents was born in the territory of India; or
3. 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
b. MD. RAZA V. STATE OF BOMBAY: Wherever you reside or is a permanent
house i.e., domicile
c. DP JOSHI V. STATE OF MADHYA BHARAT: Only one domicile – domicile
of India – SINGLE CITIZENSHIP
d. PRADEEP JAIN V. UOI [(1984) 3 SCC 654]: For a posthumous child (a

child born after father’s death); domicile will be of that country in which his
father was domiciled at the time of his father’s death. It was held that the
domicile of a person is in that country which he either has or is deemed by law
to have his permanent house

III. ARTICLE 6: MIGRATION FROM PAKISTAN (CITIZENSHIP BY

MIGRATION)
a. Rights Of Citizenship of Certain Persons Who Have Migrated to India from Pakistan
1. 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 (as originally enacted); and
2. (a) in the case where such person has so migrated before the nineteenth day of July,
1948, he has been ordinarily resident in the territory of India since the date of his
migration, or
(b) in the case where such person has so migrated on or after the nineteenth day of July,
1948, he has been registered as a citizen of India by an officer appointed in that behalf
by the Government of the Dominion of India on an application made by him therefor
to such officer before the commencement of this Constitution in the form and manner
prescribed by that Government:

43
b. 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.

IV. ARTICLE 7: RIGHTS OF CITIZENSHIP OF CERTAIN MIGRANTS TO

PAKISTAN
a. This article deals with the rights of people who had migrated to Pakistan after March 1,
1947, but subsequently returned to India
b. Those who had migrated to Pakistan after March 1, 1947 but subsequently returned on
resettlement permits were included within the citizenship net.
c. The law was more sympathetic to those who migrated from Pakistan and called them
refugees than to those who, in a state of confusion, were stranded in Pakistan or went
there but decided to return soon.
d. The process for re-entry into India for those who had migrated to Pakistan:
1. The individual/either of his parents or any of his grandparents were born in India
2. He had returned to India under a permit for resettlement
3. He had resided in Inia after re-migration for at least 6 months
4. He had submitted an application for Registration to the officer
5. He has been registered as Citizen by such officer

V. ARTICLE 8: CITIZENSHIP OF INDIA PERSONS OF INDIAN ORIGIN

RESIDING OUTSIDE INDIA
Any Person of Indian Origin residing outside India who, or either of whose parents or
grandparents, was born in India could register himself or herself as an Indian citizen with Indian
Diplomatic Mission.

VI. ARTICLE 9
People voluntarily acquiring citizenship of a foreign country will not be citizens of India.

44
VII. ARTICLE 10
Any person who is considered a citizen of India under any of the provisions of this Part shall
continue to be citizens and will also be subject to any law made by the Parliament

VIII. CITIZENSHIP ACT, 1955

a. Citizenship of India can be acquired in the following ways:
1. Citizenship at the commencement of the Constitution
2. Citizenship by birth
3. Citizenship by descent
4. Citizenship by registration (PIO)
5. Citizenship by naturalization
6. By incorporation of territory (by the Government of India)
b. People who were domiciled in India as on 26th November 1949 automatically became
citizens of India by virtue of citizenship at the commencement of the Constitution.
c. Persons who were born in India on or after 26th January 1950 but before 1st July 1987
are Indian citizens.
d. A person born after 1st July 1987 is an Indian citizen if either of the parents was a citizen
of India at the time of birth.
e. Persons born after 3rd December 2004 are Indian citizens if both parents are Indian
citizens or if one parent is an Indian citizen and the other is not an illegal migrant at the
time of birth.
f. Citizenship by birth is not applicable for children of foreign diplomatic personnel and
those of enemy aliens.
g. Citizenship of India by naturalization
h. Renounced the citizenship of other countries
1. can be acquired by a foreigner (not illegal migrant) who is ordinarily resident in
India for TWELVE YEARS. (Throughout the period of twelve months
immediately preceding the date of application and for ELEVEN YEARS in the
aggregate in the FOURTEEN YEARS preceding the twelve months)
2. He should have an intention of staying in India

45
 3. Govt of India can waive of all these qualifications if person has shown
distinguished performance in Arts, Science, Philosophy, Peace, Human Rights,
literature.

IX. CITIZENSHIP (AMENDMENT) ACT

a. 1986: you should be born in India & one of your parents should be a citizen of India
b. 1992: Either of the parents, not just father should be a citizen
c. 2003: Illegal Immigrants definition was introduced – they could not become citizens by
registration & naturalization
d. 2005: OCI & PIO was merged
e. 2019: seeks to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and
Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. It
exempts certain areas in the North-East from this provision. The Bill also makes
amendments to provisions related to OCI cardholders. A foreigner may register as an
OCI under the 1955 Act if they are of Indian origin (e.g., former citizen of India or their
descendants) or the spouse of a person of Indian origin. This will entitle them to benefits
such as the right to travel to India, and to work and study in the country. The Bill amends
the Act to allow cancellation of OCI registration if the person has violated any law notified
by the central government.

X. PERSON OF INDIAN ORIGIN (PIO) & OVERSEAS CITIZEN OF INDIA

(OCI)
Person of Indian Origin (PIO) Overseas Citizen of India (OCI)
A person would be eligible for the PIO card a) OCI Card is for foreign nationals who
if he: were eligible for Indian citizenship on
a) Born in British India or that country 26th January 1950 or was an Indian
which became the part of country after it citizen on or after that date.
was acquired b) Citizens of Pakistan and Bangladesh are
b) Is a person of Indian origin and is a not eligible for OCI Card.
citizen of any country except Pakistan, c) An OCI cardholder does not have
voting rights.

46
 Sri Lanka, Nepal, Bangladesh, Bhutan, d) OCI is not dual citizenship. OCI
China or Afghanistan, or cardholders are not Indian citizens.
c) Has held an Indian passport at any other e) The OCI Card is a multipurpose,
time or is the spouse of a citizen of India multiple entry lifelong visa for visiting
or a person of Indian origin. India.
d) PIO cardholders can enter India with the f) Persons with OCI Cards have equal
multiple entry feature for fifteen years. rights as NRIs in terms of financial,
They do not need a separate visa. educational, and economic matters. But
e) Has voting rights they cannot acquire agricultural land in
India.

HARI SHANKAR JAIN V. SONIA GANDHI (2001) 8 SCC 233. EVER since
Congress(I) president Sonia Gandhi signalled some years ago her intention to enter electoral
politics, her political adversaries have raised constitutional and legal questions with regard to
her very right to claim Indian citizenship, and her eligibility to become a Member of Parliament
or be chosen for political office. Jain had also challenged the legality of Section 5(1)(c) of the
Citizenship Act, 1955, under which Sonia Gandhi acquired her Indian citizenship through
registration. Under this provision, persons who are, or have been married to, citizens of India
and are ordinarily resident in India and have been so resident for a period of 12 months
immediately before making an application for registration, would be eligible to apply for Indian
citizenship by means of registration. (This provision was amended in 1986 whereby the
requirement regarding the length of residence was made five years.) Based on her application
under this Section, she was issued a certificate of citizenship by the Government of India on
April 30, 1983. Upheld her citizenship.

XI. TERMINATION OF INDIAN CITIZENSHIP

a. Renunciation: If any citizen of India who is also a national of another country renounces
his Indian citizenship through a declaration in the prescribed manner, he ceases to be
an Indian citizen. When a male person ceases to be a citizen of India, every minor child
of his also ceases to be a citizen of India. However, such a child may within one year
after attaining full age become an Indian citizen by making a declaration of his intention
to resume Indian citizenship.

47
 b. Termination: Indian citizenship can be terminated if a citizen knowingly or voluntarily
adopts the citizenship of any foreign country.
c. Deprivation: The Government of India can deprive a person of his citizenship in some
cases. But this is not applicable for all citizens. It is applicable only in the case of
citizens who have acquired the citizenship by registration, naturalization, or only by
Article 5 Clause (c) (which is citizenship at commencement for a domicile in India and
who has ordinarily been a resident of India for not less than 5 years immediately
preceding the commencement of the Constitution) - Citizenship by Fraud, Disloyal,
Communicated with Enemy, after obtaining citizenship you are jailed for 2 years
(within 5 years of citizenship)

XII. NATIONAL REGISTER OF CITIZENS (NRC)

a. The National Register of Citizens (NRC) is a register of Indian citizens residing in Assam.
Assam has experienced large influxes of illegal immigrants, around the times of Partition
and the Indo-Pakistani War of 1971. Part of the function of the NRC is to identify illegal
immigrants for deportation.
b. 1946: Foreigners Act passed. Empowers State to detain and deport illegal immigrants.
c. 1951: Census of India conducted, NRC created
d. 1971: Indo-Pakistani War leads to large influx of Bangladeshi migrants into Assam
e. 1979: Assam Agitation begins. Between ’79 &’85 the All Asom Gana Sangram Parishad
(AAGSP) and the All-Assam Student Union (AASU) lead protests to seek the expulsion
of illegal immigrants.
f. 1983: Nellie Massacre. Between 2,000 and 10,000 people in Nagaon district slaughtered.
Almost exclusively Muslims, who were descendants of legal migrants to British India.
g. 1985: Assam Accord signed. A Memorandum of Settlement signed between the
Government and leaders of the Assam Agitation.
h. 2019: 31 August 2019, final NRC list published, excluding the names of roughly 19 lakh
residents. Most oppose the final list: BJP raised concerns over excluded Bengali Hindus;
minority groups fear the arbitrary exclusion of Muslims; AASU complains the list
includes too many foreigners.

48
XIII. ILLEGAL MIGRANTS (DETERMINATION BY TRIBUNAL) ACT
a. Illegal Migrants (Determination by Tribunal) Act (IMDT Act). The IMDT Act laid
down the procedure to detect illegal immigrants from Bangladesh and expel them from
Assam.
b. Assam Accord - It classified ‘illegal’ immigrants of Indian origin who came into Assam
from Bangladesh into three groups:
1. those who came into the state before 1966;
2. those who came into the state between 1966 and 25th March, 1971 (the official date
of the commencement of the Bangladesh War); and
3. those who came into the state post 25th March,1971.
c. The first group (pre ‘66) was to be regularised, i.e., given citizenship of India. The
second group (‘66 – ‘71) was to be taken off the electoral rolls, and regularised after
ten years. The third group (’71 onwards) was to be detected and expelled in accordance
with law.
d. The Supreme Court struck down the IMDT Act and held it as unconstitutional.
However, the large-scale illegal migration and political turmoil continued.
e. Assam Sanmilita Mahasangha, along with other organizations, challenged the
constitutional validity of Section 6A of the Citizenship Act, 1955 in 2012. It gave effect
to the Assam Accord by providing separate rules of citizenship in the state.
f. The petitioners argue that there is no rational basis for having separate cut-off dates for
regularising illegal migrants who enter Assam as opposed to the rest of the country.

XIV. CITIZENSHIP ACT, 1955

6A. Special provisions as to citizenship of persons covered by the Assam Accord. —
1. For the purposes of this section—
a. “Assam” means the territories included in the State of Assam immediately before the
commencement of the Citizenship (Amendment) Act, 1985;
b. “detected to be a foreigner” means detected to be a foreigner in accordance with the
provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964
by a Tribunal constituted under the said Order;
c. “specified territory” means the territories included in Bangladesh immediately before the
commencement of the Citizenship (Amendment) Act, 1985;

49
d. a person shall be deemed to be of Indian origin, if he, or either of his parents for any of his
grandparents was born in undivided India;
e. a person shall be deemed to have been detected to be a foreigner on the date on which a
Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the
effect that he is a foreigner to the officer or authority concerned.

50
 UNIT 5 – Foundation of Fundamental Rights & Concept of State

COURSE OUTLINE
I] Foundation of Fundamental Rights & Concept of State
1. Introduction to Fundamental Rights
2. Classification of Fundamental Rights

II] Cases
1. Rajasthan State Electricity Board v. Mohanlal, AIR 1967 SC 1857
2. University of Madras v. Shanta Bai, AIR 1954 Mad 67

I. CONCEPT OF FUNDAMENTAL RIGHTS

Since 17th century the concept has grown that every human has – basic, essential, natural and
inalienable rights or freedoms. It is the function of the State to recognise these rights.
Fundamental rights are a group of rights that the Supreme Court recognizes as being fair and
legal, and are also rights that are listed. The writers of the constitution regarded democracy of
no avail if civil liberties, like freedom of speech and religion were not recognized and protected
by the State. The Universal Declaration of Human Rights (formed as a result of the atrocities
like the Jews Holocaust, Japanese Bombing, etc. occurring during World War II) formed as a
basis for the Fundamental Rights.
“Aim of all political entities should be to respect, recognize and protect the rights of the
people”
– John Locke
a. Part III of the Constitution of India, titled as “Fundamental Rights” secures to the people
of India, certain basic, natural and inalienable rights. These rights have been declared
essential rights in order that human liberty may be preserved, human personality
developed and an effective social and democratic life promoted.
b. The aim behind having a declaration of fundamental rights is to make inviolable certain
elementary rights appertaining to the individuals and to keep them unaffected by the
shifting majorities in the Legislatures. It is to preserve certain basic human rights against
interference by the State.

51
 c. The inclusion of this Chapter on Fundamental Rights, in the Constitution is in accord with
the trend of modern democratic thought. These rights are basic to a democratic party. The
guarantee of certain basic human rights is an indispensable requirement of the free society.
d. The origin of the concept of fundamental rights may be traced to the 13th Century
England. It was in 1215 that the people England revolted and enforced their demand for
reiteration of their claims against the Royal Absolutism. The King was made to
acknowledge that there were certain rights of the subjects which could not be violated
even by the sovereign in whom all power was legally vested.
e. In 1628, the Petition of Rights was presented to King Charles I, which was the first step
in the transfer of sovereignty from the King to Parliament. It was passed as the Bill of
Rights, 1689 which dealt with the rights and liberties of the British people.
f. The Constitution of England is unwritten and the supremacy of Parliament is its dominant
characteristics. There is no formal declaration of fundamental rights of the people in
England. The concept of “Rule of Law” is the very bed-rock of British Constitution which
explains that an individual in England has the right and freedom to take whatever action
he likes, so long as he does not violate any rule of the ordinary law of the land.
g. The Americans adopted the Constitution making for securing their Bill of Rights. The
original constitution framed in 1787 and brought into force in 1789 did not contain any
fundamental rights for the Americans. It was met with serious condemnation and
subsequently the first ten amendments were enacted in 1791, incorporating the
fundamental rights.

II. WHAT ARE FUNDAMENTAL RIGHTS?

a. Fundamental rights are the rights that have been incorporated in the Constitution and
are justifiable in court of law.
b. They have been modelled on the basis of U.S. Constitution and are hailed as
“Cornerstone of the Indian Constitution.”
c. All fundamental rights are human rights but not the vice-versa.
d. Most of these rights are worded negative and directed against the state. Some of the
rights viz, Article 17 is enforceable against the private individuals as well.

52
III. FONDATIONAL GENESIS OF FUNDAMENTAL RIGHTS
The development of constitutionally guaranteed fundamental human rights in India was
inspired by historical examples such as England's Bill of Rights (1689), the United States Bill
of Rights10 (approved on September 17, 1787, final ratification on December 15, 1791)
and France's Declaration of the Rights of Man (created during the revolution of 178911, and
ratified on August 26, 1789). Under the educational system of British Raj, students were
exposed to ideas of democracy, human rights and European political history. The Indian student
community in England was further inspired by the workings of parliamentary democracy and
British political parties.
a. Rowlett Act, 1919 gave extensive powers to British Govt and police – allowed indefinite
arrests and detentions, warrant less searches & Seizures, restrictions on public gatherings etc.
1. Swaraj Bill (1895) by Lokmanya Tilak – freedom of speech & Expression, right to
privacy, eight of franchise,
2. Congress Resolution in the period of first world war.
3. Commonwealth of India Bill by Annie Besant (1925) - it was time for Indians to be
governed by a Constitution framed by Indians; section on fundamental rights –that
that included the right to elementary education, freedom of expression, gender
equality, non-discrimination etc.
4. Madras Resolution of Congress (1927) – boycotting Simon commission
5. Motilal Nehru Committee 1928 – demanded inalienable fundamental rights
(inspired by American Bills of Rights)
6. Karachi Session of Congress (1931) adopted a Resolution on Fundamental Right
7. Sapru Committee recommendations on Fundamental Rights
The Sapru committee report was published in 1945. This committee recommended that the
Fundamental Rights “must” be included in the Constitution of India. This committee divided
fundamental rights into two parts viz. Justifiable Rights and Non-justifiable rights. The
Justifiable rights were those enforceable by a court of law. These enforceable rights were
incorporated in the Part III of the Constitution. The non-justifiable rights were incorporated as
a directive to the state to take all measures to provide those rights to individuals without any

10
https://www.cs.mcgill.ca/~rwest/wikispeedia/wpcd/wp/u/United_States_Bill_of_Rights.htm
11
https://www.cs.mcgill.ca/~rwest/wikispeedia/wpcd/wp/f/French_Revolution.htm

53
guarantee. They were incorporated in the part IV of the constitution and were called Directive
Principles of State Policy.

IV. CHARACTERISTICS OF FUNDAMENTAL RIGHTS

a. Integral part of the Constitution cannot be altered or taken away by ordinary legislation.
b. They are not absolute. ‘Reasonable’ restrictions can be imposed in view of sovereignty
and integrity of the country or alike on certain grounds.
c. Though most of the rights are worded negatively some are positive rights. For example
8. Negative: Article 18
9. Positive: Article 16
d. They are justifiable.
e. Most important feature is that Part III dealing with Fundamental Rights is guarantor as
well as protector of Fundamental Rights - A remedy under Article 32 is given for
enforcement of a Fundamental Rights.

V. FUNDAMENTAL RIGHTS IN INDIA

a. Right to Equality
b. Right to Freedom
c. Right against Exploitation
d. Right to freedom of Religion
e. Cultural and educational rights
f. Right to Constitutional Remedies
The Original Constitution provided for the Right to property but it has been abolished by the
44th Amendment.

VI. FUNDAMENTAL RIGHTS & HUMAN RIGHTS

BASIS FOR FUNDAMENTAL RIGHTS HUMAN RIGHTS
COMPARISON
Meaning Fundamental Rights means the Human Rights are the basic
primary rights of the citizens rights that all the human

54
 which are justifiable and written beings can enjoy, no matter
in the constitution. where they live, what they
do, and how they behave, etc.
Includes Basic Rights Only Basic and Absolute Rights
Scope It is country specific It is universal
Basic Principle Right of freedom Right of life with dignity
Guarantee Constitutionally guaranteed Internationally guaranteed
Enforcement Enforceable by the court of law Enforceable by United
Nation Organisation
Origin Originated from the views of Originated from the ideas of
democratic society civilised nations

VII. CASE LAWS

In SOCIETY FOR UNAIDED PVT SCHOOLS OF RAJASTHAN V. UOI
(2016); It was held that Fundamental rights have 2 aspects:
a. They act as fetter on plenary legislative powers
b. They provide conditions for fuller development of our people including their individual
dignity

55
 UNIT 6 – Foundation of Fundamental Rights & Concept of State

COURSE OUTLINE
I] Foundation of Fundamental Rights & Concept of State
1. Fundamental Rights – A Guarantee Against State Action

II] Cases
1. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487
2. Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649

UNIT 7 – Foundation of Fundamental Rights & Concept of State

COURSE OUTLINE
I] Foundation of Fundamental Rights & Concept of State
1. Article 12
a. Meaning of “State”
b. Scope of Article 12
c. Expansion of “Other Authorities” – Judicial Evolution
d. Is judiciary “state”?

II] Cases
1. Sukhdev v. Bhagatram, AIR 1975 SC 1331
2. Ramanna D. Shetty v. International Airport Authority, AIR 1979 SC 1628
3. Board of Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC
251

I. INTRODUCTION
The Fundamental Rights Guaranteed by The Indian Constitution Have Been Laid Down in Part
III of The Constitution, Starting from Article 12 To Article 35. The First Article Under Part III
Is Article 12, Which Does Not Guarantee Any Right but Specifies the Authorities and The
Bodies, That Are Deemed to Be “State” And Against Whom the Fundamental Rights Can Be
Enforced.

56
The Definition of State Provided Under Article 12 Is Inclusive but Not Exhaustive and There
Are Certain Authorities and Instrumentalities That Though Not Clearly Mentioned Under the
Said Article, can be brought within the purview of the definition of the State.

II. DEFINITION OF ‘STATE’

Fundamental rights guaranteed by the Constitution are, in the absence of specific constitutional
provisions, mainly enforceable against “the State‟. The definition of ‘the State’ in Article 12
being an “inclusive” one, courts have ruled that where there is pervasive or predominant
governmental control or significant involvement in its activity, such bodies, entities and
organizations fall within the definition of “the State‟.

III. EXPANSION OF “OTHER AUTHORITIES” – JUDICIAL

EVOLUTION
In Article 12, the expression “other authorities” shall include any person in relation to such of
its functions which are of a public nature.

IV. ARTICLE 12: FUNDAMENTAL RIGHTS IN INDIA

In this Part, unless the context otherwise requires, “the state” includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local
or other authorities within the territory of India or under the control of the Government of India.
The authorities that are expressly included within the definition of Article 12 are as follows:
1. Government and Parliament of India;
2. Government and Legislature of each of the States;
These legislative and executive wings of the Union and the States are expressly and specifically
mentioned in the concerned article. However, the other two categories i.e., “local authorities”
and “other authorities” are not quite specific. The bodies that come under these two categories
have been analysed by the Supreme Court through its various judgments.
1. Structural Approach
2. Functional Approach

57
 a. The framers of the Indian Constitution followed the American model in adopting and
incorporating the fundamental rights for the people of India. The Constitution not only
secures the fundamental rights but also provides a speedy and effective remedy for their
enforcement.
b. Part III of the Constitution is said to contain the Bill of Rights for the people of India.
These rights are similar to the Bill of Rights in the US Constitution. These Rights are
the necessary consequences of the declaration contained in the Preamble of the
Constitution, wherein People of India solemnly resolved to constitute India into a
sovereign, socialist, secular, democratic republic and to secure to themselves justice,
liberty, equality and fraternity.
c. In I.R COELHO V. STATE OF TAMIL NADU, AIR 2007 SC 86112, it
has been held that the Rights were not limited, narrow rights, but provide a broad check
against the violations and excesses by the State authorities. These rights have proved to
be the most significant constitutional control on the Government, particularly legislative
power.
d. The Fundamental Rights guaranteed by Part III are more specific and detailed. They
have to be exercised to the limitations embodied in that very Part itself. The rights are
not absolute or unrestricted.
e. In A.K GOPALAN V. STATE OF MADRAS, AIR 1950 SC 27, it has been
held that an organised society is a pre-condition for civil liberties. The possession and
enjoyment of all rights are subjected to such reasonable conditions as may be deemed,
by the governing authority of the country, essential to the safety, health, peace, general
order and morals of the community.
f. It has been emphasized that Fundamental Rights are not to be read in isolation. They
have to be read along with the Chapter on Directive Principles of State Policy and the
Fundamental Duties enshrined in Article 51A. The restrictions imposed on Fundamental
Rights, in the interest of achieving the lofty ideals contained therein would be
permissible as imposed in the national interest or for the purpose of purity of public life
or for providing social and economic justice to the people of India.
g. The Fundamental Rights have not been declared immutable but these are to be kept in
conformity with the changing socio-economic conditions. For the purpose, the

12
Supra Note at 4.

58
 Constitution confers power on the State, the constituent power, the power to amend the
Constitution including the Fundamental Rights.

1. SUSPENSION, AMENDMENT OR DENIAL OF FUNDAMENTAL RIGHTS

The rights contained in Part III are not absolute. In the larger interest of the society, these rights
can be curtailed or suspended in the following cases:
a. Under Article 33, Parliament may by law restrict or abrogate any of the fundamental
rights in their application to the members of the Armed Forces or Forces charged with
maintenance of public order or other analogous forces.
b. Article 34 authorizes Parliament to make law to grant immunity in respect of acts done
by any person during the operation of martial law in the country.
c. While Proclamation of Emergency issued under Article 352(1) is in operation, the rights
contained in Article 19(1) stand automatically suspended.

2. FUNDAMENTAL RIGHTS AS AVAILABLE AGAINST THE STATE

a. According to the philosophy behind the Fundamental Rights, they are available only
against the State, for they are limited upon the powers of the Government, legislative
as well as the executive. It is against the might of the State that an individual needs
constitutional protection. Private action is sufficiently guarded against under the
ordinary law of the land.
b. In P.D SHAMDASANI V. CENTRAL BANK OF INDIA, AIR 1952 SC
59, it has been held that the language and structure of Article 19 and its setting in Part
III of the Constitution, clearly shows that the Article was intended to protect those
freedom against State action other than in the legitimate exercise of its power to regulate
rights in the public interest.
c. The Fundamental Rights are available only against the State. However, there are
provisions in Part III of the Constitution, which imposes limitations upon the actions of
private individuals as well.
d. Article 12 defines the term “State” for the purposes of Fundamental Rights. It provides
that unless the context otherwise requires the State includes the Government and
Parliament of India and the Government and the Legislature of each of the States and
all local or other authorities within the territory of India or under the control of the
Government of India.

59
 e. A co-operative society is nothing but a body created and registered in accordance with
and governed by the provisions of the Co-operative Societies Act with certain aims and
objects, subjected to certain rules, regulations and directions under the provisions of the
Act. Such a society is not created by the provisions of the Act itself, nor the State
exercised any control over such a society, has been held not to be an authority within
the expressions “State” under Article 12.

V. CASE LAWS
a. UNIVERSITY OF MADRAS V. SHANTA BAI (1954)
Question: Is the University of Madras “Other Authority” U/A 12?
Facts: In this case, an appeal was made by the University of Madras and the point in question
was whether the directions issued by the university to the affiliated colleges of not admitting
girl students without obtaining the permission of the Syndicate were valid. The facts of the case
were that a new college named as Mahatma Gandhi Memorial College was established in the
town of Udipi in 1929. While granting affiliation, permission was granted by the syndicate for
the admission of only 10 girl students in the junior intermediate class as a transitory measure
for that year and directed that in future no women students will be admitted without the special
sanction of the syndicate. The appellant Shantha Bai applied for admission in the college, but
her application was rejected by the College on the reason that girl students would not be
admitted to the college. After this, she filed a petition under Article 32, a writ of mandamus
against the Principal of the College to admit her to the Intermediate course.
Held: Madras HC said – while interpreting these words should be interpreted “Ejusdem
Generus” – which meant that all things of like nature are included in that thing and this also
means that bodies exercising governmental or sovereign function would only be covered under
other authorities. UNIVERSITY IS NOT A STATE.
b. RAJASTHAN STATE ELECTRICITY BOARD V. MOHAN LAL

[1967]
Question: Articles 14 and 16 claims were raised, and consequently, the preliminary question
that fell to be determined by the court was whether the board came within the purview of part
III, by virtue of being “State” (Other Authority) Under Article 12?
Facts: The case involved a promotion dispute between some workmen and the Rajasthan State
Electricity Board. The Rajasthan State Electricity Board was a corporate body that had been

60
constituted under an Act (The Electricity Supply Act, 1948), for the purposes of supplying
electricity within the state of Rajasthan. The Board argued that the phrase “other authority”
must be read “ejusdem generis”13 – that is, when a law refers to a number of specific categories,
and then ends with a general clause, that general clause must be understood only to contain
those things which are part of the common genus to which the specific categories
belong. According to the Board, the common class running through Article 12 was bodies
exercising governmental functions. The Electricity Board, on the other hand, was set up by a
statute to carry out commercial activities.
Held: The Supreme Court declined to apply the principle of ejusdem generis, holding that there
was no common “genus” running through Article 12. Instead, it turned to the dictionary for the
meaning of the word “authority”: A public administrative agency or corporation having quasi-
governmental powers and authorised to administer a revenue- producing public enterprise.”
Key test is a statutory connection between the government and the body in question (“control”,
perhaps, is a function of creation by statute). The fact that the functions were commercial were
irrelevant, since the state itself could clearly carry out trade and business. Thus, the board –
having been established by statute – was found to come within the scope of article 12.
c. SUKHDEV SINGH V. BHAGAT RAM [AIR 1975 SC 1331]
Question: Whether the Oil and Natural Gas Corporation, The Life Insurance Corporation and
The Industrial Finance Corporation are part of Art 12 or not?
That case involved three public corporations – The Oil and Natural Gas Corporation, The Life
Insurance Corporation and The Industrial Finance Corporation (2 corporations & 1
commissions); the dismissal of employees’ issue (employees contented that their FR were
infringed).
The bench referred to the Rajasthan Electricity Board case which established the narrower
proposition that Article 12 was attracted if the body had the power to issue directions whose
disobedience could be punished by criminal law, or if it had the power to make, administer and
enforce rules and regulations. The majority’s narrow decision holding all three corporations to
fall within the meaning of “state”, although clearly correct under both the majority and the
concurrence opinions in the Rajasthan Electricity Board not, however, get us very far in a
conceptual understanding of Article 12.

13
https://legal-dictionary.thefreedictionary.com/Ejusdem+generis

61
Held: Justice Mathew’s concurrent view led to expanding the view of Art. 12 – with the welfare
state philosophy of Constitution the functional space of the State has magnificently expanded.
The state while discharging the multifarious functions, requires State to act in different ways –
commercial body, traditional office/ department, etc. while interacting with the citizens. Taking
account of this expansion – we need to take into account – Government Power wherever
located, must be subject to fundamental constitutional limitations – BROADER
INTERPRETATION reqd.
“Don’t ask how the body is born, but ask WHY THE BODY is BORN”
Is the body been born to perform those functions which are functions of a state in the welfare
state philosophy – if they are public functions – then the body must be an AGENCY &
INSTRUMENTALITY of the state and therefore STATE within the meaning of STATE
d. SABAJIT TIWARI V. INDIA [AIR 1975 SC 1329]
Facts: In this case, the petitioner was a junior stenographer in the Council of Scientific and
Industrial Research asked for an order declaring two letters to be discriminatory and violative
of Article 14. The two letters relate to recommendations of the Finance Sub- Committee of the
Council of Scientific and Industrial Research with regard to remuneration of stenographers.
The petitioners alleged that he should be granted the same number of advance increments as
approved and granted to new recruits because the Council is covered within the definition of
state under Article-12. Therefore, the same benefits would be available without any
discrimination by the government.
Issue: Whether the Council of Scientific and Industrial Research (CSIR) covered under the
definition of State given under Article-12 of the Constitution?
Question: Is CSIR A Part of State?
Same Day Judgement as Sukhdeb Singh Case – Again A Structural Approach
Because Not a Statutory Body – Not A State
e. RD SHETTY V. INTERNATIONAL AIRPORT AUTHORITY [AIR

1979 SC 1628]
Tender Invited for Running Snack & Canteen Bar on International Airport. Accepted The
Tender of a Company Which Did Not Fulfil the Criterias as Mentioned in The Tender
Advertisement
Question: Is International Airport Authority A State Under Art. 12? The Court Applied The –
Agency & Instrumentality Test – Held That International Airport Authority Under Art 12

62
 f. AJAY HASIA V. KHALID MUJIB SAHRAVADI & ORS. [AIR 1981

SC 487] [ENGR. COLLEGE UNDER A SOCIETY]

Facts: Petitioners applied for admission to the B.E. Course of engineering and appeared in the
written test and viva voce test. When the admissions were announced, the petitioners found
that though they had obtained very good marks in the qualifying examination, they had not
been able to secure admission to the college because the marks awarded to them at the viva
voce examination were very low and candidates who had much less marks at the qualifying
examination, had succeeded in obtaining very high marks at the viva voce examination and
thereby managed to secure admission in preference to the petitioners.
Petitioners filed writ petition challenging the validity of the admissions made to the college
contending that the society adopted an arbitrary procedure for selecting candidates for
admission to the college, which resulted in denial of equality to the petitioners in the matter
of admission and was violative of Article 14 Of the Constitution of India
Questions/Issue: Whether or not a society registered under the Societies Registration Act was
an ‘authority’ falling within definition of ‘State’ in Article 12 of the Constitution and procedure
adopted by society for selecting candidates for admission to the college was arbitrary.
Judgment: The Hon’ble Supreme Court held that with regard to the Memorandum of
Association and the Rules of the Society, the respondent college was a State within the meaning
of Article 12 of the Constitution. The composition of the Society was dominated by the
representatives appointed by the Central Government and the Governments of Jammu &
Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government.
The money required for running the college were provided entirely by the Central Government
and the Government of Jammu & Kashmir and even if any other money was to be received by
the Society, it could be done only with the approval of the State and the Central Governments.
The Rules to be made by the Society were also required to have the prior approval of the State
and the Central Governments. The State Government and by reason of the provision for
approval, the Central Government also, had full control of the working of the Society. Hence,
the Society was an instrumentality or agency of the State and the Central Governments and it
was an ‘authority’ within the meaning of Article 12 of the Constitution.
BY identifying A NON-STATUTORY BODY U/A 12 – the court expanded the scope of
State – where it introduced the CORPORATE VEIL doctrine – justification to
AGENCY & INSTRUMENTALITY Test – Whenever you talk about corp body, this
juristic veil is put up only for convenience and to bypass the de facto nature of that

63
company – if the body in question is a Govt, even if acts as a public company or society
or any corporation, it is only the veil that the organization is wearing, it cannot by pass
the fundamental constitutional
Test:
a. If entire share capital of the corporation is held by government.
b. If the financial assistance of State is so much that it meets almost entire expenditure
of Corporation.
c. If the corporation enjoys monopoly status which has been given or protected by
State.
d. Existence of ‘deep & pervasive State Control.’
e. If the function of Corporation – are of public importance – & closely related to
government functions.
f. If a department of Government is transferred to a corporation.
If answer to all or some of these tests comes out to be affirmative, the court said that it would
then indicate that the corporation is an “instrumentality or agency of Government.”
g. PRADEEP BISWAS V. INDIAN INSTITUTE OF CHEMICAL
BIOLOGY [2002]
Seven-judge Constitutional Bench Judgment. The Appellants Filed a Writ Petition Before the
Calcutta High Court to Challenge the Termination of Their Services By ‘Indian Institute of
Chemical Biology’ Which Is a Unit of The Council of Scientific and Industrial Research
(CSIR)
The Writ Was Rejected by The High Court Because Of The Decision Taken in An Earlier Case
‘Sabhajit Tewary Case (1967)’ In Which CSIR Was Held Not to Be An ‘Authority’ Under
Article 12. The case went to the Supreme Court from 2 Bench to 7 Bench.
Issue: Whether CSIR was a State within the meaning of Article 12. And if yes, whether the
Supreme Court should reverse the decision in Sabhajit Tewary.
Held: The Court Held That the Sabhajit Tewary Decision Must Be Overruled. The Court Also
Observed That the Tests Formulated in AJAY HASIA Case Were Not Rigid Set of
Principles and It All Comes Down to The Facts of Each Case and Then the Test Which Has
Mean Mentioned in The Previous Point.
a. The Court Also Held- CSIR To Be Under Article 12 And Therefore Writ Petition Was
Maintainable Against the Concerned Body in This Case – Indian Institute of Chemical
Biology- Which Was a Unit Of CSIR

64
 b. The Court Removed the Confusion with Regard to The Statutory Position of The Body.
c. The Body Either Born Statutorily or Not Made No Difference.
d. 3-fold approach: What Mattered Was the Deep and Pervasive Control of The
Government And
1. Financial
2. Functional
3. Administrative Domination by The Government.
h. BOARD OF CONTROL FOR CRICKET V. CRICKET
ASSOCIATION OF BIHAR [(2015) 3 SCC 251]
This famous case deals with the powers and functions of the board of control for cricket in
India (BCCI) and dealt with the question as to the role of BCCI as a ‘state’ under article 12 of
the constitution of India. In 2007, The BCCI Took the Decision of Inaugurating Indian Premier
League (IPL) And On 27th Of September 2008 Mr N. Srinivasan Was Appointed as The
Secretary of The Board and Simultaneously the BCCI Amended Its Regulation 6.2.4 With
Intent to Not Include IPL And Champions League T20 In Its Purview Spot-fixing In IPL And
Charges Were Levied Against the Owners of Two Teams. BCCI Constituted a Committee
Headed by Shri Sanjay Jagdale and Two Retired Judges of Madras High Court to Investigate
into The Matter. A PIL Was Filed by Cricket Association of Bihar Before the Bombay High
Court Seeking the Constitution of Committee to Be Declared Ultra-Vires of The Constitution
of India and Sought the Appointment of Retired Supreme Court Judges in The Panel. They
Also Prayed for Termination of Contract of IPL Franchisee Chennai Super Kings and Rajasthan
Royals with BCCI And Initiation of Disciplinary Proceedings Against N. Srinivasan. The Court
Took into Account the Principles of Absence Of “Deep and Pervasive Control and Lack of
Substantial Government Funding”; To Rule Out BCCI As ‘State’ Under Article 12 Of the
Constitution of India, As Was Followed in R.D. Shetty’s Case.
In The Process, The Court Re-affirmed Its Decision in The Case of Wherein the Court Had
Declared BCCI To Be a Non-state Entity, Amenable Under the Writ Jurisdiction of The High
Court’s Under Article 226 Of the Constitution of India and Discharging Functions of Public
Importance.
ZEE TELEFILMS V UNION OF INDIA: when a private body, even if it is not a
State, performs public functions, the aggrieved person has a remedy not only under ordinary
law but also under the Constitution, via a writ petition under Article 226.

65
 i. JANET JEYAPAUL (DR.) V. SRM UNIVERSITY 2016
Private university- SRM university Madras, declared “deemed university” by the central
government under section 3 of the UGC act, the management of which was in the private trust
was held to be an authority provided under article 12 of the constitution and amenable to the
writ jurisdiction because:
a. It Imparted Education in Higher Studies to The Students At Large.
b. It Discharged Public Functions by Way of Imparting Education.
c. It Was Notified as A Deemed University Under Section 3 Of the UGC Act.
d. Being A Deemed University by The Central Government Under Section 3 Of the UGC
Act, All the Provisions of The UGC Act Were Made Applicable to It Which, Inter-alia,
Provided for Effective Discharge of Public Function, Namely, Education for Benefit of
Public.
e. Once It Was Declared As “Deemed University” Whose All Functions and Activities
Were Governed by The UGC Act, Like Other Universities, It Was “Other Authority”
Within the Meaning of Article 12 Of the Constitution.
f. Once It Was Held to Be an Authority as Provided in Article 12 Then as A Necessary
Consequence It Was Able to Reach the Jurisdiction of High Court Under Article 226
Of the Constitution.
After Analysis the Definition of The State, Case Law Given by Courts It Can Be Said That
University Comes Under Art.12 Definition Of “State”

VI. WHETHER JUDICIARY IS A STATE?

Can judiciary violate fundamental rights while discharging the judicial functions?
a. BUDHAN CHOWDHARY V. WEST BENGAL [1955] 1 SCR 1045
Though not concretely accepted but inclination of the Court in this case showed that it wanted
to identify the Judiciary as a State. J.Das – Court did want to hold Judiciary under the ambit of
State. J. Das concurred with J Frankfurter of the USA, and agreed that Judiciary in USA is
subject to the limitation under 14th Amendment of the Constitution
b. NARESH SHRIDHAR MIRAJKAR V. STATE OF
MAHARASHTRA (1966) [9 Judges Bench]
Categorically this question arose in front of the SCI – whether the Judiciary is State and whether
Writ can lie against another court?

66
Facts: The article was written by Mr. R.K. Karanjia, (the reporter) in a weekly newspaper –
“Blitz” under the caption “Scandal Bigger Than Mundhra” which talked about a scam going
on by a Chinese company, of which, one Mr. Thakerey was partner. This Mr. Thakrey had filed
a case in Bombay High Court and had sued the reporter and claimed damages of Rs 3 lakh
for the alleged malicious libel published against them. The reporter had called a witness in his
defence – Bhaichand Goda (he is the main person with whom all this started). Bhaichand Goda
requested the court to direct the press – to not publish the evidence Ghoda was going to give,
to prevent loss in his business, since his last evidence had done so.
Proceeding of an Open Court: Learned judge, J. Tarkunde directed the press the same and
granted Bhaichand Goda’s request orally. The reporter from Blitz challenged this direction in
the Supreme Court on the basis that this infringed his right to freedom of speech & expression
and also his right to practise any profession under Article 19(1) (a) and 19(1)(g) respectively.
And also questioned the jurisdiction of the concerned High Court to pass such judicial order of
restricting press from publication of the evidence for the time being.
Judiciary is not state. Judicial decisions cannot lead to violation of Fundamental Rights. Hence
no writ can lie from Supreme Court to any High Court or from one bench of High Court to the
Other Bench.
Prohibition that came by the order given by J. Tarkkunde was only for that case specifically
and not for general public – hence no review required. When a court is working in open
proceeding, public is authorized to view it – so court has no power to issue an order prohibiting
publishing of a proceedings. No inherent power with the Court to issue such order. If you look
at the scheme of the Constitution in general nowhere it seems that the Constituent Assembly
wanted to keep the Judiciary away from the purview of State
When judiciary is acting in its judicial capacity – the Courts being Constitutional Upholders –
hence cannot violate FR.
Majority Opinion: Chief Justice of India Gajendragadkar, Judge Sarkar, Judge Shh and Judge
Bcchawat.
Dissenting Judge: J. Hidyatullah
c. ANTULARU V. NAYAK (1988)
Trial Going on In a Special Court Under Prevention of Corruption Act. The trial was requested
to be shifted to the High Court because of the unnecessary delay. Antulay challenged this shift
because he lost one right to appeal. The court in this case held that, no writ lies from one

67
court to other BUT THE COURT SAID THAT THERE WAS A SCOPE GIVEN TO THE
COURT (under its inherent powers Art. 142) TO CORRECT ORDERS given earlier
d. RUPA HURRA V. ASHOK HURRA (2002)
Court cannot issue writ against other court but court can cure errors that have been committed
like not following Principles of Natural Justice, etc. Court Invented a New Concept: Curative
Petition
e. Conclusion
So, is Judiciary a State?
Still ambiguous. Only Mirajkar case spoke definitely spoke about the position of judiciary not
being a state. The subsequent cases talk about correcting the judicial errors. The court is kept
out of the ambit of the definition of state to avoid the multiplicity of proceedings by raising
same issues first in appeal and then in writ proceedings

VII. WHICH ORGANISATIONS ARE STATE?

a. Legislative And Executive Organs of The Union Government:
1. Indian Government
2. Indian Parliament – Lok Sabha, Rajya Sabha

b. Legislative And Executive Organs of The State Government:

1. State Governments
2. State Legislature – Legislative Assembly, Legislative Council of State
c. All Local Authorities
1. Municipalities – Municipal Corporations, Nagar Palika, Nagar Panchayats
2. Panchayats – Zila Panchayats, Mandal Panchayats, Gram Panchayats
3. District Boards
4. Improvement Trusts, Etc.
d. Statutory And Non-Statutory Authorities
1. Statutory Authorities Examples:
i. National Human Rights Commission
ii. National Commission for Women14

14
https://byjus.com/free-ias-prep/national-commission-women/

68
 iii. National Law Commission15
iv. National Green Tribunal
v. National Consumer Disputes Redressal Commission
vi. Armed Forces Tribunal
2. Non-Statutory Authorities Examples
i. Central Bureau of Investigation16
ii. Central Vigilance Commission17
iii. Lokpal And Lokayuktas

15
https://byjus.com/free-ias-prep/law-commission/
16
https://byjus.com/free-ias-prep/central-bureau-of-investigation-upsc-notes/
17
https://byjus.com/free-ias-prep/central-vigilance-commission/

69
 UNIT 8 – Article 13

COURSE OUTLINE
I] Article 13
1. Article 13 – Limitations on Legislative Power
2. Amendment of the Constitution vis-à-vis understanding of Law under Article 13
3. Doctrine of Severability
4. Doctrine of Eclipse
5. Judicial Review

II] Cases
1. State of Bombay v. F.N. Balsara, AIR 1951 SC 318
2. R.M.D.C v. Union of India, AIR 1957 SC 628
3. Bhikaji Narain Dhakras v. State of M.P., AIR 1955 SC 781
4. Deep Chand v. State of U.P., AIR 1959 SC 648
5. K.K. Poonacha v. State of Karnataka & Ors., 2010
6. Nar Singh Pal v. Union of India, AIR 2000 SC 1401
4. Marbury v. Madison (US 1803)

I. INTRODUCTION
John Locke wrote that the contract between the government and ‘men’ works only if the
sovereign protects all men and their property in exchange for rights. Article 13 of the Indian
Constitution becomes crucial to realise Locke’s words completely. It aids the court and citizens
to keep the powers of the legislature under preview. Article 13 of the Indian Constitution
describes the means for judicial review.

II. ARTICLE 13
a. 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

70
 b. 13(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
c. 13(3): In this article, unless the context otherwise requires “law” includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the
territory of India the force of law;
d. laws in force includes laws passed or made by 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
e. 13(4): Nothing in this article shall apply to any amendment of this Constitution made
under Article 368
“Art. 13 enjoins a duty on the Indian state to respect and implement the fundamental right
& at the same time, it confers a power on the courts to declare a law or an act void if it
infringes the fundamental rights.”

III. DOCTRINE OF SEVERABILITY (TO SEPARATE)

a. As in article 13(1), it is mentioned that the pre-constitutional law will only be void to
the extent of the inconsistency while in article 13(2) it is mentioned that post-
constitutional law will be void to the extent of the contravention.
b. As per clause (1) any law that had been in force in the country before the
commencement of the constitution if found to be inconsistent with the fundamental
rights, would be declared void to the extent of its inconsistency. It is important to
mention here that such laws become void only when so declared by the courts and not
before that. Acts done before the commencement of the constitution in contravention
or in pursuance of the existing laws, that after the commencement of the constitution
becomes inconsistent with the fundamental rights shall not be affected. Hence, the
article does not have retrospective effect.
c. The Doctrine of Severability says that is if a part of any law is inconsistent then the rest
of the part will remain valid. It applies to both pre- and post-constitutional law.
d. It must be observed that Article 13 does not make entire Act inoperative, but only that
part is held inoperative which is inconsistent with the fundamental rights.

71
 e. Doctrine of severability says that when some provisions of an Act are inconsistent with
the fundamental rights and if such provisions can be severed from the rest of the statute,
then only the offending provision would be declared void by the court and not the entire
act.

In KESHAVAN MADHAVA MENON V. STATE OF BOMBAY, the petitioner

was the Secretary of People’s Publishing House India Ltd- In September 1949, a pamphlet
titled ‘Railway Mazdooron ke khilaaf nai Zazish’ was allegedly published in Bombay by the
petitioner as the company’s secretary.
a. In this case, proceedings had been initiated against the appellant for an offence that was
punishable under Section 18 of the Press (Emergency Powers) Act, 1931.
b. It was contended on behalf of the appellant that the impugned Act was inconsistent with
the fundamental rights guaranteed by the Constitution; therefore, it has become void and
hence the proceedings against him cannot be continued further.
c. But the court rejected his contention and held that the article does not have retrospective
effect and it cannot render such laws that has now become inconsistent with the
fundamental rights, void ab initio for all purposes.

The case of STATE OF BOMBAY V. F.N. BALSARA (1951) stated:

a. In some provisions of the Bombay Prohibition Act, 1949 were held ultra vires, but the
rest of the act was allowed to stand. The court held that “The decision declaring some of
the provisions of the act to be invalid does not affect the validity of the act as it remains.”
b. The court laid down the following rules for determining whether the statute can stand by
severing the invalid portion or not:
c. The intention of the legislature behind enacting the act helps in determining whether the
violative provision can be severed or not.
d. If the valid and invalid portions are so intertwined that they cannot be separated from one
another, then the invalidity of some portion of the statute will render the entire statute
invalid.
e. So, it can be concluded that if the inconsistent part of a statute can be severed in a way
that the consistent part can exist independently, the doctrine of severability can be applied
to such statutes.

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A.K. GOPALAN V. STATE OF MADRAS
It was found that Section 14 of The Preventive Detention Act was violating Article 14 of the
Constitution - which provided that the grounds of detention communicated to the detainee or
any representation made by him against these grounds cannot be disclosed in a court of law
So, it was made void but the other parts of the Act were separable while still alive and operative.

IV. DOCTRINE OF ECLIPSE

a. Article 13(1) talks about the pre-constitutional law as it says that the laws existing
before the commencement of the constitution if found inconsistent with the provisions
present in article 13 then they will be void.
b. But the Doctrine of Eclipse says that the inconsistent laws though become out of whack
are not completely dead. It is eclipsed by the fundamental rights and can again be alive
through some constitutional amendments.
c. It is only applicable to citizens as non-citizens do not have fundamental rights so they
can’t challenge the validity of any law.
d. The doctrine of eclipse says that any existing law which is inconsistent with the
fundamental rights is not completely invalid, but is overshadowed by the fundamental
rights and remain dormant but not dead.
e. It would be valid if a question arises for determining the rights and obligations that
would have incurred before the commencement of the constitution and also for those
persons who have not been given the fundamental rights.
f. Till the time, the law violates the fundamental right, it remains dormant, but if by an
amendment such law no more violates the fundamental rights, then the law becomes
alive and operative.
g. This is the principle of doctrine of eclipse and has been elaborated by the courts in
various judgements.

In the case of BHIKAJI NARAYAN DHAKRAS V. STATE OF M.P. [AIR 1995

SC 781], the issue before the court was that if an existing Act has become inconsistent with
the fundamental rights on commencement of the constitution, then can it become valid again if
there comes any amendment which removes such inconsistency.

73
The court held that the effect of the Amendment is that it removes the shadow and makes the
impugned Act free from inconsistency. The law therefore becomes valid after the constitutional
impediment is removed. The doctrine of eclipse was earlier applicable on just pre-constitutional
law but now it can also be extended to even post constitutional law to some extent as laid down
in STATE OF GUJRAT V. AMBICA MILLS LTD.

It is important to mention that the Doctrine of Waiver does not apply to the fundamental rights
and such rights cannot be waived off by any person. This was clearly held by the court in
BASHESHAR NATH V. CIT [AIR 1959 SC 149] that the issue before the court was
that can a fundamental right be waived by a person who has it. The court in this case held that
it is not open to any citizen to waive off any of the fundamental rights that are conferred on
them by Part III of the Constitution.

It has been clarified by the Supreme Court that fundamental rights of the people are those rights
cannot be waived off. Any action of any person that shows voluntarily giving up one’s
fundamental right cannot be considered valid. Fundamental rights cannot be waived off under
any circumstance. It must be noted that the laws made by the legislature are always presumed
to be constitutional and that they are not violative of the fundamental rights. Therefore, if any
person claims that a particular law is violative of the fundamental rights, then that person will
have to prove and satisfy the court that the law is in abrogation of the fundamental rights.

In the case of DEEP CHAND V. STATE OF UTTAR PRADESH, it was ruled out
that only the pre-constitutional law can be brought to life – Doctrine of Eclipse applies.
Whereas the post-constitutional law which infringes fundamental right is void from its dawn –
VOID AB INITIO.

V. IS CONSTITUTIONAL AMENDMENT ACT A LAW?

a. SHANKARI PRASAD [1951] – Law under Article 13 does not include CAA.
b. GOLAKNATH CASE [1967] – Judicial Review is SUPREME. CAA can be
challenged

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 c. 24TH CONSTITUTIONAL AMENDMENT ACT 1971 – Article 13(4)
inserted – Any Amendment under Article 368 not to be challenged
d. KEHVANAND BHARTI CASE [1973] – CAA cannot be challenged under
Article 368

VI. JUDICIAL REVIEW

Judicial review is the idea, fundamental to the Parliamentary and Federalistic system of
government, that the actions of the executive and legislative branches of government are
subject to review and possible invalidation by the judiciary.
Judicial review allows the Supreme Court to take an active role in ensuring that the other
branches of government abide by the constitution. Even though we have in India the principle
of separation of powers of the three arms of the State, namely, the executive, the legislative
and the judiciary, the judiciary is vested with the power of review over actions of the other two
arms
a. Meaning
Judicial review refers to the power of the judiciary to interpret the constitution and to declare
any such law or order of the legislature and executive void, if it finds them in conflict the
Constitution of India. Judicial review is the power of the judiciary by which:
1. the court reviews the laws and rules of the legislature and executive in cases that
come before them; in litigation cases.
2. The court determines the constitutional validity of the laws and rules of the
government;
3. The court rejects that law or any of its part which is found to be unconstitutional
or against the Constitution.

b. Features of Judicial Review in India

1. Judicial review power is used by both the Supreme Court and High Courts: both the
Supreme Court and High Court exercise the power of Judicial Review. But the final
power to determine the constitutional validity of any law is in the hands of the Supreme
Court of India.

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 2. Judicial Review of both Central and state laws: judicial review can be conducted in
respect of all Central and State laws, the orders and ordinances of the executives and
constitutional amendments.
3. A Limitations: judicial review cannot be conducted in respect of the laws incorporated
in the 9th Schedule of the Constitution
But IR COHELLO CASE it was decided by the SCI that no law can go beyond the
purview of Judicial review, established the date of 24/04/1973 as the deciding date.
4. It covers laws and not political issues: judicial review applies only to the questions of
law. It cannot be exercised in respect of political issues.
5. Principle of Procedure established by Law: judicial review in India is governed by the
‘Procedure Established by Law’. Under it the court conducts one test, i.e., whether the
law has been made in accordance with the powers granted by the Constitution to the
law-making body and follows the prescribed procedure or not. It gets rejected when it
is held to be violative of procedure established by law. TATA CELLULAR V.
UOI – “Judicial Review is different from appeal”.

c. Certain Facts about Judicial Review

1. Judicial review is considered a basic structure of the constitution (INDIRA

GANDHI VS RAJ NARAIN CASE).

2. Judicial review is the power of the courts to consider the constitutionality of acts of
organs of Government and declare it unconstitutional if it violates or is inconsistent with
the basic principles of the Constitution.
3. This means that the power of the legislature to make laws is not absolute and that the
validity and constitutionality of such laws are subject to review by the courts.
4. Judicial review is also called the interpretational and observer roles of the Indian
judiciary.
5. The Indian Constitution adopted the Judicial Review on lines of the American
Constitution.
6. Suo Moto cognizance and the Public Interest Litigation (PIL), with the discontinuation
of use of only the principle of Locus Standi, have allowed the judiciary to intervene in
many public issues, even when there is no complaint from the aggrieved party.

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d. MARBURY V. MADISON
1. Few weeks before Thomas Jefferson’s inauguration as POTUS in March 1801, the
lame-duck Federalist Congress created 16 new circuit judgeships (in the Judiciary Act
of 1801) and around 39 new judgeships (in the Organic Act)
2. John Adams proceeded to fill with Federalists in an effort to preserve his party’s control
of the judiciary and to frustrate the legislative agenda of Jefferson and his Republican
(Democratic-Republican) Party
3. William Marbury, a Federalist Party leader from Maryland, was among the last of
those appointments (the so-called “midnight appointments”), did not receive his
commission before Jefferson became president.
4. Once in office, Jefferson directed his secretary of state, James Madison, to withhold
the commission
5. Marbury petitioned the Supreme Court to issue a writ of mandamus to compel Madison
to act.

IN COURT
1. Marbury and his lawyer argued that - signing and sealing the commission completed
the transaction and that delivery, in any event, constituted a mere formality (But
formality or not, without the actual piece of parchment, Marbury could not enter into
the duties of office)
2. By the time the court heard the case, the wisdom of Jefferson’s desire to reduce the
number of justices of the peace had been confirmed (and the Judiciary Act of 1801 had
been repealed
3. But Chief Justice John Marshall recognized that he had a perfect case with which to
expound a basic principle, judicial review, which would secure the Supreme Court’s
primary role in constitutional interpretation.
4. DILEMMA INFRONT OF THE COURT
i. If the court issued the writ of mandamus, Jefferson could simply ignore it,
because the court had no power to enforce it.
ii. If, on the other hand, the court refused to issue the writ, it would appear that the
judicial branch of government had backed down before the executive

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JUDGMENT
In one stroke, Marshall managed to establish the power of the court as the ultimate arbiter of
the Constitution, to chastise the Jefferson administration for its failure to obey the law, and to
avoid having the court’s authority challenged by the administration. He asked three questions:
1. Did Marbury have the right to the commission?
2. If he did, and his right had been violated, did the law provide him with a remedy?
3. If it did, would the proper remedy be a writ of mandamus from the Supreme Court?
The last question, the crucial one, dealt with the jurisdiction of the court – purposefully
answered at last – as negative answer to this would have reduced the discussion to other issues,
secondly, he wanted to criticize the President for flouting laws
THE OPINION OF CJ JOHN MARSHALL
1. That the validity of a commission existed once a president signed it and transmitted
it to the secretary of state to affix the seal. Presidential discretion ended there, for the
political decision had been made, and the secretary of state had only a ministerial task
to perform—delivering the commission.
2. In that the law bound him, like anyone else, to obey. Marshall drew a careful and lengthy
distinction between the political acts of the president and the secretary, in which the
courts had no business interfering, and the simple administrative execution that,
governed by law, the judiciary could review.
3. In Favour of Plaintiff the Court Said: “having this legal title to the office, [Marbury] has
a consequent right to the commission, a refusal to deliver which is a plain violation
of that right, for which the laws of his country afford him a remedy.”
4. Although he could have held that the proper remedy was a writ of mandamus from the
Supreme Court—because the law that had granted the court the power of mandamus in
original (rather than appellate) jurisdiction, the Judiciary Act of 1789, was still in
effect—he instead declared that the court had no power to issue such a writ, because the
relevant provision of the act was unconstitutional.

FURTHER
Section 13 of the Act, he argued, was inconsistent with Article III, Section 2 of the Constitution,
which states in part that “the Supreme Court shall have original Jurisdiction” in “all Cases
affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be
Party,” and that “in all the other Cases before mentioned, the supreme Court shall have
appellate Jurisdiction.” In thus surrendering the power derived from the 1789 statute.

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IMPACT
In the face of attack launched by Jefferson – Marshall made a strong statement to maintain the
status of Supreme Court as the head of the co-equal branch of government. By asserting the
power to declare acts of Congress unconstitutional (which the court would not exercise again
for more than half a century), Marshall claimed for the court a paramount position as interpreter
of the Constitution. Established the concept of Judicial Review.

e. Classification of Judicial Review

We can classify judicial review into three categories. They are:
1. Reviews of Legislative Actions: This review implies the power to ensure that laws
passed by the legislature are in compliance with the provisions of the Constitution.
2. Review of Administrative Actions: This is a tool for enforcing constitutional discipline
over administrative agencies while exercising their powers.
3. Review of Judicial Decisions: This is seen in the Golaknath case, bank nationalisation
case, Minerva Mills case, privy purse abolition case, etc.

f. Importance of Judicial Review

1. It is essential for maintaining the supremacy of the Constitution.
2. It prevents the tyranny of executives.
3. It maintains the federal balance.
4. It is essential for checking the possible misuse of power by the legislature and
executive.
5. It is essential for securing the independence of the judiciary.
6. It protects the rights of the people

g. Examples of Important Judicial Review

1. I. R. COELHO V. STATE OF TAMIL NADU: This case was seen from
Keshvanand Bharti case in which the cases like Chandra Kumar v. Union of India and
others (1997), Waman Rao and others v. Union of India and others (1981), Minerva Mills
Ltd. and others v. Union of India (1980), Indira Nehru Gandhi v. Raj Narnia (1975), where
judicial review was considered as essential and integral Part of the Constitution of India.
2. MITTHU V. STATE OF PUNJAB: The Supreme Court of India has struck down
Section 303 of Indian Penal Code, 1860. This section had made death sentence mandatory.

79
 In case Article twenty-one of the Indian Constitution was illustrated by the S.C.I.
complete its frequent pronouncement.
3. SHREYA SINGHAL V. UOI: In 2015, the SC struck down Section 66(A) of the
amended Information Technology Act, 2000. This provided the punishment for sending
“offensive” messages through a computer or any other communication device like a
mobile phone or a tablet. A conviction could fetch a maximum of three years in jail and
a fine. This was repealed by the SC on the grounds that this section fell outside Article
19(2) of the Constitution, which relates to freedom of speech.
4. VISHAKHA V. STATE OF RAJASTHAN

5. NAVTEJ SINGHE JOHAR V. UNION OF INDIA

6. NALSA V. UNION OF INDIA

h. Limitations of Judicial Review

1. Judicial Review limits the functioning of the government. It is only permissible to the
extent of finding if the procedure in reaching the decision has been correctly followed but
not the decision itself.
2. The judicial opinions of the judges once taken for any case become the standard for ruling
other cases.
3. It is designated only to the higher courts like the Supreme Court and the High Courts.
4. Repeated interventions of courts can diminish the faith of the people in the integrity,
quality, and efficiency of the government.
5. The judiciary cannot interfere in political questions and policy matters unless absolutely
necessary.
6. The judgments can be influenced by personal or selfish motives; hence, Judicial review
can harm the public at large.
7. It violates the limit of power set to be exercised by the constitution when it overrides any
existing law.
8. In India, a separation of functions is followed rather than the separation of powers.
9. The concept of separation of powers is not adhered to strictly in the judicial review.
However, a system of checks and balances has been put in place in such a manner that the
judiciary has the power to strike down any unconstitutional laws passed by the legislature.

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i. Justiciability of Judicial Review
For a case to be appropriate for judicial review it should be of a type that courts can resolve,
i.e.
1. it is redressable by the court,
2. it does not call for an advisory opinion, and;
3. it does not involve political questions better left to the legislative branch of government,
besides involving a real and substantial controversy

j. Judicial Review and Constitution

1. Judicial review is called upon to ensure and protect Fundamental Rights which are
guaranteed in Part III of the Constitution.
2. The power of the Supreme Court of India to enforce these Rights is derived from Article
32 of the Constitution. This provides citizens the right to directly approach the SC to
seek remedies against the violation of Fundamental Rights.
3. In India explicitly establishes the Doctrine of Judicial Review in several Articles such
13, 32, 131-136, 143, 226 and 246
4. According to Article 13(2), the Union or the States shall not make any law that takes
away or abridges any of the fundamental rights, and any law made in contravention of
the aforementioned mandate shall, to the extent of the contravention, be void.

k. Nature of Judicial Review

Interpretation of the Constitution is done by the Courts by Direct or indirect judicial review
1. Direct Judicial Review – the Court overrides or annuls an enactment or an executive
act on the ground that it is inconsistent with the Constitution.
2. Indirect Judicial Review – while considering the constitutionality of a statute, the Court
so interprets the statutory language as to steer clear of the alleged element of
unconstitutionality

l. Why was there a need for Judicial Review?

1. India has a written constitution and words can have different meanings. The problems
of interpretation are bound to arise.
2. In a big democratic country like India, even a minor body of the government has to take
decisions on a regular basis. It is important that these decisions are taken in the best

81
 interest of the citizens of the country and which are abided by the constitution. Judicial
Review by the courts work as a check on these decisions.
3. To protect the right of the citizens, the court have to be the protector of the rights of the
citizens. It is the core function of the judiciary and tools such as these help in the
process.

m. Judicial Review & Schedule IX

The nineth schedule to the Constitution of India contains as many as 284 laws from the centre
and state that are out of purview of the Judicial Review.
The First Amendment that brought in Articles 31A and 31B conferring upon the state the right
to make laws to acquire private property and to deem such laws as not being discriminatory
and to further protect all such laws from any judicial review by creating something called the
Ninth Schedule. It is interesting to note that the origins of IX schedule lie in land acquisition
happening in current times
Art 31 A (1) – notwithstanding anything contained under Art. 13, no law providing for the
following shall be deemed to be void on the grounds of being inconsistent with Art 14 or 19
Acquisition by the State of any estate, taking over the management of property by State for
limited period of time, amalgamation of two or more corporations, etc.
Art 31 B. Validation of certain Acts and Regulations Without prejudice to the generality of the
provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth
Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become
void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away
or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any
judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and
Regulations shall, subject to the power of any competent Legislature to repeal or amend it,
continue in force
Through the case of I.R. COELHO VS. STATE OF TAMIL NADU AIR 2007

SC 8617, the Supreme Court affirmed that any certain law which is placed in the 9th schedule
(subject after April 1974) will be open to challenge under the judicial review. The Court
claimed that even though this act is under the 9th schedule of the constitutional Amendment
yet its provisions would be open to challenge in case they damage the basic structure/feature
of the constitution.

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n. Judicial Review & Constitutional Amendment Act
1. WAMAN RAO V. UNION OF INDIA: In this important judgement, the Apex
Court ruled that, “those amendments which were made in the constitution before 24th
April 1973 (date on which judgement in Keshavananda Bharati was delivered) are valid
and constitutional but those which were made after the stated date are open to being
challenged on the ground of constitutionality and the State is only immunized for its
acts before the judgement in Keshavananda Bharati. This is also known as “Doctrine of
Prospective Over-Ruling” which means that ‘only what follows after is bound to abide
by the rules and what has happened earlier will not be taken in the account’
2. I R COELHO V. STATE OF TAMIL NADU: Two important questions were
referred to the higher bench by the constitutional bench of 5 judges which remained
unanswered in the judgement in Waman Rao. The questions were:
i. Can an Act or the part which violates Arts. 14, 19 or 21 be included in 9th
schedule?
ii. Is it mandatory that only a constitutional amendment which destroys the basic
structure be struck down?
It was held that every law must be tested under Art. 14, 19 and 21 if it came into force after
24th April 1973. In addition, the court upheld its previous rulings and declared that any act can
be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic
structure of the constitution. In addition, it was held that if the constitutional validity of any
law under the ninth schedule has been upheld before, in future it cannot be challenged again.
Thus, it put a check on the legislature to formulate laws so that they do not take away the rights
of the citizen and thus settled all the dilemmas prevailing over the law under the 9th schedule.

o. Recent Discussion around Judicial Review

The Supreme Court has refused to treat the Central Vista project as a unique one requiring a
greater or “heightened” judicial review. The New Delhi’s Central Vista project includes
Parliament House, Rashtrapati Bhavan, India Gate, North and South block among others.
1. The Supreme Court said the government was “entitled to commit errors or achieve
successes” in policy matters without the court’s interference as long as it follows
constitutional principles.

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 2. It is not the court’s concern to enquire into the priorities of an elected government.
Judicial review is never meant to venture into the mind of the government and thereby
examine the validity of a decision.

VII. JUDICIAL ACTIVISM

a. Judicial activism signifies the proactive role of the Judiciary in protecting the rights of
citizens.
b. The practice of Judicial Activism first originated and developed in the USA.
c. In India, the Supreme Court and the High courts are vested with the power to examine
the constitutionality of any law, and if such a law is found to be inconsistent with the
provisions of the constitution, the court can declare the law as unconstitutional.
d. It has to be noted that the subordinate courts do not have the power to review
constitutionality of laws.
e. Judicial Activism has led to a controversy in regard to the supremacy between
Parliament and Supreme Courts.
f. It can disturb the delicate principle of separation of powers and checks and balances.
g. Judges should act more boldly when making decisions on cases
1. Law should be interpreted and applied based on ongoing changes in conditions and
values.
2. As society changes and their beliefs and values change, courts should then make
decisions in cases the reflect those changes.
h. According to the idea of judicial activism, judges should use their powers to correct
injustices, especially when the other branches of government do not act to do so. In
short, the courts should play an active role in shaping social policy on such issues as
civil rights, protection of individual rights, political unfairness, and public morality.
i. Examples- of judicial activism are the decisions by the Indian Supreme Court in
Maneka Gandhi’s case as well as its decisions relating to Article 21 of the Indian
Constitution, Vishakha Guidelines, Transgender Rights, Decriminalization of Adultery,
etc.

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VIII. JUDICIAL RESTRAINT
a. Judicial Restraint is the antithesis of Judicial Activism.
b. Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the
exercise of their own power.
c. The Constitution of India did not provide for the judiciary to be a super legislature or a
substitute for the failure of the other two organs. Thus, the need arises for the judiciary to
lay down its own limitations.
d. In short, the courts should interpret the law and not intervene in policy-making.
e. Judges should always try to decide cases on the basis of:
1. The original intent of those who wrote the constitution.
2. Precedent – past decisions in earlier cases.
3. Also, the court should leave policy making to others.
f. Here, courts “restrain” themselves from setting new policies with their decisions.
Examples: ALMITRA H. PATEL VS. UNION OF INDIA, where the issue was
whether directions should be issued to the Municipal Corporation regarding how to make Delhi
clean, the Court held that it was not for the Supreme Court to direct them as to how to carry
out their most basic functions and resolve their difficulties, and that the Court could only direct
the authorities to carry out their duties in accordance with what has been assigned to them by
law

IX. JUDICIAL OVERREACH

a. When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is
referred to as Judicial Overreach.
b. In simpler terms, it is when the judiciary starts interfering with the proper functioning
of the legislative or executive organs of the government.
c. Judicial Overreach is undesirable in a democracy as it breaches the principle of
separation of powers.
d. In view of this criticism, the judiciary has argued that it has only stepped when the
legislature or the executive has failed in its own functions.
e. Example: On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at
retail shops, restaurants, bars within 500m of any national or state highway. There was
no evidence presented before the court that demonstrated a relation of ban on liquor on

85
 highways with the number of deaths. This judgement also caused loss of revenue to state
governments and loss of employment. The case was seen as an Overreach because the
matter was administrative, requiring executive knowledge.
f. Censorship of the Film Jolly LLB II - The case was filed as a writ petition, and alleged
that the film portrayed the legal profession as a joke, making it an act of contempt and
provocation. The Bombay High Court appointed a three-person committee to watch the
movie and report on it.
g. This was viewed as unnecessary, as the Board of Film Certification already exists and
is vested with the power to censor. On the basis of the report of the committee, four
scenes were removed by the directors. It was seen as violative of Article 19(2), as it
imposed restriction on freedom of speech and expression.

X. R.M.D.C V. UNION OF INDIA

Background: The petitioners M/S R.M.D.C. had been doing their business of prize competitions
in Mysore, since 1948. Their business was governed by the Mysore Lotteries and Prize
Competitions Control and Tax Act, 1951. In this case basically Section 2(d) of the Prize
Competition Act was challenged. A Central Legislation called the Prize Competition Act, 1955
was passed following an appeal from the various states of the country. This Act was welcomed by
other states including The State of Mysore. However, the State agreed to the Union’s exclusive
jurisdiction over the control of prize competitions. But what happened later was that the State itself
passed an ordinance amending certain provisions of the act to deem taxation powers upon
themselves. This action taken by the State was called into question by R.M.D.C (petitioners) and
they regarded it ultra vires the legislative competence of the State. It was also contended that the
doctrine of colourable legislation was applicable, as the State of Mysore was attempting to control
the conduct of prize competitions indirectly, by appropriating the powers of their taxation. The
case R.M.D.C V. UNION OF INDIA18 was related to the constitutional validity as Article
19(6) of the Constitution of India came into question. On this petitioner’s contention, strong
arguments were put by the respondents that the business of lotteries and gambling which
petitioners were doing is not covered under trade and hence no violation of the fundamental right
under Part III of the constitution. Mr. Palkhivala appeared on the behalf of the petitioner’s side

18
R.M.D.C. v. Union of India, (1957) AIR SC 628

86
and Mr. Seervai appeared from the respondent’s side. Both the parties put forth their arguments
and made contentions on their points before the Apex Court. The case is based on the doctrine of
severability as to what part of the Act of prize competition is regarded as valid or not.

International Law Related to Doctrine of Severability: The practice of Doctrine of Severability

has been in practice for a very long time and it is not a new thing. It has been adopted in many
countries like the United Kingdom, Australia, United States of America, Malaysia and so on as
well in our country which is India. In England, United Kingdom the doctrine of severability goes
back when it had originated in the case of Nordenfelt v. Maxim Nordenfelt Guns and
Ammunition Company Ltd19. Then in other countries like the United States of America where
the first case of doctrine of severability was decided in the year 1876. After this a question evolved
which question that if the Congress knew about the invalid portion had it enacted it the first time.
In this particular case the case was centred around the fifteenth amendment of the American
constitution that spoke about the voting rights not being denied to the American male citizen on
the basis of colour or race etc. The basic knowledge drawn from these international cases was the
sole purpose of the act, whether it would affect the valid part of the Act after excluding the invalid
part or not. If it stands invalid then the whole act would become void. This was the basic contention
made in the doctrine of severability.

Facts In Issue: A petition is filed by the applicant on the ground of their violation of the
fundamental rights under Article 32 of the constitution challenging that Article 19(6) has been
violated as a restriction is imposed on carrying on their business by the respondents. Further it was
contended by the respondents that Section 2(d) of the Prize Competition Act, 1955 doesn’t cover
the competitions related to the gambling but the petitioners were of the view that the definition of
prize competition under Section 2(d) of the Act is very wide and it not only covers the competitions
of the gambling nature but also those in which success depended to a substantial degree on skill,
which was a part of the petitioner’s business. Further, on behalf of the Union of India this was
controverted and it was contended by the respondents that the definition, properly construed, meant
and included only such competitions as were of a gambling nature, and even if that was not so,
the impugned provisions, being severable in their application, were valid as regards gambling
competitions.

19
Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd (1894) AC 535

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Petitioner’s Argument:

a. Section 2(d) of the Prize Competition Act, 1955 was wide and covered all the competitions
which are of gambling nature and also those in which success depended to a substantial degree
on skill.
b. The respondents are imposing restrictions upon the petitioners and hence are violating their
fundamental right granted under Article 19(6) of the constitution.
c. It was contended by the petitioners that the invalid part of the Prize Competition Act, 1955
cannot be severed as the valid part would also be void as they are connected.

Respondent’s Argument:
a. The respondents argued that 'prize competition' as defined in s. 2(d) of the Act, properly
constructed, means and includes only competitions in which success does not depend to any
substantial degree on skill and gambling activities are not trade or business.
b. The petitioners cannot file the petition under Article 32 as there has been no violation under
Art. 19(1)(g), and that accordingly the petitioners are not entitled to invoke the protection of
Art. 19(6).
c. It was contented by the respondents even if some part of the Prize Competition Act is invalid
that should be removed but the valid part should stand valid and the whole Act should not be
entirely void.
The major bone of contention in R.M.D.C. v. Union of India is the doctrine of severability, which
can be understood as the doctrine which applies to both future and existing law. It means the Court
will not declare the entire Act as unconstitutional if some of its parts are invalid. In other words,
the valid part of that particular act will stand valid. In R.M.D.C. v. Union of India, the whole case
revolves around the constitutionality of the Prize Competition Act as to which part of it stands as
valid or invalid.

Doctrine Of Severability: The doctrine of severability is also known as doctrine of separability.

The doctrine was framed by the Supreme Court to find a solution to the problem of validity of
the laws which are declared as unconstitutional. When a part of the law is declared
unconstitutional then the question arises whether the whole law is to be declared unconstitutional
or part of it must be declared unconstitutional. According to doctrine of severability, a law is
void only to the extent of its contravention with the Fundamental Rights according to Article 13
of the Constitution. In others words, to understand this doctrine, we can consider the example of

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a rotten apple i.e., if the rotten part of an apple is separated then the rest of it can be consumed.
But if the rotten part is so inextricably mixed with the healthy part that it cannot be separated
then the whole apple will have to be thrown away.

Basis Of Doctrine: Article 13 is the main basis of the Doctrine of severability. It has two
important provisions which are Art.13(1) and Art.13(2).
a. Art.13(1) says all those laws which came into existence before the commencement of the
constitution are found to be inconsistent with the provisions of this Part must be declared
void to the extent of its inconsistency.
b. Art.13(2) says that 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 this contravention be void.

Cases Related to Doctrine of Severability

In the case of A.K GOPALAN V. STATE OF MADRAS20, A.K. Gopalan(political

leader) who was detained in the Madras Jail under Preventive Detention Act,1950 challenged his
detention by stating that there was a violation of his Fundamental Right which were Article 19,21
and 22. He argued that the right to movement was a fundamental right under article 19 and hence
the defence counsel must prove that the law of preventive detention was a reasonable restriction
as per the five clauses of article 19(2). The Supreme Court held that he was detained according to
the procedure established by law and rejected his argument. The supreme court at that point of
time believed that each article was separate in the Indian constitution.
In the case of STATE OF BOMBAY V. F.N BALSARA21The petitioner (F.N Balsara)
contended that the Bombay Prohibition Act which prohibited sale and possession of liquor in the
state was challenged on the ground that it has encroached upon import and export of liquors which
is a Central subject. It was argued that the possession, purchase, prohibition, use and sale of liquor
will have an effect on the imports. The court held that Act valid because the pith and substance of
the Act fell under the State List and not under the Union List even though the Act incidentally
encroached upon the Union Powers of Legislation.

20
A.K Gopalan v. State of Madras, (1950) AIR SC 27
21
State of Bombay v. F.N Balsara, (1951) AIR SC 318

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The doctrine of severability was even used in the case of MINERVA MILLS V. UNION

OF INDIA22 where section 4 and 55 of the 42nd Amendment Act, 1976 was struck down for
being beyond the amending power of the Parliament and then it had declared the rest of the Act as
valid.
Then in another case of KIHOTO HOLLOHAN V. ZACHILLHU23 which is very
famously known as the defection case. In this case the paragraph 7 of the Tenth Schedule which
was first inserted by the 52nd Amendment Act of 1985 was declared as unconstitutional because
it had violated the provisions under Article 368(2). But the whole part was not declared
unconstitutional. So, the rest of the Tenth Schedule excluding paragraph 7 was upheld by the
Constitution.
In the case of STATE OF BOMBAY V. THE UNITED MOTORS (INDIA LTD)24.
Bombay Sales Tax Act, 1952 was questioned on its validity. It was contended by the respondents
that this Act is invalid as it violates their fundamental rights under Art.13, 14 and 19. It was said
Act was a complete code and provided for special machinery for dealing with all questions arising
under it, including questions of constitutionality, and, therefore, the petition was not maintainable.
In the case of D.S. NAKARA V. UNION OF INDIA25, AIR 1983 S.C. 130 where the Act
remained valid while some portion of it was declared invalid because it was severable from the
rest of the Act.
In CHINTAMAN RAO V. STATE OF MADHYA PRADESH26, the question related
to the constitutionality of Section 4(2) of the Central Provinces and Berar Regulation of
Manufacturers of Bidis of 1948, which provided that, " No person residing in a village specified
in such order shall during the agricultural season engage himself in the manufacture of bidis, and
no manufacturer shall during the said season employ any person for the manufacture of bidis ".
This Court held that the restrictions imposed by Section 4(2) were in excess of what was requisite
for achieving the purpose of the Act, which was to provide measures for the supply of adequate
labour for agricultural purposes in bidi manufacturing areas. The Court said Sec. 4(2) is by its very
nature inseparable, and it could not be enforced without re-writing it. This really is nothing more
than a decision on the severability of the particular provision which was impugned therein.

22
Minerva Mills v. Union of India, (1980) AIR SC 1789
23
Kihoto Hollohan v. Zachillhu , (1992) SCR (1) 686
24
State of Bombay v. The United Motors (India Ltd) , (1953) AIR 252
25
D.S. Nakara v. Union of India, (1983) AIR SC 130
26
Chintaman Rao v. State of Madhya Pradesh, (1951) AIR 118

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On Article 19(6)
19 (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred by the said sub clause,
and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so
far as it relates to, or prevent the State from making any law relating to,
a. the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
b. the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of
citizens or otherwise

Constitutionality Of the Arguments Made:

In R.M.D.C. v. Union of India, Article 19(6) of the Indian constitution was challenged because
The Prize Competition Act, 1955 violates it.
Section 2(d) of The Prize Competition Act defines “Prize Competition” as “prize competition"
means any competition (whether called a cross- word prize competition, a missing- word prize
competition, a picture prize competition or by any other name) in which prizes are offered for the
solution of any puzzle based upon the building up, arrangement, combination or permutation, of
letters, words, or figures.”
The first contention made in this case was whether the definition stated above covers
lotteries or gambling because by merely buying lotteries they are considered as goods but the sale
of it cannot be considered trade as trade contains skills with no chance while in gambling there is
an element of chance with no skill. Therefore, a ban by any state on the state of lotteries of other
States within its territory does not violate Article 301 and 303 of the Lotteries (Regulation) Act,
1998. It can be said that gambling is recognised and authorised by law maybe through regulations,
licenses etc. But merely because there is sanction in law for a transaction or is legalised and not
prohibited, it would not by itself make it to be commercium. Therefore, the sale of lottery tickets
which is gambling in nature cannot be given protection under Art. 19(1)(g). Further as per the
Prize Competition Act, the provisions which are impugned as unconstitutional are Sections 4 and
5 which are
Section 4: No person shall promote or conduct any prize competition or competitions in which the
total value of the prize or prizes (whether in cash or otherwise) to be offered in any month exceeds

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one thousand rupees; and in every prize competition, the number of entries shall not exceed two
thousand.

Section 5: Subject to the provisions of section 4, no person shall promote any prize competition or
competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be
offered in any month does not exceed one thousand rupees unless he has obtained in this behalf a
licence granted in accordance with the provisions of this Act and the rules made thereunder.
Section 20 confers power on the State Governments to frame rules for carrying out the purpose of
the Act. In exercise of the powers conferred by this section, the Central Government has framed
rules for Part C States, and they have been, in general, adopted by all the States. Two of these
rules, namely, rules 11 and 12 are impugned by the petitioners as unconstitutional, and they are as
follows:

Rule 11: Entry fee-(1) Where an entry fee is charged in respect of a prize competition, such fee
shall be paid in money only and not in any other manner.
(2) The maximum amount of an entry fee shall not exceed Re. 1 where the total value of the prize
or prizes to be offered is rupees one thousand but not less than rupees five hundred; and in all other
cases the maximum amount of an entry fee shall be at the following rates, namely-

Rule 12. Maintenance of Register: Every licensee shall maintain in respect of each prize
competition for which a licence has been granted a register in Form C and shall, for the purpose
of ensuring that not more than two thousand entries are received for scrutiny for each such
competition, take the following steps, that is to say, shall-
(a) arrange to receive all the entries only at the place of business mentioned in the license;
(b) serially number the entries according to their order of receipt;
(c) post the relevant particulars of such entries in the register in Form C as and when the entries
are received and, in any case, not later than the close of business on each day; and
(d) except for scrutiny only the first two thousand. entries as they appear in the register in Form C
and ignore the remaining entries, if any, in cases where no entry fee is charged and refund the entry
fee received in respect of the entries in excess of the first two thousand to the respective senders
thereof in cases where an entry fee has been charged after deducting the, cost (if any) of refund.

As per the sections and clauses given above Mr. Palkhiwala contended that Section 2(d) of this
Act would include not only competitions in which success depends on chance but also those in

92
which it would depend to a substantial degree on skill; that the conditions laid down in Sections 4
and 5 and Rules 11 and 12 stated above are wholly unworkable and would render it impossible to
run the competition, and that they seriously encroached on the fundamental right of the petitioners
to carry on business; that they could not be supported under Art. 19(6) of the Constitution as they
were unreasonable.

Mr. Seervai who appeared for the respondent, disputes the correctness of these contentions. He
argues that 'prize competition' as defined in Section 2(d) of the Act, properly construed, means and
includes only competitions in which success does not depend to any substantial degree on skill
and are essentially gambling in their character; that gambling activities are not trade or business
within the meaning of that expression in Art. 19(1)(g), and that accordingly the petitioners are not
entitled to invoke the protection of Art. 19(6); and that even if the definition of 'prize competition'
in s. 2(d) is wide enough to include competitions in which success depends to a substantial degree
on skill and Section 4 and 5 of the Act and Rules. 11 and 12 are to be struck down in respect of
such competitions as unreasonable restrictions not protected by Art. 19(6), that would not affect
the validity of the enactment as regards the competitions which are in the nature of gambling, the
Act being severable in its application to such competitions. It is argued by Mr. Palkhiwala that the
language of the enactment being clear and unambiguous, it is not open to us to read into it a
limitation which is not there, by reference to other and extraneous considerations. Now, when a
question arises as to the interpretation to be put on an enactment, what the court has to do is to
ascertain " the intent of them that make it", and that must of course be gathered from the words
actually used in the statute. That, however, does not mean that the decision should rest on a literal
interpretation of the words used in disregard of all other materials. "

To check the constitutionality of the Act whether it is valid or not, the first and the foremost thing
to be kept in the mind is to interpret the aim, scope and object of the whole Act. What was the law
before the Act passed. To decide the true scope of the present Act, we must have regard to all such
factors as can legitimately be taken into account in ascertaining the intention of the legislature,
such as the history of the legislation and the purposes thereof. The purpose of The Prize
Competition Act, 1955 is to provide for the control and regulation of prize competitions. So, when
it comes to the constitutionality of the Act, the thing that is to be considered is after removing the
provisions that are challenged i.e., Sections 4 and 5, this Act stands valid. It was held that after
removing these provisions which are invalid will not affect the valid part of the Act.

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Overview Of the Judgment: In R.M.D.C. v. Union of India case, the issue revolved around
Section 2(d) of the Prize Competition Act, 1955 whether that section provided there covers all
kinds of competitions including the gambling which the petitioners owned. In this case, the
violation of Art. 19(6) was contended by the petitioners because of some of the impugned
provisions in this Act. The Apex Court said that the question of violation of the fundamental
rights would not stand valid as the gambling is not covered under the trade and hence no
violation of the fundamental right. The Apex Court considering all aspects held that the doctrine
of severability would apply here and the provisions which are invalid would be excluded from
the Act and the valid part will be enforceable. Giving this judgment the court laid down the
various rules on the doctrine of severability that were a part of American Courts as how to judge
and draw a line between the valid and invalid parts of the statute.

Rules Laid Down by The Apex Court on The Question of Severability

a) If the valid and invalid provisions are totally mixed up with each other and hence cannot be
separated then the whole Act would be invalid.
b) The determining factor in deciding whether the valid part of the statute can be separated from
the invalid parts or not, is the intention of the legislature only.
c) If the valid and invalid parts of the statute are different and can be separated then the valid part
which remains can form a complete code independent of the rest, will be checked. Then only
it will be upheld.
d) Even when the provisions which are valid, are distinct and separate from those which are
invalid form part of a single scheme which is intended to be operative as a whole, then also the
invalidity of a part will result in the failure of the whole.
e) When the valid and invalid parts of the Statute are independent and do not form any part of the
Scheme but what is left after excluding the invalid part is so thin and curtailed as to be in
substance different from what it was when it emerged out of the legislature then also the entire
part will be rejected.
f) The severability of the valid and invalid provisions of the Statute does not rely on whether the
provisions are enacted in the same or different, it is not the form but the substance of the matter
that is material and that has to be ascertained on the examination of the Act as a whole and of
the settings of the relevant provisions therein.

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g) If after the invalid part is obliterated from the statute, and what is left cannot be enforced
without making the modifications and alterations, then the whole Act would be declared as
void otherwise it would lead to judicial legislation.
h) To determine the legislative intent on the question of severability, it would be authorised to
consider the history of the legislation, title, preamble and the purpose of it.

Suggestions: In the doctrine of severability, it is very necessary that valid and invalid provisions
of an Act should be clearly distinguished by the respective courts. There should be proper
analysis of the provisions involved and it is very important to take into account the above rules
laid down by the court to have a clear understanding of the separability and the court should also
look for the purpose which an Act provides.

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 UNIT 9 – Fundamental Right to Equality

COURSE OUTLINE
I] Article 14
1. Equality before the law and Equal Protection of laws
2. Exceptions to Equality before the Law
3. Tests for valid classification – “Intelligible Differentia”

II] Cases
1. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
2. Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123
3. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555
4. Maneka Gandhi v. Union of India, AIR 1978 SC 597
5. R.D. Shetty v. International Airport Authority of India, AIR 1979 SC 1628
6. Air India v. Nergesh Mirza, AIR 1981 SC 1829
7. Javed v. State of Harayana, AIR 2003 SC 3057
8. National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (LGBT
Case)

I. CONCEPT OF RULE OF LAW VS. ARTICLE 14

a. Rule of law means that no person is above the law.
b. Equality of law is part of the Rule of Law which has been explained by Prof. A V Dicey
In India, the first and second rule has been adopted but the third rule has been omitted because
the Constitution is the supreme law of the land and the rights of the people originate from it
and all the other laws which are passed by the Legislature should not violate the provisions of
the Constitution.
a. The Supremacy of Law
b. Equality before Law
c. Constitution originates from the law of the land, administered by the courts

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II. INTRODUCTION
a. Equality before law: “The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India”
b. Article 14 = Prohibits Unequal Treatment + Demands Equal Treatment

III. “EQUALITY BEFORE LAW”

a. The expression ‘equality before law’ is a negative concept and
b. the State has a duty to abstain from doing any act which Is discriminatory in nature.
c. English Concept
d. Absence of any special privilege
e. no person is above the law of the land/lex loci

IV. “EQUAL PROTECTION OF LAW”

a. The term ‘equal protection of law’ is based on the 14th Amendment of the US
Constitution
b. It directs that equal protection of the law should be provided to all the people of India
c. This is a positive concept because it implies a duty on the State to take actions for
ensuring this right to all the citizens
d. It imposes a duty on the State to take all the necessary steps to ensure that the guarantee
of equal treatment of people is followed.
e. Like people being treated alike is followed under this rule and another important point
under this rule is that unlike should not be treated alike.
f. Thus, even if people who are under different position and circumstances are governed
by the same rule then it will also have a negative effect on the rule of equality.
The principle of like should be treated alike is followed: It means that the right to sue
and be sued for the same cause of action should be the same for the people who are
equals i.e., the people who are in similar circumstances and such right should be
available to them without any discrimination on the basis of religion, sex, caste or any
other such factor.
In the case of STATE OF WEST BENGAL V. ANWAR ALI SARKAR
(1952), the court held that the term ‘equal protection of law’ is a natural consequence

97
 of the term ‘equality before law’ and thus it is very difficult to imagine a situation in
which there has been a violation of equal protection of law is not a violation of equality
before law.
So, while “equality before law” and “equal protection of law” have different meanings, both
the terms are interrelated.
SRI SRINIVAS THEATRE V. GOVERNMENT OF TAMIL NADU [AIR
1992 SC 999]
The Supreme Court explained that both these expressions may appear to be same but they have
different meanings.
The term equality before the law is a dynamic concept with many aspects, one such aspect
being that there should be an absence of any privilege or a person being above the law.

V. DIFFERENCE BETWEEN EQUALITY BEFORE LAW AND EQUAL

PROTECTION OF LAW
Equality before Law Equal Protection of Law
Art. 14 (1) Art. 14(2)
Negative Positive concept
Generic in Nature Specific
We should not afford unequal treatment We should demand that laws should be made
so that unequals become equals
E.g. : laws for the women, Children, Caste,
etc.

VI. EXCEPTION TO EQUALITY BEFORE LAW

a. Under Articles 105 and 194, the Members of the Parliament and the State Legislatures
respectively are not held liable for anything which they say within the House
b. Under Article 359 when there is a proclamation of Emergency, the operation of
Fundamental Rights including Article 14 can be suspended and if any violation of this
right is done during such proclamation, it cannot be challenged in the Courts after the
proclamation ends.

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 c. Under Article 361 the President and the Governors are not liable to any court for any
act which is done by them in exercising their power and duties of the office.
d. Ambassadors
e. Bureaucrats

VII. ARTICLE 14 & REASONABLE CLASSIFICATION

a. every person is not the same and therefore it is not practically possible to have a
universal application of equality
b. the legislature has been allowed to identify and classify different people in groups
because it has been accepted that treating the unequal in the same manner is likely to
cause more problems instead of preventing them
c. Classification cannot be done arbitrarily
d. Should not confer special privileges
e. Class legislation not allowed but reasonable classification allowed

VIII. RULE AGAINST DISCRIMINATION

a. The state shall not discriminate only on the ground of religion, race, caste, sex or place
of birth in matter of application of laws
b. Art 15 and 16 [SPECIFIC] is contained within the meaning of Art 14 [GENERAL]

IX. TEST FOR REASONABLE CLASSIFICATION

a. The classification should not be arbitrary, evasive and artificial in nature. This is the
first test for checking the reasonability of a classification
b. This test is used to check whether the classification is based on some substantial
distinction or not
c. The classification should be based on an intelligible differentia. E.g., Income,
opportunity, etc.

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X. RULE OF EQUALITY AMOUNGST EQUALS
a. Law doesn’t have universal application
b. Law operates within a domain and for the identifying the domain, the act classifies
according to some differentia, like some activity, status of person, type of offence, etc
c. Differentia should be intelligible i.e.; it should make sense as it exists
d. And should have a rational basis

XI. CASES
a. STATE OF BOMBAY V. F.N. BALSARA (1951)
Test of Intelligible Differentia: the classification should be intelligent. Rational basis: purpose
and result should have a reasonable nexus between them. Classification > Rational Nexus <
Result
b. E.P. ROYAPPA V. STATE OF TAMIL NADU AIR 1974 SC 555
New Doctrine. “Equality is a dynamic concept, it cannot be cribbed, cabined or confirmed
with the traditional limits”. Changing time means progressive society = Welfare State.
EQUALITY BEFORE LAW = ROL + PRINCIPLES OF NATURAL JUSTICE

c. MANEKA GANDHI V. UNION OF INDIA AIR 1978 SC 597

State action - Arbitrariness to be struck down. Fairness & equality can be achieved

XII. OLD AND NEW DOCTRINE

Reasonableness + 2 Tests. Golden Triangle established.
Article 14

Article 19 Article 21

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XIII. CASES
a. AIR INDIA V. NARGESH MEERZA (1981)
1. The regulation of the Indian Airlines provided that an Air Hostess had to retire from
their services on attaining the age of 35 or if they married within 4 years of their service
or on their first pregnancy whichever occurred earlier.
2. The court held that terminating the services of an air hostess on the grounds of
pregnancy amounted to discrimination as it was an unreasonable ground for
termination
3. The regulations provided that after 4 years of service the air hostess could marry
therefore the grounds of pregnancy was not reasonable.

b. D.S. NAKARA V. UNION OF INDIA (1928)

1. Rule 34 of the Central Services rules was held to be violating Article 14 and thus
unconstitutional.
2. Under this rule, a classification was made between the pensioners who retired
before a specific date and those who retired after that date.
3. Such classification was held irrational by the Court and it was arbitrary.

c. BACHAN SINGH V. STATE OF PUNJAB (1979)

1. Accused of murdering his family
2. Awarded death penalty – he challenged it in the Supreme Court – whether the facts of
his case were “special reason” for awarding death penalty??- goes against fundamental
rights (Art 14, 19 and 21)
3. New dimensions of Article 14, Justice PN Bhagwati had observed that Rule of law
permeated the entire fabric of the Indian Constitution and it excludes arbitrariness.
4. According to him whenever there is arbitrariness, there is a denial of Rule of Law.
5. So, every action of the State should be free from arbitrariness otherwise the Court will
strike the act as unconstitutional.
6. “Rarest of Rare case” doctrine developed – decided Fundamental Rights are not
ABSOLUTE RIGHTS can be restricted in view of PUBLIC INTEREST & National
Security

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d. CENTRAL INLAND WATER AUTHORITY V. BRAJO NATH (1986)
1. In this service matter – termination was done by the employer without giving reasons
2. Only given 3 months’ notice or pay in lieu of notice but no reason given
3. Audi alteram partem rule was violated and so Art 14 infringed

e. FCI V. KAMDHENU CATTLE FIELD INDUSTRIES (!992)

1. Scope of Art 14
2. Govt entered into the sale of certain grain through bidding
3. Bid rejected without reason
4. Order seen as arbitrary
5. Art 14 applies even in contractual matters (when the public body enters in contract
with Private entity)

f. RANDHIR SINGH V. UOI (1982)

1. Right to Work and earn: Equal pay for equal work
2. is a constitutional goal u/A 14, 16 and 39 (c)
3. Not an express Fundamental right
4. But can be enforced in case of irrational classification

g. JAVED V. STATE OF HARYANA AIR 2003 SC 3057

1. Facts: The Haryana Government passed Haryana Panchayati Raj Act, 1994[1]. The
petitioner challenged the constitutionality of this case as it prohibited anyone with
more than two children from holding certain offices in the Panchayati Raj System in
Haryana. The main objective behind introducing the act was to disqualify people for
election of Panchayats at each level, who have more than 2 children after one year from
the date of commencement of this Act. Some petitioners were disqualified from
contesting the election and to continue the office of Panch or Sarpanch as per Section
175(1)(q) and Section 177(1) of the act.
2. Issues: The several provisions of the Act are arbitrary and hence are violative of Article
14 of the Indian Constitution.
3. Judgement: The court found out that the law was not arbitrary as the groups who have
two children or who have more than two living children are well-defined in the act and
the classification is done on the basis of intelligible differentia as per the objective of

102
 the act (i.e.) to promote the family planning program. The court observed that
contesting in election is not a fundamental right rather it is a statutory right and
therefore restrictions can be imposed on such types of rights by statute

h. ANUJ GARG V. HOTEL ASSOCIATION (2007)

1. The Punjab Excise Act prohibits employment of women in hotel and bars that liquor
2. This was challenged to be violative u/A 14 especially in wake of Jessica Lal murder
case and BMW hit and run case
3. SCI held it to be violative of Art 14,15, 16 – personal freedom is a fundamental tenet
of a democratic set up based on equality
4. Protection should not translate into censorship

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 UNIT 10 – Article 15

COURSE OUTLINE
I] Article 15
1. Prohibition of Discrimination

II] Cases
1. M.R. Balaji v. State of Mysore, AIR 1963 SC 649
2. Pradeep Jain v. Union of India, AIR 1984 SC 1420
3. Paramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC1
4. Ram Singh v. Union of India, (2015) 4 SCC 697

I. INTRODUCTION
Prohibition of discrimination on grounds of
a. religion,
b. race,
c. caste,
d. sex or
e. place of birth
1. The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard to—
i. access to shops, public restaurants, hotels and places of public entertainment; or
ii. the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
The state can however discriminate on some other bases such as making special provisions for
backward classes or scheduled castes and tribes as seen fit by the state. The state is also free to
make any special provisions for women and children which might help and benefit towards
their overall best interests. The article also states that no one will be denied access to any public
service or place such as shops, public entertainment places, public hotels etc.

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 II. SECTIONS
15(1) State (no discrimination)
15(2) State + Citizen (no discrimination)
15(3) Women + Children
15(4) SEBC + SC + ST
15(5) SEBC + SC + ST in PVT EDUCATIONAL INSTITUTIONS

III. ARTICLE 15(3)

Women + Child = Positive Discrimination
YUSUF V. STATE OF BOMBAY (1954): Section 497 being discriminatory
JOSEPH SHINE V. UNION OF INDIA (2018): Section 497 decriminalised

IV. ARTICLE 15(4)

a. Included after CHAMPAKAM DORAIRAJAN CASE – 1St CAA

b. M R BALAJI V. ST OF MYSORE
SEBC + SC (341) + ST (342)
28% BC + 22% MBC + 15% SC + 3% ST = 68% Reservation
Court Held that:
1. Consider Social & Educational Backwardness both
2. Only caste cannot be the factor – poverty, area, profession, business, etc.
3. 50 % Cap
4. Backwardness will mean BC + MBC – sub category cannot be done
Overturned in INDIRA SAWHNEY CASE – Caste an imp. Factor & categorization of
More BC can be done.

V. ARTICLE 15(5)
PA INAMDAR CASE
SEBC + SC + ST in PVT EDUCATIONAL INSTITUTIONS

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unaided private educational institution – no control of government. Hence, 93rd CAA brought
in - where 15(5) was added. Special Provisions can be made for advancement of SEBC, SC &
ST in EDUCATIONAL INSTITUTIONS – aided or unaided

VI. CASE LAWS

a. D.P JOSHI VS. STATE OF MADHYA BHARAT 1955 S.C
1. This case is popularly known as first Capitation fee case.
2. Here a rule was framed for the admission to State medical colleges, required the
payment of capitation fee from non-Madhya Bharat students.
3. The Madhya Bharat students were exempted from the payment of capitation fee.
4. The rule which discriminated students on the ground of residence was upheld by
the Supreme Court, as not violative of article 15(1).
5. The Hon’ble court held that “place of birth” as given in article 15(1) is different from
residence” And the State can discriminate its citizens on the basis of it.

b. RAJESHKUMAR GUPTA VS. STATE OF UTTAR PRADESH

AIR 2005 S.C
The hon’ble court held that the reservation of 50% of posts in favour of female candidates is
not arbitrary.

c. MOOSA V. STATE OF KERALA (1960)

An order acquiring land for construction of a colony for Harijans was held to be valid u/A 15(4)

d. DR. PREETI SRIVASTAVA V. STATE OF MADHYA PRADESH

1. Minimum qualifying marks for admission to Post Graduate Medical Courses
for General category students – none for reserved category
2. The Supreme Court held that, there should be a minimum qualifying mark for
reserved category as well
3. Unconstitutional and violative of Right to Equality if there is not minimum
cut off marks

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 UNIT 11 – Article 16

COURSE OUTLINE
I] Article 16
1. Equality of Opportunity in Matters of Public Employment

II] Cases
1. M.R. Balaji v. State of Mysore, AIR 1963 SC 649
2. T. Devadasan v. Union of India, AIR 1964 SC 179
3. State of Kerala v. N.M. Thomas, AIR 1976 SC 490
4. Indira Sahney v. Union of India, AIR 1993 SC 477
5. Indira Sahney v. Union of India (II), AIR 2000 SC 498
6. M. Nagaraj v. Union of India, (2006) 8 SCC 212

I. INTRODUCTION
Equality of opportunity in matters of public employment. —
(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(2) 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.
(3) Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to an office
under the Government of, or any local or other authority within, a State or Union
territory, any requirement as to residence within that State or Union territory prior to
such employment or appointment.
(4) State can make reservations for the backward section of the society in a State – if
adequate representation is not there

II. EXCEPTIONS TO ARTICLE 16

Provision for exceptions in the constitution. They are:

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 a. Additional qualifications such as residential preference may be laid down.
b. Reservation for scheduled castes and tribes and other backward classes. (16(4))
c. Offices in religious organizations may prefer to employ people with the same religion
(16 (5))
d. The article forbids discrimination on the basis of the above criteria.
However, some criteria like desired merit or mercy can be employed. Equal opportunity doesn’t
mean negligence of merit or ability of a person. It means physical and mental soundness is
necessary for holding any office

III. CASE LAW

a. STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN, AIR 1951

S.C. 236.
1. In this case, the Madras government fixed proportion of students of each
community to be admitted in the state medical colleges on the basis of race,
religion and caste. It was challenged as violative of article 15.
2. The state in defence argued that article 46 of DPSP requires that the state should
promote educational and economic interest of weaker sections.
3. “The Supreme Court held that DPSP have to conform and run subsidiary to
fundamental rights.”
4. Article 16(4) provides for special provisions in favour of candidates of the
backward classes for employment in State services.

b. MR BALAJI V. STATE OF MYSORE

1. The questions that who is backward? What will be the ceiling limit, etc. came up while
interpreting Art. 16(4)
2. Resolved a part in the present case
3. 2 conditions:
i. Backwardness = Socially & Educationally backward
ii. This backward class is not adequately represented in state services.

c. DEVADASAN V. UNION OF INDIA AIR 1964 SC 179

1. The scope of Article 16 (4) was considered by the Supreme Court in this case.

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 2. In this case the constitutional validity of the “carry forward rule” framed by the
Government to regulate appointment of persons of backward classes in Government
services was involved.
3. This rule provided that if sufficient number of candidates belonging to Scheduled
Castes and Scheduled Tribes, were not available for appointment to the reserved quota,
the vacancies which remained unfulfilled, would be carried forward for the second and
third year for appointment of those candidates.
4. 17% seats were reserved for SC & STs
5. In actual effect 64% (by 1961) of the vacancies were reserved for Scheduled Castes
and Scheduled Tribes candidates
6. The Supreme Court struck down “The carry forward rule”
7. the power vested in the Government under Article 16 (4) could not be exercised so as
to deny reasonable opportunity of public employment to members of other classes than
backward classes. Accordingly, the Court held that the reservation should be less than
50% but how much less than 50% would depend upon the prevailing circumstances in
each case.

d. INDIRA SAWHNEY V. UOI (1993)

1. 1979 – Mandal Commission – set to identify in India how many SEBC are prevalent in
India
2. 1980 – Report submitted – 3743 castes which constitute SEBC
3. Recommended – 27% reservation in GOVERNMENT JOBS
4. 1990 – VP Singh government implemented this recommendation and reserved 27% in
Govt services.
5. Challenged in Indira Sawhney Case
6. 9 Judges bench (6:3) – 12 principles given
i. 27% reservation is constitutional
ii. Confined to appointments and not to promotions
iii. Total reservations cannot exceed 50% in any case BUT in extraordinary
situations this cap can be relaxed
7. The legislature found Indira Sawhney case to be inappropriate
8. Brought 77th Constitutional Amendment Act 1995 – Added 16(4)(a) – Allowed for
reservation in Promotion also

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 9. Brought 81st Constitutional Amendment Act 2000 – Added 16(4)(b) – Backlog

vacancy ceiling limit of 50% on reservation for SC & ST was removed

e. M.NAGRAJ V. UNION OF INDIA

A five-judge Constitution Bench of the Supreme Court has upheld the application
of "creamy layer" principle relating to reservations for Scheduled Castes (SCs)
and Scheduled Tribes (STs) in promotions.
The creamy layer is a concept that puts an income ceiling on people availing of
caste-wise reservations in government jobs and education.
Till now, this was only applicable for reservations under the Other Backward
Classes quota. SCs and STs were excluded since it was argued that their
backwardness was based purely on untouchability for which economic
improvement was not a remedy.

IV. EWS QUOTE

To be eligible for the EWS certificate, you will have to satisfy all the conditions mentioned
below:
1. You should be a ‘general’ candidate (not covered under reservation for SC, ST or
OBC).
2. Your family’s gross annual income should be below Rs. 8 lakhs. This includes income
from all sources such as agriculture, salary, business, etc. for the financial year before
you apply for the exam.
3. Your family should not own agricultural land of size 5 acres or more.
4. Your family should not own a residential flat of area 1000 square feet or more.
5. Your family should not own a residential plot (in notified municipalities) of an area 100
square yards or more.
6. Your family should not own a residential plot (other than in notified municipalities) of
area 200 square yards or more.
a. The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act,
2019 by amending Articles 15 and 16.

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b. It inserted Article 15 (6) and Article 16 (6)
c. It is for economic reservation in jobs and admissions in education institutes for
Economically Weaker Sections (EWS).
d. It was enacted to promote the welfare of the poor not covered by the 50% reservation policy
for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and Educationally
Backward Classes (SEBC): The proposed reservation through a constitutional
amendment would give constitutional recognition to the poor from the upper castes.
e. The EWS quota breaches the Indira Sawhney limit of 50% reservation,
f. Recently, the Supreme Court (SC) has questioned the methodology adopted by the
government in fixing Rs. 8 lakhs as the annual income limit to identify the Economically
Weaker Section (EWS) for providing 10% quota in public jobs and educational institutions.

V. RELATIONSHIP BETWEEN ARTICLE 14, 15 AND 16

Difference 1
a. Article 14 of constitution talks about equality before the law and equal protection of
the law.
b. Article 15 talks about treating everyone equally and not to differentiate on the basis of
religion, caste, race, sex and place of birth.
c. And Article 16 speaks about equal opportunity in public employment.
Difference 2
a. The Article 15.4 provides provision for reservation in an educational institution for
the backward class.
b. The Article 16.4 provides provision for reservation of backward class in the jobs
controlled under the state.
RELATION BETWEEN Art 14,15 & 16
N.M THOMAS V STATE OF KERALA the majority of five judges held that, Article
16 (1) permitted reasonable
classification and did not forbid the state from rendering social justice to the backward
classes.

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 UNIT 12 – Article 17 & 18

COURSE OUTLINE
I] Article 17

II] Article 18

III] Cases
1. B.K. Pavitra v/s Union of India - II (2018) (consequential seniority for SC/STs in
Karnataka Public Employment)
2. Safai Karamchari Andolan v/s Union of India, (2014) 11 SCC 224

I. ARTICLE 17
Abolition of Untouchability. — “Untouchability” is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of “Untouchability” shall be an
offence punishable in accordance with law

II. ARTICLE 17 IN RECENT TIMES

a. it is strengthened by the coming in force of Untouchability Act of 1955. The term
untouchability is not defined in either the Constitution or the Act.
b. The Untouchability Act of 1955 was amended and renamed as Protection of Civil
Rights Act 1955 in the year 1976
c. People who practice it in any form are considered violators.
d. Restricting admission to educational institutes or hospitals or schools on the basis of
untouchability is a punishable crime.
e. The Prohibition of Employment as Manual Scavengers and their Rehabilitation
Act 2013 succeeded succeeding The Employment of Manual Scavengers and
Construction of Dry Latrines (Prohibition) Act, 1993
f. Manual scavenging isn’t just a violation of the Constitution but also a violation of
human rights.

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 g. Since the Constitution of India complies with the International Code of Human Rights
it eradicates untouchability (Article 17) and discrimination on the bases of caste (Article
15) besides it, human dignity is an unquestionable and inviolable right as it is a basic
right to life, i.e., a fundamental right, under the Indian Constitution
h. the prevalent traditional practice of manual scavenging based on caste, class, gender,
and financial status has been partially removed. Due to provisions of the act, people
have abolished the practice and initiated to help victims of manual scavenging through
NGOs, and self-initiated campaigns.

III. SAFAI KARAMCHARI ANDOLAN V. UOI (2014)

a. The Indian Supreme Court has ruled that the continuance of manual scavenging in the
country is in blatant violation of Article 17 of the Constitution of India by which,
“untouchability is abolished and its practice in any form is forbidden”. The court was
emphatic about the duty cast on all states and union territories “to fully implement the
law and to take action against the violators”
b. Supreme Court directed the government to, “Identify the families of all persons who
have died in sewerage work (manholes, septic tanks) since 1993 and award
compensation of Rs.10 lakhs for each such death to the family members depending on
them”. Dalit sewerage workers are rarely provided protective gear when being lowered
into the sewers and sometimes die from inhaling the gases.

IV. ARTICLE 18
Abolition of titles. —
(1) No title, not being a military or academic distinction, shall be conferred by the
State.
(2) No citizen of India shall accept any title from any foreign State.
(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.

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 (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.
This article forbids the acceptance of all titles among the public. Only educational and military
titles are allowed like Colonel or Doctor etc in order to differentiate profession and post. For
example, any foreign titles like Knighthood or Lord are strictly prohibited.
In BALAJI RAGHAVAN VS UOI, the Supreme Court upheld the validity of civilian
honours but criticized the government for not exercising restraint in awarding these. It held that
the national awards were not meant to be used as titles and those who have done so should
forfeit the award. The Union of India contended that since the national awards are not titles of
nobility and are not to be used as suffixes or prefixes, they are not prohibited by Article 18.

V. ARE BHARAT RATNA, PADMA VIBHUSHAN, PADMASHREE, ETC.

VIOLATIVE OF ART. 18?
a. It is necessary that there should be a system of awards and decorations to recognize the
excellence in performance of duties by a person.
b. These awards merely denote the State’s recognition of good work by citizens in various
fields of activities.
c. These fit in the category of academic distinctions.
d. They are mere decorations and not the hereditary titles of nobility like Maharaja, Rai
Bahadur, Rao sahib, etc.
e. So, these awards are not violative of the provisions of Art. 18.
f. But they cannot be used as a title and cannot be used as suffix or prefix. Otherwise, the
awards are liable to be forfeited.

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 UNIT 13 – Article 19

COURSE OUTLINE
I] Fundamental Right to Freedoms
1. Fundamental Freedom
2. Reasonable Restrictions

II] Cases
1. Union of India v. Association for Democratic rights, AIR 2002SC 2186(Right to
know)
2. Kesavanada Bharti v. State of Kerala, (1973) 4 SCC 225
3. Waman Rao v. Union of India, AIR 1981 SC 271
4. Minerva Mills Ltd. V. Union of India, AIR 1986 SC 2030
5. I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861

UNIT 14 – Article 19

COURSE OUTLINE
I] Fundamental Right to Freedoms
1. Freedom of Speech and Expression – Article 19(1)(a)
a. Media, Press and Contempt of Court
b. Freedom of Speech and Contempt of Court
c. National Anthem Debate

II] Cases
1. Sakal Papers v. Union of India, AIR 1962 SC 305
2. Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106
3. Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986SC
515
4. Union of India v. Naveen Jindal & Another AIR 2004 SC 1559 (National Flag
case)
5. Shreya Singhal v. Union of India, (2015) 5 SCC 1 (Section 66 – A of IT Act, 2000)
6. Shyam Narayan Chouksey v. Union of India

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 UNIT 15 – Article 19

COURSE OUTLINE
I] Freedom of Assembly – Article 19(1)(b)

II] Freedom of Association – Article 19(1)(c)

III] Cases
1. Romesh Thapper v. State of Madras, AIR 1950 SC 124

UNIT 16 – Article 19

COURSE OUTLINE
I] Freedom of movement - Article 19(1) (d)

II] Freedom to reside and settle - Article 19(1) (e)

III] Freedom of profession/business - Article 19(1) (g)

IV] Right to Property: From Fundamental Right to Constitutional Right – Article 19(1)(f)
to Article 300 A

V] Cases
1. Bombay Hawkers Union v. Bombay Municipal Corporation, AIR 1985 SC 1206
2. Sodan Singh v. New Delhi Municipality, AIR 1989 SC 1988
3. M.H. Quareshi v. State of Bihar, AIR 1958 SC 731
4. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors [2005]
5. State of Maharashtra v. Indian Hotel & Restaurant Association, (2013) 8 SCC
519(Ban on Dancing Bars)

I. ARTICLE 19
(1) All citizens shall have the right—
(a) to freedom of speech and expression;

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 (b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty
and integrity of India,] the security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation or incitement to
an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable restrictions on the exercise of
the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or] public order or morality, reasonable restrictions on the
exercise of the right conferred by the said sub-clause.
(5) Nothing in 1 [sub-clauses (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses
either in the interests of the general public or for the protection of the interests of any
Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred by the said sub-
clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing
law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of
any trade, business, industry or service, whether to the exclusion, complete or partial, of
citizens or otherwise.

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 ARTICLE 19
(1) (2) – (6)
FOSE Sovereignty & Integrity
Assemble Security
Associate Friendly Relation
Movement Public Order
Reside Defamation
Practise Contempt of Court
Incitement to an Offence

II. ISSUES DISCUSSED IN THE CONSTITUENT ASSEMBLY

a. Some members felt that no right can be absolute and there must exist limitations on the
same in certain circumstances.
b. Proponents of the restrictions placed on the freedoms maintained that such restrictions
ensure the unhampered functioning of the Constitution and the State.
c. Other members were concerned that restrictions provided in this Draft Article negate
the enforcement of the freedoms guaranteed.
d. A member argued that some restrictions were wide and citizens' right to enforce such
freedoms would depend on future legislatures.

III. PURPOSE
The Freedoms serve 4 purposes:
a. Self-fulfilment
b. For assistance in discovery of proof
c. For strengthening the capacity of an individual in participation and
d. Decision making

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IV. ARTICLE 19(1)(A) READ WITH ARTICLE 19(2)
a. the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.
b. Freedom of Speech & Expression (BIJOE EMMANEUL V. ST. OF

KERALA)
c. Receive Information > Keep Any Communication > Right to Express (NAVTEJ

SINGH JOHAR V. UNION OF INDIA Decriminalising Section 377

(Homosexuality))

V. ARTICLE 19(1)(B) READ WITH ARTICLE 19(3)

a. To assemble peacefully without arms
b. Sovereignty, Integrity and Public Order
Things violative:
a. Hindrance in Legal Process
b. Use Force
c. Criminal Trespass
d. Possession of Property
e. Criminal Force on Public Officer: Section 129 CrPC (Police asks you to disperse), If
the group does not disperse then – Liable under Section 151 of IPC

VI. ARTICLE 19(1)(C) READ WITH ARTICLE 19(4) & ARTICLE 33

a. Right To Form Association or Union
b. Forming Cooperative Society, Groups, Political parties, etc.
c. Doesn’t include right to strike (not a fundamental right)
d. Bandh & Hartal
e. Reasonable Restrictions
1. Sovereignty, integrity
2. Public order
3. Morality, etc.

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 4. Art 33 – restriction on members of Armed Forces

VII. ARTICLE 19(1)(D) READ WITH ARTICLE 19(5)

a. Freedom to move freely throughout the territory of India
b. Restrictions –
1. Public Order
2. Sovereignty
3. Military Movement
4. VIP Movement
5. Curfew is imposed
6. If movement is against public security – Jarawa

VIII. ARTICLE 19(1)(E) READ WITH 19(5) & ARTICLE 35A

a. Freedom To Reside and Settle Anywhere in The Country
b. Art. 35A – Special rights to J&K (Now removed after abrogation of Art. 370)
c. Barred movement though Tiger Corridor, Jarawa Corridor

IX. ARTICLE 19(1)(G) READ WITH ARTICLE 19(6)

a. Right to practise profession or to carry on any occupation
b. If the State wants it may MONOPOLISE certain trade, business and occupation
c. Limitation can be put / reasonable restrictions – Academic qualification, merit, etc.

X. CASE LAWS ON ARTICLE 19

a. UOI V. ASSOCIATION FOR DEMOCRATIC REFORMS
b. STATE V. CHARITA

c. BIJOE EMMANUEL V. STATE OF KERALA ( JEHOVA’S

WITNESSES)

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 d. SECRETARY, MINISTRY OF I&B V. CRICKET ASSOCIATION

OF BENGAL
e. TATA PRESS LTD. V. MTNL

f. HAMDARD DAWAKHANA V. UOI

g. PUCL V. UOI (TELEPHONE TAPPING CASE)

h. MANEKA GANDHI V. UOI

XI. SUSPENSION OF ARTICLE 19 (ARTICLE 358)

Fundamental rights under Art. 19 can be suspended only during EXTERNAL EMERGENCY
– IT CANNOT BE TOUCHED DURING INTERNAL EMERGENCY

XII. FREEDOM OF PRESS

a. INDIAN EXPRESS V. UOI
b. AJAY GOSWAMI V. UOI

c. BRIJ BHUSHAN V. STATE OF DELHI

d. SAKAL NEWSPAPER V. UOI

e. BENNETH COLEMAN V. UOI

f. R. RAJAGOPAL V. STATE OF TAMIL NADU (THE AUTO

SHANKAR CASE): Supreme Court held that the government has no authority in
law to impose a prior restraint upon the publication of defamatory material against its
officials. At best, officials had the right to claim damages for defamation after
publication of such material. If it could be proved that such publication was based on
false facts. A dreaded criminal from jail wanted to get his autobiography published. In
this, he had mentioned his links with high officials of state including IAS, IPS officers
and politicians. The officials concerned made the convict write a letter to the effect that
it was not his autobiography. Supreme Court held that as far as those facts which appear
in public domain are concerned, no permission is required. Those facts which are not
in public domain should be published as autobiography only after getting permission

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 from the author. The only exception to the rule is that the names of victim of a crime
even though appearing in public domain cannot be published.

XIII. ROMESH THAPAR V. STATE OF MADRAS (1950)

Facts: The petitioner was the printer, publisher, and editor of Cross Roads, a Bombay-based
English-language periodical.
a. The entry and dissemination of the newspaper were prohibited in the erstwhile
State of Madras under Section 9 (1-A) of the Madras Maintenance of Public
Order Act, 1949.
b. The petitioner filed a writ petition before the Supreme Court in reaction to the
prohibition, claiming that the Act's powers were an unreasonable restriction on
freedom of expression under Article 19 of the Indian Constitution.
c. In response, on behalf of the respondent-State, it was determined that the
restriction was necessary for public safety and order and it might be compared
to state security, which is deemed a justified constraint on freedom of expression
under Article 19(2) of the Constitution.
Judgement: The Court held that unless a law restricting freedom of speech and expression is
aimed solely against challenging the security of the State or overthrowing the State, it cannot
be held within the ambit of Article 19(2) of the Constitution of India.
The Court declared Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 to
be unconstitutional and void.

XIV. FILM CENSORSHIP CASE

a. K.A. ABBAS V. UOI
Question: Whether prior censorship of films is included under Article 19 Clause 2?
The Ground Raised: When such censorship is not there, with respect to, other forms of art, then
why should it be there for motion pictures?
Supreme Court held that such separate treatment of motion pictures was justified because
motion pictures stir emotions more deeply than any other form of art. So, pre-censorship was
justified.

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 b. BOBBY INTERNATIONAL V. OM PAL SINGH (BANDIT QUEEN

CASE)
The film ‘Bandit Queen’ which was granted ‘A’ certification for exhibition in India was sought
to be restrained. The movie had some explicit scenes of rape. The grounds raised were that the
scene was suggestive of moral depravity of Gujjar community, that it denigrated women and
is obscene and pornographic. Supreme Court held that
1. The film should be judged in its entirety. Watching the movie does not arose the viewers
but raises sympathy and disgust towards the culprits. A film that illustrates the
consequences of a social evil must necessarily must show
2. It is hard to believe that three women members of the censor committee which gave it
‘A’ certificate would have given such a certificate if it would have insulted women.
Held, it should not be restrained.

XV. FREEDOM OF SPEECH ON SOCIAL MEDIA

a. Shreya Singhal v. UOI - The main issue was whether Section 66A of ITA violated the
right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of
India. As an exception to the right, Article 19(2) permits the government to impose
“reasonable restrictions . . . in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offense.”
The Court invalidated Section 66A of ITA in its entirety as it violated the right to freedom of
expression guaranteed under Article 19(1)(a) of the Constitution of India.

XVI. UNION OF INDIA V. NAVEEN JINDAL (AIR 2004 SC 155)

a. Government officials did not permit him to do this, citing the Flag Code of India. Mr.
Jindal filed a petition before the High Court arguing that no law could forbid Indian
citizens from flying the national flag and, furthermore, the Flag Code of India was only
a set of executive instructions from the Government of India and therefore not law.
b. Court stated that the symbols like National Anthem, National Flag and National Song
which represent the nation deserve a significant amount of respect as they serve as the
vital to the Nation and promote a sense of unity and integrity among the public.

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 c. The court while referring to the debate of Constituent Assembly in an excerpt of the
speech of the President of the Constituent Assembly during a debate further held that
the National Anthem, National Song, and National Flag cannot be disrespected in every
possible way and every citizen is obliged to show respect towards them.
d. the Court found that flying the national flag WAS A SYMBOL OF EXPRESSION
that came within the right to freedom of expression under Article 19(1)(a) of the
Constitution.

XVII. SHYAM NARAYAN CHOUSKEY V. UNION OF INDIA (2018) 2

SCC 574
a. In 2003, the petitioner, Shyam Narayan Chouksey, moved a petition in the Madhya
Pradesh High Court accusing producer-director Karan Johar of insulting the national
anthem in his movie Kabhi Khushi Kabhi Gham. Chouksey complained that a scene
in the movie depicted the national anthem in poor light. Further, he stated that people
in the hall did not stand when the anthem was played.
b. The petition, which referred to the Prevention of Insults to National Honour Act of
1971, claimed that the “national anthem is sung in various circumstances which are not
permissible and can never be countenanced in law.”
c. It also referred to Article 51 (A) of the Indian Constitution to contend that it was the
duty of every person to show respect when the anthem was played.
d. However, the petition had not asked the court to direct the anthem to be played in movie
halls.
e. Instead, it had focused on the commercial exploitation of the anthem.
f. However, the court ordered cinema halls to mandatorily play the national anthem before
every screening even as all those present have to “stand up to show respect.”
g. The apex court of India passed a judgment compelling the display of the national
anthem before every screened movie and making it mandatory for all patrons to
rise for the duration of the feature presentation (containing the national anthem),
h. It has been hotly debated within the legal fraternity as well as amongst the common
man of the country and has raised questions regarding the degree of nationalism the
apex court wishes to inculcate within India.

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 i. The supreme court in its concluding statement said that “the Citizens or persons are
bound to show respect as required under executive orders relating to the National
Anthem of India and the prevailing law, whenever it is played or sung on specified
occasions”. However, the mandate of playing the National Anthem in the cinema halls
is removed and is purely optional or directory.
The court further held that symbols representing the nation deserve a significant amount of
respect as they serve as the élan vital of the Nation and promote a sense of unity and integrity
among the public.
a. There shall be no commercial exploitation to give financial advantage or any kind of
benefit. To elaborate, the national anthem should not be utilized by which the persons
involved in it either directly or indirectly shall have any commercial benefit or any other
benefit.
b. There shall not be a dramatization of the national anthem, and it should not be
included as a part of any variety show. It is because when the national anthem is sung
or played it is imperative on the part of everyone present to show due respect and
honour. To think of a dramatized exhibition of the national anthem is absolutely
inconceivable.
c. National anthem or a part of it shall not be printed on any object and never be
displayed in such a manner at such places which may be disgraceful to its status
and tantamount to disrespect. It is because when the national anthem is sung, the
concept of the protocol associated with it has its inherent roots in national identity,
national integrity and constitutional patriotism.
d. All the cinema halls in India shall play the national anthem before the feature film
starts and all present are obliged to stand up to show respect to the national anthem.
(Later made discretionary)
e. Prior to the national anthem is played or sung in the cinema hall on the screen. The
entry and exit doors shall remain closed so that no one can create any kind of
disturbance which will amount to disrespect to the national anthem. After the national
anthem is played or sung, the door can be opened.
f. Whoever intentionally prevents the singing of the Indian National Anthem or causes
disturbances to any assembly engaged in such singing shall be punished with
imprisonment for a term, which may extend to three years, or with fine, or with
both.

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 g. When the national anthem shall be played in the cinema halls, it shall be with the
National Flag on the screen.
h. The abridged version of the national anthem made by one for whatever reason
shall not be played or displayed

XVIII. OTHER CASES

a. BOMBAY HAWKERS UNION V. BMC (1985)
Bombay Hawkers Union wanted Municipal authorities to create a hawkers' zone and granting
adequate number of licenses to hawkers to carry on trade and businesses - BMC unlawfully
and arbitrarily refused to grant them license - making them liable to be removed along with
their goods from the place of their business. Supreme Court held that the rights conferred under
article 19 (1) (g) is subject to restrictions under article 19 (6) - no one has the right to do his
trade or business so as to cause nuisance, annoyance or inconvenience to other members of the
public.

b. SODAN SINGH V. NEW DELHI MUNCIPALITY (1989)

Constitution bench held that the right to carry on trade or business mentioned under article 19
(1) (g) of the constitution on street pavements, if properly regulated could not be denied on the
ground that the street pavements were meant exclusively for pedestrians and could not be put
to any other use - that the right of pavement hawker are subject to reasonable restrictions under
article 19 (6) and state as a trustee was entitled to impose all necessary limitations on the extent
of use by pavement hawkers - that there cannot be a fundamental right of citizen to occupy a
particular place on the pavement, where we could squat and engage in trade or business.

c. STATE OF GUJARAT V. MIRZAPUR MOTI KURESHI KASSAB

JAMAT & ORS. (2005) (Ban on Cow Slaughter)

Bombay Animal Preservation (Gujarat) Amendment Act, 1994, was passed to introduce
amendment to section 5 of Bombay Animal Preservation Act, 1954. Section 5 permitted the
slaughter of bulls and bullocks of above sixteen years of age but amendment deleted this age
criteria which absolutely slaughter of bulls and bullocks irrespective of its age or utility - this
complete ban on cow slaughter was challenge. A seven judges bench of the Supreme Court
held that such a ban is not a prohibition but only a restriction because slaughter of certain other

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animals is still legal and hence, there is no restriction of fundamental right to occupation, trade
or business under article 19 (1) (g). The court had observed that the protection cow progeny
was needed in the interest of nation’s economy.

d. STATE OF MAHARASHTRA V. INDIAN HOTEL & RESTAURANT

ASSOCIATION (2013) (Ban on Dance Bar)

Bombay Police Act, 1951 was amended in 2005 with object of securing public order, morality
dignity of women and reducing exploitation of women including trafficking of minor girls.
Section 33(a) was inserted that prohibited performance of all types of dances in earring houses,
permit rooms or beer bars. Section 33(b) was inserted allowing three-star hotels and
government associated places of entrainment to hold dance performances. Bombay HC and
subsequently SC held that Section 33(a) is violative of Article 14 on the ground that such law
is based on an unacceptable presumption that so called elite have higher standards decency
morality or strength of character. 33(a) is violative of 19(1)(g) on the ground that it interferes
with right of women to work and contrary to ban’s purpose is forcing women into prostitution.
affirmative actions are required. Ban was lifted.

e. JUSTICE FOR RIGHTS FOUNDATION V. UNION OF INDIA (2018-

SUB JUDICE)
Even though there is no censorship, if any content on the OTT Platforms contravenes Article
19(2) of Constitution, the Government under Section 69A of Information Technology Act
and the IT (Blocking Rules), 2009 i.e., has the power to remove such content which is
objectionable in nature

f. STATE OF TELANGANA V. B. SUBBA RAYADU27 (14th SEPT 2022)

1. Constitution of India, 1950 ; Articles 2, 3 13, 19(1)(e) - Andhra Pradesh State
Reorganisation Act, 2014 -
2. There is only one domicile i.e., domicile of the country and there is no separate
domicile for a State –

27
https://www.livelaw.in/amp/top-stories/supreme-court-state-reorganization-seperate-domicile-fundamental-
right-state-of-telangana-vs-b-subba-rayadu-2022-livelaw-sc-767-209314?type=xhr&startIndex=1

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 3. The Reorganization Act or any guidelines framed thereunder cannot take away from
citizens, the right to reside and settle in any part of the country –
4. When a State is divided and the employees and officers of the State Government have
to be allotted to the two states, such allocation has to be done on the basis of the Rules
and Regulations and by guidelines –
5. However, they have to be construed harmoniously with the fundamental rights
guaranteed under the Constitution of India. (Para 59-68)

XIX. ARTICLE 19(1)(F) & ARTICLE 31 – TO ARTICLE 300A – RIGHT TO

PROPERTY
a. Article 31 and 19 (1) (f) ensure that a person’s right against his property is preserved.
b. By Constitution 1st amendment Act 1951 Art. 31A and 31B were added. Art.31A
provides that no law providing for the acquisition of any estate or any right or
modification of any right will not be deemed to be void on the basis that it is inconsistent
with Art. 14 and 19.
c. Art.31B provides for validation of certain acts and regulations, it says that none of the
acts and regulations mentioned in the IX Schedule of the constitution would be deemed
to be void on the ground that it is inconsistent with the rights conferred in Part III of the
constitution. Later on, by the 4th amendment 1955, the scope of the estate was
increased, it includes any jagir, imam or muafi, or any other similar grants.
d. Right to Property was removed from the list of Fundamental Rights.
e. Since this Right created a lot of problems in the way of attaining the goal of
socialism and equitable distribution of wealth, it was removed from the list of
Fundamental Rights in 1978 by the 44th constitutional amendment – made into a
constitutional rights u/A 300A
f. WHY REMOVED? - before India got its independence there were four major systems
prevailing the Ryotwari system, Mahalwari system, Zamindari system, and Jagidari
system. Due to these large parts of land was in possession of zamindars, tenants, and
like people, which causes an unequal distribution of land and increases the gap between
rich and poor.
g. Despite such efforts by the government the zamindars and other land owners whose
ceiling limit exceeded approached Supreme Court using their fundamental right to

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property with the intention to hold acts unconstitutional. So, in order to stop this from
happening and with a view to doing economic justice, Art.31, and Art. 19(1)(f) ceased
to be a fundamental right and was modified as a constitutional right in new chapter IV
Part XII of the Constitution as Art. 300A, which continues to exist and follow till today.

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 UNIT 17 – Article 20

COURSE OUTLINE
I] Fundamental Right to Personal Liberty
1. Ex Post Facto Laws

II] Cases
1. Makbool v State of Bombay, AIR 1953 C 325
2. Dastagir v. State of Madras, AIR 1960 SC 756
3. Nandani Satpathy v. P.L.Dani, AIR 1978 SC 1025

UNIT 18 – Article 20

COURSE OUTLINE
I] Fundamental Right to Personal Liberty
1. Double Jeopardy

II] Basic Reading

1. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
2. State of Bombay v. Kathi Kalu, AIR 1961 SC 1808

UNIT 19 – Article 20

COURSE OUTLINE
I] Fundamental Right to Personal Liberty
1. Self-Incrimination

II] Reference Reading

1. Selvi v. State of Karnataka, (2010) 7 SCC 263

I. ARTICLE 20 (1)
a. Protection against ex-post facto law

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 b. Ex-post facto law is a law which imposes penalties retrospectively
c. Article 20(1) has two parts: Part 1 and Part 2

II. PART I OF ARTICLE 20 (1)

a. A person is to be convicted for violating a law which is in force when the act charged
is committed
b. A law enacted later, making an act done earlier (if it was not an offence earlier) will not
make the person liable for conviction
c. SONI BABUBHAI V. ST. OF GUJRAT (1991): if an act is not an offence
on the date of its commission, a law enacted in future cannot make it so
d. SAKSHI V. UNION OF INDIA (2005): the Court refused to give an enlarged
meaning to the word “rape” in S.375 IPC on the ground that such interpretation may
violate Art. 20 (1)
e. Example: Dowry Death u/S 304B of IPC (inserted on 19.11.1986)
f. Example: Juvenile in Nirbhaya Case, Criminal Law Amendment Act 2013

III. PART II OF ARTICLE 20 (1)

a. Part II immunizes a person from a penalty greater than what he might have incurred at
the time of his committing the offence
b. K SATWANT SINGH V. STATE OF PUNJAB (1960): Full Bench
Judgment
S.420 of IPC – no minimum sentence or fine has been prescribed – unlimited fine can
be imposed. Singh committed an offence – in 1943 an ordinance levied a minimum fine which
can be laid by the Court, which a court must compulsorily inflict on person convicted u/S 420
of IPC – The Court held that Art. 20(1) not infringed by the trial of Singh under the ordinance
because the minimum penalty prescribed by it could not be said to greater than what could
have been inflicted upon Singh by the Court.
c. SARLA MUDGAL (1995) & LILY THOMAS CASE (2000):
Interpretation of S. 494 of IPC –
Second marriage of a Hindu husband after conversion to Islam without dissolving the first
marriage would be invalid. The Court in Lily Thomas held that, the law declared in Sarla

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Mudgal would have prospective effect because of Art 20 (1). The Court further held that it had
not laid down any new law in Sarla Mudgal, but only interpreted the law.

IV. ARTICLE 20 (2)

a. “No person shall be prosecuted and punished for the same offence more than once”
b. Principle of Double Jeopardy
c. Nemo debet bix vexari: a man should not be put twice in peril for the same offence
d. Fifth Amendment to US Constitution – the person is protected from the second
punishment as well as the perils in which the person is placed in the second trial for the
same offence.

V. SCOPE OF ARTICLE 20 (2)

a. Ambit of this Article narrower than English or American
b. The Indian principle stresses on “autrefois convict” (previously convicted) and not
“autrefois acquit” (previously acquitted)
c. In Britain and USA, both these rules operate
d. Art 20(2) can be invoked only when there has been prosecution and punishment in the
first instance
THOMAS DAS V. ST. OF PUNJAB
Components for seeking protection under this Article
1. Person should be accused of an offence
2. The prosecution must be going on already
3. This prosecution should have resulted in some punishment
e. STATE V. NAVJOT SANDHU AKA AFSAN GURU (2005): – Offences
under S. 302 of IPC and S. 3(2) and 3(3) of POTA are all distinct offences and a person
can be charged, tried, convicted and punished for each of them SEVERALLY
f. STATE OF BOMBAY V. SL APTE (1961): a person was convicted u/S 409,
IPC for criminal breach of trust. His later prosecution on the same facts under S. 105
of Insurance Act would not be barred u/A 20(2) because the ingredients of the two
offences were absolutely different – Court emphasized that to attract Art. 20(2) is that

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 the offences should be the same/identical where the ingredients of the offence remain
identical.

VI. MAQBOOL HUSAIN V. STATE OF BOMBAY (1953)

a. Facts: the petitioner bought some gold into India. He did not declare that he had
bought gold with him to the customs authority at the airport.
1. The custom authority checked him and they found that he had some amount of gold
with him and they confiscated the gold under Sea Customs Act. He was later on
charged for having committed an offense under the Foreign Exchange Regulation
Act.
2. The petitioner contended that the second prosecution violated Article 20(2) as it
was for the same offense that is for importing gold into India in contravention of
government notification for which he had already been prosecuted and punished as
his gold had been confiscated by the Customs Authority.
b. Judgement: Court held that the Sea Custom Authority is now no longer a courtroom
docket or judicial tribunal and the order of confiscation under the Sea Customs Act
did not constitute a judgment of judicial character necessary to take the plea of the
double jeopardy.
c. Hence the prosecution under The Foreign Exchange Regulation Act is not barred.
d. So, the contention of the petitioner that he had been punished for the same offense twice
will not come under double jeopardy under Article 22(2) of the Indian Constitution

VII. ARTICLE 20 (3) – PRIVILEGE AGAINST SELF INCRIMINATION

a. “No person accused of any offence shall be compelled to be a witness against himself”
b. USA – Fifth Amendment – “No person…… shall be compelled in any criminal case to
be a witness against himself”
c. Wide Connotation- through judicial interpretation – privilege against self-incrimination
extended to witnesses, parties in civil and criminal cases
d. Similar in Britain
e. Based on Common law principles of criminal jurisprudence
f. Protection of self-incrimination based on following principles:

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 1. That the accused is presumed to be innocent
2. That it is for the prosecution to establish the guilt
3. That the accused need not make any statement against his will
g. This right basically emanated from the apprehension that if compulsory examination of
an accused was permitted then force and torture would be inflicted upon them to entrap
them into fatal contradictions.
h. This Article is aimed at preserving human privacy, civilised standards in enforcing
criminal justice

VIII. COMPONENTS OF ARTICLE 20 (3) IN INDIA

1. It is a right available to a person ‘accused of an offence’
2. It is protection against ‘compulsion’ to be a witness
3. It is a protection against such compulsion resulting in giving evidence against himself

IX. MOHD. DASTAGIR V. STATE OF MADRAS (1960)

a. The appellant went to the residence of the Deputy Superintendent of Police and handed
him an envelope. On opening the envelope, the DSP found cash in it, which meant that
the appellant had come to offer bribe to the officer.
b. The DSP refused it and asked the appellant to place the envelope and the notes on the
table, and he did as told, after which the cash was seized by the Police.
c. In this case the Supreme Court held that, the accused wasn’t compelled to produce
the currency notes as no duress was applied on him.
d. Moreover, the appellant wasn’t even an accused at the time the currency notes were
seized from him– he was not compelled to be a witness against himself, when he was
merely asked to produce the currency
e. Hence in this case the scope of Article 20(3) was not applicable.

X. NANDINI SATPATHY V. P.L. DANI (1978)

a. Self-incrimination has been extensively discussed in this case

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 b. In this case, the appellant, a former Chief Minister of Orissa was directed to appear at
Vigilance Police Station, for being examined in connection to a case registered against
her under the Prevention of Corruption Act, 1947 and under S. 161/165 and 120-B and
109 of The Indian Penal Code, 1860.
c. Based on this an investigation was started against her and she was interrogated with
long list of questions given to her in writing.
d. She denied to answer and claimed protection under Article 20(3).
e. The Supreme Court ruled that the objective of Article 20(3) is to protect the accused
from unnecessary police harassment and hence it extends to the stage of police
investigation apart from the trial procedure.

XI. CASE LAWS ON ARTICLE 20 (3)

a. MP SHARMA V. SATISH CHANDRA (AIR 1954 SC 300): SCI
broadened the scope of Art .20(3) and stated that it is not limited to oral evidence of
a person standing trial for an offence but also includes producing documents, making
intelligible gestures (in case of dumb witnesses) , etc.
b. STATE OF BOMBAY V. KATHI KALA OGHAD (AIR 1961 SC

1808): the question arose whether Art 20(3) is violated when the accused is directed
to give specimen hand writing, signature or impression of palms and fingers?
The Court ruled that, Art 20(3) not violated in any of these situations and stated that “self-
incrimination must mean conveying information based upon the personal knowledge of the
person giving the information” and it covers only personal testimony, which must depend
upon his own volition”
c. S. 27 of Indian Evidence Act is outside the prohibition of Art. 20(3), unless compulsion
has been used in obtaining the information.
d. SMT SELVI & ORS. V. STATE OF KARNATAKA ((2010) 7 SCC

263): 3 JB, Supreme Court of India – held that use of narco-analysis, brain mapping
and polygraphic tests on accused, suspects and witnesses without consent, was
unconstitutional and violative of Right to privacy, as Art. 20(3) protects an
individual’s choice between speaking and remaining silent .
e. The Bench made it clear that even when the subject had given consent to undergo the
said tests, the test results by themselves could not be admitted as evidence because

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 “ the subject does not exercise control over the responses during the administration of
these tests.
f. However, any information or material subsequently discovered with the help of
voluntary administered results can be admitted in accordance with S. 27 of
Evidence Act

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 UNIT 20 – Article 21

COURSE OUTLINE
I] Article 21
1. Meaning
2. Evolutions and Limitations
3. 21A

II] Cases
1. Maneka Gandhi v. Union of India, AIR 1978 SC 597
2. Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349 (Arrest)
3. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360
4. Khatri v. State of Bihar, AIR 1981 SC 928
5. M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548

I. INTRODUCTION
a. No person shall be deprived of his life or personal liberty except according to
procedure established by law.
b. In the above definition, “person” refers to citizens as well as aliens; “shall” =
mandatory; “life or personal liberty” = living with choice & living with dignity;
standard of living of an individual, moreover, the human rights given by the UN were
slowly included in the definition of “life”
c. This fundamental right is available to every person, citizens and foreigners alike.
d. Article 21 provides two rights:
1. Right to life
2. Right to personal liberty
e. The fundamental right provided by Article 21 is one of the most important rights that
the Constitution guarantees.
f. The Supreme Court of India has described this right as the ‘heart of fundamental rights.
g. This implies that this right has been provided against the State only. State here includes
not just the government, but also, government departments, local bodies, the
Legislatures, etc.

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 h. The remedy for the victim, in this case, would be under Article 226 or under general
law.
i. The right to life is not just about the right to survive. It also entails being able to live a
complete life of dignity and meaning.
j. The chief goal of Article 21 is that when the right to life or liberty of a person is taken
away by the State, it should only be according to the prescribed procedure of law.

II. PRINCIPLES OF NATURAL JUSTICE

These principles are only for legislative and the executive. The judiciary falls out of the purview
of these principles. These are the sources that form the basis of Article 21.
a. Nemo Judex in causa sus: No one can be a judge in their own case; an individual cannot
be a judge in a decision that he has a stake in; there should not be any prejudice
b. Audi Alteram Partem: Hear the other side; every person should be given a chance to
tell their side of the story
c. Reasoned Decision: Every decision that is taken should have a proper reasoning and
rationale to it.

III. PROTECTION OF LIFE AND LIBERTY

a. Procedure established by law: Implementation of law is scrutinized and judiciary keeps
a check on the procedural aspect of law [UK] [Procedural Law; Only Executive Action]
b. Due process of law: the Judiciary scrutinizes the executive as well as legislative actions
and overviews the substantial and procedural laws [US] [Legislative & Executive;
Substantive
a. Art 21 lays down that no person shall be deprived of his life or liberty except according
to the procedure established by law
b. AK GOPALAN V. STATE OF MADRAS [AIR1950 SC 27]: an attempt
was made to win for detenu better procedural safeguards than that were available to
him under the relevant detention laws and Art. 22, but all the attempts failed. [personal
liberty cannot infringe: no physical restraint or coercion]. Arts. 19, 21, 22 are
mutually exclusive an independent of each other - Art. 19 was not to be applied to a
law affecting personal liberty to which Art 21 would apply. A law affecting life or

138
 personal liberty could not be declared unconstitutional merely because it lacked natural
justice or due process, the legislature was free to lay down any procedure for this
purpose. This case gave immense powers to the legislature to make laws to provide for
arrest of a person without much safeguards
c. SCI ruled by majority that the word “law” under Art. 21 could not be read as to mean
the rules of Natural Justice
d. KHARAK SINGH V. STATE OF UP

e. BENNETT COLEMAN CASE

f. P.L. LAKHANPAL V. UNION OF INDIA (1966): the Court departed from

the strict Gopalan view – preventive detention under Defence of India Rules – if law
did not lay down a satisfactory procedure, then the Court could bring in principles of
natural justice in its interpretive process
g. MANEKA GANDHI V. UNION OF INDIA

1. SATWANT SINGH V. ASSISTANT PASSPORT OFFICER,

GOI
2. Passport Act 1967
3. Impounding of passport without reason
4. SCI Held that PERSONAL LIBERTY is a very wide concept – not necessary
that only can be infringed based on physical restraint or coercion – ANY
ACTION THAT CONSTRAINTS a person’s person liberty is unconstitutional
5. TEST OF REASONABLENESS – JUST, FAIR & RESONABLE. This
incorporated the “Due process of law” in the constitution.
6. Right to travel abroad
7. Golden Triangle rule: 14, 19, 21 and 32 in the middle. If you infringe one, then
you infringe all, then you seek any remedies through Article 32 [Writs]

IV. COMPONENTS OF ARTICLE 21

a. Environmental Jurisprudence
b. Rights of those in Jail / Accused
c. Constitutional
d. Torts

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 e. Right to Privacy
f. Minor Rights

V. FRACIS CORALIE MULIN V. UT OF DELHI

Facts: The petitioner, a British national, was arrested and detained in the Central Jail, for
attempting to smuggle hashish out of the country Tihar under an Order dated 23rd November
1979 issued under section 3 of the COFEPOSA Act. Whilst under detention, the petitioner
experienced considerable difficulty in having interview with her lawyer and the members of
her family. Her daughter aged about five years and her sister, who was looking after the
daughter, were permitted to have interview with her only once in a month and she was not
allowed to meet her daughter more often, though a child of very tender age.
Issues: Whether the right to life under Article 21 is limited only to protection of limb or faculty
or does it go further and embrace something more?
Whether or not a person preventively detained in a prison has any rights which he can enforce
in a Court of law?
Court answered WHAT IS LIFE?????
The court declared that any procedure for depriving a person of his or her life or liberty must
be rational, fair, and just, rather than arbitrary, whimsical, or imaginative.
a. Not merely breathing
b. Living with choice and dignity
c. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It
means something much more than just physical survival.

VI. ENVIRONMENTAL JURISPRUDENCE

a. RURAL LITIGATION AND ENTITLEMENT KENDRA VS. STATE

OF UTTAR PRADESH, 1985, the importance of air and water as the most
indispensable gift of nature for the preservation of life was discussed. The judges did
not expressly discuss Article 48A or Art 21. Still, this case is considered as the start of
liberal interpretation of Article 21.
b. In SUBHASH KUMAR V. STATE OF BIHAR, 1991 held that Article 21
includes the right to a wholesome environment.

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 c. UNION CARBIDE CORPORATION VS UNION OF INDIA ETC.: by
the Union of India claiming damages on behalf of the affected people, under the Bhopal
Gas Leak Disaster (Processing of Claim) Act, 198528 from Union Carbide Indian
Limited for the lives lost and the damage to the environment. Both the Union of India
and UCIL filed separate appeals against the judgement of the Madhya Pradesh High
Court. Madhya Pradesh High Court reduced the amount of damages from 350 Million
to 250 Million as interim compensation. There was an out of the court
settlement according to which UCIL had to pay $470 million for damages caused.
However, the court laid down certain guidelines.
1. Families of the dead were to be granted Rs.1,00,000- 3,00,000.
2. Fully or practically disabled were to be granted Rs. 50,000- 5,00,000.
d. OLEUM GAS LEAK (M.C. MEHTA VS UNION OF INDIA, 1986):
Polluter pays principle
e. VELLORE CITIZENS’ WELFARE FORUM VS. UNION OF INDIA,

1996 is the leading source of law for the principle of sustainable development,
precautionary principle and polluter pays in India. This case formalised the application
of these principles in India.
f. M.C. MEHTA VS UNION OF INDIA, 2002, the court held that Article
39(e), 47 and 48A collectively cast a duty on State to secure public health and
environment protection.

VII. RIGHTS OF THOSE IN JAIL / ACCUSED

a. HUSSAINARA KHATOON V. HOME SECRETARY (BIHAR): it
was for the release of 17 under trial prisoners. It depicted a sorrowful picture of the
administration of justice within the state of Bihar. an outsized number of persons which
even included mainly the categories like women, children, and other deprived
categories of poor section and that they all were locked behind the bars and were
seeking for the trial as well as their release.
Speedy Trial has to be read with Art 21 i.e., to be speedy the trial cannot be unjust and arbitrary

28
https://legislative.gov.in/sites/default/files/A1985-21.pdf

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 b. HUSSAINARA KHATOON II: financial constraint and priorities in
expenditure would not enable the govt to avoid its duty to ensure speedy trial to the
accused + legal aid
c. SUNIL BATRA (I) V. DELHI ADMINISTRATION: Right against
Solitary Confinement
d. SUNIL BATRA (II) V. DELHI ADM.: Right of undertrials not to be kept
with convicts
e. PREM SHANKAR V. DELHI ADM: Right against handcuffing

f. TRIVENI BEN V. ST. OF GUJRAT: Right of condemned prisoner to be

executed without delay
g. KHATRI AND ORS. VS. STATE OF BIHAR (THE BHAGALPUR

BLINDING CASE): the Bihar police blinded about 33 under-trial prisoners by

pouring acid into their eyes. The incident was recognized as a nerve-wracking blow on
the heart and soul of the Indian constitution (Article 21).
Justice P.N Bhagwati highlighted that the state governments cannot avoid their
constitutional obligation to provide free legal aid to the poor accused by pleading financial
or administrative inability. It is implicit in the guarantee of Article 21 and the state is under
a constitutional mandate to provide an advocate to the indigent accused at all stages including
trial and also when the accused is first presented before the magistrate. A trial held without
offering legal aid to an indigent accused at state cost will be vitiated and conviction will
be set aside. Providing free legal service to the poor and the needy is a necessary element
to any reasonable, fair, and just procedure.

VIII. CONSTITUTIONAL TORTS : COMPENATORY JUSTICE

a. RUDUL SHAH V. STATE OF BIHAR: In this case, the petitioner had filed a
case against the state for his illegal imprisonment for 14 years and asked for
compensation and rehabilitation cost. The question presented before the Apex court
was whether the court can award monetary damages under its jurisdiction as given in
Article 32 or not.

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 1. The court gave the answer in affirmative by stating that monetary damages under
article 32 may be granted and thus gave a judgement that proved to be a giant
leap in the cases involving both constitutional tort and compensation.
b. NILABATI BEHERA V. STATE OF ORISSA was a case which came
before SC through PIL and was related to the custodial death of a 22-year-old boy
whose body was discovered lying on the railway track on the day after he was sent for
police custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the
victim.
c. CHAIRMAN, RAILWAY BOARD V. CHANDRIMA DAS: Scope
widened to non-Citizens. Compensation to rape victim (Bangladeshi citizen)
d. BHAGALPUR BLINDING CASE: Compensation in monetary terms would
serve as a palliative to the unjust act. If compensation was not to be granted,
Article 21 would be reduced to a nullity, “a mere rope of sand”. It was pointed out
that Article 21 would be denuded of its significant content if the power of the Court
was limited to the passing of orders of release from illegal detention.

IX. RIGHT TO PRIVACY V. ARTICLE 21

a. KHARAK SINGH V. ST OF UP 1963: Right to life doesn’t mean mere animal
existence but any kind of unauthorized disturbance would mean violation of Rt of
Privacy
b. TELEPHONE TAPPING CASE: Unless public emergency/public safety is not
involved – Rt to Privacy should not be infringed
c. K.S. PUTTASWAMY V. UNION OF INDIA, (2017) 10 SCC 1: 9 JB
1. constitutionality of Aadhaar challenged because it is violating the right to privacy
2. whether or not the right to privacy was guaranteed as an independent
fundamental right under the constitution of India
3. The right to privacy was reinforced by the concurring opinions of the judges
in this case which recognized that this right includes autonomy over personal
decisions (e.g., consumption of beef), bodily integrity (e.g., reproductive rights)
as well as the protection of personal information (e.g., privacy of health records).

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X. JUDGE’S VIEWS
a. J. Chandrachud (C.J. Kehar, J. Agrawal and J. Nazeer): Privacy was not surrendered
entirely when an individual is in the public sphere. Further, it found that the right
to privacy included the negative right against State interference, as in the case of
criminalization of homosexuality, as well as the positive right to be protected by the
State. On this basis, the Judges held that there was a need to introduce a data protection
regime in India
b. J. Chelameswa: the right to privacy implied a right to refuse medical treatment, a
right against forced feeding, the right to consume beef and the right to display
symbols of religion in one’s personal appearance etc
c. J. Bobde: consent was essential for distribution of inherently personal data such as
health records.
d. J. Nariman: The Judge classified the facets of privacy into non-interference with
the individual body, protection of personal information and autonomy over
personal choices.

XI. THE THIRD GENDER & ARTICLE 21

a. The term “person” is not gender specific
b. 2019 – finally recognised the third gender and their existence – recognised them under
SEBCs, gave them voting powers, but ultimately the issue of their rehabilitation and
laws to govern them was left to the legislature
c. NALSA V. UOI
1. SCI interpreted “Dignity” under Art. 21 to include Right to Self-expression and
self-determination
2. Recognised persons falling outside the male/female gender binary to be “Third
Gender”
3. Landmark as first-time discussed gender identity at length
4. SCI noted that Art. 14 and 19 are framed in gender neutral terms – hence it will
extend to transgender persons also
5. Art 15 & 16 prohibits discrimination on the basis of “sex”
d. Transfer Persons (Protection of Rights) Act 2019
1. Treats trans people inferior to cis gender

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 2. District Magistrate or District Screening committee will give a person certificate – for
getting their gender identity certified (no provision for appeal in case the certificate not
given)
3. No reservation for third gender in education or employment
4. Sexual assault against them will carry punishment for 2 years maximum whereas rape
against woman is 10 years
5. Punishment for begging: but no discussion on rehabilitation

XII. NEWER INTERPRETATIONS

a. Discussion about LGBT community – homosexual couples
b. The issue of laws relating to marriage, inheritance, adoption and succession
c. Section 377 hits the fundamental and human rights of these individuals
1. NAZ FOUNDATION V. GOVT. OF NCT OF DELHI (2009)
2. SURESH KUMAR KOUSAL CASE (2013)

3. NAVTEJ SINGH JOHAR V. UNION OF INDIA (2018)

d. Right to choose your partner is a fundamental right - SHAKTI VAHINI V.

UNION OF INDIA, (2018) 7 SCC 192

XIII. DECREMINALISATION OF SUICIDE

a. P. RATHINAM V. UNION OF INDIA (1994): the Supreme Court first time
debated the constitutionality of attempt to commit suicide u/S 309 of IPC and struck
down the proviso – first time Right to die was included within the ambit of Right
to live with dignity
b. Attempt to suicide was a criminal act under S. 309 of IPC but the Mental Health Care
Act 2017, which commenced in 2018, the scope of section 309 was limited without
repealing it from IPC.
c. The relevant provision reads as, “Notwithstanding anything contained in Section 309
of the Indian Penal Code any person who attempts to commit suicide shall be presumed,
unless proved otherwise, to have severe stress and shall not be tried and punished under
the said Code

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 d. Question arises – Whether taking Samadhi or carrying out Santhara a suicide? NO
(r/w Art 25 & Art 29)

XIV. EUTHANASIA: CHALLAENGE TO LAW

a. Euthanasia – is an intentional premature termination of another person’s life either by
direct intervention(active euthanasia) or by withholding the life-prolonging measures
and resources (passive euthanasia) – either by expressed or implied request of that
person (voluntary euthanasia)
b. GYAN KAUR V. UOI (1996): The Court was of the view that the Euthanasia is
not legally permissible , so kith and kin causing death , abetting death on mercy will be
punished under S. 309 or 306 of IPC – Right to life u/A 21 does not include Right not
to live – NO DEFINITE OPINION GIVEN
c. Law Commission of India 2008 – favoured Euthanasia in situations when “life is hell
and survival is very painful and there is absolutely no chance of survival subject to of
course limitations against the abuse of relations, kith and kin.
d. ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA &
ORS (2011) 4 SCC 454: upheld the validity of Passive Euthanasia, assisted suicide,
whereby the life support of a terminally ill patient is removed or halted –
EUTHANASIA COULD BE MADE LAWFUL BY LEGISLATION ONLY
e. Right to life does not include the right to die but provides for “right to die with
dignity” which is facilitated by Passive Euthanasia only in certain circumstances
permitted with the leave of the Supreme Court.

XV. COMMON CAUSE V. UNION OF INDIA (2018)

a. Again, debate over Euthanasia grew louder – 2005 case
b. It sought declaration that right to die with dignity is a fundamental right u/A 21
c. Prayed the court to issue directions to Union Govt. to allow terminally ill patients to
execute “living will” for appropriate action in the event that they are admitted to
hospitals
d. COURT held that – Euthanasia can be availed by the patients who suffer from
incurable, and prolonged diseases, and have reached the state of permanent vegetative

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 state (p. v. s.), where there is very little or no hope of recovery, and the patients are kept
alive through external instruments and machines, such as the cardiopulmonary
machines. In such cases, passive euthanasia can be allowed.

XVI. TRANSFORMATIVE CONSTITUTIONALISM & ARTICLE 21

a. 2009 DELHI HC – 2013 KAUSHAL V. NA and then 2018 NAVTEJ

SINGH JOHAR V. UOI: decriminalised S. 377 - The court found that the
criminalisation of sexual acts between consenting adults violated the right to equality &
Right to Life guaranteed by the Constitution of India - and held that denying the LGBT
community its right to privacy on the ground that they form a minority of the population
would be violative of their fundamental rights.
b. The Court relied on the principles of transformative constitutionalism and
progressive realization of rights to hold that the constitution must guide the society’s
transformation from an archaic to a pragmatic society where fundamental rights are
fiercely guarded.
c. Court further stated, “constitutional morality would prevail over social morality”

XVII. VARIED INTERPRETATIONS OF ARTICLE 21

a. SHANTISAR BUILDERS V. NARAYAN TOTAME (1990): Art 21
includes Right to food, clothing, decent environment and reasonable
accommodation to live in
b. SUCHITA SRIVASTAVA V. C’GARH ADM: Right to reproductive
choices was covered under Art 21
c. PARMANANDA KATARA V. UOI: Duty of Doctors to protect life of a person
d. OLGA TELLIS V. BMC (slumdwellers case): Right to livelihood is a part of Art
21

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XVIII. REFUGEES & ARTICLE 21 (MARCH – APRIL 2021)
a. MOHAMMAD SALIMULLAH AND ANR. V. UOI AND ORS.:
Rohingyas residing in Jammu shall not be deported unless the procedure prescribed for
such deportation is followed
b. The Court said that “Art. 14 and 21 is available to all persons, citizens or non-citizens,
but the RIGHT NOT TO BE DEPORTED is ancillary or concomitant to the right to
reside or settle in any part of the territory of India guaranteed u/A 19 (1) (e)”
c. National Courts can draw inspiration from international conventions and treaties so
long as it is not in conflict with municipal laws

XIX. ARTICLE 21 V. EMERGENCY

a. Can be suspended during emergency under Art. 359 – suspended during 1962,1971,
1976
b. ADM Jabalpur Case re-instated that Art 21 can be suspended during Emergency
c. 44th Constitutional Amendment Act - Amended Art 359 – during emergency Art
21 cannot be suspended

XX. ARTICLE 21A: RIGHT TO EDUCATION

a. Education is a basic human right
b. Education gives a person human dignity who develops himself as well as contributes to
the development of the country.
c. The framers or forefathers of the constitution realizing the importance of education
imposed a duty on the state under article 45 as one of the directive policy of the state to
provide free and compulsory education to all children until they complete the age of 14
years within 10 years from the commencement of the constitution.
d. Earlier: Article 46 (Part IV) [Right to Education; 0-14 years children: Free &
Compulsory Education; Non-Justiciable]
e. MOHINI JAIN V. STATE OF KARNATAKA AIR 1992 SC 1858: The
court held that right to education at all levels a fundamental right under Article 21 Of
the Constitution of India and charging high capitation fees for admission is illegal and
amounted to a denial of a citizen’s right of education. Education in India is not a

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 commodity. However, the court did not point out that up to what age a citizen has the
Right to Education guaranteed by the constitution.
f. UNNI KRISHNAN V. STATE OF A.P. (1993) 1 SCC 645: The court
specifically pointed out that the right to education for children of age of 6 to 14 years a
fundamental right. The court did not agree with the decision of Mohini Jain case and
overruled it on this point. The court held after 14 years of age of children, the obligation
of the state depends on the economic capacity and development.
g. The Constitution (86th Amendment) Act, 2002 Inserted A New Article 21A After
Article 21 And Made Education for All Children of Age Of 6 To 14 Years A
Fundamental Right. It provides “The state shall provide free and compulsory education
to all children of age of 6 to 14 years in such manner as the state may, by law,
determine.”.
h. Article 21A makes it obligatory for the government to enact central legislation to give
effect to the constitutional amendment.
i. The legislation will create a mechanism by which a citizen who is aggrieved whose
right to education has not been fulfilled should be able to get relief by filing writ
petitions in the High courts or Supreme courts.
j. The Parliament to give effect to the 86th Constitution Amendment Act, 2002, passed
the right of children to compulsory education Act, 2009. The Act contains seven
chapters and 38 sections. It provides the responsibilities of the central or state
government, teachers, parents and community members in ensuring that all children of
the age of 6 and 14 years receive free and compulsory education.

XXI. THE RIGHT OF CHILDREN TO FREE AND COMPULSORY

EDUCATION ACT 2010
a. The RTE is the consequential legislation envisaged under the 86th Amendment
1. The article incorporates the word “free” in its title. What it means is that no child
(other than those admitted by his/her parents in a school not supported by the
government) is liable to pay any kind of fee or charges or expenses which may
prevent him or her from pursuing and completing elementary education.

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 2. This Act makes it obligatory on the part of the government to ensure admission,
attendance and completion of elementary education by all children falling in the
age bracket six to fourteen years.
3. Essentially, this Act ensures free elementary education to all children in the
economically weaker sections of society.
b. Significance of RTE
1. The Act lays down specific standards for the student-teacher ratio, which is a very
important concept in providing quality education.
2. It also talks about providing separate toilet facilities for girls and boys, having
adequate standards for classroom conditions, drinking water facilities, etc.
3. The stress on avoiding the urban-rural imbalance in teachers’ posting is important
as there is a big gap in the quality and numbers regarding education in the villages
compared to the urban areas in the country.
4. The Act provides for zero tolerance against the harassment and discrimination of
children. The prohibition of screening procedures for admission ensures that there
would be no discrimination of children on the basis of caste, religion, gender, etc.
5. The Act also mandates that no kid is detained until class 8. It introduced the
Continuous Comprehensive Evaluation (CCE) system in 2009 to have grade-
appropriate learning outcomes in schools.
6. The Act also provides for the formation of a School Management Committee
(SMC) in every school in order to promote participatory democracy and
governance in all elementary schools. These committees have the authority to
monitor the school’s functioning and prepare developmental plans for it.
7. The Act is justiciable and has a Grievance Redressal mechanism that permits
people to take action when the provisions of the Act are not complied with.
8. The RTE Act mandates for all private schools to reserve 25 per cent of their seats
for children from socially disadvantaged and economically backward sections.
This move is intended to boost social inclusion and pave the way for a more just
and equal country.
c. Challenges & Criticism
1. The Act was drafted hastily without much thought or consultation being given to
the quality of education imparted.
2. Children below 6 years are not covered under the Act.
3. Minority Institutions kept away from ambit of RTE

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4. Many of the schemes under the Act have been compared to the previous schemes
on education such as the Sarva Shiksha Abhiyan, and have been plagued with
corruption charges and inefficiency.
5. At the time of admissions, many documents such as birth certificate, BPL
certificate, etc. are required. This move seems to have left out orphans from being
beneficiaries of the Act.
6. There have been implementational hurdles in the 25% reservation of seats for
EWS and others in private schools. Some of the challenges in this regard are
discriminatory behaviour towards parents and difficulties experienced by students
to fit in with a different socio-cultural milieu.
7. Regarding the ‘no detention’ policy till class 8, an amendment to the Act in 2019,
introduced regular annual exams in classes 5 and 8.

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 UNIT 21 – Article 22

COURSE OUTLINE
I] Preventive Detention
1. National Security Act, 1980
2. Conversation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974

II] Cases
1. Union of India v. Dimple Happy Dhakad, 2019
2. Jaynarayan Sukul v. State of West Bengal, 1970 SCR (3) 225
3. Icchu Devi Choronia v. Union of India, 1981 SCR (1) 640

I. ARTICLE 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 authorise 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 has
reported before the expiration of the said period of three months that there is in its
opinion sufficient cause for such detention:

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 (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) Right against Exploitation

II. CONSTITUENTS
a. Arrest (always with a warrant) & Detention (no warrant) [All arrests include detention;
all detentions are not arrests]
b. Punitive Action (after the crime)
c. Preventive Action (before the crime; based on the principle “prevention is better than
cure”)

III. OVERVIEW
a. Article 21 – right to life personal liberty and Article 22 – restrains your personal liberty;
you are being restrained because you have committed some crime
b. Includes the right of the arrested person
c. So, we restrict an individual while making sure that natural justice is carried out
d. Any civil law in not under the purview of Article 22.
e. Ordinary Criminal Laws [Article 22 (1) & (2)]

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 1. Article 22 (1) right to be informed of the grounds of arrest + right to consult a legal
practitioner
2. Article 22 (2) – right to be produced before a magistrate + no detention beyond 24
hours (exceeded only in judicial custody)
f. Preventive Detention [Article 22 (4) – (7)]
1. Defence of India Act
2. Bengal Regulation Act
3. Vernacular Act

IV. FRACIS CORALLIE MULLIN V. THE ADMINISTRATOR, UT OF

DELHI (1981)
a. While considering the question of validity of conditions of detention courts must
necessarily bear in mind the vital distinction between preventive detention and punitive
detention.
b. Punitive detention is intended to inflict punishment on a person, who is found by the
judicial process to have committed an offence, while preventive detention is not by
way of punishment at all, but it is intended to pre-empt a person from indulging in
conduct injurious to the society
c. The power of preventive detention has been recognised as a necessary evil and
is tolerated in a free society in the larger interest of security of the State and
maintenance of public order. It is a drastic power to detain a person without trial
and in many countries, it is not allowed to be exercised except in times of war
or aggression.

V. LEGISLATIVE POWERS WITH RESPECT TO PREVENTIVE

DETENTION
a. Centre List [Sch. VII List I]
1. Defence
2. Foreign Affairs
3. Security of India
b. Concurrent List for State [Sch. VII List III]

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 1. Need for Public Order
2. Security of State
3. Maintenance of Essential Services

VI. PREVENTIVE DETENTION

a. Preventive detention refers to taking into custody an individual who has not committed
a crime yet but the authorities believe him to be a threat to law and order.
b. In ANKUL CHANDRA PRADHAN V. UNION OF INDIA, the Court
stated that the object of preventive detention is not to punish but prevent the detenue
from doing anything that is prejudicial to the security of the state.
c. ARTICLE 22 (4)
1. No detention more than 3 months
2. Advisory Board to agree on the Preventive Detention
3. Maximum time cannot be extended (as per statute)
d. Article 22(7) Parliament had the power to decide on all aspects of Article 22(4)
e. Article 22(5)
1. Right to be informed
2. Right of representation
f. Article 22(6): any information that we give to detenue can be detrimental to the public
interest – NEED NOT BE GIVEN

VII. PREVENTIVE DETENTION LAWS IN INDIA

a. Preventive Detention Act 1950 – expired in 1969
b. Maintenance of Internal Security Act (MISA) 1971 – repealed in 1978
c. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (
COFEPOSA) 1974
d. The Jammu and Kashmir Public Safety Act 1978
e. National Security Act (NASA) 1980
f. Prevention of Blackmarketing and Maintenance of Supplies of Essential Commoditities
Act (PBMSECA) 1980
g. Terrorist and Disruptive Activitiets (Prevention) Act (TADA) 1985 – repealed 1995

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 h. Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act
(PITNDPSA) 1988
i. Prevention of Terrorism Act (POTA) 2002 – repealed in 2004
j. Unlawful Activities (Prevention) Act (UAPA) 2004

VIII. MISUE OF THE UNLAWFUL ACTIVITIES (PREVENTION)

AMENDMENT ACT
a. BHIMA KOREGAON CASES (MAHARASHTRA)
b. DELHI PROTESTS CASES

c. HATHRAS CASE – Journalists were charged under UAPA

d. Interpol Accuses India of misuse of UAPA29
e. Draconian UAPA and other repressive laws to stifle dissent in India30
f. ‘UAPA being used to criminalise human rights defenders’31

IX. CASE LAWS ON PREVENTIVE DETENTION

a. The first case to come before the Supreme Court was AK GOPALAN V. STATE

OF MADRAS, in which the Court upheld the validity of the Preventive Detention
Act. Moreover, the Court also held that Article 22 of the Constitution also provides
exhaustive procedural safeguards with respect to preventive detention. Therefore, the
Court said that fundamental rights were not violated by the impugned act because it met
all the procedural safeguards that are provided in Article 22(5)
b. The Supreme Court in ALIJAV V. DISTRICT MAGISTRATE,
DHANBAD, stated that while criminal proceedings relate to punishing of a person
for an offence committed by him, preventive detention does not relate to an offence.

29
https://www.indiatoday.in/india/story/interpol-rejects-indias-request-red-corner-notice-plea-against-khalisatni-
separatist-gurpatwant-singh-pannun-2284659-2022-10-12
30
https://monitor.civicus.org/updates/2021/12/02/increasing-use-draconian-uapa-and-other-repressive-laws-
stifle-dissent-india/
31
https://www.thehindu.com/news/cities/Delhi/uapa-being-used-to-criminalise-human-rights-
defenders/article65977734.ece

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c. In ANKUL CHANDRA PRADHAN V. UNION OF INDIA, the Court
stated that the object of preventive detention is not to punish but prevent the
detenue from doing anything that is prejudicial to the security of the state.
d. In RAM MANOHAR LOHIA V. STATE OF BIHAR, the Supreme Court
attempted to distinguish between the concepts “security of state,” “public order,” and
“law and order.”
1. Justice Hidayatullah underscored that only the most severe of acts could
justify preventive detention: One has to imagine three concentric circles. Law
and order represents the largest circle within which is the next circle
representing public order and the smallest circle represents security of state. It
is then easy to see that an act may affect law and order but not public order just
as an act might affect public order but not security of state.
2. The Court concluded that acts affecting only “law and order” without one
of the other two categories cannot be a sufficient justification on which to
base a detention order.
3. Of course, this analysis, its academic benefits aside, provides little clarification
of the contested concepts, as it suggests only that courts may examine the
executive’s assessments of threats to public security.
e. In ANIL DEY V. STATE OF WEST BENGAL
1. the Supreme Court held that “the veil of subjective satisfaction of the
detaining authority cannot be lifted by the courts with a view to appreciate
its objective sufficiency”.
2. Although the courts “cannot substitute their own opinion for that of the
detaining authority by applying an objective test to decide the necessity of
detention for specified purpose, they do review whether the satisfaction is
“honest and real, and not fanciful and imaginary”.
3. The executive is, therefore, required by the courts to apply its mind to the
decision to issue a detention order.

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X. DK BASU V. STATE OF WEST BENGAL – DK BASU
GUIDELINES
a. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with
their designations. The particulars of all such police personnel who handle
interrogation of the arrestee should bear accurate, visible and clear identification and
name tags with their designation. The particular of all such personnel who handle
interrogation of the arrestee must be recorded in a register.
b. That the police officer carrying out the arrest shall prepare a memo of arrest at
the time of arrest and such memo shall be attested by at least one witness, who may
be either a member of the family of the arrestee or a respectable person of the locality
from where the arrest is made. It shall also be counter signed by the arrestee and shall
contain the time and date of arrest.
c. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.
d. The time, place of arrest and venue of custody of an arrestee must be notified by
the police where the next friend or relative of the arrestee lives outside the district or
town through the Legal Aids Organization in the District and the police station of the
area concerned telegraphically within a period of 8 to 12 hours after the arrest.
e. The person arrested must be made aware of his right to have someone informed
of his arrest or detention as soon as he is put under arrest or is detained.
f. An entry must be made in the diary at the place of detention regarding the arrest
of the person which shall also disclosed the name of the next friend of the person who
has been informed of the arrest and the names land particulars of the police officials in
whose custody the arrestee is.
g. The arrestee should, where he so requests, be also examines at the time of his arrest
and major and minor injuries, if any present on his /her body, must be recorded
at that time. The Inspector Memo’ must be signed both by the arrestee and the police
officer effecting the arrest and its copy provided to the arrestee.

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 h. The arrestee should be subjected to medical examination by the trained doctor every
48 hours during his detention in custody by a doctor on the panel of approved doctor
appointed by Director, Health Services of the concerned State or Union Terri tory,
Director, Health Services should prepare such a panel for all Tehsils and Districts as
well.
i. Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Magistrate for his record.
j. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
k. A police control room should be provided at all district and State headquarters
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.

XI. SAFEGAURDS AGAINST PREVENTIVE DETENTION & ARREST

a. Article 22: not a complete Code
b. Right to be informed of the grounds of arrest
c. Right to be defended by a lawyer of his own choice
d. Right to be produced before a Magistrate
e. No detention beyond 24 hours except by order of the Magistrate
1. Review by Advisory Board
2. Communication of grounds of detention to detenu (Art 22(5))
3. Detenue’s Right of representation (Art 22(5))
safeguards against preventive actions
f. ART 22 (4) - safeguards against punitive actions
1. No Detention more than 3 months
2. Advisory Board
3. Max. time can be extended
4. Art 22(7)
g. Article 22(6): Information to be given to the detenue which can compromise Public
Interest –need not be shared

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XII. WINDENING SCOPE OF P.D.
a. Rumour Mongers on social media – Epidemic Act 1897 ED Ordinance 2020
b. Attack on health care workers - Habitual Animal Abuser (Gujrat Animal Prevention
Act)
c. Attack on RTF, army men, persons involved in relief work

XIII. UNION OF INDIA V. DIMPLE HAPPY DHAKAD (2019)

a. The Court dealing with a case where a huge volume of gold had been smuggled into
the country unabatedly in the last three years and about 3396 kgs of the gold had
been brought into India during the period from July 2018 to March, 2019
camouflaging it with brass metal scrap.
b. The detaining authority recorded finding that this has serious impact on the economy
of the nation.
c. Detaining authority also satisfied that the detenues have propensity to indulge in the
same act of smuggling and passed the order of preventive detention, which is a
preventive measure.
d. Order of detention is clearly a preventive measure and devised to afford protection
to the society. When the preventive detention is aimed to protect the safety and
security of the nation, balance has to be struck between liberty of an individual
and the needs of the society.”
e. The Court, hence, upheld the detention of the Gold smuggler.

XIV. JAYANARAYAN SUKUL V. STATE OF WEST BENGAL (1970)

a. Four principles, are, Yard to the representation of detenus
b. First, the appropriate authority is bound to give detenu to make a representation and
to consider early as possible. [232 B]
c. Secondly, the consideration of the representation of the detenu by the appropriate
authority is entirely independent of any action by the Advisory Board including the
consideration of the representation of the detenu by the Advisory Board. [232 C]
d. Thirdly. there should not be any delay in the matter of consideration. Though no hard
and fast rule can be laid down as to the measure of time taken by the appropriate

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 authority for consideration, it has to be remembered that the Government has to be
vigilant in the governance of the citizens. The fundamental right of the detenu to
have his representation 226 considered by the appropriate Government would
be rendered meaningless if the Government does not deal with the matter
expeditiously but at its own sweet will and convenience. [232 C-D]
e. Fourthly the appropriate Government is to exercise its opinion and judgment on
the representation before sending the case along with the
detenu’s representation to the Advisory Board. If the appropriate Government
will release the detenu the Government will not send the matter to the Advisory
Board. If, however the Government will not release the detenu the Government will,
send the case along with the detenu’s representation to the Advisory Board.
f. If thereafter the Advisory Board will ,express an opinion in favour of release of the
detenu the Government will release the detenu. If the Advisory Board will express
any opinion against the release of the detenu the Government may still

XV. ICCHU DEVI CHORONIA V. UNION OF INDIA (1981)

a. In Smt. Icchu Devi Case (supra), the Supreme Court has taken the view that documents,
statements and other materials referred to or relied upon in the grounds of detention by
the detaining authority in arriving at its subjective satisfaction get incorporated and
become part of the grounds of detention by reference and
b. the right of the detenu to be supplied copies of such documents, statements and
other materials flows directly as a necessary corollary from the right conferred on
the detenu to be afforded the earliest opportunity of making a representation
against the detention, because unless the former right is available the latter cannot be
meaningfully exercised.
c. SCI Held that - “The delay by the State Government in disposing of the
representation and by the Central and State Government in communicating such
rejection, strikes at the heart of the procedural rights and guarantees granted to
the detenu.
d. It is necessary to understand that the law provides for such procedural safeguards to
balance the wide powers granted to the executive under the NSA.”

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 UNIT 22 – Right Against Exploitation

COURSE OUTLINE
I] Article 23

II] Article 24

II] Cases
1. People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 (Asiad
Worker’s case)
2. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
3. M.C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756

I. ARTICLE 23
(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
• Forced Labour or Begar – Forced labour or begar is any labour or service which helpless
persons are forced to perform against their will, under threat of penalty. Almost all
slavery exercises include some component of forced labour or beggar.
• Human Trafficking – Human trafficking is the procedure of entangling people through
the use of turmoil, extortion or oppression and abusing them for economic or private
gain
The expression trafficking of human beings contains:
• Selling and buying of human beings like products;
• Immortal trade of children and women, including prostitution;
• Devadasis;
• Slavery.

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II. CAUSES OF HUMAN TRAFFICKING IN INDIA
a. Migration to major commercial cities
b. Bonded labour or labourers ridden with debt are still prevalent in Indian society
c. To reduce the supply gap – suppliers (pimps, abductors, etc) pick up females and
children from vulnerable rural areas
d. Parents in rural area send their children on false promises of education of job or better
opportunities
e. Social inequality, poverty, gender bias, etc.
f. Girls / women are not trafficked for prostitution or beggary but are also sold like
commodities in many regions of India where female ratio is less – female infanticide /
Bride hunting

III. LAWS FOR CURBING HUMAN TRAFFICKING IN INDIA

CONSTITUTITONAL & LEGISLATIVE PROVISIONS
a. Trafficking in human beings prevented under Art. 23(1)
b. Protection of Children from Sexual Offences Act (POCSO) 2012 – protecting children
from sexual exploitation & abuse
c. Suppression of Immoral Traffic in Women and Girls Prevention Act (SITA) 1956 –
penalises trafficking for commercial sexual exploitation – penalty from seven years to
life imprisonment
d. Criminal Law (Amendment) Act 2013 - substituted S.370 with S. 370A of IPC –
comprehensive measures to counter human trafficking
e. Bonded and forced labour
• Bonded Labour System (Abolition) Act 1976
• Child Labour (Prohibition & Regulation)Act 1986
• Transplantation of Human Organs Act 1994
f. S. 366(A) & 372, IPC – prohibits kidnapping and selling minor for prostitution
(maximum 10-year imprisonment & fine)
g. State Govt Acts – The Punjab Prevention of Human Smuggling Act 2012

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IV. MEASURES TAKEN BY THE GOVERNMENT
a. ANTI TRAFFICKING CELL (ATC) 2006 – Ministry of Home Affairs - for
communicating decisions and taking follow up from the states to combat the crime of
human trafficking
b. MHA advisories to the States
c. India Against Trafficking Scheme
1. Established Anti Human Trafficking Units (district level)
2. Capacity building of law enforcement agencies
3. Training of Trainers workshops – for Police, Prosecutors at regional, state,
district level throughout the country
4. Judicial Colloquiums - to sensitize judiciary, held at High Court level, to ensure
speedy justice

V. NEW CHALLENGES
a. According to the United Nations Office on Organized Crime (UNODC) - For years
India has remained the “top destination” for human trafficking in South Asia - This is
a major problem in South Asian countries because of their porous borders
b. The NCRB in its 2019 report stated that compared to 2017 and 2018, human trafficking
cases in India hit a three year-high in 2019 - A total of 6,616 human trafficking cases
were registered in the country, which is far higher than the 5,788 cases registered in
2018 and 5,900 cases in 2017.
c. Maharashtra registered the highest number of human trafficking cases - 986 - of which
95 pertained to minors and the remaining 936 pertained to victims above 18 years of
age - followed by Telangana at 322, and Andhra Pradesh at 316 - Delhi where a total
of 608 cases were registered in 2019 had the second highest number of trafficked
minors at 536 - The national capital was also the only place in the country, among 36
states and UTs, where human trafficking cases took place with the aim of 'removal of
organs

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VI. EXCEPTIONS TO ARTICLE 23
a. DULAL SAMANTA V. DIST. MAGISTRATE, HOWRAH [AIR 1958

CAL 365]
• Police service
• Military service
Cannot be a part of forced labour
b. State can impose compulsory service for public purposes (Art. 23 (2)) - State demanding
service of teachers for census, elections , family planning etc. does not violate Art. 23 –
as this is a national service and covered under Fundamental Duty – Art 51A –
DEVENDRA NATH GUPTA V. STATE OF MADHYA PRADESH
[AIR 1983 MP 172]
c. BANDHUA MUKTI MORCHA V. UNION OF INDIA [AIR 1984 SC
802]

VII. PEOPLE’S UNION FOR DEMOCRATIC RIGHTS V. UNION OF INDIA

(1982) – ASIAD CASE
a. In this case the issues like labourers not being given minimum remuneration as per
Minimum Wages Act 1948 and unequal distribution of among men and women came
to forefront.
b. The SCI interpreted scope of Art. 23 – forced labour just doesn’t mean physical force
or legal force but also includes ECONOMIC Force – Economic factors force a person
to provide labour even below the minimum wage.

VIII. ARTICLE 24
a. Prohibits the employment of child below the age of fourteen years to work in any
factory or mine or in any hazardous employment
b. A Constitutional mandate
c. Read with Art. 21 A and Art 45 & Art. 39(f) of DPSP

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IX. LAW FOR THE PROTECTION OF CHILDREN
a. Children Pledging of Labour Act, 1933. According to this Act, any agreement relating
to the pledge of the service of a child is void and any person entering into any such
agreement is to be punished. This Act was enacted mainly to prevent the practice of
pledging any child under 15 years of age.
b. Factories Act, 1948. This is an important piece of central legislation which bars the
employment of children below 14 years, in factories employing 10 or more persons
with the use of power and 20 or more without the use of power.
c. The Plantation Labour Act, 1951. This Act has not only restricted working hours for
the child to 27 hours a week but also provided for one day leave for each period of
seven days work in addition to certain other welfare provisions.
d. The Mines Act, 1952. This Act defines a child to be a person who has not attained the
age of 15 years and an adolescent is someone who has completed 15 years of age but is
less than 18 years of age. This Act also provides that an adolescent who has completed
the age of 16 can be employed in any part of the mine if the work is underground, only
after procuring a competent medical certificate and that too for only four and half hours
on daily basis. This Act has also prescribed the penalty for the offenders on the violation
of the provisions of law.
e. The Motor Transport Workers Act, 1961. This Act forbids the employment of children
below 15 years of age in motor transport undertakings; however, an adolescent can be
allowed to work only after producing a certificate of physical fitness in such an
organization.
f. The Apprentices Act, 1961. This Act provides that a person who is less than 14 years
of age will not qualify for apprenticeship training but this rule is not applicable to those
apprentices who are receiving vocational training.
g. The Employment of Children Act, 1938, and its successor, the Child Labour (
Prohibition and Regulation) Act, 1986, is substantially the same. The latter aims at
identifying more hazardous processes and industries with a view to banning child
labour in these units and regulates working conditions for children in non-hazardous
units. The new Act of 1986 has prescribed various valuable provisions for prohibiting
and regulating child labour. The main objects of this Act are as under-
1. to bring uniformity in the definition of child in the related laws.
2. To ban the employment of children in specific occupations and processes.

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 3. To enable modification of the scope of banned industries and processes by
laying down a procedure.
h. The Juvenile Justice (Care and Protection) of Children Act of 2000: This law made
child labour a crime, punishable with a prison term, for anyone to procure or employ a
child in any hazardous employment or bondage. This act provides punishment to those
who act in contravention to the previous acts by employing children to work.

X. EFFORTS BY GOVERNMENT OF INDIA TO CONTROL CHILD

LABOUR
a. The Child Labour (Prohibition and Regulation) Act 1986 - Many states including
Haryana have established child labour rehabilitation –cum-welfare funds at the district
level and separate labour cells are being formed to address the issue.
b. 1988 - National child labour projects have been implemented by the central government
in states to provide non-formal education and pre-vocational skills.
c. From 2001, Sarve Shiksha Abhiyan was a big initiative by the government to educate
poor and employed children in all states.
d. Midday Meal Scheme
e. The establishment of Anganwadies is also a big step for the welfare of children and
their physical, mental, and educational development.

XI. CASE LAWS [ARTICLE 24]

a. M.C. MEHTA V. STATE OF TAMIL NADU (1996) - Sivakasi match
industry – abolition of child labour
b. ASIAD CASE (PUDR V. UOI) (1982) – Children were employed (under the
age of 14 years) – it was however contended that such employment was not against the
Employment of Children’s Act 1938, since it did not list construction work under the
Hazardous industry.
SCI took a wider view in favour of children included construction work under hazardous
industry
c. LAKSMI KANT V. UOI[1984] - laid down guidelines for adoption of Indian
children by foreign parents – child welfare paramount

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 UNIT 23 – Freedom of Religion, Cultural & Educational Rights

COURSE OUTLINE
I] Freedom of Religion – Articles 25 & 26

II] Cases
1. Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615
2. Ratilal P. Gandhi v. State of Bombay, AIR 1954 SC 388
3. Venkataramana Devaru v. State of Mysore, AIR 1958 SC 225
4. Stanislaus v. State of Madhya Pradesh, AIR 1977 SC 908
5. Church of God v. K.K.R. Majestic Colony, AIR 2000 SC 2773
6. T.M.A PAI Foundation v. State of Karnataka - AIR 2003 SC 355 (440)
7. P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3236

UNIT 24 – Freedom of Religion, Cultural & Educational Rights

COURSE OUTLINE
I] Freedom of Religion – Articles 27 &28

II] Cases
1. Aruna Roy v. UOI, AIR 2002 SC 3176
2. Adi Saiva Sivachariyargal N. Sangam and Ors. Vs. Govt. of Tamil Nadu and Anr.,
decided on 16 December 2015

I. INTRODUCTION
a. India, most popularly acknowledged as the land of spiritual beliefs, philosophical
thinking, culture, has also been the birthplace of quite a few number of religions out of
which some of them exist in this era as well.
b. ‘Religion’ is entirely a matter of choice, perception and belief.
c. People in this country have a strong faith and dependence when it comes to their
religion as they perceive that religion adds meaning and reason to their lives.

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 d. When it comes to people who are extremely devoted to their religion , they leave no
stone unturned in showing substantial amount of fidelity towards their respective
religion.

II. MEANING OF RELIGION

a. George Bernard Shaw: “There is only one religion, though there are hundreds of
versions of it.”
b. Sigmund Freud : “Religion is comparable to childhood neurosis.”
c. Rudolph Otto : “Religion is that which grows out of, and gives expression to,
experience of the holy in its various aspects.”

III. ARTICLE 25
Freedom Of Conscience and Free Profession, Practice and Propagation 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, Practise and Propagate Religion
(2) Nothing In This Article Shall Affect the Operation of Any Existing Law or Prevent the
State from Making Any Law

IV. ARTICLE 25 – OVERVIEW

a. Freedom of conscience and free profession, practice, and propagation of religion to all
citizens.
b. The above-mentioned freedoms are subject to public order, health, and morality.
c. This article also gives a provision that the State can make laws:
1. That regulates and restricts any financial, economic, political, or other secular activity
associated with any religious practice.
2. That provides for the social welfare and reform or opening up of Hindu religious
institutions of a public character to all sections and classes of Hindus. Under this provision,
Hindus are construed as including the people professing the Sikh, Jain, or Buddhist
religions, and Hindu institutions shall also be construed accordingly.

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 d. People of the Sikh faith wearing & carrying the kirpan shall be considered as included
in the profession of the Sikh religion.
e. SARLA MUDGAL V. UNION OF INDIA & ROBASA KHANUM V.

KHODABAD IRANI: The questions which had come up for consideration of the
Supreme Court , where four petitions were filed under Art 32 of the Constitution of
India were:
1. Whether a Hindu husband who has been married under the provisions of the
Hindu Marriage Act, by embracing Islam is in a position to solemnise a second
marriage?
2. Whether such a marriage without even having the first marriage dissolved, can
be said to be a valid marriage under law, when the first wife continues to be a
Hindu?
3. Whether the husband can be charged with the offence of bigamy under Section
494 of the Indian Penal Code?
Held: The conduct of a spouse who converts to Islam has to be judged on the basis of the rules
of justice equity and good conscience.
It was further observed that , looked from another angle , the second marriage of an apostate –
husband would be in violation of the rules of natural justice .
Assuming that a Hindu husband has a right to embrace Islam as his religion , he has no right
under the Act, to marry again without getting his marriage under the Act dissolved. The second
marriage after conversion to Islam , would, thus , be in violation of the rules of natural justice
and as such would be void. The Court remarked that all the ingredients of Section 494 IPC
were satisfied in this case, and therefore the offence of bigamy had been committed

V. ARTICLE 26
a. Freedom to manage religious affairs
b. This Article provides that every religious denomination has the following rights, subject
to morality, health, and public order.
1. The right to form and maintain institutions for religious and charitable intents.
2. The right to manage its own affairs in the matter of religion.
3. The right to acquire the immovable and movable property.
4. The right to administer such property according to the law.

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 c. S.P. MITTAL V. UOI
1. Religious Denomination must satisfy three conditions: common faith, common
organisation, and designation by distinctive name.
2. There are several religions in India, such as Islam, Christianity, Parsis and
Hinduism. And members belonging to each of these religions would be a
denomination.

VI. ARTICLE 27
a. Freedom as to payment of taxes for promotion of any particular religion
b. According to Article 27 of the Constitution, there can be no taxes, the proceeds of which
are directly used for the promotion and/or maintenance of any particular
religion/religious denomination.
c. L.T. SWUMIAR V. COMMR. H.R.F. MADRAS: In it has been held that
even if a tax is imposed on persons belonging to a particular religion, in order to meet
the expenses of that particular religion , such tax is void

VII. ARTICLE 28
a. Freedom as to attendance at religious instruction or religious worship in certain
educational institutions
b. This article permits educational institutions that are maintained by religious groups to
disseminate religious instruction.
c. This provides that no religious instruction shall be provided in State-run educational
institutions.
1. Educational institutions administered by the State but that were established
under any endowment or trust which requires that religious instruction shall be
imparted in such institutions are exempt from the above clause (that no religious
instruction shall be provided).
2. Any person who attends any educational institution recognized by the State or
receiving State aid shall not be required to participate in any religious
instruction that may be imparted in such institution, or also attend any religious

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 worship in such institutions unless he/she has given consent for the same. In the
case of minors, the guardians should have given consent for the same.

VIII. SECULARISM
The word ‘secularism’ means separate from religion.
a. It entails the separation of religion from the government, social, economic, and cultural
aspects of life.
b. Here religion is an entirely personal matter.
c. India is a secular country with no state religion.
d. However, this in India, also means that there is equal respect for all religions and faiths.
e. The word is also a part of the Basic Structure of the Constitution. It was added by the
42nd Amendment to the Constitution.
f. This concept enjoys high regard in Indian democracy.
g. Secularism has also been an inalienable part of Indian culture as seen by the multitude
of faiths that have co-existed in this country for centuries.
h. All religious groups in India have the same powers without any discrimination.
i. India is NOT A TRUE SECULARIST COUNTRY

IX. CASE LAWS

a. ARUNA ROY V. UNION
1. Indian Secularism means “ sarva dharma sambhav” and not “sarva dharma abhav”
2. i.e., equal feeling for all religions and not NO feeling for any religion
3. Secularism in India has very different meaning and implications

b. S.R. BOMMAI V. UNION OF INDIA

1. A landmark case for endorsing federalism in India – it also discussed firmly de-linked
RELIGION FROM POLITICS in India
2. 9 judges bench verdict
3. Appealing to any religion or seeking votes in the name of religion is prohibited under s.
123 (3) and 3(a) of the Representation of People’s Act

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4. Politics in positively secular state is to get over their religion i.e., in politics a political party
should neither invoke religion nor be dependent on it for support or sustenance.
5. Constitution ensures to the individual to protect religion, right to belief of propagate
teachings conducive for secular living, later to be controlled by the State for betterment of
human life and progress. Positive secularism concerns with such aspects of human life.
6. Indian Government Cannot under the Constitution & Law Patronise Any Religion -
Introduction of religion into politics is not merely a negation of the constitutional mandates
but also positive violation of the constitution obligation, duty, responsibility and positive
prescription of prohibition specifically enjoyed by the Constitution and the R P Act
7. A political party that seeks to secure power through a religious policy or caste orientation
policy disintegrates the people on grounds of religion and caste. It divides the people and
disrupts the social structure on grounds of religion and caste which is obnoxious and
anathema to the constitutional culture and basic features. Appeal on grounds of religion
offends secular democracy.”

c. SANTOSH KUMAR V. SECRETARY, HUMAN RESOURCE

1. Scheme of introducing “Sanskrit” as optional subject in CBSE schools. – the grounds for
challenge was patronage to Hindu religion
2. The SCI dismissed the petition holding that it was a completely secular decision and that
Sanskrit was merely a language which enables a person to know and understand literature
written in that language like Vedas, Puranas, Upanishadas, Gita, etc
3. If the state has decided to promote the language it is the tolerance of the state

d. M.D. HANIF QURESHI CASE (1959)

1. Whether prohibition of cow slaughter affects the religious rights of the muslims?
i. Quran enjoys sacrifice of animal on ‘Bakri-Eid” by Muslims – Arab where the Islam
mostly developed is not an agriculturally based society as is India, where the cow is an
indispensable part of its agro industry and so the Indians worship cow
ii. Hence this difference cannot be ignored
iii. Right to religion is not absolute
iv. The SCI held that no case of violation of FR was made out by the petitioner as
slaughtering of healthy cows on Bakrid is “not an essential” or required/mandatory part
of religious practise of Muslims

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 e. DAV COLLEGE V. STATE OF PUNJAB
1. Guru Nanak Dev University Act provided for establishment of university with an object of
studying and researching on life, teachings and research on Guru Nanak and their religious
and cultural impact on India and world. The Act was challenges u/A 28(1)
2. SCI dismissed the petition stating that provision for academic study, research of life,
teaching and philosophy and study of culture of a great saint could not be prohibited under
the Article
3. Art 28 does not prohibit study of religion; it only bans religious worships and religious
instructions on UNWILLING students studying in Govt schools or State aided institutions

X. COMMUNALISM
a. Communalism, is referred in the western world as a “theory or system of government
in which virtually autonomous local communities are loosely in federation”.
communalism is a political philosophy, which proposes that market and money be
abolished and that land and enterprises to be placed in the custody of community.
b. But in the Indian sub-continent context, communalism has come to be associated with
tensions and clashes between different religious communities in various regions.
c. Communalism consists of the following elements:
1. A belief that people who follow the same religion have common secular interests
i.e., they have same political, economic and social interests. So, here socio- political
communalities arises.
2. A notion that, in a multi-religious society like India, these common secular interests
of one religion are dissimilar and divergent from the interests of the follower of
another religion.
3. The interests of the follower of the different religion or of different ‘communities’
are seen to be completely incompatible, antagonist and hostile.
4. Communalism is political trade in religion. It is an ideology on which communal
politics is based. And communal violence are conjectural consequences of
communal ideology.
d. Instances of Communal Violence in India
1. Partition of India,1947

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 2. Anti-Sikh riots, 1984
3. Ethnic cleansing of Kashmiri Hindu Pundits in 1989
4. Babri masjid demolition in Ayodhya, 1992
5. Assam Communal violence,2012
6. Muzaffarnagar violence, 2013

XI. WHAT STATE HAS DONE?

a. National human rights commission (NHRC) in India fights for the causes of rights
of the victims, but its recommendations are advisory in nature, which doesn’t give
significant outcome.
b. From time to time, respective governments have constituted various committees, to
give recommendations to solve the issue of communal violence. Prominent among them
are SACHAR COMMITTEE, NANAVATI COMMITTEE and RANGANATH
MISHRA COMMISSION.
c. The Nanavati-Mehta commission, set up by Gujarat government in 2002 to enquire
about Gujarat violence.
d. Sachar committee, appointed in 2005, recommended to set up Equal opportunity
commission (EOC) in 2010. EOC was to set up a grievance redressal mechanism for
all individual cases of discriminations- religion, caste, gender & physical ability among
others.
e. The Ranganath Misra Commission was entrusted by the Government of India to
suggest practical measures for the upliftment of the socially and economically
backward sections among religious and linguistic minorities and to include the
modalities of implementation for the same. The report of the National Commission for
Religious and Linguistic Minorities, headed by former Chief Justice of India Rangnath
Mishra, says that 10% should be reserved for Muslims and five% for other minorities
in central and state government jobs in all cadre and grades.
The purpose of all above committees is to give recommendations to find out the causes of
backwardness of minorities and steps required to improve their conditions

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XII. NEW CHALLENGES
a. Though India is under the grip of communal violence, but till now, other than provisions
under IPC and CrPC, there is no firm law to punish the originators of such violence,
no clear policy for relief and rehabilitation of victims.
b. There are no regulations for security of witness, for accountability of public servants,
etc.
c. ‘Prevention of Communal and Targeted Violence (Access to Justice and
Reparations) Bill, 2011’ lapsed in the parliament.
d. The bill provided for a seven-member National authority for communal harmony,
justice and reparations. It attempted to safeguard the minority sections. It had provisions
for ensuring accountability of the district administration. This has already been
recommended by the Sachar committee and Raganath Mishra Commission.

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 UNIT 25 – Cultural & Educational Rights

COURSE OUTLINE
I] Article 29

II] Article 30

III] Cases
1. Re: Kerala Education Bill, AIR 1958 SC 956
2. Ahmedabad St. Xavier’s College Society v. State of Gujarat, AIR 1974 SC

I. MINORITY COMMUNITIES IN INDIA

According to Union Government of India, Section 2 (C) of Minorities Act identifies Six
religious communities, viz; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and
Jains have been notified as minority communities in India
a. The Government of India has taken several steps for the existence and overall
development of various religious communities in India.
b. National Commission for Minorities (NCM) was set up by the Union Government of
India in 1992 to protect the existence of minorities all over India.
c. The commission looks after the minority communities of India under National
Commission for Minorities Act, 1992.
d. According to Union Government of India, six religious communities, viz; Muslims,
Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified as
minority communities in India.
e. The states of Andhra Pradesh, Assam, Bihar, Chattisgarh, Delhi, Jharkhand, Karnataka,
Maharashtra, Madhya Pradesh, Manipur, Rajasthan, Tamil Nadu, Uttarakhand, Uttar
Pradesh and West Bengal have set up Minorities Commission to look after the issues
related to Minorities in respective states.
f. All the people falling under Minority communities in India get benefits in education
and employment opportunities.
g. Regional Minorities have set up various education schools and institutions to promote
their culture and language.

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 h. In Addition, they are entitled to reserve a specific quota of seats (for students and
teachers) for people belonging to their own communities. There are various
Government schemes which provide direct aid to educational institutions promoting
regional communities in India.

II. WHY RECOGNITION REQUIRED

a. The recognition and protection rights under a legal Framework has two-fold objectives.
b. Firstly, to prevent that from being oppressive against the minorities has in a democratic
setup government is run by majority.
c. Secondly, to provide the minority a protective zone where by they can preserve their
separate identity while contributing in national development and progress.

III. ARTICLE 29: PROTECTION OF INTEREST OF MINORITY

a. This article is intended to protect the interests of minority groups.
b. Article 29(1): This provides all citizen groups that reside in India having a distinct
culture, language, and script, the right to conserve their culture and language. This right
is absolute and there are no ‘reasonable restrictions’ in the interest of the general public
here.
c. Article 29(2): The State shall not deny admission into educational institutes maintained
by it or those that receive aids from it to any person based on race, religion, caste,
language, etc.
d. This right is given to individuals and not any community.

IV. NATURE OF ARTICLE 29

a. Art 29(1) does not speak about any specific religion, even though the marginal note
does mention about the minorities
b. The Supreme Court in TMA Pai Foundation case specifically stated that, who is the
minority will be decided by the State!
c. Art 29 (2) this provision basically guarantees the right to citizen as an individual
irrespective of the community to which he/she belongs

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V. ARTICLE 29(1)
a. Conservation of
1. Script
2. Culture
3. Language
b. Any section of citizen!
c. India or Any part of India!
d. (Majority + Minority)

VI. SCOPE OF ARTICLE 29(1)

a. JAGDEV SINGH V. PRATAP SINGH (AIR 1965 SC 183) – S. 123 (3)
of RPA mentions that an appeal by a candidate to vote, or refrain from voting, for a
person on the ground of language is a corrupt practise.
b. The Supreme Court in this case emphasized that – S. 123(3) has to be read with Art
29(1) to construe it not to be violative of fundamental right.
c. But Art 29(1) includes “right to agitate for the protection of the language” – making
promises by the candidate to work for the protection and conservation of the electorate’s
language does not amount to a corrupt practises – this right is absolute and is not
subjected to restrictions like u/A 19 (1)

VII. CASE LAWS

a. DAV COLLEGE, JULLUNDHUR V. STATE OF PUNJAB
1. To promote research on teachings of Guru Nanak Dev, it was required that it is
done in Punjabi language – the court held that it doesn’t infringe Art. 29(1)
2. The states are more or less divided based on the language preferences, hence the
concerned State or the university within that state has every right to provide for
education of the majority in regional medium
3. Subject to restrictions mentioned u/A 25- 30 , promotion of majority language
does not mean stifling of the minority language or script
4. The provisions of the Act were also challenged on the ground that the colleges
administered by other minority groups like Arya Samaj , but affiliated to university

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 would be compelled to study religious teachings of Guru Nanak, which would
amount to violation of Art 29 – SCI rejected this plea saying that – there is no
mandate in the provisions of the Act compelling affiliated colleges to either study
religious teachings of Guru Nanak or to adopt in any way the culture and traditions
of Sikhs

b. USHA MEHTA V. STATE OF MAHARASHTRA

1. The Constitutional validity of imposition of “Marathi” language as a compulsory
study in schools run by linguistic minorities was questioned – the Court in this
relied on “3 language formula”
2. The right of minorities to establish and administer an educational institution of
their choice u/A 30 (1) r/w 29 (1) would include the right to have a choice of
medium of instruction in imparting education

VIII. ARTICLE 30 – RIGHT OF MINORITIES TO ESTABLISH AND

ADMINISTER EDUCATIONAL INSTITUTITONS
a. This right is given to minorities to form and govern their own educational institutions.
Article 30 is also called the “Charter of Education Rights”.
b. Article 30(1): All religious and linguistic minorities have the right to establish and
administer educational institutions of their choice.
c. Article 30(2): The State should not, when 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.

IX. WHO IS MINORITY?

a. Re: The Kerala Education Bill (1958)
1. The Supreme Court held that minority means a community which is less than 50%
in the state – but of what? Was not clearly mentioned – but –
2. The Court stated that “minority” will be determined only in relation to the
particular legislation , which is being challenged i.e., if a state law is being

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 challenged, where this law extends to whole of that state, then the question of
minority will be determined with reference to the entire population of the State
3. Thus, Christian community being 20% of the entire population of Kerala was a
minority there.

X. T.M. PAI FOUNDATION V. KARNATAKA

a. Linguistic minorities were created because of re-organisation of states on the basis of
language
b. A linguistic minority for the purpose of Art. 30 will be determined in relation to the
State in which the educational institution is sought to be established
c. Further the position with regards to “Religious minority” is similar, since bot, religious
minority and linguistic minority have been put at par u/A 30
d. Therefore, test for determining who are linguistic or religious minority within the
meaning of Art 30 would be one and the same either in relation to the State legislation
or Central legislation

XI. ARTICLE 29(2)

a. The benefits of Art. 29 (2) not confined to only the minority but extends to all the
citizens whether they belong to majority or minority in matter of admission to the
educational institutes maintained or aided by State –
b. By limiting this right only to the minority groups will amount to holding that the citizens
of majority group do not have right to join such institutions run by minority groups
c. STATE OF MADRAS V. CHAMPAKAM

d. STATE OF BOMBAY V. BOMBAY EDUCATION SOCIETY

XII. ARTICLE 30(1)

a. Establishing and administering educational institution of own choice
b. (Minority)
c. Type of Education: Secular
d. Reservation Policy of State: No
e. Right to be recognised: Yes
f. Right to charge fees: Yes, but not for profits

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 g. Right to property: Yes

XIII. ARTICLE 30(2)

State shall not discriminate against the minority institutions in granting aids to the educational
institutions on the ground that they are under the management of the minority community

XIV. WAY FORWARD

i. To provide a sense of security and the feeling of confidence to the minorities by giving
special rights and privileges in a democratic country.
ii. Regular checks and balances safeguards and guarantee to protect the rights of minorities
in terms of cultural and educational rights and others must be done.
iii. Recommendations from educational institutions that are run by minorities are to be
taken to guarantee Article 29 and 30 to the minorities.
iv. Students from non-minority groups should not be forced to attend any prayers in
educational institutions
v. The minority group should be given the right to manage and govern a body related to
education.
vi. Besides giving rights to minorities it is also important to take care that those rights are
not being misused.
vii. Scheduled castes, Scheduled Tribes and other backward classes admissions to any
institution shall be allowed to be run by minorities.

XV. LANDMARK JUDGMENTS

a. Re Kerala Education Bill
1. There was an education bill that was introduced in the Kerala assembly by the
education minister, Professor Joseph Mundasseri. Several provisions of the bill
seemed to challenge the constitutional validity. Therefore, when the bill was
reserved for the consideration of the president, he used the power under Article 143
of the constitution and referred the case to the supreme court for its opinion.

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 2. The Supreme court’s opinion in this was considered to be one of the most significant
steps taken to protect the rights of minorities in India
b. CHAMPAKAM DORAIRAJAN VS THE STATE OF MADRAS
This case was regarding the admission of students to medical and engineering colleges of
Madras. The province of Madras was having an issue with the order of fixation of the number
of seats for particular communities. The Supreme Court, in this case, rejected reservation for
minorities on the communal ground
c. ST. STEPHEN’S COLLEGE VS UNIVERSITY OF DELHI
Supreme Court, in this case, held that Saint Stephen’s College is a minority institution which
is entitled to protection under Article 30(1). The decision was taken by the court keeping in
view the history of the establishment of the college.
d. S. AZEEZ BASHA VS UNION OF INDIA
The 1965 amendment was challenged in this case before the constitutional bench of the
Supreme Court of India. This is one of the most controversial judgments which raised doubt in
the minds of Minorities about the faith of institutions.

XVI. PROBLEMS FACED BY MINORITIES IN INDIA

a. PROBLEM OF IDENTITY:
1. Because of the differences in socio-cultural practices, history and backgrounds,
minorities have to grapple with the issue of identity.
2. This gives rise to the problem of adjustment with the majority community.
b. PROBLEM OF SECURITY:
1. Different identity and their small number relative to the rest of the society develop
feeling of insecurity about their life, assets and well-being.
2. This sense of insecurity may get accentuated at times when relations between the
majority and the minority communities in a society are strained or not much cordial.
c. PROBLEM RELATING TO EQUITY
1. The minority community in a society may remain deprived of the benefit of
opportunities of development as a result of discrimination.
2. Because of the difference in identity, the minority community develops the
perception of the sense of inequity.
d. LACK OF REPRESENTATION IN CIVIL SERVICE AND POLITICS

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 1. the Constitution provides for equality and equal opportunities to all its citizens
including the religious minorities
2. the biggest minority community, that is, Muslims have a feeling among them that
they are neglected
3. However, such a feeling does not seem to exist among the other religious minority
communities such as the Christians, Sikhs, Jains and Buddhists, for they seem to be
economically and educationally better than the majority community.
e. FAILURE TO STICK ON STRICTLY TO SECULARISM
1. India has declared itself as a ͞secular͟ country . But in actual practice there is lack
of commitment to secularism, purely religious issues are often politicised by these
parties.
f. PROBLEM OF COMMUNAL TENSIONS AND RIOTS
1. Communal tensions and riots have been incessantly increasing since
independence.
2. Whenever the communal tensions and riots take place for whatever reason,
minority interests get threatened

XVII. CAUSES FOR ANGER AGAINST MINORITIES

a. Socio-economic rise of lower strata of society constitutes a major change in social
scenario and is unacceptable to a few
b. The backward classes not having access to proper education have had the privileges of
reservation, which takes a large proportion of seats either in jobs or schools/colleges-
this makes people in general category hostile towards the reserved sections, especially
the minorities.
c. Inability of the government to create better employment opportunities for the large
section of youth has created economic backwardness
d. cultural / religious revivalism and glorification

XVIII. GOVERNMENT INITIATIVES

The Government has taken various steps to improve socio-economic and educational status of
minority communities

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 i. Prime Minister’s New 15 Point Program
1. Prime Minister’s New 15 Point Program for the Welfare of Minorities overarching
programme covering various schemes/ initiatives of different Ministries/ Departments
2. Earmarking 15% of targets/ outlays for the minorities or specific monitoring of flow
of benefits/funds to minorities or areas with substantial minority population.
3. The programme is being implemented with the objectives of enhancing opportunities
for education of minorities
4. ensuring equitable share for minorities in economic activities and employment
5. improving the condition of living of minorities
6. preventing and controlling the communal disharmony
ii. National Commission for Minorities (NCM) was set up by the Union Government of India
in 1992 to protect the existence of minorities all over India.
iii. USTAAD
1. The Scheme aims at upgrading Skills and Training in preservation of traditional
Ancestral
2. Arts/Crafts of minorities.
iv. Hamari Darohar: The Scheme aims to preserve rich heritage of minority communities in
context of Indian culture.
v. Khwaza Garib Nawaz Senior Secondary School will be established at Ajmer by Maulana
Azad Education Foundation (MAEF) to give a fillip to minority education.
vi. Nai Manzil
1. A bridge course to bridge the academic and skill development gaps of the deeni
Madrasa pass
2. outs with their mainstream counterparts.
vii. Strengthening of State Wakf Boards
1. The scheme envisages to provide assistance for meeting the training and administrative
cost of State Wakf Boards
2. Removal of encroachment from Wakf Properties and also strengthening of
Zonal/Regional offices of Wakf Boards.
viii. Nai Roshni
1. The scheme is envisaged to reach out to women through nongovernmental
organizations who will be provided with financial support
2. conducting leadership development trainings so that women are empowered and
emboldened to move out of the confines of home and community

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ix. Minority Cyber Gram
1. The MCG programme seeks to introduce digital literacy skills in identified minority
clusters in India
2. through designated Digital Fellows towards knowledge empowerment and entitlement
gains of minority focused groups and beneficiaries

XIX. ARTICLE 31
Article 19(1)(f) Right to acquire, hold and dispose of property and Article 31 were repealed by
the Constitution 44th Amendment Act 1978.
A new part was inserted in Part XII of the Constitution and right to property has been
transferred as Article 300 A. The main points are:
i. Right to Property is not a fundamental right but a Constitutional right
ii. One cannot approach supreme court for remedy under article 32 on violation of
his / her right to property because it is not a fundamental right.

a. Doctrine of Eminent Domain is a concept in the American Constitution. It is the acquisition

of private property by the state for a public purpose with paying certain amount of
compensation. Initially when India got Independence, the legislature to abolish the
Zamindari System, enacted various laws through which it took the property from various
land holders and used it for public purpose. Many a times mala-fide intention can be seen
achieved through this doctrine.
b. There are two essentials of the Doctrine of Eminent Domain:
1. Property is taken for public use
2. Compensation is paid for the property taken.
c. In Indian Constitution, Entry 42 of List III speaks about ‘acquisitioning and requisitioning
of property’. In the case of STATE OF BIHAR V KAMESHWAR SINGH ,
Supreme Court defined eminent Domain as “the power of a sovereign to take property for
public use without the owner’s consent upon making just compensation.”
d. Article 31A, 31B and 31C as well as Art. 300A are the existing constitutional provisions
concerning private property.
e. 31B – Validity of laws - In WAMAN RAO V. UNION OF INDIA , the court held
that amendments in the Ninth schedule made before the decision of

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 KESHAVANANDA BHARTI V. STATE OF KERALA that is before
24.04.1973 were beyond challenge but the amendments made afterwards could be tested
on the grounds of amendment of basic structure
f. Art. 31 C - This article was inserted by the 25th Constitutional Amendment to get over the
difficulties placed by judicial decisions in the way of giving effect to the Directive
Principles in Part IV. It provided immunity from any challenge on the grounds of violation
of Article 14, 19 and 31 any law.
g. in KESHAVANANDA BHARTI V STATE OF KERALA ,Art. 31C was held
to be partially unconstitutional, the second part of Article 31C was held unconstitutional on
the ground that it ousted the jurisdiction of the Courts which is a basic feature of the
constitution and which cannot be done away with an amendment under Article 368.
h. IR COHELLO V. ST. OF TN - the Supreme Court held that any law which infringes
basic structure of the Constitution can be struck down. Parliament has power to amend Part
III so as to abridge or take away fundamental rights but that power is subject to the
limitation of basic structure doctrine. There should be a balance between fundamental rights
and Directive Principles of State Policy.

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 UNIT 26 – Right to Constitutional Remedies

COURSE OUTLINE
I] Right to Constitutional Remedies
1. Article 32: Writs
2. Locus Standi
3. Public Interest Litigation

II] Cases
1. Centre for PIL v. Union of India, AIR 2011 SC 1267
2. State of West Bengal v. Committee for protection of Democratic Rights, AIR 2010
SC 1476
3. Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771
4. State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2551

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 UNIT 27 – Directive Principles of State Policy & Fundamental
Duties

COURSE OUTLINE
I] Directive Principles of State Policy
1. Welfare State

II] Cases
1. M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699
2. Hussainara Khatoon v. Home Secretary State of Bihar, AIR 1979 SC 1369
3. Khatri (II) v. State of Bihar, AIR 1981 SC 928

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 UNIT 28 – Directive Principles of State Policy & Fundamental
Duties

COURSE OUTLINE
I] Directive Principles of State Policy
1. Uniform Civil Code

II] Cases
1. Sarla Mudgal v. UOI, 1995 AIR 1531
2. Lily Thomas v. UOI, (2000) 6 SCC 224
3. Danial Latif v. Union of India, AIR 2001 SC 3262
4. John Vallamaltom v. UOI, AIR 2003 SC 2902
5. Shayara Bano v. Union of India, (2017) 9 SCC 1

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 UNIT 29 – Directive Principles of State Policy & Fundamental
Duties

COURSE OUTLINE
I] Directive Principles of State Policy
1. Harmonious Construction with Fundamental Rights

II] Cases
1. Chandra Bhavan Boarding & Lodging, Bangalore v. State of Mysore, AIR 1970
SC 2042

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 UNIT 30 – Fundamental Duties

COURSE OUTLINE
I] Article 51A

II] Cases
1. Ram Prasad v. State of U.P., AIR 1988 All 309
2. AIIMS Students Union v. AIIMS, AIR 2001 SC 3262
3. Hon’ble Shri Rangnath Mishra v. Union of India, JT 2003 (7) SC 206

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