FR & DPSP

RENAISSANCE UNIVERSITY
SCHOOL OF LAW
UNIT I
Concept and Evolution of Fundamental
Rights
SYNOPSIS
MEANING AND NATURE OF FUNDAMENTAL RIGHTS
EVOLUTION OF FUNDAMENTAL RIGHTS IN UK, USA AND IN INDIA
METHODS OF GUARANTEEING FUNDAMENTAL RIGHTS THROUGH

WRITTRN AND UNWRITTEN CONSTITUTION
SCOPE AND LIMITATION OF FUNDAMENTAL RIGHTS –STATE ACTION AND
JUDICIAL REVIEW
MEANING AND NATURE OF FUNDAMENTAL RIGHTS
MEANING
India guarantees a set of rights considered essential for protecting human dignity which is
known as Fundamental Rights. The Fundamental Rights, as embedded in the Indian
Constitution, ensure equal and fair treatment of the citizens before the law. The rights that are
basic to the advancement of the human race are called Fundamental Rights. All other rights
are derived from these rights as direct implications or application of their principles. It is an
accepted belief among the philosophers that these rights are nothing but “natural human
rights”, which distinguish between humans and animals and which have been so instrumental
in bringing humans from the Stone Age to the present age. Among all, the right to life and
liberty is considered to be the most basic.
Fundamental Rights are claims that are essential for the existence and development of
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individuals. In that sense there will be a long list of rights. Whereas all these are recognized
by the society, some of the most important rights are recognized by the State and enshrined in
the Constitution. Such rights are called fundamental rights. These rights are fundamental
because of two reasons.
These are mentioned in the Constitution which guarantees them; and
1. These are justifiable, i.e. enforceable through courts.
Being justifiable means that in case of a violation of any of the fundamental rights the
individual can approach courts for their protection.
Fundamental rights are enshrined under part III of the Indian Constitution which was adopted
on 26th November 1949 but was put on use on 26th January 1950. These Fundamental rights
guarantee that every citizen of this nation can live a life of peace and harmony throughout the
territory of India and these rights were included in the constitution because they were
considered to be essential for the development of each and every individual. People of all
races, religion, caste, or sex, have been given the right to move to the Supreme Court or the
High Court for the enforcement of these rights.
The fundamental rights were included under Part III of the Indian Constitution because they
were considered essential for the development of the personality of every individual and to
preserve human dignity. These Fundamental Rights guarantee to each citizen basic
substantive and procedural protections from any arbitrary state actions, but some rights are
enforceable against individuals. For instance, the Constitution abolishes untouchability and
also prohibits begar. These provisions act as a check both on state action as well as the action
of private individuals. However, these rights are not absolute or uncontrolled and are subject
to reasonable restrictions as necessary for the protection of general welfare. They can also be
selectively curtailed. Part III of the Indian Constitution guarantees six fundamental rights to Indian
citizens which are as follows:
FUNDAMENTAL RIGHTS
RIGHT TO EQUALITY (Article 14 – 18)
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RIGHT TO FREEDOM (Article 19 – 22)
RIGHT AGAINST EXPLOITATION (Article 23 – 24)
RIGHT TO FREEDOM OF RELIGION (Article 25 – 28)
CULTURAL AND EDUCATIONAL RIGHT (Article 29 – 30)
RIGHT TO CONSTITUTION REMEDIES (Article 32)
Fundamental rights are a core concept in legal and political theory, and they refer to
a set of individual rights and freedoms that are considered essential for the
protection and well-being of individuals within a society. These rights are typically
enshrined in a country's constitution or legal framework and are legally protected.
Here are detailed explanations and definitions of fundamental rights:
Inherent Rights: Fundamental rights are often seen as inherent to human beings by
virtue of their humanity. This means that individuals possess these rights simply
because they are human, and they are not granted or created by the government or
any other authority. Inherent rights cannot be taken away or surrendered.
Universal: Fundamental rights are generally recognized as applying to all

individuals within a particular jurisdiction or territory, regardless of their
characteristics such as race, gender, religion, nationality, or social status. They are
universal in the sense that they are meant to protect the rights of every person.
Legal Protection: Fundamental rights are included in a country's constitution or legal
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framework, which provides a legal basis for their recognition and protection. This
means that individuals can seek legal remedies or take legal action if their
fundamental rights are violated.
Individual Autonomy: Fundamental rights are essential for safeguarding individual

autonomy and personal freedoms. They empower individuals to make choices about
their own lives, express their opinions, practice their beliefs, and protect their
personal well-being without unwarranted interference from the government or other
individuals.
LIMITATIONS
While fundamental rights are fundamental, they are not absolute. Governments may impose
reasonable limitations on these rights under certain circumstances, such as to protect public
safety, national security, or the rights of others. These limitations must be justified and
proportionate to the goals they aim to achieve.
Negative and Positive Rights: Fundamental rights can be categorized into two main types:
Negative Rights: These rights protect individuals from government interference or actions by
others. Examples include the right to free speech (freedom from censorship) and the right to not
be subjected to torture (freedom from cruel and unusual punishment).
Positive Rights: These rights require the government to provide certain services, opportunities,
or protections to individuals. Examples include the right to education, the right to healthcare, and
the right to a fair trial.
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Constitutional Protection: In many democratic countries, fundamental rights are enshrined in
the nation's constitution to provide them with a high level of legal protection. Constitutional
provisions make it more difficult for the government to amend or violate these rights, and they
often require a specific legal process, such as constitutional amendments, to make any changes.
Social Contract Theory: The concept of fundamental rights is often associated with the social
contract theory, where individuals agree to live under a government's authority in exchange for
the protection of their basic rights and freedoms. In this social contract, the government is
entrusted with the responsibility to uphold and protect these rights.
Examples of fundamental rights may include the right to life, liberty, and security of
the person; freedom of speech, religion, and assembly; the right to a fair trial;
protection against discrimination; and more. The specific rights recognized as
fundamental can vary from one country to another, and they reflect the values and
priorities of each society.
NATURE OF FUNDAMENTAL RIGHTS
The nature and meaning of fundamental rights can vary from one country to another,
but there are some common principles that underlie them:
Inherent and Inalienable: Fundamental rights are considered inherent to every

individual by virtue of their humanity, and they cannot be taken away or
surrendered. They are often described as inalienable because they cannot be
transferred or given up willingly.
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Universal: Fundamental rights are typically granted to all individuals within a

country's jurisdiction, regardless of their race, gender, religion, nationality, or other
characteristics. They apply to everyone equally.
Legal Protection: Fundamental rights are enshrined in a country's constitution or

legal framework, and they are usually protected and enforceable through the legal
system. This means that individuals can seek legal remedies if their rights are
violated.
Limitations: While fundamental rights are essential, they are not absolute.
Governments may impose reasonable limitations on these rights in certain
circumstances, such as to protect public safety or national security. However, these
limitations must be justifiable and proportional.
Positive and Negative Rights: Fundamental rights can be categorized into two main
types - negative rights and positive rights. Negative rights (e.g., freedom of speech,
freedom from torture) protect individuals from government interference, while
positive rights (e.g., right to education, right to healthcare) require the government to
provide certain services or opportunities.
Constitutional Protection: In many democratic countries, fundamental rights are

often entrenched in the country's constitution to ensure that they are not easily
amended or violated by the government. This constitutional protection helps
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safeguard these rights from political changes and government actions.
Social Contract: The concept of fundamental rights is often rooted in social contract
theory, where individuals agree to live under a government's authority in exchange
for the protection of their basic rights and freedoms.
Examples of fundamental rights may include the right to life, liberty, and security of
the person, freedom of speech, religion, and assembly, the right to a fair trial, and
protection against discrimination.
It's important to note that the specific rights recognized as fundamental and their
interpretation can vary from one country to another. Fundamental rights play a
crucial role in ensuring the protection of individual freedoms and the promotion of
social justice within a society.
EVOLUTION OF FUNDAMENTAL RIGHTS IN UK, USA AND IN INDIA
THE ORIGIN AND CONCEPT OF FUNDAMENTAL RIGHTS IN THE

CONSTITUTIONS OF US UK AND INDIA
Since the 17th Century, human thinking has been veering round to the theory that
man has certain essential, basic, natural and inalienable rights or freedoms and it is
the function of the state to recognize these rights and freedoms and allow them a free
play, in order that human liberty may be preserved, human personality be developed
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and an effective social and democratic life be promoted. Through this paper an
attempt has been made to make a comparative study of the concept of fundamental
rights in US, UK and India.
LOCKEIAN CONCEPT OF RIGHTS

The concept of human rights can be traced back to the Natural law philosophers,
such as Locke and Rousseau. The Natural law philosophers philosophized over such
inherent human rights and sought to preserve these rights by propounding the theory
of ‘Social Contract’. According to Locke, man is born “with a title to perfect
freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of
Nature.” and he has by nature a power – “to preserve his property- that is, his life,
liberty and estate against the injuries and attempts of other men.”
EARLIER RECOGNITION OF BASIC RIGHTS

As early as in 1215, the English people exacted an assurance from King John for
respect of the then ancient liberties. The MAGNA CARTA is the evidence of their
success which is a written document. This is the first written document relating to
the fundamental rights of citizens. In 1689, the BILL OF RIGHTS was written
consolidating all important rights and liberties of the English people. The
DECLARATION OF THE FRENCH REVOLUTION, 1789 provided that, “the aim
of all political association is the conservation of the natural and inalienable rights of
man.”
CONSTITUTIONAL RECOGNITION: - THE PROCESS BY WHICH BASIC
RIGHTS BECAME FUNDAMENTAL RIGHTS
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The underlying idea in entrenching certain basic rights is to take them out of the
reach of the transient political majorities. It has, therefore, come to be regarded as
essential that these rights be entrenched in such a way that they may not be violated,
tampered or interfered with by an oppressive government. With this end in view,
some written constitutions guarantee a few rights to the people and forbid
governmental organs from interfering with the same. In that case, a guaranteed right
can be limited or taken away only by the elaborate and formal process of the
constitutional amendment rather than by ordinary legislation. These rights are
characterized as fundamental rights.
FUNDAMENTAL RIGHTS IN THE US CONSTITUTION

The modern trend of guaranteeing fundamental rights to the people may be traced to
the Constitution of the USA. The original constitution as drafted in the year 1787 did
not contain any fundamental right. There was trenchant criticism of the US
Constitution on this point. Following the spirit of the MAGNA CARTA of the
British and the DECLARATION OF THE RIGHTS OF MAN AND THE
CITIZENS OF FRANCE, the Americans incorporated the BILL OF RIGHTS in
their constitution in the year 1791 in the form of TEN AMENDMENTS and thus the
Americans were the first to give Bill of Rights a constitutional status.
PURPOSE
In West Virginia State Board of Education v. Barnette, JUSTICE JACKSON
explaining the nature and purpose of Bill of Rights in the USA observed:“The very
purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes
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of political controversy, to place them beyond the reach of majorities and officials,
to establish them as legal principles to be applied by the courts. One’s right to life,
liberty and property, to free speech, a free press, freedom of worship and assembly
and other fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.”
FUNDAMENTAL RIGHTS IN BRITAIN

Initially, till the year 1998, there was no formal declaration of people’s fundamental
rights in Britain. The orthodox doctrine of the sovereignty of Parliament was
prevailing there which did not envisage any legal check on the power of the
Parliament. There was concept of Rule of Law which represents, in short, the thesis
that the executive is answerable to courts for any action which is contrary to the law
of the land. There was an ever growing realization that guaranteed civil rights do
serve a useful purpose and that, Britain should also have a written Bill of Rights. On
July 7, 1975 a resolution was moved in the House of Commons demanding that
England should have a Bill of Rights. Later on Britain had accepted the European
Charter on Human Rights. But this was not good enough because the Charter did not
bind the Parliament but could be used only to interpret the local law. What was,
therefore, necessary was a Bill of Rights which could curb parliamentary legislative
power.
FUNDAMENTAL RIGHTS IN BRITAIN
Initially, till the year 1998, there was no formal declaration of people’s fundamental
rights in Britain. The orthodox doctrine of the sovereignty of Parliament was
prevailing there which did not envisage any legal check on the power of the
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Parliament. There was concept of Rule of Law which represents, in short, the thesis
that the executive is answerable to courts for any action which is contrary to the law
of the land. There was an ever growing realization that guaranteed civil rights do
serve a useful purpose and that, Britain should also have a written Bill of Rights. On
July 7, 1975 a resolution was moved in the House of Commons demanding that
England should have a Bill of Rights…. Later on Britain had accepted the European
Charter on Human Rights. But this was not good enough because the Charter did not
bind the Parliament but could be used only to interpret the local law. What was,
therefore, necessary was a Bill of Rights which could curb parliamentary legislative
power.
ENACTMENT OF THE HUMAN RIGHTS ACT, 1998
Ultimately, the British Parliament enacted the Human Rights Act, 1998. The purpose
of the Act is to give effect to the rights and freedoms guaranteed under the European
Convention on Human Rights. The Act incorporates the Convention in Schedule I.
These are the rights to which the Act gives effect. All legislation, so far as possible,
is to be read and given effect to in a way which is compatible with Convention
Rights [Section 3(1) (a)]. The Act is a significant constitutional innovation.
FUNDAMENTAL RIGHTS IN INDIA

Coming to India, a few good reasons made the enunciation of the fundamental
rights in the Constitution rather inevitable. Firstly, the main political party, the
Congress, had for long been demanding these rights against the British rule. During
the British rule in India, human rights were violated by the rules on a very wide
scale. Therefore, the framers of the Constitution, many of whom had suffered
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incarceration during the British regime, had a very positive attitude towards these
rights. Secondly, the Indian society is fragmented into many religions, cultural and
linguistic groups and it was necessary to declare fundamental rights to give to the
people a sense of security and confidence.
IMPACT OF THE US CONSTITUTION
The constitution of USA has been the source of inspiration for the inclusion of
fundamental rights in the Constitution. The original US Constitution did not contain
any provision relating to fundamental rights, however, in the year 1791 the Bill of
Rights was incorporated in the US Constitution in the form of ten amendments, and
thus, the Americans became the first to give the Bill of Rights a constitutional status.
When the Indian constitution was being framed the background for the incorporation
of Bill of Rights was already present. The framers took inspiration from this and
incorporated a full Chapter in the Constitution dealing with fundamental rights. But,
the fundamental rights contained in Part III of the Constitution of India differ from
the US Bill of Rights. DIFFERENCE BETWEEN PART III OF THE INDIAN
CONSTITUTION AND THE US BILL OF RIGHTS- While the declarations in the
American Bill of Rights are absolute and the power of the state to impose restriction
upon the fundamental rights of the individual in the collective interests had to be
evolved by the Judiciary. In India, this power of imposing restrictions has been
expressly conferred upon the legislature by the Constitution itself, in the case of the
major fundamental rights, of course, leaving a power of judicial review in the hands
of the judiciary to determine the reasonableness of the restrictions imposed by the
legislature.
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NEED FOR FUNDAMENTAL RIGHTS
Fundamental rights were deemed essential to protect the rights and liberties of the
people against the encroachment of the power delegated by them to their
government. They are limitations upon all the powers of the government, legislative
as well as executive and they are essential for the preservation of public and private
rights. These rights are regarded as fundamental because they are most essential for
the attainment by the individual his full intellectual, moral and spiritual status. The
negation of these rights will keep the moral and spiritual rights stunted and his
potentialities underdeveloped. Part III of the Constitution serves as remainder to the
government in power that certain liberties assured to the people by the Constitution
are to be respected. The object behind the inclusion of Part III in the Constitution is
to establish a government of law and not of man.
NEED FOR FUNDAMENTAL RIGHTS AND OBSERVATION OF THE
SUPREME COURT
In Daryao v. State of U.P the SC observed that, “the fundamental rights are intended
not only to protect individual’s rights but they are based on high public policy.
Liberty of the individual and the protection of his fundamental rights are the very
essence of the democratic way of life adopted by the Constitution……”
In Golak Nath v. State of Punjab, the SC held that, Part III of the Constitution of
India guarantees certain fundamental rights because they are considered necessary
for the development of human personality. These rights enable a man to chalk out
his own life in the manner he likes best.
In Maneka Gandhi v. Union of India, SC observed that, fundamental rights are
calculated to protect the dignity of the individual and creates conditions in which
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every human being can develop his personality to the fullest extent.
FUNDAMENTAL RIGHTS- TO WHOM AVAILABLE

Part III of the Constitution of India deals with various fundamental rights in its
Articles 12-35. The fundamental rights in Articles 15, 16, 19, 29 and 30 are available
only to citizens, while the rights guaranteed by other Articles are available to the
citizens and non-citizens alike. FUNDAMENTAL RIGHTS- AGAINST WHOM
AVAILABLE- Most of the fundamental rights in Part III of the Constitution of India
are available against the State only but some of them are also available against the
private individuals. For example- the fundamental rights gu8aranteed in Articles 14,
15(1), 16, 18(1), 19, 20, 21, 22, 25, 26, 27, 28, 29 and 30 are available against the
State only. While the fundamental rights guaranteed in Articles 15(2), 17, 23(1) and
24 are available against the State as well as against the private individuals.
CLASSIFICATION OR KINDS OF FUNDAMENTAL RIGHTS IN INDIA

The fundamental rights guaranteed in Part III of the Constitution have been
classified in the following categories.
1. Right to Equality (Articles 14-18)
2. Right to Freedom (Articles 19-22)
3. Rights against Exploitation (Articles 23-24)
4. Right to Freedom of Religion (Articles 25-28)
5. Cultural and Educational Rights (Articles 29-30)
6. Right to Constitutional Remedies (Articles 32-35)
It is to be noted here that, the Right to Property guaranteed by Article 31 has been
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excluded from the list of fundamental rights by the Constitution (Forty fourth
Amendment) Act, 1978 with effect from 20-06-1979.
REMEDIES IN CASES OF VIOLATION OF FUNDAMENTAL RIGHTS

(ENFORCEMENT OF FUNDAMENTAL RIGHTS)
In the case of infringement of the fundamental rights special remedy has been
provided. Articles 32-35 deal with right to constitutional remedies in the cases of
violation or infringement of fundamental rights guaranteed in Part III of the
Constitution.
METHODS OF GUARANTEEING FUNDAMENTAL RIGHTS

THROUGH WRITTEN AND UNWRITTEN CONSTITUTUION
Fundamental rights are typically guaranteed through a combination of written and

unwritten constitution or legal principles. The specific methods may vary from one
country to another, but here are some common ways in which fundamental rights are
guaranteed:
WRITTEN CONSTITUTION
a. Bill of Rights: Many countries have a specific section within their written
constitution known as a Bill of Rights, which enumerates and protects fundamental
rights. The United States Bill of Rights and the European Convention on Human
Rights are examples of such documents.
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b. Constitutional Amendments: Some countries allow for the amendment of their
constitution, including the provisions related to fundamental rights. Amendments
can be used to expand or restrict these rights.
c. Judicial Review: Courts play a crucial role in upholding fundamental rights by
interpreting and enforcing constitutional provisions. The judiciary can strike down
laws that violate constitutional rights, setting important legal precedents.
d. Constitutional Courts: Some countries have specialized courts, like the Supreme
Court of the United States, that focus on constitutional matters, including the
protection of fundamental rights.
UNWRITTEN CONSTITUTION
a. Common Law: In countries with a common law tradition, fundamental rights can
be protected through judicial decisions and legal precedent. Courts rely on previous
rulings to make decisions on rights-related issues.
b. Conventions: Some constitutional principles are not explicitly written in a
constitution but are based on long-standing traditions or conventions. These
conventions can influence the protection of fundamental rights.
c. International Treaties and Agreements: Many countries are signatories to
international human rights treaties and conventions, such as the Universal
Declaration of Human Rights and the International Covenant on Civil and Political
Rights. These treaties can influence domestic laws and provide additional protection
for fundamental rights.
d. Parliamentary Acts: In some parliamentary systems, fundamental rights are
protected through acts of parliament, which can be amended by the legislative
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branch.
Customary Practices: In some countries, fundamental rights are protected through
customary practices and societal norms. These unwritten norms can influence
government actions and public behavior.
Public Awareness and Advocacy: Civil society organizations, activists, and the
public at large play a crucial role in advocating for the protection of fundamental
rights. Public awareness and advocacy efforts can influence policymakers and the
enforcement of rights.
Checks and Balances: The system of checks and balances, which is often a part of a
constitutional framework, ensures that no single branch of government becomes too
powerful and that fundamental rights are safeguarded. For example, the executive,
legislative, and judicial branches of government can check and balance each other.
Education and Civic Engagement: Promoting education and civic engagement can
help individuals understand their rights and responsibilities. A well-informed and
engaged citizenry is more likely to actively protect and assert their fundamental
rights.
It's important to note that the specific methods of guaranteeing fundamental rights
can vary significantly from one country to another, depending on their legal and
political systems. Additionally, the effectiveness of these methods may also depend
on the commitment of government institutions and the vigilance of the public in
upholding these rights.
DIFFERENCES BETWEEN UNWRITTEN CONSTITUTION AND THE

WRITTEN CONSTITUTION
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Unwritten Constitution Written Constitution
Unwritten constitution refers to the Written Constitution refers to the

constitution not codified in a constitution codified and compiled in a
structured manner. structured and cohesive manner.
Unwritten Constitution evolves over Written constitutions have been

a long period with a new set of laws properly framed and compiled in a
and guidelines being added as time step-by-step matter, with any
progresses. subsequent changes being added
almost instantaneously.
Rigid, flexible or both. Majorly flexible, however, there can be

instances where even the written
Constitution is rigid.
The Parliament is supreme in a The constitution is supreme.

country where there is an unwritten
constitution.
The judiciary has limited powers. The Judiciary has more power in order
to ensure constitutional supremacy.
The Magna Carta can be considered The Constitution of the United States
the earliest form of the unwritten of America is considered as the oldest
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constitution. It was a charter of written constitution, that is still in

rights signed by King John of force. It was drafted on September
England on 15th June 1215. The 17th, 1787, ratified on June 21st, 1788
charter promised to protect the rights and came into effect on March 4th,
of the nobility from the interference 1789. James Madison, one of the
of the crown. The Magna Carter founding fathers of the United States,
would eventually evolve into the wrote the document that formed the
unwritten constitution of the United model for the Constitution.
Kingdom.
WHAT IS JUDICIAL REVIEW?
Judicial Review refers to the judiciary’s power to interpret the Constitution and consider any law
or order of the legislature or executive invalid if it believes it violates the Indian Constitution.
Now the next point we are going to cover are the following:
Mechanism of Judicial Review
Role of Judicial Review

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Scope of Judicial Review
History of Scope of Judicial Review in India
Scope of Judicial Review of India under article 226
JUDICIAL REVIEW MECHANISMS
The following three aspects of judicial review are covered in India:
For legislative purposes
For Judicial action
For Administrative review
The Supreme Court of India declared these aspects of judicial review in the case of L. Chandra
Kumar v. Union of India, noting that judges of higher courts must interpret legislation so that
constitutional values are not disrupted. To accomplish this, judges must ensure that the
constitutionally mandated balance of power is maintained.
ROLE OF JUDICIAL REVIEW
To safeguard the Constitution’s promise of supremacy, judicial scrutiny is required.
The availability of judicial review prohibits the legislature and government from abusing their
powers.
It promotes federal equilibrium by preserving the balance between the center and the states.
The provision safeguards citizens’ fundamental rights.
This provision protects the idea of judicial independence.
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SCOPE OF JUDICIAL REVIEW
When the executive, judiciary, and legislature violate constitutional values and deny rights,
judicial review serves as a powerful safeguard. In the country, judicial evaluation is regarded as
a necessary characteristic.
There is a parliamentary form of democracy in India, in which all sections of the population
participate in the decision-making and policy-making process.
True, the Court’s principal responsibility is to apply the rule of law, which is the foundation of
social equality. The rule of law, which is to be applied by the courts, cannot be changed by
Parliament exercising additional powers.
Everyone here who is performing a public function is held accountable. They must act within the
bounds of the Indian Constitution’s democratic requirements.
It is a notion that embodies the separation of powers and the rule of law. Articles 226 and 227 of
the Indian Constitution and Articles 32 and 136 of the Indian Constitution have had a long-
standing influence on judicial assessment.
HISTORY OF SCOPE OF JUDICIAL REVIEW IN INDIA
The issue of Judicial Review of India was first examined before King v. Burah. The High Court
of Kolkata and the Council of Privy agreed that the courts of India had Judicial Review power
subject to specific constraints. The Supreme Court and the various High Courts of India have
been given the power to rule on the constitutionality of legislative and administrative actions
designed to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.
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According to Article 246 of the Constitution, read with the 7th schedule, the Union Parliament
and the State Legislatures have clear distinctions and a zone of intersection, so the higher courts
have the power to decide on questions of legislative competence, especially as they relate to
Center-State relations.”
JUDICIAL REVIEW OF INDIA UNDER THE ARTICLE 226
Article 226 of the Indian Constitution gives the High Court’s the ability to make orders,
instructions, and writs differently. According to Article 226(1), any High Court within India’s
territorial jurisdiction has the authority to issue directives, orders, and writs to any person or
authority, including the government, to implement basic rights and other legal rights within its
jurisdiction.
In circumstances when the cause of action is completely or partially within their local
jurisdiction, Article 226(2) gives the High Court’s the competence to issue orders, instructions,
and writs outside their local jurisdiction.
When a provisional order is issued in opposition to the respondent under Article 226 in the form
of a stay without:
Giving the respondent a copy of the petition and any supporting documents;
Allowing people to express themselves.
The High Court will decide on the application in two weeks after getting such application;
otherwise, within two weeks of the date on which the second party has received the application,
whichever is later if the respondent moves to the High Court to cancel the interim order and
provides a copy of such petition to the petitioner.
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CONCLUSION
We can conclude that Judicial review refers to the ability of an independent judiciary, or courts
of law, to decide whether the actions of other government components are constitutional. Any
action that violates the Constitution is deemed unconstitutional and so void. The Supreme
Court’s most well-known power, judicial review, or the Court’s capacity to declare a legislative
or executive action in violation of the Constitution, is not found in the Constitution’s language.
Therefore, the power given on the High Court under Article 226(4) is not in derogation of the
jurisdiction conferred on the Supreme Courts under Article 226.
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UNIT- 2
Forms of Fundamental Rights
SYNOPSIS
Right to Equality and protective discrimination
Privatization and its impact on affirmative action
Reservation in promotions and cost benefit analysis

Right to Freedom under article 19 and new challenges to freedom of
Press due to new scientific developments
Right to Equality
Each citizen of India is guaranteed the right to equality by Articles 14 to 18 of the
Constitution. Article 14 encapsulates the general standards of equality under the
watchful eyes of the law and restricts nonsensical and baseless separation between
people. The succeeding articles layout explicit utilization of the general standards
set down in Article 14. This article goes over the Right to Equality in India
covering every one of the articles that this Right exemplifies.
Equality Before Law
The idea of equality does not mean outright equality among individuals which is
practically unrealistic to accomplish. It is an idea implying the absence of any
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extraordinary benefit by reason of birth or the like for any individual, and furthermore
the equal subject of all individuals and classes to the ordinary law of the land. As Dr.
Jennings puts it: “Equality before the law implies that among equivalents the law ought
to be equivalent and ought to be similarly applied, that ought to be dealt with in a like
manner. The privilege to sue and be sued, to prosecute and be prosecuted for a similar
sort of activity ought to be the same for all residents of full age and comprehension
without refinements of race, religion, wealth, societal position or political impact.”
Equal Protection of the Laws
The assurance of equal protection of laws is like one encapsulated in the fourteenth
Amendment to the American Constitution. This has been translated to mean
subjection to equal law, applying to all in similar conditions. It just implies that all
people circumstanced in a similar footing will be dealt with in a like manner, both,
in terms of the benefits received by them and liabilities incurred by them which is
forced by the laws. Equal law ought to be connected to all in a similar
circumstance, and there ought to be no separation between one individual and
another. With respect to the topic of the legislation, their position is the same. In
this way, the rule is that the like ought to be dealt with in a like manner and not
that the unlike should be treated in a like manner. The rule of law forces an
obligation upon the State to take exceptional measures to counteract the fierceness
which can arise by police procedure.
REASONABLE CLASSIFICATION UNDER ART 14
Equality before the law or equal protection of the laws does not mean a similar
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treatment to everybody. As no two individuals are equal in all regards, a similar
treatment to them in each regard would bring about unequal treatment. For
instance, a similar treatment in all regards to a youngster as a grown-up, or to a
debilitated or physically impaired individual as to a person free of any health
problems, or to an affluent individual as to poor, will bring about unequal
treatment or treatment which no one will legitimize or endorse.
Consequently, the basic standard of equality isn’t the consistency of treatment to

all things considered equal, but instead to give them a similar treatment in those
regards where they are comparable and diverse treatment in those regards in which
they are not alike. Basically, it is expressed: Equals are to be dealt with in a similar
manner while unequals must be dealt with in a different way. For real-life
application of the principle of equality, all things considered, we should,
consequently, discriminate between the individuals who are equivalent and the
individuals who are not similar.
The aforementioned demarcation is known as Reasonable Classification and will

be discussed throughout the article. Yet, let us explain that despite the fact that no
two individuals are comparable in all regards, they are for the most part
comparative in one regard, in particular, they are generally human beings. In this
manner as people they require a similar treatment, they should all be treated as
people. In the Ancient Indian setting, as much as in Christianity and Islam,
regardless of whether we are created from various pieces of the body of that first
individual or God, we are for the most part God’s children. It is in this aspect that
we are all deemed as equals.
In this way, as we have noted all-around quickly and will note in a detailed and a
more comprehensive manner below, particularly under Articles 15 and 16 of the
Constitution of India, the meaning of equality is not just restricted to prohibiting
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unequal treatment but also requires equal treatment. A prerequisite obligation for
the state is to treat people unequally but in addition to that the state must also come
up with steps to eradicate the existing inequalities in the system especially the
inequalities which demarcate human beings within a superset of human beings.
This article does ensure equal protection of laws but that does not imply that all
laws must be general in character. It doesn’t imply that similar laws ought to apply
to all people. It doesn’t imply that each law must have all-inclusive application for,
all people are not, ordinarily, similarly situated. The fluctuating needs of various
classes of people regularly require separate treatment. From the very idea of
society, there ought to be various laws in various places and the Legislature
controls the strategy and orders laws to the greatest advantage of the wellbeing and
security of the State. Indeed, indistinguishable treatment in inconsistent conditions
would add up to be called inequality.
In this manner, what Article 14 precludes is class-legislation however it doesn’t

prohibit reasonable classification. The classification, under all circumstances, must
not be “discretionary or fake or shifty” however should be founded on some
genuine and significant qualification bearing a fair and reasonable connection to
the objective looked to be accomplished by the legislation. Article 14 applies
where people who are equal are dealt with contrastingly on no reasonable grounds.
In a situation where equals and unequals are treated differently, Article 14 does not
come into the picture. Class legislation is what makes an inappropriate segregation
by giving specific benefits upon a class of people discretionarily chosen from
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countless people, each one of whom remains in a similar connection to the benefit
conceded.
Right to equality of Opportunity in Public Employment: Article 16
Article 16 of the Indian Constitution guarantees equal opportunity to all citizens in

matters related to employment in the public sector. Article 16(1) state that there
shall be equal opportunity for the citizens in the matter of employment or
appointment to any office under the State. The provision of equality is only
applicable to the employment or offices which are held by the State. The State is
still free to lay down the requisite qualifications for the recruitment of employees
for the Government services. The Government can also pick and choose applicants
for the purpose of employment as long as the applicants have been given an equal
opportunity to apply for the Government service.
Article 16(2) lays down the grounds on which the citizens should not be
discriminated against for the purpose of employment or appointment to any office
under the State. The prohibited grounds of discrimination under Article 16(2) are
religion, race, caste, sex, descent, birthplace, residence, or any of them. The words
‘any employment or office under the state’ mentioned in clause 2 of Article 16
implies that the said provision refers only to public employment and to the
employment in the private sector.
Article 16(1) and (2) lay down provisions for equal opportunity of employment in
the public sector. However, it is stated in clause 3 of Article 16 that nothing in this
article shall prevent Parliament from making any law which prescribes to the
citizens who are appointed to any office under the State in regard to any
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requirements as to residence within that State or Union territory prior to
employment or appointment to any office under the State.
Article 16(4) of the Indian constitution provides for the reservation of services
under the State in favor of the backward class of citizens. The State shall decide
whether a particular class of citizens is backward or not. Therefore, the State shall
lay down acceptable criteria in order to ascertain whether a particular class of
citizens is a backward class or not.
MANDAL COMMISSION CASE

In Indra Sawhney v Union of India, AIR 1993 SC 477 case also popularly
known as the Mandal Commission Case, the Supreme Court dealt with various
aspects of the complex issue of reservation and gave out a very thoughtful
judgment.
Background:
On January 1, 1979 the Government headed by the Prime Minister Sri Morarji
Desai appointed the Second Backward Classes Commission under Article 340
of the Constitution under the Chairmanship of Sri B.P. Mandal (MP) to “study
the condition and representation of socially or educationally backward castes”
and recommend steps for their advancement, including desirability for making
provisions for reservation of seats for them in Government jobs.
The Mandal Commission concluded that there are 3743 castes in India which
are socially and educationally backward classes. India’s population consisted of
approximately 16 percent non- Hindus, 17.5 percent Brahmans and “forward
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castes,” 44 percent “other backward classes,” and 22.5 percent scheduled castes
and tribes. However, since the 16 percent non-Hindus presumably included
approximately the same proportion of “other backward classes” as did the
Hindus (i.e., another 8%), the total proportion of “other backward classes”
(Hindu and non-Hindu) came to 52 percent (44% + 8%) of India’s population,
therefore 27% government jobs should be reserved for them.
In the meantime, the Janata Government collapsed due to internal dissensions

and the Congress Party headed by the Prime Minister Smt. Indira Gandhi came
to power at the Centre. The Congress Government did not implement the
Mandal Commissioner report until 1989. In 1989 the Congress Party was
defeated in the Parliamentary elections and the Janta Dal again came to power
and decided to implement the Commission’s report as it had promised to the
electorate. Accordingly, the Government of India, headed by Prime Minister
Sri V.P. Singh issued the Office Memoranda on August 13, 1990, reserving 27
percent seat for backward classes in Government services on the basis of the
recommendations of the Mandal Commission.
The acceptance of the report of the Mandal Commission created a turmoil and a
violent anti-reservation movement throughout the nation for nearly three
months. Meantime the Janta Government again collapsed due to defections and
in 1991 Parliamentary elections the Congress party headed by p. V. Narsiha Rao
as P.M. again came to power at the Centre. This Government issued new Office
Memoranda with a change that the 27% reservation quota for backward classes
and the government notification reserving 10% government jobs for
economically backward classes among the higher castes. It was challenged in
the Supreme Court in the Indra Sawhney Case of 1992.
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In Indra Sawhney v Union of India, AIR 1993 SC 477 case on 16 November
1992, the Supreme Court upheld the Mandal Commission’s 27 percent quota for
backward classes, as well as the principle that the combined scheduled-caste,
scheduled-tribe, and backward-class beneficiaries should not exceed 50 percent
of India’s population. At the same time, the Court also struck down the
government notification reserving 10% government jobs for economically
backward classes among the higher castes.
Some of the key aspects of the judgment are-
1. The majority held that a caste can be and quite often is a social class in India
and if it is backward socially, it would be a backward class for the purpose of
Article 16(4).
2. Article 16(4) is not an exception to Article 16(1), but an independent clause.
Article 16(4) is exhaustive of the subject of reservation in favour of backward
classes, though it may not be exhaustive of the very concept of reservation.
Reservation for other classes can be made under Article 16(1).
3. Article 16(4) permits classification of Backward Classes into backward and
more backward classes (overruled Balaji Case and upheld N. M. Thomas Case
in this respect).
4. Backward classes referred to in Article 16(4) not the same as the Socially and
Educationally Backward Classes referred to under Article 15(5).
5. The majority held that while identifying the backward classes the socially
advanced persons – the creamy layer, among them, being excluded, for the
purpose of giving the benefit of reservation.
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6. The majority held that Article 16(4) permits classification of backward classes
into backward and more backward classes, for the purpose of giving more
protection to more backward class people.
7. The majority held that a backward class of citizens cannot be identified only and
exclusively with reference to economic criteria.
8. The majority held that the maximum limit of reservation cannot exceed 50%.
However, in extraordinary situations, it may be relaxed in favour of people
living in remote, far-flung areas of the country.
9. The majority held that the reservation can be made by executive order. If need
be made by Parliament or state legislature.
10. Reservation shall not exceed the 50 percent limit. Carry forward rule is
valid provided it should not result in the breach of the 50 percent rule. (upheld
the judgment in Balaji Case and overruled N. M. Thomas Case in this respect).
11. Reservation in appointments under Article 16(4) confined to initial
appointments only. There shall be no reservation in promotion.
12. The court directed the Union Government, State Governments and
Union Territories to appoint a permanent statutory body to examine complaints
of wrong inclusion or non-inclusion of groups, classes and
sections in the list of other backward classes.
13. The majority made it clear and directed that all objections to the criteria
evolved by the Central Government and State Government to exclude socially
advanced persons creamy layer from other backward classes, shall be filed only
before the Supreme Court and not before any High Court or Tribunal.
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POST MANDAL COMMISSION CASE SCENARIO:
In the aftermath of the Mandal Commission Judgment, Clause (4A) was added
in Article 16 by way of the Seventy-Seventh Amendment Act, 1995 providing
for reservation in the matters of promotion.
Clause (4B) was added in Article 16 by way of the Eighty-First Amendment Act,
2000 to seek to end the 50% ceiling on reservation for SC’s/ST’s and BC’s in
backlog vacancies which could not be filled up in the previous years due to the
non-availability of eligible candidates.
This Article was further amended by the Eighty-Fifth Amendment Act, 2001
adding the words ‘in the matters of promotion with consequential seniority’
retrospectively from 17-06-1995.
PRIVATIZATION AND ITS IMPACT ON AFFIRMATIVE ACTION

The demand for affirmative action in private sector emanates from the fact that this
would enable participation of the weaker section in employment and market, since
they suffer multiple discriminations. The liberalization, privatization and
globalization process are ushering in the power of markets. Privatization has further
marginalized the weaker sections by reducing the scope of available in public sector,
since the public sector itself is being disinvested.
The significant fact is that according to the Industrial Act 1948, 18 sectors were
reserved as public sector enterprises. Over the years, these have been also converted
in to private sector and now a very less of these remains as public sector. This has
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directly and definitively given a death blow to the Dalits and the tribals in terms of
job opportunities.
There is another fundamental reason due to which reservation in private sector is
being demanded. That is, in the name of rightsizing and optimizing by the
Government, employment rate is on the decline. Given the discriminatory and
exploitative social milieu, the Dalits and the Tribals are the one who would be
victims of this process. There was a decline of job opportunities. This is
notwithstanding the loss of opportunities in the State Governments. It is this social
fact that has driven the Dalit and human rights activists to demand for reservation in
private sector. In response to this contention, those calling for affirmative action in
private sector argue that since the reservation policy is not implemented, it is all the
more necessary to demand for its implementation, and also for reservation in the
private sector. Keeping this fact in mind, the National Commission for Scheduled
Caste and Scheduled Tribes has recommended, "It is essential to workout short-term
and long-term measures to increase the representation of the Scheduled Caste and
Scheduled Tribes.
The State should make special efforts to make up the shortfall in the reserved
'quotas' by taking steps such as special training and coaching for Scheduled Castes
and Scheduled Tribes, passing of Céntral legislations to enforce reservation in
Government Services and Public Sector Enterprises, Banks, Universities, Grant-in-
aid bodies, etc.
Providing reservation in public Sector would automatically rise the issue of
implementation of reservation in the Private Sector, and thus, both these processes
would lead to the inclusion of the excluded communities. It is also a fact that the
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Private Sector continues to be one ofthe major sources of employment. And the
Private Sector with its every increasing role will be the chief employer in the time to
come and reservation in Private Sector should be initiated at once.
Foreign investors are investing in the private sector via purchasing their share; this
is possible because of the policies of the Government.
And thus, it is expected from the Private sector that they should fulfil their social
responsibility. Private sector uses public money via public financial institutions;
even then, there is no reservation to SCs and ST and OBCs in the private sector.
Uplifting of the weaker section is a stated objective of our Country and

thus, reservation in Private Sector is part of social responsibility of the
Government, as well as the Private Sector. It is nothing, but the
fulfilment of the Constitutional agenda of distributive
justice enshrined in various articles of the Constitution. If the Private
Sector does not fulfil its social responsibility, then the government
should make such provisions by initiating legislative measures.
RESERVATION IN PROMOTION
CONSTITUTIONAL PROVISIONS FOR PROMOTION IN RESERVATION
INTRODUCTION
The law on reservation in promotions has undergone several changes. Article 16 of
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the Constitution of India guarantees to its citizens equality of opportunity in matters
of public employment.
Article 16 (4): Provides that the State can make any provision for the reservation of
appointments or posts in favour of any backward class of citizens who, in the
opinion of the state, are not adequately represented in the services under the State.
Article 16 (4A): Provides that the State can make any provision for reservation in
matters of promotion in favour of the Scheduled Castes and the Scheduled Tribes if
they are not adequately represented in the services under the State.
Article 16(4B): Added by the 81st Constitutional Amendment Act, 2000 which
enabled the unfilled SC/ST quota of a particular year to be carried forward to the
next year.
Article 335: It recognises that special measures need to be adopted for considering
the claims of SCs and STs to services and posts, in order to bring them at par.
82nd Constitutional Amendment Act, 2000 inserted a condition at the end of

Article 335 that enables the state to make any provision in favour of the members of
the SC/STs for relaxation in qualifying marks in any examination.
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LAW BEFORE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT,

1995
Even when the explicit power to provide reservation in promotion was not given to
the states, the Hon’ble Supreme Court of India, as early as in 1961, had read such a
power implicit under Article 16(4) and as exception to the broader principle of
equality enshrined under Article 16(1). It was held by the Hon’ble Court in General
Manager, Southern Railway v. Rangachari AIR 1962 SC 36 that Article
16(1) confers equality to citizens not only in terms of initial appointment but also in
respect of other matters relating to employment like, gratuity, superannuation, terms
of service, promotion, etc. Article 16(4) constitutes an exception to equality
guaranteed under Article 16(1) and thus has to be strictly construed. However, the
historical reasons for which advancement of socially and educationally backward
classes has been treated by the Constitution as a matter of paramount importance
may have to be borne in mind in construing Article 16(4). Thus observing, the
Hon’ble Court concluded that reservation in promotion can be provided by the States
under Article 16(4) as an exception to Article 16(1). The Hon’ble Court had read the
inherent limitation of (i) maintaining administrative efficiency as underlined in
Article 335, and, (ii) adequacy of representation of such backward classes within the
services of the states, in providing such a benefit to the backward classes.
This interpretation was further endorsed by the Hon’ble Supreme Court in C.A.
Rajendran v. Union of India & Ors., AIR 1968 SC 507 (5 judges bench). In this
case, the Hon’ble Court had held that States have power to provide reservations in
promotions under Article 16(4), however the method evolved by the Government
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must be such as to strike a reasonable balance between the claims of the backward
classes and claims of other employees and the need to maintain efficiency in
administration.
In Rajendran, the Court also concluded that Article 16(4) does not confer any right
on the members of backward classes and there is no constitutional duty imposed on
the States to make a reservation for SCs and STs, either at the initial stage of
recruitment or at the stage of promotion. Article 16(4) is an enabling provision and
confers a discretionary power on the State to make a reservation of appointments in
favour of backward class of citizens which, in its opinion, is not adequately
represented in the Services of the State.
LANDMARK RULING- INDRA SAWHNEY (1992)

The aforesaid interpretation was altered to a great extent in Indra Sawhney and Ors.
V. Union of India & Ors., 1992 Supp (3) SCC 217 (9 judges Bench). In this 9
judges’ Bench decision, the Hon’ble Court answered several questions pertaining to
reservations.
The Court held that Clause 1 of Article 16 is a facet of Article 14 which furthers the
guarantee of equality in matters of employment. Similar to Article 14, Article 16
inheres in itself the same powers permit classification and to make beneficial
provisions for classes which are differently situated. Thus, Clause (4) is not an
exception to Clause (1) and even without Clause (4), it would have been permissible
for the State to have evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause (4) merely puts the matter
beyond any doubt in specific terms.
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STRIKING DOWN RESERVATION IN PROMOTIONS

However, when it came to providing reservation in promotions the Hon’ble Court
disagreed with the view in Rangachari that reservations in promotion are
contemplated under Article 16(4). Thus, in Indira Sawhney the Court concluded that
reservation under Article 16(1) is only contemplated at the stage of direct
recruitment and not at the stage of promotion. Any effort to provide reservation at
promotion would affect the efficiency of administration and violate the principle of
equality enshrined under Article 16(1).
Thus, the Court held that the majority opinion in Rangachari, to the extent it holds,
that Article 16(4) permits reservation even in the matter of promotion, was not
sustainable in principle and ought to be departed from. However, the Court clarified
that it was within the powers of the state to extend concessions and relaxations (like
carrying forward of vacancies, provisions for in-service coaching/training, etc.) to
members of reserved categories in the matter of promotion without compromising
the efficiency of the administration. However, it would still not be permissible to
prescribe lower qualifying marks or a lesser level of evaluation for the members of
reserved categories in the matter of promotions since that would compromise the
efficiency of administration.
CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995

Even though the Court held that the direction in Indira Sawhney decision would
apply prospectively and shall not affect promotions already made, whether on
temporary, officiating or regular/permanent basis and that wherever reservations
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were already provided in the matter of promotion, such reservations shall continue in
operation for a period of five years from the date 9of the judgment. Within that
period, liberty was given to the appropriate authorities to revise modify or reissue
the relevant Rules to ensure the achievement of the objective of Article 16(4). The
ground situation was that members of these backward classes had been enjoying
reservations in promotions since a very long time and such a move would have
severely affected their interests. Therefore, in order to provide reservations in
promotions the Parliament amended the Constitution and added Clause (4A) to
Article 16 in 1995.
CHALLENGE TO THE INSERTION OF CLAUSE 4(A) TO ARTICLE 16

Article 16(4A) was subsequently challenged in M. Nagaraj v. Union of India, (2006)
8 SCC 212 (5 Judges Bench). The Court upheld the amendment stating that the
amendment merely alters the law relating to reservations. It does not impinge upon
the right to equality which is a fundamental right and part of basic structure of the
Constitution. Further it held that Clause (4A) is derived from Clause (4) of Article
16. Clause (4A) is confined to SCs and STs alone and it has retained the parameters
mentioned in Article 16(4). The Court thus upheld providing reservation in
promotion. However it recognised that for providing such affirmative action, the
state should have quantifiable data to show backwardness and inadequacy of
representation of these classes while keeping in mind maintenance of efficiency
which is held to be a constitutional limitation on the discretion of the State in
making reservation as indicated by Article 335.
The decision in Nagraj Singh was challenged in Jarnail Singh and Ors. V. Lachhmi
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Narain Gupta and Ors., (2018) 10 SCC 396 (5 Judges Bench). It was contested that
the observation in Nagraj that the State has to collect quantifiable data showing
backwardness in respect of the SCs and STs and application of the principle of
creamy layer in respect of SCs and STs is contrary decision in Indra Sawhney. It was
contended that in Indira Sawhney this Court had held that SCs and STs are the most
backward among backward classes and it is, therefore, presumed that once they are
contained in the Presidential List Under Articles 341 and 342 of the Constitution of
India, there is no question of showing backwardness of the SCs and STs all over
again. The Court upheld the argument and stated that it is clear that when Nagaraj
requires the States to collect quantifiable data on backwardness, in so far as SCs and
STs are concerned, this would clearly be contrary to the Indra Sawhney and would
have to be declared to be bad on this ground. However, the Court retained the other
two requirements of collection of data to show inadequacy of representation and
maintenance of efficiency in administration.
Also, the Hon’ble Court in this judgment has upheld the exclusion of creamy layer
from within the SCs and STs from gaining the benefits of reservations in
promotions. It stated that such exclusion promotes the principle of equality. Thus,
the Court made it clear that that quantifiable data shall be collected by the State, on
the parameters as stipulated in Nagaraj on the inadequacy of representation, which
can be tested by the Courts.
High courts and Supreme Court have applied the aforesaid principles strictly while
adjudging laws, notification providing for reservation in promotion and
consequential seniority. In B.K. Pavitra and Ors. V. Union of India and Ors.,
(2017)4SC C 620 the Hon’ble Supreme Court held that absence of proportionate
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representation in promotional posts for the population of SCs and STs is not by itself
enough to grant consequential seniority to promotees who are otherwise junior. It is
for the State to place material on record that there was compelling necessity for
exercise of such power and decision of the State was based on material including the
study that overall efficiency is not compromised. It was subsequently in B.K. Pavitra
and Ors. v. The Union of India (UOI) and Ors.. AIR 2019 SC 2723 that the Supreme
Court upheld the provisions made by the Karnataka Government when following the
decision in B.K. Pavitra (2017), the State government constituted the Ratna Prabha
Committee and duly carried out the exercise of collating and analysing data on the
compelling factors adverted to by the Constitution Bench in Nagaraj.
The above discussed position has been crystallised in the recent case of Mukesh
Kumar & Anr. v. The State of Uttarakhand & Ors., Civil Appeal No. 1226 of 2020,
February 07, 2020. (Division Bench). The Hon’ble Supreme Court dealt with the
central point that whether the State Government is bound to make reservations in
public posts and whether the decision by the State Government not to provide
reservations can be only on the basis of quantifiable data relating to adequacy of
representation of persons belonging to SCs and STs. The Hon’ble Court concluded
that Article 16(4) and 16(4A) are enabling provisions. The Government is not bound
to provide reservation in promotions to SCs and STs. There is no fundamental right
which inheres in an individual to claim reservation in promotions. The requirement
to collect quantifiable data with respect to inadequacy of representation of SCs and
Sts in public administration is sine quo non if the Government provides reservation
in promotions. The data to be collected by the State Government is to justify
reservation to be made in the matter of appointment or promotion to public posts,
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according to Article 16 (4) and 16 (4-A) of the Constitution. Collection of such data
is not required when the State Government decided not to provide reservations.
The Court further held that no mandamus can be issued by this Court to the State
Government to provide reservation; therefore no mandamus can be issued by the
Court to the State to collect quantifiable data relating to adequacy of representation
of the SCs and STs in public services.
IMPORTANT CASE LAWS ON RESERVATION IN PROMOTION
INDRA SAWHNEY JUDGMENT (1992)

In the judgment, a nine-judge bench presided by Chief Justice M.H. Kania
upheld the constitutionality of the 27% reservation but put a ceiling of 50%
unless exceptional circumstances warranting the breach, so that the constitutionally
guaranteed right to equality under Article 14 would remain secured.
The Court dwelled on the interrelationship between Articles 16(1) and 16(4) and
declared that Article 16(4) is not an exception to article 16(1), rather an illustration
of classification implicit in article 16(1).
While Article 16(1) is a fundamental right, Article 16(4) is an enabling provision.
Further, the Court directed the exclusion of creamy layer by way of horizontal
division of every other backward class into creamy layer and non-creamy layer.
77TH CONSTITUTIONAL AMENDMENT ACT

The Parliament responded by enacting the 77th Constitutional Amendment
Act which introduced Article 16(4A).
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Later, two more amendments were brought, one to ensure consequential seniority
and another to secure carry forward of unfilled vacancies of a year, the former by
way of addition to Article 16(4 A) and the latter by way of adding Article 16(4
B).
M NAGARAJ CASE 2006:

In this case applying the creamy layer concept in SC/ST reservation in promotions,
the SC reversed its earlier stance in the Indra Sawhney case (1992), in which it
had excluded the creamy layer concept on SCs/STs (that was applicable on
OBCs).The SC had upheld the Constitutional amendments by which Articles 16
(4A) and 16 (4B) were inserted, saying they flow from Article 16 (4) and do not
alter its structure.It also laid down three conditions for promotion of SCs and STs
in public employment.The SC and ST community should be socially and
educationally backward.The SC and ST communities are not adequately
represented in Public employment.Such a reservation policy shall not affect the
overall efficiency in the administration.The court held that the government
cannot introduce a quota in promotion for its SC/ST employees unless it proves
that the particular community was backward, inadequately represented and
providing reservation in promotion would not affect the overall efficiency of public
administration.
The opinion of the government should be based on quantifiable data.
JARNAIL SINGH CASE 2018

Later in 2018, in the Jarnail Singh case, SC modified the Nagaraj judgement to the
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extent that State need not produce quantifiable data to prove the “backwardness”
of a Scheduled Caste/Scheduled Tribe community in order to provide quota in
promotion in public employment.
THE CONSTITUTION (103RD AMENDMENT) ACT, 2019

The 10% reservation for Economically Weaker Sections (EWS), other Scheduled
Castes, Scheduled Tribes and backward classes for government jobs and admission
in educational institutions is currently under challenge before the Supreme Court
which has referred the same to a constitution bench.
The adjudication awaited in this regard may also turn to be a critical milestone in
the jurisprudence of reservation as traditional understanding of backwardness
is broadened to specifically include economic backwardness without social
backwardness as is traditionally seen.
Mukesh Kumar And Another V. State Of Uttarakhand & Ors. 2020

In this Case, the Supreme Court held that there is no fundamental right to
reservation or promotion under Article 16(4) or Article 16(4 A) of the
Constitution rather they are enabling provisions for providing reservation, if the
circumstances warrant.
However, these pronouncements in no way understate the constitutional directive
under Article 46 that mandates that the state shall promote with special care the
educational and economic interests of the weaker sections of the people and in
particular Scheduled Castes and Scheduled Tribes.
In fact, sensitivity of the welfare state towards the weaker sections over decades
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resulted in the gradual expansion of canopy of reservation in the form of
increasing classifications under Article 16, a set of actions that created a wave of
litigation by which resulted in the ever-evolving jurisprudence of affirmative action
in public employment.
DR. JAISHRI LAXMANRAO PATIL V. CHIEF MINISTER (2021):

Despite the Indra Sawhney ruling, there have been attempts on the part of many
States to breach the rule by way of expanding the reservation coverage.
The Maharashtra Socially and Educationally Backward Classes Act
2018, (Maratha reservation law) came under challenge before the Supreme Court
which referred the same to a bench of five judges and one question was whether the
1992 judgment needs a relook.
Interestingly, the Supreme Court not only affirmed the Indra Sawhney decision, but
also struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided
12% reservation for Marathas in educational institutions and 13% reservation in
public employment respectively, citing the breach of ceiling.
RIGHT TO FREEDOM
Introduction
Article 19(1) of the Constitution of India guarantees six fundamental freedoms to

every citizen of India, namely-
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1. Freedom of speech and expression;
2. Freedom to assemble peacefully and without arms;
3. Freedom to form associations, unions or co-operative societies;
4. Freedom to move freely throughout the territory of India;
5. Freedom to reside and settle in any part of the territory of India, and
6. Freedom to practice any profession, or to carry on any occupation, trade or

business.
These six fundamental freedoms are the natural and basic freedoms inherent in the
status of a citizen. However, these freedoms are not absolute or uncontrolled but are
subject to certain reasonable restrictions. In this article, the author will take you
through the six fundamental freedoms provided under Article 19 along with the
relevant case laws.
6 fundamental freedoms
Freedom of speech and expression [Article 19(1)(a) and 19(2)]
Article 19(1)(a) guarantees the freedom of speech and expression to all citizens.
Freedom of speech and expression is the foundation of a democratic society and is
one of the most cherished rights of a citizen. It is the first condition of liberty and
plays an important role in forming public opinion.
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Meaning of freedom of speech and expression
Freedom of speech and expression means the right to speak, and the right to express
oneself through any medium-by words of mouth, writing, pictures, signs, internet
etc. Every citizen has a right to hold an opinion and to be able to express it,
including the right to receive and impart information. The expression ‘freedom of
speech and expression’ has a wide connotation. It includes the freedom of the
propagation of ideas, their publication and circulation.
Scope of freedom of speech and expression
There are various facets of the freedom of speech and expression which have been
recognised by the courts. Some of those facets or rights that constitute the freedom
of speech and expression are mentioned below:
1. Freedom of the press: Freedom of the press is perhaps the most important
freedom under the right to free speech and expression. Freedom of the press
does not find an explicit mention in the Constitution. However, it has been
indisputably held to be an important aspect of the freedom of speech and
expression and is implied under Article 19(1)(a). Freedom of press means:
1. There can be no pre-censorship in the press;
2. No-pre stoppage of publication in newspapers of articles or matters of public

importance;
3. Freedom of circulation;
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4. No excessive taxes on the press, etc.;
However, restrictions can be imposed in the interests of justice, but those restrictions
must withstand the test of Article 19(2).
In Bennett Coleman & Co v. Union of India(1972), the Hon’ble Supreme Court held
that the freedom of the press embodies the right of the people to free speech and
expression. It was held that “Freedom of the press is both qualitative and
quantitative. Freedom lies both in circulation and in content.”
In the landmark case of Romesh Thappar v. The State Of Madras(1950), the

Supreme Court observed that, “freedom of speech and of the press lay at the founda-
tion of all democratic organisations, for without free political discussion no public
education, so essential for the proper functioning of the processes of popular
government, is possible”. The Court in this case held that the freedom of circulation
is as important as the freedom of publication.
2. Right to know and to obtain information: In the State of U.P. v. Raj

Narain (1975), the Supreme Court observed that the right to know is derived
from the concept of freedom of speech. The Court further held that the
people of this country have a right to know every public act, everything that
is done in a public way, by their public functionaries. It is a basic postulate
of a democracy that every citizen must have a right to know about what the
government is doing. It is only when the public is aware of the acts of
government that transparency and accountability in governance can prevail.
Thus, the right to obtain information and disseminate it is an important
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fundamental right. In India, we have the Right to Information Act,
2005 which provides for the right of a citizen to secure access to information
under the control of public authorities.
3. Right to know the antecedents of the candidates at election: In Union of

India v. Association For Democratic Reforms (2002), the Hon’ble Supreme
Court held that the voters have a fundamental right to know the antecedents
of the candidate contesting election including his/her criminal past.
4. Right to reply: In LIC v. Prof. Manubhai D. Shah(1992), the Supreme

Court ruled that the right to reply, including the right to get that reply
published in the same news media in which something was published
against or in relation to a citizen, is protected under Article 19(1)(a).
5. Right to silence: Right to speak includes the right to not speak or the right
to remain silent. In Bijoe Emmanuel v. State of Kerala (1986), the Supreme
Court upheld the right to silence of three children who were expelled from
school because they refused to sing the National Anthem. The Court held
that no person can be compelled to sing the National Anthem if he has
genuine conscientious objections based on his religious belief. Hence, the
right to speak and the right to express includes the right not to express and to
be silent.
6. Right to fly the national flag: In the case of Union of India v. Naveen
Jindal (2004), the Supreme Court held that flying the National Flag with
respect and dignity is an expression and manifestation of one’s allegiance
and feelings and sentiments of pride for the nation and therefore, is a
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fundamental right protected under Article 19(1)(a). However, the flying of
the National Flag cannot be for commercial purposes or otherwise and can
be subject to reasonable restrictions.
Reasonable restrictions on the right to free speech and expression
The right to free speech and expression is not an absolute right and is subject to
reasonable restrictions. As per Article 19(2), restrictions can be imposed upon the
freedom of speech and expression in the interests of:
1. sovereignty and integrity of India,
2. the security of the state,
3. friendly relations with foreign states,
4. public order, decency or morality, or
5. in relation to contempt of court,
6. defamation, or
7. incitement to an offence.
Freedom of assembly [Article 19(1)(b) and 19(3)]
The object of holding an assembly or a meeting is the propagation of ideas and to

educate the public. Hence, the right to assemble is a necessary corollary of the right
to free speech and expression. Article 19(1)(b) provides for the right to assemble
peaceably and without arms. This includes the right to hold public meetings, hunger
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strikes, and the right to take out processions. However, the assembly must be
peaceful and without arms.
It is pertinent to note that there is no right to hold an assembly on government

premises or private property belonging to others.
In Himmat Lal v. Police Commissioner, Bombay (1972), the Supreme Court struck
down a rule that empowered the police commissioner to impose a total ban on all
public meetings and processions. It was held that the state could only make
regulations in aid of the right of assembly of citizens and could impose reasonable
restrictions in the interest of public order but no rule could be prescribed prohibiting
all meetings or processions altogether.
Reasonable restrictions on right to freedom of assembly
According to Clause 3 of Article 19, the right to freedom of assembly could be

restricted on the following grounds:
1. In the interests of the sovereignty and integrity of India, or
2. In the interests of public order.
Freedom to form associations, unions or co-operative societies [Article 19(1)(c) and

19(4)]
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Article 19(1)(c) provides for the right to form associations, unions or cooperative
societies. An association refers to a group of persons who have come together to
achieve a certain objective which may be for the benefit of the members of the
welfare of the general public or a scientific, charitable or any other purpose.
The right to form associations is considered as the lifeblood of democracy, as

without such a right, the political parties critical to the functioning of a democracy
cannot be formed.
The right to form associations and unions includes the right to form companies,
societies, trade unions, partnership firms and clubs, etc. The right is not confined to
the mere formation of an association but includes its establishment, administration
and functioning as well.
Some of the facets of the right to form associations are as follows:
1. The right to form associations means the right to be a member of an

association voluntarily. It also includes the right to continue to be or not to
continue to be a member of the association.
In Damyanti v. Union of India(1971), the Supreme Court upheld the right of the
members of an association to continue the association with its composition as
voluntarily agreed upon by the persons forming the association.
2. The right to form an association includes the right not to be a member of an

association.
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3. The right under Article 19(1)(c) does not prohibit the state from making
reservations or nominating weaker sections into the cooperative societies
and their managing committees.
4. No prior restraint can be imposed on the right to form an association.
5. There is no fundamental right of recognition of the association or union by

the government.
6. The right to form an association includes no right to achieve the objects of

the association.
Reasonable restrictions on right to form association
According to Article 19(4), reasonable restrictions can be imposed on the right to

form associations, unions and co-operative societies, etc. on the following grounds:
1. In the interests of the sovereignty and integrity of India, or
2. In the interests of public order or morality.
Freedom of movement and residence [Article 19(1)(d), 19(1)(e) and 19(5)]
Article 19(1)(d) and (e) are complementary to each other and confer a right upon the
citizens to move freely or/and to reside and settle in any part of the country.
Freedom of movement
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Article 19(1)(d) provides for the right to move freely throughout the territory of
India. This means the right to locomotion, i.e., the right to move as per one’s own
choice. This right includes the right to use roads and highways.
In Chambara soy v. Union of India (2007), some unscrupulous elements had blocked
the road due to which the petitioner was delayed in taking his ailing son to the
hospital and his son died on arrival at the hospital. The Supreme Court held that the
right of the petitioner to move freely under Article 19(1)(d) has been violated due to
the road blockage. The Court held that the State is liable to pay the compensation for
the death of the petitioner’s son due to the inaction on the part of the State
authorities in removing the aforesaid blockage.
Freedom of residence
Article 19(1)(e) states that it is the fundamental right of every citizen to reside and
settle in any part of the territory of India.
In the case of U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society
Ltd.(1995), it was held by the Supreme Court that the right to residence under
Article 19(1)(e) includes the right to shelter and to construct houses for that
purpose.
Reasonable restrictions on right to freedom of movement and residence
As per Article 19(5), the right to freedom of movement and residence could be
restricted on the following grounds:
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1. In the interests of the general public, or
2. For the protection of the interests of any Scheduled Tribe.
Freedom of profession, occupation, trade or business [Article 19(1)(g) and 19(6)]
Article 19(1)(g) provides for the fundamental right of the citizens to practice any
profession or to carry on any occupation, trade or business.
Scope: What’s included and what’s not
1. The right to carry on a business also includes the right to shut down the
business.
In Excel Wear v. Union of India (1978), the Supreme Court declared Section 25-O of
the Industrial Disputes Act, 1947, which required an employer to take prior
permission from the government for closure of his industrial undertaking, as
unconstitutional and invalid on the ground that it violated Article 19(1)(g).
2. There is no right to hold a particular job of one’s choice. For example, in the
case of closure of an establishment, a man who has lost his job cannot say
that his fundamental right to carry on an occupation is violated.
3. There is no right to carry on any dangerous activity or any antisocial or

criminal activity.
4. No one can claim a right to carry on business with the government.
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5. The right to trade does not include the right of protection from competition
in trade. Thus, loss of income on account of competition does not violate the
right to trade under Article 19(1)(g).
The Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997) has observed
that the sexual harassment of working women in workplaces violates the
fundamental right under Article 19(1)(g). In this case, comprehensive guidelines and
binding directions were issued by the court to prevent the incidents of sexual
harassment of women at workplaces in both public and private sectors.
Reasonable restrictions on freedom of profession, occupation, trade or business
Article 19(6) provides that the fundamental right under Article 19(1)(g) can be
restricted in the following ways:
1. By imposing reasonable restrictions in the interest of the general public.
2. By state monopoly: Sub-clause (ii) of Article 19(6) enables the state to make
laws for creating state monopolies either partially or completely in respect of
any trade or business or industry or service. The right of a citizen to carry on
trade is subordinated to the right of the state to create a monopoly in its
favour.
Also, Sub-clause (i) of Article 19(6) empowers the state to lay down, by law, “the
professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business”.
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In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005), the Supreme
Court has held that the expression ‘in the interest of general public’ in Article 19(6)
is of wide import comprehending public order, public health, public security, morals,
economic welfare of the community and the objects mentioned in Part IV of the
Constitution.
Test of Restrictions under Article 19(2) to 19(6)
The restrictions to be imposed on the fundamental freedoms under Article 19(2) to

Article 19(6) must satisfy the following tests:
1. The restriction must be imposed by or under the authority of a law duly

enacted by the appropriate legislature. The law authorising the restriction
must be reasonable.
2. The restriction imposed must be for the particular purpose or object

envisaged in the specific clauses, i.e., Article 19(2) to 19(6). There has to be
a reasonable nexus between the restriction imposed and the objects
mentioned in the respective clause.
3. The restriction must be reasonable.
RIGHT TO FREEDOM UNDER ARTICLE 19 AND NEW CHALLENGES

TO FREEDOM OF PRESS DUE TO THE NEW SCIENTIFIC
DEVELOPMENTS
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"Pen is mightier than a sword."
FREEDOM OF THE PRESS AND THE CONSTITUTION
INTRODUCTION
Under Part III of Indian Constitution, a variety of fundamental and basic rights are
placed which are guaranteed and protected by the Constitution. These rights ensure
that the Indian people live with equality, freedom and dignity. The freedom that the
Part III of the Constitution provides also includes the freedom of the people to speak
without the fear of any sanctions. Art. 19(1)(a) of the Constitution states that the
Indian people shall have the liberty to speak and express their mind. The freedom of
speech & expression safeguards the people’s liberty to speak their mind and express
their feelings without any legal or penal consequences. This freedom enables the
people to make their views and opinions as well as criticize and voice their concerns
to the government, either by spoken or written words, or on paper, or express in the
manner of signs, gestures, representation, or in any other form. Thus, the liberty of
speech & expression gives the people the ability to freely raise make their demands
known, raise their concerns and show discontent on the policies adopted by the
government without any fear of repercussions.
In Romesh Thapper’s case, the Court declared that right to freedom of press &
speech stated by the Constitution provides the basis of democracy and is a vital
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requirement for the efficient operation of the principles of good governance.
Therefore, in a democracy, the freedom of speech and express is an essential
element. This freedom lays down the basis for democracy as it empowers the people
with the ability to freely discuss politics, raise their voices, express their concerns
and criticise the government for its policies. In order to uphold democratic principles
of open and fair government and free elections, the state must provide and protect
the people’s right to make political statements and views and criticise the
government and its policies without government censorship and sanctions.
The freedom of speech and expression is a positive right vesting the people with the
power of voice. The freedom ensures that citizens are not censored, limited,
sanctioned or prosecuted for saying or expressing something. However, this freedom
is not totally absolute. In Radha Mohan Lal v. Rajasthan High Court, the judiciary
declared that the “free to speak and express” should not be mistaken as a licence
permitting a person to make baseless accusations against the judiciary. The
Constitution of India lays down certain restrictions on the practice of free speech
under Article 19(2) which are considered as rational. Such restrictions limit the
practice of freedom of speech and expression on the grounds 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.
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Liberty of the Press and Media
The freedom of speech and expression that the Constitution provides to the people is
not a provision that is to be understood literally. The scope of free speech under
Article 19 is very wide and embraces in itself the right of free press. Freedom of the
press and media in India provides liberty to the print and electronic media to print,
publish, circulate and broadcast any news or information, whether political or non-
political, without fear of censorship or sanctions. The Indian Press Commission
holds that ‘freedom of press’ means “freedom to hold opinions, to receive and
impart information through the printed word, without any interference from any
public authority.” Furthermore, the Commission was of the view that, ‘democracy
can only sustain not only in a state where the legislature is vigilant and responsible
but also where there is respect for public opinion and promotion of free press.’
Although, the freedom of press is not expressly provided by our Constitution like
United States, nevertheless, this freedom is enshrined in our Constitution and
impliedly exist under the broader principle of free speech under Article 19(1)(a) of
our Constitution. The freedom of press is a right which is an extension of “freedom
of expression.” B.R. Ambedkar considered that press do not have any special or
extraordinary right which is provided by the Constitution or which is different from
the rights exercised by the ordinary citizens. The print and electronic media merely
exercises the rights given under freedom of expression in the name of freedom of
press and therefore no express provision of freedom of press is necessary.
In Sakal Papers, the Court interpreted Article 19(1) (a) of the Constitution to include
"freedom of the press’, which is considered to be a part of broader principle of “free
speech.” Thus, freedom of the press cannot be considered to be greater than the right
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safeguarded by the liberty of speech and expression.
In Printers v. Asst CTO, the Court acknowledged that press freedom is not a direct
fundamental right but is implied under the fundamental right guaranteed under Art.
19(l)(a) of the Indian Constitution.
Therefore, the press in India are impliedly provided with considerable liberties to
operate freely. Indian print and electronic media are free to print, publish, broadcast,
circulate and telecast all forms of news, events, information, statements, criticisms,
etc. without fear from government interference. The Courts in India have recognised
that the freedom of the press is implicit in our Constitution and has made many
pronouncements in which this freedom has been protected and its scope has been
extended.
Cases relating to Freedom of the Press

In this part, a few landmark cases shall be briefly discussed in which the Indian
Courts have made pronouncements for the protection and extension of the ambit of
the freedom of the press.
❖ Brij Bhushan v. Delhi

In this case, the imposition of pre-censorship on a newspaper was challenged. The
main issue of this case was that a pre-censorship order was made against ‘The
Organiser’, an English weekly based in Delhi, in pursuance of Section 7(1)(c) of the
East Punjab Public Safety Act, 1949. The order required the newspaper to submit
any communal news and other related matters for scrutiny and inspection before
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publication. The Court declared this order as unlawful and held that imposing pre-
censorship upon newspapers and journals to publish news, information and its views
and opinions on current affairs is curtailment of the freedom of the press which is an
integral part of the freedom of speech and expression guaranteed by our
Constitution.
❖ Express Newspapers v. U.O.I

The legality of the Working Journalists Act, 1955, was called into question. The Act
was introduced to deal with various matters of the persons working in the newspaper
business such as conditions of service, leave, wages, hours of work, etc. In this case,
the Act was opposed on the ground that it financially affected the newspapers and
curtailed the circulation and limited the broadcasting of information and thereby
infringed Article 19(1)(a). The Court was of the view that the press is not protected
from the ambit of ordinary laws. The legislation was formulated to improve the
condition of the persons employed in the newspaper business and hence, it is
constitutionally valid and reasonable.
❖ Sakal Papers v. Union of India

The case was that the fixation of minimum rate of newspapers according to number
of pages was challenged. The facts of the case were that the Government introduced
the Newspaper Act, 1956 and the Daily Newspaper Order, 1960, in order to
determine the quantity of the newspaper pages in accordance with the price of the
newspaper, the number of supplements and size, place where the advertisement were
to be printed, etc. The validity of the Act and the government order was challenged
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as it infringed the press freedom protected by the Indian Constitution. The judiciary
was of the view that the newspapers are at liberty to fix their prices and print any
number of pages and any restraint on this liberty is a violation of the principles of
free speech. The Court further considered that the liberty of speech and expression
cannot be restricted in the interest of the public. However, the reasonable restriction
under Article 19(2) may apply in certain cases. Hence, the Court ruled that the Act
of 1956 and the Order of 1960, were unlawful and invalid as they infringed the press
freedom implicit in the constitution.
❖ Bennett Coleman & Co. v. Union of India

The setting of upper limit of page numbers in newspapers by the administration was
challenged in this case. It was argued that the Government has passed the Newsprint
Control Order, 1962, by which the upper limit of pages that a daily can print was
fixed at 10. This order was called into question on the ground that it violated the Art.
19(1)(a) and Article 14 of the Constitution. The judiciary adjudged that the state
could adopt a policy of determining fair allocation of newsprints to newspaper
agencies but the growth, circulation and content including the number of pages
cannot be controlled by the state. Therefore, the judiciary held that the Order of 1962
by which the maximum number of newspaper pages were fixed was
unconstitutional.
❖ Indian Express Newspapers v. Union Of India

The issue of the case was that the imposition of import duty and other auxiliary
duties on imported newsprints by newspapers was questioned on the fact that it
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invaded the press freedom. The Court decided that the newspapers are not exempted
from the purview of general laws of the land in the name of press freedom.
Therefore, the imposition of tax and duty upon the newspapers is valid and
constitutional, so long as such imposition is fair and reasonable. Thus, the court
disallowed the petition and held that levy of any duty upon newspaper agencies is
legally valid and is subject to the review of the courts in accordance with the
constitutional provisions.
❖ R. Rajagopal v. State of T.N

This case mainly dealt with the prior-restriction on publication of defamatory against
government officials. In this case, the Supreme Court was of the view that the
government has no power to lay down prior-restrictions on the publication of
materials which are considered to be defamatory to the government officials. The
government and its authorities do not possess the power to restrict the press from
publishing any of such material and the press are free from any prosecution if such
publication was based upon public or court records.
❖ Hindustan Times v. State of UP

In this case, the imposition of tax upon the publication of advertisement on
newspapers was challenged. The Court was of the view that the advertisements in
newspapers have a direct connection with the free circulation and availability of
newspapers and impacts the income of the newspapers. Thus, the Court held that any
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condition or executive action which imposes limitation on the free exercise of the
liberty of the press shall be considered unjust.
❖ Sahara India Real Estate Corp. v. SEBI

In this case, the court was of the view that, “Finding an acceptable constitutional
balance between free press and administration of justice is a difficult task in every
legal system.” The Court further observed that the press and media have the liberty
to report and publish the proceedings of any case and the Court has no power to
postpone or delay the media from exercising its freedom to report such cases, unless
any reasonable cause or interest is given.
LEGAL AND POLITICAL LIMITATIONS AND RESTRICTIONS ON THE

FREEDOM OF THE PRESS AND MEDIA
Constitutional Restrictions
Indian Constitution lays down freedom of speech and expression as a fundamental
right guaranteed to all Indian citizens. This freedom also extends to implicitly
include in itself the freedom granted to the media and press. Therefore, all the
reasonable restrictions that are applicable upon the freedom of speech and
expression under Article 19(2) are also applicable upon the freedom of the press.
Thus, the liberty of the print and electronic media in India may be restricted and
controlled on the grounds 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. In Shreya
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Singhal case, the Court was of the view that the freedom under Article 19(1)(a) has
been granted to express unpleasant views, cause inconvenience or infuriation to the
extent that such expression does not lead to incitement on any of the 8 grounds
under Art. 19(2). In Papnasam Labour Case, the elements to determine the
restrictions to be reasonable were laid down.
These reasonable restrictions on the media and press have been briefly discussed as
follows with appropriate cases:
a) Security of the State
Restrictions may be imposed on the freedom of press on the ground of security of
the state. The exercise of free press is restricted if any news, information,
publication, opinions or other printed or broadcasted material is such that it may
disturb the peace and security of a nation and result in the outbreak of rebellion, war,
riot, breach of public order, etc.
It was held in State of Bihar v Shailabala Devi, that anything spoken or expressed
by a person, which leads to the commission of crimes, shall be considered as matters
amounting to damage of the state security.
b) Friendly relations with Foreign States
The press is restricted from publishing or broadcasting any news, information or
other matters which may harm and endanger the friendly relation that India has with
other foreign countries. Thus, the press is prevented to spread and circulate any
hostile and hateful propaganda which may adversely affect the peaceful relations of
India with other states.
c) Public Order
The press and media are prevented from exercising their liberty on the ground of
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public order. Thus, the print and electronic media cannot print or telecast any news,
information or views or statements which may disturb the peace and tranquillity of
the society or disrupt the law and order situation. Public order as a reasonable
restriction was added by the First Constitution Amendment Act in 1951.
In the case of Romesh Thappar, the court was of the view that restricting freedom of
speech and expression cannot be imposed for any ordinary violation of public order.
d) Sovereignty and integrity of the state

The press is prohibited to make any statement or publication or broadcast of any
matter if such material injures or damages the sovereignty, unity and integrity of
India. Thus, the liberty of speech and expression including press freedom cannot be
exercised if such freedoms negate the India’s authority and integrity. The Indian
Penal Code under Section 124A deals with the punishment for sedition for making
any statement which brings hatred, contempt or dissatisfaction towards the
government of India. However, sedition is not considered to be a reasonable
restriction by virtue of Art. 19(2).
e) Decency or morality
The press and media enjoy the liberty to make any publication or broadcast any
programme so as such material are decent and moral in character and appearance.
Thus, the press is restricted to publish and telecast any information, news or other
material which is regarded as obscene and immoral. The Indian Penal Code is
comprised of provisions restricting the press to exercise its liberty on the grounds of
decency and morality. These sections limit the press from publishing, circulating,
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distributing any obscene or immoral material to any young person or anyone who
might be corrupted by such materials.
In Ranjit Udeshi’s case,it was established that Section 292 of IPC forbids obscenity
and endorses decent and moral public values and therefore is legally valid.
f) Contempt of Court
Contempt is of 2 kinds: Civil & Criminal. Contempt in civil terms refers to any
wilful disobedience or breach of any court order, judgement or any undertaking.
Criminal contempt refers to any publication which may scandalise, prejudice or
delay the administration of justice. Constitution also authorizes the Apex Court and
High Courts to punish for its contempt. Thus, freedom of press cannot be exercised
if it amounts to contempt of court.
In C.K. Daphtary’s case, the power of contempt of the Supreme Court provided by
Article 129 of the constitution has been considered as reasonable under the provision
of Article 19(2) of the Constitution.
g) Defamation
Defamation can be described as any matter which injures the dignity, reputation and
image of a person in the eyes of the society and thereby exposes him to mockery,
hate, disgust or contempt. Defamation may be either in the form of libel or slander;
it may be a tort or a crime. The Indian Penal Code under Section 499 deals with the
provision relating to defamation. Thus, the press is prevented from publishing any
statement or telecasting any material which defames any person.
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In Subramanian Swami’s case, the judiciary interpreted Article 21 of the
Constitution to include “right to reputation” as a fundamental right. It further said
that liberty of speech and expression of a citizen does mean the right to defame other
persons.
h) Incitement to an offence
The press is restricted from exercising its liberty on the ground of motivating and
inciting the public to commit crime. Thus, the press cannot publish or broadcast
anything which may provoke, incite or motivate any person to commit any offence.
In the case of Shailabala Devi, the Court was of the opinion that the exercise of
freedom of speech and expression shall be considered to be against the state interest
if it leads to the incitement of offences like murder, etc.
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UNIT – 3
OTHER FORMS OF FUNDAMENTAL RIGHTS-
OTHER
EVOLVING CHLLENGES
SYNOPSIS
 RIGHT TO LIFE AND PERSONAL LIBERTY –
NEW DIMENSION OF RIGHT TO LIFE AND
EXPANSION OF FUNDAMENTAL RIGHTS
 RIGHT TO EDUCATION AND ITS
COMMERCIALIZATION
RIGHT AGAINST EXPLOITATION
 EMPOWERMENT OF WOMEN AND
RIGHTS OF THE CHILD
 RIGHT TO RELIGION
 MINORITY RIGHTS AND TRIBAL RIGHTS
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Introduction
The Constitution of India provides six fundamental rights to the citizens of India.
The Right to Life and Personal Liberty is one of the fundamental rights which
enables a person to live his life freely without any interference. Although, this right
was not interpreted to the fullest but with judicial developments the ambit of this
right has amplified and still on the path of intensification. Right to life and personal
liberty is not only a fundamental right but a right by virtue of being human which
enable human beings to get through a life which is different from mere animal
existence. Article 21 of the Indian Constitution provides protection to the right to life
and personal liberty.
Life and Personal Liberty- Meaning and scope
The meaning and scope of ‘life and personal liberty’ can be analyzed in detail in two
facets on the basis of the interpretation of the courts.
Prior to Maneka Gandhi’s Case
The words ‘personal liberty’ was first came up for contemplation in the case of A. K.
Gopalan v. State of Madras
Facts: The petitioner. A. K. Gopalan, a communist leader was detained under

the Preventive Detention Act, 1950. He challenged the validity of this Act on the
ground that it was violative of his right to freedom of movement guaranteed
in Article 19(1)(d) which is the essence of personal liberty given under Article 21 of
the Indian Constitution. He argued that ‘personal liberty’ includes freedom of
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movement also and hence, the Preventive Detention Act should also satisfy Article
19. He also contended that the word ‘law’ under Article 21 does not include the
‘state made laws’ but only meant jus naturale or the principle of natural justice.
Interpretation of the Court: The Supreme Court illuminated the meaning and
scope of ‘personal liberty’ with a very literal and narrow view. The term ‘liberty’
has a very wide meaning but when it is qualified by the word ‘personal’, the
spectrum of the concept of liberty diminishes therefore, it does not include all that
which is implied in the term ‘liberty’.
The Supreme Court held that personal liberty includes nothing more than physical
freedom of body i.e. freedom from arrest and detention from false imprisonment or
wrongful confinement.
The SC also interpreted the word ‘law’ as ‘state made law’ and rejected the
contention of the petitioner. Fazal Ali J., however, held a demurring view and gave a
broad and comprehensive meaning to the words ‘personal liberty’ as consisting of
freedom of movement.
Since Article 19 is a substantive right whereas and Article 21 is a procedural right

therefore, they must be read together. Any law which deprives the life or personal
liberty of any person must satisfy the requirements of both Article 19 and Article 21
as well.
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However, this restrictive interpretation of ‘personal liberty’ in Gopanaln’s case has
not been followed by the Supreme Court in its later judgments.
Case: Kharak Singh v. State of U. P.[2]
Facts: The petitioner had been charged in a dacoity case but no evidence was found
against him therefore, he was released. Under the U.P. Police Regulations, the police
opened a history-sheet for him and he was kept under police surveillance which
included domiciliary visits at nights and verification of his activities and movement.
He challenged this as being violative of his fundamental right under Article 21.
Judgment: The Supreme Court interpreted the word ‘life’ in this case. The word
‘life’ means something more than mere animal existence. ‘Personal liberty’ is not
restricted to bodily restraint or confinement to prisons only, but was used in a
concise sense including all varieties of rights which constitutes the personal liberty
of a human being other than those mentioned under Article 19(1). Any type of
unauthorised obstruction into a person’s home and disturbance caused to him is a
violation of the personal liberty of the individual. The domiciliary visits of the
policemen in the house of petitioner were an interruption on the petitioner’s personal
liberty as there was no law which can justify this act. Therefore, the U.P. Police
Regulation was violative of Article 21 and struck down as unconstitutional.
It is true that the word ‘liberty’ is qualified by the word ‘personal’ but such
qualification is made in order to avoid any kind of overlapping between those
incidents of liberty mentioned in Article 19 and Article 21. It can be deduced that
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Article 19(1) deals with a particular aspect of freedom while Article 21 comprises
the residue.
A New Dimension – After Maneka Gandhi’s case
In Maneka Gandhi v. Union of India[3], the words ‘personal liberty’ was again
considered by the Supreme Court. The SC has not only overruled the interpretation
given in the Gopalan’s case but also widened the scope of Article 21.
Facts: The petitioner received a letter from a Regional Passport Officer, Delhi asking
the petitioner to surrender her passport within 7 days of the receive of the letter. She
immediately address letter to the officer and requested to issue the reason of such
letter in writing. She received another letter from the Ministry of External Affairs,
Government of India, stating that the reason cannot be furnished to her because of
the interest of the general public. Her passport was impounded under Section 10(3)
of the Passports Act, 1967, in the public interest.
The petitioner approached the Hon’ble Supreme Court under Article 32 of the Indian
Constitution, claiming infringement of her fundamental right to personal liberty.
Judgment: The Supreme Court held that the Government was not justified in
withholding the reasons for impounding the passport from the petitioner and
perceived the following-
1. Right to go abroad is implicitly covered under Article 21.
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2. The Passports Act, 1967, doesn’t prescribe the procedure for confiscation of
passport.
3. Principle of Natural Justice was violated because the petitioner was never
given a chance to be heard.
Hence, the Supreme Court overruled Gopalan’s case decision and widened the scope
of the term ‘personal liberty’. Bhagwati J. observed that Article 21 covers a wide
variety of rights which constitute personal liberty. The courts must seek to expatiate
the ambit and purview of the provisions related to fundamental rights rather than
impairing their meaning and scope. Any procedure which attenuate the rights of
individual must satisfy the requirement of natural justice i.e. it must be just, fair and
reasonable.
Interrelation of Article 14, 19 and Article 21
Old view: If we consider the old view given in the Gopalan’s case, we found that
the Supreme Court held that Article 19 has no connection and applicability to Article
21. Article 19 lays down the six fundamental freedoms of the individual and the
restrictions which can be imposed on them. On the other hand, Article 21 enables the
State to deprive an individual of his right to life and personal liberty in accordance
with the procedure established by the law. In Gopalan’s case, the majority was of
the view that as long as any law of preventive detention satisfies the requirements
of Article 22, there is no need to meet the requirements of Article 19.
Present view: In Maneka Gandhi’s case, the court overruled the view of majority
given in Gopalan’s case and clearly stated that Article 21 is totally connected to
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Article 19 as it takes its content from Article 19 also. Article 21 does not exclude
Article 19 and if any law deprives the right of life and personal liberty of an
individual, such a law must stand the test of Article 21 along with the test of Article
19 and 14 as well.
Procedure established by law: The life and personal liberty of a person can be
deprived only in accordance with the procedure established by law. Procedure
established by law refers to the law which is duly enacted by the Legislation. The
Executive has no authority to deprive a person from this right.
The drafters of Indian Constitution used the words ‘procedure established by law’
instead of ‘due process of law’ which is used in American Constitution.
In A. K. Gopalan v. State of Madras[4], the petitioner argued that the expression

‘procedure established by law’ was synonymous with the expression ‘due process by
law’ of the American Constitution. It was contended that the same protection is
given by the Indian Constitution as is given by the American Constitution with a
difference that ‘due process’ clause covers both substantive and procedural law
whereas the ‘procedure established by law’ provides protection of procedural law.
But the Supreme Court did not accepted this argument and held that both
expressions did not mean the same. The ‘procedure established by law’ which is
more specific, did not convey the same meaning in India as the clause ‘due process
by law’ apprehended in America which is quite vague.
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Natural Justice: In Gopalan’s case, it was contended by the petitioner that the word
‘law’ under Article 21 does not only include the enacted piece of law but also
encompasses the principle of natural justice and any law which deprives a person of
his life and personal liberty without obeying the principle of natural justice could not
be held as valid under Article 21. The court rejected this contention and held that
under Article 21, the word ‘law’ must include the law enacted by the Legislature and
not any general law embodying the principle of natural justice as interpreted by the
U.S. Supreme Court.
Mere prescription of any kind of procedure is not sufficient to meet the mandate of
Article 21. The procedure prescribed by the law has to be fair, just and reasonable
and not fanciful, arbitrary or oppressive. The principle of natural justice must be
incorporated in every procedure established by law.
Various Facets of Article 21
There are two rights which are explicitly included under Article 21.
1. Right to life
2. Right to personal liberty

Besides these two rights, there are several other rights which come within the scope
and meaning of Article 21. These rights are not expressly mentioned in Article 21
but impliedly embedded under it. Article 21 includes the following rights:
1. Right to live with human dignity
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2. Right to livelihood
3. Right to shelter
4. Right to privacy
5. Right to health and medical assistance
6. Right to sleep
7. Right to die
8. Right to Education
9. Right to free legal aid
10. Right to speedy trials
11. Homosexuality, etc.

Some rights are discussed below with relevant case laws.
Right to live with human dignity
A new dimension was given to Article 21 after the Maneka Gandhi’s case. It has
been held that the right to ‘live’ is not merely confined to physical existence but it
includes within it ambit the ‘right to live with human dignity’.
The court expounded the same view in the case of Francis Coralie v. Union
Territory of Delhi[5].
Facts: The validity of the provisions of the COFEPOSA (Conservation of Foreign

Exchange Prevention of Smuggling Activities Act, 1994) were challenged which
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provided that a detenu can have an interview with the lawyer only after obtaining
permission of the District Magistrate and that too, in the presence of Custom Officer
and permitted to meet the family members once in a month. The challenge was made
on the ground that these provisions are unreasonable, arbitrary and violative of
Article 21.
Judgment: The Court said that right to live is not restricted to mere animal
existence. It means something more than just physical survival. The right to live is
not confined to the protection of limb or faculty through which life is enjoyed but it
also include ‘right to live with human dignity’, and all that goes along with it, the
basic necessities of life such as adequate nutrition, clothing, shelter and facilities for
reading, writing and expressing ourselves in different forms, free movement and to
commingle with the other human beings.
The Supreme Court further added that the detenu’s right to have an interview with
his lawyer and family members is a part of his personal liberty subject to any valid
reasonable prison regulations. The right of detenu to consult a legal advisor of his
choice for any purpose is included in the ‘right to live with human dignity’ which is
an integral part of personal liberty guaranteed under Article 21 of the Indian
Constitution.
Case: People’s Union for Democratic Rights v. Union of India[6],
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In this case it was held that the non-payment of minimum wages to the workers
employed in various Asiad Projects in Delhi was a denial to them of their right to
live with human dignity and violative of Article 21 of the Constitution.
Right to livelihood
In Olga Tellis v. Bombay Municipal Corporation[7], commonly known as the

‘pavement dwellers case’, the court ruled that the word ‘life’ in Article 21 includes
the ‘right to livelihood’ also.
Facts: The petitioners challenged the validity of Sections 313, 313-

A, 314 and 497 of the Bombay Municipal Corporation Act, 1888, which empowered
the Municipal Authorities to remove the huts from pavements and public places
which is violative of Article 21.
Held: The court agreed that ‘right to livelihood’ is included in Article 21. It was
held that the above sections of the Bombay Municipal Corporation Act were
constitutional as they impose reasonable restrictions on the right to livelihood of
pavement and slum dwellers in the interest of the general public. Public places are
not meant for carrying trade or business. However, the court took humanistic view
and directed the Municipal Authority to remove them only after the end of the
monsoon season and also directed to frame schemes for hawking and non-hawking
zones and issue licences for selling good in hawking zone.
Right to sleep
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According to the interpretation of the courts, ‘right to sleep’ is a fundamental right
included in ‘right to life’ because to live a person must have access to good sleep.
Case: Ramlila Maidan v. Home Secretary, Union of India
Facts: On the night of 4th June, 2011, the men and women of different age groups
who gathered at Ramlila Maidan to participate in the Yoga Training Camp led by
Baba Ram Dev were sleeping and prior permission to hold the camp had been taken
from the competent authority. The permission to hold the camp was suddenly
withdrawn with any information and Section 144 of Cr.P.C. was imposed. The
police attempted to disperse the peacefully sleeping gathering by using tear gas and
lathi charge at about 1:00 A.M. a number of people were injured resulting into the
death of a woman.
Judgment: It was held that sleep is a biological necessity which contributes in

optimal health, happiness and improves the quality of life. The deprivation of sleep
reasults in mental and physical torture. Right to sleep has always been treated as a
fundamental right like the right to breathe, eat, drink etc.
Any suspicious or conspiratory thing on the part of the assembly could have been
investigated by the competent authority but sudden imposition of Section 144 Cr.P.
C appears to have been done in unlawful and slanderous manner. Therefore, the
basic human right of the crowd to have a sound sleep which is a constitutional
freedom acknowledged under Article 21 of the Constitution was violated by this act
of police.
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Right to speedy trial
In the case of Hussainara Khatoon v. Home Secretary, State of Bihar[9], right to

speedy trial was discussed by the court in detail.
Facts: A petition for a writ of habeas corpus was filed by number of undertrial
prisoners who were in the jail of Bihar for years awaiting their trial.
Judgment: The Supreme Court held that unlike the American Constitution,‘right to
speedy trial’ is not specifically listed as a fundamental right under Indian
Constitution but, it is implicit in the broad ambit of Article 21 of the Indian
Constitution as interpreted in Maneka Gandhi’s case. Speedy trial is the essence of
criminal justice. No procedure which does not ensure a reasonably quick trial can be
considered as ‘reasonable,fair or just’. For this reason the court ordered the Bihar
Government to take necessary steps and start the trials of the prisoners as soon as
possible. Right to speedy trial is available to accused at all stages including
investigation, inquiry, trial, appeal etc. In order to deliver justice, it is important that
trials must be speedy and after all justice delayed is justice denied.
Prisoner’s Right and Article 21
The protection of Article 21 is also available to convicts in jail. The convicts are not
deprived of their fundamental rights which they possess otherwise merely because of
their conviction. By conviction, a prisoner may be deprived of the fundamental
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freedoms like the right to move freely throughout the territory of India or right to
practise any practise any profession but he is entitled to the precious right
guaranteed under article 21 and cannot be deprived of his life and personal liberty
except according to the procedure established by law. The prisoners are not
completely denuded of all their fundamental rights but the enforceability of all
Fundamental Rights is restricted upon the fact of imprisonment.
Case: D.B.M. Patnaik v. State of A.P.
Facts: The petitioners were the naxalites under-trial prisoners who were undergoing
the sentence in the Central Jail, Visakhapatnam. They contended that the armed
police guards posted around the jail and the live-wire electrical mechanism fixed on
the top of the jail was an infringement of their right to life and personal liberty
guaranteed under Article 21 of the Constitution.
Judgment: The court held that in 146 naxalites were lodged in jail as a result of
which usual watch and ward arrangements proved inadequate. Some prisoners had
escaped from the prison. It was decided thereafter to take necessary steps to prevent
the escape of the prisoners from the jail. The court further added that no convict has
a right to dictate where guards are to be posted and where not to prevent the escape
of prisoners. The installation of live-wire mechanism does not violate the rights of
the prisoners. It is a preventive measure intended to act as a deterrent and cause
death only if a prisoner scales the wall while attempting to escape from lawful
custody. The installation of live-wire does not by itself cause the death of the
prisoners. Therefore, the court held that in the present case the convicts were not
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deprived of their fundamental rights by posting of police guards and installation of
live-wire outside the jail.
Right to Privacy
The right to privacy in India has been developed through a series of decisions.
Earlier, this right was not considered as a fundamental right in the Indian
Constitution. The first time this topic was ever raised in the case of Kharak Singh v.
State of U.P.. It was held by minority judges that right to privacy is a part of right to
life and personal liberty.
Further, in the case of Govind v. State of M.P., the Supreme Court confirmed that
right to privacy is a fundamental right but not an absolute right.
Case: R. Rajagopal v. state of Tamil Nadu
Facts: This case is famously known as ‘Auto Shankar case’. In this case, Auto
Shankar wrote his autobiography in jail depicting how prisoners and IAS, IPS are in
relation with each other and partners in crime. He gave his autobiography to his wife
to get it published. Government officials interfered in its publication with a fear to
get exposed if it gets published. So, the editors of the magazine filed a writ petition
in the Supreme Court saying that it violated Article 21.
Judgment: The court held that right to privacy or right to be let alone is guaranteed
under Article 21 of the Constitution. Everyone has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood, etc. None can publish
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anything concerning the above matters without his consent, whether truthful or
fictitious. If any person does so, he would be violating the right of the person
concerned and would be liable for the damages.
This rule is subject to an exception that if any publication of such matters are based
on public record including court record, it will be unobjectionable. If a matter
becomes a matter of public record the right to privacy no longer exists and it
becomes a legitimate subject for comment of press and media.
The second exception is that the right to privacy or the remedy of action for damage
is unavailable to public officials as long as the criticism regarding the discharge of
their public duties is concerned, not even when the publication is based on false
facts. Therefore, the court held that the State and its officials has no authority in law
to impose prior restraint on publication of defamatory matter. Officials can take
action only after publication if it is found to be untrue.
There are many aspects of Right to Privacy as well.
 Privacy and Virginity test
Case: Surjit Singh Thind v. Kanwaljit KaurFacts: In this case the wife filed a
petition for a decree of nullity of marriage on the ground that the marriage had never
been consummated because the husband was impotent. The husband took the
defence that the marriage was consummated and he was not impotent. So to prove
that the wife was not a virgin, he filed an application for the virginity test of his
wife.
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Judgment: The court held that allowing the medical examination of a woman’s
virginity violates her right to privacy under Article 21 of the Constitution.
 Privacy and Patient’s Information
Case: Mr. ‘X’ v. Hospital ‘Z’
Facts: In this case, during a treatment of some disease, the patient needed blood.
The appellant was asked by the doctors to donate blood for the patient. When his
blood samples were taken the doctors found that the appellant’s blood group was
HIV(+). Meanwhile, the appellant settled his marriage with a girl which was to be
held in a few days. But the marriage was called off on the ground that the blood test
of the appellant conducted by the respondent hospital was found to be HIV(+). As a
result of this, he contended that his prestige among his family members was
damaged. The appellant filed a writ petition in the High Court of Bombay for the
damages against the respondent on the ground that the information which was
required to be kept confidential under Medical Ethics was disclosed illegally and the
respondent is liable to pay damages for it. He contended that his right to privacy had
been infringed by the respondents by disclosing that the appellant was HIV(+).
Judgment: The Supreme Court held that disclosing that the appellant was suffering
from AIDS by the doctors in not violative of right to privacy of the appellant
guaranteed under Article 21. Although, right to privacy is a fundamental right under
Article 21, but it is not an absolute right and certain restrictions can be imposed on
it. Right to marry is an essential element of the right to privacy but not in absolute
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sense. Marriage is recognized as a sacred union, legally permissible, of two healthy
bodies of opposite sexes. Every system of matrimonial law provides that if a person
is suffering from venereal disease in a communicable form, it will be open to the
other partner in the marriage to seek divorce. Also, if a person is suffering from such
kind of disease even prior to the marriage, he has no right to marry unless the
disease is completely cured.
Therefore, when the patient was found to be HIV(+), the disclosure of this fact by
the doctors was not violative of patient’s right to privacy as the lady to whom the
patient was likely to be married was saved by such disclosure or else she too would
have been infected with the dreadful disease if marriage had taken place.
 Privacy and Telephone Tapping
Case: People’s Union of Civil Liberties v. Union of India
Facts: A petition was filed by a public interest litigation under Article 32 of the
Constitution by the People’s Union of Civil Liberties, a voluntary organisation,
highlighting the incidents of telephone tapping in the recent years. The petitioners
challenged the constitutional validity of Section 5 of the Indian Telegraph Act, 1885
which authorises the Centre or the State Government to resort to phone tapping in
the circumstances mentioned therein.
Judgment: The Supreme Court held that telephone tapping is a serious breach of an
individual’s right to privacy which is an integral part of right to life and personal
liberty enshrined under Article 21. State is not allowed to intervene in the
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individual’s right unless there is a matter of public emergency or interest of public
safety.
 Right to Privacy and Aadhar card
Case: Justice K.S. Puttaswamy v. Union of India
Facts: This case was brought before the Hon’ble Supreme Court by a retired judge
Justice K.S. Puttaswamy challenging the Aadhar scheme of the Government to be
violative of Article 21.
The Government introduced the Aadhar scheme which includes the biometric of an
individual and proposed to make it mandatory in order to access the government
policies and benefits. The petitioner challenged this scheme on the ground that it
violates the right to privacy of individual which is an intrinsic right within the ambit
of Article 21. Also, India does not have strict data protection laws. So, the misuse of
personal data of the individuals may happen which is an infringement of their right
to life and personal liberty.
The Attorney General of India, on the behalf of the government, argued that right to
privacy is not expressly specified as a fundamental right under the Constitution.
Referring the case of M.P. Sharma v. Satish Chandraand Kharak Singh v. State of
U.P., the respondent contended that the Constitution does not specifically provide
protection to right to privacy. Although right to privacy may be incorporated under
the right to life and personal liberty but with certain limits. It is not an absolute
fundamental right.
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Judgment: The Court gave a landmark judgment in this case by recognizing the
right to privacy as an intrinsic part of the right to life and personal liberty. It was
observed that right to privacy is not an absolute right as it is has certain limits as
provided by the law. The law must provide strict data protection and regulate
national security. Therefore, it was held that the scheme of Aadhar card is no more
mandatory.
Homosexuality
The LGBT community is recognized as an important part of the society today.

Ignoring the rights and demands of this community will not let the country progress
rapidly. The development of the country is the development of its people. Each and
every community has the right to live their life to the fullest. Any provision which
interrupts their personal liberty is ultra vires Article 14,15, and 21. Section 377, the
Indian Penal Code, 1860, in this regard was a very controversial provision which has
gone through a lot of debate and finally got decriminalised in 2018 in the case
of Navtej Singh Johar v. Union of India
Prior to this case, there were many other cases that came before the court for
decriminalization of Section 377, IPC.
Case: Naz Foundation v. Govt. of N.C.T. of Delhi
Facts: This case challenged the constitutionality of Section 377, IPC, on the ground
that it is violative of Article 21, 14 and 15 of the Indian Constitution.
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Judgement: The Delhi High Court held that as far as criminalization of consensual
sexual acts in private between adults who have attained the age of 18 years, Section
377, IPC, is violative of Article 14, 15 and 21. However, the provision of Section-
377, IPC will continue to govern the non-consensual sexual activities involving the
minors as the provision describes. It was further added by the Court that Section 377
denies a person’s dignity and criminalises the core identity of individuals solely on
the account of his sexuality and is therefore, violative of Article 21.
But this decision of the Delhi High Court was reversed by the Supreme Court in the
following case.
Case: Suresh Kumar Koushal v. Naz Foundation
Facts: The constitutionality of Section 377 was questioned through a Special Leave
Petition before the Hon’ble Supreme Court of India.
Judgment: The Supreme Court reversed the ruling of the Delhi High Court in
the Naz Foundation Case and held that Section 377 does not suffer from
unconstitutionality. The people who indulge in sexual intercourse in the ordinary
course and the people who indulge in sexual intercourse against the order of nature
constitutes different classes and the people falling in the different category cannot
claim that Section 377 suffers from vice of arbitrariness and irrational classification.
Ultimately, after going through a lot of controversial debates and decisions of the
different courts, Section 377 was decriminalised.
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Case: Navtej Singh Johar v. Union of India
Facts: In this case, the Court was asked to determine the constitutionality of Section
377 of the Indian Penal Code, which among other things, criminalises homosexual
acts as an ‘unnatural offence’.
Judgment: The Supreme Court of India unanimously delivered the verdict stating
the part of Section 377 dealing with consensual sexual acts between adults is
unconstitutional. The court observed that criminalizing the consensual sexual acts
between the adults is violative of right to equality enshrined under Article 14 of the
Constitution. The LGBT community in India is entitled to all the constitutional
rights and liberties which protected by the Indian Constitution. The court
pronounced that criminalising carnal intercourse is arbitrary, irrational and
unconstitutional.
Right to Education [Article 21A]
It is a well known fact that for the development of a democratic system of

government, education plays avery crucial role. Education provides dignity to a
person with the help of which he can contribute in the progress of the country.
The Constitution (86th Amendment) Act, 2002, added a new Article 21A which
ensures free and compulsory education for all the children of the age of 6 to 14
years.
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Therefore, the framers of the Constitution, releasing the significance of education in
a democratic country, imposed a duty on the State under Article 45 as one of the
directive policies of state to provide free and compulsory education to all children
until they complete the age of 14 years. The purpose of this provision was to abolish
illiteracy from the country.
Case: Unni Krishnan v. State of U.P.
In this case, the court specifically declares that the right to education for the children
of the age of 6 to 14 years is a fundamental right. Article 21A makes it mandatory
for the Government to enact a Central Legislation to give effect to the constitutional
amendment. The Parliament to give effect to 86th Amendment, passes the Right of
Children to Compulsory Education Act, 2009. This act provides responsibilities on
the Centre and the State Government, teachers, parents and community members to
ensure that all children of 6 to 14 years receive free and compulsory elementary
education.
Emergency and Article 21
Before the 44th Amendment, the Constitution allowed the suspension of the rights
under Article 21. Article 359 empowered the President to suspend the right to move
to the court for the violation of rights conferred by Article 21 through an order.
During the emergency arising out of the Chinese attack in 1962, Article 21 was
suspended for the first time. After that in 1971, it was suspended for the second time
when Pakistan attacked India. In 1976, during the tenure of Prime Minister Indira
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gandhi, this right was again suspended when emergency was declared on the ground
of internal disturbances.
In the case of ADM Jabalpur v. S.S. Shukla, popularly known as the ‘habeas corpus
case’, it was held that-
“Article 21 is the only depot of the right to life and personal liberty in the Indian
Constitution and if the right to move to any court for the enforcement of this right
was suspended by the orders of the President under Article 359, the detenu had no
locus standi to file a writ petition against wrongful detention.”
The 44th Amendment has amended Article 359 which now provides that the
President by order cannot suspend the enforcement of right to life and personal
liberty under Article 21. This amendment was done to prevent the situations in
future which arose in the habeas corpus case.
RIGHT TO EDUCATION UNDER ARTICLE 21A
Introduction
The essence of every country lies in education, and without it, the country
fails to survive. As a result, the cornerstone of the country is education. It
is crucial for the overall growth and effective operation of a democracy.
Education helps people become more skilled and more likeable, and as
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they grow, so does the country. It aims to achieve a wide range of goals
ranging from employment to that of human resource development, general
improvement, and bringing about much-needed social environment change.
It provides residents of a nation with personal freedom and empowerment,
thereby contributing to the development of an independent individual. It is
regarded as the societal cornerstone that supports political stability, social
progress, and economic prosperity. After food, clothing, and shelter a
person’s fourth essential necessity is education. It is the foundation upon
which society is built. Social justice and equality are made possible only by
means of education. Article 21A of the Indian Constitution, which was
inserted into the Constitution by means of the Constitution (Eighty-sixth
Amendment) Act, 2002, mandates every state to provide free and
compulsory education to all children in the age group of six to fourteen
years, thereby declaring education as a fundamental right guaranteed
under Part III of the Constitution. This amendment is a major milestone in
the country’s aim to achieve ‘Education for All’. The government stated
this step as ‘The dawn of the second revolution in the chapter of citizens
rights’. This article explores this provision with respect to society, the
judiciary, and other provisions of the Constitution in general.
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Right to Education and its underlying history
Without some knowledge of the historical causes of the denial of the right
and the constitutional response thereto, it is impossible to comprehend the
significance of the Right to Education in India. When India gained
independence from the British in 1947, the Constitution’s framers had to
deal with the reality of the population that was predominantly illiterate and
profoundly impoverished.
1. As originally enacted, Article 45 of the Constitution, a Directive

Principle of State Policy, obliged the State to make every effort to
provide free and compulsory education to every child until they
complete the age of fourteen years, within ten years from the
commencement of the Constitution. The Constitution stipulates that
even while the Directive Principles of State Policy are
not “enforceable in the court of law,” the State is nonetheless
required to use them when enacting legislation since “the principles
therein put out are nonetheless important in the governing of the
country.” Additionally, Article 45 was the only Directive Principle
with a deadline for completion, which shows how highly the
Constitution’s founders valued this principle.
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2. There can be little debate about the abject failure of the endeavour
to provide universal access to education in the initial decades
following independence. The overall literacy rate was a modest 65
percent as of 2001. In terms of primary education, from 2003–2004
to 2004–2005, more than 10% of students enrolled in Grades I–V,
left school before completing the program. For the first time ever,
according to census data, the number of illiterate Indians fell from
329 million in 1991 to 304 million in 2001.
3. It shouldn’t come as a surprise that, like any other democracy, the

democratic arms of the Indian government engaged in self-
reflection and self-correction as a result of the failure of sheer scale
mentioned above. The amount that the Central Government
allocates for education has been rising over time, albeit slowly and
erratically. For the first time in 1955–1956, spending on education
exceeded 1 percent of the Gross Domestic Product (GDP), and it
remained in this range until 1979. The constitutional amendment
that granted the Central Government concurrent legislative
authority to intervene in the area of education was a very significant
milestone in 1976. Although it hasn’t yet been accomplished, the
government has set a self-imposed goal of spending 6% of the GDP
on education.
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4. It is obvious that in the past few years, there has been significant
progress made toward the realisation of universal primary
education. This is frequently credited to the Sarva Shiksha Abhiyan
[National Campaign for Education for All], a national umbrella
program launched in 2000 with the goal of achieving universal
primary education. According to government figures, the overall
number of children who are not enrolled in school has decreased
from 42 million at the beginning of the tenth five-year plan (1997-
2002) to 13 million in 2005.
5. A 2 percent cess on all significant central taxes, with the proceeds

going particularly towards elementary education, is a practical step
made toward resource mobilisation. It was decided to amend the
Constitutional provisions to include the Right to Education as a
fundamental right. In addition to this, education was slowly gaining
momentum in terms of budgetary allocations and program
execution.
6. Ultimately, Article 21A, a fundamental right that is subject to

judicial review, was added as a result of the Constitution (Eighty-
sixth Amendment) Act of 2002. One of the aspects of this
amendment, which is the exclusion of early childhood care and
education (for children younger than six years old) from the scope
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of the justifiable right, attracted a substantial amount of criticism. It
is crucial to recognise that there was no mistake on the side of
Parliament in this. The fact that the right to primary education is
now an absolute right while the state still has some latitude in terms
of its obligation to provide early childhood care and education,
shows that the Parliament’s intention was to move the goalposts in
terms of enforceability.
It is crucial to keep in mind that the financial commitment the State needed
to make in order to universalize primary education no longer seems wholly
implausible. For instance, a government-appointed expert committee first
calculated that it would cost 0.78 percent of GDP annually to implement
universal primary education in the years prior to the inclusion of Article
21A. However, the government revised the expected yearly cost to 0.44
percent of the GDP at the time the constitutional amendment was
proposed.
This financial demand appears doable given the government’s self-imposed

aim to raise spending to 6% of GDP and the context of gradually
increasing budgetary allocations for education. The protracted delay in
implementing the fundamental right is especially concerning in light of
these historical occurrences. Significant issues with constitutional law and
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democratic accountability with regard to the new fundamental right have
been raised as well.
Article 21A of the Indian Constitution
Human progress depends on education. Any nation’s future is dependent

on the quality of its educational system. Even while the members of the
Constituent Assembly understood the value of universal education, they
were unable to guarantee it as a fundamental right because of a lack of
funding, despite the fact that it was listed in the Directive Principles of
State Policy. The Indian judicial system attempted to include the right to
education as a component of the Right to Life in the 1993 case of Unni
Krishnan v. State of Andhra Pradesh. Through a constitutional amendment
that was passed in 2002, the Indian Parliament also gave its future
inhabitants the right to an education.
On several occasions, both the judiciary and the Parliament had the chance
to clearly explain the nature of this newly created fundamental right,
particularly in light of the possibility that it might conflict with the
fundamental right of minorities that already exists to create and run
educational institutions of their choosing. There were a few crucial
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questions that needed to be addressed. Whether the Supreme Court’s
decision in the afore-mentioned case to include the Right to Education in
the purview of Article 21 and the insertion of this new right alongside the
Right to Life has given the former any precedence over other related rights,
remains an unanswered question.
Right to Education under the Indian Constitution
The Indian Constitution has several provisions and schedules that protect
children’s interests in education. There are various articles and guiding
concepts in the Indian Constitution that protect and mandate the provision
of education for its citizens. The Sergeant Commission, the last British
education commission, predicted that universal education would be
available in 40 years, or by 1985. The 42nd Amendment of 1976 to the
Indian Constitution, made education a concurrent issue in order to expand
basic education facilities, especially in underdeveloped areas thereby
making education accessible to every individual by means of delivering it
freely and mandatorily with priority for primary education.
Initially left out of the Constitution’s list of fundamental rights, the Right
to Education was added as a Directive Principle under Article 45, which
mandated the State to make efforts to offer all children free and
compulsory education until the age of 14. This was done within the first ten
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years of the Constitution’s coming into effect. Article 45’s directive covers
all levels of education up to and including the age of 14 and is not just
limited to elementary school.
As a result, this age group of children should have had free access to
education. The Supreme Court implied the ‘Right to Education’ during this
time from other constitutional provisions such as Articles
21, 24, 30(1), 39(e), and 39(f), in its decision-making concerning issues
over the Right to Education. The Court has time and again highlighted that
the state can fulfil its moral commitment under Article 45 to “provide for
free and compulsory education for children” through government-run and
aided schools, and that Article 45 does not mandate that this obligation be
fulfilled at the expense of minority populations.
On August 4, 2009, the Indian Parliament passed the Right to Education

Act, 2009, popularly known as the RTE Act, 2009. Article 21A of the
Indian Constitution explains the necessity of free and mandatory education
for children aged 6 to 14 in India. With the implementation of this Act on
April 1, 2010, India joined the list of 135 nations that have made education
a fundamental right for all children. It establishes basic standards for
primary schools, outlaws the operation of unrecognised institutions, and
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opposes admissions fees and kid interviews during admission to
government-aided schools.
Through routine surveys, the Right to Education Act keeps an eye on every
neighbourhood and identifies children who should have access to education
but have not been provided with it. In India, there have long been
significant educational issues at the national level as well as in the states.
The RTE of 2009 outlines the tasks and obligations of the Central
Government, each state, and all local governments in order to fulfil any
gaps in the nation’s educational system.
List of constitutional provisions promoting education as a right
1. Article 21A: The new Article 21A, which was inserted into the
Indian Constitution by means of the 86th Constitutional
Amendment, states that “the state shall provide free and
compulsory education to all children between the ages of 6 and 14
through a law that it may determine.” In 2009, the Right to
Education Act was passed in light of Article 21A.
2. Article 15: Discrimination based on grounds of religion, ethnicity,

caste, sex, or place of birth is forbidden by Article 15 of the Indian
Constitution. Article 15(3), however, says that nothing in this clause
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prevents the state from adopting any specific measures for women
and children.
3. Article 38: Any social order that promotes the welfare of the people
is secured by Article 38 of the Indian Constitution.
4. Article 45: Article 45 of the Indian Constitution endeavours to

provide free and compulsory education to all children up to the age
of 14 years.
5. Article 29(2): Article 29(2) of the Indian Constitution provides that

no citizen shall be denied entrance to any state-maintained
educational institution or be denied financial help from state funds
on the basis of their religion, race, caste, language, or any
combination of these.
6. Article 30: Minority linguistic and religious groups are protected

by Article 30 of the Indian Constitution. They have the right to
create and run any institution they want.
86th Constitutional Amendment Act, 2002
The 86th Amendment Act of 2002 adds three specific provisions to the
Constitution to make it easier to understand that children between the ages
of 6 and 14 have a fundamental right to free and compulsory education.
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This amendment was made with the intention of protecting citizens’ rights
to education and recognising India’s educational challenges.
1. Every child has the right to a full-time elementary education of

adequate and equitable quality in a formal school that complies with
certain fundamental norms and standards, thanks to the addition of
Article 21A in Part III of the Indian Constitution.
2. The language of Article 45 went through modification to Article 45

as it was replaced with the statement that the “State shall work to
ensure early childhood care and free and mandatory education for
all children up to the age of six”.
3. The addition of a new clause to Article 51 A makes it explicitly

mandatory for parents or guardians to provide opportunities for
their children between the ages of 6 and 14 to receive an education
[Article 51A (k)].
Reasons behind the enactment of the Right To Education Act, 2009
The reasons behind the enactment of the Right to Education Act, 2009
have been provided hereunder:
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1. 1950: Article 45 of the Indian Constitution lists it as one of the
Directive Principles of State Polices.
2. 1968: Dr. Kothari was put in charge of the First National

Commission for Education, which submitted its reports concerning
education as a right.
3. 1976: The Constitution was amended to make education a

concurrent issue that falls under both Central and state jurisdiction
(42nd Amendment of the Indian Constitution).
4. 1986: The Common School System (CSS) was supported by

the National Policy on Education (NPE), which was developed but
not put into practice.
5. 1993: The Right to Education was recognised as a fundamental

right that followed the Right to Life under Article 21 of the Indian
Constitution, according to the Supreme Court’s decision in the case
of Mohini Jain v. State of Karnataka (1992) and Unni Krishnan v.
State of Andhra Pradesh (1993).
6. 2002: Article 21A was added to the Constitution as part of the 86th
Amendment, which also altered Article 45 and added a new basic
responsibility under Article 51A(k).
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7. 2005: The Central Advisory Board of Education (CABE)
Committee report, which was formed to design the Right to
Education Bill, had been submitted.
8. 2009: The Right of Children to Free and Compulsory Education

Act, 2009 came into the picture.
Right of Children to Free and Compulsory Education Act, 2009
To give effect to Article 21A of the Constitution, the Right of Children to

Free and Compulsory Education Act, 2009, was passed. It said that the
state would provide free and mandatory education to children between the
ages of 6 and 14 years old, incorporating the right to primary education. In
2008, six years after the Indian Constitution underwent an amendment
(86th Amendment, 2002), the Cabinet approved the Right to Education
Bill. The Cabinet adopted the measure on July 2, 2009. The bill was
approved by both the Rajya Sabha and Lok Sabha on July 20, 2009, and
August 4, 2009, respectively. The Act was notified as legislation on
September 3, 2009, after receiving the President’s approval. With the
exception of the state of Jammu and Kashmir, the law took effect on 1st
April 2010 throughout the nation. The Act provides for the following:
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1. Every child between the ages of 6 and 14 has a fundamental right to
free, obligatory education in schools up to the completion of
elementary education.
2. Children who have either quit school or have not shown up at any
school will be enrolled in the schools, and no school will be able to
refuse to accept them.
3. In order to admit pupils from economically disadvantaged and

weaker sections of society to class one, private and independent
educational institutions must set aside 25% of their seats.
4. A child’s age must be established for admission to a school based

on a certificate issued in accordance with the terms of the birth,
death, and Marriage Registration Act of 1856 or on the basis of any
other documents that may be required.
5. The Act’s implementation will be supervised by the state

commission and the National Commission for the Protection of
Children’s Rights (NCPCR).
6. School management committees of 75% of parents and guardians

are required to oversee all schools, with the exception of private
unaided institutions.
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7. The mother tongue of the child will be used as the instruction
medium, and a thorough and ongoing system of performance
evaluation will be used.
8. A number of teachers for classes 1st to 5th:
 Admitted children (up to 60): The number of teachers required is 2.
 Children between (61-90): The number of teachers required is 3.
 Children between (91-120): 4 teachers are required.
 Above 150 children: 5 teachers + 1 head teacher.
9. The ratio of financial responsibilities between the Central

Government and each state will be 55:45. For the northeastern state,
it will be 90:10.
10. Building:
 At least one classroom for every teacher and one office-cum-store-

cum-head teacher’s room.
 Separate toilets for girls and boys.
 A kitchen where a mid-day meal is prepared.
 One playground.
 Safe and adequate drinking water facility.

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11. A minimum number of working days:
 200 working days for 1-5th class.
 220 working days for 6-8th class.
12. Instructional hours:
 800 Instructional hours per academic year for the 1st-5th class.
 1000 Instructional hours per academic year for the 6th-8th class.
13. The Act mandates the presence of libraries in each school,

providing newspapers, magazines & books.
14. According to the RTE Act, children who live within “the
prescribed area or borders of neighbourhood” should have access
to primary schools:
 Primary school within 1km.
 Elementary schools within 3km.
15. The Act establishes the disabled population’s Right to Education

up to the age of 18.
16. The Act prohibits both physical and psychological abuse,

procedures for screening youngsters who are being admitted,
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capitation costs, teachers providing private instruction and operating
schools without authorisation.
Features of the Right to Education Act, 2009
Compulsory and free education for all
In India, the government is required to provide free and required primary

education to each and every child, up to class 8, in a neighbourhood school
within a 1 km radius. No child is required to pay any fees or other costs
that would keep them from pursuing and finishing their elementary
education. In order to lessen the financial burden of school expenses, free
education also involves the distribution of textbooks, uniforms, stationery
items, and special educational materials for students with disabilities.
Special provisions for special cases
According to the RTE Act, a child who is not enrolled in school must be
accepted into a class for their age and get additional instruction to help
them catch up to age-appropriate learning levels.
The benchmark mandate
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The RTE Act establishes guidelines and requirements for classrooms,
boys’ and girls’ restrooms, drinking water facilities, the number of school
days, and working hours for teachers, among other things. This collection
of requirements must be followed by each and every elementary school in
India (primary + middle school) in order to uphold the minimum standards
required under the Right to Education Act.
Quantity and quality of teachers
The RTE Act ensures that the necessary pupil-teacher ratio is maintained in
every school without any urban-rural imbalance at all, allowing for the
sensible deployment of teachers. Additionally, it requires the hiring of
teachers who have the necessary academic and professional training.
Zero tolerance against discrimination and harassment
The RTE Act of 2009 outlaws all forms of corporal punishment and
psychological abuse, as well as discrimination based on gender, caste,
class, and religion, as well as capitation fees, private tutoring facilities, and
the operation of unrecognized schools. Less than 10% of schools
nationwide, according to the Right to Education (RTE) Forum’s
Stocktaking Report, 2014 adhere to all of the requirements of the Right to
Education Act. Even if the Right to Education Act of 2009 brought about a
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lot of advances, worries about the privatisation of education still exist.
Inequalities in education have persisted for a long time in India. Although
the Right to Education Act represents the first step toward an inclusive
education system in India, its successful implementation still presents
difficulties.
Improving learning outcomes to minimise detention
No child is allowed to be held back or expelled from school until Class 8,

as per the provisions of the Right to Education Act. In order to guarantee
learning results that are acceptable for each grade in schools,
the Continuous Comprehensive Evaluation (CCE) system was created in
2009 under the Right to Education Act. This approach was established in
order to examine every area of the child while they were in school,
allowing gaps to be found and addressed as soon as possible.
Monitoring compliance with RTE norms
School Management Committees (SMCs) are essential for enhancing

governance and participatory democracy in primary education. All schools
covered under the Right to Education Act of 2009 are required to form a
School Management Committee made up of the principal, a local elected
official, parents, and other community members. The committees have
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been given the authority to establish a school development plan and
monitor how the schools are operating.
Ensuring all-round development of children
The Right to Education Act of 2009 calls for the creation of a curriculum
that would guarantee each child’s overall development. Develop a child’s
knowledge, abilities, and potential as a person.
Right to Education Act is justiciable
The Right to Education Act of 2009 is legally enforceable, and it is

supported by a Grievance Redressal (GR) framework that enables anyone
to take legal action against violations of its provisions. Oxfam
India and JOSH filed a complaint with the Central Information
Commission (CIC) in 2011 under Section 4 of the Right to Information
Act, 2005 to ensure that all schools adhere to this requirement. All public
authorities are required to share information with individuals about how
they operate under Section 4 of the RTI Act, which is a proactive
disclosure section. Since public authorities include schools, Section 4
compliance was required.
Creating inclusive spaces for all
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All private schools must set aside 25% of their seats for children from
socially and economically disadvantaged areas, according to the Right to
Education Act of 2009. The Act’s clause promoting social inclusion aims
to create a more equitable and just society.
RIGHT AGAINST EXPLOITATION
Article 23 – Prohibition of traffic in human beings and forced labour
Article 23(1): Traffic in human beings and the beggar and other similar
forms of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with the law.
Article 23(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.
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 Exploitation implies the misuse of others’ services by force and/or
labour without payment.
 There were many marginalized communities in India who were forced
to engage in manual and agricultural labour without any payment.
 Labour without payment is known as begar.
 Article 23 forbids any form of exploitation.
 Also, one cannot be forced to engage in labour against his/her will
even if remuneration is given.
 Forced labour is forbidden by the Constitution. It is considered forced
labour if the less-than-minimum wage is paid.
 This article also makes ‘bonded labour’ unconstitutional.
 Bonded labour is when a person is forced to offer services out of a
loan/debt that cannot be repaid.
 The Constitution makes coercion of any kind unconstitutional. Thus,
forcing landless persons into labour and forcing helpless women into
prostitution is unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and women for
illegal and immoral activities.
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 Even though the Constitution does not explicitly ban ‘slavery’, Article
23 has a wide scope because of the inclusion of the terms ‘forced
labour’ and ‘traffic’.
 Article 23 protects citizens not only against the State but also
from private citizens.
 The State is obliged to protect citizens from these evils by taking
punitive action against perpetrators of these acts (which are
considered crimes), and also take positive actions to abolish these
evils from society.
 Under Article 35 of the Constitution, the Parliament is authorized to
enact laws to punish acts prohibited by Article 23.
 Clause 2 implies that compulsory services for public purposes (such
as conscription to the armed forces) are not unconstitutional.
 Laws passed by the Parliament in pursuance of Article 23:
 Suppression of Immoral Traffic in Women and Girls Act, 1956
 Bonded Labour System (Abolition) Act, 1976
Article 24 – Prohibition of employment of children in factories, etc.
Article 24 says that “No child below the age of fourteen years shall be
employed to work in any factory or mine or engaged in any other
hazardous employment.”
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 This Article forbids the employment of children below the age of 14
in any hazardous industry or factories or mines, without exception.
 However, the employment of children in non-hazardous work is
allowed.
Laws that were passed in pursuance of Article 24 in India.
The Factories Act, 1948
This was the first act passed after independence to set a minimum age limit
for the employment of children in factories. The Act set a minimum age of
14 years. In 1954, this Act was amended to provide that children below the
age of 17 could not be employed at night.
The Mines Act of 1952
This Act prohibits the employment of people under the age of 18 years in
mines.
The Child Labour (Prohibition and Regulation) Act, 1986
This was a landmark law enacted to curb the menace of child labour
prevalent in India. It described where and how children could be employed
and where and how this was forbidden. This Act designates a child as a
person who has not completed his/her 14th year of age. The 1986 Act
prohibits the employment of children in 13 occupations and 57 processes.
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Child Labour (Prohibition & Regulation) Amendment Act, 2016
This Act completely forbids the employment of children below 14 years of

age. It also bans the employment of people between the ages of 14 and 18
in hazardous occupations and processes. Punishments to violators of this
law were made stricter by this amendment act. This Act allows children to
be employed in certain family occupations and also as artists.
Child Labour (Prohibition and Regulation) Amendment Rules, 2017
The government notified the above Rules in 2017 to provide a broad and
specific framework for prevention, prohibition, rescue, and rehabilitation
of child and adolescent workers. The Rules clarified on issues concerning
the employment of family enterprises and also provides safeguards for
artists in that the working hours and conditions are specified.
EMPOWERMENT OF WOMEN AND RIGHTF OF THE CHILD

Legal And Constitutional Provisions For Women In India. The principle of
gender equality is enshrined in the Indian Constitution in its Preamble,
Fundamental Rights, Fundamental Duties and Directive Principles. The
Constitution not only grants equality to women, but also empowers the
State to adopt measures of positive discrimination in favour of women.
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A. Legal Provisions
To uphold the Constitutional mandate, the State has enacted various
legislative measures intended to ensure equal rights, to counter social
discrimination and various forms of violence and atrocities and to provide
support services especially to working women. Although women may be
victims of any of the crimes such as Murder, Robbery, Cheating etc, the
crimes, which are directed specifically against women, are characterized
as Crime against Women. These are broadly classified under two
categories:
(1) The Crimes Identified Under the Indian Penal Code (IPC)
Rape (Sec.376 IPC)
Kidnapping & Abduction for different purposes ( Sec. 363-373)
Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B
IPC)
Torture, both mental and physical (Sec. 498-A IPC)
Molestation (Sec. 354 IPC)
Sexual Harassment (Sec. 509 IPC)
Importation of girls (up to21 years of age)
(2) The Crimes identified under the Special Laws (SLL)
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Although all laws are not gender specific, the provisions of law affecting
women significantly have been reviewed periodically and amendments
carried out to keep pace with the emerging requirements. Some acts which
have special provisions to safeguard women and their interests are:
The Special Marriage Act, 1954
The Hindu Marriage Act, 1955
The Maternity Benefit Act, 1961 (Amended in 1995)
Dowry Prohibition Act, 1961
The Medical Termination of Pregnancy Act, 1971
The Equal Remuneration Act, 1976
The Prohibition of Child Marriage Act, 2006
The Criminal Law (Amendment) Act, 1983
Indecent Representation of Women (Prohibition) Act, 1986
Commission of Sati (Prevention) Act, 1987
The Protection of Women from Domestic Violence Act, 2005
B. Constitutional Provisions
The Constitution of India not only grants equality to women but also
empowers the State to adopt measures of positive discrimination in favour
of women for neutralizing the cumulative socio economic, education and
political disadvantages faced by them. Fundamental Rights, among others,
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ensure equality before the law and equal protection of law; prohibits
discrimination against any citizen on grounds of religion, race, caste, sex or
place of birth, and guarantee equality of opportunity to all citizens in
matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b),
39(c) and 42 of the Constitution are of special importance in this regard.
Constitutional Privileges
(Article 14) Equality before law for women.
According to Article 14, The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India.
(Article 15) Prohibition of discrimination on grounds of religion, race,

caste, sex or place of birth.
(Article 15(1))The State shall not discrimination against any citizen on
grounds only of religion, race, caste, sex, or place of birth or any of them.
(Article 15(3)) The State to make any special provision in favour of women
and children.
(Article 16) Equality of opportunity in matters of public employment.

(Article 16(1)) There shall be equality of opportunity for all citizens in
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matters relating to employment or appointment to any office under the
state.
(Article 19) Freedom Of Speech And Expression

(Article 19(1)(a)) states that, all citizens shall have the right to freedom of
speech and expression.
( Article 21) Protection of life and personal liberty.

No person shall be deprived of his life or personal liberty except according
to procedure established by law.
(Article 39) Directive Principles of State Policy

(Article 39(a)) The State to direct its policy towards securing for men and
women equally the right to an adequate means of livelihood.
(Article 39(d)) directs the state to secure equal pay for equal work for both
men and women.
(Article 39 A) To promote justice, on a basis of equal opportunity and to

provide free legal aid by suitable legislation or scheme or in any other way
to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
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Article 42 of the Constitution incorporates a very important provision for

the benefit of women. It directs the State to make provision for securing
just and humane conditions of work and for maternity relief.
(Article 51(A) (e)) is related to women. It states that;

It shall be the duty of every citizen of India to promote harmony and the
spirit of common brotherhood amongst all the people of India transcending
religion, linguistic, regional or sectional diversities; to renounce practices
derogatory to the dignity of women.
Article 243 D: Reservation of seats.

(Article 243 D(1)) Seats shall be reserved for –
(a) The Scheduled Castes; and
(b) The Scheduled Tribes,
(Article 243 D(2)) Not less than one-third of the total number of seats
reserved under clause (1) shall be reserved for women belonging to the
Scheduled Castes or, as the case may be, the Scheduled tribes .
(Article 243 D(3)) Not less than one-third (including the number of seats
reserved for women belonging to the Scheduled Castes and the Scheduled
Tribes) of the total number of seats to be filled by direct election in every
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Panchayat to be reserved for women and such seats to be allotted by
rotation to different constituencies in a Panchayat.
(Article 243 D (4)) Not less than one- third of the total number of offices of
Chairpersons in the Panchayat at each level to be reserved for women.
Article 243 T: Reservation of seats

(Article 243 T (3)) Not less than one-third (including the number of seats
reserved for women belonging to the Scheduled Castes and the Scheduled
Tribes) of the total number of seats to be filled by direct election in every
Municipality to be reserved for women and such seats to be allotted by
rotation to different constituencies in a Municipality.
(Article 243 T (4)) Reservation of offices of Chairpersons in Municipalities
for the Scheduled Castes, the Scheduled Tribes and women in such manner
as the legislature of a State may by law provide.
C. Special Initiatives For Women

National Commission for Women: In January 1992, the Government set-up
this statutory body with a specific mandate to study and monitor all matters
relating to the constitutional and legal safeguards provided for women,
review the existing legislation to suggest amendments wherever necessary,
etc.
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Reservation for Women in Local Self-Government: The 73rd

Constitutional Amendment Acts passed in 1992 by Parliament ensure one-
third of the total seats for women in all elected offices in local bodies
whether in rural areas or urban areas.
The National Plan of Action for the Girl Child (1991-2000): The plan of
Action is to ensure survival, protection and development of the girl child
with the ultimate objective of building up a better future for the girl child.
National Policy for the Empowerment of Women, 2001: The Department
of Women & Child Development in the Ministry of Human Resource
Development has prepared a National Policy for the Empowerment of
Women in the year 2001. The goal of this policy is to bring about the
advancement, development and empowerment of women in socio-
economic and politico–cultural aspects, by creating in them awareness on
various issues in relation to their empowerment.
Government Enactments
The National Commission for Women has in the last few years introduced
several new bills in the parliament from time to time towards eradication of
many social evils. Some of the significant enactments are mentioned here.
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Beti padao beti bacho yojana

The Dowry Prohibition Act, 1961
The Hindu Widow Re-Marriage Act of 1856: In the traditions at Hindu
society there was a ban on widow remarriage it was one of the most
important evils from which women in the traditional Hindu society
suffered a lot. This act allowed widow to remarry and section 5 of this Act
ensured her to enjoy all the rights, which a married woman did.
The Child Marriage Restraint Act of 1929: The practice of child marriage
was another social evil from which women in traditional Hindu society
suffered a lot. Age at marriage for girls was 9 or 10 and after passing this
act the minimum marriageable age of women was fixed to 15 years. Later
this age was increased up to 18 years.
The Hindu Marriage Act of 1955: This Act has recognized the equal rights
of men and women in the matters of marriage and divorce. Under the
provision of this Act either the man or woman[ii] can present a petition in a
court of law for divorce, wife has got equal right to divorce husband.
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RIGHT TO RELIGION
Article 25 (Freedom of conscience and free profession, practice, and

propagation of religion)
Article 25 guarantees the freedom of conscience, the freedom to profess, practice,
and propagate religion to all citizens.
 The above-mentioned freedoms are subject to public order, health, and

morality.
 This article also gives a provision that the State can make laws:
 That regulates and restricts any financial, economic, political, or other
secular activity associated with any religious practice.
 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.
 People of the Sikh faith wearing & carrying the kirpan shall be considered as
included in the profession of the Sikh religion.
Article 26 (Freedom to manage religious affairs)

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.
Article 27 (Freedom as to payment of taxes for promotion of any particular

religion)
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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.
Article 28 (Freedom as to attendance at religious instruction or religious

worship in certain educational institutions)
This article permits educational institutions that are maintained by religious groups
to disseminate religious instruction.
 This provides that no religious instruction shall be provided in State-run

educational institutions.
 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).
 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
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.
What is Secularism?
The word ‘secularism’ means separate from religion.
 It entails the separation of religion from the government, social, economic, and
cultural aspects of life.
 Here religion is an entirely personal matter.
 India is a secular country with no state religion.
 However, this in India, also means that there is equal respect for all religions
and faiths.
 The word is also a part of the Basic Structure of the Constitution. It was added
by the 42nd Amendment to the Constitution.
 This concept enjoys high regard in Indian democracy.
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 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.
 All religious groups in India have the same powers without any discrimination.
Indian and Western Models of Secularism

The term secularism, as explained above, indicates the separation of the State from
religion. This concept, however, has slightly differing connotations in the Indian and
the western polity. This is discussed below.
 In the Western model, secularism connotates complete separation of the State

from the Church. This owes its origin to the French Revolution where the
revolution sought to establish a ‘secular’ government, one which did not
influence the church or the clergy.
 Both the institutions (church and government) would not interfere in each
other’s domains.
 In India, however, the State and religion are not water-tight compartments.
 Even though the State has to maintain equal distance from all religions, the
influence of the government does extend to religious affairs, albeit in a limited
fashion.
 Unlike the western model, where the State does not offer financial support to
any religious institution, in India, the State has chosen a positive engagement
model.
 The state provides religious minorities the right to establish their educational
institutions, and in some cases, also extends assistance to these institutions.
 Many Hindu temples are directly governed by the State.
 The State has set up Boards for the administration of large temples and has
also set up the Waqf Board, etc.
 In India, when talking about society and the community, the word pluralism is
better suited than the word secularism.
 Western societies have largely been homogenous with minimal religious (and
other) minority groups, until recently.
 In India, for centuries, many religious groups have shared spaces in all respects
and thrived together.
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MINORITY RIGHTS IN INDIA
India is a diverse nation with a rich tapestry of cultures, religions, and languages.
Recognizing the importance of protecting the interests and rights of its minority
communities, the framers of the Indian Constitution laid down a comprehensive
framework that guarantees various rights and protections to religious and linguistic
minorities, as well as to other marginalized groups. In this essay, we will explore the
minority rights provided under constitutional law in India, supported by relevant
case laws.
Freedom of Religion:
The Indian Constitution, in Articles 25-28, enshrines the freedom of religion as a
fundamental right. It ensures the right to freely profess, practice, and propagate
religion. Notably, these rights are not confined to the majority community but are
extended to religious minorities as well.
Case Law: In the landmark case of Shirur Mutt v. Commissioner, Hindu Religious
Endowments, Madras (1954), the Supreme Court held that the term 'religion' in
Article 25 includes the way of life and practices that are an essential part of the
religion. This case established that religious denominations have the autonomy to
manage their own affairs.
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Cultural and Educational Rights:

Articles 29 and 30 of the Indian Constitution protect the rights of minorities to
conserve their distinct language, script, and culture, and to establish and administer
educational institutions of their choice. These provisions are crucial for the
preservation of the cultural and educational identity of minority communities.
Case Law: In T.M.A. Pai Foundation v. State of Karnataka (2002), the Supreme
Court affirmed the rights of minority educational institutions to have substantial
autonomy in administration. The case highlighted that Article 30(1) gives minorities
the right to establish and administer their institutions, free from excessive
government interference.
Protection from Discrimination:

Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, or
place of birth. Article 16 ensures equality of opportunity in public employment
without discrimination based on these factors, extending protection to minorities.
Case Law: In M. Ismail Faruqui v. Union of India (1994), the Supreme Court
addressed the question of whether the acquisition of a religious place, such as the
Babri Masjid, could be valid. The court emphasized that the state is bound to uphold
the principles of equality and secularism, and that no person should be discriminated
against on the basis of their religion.
Right to Constitutional Remedies:

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Articles 32 and 226 of the Constitution provide the right to move the Supreme Court
and High Courts, respectively, for the enforcement of fundamental rights, including
minority rights. These provisions empower individuals and groups to seek legal
remedies when their rights are violated.
Case Law: In Chandan Mal Chopra v. State of Delhi (2000), the Delhi High Court
considered a case involving a school that had refused admission to a child from a
minority community. The court reaffirmed the importance of constitutional remedies
and held that the denial of admission based on religion was a violation of the child's
fundamental rights.
Reservation for Scheduled Castes and Scheduled Tribes:

While not exclusive to religious minorities, the Constitution provides for the
reservation of seats in educational institutions and government jobs for Scheduled
Castes and Scheduled Tribes, which includes many minority communities.
Case Law: In Indra Sawhney v. Union of India (1992), commonly known as the
Mandal Commission case, the Supreme Court upheld the provision of reservations
for Scheduled Castes and Scheduled Tribes in government jobs. The court's decision
underscored the importance of affirmative action for marginalized communities.
Affirmative Action:
Article 46 of the Indian Constitution directs the state to promote the educational and
economic interests of Scheduled Castes, Scheduled Tribes, and other weaker
sections, including many minority communities. This provision emphasizes the need
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for policies and programs aimed at improving the socio-economic conditions of
these groups.
Case Law: While not tied to a specific case, the implementation of affirmative action
policies, such as reservation in educational institutions and government jobs, has
been a consistent theme in Indian jurisprudence. These policies are aimed at
upliftment and empowerment, benefiting not only Scheduled Castes and Scheduled
Tribes but also minority communities.
Special Provisions for Minority Educational Institutions:

Minority communities have the right to establish and administer educational
institutions of their choice, and these institutions are exempt from certain
educational regulations, preserving their autonomy.
Case Law: In St. Stephen's College v. University of Delhi (1992), the Supreme
Court held that minority educational institutions have the autonomy to set their
admission criteria and maintain their character. This case affirmed the rights of
minority institutions to preserve their identity.
The protection of minority rights in India is not just a matter of legal provisions but
also a reflection of the country's commitment to pluralism and secularism. These
constitutional provisions and their interpretations through case law emphasize the
need to safeguard the cultural, religious, and educational rights of minority
communities. The judiciary plays a pivotal role in ensuring the enforcement of these
rights, thereby contributing to the inclusivity and diversity that define the Indian
nation.
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UNIT – 4
Directive Principles of State Policy and Their
Unenforceability
SYNOPSIS
 NATURE AND IMPORTANCE OF DIRECTIVE PRINCIPLES
 RELATION BETWEEN FUNDAMENTAL RIGHTS AND
DIRECTIVE PRINCIPLES
 JUDICIAL ENFORCEMENT OF DIRECTIVE PRINCIPLES
 RIGHT BASED ON DIRECTIVE PRINCIPLES AND
JUSTIFIABILITY OF DIRECTIVE PRINCIPLES
 LEGISLATIVE INCORPORATION OF DIRECTIVE PRINCIPLES
 UNIFORM CIVIL CODE
 POPULATION CONTROL
NATURE AND IMPORTANCE OF DIRECTIVE PRINCIPLES
INTRODUCTION
The Directive Principles of State Policy (DPSP) has been taken from the
Irish constitution and enumerated in Part IV of the Indian Constitution.
The concept behind the DPSP is to create a ‘Welfare State’. In other

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words, the motive behind the inclusion of DPSP is not establishing
political democracy rather; it’s about establishing social and economic
democracy in the state. These are some basic principles or instructions
or guidelines for the government while formulating laws/policies of the
country and in executing them.
According to Dr B R Ambedkar, these principles are ‘novel features’ of

the Constitution. DPSP acts as a guideline for the state and should be
taken into consideration while coming up with some new policy or any
law. But no one can compel the State to consider and follow all that
which is mentioned in DPSP, as DPSP is not justifiable.
Part 4 of the Indian Constitution consists of all the DPSP (Directive

Principles of State Policy). It covers the Articles from 36 to 51.
Article 36 of Part IV defines the term “State” as the one, who has to
keep in mind all the DPSP before formulating any policy or law for the
country. The definition of “State” in the part IV will be the same as that
of Part III, unless the context otherwise requires a change in it. In
Article 37 the nature of DPSP has been defined. DPSPs are non-
justifiable.
HISTORY
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 The source of the concept of DPSP is the Spanish Constitution
from which it came in the Irish Constitution. The makers of the
Indian Constitution were very much influenced by the Irish
nationalist movement and borrowed this concept of DPSP from
the Irish Constitution in 1937.
 The Government of India Act also had some instructions

related to this concept which became an important source of
DPSP at that time.
 The Directive Principles of the Constitution of India have

been greatly influenced by the Directive Principles of Social
Policy.
 The Indians who were fighting for the independence of India

from the British rule were greatly influenced by the movements
and independence struggles of Ireland at that time, to free
themselves from the British rule and move towards the
development of their constitution.
 DPSP become an inspiration for independent India’s

government to tackle social, economic and various other
challenges across a diverse nation like India.
 DPSP and fundamental rights have a common origin. The

Nehru Report of 1928 contained the Swaraj Constitution of
India which contained some of the fundamental rights and some
other rights such as the right to education which were not
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enforceable at that time.
 Sapru Report of 1945 divided fundamental rights into

justifiable and non-justifiable rights.
 Justifiable rights, the one which was enforceable in a court of

law and included in Part III of the Constitution. On the other
hand, Non- justifiable rights were listed as directive principles,
which are just there to guide the state to work on the lines for
making India a welfare state. They were included in part IV of
the Constitution of India as Directive Principles of State Policy.
 The Constituent Assembly was given the task of making a

constitution for India. The assembly composed of elected
representatives and Dr. Rajendra Prasad was elected as its
President.
 Both the Fundamental Rights and the DPSP were enlisted in all
the drafts of the constitution (I, II and III) prepared by the
Drafting Committee whose chairman was Dr. B.R. Ambedkar.
SOURCES
 The DPSP of the Indian Constitution was inspired by the

Irish Constitution which took these details from Spain.
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 Some Instruments of Instructions, which also became the immediate

source of DPSP, have been taken from the Government of India Act,
1935.
 Another source was the Sapru Report, 1945 which gave us both
Fundamental Rights (justiciable) and DPSP(s) (non-justiciable).
IMPORTANCE OF DPSPS FOR AN INDIAN CITIZEN
Regardless of the non-justifiable nature of DPSPs, a citizen should be

aware of them. Article 37 describes these principles as fundamental in
the governance of the country. The objective of the DPSPs is to better
the social and economic conditions of society so people can live a good
life. Knowledge of DPSPs helps a citizen to keep a check on the
government.
A citizen can use DPSPs as a measure of the performance of the

government and can identify the scope where it lacks. A person should
know these provisions because ultimately these principles act as a
yardstick to judge the law that governs them. Moreover, it also
constrains the power of the state to make a draconian law.
Through various judicial pronouncements, it is settled principle now that

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balancing DPSPs and Fundamental rights is as important as maintaining
the sanctity of Fundamental Rights. Non-following a directive principle
would directly or indirectly affect the Fundamental Right which is

considered as one of the most essential parts of the Constitution.
DIRECTIVE PRINCIPLES OF STATE POLICY – CLASSIFICATION
Indian Constitution has not originally classified DPSPs but on the basis of their
content and direction, they are usually classified into three types-
 Socialistic Principles,
 Gandhian Principles and,
 Liberal-Intellectual Principles.
The details of the three types of DPSPs are given below:
DPSP – Socialistic Principles
Definition: They are the principles that aim at providing social and economic
justice and set the path towards the welfare state. Under various articles, they
direct the state to:
Article Promote the welfare of the people by securing a social order

38 through justice—social, economic and political—and to minimise
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inequalities in income, status, facilities and opportunities
Article Secure citizens:

39
 Right to adequate means of livelihood for all citizens
 Equitable distribution of material resources of the community
for the common good
 Prevention of concentration of wealth and means of
production
 Equal pay for equal work for men and women
 Preservation of the health and strength of workers and
children against forcible abuse
 Opportunities for the healthy development of children
Article Promote equal justice and free legal aid to the poor
39A
Article In cases of unemployment, old age, sickness and disablement,

41 secure citizens:
 Right to work
 Right to education
 Right to public assistance
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Article Make provision for just and humane conditions of work and
42 maternity relief
Article Secure a living wage, a decent standard of living and social and
43 cultural opportunities for all workers
Article Take steps to secure the participation of workers in the management

43A of industries
Article Raise the level of nutrition and the standard of living of people and
47 to improve public health
DPSP – Gandhian Principles
Definition: These principles are based on Gandhian ideology used to represent

the programme of reconstruction enunciated by Gandhi during the national
movement. Under various articles, they direct the state to:
Article Organise village panchayats and endow them with necessary

40 powers and authority to enable them to function as units of self-
government
Article Promote cottage industries on an individual or co-operation basis
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43 in rural areas
Article Promote voluntary formation, autonomous functioning, democratic

43B control and professional management of co-operative societies
Article Promote the educational and economic interests of SCs, STs, and
46 other weaker sections of the society and to protect them from
social injustice and exploitation
Article Prohibit the consumption of intoxicating drinks and drugs which

47 are injurious to health
Article Prohibit the slaughter of cows, calves and other milch and draught
48 cattle and to improve their breeds
DPSP – Liberal-Intellectual Principles
Definition: These principles reflect the ideology of liberalism. Under various

articles, they direct the state to:
Article Secure for all citizens a uniform civil code throughout the country
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44
Article Provide early childhood care and education for all children until
45 they complete the age of six years. (Note: 86th Amendment Act of
2002 changed the subject matter of this article and made elementary
education a fundamental right under Article 21 A.)
Article Organise agriculture and animal husbandry on modern and scientific

48 lines
Article Protect monuments, places and objects of artistic or historic interest

49 which are declared to be of national importance
Article Separate the judiciary from the executive in the public services of
50 the State
Article  Promote international peace and security and maintain just and
51 honourable relations between nations
 Foster respect for international law and treaty obligations
 Encourage settlement of international disputes by arbitration
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DPSP’S ADDED IN 42ND AMENDEMENT
S.No Article New DPSPs
1 Article 39 To secure opportunities for the healthy development of

children
2 Article To promote equal justice and to provide free legal aid to

39A the poor
3 Article To take steps to secure the participation of workers in the

43A management of industries
4 Article To protect and improve the environment and to safeguard

48A forests and wildlife
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Facts about Directive Principles of State Policy:
1. A new DPSP under Article 38 was added by the 44th Amendment Act of
1978, which requires the State to minimise inequalities in income, status,
facilities and opportunities.
2. The 86th Amendment Act of 2002 changed the subject-matter of Article
45 and made elementary education a fundamental right under Article 21A. The
amended directive requires the State to provide early childhood care and
education for all children until they complete the age of 14 years.
3. A new DPSP under Article 43B was added by the 97th Amendment Act of
2011 relating to co-operative societies. It requires the state to promote
voluntary formation, autonomous functioning, democratic control and
professional management of co-operative societies.
4. The Indian Constitution under Article 37 makes it clear that ‘DPSPs are
fundamental in the governance of the country and it shall be the duty of the
state to apply these principles in making laws.’
Criticism of Directive Principles of State Policy
As a point of debate, the following reasons are stated for the criticism of Directive
Principles of State Policy:
1. It has no legal force

2. It is illogically arranged
3. It is conservative in nature
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4. It may produce constitutional conflict between centre and state
What is the conflict between Fundamental Rights and DPSPs?
With the help of four court cases given below, candidates can understand the
relationship between Fundamental Rights and Directive Principles of State Policy:
Champakam Dorairajan Case (1951)
Supreme Court ruled that in any case of conflict between Fundamental Rights and
DPSPs, the provisions of the former would prevail. DPSPs were regarded to run as a
subsidiary to Fundamental Rights. SC also ruled that Parliament can amend
Fundamental Rights through constitutional amendment act to implement DPSPs.
Result: Parliament made the First Amendment Act (1951), the Fourth Amendment
Act (1955) and the Seventeenth Amendment Act (1964) to implement some of the
Directives.
Golaknath Case (1967)
Supreme Court ruled that Parliament cannot amend Fundamental Rights to

implement Directive Principles of State Policy.
Result: Parliament enacted the 24th Amendment Act 1971 & 25th Amendment Act
1971 declaring that it has the power to abridge or take away any of the Fundamental
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Rights by enacting Constitutional Amendment Acts. 25th Amendment Act inserted a
new Article 31C containing two provisions:
 No law which seeks to implement the socialistic Directive Principles specified

in Article 39 (b)22 and (c)23 shall be void on the ground of contravention of
the Fundamental Rights conferred by Article 14 (equality before law and equal
protection of laws), Article 19 (protection of six rights in respect of speech,
assembly, movement, etc) or Article 31 (right to property).
 No law containing a declaration for giving effect to such policy shall be
questioned in any court on the ground that it does not give effect to such a
policy.
Kesavananda Bharti Case (1973)
Supreme Court ruled out the second provision of Article 31C added by the 25th
Amendment Act during Golaknath Case of 1967. It termed the provision
‘unconstitutional.’ However, it held the first provision of Article 31C constitutional
and valid.
Result: Through the 42nd amendment act, Parliament extended the scope of the first
provision of Article 31C. It accorded the position of legal primacy and supremacy to
the Directive Principles over the Fundamental Rights conferred by Articles 14, 19
and 31.
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Minerva Mills Case (1980)
Supreme Court held the extension of Article 31C made by the 42nd amendment act
unconstitutional and invalid. It made DPSP subordinate to Fundamental Rights.
Supreme Court also held that ‘the Indian Constitution is founded on the bedrock
of the balance between the Fundamental Rights and the Directive Principles.’
Supreme Court’s rulings following the case were:
 Fundamental Rights and DPSPs constitute the core of the commitment to

social revolution.
 The harmony and balance between Fundamental Rights and Directive
Principles of State Policy is an essential feature of the basic structure of the
Constitution.
 The goals set out by the Directive Principles have to be achieved without the
abrogation of the means provided by the Fundamental Rights.
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DPSP were not made enforceable
SCHOOL OF by
LAWthe Constituent Assembly which was formed to draft
the Indian Constitution. But the non-enforceability of the Principles does not mean that
they are of no importance.
There are some arguments which are in favor of its enforceability and some are against the
making of DPSP enforceable. Those who favor the enforcement of the Principles argue that
enforceability of DPSPs will keep a check on the Government and would unite India. For
instance, Article 44 of the Indian Constitution talks about the Uniform Civil Code which
aims for uniform provisions of civil law for all the citizens of the country irrespective of
their caste, creed, religion or beliefs.
People who are against the enforcement of the DPSPs are of the view that these principles
need not be separately enforced as there are already many laws which indirectly
implements the provisions mentioned in DPSP. For instance, Article 40 of the Constitution
which deals with Panchayati Raj system was introduced through a constitutional
amendment, and it is very evident that there are numerous panchayats exist in the country
today.
RENAISSANCE
Another argument against DPSP UNIVERSITY
is that it imposes morals and values on the citizens of the
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country. It should not be clubbed with the law as it is really important to grasp that
law and morals area unit various things. If we impose one on the opposite that will
generally impede the expansion and development of the society.
RELATION BETWEEN DPSP AND FUNDAMENTAL RIGHTS
Fundamental Rights are described as the basic rights guaranteed to every citizen of the
country under the constitution. They are present in Part III of the Constitution which
ensures some rights to all its citizens so that they can live their lives peacefully. They help
in checking the activities of the Government so that it cannot curtail any of the basic rights
granted by the Constitution in the form of Fundamental rights.
Fundamental Rights apply to all the citizens without any form of discrimination on the
basis of race, caste, creed, sex, place of birth, etc. Violation of the fundamental rights may
lead to punishment and can initiate proceedings against the government if it tries to curtail
them.
RENAISSANCE
The Indian Constitution recognizesUNIVERSITY
7 fundamental rights, they are as follows:
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 Right to Equality
 Right to freedom
 Right to freedom of religion
 Right against exploitation
 Cultural and Educational Rights
 Right to constitutional remedies

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 Right to privacy (recently added)
Directive Principles of State Policy are some important guidelines given

to the government so that it can work accordingly and refer to them
while formulating the laws and policies, and to build a just society.
These principles are mentioned in Part IV from Article 36 to

51 of the Constitution.
Directive Principles are non-justiciable. However, these are recognized

as an important roleplayer in governing the State. These principles aim
at creating such an environment, which can help the citizens to live a
good life where peace and harmony prevails.
The directive principles conjointly gauge the performance of the state, in

order to achieve the objectives stated in the preamble of the Indian
Constitution.
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Comparison between DPSP and Fundamental rights
BASIS FOR
FUNDAMENTAL RIGHTS DIRECTIVE
COMPARISON
PRINCIPLES
The essential or basic rights The guidelines which are
Meaning granted to all the citizens of considered while

the country. formulating policies and
laws.
Defined In Part III of the Constitution. In Part IV of the
Constitution.
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Nature Negative Positive
Enforceability Legally enforceable. Not enforceable.
Social and economic

Democracy Political democracy.
democracy.
Legislation Not required. Required.
Promotes Individual welfare Public welfare
THE CONFLICT BETWEEN DPSP AND FUNDAMENTAL RIGHTS
Fundamental Rights and the DPSP are supplementary to each other

and are essential to meet the social and economic dimensions of a
democratic government.
The conflict between Fundamental Rights and DPSP often arises as

sometimes it has been seen, by various legislations, that DPSP have
wider scope than the Fundamental Rights. The Fundamental Rights are
the rights which are enforceable by the Courts and any law that is in
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contravention to the provisions mentioned in Part III are ultra vires.
On the other hand, the DPSP are not enforceable in any Court of Law
and nothing can be declared as void merely because it is against the
provisions given under the DPSP.
In the case of State of Madras v. Champakam, the Supreme Court held the
Fundamental rights are superior to the DPSP saying that the Fundamental Rights
under Part III prevails over DPSP in case of any conflict between them.
In the landmark judgment given by the Supreme Court in the Golak Nath case, it
was held that the provisions mentioned under Part III as Fundamental Rights
cannot be undermined just to implement the provisions given under Part IV which
enlists some important guidelines for the State in the form of the DPSP.
The Constitution was amended in the year 1971 and through this amendment,
Article 31C was incorporated in the Constitution. It confers wider importance on
the DPSP.
In the Minerva Mills case, the Supreme Court restricted this wide scope which was
conferred on the DPSP under Article 31C by making the following changes:
 It restored Article 31C to its pre-1976 position. A law would be

protected by Article 31C only in the case if it has been made to
implement the Article 39 (b) and Article39 (c) of the DPSP and
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not any of the other directive included in Part IV.
 There is a fine balance in the Constitution between the DPSP

and the Fundamental Rights, which should be adhered by the
Courts without placing any of them as superior.
nutshell, the Directive Principles of State Policy refers to those

principles, which should be kept in mind by the State while formulating
policies. They are non justifiable which means one cannot approach the
court for its non-implementation but can be referred to by the Supreme
Court while deciding whether a particular policy is unconstitutional or
not.
UNIFORM CIVIL CODE
INTRODUCTION
o The Uniform Civil Code is mentioned in Article 44 of the Indian

Constitution, which is part of the Directive Principles of State Policy.
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o These principles are not legally enforceable but are meant to guide the
state in making policies.
 It has been supported by some as a way to promote national

integration and gender justice, but opposed by others as a threat to
religious freedom and diversity.
o The only state in India that has a UCC is Goa, which retained its common
family law known as the Goa Civil Code after it was liberated from
Portuguese rule in 1961.
o The rest of India follows different personal laws based on their religious
or community identity.
PERSONAL LAWS IN INDIA
o Currently, not only Muslims but also Hindus, Jains, Buddhists, Sikhs,
Parsis, and Jews are governed by their own personal laws.
 Personal laws are determined based on religious identity.
o The reformed Hindu Personal Law still incorporates certain traditional

practices.
o Differences arise when Hindus and Muslims marry under the Special
Marriage Act, where Hindus continue to be governed by Hindu Personal
Law, but Muslims are not.
What are the Challenges in Implementing UCC?

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RESISTANCE FROM RELIGIOUS AND MINORITY GROUPS
o Many religious and minority group's view UCC as an infringement on

their religious freedom and cultural autonomy.
o They fear that UCC would impose a majoritarian or homogenous

law that would disregard their identity and diversity.
 They also argue that UCC would violate their constitutional rights
under Article 25, which guarantees the freedom of conscience and free
profession, practice and propagation of religion.
 Lack of Political Will and Consensus
o There is a lack of political will and consensus among the government, the
legislature, the judiciary and the civil society to initiate and implement
UCC.
o There are also apprehensions that UCC could provoke communal tensions
and conflicts in the society.
 Practical Difficulties and Complexities:
o UCC would require a massive exercise of drafting, codifying,

harmonising and rationalising the various personal laws and practices in
India.
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o It would require a wide consultation and participation of various
stakeholders, including religious leaders, legal experts, women’s
organisations, etc.
o It would also require a robust mechanism of enforcement and awareness

to ensure compliance and acceptance of UCC by the people.
BENEFITS OF UNIFORM CIVIL CODE
 National Integration and Secularism:
o UCC would promote national integration and secularism by creating a

common identity and sense of belonging among all citizens.
o It would also reduce the communal and sectarian conflicts that arise due
to different personal laws.
o It would uphold the constitutional values of equality, fraternity and

dignity for all.
 Gender Justice and Equality:

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o UCC would ensure gender justice and equality by removing the
discrimination and oppression faced by women under various personal
laws.
o It would grant equal rights and status to women in matters of marriage,

divorce, inheritance, adoption, maintenance, etc.
o It would also empower women to challenge the patriarchal and

regressive practices that violate their fundamental rights.
 Simplification and Rationalisation of the Legal System:
o UCC would simplify and rationalise the legal system by removing the
complexities and contradictions of multiple personal laws.
o It would harmonise the civil and criminal laws by removing the

anomalies and loopholes that arise due to different personal laws.
o It would make the law more accessible and understandable for the
common people.
 Modernisation and Reform of Outdated and Regressive Practices:
o UCC would modernise and reform the outdated and regressive practices
that are prevalent in some personal laws.
o It would eliminate the practices that are against the human rights and
values enshrined in the Constitution of India, such as triple talaq,
polygamy, child marriage, etc.
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o It would also accommodate the changing social realities and
aspirations of the people.
LANDMARK CASES RELATED TO UNIFORM CIVIL CODE
 Shah Bano Begum v. Mohammad Ahmed Khan (1985)
o The Supreme Court upheld the right of a Muslim woman to claim

maintenance from her husband under Section 125 of the Criminal Procedure
Code, even after the expiry of the Iddat period.
 It also observed that a UCC would help in removing

contradictions based on ideologies.
 Sarla Mudgal v. Union of India (1995)
o The Supreme Court held that a Hindu husband cannot convert to Islam and
marry another woman without dissolving his first marriage.
o It also stated that a UCC would prevent such fraudulent conversions and
bigamous marriages.
 Shayara Bano v. Union of India (2017)
o The Supreme Court declared the practice of triple talaq as unconstitutional

and violative of the dignity and equality of Muslim women.
o It also recommended that the Parliament should enact a law to regulate

Muslim marriages and divorces.
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THE WAY FORWARD
 Unity and Uniformity:
o The recommended UCC should reflect India's multiculturalism and

preserve its diversity.
 Unity is more important than uniformity.
o The Indian Constitution allows for both integrationist and restricted

multicultural approaches to accommodate cultural differences.
 Discussion and Deliberations with Stakeholders:
o Also, involving a broad range of stakeholders, including religious leaders,

legal experts, and community representatives, in the process of developing
and implementing the UCC.
o This could help to ensure that the UCC takes into account the diverse
perspectives and needs of different groups, and that it is seen as fair and
legitimate by all citizens.
 Striking a Balance:
o The Law Commission should aim to eliminate only those practices that do
not meet the constitutional standards.
o Cultural practices must align with substantive equality and gender

justice goals.
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o The Commission should avoid contributing to reactive culturalism among
different communities.
o The Muslim clergy should lead the reform process of Muslim Personal
Law by identifying discriminatory and oppressive issues and considering
progressive views.
 Constitutional Perspective:
o The Indian Constitution upholds the right to cultural autonomy and aims for
cultural accommodation.
o Article 29(1) protects the distinctive culture of all citizens.
o Muslims need to question whether practices like polygamy and

arbitrary unilateral divorce align with their cultural values.
o The focus should be on achieving a just code that promotes equality and
justice.
POPULATION CONTROL
FUNDAMENTAL RIGHTS SCRUTINY
This is a crucial perspective that is rarely considered by the population alarmists
while proposing population control as an answer to most of the challenges faced by
society.
In Jasvir Singh v. State of Punjab, the Supreme Court held that the right to
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procreation comes within the ambit of the right to life and personal liberty. Further,
in Justice K.S.Puttaswamy(Retd) v. UOI, the Supreme Court held that the right to
life and liberty under Article 21 includes the right to privacy that protects individual
autonomy regarding one’s body and mind and extends to the right to reproductive
choices. Population control policies restricting the number of children will have a
bearing on the fundamental right to life and liberty and the right to privacy as it
prevents one from freely choosing the number of children one wants.
In Modern Dental College v. State of M.P, the Supreme Court proposed the four-
prong Proportionality Test and later, it was confirmed in Puttaswamy for justifying
any measure restricting the right to privacy under Article 21. The Supreme Court
gave the following four prongs for Proportionality Test
(i) Legality (requirement of a law with legitimate objective)
(ii) (ii) suitability (rational nexus between means and ends,
i.e., means should be suitable for addressing the objective)
(iii) necessity (means proposed should be the least restrictive to
achieve the aim) and
(iv) (iv) balancing (balancing action between the extent to
which rights are infringed and the state’s purpose).
The first prong of legitimate purpose can be easily satisfied as the government has
the legitimate aim to improve people’s standard of life by controlling the population
numbers. For clarity in scrutinising these laws under the Proportionality Test,
instead of ‘population control’, improving quality of life should be considered the
legitimate purpose, and population control should be considered a way to fulfil the
purpose.
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The effectiveness of population control in increasing per capita GDP (taken as a
measure of standard of life) is seldom questioned when proposing it as a solution. As
per the economic analysis presented in the preceding part, there is no guarantee that
population control is a suitable way to address the targeted problems of
unemployment, poverty, and unequal distribution of income. Controlling the
population does not have a rational nexus with the stated purpose as it is difficult to
establish a robust connection between population growth and economic growth.
Therefore, coercive population-control laws do not pass the suitability prong of
the Proportionality Test.
Further, any coercive population control policy will not satisfy the necessity prong.
Presently, India’s Total Fertility Rate (TFR) is at 2.2, which is on the verge of
reaching the desired replacement rate of 2.1, where the population exactly replaces
itself from one generation to the next. India will achieve the desired TFR of 2.1 by
2025. Further, India’s present Family Planning Programme, which does not employ
coercive methods, has successfully reduced the TFR. Further, there exist several less
restrictive and trustworthy measures like access to abortions, reduction in infant
mortality rate, eradication of child marriage, promotion of contraceptive use, and
promotion of female literacy and empowerment that can be employed to reduce
population growth.
Thus, in light of the fact that less restrictive measures can be employed and are
working efficiently by producing the desired results, coercive population control
laws fail to satisfy the Proportionality Test’s necessity prong.
CONCLUSION
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Coercive Population control policies have always been looked as a solution to
several problems such as poverty, lack of health services and decline in economic
development. This has allowed the government to justify introducing coercive
population control laws over the years. However, there is little to no evidence that
population growth affects the per capita GDP of a country. While it is true that India
is currently the second-most populous country in the world, population growth has
been slowing down over the last two decades. Its TFR will also reach the optimal
replacement rate of 2.1 by 2025. This decrease in population growth cannot be
attributed to the coercive policies introduced by the government. It is largely a result
of sound family planning programmes, improved access to healthcare, women’s
education policy and promotion of contraceptives.
Therefore, any coercive policy introduced by the government for population control
would not pass a fundamental rights scrutiny. These policies would have a
significant impact on the right to privacy guaranteed under Article 21 and would not
be able to satisfy the proportionality test laid down in Puttuswamy. Hence, rather
than introducing coercive population control policies, the government must focus on
spreading family planning awareness, promoting contraceptives, and promoting
female literacy and empowerment.
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UNIT – 5
Constitutional Remedy and Judicial Review
Judicial Review of Fundamental Rights and

Directive Principles
 Right to Constitutional Remedies
 Importance of independence of judiciary in protection of rights

 Limits to judicial enforcement of fundamental rights
 Concept of Judicial Review
 Different phases of judicial approach in PIL
 Amendment to FRs and DPSP
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RIGHT TO CONSTITUTIONAL REMEDIES.

WHAT IS A WRIT?
In its earliest form, a writ was simply a written order given by the English monarch
ordering a specific person to perform a specified action or task. In common law, it
refers to a formal written order issued by a judicial body.
In India, the power to issue a writ is given to the Supreme Court under Article
32(2) and the High Courts under Article 226. However, the high Courts have a
broader power in this regards. This is because, the High Courts can issue writs for
enforcement of all rights (including fundamental rights, Constitutional rights and
other legal rights) granted to a citizen. But, the Supreme Court can issue writs for
enforcement only of fundamental rights granted to the citizens.
For instance, in the case of Narayan Prasad v. State of Chhattisgarh, two brothers
approached the Chhattisgarh High Court under Article 226 for enforcement of their
right to property granted under Article 300-A of the Constitution. They had been
denied a no-objection certificate for transferring their property by a special tribunal.
The Court held that they should be granted the certificate as it is their legal and
constitutional rights.
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TYPES OF WRIT
The Supreme Court and the High Court have the power to issue 5 writs. These are:
1. HABEAS CORPUS
The term ‘Habeas Corpus’ is a Latin term which literally means ‘to have the body’.
This writ is issued to relieve a person from unlawful detention. If a person is
detained illegally and against his consent, he can file an application in the Supreme
Court or High Court.
The scope of this writ was increased by the judiciary which was clarified in various
cases like Sheela Barse v. State of Maharashtra that the doctrine of locus standi
(right to approach the Court) is relaxed in habeas corpus cases. This means that if a
detained person cannot plead for his release, his family, friends or any other person
can file an application and approach either of the two courts for the same. Hence,
this writ helps in protecting the liberty and freedom of citizens.
If the Court is satisfied with the application given, it can issue the writ of Habeas
Corpus. Through the writ, the Court orders the presence of the person who had
detained another person, ask them to provide a justifiable ground for the detention
and orders a release of the detained person if it finds that the detention is not legally
reasonable and justifiable. The detention is illegal if:
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(1) The due procedure established by law was not followed for detaining a person
or
(2) Detention was not in accordance with the law.
The application of this writ can be better understood by looking at the case of T.V.
Eachara Varier vs Secretary To The Ministry Of Home, popularly known as the
Rajan Case where a young boy, P Rajan was taken into police custody while he was
studying in the college campus.
The principle of the college informed the father of the child about his arrest. This
was done during the period of national emergency and for months, the whereabouts
of the boy was not told to his family. In this case, the Court observed that P Rajan
had been detained without any justification and issued the writ of Habeas Corpus for
production of Rajan before itself.
There are certain circumstances where the writ of Habeas Corpus cannot be invoked.
These include:
 If the person is detained as a result of a sentence or order given in a judicial

proceeding.
 If the person is put into physical restraint under the law unless the law is
declared unconstitutional.
 If the detained person has already been set free.
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 If the person who detained another person does not come under the
territorial jurisdiction of the Court in which the application has been filed.
 If the writ is filed during the emergency situation. However, it must be

understood that the writ of habeas corpus would be maintainable only for the
enforcement of fundamental rights granted in Articles 20 and 21 of the
Indian Constitution even during the emergency situation.
2. MANDAMUS
The Latin term ‘Mandamus’ means ‘we command’. The writ is issued in the form of
a command given by the judiciary which directs a constitutional, statutory or non-
statutory body to perform a public duty which has been imposed upon it by the law.
It can also be issued by a superior court commanding an inferior court to perform its
duties.
This writ is also issued to prevent the authority from doing a particular act, which it
is not legally entitled to do. The writ of Mandamus cannot be issued against a private
individual who is not legally required to perform the public duty.
Thus if A is a police officer who is not performing his duty of registering a

complaint brought to him by B, the Court can issue the writ of Mandamus,
compelling him to register it. However, if A is not obligated by law to perform a
duty, then the writ cannot be issued against him.
The writ of mandamus is issued on the following grounds:

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 The petitioner has a legal right
 The legal right of the petitioner has been infringed
 The legal right has been infringed because of the non-performance of a

legally required duty by a public authority or a private individual who is
acting under public authority.
 The petitioner has demanded the performance of the duty but the public
authority has refused to perform it.
The Courts have given importance to the rule of locus standi in cases involving this
writ. However, in certain cases, public-spirited persons are allowed to apply for this
writ on behalf of other people whose rights have been infringed. It is issued when
there is an error of jurisdiction or error of law or violation of the principles of natural
justice.
In the case of Bhopal Sugar Industries Ltd. V. income Tax Officer, the Income Tax
Appellate Tribunal gave the respondent, an income tax officer certain direction for
ascertaining the market value of sugarcane grown by the appellant in petitioners
farms. However, the respondent did not follow these directions.
The Supreme Court held that refusal to carry out an order given by a superior
tribunal in the exercise of its appellate jurisdiction violates the principles of justice
and leads to chaos. Thus, the writ of Mandamus was issued directing the income tax
officer to perform his duty in accordance with the order given by the Income Tax
Appellate Tribunal.
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However, when the act for which mandamus is sought has been completed or right
of petitioner has lapsed or any other situation where issuing of the writ would be
meaningless, the Court can refuse to issue it. It must also be mentioned that there are
some situations where the writ is not granted. These include:
 It cannot lie against the following people:
o President or the governor of a state in their personal capacities.
o A practising Chief Justice
o The officials involved in various stages of conducting the elections

to the parliament or state legislature.
o Private person or body

 If the duty to be performed is discretionary, not mandatory.
 For enforcement of a private contract between parties.
3. CERTIORARI
The Latin expression ‘Certiorari’ means ‘to certify’. It is issued in the form of a
command by a superior court ordering an inferior court or any other inferior quasi-
judicial body to transmit the records of a proceeding pending before it to the superior
court. This is usually done in the following circumstances:
1. When a superior court believes that the Inferior Court does not have
jurisdiction to decide the matter.
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2. When the inferior courts violate the principles of natural justice while
deciding the matter.
3. When the inferior court decides on a matter procured by fraud.
4. When the lower court makes a wrong decision because of an error of law
which is apparent on the face of the record. This means that if the inferior
court makes a decision based on a clear disregard of a statutory provision,
the superior court can issue the writ of certiorari. However, if the decision is
made because of errors in facts, then the writ is not applicable.
For example, if the High Court believes that the District Court which heads a case
did not have monetary jurisdiction to decide upon the matter, and yet the district
court has taken up the matter, the High Court can issue this writ and quash the
district court’s order.
However, the superior court only has advisory jurisdiction (power of the court to
give an opinion on an issue) in case the writ of Certiorari is issued. It does not
exercise appellate jurisdiction (The power of the court to hear cases on appeal from
the lower court) in these cases.
It must also be understood that the petition for Certiorari can only be made by the
person who has been aggrieved. Thus, the doctrine of locus standi is very stringent
in the matters of certiorari. For this reason, it is considered as a proceeding in
personam.
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The writ of certiorari is very important because it acts as a corrective remedy. For
instance, in the case of Rafiq Khan v. State of U.P., the appellants were convicted
under sections 352, 447 and 426 of the IPC by the Panchayati Adalat. They
approached the Sub-Divisional Magistrate for the same and he modified the order
given by the Panchayati Adalat. Allahabad high court held that the Sub-divisional
Magistrate did not have a legal right to modify the order and quashed the modified
order.
Before moving forward to discuss the other types of writs, we must understand the
difference between Article 226 and 227 of the Indian Constitution. Very often
petitions are filed under Article 226/227 as one petition. However, these two Articles
are quite different in scope. While Article 226 gives the High Courts the power to
issue writs, Article 227 talks about powers of general superintendents of High
Courts over the Subordinate Courts.
This power allows them to keep a check on the subordinate courts and ensure that
they do not make errors of jurisdiction. Hence, confusion regarding the writ of
certiorari under both these Articles arise. While passing a writ of Certiorari under
Article 226, the courts can only quash the order given by the subordinate court.
Under Article 227 however, besides quashing the order, the High Court can also
give appropriate directions to the inferior courts on the basis of the facts of the case
and thus guide the courts.
4. PROHIBITION
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The term ‘prohibition’ literally means ‘to forbid’. This writ is also known as ‘stay
order’. It is issued by a superior court to prevent an inferior court or a quasi-judicial
body from continuing its proceedings. It is issued in circumstances such as:
 When the inferior court or quasi-judicial body does not have jurisdiction to
hear the case.
 When the inferior court or quasi-judicial body violates the principles of

natural justice.
 When the inferior court or quasi-judicial body is not acting according to the
provisions of the law.
The writ of prohibition, though similar to the writ of certiorari, is different in its
nature. While the writ of certiorari is corrective in nature, the writ of prohibition is
preventive in nature. This writ is issued by the superior court while the judicial
proceeding is still going on in the inferior court or quasi-judicial body and before the
final order is declared.
To understand this writ, one can refer to the case law East India Company Ltd. v.
the Collector of Customs. In this case, the Supreme Court of India passed the writ of
prohibition disallowing the respondent to proceed with the inquiry in an inferior
tribunal on the ground that the proceedings were outside the tribunal’s jurisdiction.
5. Quo Warranto
The phrase ‘Quo Warranto’ means “ by what authority’.This writ restrains a person
from acting in an office when he is not entitled to and has wrongfully usurped the
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position. The basic fundamental purpose of this writ is to ensure that an unlawful
claimant does not take over a public office, as this can harm the public and takes
away opportunities from those people who actually deserve to take over that office.
In the matters involving the writ of quo warranto, anybody can file the petition, even
if the person who is filing the petition has not been personally aggrieved. When the
writ of Quo Warranto is issued, certain essentials need to be fulfilled. These include:
 The office which has been wrongfully assumed is a public office, and not a
private one.
 The public office has been created either by a statutory provision or the
Constitution.
 The office is of a permanent nature and is not made for a temporary term.
 The person against whom the writ is to be issued is in possession of the

office.
 The person against whom the writ is to be issued is one who has been
disqualified from a public office, yet continues to possess it.
Thus if A is not qualified and has illegally taken possession of the office of a police
officer, the Court can issue the writ of Quo Warranto and challenge this possession.
However, it must be observed that the Court has complete discretion in issuing this
writ. Thus, if the court feels that issuing of this writ would not be beneficial, it has
the discretion to not issue it. This can be understood with the help of the case.
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In the case, of P.L. Lakhan Pal vs A.N.Ray the appointment of Justice A.N. Ray as
Chief Justice of India was challenged because of lack of seniority. However, the
court did not grant the writ of quo warranto because it would have been futile since
the 3 other judges who were senior to him had resigned after his appointment and
consequently, he had gained superiority over all other remaining judges in the
Supreme Court.
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WHAT DOES “JUDICIAL INDEPENDENCE” MEAN?

Judicial Independence is the concept in which the judiciary should be independent
of the branches of the government and that courts must not be subjected to
improper influences from the other branches of government or from any third
party. Separation of powers as a concept of importance is related to and subjected
to judicial independence.
MEANING OF INDEPENDENT JUDICIARY

The meaning of Independence of the Judiciary is mentioned below:
1. Other organs of the government, which include the executive and the legislature
must not try to restrain the functioning of the judiciary in such a way because of
which it is unable to do justice.
2. Other organs of the government should not try to interfere with the decisions of
the judiciary.
3. Judges should be able to perform their duties and functions without fear or any
favor.
The judiciary is a part of the democratic political structure of the country and is
accountable to the Constitution, to democracy, and also to the people of the
country. Separation of power is one of the central themes of independence of the
judiciary from the executive and the legislature. The main concern of independence
is that the judges are able to decide upon a dispute before them according to the
law, uninfluenced by other factors.
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Need for Independence of Judiciary

Disputes are something that is bound to surface between individuals, groups of
individuals, or the government. These disputes have to settle by some independent
body in accordance with the rule of law. This implies all individuals- rich or poor,
men, women, forward or backward castes; are all subjected to the same law.
The main motive of the judiciary is to protect and ensure the supremacy of the law.
Safeguarding the rights of individuals, settling disputes in accordance with the law,
and equal importance given to all are some important aspects of the Judiciary. For
performing all these tasks, it is necessary for the Judiciary to be away from any
political pressures.
Ways in which Judicial Independence Is Maintained

There can be various ways in which judicial independence can be protected from
various threats. Some of the most common strategies which are used include the
limitation of government discretion over judicial salaries, placing some heavy
restrictions on the removal of judges from offices, fixing some minimum
jurisdiction that courts are too possess, and relieving judges of personal liabilities
for acts that are performed in the course of their duties. Also, decentralized kind of
organizational structures grants greater autonomy to individual judges, which by
contrast may make it harder for the government in capturing to co-opt the judiciary
as a whole.
Theory of Separation of Power

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According to the Indian constitution, there are three organs, respectively executive,
legislature, and Judiciary. Which have their own roles in maintaining the right
order in the country. This concept works on the theory of separation of
powers. The theory of separation of powers was incorporated into the constitution
to provide a balance or set the boundaries for the operation of these three organs.
The judiciary of the country acts as the guardian of the law and protects the rights
of the people and maintains the balance in the country through laws. It is also
responsible for keeping on the working legislature. basically, the theory of
separation of power means the division of powers so that it cannot be abused by
one person or one part of the system. To put it into simple words, all three organs
of the system are separated and have their own field of power and rights. They
have their own boundaries and cannot interfere in the functioning of each other.
Importance of Judiciary to be Independent

To provide justice, it is important to have an independent judiciary system. The
people can only have the thought of justice if the court is free from the influence of
any external power. The independence of the judiciary holds an important role and
is the subject of discussion. Here, we will discuss several reasons, which prove the
importance of the independence of the judicial system in the country which are
given below:
1. An independent judiciary makes sure that all the organs of the country are acting
according to their provisions and limitations provided by law under the
constitution of India.
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2. It is responsible to make and implement laws in the country and acts as the
guardian of the Law. So it should be free from any outer influence.
3. It helps to protect the theory of separation of powers and serves as the protector
of India’s constitution and fundamental rights.
4. The judiciary should be independent and competent so that it can interpret the
provisions in a right and clear manner and should be unbiased. It should not be
influenced or pressurized by any other organ of the country.
5. Judiciary is expected to deliver justice in an impartial manner. Which is
impossible if the Judiciary is not independent.
6. An independent judiciary is much needed in order to protect and enforce
fundamental rights for the betterment of society.
Constitutional Arrangement that ensures Independence of Judiciary
There are a number of provisions mentioned in the constitution of India which
ensures the independence of the Judiciary in India. These are as follows:
The appointment of the judges by the President

According to article 124 in the Indian constitution, the Chief Justice of India should
be selected by the President of India on the basis of consultation with the judges of
the Supreme court and the high court. Also, before appointing other judges, the
president is needed to consult with the Chief Justice of India. thus, the president of
India cannot appoint any judge without the consultation of other judges. Therefore,
article 124 prevents the possession of all discretionary powers on one hand.
Security of Services
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Judges remain in office till they reach the age of retirement, which is 65 years for
Supreme Court Justices and 62 years for High Court Judges. Only be removed
based on proven misbehavior and in case of incapacity. As the procedure is so
difficult, no Supreme Court or High Court judge has been removed till now.
LONG TENURE
Article 124 demotes that the judges of the supreme court have the security of
tenure. They cannot be removed from office without the President’s permission,
and even then, only on the basis of incompetence or misbehavior that has been
proven, and is supported by a resolution passed by a majority of the members of
each House collectively, as well as by a majority of at least 2/3 of the members of
each House present and voting.
FIXED SALARIES
The Indian Constitution has denoted the salaries and benefits for the judges of the
supreme court, which are deducted from the Consolidated Fund of India and not
subject to a vote by the legislature. Except in extreme financial situations, their
wages and allowances cannot be changed to their detriment throughout the period
of their office.
The powers of the supreme court can be extended but cannot be curtailed
In terms of its authority, Parliament may alter the financial threshold for Supreme
Court appeals in civil cases, expand the Supreme Court’s appellate jurisdiction,
grant it supplemental powers to help it function more efficiently, grant authority to
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order writs, including all prerogative writs, for any reason other than those
specified in Article. 32. All of these laws make clear that while the Parliament may
go beyond the Supreme Court’s authority, it may not limit it, as mentioned in
article 138.
THE POWER TO PUNISH FOR CONTEMPT

According to Articles 129 and 215, the high court and the Supreme court have the
power to punish for contempt. Which means it can punish any person for contempt.
This power holds great importance in the matter of an independent judiciary.
THE SEPARATION OF THE EXECUTIVE FROM THE JUDICIARY

Article 50 denotes the separation of the judiciary from the executive in the public
services of the states. Which emphasizes the importance of securing the judiciary
from any external interference.
Prohibition of practice after retirement
By rule, the judges of the Supreme Court and the high court cannot practice after
their retirements, like the way lawyers do usually. However, the government does
hire retired higher judiciary judges as heads of various commissions.
POWER OF JUDICIAL REVIEW

The power of the Judicial Review comes from the Constitution of India itself and
India has an independent judiciary with extensive jurisdiction over the acts of both
legislature and the executive. Judicial Review is mostly classified into three types:
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reviews of legislative actions, reviews of judicial decisions, and reviews of
administrative action.
What are the dimensions of Judicial Independence?

There are different dimensions of Judicial Independence, which include the
following:
External Independence
External Independence refers to the form of independence of the Judiciary from the
political branches, which includes executive and legislative powers, as well as any
other non-judicial factor.
Adjudicative Independence of Individual Judges
It focuses on protecting the individual judges from the kind of undue pressure from
inside the judiciary, and from other judges.
Institutional Independence of Judiciary
It pertains to the institutional and legal arrangements to shield judges from undue
pressure and influence.
Individual Independence
It concerns the individual independence of the judges, which is their state of mind
and concrete conduct, on their professional life, and on internalized professional
values.
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DIFFERENT PHASES OF JUDICIAL APPROACH IN PIL
INTRODUCTION
 The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to
previously unrepresented groups like the poor, the racial minorities, unorganised
consumers, citizens who were passionate about the environmental issues, etc.
 Public interest Litigation (PIL) means litigation filed in a court of law, for the
protection of “Public Interest”, such as Pollution, Terrorism, Road safety,
Constructional hazards etc. Any matter where the interest of public at large is
affected can be redressed by filing a Public Interest Litigation in a court of law.
 Public interest litigation is not defined in any statute or in any act. It has
been interpreted by judges to consider the intent of public at large.
 Public interest litigation is the power given to the public by courts through
judicial activism. However, the person filing the petition must prove to the
satisfaction of the court that the petition is being filed for a public interest and
not just as a frivolous litigation by a busy body.
 The court can itself take cognizance of the matter and proceed suo motu or cases
can commence on the petition of any public spirited individual.
 Some of the matters which are entertained under PIL are:
o Bonded Labour matters

o Neglected Children
o Non-payment of minimum wages to workers and exploitation of casual
workers
o Atrocities on women
o Environmental pollution and disturbance of ecological balance
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o Food adulteration
o Maintenance of heritage and culture
Genesis and Evolution of PIL in India: Some Landmark Judgements
 The seeds of the concept of public interest litigation were initially sown in India
by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul
Thai.
 The first reported case of PIL was Hussainara Khatoon vs. State of
Bihar (1979) that focused on the inhuman conditions of prisons and under trial
prisoners that led to the release of more than 40,000 under trial prisoners.
o Right to speedy justice emerged as a basic fundamental right which had

been denied to these prisoners. The same set pattern was adopted in
subsequent cases.
 A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the
case of S.P. Gupta vs. Union of India.
o In this case it was held that “any member of the public or social action group
acting bonafide” can invoke the Writ Jurisdiction of the High Courts (under
article 226) or the Supreme Court (under Article 32) seeking redressal
against violation of legal or constitutional rights of persons who due to
social or economic or any other disability cannot approach the Court.
o By this judgment PIL became a potent weapon for the enforcement of
“public duties” where executive action or misdeed resulted in public injury.
And as a result any citizen of India or any consumer groups or social action
groups can now approach the apex court of the country seeking legal
remedies in all cases where the interests of general public or a section of the
public are at stake.
o Justice Bhagwati did a lot to ensure that the concept of PILs was clearly
enunciated. He did not insist on the observance of procedural technicalities
and even treated ordinary letters from public-minded individuals as writ
petitions.
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 The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s
Devkala Consultancy Service and Ors held :- “In an appropriate case, where
the petitioner might have moved a court in her private interest and for redressal
of the personal grievance, the court in furtherance of Public Interest may treat it
a necessity to enquire into the state of affairs of the subject of litigation in the
interest of justice.” Thus, a private interest case can also be treated as public
interest case.
 M.C Mehta vs. Union of India: In a Public Interest Litigation brought against
Ganga water pollution so as to prevent any further pollution of Ganga water.
Supreme Court held that petitioner although not a riparian owner is entitled to
move the court for the enforcement of statutory provisions, as he is the person
interested in protecting the lives of the people who make use of Ganga water.
 Vishaka v. State of Rajasthan: The judgement of the case recognized sexual
harassment as a violation of the fundamental constitutional rights of Article 14,
Article 15 and Article 21. The guidelines also directed for the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013.
Factors Responsible for the Growth of PIL in India
 The character of the Indian Constitution. India has a written constitution
which through Part III (Fundamental Rights) and Part IV (Directive Principles of
State Policy) provides a framework for regulating relations between the state and
its citizens and between citizens inter-se.
 India has some of the most progressive social legislations to be found
anywhere in the world whether it be relating to bonded labor, minimum wages,
land ceiling, environmental protection, etc. This has made it easier for the courts
to haul up the executive when it is not performing its duties in ensuring the
rights of the poor as per the law of the land.
 The liberal interpretation of locus standi where any person can apply to the
court on behalf of those who are economically or physically unable to come
before it has helped. Judges themselves have in some cases initiated suo moto
action based on newspaper articles or letters received.
 Although social and economic rights given in the Indian Constitution under Part
IV are not legally enforceable, courts have creatively read these into
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fundamental rights thereby making them judicially enforceable. For instance the
"right to life" in Article 21 has been expanded to include right to free legal aid,
right to live with dignity, right to education, right to work, freedom from torture,
bar fetters and hand cuffing in prisons, etc.
 Judicial innovations to help the poor and marginalised: For instance, in
the Bandhua Mukti Morcha, the Supreme Court put the burden of proof on the
respondent stating it would treat every case of forced labor as a case of bonded
labor unless proven otherwise by the employer. Similarly in the Asiad Workers
judgment case, Justice P.N. Bhagwati held that anyone getting less than the
minimum wage can approach the Supreme Court directly without going through
the labor commissioner and lower courts.
 In PIL cases where the petitioner is not in a position to provide all the necessary
evidence, either because it is voluminous or because the parties are weak
socially or economically, courts have appointed commissions to collect
information on facts and present it before the bench.
Who Can File a PIL and Against Whom?
 Any citizen can file a public case by filing a petition:
o Under Art 32 of the Indian Constitution, in the Supreme Court.

o Under Art 226 of the Indian Constitution, in the High Court.
o Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
 However, the court must be satisfied that the Writ petition fulfils some basic
needs for PIL as the letter is addressed by the aggrieved person, public spirited
individual and a social action group for the enforcement of legal or
Constitutional rights to any person who are not able to approach the court for
redress.
 A Public Interest Litigation can be filed against a State/ Central Govt.,
Municipal Authorities, and not any private party. The definition of State is
the same as given under Article 12 of the Constitution and this includes the
Governmental 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.
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Significance of PIL
 The aim of PIL is to give to the common people access to the courts to obtain
legal redress.
 PIL is an important instrument of social change and for maintaining the Rule
of law and accelerating the balance between law and justice.
 The original purpose of PILs have been to make justice accessible to the poor
and the marginalised.
 It is an important tool to make human rights reach those who have been denied
rights.
 It democratises the access of justice to all. Any citizen or organisation who is
capable can file petitions on behalf of those who cannot or do not have the
means to do so.
 It helps in judicial monitoring of state institutions like prisons, asylums,
protective homes, etc.
 It is an important tool for implementing the concept of judicial review.
 Enhanced public participation in judicial review of administrative action is
assured by the inception of PILs.
Certain Weaknesses of PIL
 PIL actions may sometimes give rise to the problem of competing rights. For
instance, when a court orders the closure of a polluting industry, the interests of
the workmen and their families who are deprived of their livelihood may not be
taken into account by the court.
 It could lead to overburdening of courts with frivolous PILs by parties with
vested interests. PILs today has been appropriated for corporate, political and
personal gains. Today the PIL is no more limited to problems of the poor and the
oppressed.
 Cases of Judicial Overreach by the Judiciary in the process of solving socio-
economic or environmental problems can take place through the PILs.
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 PIL matters concerning the exploited and disadvantaged groups are pending for
many years. Inordinate delays in the disposal of PIL cases may render many
leading judgments merely of academic value.
Conclusion
 Public Interest Litigation has produced astonishing results which were
unthinkable three decades ago. Degraded bonded labourers, tortured under trials
and women prisoners, humiliated inmates of protective women’s home, blinded
prisoners, exploited children, beggars, and many others have been given relief
through judicial intervention.
 The greatest contribution of PIL has been to enhance the accountability of the
governments towards the human rights of the poor.
 The PIL develops a new jurisprudence of the accountability of the state for
constitutional and legal violations adversely affecting the interests of the weaker
elements in the community.
 However, the Judiciary should be cautious enough in the application of PILs to
avoid Judicial Overreach that are violative of the principle of Separation of
Power.
 Besides, the frivolous PILs with vested interests must be discouraged to keep its
workload manageable.
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LIMITS TO JUDICIAL ENFORCEMENT OF

FUNDAMENTAL RIGHTS
THE LIMITATION PRESCRIBED FOR SEEKING A REMEDY UNDER

ARTICLE 32
In the case of Trilokchand Motichand v. H.B. Munshi, the petitioners had filed a
writ petition under Article 226 of the Constitution in the High Court to declare
Section 21(4) of the Bombay Sales Tax Act, 1953 unconstitutional. This Article
allowed the sales tax officer to forfeit a given sum if the condition on which it was
given is not fulfilled. However, the court dismissed the petition on the ground that
the petitioners had defrauded their customers.
However, The High Court struck this section down in 1967 stating that its violative
of Article 19 (1) (f),(now omitted), of the Constitution of India. The petitioners
pleaded that they must be given back the money as at the time of the petition, they
were unaware of the grounds of the violation. However, the court held that mistake
of law is not sufficient grounds to look into the case and that they had surpassed
period of limitation.
In this context, The Supreme Court laid down certain limitations for seeking a
remedy. These are:
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 In case the petitioner has already approached the High Court under Article
226 of the
Constitution and the court have exercised its jurisdiction, the Supreme Court must
refrain from acting under Article 32 of the Constitution.
In such cases, the Supreme Court must discourage the petitioners from filing a new
petition and rather insist upon appeal.
 While inquiring into ‘belated and stale claim’, the court must give
considerable notice to petitioners neglecting their own claims for a long-time
period and also the neglect of the rights of other innocent people which
happened because of such neglect. This means that the court introduced the
concept of a period of limitation into seeking a remedy under Article 32.
However, it was also held that an ultimate limit cannot be placed as the
period of limitation would differ from case to case and the Limitation Act,
1963 would not apply to such petitions.
The distinction between Articles 32 and 226
Article 32 Article 226
It grants powers to the Supreme It grants power to the High Courts in

Court. India.
It is more restricted as it is invoked It is invoked for enforcement of other

only for the enforcement of rights as well. Hence, it has wider
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fundamental rights. application.
The power to issue writs given to the The power to issue writs given to the
Supreme Court under this Article is High Courts under this Article is
mandatory. discretionary.
It is in itself a Fundamental Right

It is only a Constitutional right.
under the Constitution of india.
It is not suspended even during the

It is suspended during Emergency,
Emergency.
An order given under Article 32

An order given under Article 226 falls
supersedes an order given under
behind an order given under Article 32
Article 226
This Article has greater territorial The territorial jurisdiction under

jurisdiction. Article 32 is limited to the state.
Restrictions on Fundamental Rights of Members of Armed Forces
Article 33 of the Indian Constitution allows the parliament to place restrictions and
modify the fundamental rights granted to the members of armed forces, police
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forces, members of intelligent agencies and other such services. This has been
provided so that the discipline, order and efficiency can be maintained in the army.
To understand this provision better, we should look at some case laws. In the case
of Mohammad Zubair v. Union of India, the petitioner was a Muslim soldier who
wanted to keep his beard as his faith did not allow him to cut it.
However, this was not allowed by the Air Force Policy and thus his plea was
rejected by his commanding officer and he filed a writ petition in the Punjab and
Haryana High Court in this regard.
The court held that this order was legal as even though Constitution recognised an
individual’s right to faith, Article 33 allows the parliament to restrict this right as
Uniformity of personal appearance is essential to ensure discipline in the armed
forces, and thus the petition was dismissed.
However, Article 33 does not signify that the parliament can deny rights to the
members of armed forces as per its whims and fancies. The wordings of Article 33
clearly say that the rights of such members can only be modified for two reasons
which are :
(1) To ensure discipline and
(2) To ensure proper discharge of their duties.
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This limitation was explained in the case of Union of India and others v. L.D. Balam
Singh. The Court said that while Article 33 has allowed parliament to put restrictions
on the fundamental rights of the members of the armed forces and forces responsible
for maintaining public order, this does not mean that army personnel are denied the
constitutional privileges.
Further in Lt. Col. Prithi Pal v. Union of India, the court also said that the process of
placing limitations on the rights of members of the armed forces should not go so far
that it creates a class of citizens not entitled to the benefits of the Constitution. It is
the duty of the courts to strike a balance between ensuring discipline in armed forces
personnel by modifying some of their rights so that their duty to maintain the rights
of others citizens is not hampered, and providing them with enough rights so that
they have access to civilised life.
Hence, clearly, Article 33 helps in ensuring not only discipline and efficiency in the
armed forces but also allows maintenance of the basic rights of armed forces so that
their undue advantage is not taken.
Martial law
The Indian Constitution does not define the term martial law. The term has been
borrowed from English law and in its ordinary meaning simply signifies military
rule. Imposition of Martial law signifies a situation where the authority to govern a
place is taken over by the military forces of the country.
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These authorities impose their own rules and regulations upon the civilians. Such
rules are framed outside the ordinary laws which exist in the country. Martial Law is
usually imposed in a very grave situation like war, failure of government etc and till
date has not been imposed in India.
Restriction of Fundamental Rights while Martial Law is in force in the area
Article 34 of the Constitution of India impose restrictions of fundamental rights

given to the citizens while martial law is in force in a particular area. It states that
when martial law is imposed, the parliament can indemnify the men providing
services to the state against any act done while such imposition, provided that the act
done was for the purpose of maintaining and restoring order in that area. It also
allows the parliament to validate any sentence passed under this period.
This indemnity provided cannot be challenged in the courts of India on the grounds
that it violates a fundamental right. This is because, when martial law is imposed,
the ordinary courts are suspended and all cases (including civil cases) are prosecuted
in the military courts. Hence, the Supreme Court and the High Courts do not have
any appellate jurisdiction over orders passed by the military courts in this situation.
Power to make laws regarding fundamental rights
Article 35 of the Indian Constitution prohibits the legislature from making laws
regarding Article 32, Article 33 and Article 34 and the Constitution, It also prohibits
the legislature to make laws providing for punishment given to anyone for violating
any fundamental rights. Instead, It gives this power only to the parliament.
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CONCLUSION
The Article 32 and Article 226 of the Constitution have allowed the courts to enlarge
the access to justice and have revolutionized the idea of Constitutional
jurisprudence. Judicial review has proved to be a very healthy trend which has made
the Constitution a dynamic document, more suitable to the society today. Also, PIL
and Judicial Activism have allowed the members of the society to help each other
and offer justice to the disadvantaged. They have also allowed the judiciary to take a
goal oriented approach while resolving cases.
Though the judiciary has been given vast powers under these Articles, it must be
ensured that judiciary acts like the lighthouse and the destination itself. While
passing orders it should also be ensured that judiciary works in a self- restrained
manner and is not overstepping its boundaries.
Besides these, Article 33 of the Constitution has enabled the State to ensure that the
people providing services to the state, i.e., those who are members of the armed
forces, police forces etc are not falling behind on their service and using
fundamental rights as an excuse, by enabling the parliament to restrict some of their
fundamental rights. At the same it has also not given unlimited power to the
parliament for the same.
Article 34, on the other hand, goes a long way in ensuring that the state can properly
recover from grievous circumstances by allowing the imposition of martial law and
putting restrictions on the fundamental rights of people.
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CONCEPT OF JUDICIAL REVIEW
o It is a type of court proceeding in which a judge reviews the lawfulness of a

decision or action made by a public body.
 In other words, judicial reviews are a challenge to the way in which a decision
has been made, rather than the rights and wrongs of the conclusion reached.
 Concepts of Law:
 Procedure Established by Law: It means that a law enacted by the

legislature or the concerned body is valid only if the correct procedure has
been followed to the letter.
 Due Process of Law: It is a doctrine that not only checks if there is a law
to deprive the life and personal liberty of a person but also ensures that the
law is made fair and just.
 India follows Procedure Established by Law.
o It is the power exerted by the courts of a country to examine the actions of the
legislatures, executive and administrative arms of government and to ensure that
such actions conform to the provisions of the nation’s Constitution.
o Judicial review has two important functions, like, of legitimizing government

action and the protection of constitution against any undue encroachment by the
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government.
 Judicial review is considered a basic structure of the constitution (Indira

Gandhi vs Raj Narain Case 1975).
 Judicial review is also called the interpretational and observer roles of the
Indian judiciary.
 Suo Moto cases and the Public Interest Litigation (PIL), with the
discontinuation of 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.
TYPES OF JUDICIAL REVIEW
o 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.
o REVIEW OF ADMINISTRATIVE ACTIONS:
This is a tool for enforcing constitutional discipline over administrative

agencies while exercising their powers.
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o REVIEW OF JUDICIAL DECISIONS:
 This review is used to correct or make any change in previous decisions by the
judiciary itself.
 IMPORTANCE OF JUDICIAL REVIEW:
o It is essential for maintaining the supremacy of the Constitution.
o It is essential for checking the possible misuse of power by the legislature and
executive.
o It protects the rights of the people.
o It maintains the federal balance.
o It is essential for securing the independence of the judiciary.
o It prevents tyranny of executives.
 Problems with Judicial Review:
o It limits the functioning of the government.
o It violates the limit of power set to be exercised by the constitution when it

overrides any existing law.
 In India, a separation of functions rather than of powers is followed.
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 The concept of separation of powers is not adhered to strictly. However, a
system of checks and balances have been put in place in such a manner that
the judiciary has the power to strike down any unconstitutional laws passed
by the legislature.
o The judicial opinions of the judges once taken for any case becomes the standard for
ruling other cases.
o Judicial review can harm the public at large as the judgment may be influenced by
personal or selfish motives.
o Repeated interventions of courts can diminish the faith of the people in the
integrity, quality, and efficiency of the government.
CONSTITUTIONAL PROVISIONS FOR JUDICIAL REVIEW
There is no direct and express provision in the constitution empowering the courts to
invalidate laws, but the constitution has imposed definite limitations upon each of
the organs, the transgression of which would make the law void.
The court is entrusted with the task of deciding whether any of the constitutional
limitations has been transgressed or not.
Some provisions in the constitution supporting the process of judicial review are:
Article 372 (1) establishes the judicial review of the pre-constitution legislation.
Article 13 declares that any law which contravenes any of the provisions of the part
of Fundamental Rights shall be void.
Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental
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rights to the Supreme and High Courts.
Article 251 and 254 states that in case of inconsistency between union and state
laws, the state law shall be void.
Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining
to the State List
.
Article 245 states that the powers of both Parliament and State legislatures are
subject to the provisions of the constitution.
Articles 131-136 entrusts the court with the power to adjudicate disputes between
individuals, between individuals and the state, between the states and the union; but
the court may be required to interpret the provisions of the constitution and the
interpretation given by the Supreme Court becomes the law honoured by all courts
of the land.
Article 137 gives a special power to the SC to review any judgment pronounced or
order made by it. An order passed in a criminal case can be reviewed and set aside
only if there are errors apparent on the record.
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AMENDABILITY OF FUNDAMENTAL RIGHTS
The elementary question in controversy has been whether Fundamental

Rights are amendable so as to take away the basic rights guaranteed by
the Constitution. Another controversy deals with the extent, scope and
authority of Parliament to amend Constitution. The answer has been
given by the Supreme Court from time to time, sometimes under
immense pressure and can be understood in the light of the following
cases:
1. Shankari Prasad V. Union of India (AIR 1951 SC 458) Supreme

Court held that the power to amend the Constitution, including
Fundamental Rights is contained in Article 368. An amendment is
not a law within the meaning of Article 13(2).
2. Sajjan Singh V. State of Rajasthan (AIR 1965 SC 845)
Supreme Court approved the judgment in Shankari Prasad case and

held that on Article 13 (2) the case was rightly decided. Amendment
includes amendment to all provisions of the Constitution.
3. Golaknath V. State of Punjab (AIR 1967 SC 1643)
The Supreme Court prospectively overruled its decision in Shankari

Prasad and Sajjan Singh cases and held that Parliament had no power
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to amend part 3 of the Constitution so as to abridge or take away any
of the Fundamental Rights. It also added that Article 368 merely lays
down the procedure for the purpose of amendment. Further, The
Court said that an amendment is a law under Article 13(2) of the
Constitution of India and if it violates any fundamental right, it may
be declared void.
4. 24th Amendment Act, 1971:
Golaknaths case created a lot of difficulties and as a result the

Parliament enacted 24th Amendment act, 1971 whereby it changed
the old heading of Article 368– "Procedure for Amendment of the
Constitution" to a new heading – "Power of the Parliament to Amend
the Constitution and Procedure Therefor."
To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and
extended the scope of power of Parliament to amend the Constitution

by adding the words "amend by way of addition or variation or repeal
any provision in accordance with the provisions laid down in this
Article" Further, the amendment provided that "Nothing in Article 13
shall apply to any amendment made under this article" by way of an
addition of Clause 3 to Article 368.
5. Kesavananda Bharti V. State Of Kerala (AIR 1973 SC 1461)
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One of the various questions raised in this case was the extent of the
power of the Parliament to amend under Article 368. A 13 Judge
Constitutional bench was formulated under Chief Justice Sikri in order
to evaluate the intricacies of Golaknaths case. The Supreme Court
overruled its decision in Golaknaths case and held that even before the
24th Amendment, Article 368 contained power as well as procedure for
amendment. The majority held that there are inherent limitations on the
amending power of the Parliament and Article 368 does not confer
power so as to destroy the Basic Structure of the Constitution.
6. 42nd Amendment Act, 1976
42nd Amendment Act, 1976 was passed by the Parliament soon after.
Amendment added clause 4 and clause 5 to Article 368. Article 368(4)
provided that no Constitutional Amendment shall be called in any court
on any ground. Article 368(5) provided that there shall be no limitation
whatsoever on the constituent power of the Parliament.
7. Minerva Mills V. Union of India (AIR 1980 SC

1789) Supreme Court struck down clauses (4) and (5) of Article
368 inserted
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by the 42nd amendment. Justification for the deletion of the said

clauses was based on the destruction of Basic Structure.
(AIR 1997 SC 1125)
8. L. Chandra Kumar V. Union Of India
The Supreme Court struck down clause 2(d)of Article 323A and
clause 3(d) of Article 323B as they excluded the jurisdiction of
High court under Article 226 and 227 as well as jurisdiction of
Supreme Court under Article 32 as they damage the power of
Judicial Review which is a basic feature of Constitution.
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RENAISSANCE UNIVERSITY

EVOLUTION OF FUNDAMENTAL RIGHTS IN UK, USA AND IN INDIA

METHODS OF GUARANTEEING FUNDAMENTAL RIGHTS THROUGH

SCOPE AND LIMITATION OF FUNDAMENTAL RIGHTS –STATE ACTION AND

MEANING AND NATURE OF FUNDAMENTAL RIGHTS

These are mentioned in the Constitution which guarantees them; and

1. These are justifiable, i.e. enforceable through courts.

RIGHT TO EQUALITY (Article 14 – 18)

RIGHT TO FREEDOM (Article 19 – 22)

RIGHT AGAINST EXPLOITATION (Article 23 – 24)

RIGHT TO FREEDOM OF RELIGION (Article 25 – 28)

CULTURAL AND EDUCATIONAL RIGHT (Article 29 – 30)

RIGHT TO CONSTITUTION REMEDIES (Article 32)

Universal: Fundamental rights are generally recognized as applying to all

Individual Autonomy: Fundamental rights are essential for safeguarding individual

NATURE OF FUNDAMENTAL RIGHTS

Inherent and Inalienable: Fundamental rights are considered inherent to every

Universal: Fundamental rights are typically granted to all individuals within a

Legal Protection: Fundamental rights are enshrined in a country's constitution or

Constitutional Protection: In many democratic countries, fundamental rights are

EVOLUTION OF FUNDAMENTAL RIGHTS IN UK, USA AND IN INDIA

THE ORIGIN AND CONCEPT OF FUNDAMENTAL RIGHTS IN THE

LOCKEIAN CONCEPT OF RIGHTS

EARLIER RECOGNITION OF BASIC RIGHTS

FUNDAMENTAL RIGHTS IN THE US CONSTITUTION

FUNDAMENTAL RIGHTS IN BRITAIN

FUNDAMENTAL RIGHTS IN INDIA

FUNDAMENTAL RIGHTS- TO WHOM AVAILABLE

CLASSIFICATION OR KINDS OF FUNDAMENTAL RIGHTS IN INDIA

REMEDIES IN CASES OF VIOLATION OF FUNDAMENTAL RIGHTS

METHODS OF GUARANTEEING FUNDAMENTAL RIGHTS

Fundamental rights are typically guaranteed through a combination of written and

DIFFERENCES BETWEEN UNWRITTEN CONSTITUTION AND THE

Unwritten Constitution Written Constitution

Unwritten constitution refers to the Written Constitution refers to the

Unwritten Constitution evolves over Written constitutions have been

Rigid, flexible or both. Majorly flexible, however, there can be

The Parliament is supreme in a The constitution is supreme.

constitution. It was a charter of written constitution, that is still in

WHAT IS JUDICIAL REVIEW?

Mechanism of Judicial Review

Role of Judicial Review

History of Scope of Judicial Review in India

Scope of Judicial Review of India under article 226

JUDICIAL REVIEW MECHANISMS

The following three aspects of judicial review are covered in India:

For legislative purposes

For Judicial action

For Administrative review

ROLE OF JUDICIAL REVIEW

To safeguard the Constitution’s promise of supremacy, judicial scrutiny is required.

The provision safeguards citizens’ fundamental rights.

This provision protects the idea of judicial independence.

HISTORY OF SCOPE OF JUDICIAL REVIEW IN INDIA

JUDICIAL REVIEW OF INDIA UNDER THE ARTICLE 226

Allowing people to express themselves.

Privatization and its impact on affirmative action

Reservation in promotions and cost benefit analysis

Equality Before Law

Equal Protection of the Laws