ARTICLE 12

The constitution of India has defined the word STATE for the purpose
of Part III and Part IV.
In STATE OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC
observed that the object of Part III is to provide protection to the
rights and freedoms guaranteed under this part by the invasion of
State. Part III and Part IV carry a theme of Human Rights, Dignity
of Individual and also of the unity and dignity of the nation.
These parts respectively as a Negative Obligation of the State and
not to Interfere with the Liberty of the Individual, and Positive
Obligation of the State to take steps for the welfare of the Individual.
State under Art 12 of the constitution has Four Components:
1. The Government and Parliament of India
Government means any department or institution of department;
Parliament shall consist of the President, the House of People and
Council of State.
2. The Government and Legislature of each State.
State Legislatures of each State consist of the Governor, Legislative
Council, and Legislative Assembly or any of them.
3. All Local Authorities and;
It means, Municipal boards Panchayats, Body

of

Port

Commissioner, and other legally entitled to or entrusted by the

government.
4. Other Authorities within the territory of India or under the
control of Government of India.
The first two categories included the legislative and executive wings
of the Union and State in all their possible varieties. They are quite
specific and self explanatory.
Judicial Scrutiny

The letter two categories, particularly the last are not so specific
and require some explanation. To give a wider dimension to FR the
Judiciary has interpreted State in different context at different
time.

PRINCIPLE OF EJUSDEM GENERIS:

In University of Madras v/s Santa Bai ,the Madras High Court evolved the
principle of ejusdem generis i.e. of the like nature. It means that those
authorities are covered under the expression other authorities which
perform governmental or sovereign functions.
In Ujjam Bai v/s Union of India the Supreme Court rejected the
principle of ejusdem generis .It observed that there is no common genus
between the authorities mentioned in Article 12. And by giving the reference
of Art 19 (1) (g), and Art 298 which contemplated engagement of state in the
performance of commercial activity, and Art 46 promotion of education or
economic interest.
In Rajasthan State Electricity Board v/s Mohan Lals it was held that to
be State, it is not necessary that the authority must be performing
governmental or sovereign functions .
It
(

should)

Be

created

by

the

Constitution

of

India;

(ii ) Have power to make laws;

In R.D.Shetty v/s International Airport Authority, the Court laid down
five
(a)

tests
Entire

(b)
(c)

to

share

be

capital

an
is

Enjoys
Department

(d)

Functional

of

owned

or

Government
character

is

authority-

managed

monopoly

(e) Deep and pervasive State control.

2

other

transferred

governmental

by

State.

status.
to

Corporation.

in

essence.

(f)

Object

of

Authority

In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know
whether a juristic person is State is not how it has been brought but why it
has been brought.
(g)

Clearance

of

five

tests

In Union of India v/s R.C.Jain , to be a local authority, an authority must

fulfill

the

ii

iii

following

)
)

Separate
Function

Has

iv

legal

in
power

tests-

Enjoys

existence.

defined

to

raise

area.
funds.

autonomy.

( v ) Entrusted by a statute with functions which are usually entrusted to

municipalities.
In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held that
when rule making power of judiciary is concerned, it is State.
Other jurists say that since judiciary has not been specifically mentioned in
Article 12, it is not State, therefore if the Judge or magistrates are not note
State while there are functioning

as a Judiciary. But if they are also

functioning as Administrator then they will be treated as State within

the meaning of Art 12.

The Chief Justice of High court shall have

functions in dual role :

1. Chief Justice of High Court
2. Chief Administrative of High Court.
If any citizen aggrieved

by the act of the Chief Justice , while he was

function as chief administrator of the high court then that chief justice has
no remedy and he shall be treated as a State under the Art 12.

CONCLUSION
The word State under Article 12 has been interpreted by the courts as per
the changing times .It has gained wider meaning which ensures that Part-III
3

can be applied to a larger extent. We hope that it would continue to extent

its width in coming times.

DOCTRINES
1. Severability (Post constitutional laws ) Art 13 (2)
Art 13 provides that Act is void which is inconsistent with the Part III
of the constitution. Art 13 is having a flexible nature; it does not make
the whole Act inoperative. It makes inoperative only such provisions of
it as are inconsistent with or violative of fundamental right.
Sometimes valid and invalid portion of the Act are so intertwined that
they cannot be separated from one another. In such cases, the
invalidity of the portion must result in the invalidity of the Act in its
entirety,

the

reason

is

that

the

valid

part

cannot

survive

independently. In determining whether the valid parts of a statue are

severable from the invalid parts. In intention of the Legislature is the
determining factor. In other words it should be asked whether the

legislature would have enacted at all that which survive without the
part found ultra virus.

The rule of severability applies as much clause (2) as to Clause

(1) of Art 13

Jia Lal v/s Delhi Administration AIR 1962

The appellant was prosecuted for an office u/s 19 (f) of the Arm Act
1878. In fact, section 29 of this Act provides that in certain area in
which the petitioner did not obtain any license in which the petitioner
was residing, it was not necessary to obtain the said license for
possession fire arm. Section 29 was challenged as ultra virus and
unconstitutional as offending Art 14 and also section 19(f) of the
Arms Act 1878 on the ground that two sections were not severable, on
the question of severability the SC held that the section 29 of

the

Arms Act 1878 was ultra virus.

2.
Doctrine of Eclipse (Pre Constitutional Laws) Art 13 (1)
Art 13 provides that any law which made before the commencement
of constitution

must be consistent with

the part III of the

constitution . if any statue is inconsistence with the provisions of part

III of the constitution such statue shall become void. At the same time
5

such statue shall not be treat as Dead unless it is abolish by

Parliament. It will be treated as dormant or remains eclipsed to the
extent it comes under the shadow of the fundamental rights.
Regarding the doctrine of eclips few points need to be consider.
It is held to be applied only the Pre Constitutional Laws, and not to
be post constitutional laws.
Bhikaji

v/s State of MP AIR 1955

The MP Government passed an Act in the year 1950 for nationalizing

the motor transport before commencement of the constitution. The
statue was challenge by the petitioner under Art 19(1)(g). The Center
Govt. Amended Act 1955 on 27-4-1955 enabling the state to
nationalize the motor transport. That SC held that the statue of MP
sate State nationalizing the motor transport 1950 was cured by the 4 th
Amendment Act 1955 and therefore the Doctrine of Eclipse has been
applied and the such Act is valid.
DOCTRINE OF ECLIPSE
This basically relates to the fact that some laws are held unconstitutional by
the courts. now in this scenario, the legal position that remains is that
though the law exists in statute books, because of a court decision they are
inoperable. Therefore in law there is an eclipse cast upon their
implementation. However this does not imply that such laws cease to exist,
for another decision may hold such law valid and in which case the eclipse
cast upon the law would be removed and it would be implementable again.
an example of this is Section 309 of the Indian Penal Code which the
Supreme Court in the case of P. Ratinam held as unconstitutional. however
it remained in the IPC and therefore it was under eclipse. However when a
constitutional bench in Gian Kaur case reversed this decision and held
Section
309
as
constitutional,
the
eclipse
was
removed
and it because operable again. An example of a provision which remains in
eclipse
presently
is
of
Section
301
which
has
been declared as unconstitutional by the Supreme Court. now till the time
this decision is reversed or the provision is removed from IPC, it will remain
under eclipse.
6

DOCTRINE OF WAIVER
The Fundamental rights (FR) under Part III Art 12 to 35 of the
constitution are conferred to every citizen of India by the constitution.
These constitutional rights are not absolute. There are reasonable
restriction impose by the constitution. The primary objective of these
FR are based on public policy. Therefore no individual can waive off
such RF rights.
The doctrine of waiver of right is based on the premise that a person
is his best judge and that he has the liberty to waive the enjoyment of
such right as are conferred on him by the state. However the person
must have the knowledge of his rights and that the waiver should be
voluntary.
Basheshr Nath v/s Income Tax commissioner AIR 1959 SC 149
In this case the petitioner whose matter had been referred to the
Investigation commissioner u/s 5(1) of the Taxation of Income Act
1947 was found to have concealed a settlement u/s 8 A to pay Rs 3
Lakhs in monthly installments, by way of arrears of tax and penalty.
In the meanwhile the SC in another case held that section 5(1) is ultra
vires the constitution, as it was inconsistence with Art 14.

So the

appellant cannot his waive off his FR.

Conclusion- It means "a person from denying or asserting anything to
the contrary of that which has, in contemplation of law, been
established as the truth, either by the acts of judicial or legislative
officers, or by his own deed, acts, or representations, either express or
implied.

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAW EXPLAIN

BOTH THE TERM UNDER ART 14
Art 14 Declares the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.
Thus Art 14 used the two expression equality before the Law and equal
protection of the law
As such this right

was considered generally a negative right of an

individual not to be discriminate in access to public offices or places or in

public matter generally. It did not take account of existing inequalities
arising even from the public policies with that kind of undertaking of the
right to equality.
This first expression equality before the law, is a somewhat negative
concept

which is said to be have taken from English common law, is a

declaration of equality of all person within the territory of India,

implying there by the absence of any special privilege in favor of any
individual. Ever person whatever be his rank or position is subject to the
jurisdiction of the ordinary court. Prof. Dicey, explain the concept of equality
as it operated in England said with us every official from the PM down to a
constable or collector of taxes is under the same responsibility for every act
done without any legal justification as any other citizen.
The second expression the equal protection of the law which is rather a
corollary of the first and is to be taken from US, it is a more positive
concept implying equality or treatment in equal circumstances.
8

These two expression under this article to make the concept of equal
treatment a binding principle of State action . The word Law in the former
expression is used in a generic sense a philosophical sense, whereas the
word Laws in the latter expression denotes specific laws. It has not
explained this statement any further, but it means that equality for all is the
law or standard norm of the land.
Equal protection of the laws is now being read as a positive obligation on the
State to ensure equal protection of the Laws by bringing in necessary social
and economic changes so that every one may enjoy equal protection of the
laws and nobody is denied such protections.
Underlying Principle
As no human being are equal in all respect the same treatment to them in
every respect would result in unequal treatment. For example the same
treatment to a child as to an adult or to a physically challenge or healthy
person, will result in unequal treatment.
Therefore the underlying principle of equality is: not the uniformity of
treatment to all in all respect, but rather equal must be treated equally
while unequal must be treated differently.
But this does not mean the unequal treatment for all, while the later Article
of this part ( Part III) especially Art 15 and 16, equality not only prohibited
unequal treatment but it also demands equal treatment. Therefore state
must not only treat people unequally but it must also take positive steps to
remove existing inequalities, especially those inequalities which treat human
being less then human being.
Test of Valid Classification
This article forbids the legislature classification, but it does not forbid
reasonable classification of person, objects and transactions by the
legislature for the purpose of achieving specific ends. And differentia

must have a rational relation to the object sought to be achieved by the

Act.
There must be an nexus between the basis of classification and the
object of the Act which makes the classification.
In Kedar Nath Bajoria V/s State of WB
It said
The equal protection of the Laws guaranteed by the Article 14 of the
Constitution does not mean that all the Laws must be general in
character and universal in application and that the State is no longer to
have the power of distinguishing and classifying persons or things for the
purpose of legislation.
In E.P Yoyappa v/s State of TN
Propounded a new approach to Article 14 in the following words:
Equality is a dynamic concept with many aspects and dimensions and it is
cannot be cribbed, cabined and confined within traditional and doctrinaire
limits. For a positive point of view equality is antithetic to arbitrariness.
In Maneka Gandhi v/s Union of India
Article 14 strikes at arbitrariness in state action and ensure fairness and
equality of treatment, the principle of reasonableness, which logically as well
as philosophically is an essential element of equality or non arbitrariness
pervades Article 14 like a brooding omnipresence.

10

Amendment in Constitution- Art 368 and Art 13

Shankari Prasad V/s Union of India

Sajjan Singh V/s State of Rajashthan

Golaknath V/s State of Punjab

24th Amendment

Theory of Basic Structure (Keshvanad Bharti V/s State of kerala)

42nd Amendment

Minarva Mills V/s Union of India

In Shankari Prasad V/s UOI- The court held that the word LAW in clause
2 of Art 13 did not include the law made by the Parliament of India under
Art 368. The word LAW in Art 13 must be taken to mean Rules or
Regulations make in exercise of constitutional power and therefore Art 13(2)
did not affect amendment make under Art 368.
Means Art 368 superseded the Art 13.
Sajjan Singh v/s State of Rajashtan- in this case the SC also uphold the
decision which has been made in Shankari Prasad V/s UOI.

11

Golaknath v/s Sate of Punjab- Court held that Art 13(2), the definitions of
Law which has been interrelated by Art 13(2), it is justifiable and it should
be law.
This is the first time when court check the power of Parliament to Amend
the constitution which has been given by Art 368 of Constitution of India,
and applied the Doctrine of prospective Over Ruling. SC over ruled its
decision in the aforesaid cases and held that the word LAW in Art 13(2),
includes every branch of law, whether it is statutory or constitutional amend
mend.
And it is necessary Art 368 r/w Art 13(2).
24th Amendments- to intact his amending power and to show its
supremacy made the 24th amendments in the constitution and add the
word- Power- in art 386 which is
Power & Procedure. And add a new clause 4 in Art 13 which provide
that- nothing in this Art shall apply to any amendment to this art made
under Art 368.
Keshvanad Bharti V/s State of Kerala- Sc propound the theory of basic
structure.
42ed Amendment Add the clause 4 and 5 in Art 368.
Minarva Mills V/s UOI- Doctrine of basic structure, that it is the
illustrative list and not the exhaustive list. And Clause 4 & 5 of Art 368
declared void.

12

The preamble of constitution sets out the main objectives, which the
constitution makers wanted to achieve. Discuss this statement. Can
preamble be amended under Art 368 of the constitution? (2009) (2008).
Q. What do you understand by fundamental rights? Discuss with
respect
to
Indian
Constitution.
The
general
concept
of
fundamental
rights
The rights that are basic to the advancement of the human race are called
Fundamental Rights. All other rights are derived from these rights as direct
implications or application of their principles. It is an accepted belief among
the philosophers that these rights are nothing but "natural human rights",
which distinguish between humans and animals and which have been so
instrumental in bringing humans from the stone age to the present age.
Among all, the right to life and liberty is considered to be the most basic.
The history of legally enforceable fundamental rights probably starts from
Magna Carta, which was a list of rights extracted from Kind John by the
people of England in 1214 AD. This was followed by the "Bill of Rights" in
1689 in which Englishmen were given certain civil and political rights that
could not be taken away. Later on the French compiled the "Declaration of
the rights of Man and of the Citizen" after the French Revolution in 1789.
The most important advancement in history of fundamental rights occurred
when the USA incorporated certain fundamental rights in the form on "Bill
of Rights" in their constitution by the way of first 10 amendments. These
rights were deemed to be beyond the vagaries of politics. The protection by
the constitution meant that these rights could not be put to vote and were
not dependent on the whims of politicians or of the majority.
After this, nearly all democracies of the world have given a constitutional
sanctity to certain inalienable rights available to their citizens.
13

Need
for
Fundamental
Rights
1.
Rule
of
Law
These rights are a protection to the citizens against the govt and are
necessary for having the rule of law and not of a a govt or a person. Since
explicitly given by the constitution to the people, these rights dare not be
transgressed by the authority. The govt. is fully answerable to the courts
and
is
fully
required
to
uphold
these
rights.
2.
First
fruits
of
the
freedom
struggle
After living in subjugation for such a long time, people had forgotten what is
meant by freedom. These rights give people hope and belief that there is no
stopping to their growth. They are free from the whims of the rulers. In that
sense, they are first fruits of the lengthy freedom struggle and bring a sense
of
satisfaction
and
fulfillment.
3.
Quantification
of
Freedom
Even citizens in gulf countries or communist countries are free. Then how is
our freedom different from theirs? The list of fundamental rights is a clear
measurement for how free we really are. As an example, every Indian citizen
in free to practice a religion of his choice, but that is not so in the gulf
countries. Our right to speech and expression allows us to freely criticize
the
govt.
but
this
is
not
so
in
China.
Fundamental
Rights
in
India
Technically speaking, the rights specified in Part III (Art 12 to 35) of
the constitution are the fundamental rights available to the citizens of India.
In the case of Menaka Gandhi vs Union of India AIR 1978, J. Bhagvati
has said that these rights represent the values that are cherished by the
people of this country since the vedic ages and are calculated to protect the
dignity of individual and to create conditions in which every human being is
able to develop his personality to the fullest. These rights are necessary for a
human being for attaining full social, intellectual, and spiritual status.
These

rights

can

be

grouped

into

categories

1.
Articles
14-18 Right
to
Equality
Art. 14 ensures that all citizens are treated equally. It enshrines the
principle of "Equality before law and Equal protection of law". However, this
brings us to an important question. Should people living in unequal
circumstance be treated equally? In Indian Constitution, the answer is a
14

resounding no. We have adopted the mantra of "equal treatment under equal
circumstances". This is reflected in Art 15, which, while prohibits the state
from discriminating between the citizens only on the grounds of Caste,
Race, Religion, Sex, and Place of Birth or all of them[ Art 15(1) ], also allows
the state to make special provisions for Women and Children [Art 15(3)] and
for
Backward
classes
[Art
15(4)].
Art. 16 takes the same principle further to employment in govt. jobs.
Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as
Rai Bahadur that used to be given in the British rule.
The cases of Lindsley v Natural Carbonic Gas Co, US SC
1910 and Chiranjit Lal v Union of India SC AIR 1951 are important cases
that illustrate the concept of equal protection of the laws. In these cases, the
SC of both the countries held that all persons similarly circumstanced
should be treated equally. Only like should be treated alike and thus a
reasonable
classification
can
be
done.
Several cases such as Randhir Singh vs Union of India 1982 (Equal pay
for
equal
work)
illustrate
the
principle
of
equality.
The SC judgment in Indra Sawhney vs Union of India AIR
1993 incorporates the element of fairness in dealing with inequalities in the
society, while balancing the aspirations of the socially forward classes.
2.
Artticles
19-22
Right
to
Freedom
A citizen of India is given freedom of Speech and Expression, freedom of
Assembly, freedom of Association, freedom of Movement, freedom of
Residence, and Freedom of Profession and Occupation through Art. 19.
Art. 20 gives protection with respect to conviction of offenses. This includes
the principles of

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

double jeopardy: A person cannot be charged with the same crime if

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

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

himself.

15

Art. 21, which is the most important and diverse of all the rights to freedom,
is the Protection of Life and Personal Liberty. SC in Menaka Gandhi v
Union

of

India

AIR

1978 was

landmark

case

that

gave wide

interpretation of this right. In this case the SC held that his right is not
only about having any kind of life but a life of dignity. The freedom is not
just physical but mental as well as spiritual. This encompasses several
rights such as right to travel abroad ( Satvant Singh v Ass. Passport
Office AIR 1967) and right to pollution free water and air ( Subhash
Kumar vs State of Bihar AIR 1991) . Further, Constitution Amendment
Act 86, 2002 makes free and compulsory education to children under 14 a
fundamental

right.

Art. 22 gives protection from illegal arrest or detention. It provides that a

person must be informed of the grounds of arrest as soon as possible, be
allowed to speak to a lawyer of his choice, and be produced before a
magistrate
3.

within

Art

24

23-24

hrs

Right

of
Against

detention.
Exploitation

Under Art. 23, the govt. has banned trade in human beings. This includes
flesh trade and forced work or work

without pay (begar system).

Art. 24 prohibits children from being employed in factories and hazardous

conditions.
4.

Art

25-28

Freedom

of

Religion

Unlike several countries of the world, we are free to practice, profess, and
propagate any religion under Art. 25. Art. 26 allows us to establish and
maintain institutions for religious and charitable purposes. It also gives the
right to manage our own religious matters. Art. 27 provides tax benefits for
promotion of religion and art. 28 prohibits religious teaching in govt and
govt
5.

aided
Art

29-30

Cultural

schools.
and

Educational

Rights

Art. 29 allows any section of citizens living anywhere in India who have a
distinct language, script, or culture, to preserve the same. Art. 30 allows
minorities to establish and maintain educational institutions. To prevent
16

discrimination, however, art 29(2) prohibits them from discrimination

in admissions only on the grounds of religion, race, caste, language, or any
of

them.

6.

Art

32

Right

to

Constitutional

Remedies

Dr. Ambedkar, the chief architect of our constitution, has said that Article
32 is the soul of our constitution. All the talk of rights is useless if there is
no recourse against their transgression. Under this article, a citizen is free
to

go

to

the

Supreme

Scope

Court

of

for

violation

of

his

rights.

Fundamental

Widest

Rights

Possible

Interpretation

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

various rights given under part III talk about different things and are not be
interlinked. This view, however, has been rightly rejected by the SC
in Menaka Gandhi vs. Union of India AIR 1978 case. In this case, J
Bhagvati said that the role of SC should be to interpret these rights in the
widest possible manner and it should not attenuate these rights by being
confined to their narrow definition. All these rights are not mutually
exclusive and form an integrated theme of the constitution. J Beg said that
their waters must mix to form a grand flow of unimpeded and impartial
justice. Thus, any law that takes away the life or liberty of a person, must
also

satisfy

Natural

the

test

of

Justice

reasonableness
and

under
Due

art.

14.

Process

In Menaka Gandhi's case, SC has held that any law that takes away the life
or liberty of a person under art. 21, must be just, fair, and reasonable. It
must satisfy the principle of natural justice, which is a basic component of
fair procedure under Art. 21. While Art 21 does not contain the "due
process" clause of the American Constitution, the effect is the same because
natural justice is a distillate of due process i.e. natural justices can only be
delivered
Expanding

through
the

role

due
of

writ

of

process.
Habeas

Corpus

The case of Sunil Batra vs Delhi Admin AIR 1980 has given tremendous
17

power to the writ of Habeas Corpus. It allows the judiciary to even enforce
the fundamental rights in a prison. Even prisoners are humans and must
be treated with dignity. They cannot be stripped off of their fundamental
rights, thus menial or forced work without pay, solitary confinement,
degrading punishment, is not allowed. This case has also allowed people
who are not directly involved but have any kind of interest to approach the
court. The objective is to remove injustice wherever it is found in the society.

Absoluteness

of

Fundamental

Rights

"Your freedom ends where my freedom starts" is a well known saying. The
constitution gives you the right to propagate your religion. But does that
mean you should force me to hear religious activities over the loudspeaker?
The constitution gives you the freedom of speech and expression. But does
that mean you can publish and sell pornography freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution
also takes the same stand and specifies the limits of these rights. These
rights extend only until they do not affect security of the state, public order,
and social decency. The constitution allows reasonable restrictions to be
placed on these rights. SC in A K Gopalan vs State of Madras 1950has
also

held

that

Fundamental

Suspension

of

Rights

are

Fundamental

not

absolute.
Rights

Under art 358, freedoms given under art 19 are suspended when the
president proclaims emergency. Further, under art 359, president may
suspend the right to move courts for violation of rights given in part III
except
Critical

art

20

and

21.
Analysis

Indian Constitution was written after a through analysis of existing

constitution of the world. The framers of the constitution have incorporated
the good things from all the places. As such it is more fair and consistent
than religious books. It is for the foresight of the framers of the constitution
that the country is integrated and has progressed. While the framers had
18

thought about a lot of things, the one thing that they probably missed was
the safeguards against the degrading morality of politicians.
Q. What do you understand by freedom of speech and expression? What
restrictions
can
be
applied
on
it?
Freedom of speech and expression is the most basic of all freedoms granted
to the citizens of India. J Patanjali Shastri has said in the case of Romesh
Thaper vs State of Madras AIR 1950 SC that freedom of speech and that
of the press lay at the foundation of a democratic society, for without free
political discussions, no public education is possible, which is so important
for
the
proper
functioning
of
the
govt.
It allows us to freely express our ideas and thoughts through any medium
such as print, visual, and voice. One can use any communication medium
of visual representation such as signs, pictures, or movies. Freedom of
speech would amount to nothing if it were not possible to propagate the
ideas. Th us, the freedom of publication is also covered under freedom of
speech. Freedom of speech serves 4 purposes

allows an individual to attain self fulfillment.

assists in the discovery of truth.

it strengthens the capacity of a person to make decisions.

it facilitates a balance between stability and social change.

This right is not only about communicating your ideas to others but also
about being able to publish and propagate other people's views as well.
Thus, freedom of speech and expression is linked to the people's right to
know. Freedom of speech and expression is a broad term and encompasses
several things. The following are important cases that have determined the
extent
of
this
right
from
time
to
time.
Right

to

Know

Prabhu Datt vs Union of India SC AIR 1982 : SC held that right to know
news and information about the functioning of the govt. is included in the
freedom
of
press.
19

Union of India vs Association for Democratic Reforms SC AIR 2002 : SC

held that people have right to know about the candidate before voting. Thus,
the law preventing the Election Commission from asking for a candidates
wealth, assets, liabilities, education and other such information, is invalid.
Right

to

tell

and

propagate

LIC vs Manubhai D Shah SC AIR 1992 : In this case, Manubhai wrote an

article in LIC's magazie about the problems with LIC that affected policy
holders. LIC published a response to that but did not give a chance to public
a rejoinder. SC held that LIC being a State as per Art 12, must publish his
response. It also held that it does not mean every body has a right to
publish in a magazine and this right should be determined on a case by
case
basis.
Secretary, Ministary of I & B vs Cricket Association of Bengal SC AIR
1995 : In this historic judgment, SC has held that one has the right to
publicize his expression as well. A game of cricket is an expression and the
organizers have a right to propagate it every where in the world. So
Doordarshan must provide its uplinking facilities to CAB for transmitting
the signals out of country. Art 19 (2) does not allow restrictions on 19 (1) (a)
on
the
grounds
of
creating
monopoly
of
the
govt.
Tata Press Ltd. vs MTNL SCC 1995 SC: In this case, SC held that
commercial advertisement is protected under freedom of speech.
Restrictions

on

Freedom

of

Speech

and

Expression

Every human desires to do many things. However, in a civil society such

desires must be curbed to certain extent in respect of similar desires of
other human beings. Thus, no right is an absolute right. Art 19 (2) says
that nothing in Art 19 (1) (a) shall affect the operation of any law or prevent
the state from making any law, in so far as such law imposes reasonable
restrictions on exercise of the right conferred by the said clause in the
interest of

sovereignty and integrity of the country.

security of the state

20

friendly relations with foreign states.

public order

decency and morality

defamation

contempt of court

incitement of an offence.

In the original version of this article several grounds such as public order,
friendly relations with foreign states, incitement of an offences were not
there. After the historic judgement in the case of Romesh Thaper vs State
of Madras SC AIR 1950, these grounds were added. In that case, Madras
Govt. prevented the entry an circulation of the new paper 'Cross Roads'
published by Romesh Thaper, in the state of Madras. It argued that the
circulation of the paper affects public safety. However, SC held that
the public safety falls outside the scope of 19 (2) and thus the govt action
was invalid. This decision prompted the govt. to amend the constitution to
include
additional
grounds
as
mentioned
above.
It is important to note that the current clause mentions the words
"reasonable restrictions". Thus, any law restricting the freedom of speech
and expression must satisfy the grounds mentioned in 19(2) and must also
satisfy the criteria of reasonableness. Reasonable restriction means
intelligent care and discussion that the restriction is not beyond what is
required for public interest. It should not be arbitrary and excessive.
Further, the restriction can only be imposed by law and not by executive or
departmental
decision.
Test

of

reasonable

restrictions

Spanning several cases, SC has laid down the following guidelines :

1. It is the courts and not the legislature that will decide whether a law
is reasonable or not.

21

2. Reasonable means that the law is not arbitrary and the restriction is
not beyond what is required in public interest. The time and duration
of the restriction cannot be unlimited.
3. There is no fixed standard for reasonableness. Each case must be
decided on its own merits.
4. The restriction must be reasonable from substantiative as well as
procedural stand point.
5. Restrictions imposed due to implementation of Directive Principles
may deemed to be reasonable.
6. The test of reasonability must be objective in the sense that it does
not matter what a Judge or Court thinks what is reasonable but what
a normal reasonable person would think.
7. The restriction must have a relation to the object that is sought
through the law and must not be excessive.
8. It is the reasonableness of the restriction that a count has to
determine and not the reasonableness of the law itself.
9. Restriction may amount to prohibition.

The following are important cases that have attenuated the scope of this
right.
CPI (M) vs Bharat Kumar AIR 1998 SC : In this case SC has held that
bundhs called by various political parties are illegal because they prevent
the
citizens
from
exercising
their
right
to
freedom.
I
Ranjit Udeshi vs State of Mah. AIR 1965 SC : In this case, a bookseller
was prohibited from selling book containing obscene material.
Hamdard Dawakhana vs Union of India AIR 1960 SC : In this case, SC
held that obnoxious and fraudulent advertising is not protected under
freedom
of
speech.
Critical
22

Analysis

Freedom of speech and expression is indeed the most important of all

freedoms. However, today, this right is being routinely suppressed under the
guise of morality and decency or public order. Even a slight criticism of a
public leader or past king causes the political parties to involve in damage of
public property. Any book that talks about problems in a religion is banned
in the name of public order. It is extremely unfortunate that the executive,
instead of the upholding peoples' right to speech and expression by
preventing unscrupulous element from hurting the author, is more
interested in stifling the voice by banning their works. By doing this they are
not doing their job responsibility.
Q. How is the independence of the judiciary ensured? Describe the
various jurisdictions of the Supreme Court of India. Explain the writ
jurisdiction of a High Court. What is meant by Judicial Review?
India has adopted a federal constitution with distribution of powers between
center and the states. An independent judiciary is the essence of the
federal character of the constitution. It is imperative that the judiciary be
impartial and independent of the legislative and executive branches of the
country to ensure the functioning of the government in accordance with the
constitution. The supreme court, being the guardian of the constitution,
ensures that the fundamental rights of the citizens are not violated. To let
the judiciary fulfill this big responsibility efficiently, the constitution has
provided several measures that ensure the independence of the judiciary.
However, owing to the nature of Indian politics, there have been several
attempts by the govt. to extend its supremacy over the judiciary and to
reduce its independence. To understand the dynamics between the govt.
and the judiciary, we need to look at the provisions present in the
constitution.
Composition
of
the
Supreme
Court
Art 124 specifies that the SC will be composed of a Chief Justice and at
most 7 other judges. The number of other judges has now been increased to
25.
To be appointed as a judge of the supreme court, a person must be a citizen
of
India
and
a)
has
been
a
Judge
of
a
High
Court
for
5
yrs
.
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.
23

Appointment
of
the
Judges
The procedure of appointment of the Chief Justice and other judges has
created a lot of controversy because it is the key aspect of the independence
of the judiciary. Art 124 specifies that the Chief Justice is appointed by the
president after consulting with the judges of the supreme court and the
high courts. Further, that while appointing other judges, the CJ must be
consulted. Thus, the constitution clearly tried to prevent the executive from
having complete discretionary powers in the appointment of the judges.
Until 1973, the senior most judge of the supreme court was appointed as
the Chief Justice. However, this convention was broken when Justice AN
Ray was appointed as the CJ by passing 3 more senior judges. This was
seen as a blatant assault on the independence of the judiciary. The govt.
pleaded that the word "consult" does not mean that the president is bound
by
the
advise.
He
is
free
to
make
his
own
decision.
In 1977, in the case of Union of India vs Sankalchand Seth, which was
related to the transfer of a Judge from one high court to another under art
222, SC held that the President has the right to differ from the advice
provided
by
the
consultants.
Judges
Transfer
Case
1
In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed
with the meaning of the word 'consultation' as determined in the
Sankalchand's case. It further held that the only ground on which the
decision of the govt. can be challenged is that it is based on mala fide and
irrelevant consideration. In doing so, it substantially reduced its own power
in appointing the judges and gave control to the executive.
Judges
Transfer
Case
2
This matter was raised again in the case of SC Advocates on Record
Association vs Union of India, AIR 1982. In this case, the SC overruled
the decision of the S P Gupta case and held that in the matter of
appointment of judges of high courts and supreme court, the CJ should
have the primacy and the appointment of the CJ should be based on
seniority. It further held that the CJ must consult his two senior most
judges and the recommendation must be made only if there is a consensus
among
them.
24

Judges
Transfer
Case
3
A controversy arose again when the CJ recommended the names for
appointment without consulting with other judges in 1999. The president
sought advice from the SC (re Presidential Reference 1999) and a 9
member bench held that an advice given by the CJ without proper
consultation with other judges is not binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment
of the judges in SC and High Courts are fairly free from executive control.
This is an important factor that ensure the independence of the judiciary.
The following are other provisions that work towards the same goal:
1.
Fixed
Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed
except by a presidential order passed with a simple majority as well as by
2/3 majority of each house of the parliament present and voting.
No judge has ever been removed by a presidential order in India. The
proceedings to remove were started to Justice V Ramaswamy, but the
motion was not approved because lack of required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure
was put the the local bar association on the judge to resign. In this case, the
SC held that only the Chief Justice of the SC can be the prime mover of the
action against erring judges. Thus, after this case, action against judges
was allowed only through in-house procedures of the judiciary.
2.
Salary
The salary of the judges cannot be changed after the appointment for their
disadvantage.
3.
Jurisdiction
of
the
courts
The jurisdiction of the SC can be increased but not decreased i.e. their
power
cannot
be
curtailed.
4.
Art
121
No discussion about the judges in the parliament is permitted as per art
121
except
for
the
discussion
about
his
removal.
5.
Art
129
and
215
Power
to
punish
for
its
contempt.
The SC and the High Courts have the power to punish anybody for civil and
25

criminal

contempt

of

itself

under

art

129

and

215.

6.
Art
50
Separation
of
judiciary
from
executive
Art 50 urges the state to take steps to separate the judiciary from the
executive
in
the
public
service
of
the
state.
7. Appointment of the judges only after consultation with legal experts.
As discussed above, the executive does not have unlimited power over
appointment
of
judges.
8. Art 124(7) Prohibition on practicing before any court
Art 124 prohibits a retired judge from appearing and pleading before any
court
or
tribunal.
Jurisdictions

of Supreme

Court

Art
129
Court
of
Record
SC is a court of record and has all the powers including power to punish for
civil or criminal contempt of court. In the case of Delhi Judicial Service
Asso. vs State of Gujarat 1991, SC held that It can even punish for
contempt
of
any
subordinate
court
in
India
as
well.
In the aftermath of babri masjid demolition, UP CM Kalyan Singh was
punished for contempt of court for failing to deliver on his promise not to
allow
any
construction
in
disputed
area.
Art
131
Original
Jurisdiction
The SC has original jurisdiction in any dispute arising between:
a)
Center
and
one
or
more
states.
b) Center and one or more states on one side and one or more states on
another.
c.)
two
or
more
states.
Under original jurisdiction, individuals cannot bring a suit again Govt. of
India. The suit must involves a question of law or fact on which a legal right
depends. Further, the suit cannot be because of any commercial relation or
political
relation
between
the
two
parties.
In the case of State of Karnataka vs Union of India 1978, SC held that
the suit filed by State of Karnataka against the Govt. regarding its objection
to the appointment of an inquiry commission is maintainable.
26

In the case of Union of India vs State of Rajasthan 1984, it was held that
a suit to recover damages under Railway Act is not maintainable. SC's
original jurisdiction is not attracted for ordinary commercial disputes.
The following are some exceptions under which SC does not have
jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that
was executed before the commencement of the constitution, and which is
still in operation or provides that the jurisdiction of SC does not extend to
such
a
dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes
related to use, distribution, or control of the water or an interstate river or
river
valley.
3.
Any
matter
referred
to
the
Financial
Commission.
4. Matters related to the adjustment of the expenses between the center and
the
state.

Enforcement
of
Fundamental
Rights
Art
32
SC is the guardian of the constitution. It is the supreme defender of the
people's fundamental rights. This position has been enforced by Art 32 that
given any citizen to petition the SC if his fundamental rights are violated.
The SC is empowered to give directions, orders, or writs including the writs
of habeas corpus, mandamus, prohibition, and certiorari for the
enforcement
of
the
rights
given
in
part
III.
L Chandra Kumar vs Union of India AIR 1997 - Power of judicial review
vested in HC by art 226 and in SC by art 32 is a basic feature on the
constitution
and
cannot
be
amended.
Art
132
Appellate
Jurisdiction
Constitutional
The SC is the highest court of appeal in the country. The writs and the
decrees of the SC run throughout the country. A person can appeal to the
SC under its appellate jurisdiction if he is not satisfied with the decision of
the lower courts. Art 132(1) allows an appeal to be filed in the SC if three
conditions
are
satisfied:
1. The order appealed must be against the judgement of a high court in civil,
criminal,
or
other
proceedings.
2. The case involves a question of law as to the interpretation of the
constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.
27

Krishnaswamy vs Governer General in Council 1947 - If there is a

difference of opinion among High Courts and if there is no direct decision by
SC on that point, it is a substantial question of law that can permit appeal
in
SC.
Art
133
Appellate
Jurisdiction
Civil
An appeal shall lie to SC from any judgement, decree, or a final order in civil
proceedings of a High Court only if the High Court certifies under 134A that
1. the case involves an substantial question of law of general importance.
2. in the opinion of the High Court, the said question needs to be decided by
the
SC.
Madan Gopal vs State of Orrisa 1956 - The pecuniary value of a dispute
is immaterial. There may be matters which cannot be measured in money
but the decision could have a far reaching effect and such cases can be
permitted
to
be
appealed
in
SC.
Art
134
Appellate
Jurisdiction
Criminal
An appeal shall lie to SC from any judgement, decree, or a final order in
criminal proceedings of a High Court in two ways - with or without a
certificate
from
High
Court.
1.
Without
Certificate
a) If the High Court, on appeal, has reversed an order of acquittal of an
accused and
sentenced
him
to
death
b) if the High Court has withdrawn a case before itself from any
subordinate court and in such a case has convicted the accused and
sentenced
him
to
death.
2.
With
Certificate
If the High Court certifies that this is a fit case for appeal to SC.
Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued
guidelines for issuing certificated under 134A. A mere question of fact is not
enough but it must also involve a substantial question of law.
Art 135 Federal Court's (the one that existed before the commencement of
the
constitution)
jurisdiction
to
be
exercised
by
the
SC.
Art

136
28

Special

Leave

to

appeal

by

SC

Under this article, the SC is authorized to grant, on its discretion, special

leave to appeal from any judgement, decree, determination, sentence, or
order, in any case or matter, passed or made by any court or tribunal in the
territory
of
India.
Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal against
the acquittal even if the state govt. hasn't. SC cannot refrain from doing its
duty just because a private party and not the state has appealed against the
order.
Pritam Singh vs State AIR 1950 -SC explained how this discretionary
power is to be used - Since the power is exceptional is very wide, it must be
used sparingly and in exceptional circumstances. Beyond this point it is not
possible to fetter the exercise of this power by any set formula.
Art
137 Power
to
review
its
judgement.
Under exceptional circumstance, the SC may review its judgement.
Art
139
A
Under this article the SC has the power to withdraw before itself any case or
cases from High Courts if it feels that these cases involves the same or
similar question
of
law
that
is
of
general
importance.
Union of India vs SGPC 1986 - SC may transfer a case from one High
Court to another under art 136 if it feels that the case cannot be dealt with
fairly in one High Court due to exceptional circumstances.
Art
143
Advisory
Jurisdiction
Art 143 provides that if at any time it appears to the president that a
question of law or fact has arisen or is likely to arise and that the question
is of such public importance that expedient opinion of the SC is required,
then he may refer it to the SC. The SC, after such hearing as it may deem
fit, will report back to the president. Under 143(2), the SC is can be asked to
give opinion even on matters not permitted under art 131.
There is no similar provision in the American constitution. In US, the court
can
give
ruling
only
on
concrete
cases.
In re Kerala Education Bill 1953, SC has interpreted the word "may" in
clause 1 as it is not bound to give its opinion. If it has a good reason, it may
refuse
to
express
its
opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by it
under this jurisdiction are binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance
29

passed by the State of Karnataka to not follow the order of the tribunal to
release
water
to
TN,
is
unconstitutional.
In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the
SC refused to express its opinion on whether a temple existed on the
disputed location because it was superfluous, unnecessary, and favors a
particular
religion.
Art
141
Judgement of the SC is binding on all courts, except itself. In the case
of Bengal Immunity Co vs State of Bihar. 1955, SC held that the principle
of Stare decisis is not an inflexible rule of law and cannot be used to
perpetuate
errors.
Writ

Jurisdiction

of High

Courts

The constitution gives wide powers to all High Courts to ensure that
injustice is not tolerated in any sphere. Art 226 provides that
notwithstanding anything in article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights
conferred
by
Part
III
and
for
any
other
purpose.
It is important to note that the power is not only to enforce fundamental
rights but for any other purpose, which makes its powers even wider than
Supreme Court. Here, any other purpose means any legal right of legal
duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC
has held that the power of judiciary over legislative action vested in a High
Court is a basic feature of the constitution and cannot be removed through
constitutional
amendment.
Locus
Standi
:
Who
can
apply
In general, the person whose constitutional right or legal right has been
infringed has the right to apply. However, due to judicial activism, the
"doctrine of sufficient interest" has originated. According to this, any person
who is even remotely affected can petition the High Court. It also allows
public spirited persons to file a writ petition for any person or class if that
30

person or class is not able to do so himself due to poverty or any other

reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an
unregistered trade union has right to file a petition for redressal of a
common
grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC
held that an advocate of Cal. High Court has sufficient interest in making a
public place like a railway station a safe place and so she has right to
demand compensation for the bangladeshi woman gang raped by railway
employees.
Scope
of
Art
226
In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226
confers wide powers to remedy injustice where ever it is found. Art 226 says,
"...or writs or the kind of...", which means that it is not limited only the
mentioned types of writs. It can issue orders orders of any kind that the
situation may require. Thus, it makes the scope of Art 226 a lot wider than
art
32.
Court
Martial
and
art
226
In a significant case (which case?), Delhi High Court held that section 18 of
India Army Act is not beyond the scope of High Court. While High Court
may not interfere in the sentence awarded in a court martial, such an order
cannot be arbitrary and mala fide. Thus, it is open to judicial review.
In the case of Union of India vs R K Sharma, AIR 2001 SC has held that
court should not interfere only on compassionate grounds. Only when there
is a perverseness or gross injustice on the face of it, there can be judicial
review.
Dispute
between
private
parties
No
In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC
extraordinary jurisdiction of High Court cannot be exercised
party disputes relating to property rights unless there is
statutory
rights
by
statutory

Jurisdiction
held that the
in the private
a violation of
authorities.

Natural
Justice
Natural Justice is not exclusively the principle of administrative law. The
courts are also bound by the same principle. Every administrative action
must be supported by reasons. The reasons must be recorded to ensure that
there
is
no
arbitrariness.
31

Territorial
extent
of
writ
jurisdictions
Art 226 imposes two limits on HC's writ. First, it can run only in the
territorial jurisdiction of the High Court and secondly the person or
authority
must
lie
in
that
jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC
held that Madras High Court cannot issue a writ to ECI because it is based
in New Delhi and so is out of its jurisdiction. The law commission
recommended that these are serious limitations and they defeat the very
purpose of this article. So it was amended by 15th amendment in 1963.
High Court can now issue a writ even to a central authority if the cause of
action
in
whole
or
part
arises
in
its
jurisdiction.
In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that the
averment in the petition did not disclose that a part of the cause of action
arose in the jurisdiction of Calcutta and so High Court does not have any
jurisdiction
to
entertain
the
writ
petition.
Discretionary Remedy - Not to be exercised if alternate remedy is
available
The remedy available in 226 is a discretionary remedy and the High Court
has the discretion to accept or refuse a petition. In general, if a remedy is
available elsewhere, writs under 226 are discourages. However, this does not
mean that any remedy available can be a ground for not entertaining the
petition under 226. The remedy must be effective and sufficient. In the case
of Vellaswamy v IG Police, Madras 1982, SC held that the remedy under
Police Rules of TN was not sufficient and so High Court was wrong in
dismissing
the
petition.
Effect
of
Laches
or
delay
Remedy under 226 should be sought with in a reasonable time. However,
High Court may accept a petition is there is a reasonable cause for delay in
seeking justice. Poverty has been held to be reasonable ground.
Judicial
Review
The concept of Judicial Review started from the case of Marbury vs
Madison in 1800 in the USA. In this case, justice John Marshall held that
judiciary has inherent power to review actions by legislature even if no
explicit
provision
is
given
in
the
constitution.

32

Indian
Situation
By adopting a written constitution and an independent judiciary, India has
provided the rule of law instead of rule on men to the citizens. However, the
rule of law will be rendered useless if the legislature is able to make laws
that violate the fundamental rights of the citizen. Thus, the constitution in
Art 13 has provided the judiciary with the power to review laws made by the
legislature.
This
is
called
Judicial
Review.
Art 13 says:
1. All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the extent of such
inconsistency, be void.
2. The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void.
3. In this article, unless the context otherwise requires,
o (a) law includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory
of India the force of law;
o laws in force includes laws passed or made by a Legislature or
other competent authority in the territory of India before the
commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof
may not be then in operation either at all or in particular areas.
4. Nothing in this article shall apply to any amendment of this
Constitution made under article 368.
In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that
the power vested in SC by art 32 and High Court by art 226 over legislative
action
Doctrine

is

a
of

basic

feature.
Severability

AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of

33

Preventive

detention

act

Doctrine

is

void

and

not

the

of

whole

act.

Eclipse

Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law

Deep Chand vs State of UP SC AIR 1959: Does not apply to post constitutional

law.

State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post

constitutional

law

for

non-citizens.

Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to

post

constitutional

Doctrine

law

as

of

well.
Waiver

Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen

cannot

waive

Meaning

right.

of

Law

Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and

regulations

made

under legislative

power

and

not

amendments.

Q. What is the procedure for amending the constitution? On what

grounds an amendment may be held ultra vires by the Supreme Court?
A rigid constitution is a must in a federal system of governance. In case of
Indian constitution, it has been argued that it is not rigid enough. That
there have been 93 amendments in last 50 years proves this fact. As a
comparison, there have been only 27 amendments in the constitution
of USA in the past 200 years. This has been done deliberately to ensure that
the constitution can be changed as per the needs of the times. However, to
prevent excessive changes on the whims of the ruling party, sufficient
safeguards
have
been
put.
The procedure of amending the constitution is given in Article 368. It says
that the parliament can amend the constitution under its constituent power.
A bill must be presented in either house of the parliament and must be
approved by a majority of each houses and not less than 2/3 majority of
each house present and voting. After such approval the bill is presented to
34

the president for his assent, upon whose assent the constitution shall stand
amended as per the provisions of this article. However, if the amendment
seeks to make a change in

Articles 54, 55, 73, 162, or 241

Chapter 4 of part 5, chapter 5 of chapter 6, or chapter 1 of part 11

any of the lists in the 7th schedule

representation of the states in the parliament

in this article itself

the bill must also be ratified by not less than half of the states before it is
presented

to

the

president

for

his

assent.

For amending articles 5, 169, or 239-A, only a simple majority of both the
houses
Power

of
of

the

the
parliament

parliament
to

amend

is

required.

the

constitution

There has been a lot of controversy on the power of the parliament to amend
the constitution. Article 13 of the original constitution said that the state
shall not make any law that takes away or abridges the rights given to the
citizens in Part III and any such law made in contravention of this article
shall be deemed void to the extent of contravention. Thus, it seemed that
parliament cannot amend the constitution in a way that takes away the
fundamental

rights

of

the

citizens.

This logic was first tested by the Supreme Court in the case of Shankari
Prasad vs Union of India AIR 1951. In this case, an amendment to add art
31 A and 31 B to the constitution was challenged on the ground that they
take away fundamental right of the citizens and therefore not allowed by
article 13. It was argued that "State" includes parliament and "Law"
includes Constitutional Amendments. However, SC rejected the arguments
and held that power to amend the constitution including fundamental rights
is given to the parliament by art 368 and that "Law" is art 13 refers only to
35

ordinary

law

made

under

the

legislative

powers.

In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the
judgement given in the case of Shankari Prasad and held that the words
"amendment of the constitution" means amendment of all provisions of the
constitution.
However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC
reversed its previous judgement and held that parliament has no power from
the date of this judgement to amend part III of the constitution so as to take
away any fundamental right. It held that "amendment" is a law as meant
under

art

13

and

so

is

limited

by

art

13(2).

To overcome the judgement in the case of Golak Nath, the parliament added
another clause in art 13by the 24th amendment in 1971 It says that this
article does not apply to the amendment of the constitution done under art
368. A similar clause was added in art 368 for clarity in the same
amendment, which says that amendment done under art 368 shall not
come

under

the

purview

of

art

13.

This amendment itself was challenged in the case of Keshavanand Bharati

vs State of Kerala AIR 1973. In this case, SC reversed its judgement again
and held that "Law" in art 13 only means ordinary law made under
legislative power, The 24th amendment is only clarifying that position and
so it is valid. However, it further held that "amendment" means that the
original spirit of the constitution must remain intact after the amendment.
Thus, the basic structure or features of the constitution cannot be changed.
According to C J Sikri, the basic structure of the constitution includes Supremacy of the Judiciary, democratic republic, secularism, separation of
powers among judiciary, legislative, and the executive, and the federal
character

of

the

constitution.

This judgement was delivered by 7:6 majority and is one of the most
important judgements in the history of independent India. The effect of this
judgement can be seen in the case ofIndra Sawhney vs Union of India
36

1993, where SC prevented the politicians from running amok in the matter
of reservation. It this case it held that inclusion of creamy layer violates the
fundamental right of equality, which is a basic feature of the constitution
and so its inclusion cannot be permitted even by constitutional amendment.
Conclusion
During Constituent Assembly Discussions, it was noted that rigid
constitutions such as that of USA cause a lot of problems and is
undesirable. Dr. Ambedkar said that flexible federation is a distinguished
feature of the constitution. In the hindsight, it can be said that the
safeguards to prevent the spirit of the constitution were not enough.
Politicians have time and again shown that they can modify it easily to serve
their

vote

based

politics.

Q. Explain the emergency provisions of the constitution. What do you

understand by proclamation of Emergency? Describe various types.
What are the effects of emergency on fundamental rights? What are
the effects of emergency arisen out of the failure of the constitutional
machinery in a state? What changes have been made by the 44th
amendment
regarding
emergency
provisions?
Emergency is a unique feature of Indian Constitution that allows the center
to assume wide powers so as to handle special situations. In emergency, the
center can take full legislative and executive control of any state. It also
allows the center to curtail or suspend freedom of the citizens. Existence of
emergency is a big reason why academicians are hesitant to call Indian
constitution as fully federal. Emergency can be of three types - Due to war,
external aggression or armed rebellion, failure of constitutional machinery
in a state, or financial emergency. However, technically, Proclamation of
Emergency is only done upon external aggression or armed rebellion. In the
second case, it is called Presidential Rule, and in the third case it is called
"Proclamation
of
Financial
Emergency:
Proclamation
of
Emergency
Art 352 says that if the President is satisfied that a grave emergency exists
whereby the security of India or any part of India is threatened due to
outside aggression or armed rebellion, he may make a proclamation to that
37

effect
regarding
whole
of
India
or
a
part
thereof.
However, sub clause 3 says that President can make such a proclamation
only upon the written advise of the Union Cabinet. Such a proclamation
must be placed before each house of the parliament and must be approved
by each house with in one month otherwise the proclamation will expire.
An explanation to art 352 says that it is not necessary that external
aggression or armed rebellion has actually happened to proclaim emergency.
It can be proclaimed even if there is a possibility of such thing happening.

In the case of Minerva Mills vs Union of India AIR 1980, SC held

that there is no bar to judicial review of the validity of the
proclamation of emergency issued by the president under 352(1).
However, court's power is limited only to examining whether the
limitations conferred by the constitution have been observed or not. It
can check if the satisfaction of the president is valid or not. If the
satisfaction is based on mala fide or absurd or irrelevant grounds, it is
no satisfaction at all.

Prior to 44th amendment, duration of emergency was two months

initially and then after approval by the houses, it would continue
indefinitely until ended by another proclamation. However after 44th
amendment, the period is reduced to 1 month and then 6 months
after approval.

Effects
of
Proclamation
of
emergency
The following are the effects arising out of proclamation of emergency in art
352.
Art 353
1. executive power of the Union shall extend to giving directions to any
state.
2. parliament will get power to make laws on subjects that are not in
Union list.
3. if the emergency is declared only a part of the count, the powers in 1
and 2 shall extend to any other part if that is also threatened.

38

Art
354
Provisions of art 268 to 279, which are related to taxation, can be subjected
to exceptions as deem fit by the president. Every law such made shall be
laid
before
each
house
of
the
parliament.
Art 355 says that it is the duty of the Union to protect States against
external
aggression.
Art
358
While proclamation of emergency declaring that security of India or any part
of the territory of India is threatened due to war or external aggression, is in
operation, the state shall not be limited by art 19. In other words, govt may
make laws that transgress upon the freedoms given under art 19 during
such emergency. However, such a law will cease to have effect as soon as
emergency ends. Further, every such law or very executive action that
transgresses upon freedoms granted by art 19 must recite that it is in
relation to the emergency otherwise, it cannot be immune from art 19.
It also says that any acts done or omitted to be done under this provision
cannot be challenged in the courts after the end of emergency.
In the case of M M Pathak vs Union of India AIR 1978, SC held that the
rights rights granted by 14 to 19 are not suspended during emergency but
only their operation is suspended. This means that as soon as emergency is
over, rights transgressed by a law will revive and can be enforced. In this
case, a settlement that was reached before emergency between LIC and its
employees was rendered ineffective by a law during emergency. After
emergency was over, SC held that the previous settlement will revive. This is
because the emergency law only suspended the operation of the existing
laws. It cannot completely wash away the liabilities that preexisted the
emergency.
Art
359
This article provides additional power to the president while proclamation of
emergency is in operation, using which the president can, by an order,
declare that the right to move any court for the enforcement of rights
conferred by part III except art 20 and 21, shall be suspended for the period
the proclamation is in operation of a shorter period as mentioned in the
order. Further, every such law or every executive action recite that it is in
relation
to
the
emergency.
39

In the case of Makhan Singh vs State of Punjab AIR 1964, SC

distinguished between art 358 and 359 as shown below:
Art 358

Art 359

Freedoms given by art 19 are suspended.

Fundamental rights are not suspende

to enforce fundamental rights.

Any actions done or omitted to be done cannot be Any action done by the legislature or e
challenged even after emergency.
suspension is over.
Art 19 is suspended for the period of emergency.

Right to move courts is suspended f

the proclamation of the president to re

Effective all over the country.

May be confined to an area.

Art 83(2) While the proclamation is in operation, the president may extend
the normal life of the Lok Sabha by one year each time up to a period not
exceeding beyond 6 months after proclamation ceases to expire.
Provisions in case of failure of constitutional machinery is States
Art 356 says that if, upon the report of the Governor of a state, the
president is satisfied that the govt. of the state is cannot function according
to the provisions of the constitution, he may, by proclamation, assume to
himself all or any of the functions of the govt, or all or any of the powers
vested in the governor, or anybody or any authority in the state except the
legislature of the state. The power of the legislature of the state shall be
exercised
by
the
authority
of
the
parliament.
Under this article, president can also make such incidental and
consequential provisions which are necessary to give effect to the objectives
of the proclamation. This includes suspension of any provision of this
constitution relating to any body or authority in the state.
However, this article does not authorize the president to assume the powers
vested
in
the
High
Courts.
Art 357 provides that in the case of proclamation under art 356

40

parliament can confer upon the president the power of legislature of

the state to make laws or the power to delegate the power to make
laws to anybody else.

the parliament or the president can confer power or impose duties on

the Union or Union officers or Union authorities.

president can authorize the expenditure from the consolidated fund of

the stat pending sanction of such expenditure by the parliament.

Important
instances
of
invocation
This article has been invoked over a hundred times.

of

Art

356

1. Dissolution of 9 state assemblies in 1977 by Janata Party govt..

This was challenged in the case of State of Rajasthan vs Union of India
AIR 1977. In this case, SC held that the the decision of the president is not
only dependent on the report of the governor but also on other information.
The decision is entirely political and rests with the executive. So it is not
unconstitutional per se. However, courts can validate the satisfaction of the
president that it is no mala fide.
2. Dissolution of 9 state assemblies in 1980 by Congress party govt.
3. Dissolution of BJP govt in MP, HP, and Raj. in 1992.
This was challenged in the case of SR Bommai vs Union of India AIR
1994. In this case SC held that secularism is a basic feature of the
constitution and a state govt. can be dismissed on this ground. It further
observed that no party can simultaneously be a religious party as well as a
political
party.
Financial
Emergency
Art 360 provides that if the president is satisfied that a situation has arisen
whereby the financial security of India or the credit of India or of any part of
India is threatened, he may make a declaration to that effect. Under such
situation, the executive and legislative powers will go to the center.
This
article
has
never
been
invoked.
Changes
made
by
44th
Amendment
44th amendment substantially altered the emergency provisions of the
constitution to ensure that it is not abused by the executive as done by
41

Indira Gandhi in 1975. It also restored certain changes that were done by
42nd amendment. The following are important points of this amendments

"Internal disturbance" was replaced by "armed rebellion" under art

352.

The decision of proclamation of emergency must be communicated by

the Cabinet in writing.

Proclamation of emergency must be by the houses within one month.

To continue emergency, it must be re approved by the houses every six

month.

Emergency can be revoked by passing resolution to that effect by a

simple majority of the houses present and voting. 1/10 of the
members of a house can move such a resolution.

Art 358 - Under this article art 19 will be suspended only upon war or
external aggression and not upon armed rebellion. Further, every
such law that transgresses art 19 must recite that it is connected to
art 358. All other laws can still be challenged if they violate art 19.

Art 359, under this article, suspension of the right to move courts for
violation of part III will not include art 20 and 21.

Reversed back the term of Lok Sabha from 6 to 5 years.

42