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Class :B.A. LLB/ BBA LLB

Paper Code : 204

Subject : CONSTITUTIONAL LAW II

Unit-I
State- Article 12:
The Constitution of India, Article 12: “In this part, unless the context otherwise
requires, “the State” includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other
authorities within the territory of India or under the control of the Government of
India.”
Tests to decide which “other authorities” could be considered as agencies or
instrumentalities of state. The cumulative effect of all the following factors has to
be seen:
1. “If the entire share capital of the corporation is held by government, it would go
along way towards indicating that the corporation is an instrumentality or agency
of government.”
2. The existence of “deep and pervasive State control may afford an indication that
the Corporation is a State agency or instrumentality.”
3. “It may also be a relevant factor…whether the corporation enjoys monopoly
status which is State conferred or State protected.”
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4. “If the functions of the corporation are of public importance and closely related
to governmental functions, it would be a relevant factor in classifying the
corporation as an instrumentality or agency of government.”
5. “Specifically, if a department of government is transferred to a corporation, it
would be a strong factor supportive of this inference” of the corporation being an
instrumentality or agency of government.
The meaning of the word “authority” given in WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY, which can be applicable, is “a public
administrative agency or corporation having quasi-governmental powers
authorized to administer a revenue-producing public enterprise”. This dictionary
meaning of the word “authority” is clearly wide enough to include all bodies
created by a statute on which powers are conferred to carry out governmental or
quasi-governmental functions. The expression “other authorities” is wide enough
to include within it every authority created by a statute and functioning within the
territory of India, or Under the control of the Government of India; and we do not
see any reason to narrow down this meaning in the context in which the words
“other authorities” are used in Article 12 of the Constitution
These decisions of the court support our view that the expression “other
authorities” in Article 12 will include all constitutional or statutory authorities on
whom powers conferred may be for the purpose of carrying on commercial
activities. Under the Constitution, the State is itself envisaged as having the right to
carry on trade or business as mentioned in Article 19(1)(g). In Part IV, the State

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has been given the same meaning as in Article 12 and one of the directive
principles laid down in Article 46 is that the State shall promote with special care
the educational and economic
interests of the weaker sections of the people. The State, as defined in Article 12, is
thus comprehended to include bodies created for the purpose of promoting the
educational and economic interests of the people. The State, as constituted by our
Constitution, is further specifically empowered under Article 298 to carry on any
trade or business. The circumstance that the Board under the Electricity Supply
Act, is required to carry on some activities of the nature of trade or commerce does
not, therefore, give any indication that the Board must be excluded from the scope
of the word “State” as used in Article 12.
The decision in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath
Ganguly [(1986) 3 SCC 156] held that the appellant Company was covered by
Article 12 because it is financed entirely by three Governments and is completely
under the control of the Central Government and is managed by the Chairman and
Board of Directors appointed by the Central Government and removable by it and
also that the activities carried on by the Corporation are of vital national
importance.
However, the tests propounded in Ajay Hasia were not applied in TekrajVasandi v.
Union of India [(1988) 1 SCC 236] where the Institute of Constitutional and
Parliamentary Studies (ICPS), a society registered under the Societies Registration
Act, 1860 was held not be an “other authority” within the meaning of Article 12.

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The reasoning is not very clear. All that was said was: “Having given our anxious
consideration to the facts of this case, we are not in a position to hold that ICPS is
either an agency or instrumentality of the State so as to come within the purview of
‘other authorities’ in Article 12 of the Constitution.”
Justifiability of fundamental rights:
The Fundamental Rights are considered as one of the integral part of Indian
Constitution. The Fundamental Rights are defined as the basic human freedoms
which every individual has a right to enjoy for a proper and harmonious
development of personality. Although many rights are considered as human rights
a specific legal test is used by courts to determine the limitations which can be
imposed on them. These rights find their origin in many places such as England
Bill of Rights, United States Bill of Rights and France Declaration of Bill of Rights
of Man.
The framing of Indian Constitution can be best known by browsing transcripts of
Constituent Assembly debate. The Constituent Assembly was composed of
members elected from various British Indian Provinces and nominated by the
princely states. The framers if Indian Constitution had three things in mind –
ensuring unity, democracy and creating social revolution. The Constitution of India
took nearly three years in its formation and finally came into force on 26th January
1950.
The biggest challenge before the Constituent Assembly was to evolve a document
that would address the diversity amongst the population, create accountable

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governance and an independent Page 7 of 72 republic. The development of


fundamental human rights in India was due to exposure of students to the ideas of
democracy, working of parliamentary democracy and British political parties and
was also inspired by the:-
• England Bill of Rights
• Us Bill of Rights
• France Declaration of the Rights of Man
• Development of Irish Constitution.
The Nehru Committee observed that the first care should be to have Fundamental
Rights guaranteed in such a manner, which will not permit its withdrawal under
any circumstances. The Indian Statutory Commission refused to enumerate and
guarantee the demand of Fundamental Rights in the Constitution Act. Their refusal
was based on Simons Commission argument that abstract definition of such rights
is useless unless there existed the will and means to make them effective. The
Indian National Congress at its Karachi session in 1931 again demanded for a
written guarantee for
Fundamental Rights in any future Constitutional setup in India. This demand was
also emphasized at the round table conference at London. A memorandum
circulated by the Mahatma Gandhi at the second session of round table conference
demanded that the new constitution should include a guarantee to the communities
concerned to the protection of their cultures, language, scripts, profession,
education and practice of religion and religious endowments and protect personal

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laws and protection of other rights of minority communities. The Joint Select
Committee of the British Parliament did not accept the demand for the
constitutional guarantee of Fundamental Rights to British subjects in India. The
Committee observed that: - There are also strong practical arguments against the
proposal which may be put in the form of a dilemma: for either the declaration of
rights is of so abstract a nature that it has no legal effect of any kind or its legal
effect will be to impose an embarrassing restrictions on the powers of the
legislatures and to create a grave risk that a large number of laws will be declared
invalid or inconsistent with one or other of the rights so declared. There is this
further objection that the state has made it
abundantly clear that no declaration of fundamental rights is to apply to state Page
8 of 72 territories and it would be anomalous if such a declaration had legal force
in part only of the area of the federation.
The committee conceded that there were some legal principles that could
approximately be incorporated in the new constitution. Accordingly sections
295,297-300 of Government of India Act 1935 conferred certain rights and forms
of protection on British subjects in India. By the Objective Resolution adopted on
January 22, 1947 the constituent assembly solemnly pledged itself to draw up for
future governance a constitution wherein “shall be guaranteed and secure to all the
people of India justice, social, economical and political, equality of status, of
opportunity and before the law : freedom of thought, expression, belief, faith,
worship, vocation, association and action, subject to law and public morality” and

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wherein adequate safeguards would be provided for minorities,backward and tribal


areas and depressed and other classes. Two days after the adoption of the
resolution the assembly elected Advisory Committee for reporting on
minorities fundamental rights and on the tribal and excluded areas. The advisory
committee in turns constituted on Feb27, 1947 five sub-committees which would
deal with fundamental rights.
The sub committee on Fundamental Rights at its first meeting on February 27,
1942 had before it proposal of B.N.Rau to divide Fundamental Rights into two
classes i.e. justifiable and non-justifiable. An important question that faced the sub
committee was that of distributing such rights between the Provincial, the Group
and the Union Constitution. In the early stages of its deliberation the subcommittee
proceeded on the assumption of this distribution and adopted certain rights as
having reference only to union and certain rights as having reference both to the
union and to the constitutional units. However later it was felt that if Fundamental
Rights differed from group to group and from unit to unit or were for that reason
not uniformly enforceable, it was felt the Fundamental Rights of citizens of the
union had no value. This reorganization leads to the realization that certain
Fundamental Rights must be guaranteed to every resident. The sub committee
recommended that all the rights incorporated must be binding upon all the
authorities whether of the union or of the units. This was thought to be achieved by
providing definition in the first clause. The expression the state included the
legislature, the government of the union Page 9 of 72 and the units of all local or

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other authorities within the territories of the union that the law of union included
any law made by the union legislature and any existing Indian law as in force
within the union or any part thereof.
The subcommittee fully discussed various drafts submitted by its members and
others before formulating the list of Fundamental Rights. Dr. Ambedkar pointed
out that the rights incorporated in the draft were borrowed from constitution of
various countries where the conditions are more or less analogous to those existing
in India. The draft submitted on April 3, 1947 was circulated to its members with
the explanatory notes on various clauses. The clauses contained in the draft report
were thereafter discussed in the subcommittee in the light of the comments offered
by the members and the final report was submitted to the chairman of the advisory
committee on April 16, 1947. Three days later the subcommittee on the minority
examined the draft clauses prepared by the fundamental rights subcommittee and
reported on the subject of such rights from the point of view of the minorities. The
advisory committee deliberated on the recommendations made by the two
subcommittee and accepted the recommendations for
(1) Classification of rights into justifiable or non-justifiable.
(2) Certain rights being guaranteed to all persons and certain other only to citizens
(3) All such rights being made uniformly applicable to the union and the units.
The committee also accepted the drafts of clauses 1 and 2 – the former providing
the definition of the state, the unit and the law of the union and latter for the laws
or usages inconsistent with the fundamental rights being void in the form

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recommended by the sub committee also the word constitution was replaced by the
word this part of the constitution. The advisory committee incorporated these
recommendations in its interim report to the constituent assembly submitted on
April 23, 1947. The interim report dealt only with justifiable rights i.e fundamental
rights. Later on August 25,
1947 the advisory committee submitted a supplementary report mainly dealing
with non-justifiable rights i.e. the Directive Principles of State Policy or the
Fundamental Principles of Governance. A notable development took place on 10
December 1948 when the Page 10 of 72 United Nations General Assembly
adopted the Universal Declaration of Human Rights and called upon all member
states to adopt these rights in their respective constitutions.
The various stages through which the various clauses on fundamental rights passed
were similar to other parts of the constitution. Firstly- the constitutional adviser
prepared a draft embodying a decision of the constituent assembly. This draft was
considered exhaustively and in detail by the drafting committee, which prepared a
revised draft and published it in February 1948. The revised draft was then widely
circulated. The drafting committee again considered the comments and suggestions
received from all quarters and in light of these the committee proposed certain
amendments. Discussions in constituent assembly of the draft provisions took
place in November and December 1948 and August, September and October 1949.
During these meetings the committee considered the various suggestions for
amendment made on behalf of Drafting Committee as well as those proposed by

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the individual members of the assembly. The provisions as passed by the assembly
were again scrutinized by the Drafting Committee and incorporated by the drafting
changes wherever necessary in the revised draft constitution. The revised draft was
again placed before the assembly at its final session held in November 1949. The
fundamental rights were included in the First Draft Constitution (February 1948),
the Second Draft Constitution (17 October 1948) and final Third Draft Constitution
(26 November 1949) prepared by the Drafting Committee.
Article 13- Doctrine of Severability, Eclipse and Waiver
Doctrine of Eclipse
Doctrines are usually applicable only for already existing laws. Doctrine of eclipse
means that “A law which is in violation of fundamental rights of human will be
dormant until necessary amendment is made to the law in such a way that it
should not violate fundamental rights of human." On general it means that the
fundamental rights of human are more important than any laws.
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is
not invalid. It is not dead totally but overshadowed by the fundamental right. The
inconsistency (conflict) can be removed by constitutional amendment to the
relevant fundamental right so that eclipse vanishes and the entire law becomes
valid.
When a Court strikes a part of law, it becomes unenforceable. Hence, an 'eclipse' is
said to be cast on it. The law just becomes invalid but continues to exist. The

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eclipse is removed when another (probably a higher level court) makes the law
valid again or an amendment is brought to it by way of legislation.
The Supreme Court of India, in P Ratinam case, has held Section 309 of the Indian
Penal Code, 1860 unconstitutional. Hence, the section was under eclipse. However,
a constitutional bench in Gian Kaur case reversed this decision and held the section
as constitutional whereby the eclipse was removed and it because operable again.
The doctrine, flowing from the prospective nature of Art. 13(1) of the constitution
of India, was evolved by the Supreme Court in the case of Bhikaji v. State of M.P.
, meaning thereby that a valid pre-constitutional law violating a fundamental right
becomes inoperative treating it as having been eclipsed by the relevant
fundamental right. If this fundamental right is amended and the shadow is
removed, the law revive and operate.
In other words, a law which violates fundamental rights is not a nullity or void ab
initio but are only unenforceable in the court of law i.e. remains in a moribund
condition. "It is over-shadowed by the fundamental rights and remains dormant,
but it is riot dead."
Till the time a law violates a fundamental right provided by the Indian
Constitution, it is dormant and inoperative. But if such fundamental right is
amended and thereby, the law no more violates, then in such a situation the law
becomes alive and operative.

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Doctrine of severability
The doctrine of severability is a guardian of our fundamental rights, suppose if any
of the provisions in an act/statue is contrary to our fundamental rights then that
provision only would consider being void and it is not the whole act that becomes
void.
The nature of the provision is material, suppose if any of the provision or any sub
section is void due to its unconstitutional nature and if due to this the entire
section adopts a different meaning such that the scheme of the whole section in the
act changes, then the whole section must be declared un constitutional. The
doctrine of severability depends on validity of provisions in an act and the effect of
those provisions on the whole act itself.
A.K. Gopalan v. State 0/ Madras, A.I.R. 1950 S.c. 27 where section 14 of
prevention detention act was found out to be in violation of Article 14 of the
constitution. It was held by the Apex court that it is section 14 of the act which is
to be struck down not the act as a whole. It was also held that the omission of
section 14 of the act will not change the object of the act and hence it is severable.
R.M.D.C. v.Union of India, Where the provisions of the act are so mixed together
i.e the invalid portion and the valid portion such that it would not possible to
separate them, then the act as whole would deemed to be void.
The doctrine of severability is necessary to protect the validity of the act as a whole
without which an entire act would become void due to invalidity of one provision
of the act. Now it is upto the courts to decide the question related to the effects of

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invalid provisions on the scheme of the act and accordingly adjudicate the question
of declaring the validity of the act as a whole and various provisions of the act.
Doctrine of Waiver.
Waiver proceeds on the basis that a man not under legal liability is the best judge
of his own interest and if with knowledge of a right or privilege conferred on him
by the statute, contract or otherwise for his benefit, he intentionally gives up the
right or privilege, or chooses not to exercise the right or privilege, and that the right
or privilege is conferred principally for the interest of himself not the interest of
general public. A reference to the doctrine of waiver was first made in Behram v.
State of Bombay, AIR 1955 S.C. 123. While discussing the question of legal effect
of a statute being declared unconstitutional, Justice Venkatarama Aiyer gave the
opinion that a law, unconstitutional by reason of its repugnancy to a fundamental
right which is enacted for the benefit of individuals and not for the benefit of the
general public, is not a nullity but merely enforceable and such an
unconstitutionality could be waived, in which case the law becomes unenforceable
for that individual e.g. the right guaranteed under Article 19(1)(f) is for the benefit
of the owners of property and when a law is found to infringe that provisions, it is
open to any person whose right has been infringed to waive it, and when there is a
waiver there is no legal impediment to the enforcement of the law.
The question of waiver directly arose in Bashesher Nath v. Income Tax
Commissioner, AIR 1959 S.C. 149. The petitioner whose case was referred to the
Income Tax Investigation Commissioner under Section 5(1) of the Act, was found

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to have concealed large amount of income. He thereupon agreed at a settlement in


1954 to pay Rs. 3 lacs in monthly installments by way of arrears of tax and
penalty. In 1955, the Supreme Court in other cases declared Section 5(1) ultra vires
Article 14. The petitioner thereupon challenged the settlement between him and the
Commissioner. The main question that arose for consideration was whether or not,
the assesses had waived his fundamental right under Article 14 by entering into the
settlement. In this case the Supreme Court held "A large majority of our people are
economically poor, educationally backward and politically not conscious of their
rights. Individually or even collectively, they cannot be pitted against the State
Organizations and institutions, nor can they meet them on equal terms. In such
circumstances it is the duty of the court to protect their rights against themselves."
In the end, the court upheld unanimously that the petitioner could not waive his
rights under Article 14 of the Constitution.
Circumstances under which Fundamental Rights can be curtailed or suspended. -
The fundamental rights can be suspended or curtailed in the following
circumstances:
1. The Parliament can restrict or abrogate by law the fundamental rights in their
application to the members of the Armed Forces, of Forces charged with the
maintenance of public order with a view to ensure proper discharge of their duties
and maintenance of discipline among them. (Article 33).
2. Fundamental Rights can be curtailed or restricted when Martial Law is in force
in any area (Article 34).

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3. During the period in which the proclamation of emergency is in operation, the


rights conferred by Article 19 are suspended (Article 358). Also where a
proclamation of emergency is in operation the President may, by order, declare that
the right to move any court for the enforcement of such rights conferred by Part III
(except Articles 20 and 21) as may be mentioned in the order and all proceedings
pending in any court for the enforcement of rights so mentioned shall remain
suspended for a period during which the proclamation of emergency is in force or
for such shorter period as may be specified in the order. An order made as
aforesaid may extend to the whole or any part of the territory of India. Every such
order shall, as soon as be may be after it is made, be laid before each House of
Parliament. (Article 359).
4. All or any of the fundamental rights can be curtailed, suspended or modified by
an amendment of the Constitution itself under Article 368.
Fundamental Rights
The constitution classifies the Fundamental Rights into following six categories:-
(1) Right to Equality (Article 14-18)
(2) Right to Freedom (Article 19-22)
(3) Right against Exploitation (Article 23-24)
(4) Right to Freedom of Religion (Article 25-28)
(5) Cultural and Educational Rights (Article 29 and 30)
(6) Right to constitutional Remedies (Article 32)

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Right to Equality (Article 14-18)


Article 14
It is the core article under Right to Equality. It deals with two kinds of rights. It
states that the State shall not deny to any person
(a) Right to equality before the law.
(b) Right to Equal Protection before the law.
(A) Right to Equality before the law
It is a negative concept because it means that no man is above the law or in other
words all individuals are subject to the Law of the land. Rule of law means the
absolute supremacy of ordinary law of land as opposed to the influence of arbitrary
power of the ruler.
The three principles which govern the Rule of law are:
(I) No man shall be punished either in body or goods (material) except for the
violation of law in force. Further, the violation of law shall be established in an
ordinary court of land in an ordinary legal manner.
(II) All individuals irrespective of their social or economic understanding are
subject to ordinary law of land. Further, all the individuals are subject to the
jurisdiction of the court. i.e. all individuals can be sued before the court. A person
can appear before the court in form of attorney or himself.
(III) The constitution is the result of ordinary Law of land.

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However the third rule had been modified in its application under the Indian
constitution where the third law reads as the Constitution is Supreme law of Land
and all laws passed by the legislature shall conform to it to be legally valid.
Significance of Rule of law
(i) It is the adoption of rule of law that has changed the constitution from Rex
Lex (king is law) to Lex Rex (Law is king)
(ii) The rule of law is essential to maintain an individual’s liberty. Therefore Rule
of law is an essential feature of democracy.
Protection of Rule of Law
The constitution under article 32 and 226 confers the power on Supreme Court and
the High Court’s respectively to safeguard the Rule of law by exercising the writ
jurisdictions. Further the constitution emphasizes that the Rule of Law is an
immutable Principle of Governance of the Country.
In Keshavananda Bharati Vs State of Kerala, 1973 case Supreme Court held that
the Rule of Law is a part of basic structure of the constitution and cannot be
destroyed.
Exceptions to the Rule of Law
(1) Article 361- The President or the Governor of State is not answerable to a court
of law with regard to exercise of its executive functions.
(2) No criminal proceedings whatsoever can be instituted against the President and
Governor of State during his/her term of office. He should be first remove
impeached to continue the proceedings against him.

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(3) No civil proceedings in which relief is claimed can be instituted against the
President or the Governor of State in a court, except of the expiry under a 2 month
notice served on the President and Governor.
(4) According to the International Laws- The visiting subject to the jurisdiction of
local court.
(B) Equal protection before Law
(1) It originated as a concept in USA.
(2) It is a positive concept.
(3) It means equality of treatment in equal circumstances. Among equals the law
shall be equal and equally administered. “The like should be treated alike”. All the
persons placed in equal circumstances shall be treated similarly. Therefore, it
ensures equality among equals. It does not mean inequality among equals.
(4) It allows State to classify individuals on a reasonable basis into similar groups.
Once such a classification is made, the law shall apply equally among all the
people within a group. Then no person within a group shall be treated differently.
However, the State is free to discriminate people between the groups.
(5) The concept of equal protection before law is also called “Positive
Discrimination” on the Part of the State and the policy of reservation is legally
justified under it.
(6) This concept is based on the Aristotelian Principle that ‘Equality can exist only
among the equals and equality cannot exist among unequals.
Thus the Legislative may:

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(i) Exempt certain classes of property from taxation such as charities, libraries
etc.
(ii) Impose different specific takes upon different trades and professions.
(iii)Tax income and property of individuals in different manner etc.
Reasonable Classification
Article 14 Permits Classification but Prohibits Class Legislation
The equal protection of laws guaranteed by Article 14 does not mean that all laws
must be general in character. It does not mean that the same laws should apply to
all persons. It does not attainment or circumstances in the same position. The
varying needs of different classes of persons often requires separate treatment.
From the vary nature of society there should be different laws in different places
and the legitimate controls the policy and enacts laws in the best interest of the
safety and security of the state. In fact identical treatment in unequal circumstances
would amount to inequality. So a reasonable classification is only not permitted but
is necessary if society is to progress.
Thus what Article 14 forbids is class-legislation but it does not forbid reasonable
classification. The classification however must not be “arbitrary ,artificial or
evasive” but must be based on some real and substantial bearing a just and
reasonable relation to the object sought to be achieved by the legislation. Article 14
applies where equals are treated differently without any reasonable basis. But
where equals and unequals are treated differently, Article 14 does not apply. Class
legislation is that which makes an improper discrimination by conferring particular

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privileges upon a class of persons arbitrarily selected from a large number of


persons all of whom stand in the same relation to the privilege granted that
between whom and the persons not so favored no reasonable distinction or
substantial difference can be found justifying the inclusion of one and the
exclusion of the other from such privilege.
Test of Reasonable Classification
While Article 14 forbids class legislation it does not forbid reasonable
classification of persons, objects, and transactions by the legislature for the purpose
of achieving specific ends. But classification must not be “arbitrary ,artificial or
evasive”. It must always rest upon some real upon some real and substantial
distinction bearing a just and reasonable relation to the object sought to be
achieved by the legislation. Classification to be reasonable must fulfil the
following two conditions
Firstly the classification must be founded on the intelligible differentia which
distinguishes persons or thing that are grouped together from others left out of the
group.
Secondly the differentia must have a rational relation to the object sought to be
achieved by the act.
The differentia which is the basis of the classification and the object of the act are
two distinct things. What is necessary is that there must be nexus between the
basis of classification and the object of the act which makes the classification. It is
only when there is no reasonable basis for a classification that legislation making

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such classification may be declared discriminatory. Thus the legislature may fix
the age at which persons shall be deemed competent to contract between
themselves but no one will claim that competency. No contract can be made to
depend upon the stature or color of the hair. Such a classification will be arbitrary.
The true meaning and scope of Article 14 have been explained in a number of
cases by the Supreme Court. In view of this the propositions laid down in Damia
case still hold good governing a valid classification and are as follows.
1.A law may be constitutional even though it relates to a single individual if on
account of some special circumstances or reasons applicable to him and not
applicable to others, that single individual may be treated as a class by itself
2. There is always presumption in favour of the constitutionality of a statute and
the burden is upon him who attacks it to show that there has been a clear
transgression of constitutional principles.
3.The presumption may be rebutted in certain cases by showing that on the fact of
the statue, there is no classification and no difference peculiar to any individual or
class and not applicable to any other individual or class, and yet the law hits only a
particular individual or class
4. It must be assumed that Legislature correctly understand and appreciates the
need of its own people that its law are directed to problem made manifest by
experience and that its discrimination are based on adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into
consideration maters of common knowledge, matters of report, the history of the

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times and may assume every state of facts which can be conceived existing at the
time of the legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its
restriction to those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a
legislature are to be presumed, if there is nothing on the face of the law or the
surrounding circumstances brought to the notice of the court on which the
classification may reasonable be regarded as based, the presumption of
constitutionality cannot be carried to extent always that there must be some
undisclosed and unknown reason for subjecting certain individuals or corporation
to be hostile or discriminating legislation
8.The classification may be made on different bases e.g. geographical or according
to object or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or
logically complete. Mathematical nicety and perfect equality are not required.
Equality before the law does not require mathematical equality of all persons in all
circumstances. Equal treatment does not mean identical treatment. Similarly not
identity of treatment is enough.
10. There can be discrimination both in the substantive as well as the procedural
law. Article 14 applies to both.
If the classification satisfies the test laid down in the above propositions, the law
will be declared constitutional. The question whether a classification is reasonable

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and proper and not must however, be judged more on commonsense than on legal
subtitles.
D.S. Nakara v. Union of India
The Government issued an office memorandum announcing a liberalized pension
scheme for retired government servants but made it applicable to those who had
retired after 31 March 1979. The supreme court held that the fixing of the cut off
date to be discriminatory as violating Article 14. The devision of pensioners into
two classes on the basis of the date of retirement was not based on any rational
principle because a difference of two days in the matter of retiremnt could hav a
traumatic effect on the pensioner. Such a classification held to be arbitrary and
unprincipled as there was no acceptable or persuasive reason in its favour. The said
classification had no rational nexus with the object sought to achieved.
Madhu Limaye v. Supdt. Tihar Jail Delhi
There were Indian and Europian Prisoners. Both were treated differently. Europian
gets better diet. Court held that difference between Indian and Europian prisoners
in the matter of treatment and diet violates right to equality under Article 14 of
Indian prisoners. They all are prisoners they must treat equally.
Sanaboina Satyanarayan v. Govt. of A.P
In Andra Pradesh. They formulate a scheme for prevention of crime against
women. In prisons also prisoners were classify in to two category first
Prisoners guilty of crime against women and second prisoners who are not guilty
of crime against women. Prisoners who are guilty of crime against women

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challenge the court saying that there right to equality is deprived. Court held that
there is resoanble classification to achieve some objective.
Tamil Nadu Electricity Board v R. Veeraswamy
The employee were governed by the contributory provident fund scheme. With
effect from 1-7-1986 a scheme was introduced. The question was whether the
pension scheme ought to be applied to those who had already retired before the
introduction of the pension scheme the supreme court rejected the claim. As per
the rules prevalent at the time the retirees had received all their retiral benefits. If
the pension scheme was made applicable to all past retirees, the resulting financial
burden would be Rs200 crore which would be beyond the capacity of employer.
The reason given for introducing the scheme was financial constraint- a valid
ground. The court held that retired employees and those who were in employment
on 1-7-1986 can’t be treated alike as they do not belong to one class. Te workmen
who had retired and received all the benefits under the contributory provident fund
scheme cease to be employees of the appellant board w.e.f. the date of their
retirement. They form a separate class. Thus there was no illegality in introducing
the pension scheme and not making it applicable retrospectively to those who had
retired before the date.
Article 15: Right against Discrimination
This right is available only to citizens. Article 15(1) states that the State shall not
discriminate its citizen on grounds of religion, race, caste, sex, place of birth or any
of them.

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It means that on other grounds citizens can be discriminated e.g. state domicile. It
also means that these cannot be the sole ground of discrimination. There can be
additional grounds e.g. preference of men in Armed Forces and females are
preferred to be recruited as nurses or in departments like Gynecology in Medical
Colleges.
The crucial word in Article 15(1) is ‘only’ which means that race, religion, caste;
sex or place of birth cannot be the sole ground for discrimination. If there is any
other valid ground on which discrimination can be shown then Article 15(1) does
not prohibit race, religion, caste etc. being additional ground for discrimination.
Article 15(2)
It states that no citizen shall be denied:
(a) Access to public places such as Shops, Public Restaurants, Hotels and places
of public entertainment.
(b) The use of wells, tanks, bathing Ghats, roads or places of public resort.
It applies to both to the State as well as individual. It prohibits both the State and
individuals from practicing discrimination. Therefore it also helps in eradication of
untouchability.
Article 15(3)
It confers the power on State to make special provisions for welfare of women and
children since they are the most vulnerable section of society.
For example 33% of seats in Panchyats Posts are reserved for women.

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Article 15(4)
It was introduced by the constitution (1st constitution Amendment) Act, 1951. It
empowers the State to provide by law Special provisions for advancement of
socially and educationally backward classes of citizens including Schedule Castes,
Schedule Tribes and Backward Classes.
Article 15(5)
It was introduced by the constitution (93rd constitution Amendment) Act, 2005. It
confers the power on State to make laws for advancement of any socially and
educationally backward classes for admissions into educational institutions
including private educational institutions referred to Article 30(1).
Article 16 (Right to Equality of Opportunity)
This right is available only to citizens. It says that there shall be equality of
opportunity for all citizens in matters relating to employment or appointment to
any office under the State.
Article 16(2)
No citizen shall be discriminated in respect of public employment by State only on
the basis of religion, race, caste, sex, descent, place of birth and residence or any of
them.
Article 16(3)
It authorizes the Parliament to provide special favors in case of certain classes of
public.
Example: The Mizo Accord (1985) grants special privilege to Mizo people.

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Even if certain reservations are made by the State, the relevant law shall be passed
by Parliament. Any such reservation provided cannot be valid permanently; they
can be valid only for a particular period.
Article 16(4)
It empowers the State to provide by law reserving seats in public employment in
favor of socially and economically backward classes of citizens if in the opinion of
the State, the said class of citizens are not adequately represented in public
employment.
It is an enabling clause as it confers the power on State to provide for reservation
in favor of backward classes.
Article 16(4) does not confer a Fundamental Right on the backward classes to get
seat reserved in Public employment. Therefore, if the State fails to provide
reservation for backward classes, they do not enjoy legal remedy before the court
of Law.
The Supreme Court in Indira Sawhney Vs Union of India 1992 (Mandal Case)
upheld the validity of the reservation of 27% of seats in Public employment in
favor of the OBCs.
The Supreme Court held that under Article 16(4) the State can provide reservation
only at the entry level (at the time of recruitment). The reservation provided in
favor of Schedule Castes and Schedule Tribes in the promotion is unconstitutional
and void. The Supreme Court also laid down 5 constitutional requirements which
are to be satisfied by reservation policy in order to be legally valid. These are as:

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(1) Reservation shall be based only on social and educational backwardness.


(2) The said classes of citizens are not adequately represented in public
employment.
(3) The concept of “creamy layer” shall be applicable in the case of OBCs under
which the socially and educationally uplifted sections of OBCs shall be removed
from the benefit of reservation.
(4) The overall reservation in favor of OBCs ordinarily should not exceed 50%.
(5) The efficiency in the administration should be given due consideration while
implementing reservation.
Article 16 (4 B)
It was introduced by the 81st Amendment Act, 2001. It provides that the carry
forward Rule in favor of Schedule Castes and Schedule Tribes shall be valid even
if the overall reservation for the backward classes exceeds 50%.
Article 16(5)
It is the third exception to the general rule laid down in Article 16(1) and 16(2)
which forbid discrimination in public employment on the ground of religion.
It says that a law which provides that a person holding an office in connection with
the affairs of a religious or denominational institutions etc., shall be a person
professing the same religion or belonging to a particular denomination shall not be
treated to be repugnant to this Article.

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Article 17 (Abolition of Untouchability)


It abolishes Untouchability and forbids its practice in any form. If it is so practiced
it shall be dealt with as an offence punishable in accordance with the law.
Article 35 confers power to the Parliament to enact the laws for abolition of
Untouchability. The Parliament has enacted the untouchability (offence) Act. The
act prescribes punishment for the practice of untouchability. This act has been
amended by the Untouchability (offences) Amendment Act, 1976 in order to make
laws more stringent to remove untouchability from the society.
Further the name of the original act has been changed to Civil Rights (Protection)
Act. Article 15(2) also helps in eradication of untouchability. The Constitution,
nowhere defines “What is Untouchability”, nor do any Acts passed by the
Parliament. However, the judiciary has held that untouchability means any social
practice among the Hindus which looks down upon a certain class.
Article 18 (Abolition of Titles)
The State shall not confer any title on anybody whether a citizen or a non-citizen
except the recognition of academic and military distinctions. Bharat Ratna, Padma
Vibhushan, Padma Bhushan, Padma Shri and other State awards are not regarded
as titles in terms of Article 18(1) of the constitution. The Supreme Court in Balaji
Raghavan Vs Union of India 1996 case stated that these are meritorious awards
based on excellence in the respective fields. The theory of equality does not mean
that the State should not recognize the excellence.

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Article 18(2)
It states that no citizen shall receive any title from a foreign State. For example
Sunil Gavaskar was invited to get Knighthood but he was not allowed.
Article 18(3)
It prohibits a foreigner who is in the service of the government of India or that of a
State, from accepting any title from any foreign State without the consent of the
President.
Article 18(4)
No person holding any office of profit or trust under the State shall without the
consent of the President, accept any present, emolument or office of any kind from
or under any foreign State.
The following two points must be considered:
(1) There is no penalty prescribed for the infringement of the above prohibition.
(2) Article 18 is merely a directory. It is open to Parliament to make a law for
dealing with such persons who accepts a little in violation of the prohibition
prescribed in Article 18.
Right to Freedom (Article 19-22)
• Article 19: Protection of certain rights regarding freedom of speech, etc.

Article 19 is the most important and key article which embodies the “basic
freedoms”. Article 19(1) provides that all citizens shall have the right-
• to freedom of speech and expression;
• to assemble peaceably and without arms;

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• to form associations or unions;


• to move freely throughout the territory of India;
• to reside and settle in any part of the territory of India;
• to practice any profession, or to carry on any occupation, trade or business.
However, Freedom of speech and expression is not absolute. As of now, there are 8
restrictions on the freedom of speech and expression. These are in respect of the
sovereignty and integrity of the country. These 8 restrictions were:
• Security of the state
• Friendly relations with foreign states
• Public Order
• Decency or morality
• Contempt of Court
• Defamation
• Incitement to offence
• Sovereignty and integrity of India.
These 8 restrictions were embodied in their current form in the constitution First
Amendment Bill 1951, this was necessitated by Romesh Thapar v. State of Madras
(1950). In this case the entry and circulation of the English journal “Cross Road”,
printed and published in Bombay, was banned by the Government of Madras. The
Supreme court held in this case that, unless a law restricting the freedom of speech
and expression were directed solely against the undermining of the security of the

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state or its overthrow, the law could not be held a reasonable restriction though it
sought to impose a restraint for the maintenance of public order.
When a proclamation of emergency is made under article 352, article 19 itself
remains suspended.
Freedom of Speech and Expression
Article 19 of the constitution provides freedom of speech which is the right to
express one’s opinion freely without any fear through oral / written / electronic/
broadcasting / press.
The Constitution does not make any special / specific reference to the Freedom of
Press. The protagonists of the “free Press” called it a serious lapse of the Drafting
committee. However, the freedom of expression includes freedom of press. Dr.
Ambedkar in this context had said on speaking behalf of the Drafting Committee
that the press had no special rights which are not to be given to an individual or a
citizen. Dr. Ambedkar further said that the “editors or managers of press are all
citizens of the country and when they chose to write in newspapers they are merely
expressing their right of expression”.
So, the word expression covers the Press. In modern times it covers the blogs and
websites too.
Some landmark Supreme Court Judgments regarding the Freedom of Expression
Romesh Thapar v. State of Madras, (1950): Freedom of speech and of the press
laid at the foundation of all democratic organizations, for without free political

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discussion no public education, so essential for the proper functioning of the


process of popular government, is possible.”
Maneka Gandhi v. Union of India, (1978):Freedom of speech and expression has
no geographical limitation and it carries with it the right of a citizen to gather
information and to exchange thought with others not only in India but abroad also.
Prabha Dutt v. Union of India ((1982) :Supreme Court directed the Superintendent
of Tihar Jail to allow representatives of a few newspapers to interview Ranga and
Billa, the death sentence convicts, as they wanted to be interviewed.
Indian Express v. Union of India (1985): Press plays a very significant role in the
democratic machinery. The courts have duty to uphold the freedom of press and
invalidate all laws and administrative actions that abridge that freedom.
Secretary, Ministry of Information and Broadcasting v. Cricket Association of
Bengal(“Cricket Association”) (1995):Every citizen has a fundamental right to
impart as well as receive information through the electronic media. It ruled that
frequencies or airwaves are public property, and that the government enjoys no
monopoly over broadcasting. Court ordered the government to take immediate
steps to set up an independent and autonomous public authority to regulate
frequencies. Freedom of speech and expression (Article 19 .1 & 19.2) played an
important role in this decision.
Union of India v. Assn. for Democratic Reforms (2002):One-sided information,
disinformation, misinformation and non information, all equally create an
uninformed citizenry which makes democracy a farce. Freedom of speech and

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expression includes right to impart and receive information which includes


freedom to hold opinions.
Freedom of Assembly
The constitution guarantees right to hold meetings and take out processions. The
processions and meetings should be unarmed and peaceful. This right may be
restricted in the interest of the public order or sovereignty and integrity of the
country.
This article has also been reviewed an interpreted by the Supreme Court many
times. It’s worth note that section 144 of the Sub-section (6), of the Code of
Criminal Procedure can be imposed by the government in certain areas which
makes the assembly of 5 or more people an unlawful assembly. This section was
challenged in the supreme court via Kamla Kant Mishra And ors. vs State Of Bihar
And ors. Case (1962), on the basis that it violates article 19(1) of the constitution
and thus is invalid. The Supreme Court in its judgment held that power conferred
upon the State Government under Section 144, Sub-section (6), of the Code of
Criminal Procedure, is constitutionally valid.
Section 129 of the Code of Criminal Procedure authorizes the police to disperse
any unlawful assembly which may cause disturbance to public peace.
Freedom of Speech and Expression
Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right
to freedom of speech and expression. The law states that, “all citizens shall have
the right to freedom of speech and expression”. Under Article 19(2) “reasonable

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restrictions can be imposed on the exercise of this right for certain purposes. Any
limitation on the exercise of the right under Article 19(1) (a) not falling within the
four corners of Article 19(2) cannot be valid.
The fundamental right to freedom of speech and expression is regarded as one of
the most basic elements of a healthy democracy for it allows its citizens to
participate fully and effectively in the social and political process of the country. In
fact, the freedom of speech and expression gives greater scope and meaning to the
citizenship of a person extending the concept from the level of basic existence to
giving the person a political and social life.
This right is available only to a citizen of India and not to foreign nationals. This
right is, however, not absolute and it allows Government to frame laws to impose
reasonable restrictions in the interest of sovereignty and integrity of India, security
of the state, friendly relations with foreign states, public order, decency and
morality and contempt of court, defamation and incitement to an offence.
In the Preamble to the Constitution of India, the people of India declared their
solemn resolve to secure to all its citizen liberty of thought and expression. The
Constitution affirms the right to freedom of expression, which includes the right to
voice one’s opinion, the right to seek information and ideas, the right to receive
information and the right to impart information. The Indian State is under an
obligation to create conditions in which all the citizens can effectively and
efficiently enjoy the aforesaid rights. In Romesh Thappar v State of Madras (AIR
1950 SC 124), the Supreme Court of India held that the freedom of speech and

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expression includes freedom to propagate ideas which is ensured by freedom of


circulation of a publication, as publication is of little value without circulation.
Patanjali Sastri, J., rightly observed that-
‘Freedom of Speech and of Press lat at the foundation of all democratic
organizations, for without free political discussion no public education, so essential
for the proper functioning of the process of Government, is possible’
However Article 19(2) of the Constitution provides that this right is not absolute
and ‘reasonable restrictions’ may be imposed on the exercise of this right for
certain purposes. The right to freedom of expression includes the right to express
ones views and opinions on any issue and through any medium whether it be in
writing or by word of mouth.
In Maneka Gandhi v. Union of India,[vii]BHAGWATI J.,has emphasized on the
significance of the freedom of speech & expression in these words:
“Democracy is based essentially on free debate and open discussion, for that is the
only corrective of government action in a democratic set up. If democracy means
government of the people by the people, it is obvious that every citizen must be
entitled to participate in the democratic process and in order to enable him to
intelligently exercise his rights of making a choice, free & general discussion of
public matters is absolutely essential.”
This aspect of the right to freedom of speech and expression extending the concept
of citizenship to include socio-political participation of a person is critical in the
process of determining the scope of right to life of a citizen under Article 21 of the

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Constitution. It is important to note that the scope of the “freedom of speech and
expression” in Article 19(1)(a) of the Constitution has been expanded to include
the right to receive and disseminate information. It includes the right to
communicate and circulate information through any medium including print
media, audio, television broadcast or electronic media.
The judiciary has time and again opined that the right to receive information is
another facet of the right to freedom of speech and expression and the right to
communicate and receive information without interference is a crucial aspect of
this right. This is because; a person cannot form an informed opinion or make an
informed choice and effectively participate socially, politically or culturally
without receipt of adequate information. The Supreme Court in State of Uttar
Pradesh v. Raj Narain31 has held that Article 19(1)(a) of the Constitution
guarantees the freedom of speech and expression to all citizens in addition to
protecting the rights of the citizens to know the right to receive information
regarding matters of public concern. This position was reiterated by the Court in
Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket
Association of Bengal32 wherein it was held that Article 19(1)(a) includes the
right to acquire and disseminate information. The Supreme Court, while opining on
the right to freedom of information, further noted in Dinesh Trivedi, M.P. and Ors
v. Union of India33 that “in modern constitutional democracies, it is axiomatic that
citizens have a right to know about the affairs of the government which, having

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been elected by them, seek to formulate sound policies of governance aimed at


their welfare.”
The print medium is a powerful tool for dissemination and receipt of information
for any citizen. Thus, access to printed material is crucial for satisfaction of a
person’s right to freedom of speech and expression guaranteed to him under the
Constitution. Persons with print impairment have no access to printed material in
their normal format. Failure on part of the State to make legislative provision for
enabling access to persons with print impairment of material in alternative
accessible formats would constitute a deprivation of their right to freedom of
speech and expression and such inaction on the part of the State falls foul of the
Constitution. In view of the same, it is an obligation on part of the State to ensure
that adequate provisions are made in the law enabling persons with print
impairment to access printed material in accessible formats.
Under the Freedom of Speech and Expression, there is no separate guarantee of
freedom of the press and the same is included in the freedom of expression, which
is conferred on all citizens (Virender Vs. State of Punjab, A. 1958, SC. 986 and
Sakal Papers Vs. Union of India A.1962 S.C. 305). It has also been by this
judgment that freedom of the press under the Indian Constitution is not higher than
the freedom of an ordinary citizen.
Need to Protect Freedom of Speech and Expression

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Freedom of speech offers human being to express his feelings to other, but this is
not the only reason; purpose to protect the freedom of speech. There could be more
reasons to protect these essential liberties. There are four important justifications
for freedom of speech –
For the discovery of truth by open discussion – According to it, if restrictions on
speech are tolerated, society prevents the ascertainment and publication of accurate
facts and valuable opinion. That is to say, it assists in the discovery of truth.
Free speech as an aspect of self- fulfillment and development – freedom of speech
is an integral aspect of each individual’s right to self-development and self-
fulfillment. Restriction on what we are allowed to say and write or to hear and read
will hamper our personality and its growth. It helps an individual to attain self-
fulfillment.
For expressing belief and political attitudes – freedom of speech provides
opportunity to express one’s belief and show political attitudes. It ultimately results
in the welfare of the society and state. Thus, freedom of speech provides a
mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
For active participation in democracy – democracy is most important feature of
today’s world. Freedom of speech is there to protect the right of all citizens to
understand political issues so that they can participate in smooth working of
democracy. That is to say, freedom of speech strengthens the capacity of an
individual in participating in decision-making.

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Thus we find that protection of freedom of speech is very much essential.


Protection of freedom of speech is important for the discovery of truth by open
discussion, for self- fulfillment and development, for expressing belief and
political attitudes, and for active participation in democracy.
Freedom of Association
The constitution declares that all citizens will have the right to form associations
and unions.
Freedom of Movement
The freedom of movement is guaranteed by the constitution and citizens can move
from one state to another and anywhere within a state. A person free to move from
any point to any point within the country’s territories. There are certain exceptions
such as Scheduled Tribes areas and army areas.
Freedom of Residence
An Indian Citizen is free to reside in any state except Jammu & Kashmir. Again
this is subject to certain restrictions.
Freedom of Trade & occupation
The constitution of India guarantees each of its citizen to do trade , occupation or
business anywhere in the country.
UNIT II
Article 20: Protection in respect of conviction for offences.

Article 20 has taken care to safeguard the rights of persons accused of crimes.
Persons here means the citizens, non-citizens as well as corporations. Please note

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that this article cannot be suspended even during an emergency in operation under
article 359. Article 20 also constitutes the limitation on the legislative powers of
the Union and State legislatures.

• Ex-Post facto Law


• Doctrine of Double Jeopardy
• Self Incrimination Law

Ex-Post facto Law

Article 20 (1) says that no person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the Act charged as an
offence, nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence. This
is called Ex-Post facto Law. It means that legislature can not make a law which
provides for punishment of acts which were committed prior to the date when it
came into force. This means that a new law cannot punish an old act.

Doctrine of Double Jeopardy

Article 20(2) says that no person shall be prosecuted and punished for the same
offence more than once. This is called Doctrine of Double Jeopardy. The objective
of this article is to avoid harassment, which must be caused for successive criminal
proceedings, where the person has committed only one crime. There is a law
maxim related to this – nemo debet bis vexari. This means that no man shall be put
twice in peril for the same offence.

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There are two aspects of Doctrine of Jeopardy viz. autrefois convict and autrefois
acquit. Autrefois convict means that the person has been previously convicted in
respect of the same offence. The autrefois acquit means that the person has been
acquitted on a same charge on which he is being prosecuted.

Please note that Constitution bars double punishment for the same offence. The
conviction for such offence does not bar for subsequent trial and conviction for
another offence and it does not matter the some ingredients of these two offences
are common.

Self Incrimination Law

Article 20(3) of the constitution says that no person accused of any offence shall be
compelled to be a witness against himself. This is based upon a legal maxim which
means that No man is bound to accuse himself. The accused is presumed to be
innocent till his guilt is proved. It is the duty of the prosecution to establish his
guilt.

Article 21: Protection of life and personal liberty.

Article 21 secures two rights:

1) Right to life

2) Right to personal liberty

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The Article prohibits the deprivation of the above rights except according to a
procedure established by law .Article 21 corresponds to the Magna Carta of 1215,
the Fifth Amendment to the American Constitution, Article 40(4) of the
Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person, citizen
or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a
foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).

‘Everyone has the right to life, liberty and the security of person.’ The right to life
is undoubtedly the most fundamental of all rights. All other rights add quality to
the life in question and depend on the pre-existence of life itself for their operation.
As human rights can only attach to living beings, one might expect the right to life
itself to be in some sense primary, since none of the other rights would have any
value or utility without it. There would have been no Fundamental Rights worth
mentioning if Article 21 had been interpreted in its original sense. This Section
will examine the right to life as interpreted and applied by the Supreme Court of
India.

Article 21 of the Constitution of India, 1950 provides that, “No person shall be
deprived of his life or personal liberty except according to procedure established
by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of
breathing. It does not connote mere animal existence or continued drudgery
through life. It has a much wider meaning which includes right to live with human
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dignity, right to livelihood, right to health, right to pollution free air, etc. Right to
life is fundamental to our very existence without which we cannot live as human
being and includes all those aspects of life, which go to make a man’s life
meaningful, complete, and worth living. It is the only article in the Constitution
that has received the widest possible interpretation. Under the canopy of Article 21
so many rights have found shelter, growth and nourishment. Thus, the bare
necessities, minimum and basic requirements that is essential and unavoidable for
a person is the core concept of right to life.

In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted
and held that:

By the term “life” as here used something more is meant than mere animal
existence. The inhibition against its deprivation extends to all those limbs and
faculties by which life is enjoyed. The provision equally prohibits the mutilation of
the body by amputation of an armour leg or the pulling out of an eye, or the
destruction of any other organ of the body through which the soul communicates
with the outer world.

In Sunil Batra v. Delhi Administration[, the Supreme Court reiterated with the
approval the above observations and held that the “right to life” included the right
to lead a healthy life so as to enjoy all faculties of the human body in their prime
conditions. It would even include the right to protection of a person’s tradition,

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culture, heritage and all that gives meaning to a man’s life. It includes the right to
live in peace, to sleep in peace and the right to repose and health.

Right to Live with Human Dignity

In Maneka Gandhi v. Union of India,the Supreme Court gave a new dimension to


Art. 21 and held that the right to live the right to live is not merely a physical right
but includes within its ambit the right to live with human dignity. Elaborating the
same view, the Court in Francis Coralie v. Union Territory of Delhi[, observed
that “The right to live includes the right to live with human dignity and all that
goes along with it, viz., the bare necessities of life such as adequate nutrition,
clothing and shelter over the head and facilities for reading writing and expressing
oneself in diverse forms, freely moving about and mixing and mingling with fellow
human beings and must include the right to basic necessities the basic necessities
of life and also the right to carry on functions and activities as constitute the bare
minimum expression of human self.”

Another broad formulation of the theme of life to dignity is to be found in Bandhua


Mukti Morcha v. Union of India. Characterizing Art. 21 as the heart of
fundamental rights, the Court gave it an expanded interpretation. Bhagwati J.
observed: “It is the fundamental right of everyone in this country… to live with
human dignity free from exploitation. This right to live with human dignity
enshrined in Article 21 derives its life breath from the Directive Principles of State
Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and
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at the least, therefore, it must include protection of the health and strength of
workers, men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no
State neither the Central Government nor any State Government-has the right to
take any action which will deprive a person of the enjoyment of these basic
essentials.”

Following the above stated cases, the Supreme Court in Peoples Union for
Democratic Rights v. Union of India, held that 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 basic human dignity and violative of Article 21 of the
Constitution. Bhagwati J. held that, rights and benefits conferred on workmen
employed by a contractor under various labour laws are clearly intended to ensure
basic human dignity to workmen. He held that the non-implementation by the
private contractors engaged for constructing building for holding Asian Games in
Delhi, and non-enforcement of these laws by the State Authorities of the provisions
of these laws was held to be violative of fundamental right of workers to live with
human dignity contained in Art. 21

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In Chandra Raja Kumar v. Police Commissioner Hyderabad,it has been held that
the right to life includes right to life with human dignity and decency and,
therefore, holding of beauty contest is repugnant to dignity or decency of women
and offends Article 21 of the Constitution only if the same is grossly indecent,
scurrilous, obscene or intended for blackmailing. The government is empowered to
prohibit the contest as objectionable performance under Section 3 of the Andhra
Pradesh Objectionable Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan, the Court struck down a provision of


Bombay Civil Service Rules, 1959, which provided for payment of only a nominal
subsistence allowance of Re. 1 per month to a suspended Government Servant
upon his conviction during the pendency of his appeal as unconstitutional on the
ground that it was violative of Article 21 of the Constitution.

Right against Sexual Harassment at Workplace

Art. 21 guarantees right to life right to life with dignity. The court in this context
has observed that:

“The meaning and content of fundamental right guaranteed in the constitution of


India are of sufficient amplitude to encompass all facets of gender equality
including prevention of sexual harassment or abuse.”

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Sexual Harassment of women has been held by the Supreme Court to be violative
of the most cherished of the fundamental rights, namely, the Right to Life
contained in Art. 21.

In Vishakha v. State of Rajasthan, the Supreme Court has declared sexual


harassment of a working woman at her work as amounting to violation of rights of
gender equality and rights to life and liberty which is clear violation of Articles 14,
15 and 21 of the Constitution. In the landmark judgment, Supreme Court in the
absence of enacted law to provide for effective enforcement of basic human rights
of gender equality and guarantee against sexual harassment laid down the
following guidelines:

All employers or persons in charge of work place whether in the public or private
sector should take appropriate steps to prevent sexual harassment. Without
prejudice to the generality of this obligation they should take the following steps:

Express prohibition of sexual harassment as defined above at the work place


should be notified, published and circulated in appropriate ways.

The Rules/Regulations of Government and Public Sector bodies relating to conduct


and discipline should include rules/regulations prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.

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As regards private employers steps should be taken to include the aforesaid


prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.

Appropriate work conditions should be provided in respect of work, leisure, health


and hygiene to further ensure that there is no hostile environment towards women
at work places and no employee woman should have reasonable grounds to believe
that she is disadvantaged in connection with her employment.

Where such conduct amounts to specific offences under I,P,C, or under any other
law, the employer shall initiate appropriate action in accordance with law by
making a complaint with appropriate authority. The victims of Sexual harassment
should have the option to seek transfer of perpetrator or their own transfer.

In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court


reiterated the Vishakha ruling and observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of


work, results in violation of the Fundamental Right to Gender Equality and the
Right to Life and Liberty the two most precious Fundamental Rights guaranteed by
the Constitution of India…. In our opinion, the contents of the fundamental rights
guaranteed in our Constitution are of sufficient amplitude to encompass all facets
of gender equality, including prevention of sexual harassment and abuse and the
courts are under a constitutional obligation to protect and preserve those

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fundamental rights. That sexual harassment of a female at the place of work is


incompatible with the dignity and honour of a female and needs to be
eliminated….”

Right Against Rape

Rape has been held to a violation of a person’s fundamental life guaranteed under
Art. 21. Right to life right to live with human dignity. Right to life, would,
therefore, include all those aspects of life that go on to make life meaningful,
complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty, the supreme court held that

“Rape is thus not only a crime against the person of a woman (victim), it is a crime
against the entire society. It destroys the entire psychology of a woman and pushed
her into deep emotional crises. It is only by her sheer will power that she
rehabilitates herself in the society, which, on coming to know of the rape, looks
down upon her in derision and contempt. Rape is, therefore, the most hated crime.
It is a crime against basic human rights and is also violative of the victim’s most
cherished of the fundamental rights, namely, the right to life with human dignity
contained in Art 21”.

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Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21
would not include right to livelihood. In Re Sant Ram[xviii], a case which arose
before Maneka Gandhi case, where the Supreme Court ruled that the right to
livelihood would not fall within the expression “life” in Article 21.The court said
curtly:

“The right to livelihood would be included in the freedoms enumerated in Art.19,


or even in Art.16, in a limited sense. But the language of Art.21 cannot be pressed
into aid of argument that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”

But then the view underwent a change. With the defining of the word “life” in
Article 21 in broad and expansive manner, the court in Board of Trustees of the
Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, came to hold that “the
right to life” guaranteed by Article 21 includes “the right to livelihood”. The
Supreme Court in Olga Tellis v. Bombay Municipal Corporation, popularly known
as the “Pavement Dwellers Case” a five judge bench of the Court now implied that
‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without
the means of living, that is, the means of Livelihood. That the court in this case
observed that:

“The sweep of right to life conferred by Art.21 is wide and far reaching. It does not
mean, merely that life cannot be extinguished or taken away as, for example, by

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the imposition and execution of death sentence, except according to procedure


established by law. That is but one aspect if the right to life. An equally important
facet of the right to life is the right to livelihood because no person can live without
the means of livelihood.”

If the right to livelihood is not treated as a part and parcel of the constitutional right
to life, the easiest way of depriving a person of his right to life would be to deprive
him of his means of livelihood to the point of abrogation.

Art. 21 does not place an absolute embargo on the deprivation of life or personal
liberty and for that matter on right to livelihood. What Art. 21 insists is that such
deprivation ought to be according to procedure established by law which must be
fair, just and reasonable. Therefore anyone who is deprived of right to livelihood
without a just and fair procedure established by law can challenge such deprivation
as being against Art. 21 and get it declared void.

In D.T.C. v. D.T.C. Mazdoor Congress, a regulation conferring power on the


authority to terminate the services of a permanent and confirm employee by
issuing a noticing without assigning him any reasons and without giving him a
hearing has been held to be a wholly arbitrary and violative of Art. 21.

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In M. Paul Anthony v. Bihar Gold Mines Ltd., it was held that when a government
servant or one in a public undertaking is suspended pending a departmental
disciplinary inquiry against him, subsistence allowance must be paid to him. The
Court has emphasized that a government servant does not his right to life and other
fundamental rights.

However, if a person is deprived of such a right according to procedure established


by law which must be fair, just and reasonable and which is in the larger interest of
people, the plea of deprivation of right to livelihood under Art. 21 is unsustainable.
In, Chameli Singh v. State of Uttar Pradesh, it was held by the Hon’ble Supreme
Court that when the land of a landowner was acquired by state in accordance with
the procedure laid down in the relevant law of acquisition the right to livelihood of
such a landowner even though adversely affected, his right to livelihood is not
violated. The Court opined that, the state acquires land in exercise of its power of
eminent domain for a public purpose. The landowner is paid compensation in lieu
of land, and therefore, the plea of deprivation of right to livelihood under Art. 21 is
unsustainable.

In MX of Bombay Indian Inhabitants v. M/s. Z,it was held that a person tested
positive for HIV could not be rendered “medically unfit” solely on that ground so
as to deny him the employment. The right to life includes the right to livelihood.
Therefore, right to livelihood cannot hang on to the fancies of the individuals in
authority. Even though the petitioner might have been a nuisance to others and

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conducted themselves either in a disorderly way or unbecoming on their profession


but, that in itself, it is not sufficient for the executive to take away their source of
livelihood by an executive fiat.

Right to Work Not a Fundamental Right under Art.21

In Sodan Singh v. New Delhi Municipal Committee, the five judge bench of the
Supreme Court distinguished the concept of life and liberty within Art.21 from the
right to carry on any trade or business, a fundamental right conferred by Art.
19(1)(g) and held the right to carry on trade or business is not included in the
concept of life and personal liberty. Article 21 is not attracted in case of trade and
business. The petitioners, hawkers doing business off the pavement roads in Delhi,
had claimed that the refusal by the Municipal authorities to them to carry on
business of their livelihood amounted to violation of their right under Article 21 of
the Constitution. The court opined that while hawkers have a fundamental right
under Article 19(1) (g) to carry on trade or business of their choice; they have no
right to do so in a particular place. They cannot be permitted to carry on their trade
on every road in the city. If the road is not wide enough to be conveniently
accommodating the traffic on it, no hawking may be permitted at all, or may be
permitted once a week. Footpaths, streets or roads are public property and are
intended to several general public and are not meant for private use. However, the
court said that the affected persons could apply for relocation and the concerned
authorities were to consider the representation and pass orders thereon. The two

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rights were too remote to be connected together. The court distinguished the ruling
in in Olga Tellis v. Bombay Municipal Corporation and held that “in that case the
petitioners were very poor persons who had made pavements their homes existing
in the midst of filth and squalor and that they had to stay on the pavements so that
they could get odd jobs in city. It was not the case of a business of selling articles
after investing some capital.”

Right to Shelter

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the right
to shelter has been held to be a fundamental right which springs from the right to
residence secured in article 19(1)(e) and the right to life guaranteed by article 21.
To make the right meaningful to the poor, the state has to provide facilities and
opportunities to build houses.

Upholding the importance of the right to a decent environment and a reasonable


accommodation, in Shantistar Builders v. Narayan Khimalal Totame, the Court
held that

“The right to life would take within its sweep the right to food, the right to
clothing, the right to decent environment and a reasonable accommodation to live
in. The difference between the need of an animal and a human being for shelter has
to be kept in view. For the animal it is the bare protection of the body, for a human
being it has to be a suitable accommodation, which would allow him to grow in

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every aspect – physical, mental and intellectual. The Constitution aims at ensuring
fuller development of every child. That would be possible only if the child is in a
proper home. It is not necessary that every citizen must be ensured of living in a
well-built comfortable house but a reasonable home particularly for people in India
can even be mud-built thatched house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of U.P,a Bench of three Judges of Supreme Court had
considered and held that the right to shelter is a fundamental right available to
every citizen and it was read into Article 21 of the Constitution of India as
encompassing within its ambit, the right to shelter to make the right to life more
meaningful. The Court observed that:

“Shelter for a human being, therefore, is not a mere protection of his life and limb.
It is however where he has opportunities to grow physically, mentally,
intellectually and spiritually. Right to shelter, therefore, includes adequate living
space, safe and decent structure, clean and decent surroundings, sufficient light,
pure air and water, electricity, sanitation and other civic amenities like roads etc. so
as to have easy access to his daily avocation. The right to shelter, therefore, does
not mean a mere right to a roof over one’s head but right to all the infrastructure
necessary to enable them to live and develop as a human being”.

Right to Health

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In State of Punjab v. M.S. Chawla, it has been held that- the right to life guaranteed
under Article 21 includes within its ambit the right to health and medical care.

The Supreme Court in Vincent v. Union of India, emphasized that a healthy body is
the very foundation of all human activities.Art.47, a directive Principle of State
Policy in this regard lays stress note on improvement of public health and
prohibition of drugs injurious to health as one of primary duties of the state.

In Consumer Education and Research Centre v. Union of India, The Supreme


Court laid down that:“Social justice which is device to ensure life to be meaningful
and livable with human dignity requires the State to provide to workmen facilities
and opportunities to reach at least minimum standard of health, economic security
and civilized living. The health and strength of worker, the court said, was an
important facet of right to life. Denial thereof denudes the workmen the finer facets
of life violating Art. 21.”

Right to Medical Care

In Parmananda Katara v. Union of India, the Supreme Court has very specifically
clarified that preservation of life is of paramount importance. The Apex Court
stated that ‘once life is lost, status quo ante cannot be restored’. It was held that it
is the professional obligation of all doctors (government or private) to extent
medical aid to the injured immediately to preserve life without legal formalities to
be complied with the police. Article21 casts the obligation on the state to preserve

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life. It is the obligation of those who are in charge of the health of the community
to preserve life so that the innocent may be protected and the guilty may be
punished. No law or state action can intervene to delay and discharge this
paramount obligation of the members of the medical profession. No law or State
action can intervene to avoid/delay the discharge of the paramount obligation
cast upon members of the medical profession. The obligation being total, absolute
and paramount, laws of procedure whether in statute or otherwise which would
interfere with the discharge of this obligation cannot be sustained and must,
therefore, give way. The court also observed:

“Art. 21 of the Constitution cast the obligation on the State to preserve life. The
patient whether he be an innocent person or a criminal liable to punishment under
the laws of the society, it is the obligation of those who are in charge of the health
of the community to preserve life so that the innocent may be protected and the
guilty may be punished. Social laws do not contemplate death by negligence to
tantamount to legal punishment…. Every doctor whether at a Government hospital
or otherwise has the professional obligation to extend his services with due
expertise for protecting life.”

No Right to die

Art. 21 confers on a person the right to live a dignified life. Does, it also confers a
right not to live or a right to die if a person chooses to end his life? If so, what is
the fate of Sec. 309, I.P.C., 1860, which punishes a person convicted of attempting
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to commit suicide? There has been difference of opinion on the justification of this
provision to continue on the statute book.

In P. Rathinam v. Union of India, a two judge Division Bench of the Supreme


Court, took cognizance of the relationship/contradiction between Sec. 309, I.P.C.,
and Art. 21. The Court supporting the decision of the High Court of Bombay in
Maruti Sripati Dubal’s Case held that the right to life embodies in Art. 21 also
embodied in it a right not to live a forced life, to his detriment disadvantage or
disliking. The court argued that the word life in Art. 21 means right to live with
human dignity and the same does not merely connote continued drudgery. Thus the
court concluded that the right to live of which Art. 21 speaks of can be said to
bring in its trail the right not to live a forced life. The court further emphasized that
“attempt to commit suicide is in realty a cry for held and not for punishment.”

The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian
Kaur v. State of Punjab. The question before the court was that if the principal
offence of attempting to commit suicide is void as being unconstitutional vis-à-vis
Art.21, then how abetment can thereof be punishable under Sec. 306, I.P.C., 1860.
It was argued that ‘the right to die’ having been included in Art.21 (Rathinam
ruling), and Sec. 309 having been declared unconstitutional, any person abetting
the commission of suicide by another is merely assisting in the enforcement of his
fundamental right under Art. 21.

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The Court overruled the decision of the Division Bench in the above stated case
and has put an end to the controversy and ruled that Art.21 is a provision
guaranteeing protection of life and personal liberty and by no stretch of
imagination can extinction of life’ be read to be included in protection of life. The
court observed further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an


unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of right to life”

Euthanasia and Right to Life

Euthanasia is termination of life of person who is terminally ill or in a permanent


vegetative state. In Gian Kaur v. State of Punjab, the Supreme Court has
distinguished between Euthanasia and attempt to commit suicide. The court held
that death due to termination of natural life is certain and imminent and the process
of natural death has commenced. These are not cases of extinguishing life but only
of accelerating conclusion of the process of natural death that has already
commenced.

The court further held that, this may fall within the ambit of Right to live with
human dignity up to the end of natural life. This may include the right of a dying
man to also die with dignity when his life is ebbing out. This cannot be equated
with the right to die an unnatural death curtailing the natural span of life.

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Sentence of death –Rarest of rare cases

The issue of abolition or retention of capital punishment was dealt with by the law
commission of India. After collecting as much available material as possible and
assessing the views expressed by western scholars, the commission recommended
the retention of the capital punishment in the present state of the country. The
commission held the opinion that having regard to the conditions of India, to the
variety of the social upbringing of its inhabitants, to the disparity in the level of
morality and education in the country, to the vastness of its area, to the diversity of
its population and to the paramount need for maintaining law and order in the
country, India could not risk the experiment of abolition of capital punishment.

In Jagmohan v. State of U.P, the Supreme Court had held that death penalty was
not violative of articles 14, 19 and 21.it was said that the judge was to make the
choice between death penalty and imprisonment for life on the basis of
circumstances, facts and nature of crime brought on record during trail. Therefore,
the choice of awarding death sentence was done in accordance with the procedure
established by law as required under article 21

But, in Rajindera Parsad v. State of U.P. Krishna Iyer J., speaking for the
majority, held that capital punishment would not be justified unless it was shown
that the criminal was dangerous to the society. The learned judge plead for the

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abolition of death penalty and said that it should retained only for “white collar
crimes” However, in Bachan Singh v. State of Punjab[, the leading case of on the
question, a constitution bench of the supreme court explained that article 21
recognized the right of the state to deprive a person of his life in accordance with
just, fair and reasonable procedure established by a valid law .It was further held
that death penalty for the offence of murder awarded under section 302 of I.P.C did
not violate the basic feature of the constitution.

PERSONAL LIBERTY

Liberty of the person is one of the oldest concepts to be protected by national


courts. As long as 1215, the English Magna Carta provided that,

No freeman shall be taken or imprisoned… but… by the law of the land.

The smallest Article of eighteen words has the greatest significance for those who
cherish the ideals of liberty. What can be more important than liberty? In India the
concept of ‘liberty’ has received a far more expansive interpretation. The Supreme
Court of India has rejected the view that liberty denotes merely freedom from
bodily restraint; and has held that it encompasses those rights and privileges that
have long been recognized as being essential to the orderly pursuit of happiness by
free men. The meaning of the term ‘personal liberty’ was considered by the
Supreme Court in the Kharak Singh’s case, which arose out of the challenge to
Constitutional validity of the U. P. Police Regulations that provided for

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surveillance by way of domiciliary visits and secret picketing. Oddly enough both
the majority and minority on the bench relied on the meaning given to the term
“personal liberty” by an American judgment (per Field, J.,) in Munn v Illinois,
which held the term ‘life’ meant something more than mere animal existence. The
prohibition against its deprivation extended to all those limits and faculties by
which the life was enjoyed. This provision equally prohibited the mutilation of the
body or the amputation of an arm or leg or the putting of an eye or the destruction
of any other organ of the body through which the soul communicated with the
outer world. The majority held that the U. P. Police Regulations authorizing
domiciliary visits [at night by police officers as a form of surveillance, constituted
a deprivation of liberty and thus] unconstitutional. The Court observed that the
right to personal liberty in the Indian Constitution is the right of an individual to be
free from restrictions or encroachments on his person, whether they are directly
imposed or indirectly brought about by calculated measures.

The Supreme Court has held that even lawful imprisonment does not spell farewell
to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen
except only those ‘necessarily’ lost as an incident of imprisonment

Right to Privacy

As per Black’s Law Dictionary, privacy means “right to be let alone; the right of a
person to be free from unwarranted publicity; and the right to live without

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unwarranted interference by the public in matters with which the public is not
necessarily concerned”

Although not specifically referenced in the Constitution, the right to privacy is


considered a ‘penumbral right’ under the Constitution, i.e. a right that has been
declared by the Supreme Court as integral to the fundamental right to life and
liberty. Right to privacy has been culled by Supreme Court from Art. 21 and
several other provisions of the constitution read with the Directive Principles of
State Policy. Although no single statute confers a crosscutting ‘horizontal’ right to
privacy; various statutes contain provisions that either implicitly or explicitly
preserve this right.

For the first time in Kharak Singh v. State of U.P. question whether the right to
privacy could be implied from the existing fundamental rights such as Art.
19(1)(d), 19(1)(e) and 21, came before the court. “Surveillance” under Chapter XX
of the U.P. Police Regulations constituted an infringement of any of the
fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b),
which permitted surveillance by “domiciliary visits at night”, was held to be in
violation of Article 21. A seven-judge bench held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were
considered by this court in Kharak Singh’s case. Although the majority found that

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the Constitution contained no explicit guarantee of a “right to privacy”, it read the


right to personal liberty expansively to include a right to dignity. It held that “an
unauthorized intrusion into a person’s home and the disturbance caused to him
thereby, is as it were the violation of a common law right of a man -an ultimate
essential of ordered liberty, if not of the very concept of civilization”

In a minority judgment in this case, Justice Subba Rao held that:

“the right to personal liberty takes in not only a right to be free from restrictions
placed on his movements, but also free from encroachments on his private life. It is
true our Constitution does not expressly declare a right to privacy as a fundamental
right but the said right is an essential ingredient of personal liberty. Every
democratic country sanctifies domestic life; it is expected to give him rest, physical
happiness, peace of mind and security. In the last resort, a person’s house, where
he lives with his family, is his ‘castle’; it is his rampart against encroachment on
his personal liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for later
elaborations on the right to privacy using Article 21.

In Govind v. State of Madhya Pradesh,The Supreme Court took a more elaborate


appraisal of the right to privacy. In this case, the court was evaluating the
constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police
Regulations, which provided for police surveillance of habitual offenders including

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domiciliary visits and picketing of the suspects. The Supreme Court desisted from
striking down these invasive provisions holding that:

“It cannot be said that surveillance by domiciliary visit would always be an


unreasonable restriction upon the right of privacy. It is only persons who are
suspected to be habitual criminals and those who are determined to lead a criminal
life that are subjected to surveillance.”

The court accepted a limited fundamental right to privacy as an emanation from


Arts.19(a), (d) and 21. Mathew J. observed in the instant case,

“The right to privacy will, therefore, necessarily, have to go through a process of


case by case development. Hence, assuming that the right to personal liberty.
the right to move freely throughout India and the freedom of speech create
an independent fundamental right of privacy as an emanation from them that one
can characterize as a fundamental right, we do not think that the right is
absolute…..

…… Assuming that the fundamental rights explicitly guaranteed to a citizen have


penumbral zones and that the right to privacy is itself a fundamental right that
fundamental right must be subject to restrictions on the basis of compelling public
interest”

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In R. Rajagopalan v. State of Tamil Nadu, The right to privacy of citizens was


dealt with by the Supreme Court in the following terms:

“(1) the right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen has a
right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, childbearing and education among other matters. None can publish
anything concerning the above matters without his consent – whether truthful or
otherwise and whether laudatory or critical. If he does so, he would be violating
the right to privacy of the person concerned and would be liable in an action for
damages. Position may, however, be different, if a person voluntarily thrusts
himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception that any publication concerning
the aforesaid aspects becomes unobjectionable if such publication is based upon
public records including court records. This is for the reason that once a matter
becomes a matter of public record, the right to privacy no longer subsists and it
becomes a legitimate subject for comment by press and media among others. We
are, however, of the opinion that in the interests of decency [Article 19(2)] an
exception must be carved out to this rule, viz., a female who is the victim of a
sexual assault, kidnap, abduction or a like offence should not further be subjected
to the indignity of her name and the incident being publicized in press/media.”

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The final case that makes up the ‘privacy quintet’ in India was the case of PUCL v.
Union of India, the Supreme Court observed that:

We have; therefore, no hesitation in holding that right to privacy is a part of the


right to “life” and “personal liberty” enshrined under Article 21 of the Constitution.
Once the facts in a given case constitute a right to privacy; Article 21 is attracted.
The said right cannot be curtailed “except according to procedure established by
law”.

Article 22: Protection against arrest and detention in certain cases.

No person shall be deprived of his life or personal liberty except according to


procedure established by law.
Article 22 Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed,
as soon as may be, of the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before
the nearest magistrate within a period of twenty-four hours of such arrest excluding
the time necessary for the journey from the place of arrest to court of the
magistrate and no such person shall be detained in custody beyond the said period
without the authority of a magistrate.

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(3) Nothing in clauses (1) and (2) shall apply -


(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for
preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a
person for a longer period than three months unless -
(a) an Advisory Board consisting of persons who are, or have been, or are qualified
to be appointed as, Judges of a High Court has reported before the expiration of the
said period of three months that there is in its opinion sufficient cause for such
detention: Provided that nothing in this sub-clause shall authorise the detention of
any person beyond the maximum period prescribed by any law made by
Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as soon as
may be, communicate to such person the grounds on which the order has been
made and shall afford him the earliest opportunity of making a representation
against the order.

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(6) Nothing in clause (5) shall require the authority making any such order as is
referred to in that clause to disclose facts which such authority considers to be
against the public interest to disclose.
(7) Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of cases in which, a
person may be detained for a period longer than three months under any law
providing for preventive detention without obtaining the opinion of an Advisory
Board in accordance with the provisions of subclause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases
be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-
clause (a) of clause (4).
Article 21A: RIGHT TO EDUCATION
The State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine.
Article 23 in Constitution of India and Rights against Exploitation
23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable
in accordance with law

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(2) Nothing in this article shall prevent the State from imposing compulsory
service for public purpose, and in imposing such service the State shall not make
any discrimination on grounds only of religion, race, caste or class or any of them.
Article 23 & 24 of Indian Constitution deal with the Right against Exploitation.
Article 23 prohibits the traffic in human beings and forced labor such as begar.
Begar was a system in which government (yes, the British Government officers)
and Zamindars used to compel the persons to carry their goods when they moved
from one place to other place and this was a forced labor in which no remuneration
was paid.
The Human Trafficking is the illegal trade in human beings for the purposes of
commercial sexual exploitation, prostitution or forced labor. It is the modern form
of slavery.
As per the provisions enshrined the constitution the government passed” The
Immoral Traffic (Prevention) Act 1956 and ” The Bonded Labour System
(Abolition) Act 1976.
Even when the state takes up relief works such as famine or flood relief, it cannot
pay less than minimum wages.
When the prisoners are sent for the rigorous imprisonment, they must be paid
reasonable wages. Please note that as per Supreme Court if a prisoner is not paid
wages, it is NOT a violation of article 23. But if the under trials, persons sentences
to simple imprisonments and those who have been detained under preventive

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detention can NOT be asked to do manual work. They can do work if they wish to
do out of their choice and it would require equitable wages.
What is Bonded Labor?
Bonded Labour or Forced Labour is forbidden. The Forced Labour means not only
the physical and legal force but also arising out of the compulsion of the economic
circumstances.
In this context, the Supreme Court of India in People’s Union for Democratic
Rights and others Vs. Union of India and others [1982] also known as “Asiad
Workers Case” gave the following explanation:
“We are, therefore, of the view that when a person provides labour of service to
another for remuneration which is less than the minimum wage, the labour or
service provided by him clearly falls within the scope and ambit of the words
“forced labour” under Article 23 (of the Constitution of India).”
Article 24 of Constitution of India and Prevention of Child Labour
Article 24- Prohibition of employment of children in factories, etc No child below
the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment Provided that nothing in this sub
clause shall authorise the detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub clause (b) of clause ( 7 ); or
such person is detained in accordance with the provisions of any law made by
Parliament under sub clauses (a) and (b) of clause ( 7 )

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Article 24 mandates that No child below age of 14 years shall be employed to work
in any factory or mine or engaged in any other hazardous employment.
Similarly Article 39(f) lays down certain directive principles of policy to be
followed by the State:
Article 39 The State shall, in particular, direct its policy towards securing:
(f) that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment.
Child Labour: Some Implications
It’s worth note that The Employment of Children Act 1938 was among the first
acts to prevent child labour.
The provisions of this act did not include the construction work on projects
because the construction industry was not a process specified in the Schedule to the
Act. But construction work & projects were held equal to hazardous occupation by
the Supreme Court in the People’s Union for Democratic Rights v. Union of
India (1982) case.
Similarly in the M.C.Mehta v. State of Tamil Nadu (1991) case, Supreme Court
directed that children should not be employed in hazardous jobs in factories for
manufacture of match boxes and fireworks.
In Gaurav Jain v Union of India: [1997] case, the Supreme Court held that the
children of the prostitutes have the right to equality of opportunity, dignity, care,

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protection and rehabilitation so as to be part of the mainstream of social life


without any pre-stigma attached on them.
Articles 25-28 and Right to Freedom of Religion in India
Article 25 to 28 of the constitution of India guarantees the right of Freedom of
religion.
Article 25. Freedom of conscience and free profession, practice and propagation of
religion.
Article 26. Freedom to manage religious affairs.
Article 27. Freedom as to payment of taxes for promotion of any particular
religion.
Article 28. Freedom as to attendance at religious instruction or religious worship in
certain education institutions.
Freedom of religion and Secularism in Indian Constitution
Though the Right to freedom of speech and expression (Article 19) envisages the
philosophy of freedom of religion in India because despite of the creation of
Pakistan, a lot of Muslims were scattered all over India, part from Sikhs, Parsees,
Christians and others. Yet the constituent assembly made it explicit by
incorporating a separate group of Articles as per a agreement with /
recommendation of Advisory Committee on Fundamental Rights, Minorities,
Tribal and Excluded Areas (Chairman: Vallabhbhai Patel) and Minorities Sub-
Committee (Chairman: H.C. Mookherjee). Before the Constitution 42nd
amendment Bill added the word “secular” in the constitution of India, the word

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“secular” appeared only in “Article 25”. India is a secular country and there is no
state religion. India also does not patronizes any religion. The Constitution 42nd
amendment Act made the above thought “explicit” in the constitution.
Is being a Hindu means No secular?
Hindus are in majority in India but secularism means that in India, state shall
observe neutrality & impartiality to all religions. Here, all religions are respected
and all beliefs & methods of worship are accepted. All minority religions enjoy full
freedom and in certain cases protected. This is opposite in some neighbouring
countries such as Pakistan and Bangladesh which were part of India but later
became Islamic countries. Secularism does not mean that state is hostile to a
particular religion. If a person is a Hindu, he / she do not cease to be a secular. The
Supreme Court in Pannalal Pitti v/s State of Andhra Pradesh mandated that while
Article 25 and 26 grants religious freedom to minority religions such as Islam and
Christianity, yet they do NOT intend to DENY the same guarantee to Hindus.
Article 25 mandates that subject to public order, morality and health, all persons
enjoy the freedom of conscience and have the right to entertain any religious belief
and propagate it.
Meaning of Public order, morality and health
This means that Article 25 & 26 are not absolute. No person can do such religious
things which affect the public order, morality and health. For example no one has
right to conduct human sacrifice. No one can perform worship on busy highway or
other public places which disturb the community.

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Is right to performing rituals protected?


Yes, it is protected. But the state by law may regulate the economic, financial,
political, or other activity which may not be a direct part of religion. For example
management of Temples can be controlled by the state.
Does Constitution allow use of loudspeakers in temples / mosques etc.?
Using the loudspeakers for making noise is not guaranteed by the Constitution. The
protagonists of this thought took shelter of Article 19(1) freedom of speech and
right to expression. However, nobody can claim a fundamental right to create noise
by amplifying the sound of his speech with the help of loudspeakers.
In this context, cracking of fireworks on Diwali & using loudspeakers for Ajan in
the morning had also come under Supreme Court’s scrutiny. The Court restricted
the time of bursting the firecrackers, and it does not in any way violate the
religious rights of any person as enshrined under Article 25 of the Constitution.
The festival of Diwali is mainly associated with Pooja performed on the auspicious
day and not with firecrackers. In no religious textbook it is written that Diwali has
to be celebrated by bursting crackers. Diwali is considered as a festival of lights
not of noises.
In this context, the Government of India framed and published Noise Pollution
Control and Regulation Rules, 1999. This legislation was amended in 2002 and
empowered the State Governments to permit use of loudspeaker or public address

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system during night hours (between 10 pm and 12 pm mid-night) on or during the


cultural or religious occasions for a limited period not exceeding 15 days.
The Supreme Court in Church of God in India v. K.K.R. Majestic Colony Welfare
Assn.,(2000) held that the Court may issue directions in respect of controlling
noise pollution even if such noise was a direct result of and was connected with
religious activities. The mandate included the following lines:
“Undisputedly, no religion prescribes that prayers should be performed by
disturbing the peace of others nor does it preach that they should be through voice
amplifiers or beating of drums. In our view, in a civilized society in the name of
religion, activities which disturb old or infirm persons, students or children having
their sleep in the early hours or during daytime or other persons carrying on other
activities cannot be permitted”.
Article 26: gives every religious group a right to establish and maintain institutions
for religious and charitable purposes, manage its affairs, properties as per the law.
This guarantee is available to only Citizens of India and not to aliens.
Article 27: This Article mandates that no citizen would be compelled by the state
to pay any taxes for promotion or maintenance of particular religion or religious
institutions.
Article 28: This Article mandates that No religious instruction would be imparted
in the state funded educational institutions.
Implications of Article 25 & 26 not being absolute

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Use of loudspeakers is not an integral part of the religions so the government can
restrict on the use of loudspeakers for Ajan and Bhajan Kirtans.
Followers of no religions have right to stop the processions of other religions on
the ground that it is a nuisance.
State may abolish “Cow Slaughter” as sacrifice of Cow on Bakrid is not an
essential part of the religion.
Possessing a Kirpan is an essential part of professing Sikkism and it is protected
right of Sikhs. (Article 25 Explanation I)
The Aligarh Muslim University was established under an act of parliament so
Muslims can NOT claim to run this university as per provisions of Article 26 &
Article 29.
None of the rights guarantee that a Brahmin only can perform rituals of Hinduism.
UNIT III
WRITS
Generally writ is an order which is issued by higher authority. It is originated in
England. Under Indian constitution writs are enjoyed by supreme court under
Article 32 and high court under article 226.And the writ jurisdiction of high court
is wider in scope as compared to supreme court because:
SC writs are under Article 32 which in itself is a fundamental right thus Supreme
Court cannot refuse to exercise its writ jurisdiction. Whereas article 226 is
discretionary thus High Court can refuse to exercise its writ jurisdiction.

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The Supreme Court can issue writs only for the enforcement of fundamental rights
whereas a High Court can issue writs for enforcement of fundamental rights along
with for any other purpose.
Supreme Court can issue writ against a person or government throughout the
territory whereas High Court can issue writs against a person residing or against a
government located within its territorial jurisdiction or outside its jurisdiction only
if the cause of action arises within the territorial jurisdiction.
Types of writs: There are five types of writs under Indian constitution.
A) Habeas Corpus
Habeas corpus means "You may have the body". The concept of writ of habeas
corpus has originated from England. This writ is issued in order to protect
individual liberties .More importantly issued when a person is detained
unlawfully(violation of fundamental right to liberty) and the detained person
should be brought physically brought before the court with in 24 hours. This writ
can be filed by anybody not necessarily aggrieved person. It can be issued against
both state and individual.

B) Mandamus
Mandamus means 'we command'. The writ is issued by court commanding a
person or a body to do its duty. It is also called awakening call, it awakes the
sleeping authority to perform their duty. It is issued when a public official or a
person holding a public office has failed to perform his/her official duty. This writ

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can be issued only to ensure legal or statuary right. Private rights cannot be
enforced by it.
C) Certiorari
Certiorari means “to be certified” or “to be informed”. It is issued by the higher
court to the lower court either to transferring the records of proceedings of a case
pending with it, for the purpose of determining the legality of its proceedings or for
giving fuller and a more satisfactory effect to them then could be done in the lower
court. This writ can be issued only against a judicial or quasi-judicial body. The
object of this writ is to prevent judicial or quasi judicial body to usher excess
jurisdiction. It can be filed only by the aggrieved person.
D) Prohibition
Prohibition means “to forbid” or “to stop” and popularly known as 'Stay Order'.
This writ is issued when a lower court or a body tries to transgress the limits or
powers vested in it. The writ of prohibition is issued by any High Court or the
Supreme Court to any inferior court, or quasi judicial body. This writ can be issued
only against judicial and quasi-judicial body authorities and not against
administrative authorities.
The writ Prohibition and Certiorari have little bit difference:
- The writ of prohibition is available during the pendency of proceedings, the writ
of certiorari can be resorted to only after the order or decision has been announced.

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- Prohibition can be issued only against judicial and quasi judicial authorities
whereas Certiorari can be issued even against administrative authorities affecting
rights of individuals.
E) Quo Warranto
Quo-Warranto means "by what warrant" or "by what authority". This writ is issued
to ensure that a person who occupies a public office is qualified to hold that office.
It is issued to enquire the legality of claim of a person to a public office, it prevents
the illegal assumption of public office by a person. This can be filed by any
individual.
JUDICIAL REVIEW
The Judiciary plays a very important role as a protector of the constitutional values
that the founding fathers have given us. They try to undo the harm that is being
done by the legislature by the legislature and the executive and also they try to
provide every citizen what has been promised by the Constitution under the
Directive Principles of State Policy. All this is possible thanks to the power of
judicial review.
All this is not achieved in a day it took 50 long years for where we are right now, if
one thinks that it is has been a roller coaster ride without any hindrances they are
wrong judiciary has been facing the brunt of many politicians, technocrats,
academicians, lawyers etc. Few of them being genuine concerns, and among one of
them is the aspect of corruption and power of criminal contempt. In this paper I
would try to highlight the ups and downs of this greatest institution in India.

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The rule of law is the bedrock of democracy, and the primary responsibility for
implementation of the rule of law lies with the judiciary.1 This is now a basic
feature of every constitution, which cannot be altered even by the exercise of new
powers from parliament. It is the significance of judicial review, to ensure that
democracy is inclusive and that there is accountability of everyone who wields or
exercises public power. As Edmund Burke said: "all persons in positions of power
ought to be strongly and lawfully impressed with an idea that "they act in trust,"
and must account for their conduct to one great master, to those in whom the
political sovereignty rests, the people".
India opted for parliamentary form of democracy, where every section is involved
in policy-making, and decision taking, so that every point of view is reflected and
there is a fair representation of every section of the people in every such body. In
this kind of inclusive democracy, the judiciary has a very important role to play.
That is the concept of accountability in any republican democracy, and this basic
theme has to be remembered by everybody exercising public power, irrespective of
the extra expressed expositions in the constitution.
The principle of judicial review became an essential feature of written
Constitutions of many countries. Seervai in his book Constitutional Law of India
noted that the principle of judicial review is a familiar feature of the Constitutions
of Canada, Australia and India, though the doctrine of Separation of Powers has no
place in strict sense in Indian Constitution, but the functions of different organs of

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the Government have been sufficiently differentiated, so that one organ of the
Government could not usurp the functions of another.
The power of judicial review has in itself the concept of separation of powers an
essential component of the rule of law, which is a basic feature of the Indian
Constitution. Every State action has to be tested on the anvil of rule of law and that
exercise is performed, when occasion arises by the reason of a doubt raised in that
behalf, by the courts. The power of Judicial Review is incorporated in Articles 226
and 227 of the Constitution insofar as the High Courts are concerned. In regard to
the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India
has come to control by judicial review every aspect of governmental and public
functions.
Extent of Judicial Review in India:
The initial years of the Supreme Court of India saw the adoption of an approach
characterised by caution and circumspection. Being steeped in the British tradition
of limited judicial review, the Court generally adopted a pro-legislature stance.
This is evident form the rulings such as A.K. Gopalan, but however it did not take
long for judges to break their shackles and this led to a series of right to property
cases in which the judiciary was loggerhead with the parliament. The nation
witnessed a series of events where a decision of the Supreme Court was followed
by a legislation nullifying its effect, followed by another decision reaffirming the
earlier position, and so on. The struggle between the two wings of government
continued on other issues such as the power of amending the Constitution.6 During

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this era, the Legislature sought to bring forth people-oriented socialist measures
which when in conflict with fundamental rights were frustrated on the upholding of
the fundamental rights of individuals by the Supreme Court. At the time, an effort
was made to project the Supreme Court as being concerned only with the interests
of propertied classes and being insensitive to the needs of the masses. Between
1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and
State laws, in whole or in part, to be unconstitutional.
After the period of emergency the judiciary was on the receiving end for having
delivered a series of judgments which were perceived by many as being violative
of the basic human rights of Indian citizens and changed the way it looked at the
constitution. The Supreme Court said that any legislation is amenable to judicial
review, be it momentous amendments8 to the Constitution or drawing up of
schemes and bye-laws of municipal bodies which affect the life of a citizen9.
Judicial review extends to every governmental or executive action - from high
policy matters like the President's power to issue a proclamation on failure of
constitutional machinery in the States like in Bommai case, to the highly
discretionary exercise of the prerogative of pardon like in Kehar Singh case or the
right to go abroad as in Satwant Singh case. Judicial review knows no bounds
except the restraint of the judges themselves regarding justifiability of an issue in a
particular case.
Judicial Review of Political Questions:

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In the initial stages of the judicial adjudication Courts have said that where there is
a political question involved it is not amenable to judicial review but slowly this
changed, in Keshavananda Bharathi’s case, the Court held that, "it is difficult to
see how the power of judicial review makes the judiciary supreme in any sense of
the word. This power is of paramount importance in a federal constitution….
Judicial Review of constitutional amendments may seem involving the Court in
political question, but it is the Court alone which can decide such an issue. The
function of Interpretation of a Constitution being thus assigned to the judicial
power the State, the question whether the subject of law is within the ambit of one
or more powers of the legislature conferred by the constitution would always be a
question of interpretation of the Constitution."
Than it was in Special Courts Bill, 1978, In re, case where the majority opined that,
"The policy of the Bill and the motive of the mover to ensure a speedy trial of
persons holding high public or political office who are alleged to have committed
certain crimes during the period of emergency may be political, but the question
whether the bill or any provisions are constitutionally invalid is a not a question of
a political nature and the court should not refrain from answering it." What this
meant was that though there are political questions involved the validity of any
action or legislation can be challenged if it would violate the constitution. This
position has been reiterated in many other cases11 and in S.R. Bommai’s case the
Court held, "though subjective satisfaction of the President cannot be reviewed but
the material on which satisfaction is based open to review…" the court further

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went on to say that, "The opinion which the President would form on the basis of
Governor’s report or otherwise would be based on his political judgment and it is
difficult to evolve judicially manageable norms for scrutinizing such political
decisions. Therefore, by the very nature of things which would govern the
decision-making under Article 356, it is difficult to hold that the decision of the
president is justiciable. To do so would be entering the political thicker and
questioning the political wisdom which the courts of law must avoid. The
temptation to delve into the President’s satisfaction may be great but the courts
would be well advised to resist the temptation for want of judicially manageable
standards. Therefore, the Court cannot interdict the use of the constitutional power
conferred on the President under Article 356 unless the same is shown to be male
fide."
As Soli Sorabjee points out, "there is genuine concern about misuse by the Centre
of Article 356 on the pretext that the State Government is acting in defiance of the
essential features of the Constitution. The real safeguard will be full judicial review
extending to an inquiry into the truth and correctness of the basic facts relied upon
in support of the action under Article 356 as indicated by Justices Sawant and
Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the
material, so be it."
What this meant was the judiciary was being cautious about the role it has to play
while adjudicating matters of such importance and it is showing a path of restraint
that has to be used while deciding such matters so that it does not usurp the powers

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given by the Constitution by way of the power of review at the same it is also
minimizing the misusing of the power given under Article 356 to the President.

Judicial Review as a part of the Basic Structure:


In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme
Court of India the propounded the basic structure doctrine according to which it
said the legislature can amend the Constitution, but it should not change the basic
structure of the Constitution, The Judges made no attempt to define the basic
structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic
features:
1. Supremacy of the Constitution.
2. Republican and democratic form of Government.
3. Secular character of the Constitution.
4. Separation of powers between the legislature, the executive and the judiciary.
5. Federal character of the Constitution.
He observed that these basic features are easily discernible not only from the
Preamble but also from the whole scheme of the Constitution. He added that the
structure was built on the basic foundation of dignity and freedom of the individual
which could not by any form of amendment be destroyed. It was also observed in
that case that the above are only illustrative and not exhaustive of all the
limitations on the power of amendment of the Constitution. The Constitutional
bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial

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Review in election disputes was not a compulsion as it is not a part of basic


structure. In S.P. Sampath Kumar v. Union of India((1987) 1 SCC 124 at 128.),
P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared
that it was well settled that judicial review was a basic and essential feature of the
Constitution. If the power of judicial review was absolutely taken away, the
Constitution would cease to be what it was. In Sampath Kumar the Court further
declared that if a law made under Article 323-A(1) were to exclude the jurisdiction
of the High Court under Articles 226 and 227 without setting up an effective
alternative institutional mechanism or arrangement for judicial review, it would be
violative of the basic structure and hence outside the constituent power of
Parliament.
In Kihoto Hollohan v. Zachillhur (1992 Supp (2) SCC 651, 715, para 120)
another Constitution Bench, while examining the validity of para 7 of the Tenth
Schedule to the Constitution which excluded judicial review of the decision of the
Speaker/Chairman on the question of disqualification of MLAs and MPs, observed
that it was unnecessary to pronounce on the contention whether judicial review is a
basic feature of the Constitution and para 7 of the Tenth Schedule violated such
basic structure.
Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a
larger Bench of seven Judges unequivocally declared:
"that the power of judicial review over legislative action vested in the High Courts
under Article 226 and in the Supreme Court under Article 32 of the Constitution is

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an integral and essential feature of the Constitution, constituting part of its basic
structure".
Though one does not deny that power to review is very important, at the same time
one cannot also give an absolute power to review and by recognizing judicial
review as a part of basic feature of the constitution Courts in India have given a
different meaning to the theory of Check’s and Balances this also meant that it has
buried the concept of separation of powers, where the judiciary will give itself an
unfettered jurisdiction to review any thing every thing that is done by the
legislature.
Expansion of Judicial Review through Judicial Activism:
After the draconian exposition of power by the Executive and the Legislature
during Emergency the expectations of the public soared high and the demands on
the courts to improve the administration by giving appropriate directions for
ensuring compliance with statutory and constitutional prescriptions. Likewise the
judiciary has taken an activist view the Beginning with the Ratlam Municipality
case 12the sweep of Social Action Litigation13 had encompassed a variety of
causes.
With the interpretation given by it in Menaka Gandhi case the Supreme Court
brought the ambit of constitutional provisions to enforce the human rights of
citizens and sought to bring the Indian law in conformity with the global trends in
human-rights-jurisprudence. This was made possible in India, because of the
procedural innovations with a view to making itself more accessible to

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disadvantaged sections of society giving rise to the phenomenon of Social Action


Litigation/Public Interest Litigation15. During the Eighties and the first half of the
Nineties, the Court have broken there shackle’s and moved much ahead from being
a mere legal institution, its decisions have tremendous social, political and
economic ramifications. Time and again, it has sought to interpret constitutional
provisions and the objectives sought to be achieved by it and directed the executive
to comply with its orders.
SAL, a manifestation of judicial activism, has introduced a new dimension
regarding judiciary's involvement in public administration The sanctity of locus
standi and the procedural complexities are totally side-tracked in the causes
brought before the courts through SAL. In the beginning, the application of SAL
was confined only to improving the lot of the disadvantaged sections of the society
who by reason of their poverty and ignorance were not in a position to seek justice
from the courts and, therefore, any member of the public was permitted to maintain
an application for appropriate directions.
The new role of the Supreme Court has been criticised in some quarters as being
violative of the doctrine of separation of powers; it is claimed that the Apex Court
has, by formulating policy and issuing directions in respect of various aspects of
the country's administration, transgressed into the domain of the executive and the
legislature. As Justice Cardozo puts it, "A Constitution states or ought to state not
rules for the passing hour but principles for an expanding future." It is with this
view that innovations in the rules of standing have come into existence.

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Limitation on the power of review:


The expansion of the horizon of judicial review is seen both with reverence and
suspicion; reverence in as much as the judicial review is a creative element of
interpretation, which serves as an omnipresent and potentially omnipotent check on
the legislative and executive branches of government. But at the same time there is
a danger that they may trespass into the powers given to the legislature and the
executive.
One many say that if there is any limitation on judicial review other than
constitutional and procedural that is a product of judicial self-restraint. As justice
Dwivedi empathically observed, "Structural socio-political value choices involve a
complex and complicated political process. This court is hardly fitted for
performing that function. In the absence of any explicit Constitutional norms and
for want of complete evidence, the court’s structural value choices will be largely
subjective. Our personal predilections will unavoidably enter into the scale and
give colour to our judgment. Subjectivism is calculated to undermine legal
certainty, an essential element of rule of law."
The above observations also reveal another assumption to support an attitude of
self-restraint, viz., the element subjectiveness in judicial decision on issues having
socio-political significance. When one looks at the decisions of the Supreme Court
on certain questions of fundamental issues of constitutional law one can see that
there is a sharp division among the judges of the apex court on such basic

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questions of power of the Parliament to amend the Constitution, federal relations,


powers of the President etc. This aptly demonstrates the observation of the judge.
This would mean that though there has been expansion of powers of judicial
review one cannot also say that this cannot be overturned.
Judicial self-restrain in relation to legislative power manifests itself in the form the
there is a presumption of constitutionality when the validity of the statute is
challenged. In the words of Fazl Ali, "…the presumption is always in favour of the
constitutionality of an enactment, and the burden is upon him who attacks it to
show that there has been a clear transgression of the constitutional principles"
In applying the presumption of constitutionality the Courts sometimes apply an
interpretational device called ‘reading down’. The essence of the device is that "if
certain provisions of law construed in one way would make them consistent with
the constitution, and another interpretation would render them unconstitutional, the
court would lean in favour of the former construction." But all this depends on the
outlook and values of the judge.
When it come judicial review of administrative action though the presumption of
validity is not so strong in the case of administrative action as in the case of
statutes. Still, when the legislature expressly leaves a matter to the discretion of an
administrative authority the courts have adopted an attitude of restraint. They have
said we cannot the question the legality of the exercise of discretionary power
unless and until it is an abuse of discretionary power (which includes mala fide
exercise of power, exercising the power for an improper motive, decision based on

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irrelevant considerations or in disregard of relevant consideration, and in some


cases unreasonable exercise of power) and non-exercise of discretion ( which come
when power is exercised without proper delegation and when it is acted under
dictation).
The relevant considerations which should make the judicial choice in favour of
activism or restraint are the policy and scheme of the statute, the object of
conferring discretionary powers, the nature and scope of the discretion, and finally,
the nature of the right and interests affected by the decision. Any impulsive move
to activism without a serious consideration of these factors may only be viewed as
undesirable. Judicial activism, being an exception, not the general rule, in relation
to the control of discretionary power, needs strong reasons to justify it. In the
absence of such strong support of reasons the interventionist strategy may provoke
the other branches of Government may retaliate and impose further limitations on
the scope of judicial review.

What is the difference between Article 226 and Article 32?


Article 226
1. Article 226 empowers every High Court to issue the writs.
2. Article 32 is itself a fundamental right. Article 226 is not a fundamental right.
3. The President of India cannot suspend Article 226 during the period of
Emergency

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4. Article 226 is not a right as that of Article 32. The High Court may issue writs
according to its discretionary power.
5. Article 226 enables the High Court to issue orders to writs in the nature of
habeas corpus, mandamus, prohibition, certiorari, quowarranto, to protect
aggrieved and any other purpose.
Article 32
1. Article 32 empowers the Supreme Court to issue writs.
2. Article 32 is a fundamental right, and it is included in Part –III of the
Constitution. Article 32 is a basic feature of the Constitution. Article 226 is a
fundamental right.
3. During the period of emergency, the fundamental rights (Excepts the articles 21
and 22) can be suspended. Therefore, Article 32 can also be suspended during
emergency Period.
4. The applicant can approach the Supreme Court as a right, being it is
fundamental right.
5. Article 32 empowers the Supreme Court to issue the writs only when the
Fundamental Rights are violated or threatened.
UNIT IV
Nature and Justifiability of the Directive Principles
The Directive Principles of State Policy contained in Part IV, Articles 36-51 of the
Indian constitution constitute the most interesting and enchanting part of the
constitution.

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The idea of directives being included in the constitution was borrowed from the
constitution of Ireland.
The Directive Principles are non-justiciable in nature because they are not legally
enforceable by the courts for their violation. Therefore, the government cannot be
compelled to implement them. They were made non-justiciable because they try to
establish economic and social democracy in the country, so to implement them lots
of resources were required which India did not have at the time of independence.
With time, Directive Principles can be made justiciable or converted to
Fundamental Rights like Right to Education which was made a Fundamental Right
in 2002 (earlier it was a Directive Principle).
Yet many scholars appreciate the value of the directives. Sir B. N. Rau regards
them as “moral precepts” with an educative value. Dr. B. R. Ambedkar considered
them as powerful instruments for the transformation of India from a political
democracy into an economic democracy. The directive principles according to
Granville Austin, are “positive obligations”… to find a piddle way between
individual liberty and Public good. “The directives constitute a sort of “instrument
of instruction” to all governments in the great task of transforming a laissez-fire
society into a welfare state, a socialistic pattern of society and eventually into a
socialist society.
The Directive Principles are generally classified into 3 broad categories—
Socialistic
Gandhian and

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Liberal-intellectual.
(1) Socialistic Directives
Principal among this category of directives are (a) securing welfare of the people
(Art. 38) (b) securing proper distribution of material resources of the community as
to best sub serve the common-good, equal pay for equal work, protection of
childhood and youth against exploitation. etc. (Art.39), (c) curing right to work,
education etc. Art. (41), (d) securing just and humane conditions of work and
maternity relief (Art. 42) etc.
(2) Gandhian Directives
Such directives are spread over several Arts. Principal among such directives are
(a) to organize village panchayats (Art. 40), (b) to secure living wage, decent
standard of life, and to promote cottage industries (Art.43), (c) to provide free and
compulsory education to all children up to 14 years of age (Art. 45), (d) to promote
economic and educational interests of the weaker sections of the people,
particularly, the scheduled castes and scheduled tribes, (e) to enforce prohibition of
intoxicating drinks and cow-slaughter and to organize agriculture and animal
husbandry on scientific lines (Arts. 46-48).
(3) Liberal intellectual directives
Principal among such directives are (a) to secure uniform civil code throughout the
country (Art.44), (b) to separate the judiciary from the executive (Art.50), (c) to
protect monuments of historic and national importance and (d) to promote
international peace and security.

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Directive principles of state policies (A. 36-51)


Art. 36: This defines the term state in the same way as Art.12
• Art.37: This declares the importance of DPSPs. It states that though DPSPs are
not justiciable yet they shall be considered fundamental in the governance of the
country and it shall be the duty of the state to include these directives in their
policies.
• Art. 38: This directs the state to create a social order for the promotion of welfare
of the people. This social order must provide social, economic and political justice.
Under 44th Amendment, clause (2) has been added to Art.38 which directs the
state to minimize inequalities in income, to eliminate inequalities in status,
facilities and opportunities.
• Art. 39: This is a very important article containing a number of directives which
go a long way to establish what is known as welfare state in India. It directs the
states to secure the following:-
– Adequate means of livelihood for citizens both men and women.
– Control and ownership of the material resources of the community to be
distributed in such a manner that it serves the common good.
– The operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment.
– Equal pay for equal work for both men and women.

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– Health and strength of workers, men & women and children are not abused and
the citizens are not forced by economic necessity to enter Avocations unsuited to
their age or strength.
– Children are given opportunities and facilities to develop in a healthy manner and
their childhood and youth are protected against exploitation and moral and material
abandonment (added by 42nd Amendment, 1976).
– Thus, Art. 39 is very wide in its scope. It requires the state to ensure adequate
means of livelihood, fair distribution of wealth, equal pay for equal work and
protection of children and labour. Specially Art. 39 (b & c) lay the foundations of a
welfare state.
• Art. 39-A: Added to the Constitution by 42nd Amendment, 1976, this article
requires the state to provide for equal justice and free legal aid. In pursuance of this
article, Parliament has passed the Legal Services Authorities Act, 1987.
• Art. 40: This directs the state to organize village panchayats and confer adequate
powers to them so that they can function as units of self-government. Accordingly,
Parliament has passed 73rd Amendment, 1992 which has introduced panchayats in
part IX in the Constitution.
• Art. 41: Under this Article the state is directed to provide right to work, to
education and to public assistance subject to its economic capacity.
• Art. 42: Under this article, the state shall make provision for securing just and
humane conditions of work and maternity relief. The state has enacted laws such as

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the industrial Disputes Act, Minimum Wages Act, Maternity Relief Act, etc., to
implement this article.
• Art. 43: This article directs the state to make efforts to secure living wages and
organize cottage industries in rural areas.
• Art. 43-A: Added by 42nd Amendment, 1976, this article calls for legislation by
the state to ensure workers participation in the management of industries.
• Art. 44: This article contains a very important directive, viz., implementation of a
Uniform Civil Code for the citizens throughout India. The state is supposed to take
steps to establish a Uniform Civil code for all the citizens irrespective of caste,
creed or religion. Unfortunately, despite this provision in the Constitution, there
has been no implementation of uniform civil code since the adoption of the
Constitution. A uniform civil code implies that persons belonging to different
religions and beliefs would be governed by same set of laws in matters of
marriage, divorce, adoption, succession to property, etc
• Art. 45: Provision for free and compulsory education for children till the age of
14 years. However, this article has been amended by 86th Amendment Act, 2002
which has inserted Art. 21A in the constitution making right to education a
fundamental right for all children between 6-14 years of age. Now Art. 45 direct
the state to make provisions for early childhood care and education for all children
till the age of 6 years.

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• Art. 46: This article seeks to protect the educational and economic interests of
SC/STs and other weaker sections. A number of educational facilities have been
extended to SC/STs in pursuance of this article.
• Art. 47: The state has been directed by this article to raise the level of nutrition
and the standard of living and to improve public health. This also includes
prohibition of liquor and intoxicating drugs.
• Art. 48: Organisation of agriculture and animal husbandry. The state under this
article has to organize agriculture and animal husbandry on modern and scientific
lines. This also includes prohibition of killing of cows, calves and other milch and
draught cattle.
• Art. 48A: Added by 42nd Amendment, 1976, this article enjoins on the state task
of protecting and improving environment, forests and wild life. A number of acts
relating to protecting the environment, forests and wild life have been enacted.
• Art. 49: This article obligates the state to protect monuments and places of
national importance.
• Art. 50: Separation of judiciary from the executive in the public services of the
state. This article provides that there should be a separate judicial service free from
executive control in the states. This article has been implemented by amending the
CrPC in 1973 under which the judicial magistrates are being appointed separately
in the states and they are accountable to the High Courts and not to the state
executive.

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• Art. 51: This article requires the state to promote international peace and security,
maintain good relations between nations and respect international laws.
Fundamental Duties (A.51A)
Part IVA of Indian Constitution deals with Fundamental Duties. Originally, the
Constitution of India did not contain these duties. Fundamental duties were added
by 42nd and 86th Constitutional Amendment acts. As of now there are 11
Fundamental duties. Citizens are morally obligated by the Constitution to perform
these duties. However, like the Directive Principles, these are non-justifiable,
without any legal sanction in case of their violation or non-compliance.
Article 51A: Fundamental duties
It shall be the duty of every citizen of India –
(a) to abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for
freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;

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(g) to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity
so that the nation constantly rises to higher levels of endeavour and achievement.
(k) to provide opportunities for education by the parent the guardian, to his child,
or a ward between the age of 6-14 years as the case may be.
Relationship between Fundamental Rights and Directive Principles
Since both the Fundamental Rights and the Directive Principles were of common
origin, it is clear that they both had the same objectives, namely to ensure the goal
of a welfare society envisaged by the Preamble. If the Fundamental rights seek to
achieve the goal by guaranteeing certain minimal rights to the individual as against
State action, the Directives enjoin the State to ensure the welfare of the people
collectively. Whenever the State makes laws, they should be made consistently
with these principles with a view to establishment of an egalitarian society.
The idea of embodying a code of Directive Principles has been borrowed by the
framers of the Constitution from the Irish Constitution of 1937, which contains
similar provisions.
The preamble, the Directive Principles and the Fundamental Rights constitute the
more important features of our Constitution. The Directive Principals of the State

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Policy enshrined in Part IV and the Fundamental Rights, guaranteed in Part III of
the Constitution.
Although Fundamental Rights and Directive Principles appear in the Constitution
as district entities, it was the Assembly that separate them; the leaders of the
freedom struggle had drawn no distinction between the positive and negative
obligations of the states. Both types of rights had developed as a common demand,
products of national and social revolutions, of their almost inseparable intertwining
and of the character of Indian polity itself.
The directive principles, though fundamental in the governance of the country, are
not enforceable by any court in terms of the express provisions of Article 37 of the
Constitution, while fundamental rights are enforceable by the Supreme Court and
the High Court in terms of the express provisions of Article 32 and 226 of the
Constitution. This does not, however, mean or imply any dichotomy between the
two. It social aspect can, however, be amended only by legislation to carry out the
objectives of the directive principles of state policy.
The primary distinction between the Fundamental Rights and Directive Principles
as visualized by the drafters of the Constitution was with regards to the question of
enforceability. Part III of the Constitution was enforceable against the state but
Article 37 expressly provided that Part IV was not enforceable in a court.
Earlier Supreme Court decisions attributed paramount importance to Fundamental
Rights based on this aforementioned Constitutional position and provision. In the
landmark judgment of State of Madras vs. Srimathi Champakam which

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subsequently led to the 1st Constitutional Amendment, Justice Das stated that
directive principles were expressly made unenforceable by Article 37 and therefore
could not override the fundamental rights found in Part III, which were enforceable
pursuant to Article 32.The court opined that fundamental rights were sacrosanct
and could not be curtailed by Directive Principles and asserted that the directive
principles although important in their own respect were required to adhere to the
Fundamental Rights and in the case of conflict Part III would prevail over Part IV.
This view of the apex court was reaffirmed in subsequent landmark decisions such
as Mohd. Hanif Quareshi v State of Bihar and In re Kerala Education Bill,
1957.
These decisions of the apex court were subject to much criticism due to the excess
importance endorsed to Fundamental Rights resulting in the complete neglect of
principles that promoted socio-economic change and development.
The legislature was disappointed with the judiciary’s interpretation and believed
that it was contradictory to what the framers of the Constitution believed. Pandit
Nehru in his speeches in relation to the 1st and 4th Constitutional Amendments
expressly stated his disappointment. He stated, “There is difficulty when the Courts
of the Land have to consider these matters and lay more stress on the Fundamental
Rights than on the Directive Principles. The result is that the whole purpose behind
the Constitution which was meant to be a dynamic Constitution leading to a certain
goal step by step, is somewhat hampered and hindered by the static element being
emphasized a little more than the dynamic element.”

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It is therefore evident that the legislature believed that Fundamental Rights were to
assist the Directive Principles and not vice-versa.
This subsequently led to a transformation in the interpretation of the relationship
between Fundamental Rights and Directive Principles to be more inclusive and
harmonious. In Chandra Bhawan Boarding and Lodging Bangalore v State of
Mysore, the Minimum Wages Act, 1948 was challenged for conferring
unrestricted, unfettered and arbitrary power on the state in determining the
minimum wages. The state argued that it was obligated to provide for minimum
wages in accordance with the Directive Principles. The court held that the
provisions of the Constitution were created to facilitate progress, as intended by the
Preamble and it would be fallacious to assume that the Constitution provided only
for rights and no duties.
Furthermore, it was stated that although Part III encompasses Fundamental Rights,
Part IV was essential in the governance of the country and were therefore
supplementary to each other.
This view was reaffirmed in Kesavanda Bharati v State of Kerala where it was held
that the directive principles were in harmony with the country’s aims and
objectives and the fundamental rights could be amended to meet the needs of the
hour implying that Parts III and IV needed to be harmoniously construed. Although
these judgments were more dynamic in comparison to the previous approach that
the apex court had extended, it still did not satisfy the ideals of the legislature. It
could easily be speculated that the 42nd Amendment in 1976 was to accord

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primacy to the Directive Principles over the Fundamental Rights. The purpose of
the amendment was to make the Directive Principles comprehensive and accord
them precedence over the fundamental rights “which have been allowed to be
relied upon to frustrate socio-economic reforms for the implementing of Directive
Principles”.
This resulted in the resurgence of the debate on the relationship between
Fundamental Rights and Directive Principles. In Minerva Mills Ltd. v Union of
India, the court believed that the harmonious relation between Fundamental Rights
and Directive Principles was a basic feature of the Constitution. It was stated that
Part III and Part IV together comprised of the core of the constitution and any
legislation or amendment that destroyed the balance between the two would be in
contravention to the basic structure of the Constitution. Chandrachud CJ.
reasserted that Parts III and IV are complementary to each other and together they
constitute the human rights of an individual. Reading these provisions
independently would be impossible, as that would render them incomplete and
thereby inaccessible. However, this was not settled as law yet and there was
another hiccup in the subsequent judgments. In Sanjeev Coke Mfg. Co. v M/s
Bharat Coking Coal Ltd., the Supreme Court held that the part of the Minerva
Mills judgment that dealt with Article 31 C of the Constitution was merely obiter
dictum and therefore not binding. The court thus upheld the Coking Coal Mines
(Nationalization) Act, 1972 by granting greater importance to Directive Principles

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than Fundamental Rights in accordance with Article 31C that provided for the
same.
The Sanjeev Coke judgment resulted in a divergence of opinion, which was
ultimately settled in State of Tamil Nadu v L. Abu Kavier Bai. The court referred
to the decision of Constituent Assembly to create two parts for these core
constitutional concepts. It was stated that the purpose of the two distinct chapters
was to grant the Government enough latitude and flexibility to implement the
principles depending on the time and circumstances. The court therefore
considered the Minerva Mills case precedent and recommended a harmonious
construction of the two parts in public interest and to promote social welfare. This
view has been consistently adopted ever since and has been endorsed in Mohini
Jain v State of Karnataka and Unni Krishnan v State of Andhra Pradesh. It can
therefore be construed to be well settled that a harmonious interpretation of
Fundamental Rights and Directive Principles is quintessential in ensuring social
welfare and the apex court is promoting the same view after much deliberation.s
Although it appears to be well established that there is a need for balance and
unanimity in interpreting Fundamental Rights and Directive Principles, this debate
is far from over. The courts off late have played a proactive role in facilitating
socio-economic development at a macro level which requires compromise on a
micro level. Therefore in light of the benefit of the community at large, the
Directive Principles may be used to determine the extent of public interest to limit
the scope of Fundamental Rights.

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