CONSTITUTIONAL LAW 1 (Students notes 2)

FUNDAMENTAL FREEDOMS (Arts. 19 to 35)

FUNDAMENTAL FREEDOMS

I WHAT ARE THE FUNDAMENTAL FREEDOMS

GUARANTEED UNDER ART. 19? What are the restrictions
which can be imposed on the exercise of those rights?

Art. 19 guarantees a bundle of six freedoms – It says:

• 19(1) All citizens shall have the right—

• (a) to freedom of speech and expression;

• (b) to assemble peaceably and without arms

• (c) to form associations or unions or co-operative

societies (97th Amendment, 2011)

• (d) to move freely throughout the territory of India;

• (e) to reside and settle in any part of the country of India;

and

• (f) omitted by 44th amendment, 1978

• (g) to practice any profession, or to carry on any

occupation, trade or business.

• ‘Freedom’ in Art. 19 means absence of control by State.

• Art. 19 guarantees six freedoms to citizens, which are

necessary to promote certain basic rights and
democratic values and oneness and unity of the Nation.
• The above six rights are great and basic rights
recognized and guaranteed to citizens of any free
country.

• All of them may not stand on a common pedestal but

have varying dimensions and underlying philosophies.

• Supreme Court observed in Maneka Gandhi v. UOI, AIR

1978 SC 597 and Kharak Singh v. State of UP, AIR 1963
SC 1295 that there may be other possible rights, not
specifically mentioned in Art. 19(1) but would come
under it.

• These freedoms are guaranteed to citizens.

• A foreigner, a Company or a Municipal committee cannot

invoke Art. 19.

• However, a company has right to file writ petition if

rights of shareholders are also affected—Bennett
Coleman & Co. Ltd. v. UOI, (1972)2 SCC 788.

• These freedoms are not absolute. Clauses (2) to (6)

impose reasonable restrictions.

• Significant characteristics of clauses 19(2) to (6) are:

• (1) Restrictions can be imposed only by or under

authority of law and not by executive action alone.

• (2) Each restriction must be reasonable

• (3) Restriction must be related to the purposes

mentioned in Clauses 19(2) to (6).

• Validity of restriction has to be adjudged by the Court by

a double test—
• (a) Test for reasonableness, and

• (b) Effect and subject matter test.

• “Test of reasonableness should be applied to each

individual statute impugned, and no abstract standard of
general pattern of reasonableness can be laid down.”--
State of Madras v. VG Row, AIR 1952 SC 196

• In Papnasam Labour Union v. Madura Coats Limited, AIR

1995 SC 2200, SC laid down the following principles and
guidelines for considering constitutionality of a statute
and reasonableness of restrictions on the Fundamental
Rights guaranteed by Arts. 19(1) (a) to (g):

• (a) Restriction must not be arbitrary or of an excessive

nature.

• (b) There must be a direct and proximate nexus or a

reasonable connection between the restriction imposed
and the object sought to be achieved.

• (c) No abstract or principle of universal application can

be laid down. It depends on facts and circumstances of
each case.

• (d) in interpreting constitutional provisions, Court should

be alive to the felt need of the society and complex
issues facing the people which the legislature intends to
solve through effective legislation.

• (e) In appreciating such problems and felt need of the

society the judicial approach must necessarily be
dynamic, pragmatic and elastic.
• (f) Court should examine whether social control as
envisaged in Art. 19 is being effectuated by the
restriction imposed on the Fundamental Right.

• (g) Rights are not absolute or unconditional. Each right

is subject to reasonable restriction imposed by
legislature in public interest. Court should examine
whether the restriction is meant to protect social
welfare satisfying the need of prevailing social values.

• (h) Reasonableness has to be tested both from

procedural and substantive aspects.

• (i) A restriction imposed on a Fundamental Right

guaranteed by Art. 19 must not be arbitrary, unbridled,
unanalyzed and excessive and also not unreasonably
discriminatory. Therefore, a restriction to be reasonable,
must also be consistent with Art. 14 of the Constitution.

• (j) In judging reasonableness of a restriction imposed

u/Art. 19(6), Court has to bear in mind the Directive
Principles of State Policy.

• (k) Ordinarily, any restriction so imposed which has the

effect of promoting or effectuating a Directive Principle
can be presumed to be reasonable restriction in public
interest.

• A law affecting a Fundamental Right may be held bad for

sheer vagueness and uncertainty—K A Abbas v. UOI, AIR
1973 SC 123.
• Under certain circumstances, a law depriving a citizen of
his Fundamental Rights may be regarded as reasonable—
Narendra Kumar v. UOI, AIR 1960 SC 430.

• Too remote a connection between a restriction and the

constitutionally authorised ground for restriction will
render the law invalid—Supdt. District Jail v. Lohia, AIR
1960 SC 633.

• EFFECT AND SUBJECT MATTER TEST

• Courts also look into the subject-matter or effect of

legislation.

• In Bennett Coleman & Company v. UOI, AIR 1973 SC 106,

Govt. argued in support of newsprint policy, that subject
matter was rationing of imported commodity and not
freedom of speech, and test to adjudge validity of a
regulatory provision should be its subject-matter, its pith
and substance and not its effect or result. Court rejected
the argument and enunciated the test:

• Court said: “no law or action would state in words that

rights of freedom of speech and expression are abridged
or taken away”. In the instant case, object of the
restrictions imposed on newspapers has nothing to do
with availability of newsprint or foreign exchange
because these were post-quota restrictions which fell
outside the purview of Art. 19(2).

• Effect test was applied in Maneka Gandhi and Bank

Nationalisation case, AIR 1970 SC 564.
II EXPLAIN THE FUNDAMENTAL RIGHT OF FREEDOM OF
SPEECH AND EXPRESSION. Is it absolute? What are the
restrictions that can be imposed on freedom of speech and
expression?

• IMPORTANCE OF FREEDOM OF SPEECH (Art. 19(1)

Freedom of speech is bulwark of democratic govt. In a

democracy, freedom of speech and expression opens up
channels of free discussion of issues. It is a basic human
right and a natural right. It embraces within its scope
freedom of propagation and interchange of ideas,
dissemination of information which would help formation of
one’s opinion and view point and debates on matters of
public concern.

• It is not merely a right of speech and expression but a

right to freedom of speech and expression. Enumeration
of other rights is not by reference to freedom—Dharam
Dutt v. UOI, (2004) 1 SCC 712.

• Freedom of speech u/Art. 19(1)(a) includes right to

express one’s views and opinions at any issue through
any medium, by words of mouth, writing, printing,
picture, film, movie etc. This right is subject to
reasonable restriction in A. 19(2).

• Right to paint or sing or dance or to write poetry or

literature is also covered by Art. 19(1)(a) because the
common basic characteristic of all these is freedom of
speech and expression—Maneka Gandhi.

• RIGHT TO INFORMATION INCLUDES RIGHT TO ACCESS

INFORMATION
• Under the US constitution, “it is the right of the public to
receive suitable access to social, political, aesthetic,
moral and other ideas and experiences”—Kliendiest v.
Mandel, 408 US 753.

• RIGHT TO INFORMATION INCLUDES RIGHT NOT TO

HEAR

• Right to speech implies right to silence. It implies

freedom, not to listen and not to be forced to listen. Use
of loudspeaker may be incidental to the exercise of right
but its use is not a matter of right, or part of the rights
guaranteed by Art. 19(1)—Re Noise Pollution (V), (2005)
5 SCC 733.

• Not singing National Anthem, while standing and paying

no disrespect is exercise of fundamental right under Art.
19(1)- Bijoy Emmanuel v. State of Kerala, 1990 Suppl SCC
615

• RIGHT TO RECEIVE INFORMATION

• In People’s Union for Civil Liberties v. UOI, SC held that

right of citizen to receive information on matters relating
to public acts flow from the Fundamental Right enshrined
in Art. 19(1)(a).

• Voters have right to know about the educational

qualifications of the candidates contesting in an
election. The Fundamental Right is concomitant to
Electoral Rights—Mairembam Prithviraj v. Pukhrem
Sharatchandra Singh, (2017) 2 SCC 487.
• In PUCL v. UOI, SC held that voter has a fundamental
right u/A. 19(1)(a) to know the antecedents of a
candidate and that S. 33B of Representation of People
Act, 1951 to the effect that no candidate shall be liable
to disclose or furnish any information in respect of his
election, was ultra vires of Art. 19(1).

• In State of UP v. Raj Narain, SC held that Art. 19(1)(a)

not only guarantees freedom of speech and expression,
it also ensures and comprehends right of the citizen to
know, right to receive information regarding matters of
public concern.

• In Association for Democratic Reforms v. UOI, AIR 2001

Del 127, Delhi High Court has emphasized that right to
receive information acquires great significance in the
context of elections. Court further held that the Election
Commission shall secure for the voters the information
detailed in the order.

• Delhi High Court in UOI v. Association for Democratic

Reforms, JT 2002(4) SC 501 held that Election
Commission must make it mandatory for the candidates
to give details on the following counts:

• (1) whether the candidate is convicted or acquitted or

discharged of any criminal offence in the past – whether
he has been punished with imprisonment or fine?

• (2) prior to six months of filing of nomination, whether

the candidate has been accused in any pending case, of
any offence punishable with imprisonment for 2 years or
 more. Whether charge is framed or cognizance is taken
by the Court of law. If so, details thereof.

• (3) The assets (immovable, movable, bank balances etc.)

of a candidate and of his/her spouse and that of
dependents.

• (4) Liabilities, if any, particularly whether there are any

over-dues of any public financial institution or
government dues

• (5) Educational qualification of the candidate.

• Right to information u/A. 19(1) (a) is a facet of right to

freedom of speech and expression. It is not absolute and
is limited by right to privacy—Thalapalam Service
Cooperative Bank Ltd. v. State of Kerala, (2013) 16 SCC
82.

• REASONABLE RESTRICTIONS U/ART. 19(2)

• Reasonable restrictions can be imposed by the Govt. to

withhold information relating to following matters:

• (1) International relations

• (ii) National security (including defence) and public

safety

• (iii) Investigation, detection and prevention of crime

• (iv) Internal deliberations of the Govt.

• (v) Information received in confidence from a source

outside the Govt.
• (vi) Information which if disclosed, would violate the
privacy of the individual

• (vii) Information of an economic nature (including trade

secrets) which if disclosed would confer an unfair
advantage on some persons or concern, or, subject some
person or Govt. to unfair disadvantage.

• In the name of artistic freedom or critical thinking or

generating idea of creativity, a poet or writer cannot put
into voice or image of a “historically respected
personality” like Mahatma Gandhi, such language, which
may be obscene, Devidas Ramachandra Tuljapur v. State
of Maharashtra, (2015) 6 SCC 1.
• Free expression cannot be equated or confused with a
licence to make unfounded and irresponsible allegations
against the judiciary—Radha Mohan Lal v. Rajasthan
High Court, (2003) 3 SCC 427.

• (viii) Information which is subject to a claim of legal

professional privilege eg. communication between a
legal adviser and client; between physician and patient.

• (ix) Information about scientific discoveries

• There has to be freedom of access to information but,

such freedom cannot violate a law that holds the field
such as Pre-Natal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994—Sabu Mathew George v. UOI,
(2017) 2 SCC 514.

• Freedom of speech u/Art. 19(1)(a) is subject to limitation

of Art. 19(2).
• PICKETING, DEMONSTRATION AND STRIKE

• ‘Peaceful picketing is free speech. Picketing or

demonstration is a non-violent act of persuasion—
Thornhill v. Albama, 310 US 88 (1940)

• Picketing a North Indian shop and dissuading intending

customers from purchasing in that shop was held to be
not warranted by Art. 19(1)(a). Art. 15(1) prohibits
discrimination on the ground of place of birth.

• In O.K. Gosh v. EX Joseph, AIR 1963 SC 812, rule which

prohibited Govt. servants from participating in any
demonstration was held to be invalid.

• BANDH

• A call for bandh is clearly different from a call for general

strike or hartal. In Bharat Kumar K Pallicha v. State of
Kerala, AIR 1997 Ker. 291, Full Bench of Kerala High
Court declared “Bandh” organized by political parties as
unconstitutional, being violative of Fundamental rights of
the people.

• Bandh interferes with the exercise of the Fundamental

Freedoms of other citizens, in addition to causing
national loss in many ways.

• No party has a right to organize a bandh

causing/compelling the people by force to stop them
from exercising their lawful activities—Ranchi Bar
Association v. State of Bihar—AIR 1999 Pat. 169.

• RIGHT TO TRAVEL ABROAD

• Right to freedom of speech and expression guaranteed
by A. 19(1)(a) is exercisable not only in India but outside
as well, Maneka Gandhi v. UOI.

• TELEPHONE TAPPING

• When a person is talking on telephone, he is exercising

his right to freedom of speech and expression. Telephone
tapping, accordingly, infracts A. 19(1)(a) unless it falls
within grounds of restrictions falling u/A. 19(2)—People’s
Union for Civil Liberties v. UOI, AIR 1997 SC 568.

• Pre-censorship of films is justified because a film caters

for mass audience. It has unique capacity to disturb and
arouse feelings and has as much potential for evil as it
has for good. K.A. Abbas v. UOI, AIR 1971 SC 481;
Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

• GROUNDS OF RESTRICTIONS U/A. 19(2):

• 1. Security of State and public order.

• Public order is virtually synonymous with public peace,

safety and tranquility—OK Gosh v. EX Joseph, AIR 1962
SC 812.

• ‘Public order’ covers a small riot, an affray, breaches of

peace or acts disturbing public tranquility.

• Restrictions on the use of loudspeakers at public

meetings is justified.

• S. 124 A IPC punishes any person who by words, spoken,

written attempts to bring into hatred or contempt, or
excites disaffection towards the Govt. established by
law.
• 2. SOVEREIGNTY AND INTEGRITY OF INDIA

• Questioning the territorial integrity or frontiers of India

in a manner it is or is likely to be prejudicial to the
interest or safety of security of India is punishable.

• 3. FRIENDLY RELATIONS WITH FOREIGN STATES

• Persistent and malicious propaganda against a foreign

power having friendly relations with India may cause
considerable embarrassment to India.

• U/Art. 367(3), a foreign State means any State other than

India. President, by law, may declare any State not to be
a foreign State for such purposes as may be specified in
the order.

• 4. INCITEMENT TO AN OFFENCE.

• Incitement and abetment are punishable offences.

Incitement to serious and aggravated offences like
murder may be punished as involving security of the
State—Shailabala case, AIR 1951 Pat. 12

• 5. CONTEMPT OF COURT

• U/A. 129 and 215, Supreme Court and High Courts

respectively have power to take action for contempt of
court. Contempt of other courts can be punished by High
Courts under Contempt of Courts Act, 1952. They are
reasonable restrictions u/A. 19(2).

• DEFAMATION

• Defamation is publication of a statement which reflects

on a person’s reputation and tends to lower him in the
 estimation of right-thinking members of society
generally or tends to make them shun or avoid him. It is
both a crime and a tort.

• DECENCY OR MORALITY

• Ss. 292 to 294 IPC lists some offences like selling

obscene books, obscene things to young persons,
committing an obscene act, or singing obscene song in
public place etc.

• Test of obscenity is whether tendency of matter charged

as obscene is to deprave or corrupt those whose minds
are open to such immoral influences and into whose
hands a publication of this sort is likely to fall—R v.
Hicklin, LR 3 QB 360

• All grounds on which action can be taken u/S. 144 CrPC

fall within the term ‘public order’. Decency and
defamation are two grounds mentioned in Cl. (2).
Law of torts can be invoked for Damages; and also
damages for invasion of right to privacy and defamation
u/s. 499/500 IPC.

III WHAT IS MEANT BY FREEDOM OF THE PRESS? Explain the

provisions of the Constitution dealing with Freedom of the
press. Whether freedom of the press is unrestricted?
Explain what is meant by fourth Estate.

There is no specific provision in the Constitution of India

guaranteeing freedom of the press. The same is covered
under Art. 19(1) and therefore liable for restrictions under
Art. 19(2).
• Journalistic freedom is same and not higher than that
available to other citizens. It is subject to reasonable
restrictions under Article 19(2). Doctrine of
proportionality is applicable to test reasonableness of
restriction. One of the tests is that measure adopted
must be the least measure to effectively achieve
legitimate State aim, Arnab Ranjan Goswami v. Union of
India, (2020) 14 SCC 12.
• Hostile criticism of the Judges or judiciary amounting to
scandalizing the court is not protected under Article
19(1)(a) of the Constitution, Prashant Bhushan, In re
(Contempt Matter), (2021) 3 SCC 160.
• In US, the first amendment specifically protects the
Press.

• Prime purpose of free press guarantee is regarded as

creating a fourth institution outside Govt. as an
additional check on the three official branches—
Legislature, Executive and Judiciary—New York Times v.
Sullivan, 376 US 254.

• It is primary function of the press to provide

comprehensive and objective information on all aspects
of the country’s social, economic and political life.

• In Beauharais v. Illinois, 72 S. Ct. 1070, US Supreme

Court emphasized that it has power to nullify “action
which encroaches on freedom of utterance under the
guise of punishing libel”.
• In India, there is no specific provision ensuring freedom
of press. It is implied from the freedom of speech and
expression guaranteed in Art. 19(1)(a).

• In Indian Express Newspapers (Bombay) P Limited v.

UOI, AIR 1986 SC 515, SC held that primary duty of Court
is to uphold said freedom and invalidate all laws or
administrative actions which interfere with freedom of
the press contrary to constitutional mandate.

• In Sakal Papers v. UOI, AIR 1962 SC 305, the Newspaper

(Price and Page) Act, 1956 sought to regulate the number
of pages according to the price charged, prescribed the
number of supplements to be published, and regulate the
size and area of advertisements in relation to other
matter contained in a newspaper.

• SC ruled the Order invalid because its purpose was to

reduce circulation of some newspapers by making their
price unattractively high for the readers. Reduction in
the area for advertisements would reduce revenue
forcing the newspapers to raise their prices which was
also bound to affect circulation. It was not a reasonable
restriction under Art. 19(2).

• In Bennett Coleman & Company v. UOI, AIR 1973 SC 106,

Govt. order regulating consumption of imported
newsprint was in question. A system was evolved
whereby consumption of newsprint by a newspaper
during 1970-71 and 71-72 (whichever was less) was
taken as the base.
• For dailies with circulation up to 1,00,000, 10 percent
increase in basic entitlement was granted but for
newspapers with larger circulation, increase was only to
be 3 %. Newspapers with less than 10 pages daily could
raise the number of pages by 20 percent subject to
ceiling of 10. A few more restrictions were imposed on
the user of newsprint.

• Dominant direction of the policy was to curtail growth of

big newspapers. The policy was challenged in the SC.
SC, by majority, declared the policy unconstitutional and
held that Govt. could not, in the garb of regulating
distribution of newsprint, control the growth and
circulation of newspapers.

• OTHER ASPECTS OF FREEDOM OF PRESS

• Newspaper reporters can interview the prisoners

condemned to death if they are willing to be interviewed,
unless there are weighty reasons for denying the
opportunity.

• AP High Court in M. Hasan v. State of AP, AIR 1998 AP

35, held that denial of permission to a press reporter to
interview a willing condemned prisoner on a ground not
falling within Art. 19(2) is not valid. “Any such denial is
deprivation of a citizen’s Fundamental Right of freedom
of speech and expression”. Convicts are not wholly
denuded of their Fundamental Rights.

• Court may however direct that certain matters shall not

be reported. In Naresh Mirajkar v. State of Maharashtra,
AIR 1967 SC 1, trial court ordered that evidence of a
 witness should not be published in newspapers.
Argument that the order infringed the Fundamental Right
of the press reported u/Art. 19(1)(a) was rejected by the
Supreme Court.

• In Hindustan Times v. State of U.P., (2003) 1 SCC 591,

State Govt. issued executive orders u/A. 162 directing
deduction of 5% from the bills payable to newspapers
having circulation of more than 25,000 copies for
publication of Govt. advertisement for implementation of
its “Pension and Social Security Scheme for Full time
Journalists. SC held the order ultra vires.

• Newspapers have two aspects, one falling under Art.

19(1)(a) read with Ar. 19(2) and the other falling under
Art. 19(1)(g). The latter can be regulated u/Art. 19(6).

• Freedom of speech cannot be curtailed in the interests

of the general public but the freedom to carry on
business can be restricted.

• In Express Newspapers v. UOI, AIR 1958 SC 578, the

Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955 regulating
conditions of service of employees of newspaper
establishment (Gratuity, hours of work, leave, wages
etc.) was challenged on the ground that it would
adversely affect financial position of marginally situated
newspapers which might be forced to close down and
indirectly it was to curtail the circulation of newspaper.
• Court held that Press had no immunity from general laws
like tax or industrial laws. The Act could not be held
invalid under Art. 19(1)(a).

• U/s. 99A Cr.PC, a State Govt. can forfeit any book or

newspaper if it appears it to contain any seditious
matter, or matter intended to promote feelings of enmity
or hatred between different classes of citizens or matter
intended to outrage the religious feelings of a class
citizens. The provision is valid u/A. 19(2), as having been
made in the interest of public order, decency or
morality—Veerabrahman v. State, AIR 1969 AP 572.

• ADVERTISEMENTS

• An advertisement is a form of speech but its true

character is to be determined by object which it seeks
to promote.

• Advertisements as commercial speech has two facets –

Tata Press Ltd. v. Mahanagar Telephone Nigam Limited,
AIR 1995 SC 2438:

• 1. Though a commercial transaction, it disseminates

information regarding product advertised. Public at large
stands benefited by information made available through
advertisement. In democracy, free flow of information is
indispensable. Curtailment would affect Fundamental
Right u/A. 19(1)(a) on aspects of propagation, publication
and circulation.

• 2. Public at large has a right to receive commercial

information. Art. 19(1)(a) protects the right of an
individual to listen, read and receive the said speech.
• However, an advertisement promoting drugs and
commodities, sale of which is not in public interest,
could not be regarded as propagating any idea and as
such could not claim protection of Art. 19(1)(a).

• In Indian Express Newspapers (AIR 1986 SC 515), SC

observed: “We are of the view that all commercial
advertisements cannot be denied protection of A.
19(1)(a) merely because they are issued by business
men”.

• “Commercial speech” is part of freedom of speech. Art.

19(1)(a) protects the rights of an individual “to listen,
read and receive” “the commercial speech”.

IV EXPLAIN THE FREEDOM GUARANTEED UNDER ART.

19(2) AND RESTRICTIONS THAT CAN BE IMPOSED ON IT.

• FREEDOM OF ASSEMBLY: ARTICLES 19(1)(B) AND 19(3).

• What is guaranteed is right to assemble peaceably and

without arms. State can make any law imposing
reasonable restrictions u/A. 19(3) on exercise of this
right in the interests of public order and sovereignty and
integrity of India.

• Demonstrations, processions and meetings u/A. 19(1)(a)

also fall u/A. 19(1)(b). Right to strike is not available.

• A. 19(1)(b) does not confer on any one a right to hold

meetings in govt. premises. Railways can validly prohibit
holding of meetings in their premises, in the same
manner as any private individual—Railway Board vl
Niranjan Singh, AIR 1969 SC 966.
• But a right to hold public meetings on govt. property (like
a maidan) can be created by usage—D Anantha Prabhu v.
Dist. Collector, AIR 1975 Ker 117.

• In India, people had a right to hold meetings on public

streets before the Constitution, subject to control of
appropriate authority regarding time and place and
consideration of public order.

• Permission for meetings cannot be refused in exercise of

arbitrary powers—Mathai v. State, AIR 1954 TC 47;
Dasappa v. Dy Additional Commissioner, AIR 1960 Mys
57.

V EXPLAIN THE FREEDOM GUARANTEED UNDER ART.

19(3) AND RESTRICTIONS THAT CAN BE IMPOSED ON IT.

Art. 19(1) guarantees freedom to form association, unions

or co-operative societies

• Right to form association is the very lifeblood of

democracy. Without such a right political parties cannot
be formed and democratic form of govt. cannot be run
properly.

• This is of course subject to reasonable restrictions.

Under Art. 19(4), this freedom can be restricted in the
interests of the sovereignty and integrity of India or
public order or morality.

• In State of Madras v. VG Row, AIR 1952 SC 196, a law

empowered State Govt. to declare an association
unlawful on the ground that such association constituted
a danger to public peace, or interfered with maintenance
 of public order, or the administration of the law. Govt.
was, however, not authorized to disclose any facts which
it regarded as being against public interest.

• S C declared the ground unconstitutional because the

test to declare an association was ‘subjective’, without
disclosing the grounds.

• In OK Gosh v. EX Joseph, AIR 1963 SC 812 SC invalidated

a rule which provided that no govt. servant could join or
continue to be a member of any services association
which the govt. did not recognize.

• Right u/A. 19(1)(c) extends only to formation of an

association or union. In so far as activities of association
or union are concerned, or object of union/association,
they are subject to such laws as may be framed. Such
laws cannot be tested u/A. 19(4). Even a very liberal
interpretation of Art. 19(1(c) cannot mean that the trade
unions have a guaranteed right to strike and right of
strike may be controlled by appropriate industrial
legislation—All India Bank Employees’ Association v. The
National Industrial Tribunal, AIR 1962 SC 171.

• In Balakotaiah v. UOI, AIR 1958 SC 242, certain railway

employees belonging to Worker’s Union carried on
agitation for a general strike to paralyse
communications and movement of essential supplies.
They were charge-sheeted and their service terminated.
It was argued that employees were terminated because
they were communists. Court rejected their arguments
and held that impugned order did not prevent them from
 continuing to be communists or trade unionists. Their
right to form association u/A. 19(1)(c) did not give them
the Fundamental Right to remain in Govt. service.

• In MH Devendrappa v. Karnataka State Small Industries

Development Corporation, AIR 1998 SC 1064, Court held
that it has to consider the reasonableness of service
rules and discipline in order that they may discharge
their public duties as govt. servants in a proper manner
without undermining the prestige or efficiency of the
organization.

• UNLAWFUL ACTIVITIES (PREVENTION) Act, 1967

authorizes the Central Govt. to declare by notification in
official gazette an association as unlawful on certain
grounds mention in S. 2(y) of the Act. A Tribunal was to
be constituted consisting of a sitting High Court Judge
to decide whether or not there is sufficient cause for
declaring an association unlawful.

• GOVERNMENT SERVANTS

• In Delhi Police Non-Gazetted Karmachari Sangh v. UOI,

AIR 1987 SC 379, validty of Police Forces (Restriction of
Rights) Act, 1966 which imposes certain restrictions on
enjoyment of Fundamental Rights on members of the
police force was upheld u/A. 33 and 19(4).

• A rule compelling a member of the police force to

withdraw his membership of an association as soon
recognition is withdrawn is also valid u/A. 33.

• 97th amendment inserting “cooperative societies” in Art.

19(1)(c) was struck down by SC because the amendment
 was not ratified by 1/3rd of the States—Union of India v.
Rajendran N Shah & another

VI EXPLAIN THE FUNDAMENTAL RIGHT OF FREEDOM OF

MOVEMENT AND FREEDOM TO RESIDE IN ANY PART OF
THE COUNTRY AND RESTRICTIONS THEREON.

• Art. 19(1)(d) and (e) guarantee citizens right to feely

move or to reside wherever they like within Indian
territory. A citizen can move freely from one State to
another or from one place to another within a State.

• The two rights go together in most cases.

• A. 19(e) applies to only citizens and not to foreigners.

• Under Art. 19(5) Govt. may by law impose reasonable

restrictions in the interests of the general public or for
the protection of the interests of any Scheduled Tribe.

• In Rupinder Singh Sodhi v. UOI, AIR 1983 SC 65, Punjab

Akalis threatened to hold a demonstration in Delhi on the
occasion of inauguration of Asian Games. Govt. of
Haryana and UP took stringent means to frustrate such
demonstration.

• SC held that police is entitled to impose reasonable

restraints on physical movement of members of public in
order to protect public property and avoid needless
inconvenience to other citizens in their lawful pursuits.

• WEARING HELMETS by motor cyclists is mandated by

Motor Vehicles Act. The rule was challenged as
infringing free movement of two-wheeler rider. SC
refused to accept the argument and held that the rule is
 made for benefit and welfare of and safe journey of
person riding and to prevent accidents and not to curtail
freedom of movement.

VII CRITICALLY EXAMINE THE RIGHT TO FREEDOM OF

TRADE AND RESTRICTIONS THEREON

• Art. 19(1)(g) guarantees all citizen right to practice any

profession, or to carry on any occupation, trade or
business.

• U/A. 19(2), state is not prevented from making a law

imposing in the interests of general public, reasonable
restrictions on the exercise of the above right.

• Such law may be

• (i) a law relating to professional or technical

qualifications necessary for practicing or carrying on any
occupation, trade or business; or

• (ii) a law relating to carrying on by State or by

corporation owned or controlled by it, of any trade,
business, industry or service whether to the exclusion,
complete or partial of citizens or otherwise.

• Despite Art. 19(1)(g), govt. enjoys power to regulate and

order the economy in any way it pleases. A number of
laws or regulations have been made under various
provisions of Directive Principles of State Policy.

• Any restriction on the same must be in accordance with

Art. 19(6), inclusive of the test of
proportionality, Anuradha Bhasin v. Union of
India, (2020) 3 SCC 637
• Art. 19(6)(ii) enables State to make laws for creating
State monopolies either partially or complete in respect
of any trade or business or industry or service.

• Law relating to such trading activities must be presumed

to be reasonable and in the interest of the general
public—Akadasi Pradhan v. State of Orissa, AIR 1963 SC
1047.

• State can carry on trade under its own law or under a law
passed by Parliament.

• Art. 298, Union and each state has power to carry on any
trade or commerce.

• State is not required to justify its trade monopoly as a

‘reasonable restriction’ and being in the ‘interests of
general public’—New Bihar Biri Leaves Company v. State
of Bihar, AIR 1981 SC 679.

• Right of citizen to carry on trade has been subordinated

to right of State to create a monopoly in its favour—
Ramachandra v. State of Orissa, AIR 1956 SC 298.

• In Cooverjee v. Excise Commissioner, Ajmer, AIR 1954

SC 220, SC ruled that a citizen has no privilege or
inherent right to sell intoxicating liquors in retail sale

• In Nashirwar v. State of Madhya Pradesh, AIR 1975 SC

360, SC held that there was no fundamental right to carry
on trade in liquor because of the reason of public
morality, public interest and harmful and dangerous
character of liquor.
 • In Har Shankar v. Dy ET Commissioner, AIR 1975 SC
1121, SC observed: “There is no fundamental right to do
trade or business in intoxicants. In certain
circumstances, restriction may amount to prohibition.

• No person has any Fundamental Right to carry on trade

in any noxious or dangerous goods like intoxicating
drugs or intoxicating liquors—Southern Pharmaceuticals
& Chemicals v. State of Kerala, AIR 1981 SC 1862.

• BETTING AND GAMBLING are not trade and fall outside

Art. 19(1)(g).

VIII WHAT ARE THE CONSTITUTIONAL PROTECTIONS

GUARANTEED TO ACCUSED PERSONS?

Art. 20 guarantees three constitutional rights:

1. Protection against ex post facto law

2. Rule against “double jeopardy”
3. Privilege against “self-incrimination”

(1) PROTECTION AGAINST EX POST FACTO LAW:

Art. 20(1) has two parts – Part 1

A person is to be convicted for violating a law in force
when act charged is committed. A law enacted later,
making the act done earlier as an offence will not make
the person liable for being convicted under it—Kanaiyalal
v. Indumati, AIR 1958 SC 444.
Illustration: S. 304B IPC was enacted on 19.11.1986
making dowry death punishable as an offence under IPC.
Being a new offence, by virtue of Art. 20(1), S. 304B IPC
 cannot be applied to a dowry death which took place
before 19.11.1986, say, in 1984.
Offence is any act or omission made punishable by any
law for the time being in force – S. 3(38) General Clauses
Act.
Art. 20 relates to constitutional protection given to
persons who are charged with a crime before a criminal
court, and cannot be claimed against preventive
detention—Prahlad v. State of Bombay, AIR 1952 Bom. 1
A tax can be imposed retrospectively—Sundararamier &
Co. v. State of AP, AIR 1958 SC 468.
What is prohibited u/A. 20(1) is only conviction or
sentence, but not trial under an ex post facto law. A trial
under a procedure different from what obtained at the
time of commission of offence or by a court different from
that which had competence at the time cannot ipso facto
be held unconstitutional—Mohan Lal v. State of
Rajasthan.
• 20(1) Part 2 immunizes a person from a penalty greater
than what he might have incurred at the time of his
committing the offence.
• X committed an offence in 1947 under P C Act, which
prescribed punishment of imprisonment or fine or both.
In 1949, by amendment, punishment was enhanced—SC
held that enhanced punishment could not apply to
offence committed in 1947.—Kedar Nath Bajoria v. State
of West Bengal, AIR 1953 SC 404.
Imposing or increasing a penalty with retrospective
effect for violation of a taxing statute does not infringe
Art. 20(1).
• An ex post facto law which mollifies the rigour of a
criminal law is not within the prohibition of Art. 20(1). A
position beneficial to the accused can be invoked.
• A 16 year old boy was found guilty and sentenced to six
months and fine in May 31, 1962. His appeal was
dismissed by Sessions Judge on 22.9.1962 and High
Court on 27.9.1962. On 1.9.1962, Probation of Offenders
Act had come into force. Supreme Court applied the
provisions of Probation of Offenders Act stating that an
ex post facto law which only mollifies the rigour of a
criminal law does not fall within the said prohibition.
Though retrospective in operation, it is still valid—Rattan
Lal v. State of Punjab, AIR 1965 SC 150.
(2) RULE AGAINST “DOUBLE JEOPARDY”

AUTREFOIS ACQUIT / AUTREFOIS CONVICT

Nemo debet bis vexari – a man must not be put twice in

peril for the same offence is a well-established English
Common Law principle.
If a person is indicted again for the same offence in a
court, he can plead, his former acquittal or conviction as
a complete defence.. He can take the plea of autrefois
acquit or autrefois convict– S. 300 Cr.PC.
5th Amendment to US Constitution provides inter alia:
“Nor shall any person be subject for the same offence to
be put twice in jeopardy of life or limb”.
S. 26 of General Clauses Act, 1897 further goes to
protect accused from double prosecution under two or
more enactments.
This principle was thus in existence even before the
Constitution. But the principle is narrower than the
English and American rule.
 Art. 20(2) enunciates only autrefois convict and not
autrefois acquit.
When a person is neither convicted nor acquitted of
charges against him in the first trial, a retrial in such a
case would not amount to double jeopardy—OP Dahiya v.
UOI, (2003) 1 SCC 122.
• When a trial has for some reason become abortive either
because of some inherent defect or illegality affecting
validity of the trial, a second trial is not barred by Art.
20(2)—Mohd Safi v. State of West Bengal, AIR 1966 SC
69.
• Where there are two distinct offences made up of
different ingredients, embargo u/A. 20(2) or S. 26 Gl.
Clauses Act, 1897 has no application, though the
offences may have some overlapping features.—State v.
Navjot Sandhu (2005) 11 SCC 600
• Art. 20(2) can operate as a bar only when second
prosecution and punishment is for identical offence for
which the person has already been prosecuted and
punished earlier. Ingredients of the offence must be the
same.
• In State of Bombay v. SL Apte, AIR 1961 SC 578, a person
was convicted u/s. 409 IPC, for criminal breach of trust.
His later prosecution under the Insurance Act would not
be barred u/A. 20(2).
• When a civil servant is dismissed from govt. service on
the ground of misbehaviour after a departmental enquiry,
his later prosecution on the same charges would not be
barred by A. 20(2), because the earlier enquiry could not
be regarded as prosecution—SA Venkataraman v. UOI,
AIR 1954 SC 375.
• In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325,
a person, who arrived from abroad was found in
possession of gold in violation of customs law. Customs
authorities confiscated the gold. Later he was
prosecuted before a criminal court under Foreign
Exchange Regulation Act. He raised plea of autrefois
convict. SC held that proceedings before customs
authorities did not constitute ‘prosecution’ of appellant
and penalty imposed on him did not constitute
‘punishment’ by a judicial tribunal.
20(3) PRIVILEGE AGAINST SELF-INCRIMINATION
• Privilege against self-incrimination is a fundamental
canon of common law criminal jurisprudence.
• Under British common law, a person accused of an
offence shall not be compelled to discover documents or
objects which incriminate himself.
• Characteristic feature of the principle in Art. 20(3) are:
• (i) that the accused is presumed to be innocent
• (ii) that it is for the prosecution to establish his guilt, and
• (iii) that the accused need not make any statement
against his will
If accused can be compelled to give evidence against
himself, prosecution will try to extract confession in
every case even against innocent persons,
• Art. 20(3) contains the following components:
• (1) it is a right available to a person ‘accused of an
offence’;
• (2) it is a protection against ‘compulsion’ to be a witness;
• (3) it is a protection against such compulsion resulting in
his giving evidence against himself.
• If any of these ingredients is missing, Art. 20(3) cannot
be invoked.
• Every positive volitional act which furnishes evidence is
testimony.
• Supreme Court decision in – Nandini Satpathy v. OL Dani,
AIR 1978 SC 1025 that a suspect is not an accused and
therefore protection u/A. 20(3) cannot be claimed was
overruled in Kartar Singh v. State of Punjab, (1994) 3 SCC
569. SC upheld dissenting view of Justice V R Krishna
Iyer in Nandini Satpathy that protection u/Art. 20(3) is
available even to a suspect.
• Several types of evidence are excluded from the purview
of A. 20(3).
• A. 20(3) would not include signature, thumb impression,
impression of palm or foot or fingers, or specimen
handwriting or exposing parts of his body by an accused
for the purpose of identification – State of UP v. Boota
Singh, AIR 1978 SC 1770.
• In State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC
1808, SC held that A. 20(3) protects a person who is
accused of an offence and not those questioned as
witness. A person who voluntarily answers questions
from the witness box waives the privilege.
• Protection u/A. 20(3) is available only in criminal
proceedings or proceedings of a criminal nature before a
court of law or tribunal before which a person may be
accused of an offence as defined in S. 3(38) of General
Clauses Act.
• Protection u/A. 20(3) does not extend to parties and
witnesses in civil proceedings or proceedings other than
criminal—Shyam Sundar Chowkhani v. Kajal Kanti
Biswas, AIR 1999 Gau 101.
• Accused may be in possession of a document in his own
handwriting or which contains his signature of his thumb
 impression. Production of such a document, with a view
to comparison of writing or signature or impression “is
not the statement of an accused, which can be said to
be of the nature of personal testimony—Kathi Kalu.
• A. 20(3) is directed against self-incrimination by an
accused. Self-incrimination must mean conveying
information based upon personal knowledge of the
person giving the information and cannot include merely
the mechanical process of producing documents in court
which throw light on any point in controversy.
• A. 20(3) is not violated when accused is compelled to
stand up and show his face for the purpose of
identification for it does not amount to giving of
testimony as the physical facts which are noticed speak
for themselves—Pakhar Singh v. State of Punjab, AIR
1958 Punj 204.
• If self-incriminatory information has been given by an
accused person without any threat, that will be
admissible in evidence and will not be hit by Art. 20(3)—
State of UP v. Deoman Upadhaya, AIR 1960 SC 1125.
• Prohibition is against compelling accused to be a
witness against himself. If he voluntarily gives
statement, that is not prohibited. POTA and certain other
Acts permit Investigation officers to record voluntary
statements by accused persons. Before recording such
statements, certain statutory guidelines have been
incorporated:
• (a) The police officer shall warn the accused that he is
not bound to make the confession and if he does so, it
may be used against him.
• (b) The confession shall be recorded in an atmosphere
free from threat or inducement and shall be in the same
language in which the person makes it.
• Privilege u/Art. 20(3) is available not only to an individual
but even to an incorporated body, if accused of offence—
MP Sharma v. Satish, AIR 1954 SC 300.
• ARTICLE 21 – RIGHT TO LIFE AND PERSONAL LIBERTY
IX Explain Right to Life and Personal Liberty, as stated
by the Supreme Court through its decisions.

• Art. 21 states that “No person shall be deprived of his life

or personal property except according to procedure
established by law”.

• “procedure established by law” are the most important

words in this article.

• Question of interpretation of these words arose in A.K.

Gopalan v. State of Madras, AIR 1950 SC 27.

• A.K. Gopalan, a communist leader was kept in preventive

detention. Reasonableness of preventive Detention Act
was questioned. It was argued that

• 1. The word ‘law’ in Art. 21 does not mean merely

enacted law but incorporates principles of natural
justice.

• 2. Reasonableness of a law of preventive detention ought

to be judged u/A. 19.

• 3. Expression ‘procedure established by law’ introduces

into India the American concept of procedural due
process which enables the courts to see whether the law
fulfils the requisite elements of a reasonable procedure.
• It was also argued that A. 21, 22 and 19 are inter-linked
and when a person is detained under preventive
detention, the various freedoms of the person u/A. 19, 21
and 22 are affected.

• SC ruled that word ‘law’ in A. 21 could not be read as

rules of natural justice. Those rules are vague and
indefinite and Constitution cannot be laying down vague
standards.

• Word ‘law’ was used in the sense of state made law.

• In his dissenting judgment, Fazal Ali J. held that the rule

of justice “no one shall be condemned unheard” was part
of general law and should be read into A. 21.

• Under the principle of due process, Substantive provision

of a law should be reasonable and not arbitrary; and

• the Law should also prescribe a reasonable procedure –

containing four elements

• (i) notice (ii) opportunity to be heard (iii) an impartial

tribunal; and (iv) an orderly procedure.

• In A.K. Gopalan, Supreme Court took the view that Art.

22 is not inter linked with Art. 21 or any other article. To
deprive a person of his life or personal liberty (1) there
must be a law; (2) it should lay down a procedure; & (3)
Executive should follow this procedure while depriving a
person of his life or personal liberty.

• This narrow view was followed by the Supreme Court till

1978. The last such decision was ADM Jabalpur v.
 Shivkant Shukla, AIR 1976 SC 1207, during the peak of
emergency (1975-77).

• However, the Supreme Court changed its view regarding

the linking of various articles in In RC Cooper v. UOI, AIR
1970 SC 564 (Bank Nationalization case). Court
conceded Art. 19(1)(f) and Art. 31(2) are inter-linked.

• In Sambhu Sarkar v. State of West Bengal, AIR 1973 SC

1425, SC recognized the force of logic in linking Art. 19
with Art. 21 and 22.

• In Khudiram Das v. State of West Bengal, AIR 1975 SC

550, Bhagwati J. asserted: “It is not open to anyone now
to contend that a law of preventive detention, which falls
within Art. 22 does not have to meet the requirement of
A. 14 or 19”.

• LIBERAL INTERPRETATION OF FUNDAMENTAL RIGHTS

• Supreme Court started interpreting Article 21 liberally

from MANEKA GANDHI V. UOI, (1978) 1 SCC 248,
Maneka’s passport was impounded by the Central Govt.
under S. 10(3) of Passport Act in the interest of general
public. She challenged the order by filing a Writ petition
on the ground of violation of her Fundamental Right u/A.
19.

• (S.10 authorized the passport authority to impound a

passport if it deems it necessary to do so in the interest
of sovereignty and integrity of India, the security of India,
friendly relations of India with any foreign country, or in
the interest of the public)
• Supreme Court laid down a number of propositions in
Maneka Gandhi:

• 1. A. 14, 19 and 21 are not mutually exclusive. A law

prescribing procedure for depriving a person of ‘personal
liberty’ has to meet requirements of A. 14, 19 and 21.

• (Krishna Iyer J. “No article in the Constitution pertaining

to a Fundamental Right is an island in itself. Just as a
man is not dissectible into separate limbs, cardinal
rights in an organic constitution have a synthesis”.

• 2. Expansive interpretation was given to expression

‘personal liberty’ in A.21. Expression “Personal liberty” is
of “widest amplitude” covering a “variety of rights”
“which go to constitute personal liberty of man”. Some
of these attributes have been raised to status of distinct
Fundamental Rights and given additional protection u/A.
19.

• Expression ‘personal liberty’ ought not to be read in a

narrow and restricted sense to exclude attributes of
personal liberty dealt with A. 19.

• “Attempt of court should be to expand the reach and

ambit of Fundamental Rights rather than attenuate their
meaning and content by a process of judicial
construction”.

• RIGHT TO TRAVEL ABROAD FALLS UNDER A. 21.

• 3. procedure prescribed by law for preventive detention

cannot be ARBITRARY, UNFAIR OR UNREASONABLE.
 • Not only the procedure established by law, the law itself
has to be reasonable—Mohd. Arif v. Supreme Court of
India, (2014) 9 SCC 737.

• Impact of Maneka Gandhi decision has affected all areas

of life. After Maneka Gandhi, the four words ‘life’
‘personal liberty’, ‘prescribed’ and ‘law’ received very
liberal interpretation by the Supreme Court.

• Art. 21 which lay dormant for 28 years, was made alive. In

Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746,
Supreme Court said”: A. 21 “embodies a constitutional
value of supreme importance in a democratic society”-

• A. 21 is “the procedural magna carta protective of life and

liberty”— observed Krishna Iyer J. in PSR Sadhanantham v.
Arunachalam, AIR 1980 SC 856.

• Interpretation of the word LIFE:

• In Munn v. Illinois, 94 US 113 (1877) Field J. had observed

that the term ‘life’ does not mean “mere animal existence”.

• Life in A. 21 does not mean merely ‘animal existence’ but

living with human dignity—Francis Coralie v. Administrator,
Union territory of Delhi, AIR 1981 SC 746.

• In Confederation of Ex-servicemen Association v. UOI,

(2006) 8 SCC 399, SC observed: “Right to life guaranteed
u/A. 21 embraces within its sweep not only physical
existence but the quality of life.

• Right to life means “to live with human dignity, free from
exploitation. It includes protection of health and strength
of workers, men and women, and of tender age of the
 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
human conditions of work and maternity relief. These are
minimum conditions which must exist in order to enable a
person to live with human dignity.

• Freedom of choice in marriage forms part of A. 21 and state

is duty bound to protect this right of citizen—Gang Rape
Ordered by Village kangaroo Court in W.B., re (2014) 4 SCC
786.

• Right to life with human dignity encompasses within its

fold, some of the finer facets of human civilization which
makes life worth living—CERC v. UOI, AIR 1995 SC 922.

• RIGHT TO LIVELIHOOD and right to work is part of Art. 21—

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC
180.

• RIGHT TO MEDICAL CARE

• In Parmanand Katara v. UOI, AIR 1989 SC 2039, SC held

that preservation of life is of paramount importance. It is
duty of doctors to preserve life whether concerned person
be a criminal or an innocent person. A. 21 casts on State
an obligation to preserve life.

• Constitution envisages establishment of a welfare state,

and in a welfare state, primary duty of Govt. is to provide
adequate medical facilities for the people—Paschim
Banga Khet Mazdoor Samity v. State of West Bengal, AIR
1996 SC 2426.
• RIGHT TO SHELTER

• In Shantisar Builders v. Narayan Khimlal Totame, AIR

1990 SC 630, SC ruled that right to life is guaranteed in
any civil society and it includes within its seep the right
to food, right to clothing, right to decent environment and
reasonable accommodation.

• SEXUAL HARASSMENT at workplace is violative of Art.

21

• In Vishaka v. State of Rajasthan, AIR 1997 SC 3011, SC

declared sexual harassment of a working woman at her
place of work amount to violation of rights of gender
equality and right to life and liberty which is a clear
violation of A. 14, 15 and 21.

• Sexual harassment also violates victim’s Fundamental

Right u/A. 19(1)(g) “to practice any profession or to carry
out any occupation, trade or business”.

• RAPE is a crime against basic human rights and also

violative of victim’s most cherished of Fundamental
Rights, right to life u/A. 21. Even in cases where there is
some material to show that prosecutrix was habituated
to sexual intercourse, no inference of victim being a
woman of easy virtue or a woman of loose moral
character can be drawn. Such a woman has a right to
protect her dignity and cannot be subjected to rape only
for that reason—Narendra Kumar v. State (NCT of Delhi),
(2012) 7 SCC 171.

• In Harassment and Physical Abuse of Ms ‘M’, Re, (2014)

10 SCC 826, Suo motu cognizance was taken by SC due
 to police inaction in a Gang rape ordered by community
panchayat for having relationship with a man belonging
to a different community.

• in Francis Coralie v. Delhi, AIR 1981 SC 746: Bhagwati J.

observed: “We think that right to life includes right to life
with human dignity and all that goes along with it, namely,
bare necessaries of life such as adequate nutrition,
clothing, shelter over the head and facilities for reading,
writing and expressing oneself in diverse forms, freely
moving about and mixing and commingling with fellow
human beings”

• In Olga Tellis v. Bombay Municipal Corporation, AIR 1986

SC 180, SC emphasized that “life” in Art. 21 is not restricted
to mere animal existence of a person. It means something
more and “the inhibition against the deprivation of life
extends to all those limits and faculties by which life is
enjoyed”.

• Right to health is a fundamental right u/Art. 21 and right of

patients to be treated with dignity is both their fundamental
right as well as a human right. Hospitals/Nursing
homes/clinics are liable to provide treatment to best of
their capacity to all patients. Errant/negligent
doctors/hospitals/nursing homes are to be dealt strictly—
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384.

• Right to safe and healthy food falls within A. 21—Swamy

Achyutanand Tirth v. UOI (2014) 13 SCC 314.
• Right against hazardous and injurious food articles is
within ambit of A. 21—Centre For Public Interest Litigation
v. UOI, (2013) 16 SCC 279.

• PERSONAL LIBERTY

• In Maneka Gandhi. SC observed: expression ‘personal

liberty’ in A. 21 is of widest amplitude and it covers a
variety of rights which go to constitute personal liberty of
man and some of them have been raised to status of
distinct Fundamental Rights and given addl. Protection
u/A.19.

• Any law interfering with personal liberty of a person must

satisfy a triple test

• (i) it must prescribe a procedure

• (ii) the procedure must withstand the test of one or more

Fundamental Rights conferred u/A. 19, applicable to the
given situation; and

• (iii) it must also be liable to be tested with reference to A.

14. –District Registrar and Collector v. Canara Bank, (2005)
1 SCC 496.

• In Suchita Srivastava v. Chandigarh Administration, (2009)

9 SCC 1, Suchita Srivastava, an orphan woman of 19-20
years suffering from mild mental retardation, was found
pregnant (out of rape) while staying in a Govt.-run welfare
institution. Punjab and Haryana H C directed termination of
pregnancy under MTP Act, 1971. Victim desired
continuation of pregnancy. Question raised before SC was
 whether in applying MTP Act, fundamental right of victim
u/A. 21 had been violated.

• SC answered the question in the affirmative and observed:

• “There is no doubt that a woman’s right to make

reproductive choices is also a dimension of ‘personal
liberty’ as understood under A. 21. It is important to
recognize that reproductive choices can be exercised to
procreate as well as to abstain from procreating. Crucial
consideration is that a woman’s right to privacy, dignity and
bodily integrity should be respected.”

• In Francis Coralie v. Union Territory of Delhi, AIR 1981 SC

746, SC upheld right of a detenu to have interviews with her
friends and family members.

• Refusal of Govt. permission for a detenu to send to his wife,

a scientific book written by him while in jail for publication
was held an infringement of detenu’s personal liberty u/A.
21 –State of Maharashtra v. Prabhakar Pandurang, AIR 1966
SC 424.

• Right to travel abroad was held to be an aspect of

‘personal liberty’ in Satwant Singh v. APO, AIR 1967 SC
1836.

• PROCEDURE

• Procedure for purpose of A. 21 has to be reasonable, fair

and just—Maneka Gandhi.

• Procedure contemplated by A. 21 must be “right, just and

fair” and not arbitrary, fanciful or oppressive—Kartar
Singh v. State of Punjab.
Not only substantive law but procedure prescribed by law
for deprivation of the right conferred by Art. 21 must be fair,
just and reasonable --Olga Tellis v. Bombay Municipal
Corporation, AIR 1986 SC 180.

• A procedure which is unreasonable, harsh and

prejudicial to accused cannot be in consonance with Art.
21—Supdt & Remembrances, Legal Affairs, West Bengal
v. Bhowmick, AIR 1981 SC 917.

• In Sunil Batra v. Delhi Administration (II) AIR (1980) 3

SCC 1579, SC observed that “human rights jurisprudence
in India has a constitutional status and sweep, So that
this magna carta may well toll the knell of human
bondage beyond civilized limits.

• Art. 21 includes Right to fair trial and fair investigation.

A fair trial is heart of criminal jurisprudence and an
important facet of democratic polity that is governed by
Rule of law—Rattiram v. State of MP, AIR 2012 SC 1485.

• Grant of fairest opportunity to the accused to prove his

innocence is the object of every fair trial—P. Sanjeeva
Rao v. State of A.P, (2012) 7 SCC 56.

• Speedy trial is implicit in the broad sweep of Art. 21—

Hussainara Khatoon v. Home Secretary, Bihar(I), AIR
1979 SC 1360. Quick justice is regarded as sine qua non
of Art. 21

• In Hussainara Khatoon v. State of Bihar, AIR 1979 SC

1360, SC observed:
• “It is a crying shame on the judicial system which
permits incarceration of men and women for such long
periods of time without trial..”

• Bail should be the rule; jail the exception

• Imposing unjust or harsh conditions, while granting bail,

is violative of Art. 21—Babu Singh; Gurbaksh Singh Sibbia
v. State of Punjab, AIR 1980 SC 1632.

• FREE LEGAL AID:

• In M.H. Hoskot v. State of Maharashtra, AIR 1978 SC

1548, SC held that State should provide free legal aid to
a prisoner who is indigent or otherwise disabled from
securing legal assistance.

• “Providing free legal service to the poor and needy is an

essential element of any ‘reasonable, fair and just’
procedure-- Khatri v. State of Bihar, AIR 1981 SC 928.
State Govts. Cannot avoid their constitutional obligation
to provide free legal service to the poor accused by
pleading financial or administrative inability.

• In Prem Shankar v. Delhi Administration, AIR 1980 SC

1535, SC declared that hand-cuffing is prima facie
“inhuman, and, therefore, unreasonable is over-harsh and
at the first flush, arbitrary”.

• The only circumstance validating handcuffing is that

there is no other reasonable way of preventing his
escape. Nature of accusation is not the criterion.

• Art. 21 is now “the sanctuary of human values,

prescribes fair procedure and forbids barbarities,
 punitive or processual”. No prisoner is to be hand-cuffed
or fettered routinely merely for the convenience of the
custodian or the Court.

• In Citizens for Democracy through its President v. State

of Assam, AIR 1996 SC 2193, SC directed that “hand cuffs
or other fetters shall not be forced on a prison convicted
or under-trial while lodged in a jail anywhere in the
country or while transporting or in transit from one jail to
another or from jail to Court and back”.

• POLICE ATTROCITIES

• In Raghubir Singh v. State of Haryana, AIR 1980 SC 1087,

SC observed:

• “We are deeply disturbed by the diabolical recurrence of

police torture resulting in a terrible scale in the minds of
common citizens that their lives and liberty are under a
new peril when the guardians of the law gore human
rights to death”

• In Prithipal Singh v. State of Punjab, (2012) 1 SCC 10, SC

directed that if there is some material on record to reveal
the police atrocities, Court must take stern action
against the erring police officials in accordance with law

• In Sheela Barse v. State of Maharashtra, AIR 1986 SC

1773, SC gave directions to ensure protection against
torture and mal-treatment of women in police lock up.
There should be separate lock ups for female suspects
guarded by female constables, interrogation of females
should be carried out only in the presence of female
constables.
• PRISON ADMINISTRATION

• Fundamental Rights do not stop at prison gates. “Goal of

imprisonment is not only punitive but restorative, to
make an offender a non-offender”.

• In Sunil Batra I, AIR 1978 SC 1673, the SC stated that a

person under death sentence is held in jail custody so
that he is available for execution of death sentence when
time comes. No punitive detention can be imposed on
him by jail authorities except for prison offences. Art. 21
means “the law must be right, just and fair, and not
arbitrary, fanciful or oppressive.

• In Veena Sethi v. State of Bihar, AIR 1983 SC 339, SC

strongly deprecated tendency of detaining persons as
criminal lunatics for long periods even after they become
sane. Practice of sending lunatics or persons of unsound
mind to jail for safe custody is not desirable, because jail
is hardly a place for treating such persons and there
should be adequate number of institutions for looking
after the mentally sick persons.

• In Hussainara Khatoon v. State of Bihar (III), AIR 1979 SC

1360, SC frowned upon the practice of keeping women in
prison without being accused of any crime. Their
“protective custody is in reality and in truth nothing but
imprisonment”. Court directed Govt. to set up welfare
and rescue homes to take care of destitute women and
children.

• SC held that the punishment of death under S. 302 is

valid and constitutional. In Bachan Singh v. State of
 Punjab, AIR 1980 SC 898, SC held that death penalty as
an alternative punishment for murder is not violative of
Art. 21, 19 or 14.

• In Machhi Singh v. State of Punjab, AIR 1983 SC 947, SC

ruled that death penalty need not be inflicted except in
the “gravest of cases of extreme culpability” and that life
imprisonment is the rule and death sentence is an
exception”. Death penalty is to be given in “rarest of rare
cases”

• (1) where there is something uncommon about the crime

which renders a life imprisonment sentence inadequate
and calls for a death sentence, and

• (2) where circumstances of the crime are such that there

is no alternative but to impose the death sentence even
after according maximum weightage to the mitigating
circumstances which speak in favour of the offender.

• LAW

• Ordinarily ‘law’ in Art. 21 means law enacted by

legislature.

• Word ‘law’ includes Ordinance, Rules and Regulations

• CUSTODIAL VIOLENCE AND DAMAGES

• In Khatri v. State of Bihar (Bhagalpur Blinding case), it

was alleged that police had blinded certain prisoners and
therefore state was liable to pay compensation. But
Court by majority, declined to grant any compensation.

• In Rudhal Shah v. State of Bihar, AIR 1983 SC 1086, SC

in a writ petition u/Art. 32 awarded Rs. 35,000 as
 compensation against State of Bihar because petitioner
was kept in jail for 14 years after he had been acquitted
by a Crl. Court.

• In Sebastian M Mongray v. UOI, AIR 1984 SC 1026, two

persons taken to military camps by army jawans went
missing. Govt. failed to produce them. They had met
unnatural death. “As a measure of exemplary costs as is
permissible in such cases” Court required Govt. to pay
Rs. 1,00,000 to the family of each.

• In BC Oraon v. State of Bihar, Oraon, an undertrial

prisoner was detained in a lunatic asylum for six years
after he had been certified as fit for discharge. Court
awarded Rs. 15,000 as compensation.

• In Chairman, Railway Board v. Chandrima Das, AIR 2000

SC 988, a foreigner can claim protection u/A. 21 and
claim compensation for violation of Art. 21. (also see
Isaac Isanga Musumba v. State of Maharashtra, (2014)
15 SCC 357) .

• RIGHT OF PRIVACY

• In PUCL v. UOI, AIR 1997 SC 568, SC implied right of

privacy from Art. 21 by interpreting it with Art. 12 of
Universal Declaration on Human Rights and Art. 17
International Covenant on Civil and Political Rights,
1966.

• Many of the non-justiciable Directive Principles have now

been converted into enforceable Fundamental Rights by
judicial creativity.
 • In R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264,
SC asserted that in recent times, right to privacy has
acquired constitutional status and it is implicit in the
right to life and liberty guaranteed to the citizens by A.
21.

• In People’s Union for Civil Liberties v. UOI, 1991 SC 207,

SC observed that right to privacy is a part of right to life
and personal liberty enshrined u/A. 21.

• In Jane Roe v. Henry Wade, 410 US 113, US Supreme

Court recognized right to privacy and observed that it is
not absolute.

• In State of Maharashtra v. Madhukar Narayan Mardikar,

AIR 1999 SC 495, SC protected right to privacy of a
prostitute and held that even a woman of easy virtue is
entitled to her privacy and no one can invade her privacy
as and when he likes.

• In K.S. Puttaswamy (Retired) v. Union of India (Aadhar

case), (2019)1 SCC 1, SC observed that Privacy is intrinsic
to freedom, liberty and dignity: Right to privacy is inherent
to the liberties guaranteed by Part III of the Constitution
and privacy is an element of human dignity. Govt. may
demand Aadhar details for extending economic benefits
but private players cannot insist of Aadhar data for
providing their services.

• In Mr. X v. Hospital Z, the question was whether a doctor

can disclose to the would be wife of a person that he is HIV
positive? Does it infringe the right to privacy of the person
concerned? Court held:
 • Right to life guaranteed by Art. 21 “would positively
include the right to be told that a person with whom she
was proposed to be married was the victim of a deadly
disease, which was sexually communicable”. When two
fundamentals clash v.z, that of right of privacy and that
of to live a healthy life (both u/Art. 21), “the right which
would advance the public morality or public interest,
would alone be enforced through the process of Court”.

• In MX of Bombay v. M/s. ZY, AIR 1997 Bom 406, Court

held that no person can be deprived of his right to
livelihood except according to procedure established by
law and such law should be just, fair and reasonable. It
is arbitrary to deny job of a casual worker to a HIV
positive person.

• ECOLOGY/ENVIRONMENT

• From early 1990s, Supreme Court connected Art. 21 to

ecology and environment.

• In Subash Kumar v. Bihar, AIR 1991 SC 420, SC held that

enjoyment of pollution free environment is included in the
right to life u/Ar. 21.

• Right to breathe unpolluted air is part of right to life –M C

Mehta v. UOI, (2003) 5 SCC 376.

• In Godavarman Thirumalpad v. UOI, (2002) 10 SCC 606, SC

pointed out two salutary principles governing environment
(1) principle of sustainable development, and (2)
precautionary principle. Convention on Biological Diversity
having been acceded to by India, Govt. should, in absence
of compelling reasons, keep in view international
 obligations while exercising its discretionary powers under
Forest (Conservation) Act.

• Hygienic environment is an integral facet of healthy life.

Right to live with human dignity becomes illusory in the
absence of humane and healthy environment—State of MP
v. Kedia Leather & Liquor Limited, (2003) 7 SCC 389.

• In MC Mehta v. UOI, AIR 1988 SC 463, SC ordered closure

of tanneries which were polluting water

• SC issued several guidelines and directions to protect

ancient monument Taj Mahal, from environmental
degradation—MC Mehta v. UOI, AIR 1997 SC 734

• Court took cognizance of environmental problems being

caused by tanneries which were polluting all water
resources, rivers, canals, underground water and
agricultural land and issued several directions to deal with
the problem -- Vellore Citizens Welfare Forum v. UOI, AIR
1996 SC 734. Court further held:

• In MC Mehta v. UOI, AIR 1997 SC 761, SC developed the

‘polluter pays’ principle fixing absolute liability for harm to
environment and held that it extends not only to
compensate the victims of pollution but also the cost of
restoring the environmental degradation.

• Peaceful living in one’s home is a fundamental right and an

essential part of Right to Life. It is the duty of all concerned
to follow the law laid down and comply with directions
issued by SC in Noise Pollution (5) In re, (2005) 5 SCC 733.
• Right to live in a clean, hygienic and safe environment
comes u/A. 21. It is double-fold duty of State to protect
unfortunate workers working/living in dangerous, risky and
unhygienic environment for eking out a livelihood—
Occupational Health and Safety Association v. UOI, (2014)
3 SCC 547.

• Principle of sustainable development has to be applied in

town and urban planning through the country—Municipal
Corporation of Greater Mumbai v. Kohinoor CTNL
Infrastructure Company (P) Ltd., (2014) SCC 574.

• RIGHT TO DIE

• In Gian Kaur v. State of Punjab, (1996) 2 SCC 648 it was

observed:

• “Right to life is a natural right embodied in Art. 21 but

suicide is an unnatural termination or extinction of life and,
therefore incompatible and inconsistent with the concept
of “right to life”. Ss. 306 and 309 IPC are not
unconstitutional.

• Supreme Court disagreed with the Law Commission that

attempt to commit suicide is a cry for help and not an
offence.

• In Aruna Ramachandra Shanbaug v. Union of India (2011) 4

SCC 454, issue of passive euthanasia was considered.
Court observed:

• Difference between “active” and “passive” euthanasia is

that in active euthanasia, something is done to end
patient’s life while in passive euthanasia, something is not
 done that would have preserved patient’s life. An important
idea behind this distinction is that in passive euthanasia
doctors are not actively killing anyone, they are simply not
saving him.

• In Common Cause v. Union of India, (2018) 5 SCC 1, Passive

Euthanesia was considered again. Court ruled that Patients
who are terminally ill or in permanent vegetative state or
brain-dead state without any hope for revival, smoothening
natural process of dying of such patients by withholding or
withdrawing life prolonging medical support or treatment
in accordance with express or implied will of such patients
i.e., voluntary and non-voluntary passive euthanasia is
permissible. Such patients, if adult and while in conscious
mind, can also execute living will in the form of “Advance
Directive” directing not to prolong their life by medical
treatment.

21 A – RIGHT TO EDUCATION

• Right to Education. Right to education is implicit in

Article 21. Every child up to 14 years has a fundamental
right to free education. After that it is subject to limits of
economic capacity and development of the State, Unni
Krishnan v. State of A.P., (1993) 1 SCC 645;
• Court also declared Capitation fee as illegal and
unconstitutional

• In Mohini Jain case, (1992) 3 SCC 666, reading A. 21

cumulatively with Arts, 38, 39(a), 41 and 45, Court ruled
that “right to education flows directly from right to life”
and State is under a constitutional mandate to provide
 educational institutions at all levels for benefit of
citizens”.

• In Unnikrishnan, Court had evolved a scheme as regards

level of fees chargeable by private educational
institutions as well as policy for admissions.

• Scheme so framed was held to be unreasonable

restriction u/Art. 19(6) in TMA Pai Foundation v. State of
Karnataka, (2002)8 SCC 481.

• Another judicially evolved scheme replaced earlier

guidelines in Islamic Academy of Education v. State of
Karnataka, (2003) 6 SCC 697 and PA Inamdar v. State of
Maharashtra, (2005) 6 SCC 537.

• Subsequent to decision in Unnikrishnan, 86th

Amendment, 2002 introduced A. 21A as a fundamental
right requiring the State to provide free and compulsory
education to all children of the age of 6 to 14 years.

• Cl. (k) of A. 51A made it incumbent on a parent or

guardian to provide opportunities for education to the
child or ward between age of 6 and 14 years. A. 45 was
also substituted.

• Art. 21A has been described as the most important

fundamental right and stands above other rights “as
one’s ability to enforce one’s fundamental rights flows
from one’s education”—Ashok Kumar Thakur v. UOI,
(2008) 6 SCC 1.

• A. 21A has been construed as the fundamental right of

each and every child to receive education free from fear
 of security and safety so that children have a right to
receive education in a sound and safe building—Avinash
Mehrotra v. UOI, (2009) 6 SCC 398.

• Constitutionality of Article 21-A and Article 15(5) and

Right of Children to Free and Compulsory Education Act,
2009 upheld. However, unaided and aided minority
educational institutions excluded entirely from the
purview of the Act, Pramati Educational and Cultural
Trust v. Union of India, (2014) 8 SCC 1.
• Budgetary or financial implications cannot be a ground if
there is violation of fundamental right. State of
Bihar v. Bihar Secondary Teachers Struggle
Committee, (2019) 18 SCC 301.
• 22. PROTECTION AGAINST ARREST AND DETENTION

• Art. 22 guarantees the following minimum rights to an

arrested person:

• (1) He is not to be detained in custody without being

informed, as soon as may be, of the grounds of his arrest
–22(1).

• (2) He shall not be denied the right to consult, and to be

defended by, a legal practitioner of his choice—22(2)

• (3) A person arrested and detained in custody is to be

produced before the nearest magistrate within a period
of 24 hours of his arrest excluding the time necessary for
the journey from place of arrest to Magistrate’s court—
22(2).
• (4) No such person is to be detained in custody beyond
this period without the authority of a magistrate –22(2).

• RULE 1: INFORMATION ABOUT GROUNDS OF ARREST

• Information about the grounds of arrest is mandatory

u/Art. 22(1)—Hansmuk v. State of Gujarat, AIR 1981 SC
28. In other words, a person’s personal liberty cannot be
curtailed by arrest without informing him, as soon as is
possible, why he is arrested.

• Information should be sufficient to enable him to

understand why he has been arrested and to give him an
idea of the offence which he is alleged to have
committed.

• Grounds given to the arrested person should be

intelligible—Vimal v. State of UP, AIR 1956 All 56; Madhu
Limaye v. State of Punjab, AIR 1959 Punj 506.

• RULE 2: RIGHT TO CONSULT A LAWYER

• The rule denotes that the arrested person must be

enabled to defend himself by engaging a legal
practitioner of his choice. This is mandatory—State of
MP v. Shobharam, AIR 1966 SC 1910.

• This right is not lost even when the person arrested is

released on bail.

• Legal practitioner should be allowed the facility to

consult the accused without the hearing of the police—
Jose Poothrikkayil v. UOI, 1009(1) KLT 381.

• Krishna Iyer J. in Nandini Satpathy v. PL Doni, AIR 1978

SC 1025 ruled that the spirit and sense of Art. 22(1) is
 that it is fundamental to rule of law that services of a
lawyer shall be available for consultation to any accused
person under “circumstances of near custodial
interrogation”.

• In Gideon v. Waiwright, 372 US 335 (1963), US SC

declared mistrial of Gideon because he could not afford
a counsel and State failed to provide him with one.

• Art. 39A assures legal aid to accused who cannot defend

himself through a lawyer of his choice. Right to legal aid
is fundamental right u/Art. 21.

• S. 304(1) Cr PC: “Where in a trial before court of session,

accused is not represented by a pleader, and where it
appears to court that accused has no sufficient means
to engage a pleader, court shall assign a pleader, for his
defence at expense of the State”.

• RULE 3: PRODUCTION OF THE ARRESTED PERSON

BEFORE A MAGISTRATE

• Rule 3 requires that arrested person is produced before

a Magistrate within 24 hours of his arrest. This is to
ensure that a judicial mind is applied immediately to the
legal authority of the person making arrest and regularity
of procedure adopted by him.

• Magistrate is not to act mechanically but should apply

judicial mind to see whether the arrest of person
produced before him is legal and in accordance with law.
Otherwise, constitutional protection u/Art. 22(2) would
be meaningless—Madhu limaye
• Production before magistrate is not a mere formality. It
is purposefully designed to enable arrested person to be
released on bail.

• Magistrate may grant him bail or he may be remanded

• RULE 4: NO PERSON IS TO BE DETAINED IN CUSTODY

BEYOND 24 HOURS WITHOUT THE AUTHORITY OF A
MAGISTRATE

• In Khatri v. State of Bihar, AIR 1981 SC 928, SC directed

that this rule has to be scrupulously observed.

• In Gunpati v. Nafisul Hasan, AIR 1954 SC 636, a person

was arrested in Bombay on a warrant issued by Speaker
of UP Leg. Assembly for breach of privilege. He was not
produced before a Magistrate within 24 hours but
produced before the Speaker. SC held that it was a clear
breach of peremptory provision of Art. 22(2) and he was
released.

• EXCEPTIONS /NON-APPLICATION OF ART. 22(1) AND (2)

• Art. 22(1) and (2) do not apply to

• (a) enemy aliens, and

• (b) to persons arrested or detained under a law providing

for preventive detention

• The provisions do not apply to the following cases also

where arrest is not on accusation of an offence:

• (a) arrest of a defendant before judgment, or

• (b) arrest of a judgment-debtor in execution of a decree
under CPC where arrested person is produced not before
magistrate but civil court ordering arrest.

• (c) arrest under a revenue recovery legislation to recover

arrears of revenue

• (d) under Abducted Persons (Recovery and Restoration)

Act, 1949. In State of Punjab v. Ajaib Singh, AIR 1953 SC
10, persons abducted from Pakistan were taken into
custody and delivered to custody of an officer-in-charge
of a camp for returning them to Pakistan. Court held that
this was not arrest contemplated by A. 22 because there
was no allegation or accusation of any actual or
apprehended commission by that person of any criminal
or quasi-criminal offence.

• Arrest for deportation of a foreigner does not fall u/A.

22—Anwar v. State of Jammu & Kashmir, AIR 1971 SC
337.

• PREVENTIVE DETENTION

• Preventive detention is preventive; not punitive. Idea is

not to punish him for his past acts but to curtail his
liberty with a view to preventing him from committing
certain injurious acts in future.

• Whereas punitive incarceration is after trial on

allegations made against a person, preventive detention
is without trial into allegations made against him—State
of Tamil Nadu v. Senthil Kumar, AIR 1999 SC 971.
• A law for preventive detention can be enacted by
Parliament for reasons connected with defence, foreign
affairs, or security of India. Eg: Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act,
1974 (COFEPOSA); National Security Act, Prevention of
Black-marketing and Maintenance of Supplies of
Essential Commodities Act, 1980, GOONDA Act..

• U/A.22(5), detaining authority is to communicate to

detenu grounds of his detention as soon as may be; and

• Detenu is to be afforded ‘earliest opportunity; of making

a representation against order of detention. This is
natural justice woven into fabric of preventive detention
by the Constitution.

• “Right to representation u/A. 22(5) is a valuable

constitutional right and is not a mere formality”– Adbul
Karim v. State of West Bengal, AIR 1969 SC 1028.

• All basic facts and particulars which influenced the

detaining authority in arriving at its satisfaction must be
communicated to the detenu.

• All the grounds of detention must be communicated in

one instalment.

• Grounds of detention have to be communicated to

detenu in clear and unambiguous terms to enable him to
make effective representation.

• Govt. should consider detenu’s representation promptly

and expeditiously.
• Representation is to be made to the authority having
power to rescind or revoke the decision.

• U/A. 22(4)(a), preventive detention for over three months

is possible only when an Advisory board holds that, in its
opinion, there is sufficient cause for such detention.

• The Advisory Board must consist of three persons who

are/have been/are qualified to be Judges of High Court.

• Power of preventive detention being a “draconian

power”, it is tolerated in a free society, as a “necessary
evil”– VC Mohan v. UOI, (2002) 3 SCC 451

• Satisfaction of detaining authority must be grounded on

materials of rationally probative value and it should not
be arrived at without taking into account relevant facts.

• Administration must follow scrupulously and strictly

procedural norms laid down in A. 22(7). Deviation would
render detention order invalid.

ART. 23. PROHIBITION OF TRAFFIC IN HUMAN BEINGS

AND FORCED LABOUR.

• Art. 23(1) proscribes three unsocial practices, viz.,

• (1) begar

• (2) traffic in human beings; and

• (3) forced labour

• Art. 23 protects the individual not only against the State

but also against private citizens. Fundamental Right
under Art. 23 is enforceable against State as well as
individuals.
• Begar means compulsory work without any payment.

• Begar is labour or service which a person is forced to

give without receiving any remuneration for it—
Vasudevan v. Mittal,AIR 1962 Bom 53;

• Traffic in human beings, commonly known as slavery,

implies the buying and selling of human beings as if they
are chattels, and such a practice is constitutionally
abolished.

• Expression covers traffic in women for immoral

purposes—Raj Bahadur v. Legal Remembrancer, Govt. of
West Bengal, AIR 1953 Cal 522.

• The kind of forced labour contemplated by Art. 23 has to

be something in the nature of either traffic in human
beings or begar.

• There is an exception provided in Art. 23(2). State can

impose compulsory service for public purposes, and in
imposing such service, State shall not make any
discrimination on grounds only of religion, race, caste or
class or any of them. State need not pay for such service.

• Even payment of wages less than the minimum wages

would be regarded as forced labour.

• Non-payment of minimum wage, whether by the State or

by private parties is forced labour and prohibited by this
provision, PUDR v. Union of India, (1982) 3 SCC 235
(Asiad case).

• In Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328,

payment by the State of wages lower than minimum
 wage to persons employed on famine relief work was
held invalid u/Art. 23.

• In Rohit Vasavacia v. General Manager, IFFCO, AIR 1984

Guj 102, pitiable condition of work of contract workers in
a fertilizer factory run by a co-op society, who were
required to handle urea manually without adequate
safeguards, was characterized by Gujarat High Court as
forced labour.

• Under bonded labour system a person is bounded to

provide labour to another for years and years until a debt
is supposed to be wiped out. Parliament enacted the
Bonded Labour System (Abolition) Act, 1976.

• In Banduka Mukti Morcha v. UOI, a large number of

labourers were working in stone quarries in Haryana
under inhuman and pathetic conditions. No medical aid
was provided to them and no safety rules were observed
and they lived in sketchy torn huts without roofs. SC
characterized the bonded labour system as “totally
incompatible with the new egalitarian socio-economic
order which we have promised to build and it is not only
an affront to basic human dignity but also constitutes
gross and revolting violation of constitutional values”.
135 bonded labourers were released from bondage.

• Parliament enacted the Suppression of Immoral Traffic

in Women and Girls Act, 1956 with object of inhibiting or
abolishing immoral traffic in women and girls.
• In Vishal Jeet v. UOI, AIR 1990 SC 1412, SC directed
State Govts. to instruct their law enforcing authorities to
take action under the law to eradicate child prostitution.

• In Gaurav Jain v. UOI, AIR 1997 SC 3021 SC issued

several directions for the rehabilitation of children of
prostitutes, child prostitutes and establishment of
juvenile homes for them.

• Art. 24. EMPLOYMENT OF CHILDREN IN HAZARDOUS

EMPLOYMENT PROHIBITED

• 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.

• Art. 24 prohibits employment of a child below the age of

14 years to work in any factory or mine, or in any other
hazardous employment.

• Supreme Court in Asiad case emphasized that Art. 24

embodies a Fundamental Right which is plainly and
indubitably enforceable against everyone.

• Construction work being hazardous employment,

children below 14 cannot be employed on any such work
because of the constitutional prohibition contained in
Art. 24—Labourers Working on Salal Hydro Project v.
State of Jammu & Kashmir, AIR 1984 SC 177.

• Employment of children in hazardous industries are

prohibited and directions of the Supreme Court issued to
that effect, M.C. Mehta v. State of T.N., (1996) 6 SCC
756.
• A child is also entitled to all the rights under Art. 21.

• India has not ratified the ILO’s two conventions on child

labour – the Minimum Age Convention (138), 1973 and the
Worst Forms of Child Labour Convention, 1999 (182). The
latter prohibits employment of children altogether.

• The Child Labour (Prohibition and Regulation) Act, 1986

prohibits employment of children only in certain
occupations and in workshops carrying out certain
processes.

• RIGHT TO FREEDOM OF RELIGION

• Art. 25(1): Subject to public order, morality and health

and other provisions of Part III (Fundamental Rights), all
persons are equally entitled to freedom of conscience
and right freely to profess, practice and propagate
religion.

• Under Art. 25(2) State by an existing or a newly enacted

law may

• (a) regulate or restrict any economic, financial, political

or other secular activity associated religious practice.

• (b) provide social welfare and reform or throw open

Hindu religious institutions of a public character to all
classes and sections of Hindus.

• Under Explanation I, wearing and carrying of kirpans by

Sikhs are considered as part of their religious practice.

• Under Explanation II, Hindu includes Sikh, Jain and

Budhist and Art. 25 must be read as referring to such
institutions also.
• Secularism was declared as part of Basic structure of
the Constitution.

• Religious tolerance and equal treatment of all religious

groups and protection of their life and property and of the
places of their worship are an essential part of
secularism enshrined in our Constitution—SR Bommai v.
UOI, AIR 1994 SC 1918.

• Freedom guaranteed under Art. 25(1) is freedom of

conscience to freely profess, practice and propagate
religion subject to public order, health or morality.

• What is protected under Art. 25(1) is religious faith and

not religious practice. A practice running counter to
public order, health or morality is not protected.

• Polygamy is not an integral part of religion and

monogamy as a reform is within power of State u/A. 25 of
the Constitution—Khursheed Ahmad Khan v. State of UP,
AIR 2015 SC 1429.

• Freedom of a religious denomination to manage its own

religious affairs can be regulated by a law contemplated
by A. 25(2), provided that such law does not obliterate
the essential part of a religious practice—Riju Prasad
Sarma v. State of Assam, (2015) 9 SCC 461.

• In Gulam Abbas v. State of UP, AIR 1981 SC 2198, SC

enforced customary religious rights of Shia community
on a piece of land and said that State could not interfere
with the established customary rights to perform their
religious ceremonies and functions.
• In Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615,
SC ruled that compelling a student belonging to
Jehovah’s witnesses to join in singing of National
Anthem despite his “genuine, conscientious religious
objection” would contravene the rights guaranteed by A.
19(1)(a) and 25(1).

• However, In Remy Raju v. Govt. of Kerala, AIR 2008 Ker.

192, a claim u/A. 25(1) by two students belonging to
Seventh Day Adventist denomination seeking
rescheduling of an examination on the ground that in
terms of their faith no activity could be undertaken from
6 a.m. to 6 p.m. on Saturday was rejected by HC.

• A person can exercise his religious freedom so long as it

does not come into conflict with exercise of
Fundamental Rights of others.

• A. 25(2)(a) contemplates state regulation not of religious

practices, as such, but of activities which are economic,
commercial or political in character though these may be
associated with religious practices.

• Art. 25(2)(b) contains two ideas:

• (1) Measures of social reform are permissible and such

reforms would not be void on the ground interfering with
freedom of religion.

• Legislative interference with law of marriage does not

constitute an infringement of Hindu religion. Succession
like marriage, is a secular matter and is not within the
guarantees contained in Art. 25—John Vallamattom v.
UOI, (2003) 6 SCC 611.
• Haryana Legislature disqualified persons having more
than two children from holding the position of sarpanch
or up-sarpanch or a panch of a gram panchayat. The
provision was challenged on the ground that it violates
personal law of the Mohammedans. Haryana High Court
upheld the provision on two grounds:

• (a) Religious freedom is subject to health – A. 25(1). The

provision can be regarded as one for health of the
females.

• (b) U/A. 25, religious freedom is subject to laws made for

social welfare and reform. The provision in question is a
measure of social reform. It does not interfere in
professing their religious practice or propagating the
same by Muslims. – Fazru v. State of Haryana, AIR 1998
P&H 133.

• A. 25 is subject to A. 21 and if a particular religious

practice is threatening the health and lives of people,
such practice is not entitled to protection under A. 25. In
any case, balancing can be done by allowing the practice
subject to those conditions which ensure nil or negligible
effect on health, Arjun Gopal v. Union of India, (2019) 13
SCC 523.

• Theme of equality under A. 14 applies to A. 25(1). A. 25

is gender neutral and confers inter faith as well as intra
faith parity. Right to profess, practice and propagate
religion includes all acts done in furtherance of thought,
belief, faith and worship, though subject to the
restrictions delineated in A. 25(1) itself i.e. so long as
 they do not violate constitutional morality or other
provisions of Pt. III.

• Right to freedom of conscience and Right to freely

profess, practice and propagate religion under A. 25(1),
and essential religious practices protected thereunder,
are subject to constitutional morality, as “morality” in A.
25(1) means constitutional morality. “Morality” to which
right under A. 25(1) is subject, is governed by
fundamental constitutional principles of justice, liberty,
equality, dignity and fraternity combined with
secularism, and not by popular opinions or
social/mainstream conceptions which keep on changing.
Values of constitutional morality are a non-derogable
entitlement. Indian Young Lawyers Assn. (Sabarimala
Temple-5 J.) v. State of Kerala, (2019) 11 SCC 1.
• But A. 25(1) by giving right to propagate one's religion
does not grant the right to convert another person to
one's own religion, but to transmit or spread one's
religion by an exposition of its tenets, Rev.
Stainislaus v. State of M.P., (1977) 1 SCC 677.
• Court has no jurisdiction to interfere with religious
practices and pujas to be performed in
Temple, Sarika v. Shri Mahakaleshwar Mandir
Committee, (2018) 17 SCC 112.
• Practice of Triple Talaq or Talaq-e-Biddat is
unconstitutional and violative of A. 14 and 15 of
Constitution. This form of Talaq is manifestly arbitrary in
the sense that marital tie can be broken capriciously and
 whimsically by a Muslim man without any attempt at
reconciliation so as to save it. Merely because a practice
has continued for long, that by itself cannot make it valid
if it has been expressly declared to be impermissible and
illegal and hence, is not protected under Article 25, as it
is not an essential religious practice, Shayara
Bano v. Union of India, (2017) 9 SCC 1.
• Art. 26. Freedom to manage religious affairs:

• Subject to public order, morality and health, every

religious denomination or any section thereof shall have
the right—

• (a) to establish and maintain institutions for religious and

charitable purposes;

• (b) to manage its own affairs in matters of religion;

• (c) to own and acquire movable and immovable property;

and

• (d) to administer such property in accordance with law.

• Administration of religious institutions and endowments

is a secular function which can be regulated by
legislation, Pannalal v. State of A.P., (1996) 2 SCC 498.

• “Religious denomination” means a religious sect having

a common faith and organization and designated by a
distinctive name.

• To form a religious denomination, three conditions must

be fulfilled:
• (1) it is a collection of individuals who have a system of
beliefs which they regard as conducive to their spiritual
well-being.

• (2) They have a common organization; and

• (3) Collection of these individuals has a distinctive name

• In Nallar Marthandam Vellalar v. Commissioner, Hundu

Religious and Charitable Endowments, (2003)10 SCC
712, SC says:

• “It necessarily follows that common faith of community

should be based on religion and in that they should have
common religious tenets and the basic cord which
connects them, should be religion and not merely
considerations of caste or societal status”

• Ramakrishna religion (propounded by Shri Ramakrishna)

is not different and distinct from the Hindu Religion—
Bramachari Sidheshwar Sai v. State of West Bengal, AIR
1995 SC 2089.

• Words ‘establish and maintain’ go together.

• Where an institution has been established by a religious

denomination, then it can claim the right to maintain the
same as well.

• A religious denomination can claim to maintain only

those institutions which it has established.

• As Aligarh Muslim University has been established under

a statute and not by Muslims as such, they cannot claim
right to maintain the same—Azeez Basha v. UOI, AIR
1968 SC 662
• MATTERS OF RELIGION

• “Matters of religion” is synonymous with religion. It

includes religious beliefs and religious practices and
rites as are regarded to be an essential and integral part
of religion.

• A. 26(b) does not extend to purely secular affairs—Eg.,

administration of denomination’s property.

• Right of religious minority u/A. 26(b) is subject to Public

order, morality and health and also to A. 25(2)(b)
“providing for social welfare and reform”.

• A Hindu denomination cannot claim a right to totally

exclude other Hindus from worshiping in the temple at
all times.

• But a religious denomination may claim a right to

exclude strangers from certain religious ceremonies.

• A Muslim denomination has a right to establish a mosque

but a Muslim of any sect and denomination has a right to
offer prayer there.

• It is a Fundamental Right of every Mohamedan to offer

his namaz. It cannot be denied on ground of not
belonging to a particular sect or denomination who
founded the mosque. He cannot, however claim that he
should be led in his namaz by an imam belonging to his
sect—Sarwar Husain v. Additional Civil Judge, AIR 1983
All 252.

• RIGHT TO ACQUIRE AND MANAGE PROPERTY

• A religious denomination can acquire property u/A. 26(c).
It can administer such property according to law u/A.
26(d).

• U/26(b) it is the right “to manage its religious affairs”.

U/26(d) it is the right to manage its property.

• Management of a temple is primarily a secular act—MP

Gopalakrishnan Nair v. State of Kerala (2005) 11 SCC 45.

• Law vesting management of Jain religious trusts in

committees of management subject to condition that
members of the committee should belong to the same
denomination to which the particular trust belonged, is
valid—State of Rajasthan v. Sajjanlal, AIR 1975 SC 706.

• ACQUISITION OF A RELIGIOUS PLACE

• A temple, church, mosque etc. are essentially immovable

properties and subject to protection u/A. 25 and 26. Every
immovable property is liable to be acquired.

• Offer of prayer or worship is essentially a religious

practice but where such prayers can be offered would
not be an essential or integral part of such religious
practice.—Dr. M Ismail Faruqui v. UOI, AIR 1995 SC 605.

• “acquisition of any religious place is to be made only in

unusual and extra-ordinary situation for a larger national
purpose and such acquisition shall not result in
extinction of right to practice that religion—Ismail
Faruqui.
• Acquisition of a religious place or a part thereof can be
made in public interest for widening of road—Gulam
Kader v. Surat Municipal Corporation, AIR 1998 Guj 234.

• However, a Regulatory law should not regulate beliefs,

tenets, usages and practices, which are an integral part
of that religious belief or faith—Pannalal Bansilal Patil v.
State of AP, AIR 1996 SC 1023.

• DISCUSS ABOUT THE FUNDAMENTAL RIGHTS

GUARANTEED TO RELIGIOUS AND LINGUISTIC
MINORITIES UNDER ART. 30.

• Art. 30 (1) All minorities, whether based on religion or

language, shall have the right to establish and administer
educational institutions of their choice.

• (2) The State shall not, in granting aid to educational

institutions, discriminate against any educational
institution on the ground that it is under the management
of a minority, whether based on religion or language.

• Under 30(1A), the State shall while acquiring property of

religious or linguistic minority educational institution,
the payment given as compensation does not restrict or
abridge the fundamental right under Art. 30(1).

• Art. 30(1) gives linguistic or religious minorities the

following 2 rights:

• (1) The right to establish, and (2) the right to administer

educational institutions of their choice.

• Various sections and classes of Hindus cannot be

regarded as ‘minorities’ u/A. 30.
• Term ‘minority’ based on religion should be restricted
only to those religious minorities eg. Muslims, Christians,
Jains, Buddhists, Sikhs etc. which have kept their
identity separate from majority viz., Hindus– ASE Trust v.
Director, Education, Delhi Adm, AIR 1976 Del 207.

• In TMA Pai Foundation v. State of Karnataka, (2002) 8

SCC 481, it was held that for purposes of A. 30, a
linguistic minority will have to be determined in relation
to the State in which the educational institution is
sought to be established.

• Words “administer’ and ‘establish’ have to be read

conjunctively. A religious minority cannot claim the right
to administer an educational institution established by
someone else.

• Even a single philanthropic individual from concerned

community can found the institution with his own
means—Manager, St. Thomas UP School, Kerala v.
Commissioner and Secretary to General Education Dept.,
AIR 2002 SC 756.

• In order to claim the benefit of A. 30(1), the community

must show:

• (a) that it is a religious/linguistic minority, (b) that the

institution was established by it– SP Mittal v. UOI, AIR
1983 SC 1.

• Minority institutions cannot refuse admission to students

of other minority and majority communities. In nation
building in the secular character sectarian schools or
colleges; segregated faculties or Universities for
 imparting general secular education are undesirable and
they may undermine secular democracy. -- PA Inamdar v.
State of Maharashtra, (2005) 6 SCC 537.

• A State aided educational institution, even though

established and run by a minority, is obligated not to
deny admission to members of other communities on
ground only of religion, race, caste and language—
Sidhrajbhai Sabbai v. State of Gujarat, AIR 1963 SC 540.

• In Ahmedabad St. Xavier’s College v. State of Gujarat,

AIR 1974 SC 1389, a provision in Gujarat University Act
authorizing University to undertake teaching in
undergraduate classes and deprive the minority colleges
from such teaching was held to infringe A. 30. Power in
the University to make affiliated colleges as constituent
colleges and integrate them with the University was held
not applicable to minority colleges for they would
thereby lose their individual and minority character.

• Minority educational institutions can be placed in two

categories:

• (1) Institutions receiving aid from the state;

• (2) Institutions not getting aid from the state

• Each category has to be further sub-divided as schools,

undergraduate colleges, post-graduate colleges and
professional colleges—TMA Pai

• Minority institutions shall not be discriminated in giving

govt. grants.
• Regulatory measures must be designed towards
achievement of goal of making minority educational
institutions effective instruments of imparting
education, without impinging upon the rights u/A. 30(1)—
Frank Antony Public School Employees’ Association v.
UOI, AIR 1987 SC 311.

• Regarding grant to minority institutions, SC observed in

St. Stephen’s College, AIR 1992 SC 1630:

• “Educational institutions are not business houses. They

do not generate wealth. They cannot survive without
public funds or private aid. …. The minorities cannot
therefore be asked to maintain educational institutions
on their own.

• In Chandana Das v. State of WB, (2015) 12 SCC 140, SC

observed:

• Though grant in aid is not included in constitutional

guarantee to linguistic and religious minorities, such
grant cannot be denied only because the institutions are
established by a linguistic or religious minority.

• Receipt of grant from Government/University does not

affect the minority nature of the institution.

• Right of minorities under Article 30(1), is not absolute

and is subject to regulations, Islamic Academy of
Education v. State of Karnataka, (2003) 6 SCC 697.
• Right under Article 30(1) is subject to reasonable
restrictions under Article 19(6) r/w Article 19(1)(g):
• (1) reasonable restrictions in public and national
interest, and

• (2) Government regulation to achieve excellence in

educational standards and to prevent mal-administration
are permissible.

• At the same time, power to regulate is not unlimited so

as to destroy the rights conferred, Sindhi Education
Society v. Govt. (NCT of Delhi), (2010) 8 SCC 49.
• Although unlike Article 19 right conferred on the
minorities is absolute, unfettered and unconditional this
does not mean that this right gives a free licence for
maladministration so as to defeat the avowed object of
the article namely, to advance excellence and perfection
in the field of education, All Saints High School v. Govt.
of A.P. (1980) 2 SCC 478. See also Frank Anthony Public
School Employee's Assn. v. Union of India, (1986) 4 SCC
707 and St. Stephen's College v. University of
Delhi, (1992) 1 SCC 558.
• RIGHT TO PROPERTY AND PROVISIONS OF THE
CONSTITUTION:

• Originally, Art. 19(1)(f) guaranteed every citizen right to

acquire, own, possess and deal with property.

• Under Art. 31(1), No person shall be deprived of his

property without the authority of law.

• Under Art. 31(2), no property shall be taken possession

of or acquired for public purpose, unless the law
providing for acquisition or taking possess should either
 fix the amount of compensation or lay down the
principles for determination of compensation.

• Art. 31(2) was later on amended substituting the word

‘compensation’ by ‘amount’ which may be paid by cash
or otherwise than cash.

• Arts. 19(1)(f) and 31 (1) and (2) have been deleted. There
is now no fundamental right to property.

• Today, we have Arts. 31A, 31B and 31C and Art. 300 A
whereby Right to property is a constitutional right and
not a fundamental Right.

• REASONS FOR CONSTITUTIONAL CHANGES:

• (1) After the independence, the Central and State

Governments introduced agrarian reforms, which
provided for conferring rights of property on the tiller, for
abolishing zamindari system, security of tenure to
tenants and ceiling on land holdings.

• (2) Central and State Governments introduced urban

ceiling measures with a view to provide for housing to
people, clearance of slums, town-planning and
controlling of rents.

• (3) Law also provided for Nationalization of private

undertakings for management and control over those
undertakings for public benefit.

• EMINENT DOMAIN

• Eminent domain is the Inherent right of state, as an

essential incident of its sovereignty, to take private
Property for public use.
• It depends upon the superior domain of the state over all
property within its boundaries.

• In US ex Rel TVA v. Welch, 327 US 546, US SC described

eminent domain thus:

• “When public need requires acquisition of property, the

need is not to be denied because of an individual’s
willingness to sell. When real need arises, individual may
be required to relinquish ownership of property so long
as they are given just compensation which the
Constitution requires”

• Two essential ingredients of eminent domain are:

• (1) property is taken for public use

• (2) compensation is paid for the property taken

• In State of Bihar v. Kameshwar Singh, AIR 1952 SC 458,

our Supreme Court emphasized that power to acquire
property compulsorily mean power to take property for a
public purpose and for compensation.

• Eminent domain is “the power of the sovereign to take

property for public use without the owner’s consent upon
making just compensation”—State of WB v. UOI, AIR
1963 SC 1241.

• Art.31A: Laws providing for acquisition of estates, take

over of corporation etc., have been saved by article 31A
against challenge on the ground of alleged infringement
of Art. 14 of 19.

• By repeal of Art. 19(1)(f) and 31, much of rationale

underlying Art. 31A has disappeared.
• Art. 31A(1)(a) envisages—

• (i) acquisition by the state of estate or of any rights

therein;

• (ii) extinguishment of the rights of the holder; or

• (iii) modification of any such right.

• Word ‘estate’ does not have a uniform meaning

throughout the country. Estate as per Art. 31A(2)(a)
would have the same meaning as is given to it by a local
law relating to land tenures.

• Prima facie, Art. 31A(1)(a) appears to be applicable to all

kinds of extinguishment or modification of estates.

• In Kavalappara K Kochunni v. State of Madras, AIR 1960

SC 1080, SC held that its purpose was agrarian reform
and therefore the provision will protect only such
legislation made for agrarian reform.

• In Vajravelu v. Special Deputy Collector, AIR 1965 SC

1017, a law providing for acquisition of land for urban
development – slum clearance, housing schemes,
creation of modern suburbs near towns – was held to be
having no relation with agrarian reform and therefore
struck down.

• In State of Kerala v. Gwalior Rayon & Silk Manufacturing

Company Limited, AIR 1973 SC 27334, it was held that
once a law is found to have relation to agrarian reform,
it is protected by Art. 31A(1)(a).

• Second proviso was added in 1964 imposing a limitation

that land held by a person under his personal cultivation
 up to ceiling fixed by law, or any building or structure
standing thereon, or as appurtenant thereto, would not
be acquired unless law provides for compensation not
less than its marked value.

• U/A. 31A(1)(b) state is protected from any liability in case

takes over, for a temporary period, management of any
property in public interest, or to secure its proper
management., without paying any compensation.

• Art. 31A(1)(c) and (d) protect changes introduced in the

company law to eliminate the managing agency system,
or to provide for compulsory amalgamation of two or
more companies in national interests, transfer of an
undertaking from one company to another. 31A(1)(c)
extends to cooperative sector also.

• Purpose of Art. 31A(1)(e) is to enable the state, in the

interest of national economy, to have full control over the
oil and mineral resources of the country.

• By Art. 31B, Acts and Regulations specified in the Ninth

Schedule have been saved against challenge on the
ground of inconsistency with, taking away or abridging
any fundamental right.

• It contains a device for saving laws from challenge on

the ground of violation of fundamental rights, not
necessarily agrarian reforms.

• After the date of decision in Kesavananda Bharati,

including of any law in the 9th Schedule is open to
challenge on the ground of damage to the basic structure
 of Constitution.—Waman Rao v. Union of India, AIR 1981
SC 271

• In L. Chandrakumar v. UOI, AIR 1997 SC 1125, SC held

that the power of judicial review over legislative action
vested in the High Courts under A. 226 and in this Court
u/A.32 is an integral and essential feature of the
Constitution.

• IR Coelho v. State of TN (2007) 2 SCC 1, Court held that

A. 31B only provides restricted immunity and it seemed
that the original intent was only to protect a limited
number of laws (relating to agrarian reforms). Court
further held that Part III is amendable but subject to the
basic structure doctrine.

• ART. 31 C

• 25th Amendment added Art. 31C stating

“Notwithstanding anything contained in Art. 13, no law
giving effect to policy of State towards securing the
principles specified in A. 39(b) or (c) shall be deemed to
be void on the ground that it is inconsistent with, or
takes away or abridges any of the rights conferred by
Arts. 14, 19 or 31; and no law containing a declaration
that it is for giving effect to such policy shall be called in
question in any Court on the ground that it does not give
effect to such policy.
• Second part of Art. 31 C sought to oust the jurisdiction of
courts. In Kesavananda Bharati v. State of Kerala, AIR
1973 SC 1461, first limb of Art. 31 C was held valid.
• Regarding second limb, court held that a declaration as
mentioned in original Act could not be conclusive and
Court must consider whether there was a nexus between
the Act and policy of the Directive Principles in A. 39(b)
and (c). The declaration could not debar the Court from
striking down any provision therein violating Arts. 14, 19
and 31.

• Art. 31C was further amended by 42nd amendment,

making it much more drastic.

• No law giving effect to any Directive Principle would be

deemed to be void on the ground of inconsistency with
Arts. 14 and 19. Amendment thus gave primacy to
Directive Principles.

• Justification was: “Rights of community must prevail

over the rights of the individual”.

• In Waman Rao v. UOI, AIR 1981 SC 271 also SC held that

31C as it stood prior to 42nd amendment only was valid.

• A law would get protection u/Art. 31C if “its object is to

give effect to the Directive Principle” and this connection
must not be “some remote or tenuous connection”—
Sanjeev Coke Manufacturing Company v. Bharat Coking
Coal Co. Ltd., AIR 1983 SC 239.

• In Bishamber Dayal Chandra Mohan v. State of UP, AIR

1982 SC 33, SC held that a person can be deprived of his
property “only by authority of law and not by a mere
executive fiat or order”.
• Acquisition of property now involves payment of some
money in lieu thereof.

• RIGHT TO CONSTITUTIONAL REMEDIES

• 32(1) The right to move the Supreme Court by

appropriate proceedings for the enforcement of the
fundamental rights is guaranteed.

• (2) The Supreme Court shall have power to issue

directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this
Part.

• (3) Without prejudice to the powers conferred on the

Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

• (4) The right guaranteed by this article shall not be

suspended except as otherwise provided for by this
Constitution.

• U/Art. 32(1), Constitution guarantees to every citizen his

right to move the SC for enforcement of fundamental
rights. He can seek issue of writs in the nature of any of
the five Writs mentioned in Art. 32(2). A citizen may also
move the High Court concerned seeking the issue of
writs of violation of fundamental rights or for any other
cause.
• DIFFERENT KINDS OF WRITS are (1) Writ of Habeas
Corpus; (2) Writ of Quo Warranto; (3) Writ of Mandamus;
(4) Writ of Certiorari; and (5) Writ of Prohibition.

• WRIT OF HABEAS CORPUS:

• Habeas corpus means bring the body. Writ of habeas

corpus is used to secure release of a person who has
been detained unlawfully or without legal jurisdiction.
Detention can also be not in accordance with law or the
procedure established by law.

• A person who is not produced before a Magistrate within

24 hours of his detention is entitled to be released (Art.
22)

• If power of detention is abused, detention would become

unlawful—G Sadanandan v. State of Kerala, AIR 1966 SC
1925, Ram Manohar Lohia v. State of Bihar, AIR 1996 SC
740.

• While dealing with a habeas corpus petition, Court may

examine legality of detention without requiring the
person to be produced before it – Kanu Sanyal v. Dist.
Magistrate, AIR 1973 SC 2684.

• Even though petitioner has not properly framed the

petition and not sought appropriate relief, court would
take a liberal approach in procedural aspects –Cherukuri
Mani v. State of AP (2015) 13 SCC 722.

• Habeas Corpus may also be issued when a person

complaints of illegal custody or detention by a private
 person—Madhu Bala v. Narendra Kumar, AIR 1982 SC
938.

• It is not necessary that the person in unlawful/illegal

custody should move the Court. It is sufficient if some
other interested person moves the Court in case the
person affected is incapacitated.

• WRIT OF QUO WARRANTO

• This writ calls upon the holder of a public office to show

to court under what authority he is holding that office.

• It is a weapon to control the Executive from making

appointments to a public office against law and protect
citizens from being deprived of public office to which he
has right – Renu v. Dist. Judge, AIR 2014 SC 2175

• Court can scrutinize the qualifications of the person

whose appointment to public office is called in to
question – Durga Chad v. Administrator, AIR 1971 Del 73.

• For a writ of Quo Warranto to be issued, it is not

necessary that petitioner has suffered a personal injury
himself or should seek a personal grievance – Satish
Chander v. Rajasthan University, AIR 1970 Raj 184.

• WRIT OF MANDAMUS

• Mandamus is a command issued by a Court commanding

a public authority to perform a public duty belonging to
its office—Guruswami v. Mysore, AIR 1954 Sc 592.

• Petitioner has a legal right and there exists a

corresponding duty or obligation on some public
authority.
• Mandamus is issued to enforce performance of public
duties by authorities of all kinds.

• When a tribunal omits to decide a matter, which it is

bound to decide, it can be commanded to determine the
question which it has left undecided—Parry & Co. v.
Commercial Employees Association, AIR 1952 SC 179.

• Court will also step in when the discretion exercised by

a public authority has not been done legally or validly.

• Object of mandamus is to prevent disorder from a failure

of justice .. And where justice despite demand has not
been granted – UOI v. SB Vohra, (2004)2 SCC 150.

• Mandamus can be granted only when a legal duty is

imposed on the authority in question and petitioner has
a legal right to compel performance of such duty.
Performance of duty must be imperative.

• Court may recognize promissory estoppel and legitimate

expectation as causes of action for invoking mandamus
jurisdiction – Ram Provesh Singh v. State of Bihar, (2206)
8 SCC 294.

• Being a public law remedy, action of the authority should

fall in the realm of public law.

• Mandamus is a discretionary remedy and High Court or

SC has full discretion to refuse to issue the writ in
unsuitable cases—State of Kerala v. KPWSWLC Co-op
Society Ltd. AIR 2001 Ker. 60.

• Mandamus is not issued if the right is purely of a private

character.
• Mandamus cannot be issued to violate law. It cannot
issue to compel an authority to pass an order in violation
of a statutory provision—Santosh Kumar v. State of
Bihar, AIR 1997 Sc 978.

• WRITS OF CERTIORARI AND PROHIBITION

• Certiorari and Prohibition are issued practically on

similar grounds. Difference is:

• Certiorari is issued to quash a decision after decision is

taken by lower tribunal.

• Writ of prohibition is issuable before the proceedings are

completed.

• Object of writ of prohibition is prevention rather than

cure. Eg., High Courts and SC can issue writ of
prohibition to restrain a tribunal from acting under an
unconstitutional law.

• Certiorari is the proper remedy where tribunal has

already taken the decision.

• In the absence of cogent or strong reason, issuance of

prohibition is improper.

• Certiorari can be issued even if the case is between two

private parties.

• It is not appellate jurisdiction. High Court or SC cannot

act as appellate court.

• The writs go to a body acting in an adjudicatory capacity

and according to natural justice or fair procedure and not
to one acting in a purely administrative manner.
• Courts have expanded the horizons of natural justice.
Certiorari has been issued:

• (1) to authorities dealing with licensing liquor shops

• (2) passing orders of confiscation or imposing penalty

u/Sea Customs Act –Swepujanrai v. Customs Collector,
AIR 1958 SC 398.

• (3) to tax assessment proceedings – KT Moopil Nair v.

State of kerala, AIR 1961 SC 552

• (4) to cancellation of examination result of a candidate

or expulsion of a student of a University – Board of High
School v. Chitra, AIR 1970 SC 1039.

• (5) to Industrial tribunals, election tribunals etc.

• (6) to removal from membership of a body

• (7) to cancellation of licence

• In Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477,

SC stated that Writ of Certiorari or prohibition is issued,
inter alia, on the following grounds:

• (1) When the body concerned proceeds to act without

jurisdiction or in excess of jurisdiction

• (2) Fails to exercise jurisdiction

• (3) There is an error of law apparent on the face of the

record in the impugned decision of the body.

• (4) Findings of fact reached by the inferior tribunal are

based on no evidence
• (5) Inferior tribunal proceeds to act in violation of the
principles of natural justice

• (6) Inferior Tribunal proceeds to act under a law which is

itself invalid, ultra vires or unconstitutional

• (7) Tribunal proceeds to act in contravention of

Fundamental Rights.

• RIGHT TO MOVE THE SUPREME COURT.

• Right of access to Supreme Court u/Art. 32 is a

Fundamental Right itself—Bodhisathwa v. Subhra
Chakraborty, AIR 1996 SC 922.

• Violation of fundamental right is a sina qua on of the

exercise of the right conferred by Art. 32—Federation of
Bar Association in Karnataka v. UOI, AIR 2000 SC 2544.

• In Romesh Thappar v. State of Madras, AIR 1950 SC 124,

SC held that Supreme Court is constituted as protector
and guarantor of Fundamental Rights, and it cannot
consistently refuse to entertain applications seeking
protection against infringement of such rights.

• Right to move Supreme Court was described as

cornerstone of democratic edifice raised by Constitution
in Prem Chand Garg v. Excise Commission, UP, AIR 1963
SC 996.

• In order to enforce a Fundamental Right, judicial review

of administrative, legislative and governmental action or
non-action is permissible. But Art. 32 cannot be invoked
simply to adjudge the validity of any legislation or
administrative action unless it adversely affects
 petitioner’s Fundamental Rights—Shantabhai v. State of
Maharashtra, AIR 1958 SC 532.

• It is the duty of SC to provide a protective umbrella for

sustenance of Fundamental rights of citizens– State of
Karnataka v. State of Tamil Nadu, (2017) 3 SCC 362.

• Existence of an alternative remedy is no bar to Supreme

Court entertaining a petition u/Art. 32 for enforcement of
a Fundamental Right.

• When petitioner establishes infringement of his

Fundamental Right, Court has no discretion but to issue
an appropriate writ in his favour—Daryao v. State of UP,
AIR 1961 SC 1457.

• SIMILARITY AND DISTINCTION BETWEEN ART. 32 AND

226

• Art, 32 can be invoked only for enforcement of

Fundamental Rights.

• Art, 226 can be invoked not only for enforcement of

Fundamental Rights but for ‘any other purpose’ as well.

• Yet, SC invoked its power u/Art. 32 in some exceptional

circumstances like

• (1) misuse of ordinance making power by the State of

Bihar –DC Wadhwa v. State of Bihar, AIR 1987 SC 579.

• (2) Appointment of Judges of the High Courts and

Supreme Court –Supreme Court Advocates on Record
Association v. UOI
• (3) Issues related to the procedure to remove a Supreme
Court Judge—Sarojini Ramaswami v. UOI, AIR 1992 SC
2219.

• In Tamil Nadu Cauvery NVVNUP Sangam v. UOI, AIR 1990

SC 1316, writ petition was filed for direction to GOI to
refer Cauvery water dispute to a tribunal and it was
pending for seven years. Court ruled that to throw out the
petition after seven years by accepting the object
against its maintainability would be ignoring the actual
state of affairs, would be too technical an approach and
would be wholly unfair and unjust”.

• A person can directly approach the SC for violation of

fundamental right, even though he has the same remedy
before High Court—Romesh Thapper (AIR 1950 SC 124),
State of Madras v. VG Row (AIR 1959 SC 725); Kharak
Singh v. State of Uttar Pradesh, AIR 1963 SC 1295;
Kochunni v. State of Madras

• Art. 32 being a fundamental right, cannot be diluted by

any legislation.

• Power of SC u/Art. 32 or High Courts u/A 226 cannot be

taken away, curtailed or diluted—Alsia Pardhi v. State of
M.P., (2014) 2 SCC 725.

• Art. 32 is also available when Fundamental Right is

violated

• (i) by a quasi-judicial authority acting under a ultra vires

law.
• (ii) when assessing authority seeks to impose a tax
against constitutional prohibition.

• (iii) even though the statute is intra vires but authority

acts without jurisdiction or wrongly assumes
jurisdiction– STC v. Mysore, AIR 1963 SC 558.

• (4) where action taken is procedurally ultra vires, when

principles of natural justice are infringed—Coffee Board
v. Commercial Tax Officer, AIR 1971 SC 870.

• Fundamental Rights u/Arts. 17, 21, 23 or 24 are available

against private persons also. Court may make
appropriate orders against violation of such rights by
such persons—PUDR v. UOI, AIR 1982 SC 1473.

• LOCUS STANDI – WHO CAN APPLY FOR A WRIT?

• Any person whose Fundamental Right has been infringed

has locus standi to move SC u/Art. 32.

• A person is not generally competent to seek enforcement

of rights of another except when permitted by law—GC
College Silchar v. Gauhati University, AIR 1973 SC 761.

• EXCEPTIONS

• (1) Petition for a writ of habeas corpus can be made not

only by person detained or imprisoned but by any person
(except a stranger) for liberating the detained from
illegal imprisonment/detention– Sunil Batra v. Delhi
Admn. (II) AIR 1990 SC 1579.

• (2) In case of a writ of Quo Warranto also, rule of locus

stand is relaxed.
• (3) Over a period of time, Supreme Court has taken liberal
view of locus standi

• (4) A public spirited individual could file a writ petition

u/Art. 32—Upendra Baxi v. State of UP (1981) 3 Scale
1136. A journalist could file such a petition—Bolonath
Tripathi v. State of U.P. (1990) Supp SCC 1.

• (5) An unrecognized association was permitted to file

Writ Petition in ABSK Sangh (Railway) v. UOI, AIR 1981
SC 298.

• (6) SC now takes a liberal view of locus standi to file a

Writ petition u/A. 32. A social action group could similarly
approach SC for enforcement of constitutional or legal
rights of some others—Shenoy K. Ramdas v. Chief
Officer, AIR 1974 SC 2127.

• (7) SC/High Courts may themselves take cognizance of a

matter and proceed suo motu or on a petition by a public
spirited individual or body (PIL) --Bodisathwa Gautam v.
Subbra Chakraborty, AIR 1996 SC 722; Common Cause v.
UOI, (2014) 6 SCC 552; Hussainara Khatoon cases etc.

• (8) In Gaurav Jain v. UOI, AIR 1997 SC 3019, question

raised concerned rehabilitation of children of
prostitutes.

• To facilitate filing of such cases by public minded

citizens, court has lowered the locus standi thresholds—
Ranji Thomas v. UOI (2000) 2 SCC 81.

• In Sheela Barse v. UOI, AIR 19808 SC 2211, SC explained:

The technique of public interest litigation serves to
 provide an effective remedy to enforce group rights and
interests.

• Many a time important public issues involving

interpretation of constitutional provisions are raised
through PIL – SP Gupta, Bandhuka Mukti Morcha, Sheela
Bars, MC Mehta etc.

• Power of SC is not restricted to five writs mentioned in

Art. 32 because:

• (1) power of the court is inclusive

• (2) court has power to issue writs in the nature of the five
specified writs.

• In MC Mehta v. UOI, AIR 1987 SC 1086, SC explained:

• This Court u/A. 32(1) is free to devise any procedure

appropriate for the particular purpose of proceeding, viz.,
enforcement of a Fundamental Right and has implicit
power to issue whatever direction, order or writ is
necessary in a given case including all incidental or
ancillary power necessary to secure enforcement of the
Fundamental Rights.

• Court may award even damages – In Rudhal Shal,

Bodhisattwa Gautam, Chairman, Railway Board v.
Chandrima Das. SC granted damages: --

• (a) where petitioner had suffered personal injuries by

tortious acts of govt. servants—Bhim Singh v. State of
J&K, AIR 1981 SC 494, PUDR v. State of Bihar, AIR 1987
SC 355; Rudhal Shah v. State of Bihar, AIR 1983 SC 1086.
• (b) Police atrocities – DK Basu v. State of West Bengal–
1997

• (c) Custodial death – Neelabati Behra v. State of Orissa,

AIR 1993 SC 1960

• (d) Medical Negligence – Paschim Banga Khet Mazdoor

Samity v. State of WB, AIR 1996 SC 2426.

• (e) Environmental pollution – MC Mehta series.

• SC may also issue general directions as in:

• (1) Visakha v. State of Rajasthan to prevent and

discourage sexual harassment of women at work places.

• (2) Rajasekharan v. UOI, (2014) 6 SCC 36, Court issued

directions to all States/Uts and Central Govt. to take
affirmative action to reduce road accidents.

• (3) UOI v. Association for Democratic Rights, SC issued

certain directions to Election Commission

• (4) Lakshmi Kant Pandey v. UOI, guidelines were issued

for adoption of minor children by foreigners.

• (5) SC Advocates on Record Assn., guidelines were

issued regarding appointment and transfer of Judges of
High Courts and SC.

• (6) In Vineet Narain v. UOI, AIR 1998 SC 889 – directions

issued to ensure independence of Central Vigilance
Commission and reduce corruption.

• (7) In Common Cause v. UOI, (AIR 1996 SC 929) for

revamping the system of blood banks
• (8) In Vishwa Jagriti Mission v. Central Govt. , JT 2001
(6) SC 151 – guidelines against ragging in educational
institutions were issued.

• Rights under Articles 32 and 17, 23 and 24 are

enforceable against any private person
also, PUDR v. Union of India, (1982) 3 SCC 235.

• Even a letter can be treated as a writ petition if in the

nature of Public Interest Litigation.See also M.C.
Mehta v. Union of India, (1987) 1 SCC 395.
• Article 32, is not concerned with the decision but the
decision-making process, Dwarkadas
Marjatia and
Sons. v. Board of Trustees of the Port of Bombay, (1989)
3 SCC 293.

• ART. 33 - MILITARY LAW AND FUNDAMENTAL RIGHTS.

• Art. 33 empowers Parliament to determine by law, to

what extent any of the RFs. Shall apply to the members
of the Forces enumerated in clauses (a) to (d).

• Art. 33 does not itself restrict or abrogate any

Fundamental Right. It empowers the Parliament to
restrict or abrogate such rights. Members of Armed
Forces includes “civilians” and those in combat.

• Art. 33 applies to military and para military forces, police

officers and analogous forces.

• Parliament enacted the Public Forces (Restriction of

Rights) Act, 1966 and the Intelligence Organizations
(Restriction of Rights) Act, 1985 restricting the
 Fundamental Rights of members of certain Intelligence
agencies.

• The Act prohibits the staff from participating in trade

union activities or associating with any political
organization or communicating with the press. It is a
cognizable offence to do so.

• Members of the police forces is prohibited without

consent of Central Govt. or prescribed authority to be a
member of trade union, labour union or political
association, not specifically recognized as part of the
forces.

• A member of the service cannot communicate with

press, publish any book, letter or any other document
except those published in discharge of duty. He shall not
participate in any meeting or demonstration organized
for any political purpose. Breach of the rule is punishable
with imprisonment or/and fine.

• In Charu Khurana v. UOI (2015) 1 SCC 192, SC held that

a trade union registered under statutory provisions
cannot make a rule, regulation or by law contrary to the
constitutional mandate.

• In Ram Swarup v. UOI, AIR 1965 SC 247, a duly

constituted Court Martial sentenced the petitioner to
death and the Central Govt. confirmed the sentence.
Petitioner filed Habeas Corpus petition u/A. 32 on the
ground that the provisions of the Army Act infringed Art.
14 and his trial u/A. 22(1) by not allowing a legal
 practitioner of his choice before the Army Authority. The
argument was rejected by the Supreme Court.

• In UOI v. A Hussain, AIR 1998 SC 577, SC held that if a

Court Martial is properly convened and where there is no
challenge to the composition of the Court Martial, and
proceedings are in accordance with the procedure
prescribed, High Court cannot interfere.

• MARTIAL LAW – ART. 34

• The term ‘Martial Law’ covers three powers:

• (1) The power exercisable by the General Command of

Army over inhabitants of an enemy country during war.

• (2) To denote military law i.e., law applicable to the

Armed Forces (Art. 33)

• (3) When there is a state of war, insurrection or rebellion

in any part of the country, force necessary in the
circumstances to restore order may be used. This is also
characterized as martial law.

• A. 34 provides that, notwithstanding guarantee of

Fundamental Rights, and power to move Supreme Court,
Parliament may pass any law indemnifying any Govt.
servant or other person in respect of any act done by him
in connection with maintenance or restoration of order
in any area within the territory of India.

• Power of the Parliament u/Art. 34 is subject to two

conditions:
• (1) The act to be indemnified must have been done in
connection with the maintenance or restoration of order,
or

• (2) martial law must be in force in the area where the act
was done.

• Martial law is much more restrictive than emergency u/A.

352. Emergency cannot come into existence without a
Presidential proclamation. No proclamation is necessary
for enforcement of martial law on the factual existence
of insurrection or rebellion.

• As soon as martial law situation arises, civil courts’

power to interfere with military action automatically
come to an end.

• In Inderjit Barua v. State of Assam, AIR 1983 Del 513,

Court affirmed the constitutional validity of the Armed
Forces (Assam & Manipur) Special powers Act, 1958
conferring Spl. Powers on members of Armed Forces in
the disturbed areas of Assam, Manipur, Nagaland,
Tripura, Meghalaya and Arunachal Pradesh.

• 35. LEGISLATION TO GIVE EFFECT TO PART III OF THE

CONSTITUTION.

• 35(a)(i) Art. Confers on Parliament (and not State

legislature) power to make law with respect to any
matter u/A. 16(3), 32(3), 33 and 34.

• Art. 16(3) prescribing residence within a state as

qualification for employment in the State.
• Art. 32(3) empowers courts other than SC and High
Courts to issue writs and orders to enforce Fundamental
Rights.

• Art. 33 providing for abrogation of, or restriction on,

Fundamental Rights or Armed forces and the police in
the interests of discipline and efficiency of forces.

• Art. 34 Passing an Act of indemnity after operation of

martial law in any area.

• Art. 35(a)(ii) confers on Parliament (and not the State

Legislatures) power to make law for prescribing
punishments for those acts which are declared offences
under Fundamental Rights, such as

• Art. 17 prescribing punishment for enforcement of an

disability arising out of untouchability

• Art. 23(1) prescribing punishment for traffic in human

beings and imposition of beggar and other forms of
forced labour.

• Parliament is empowered because “uniformity can be

achieved and maintained only when the power is
exercised by Parliament and not by State Legislatures”—
Vishal Jeet v. UOI, AIR 1990 SC 1412.

DIRECTIVE PRINCIPLES OF STATE POLICY (Arts. 36 to 51)

• Constitution makers were aware that in a poor country

like India, political democracy would be useless without
economic democracy. They therefore borrowed the
Directive Principles from Irish Constitution.
• In a welfare state, aim of Directive Principles is to
achieve the GREATEST GOOD OF THE GREATEST
NUMBER and BENEFIT OF ALL AND HAPPINESS OF ALL.

• In Lala Ram v. UOI, (2015) 5 SCC 813, Supreme Court

observed: Optimal and desirable levels of social services
are to be provided by a welfare State.

• Directive Principles are designed to usher in a social and

economic democracy.

• These principles obligate the State to take positive

action in certain directions to promote the welfare of the
people and achieve economic democracy.

• Fundamental Rights differ from Directive Principles. FRs

impose a negative duty on the State. DPSPs seek to
achieve a welfare State through positive action.

• Originally, DPSPs were more akin to moral rather than

legal precepts.

• Preamble sets out India to be a SOCIALIST SECULAR

DEMOCRATIC REPUBLIC and promises to secure to all
its citizens

• Justice – Social, economic and political

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

• Equality of status and of opportunity &

• Fraternity assuring the dignity of the individual.

• CONCEPT OF EQUALITY IS NOT STATIC BUT DYNAMIC

• Progressive measures to eliminate group disabilities and
promote collective equality are not antagonistic to the
concept.

• In Valsamma Paul v. Cochin University, AIR 1996 SC

1101, SC said: “Equal protection requires affirmative
action for those unequals handicapped due to historical
facts of untouchability practices for millennium which is
abolished by Art. 17”.

• Ideals stated in Preamble are reinforced through DPSPs

--Goal of economic democracy, socio-economic content
of political freedom, principles of welfare state etc.

• DPSPs supplement the preamble.

• DPSPs have played a crucial role in legislative and

administrative policy making – idea of socialist pattern
of society, process of planning, agrarian and industrial
reforms.

• JUSTICIABILITY OF DPSPs

• Art. 37 states: DPSPs are not enforceable by any court.

• Nevertheless, the principles are fundamental to the

governance of the country.

• “State” is directed to formulate policies and plans in

accordance with the Directive Principles. Art. 36
contains the same definition of “State” as in Art. 12.

• Non-enforceability or non-justiciability means – A court

will not issue an order or writ of mandamus to Govt. to
fulfil a Directive Principle, as they do not create any
 justiciable right for any individual—Ranjan Dwivedi v.
UOI, AIR 1983 SC 624.

• INTER-RELATIONSHIP BETWEEN FUNDAMENTAL

RIGHTS & DPSPs

• In State of Madras v. Champakam Dorairajan, a Govt.

Order in conflict with Art. 29(2) was declared invalid by
SC, on the view that DPSPs should conform and run as
subsidiary to Fundamental Rights.

• Judicial attitude has perceptibly changed since then.

• In re Kerala Education Bill, AIR 1958 SC 956, Das CJ,

while affirming primacy of Fundamental Rights over
DPSPs, sought harmonious interpretation of the two.

• In Chandra Bhavan Boarding & Lodging, Bangalore v.

State of Mysore, AIR 1970 SC 2042, SC said that there is
no “conflict” on the whole “between Fundamental Rights
and the Directive Principles”.

• In State of Kerala v. N M Thomas, AIR 1976 SC 490, SC

said:

• Directive Principles and Fundamental Rights should be

construed harmoniously with each other and every
attempt should be made by the Court to resolve any
apparent inconsistency between them.

• The purpose of DPSPs is to fix certain socio-economic

goals for immediate attainment by bringing about a non-
violent social revolution – Pathumma v. State of Kerala,
AIR 1978 SC 771, and Constitution aims at bringing about
a synthesis between the two.
• In Olga Tellis v. Bombay Municipal Corporation, AIR 1986
SC 194, SC observed:

• “Since Directive Principles are fundamental in the

governance of the country, they must be regarded as
equally fundamental to the understanding and
interpretation of the meaning and content of
Fundamental Rights”

• “Fundamental rights are “not an end in themselves but

are the means to an end”.

• Fundamental Rights and Directive Principles “together

constitute the core of our constitution” and combine to
form its conscience – Minerva Mills v. UOI, AIR 1980 SC
1789.

• “They are complementary and supplementary to each

other”– Jeevan Reddy J. in Unnikrishnan v. State of AP,
AIR 1993 SC 2178.

• In Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104,

SC said that the “Core of commitment of the Constitution
to the social revolution through rule of law lies in
effectuation of Fundamental Rights and DPSPs as
supplementary and complementary to each other”.

• This has now been the consistent view of the Supreme

Court and this view has helped in interpreting the right
to life u/Art. 21 most beneficially to cover a bundle of
other rights.
• 1. Right to live with human dignity enshrined in Art. 21
derives its life breath from DPSPs—Bandhuka Mukhti
Morcha v. UOI, AIR 1981 SC1984.

• 2. Right to life includes the right to enjoy pollution free

water and air and environment—Subash Kumar v. State
of Bihar, AIR 1991 SC 420.

• 3. Right to health and social justice are Fundamental

Right of workers. Employer is obligated to protect “the
health and vigour of his employee workers – Court
derived this right by reading Art. 21 with Arts. 39(e), 41,
43 and 48A—Consumer Education and Research Center
v. UOI, AIR 1995 SC 922.

• 4. Right to shelter – Chameli Singh v. State of UP, AIR

1996 SC 1051.

• 5. Right to education implicit in Art. 21 in the light of

Directive Principles contained in Arts. 41 and 45 –
Unnikrishnan v. State of AP.

• Art. 38 envisages legal justice and economic justice.

Constitution makers have given a broad outline for law-
making and policy-making for the overall development of
the country in Arts. 38 and 39.

• 38.(1) The State shall strive to promote the welfare of the

people by securing and protecting as effectively as it
may a social order in which justice, social, economic
and political, shall inform all the institutions of the
national life.
• Clause (2) directs that the State shall strive “to minimize
the inequalities in income” and to eliminate inequality of
status, facilities and opportunities not only amongst
individuals but also groups of people residing in different
areas, or engaged in different vocations.

• Reading Arts. 38, 42, 43, 46 & 48A together, Supreme

Court in Consumer Education & Research Center v. UOI,
AIR 1995 SC 923, concluded that right to health, medical
aid to protect the health and vigour of workers while in
service or post-retirement, is a Fundamental Right.

• Art. 38 supplemented is by Art. 39,

• 39. The State shall, in particular, direct its policy

towards securing—
(a) that the citizens, men and women equally, have the
right to an adequate means of livelihood;
(b) that the ownership and control of the material
resources of the community are so distributed as best to
subserve the common good;
(c) that the operation of the economic system does not
result in the concentration of wealth and means of
production to the common detriment;
(d) that there is equal pay for equal work for both men
and women;

• (e) that the health and strength of workers, men and

women, and the tender age of children are not abused
and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or
strength;
• (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.

• (as substituted by 42nd amendment, 1976).

• Art. 39(a) requires the policy makers to frame policies

whereby the development of country takes place in an
egalitarian manner and leads to the economic and social
development of all, men and women without any
discrimination.

• Taking recourse to Art. 39(a), SC interpreted Art. 21 to

include therein the “right to livelihood. But State may not
be compelled by affirmative action “to provide adequate
means of livelihood or work to the citizens”—Olga Tellis

• Any person, who is deprived of his right to livelihood

except according to just and fair procedure established
by law, can challenge the deprivation as offending the
right to life conferred by Art. 21.

• In Madhu Kishwar v. State of Bihar, AIR 1996 SC 1870, in

order to protect economic interests of tribal women
depending on agriculture for their livelihood, SC ruled
that on the death of last male holder in an agricultural
tribal family, dependent family female members have the
constitutional remedy of continuing to hold the land so
long as they remain dependent on it to earn their
livelihood.

• DISTRIBUTIVE ECONOMIC SYSTEM – 39(b) and (c)

• Art. 39(b) contemplates measures to secure equitable
distribution of community resources. Material resources
of community in the context of re-ordering national
economy embraces all the national wealth, not merely
natural resources, all private and public sources meeting
material needs—State of Karnataka v. Ranganatha
Reddy, AIR 1978 SC 215.

• All things, which are capable of producing wealth of the

community, would be material resources—Assam
Sillimanite Ltd. v. UOI, AIR 1992 SC 946.

• Taking over management by govt. of a sick textile mill

was characterized as in furtherance of Arts. 39(b) & (c)—
NT Corporation Ltd. v. Sitaram Mills, AIR 1986 SC 1234.

• Coking Coal Mines (Nationalisation) Act, 1972 and

similar Acts were held valid In Sanjeev Coke
Manufacturing Company v. Bharat Coking Company Ltd.,
AIR 1983 SC 239

• Constitutional scheme u/A. 39(b) and Art. 14 is to make

essential commodities available at a fair price—Ashoka
Smokeless Coal India (P) Ltd. v. UOI, (2007) 2 SCC 640.

• Urban Land Ceiling Acts were held to further the

Directive Principle in Art. 39(b)—Minerva Mills Ltd. v.
UOI, AIR 1986 SC 2030.

• NO CONCENTRATION OF WEALTH – Art. 39(c)– Agrarian

reforms such as vesting of ownership of land in the tiller
himself, secure the objections in Art. 39(b) & (c)—HS
Srinivasa Raghavachar v. State of Karnataka, AIR 1987
SC1518.
• Taxation of Capital and wealth u/Entry 86, List I is an
appropriate method for preventing concentration of
wealth—Asst. Commissioner v. B & C Company, AIR 1970
SC 169.

• Imposing ceilings on landholding fulfils Arts. 38 and 39—

Sonia Bhatia v. State of UP, AIR 1982 SC 1274.

• EQUAL PAY FOR EQUAL WORK: Art. 39(d). Art. 39(d)

exhorts that everyone, without any gender
discrimination, are paid equally for equal work, without
any discrimination.

• Equal Remuneration Act, 1976 was enacted to

implement Art. 39(d). Act provides for payment of equal
remuneration to men and women workers for the same
work.

• In PUDR v. UOI, AIR 1982 SC 1473, SC held that non-

observance of the Act by govt. contractors raise
questions u/Art. 14.

• “Equal pay for equal work” is not expressly declared as

a Fundamental Right but it may properly be applied to
prevent discriminatory pay scales– Associate Banks
Officers’ Association v. State Bank of India, AIR 1998 SC
32.

• Differentiation in pay scales among Govt. servants

holding different posts or different degree of
responsibility, ability and confidentiality, would be a
valid differentiation—Federation of All India Customs and
Central Excise Stenographers (Recognised) UOI, AIR
1988 Sc 129.
• WELFARE OF CHILDREN – 39 (e) and (f)

• Art. 39(e) prohibits abuse of the tender age of children

and 39(f) ensures that children grow in a healthy manner
and are protected from exploitation.

• In particular, state should direct its policy towards

securing that childhood and youth are protected against
exploitation and against moral and material
abandonment.

• Govt. of India has evolved a national policy for welfare of

children. It declares that “The Nation’s children are a
supremely important asset”.

• SC declared in Sheela Barse v. UOI, AIR 1986 SC 1773:

• “A child is a national asset and, therefore, “it is the duty

of the state to look after the child with a view to ensuring
full development of its personality”.

• SC expressed anguish on the pitiable condition of child

prostitutes in Vishal Jeet v. UOI, AIR 1990 SC 1412 and
in Gaurav Jain v. UOI, AIR 1990 Sc 292, set up a
committee to study the problem of rehabilitation of
children of prostitutes in all its aspects.

• : In Bandhua Mukti Morcha v. UOI, (2002) 5 SCC 745, read

Arts. 21 and 23 with Art. 39(e) and (f), 41 and 42 to secure
the release of bonded labour and free them from
exploitation.

• SC insisted on effective rehabilitation of the freed

bonded labour families—P.S. Sivaswamy v. State of AP,
AIR 1988 SC 1863.
• ACCESS TO JUSTICE

• Fundamental Rights guaranteed to the citizen by the

constitution would remain a far cry unless they are
assured access to justice without any discrimination and
wherever needed by giving free legal assistance by the
State. It was in realization of this truth that Art. 39A was
inserted by the 42nd amendment Act, 1976.

• Access to justice will be more of an illusion, if

adjudicatory mechanism provided is so expensive as to
deter a disputant from taking resort to the same.

• 39A provides that the State shall secure that the

operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular,
provide free legal aid, by suitable legislation or schemes
or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason
of economic or other disabilities.

• Art. 39A provides for a holistic approach in imparting

justice to the litigating parties. It includes not only
providing free legal aid but also ensuring that justice is
not denied to litigating parties due to final difficulties—
Manoharan v. Sivarajan, (2014) 4 SCC 163.

• Legal Services Authorities Act, 1987 was enacted to

take care of state-sponsored legal aid programmes.

• 2002 Amendment makes it mandatory for Central

Authority and Every State Authority to establish
Permanent Lok Adalats in respect of public utility
services.
• Public utility service is defined as any (1) transport
service for the carriage of passengers or goods by air,
road or water; or (ii) postal, telegraph or telephone
service; or (iii) supply of power, light or water to the
public by any establishment; or (iv) system of public
conservancy or sanitation; or (v) service in hospital or
dispensary; or (vi) insurance service, and includes any
service which the Central Govt. or State Govt. in public
interest by notification declare to be a public utility
service– S. 22A and 22B.

• A. 39A puts stress upon legal justice. It requires the state

to provide free legal aid to deserving people so that
justice is not denied to any one merely because of
economic disability—Rajoo v. State of MP, AIR 2012 SC
3034.

• A. 39A is addressed to legislature and executive. Yet

Courts too are bound by this mandate.

• DECENTRALISATION OF POWER AND DEMOCRACY AT

THE GRASS-ROOTS LEVEL

• 40. The State shall take steps to organise village

panchayats and endow them with such powers and
authority as may be necessary to enable them to
function as units of self-government.

• The Constitution makers were seeking to fulfil the dream

of Mahatma Gandhi who advocated for gramaswaraj,
meaning democracy at the village level. Idea behind
village panchayats is to introduce democracy at the
 grassroots. It envisages organization of lowest level
units of self-governance.

• They are the base democratic institutions of a pyramid

of democratically organized and functioning self-
governing units. To achieve this objective:

• (a) village panchayats are to be self-governing units at

the lowest end of democratic polity; (b) being self-
governing units, those governed by them and for whose
benefit they operate, would have a direct or an elective
indirect representative in them; (c) they have an
effective say in the conduct of their affairs including its
plans, policies and programmes and their execution; and
(d) they should have not only a sense of participation but
also an experience in the governance of their own
affairs.

• Arts 243 to 243O have been enacted to give effect to Art.

40. We have the three tier Panchayat system at the
bottom – Village panchayats, Block Panchayats and
District Panchayats in the villages and Municipalities
and Municipal Corporations at the Urban level, which are
governed by democratically elected representatives of
the people.

• ORGANISATION AND DEVELOPMENT OF A WORKFORCE

• Arts. 41 speaks of policies and programmes for human

resources development including by providing
education, providing unemployment assistance and by
protecting the citizen from sickness and disablement.
Art. 42 speaks of policies providing humane conditions
 of work and maternity relief. Art. 43 speaks of providing
a living wage to all working men and women and policies
and programmes for improving the standard of living of
workers. Art. 43A inserted by the 42nd amendment
requires policies and programmes enabling workers
participation in management and Art. 43B, inserted by
the 97th amendment speaks of voluntary formation and
management of cooperative societies.

• Art. 41 states that the State shall, within the limits of its
economic capacity and development, make effective
provision for securing the right to work, to education and
to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of
undeserved want.

• Arts. 41, 46 and 47 have to be read together. A. 41 is

applicable to all sections

• In AIIMS Students’ Union v. AIIMS, (2002) 1 SCC 428, SC

noted the possible conflict between Art. 46 on one hand
and Arts. 41 and 47 on the other in the matter of
education. Any reservation u/A. 46 may be an inroad on
right of others to work and to learn u/A. 41 and 17. Art.
41 is held to include medical education.

• One of the elements promoting dignified life is the right

to education. SC gave a broad connotation to Art. 21 to
the right to education in Mohini Jain v. State of
Karnataka, AIR 1992 SC 1858.

• It is open to Govt. to regulate setting up of private

educational institutions having regard to educational
 needs of locality—Govt. of AP v. JB Educational Society,
(2005) 3 SCC 212.

• State should ensure a reasonably decent standard of life,

medical aid, freedom from want, freedom from fear and
enjoyable leisure.

• Art. 42 states that the State shall make provision for

securing just and humane conditions of work and for
maternity relief.

• Art. 43 states that the State shall endeavour to secure,

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

• Art. 42 provides the basis of the large body of labour

laws.

• Referring to Arts. 42 and 43, SC in U.P.S.E. Board v. Hari

Shankar, AIR 1979 SC 65, emphasized that Constitution
expresses a deep concern for the welfare of the workers.
Courts may not enforce Directive Principles. But they
must interpret laws so as to further and not hinder the
goals set out in the Directive Principles.

• Art. 42 may “benevolently” be extended to living

conditions in jail. The barborous and subtle forms of
punishment, to which convicts and under trials are
 subjected to, offend against the letter and spirit of our
Constitution.

• Delhi Municipal Corporation granted maternity leave to

regular female workers but not to female workers on
muster roll on the ground that they were not regular.
Invoking Art. 42 – the concept of social justice, SC
conceded the demand of female workers on muster roll
for maternity leave—Municipal Corporation of Delhi v.
Female Workers (Muster Roll) AIR 2000 SC 1274.

• LIVING WAGE – FAIR WAGE AND MINIMUM WAGE

• Art. 43 requires State to endavour to secure by suitable

legislation or economic organization or in any other way,
to all workers, a living wage, conditions of work ensuring
decent standard of life and full employment of leisure
and social and cultural opportunities, to promote cottage
industries on an individual or cooperative basis in rural
areas.

• Living wage is such wage as enables the male earner to

provide for himself and his family not merely the bare
essentials of food, clothing, shelter, but a measure of
frugal comfort including education for children,
protection against ill-health, requirements of essential
social needs and a measure of insurance against the
more important misfortunes including old age.

• Minimum wage is different and just sufficient to cover

the bare physical needs of a worker and his family.
• Fixation of minimum wage is in public interest and does
not impose an unreasonable restriction on right to carry
on a trade guaranteed by Art. 19(1)(g).

• Fair wage is in between minimum wage and living wage.

• Minimum is just the first step in the direction of fulfilling

the mandate of Art. 43.

• In course of time, State has to take many more steps to

implement that mandate—Chandra Bhavan Boarding
House v State of Mysore, AIR 1970 SC 2042.

• Payment of statutory minimum bonus even when

management sustains a loss is justifiable u/A. 39 and
43.—Jalan Trading Co. v. DM Aney, AIR 1979 SC 233.

• Pension is not only compensation for loyal service

rendered in the past, but also by broader significance, a
social welfare measure rendering socio-economic
justice by providing economic security in the fall of life -
-D S Nakara v. UOI, AIR 1983 SC 130.

• Pension and gratuity are not bounty but they are

statutory rights—DV Kapoor v. UOI, AIR 1990 SC 1923.

• PROMOTION OF EDUCATIONAL AND ECONOMIC

INTERESTS OF WEAKER SECTIONS OF SOCIETY LIKE
SC/STs.

• 46. State shall promote with special care educational

and economic interests of weaker sections of the people,
and, in particular, of Scheduled Castes and Scheduled
Tribes, and shall protect them from social injustice and
all forms of exploitation.
• Art. 46 obligates to promote special care of educational
and economic interests of weaker sections of people
particularly, SCs/STs and OBCs.

• In Society for Un-Aided Private Schools of Rajasthan v.

UOI, AIR 2012 SC 3445, expression “weaker sections”
was held to be wider than “backward class” and weaker
sections can also take within its compass individuals
who constitute weaker sections or weaker parts of the
society.

• Art. 46 supplements Arts. 15(2), 15(4), 16, 17 and 29(2).

• State can separately categorize SCs and STs for the

purpose of adequate representation in the services as
specified in Art. 46 and this would not violate Arts. 14
and 16—ABSK Sangh (Railway) v. UOI, AIR 1981 SC 298.

• Arts. 16 (4A) and 16(4B) now empower the State to make

reservations in matters of promotion and consequent
seniority and to carry forward reserved vacancies in
public services.

• Art. 15(5) empowers the State to make special provision

for socially and educationally backward classes or for
SCs/STs with regard to their admission to educational
institutions including private educational institutions—
Ashok Kumar Thakur v. UOI (2008) 6 SCC 1. Court held
that social empowerment is not a measure for only
socially and educationally backward classes but has to
be for the socially and economically backward classes.

• DISTRIBUTIVE JUSTICE
• SC developed the concept of distributive justice out of
Art. 46.

• Law should be used as an instrument of distributive

justice to achieve a fair division of wealth amongst
members of society based upon the principle: from each
according to his capacity, to each according to his
needs.

• Distributive justice comprehends -- lessening of

inequalities by differential taxation; giving debt relief or
--distribution of property owned by one to many by
imposing ceiling on holdings, both agricultural and
urban.

• All such laws may take the form of forced redistribution

of wealth as a means of achieving a fair division of
material resources among the members of society or
there may be legislative control of unfair agreements—
Ahmedabad Municipal Corporation v. Nawab Khan Gulab
Khan, AIR 1997 SC 152.

• In Sri Manchegowda v. State of Karnataka, AIR 1984 SC

1151, SC held that an Act made to protect and preserve
the economic interests of persons belonging to SCs/STs
and to prevent their exploitation would not infringe Art.
14. (also Lingappa Pochanna v. State of Maharashtra,
AIR 1985 SC 389).

• ECONOMIC EMPOWERMENT

• SC developed the concept of economic empowerment of

weaker sections of society, by reading Arts. 14, 21, 38,
39 and 46.
• In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu
Borde, (1995) 2 SCC 549, SC held that right to economic
empowerment to Dalits, Tribes and the poor is part of
distributive justice and is a Fundamental Right.

• Economic empowerment is a basic human right and a

Fundamental Right as part of right to live, equality and of
status and dignity to the poor, weaker sections, Dalits
and tribes—R. Chandevarappa v. State of Karnataka,
(1995) 6 SCC 309.

• RAISING STANDARD OF LIVING

• 47. State shall regard raising of the level of nutrition and

standard of living of its people and improvement of public
health as among its primary duties and, in particular,
State shall endeavour to bring about prohibition of
consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to
health.

• Raising the level of nutrition and standard of living of its

people and improvement of public health is the state’s
obligation u/Art. 47. State should endeavour to bring
about prohibition of consumption of intoxicating drinks
and drugs (except for medicinal purpose) which are
injurious to health.

• Art. 47 has helped in crystallization of judicial view in

favour of imposing stringent conditions on liquor trade
with reference to Art. 19(6).

• Reading Arts. 47 and 21 together, SC culled out the

obligation of the State to provide better health services
 to the poor –Kirloskar Brothers Ltd. v. Employees State
Insurance Corporation, (1996) 2 SCC 682.

• It is constitutional obligation of State to provide

adequate medical services to the people. Whatever is
necessary for this purpose has to be done—Paschim
Banga Khet Mazdoor Samity v. State of West Bengal,
(1996) 4 SCC 117.

• Improvement of public health being a primary duty of

State, public health can be improved by having best of
doctors, specialists and super specialists. Reservation in
medical sciences beyond undergraduate level is a
reversion and diversion from performance of primary
duty of the State—AIIMS Students’ Union v. AIIMS (2002)
1 SCC 428.

• In Javed v. State of Haryana, (2003) 8 SCC 369, SC upheld

a statutory provision disqualifying persons from being
elected to posts in Panchayat, saying that none of the
goals of Art. 47 can be realized without population
control.

• 43A. The State shall take steps, by suitable legislation or

in any other way, to secure the participation of workers
in the management of undertakings, establishments or
other organisations engaged in any industry. (Inserted by
42nd Amendment, 1976)

• 43B. State shall endeavour to promote voluntary

formation, autonomous functioning, democratic control
and professional management of co-operative societies.
• It aims at revitalizing co-operative societies with a view
to ensuring their contribution to the economic
development of the country. (97th amendment. Declared
constitutionally invalid because it was brought into force
without affirmation by 1/3rd of States)

• UNIFORM CIVIL CODE

• India is a secular Nation. The Constitution-makers

dreamt of a evolving society where uniform laws are
framed for the entire population irrespective of religious
differences.

• Art. 44 states that the State shall endeavour to secure

for the citizens a uniform civil code throughout the
territory of India.

• Many of the Muslim Members of the Constituent

Assembly objected to inclusion of this article on the
apprehension that their personal rights would be
abrogated. It was pointed out that (i) India has achieved
uniformity of law over a vast area (ii) though personal
laws were diverse, there was nothing sacrosanct about
them, (iii) secular activities such as inheritance, should
be separated from religion, (iv) that uniform law will
promote national unity; (v) no legislature would forcibly
amend personal law in future if people opposed it.

• U/Art. 25, secular activity associated with religious

practice is exempt from the guarantee for professing
practicing and propagating religion.

• Not much progress has been achieved in this area. Some

of the Hindu Laws have been codified but Muslim
 personal laws remain a sensitive matter though
enlightened Muslim opinion appears to favour such a
step.

• In Ms Jorden Diengdeh v. SS Chopra, AIR 1985 SC 934,

SC said that law relating to judicial separation, divorce
and nullity of marriage is far from uniform and suggested
that time has come for intervention of legislature .. For a
uniform code of marriage and divorce.

• In Mohd Ahmed Khan v. Shah Bano Begum, AIR 1985 SC

945, Supreme Court held that a muslim husband is liable
to pay maintenance to the divorced wife beyond the
iddat period.

• Art. 44 has remained a dead letter. “A uniform civil code

will help the cause of national integration by removing
disparate loyalties to laws which have conflicting
ideologies”

• In Danial Latiff v. UOI, AIR 2001 SC 3958, also SC liberally

interpreted S. 3 of Muslim Women (Protection of Rights
on Divorce) Act, 1986 and ruled that a Muslim husband is
liable to make provision for future maintenance of
divorced wife even after iddat period.

• In Sarla Mudgal v. UOI, AIR 1995 SC 1531, a married

Hindu husband, embraced Islam and solemnized second
marriage. Second marriage was declared void in terms of
S. 494 IPC. Court observed that there is no necessary
relation between religion and personal law in a civilized
society.
• In Lily Thomas v. UOI, AIR 2000 SC 1650, SC urged Govt.
of India to have a fresh look at Art. 44 and “endeavour to
secure for the citizens a uniform civil code throughout
India.

• But n Ahmedabad Women Action Group v. UOI, AIR 1997

SC 3614, SC refused to declare certain aspects of Muslim
personal law like polygamy, as void u/A/ 14 and 15.

• In Maharshi Avadhesh v. UOI, (1994) Supp (1) SCC 713,

SC declined to issue a writ directing respondents to
consider the question of enacting a uniform civil code.

• SC emphasized that a uniform civil code will help the

cause of national integration by removing the
contradictions based on ideologies--John Vallamattom v.
UOI, (2003) 6 SCC 611.

• FREE AND COMPULSORY EDUCATION TO CHILDREN

UPTO THE AGE OF 14 YEARS

• 45. The State shall endeavour to provide, within a period

of ten years from the commencement of this
Constitution, for free and compulsory education for all
children until they complete the age of fourteen years.

• (Substituted by 86th Amend. Act, 2002. Previously it read

“45. Provision for early childhood care and education to
children below the age of six years.—The State shall
endeavour to provide early childhood care and education
for all children until they complete the age of six years.”),

• Art. 45 was substituted when Right to Education was

made a fundamental right u/A. 21A.
• In Reality, Art. 45 is not fully implemented. SC in MC
Mehta v. State of Tamil Nadu, AIR 1997 SC 699,
remarked: “..the stark reality is that in our country like
many others, children are an exploited lot. Child labour
is a big problem and has remained intractable, even after
50 years of our having become independent, despite
various legislative enactments .. Prohibiting employment
of child in a number of occupations and avocations”.

• ORGANISATION OF AGRICULTURE AND ANUMAL

HUSBANDRY ON MODERN AND SCIENTIFIC LINES

• 48. The State shall endeavour to organise agriculture and

animal husbandry on modern and scientific lines and
shall, in particular, take steps for preserving and
improving the breeds, and prohibiting the slaughter, of
cows and calves and other milch and draught cattle.

• Directive for taking steps for preventing slaughter of

certain specified categories of animals is quite explicit
and positive. It is an aspect of organizing animal
husbandry on modern and scientific lines – Quareshi v.
State of Bihar, AIR 1958 SC 731. Protection is confined
only to animals which are presently or potentially
capable of yielding milk or doing work as draught cattle
and not extend to cattle which at one time were milch or
draught and have ceased to be such.

• Overruling the above decision, in State of Gujarat v.

Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534,
SC upheld a total ban on the slaughter of the progeny of
a cow. Words “calves and other milch and draught
 cattle” were construed as a matter of description of a
species and not with regarding to age or function.

• PROTECTION AND IMPROVEMENT OF ENVIRONMENT,

FOREST AND WILD LIFE

• 48A. The State shall endeavour to protect and improve

the environment and to safeguard the forests and wild
life of the country.
Wildlife and forests have now been placed in the
Concurrent list, so that Central Govt. may play a
meaningful role in this increasingly significant area.

• SC clarified that whenever a problem of ecology is

brought before the Court, it is bound to keep in mind Arts.
48A and 51A(g) and cannot leave the matter entirely to
the Govt.—Shri Sachidanand Pandey v. State of WB, AIR
1987 SC 1109.

• Art, 39(3) 47 and 48A by themselves and collectively cast

a duty on the state to secure the health of the people
improve public health and protect and improve the
environment– MC Mehta v. UOI, JT 2002(3) SC 527.

• To protect environment and ecology, court can take

affirmative action by mandating the State to take action
for that purpose—Fomento Resorts and Hotels Ltd., v.
Minguel Martins, (2009) 3 SCC 571.

• SC read Arts. 21, 47, 48A and 51A(g) together and took
active interest in the protection of environment through
many Public Interest Litigations—Rural Litigation and
Entitlement Kendra v. State of UP, AIR 1987 SC 359;
Indian Handicrafts Emporium v. UOI, (2003) 7 SCC 589.
• SC developed 3 principles – “Precautionary Principle”,
“Polluter Pays Principle” and doctrine of “public trust”—
MC Mehta v. Kamal Nath, (1997) 1 SCC 388; Intellectuals
Forum v. State of AP, (2006) 3 SCC 549; Fomento Resorts
& Hotels v. Munguel Martins (2009) 3 SCC 571.

• Natural resources including forests, water bodies, rivers,

seashores etc. are held by State as trustee on behalf of
people and especially for future generations. State
cannot transfer public trust properties to a private party.
If such transfer takes place, court can invoke “public
trust doctrine”.

• (Vellore Citizens Welfare Forum v. UOI, (1996) 5 SCC 647;

Indian Council for Enviro-Legal Action v. UOI, (1996) 2 JT
SC 196; Intellectuals Forum v. State of AP (2006) 3 SCC
549.

• PROTECTION OF HISTORIC MONUMENTS AND ARTISTIC

AND HISTORIC INTEREST

• 49. It shall be the obligation of the State to protect every

monument or place or object of artistic or historic
interest, declared by or under law made by Parliament
to be of national importance, from spoliation,
disfigurement, destruction, removal, disposal or export,
as the case may be.

• In MC Mehta v. UOI, AIR 1997 SC 734, SC issued several

directions to protect Taj Mahal from deterioration on
account of environmental pollution.

• In MC Mehta v. UOI, (2007) 1 SCC 110, having regard to

Art. 49 and 51A(g), SC prevented the “Taj Heritage
 Corridor Project” – main purposes of which was to divert
River Yamuna and reclaim 75 acres of land between Agra
Fort and Taj Mahal for constructing food Plazas, shops
and amusement activities.

• Dealing with the issue of erosion of culture of an entire

people in Assam because of illegal migrants, Court held
in Sarbananda Sonowal v. UOI, AIR 2005 SC 2920 that
such an influx is “external aggression” within the
meaning of Art. 355. Not only is there an assault on the
life of the citizenry of the State, there is an assault on
their way of life as well.

• SEPARATION OF JUDICIARY FROM EXECUTIVE

• 50. The State shall take steps to separate the judiciary

from the executive in the public services of the State.

• Separation of powers between Legislature, Executive

and Judiciary constitutes a basic feature of
Constitution—State of UP v. Sanjay Kumar, (2012) 8
SCC537.

• In Pre-independent India, criminal Magistracy was under

directive control of executive. Idea underlying Art. 50
was that an anomalous position be corrected and
judiciary freed from executive control.

• SC has interpreted these provisions so as to further

enhance the prestige, dignity and independence of the
subordinate judiciary.

• Independence of judiciary is a part of the basic structure

of the constitution—Kumar Padma Prasad v. UOI, AIR
 1992 SC 1213; N Kannadasan v. Ajoy Khose, (2009) 7 SCC
1.

• In Nixon M Joseph v. UOI, AIR 1988 Ker. 385, petitioner

sought a ban on retired HC and SC Judges from
contesting elections to legislatures and accepting
appointments as commissions of inquiry. HC emphasized
that “the principle of judicial propriety assumes vital
importance” and “post-retirement aspirations of the
Judge for personal career advancement may not be in
consonance with or in the best interests of an
independent judiciary”.

• In Chetak Construction Ltd. v. Om Prakash, AIR 1998 SC

1855, SC deprecated in strong terms attempt made by a
lawyer or litigant to brow beat the Court or malign the
Judge with a view to get a favourable order.

• Power of SC and HCs to punish for their contempt is also

used to vindicate their independence.

• PROMOTION OF INTERNATIONAL PEACE AND SECURITY

• 51. The State shall endeavour to—

(a) promote international peace and security;
(b) maintain just and honourable relations between
nations;
(c) foster respect for international law and treaty
obligations in the dealings of organized peoples with one
another; and
(d) encourage settlement of international disputes by
arbitration.
• In Kesavananda Bharati v. State of Kerala, AIR 1973 SC
1461, Sikri CJ observed:

• In view of Art. 51, this Court must interpret the language

of the Constitution, in the light of the United Nations
Charter and the solemn declaration subscribed to by
India.

• Khanna J. in ADM Jabalpur v. S Sukla, AIR 1976 SC 1207

observed that “if there be a conflict between municipal
law on one side and the international law or provisions
of any treaty obligations on the other, Court would give
effect to municipal law. If two constructions of
municipal law are possible, Courts should lean in favour
of adopt such construction as would make provisions of
municipal law to be in harmony with international law on
treaty obligations.

• SC has accepted and incorporated provisions of

International Conventions ratified by India in several
situations where domestic law was silent or
ambiguous—State of WB v. Kesoram Industries
Ltd.(2004) 10 SCC 201; Kuldip Nayar v. UOI, (2006) 7 SCC
1.

• In PUDR v. UOI, AIR 1997 SC 568, SC observed that

international law today is not confined to regulating
relation between States. It extends to matters of social
concerns, such as health, education, economic apart
from human right. International law is more than ever
aimed at individuals. It is almost accepted proposition
of law that the rules of customary international law
 which are not contrary to the municipal law shall be
deemed to be incorporated in the domestic law.

• FUNDAMENTAL DUTIES

• 51A. It shall be the duty of every citizen of India—

(a) to abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired
our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and
integrity of India;
(d) to defend the country and render national service
when called upon to do so;
(e) to promote harmony and the spirit of common
brotherhood amongst all the people of India
transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory
to the dignity of women;
(f) to value and preserve the rich heritage of our
composite culture;

• (g) to protect and improve the natural environment

including forests, lakes, rivers and wild life, and to have
compassion for living creatures;
(h) to develop the scientific temper, humanism and the
spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of
individual and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievement;
 *[(k) who is a parent or guardian to provide opportunities
for education to his child or, as the case may be, ward
between the age of six and fourteen years.

• *inserted by 86th Amendment, 2002.

• Art. 51 A refers to only Indian citizens (Unlike Art. 14 and

21)

• Various clauses of Art. 51A express fine sentiments.

• Some of the duties are already being enforced through

ordinary law

• Eg., any activity disrupting sovereignty and integrity of

India is illegal and penal

• U/A. 31C, Parliament may make suitable laws to enforce

some other duties

• Fundamental duties contained (b), (f), (h), (j) do not

convey any definite ideas or ideals. They are vague and
imprecise and therefore not capable of legal
enforcement.

• These duties being duties of individual citizens cannot

be enforced through mandamus as they cast no public
duties—Surya Narain v. UOI, AIR 1982 Raj. 1.

• The duties can be promoted by constitutional means

• Art. 51A can be used to interpret ambiguous statutes—

Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455;
PA Inamdar v. State of Maharashtra, (2005) 6 SCC 537.

• SC in AIIMS Students’ Union v. AIIMS, (2002) 1 SCC 428,

said that Fundamental Duties are implicit in the concept
 of fundamental rights – former providing certain
restrictions on the exercise of the latter.

• Though Art. 51A does not expressly cast any

fundamental duty on the State, duty of every citizen of
India is the collective duty of the State.

• In deciding reasonable percentage of reservation in

educational institutions, one of the factors to be taken
into consideration would be whether the character and
quantum of reservation would stall or accelerate
achieving ultimate objects of Part IVA

• U/A. 51A(a), there is a fundamental duty on every citizen

to respect ideals and institutions including National Flag
and National Anthem.

• Every citizen has a right to fly the National Flag subject

to restrictions specified in Art. 51A(c).

• In Ashoka Kumar Thakur v. UOI, (2008) 6 SCC 1, Bhandari

J said: “State is all the citizens placed together and
hence though Art. 51A does not expressly cast any
fundamental duty on the State, the fact remains that the
duty of every citizen of India is the collective of the
State.

• There is nothing in Art. 51A obligating anyone to sing

National Anthem. A person shows no disrespect if he
stands up respectfully when National Anthem is sung but
does not join in singing—Bijoe Emmanual v. State of
Kerala, AIR 1987 SC 748.
• The Anthem is a hymn or song expressing patriotic
sentiments or feelings. There is no reason to exclude
word “Sindh” from national anthem, though the province
is part of Pakistan—Sanjeev Bhatnagar v. UOI, (2005) 5
SCC 330

• A. 48A imposes a duty on State to preserve environment

and 51A(g) imposes a fundamental duty on every citizen
for the same purpose—T N Godavarman Thirumulpad v.
UOI, AIR 2012 SC 1254.

• A. 51A (j) envisages that every citizen ought to perform

their duties in an excellent manner and not half
heartedly.

• Every citizen is fundamentally obligated to develop a

scientific temper and humanism u/A. 51A(h).

• Decision of UGC in introducing Vedic Astrology as part of

graduation, post graduation and PhD courses does not
conflict with A. 51A(h).

• Art. 21A read with A. 51A(k) distributes an obligation

among State and parents. State is concerned with free
education and parents with compulsory parental duty.

• State has a role to ensure that compulsory education is

feasible.

• A. 51A(k) does not penalize parents or guardian for failing

to send children to school.

• Courts increasingly refer to Art. 51A giving them content

and a kind of enforceability.
• PART XX - AMENDMENT OF THE CONSTITUTION – Art.
368

• A CONSTITUTION STATES OR OUGHT TO STATE NOT

RULES FOR THE PASSING HOUR, BUT PRINCIPLES FOR
AN EXPANDING FUTURE.—BENJAMIN N. CARDOZO,
JUDICIAL PROCESS

• In a rigid constitution, amendment is difficult. Such a

constitution can be amended after a thorough
consideration and deliberation.

• In a flexible constitution the process is easy, like

enacting an ordinary law.

• Danger of flexible constitution is that it may lose

permanence and supremacy.

• In US, there are two methods and the process involves

two stages:

• Stage 1. Amendment may be proposed or initiated either

• (i) by vote of 2/3rds of each House of Congress; or

• (ii) by a constitutional convention called together by

Congress on the application of the legislatures of 2/3rds
of States.

• All amendments took place by first method. Second

method was never invoked.

• Stage 2: Amendment as proposed above may be ratified

either

• (i) by vote of the legislatures of 3/4ths of the States; or

• (ii) by the constitutional conventions in 3/4ths of the
States – in the discretion of the Congress.

• After ratification, the constitutional amendment

becomes effective.

• INDIAN CONSTITUTION PROVIDES FOR FOLLOWING

THREE CLASSES OF AMENDMENTS:

• 1. SIMPLE METHOD: Constitutional provisions of

comparatively less significance can be amended by
simple legislative process as in passing ordinary
legislation in Parliament.

• 2. SPECIAL MAJORITY: Those provisions which are

material and vital can be amended only by following the
rule of special majority as laid down in Art. 368.

• 3. ENTRENCHED PROVISIONS: For amending

Constitutional provisions relating to the federal
character, characterized as the entrenched provisions,
in addition to the passage of the amending Bill by the
special majority in the two Houses of Parliament,
ratification by half of the State Legislatures is required.
This procedure is also laid down in Art. 368.

• CATEGORY 1: Parliament is given power to make laws

different from the provisions of the Constitution. Such a
law can be made by ordinary legislative process, and is
not to be regarded as an amendment of Constitution and
is not subject to special procedure under Art. 368.

• CATEGORIES 2 AND 3: (Art. 368)

• Amendment of Constitution can be initiated only by
introducing a Bill for the purpose in either House of
Parliament.

• Phraseology of Art. 368 has been amended twice. Basic

features of amending procedure remained in tact. They
are:

• (i) An amendment of the Constitution can be initiated

only by introducing a Bill for the purpose in either House
of Parliament

• (ii) After the Bill is passed by each House by a majority

of its total membership, and a majority of not less than
2/3rd of members of that House present and voting, and
after receiving assent of President, Constitution stands
amended in accordance with the terms of the Bill

• (iii) To amend certain constitutional provisions relating

to its federal character, characterized as ‘entrenched
provisions’ after the Bill to amend the Constitution is
passed by the Houses of Parliament as above, but before
being presented to President for his assent, it has also
to be ratified by the legislatures of not less than one-half
of the States by resolutions.

• The entrenched provisions are:

• (a) Arts.54 and 55 – manner of election of President

• (b) Arts. 73 and 162 – Extent of Executive power of Union

and States

• (c) Arts. 124 – 127 and 214-231 – Supreme Court and High
Courts
• (d) Arts. 245 – 255 – Scheme of distribution of legislative,
taxing and administrative powers between Union and
States.

• (e)Representation of States in Parliament

• (f) Art. 368 itself.

• 368. POWER OF PARLIAMENT TO AMEND THE

CONSTITUTION AND PROCEDURE THEREFOR (Prior to
1971, 24th Amendment—Procedure for amendment of the
Constitution)

• (1) Notwithstanding anything in this Constitution,

Parliament may in exercise of its constituent power
amend by way of addition, variation or repeal any
provision of this Constitution in accordance with the
procedure laid down in this article.

• (2) An amendment of this Constitution may be initiated

only by the introduction of a Bill for the purpose in either
House of Parliament, and when the Bill is passed in each
House by a majority of the total membership of that
House and by a majority of not less than two-thirds of the
members of that House present and voting, it shall be
presented to the President who shall give his assent to
the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill:

• Provided that if such amendment seeks to make any

change in –

• (a) article 54, article 55, article 73, article 162, article
241 or article 279A, or
• (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter
I of Part XI, or

• (c) any of the Lists in the Seventh Schedule, or

• (d) the representation of States in Parliament, or

• (e) the provisions of this article,

• The amendment shall also require to be ratified by the

Legislatures of not less than one-third of the States by
resolution to that effect passed by those Legislatures
before the Bill making provision for such amendment is
presented to the President for assent.

• (3) Nothing in article 13 shall apply to any amendment

made under this article

• (4) No amendment of this Constitution (including the

provisions of Part III) made or purporting to have been
made under this article whether before or after the
commencement of section 55 of the Constitution (Forty-
second Amendment) Act, 1976 shall be called in question
in any court on any ground

• (5) For the removal of doubts, it is hereby declared that

there shall be no limitation whatever on the constituent
power of Parliament to amend by way of addition,
variation or repeal the provisions of this Constitution
under this article.

• AMENDABILITY OF THE CONSTITUTION

• Originally, Art. 368 marginal note read as : “Procedure for

amendment of the Constitution”.
• In Shankari Prasad Singh v. UOI, AIR 1951 SC 458,
validity of First Amendment Act, 1951 curtailing right to
property guaranteed by Art. 31 (by inserting Arts. 31A
and 31B) was challenged.

• It was argued that word ‘law’ in Art. 13 would include any

law, even a law amendment the Constitution. Such a law
infringing Fundamental Rights would be
unconstitutional.

• Court adopted a literal interpretation and held that the

word ‘law’ in Art. 13 would not include a constitution
amending law u/A. 368. Court said:

• “We are of the opinion that in the context of Art. 13 law

must be taken to mean rules and regulations made in the
exercise of ordinary legislative power and not
amendments to the Constitution made in the exercise of
constituent power with the result that Art. 13(2) does not
affect amendments made under Art. 368”

• Rejecting the contention, constitutional validity of first

amendment was upheld.

• There is a clear demarcation between ordinary law,

which is made in exercise of legislative power, and
constitutional law, which is made in exercise of
constituent power.

• SAJJAN SINGH v. Rajasthan, AIR 1965 SC 845

• 13 years after Shankari Prasad, the same question was

raised in Sajjan Singh. 17th Amendment to the
 Constitution again adversely affected the right to
property.

• By this amendment a number of statutes affecting

property rights were placed in the Ninth Schedule and 9th
Sch. Was immunized from Court review. Questions raised
before SC were:

• (1) Whether amendment of Constitution in so far as it

purported to take away or abridged the Fundamental
Rights was within the prohibition of Art. 13(2); and

• (2) Whether Arts. 31A and 31B (as amended by 17th

Amendment) sought to make changes to Arts. 132, 136
and 226, or in any of the lists in 7th Schedule, so that the
conditions prescribed in the proviso to Art. 368 had to be
satisfied?

• The first argument was raised and rejected in Shankari

Prasad. SC again rejected the argument by majority of 3
: 2.

• Majority held that in “sum and substance”, amendment

was only to amend the FRs so as to help State
Legislatures in effectuating policy of agrarian reform. If
it affected Art. 226 in an insignificant manner, it was only
incidental. It was indirect effect of the amendment and
did not amount to amendment of Art. 226.

• Relation between Art. 13 and 368 was reiterated. Court

drew distinction between ordinary law and constitutional
law. Only former fell under Art. 13 and not latter.
• Hidayutallah J. expressed some reservations as to
whether Art. 13 would not control Art. 368 and observed
“to make me accept the view that Fundamental Rights
were not really fundamental but were intended to be
within the powers of amendment in common with other
parts of Constitution and without concurrence of the
States” because that amounts to think that assurances
in Part III were play things of a special majority

• Mudholkar J. felt reluctant to express a definite opinion

on whether word in Art. 13(2) excludes an amending Act
and whether Parliament is competent to make
amendment to all of Part III of the Constitution.

• L C GOLAK NATH v. State of Punjab, AIR 1967 SC 1643

(11 Judges)

• Constitutional validity of 17th Amendment was again

challenged posing the question whether Fundamental
Rights could be abridged or taken away by Parliament in
exercise of its power u/Art. 368.

• Majority of 6 : 5 overruled the decisions in Shankari

Prasad and Sajjan Singh and held that Fundamental
Rights were non-amendable through the process in Art.
368.

• Fundamental Rights occupy a “transcendental” position

in the Constitution, so that no authority functioning
under Constitution including Parliament exercising
power u/A. 368 would be competent to amendment
Fundamental Rights.
• Subba Rao CJ (speaking for himself and 4 others) said:
Fundamental Rights are natural rights and “the
primordial rights necessary for the development of
human personality”. For amendment of articles of less
significance require consent of majority of States. How
can Fundamental Rights be amended without such
consent?

• Court held that term ‘law’ in Art. 13(2) would include

constitutional law. Amendment made u/Art. 368 is “law’
and is subject to Art. 13.

• The five Judges took recourse to the doctrine of

prospective overruling and held that the decision would
be effective only prospectively.

• Hidayutallah J. in a separate judgment held that there

was no power to amend Fundamental Rights but refused
to disturb the past amendments because they had stood
for long and people had acquiesced in them.

• Five minority judges (in 3 separate opinions) upheld the

power of Parliament to amend Fundamental Rights.

• Four major propositions emerged from majority opinion:

• (1) Substantive power to amend is not to be found in Art.

368. This article only contains the procedure to amend
the Constitution

• (2) A law made under Art. 368 would be subject to Art.

13(2) like any other law
• (3) word ‘amend’ envisaged only minor modifications in
existing provisions but not any major alternations
therein;

• (4) To amend the Fundamental Rights, a Constituent

Assembly ought to be convened by Parliament.

• Twenty-Fourth Amendment, Act 1971 was introduced to

undo the effect of Golak Nath. Following Changes were
sought in Arts. 13 and 68:

• (a) It was now clarified that Art. 13 would not stand in

the way of any constitutional amendment u/Art. 368, by
inserting a clause to Art. 13 (Cl. (4).

• (b) As a matter of abundant caution, a clause was added

to Art. 368 declaring that Art. 13 shall not apply to any
constitutional amendment made u/A. 368 (Cl. (3)).

• (c) Marginal note to Art. 368 was changed from

‘procedure for Amendment of the Constitution” to “Power
of Parliament to amend the Constitution and Procedure
therefor”.

• (d) A non obstante clause was added to Art. 368 enabling

Parliament to exercise its constituent power.

• (e) Golak Nath expressed the view that there is no

difference between ordinary law and constitutional
amendment and curtailment of Fundamental Rights is
out of reach of amending process. It was also pointed
out that the President has power to assent, or not to
assent in both cases.
• To meet this, it was now clarified that once a
Constitution Amendment Bill is passed by both Houses
of Parliament by requisite majority u/A. 368, President
would have no option but to give his assent to it.

• KESAVANANDA BHARATI V. STATE OF KERALA, AIR

1973 SC 1461

• Constitutional validity of 24th and 25th Amendment Acts

was challenged u/Art. 32 by Swami Kesavananda
Bharati. The 13 Judges Constitution Bench heard the
matter for 62 days and overruled Golak Nath and held on
24 April, 1973:

• (a) SC held that the power to amend the Constitution is

to be found in Art. 368 itself. “Provisions relating to the
amendment of the Constitution are some of the most
important features of any modern Constitution”.

• (b) There is a distinction between an ordinary law and

constitutional law. Constitution-makers did not use the
expression ‘law’ in Art. 13 as including ‘constitutional
law’. Art. 368 confers power to abridge a Fundamental
Right or any other part of the Constitution.

• (c) Parliament does not have unlimited amending power

u/A. 368. Amending power cannot be exercised in such a
manner as to destroy or emasculate the basic or
Fundamental Features of the Constitution. A
constitutional amendment which amends the basic
structure of the Constitution is ultra vires.

• (d) Some of the features are fundamental and non-

amendable:
• (1) Supremacy of the Constitution

• (2) Republican and democratic form of government

• (3) Secular character of the Constitution

• (4) Separation of powers between legislative, executive

and judiciary

• (5) Federal character of the Constitution

• (e) This means Parliament can amend any constitutional

provision by virtue of Art. 368. Such power is not
absolute and unlimited. Courts can still go into the
question whether or not an amendment destroys a
fundamental right or basic feature of the Constitution. If
so, it will be constitutionally invalid.

• 2/3rd majority in Parliament may not represent majority of

the votes of the people in the country. This means that
there are inherent or implied limitations on the power of
amendment u/Art. 368.

• (f) What is fundamental feature of Constitution is a moot

point. List is not exhaustive. It is for courts to decide as
and when question arises whether a particular
amendment affects any basic or fundamental feature of
constitution or not.

• (g) Kesavananda answered the question left unanswered

in Golak Nath. Can the Parliament u/A. 368 rewrite the
entire Constitution and bring in a new Constitution?
Answer is: Parliament can only do that which does not
modify the basic features of the Constitution.
• 39TH AMENDMENT & INDIRA GANDHI V. RAJ NARAIN,
AIR 1975 SC 2299

• 39th Amendment Act, 1975 sought to do three things:

• (1) to withdraw election of Prime Minister, President,

Speaker and Governor from the scope of the ordinary
judicial process;

• (2) to void the decision declaring Indira Gandhi’s election

to Lok Sabha as void

• (3) to exclude the Supreme Court’s jurisdiction to hear

any appeal

• Clause (4) of the amendment was challenged as

destroying the basic feature of the Constitution as it
interfered with the judicial process.

• SC upheld the contention and declared clause (4)

unconstitutional as violating three essential features of
the Constitution.

• (1) per Mathew J. It destroyed an essential democratic

feature of the constitution viz., the resolution of an
election dispute “by ascertaining the adjudicate facts
and applying the relevant law for determining the real
representative of the people”. Democracy could function
only when there are free and fair elections.

• 2. Per Chandrachud CJ: Cl. 4 violated the principle of

separation of powers to the extent incorporated in the
Constitution viz., pure judicial function being exercised
by the legislature. ‘Equality of status and opportunity’
being an “essential feature” of the Constitution was
 being violated by cl. (4) as there was no rational reason
for creating a privileged regime for election of Prime
Minister.

• Court took exception to voiding of a judicial

pronouncement and declaring it ineffective by second
part of cl. 4. Parliament could amend the pre-existing law
and knock out the basis of a judicial decision but the
judicial decision could not itself be voided by Parliament.

• Per Khanna J. “To put a stamp of validity of the election

of a candidate by saying that the challenge to such an
election would not be governed by an election law and
that the said election in any case would be valid and
immune from any challenge runs counter to accepted
norms of free and fair elections in all democratic
countries”.

• 42ND AMENDMENT – Mini Constitution

• 42nd amendment added 2 more clauses to A. 368, to

ensure that constitutional amendment may not be
challenged before any Court on any ground whatsoever.

• MINERVA MILLS LTD. v. UOI, AIR 1980 SC 1789

• Constitutional validity Cl. (4) and (5) of Art. 368 was

challenged in a petition challenging taking over of
management of a mill under the Sick Textile
Undertaking (Nationalisation) Act, 1974 and an order u/s.
18A of Industrial (Development and Regulation) Act,
1951.
• Cl. (4) sought to deprive the courts of their power to call
in question any amendment of the Constitution.

• Cl. (5) sought to demolish the very pillars on which the

preamble rests by empowering Parliament to exercise its
constituent power without any limitation whatsoever.

• Court declared S. 55 of Amending Act, (inserting Cl. (4)

and (5)) as invalid.

• “The power to destroy is not a power to amend”.

Constitution confers only a limited power on Parliament
to amend the Constitution, Parliament cannot therefore
by exercising that limited power enlarge that very power
into absolute power.

• “The donee of a limited power cannot by the exercise of

that power convert the limited power into an unlimited
one”.

• WAMAN RAO v. UOI, AIR 1981 SC 271

• SC considered the constitutional validity of Maharashtra

Agricultural Lands (Ceiling on Holdings) Act, 1961. Art.
31A, 31B and unamended Art. 31C (before 42nd
amendment) was challenged on the ground of damaging
the basic structure of the Constitution.

• Court held that First and Fourth Amend introduced in

1951 and 1955 did not damage any basic or essential
feature of the Constitution; they were valid and aimed at
removing social and economic disparities in agricultural
sector.
• A. 31B contains a device for saving laws from challenge
on the ground of violation of Fundamental Rights. 31B is
to be read along with IX Sch. Parliament can insert a
State Law in Sch. IX by passing constitutional
amendment.

• Since IX Sch. Is part of the Constitution, no additions or

alterations can be made therein without complying with
the restrictive provisions governing amendment to the
Constitution. Laws included in IX Sch. Till 24.4.1973 are
protected.

• Acts and Regulations included in IX Sch. After

Kesavananda (24.4.1973) will not receive the protection
of Art. 31B. Such laws will be held valid only if they do
not damage or destroy the basic structure of the
Constitution.

• In Raghunath Rao v. UOI, SC reiterated that basic

features of the Constitution cannot be amended by
following the procedure laid down in Art. 368.

• Court is not concerned with the wisdom behind or

propriety of constitutional amendment. Court is
concerned only with (1) Whether procedure prescribed
by Art. 368 is strictly complied with; and (2) whether the
amendment has destroyed or damaged the basic
structure or essential features of Constitution.

• Any amendment that abridges the basic features of the

Constitution shall be deemed to be ultra
vires, Kesavananda Bharati v. State of Kerala, (1973) 4
SCC 225.
• Parliament cannot, under Article 368, expand its
amending power so as to acquire for itself the right to
repeal or abrogate the Constitution or to destroy its
basic and essential features. Clause (5) of Article 368 is
therefore unconstitutional. So also is clause (4) of Article
368 which excludes judicial review of constitutional
amendments. Section 55 of the 42nd Amendment is
therefore unconstitutional, Minerva Mills Ltd. v. Union of
India, (1980) 3 SCC 625.
• Parliament cannot increase the amending power by
amendment of Article 368 to confer on itself unlimited
power of amendment and destroy and damage the
fundamentals of the Constitution, nor can it use Article
31-B to achieve the same purpose. Article 31-B therefore
cannot go beyond the limited amending power contained
in Article 368, I.R. Coelho v. State of T.N., (2007) 2 SCC
1.

• PRINCIPLE OF HARMONIOUS CONSTRUCTION

• If certain provisions in the Constitution appear to be in

conflict with each other, these provisions should be
interpreted so as to effect reconciliation between them,
so that, if possible, effect could be given to all—Mukherji
J. In Gopalan’s case, AIR 1950 SC 27.

• In Shankari Prasad Singh v. UOI, AIR 1951 SC 459, SC

reconciled the conflict between A. 13 and 368 by
applying the principle of harmonious interpretation.
• In Golaknath v. State of Punjab, AIR 1967 SC 1643, SC
disagreed with the approach in Shankari Prasad and held
that A. 13 controlled A. 368.

• In Kesavananda Bharati v. State of Kerala, AIR 1973 SC

1461 SC disagreed with Golaknath and reverted to the
position held in Shankari Prasad.

• Same principle has been applied to resolve the conflict

between A. 25(2)(b) and 26(b) in Moinuddin v. State of UP,
AIR 1960 All 484.

• Principle of harmonious interpretation has been applied

to Fundamental Rights and Directive Principles so as to
give effect to both as far as possible—In re Kerala
Education Bill, AIR 1958 SC 956.

• PROSPECTIVE OVERRULING

• In Golaknath v. State of Punjab, amendments to the

Constitution and several laws made on the basis of the
amendment, were declared unconstitutional after they
remained in force for a long time. When a law declared is
unconstitutional, the declaration is deemed effective
retrospectively from the commencement of the law as
well as prospectively.

• This is based on the theory that ‘judge does not make the
law but discovers the law”.

• When a court decision changes the earlier law, law laid

down by the Court is not regarded as new law. Law as
now found by the Court must apply to the past as well as
future transactions.
• As against the above view, U.S. Supreme Court
developed the doctrine of ‘prospective overruling’. Court
took the position that instead of disturbing past
transactions, law adopted by Court might be made
effective as regards future transactions.

• This doctrine envisages that a well-established

precedent may be overruled from a future date and not
retrospectively.

• In Linkletter v. Walker, 381 US 618, US asserted that the

Court has power to decide on a balance of all relevant
considerations, whether a decision overruling a previous
principle should be applied retrospectively or not.

• Retrospective overruling may cause administrative

inconvenience in some situations and vested rights may
be affected causing hardship to those who abided by the
old rule. Doctrine of overruling seeks to avoid such harsh
results—Great Northern Rly v. Sunburst Oil & Ref
Company, 187 US 358 (1932).

• In Golak Nath v. State of Punjab, five out of 11 Judges

held that Parliament could not amend the Fundamental
Rights.

• They, however, held that this norm will operate only in

the future and not retrospectively. None of the
amendments made to the Constitution till date of Golak
Nath decision would be invalidated.

• SC took recourse to the doctrine of prospective

overruling because between the commencement of
constitution on 26.1.1950 and date of Judgment of Golak
 Nath in 1967, a number of amendments were made to
Fundamental Rights and a large number of laws were
enacted by the Parliament and State Legislatures.

• The Judges, however, put certain restrictions on

applicability of Prosecutive overruling:

• (i) the doctrine would for the time being be used only in
constitutional matters

• (ii) this doctrine would be applied only by SC itself and

by no other Court as it has the constitutional jurisdiction
to declare law binding on all courts in the country.

• (iii)Precise version of prospectivity to be imposed to be

a matter for the Court’s discretion, “to be moulded in
accordance with the justice of the cause or matter
before it”.

• Prospectively overruling was used in Mandal case (Indra

Sawhney v. UOI, AIR 1993 SC 477) where Supreme Court
held that reservations cannot be made in promotion.

• SC overruled the ratio of Rangachari, AIR 1962 SC 36

which was in operation for three decades, by which a
number of persons belonging to SCs/STs got promotion.
Court held that Mandal ruling would come into effect
after five years. Here, the court was postponing effect of
Mandal judgement by extending the principle of
prospective overruling.

• Constitutional validity of the ruling in Mandal case u/A.

13(2) was challenged in Ashok Kumar Gupta v. State of
UP, (1997) 5 SCC 201. SC held that prospective over
 ruling of Rangachari in Mandal case is constitutional and
fulfils the competing equality between sections of the
society.

• In Githa Hariharan v. Reserve Bank of India, SC applied

doctrine of prospective overruling in another area. Court
held that when the Court declares a statute
unconstitutional, it may make the ruling operational in
future from date of decision without affecting validity of
past transactions.

• SC gave a new interpretation to S. 6(a) of Hindu Minority

and Guardianship Act to give protection from violation
Art. 14 and 15 on the ground of gender discrimination.
S.6(2) provided that the father is the natural guardian and
not Mother while the father is living.

• In Orissa Cement Ltd. v. State of Orissa (India Cements

case), AIR 1991 SC 1676, while declaring the cess
imposed as unconstitutional, Court ruled that the State
would not be liable to refund the cess already collected
by it.

• SC applied the doctrine in Raymond Ltd v. State of MP,

so that the Electricity Board could avoid a huge financial
liability.