CONSTITUTIONAL LAW I

Instructors: Dr. N. Vasanthi & Mr. Sidharth Chauhan

Mandatory course carrying 5 credits
3rd year, B.A., LL.B. (Hons.) – June-October 2022
National Academy of Legal Studies and Research (NALSAR), Hyderabad

COURSE PORTRAYAL:

The idea of ‘constitutionalism’ encapsulates several objectives, namely those of structuring, enabling
and limiting the exercise of governmental power. A Constitution does not necessarily have to be in a
written form. As the history of the British Parliamentary system demonstrates, constitutionalism can
also evolve through conventions and yet provide a robust framework for curtailing the exercise of
executive, legislative and judicial power. On the other hand, the American Constitution drafted towards
the end of the 18th century has proved to be the prototype for the rise of written constitutions,
especially after the end of the Second World War. The intention behind that was to set out an elaborate
set of constraints which would protect the rights of individuals and minorities in the face of arbitrary
actions by the State. In the context of liberal democracies, this also translates into a ‘paradox of
precommitment’ that seeks to prohibit elected majorities in the future from whittling away these
constraints which are entrenched at a particular point of time. It must also be remembered that formal
constitutional arrangements can persist outside the normative frame of liberal democracies. It is quite
feasible for autocratic and theocratic regimes to also have written constitutions, though there might be
considerable uncertainty about the place of these texts in structuring the actual exercise of political
authority.

There are two mandatory courses covering Indian Constitutional Law during the third year of the five-
year integrated B.A., LL.B. (Hons.) programme at NALSAR. The present course (Constitutional Law
I) principally covers the adjudication and enforcement of fundamental rights under the scheme of the
Indian Constitution. Constitutional Law II engages with principles such as federalism, democratic
decentralization, separation of powers between the different limbs of government and the implications
of the progressive rise of the administrative state.

A Constitution seeks to balance the exercise of governmental power with the protection of liberties that
are attributed to individuals and groups. The main difference between the thrust of the first and second
courses respectively is the tension between the articulation of rights and the exercise of power. It is a
conscious decision to discuss the conceptualization of rights before examining the structures of power
and governance. Those interested in deeper engagement with this field can proceed to elective courses
in areas such as ‘Comparative Constitutional Law’, ‘Constitutional Theory’, ‘Judicial Process and
Statutory Interpretation’, ‘Political Obligations’ and ‘Applied Jurisprudence’ to name a few. The
present course also serves as a foundation for more sustained inquiry into topics such as Anti-
Discrimination Law, Civil-Political Rights, Socio-Economic Rights, Privacy Law and Religious
Freedom to name a few.

COURSE OBJECTIVES:

The intention of this course is to familiarize students with the key concepts and controversies related to
the fundamental rights which are guaranteed by the Constitution (both explicitly and implicitly). A
concurrent goal is to deepen their understanding of the decision-making processes and formulation of
policy choices in this area. The overarching objectives are to build the students’ capacity in the
following ways:
 To identify the fundamental policy choices incorporated in the Constitution
 To understand the historical evolution of constitutional doctrines, standards, and tests
 To understand constitutional law through the lens of legal philosophy, so as to bring
about a rigorous understanding of theory and methods in this field.

TEACHING AND LEARNING METHODOLOGY:

This course will largely be delivered through lectures with some topics covered in the respective
tutorial sessions. The conceptual framework adopted for this course mirrors the three C’s proposed by
Prof. Upendra Baxi, namely those of (C1) closely examining the applicable text, (C2) surveying the
different approaches towards the interpretation of the same and (3) to critically reflect on the
philosophical as well as ideological positions that appear to be driving constitutional developments.
This implies that while we will start the inquiry under each theme by reading the relevant constitutional
provisions, our discussions will delve much deeper into how the same text can be read in light of social,
economic and political changes.

While most literature in this field foregrounds the text of judicial opinions, we will try to demonstrate
how the conditions preceding these decisions as well as their ‘afterlife’ can be understood in a
longitudinal sense. This will require a frequent revisiting of concepts that have been covered in the
previous courses, especially those such as Political Science-I, Legal Methods, History-II and
Sociology-II. Legal change cannot be understood by concentrating on the behaviour of public officials
alone. Most of the exciting constitutional law scholarship today is engaging with ideas of ‘popular
constitutionalism’ which turn the emphasis towards the articulation of rights by grassroots’ social
movements and those evolved through an array of cultural practices which often fall outside the
shadow of the formal legal system. This course will try to illuminate these developments as far as
possible.

Needless to say, the students will be able to absorb the classroom discussions more effectively if they
keep up with the reading assignments. This course plan lists them out under each of the modules, with a
clear demarcation between those which are required to be read for classes and those which are
recommended for gaining a broader understanding. An illustrative bibliography will be circulated
separately to facilitate further reading and research for term papers.
LECTURE PLAN:

In order to facilitate a structured inquiry and parity across both sections, the course will be taught as per
the following division of modules:

Module Ideas of Constitutionalism and Fundamental Rights 10 hours

1
Module Citizenship, the ‘State Action’ doctrine and Remedies 6 hours
2
Module Equal Protection before the law: The evolving standards of judicial 6 hours
3 scrutiny
Module Equality of Opportunity and Anti-Discrimination 10 hours
4
Module Enumerated Freedoms (Expression, Assembly, Association, 10 hours
5 Movement, Residence and Economic freedoms)
Module Protection of Life and Personal Liberty 12 hours
6 – Interface with Criminal Procedure
– Dignity as a basis for thinking about rights
– Socio-Economic Rights and Directive Principles of State Policy
Module Freedom of Religion 6 hours
7
Module Educational and Cultural Rights of Minorities 8 hours
8
Tutorials (To be engaged by Teaching Assistants) 12 hours

EVALUATION SCHEME:

As per the University’s Academic Regulations, the mid-term examination will carry 25 marks and the
end-term examination will carry 50 marks. The project and presentation will together account for the
remaining 25 marks. For the project component, the nature of the submissions is described below:

1. Exploration of Ideas and Perspectives on Constitutionalism: Students can look at academic writing
on constitutionalism and summarise a chosen scholarly paper. Marks will be allotted for selecting
papers that are authoritative and frequently cited, apart from the quality of the summary that is
prepared. (1,500-2,000 words)
2. Interview with Litigants involved in important rights-based litigation OR Collection and Analysis of
Documents (e.g. Affidavits in support of appeals and writs, Data-based studies cited by the parties)
submitted by parties in leading rights-based decisions (2,000-2,500 words).
3. Survey of cases on a Particular Fundamental Right: Annual Survey (from the years 2018, 2019, 2020
or 2021) of cases decided by the High Courts and the Supreme Court of India on any one Fundamental
Right. This primarily involves summarizing the cases that have been decided in the chosen calendar
year. The survey must be thorough and all cases reported in any of the databases (SCCOnline,
Manupatra or Indian Kanoon) for that year should be discussed. (Around 2,500 words).
4. Book Review of a scholarly work that engages with one of the themes in the course. (Around 3,000
words).
5. Research Paper (3,500-4,000 words).
MODULE 1: IDEAS OF CONSTITUTIONALISM AND FUNDAMENTAL RIGHTS

The course will begin with a reinforcement of some significant concepts in political philosophy,
followed by a demonstration of why they are significant for constitutional interpretation. At the time of
its framing, the Indian Constitution was conceived of as one that fell within the epistemic framework of
political liberalism. The dominant theoretical understanding in the postcolonial context is that
constitutional texts are created in the name of the people of the newly liberated nation. In that sense, the
legitimacy of the Indian Constitution is often linked to the Lockean idea of ‘tacit consent’ which can be
discerned from the conduct of citizens who voluntarily accept the authority of the State in return for the
protection of their individual rights. However, a preliminary inquiry into the historical circumstances
surrounding the framing process reveals that the Constituent Assembly was itself chosen through a
narrow right of franchise and performed its task during a time of immense religious conflict and
considerable uncertainty about the viability of the Union of India. This creates a strong rebuttal to the
inclusion of the Indian Constitution in the consent tradition of liberal political thought. Other readings
suggest that the Indian Constitution should be read as a complicated set of compromises which were
arrived at between distinctive communities which continue to be divided on the grounds of religion,
caste, region and language among other markers. In this view, both the framing of the Constitution as
well as its endurance rests on the capacity of these communities to respect this compromise rather than
being contingent on its acceptance by individual citizens. This contrast between ‘contractarian’ and
‘communitarian’ explanations for political authority presents a useful analytical tool for the remainder
of this course.

We must also be attentive to the organic processes that fed into the framing of the Indian Constitution.
For instance, many leading figures of the freedom struggle were active participants in the Constituent
Assembly Debates. The opinions and positions of several social and political formations found its way
into the text that was enacted on January 26, 1950. Granville Austin described the document as a
seamless web that pursued the principles of ensuring national unity, enhancing democracy and
facilitating a social revolution. This multi-layered characterization takes us to the proposition about
rights and obligations. In this course, our point of entry will be the fundamental rights that are
enumerated in Part III of the Indian Constitution (Article 12-36). The older ‘contractarian’ approach
pushes us to think about these rights primarily as a set of constraints that operate on elected
governments. On the other hand, the ‘communitarian’ approach requires us to think of these rights as
pragmatic choices made by distinctive communities in the hope that future generations will adhere to
them. Both approaches have their proponents and critics. We will work through them to gain a clearer
understanding of what we mean by ‘fundamental rights’ and their enforcement. Are they fundamental
because they codify widely held moral beliefs about the preconditions for peaceful coexistence? Or are
they described as such in order to legitimize governmental actions taken to pursue collective
aspirations? Alternatively, are fundamental rights described as such merely to set out a language for
self-assertion that can also be treated as normative standards for a polity? Do enumerated rights provide
a clearer pathway for their enforcement by an independent judiciary?

Core Readings:
• Pratap Bhanu Mehta, ‘What is Constitutional Morality?’, 615 Seminar (November 2010).
• S. Subramanian & K. Kannabiran, 'On Rights and Duties-Two Essays', The Hindu Centre for
Politics and Public Policy (February 21, 2022).
• Aditya Nigam, ‘A Text without Author:Locating Constituent Assembly as Event’, 39 (21)
Economic and Political Weekly 2107-2113 (May 22-28, 2004).
Recommended Readings:
• Upendra Baxi, ‘Universal Rights and Cultural Pluralism: Constitutionalism As The Site
of State Formative Practices’, 21 Cardozo Law Review 1183-1210 (2000) [Concentrate
on pp. 1187-1193].
• Rohit De, ‘Constitutional Antecedents’, pp. 17-37 in Choudhry, Khosla and Mehta
(eds.), The Oxford Handbook of the Indian Constitution (Oxford University Press,
2016).
• Christine Keating, 'Framing the Postcolonial Sexual Contract: Democracy, Fraternalism,
and State Authority in India', 22(4) Hypatia 130-145 (2007).
• C.L. Ten, ‘Constitutionalism and the Rule of Law’, pp. 493-502 in Goodin, Pettit &
Pogge (eds.), A Companion to Contemporary Political Philosophy, 2nd edn. (Blackwell
Publishing, 2007).
• Richard Fallon, ‘The Rule of Law as a Concept in Constitutional Discourse’, 97
Columbia Law Review 1-56 (1997).
• Bruce Ackerman, ‘The Rise of World Constitutionalism’, 83 Virginia Law Review 771-
797 (1997).
• Samuel Isacharoff, ‘Constitutionalizing Democracy in Fractured Societies’, 82 Texas
Law Review 1861-1892 (2004).

MODULE 2: CITIZENSHIP, THE ‘STATE ACTION’ DOCTRINE AND REMEDIES

The recognition and enforcement of fundamental rights on part of individuals or groups is correlated
with obligations placed on others, be it the State or other private parties. The older written constitutions
largely characterized fundamental rights as those which implicate obligations on part of the State.
Some of these obligations bore a negative character thereby implying duties of restraint on part of
public officials so that they would not interfere in the exercise of rights by citizens. Others entailed a
positive character and hence implied duties of facilitation and assistance in the exercise of rights. With
the passage of time, this conceptual distinction between the negative and positive character of rights
has broken down.

Another significant conceptual shift has occurred in what constitutes ‘State Action’ in the first place.
The reach of public functions and the nature of citizen-state interactions has changed considerably,
initially with the rise of the administrative state and consequently with economic globalization. More
and more functions that were identified as public responsibilities in a welfare state are now in the hands
of private players. Conversely, there are several activities which have historically been in private hands
but there are increasing demands for public accountability over them, often by way of judicial scrutiny.
In the Indian context, the judicial discourse has captured this shift in several ways. In the late 1970s and
early 1980s the Supreme Court started expanding the category of what constitutes an ‘agency or
instrumentality of the state’ under Article 12, primarily to protect the interests of employees in Public
Sector Undertakings (PSUs). With the passage of time, the discussion has turned to what should be the
definitive criteria for attributing a public character to an entity, since that would compel the latter to
respect and protect the enumerated fundamental rights. Should it rest on whether the entity is
substantially owned and controlled by the State (‘Structuralism’) or should the inquiry turn on whether
its functions are characterized as ‘public’ or ‘private’ (‘Functionalism’)? We will work through a line
of decisions to examine how this question has been addressed in different contexts.

It would also be beneficial to examine the most prominent remedies that are sought in litigation related
to the enforcement of fundamental rights. While Article 32 and 226 empower the Supreme Court of
India and the High Courts to issue writs in order to enforce fundamental rights, the same can be
litigated through appellate processes as well. This would be an opportune time to familiarize students
with some well-established concepts related to judicial review such as the presumption of constitutional
validity, the doctrine of eclipse, the waiver of rights, the doctrine of pith and substance, the doctrine of
severability and the principle of ‘res judicata’.

It should also be highlighted that some fundamental rights are directly applicable against private
parties. In other words, they are subject to horizontal application. Prominent among these are rights
directed against existing patterns of discrimination and exploitation such as Article 17 (Prohibition of
Untouchability), 18 (Abolition of Titles, except Military and Academic ones), 23 (Prohibition of
Forced Labour) and 24 (Prohibition of Child Labour). Some obligations pertaining to affirmative action
in the educational sector have also been placed on privately funded institutions by way of Article 15(5)
and Article 21-A, which will be discussed as part of Modules 4 and 5 respectively. The ambit of
‘personal liberty’ under Article 21 has also undergone considerable expansion so as to implicate the
horizontal application of fundamental rights, especially in the context of socio-economic rights which
will be discussed as part of Module 6.

Core Readings:
• Linda Bosniak, 'Citizens and Persons in Constitutional Thought', 8(1) International Journal of
Constitutional Law 9-29 (January 2010).
• Niraja Gopal Jayal, 'Citizenship', pp. 163-189 in Choudhry, Khosla & Mehta (eds.), The Oxford
Handbook of The Indian Constitution (Oxford University Press, 2016).
• Anupama Roy, 'Citizenship Regimes, Law and Belonging', 729 Seminar (May 2020).
• Ananth Padmanabhan, 'Rights: Scope and Applicability', pp. 581-599 in Choudhry, Khosla &
Mehta (eds.), The Oxford Handbook of The Indian Constitution (Oxford University Press,
2016).

Key cases:
 Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920.
 Assam Sanmilita Mahasangha v. Union of India, AIR 2015 SC 783.
 Bhikaji v. State of M.P., AIR 1955 SC 781.
 Deep Chand v. State of U.P., AIR 1959 SC 648.
 State of Gujarat v. Sri Ambika Mills, AIR 1974 SC 1300.
 Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421.
 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.
 Zee Telefilms Pvt. Ltd. v. Union of India, AIR 2005 SC 2677.

Recommended Readings:
• Jeremy Waldron, ‘Rights’, pp. 745-754 in Goodin, Pettit & Pogge, A Companion to
Contemporary Political Philosophy (Blackwell Publishing, 2007).
• Udai Raj Rai, Fundamental Rights and their Enforcement (PHI Publishers, 2011), pp. 688-753.
• Sudhir Krishnaswamy, ‘Horizontal Application of Fundamental Rights and State Action in
India’, pp. 47-73 in K. Chockalingam & C. Raj Kumar (eds.), Human Rights, Justice and
Constitutional Empowerment (Oxford University Press, 2007).
• Stephen Gardbaum, ‘Horizontal Effect’, pp. 600-613 in The Oxford Handbook of the Indian
Constitution (OUP, 2016).
• Ashish Chugh, ‘Fundamental Rights – Vertical or Horizontal?’, 7 SCC Journal 9-18 (2005).
MODULE 3: EQUAL PROTECTION BEFORE THE LAW: THE EVOLVING STANDARDS
OF JUDICIAL SCRUTINY

‘Equality’ is held up as one of the three legitimating ideals of the enlightenment, alongside those of
‘Liberty’ and ‘Fraternity’. The Preamble to the Indian Constitution refers to all three of them but
perhaps goes much further when it comes to Equality since it refers to both the equality of status and
that of opportunity. The text of Article 14 explicitly addresses the ideal of ensuring ‘equal protection
before the law’ which is semantically distinct from the expression ‘equal protection of laws’. The
antecedents of the same can be traced back to a part of the 14th Amendment of the United States
Constitution which was inserted after the Civil War in order to ensure a measure of formal equality in
voting and property rights for the previously enslaved population. Nearly a century later, the SCOTUS
(then led by Chief Justice Earl Warren) started expanding the meaning of this provision, so much so
that it served as the legal bedrock of the civil rights movement of the 1960s.

In the Indian context, Article 14 can be read in two distinctive ways. The first level is that of reading it
as a formal standard of equality. Within its first decade, the Indian Supreme Court had developed the
test of ‘reasonable classification’ to scrutinize governmental action that was challenged on this ground.
The first step would be to examine if there were cogent reasons offered by the government to draw up
the classifications. The validity of the classifications would then turn on whether the criteria used for
drawing the same was related to a legitimate policy objective. In most cases, the presumption of
validity led the Courts to accept the mere assertion of reasons as sufficient to accept differential
treatment between similarly situated persons or other entities. However, by the mid-1970s, judicial
decisions started to exhibit more searching standards of scrutiny. Instead of simply looking for
discriminatory intent behind governmental actions, Courts started paying attention to their
discriminatory consequences. This marked a shift from a formal to a substantive standard of ‘equal
protection review’ which is seen as a protection against arbitrariness in governmental action.

This newer approach directs judges to pay closer attention to whether the rights-bearer suffers a legal
injury on account of the impugned action even if the latter is backed up with strong justifications by the
State. Supporters of the ‘proportionality’ approach advocate that judicial scrutiny should also account
for how the impugned governmental action intrudes into other recognized rights. If the stated policy
objective could be pursued through less intrusive measures, then the Courts can cite them to invalidate
more intrusive measures. Some benches have also tapped into foreign precedents to invoke a standard
of ‘stricter scrutiny’ where the intrusion into enumerated rights is considered sufficient to invalidate or
read down a statutory provision or executive order, irrespective of the merits provided by the State.
However, there are conflicting opinions on whether such ‘tiers of scrutiny’ can be used in the Indian
context, especially with respect to the enumerated anti-discrimination provisions such as those
providing for affirmative action in public employment, higher education and electoral representation.

Apart from invidious forms of discrimination in governmental action which may be shown by the
affected parties, there can also be some discriminatory classifications that largely have a benign or
protective character. In the ultimate analysis, the Courts would have to examine how the claim of equal
protection squares up against policy objectives, especially after accounting for the interrelationship
between various fundamental rights. Special emphasis will be placed on how the Indian Supreme Court
has used the phrase ‘golden triangle’ to highlight the intersection between equality (Art. 14), personal
freedoms (Article 19) and the guarantee of due process (Article 21).
Core Reading:
 Tarunabh Khaitan, ‘Equality: Legislative Review under Article 14’, pp. 699-719 in The
Oxford Handbook of the Indian Constitution (OUP, 2016).
Key cases:
 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 65.
 Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.
 Maneka Gandhi v. Union of India (1978) 1 SCC 248.
 Air India v. Nergesh Meerza, AIR 1981 SC 1829.
 Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
 Rajbala v. State of Haryana, (2016) 1 SCC 463.
 Shayara Bano v. Union of India, (2017) 9 SCC 1.
 Navtej Johar v. Union of India, 2018 SCCOnline SC 1350
 RIT Foundation v. Union of India, Delhi High Court (May 11, 2022).

Recommended Readings:
 Richard J. Arneson, ‘Equality’, pp. 593-611 in Goodin, Pettit & Pogge, A Companion to
Contemporary Political Philosophy (Blackwell Publishing, 2007).
 Udai Raj Rai, Fundamental Rights and their Enforcement (PHI Publishers, 2011), pp.
450-569.

MODULE 4: EQUALITY OF OPPORTUNITY AND ANTI-DISCRIMINATION

While Article 14 is the principal provision that deals with the ideal of equality, the neighbouring
provisions such as Articles 15 and 16 explicitly deal with the larger obligations that need to be assumed
by the State as well as private parties in order to address existing patterns of social and economic
inequality. While some components of these provisions touch on the need to combat discrimination on
grounds such as ‘religion’, ‘race’, ‘caste’, ‘sex’ and ‘place of birth’ among other markers, other
components enable the State to design affirmative action programmes so as to broaden opportunities to
pursue higher education and seek public employment. The Indian Constitution also contemplates
affirmative action in the domain of electoral representation (Articles 330 and 332) but that area will be
discussed in the second course. The overarching idea of equality also flows through Articles 17
(Prohibition of Untouchability) and Article 18 (Abolition of Titles) which were intended as rights
against discrimination. Some scholars argue that these provisions taken together should be viewed as
the principal instruments of the social revolution that was intended by the framers.

This module will proceed through two lines of inquiry. Firstly, we will try to highlight interpretive
methods that can be used to read the anti-discrimination provisions in a dynamic sense. Given the
limitations of time, the required readings will concentrate on questions surrounding gender and caste-
based discrimination. Second, we will take you through a representative sample of judicial decisions
that are closely linked to public debates about the nature and scope of the affirmative action
programmes which are designed to enhance access to education and employment for the Scheduled
Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBCs). Given the charged rhetoric
surrounding these issues, the efforts will be to present the key parameters of judicial engagement rather
than sharp ideological positions based on group identity. Needless to say, the evolution of law in this
area will compel students to think deeply about questions of distributive justice.
Core Readings:
• Kalpana Kannabiran, Tools of Justice: Non-Discrimination and the Indian Constitution
(Routledge, 2012): Chapter 6 on ‘The Caste System, Justice and the Law’ and Chapter 11 on
'Sex Discrimination Jurisprudence in India'.
• Tarunabh Khaitan, ‘Beyond Reasonableness–A Rigorous Standard of Review for Article 15
Infringement’, 50(2) Journal of Indian Law Institute 177-208 (2008).
• M.P. Singh, ‘Ashoka Kumar Thakur: A Divided Verdict on an Undivided Social Justice
Measure’, 1(2) NUJS Law Review 193-218 (2009).
• Sasheej Hegde, 'The Many Truths of Reservation Quotas in India: Extending The Engagement',
43(3/4) Social Scientist 61-104 (2015).

Key cases:
 State of Madras v. Champakan Dorairajan, AIR 1951 SC 226.
 M. R. Balaji v. State of Mysore, AIR 1963 SC 649.
 State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
 Soosai v. Union of India & Ors., AIR 1986 SC 733.
 Indra Sawhney v. Union of India, AIR 1993 SC 477 (opinion of Jeevan Reddy, J.).
 E. V. Chinnaiah v. State of Andhra Pradesh, (2005)1 SCC 394.
 M. Nagaraj v. Union of India, (2006) 8 SCC 212.
 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (opinion of K.G.
Balakrishnan, C.J.)
 Uttar Pradesh Power Corporation Ltd. v. Rajesh Kumar & Ors.,(2012) 7 SCC 1.
 B.K. Pavitra v. Union of India (II), 2019 SCC Online SC 694.
 Dr. Jaishree Laxmanrao Patil v. Chief Minister, State of Maharashtra, Supreme Court
of India (May 5, 2021).
 State of Kerala v. Leesamma Joseph, Supreme Court of India (June 28, 2021).
 Neil Aurelio Nunes v. Union of India, Supreme Court of India (January 20, 2022).
 Jarnail Singh v. Lachhmi Narain Gupta, Supreme Court of India (January 28, 2022).

Recommended Readings:
• Ratna Kapur, ‘Gender Equality’, pp. 742-755 in The Oxford Handbook of the Indian
Constitution (OUP, 2016).
• Parmanand Singh, ‘Equality and Compensatory Discrimination’, pp. 126-152 in K.
Chockalingam & C. Raj Kumar (eds.), Human Rights, Justice and Constitutional
Empowerment (Oxford University Press, 2007).
• Marc Galanter, Competing Equalities: Law and the Backward Classes in Modern India
(University of California Press, 1984).
• Tarunabh Khaitan, A Theory of Anti-Discrimination Law (Oxford University Press, 2014).
• Report of the National Commission for the Scheduled Castes (Reservations in Promotions for
Members of Scheduled Castes). Available at the following link:
<http://ncsc.nic.in/files/Reservation%20in%20Promotion.pdf>
• Asha Das, ‘Dissent Note: Conferment of Scheduled Caste Status on SC converts to
Christianity and Islam’, Vijayvaani (August 24, 2010); Available at the following link:
<http://www.vijayvaani.com/ArticleDisplay.aspx?aid=1153>
MODULE 5: ENUMERATED FREEDOMS

As opposed to the broader idea of liberty that serves as another legitimating ideal, Article 19 is an
example where some dimensions of personal liberty have been explicitly mentioned. At the time of the
framing, the freedoms of speech, assembly, association, movement, residence, property (removed from
Part III in 1978) and those of seeking a livelihood were largely characterized as significant for enabling
civic and political participation. Most of them were conceptualized as protections against arbitrary
actions by the State, perhaps deeply informed by the experiences of the framers, many of whom had
faced repression during the freedom struggle. They were also confined to ‘citizens’, which is an
expression that covers individuals in its legal sense in India and has been consciously not applied to
group entities such as corporations. However, soon after the enactment of the Constitution, the
Supreme Court read the freedom of speech broadly to protect press freedoms when some publications
were sought to be prohibited. The Government responded by amending the Constitution and inserted
grounds for placing reasonable restrictions on the exercise of these freedoms. Corresponding
restrictions were placed for the other neighbouring freedoms enumerated in Article 19. Hence, the
enumerated freedoms came to be read and interpreted in close conjunction with interests that can be
invoked by the government of the day in order to curtail them.

This takes us to several questions about their interpretation. Do these enumerated freedoms enjoy a
higher pedigree than other dimensions of personal liberty which have been progressively read into Part
III? How do they relate to other provisions that seek to ensure equality and protect liberty? What
happens in the case of conflicts between enumerated freedoms? What should be the standards of
judicial scrutiny in weighing the grounds provided by the State when it places restrictions on the
exercise of these freedoms? How should these freedoms be understood in light of social, economic and
political change? Can they be understood through a comparative lens by looking at how similarly
worded freedoms in other countries have been recognized? We will try to engage with these questions
through a representative sample of cases dealing with the freedom of speech. If time permits, we will
look at secondary literature to discuss the interpretation of the other enumerated freedoms. The right to
property (now in Art. 300A) will be discussed in conjunction with the ‘Basic Structure’ doctrine as part
of the second course.

Required Readings:
• Rajeev Dhavan, 'The Press and The Constitutional Guarantee of Free Speech and Expression',
28(3) Journal of The Indian Law Institute 299-385 (1986).
• Granville Austin, ‘Free Speech, Liberty and Public Order’, pp. 40-68 in Working A Democratic
Constitution: The Indian Experience (OUP, 2002).
• T. John O’Dowd, ‘Pilate’s Paramount Duty’, in Sunil Khilnani, Vikram Raghavan & Arun K.
Thiruvengadam (eds.), Comparative Constitutionalism in South Asia (OUP, 2012).
• Ronald Dworkin, ‘Constitutional Cases’, pp. 163-184 in Taking Rights Seriously (Harvard
University Press, 1977).
• Aharon Barak, ‘Determining the Scope of Constitutional Rights’, pp. 45-82 in Proportionality:
Constitutional Rights and their Limitations (Cambridge University Press, 2012).

Key Cases:
 Romesh Thapar v. State of Madras, AIR 1950 SC 124.
 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
 Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 (dissenting opinion).
  S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
 R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
 People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.
 Shreya Singhal v. Union of India, AIR 2015 SC 1523.
 Subramaniam Swamy v. Union of India, (2016) 7 SCC 221 (Upholding validity of
criminal defamation).
 S. Tamilselvan v. Govt. of Tamil Nadu, 2016 SCCOnline Mad 5960 (Perumal
Murugan’s case).
 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (Right to Privacy
judgment).
 Anuradha Bhasin v. Union of India, Supreme Court of India (January 10, 2020).

Recommended Readings:
• Gautam Bhatia, Offend, Shock or Disturb: Free Speech Under the Indian Constitution (Oxford
University Press, 2015).
• Rajeev Dhavan, Publish and be Damned: Censorship and Intolerance in India (Tulika Books,
2008).
• K.G. Kannabiran, ‘Conspiracies of Association: Associational Offences, Associational
Freedoms and the Rule of Law’ in Kalpana Kannabiran & Ranbir Singh (eds.), Challenging the
Rules(s) of Law’: Colonialism, Criminology and Human Rights in India (Sage Publishers,
2009).
• Fali S. Nariman, ‘The Way Forward’, 615 Seminar (November 2010).
• From The Oxford Handbook of the Indian Constitution (OUP, 2016):
 Lawrence Liang, ‘Free Speech and Expression’, pp. 814-833.
 Menaka Guruswamy, ‘Assembly and Association’, pp. 834-848.
 Anirudh Burman, ‘Movement and Residence’, pp. 849-866.
 Vikramaditya Khanna, ‘Profession, Occupation, Trade, or Business’, pp. 867-884.

MODULE 6: PROTECTION OF LIFE AND PERSONAL LIBERTY

Given its open-textured nature, Article 21 has emerged as the principal vehicle for judicial recognition
of liberties that are not explicitly enumerated. In its original form, it was conceived of as a ‘due
process’ clause which would entail procedural safeguards for defendants in criminal cases. The premise
being that individual defendants will require protections against prosecutions launched by the better
resourced State. This characterization goes back to British Medieval History, where the evolution of
safeguards in criminal trials was closely linked to the previous persecution of political dissenters and
religious non-conformists. In that sense, these protections reflect the transition from autocratic to
democratic rule. Hence, this provision acts as a reinforcement of rights such as that of seeking legal
representation, a fair opportunity to present a defence and to expect reasoned orders. Articles 20 and 22
also reflect on interface between the Constitutional text and the law of criminal procedure. Article 20
codifies well-established protections in criminal law such as the rule against double-jeopardy, the right
against self-incrimination and the restraint on retrospective criminalization of conduct. Article 22 deals
with the power of the State to use measures such as preventive detention in the interests of security or
to maintain law and order. It also contemplates checks on this power such as time-limits on the
detention periods and review by Advisory Boards. This module will begin with an overview of the
significant judicial decisions in this area.
While the interface with criminal procedure becomes evident from a bare reading of Article 21, its
expansive reading takes us into other subject-matter. Given the recognition of the interrelationship
between Articles 14, 19 and 21 in the Maneka Gandhi case (1978), the Indian Supreme Court has
expanded the understanding of personal liberty in several directions. In differentiating this position
from the earlier decision of A.K. Gopalan (1951), the Court has in effect transplanted the idea of
‘substantive’ due process. This implies that rather than just insisting on procedural safeguards in
proceedings that can lead to the deprivation of personal liberty, a broader range of governmental
actions can be questioned if they infringe rights that emerge from a conjoint reading of the idea of
equality, the enumerated freedoms and the open-textured protection for personal liberty. A significant
articulation has been in the context of framing expectations of privacy, primarily in response to
intrusive surveillance practices. This has paved the way for judicial borrowing from other jurisdictions
on this aspect. Another development in this direction has been the evolution of ‘constitutional torts’
wherein courts have granted civil remedies such as monetary compensation to citizens in lieu of harm
caused by the State in cases such as those of unjust detention, custodial torture, sexual assault or
negligence by government employees.

We will look at two distinctive strategies that have been used to expand the ambit of the phrase ‘life
and personal liberty’. Firstly, we will examine the articulation of respect for human dignity. This idea
has been used to argue for an expanded understanding of personal autonomy in settings such as the
right of an individual to choose death in case of a terminal illness or the right of persons with
disabilities to seek late-term abortions, to give two examples. The second interpretive strategy has been
that of a fragmented process of harmonization with some of the Directive Principles of State Policy
(Part IV). This has enabled deeper judicial engagement with socio-economic objectives such as that of
expanding access to healthcare, education and means of livelihood. These interventions have also
reached collective goals such as environmental protection and remedies against corrupt practices in
governance. However, this strategy also invites considerable criticism since it often reflects selective
pursuits of policy objectives that require administrative expertise and large budgetary commitments.
Some argue that this form of judicial expansion upsets the ‘separation of powers’ between the three
principal limbs of government and should be characterized as unwelcome activism. Others argue that
such judicial engagement becomes a vital tool for progressive change since the interests of
disadvantaged parties with inadequate bargaining power in the political process are more likely to be
addressed by the courts. Yet another perspective is that courts are poorly equipped to deal with socio-
economic policies and risk undermining their own legitimacy in the eyes of the litigants if their orders
are not enforced. We will deal with this theme in considerable detail as part of the second course.

Required Readings:
• P.K. Tripathi, ‘The Fiasco of Overruling A.K. Gopalan and Worse’, AIR 1990 Journal 1.
• Mrinal Satish and Aparna Chandra, ‘Of Maternal State and Minimalist Judiciary: The Indian
Supreme Court’s Approach to Terror-Related Adjudication’, 21(1) National Law School of
India Review 51-87 (2009).
• Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in
Comparative Constitutional Law (Princeton University Press, 2008), pp. 227-264.
• Paul O' Connell, 'The Death of Socio-Economic Rights', 74(4) Modern Law Review 532-554
(2011).
• Erin Daly, Dignity Rights: Courts, Constitutions and The Worth of the Human Person
(University of Pennsylvania Press, 2013), pp. 11-52.
Key Cases:
 A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
 Hardhan Saha v. State of West Bengal, (1975) 3 SCC 198.
 A.K. Roy v. Union of India, (1982) 1 SCC 271.
 Bachan Singh v. State of Punjab, (1982) 3 SCC 24. (opinion of P.N. Bhagwati, J.).
 Selvi Murugeshan & Ors. v. State of Karnataka, (2010) 7 SCC 263.
 Nandini Sundar & Ors. v. State of Chhattisgarh, (2011) 7 SCC 547.
 Suchita Srivastava & Anr. v. Chandigarh Administration, (2009) 9 SCC 1.
 Aruna Ramchandra Shanbaugh v. Union of India, (2011) 4 SCC 454.
 Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1.
 National Legal Services Authority (NALSA) v. Union of India, (2014) 5 SCC 438.
 Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
 Justice K.S.Puttaswamy v. Union of India, (2017)10 SCC 1 (Right to Privacy).
 Justice K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (Aadhar judgment).

Recommended Readings:
• Ram Jethmalani, ‘Detention without Trial’, Chapter 16 in Kirpal, Desai, Subramanium, Dhavan
and Ramachandran (eds.), Supreme but not Infallible: Essays in Honour of the Supreme Court
of India (Oxford University Press, 2000).
• Kent Roach, ‘Judicial Review of the State’s Anti-Terrorism Activities: The Post 9/11
experience and normative justifications for judicial review’, 3 Indian Journal of Constitutional
Law 138-167 (2009).
• Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of
India’, 4 Third World Legal Studies 107-132 (1985).
• T.R. Andhyarujina, ‘The Evolution of Due Process of Law by the Supreme Court’, Chapter 11
in B.N. Kirpal, A. Desai, G. Subramanium, R. Dhavan and R. Ramachandran (eds.), Supreme
but not Infallible: Essays in the Honour of the Supreme Court of India (Oxford University
Press, 2000)
• Arun K. Thiruvengadam, ‘The Global Dialogue among Courts: Social Rights Jurisprudence of
the Supreme Court of India from a Comparative Perspective’, pp. 264-309 in K. Chockalingam
& C. Raj Kumar (eds.), Human Rights, Justice and Constitutional Empowerment (Oxford
University Press, 2007).
• From The Oxford Handbook of the Indian Constitution (OUP, 2016):
- Anup Surendranath, ‘Life and Personal Liberty, pp. 756-776.
- Abhinav Chandrachud, ‘Due Process’, pp. 777-793.
- Aparna Chandra and Mrinal Satish, ‘Criminal Law and the Constitution’, pp. 794-813.

MODULE 7: SECULARISM AND FREEDOM OF RELIGION

At this stage, we will concentrate on Articles 25 and 26, which are the principal provisions dealing with
the ‘freedom of religion’. Articles 27 and 28 are also connected to the same, but they are not litigated
as much on account of their relatively precise language. It will be useful to begin with an overview of
how the debate on secularism has evolved in post-Independence India. The Constituent Assembly
Debates were closer to the idea of ‘equal respect’ which implies that the State should allow different
religions to flourish in public life and not discriminate between them, either by endorsing one religion
or by stigmatizing another. This idea is distinct from the strand of ‘No concern’ secularism that is
identified with some Western democracies where the State is expected to actively disentangle religious
practices from public life. A useful analytical category in this regard is one given by Gary Jeffrey
Jacobsohn (2003) who speaks of ‘accommodative’, ‘ameliorative’ and ‘assimilative’ approaches to
secularism in a comparative study of how the concept has played out in India, the United States and
Israel respectively.

Given the electoral consolidation of Hindu nationalism since the 1990s, social and political
commentators have laid stress on the ideal of religious tolerance as one of the essential attributes of
liberal constitutionalism. Others argue that the public expression of religious beliefs should not be
encumbered by the State, since their suppression would weaken the legitimacy to govern a multi-
religious country like India. It must be kept in mind that some religious practices can come into conflict
with other rights enumerated in Part III. The early thrust of the Indian Supreme Court was to
subordinate the freedom of religion to other constitutional provisions such as those directed against
discrimination. This is evident from decisions that upheld statutes which created remedies against
customary restrictions on access to places of worship. The Court also scrutinized financial decisions
made by religious trusts and endowments by articulating a distinction between the ‘essential’ and
‘secular’ practices of a religious group. As per this standard, judicial interventions were legitimized in
so far as they dealt with practices pertaining to financial matters such as the distribution of offerings
collected from worshippers and the management of property owned by religious groups. On the other
hand, functions such as the performance of long-practiced ceremonies and the preservation of the
premises were deemed to be ‘essential’ and hence left outside the purview of judicial scrutiny.

Over time, the ‘essential-secular’ diad has proved to be counterproductive in several matters dealing
with governmental restrictions on religious practices. In particular, it has proved to be a conceptual
obstacle in dealing with persistent controversies such as those arising from restrictions on cow-
slaughter and State-level laws that criminalize the act of religious conversion. There have also been
intense debates surrounding situations where religious practices are seen as antithetical to the
maintenance of public order. Another significant question that can be examined at this stage is whether
there should be judicial scrutiny over personal laws of religious minorities? While older decisions had
exempted personal laws from such scrutiny through their interpretation of Article 13, the question has
been debated intensely in recent times, especially in the context of some marriage practices which are
recognised in Muslim Personal Law such as ‘Triple Talaq’ and ‘Polygamy’.

Required Readings:
 Rajeev Bhargava, 'The Distinctiveness of Indian Secularism', pp. 20-53 in T.N. Srinivasan (ed.),
The Future of Indian Secularism (OUP, 2006).
 Rochana Bajpai, 'Multiculturalism in India: An Exception', pp. 127-149 in Richard T. Ashcroft
& Mark Bevir (eds.), Multiculturalism in The British Commonwealth: Comparative
Perspectives on Theory and Practice (University of California Press, 2019).
 Faizan Mustafa & Jagteshwar Singh Sohi, 'Freedom of Religion in India: Current Issues and
The Supreme Court Acting As Clergy', 9(4) Brigham Young University Law Review 915-955
(2018).
 A.G. Noorani, 'Supreme Court Denies Justice', FrontLine Magazine (December 6, 2019).

Recommended Readings:
• Marc Galanter, ‘Hinduism, Secularism and the Indian Judiciary’, 21(4) Philosophy East and
West 467-487 (1971).
• Thomas Pantham, ‘Indian Secularism and its Critics: Some Reflections’, 59(3) The Review of
Politics 523-540 (1997).
 • Brenda Cossman and Ratna Kapur, ‘Secularism’s last sigh? The Hindu Right, the Courts and
India’s struggle for Democracy’, 38(1) Harvard International Law Journal 113-170 (1997).

Key Cases:
 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
 Commissioner, Hindu Religious and Charitable Endowments v. Sri Lakshmindra
Thirtha Swamiar, (1954) SCR 1005.
 Venkatramana Devaru v. State of Mysore, AIR 1958 SC 255.
 Sastri Yagnapurushadji v. Muldas Bhadardas Vaishya, AIR 1966 SC 1119.
 Mohammed Ahmad Khan v. Shah Bano Begum, (1985) 2 SCC 556.
 Rev. Stainislaus v. State of Madhya Pradesh, (1977) 2 SCR 611.
 Mohammed Hanif Qureshi v. State of Bihar, AIR 1958 SC 731.
 State of Gujarat v. Mirzapur Moti Qureshi Kassab Jamat, (2005) 8 SCC 534.
 Zoroastrian Co-operative Housing Society v. District Registrar, Co-operative Societies
(Urban), (2005) 5 SCC 632.
 Noorjehan Safia Niaz & Zakia Soman v. State of Maharashtra, Bombay High Court
(August 26, 2016).
 Shayara Bano v. Union of India, (2017) 9 SCC 1.
 Indian Young Lawyers Association v. State of Kerala, 2018 (8) SCJ 609.
 M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1. (Ayodhya Title Dispute)
 Smt. Resham v. State of Karnataka, High Court of Karnataka (March 15, 2022).

Recommended Readings:
 Robert D. Baird (ed.), Religion and Law in Independent India, Second Edition (Manohar
Publishers and Distributors, 2005) [First Edition, 1993]
 Rajeev Bhargava (ed.), Secularism and its Critics (Oxford University Press, 1998).
 Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative
Constitutional Context (Princeton University Press, 2003).
 Ronojoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme Court
(Oxford University Press, 2010).
 Akeel Bilgrami, Secularism, Identity and Enchantment (Harvard University Press,
2014).
 From The Oxford Handbook of the Indian Constitution (OUP, 2016):
 Ronojoy Sen, ‘Secularism and Religious Freedom’, pp. 885-902.
 Flavia Agnes, ‘Personal Laws’, pp. 903-920.

MODULE 8: EDUCATIONAL AND CULTURAL RIGHTS OF MINORITIES

In the last part of the course, we will examine Articles 29 and 30 which protect the rights of religious
and linguistic minorities to preserve their language and culture and concomitantly to establish and
administer educational and charitable institutions respectively. At the time of the framing of the Indian
Constitution, the language of these rights was substantially borrowed from comparative sources. The
protection of the educational and cultural rights of minorities was given utmost significance in the
discourse of International Human Rights Law, a field which was emerging at the time as a response to
the majoritarian atrocities witnessed during the Second World War. In that sense, these rights speak
both to the ‘freedom of religion’ as well as the larger ideal of promoting equality and non-
discrimination in the polity. However, the judicial interpretation in India has changed the contours of
the debate. Especially in the context of Article 30, the central question has been whether this provision
is merely meant to protect the identity-conferring practices (such as language and religious belief) or
should it extend to generic activities such as the pursuit of higher education in professional fields? One
position in this regard is that educational institutions run by religious and linguistic minorities should
be given considerable autonomy from governmental regulation so that they can provide effective
access to education for their own members who might otherwise struggle to acquire the same in
institutions dominated by the majority religious or linguistic groups. A contrary position is that
differential treatment accorded to minority-run educational institutions would also make it harder for
the government to regulate their quality, apart from obstructing the implementation of affirmative
action provisions in the education sector such as those enumerated in Articles 15(4), 15(5) and 21-A. In
this context, the role of the National Commission for Minority Educational Institutions (NCMEI) has
become important as an oversight body.

Required Readings:
• Virendra Kumar, 'Minorities Right To Run Educational Institutions: T.M.A. Pai Foundation in
Perspective', 45(2) Journal of The Indian Law Institute 200-238 (2003).
• Ajaz Ashraf, Interview with Faizan Mustafa on Minority Status of Aligarh Muslim University
(Available on Scroll.in, January 16, 2016).

Key Cases:
• In Re The Kerala Education Bill, AIR 1958 SC 956.
• Azeez Basha v. Union of India, AIR 1968 SC 662.
• D.A.V. College v. State of Punjab, (1971) 2 SCC 269.
• St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558.
• T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. [Opinion of Ruma Pal, J.]
• P.A. Inamdar v. State of Maharashtra, (2004) 8 SCC 139.
• Aligarh Muslim University v. Malay Shukla, (2006) 1 AWC 992.
• Pramati Educational & Cultural Trust & Ors. v. Union of India & Ors., (2014) 8 SCC 1.

Recommended Readings:
• Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life: Religious Freedom,
Minority Groups and Disadvantaged Communities’, Chapter 14 in Supreme but not Infallible:
Essays in Honour of the Supreme Court of India (OUP, 2000).
• Udai Raj Rai, Fundamental Rights and their Enforcement (PHI Publishers, 2011), pp. 638-687.

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