UNIT-1

Meaning & importance/significance of Constitution : Sources and features of Indian

Constitution, Preamble, Fundamental rights under part –III & Reasonable restrictions..
Meaning & importance/significance of Constitution.

1. Explain the meaning & importance of Constitution.

A Constitution of a state is a fundamental set of principles or established
precedents according to which the state is governed. It outlines the organization,
powers, and limits of government institutions, as well as the rights and duties of
citizens. It serves as the supreme law of the land, providing a framework for the
functioning of the government, the protection of individual liberties, and the
maintenance of social order.

Significance of the Constitution of India

• Rule of Law – The Constitution establishes the framework for governance based
on the rule of law, ensuring that no individual, including government officials, is
above the law.
• Protection of Rights – It guarantees fundamental rights to citizens,
safeguarding their freedoms of speech, expression, religion, and more, while also
providing mechanisms for legal redress if these rights are infringed upon.
• Structure of Government – The Constitution delineates the structure of
government, defining the roles, powers, and limitations of the executive,
legislative, and judicial branches. This separation of powers prevents the
concentration of authority and promotes checks and balances.
• Democratic Principles – Through provisions like a universal adult franchise, the
constitution upholds democratic principles by ensuring citizens’ participation in
governance through free and fair elections.
• Stability and Continuity – The constitution provides stability and continuity in
governance, serving as a framework for guiding successive governments and
preventing abrupt changes in the political system.
• National Unity – It fosters national unity by recognizing and respecting the
diversity of the populace while also promoting a sense of common citizenship and
allegiance to the nation.
• Legal Framework – The constitution serves as the legal foundation upon which
all laws and regulations are based, providing consistency and coherence in the
legal system.
• Adaptability – While providing a stable framework, the constitution also allows
for necessary amendments to accommodate changing societal needs and values,
ensuring its relevance over Time.

2. Explain the salient features of Indian Constitution.

• Lengthiest Written Constitution – The Constitution of India is the lengthiest

of all the written Constitutions of the world. It is a very comprehensive and
detailed document.
• Drawn from Various Sources – The Constitution of India has borrowed most of
its provisions from the Government of India Act of 1935 as well as from the
constitutions of various other countries.

• Blend of Rigidity and Flexibility – Constitutions are classified into

– rigid (requires a special procedure for its amendment) and flexible (can be
amended in the same manner as ordinary laws are made).
o The Constitution of India is neither rigid nor flexible, but a synthesis of
both.

• Federal System with Unitary Bias – The Constitution of India establishes

a federal system of government and contains all the usual features of a
federation. However, it also contains a large number of unitary or non-federal
features.

• Parliamentary Form of Government – The Constitution of India has adopted

the British Parliamentary System of Government. The parliamentary system is
based on the principle of cooperation and coordination between the legislative
and executive organs.

• Synthesis of Parliamentary Sovereignty and Judicial Supremacy – The

synthesis of parliamentary sovereignty and judicial supremacy in India
represents a delicate balance between the authority of the legislature to enact
laws and the power of the judiciary to review and interpret these laws in light of
constitutional principles.

• Integrated and Independent Judiciary – The Indian Constitution establishes

an integrated and independent judicial system in the country.
o An integrated judicial system means that a single system of courts,
comprising of Supreme Court, High Courts, and Subordinate Courts,
enforces both the central laws as well as the state laws.
o An independent judicial system means that the Indian judiciary
operates autonomously, free from the influence of the executive and
legislative branches of government.

• Fundamental Rights – The Indian Constitution guarantees 6 fundamental

rights to all citizens, which promotes the idea of political democracy in the
country.
• Directive Principles of State Policy – The Indian Constitution contains a set
of principles in the form of Directive Principles of State Policy (DPSPs),
o The Directive Principles seek to establish a ‘Welfare State’ in India by
promoting the ideal of social and economic democracy.

• Fundamental Duties – The fundamental duties are a set of moral and civic
obligations outlined in the Constitution of India.
o These duties serve as a guide for citizens to contribute towards building a
strong and harmonious nation.

• A Secular State – The Constitution of India does not uphold any particular
religion as the official religion of the Indian State. Instead, it mandates that the
 state treat all religions equally, refraining from favoring or discriminating
against any particular religion.

• Universal Adult Franchise – The Indian Constitution adopts universal adult

franchise as the basis of elections to the Lok Sabha and the State Legislative
Assemblies.
o Every citizen who is not less than 18 years of age has a right to
vote without any discrimination based on caste, race, religion, sex,
literacy, wealth, and so on.

• Single Citizenship – Single citizenship is a constitutional principle in India

whereby all citizens irrespective of the state in which they are born or reside enjoy
the same political and civil rights of citizenship all over the country, and no
discrimination is made between them.

• Independent Bodies – The Indian Constitution has established certain

independent bodies which are envisaged as the bulwarks of the democratic
system of Government in India.

• Emergency Provisions – The Indian Constitution contains emergency provisions

to enable the President to meet any extraordinary situation effectively.
o The rationale behind the incorporation of these provisions is to safeguard
the sovereignty, unity, integrity, and security of the country, the
democratic political system, and the Constitution.

• Three-tier Government – The three-tier government refers to the division of

governmental powers and responsibilities among three levels- the central
government, state governments, and local governments (Panchayats and
Municipalities).
o This decentralized system allows for effective governance by delegating
authority to address regional and local issues, promoting participatory
democracy and grassroots development.

• Co-operative Societies – The 97th Constitutional Amendment Act of

2011 gave constitutional status and protection to co-operative societies.

3. Explain the sources of Constitution.

Government of India Act of 1935 – Federal Scheme, Office of Governor,

Judiciary, Public Service Commissions, Emergency Provisions, and
Administrative Details.

British Constitution – Parliamentary System of Government, Rule of Law,

Legislative Procedure, Single Citizenship, Cabinet System, Prerogative Writs,
Parliamentary Privileges, and Bicameralism.

US Constitution – Fundamental Rights, Independence of the Judiciary, Judicial

Review, Impeachment of the President, Removal of Supreme Court and High
Court Judges, and the Post of the Vice-President.
 Irish Constitution – Directive Principles of State Policy, the Nomination of
Members to Rajya Sabha, and Method of Election of the President.

Canadian Constitution – Federation with a strong Centre, vesting of residuary

powers in the Centre, appointment of state governors by the Centre, and advisory
jurisdiction of the Supreme Court.

Australian Constitution – Concurrent List, Freedom of Trade, Commerce &

Intercourse, and a Joint Sitting of the two Houses of Parliament.

Weimar Constitution of Germany – Suspension of Fundamental Rights during

Emergency.

Soviet Constitution (USSR, now Russia) – Fundamental duties and the ideal of
Justice (Social, Economic, and Political) in the Preamble.

French Constitution – Republic and the ideals of Liberty, Equality, and

Fraternity in the Preamble.

South African Constitution – Procedure for amendment of the

Constitution and election of members of Rajya Sabha.

Japanese Constitution – Procedure established by law

Preamble:

▪ The ideals behind the Preamble to India’s Constitution were laid down
by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent
Assembly on January 22, 1947.
Components of Preamble

▪ It is indicated by the Preamble that the source of authority of the Constitution

lies with the people of India.
▪ Preamble declares India to be a sovereign, socialist, secular and democratic
republic.
▪ The objectives stated by the Preamble are to secure justice, liberty, equality to
all citizens and promote fraternity to maintain unity and integrity of the
nation.
▪ The date is mentioned in the preamble when it was adopted i.e. November 26,
1949.
Key words in the Preamble

▪ We, the people of India: It indicates the ultimate sovereignty of the people of
India. Sovereignty means the independent authority of the State, not being subject
to the control of any other State or external power.
▪ Sovereign: The term means that India has its own independent authority and it is
not a dominion of any other external power. In the country, the legislature has the
power to make laws which are subject to certain limitations.
▪ Socialist: The term means the achievement of socialist ends through
democratic means. It holds faith in a mixed economy where both private and
public sectors co-exist side by side.

o It was added in the Preamble by 42nd Amendment, 1976.

▪ Secular: The term means that all the religions in India get equal respect, protection
and support from the state.

o It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.

▪ Democratic: The term implies that the Constitution of India has an established
form of Constitution which gets its authority from the will of the people expressed
in an election.
▪ Republic: The term indicates that the head of the state is elected by the people. In
India, the President of India is the elected head of the state.
Objectives of the Indian Constitution or Preamble

▪ The Constitution is the supreme law and it helps to maintain integrity in the
society and to promote unity among the citizens to build a great nation.

o The main objective of the Indian Constitution is to promote harmony

throughout the nation.
▪ The factors which help in achieving this objective are:

o Justice: It is necessary to maintain order in society that is promised through

various provisions of Fundamental Rights and Directive Principles of State
Policy provided by the Constitution of India. It comprises three elements,
which is social, economic, and political.

• Social Justice – Social justice means that the Constitution wants to

create a society without discrimination on any grounds like caste, creed,
gender, religion, etc.
• Economic Justice – Economic Justice means no discrimination can be
caused by people on the basis of their wealth, income, and economic
status. Every person must be paid equally for an equal position and all
people must get opportunities to earn for their living.
• Political Justice – Political Justice means all the people have an equal,
free and fair right without any discrimination to participate in political
opportunities.
 o Equality: The term ‘Equality’ means no section of society has any special
privileges and all the people have given equal opportunities for everything
without any discriminations. Everyone is equal before the law.
o Liberty: The term ‘Liberty’ means freedom for the people to choose their way
of life, have political views and behavior in society. Liberty does not mean
freedom to do anything, a person can do anything but in the limit set by the
law.
o Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an
emotional attachment with the country and all the people. Fraternity helps to
promote dignity and unity in the nation.
4. Is the Preamble is the part of the Indian Constitution.

YES, the preamble being part of the Constitution is discussed several times in
the Supreme Court. It can be understood by reading the following two cases.

o Berubari Case: It was used as a reference under Article 143(1) of the

Constitution which was on the implementation of the Indo-Pakistan
Agreement related to the Berubari Union and in exchanging the enclaves
which were decided for consideration by the bench consisting of eight
judges.
o Through the Berubari case, the Court stated that ‘Preamble is the key to
open the mind of the makers’ but it cannot be considered as part of the
Constitution. Therefore it is not enforceable in a court of law.
▪ Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges
was assembled to hear a writ petition. The Court held that:

o The Preamble of the Constitution will now be considered as part of the

Constitution.
o So, it can be concluded that preamble is part of the introductory part of the
Constitution.
▪ In the 1995 case of Union Government Vs LIC of India also, the Supreme Court
has once again held that Preamble is the integral part of the Constitution but is
not directly enforceable in a court of justice in India.

Amendment of the Preamble

Is the Preamble can be amended able.
Yes, it can
▪ 42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati
case, it was accepted that the preamble is part of the Constitution.

o As a part of the Constitution, preamble can be amended under Article

368 of the Constitution, but the basic structure of the preamble cannot be
amended.
o As of now, the preamble is only amended once through
the 42nd Amendment Act, 1976.
▪ The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through
42nd Amendment Act, 1976.

o ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.

o ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.

5. Explain the State under article 12 with the help of the decided cases.
Article 12 defines the term 'State' in Part III of the Constitution. It says that the
term 'State' includes the following:

1. The Government and Parliament of India, i.e. Executive and Legislature of the
Union.
2. The Government and Legislature of each State, i.e. Executive and Legislature of
the State.
3. All Local and Other Authorities within the Territory of India.
4. All Local and Other Authorities are under the control of the Government of
India.

The term 'State' thus includes executive as well as the legislative organ of the
Union and State. It is, therefore, the actions of these bodies that can be
challenged before the courts as violating fundamental rights.

• Shantha Bai V university of Madras.

The Madras High Court ruled that a university is not a state because it is not
similar to the government, legislatures, or local authorities.
• Smt. Ujjam Bai Vs State of Uttar Pradesh.
The Supreme Court ruled that the Principle of Ejusdem Generis is not useful in
interpreting the expression “other authorities” in Article 12.

• Rajasthan State Electricity Board v/s Mohanlal, 1967:

The Supreme Court held that a State Electricity Board, set up by a statute having
some commercial function falls within the meeting of the authority of Article 12.

• Sukhdev v/s Bhagatram, 1975:

The Supreme Court held that three statutory bodies i.e Life Insurance Corporation,
Oil and Natural Gas Commission and the Finance Corporation falls within the term
of Article 12.
 ▪ In R.D Shetty v. Airport Authority of India Justice P.N Bhagwati gave 5 Point
test This is a test to determine whether a body is an agency or instrumentality of
the state and goes as follows –

o Financial resources of the State, where State is the chief funding source i.e.
the entire share capital is held by the government.
o Deep and pervasive control of the State
o The functional character being Governmental in its essence, meaning thereby
that its functions have public importance or are of a governmental character.
o A department of Government transferred to a corporation.
o Enjoys “monopoly status” which State conferred or is protected by it.
This was elucidated with the statement that the test is only illustrative and not
conclusive in its nature and is to be approached with great care and caution.

Judiciary

▪ The Judiciary is not expressly mentioned in Article 12 and a great amount of

dissenting opinions exist on the same matter.

▪ However, in Rupa Ashok Hurra v. Ashok Hurra the Apex Court reaffirmed and
ruled that no judicial proceeding could be said to violate any of the Fundamental
rights and that it is a settled position of law that superior courts of justice did not
fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.

Note: NCERT is not a state.

5. Explain the Doctrine of Eclipse & Doctrine of Severability or Separability
under article 13 of the Indian Constitution.
Article 13(1) of the COI
▪ Article 13 deals with the laws inconsistent with or in derogation of fundamental rights.
▪ Article 13(1) states that all laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the provisions
of this Part, shall, to the extent of such inconsistency, be void
Elements of Doctrine of Eclipse
▪ It should be a pre-constitutional law.
▪ It must be in conflict with fundamental rights.
▪ The law does not become a dead letter but only inoperative.
▪ If there is an amendment to the fundamental right in future it will automatically make the
impugned law operative.

Does the Doctrine of Eclipse Apply to Post Constitutional Law?

▪ The doctrine of eclipse has been held to apply only to the pre-constitution laws which are
governed by Article 13(1) and would not apply to post-Constitution laws which are
governed by Article 13(2).
▪ Article 13(2) of the COI states that the State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of this clause
shall, to the extent of the contravention, be void.

Landmark Case Laws of Doctrine of Eclipse

▪ Deep Chand v. State of U.P. (1959):
o The Supreme Court held that post-constitutional law made under Article 13(2) of the COI
which contravenes a fundamental right is nullity from its inception and a still-born
law. It is void ab initio.
▪ State of Gujarat v Ambica mills (1962):
o The Supreme Court modified its view as expressed in Deep Chand case and stated that a
post constitutional law which is inconsistent with the fundamental rights is not nullity
or non-existent in all cases and for all purposes.
What is the Origin of the Doctrine of Severability?
▪ The Doctrine of Severability finds its roots in England in the case of Nordenfelt v.
Maxim Nordenfelt Guns and Ammunition Company Ltd. where the issue was related
to a Trade clause.

What is the Doctrine of Severability?

▪ This doctrine means that if an offending provision can be separated from that which
is constitutional then only that part which is offending is to be declared as void and
not the entire statute.
▪ It provides that where only a part of the law is inconsistent with or contravenes the
fundamental right, it is only that part which shall be void under Article 13 of the COI
and not the entire law.
▪ The Courts apply this doctrine to separate the valid portion of the law from the invalid
portion.

What are the Rules in Relation to Doctrine of Severability?

▪ In the case of RMDC v. Union of India (1957), the Supreme Court established the
following rules or principles about the doctrine of severability:
o The legislature's intent is the decisive factor in evaluating whether the legitimate
sections of a legislation may be separated from the invalid parts. If the legislature had
realized that the rest of the Act was illegal, it would have enacted the valid section.

What is the Limitation of Doctrine of Severability?

▪ If the valid and invalid part are so closely mixed up with each other that it cannot be
separated, then the whole law or act will be held invalid.

Landmark Cases of Doctrine of Severability

▪ A.K. Gopalan v. State of Madras (1950):
o The Supreme Court held Section 14 of the Prevention Detention Act, 1950 void while
stating that the whole statute cannot be struck down. It was also stated in case of
inconsistency to the Constitution, only the disputed provision of the Act will be void
and not the whole of it, and every attempt should be made to save as much as possible
of the act.
▪ State of Bombay v. F.N. Balsara (1951):
o The eight sections of the Bombay Prohibition Act were declared invalid, and the Supreme
Court said that the portion which was invalid to the extent of fundamental rights
was separable from the rest of the act.

6. Explain Article 14 with the help of decided case laws

Article 14: Equality before law - “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.”

▪ The first expression “equality before law” is of England origin and

▪ The second expression “equal protection of law” has been taken from the American
Constitution.
▪ Equality is a cardinal principle enshrined in the Preamble of the Constitution of India as its
primary objective.
▪ It is a system of treating all human beings with fairness and impartiality.
▪ It also establishes a system of non-discrimination based on grounds mentioned in Article 15
of the Constitution of India.
Case laws
Air India v Nargesh Meerza
K. A. Abbas v Union of India
Exceptions of Article 14
▪ Article 361A provides special privileges to the Members of Parliament (MP) and Members of
State Legislative Assembly (MLA) to not be present before any court during the session.
▪ Articles 105 and 194 prevent the MLAs and MPs from being answerable before the court
for their speeches and opinions.
▪ President and Governors are privileged for not being answerable to any court with respect
to the functioning of their duties and powers under Article 361.
▪ Article 31C is an exception to Article 14.

Test for Reasonable Classification

▪ Article 14 forbids class legislation however, it does not forbid reasonable classification of
persons, objects and transactions by the legislature for the purpose of achieving specific
ends.
▪ Two conditions were demarcated in the case of State of West Bengal v. Anwar Ali Sarkar
(1952)
▪ There must be a presence of intelligible differentia, where application of law must not be
universal upon each human.
▪ The differentia applied must align with the cardinal objective of the state.

Doctrine of Arbitrariness
▪ Fairness and Arbitrariness are antithetical to each other, both concepts cannot be present
in a single box.
▪ Hence, the court of law attempted to bring an evolution in the list of reasonable
classification by excluding the decision containing arbitrariness.
▪ This doctrine was coined in the case of E.P Rayappa v. State of Tamil Nadu
(1973), where the bench termed equality as a dynamic concept and the ambit of
reasonable classification cannot be altered by the usage of arbitrariness.
▪ The doctrine was later applied to the cases of Maneka Gandhi v. Union of India (1978)
and R.D. Shetty v. International Airport Authority (1979) into which courts opined
that arbitrariness refers to deprivation of equality.
 7. Explain the article 15 with the help of decided case laws. (OR)
Explain the constitutional provisions that enable state to provide
reservations under article 15.

• Article 15 of the Constitution of India prohibits discrimination against

citizens based on religion, race, caste, sex or place of birth:
• It prevent the state from discriminating against citizens on any of these
grounds.
• It also prevents citizens from being subject to any restrictions, liabilities,
disabilities or conditions based on these grounds.
• This includes to public places, such as shops, hotels, restaurants and
places of public entertainment.
• It also includes the use of public resources, such as roads, tanks, wells,
bathing Ghats, and places of public resort.

Article 15 of the constitution empowers the state for making following provision:
• Article 15(3) enables the state to make any special provision for women
and children
• Article 15(4) enables the state to make any special provisions for the
advancement of any socially and educationally backward classes of
citizens or for the SCs and STs. [ 1st Constitutional amendment act 1951]
State of Madras v Champakm Dorairajan, 1951
M.R. Balaji v State of Mysore, 1963
• Article 15(5) allows special provision to advancement of any socially and
educationally backward classes of citizens or for the SCs and STs I
particularly in admissions in educational institutions.[ 93rd Constitutional
amendment act 2005]
Pramati Educational and Cultural Trust v Union of India

The Constitution (One Hundred and third Amendment) Act 2019

Adding 15(6) a & b sub clauses specially for economically backwards
classes
• Article 15(6)(a) special provision to economically weaker sections .
• Article 15(6)(b) special provision to economically weaker sections to
pertain their admissions to educational institutions including private
ones.

8. Explain article 16 with the help of decided cases.

▪ Clause (1) states the provision for Equal Opportunity as:
Equality of opportunity to all the citizens in matters of public employment under the
State.
It is only applicable to offices under the Central and the State Governments.
▪ Clause (2) states the provisions for Equal Access to Public Employment as:
o It prohibits the State from conferring any discrimination against citizens in the matter of
public employment on the grounds only of religion, race, caste, sex, descent, place of
birth, residence, or any of them.
Exceptions to the General Rule
▪ Clause (3) states the provisions for parliament to enact laws as:
Residence can be a ground for Reservation of Posts.
▪ Clause (4) states the provisions for Reservations as:
o Reservation of appointments or posts in favor of any backward class of citizens which, is
not adequately represented in the services under the State.
▪ Clause (4A) states the provisions for Special Provisions for Scheduled Castes and
Scheduled Tribes as:
Reservation in matters of Promotions in favor of any Scheduled Castes and Scheduled
Tribes in public employment.
o It was added by the 77th Constitutional Amendment 1995.
▪ Clause (4B) states the provisions for Reservations in Promotion as:
Allows state to treat unfilled reserved vacancies from one year as a separate class of
vacancies to be filed in the following year.
It was added by the 81st Constitutional Amendment, 2000.
▪ Clause (5) states the provisions for enactment of laws where Clause (1) and Clause (2)
shall not be applicable as:
o It allows incumbents of any office to be religiously qualified for appointment of a person
professing a particular religion or belonging to a particular denomination.

103rd Constitutional Amendment

▪ Clause (6) states the provisions for Reservation in Promotions as:
o It allows the State to reserve appointments or posts in favor of any economically weaker
section of citizen in addition to the existing reservation and subject to a maximum of
10% of the post in each category.
▪ T. Devadasan v. Union of India (1964): Case of Carry Forward Rule
o The Supreme Court also added that the idea of equal opportunity should not
be violated by applying un proportionate reservations otherwise the same
would affect Article 14 of the COI.
o It was also clearly held by the Supreme Court that the carry forward rule will
stop working if the reservation exceeds 50%.
▪ Indra Sawhney & Others v. Union of India (1993): The Mandal Commission
Case
o Article 16(4) does not grant reservation in promotion, according to a nine-
judge bench, because it only applies to reservations in appointments. All
promotion reservations provided to SCs/STs in government employment are
now in jeopardy because of the ruling.
o After the 16th of November 1992, the court’s decision permitted reservation
in promotion to continue for another five years.
M. Nagaraj v. Union of India (2006):

9. Article 17 – UNTOUCHABILITY

Article 17 of the COI

▪ This Article states that untouchability is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of untouchability shall be an
offence punishable in accordance with law.
▪ The right under Article 17 is available against private individuals and it is the
constitutional obligation of the State to take necessary action to ensure that this right is
not violated.
▪ The subject matter of Article 17 is not untouchability in its literal or grammatical sense
but the ‘practice as it had developed historically in the country’. It refers to the social
disabilities imposed on certain classes of persons by reason of their birth in certain castes.
 Case Laws
▪ In Devarajiah v. Padmanna (1961), the Supreme Court held that the purpose of Article
17 was to end the inhuman practice of treating certain fellow beings as dirty by reason of
their birth in certain Castes.
▪ In State of Karnataka v. Appa Balu Ingale (1993), the Supreme Court held that
untouchability was an indirect form of slavery and only an extension of the caste
system. The Court observed that Caste System and Untouchability have stood together
and would fall together. It is absolutely necessary and imperative to abolish the caste
system as expeditiously as possible for the smooth functioning of the rule of law and
democracy.

10. Article 18 – Abolition of Titles:

Article 18, COI

This Article states that-
(1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit or trust
under the State, accept without the consent of the President any title from any
foreign State.
(4) No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind from or
under any foreign State.

Analysis of Article 18
▪ This Article provides for the prohibition of title recognition and conferment in the
country.
▪ It does not safeguard any fundamental rights but rather limits executive and legislative
jurisdiction.
▪ It does not provide for any penalty for the violation of the provisions contained therein.
▪ It does not prohibit the State from conferring military or academic distinctions on any
person.
▪ Clause (3) and (4) have been added in this Article with a view that a person, not being a
citizen of India, should remain loyal to the State and would not commit the breach of
trust reposed in him.

Case Law
▪ In Balaji Raghavan v. Union of India (1996), the Supreme Court has held that
the National Awards do not amount to titles within the meaning of Article 18(1) of the
COI. They should not be used as suffixes and prefixes.

11. Explain Article 19 with the help of the decided cases (OR)
Explain freedom of speech & expression with the help of decided cases.
The constitution of India provides six fundamental freedom rights under article 19. Article
19 is covered under part three of the constitution. All the six rights covered under article
19 deals with providing freedom to the citizens of India which can only be curtailed by
order of state in case of emergency or on the basis of grounds mentioned in clause (2) of
this article.
Earlier there were 7 freedom rights covered under article 19 but by the 44th amendment
the Right to Hold and Dispose Property [1]earlier included in clause 1 sub clause f of
article 19 was deleted and included in article 300A and now this right is no more a
fundamental right it has now become an ordinary right.

There are six clauses in article 19 the first one{19(1)} deals with the important freedom
rights and {19(2)-19(6)} deals with tests for restrictions imposed on freedom.
The six freedom rights covered under article 19(1) are:

• 19(1)(a)
Right to freedom of speech and expression

• 19(1)(b)
Right to assemble peacefully without arms

• 19(1)(c)
Freedom to form associations

• 19(1)(d)
Right to move freely in territory of India

• 19(1)(e)
Right to settle in territory of India

• 19(1)(g)
Freedom of trade and profession

Meaning
As per the bare language the article 19 is defined as follows:
Protection of certain rights regarding freedom of speech etc

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;
d. to move freely throughout the territory of India;
e. to reside and settle in any part of the territory of India; and
f. omitted[1]
g. to practise any profession, or to carry on any occupation, trade or business

So now let's discuss each freedom given under clause 19(1) of article 19 in detail with
clauses 19(2)-19(6)

Freedom Of Speech And Expression 19(1)(a)

It is held to be basic and indivisible right it is a cherished and secret right it gives citizens
freedom to propagate views in any form whether words, gestures, picture, art, newspaper
etc. It is essential to the rule of law and liberty of citizens it the foundation of a democratic
society.

This freedom is given to the citizens to ensure that they participate in the public activities.
They form an opinion and have a word to say in public activities. This is why it is an
important aspect of a democracy. A person can express his views on any issue and
through any medium which he wishes. No country in world guarantees freedom of speech
in absolute terms.

19(1)(a) along with restriction as mentioned in 19(2)

As from the introduction we came to know that sub clause (a) of article 19(1) deals with
freedom of speech and expression and 19(2) provides a reasonable restriction to this right
which are mentioned as follows:

1. Interests of sovereignty and integrity of India. (Added by 16th Amendment, 1963)

2. Security of the state;
3. Friendly relations with foreign states; (Added by 1st Amendment, 1951)
4. Public order; (Added by 1st Amendment, 1951)
5. Decency or morality;
6. Contempt of court;
7. Defamation;
8. Incitement to an offence;

Freedom Of Press Under Freedom Of Speech And Expression

It states that no administrative or statutory control should be implemented on propagation
of information, knowledge, ideas, and thoughts.

It is settled law that the right to freedom of speech and expression includes the liberty of
the press. Press is supposed to guard public interest by bringing to fore the misdeeds,
failings and lapses of the government and other bodies exercising governing power rightly,
therefore, it has been described as the Fourth Estate
The Press has the same rights as those of an individual it cannot claim better rights. The
freedom of press is not confined to newspapers and periodicals. It includes pamphlets,
circulars, and every sort of information which affords a vehicle of information and opinion.

Some important case laws relating to above are mentioned below:

Brij Bhushan and Anr. v. State of Delhi (1950)[5]
In this case, Supreme Court highlighted that restriction on the liberty of the press unless
it creates a danger to the State is the restriction on the freedom of speech and expression
as provided under Article 19 (1) (a) of the Indian Constitution. This decision also confirms
the United Nations Declaration of Human Rights, 1948 standards of freedom of opinion
and expression.

Romesh Thapper v. State of Madras (1950)[6]

The Court, while ruling on the validity of the impugned order that banned the entry and
circulation of the weekly magazine into certain parts of Madras, held that the freedom of
speech and expression includes freedom of propagation of ideas that can only be ensured
by circulation.

Sakal papers v. Union of India (1961)[7]

The right to freedom of speech and expression which is an integral part of our democratic
society includes the freedom of the press, freedom of circulation, freedom of publication,
and dissemination of one's views and opinions. Hence the Government should not pass
any acts that create conflicts among the fundamental rights of the citizens.

Are Commercial Advertisement part of freedom of speech?

Hamdard Dawakhana v Union of India (1960)[8]
The validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put
restrictions on advertisement of drugs in certain cases and prohibited advertisements of
drugs having magic qualities for curing diseases was challenged on the ground that the
restriction on advertisement abridged the freedom. The Supreme Court held that an
advertisement is no doubt a form of speech but every advertisement was held to be dealing
with commerce or trade and not for propagating ideas.

Tata Press v. MTNL (1995) [9]

The Supreme Court ruled that the MTNL has no right to hold back Tata Press Ltd from
publishing Tata Yellow Pages

Right to be informed
Information to citizens is very important no democratic government can survive without it
as it helps in promoting democracy. It was enacted in 2002. A person is appointed in every
government institute to provide information to the citizens at a very nominal rate. but
sensitive information is not disclosed.

Right against sound pollution

This right relates to sound pollution problems.basically it deals with use of loudspeakers
at gurdwaras mosques etc. Calcutta high Court held that freedom of speech and
expression doesn't mean to disturb other people of locality.

Moulana Mufti Syed Md.Noorur Rehman Barkati v/s State of W.B[10]

It was held that Azan is an essential part of Islam; however the use of loudspeakers is not
an essential part of Azanitself.

Article 19(1)(a) also includes Right To Be Silent

Article 19(1)(a) contains Freedom of Speech and expression so , within the scope of it also
contains Right to Silence. The famous case (national anthem case) relating to this right is
mentioned below:
Bijoe Emmanuel v. State of Kerala (National Anthem Case) (1986)[4]
In this case, the Supreme Court held that the three students were not guilty of disrespect
to the National Anthem just because they refused to sing it. Moreover, they did stand in
respect whenever the National Anthem was being sung.

The other rights under article 19 – 19(1)(b) to 19(1)(g) with restrictions

and case laws

Right To Assemble Peacefully Without Arms

19(1) (b)
The assembly must be non-violent and must not cause any breach of public peace. If the
assembly is disorderly or riotous, then it is not protected under Article 19 (1) (b) and
reasonable restrictions can be imposed under clause (3) of Article 19 in the Interests of
sovereignty and Integrity of India or public order.
19(1)(b) along with restriction as mentioned in 19(3)
As we know that article 19(1)(b) deals with FREEDOM OF ASSEMBLY and 19(3) lays down
reasonable restrictions to it which are as follows
Grounds for Reasonable restriction

1. Public order
2. Maintenance of sovereignty and integrity of India.

The Assembly under 19(1) (b) should be peaceful and without arms. Section 141 of IPC
defines what an unlawful assembly is.

Amit Sahni v. Commissioner of Police Oct. 2020 SC[11]

The Supreme Court of India held that public protests and demonstrations expressing
dissent must only be organized in designated places. The Court allowed an appeal brought
by advocate Amit Sahni for the removal of a protest organized at Shaheen Bagh, a Dehli
neighborhood, against the Citizenship Amendment Act and the National Register of
Citizens.

The appellant argued that the protest blocked the public way and caused grave
inconvenience to commuters. Accepting this contention, the Court ruled that despite the
existence of the right to peaceful protest against legislation, public ways and public spaces
cannot be occupied indefinitely. It held that the rights to freedom of expression and protest
under Article 19 of the Constitution are subject to reasonable restrictions pertaining to the
sovereignty and integrity of India, public order and to the regulation by the concerned
police authorities.

Freedom To Form Associations

19(1)(c)
The right to form association includes the right to form companies, societies, partnerships,
trade union and political parties. The freedom to form association implies also the freedom
to form or not to form, to join or not to join, an association or union.

In the interests of — a) public order, b) morality, and c) India's sovereignty and integrity,
the State can impose reasonable restrictions on freedom of association or union.

19(1)(c) along with restriction as mentioned in 19(4)

Grounds for Reasonable restriction:

1. Interests of the sovereignty and integrity of India

2. Public order
3. Morality

Damyanti v. UOI 1971[12]

The Supreme Court held that The right to form an association, the Court said:
Necessarily 'implies that the person forming the association has also the right to continue
to be associated with only those whom they voluntarily admit in the association. Any law
by which members are introduced in the voluntary association without any option being
given to the members to keep them out, or any law which takes away the membership of
those who have voluntarily joined it, will be a law violating the right to form an association

Right To Move Freely In Territory Of India 19(1) (D) &

Right To Settle In Territory Of India19 (1)(E)
Article 19(1)(d) of the Indian Constitution entitles every citizen to move freely throughout
the territory of the country. This right is protected against only state action and not private
individuals. Moreover, it is available only to the citizens and to shareholders of a company
but not to foreigners or legal persons like companies or corporations, etc.

19(1)(d&e) along with restriction as mentioned in 19(5)

As we know that article 19(1)(d) deals with Right To Move Freely In Territory Of
India and 19(1)(e) Right To Settle In Territory Of India 19(5) lays down reasonable
restrictions to it which are as follows:

Grounds for Reasonable restriction:

1. Interests of the general public

2. For the protection of the interests of any scheduled tribe

Kharak Singh V. State of UP (1963)[13]

The Supreme Court held that the right to move freely throughout the territory of India
means the right of locomotion which connotes the right to move wherever one likes, and
however one likes

In U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd.,[14]
The Supreme Court held that the right to residence assured in Articles 19(1)(e) and right to
life under Article 21 included the right to shelter and to construct houses for that purpose,
subject however, to the building rules.

Freedom To Own Property: Article 300a

44th Amendment, 1978-19(1)(f) And Article 31 (Right to Property) removed from
constitution and Article 300A-Right to property added.

Article 300A states that persons not to be deprived of property save by authority of law. No
person shall be deprived of his property save by authority of law.

After this Right to property is a constitutional right but not a fundamental right.

Freedom Of Trade And Profession

19(1) (g)

[Art. 19(1)(g)) grants a person the freedom to choose the source of his or her choice of
living. The right covers the right not to choose an undertaking or the right to close a
company. The second right comes with other provisions such as payment of wages for
jobs, pension, etc. The right of the person to carry on a career is fundamental to a man's
life and the state does not place any specific restriction on it, except for the general
 public's benefit. There is of course no right to carry on a dangerous or immoral business

19(1)(g) along with restriction as mentioned in 19(6)

As we know that article 19(1)(g) deals with FREEDOM OF TRADE AND PROFESSION and
19(6) lays down reasonable restrictions to it which are as follows:
Grounds for Reasonable restriction:

1. In the interests of the general public.

2. State prescribed qualifications for carrying on any profession or technical
occupation.
3. State-run trade, business, industry, or service that excludes the participation of
citizens or others either completely or partially.

•
Right to carry on business includes right to close the business? NO
Excel Wear v. Union of India (1979)[15]
It was held that the right of the businessmen to close down their business (and in
particular the members' right of voluntary winding up) has to be protected. The
Apex Court in Excel Wear case by holding the impugned provisions as
unconstitutional has rightly prevented the businessmen from being forced to
implore to the government for permission to close down their business which could
have been easily denied by the government arbitrarily and without any reason.

Education covered under Article 19(1)(g)?

Unni Krishnan v. State of A.P.(1993)[16]
The Supreme Court held that the right to basic education is implied by the
fundamental right to life (Article 21) when read in conjunction with the directive
principle on education (Article 41). The Court held that the parameters of the right
must be understood in the context of the Directive Principles of State Policy,
including Article 45 which provides that the state is to endeavour to provide, within
a period of ten years from the commencement of the Constitution, for free and
compulsory education for all children under the age of 14The Court ruled that there
is no fundamental right to education for a professional degree that flows from
Article 21

12. Explain the Constitutional safeguards under article 20 of the Indian

Constitution. OR
Protection in respect of conviction of offences
Article 20 of the Indian Constitution provides the following safeguards to the
persons accused of crimes:
1. Ex post facto law: 20(1)
2. Double Jeopardy: 20(2)
3. Prohibition against self-incrimination: 20(3)
 Ex-post-facto Law
An ex-post-facto law is a law which imposes penalties retrospectively, i.e., on
acts already done or which increases penalties for such acts.
• Article 20(1) imposes a limitation on the law-making power of the Legislature.
Ordinarily, a Legislature can make prospective as well as retrospective laws but clause
(1) of Article 20 prohibits the Legislature from making retrospective criminal laws.
However. It does not prohibit imposition of civil liability retrospectively, i.e., with effect
from a past date. So, a tax can be imposed retrospectively.
Case laws:
• Mohan lal v state of Rajasthan
• Kedar Nath v stae of west Bengal

Double Jeopardy
This protection is available only in proceedings before a court of law or a
judicial tribunal. This clause embodies the common law rule of nemo debet vis
vexari which means that no man should be put twice in peril for the same
offence.
• It is not available in proceedings before departmental or administrative authorities as
they are not of judicial nature.
• The word ‘prosecution’ as used with the word ‘punishment’ embodied the following
essentials for the application of double jeopardy rule. They are:
o The person must be accused of an ‘offence’.
o The proceeding or the prosecution must have taken place before a “court” or “judicial
tribunal”.
o The person must have been ‘prosecuted and punished’ in the previous proceeding.
o The ‘offence’ must be the same for which he was prosecuted and punished in the
previous proceedings.

Case Laws
Maqbool Hussain v State of Bombay
Venkataraman v Union of India

Prohibition against Self-incrimination

Clause (3) of Article 20 provides that no person accused of any offence shall be
compelled to be a witness against himself. This extends to both oral evidence
and documentary evidence.
However, it does not extend to:
• Compulsory production of material objects
• Compulsion to give thumb impression, specimen signature, blood specimens and
• Compulsory exhibition of the body
It extends only to criminal proceedings and not to civil proceedings which are
of criminal nature.
Compulsion to give evidence “against himself”

Case laws
Narcoanalysis, Polygraphy and Brain Finger Printing tests of accused:
• Polygraph or Lie Detector Test: It is a procedure that measures and records several
physiological indicators such as blood pressure, pulse, respiration, and skin
conductivity while a person is asked and answers a series of questions.
• Narcoanalysis Test: It involves the injection of a drug, sodium pentothal, which
induces a hypnotic or sedated state in which the subject’s imagination is neutralised,
and they are expected to divulge information that is true.
• Brain Mapping Test or P-300 test: In this test, the activity of the brain of a suspect
is measured during interrogation to find out whether he is concealing any information.
In the Selvi vs State of Karnataka & Anr case, 2010, the Supreme Court
ruled that the use of such neuroscientific investigative techniques constituted
testimonial compulsion and violated an accused person’s right against self-
incrimination under Article 20(3), and their right to life and personal liberty
under Article 21 of the Constitution.

13. Explain Article 21 with the help of decided case laws. OR

Explain Right to life & Personal liberty under Article 21 with the
help of decided case laws.
▪ Article 21: Protection of Life and Personal Liberty:
o No person shall be deprived of his life or personal liberty except according to procedure
established by law.
o This fundamental right is available to every person, citizens and foreigners alike.
o Article 21 provides two rights:
• Right to life
• Right to personal liberty
▪ The Supreme Court of India has described this right as the ‘heart of fundamental rights’.
This implies that this right has been provided against the State only.
o State here includes not just the government, but also, government departments, local
bodies, the legislatures, etc.
o The right to life is not just about the right to survive. It also entails being able to live a
complete life of dignity and meaning.
▪ Case Laws:
o AK Gopalan Case (1950): Until the 1950s, Article 21 had a bit of a narrow scope. In this
case, the SC held that the expression ‘procedure established by law’, the Constitution
has embodied the British concept of personal liberty rather than the American ‘due
process’.
o Maneka Gandhi v. Union of India (1978): This case overturned the Gopalan case
judgement. The idea of personal liberty in Article 21 has a wide scope including many
rights, some of which are embodied under Article 19, thus giving them ‘additional
protection’. The court also held that a law that comes under Article 21 must satisfy the
requirements under Article 19 as well.
o That means any procedure under law for the deprivation of life or liberty of a
person must not be unfair, unreasonable or arbitrary.
▪ List of rights that Article 21:
o Right to privacy
o Right to go abroad
o Right to shelter
o Right against solitary confinement
o Right to social justice and economic empowerment
o Right against handcuffing
o Right against custodial death
o Right against delayed execution
o Doctors’ assistance
o Right against public hanging
o Protection of cultural heritage
o Right to pollution-free water and air
o Right of every child to a full development
o Right to health and medical aid
o Right to education
o Protection of under-trials

But the Right to die is ILLEGAL in India.

No person living in India will enjoy the Right to Die, as the attempt to
commit suicide is a punishable offence. Hence the Right to life &
personal liberty will not include negative face.
But in rarest cases Mercy Killing OR Euthanasia is permissible in
India.
Aruna Shanbaug v Union of India 2011

Article 21A
Every child or ward between the age group of 6 and 14 will enjoy to
elementary education from their parents or guardians, as the case may
be (86th Constitutional Amendment Act, 2002)

14. What are the protection mentioned under Article 22 against

arrest and detention.
Protection:
Article 22 grants protection to persons who are arrested or
detained.
1. Article 22 has two parts—the first part deals with the cases
of ordinary law and the second part deals with the cases of
preventive detention law.
Two Types of Detentions:
1. Preventive detention is when a person is held in police
custody only on the basis of a suspicion that they would
conduct a criminal act or cause harm to society.

The police have the authority to hold anyone they suspect of

committing a criminal offence and also to make arrests
without a warrant or a magistrate’s authorization in certain
cases.

Preventive detention means detention of a person without trial and

conviction by a court. Its purpose is not to punish a person for a
past offence but to prevent him from committing an offence in the
near future.
The detention of a person cannot exceed three months unless an
advisory board reports sufficient cause for extended detention.
 2. Punitive detention, which means detention as a punishment
for a criminal offence. It occurs after an offence is actually
committed, or an attempt has been made towards the
commission of that crime.

Art. 22 guarantee four safeguards against arbitrary arrest and detention, on

persons arrested for any offence under an ordinary law:
• The right to be informed as soon as possible of grounds of arrest.
• The right to consult and to be represented by a Lawyer of his own choice.
• The right to produce before a nearest Magistrate within 24 hours.
• Freedom from detention beyond the 24 hours except by the order of the
Magistrate

Article 23 & 24
23- Prohibition of traffic in human beings and beggar and other similar
forms of forced labour.

24- Prohibition of employment of children – chilg labour.

Article 24 prohibits the employment of children below the age of 14 years
in any factory or mine or engaged in any other hazardous employment.

15. Explain the Religious rights under the Indian constitution.

Constitutional Provisions Relating to Right of Religion

▪ Article 25: Freedom of conscience and free profession, practice and propagation of
religion.
▪ Article 26: Freedom to manage religious affairs.
▪ Article 27: Freedom as to payment of taxes for promotion of any particular religion.
▪ Article 28: Freedom as to attendance at religious instruction or religious worship in
certain educational institutions.
Article 25 of COI
▪ This Article deals with the freedom of conscience and free profession, practice and
propagation of religion. It states that-
o (1) Subject to public order, morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion.
o (2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law.
▪ It covers not only religious beliefs but also religious practices.
▪ These rights are available to all persons—citizens as well as non-citizens.
Article 26 of COI
▪ Article 26 deals with freedom to manage religious affairs. It states that subject to public
order, morality and health, every religious denomination or any section thereof shall have
the right
o (a) to establish and maintain institutions for religious and charitable purposes;
o (b) to manage its own affairs in matters of religion;
o (c) to own and acquire movable and immovable property; and
o (d) to administer such property in accordance with law
▪ The Supreme Court held that a religious denomination must satisfy the following three
conditions:
o It should be a collection of individuals who have a system of beliefs which they regard as
conducive to their spiritual well-being.
o It should have a common organization.
o It should be designated by a distinctive name.
Article 27 of COI
▪ This Article deals with the freedom as to payment of taxes for promotion of any
particular religion. It states that no person shall be compelled to pay any taxes, the
proceeds of which are specifically appropriated in payment of expenses for the promotion
or maintenance of any particular religion or religious denomination.

Article 28 of COI
▪ This Article deals with freedom as to attendance at religious instruction or religious
worship in certain educational institutions. It states that -
o (1) No religion instruction shall be provided in any educational institution wholly
maintained out of State funds.
o (2) Nothing in clause (1) shall apply to an educational institution which is administered by
the State but has been established under any endowment or trust which requires that
religious instruction shall be imparted in such institution.
o (3) No person attending any educational institution recognized by the State or receiving aid
out of State funds shall be required to take part in any religious instruction that may be
imparted in such institution or to attend any religious worship that may be conducted in
such institution or in any premises attached thereto unless such person or, if such person
is a minor, his guardian has given his consent thereto Cultural and Educational Rights.
▪ Thus, Article 28 distinguishes between four types of educational institutions:
o (a) Institutions wholly maintained by the State, where religious instruction is completely
prohibited.
o (b) Institutions administered by the State but established under any endowment or
trust, where religious instruction is permitted.
o (c) Institutions recognized by the State, where religious instruction is permitted on a
voluntary basis.
o (d) Institutions receiving aid from the State, where religious instruction is permitted on a
voluntary basis.

Case Laws
▪ In the case of
Commr. HRE v. Sri L.T. Swamiar of Sri Shirur Mutt (1954), the Supreme Court
observed that Article 25 of the COI secures to every person a freedom not only to
entertain such religious belief, as may be approved of by his judgment and conscience but
also to exhibit his belief in such outward acts as he thinks proper and to propagate or
disseminate his ideas for the edification of others.
▪ In Raja Birakishore v. State of Orissa (1964), the Supreme Court held that the
Jagannath Temple Act, 1954 only regulated the secular aspect of seva puja, therefore, it is
not violative of Article 26 of the Indian Constitution.
▪ In M Siddiq (D) Thr. Lrs v. Mahant Suresh Das (2019), the Supreme Court held that
the State has the sovereign or prerogative power to acquire the property.
o The State also has the power to acquire places of worship such as mosque, church,
temple, etc. and the acquisition of places of worship per se is not violative of Articles 25
and 26 of the Indian Constitution.

16. Explain the rights of minorities under the Indian Constitution.

Constitutional rights and safeguards provided to the minorities in India

2.1 ‘Common Domain’, the Directive Principles of State Policy – Part IV of the
Constitution
(Article 37). Part IV of the Constitution of India, containing non-justiciable
Directive Principles of State Policy, includes the following provisions having significant
implications for the Minorities :-
i. [Article 38 (2) ]:obligation of the State ‘to endeavour to eliminate inequalities in
status, facilities and opportunities’ amongst individuals and groups of people
residing in different areas or engaged in different vocations.
ii. [Article 46]:obligation of State ‘to promote with special care’ the educational
and economic interests of ‘the weaker sections of the people’ (besides Scheduled
Castes and Scheduled Tribes).

2.2 ‘Common Domain’, the Fundamental Duties – Part IVA of the Constitution
Part IVA of the Constitution, relating to Fundamental Duties as provided in Article 51 A
applies in full to all citizens, including those belonging to Minorities.

2.3 ‘Common Domain’, the Fundamental Rights – Part III of the Constitution
In the ‘common domain’, the following
fundamental rights and freedoms are covered:
i. [Article 14] people’s right to ‘equality before the law’ and ‘equal protection of
the laws’.
ii. [Article 15 (1) & (2)]: prohibition of discrimination against citizens on grounds
of religion, race, caste, sex or place of birth
iii. [Article 15 (4)]: authority of State to make ‘any special provision for the
advancement of any socially and educationally backward classes of citizens’
(besides the Scheduled Castes and Scheduled Tribes).
iv. [Article 16(1)&(2)]: citizens’ right to ‘equality of opportunity’ in matters
relating to employment or appointment to any office under the State.
v. [Article 16(4)]: Authority of State to make ‘any provision for the reservation of
appointments or posts in favour of any backward class of citizens.
vi. [Article 25(1)]: people’s freedom of conscience and right to freely profess,
practice and propagate religion – subject to public order, morality and other
Fundamental Rights.
vii. [Article 26]: right of ‘every religious denomination or any section thereof –
subject to public order, morality and health – to establish and maintain
institutions for religious and charitable purposes.
viii. [Article 27]: prohibition against compelling any person to pay taxes for
promotion of any particular religion.
ix. [Article 28]: people’s ‘freedom as to attendance at religious instruction or
religious worship in educational institutions’ wholly maintained, recognized, or
aided by the State.

2.4 ‘Separate Domain’ of Minority Rights

The Minority Rights provided in the Constitution which fall in the category of ‘Separate
Domain’ are as under:-
i. [Article 29(1)]: right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct
language, script or culture’.
ii. [Article 29(2)]: restriction on denial of admission to any citizen, to any
educational institution maintained or aided by the State, ‘on grounds only of
 religion, race, caste, language or any of them’.
iii. [Article 30(1)]: right of all Religious and Linguistic Minorities to establish and
administer educational institutions of their choice.
iv. [Article30 (2)]: freedom of Minority-managed educational institutions from
discrimination in the matter of receiving aid from the State.
v. [Article 347]: special provision relating to the language spoken by a section of
the population of any State.
vi. [Article 350 A]: provision for facilities for instruction in mother-tongue at
primary stage.
vii. [Article 350 B]:provision for a Special Officer for Linguistic Minorities and his
duties; and
viii. Sikh community’s right of ‘wearing and carrying of kirpans; [Explanation 1 below
Article 25]

Note: For the reference

WRITS: UNDER ART 32 & 226

Introduction
▪ Writs are constitutional remedies designed to look after the violation of fundamental rights
enshrined in part III of the constitution.
▪ It is a written order in the forms mentioned in the constitution.
▪ It is an order to do a particular thing or stop from doing it.
▪ It can be issued by the Supreme Court under Article 32 and under 226 by the High Court.
▪ These are the remedies entrusted by the constitution for the enforcement of fundamental
rights.
▪ It can be in the form of orders, warrants, directions, summons, etc.
▪ The aggrieved person applies for issuance of a writ through presenting a writ petition
before the competent authority.
▪ Dr. B.R. Ambedkar remarked Article 32 as the heart and soul of the constitution.
 17. Explain Writs with the help of decided cases.

Types of Writs
1. Habeas Corpus
2. Mandamus
3. Certiorari
4. Quo Warranto
5. Prohibition

Habeas Corpus
▪ The literal meaning of Habeas Corpus is “to have the body”.
▪ The objective of this writ is to remove a person from unlawful detention or custody.
▪ The court orders that person before it to inquire into the legitimacy of the detention.
▪ The competent court orders the release of the person in custody if it finds it arbitrary.
▪ The cardinal principle of this writ is the right to freedom.
▪ The writ cannot be invoked if the order to arrest the person from competent authority
seems under jurisdiction and prima facie legal.
▪ The writ can be issued against public authorities and individuals.
▪ The writ of Habeas Corpus can be filed by the detained person, his family or friends.

Conditions
There are three major conditions upon which this writ can be issued:
▪ The detained person is not presented before the magistrate within 24 hours of the arrest.
▪ The arrest was made under an unconstitutional law.
▪ The person was arrested without any violation of the law.
Case Laws
1. In the case of Sunil Batra v. Delhi Administration (1980), an application in the form of a
letter was filed before the apex court by a prisoner in the place of his prison inmate stating
the manhandling by the jail officials. The apex court issues the writ of Habeas Corpus
upon the application which clarified that the writ is not only available against wrongful
detention but for the protection against indecent behavior during the period of detention.
2. In the matter of ADM Jabalpur v. Shivkant Shukla (1976), it was held that Article 21 can
be restricted by the state. The case is known as the darkest judgment in history. It is also
known as the habeas corpus case

Mandamus
▪ The literal meaning of mandamus is “we command”
▪ The court issue is the form of a direction to public authority to perform a particular task.
▪ It must be filed in good faith by the person having the legal right.
▪ It can be issued against government, public officials, inferior courts, tribunals and public
corporations.
▪ It is issued against the public authority denying performing its duty or has failed to do so.
▪ It cannot be issued against private individuals, President and Governors, and Chief
Justice.
Exceptions
▪ Non-statutory departmental functions
▪ It cannot be invoked in matters where the duty is discretionary
▪ Against right of private nature
▪ It the direction will be in contravention with the law
▪ In the matter of an alternative remedy available

Case Laws
1. In the case of Union of India v. S.B. Vohraxi (2004), the Supreme Court upheld the
exceptions denying the presenting of writ of mandamus on the exempted ground.
2. In the case of Suganmal v. State of M.P (1965), the apex court clarified that if an
alternative legal remedy is available writ of mandamus cannot be invoked.

Certiorari
▪ It stands for “to certify”
▪ The writ can be issued when the court finds the decision of the lower court erroneous or
beyond its authority.
▪ It is used as curative writ petition
▪ The court has the authority to take charge of the case by transferring it before itself or
quashing the verdict of another inferior court.
▪ Before 1991 the writ was only allowed to be issued against the judicial authority or quasi-
judicial authority and not the administrative authority but post 1991 1it can be issued
against the administrative authority as well.
▪ It cannot be issued against private people.
Grounds
▪ When the inferior court lacked jurisdiction while giving a judgment
▪ When the inferior court performed beyond their jurisdiction
▪ When the inferior court acts against the procedural law
▪ When principle of natural justice is not performed by the court
Procedure
▪ Filing of petition in the court by an advocate
▪ The petition must include all the required information related to the accused
▪ Notice is sent to the opposite party
▪ Court passes the judgment in the format of writ after hearing both parties
Case Laws
1. In the case of Yekoob v. K.S. Radhakrishnan (1965) the court stated that this writ
cannot be invoked for appeal.
2. In the matter of Radhey Shyam and anr. v. Chhabi Nath and Ors. (2015) the court said
that power under Article 227 cannot be used for writ filed under Article 226.

Quo warranto
▪ Quo- warranto stands for “by what authority or warrant”
▪ It is used by the court to stop the excessive use or abuse of authority
▪ The court issues the writ to ask the public official to table his authority of holding that
office, and court can suspend his authority.
▪ It cannot be issued against private individuals.
Grounds
▪ A person has held a public office without authority.
▪ The person is unqualified under the Constitution of India to hold the office.
▪ Permanent term
▪ It must be a public office

Case Laws
1. The writ of Quo warranto can be invoked against private office was held in the case
of Amarendra Chandra v. Narendra Kumar Basu, (1951). The same ratio was decided in
the case of Jamalpur Arya Samaj Sabha v. Dr D Rama (AIR 1954).
2. It was held in the case of University of Mysore v. CD Govinda Rao, (1963), that the public
office must be of a statutory nature to issue the writ of Quo warranto.

Prohibition
▪ It stands for “to forbid”
▪ Th writ aims to stop the judicial, quasi-judicial authorities along with tribunals from
exceeding their authority.
▪ It works oposite to mandamus as it directs the authority to prohibit any activity.
▪ The higher court can issue this against the lower court.
▪ The objective to direct the inactivity is to prevent the excessive application of one’s
jurisdiction.
▪ It cannot be invoked against legislative bodies, administrative bodies and private
individuals.
Conditions
▪ Application of power beyond the jurisdiction
▪ Infringement of Principles of Natural Justice
▪ Using invalid law
▪ Conducting in contravention of basic legal rights
▪ Performed error based on record

Case Laws
▪ In the case of Hari Vishnu v. Syed Ahmed Ishaque (1955) it was held by the court that
this writ can be issued only when the decision has not been given by the court.
▪ Writ cannot be issued after the execution of the order was confirmed in the case
of Prudential Capital Markets Ltd v. The State of A.P. and others, (2000).