Indian Polity - I - Delhi Law Academy

PREAMBLE to the CONSTITUTION

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity;

and to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of the Nation;

In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby Adopt, Enact and Give to Ourselves this Constitution.

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A solemn resolution

Preamble is a solemn resolution by the people of India
- adopted on 26^th November, 1949

Objectives:

(1)

To constitute India into a
- Sovereign Socialist Secular Democratic Republic

(2)

To secure to Indian citizens
- Justice
  - social, economic and political
- Liberty
  - of thought, expression, belief, faith and worship
- Equality
  - of status and of opportunity

(3)

To promote fraternity among Indian citizens: while assuring
- dignity of the individual
- unity and integrity of the nation

Dignity of the individual

The expression “Dignity” implied an obligation on the Union to respect the personality of every citizen.

Unity and integrity of the nation

Regard and respect by every individual for the dignity of the other one brings the unity and integrity of the Nation.

Importance of the Preamble

While interpreting any provision of the Constitution
- when any ambiguity is noticed in any provision or the language admits of meaning more than one
- Preamble to the Constitution may be relied on to find out the true meaning of the relevant provision

Changes in the Preamble

Two words, Socialist and Secular, were inserted in the Preamble by the Constitution 42^nd Amendment Act in 1976

Question 1:

Is the Preamble a part of our Constitution?

Answer

Yes, the Preamble is a part of our Constitution

Question 2:

Whether the Preamble forms a basic feature of the Constitution?

Answer:

Yes, the Objectives specified in the Preamble form a basic feature of the Constitution and thus cannot be amended by Parliament under article 368

Source: Supreme Court in Keshavananda Bharati v. State of Kerala [1973]

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CONSTITUTION OF INDIA : FUNDAMENTAL RIGHTS

INTRODUCTION

Part III, containing the Fundamental Rights, is undoubtedly the most significant provision of our Constitution. Of them, the Right to Constitutional Remedies, contained in Article 32, was termed by Dr. B R Ambedkar as the “heart and soul” of the Constitution.

INSPIRATION

Fundamental Rights, as incorporated in Part III of our Constitution, were inspired by the Bill of Rights of the US Constitution, as also by the Universal Declaration of Human Rights as declared by the United National General Assembly on Dec 10, 1948.

APPLICABILITY

While some Fundamental Rights are available only to Indian citizens, others are available to all ‘persons’, including corporations and foreign nationals.

Only for citizens: Articles 15, 16, 19, 29, 30
For all persons: Articles 14, 20, 21, 25, 32

PROTECTION AND SANCTITY

Article 13 of our Constitution specifically protects Fundamental Rights from legislative and executive encroachment.

Legislative and executive action in violation of Fundamental Rights is declared null and void by this Article by the following provisions:

Clause (1)

All existing laws shall be void
- to the extent they are inconsistent with this Part

Clause (2)

State shall not make any law
- which takes away or abridges rights conferred by this Part

If any such law is made
- it shall be void
- to the extent it takes away or abridges these rights

Clause (3)

Law in this Article includes
- ordinance, order, by-law, rule, regulation, notification

Clause (4) [Inserted by the 24^th Amendment Act in 1971]

This article shall not apply
- to amendments under article 368

PROTECTION AGAINST WHOM ?

Article 13 protects Fundamental Rights from violative actions by the “State”.

But what is ‘State’? This term is defined in Article 12 to mean the Legislature as well as the Executive:

DEFINITION OF ‘STATE’:

In this Part, State includes:
- Government of India
- Parliament of India
- Government of each State
- Legislature of each State
- All local authorities in India
- Other authorities in India or under control of GoI

Scope of this term “State” has been continuously expanded by the Supreme Court since 1967.

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THE FIRST FUNDAMENTAL RIGHT: RIGHT TO EQUALITY

EQUALITY BEFORE LAW

Article 14

State shall not deny to any person
- equality before law
State shall not deny to any person
- equal protection of laws within the territory of India

Explanatory Notes by DLA on Article 14

Equality before the law, guaranteed by the first part of Article 14, is a negative concept while the second part is a positive concept.
The gravamen of Article 14 is equality of treatment. The basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances.

THE DOCTRINE OF CLASSIFICATION

Question:

Can there be different laws for different classes of people? Is classification permitted under Article 14?

Ans:

It is well-established that while article 14 does not forbid reasonable classification for the purposes of legislation.
In order to pass the test of permissible classification two conditions must be fulfilled:

(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group

(ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question.

What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

Authority: Supreme Court in Budhan Choudhry v. State of Bihar[1954]

Question:

Is a law conferring discretionary powers constitutionally valid in view of Article 14?

Ans:

Every discretionary power is not necessarily discriminatory. Equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred.

Authority: Supreme Court in M Nagaraj v. Union of India [2006]

Question

How is arbitrariness viewed under Article 14?

Ans:

Equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal and is therefore violative of Article 14.

Authority: Supreme Court in E.P. Royappa v. State of Tamil Nadu [1974]

SCOPE OF ARTICLE 14

Article 14 guarantees
- equal treatment to persons who are equally situated
Unequals are not only permitted to be treated unequally
- but also they have to be so treated
Equal treatment to unequals
- is nothing but inequality
Article 14 allows reasonable classification
- on an objective basis having nexus with the object to be achieved

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PROHIBITION OF DISCRIMINATION

Article 15(1)

State shall not discriminate against any citizen
- on grounds only of
  - Religion
  - Race
  - Caste
  - Sex
  - Place of birth

Clause (2)

No citizen shall be subjected to
- any disability, liability or restriction on these grounds only

Affirmative Action in favour of Women and Children:

Clause (3)

This Article does not prevent the State
- from making any special provision
- for women and children

Affirmative Action in favour of SCs, STs and SEBCs:

Introduced by the 1^st Amendment Act in 1951:

Clause (4)

This Article does not prevent the State
- from making any special provision for
  - socially or educationally backward class of citizens
  - Scheduled Castes
  - Scheduled Tribes

Special Provision for admission to educational institutions:

Introduced by the 93^rd Amendment Act in 2005:

Clause (5)

This Article does not prevent the State
- from making any special provision, by law, for any
  - socially or educationally backward class of citizens
  - Scheduled Castes
  - Scheduled Tribes
- for their admission to educational institutions
  - including private institutions
  - whether aided or unaided by State

Exception:

Minority educational institutions under Article 30(1)

DLA Notes on Clause (5)

Implementation of article 15(5):
- Central Educational Institutions (Reservation in Admission) Act, 2006

Constitutional Validity of the 93rd Amendment:

Ashok Kumar Thakur v. Union of India [2008 SC]

Issue 1

Whether the Ninety-Third Amendment of the Constitution is against the “basic structure” of the Constitution?

Decision

No, it does not violate the “basic structure” of the Constitution so far as it relates to the state maintained institutions and aided educational institutions.

Issue 3

Whether “Creamy Layer” is to be excluded from SEBCs?

Decision

“Creamy Layer” is to be excluded from SEBCs.

Issue 4

Whether the “creamy layer” principle is applicable to Scheduled Tribes and Scheduled Castes?

Decision

No.

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NEW PROVISION: CLAUSE (6):

Introduced by the 103^rd Amendment Act of 2019

This article or articles 19(1)(g) or 29(2) do not prevent the State

(a)

from making any special provision
- for advancement of any economically weaker sections of citizens
- other than classes mentioned in clauses (4) and (5)

(b)

from making any special provision
- for advancement of economically weaker sections of citizens other than classes mentioned in clauses (4) and (5
- for their admission to educational institutions
  - including private educational institutions
  - whether aided or unaided by State
  - other than minority educational institutions referred in article 30(1)
which in case of reservation
- would be in addition to the existing reservations and
- subject to a maximum of 10% of total seats in each category

Explanation

“economically weaker sections”
- shall be such as may be notified by the State
- on the basis of family income and other indicators of economic disadvantage

DLA Notes on Clause (6)

Note 1

The Constitution 103rd Amendment Act 2019 enables reservation in educational institutions to economically weaker sections of citizens

Note 2

This amendment received assent of the President on 12 January 2019 andcame into force on 14 January 2019

EQUALITY OF OPPORTUNITY IN APPOINTMENTS AND PROMOTIONS:

Article 16(1)

There shall be equality of opportunity for all citizens
- in matters of employment or appointment
- to any office under State

Article 16(2)

No citizen shall be discriminated against
- in employment or office under State on grounds only of
  - Religion
  - Race
  - Caste
  - Sex
  - Descent
  - Place of birth
  - Place of residence

Article 16(3)

Parliament may by law
- make residence within a State/UT
- a condition for employment or appointment
- to an office under govt of that State/UT

RESERVATIONS IN INITIAL APPOINTMENTS:

Article 16(4)

This Article does not prevent the State
- from making a provision for reservation of appointment
- in favour of a backward class of citizens
- which is not adequately represented in services under State

Supreme Court on Article 16(4):

Indra Sawhney v. Union of India [1992]

Issue 1

What is the meaning of the expression “backward class of citizens” in Article 16(4)?

Answer

A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4).
Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectivities for the purposes of Article 16(4).

Issue 2

Should ‘creamy layer’ be excluded?

Answer

‘Creamy layer’ can be and must be excluded.

Issue 3

To what extent can the reservation be made?

Decision

The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people.

Issue 4

Whether clause (4) of Article 16 provides reservation only in the matter of initial appointments or does it provide for reservations in promotions as well?

Decision

Article 16(4) does not permit reservations in matters of promotions.

RESERVATIONS IN PROMOTIONS:

Introduced by the 77^th Amendment Act of 1995

Article 16(4A)

This Article does not prevent the State
- from making a provision for reservation in matters of promotion
  - with consequential seniority
- in favour of SCs and STs
- which are not adequately represented in services under State

Reserved Unfilled Vacancies as Separate Class of Vacancies:

Introduced by the 81^st Amendment Act of 2000

Article 16(4B)

This Article does not prevent the State
- from considering any reserved unfilled vacancies of a year
- as separate class of vacancies for subsequent years
Such vacancies are not to be considered
- for determining ceiling of 50% reservation
- for those subsequent years

Supreme Court on Articles 16(4A):

M. Nagraj v. Union of India [2006]

This provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions.
However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335.

Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta [2018]

The states are not required to “collect quantifiable data” reflecting backwardness among SCs and STs
These communities are the “most backward or the weakest of the weaker sections of society” and presumed to be backward.

RESERVATION FOR ECONOMICALLY WEAKER SECTIONS OF CITIZENS:

ARTICLE 16(6):

Introduced by the 103^rd Amendment Act of 2019

This article does not prevent the State
- from making reservation of appointments
- in favour of economically weaker sections of citizens other than classes mentioned in clause (4)
- in addition to existing reservation and subject to a maximum of 10% of posts in each category

Note 1

Clause (6) was inserted
- by the 103^rd Amendment Act in 2019

Note 2

The Constitution 103rd Amendment Act 2019
- enables reservation in public appointments to economically weaker sections of citizens

ABOLITION OF UNTOUCHABILITY

Article 17

Untouchability is abolished
- Its practice in any form is forbidden
Enforcement of any disability arising out of untouchability
- shall be an offence, punishable by law

Enactments under article 17:

Protection of Civil Rights Act 1955
SCs and STs (Prevention of Atrocities) Act 1989

ABOLITION OF TITLES

Article 18

State shall not confer any title
- except for military or academic distinction
No citizen of India shall accept
- any title from any foreign State

Note:

Bharat Ratna, Padma Vibhusan etc. are National Awards and not Titles
These should not be prefixed and suffixed

Source: Supreme Court in Balaji Raghavan v. Union of India [1996]

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RIGHT TO FREEDOM

THE 6 FREEDOMS : [Article 19(1)]

All citizens shall have the right

(a) to freedom of speech and expression

(b) to assemble peaceably and without arms

(d) to move freely throughout India

(e) to reside and settle in any part of India

(g) to practise any profession or to carry on any occupation, trade or business

DLA Note

Right to acquire, hold and dispose of property was deleted by the 44^th Amendment 1978
This right is now incorporated in article 300A

Restrictions on these Freedoms

Restrictions on freedom of speech

State can impose reasonable restrictions by law on grounds of
- Sovereignty and integrity of India, Security of State, Friendly relations with foreign states
- Public order, Decency, Morality
- Contempt of court, Defamation, Incitement to offence

Restrictions on right to assemble peaceably

State can impose reasonable restrictions by law on grounds of
- Sovereignty and integrity of India, Public order

Restrictions on right to form associations, etc:

State can impose reasonable restrictions by law on grounds of
- Sovereignty and integrity of India, Public order, Morality

Restrictions on right to move freely and to reside in any part of India

State can impose reasonable restrictions by law on grounds of
- Interests of general public, Protection of interests of Scheduled Tribes

Restrictions on freedom of profession, trade etc.

State can impose reasonable restrictions by law
- in the interest of general public
State can by law
- specify professional or technical qualifications necessary for any profession or trade
- carry on any trade, business, etc. to the exclusion of citizens or otherwise

Freedom of speech and expression is a basic human right

Freedom of speech is the bulwark of a democratic Government
This freedom is essential for proper functioning of the democratic process
It has been described as a “basic human right” or “a natural right”

Reasonable restriction

The limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public

Reasonableness of restrictions

In judging reasonableness of the restrictions imposed u/a 19(6), Court has to bear in mind the Directive Principles of State Policy
A restriction which has the effect of promoting a directive principle can be presumed to be a reasonable restriction in public interest

Constitutional validity of laws restricting Freedom of Speech and Expression:

(i) The Law of Sedition

Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental right.
A citizen has a right to say or write whatever he likes about the Govt or its measures by way of criticism or comment so long as he does not incite people to violence against the Govt or with the intention of creating public disorder.

Authority: Kedar Nath Singh v. State of Bihar [1962 SC]

(ii) The Law of Defamation:

In essence, the offence of defamation is the harm caused to the reputation of a person.
Reputation being an inherent component of Article 21, it should not be allowed to be sullied solely because another individual can have its freedom.
Right to free speech cannot mean that a citizen can defame the other. “Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech.
Therefore, applying the doctrine of balancing of fundamental rights, existence of defamation as a criminal offence is not beyond the boundary of Article 19(2), especially when the word “defamation” has been used there.

Authority: Subramanian Swamy v. Union of India [2016 SC]

Other Rights and Freedoms flowing from Article 19

1. FREEDOM OF PRESS

Freedom of speech and expression includes freedom of press
Liberty of the press has been treated as inseparable and essential for the right to freedom of speech and expression

2. RIGHT TO INFORMATION

Freedom of speech and expression includes
- right to acquire information and to disseminate it
Freedom of speech and expression is necessary for self-expression
- which is an important means of free conscience and self-fulfilment

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Protection against ex post facto penal law

Article 20(1)

No person shall be convicted
- for violation of a law not in force at the time of the offending act
No person shall be subjected
- to a penalty greater than that inflictable at the time of the offending act

Protection against double-jeopardy:

Article 20(2)

No person shall be prosecuted and punished
- for the same offence more than once

Protection against self-incrimination:

Article 20(3)

No person accused of an offence
- shall be compelled to be a witness against himself

Issue:

Narco-analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) tests:

Decision:

Irrespective of the need to expedite investigations in such cases, no person who is a victim of an offence can be compelled to undergo any of the tests in question.
Such a forcible administration would be an unjustified intrusion into mental privacy. Compulsory administration of these techniques violates the `right against self- incrimination’.
Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue’

Guidelines:

No Lie Detector Tests should be administered except on the basis of consent of the accused.
If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
The consent should be recorded before a Judicial Magistrate.
The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

Source: Selvi v. State of Karnataka [2010 SC]

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RIGHT TO LIFE [Article 21]

No person shall be deprived
- of his life or personal liberty
except
- according to procedure established by law

Explanatory Notes by DLA on Article 21

1. The Procedure must be Right, Just and Fair

Question:

Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements?

Ans:

The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Authority: Maneka Gandhi v. Union of India [1978 SC]

2. RIGHT TO DIE WITH DIGNITY

Question:

Is the “right to die with dignity” a fundamental right within the fold of ”right to live with dignity” guaranteed under Article 21?

Ans:

The right of a dying man to die with dignity when life is ebbing out constitutes a right to live with dignity.
In case of a terminally ill patient or a person in PVS, where there is no hope of recovery: Accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.
Active euthanasia entails a positive affirmative act, while passive euthanasia relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.
In active euthanasia, a specific overt act is done to end the patient‘s life.
In passive euthanasia, something is not done which is necessary for preserving a patient’s life.
A competent person who has come of age has the right to refuse treatment even if such decision entails a risk of death.
Where a patient has already made a valid Advance Directive specifying that he/she does not wish to be treated, then such directive has to be given effect to.
The right to live with dignity also includes smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery.

Authority: Common Cause v. Union of India [2018 SC]

3. Compensation for Rape

Rape is a crime not only against the person of a woman, it is a crime against the entire society.
It is a crime against basic human rights and is violative of the victim’s most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.
Thus, “rape” amounts to violation of the Fundamental Right guaranteed to a woman under Article 21 .
Consequently, the State was under the Constitutional liability to pay compensation to her.

Authority: Bodhisatwa v. Subdhra Chakroborty [1996 SC]

4. Right to live with dignity

The right to life under Article 21 means the right to live with dignity, free from exploitation.

Authority: Bandhua Mukti Morcha v. UoI [1984 SC]

5. Right to go abroad

‘Personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law.

Authority: Satwant Singh v. Union of India [1967 SC]

6. Requirements to be followed in all cases of arrest:

The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made.
A person who has been arrested or detained shall be entitled to have one friend or relative or other person known to him being informed that he has been arrested and is being detained at the particular place.
The arrestee should be also examined at the time of his arrest and major and minor injuries present on his body must be recorded at that time.

Authority: D K Basu v. State of West Bengal [1996 SC]

7. THE RIGHT TO PRIVACY

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

A natural right

“Right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.

Meaning

The most popular meaning of “right to privacy” is “the right to be let alone”.

Source of the right to privacy

The “right to privacy“ emanates from two expressions of the Preamble namely, “liberty” and “Fraternity“
It also emanates from Article 19 (1)(a) which gives to every citizen “a freedom of speech and expression”.
Lastly, it emanates from the expression “personal liberty” under Article 21.

Authority: Justice K.S. Puttaswamy (Retd.) v. Union of India [2017 SC]

8. RIGHT TO PROTECTION OF REPUTATION

Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.
Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation.
Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom.

Authority: Subramanian Swamy v. Union of India [2016 SC]

9. THE AADHAR ACT:

Question:

Whether the Aadhaar Act violates right to privacy and is unconstitutional on this ground?

Ans:

All matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21.
There needs to be balancing of two competing fundamental rights, right to privacy on the one hand and right to food, shelter and employment on the other hand. Axiomatically both the rights are founded on human dignity.
The inroads into the privacy rights where these individuals are made to part with their biometric information, is minimal.

Other directions:

CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory.
Insofar as the school admission of children is concerned, requirement of Aadhaar would not be compulsory.
The provision which enables body corporate to seek authentication would impinge upon the right to privacy. This part is unconstitutional.
Compulsory linking of aadhar for existing bank accounts: This amounts to depriving a person of his property.

Authority: Justice K.S. Puttaswamy (Retd.) v. Union of India [2018 SC]

10. IDENTITY AND RIGHTS OF TRANSGENDERS

Hijras, Eunuchs, apart from binary gender, shall be treated as “third gender” for safeguarding their rights under Part III of our Constitution and the laws.
Centre and State Governments shall take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

Authority: National Legal Services Authority v. Union of India [2014]

11. EXTENDED SCOPE OF ARTICLE 21

The meaning of the words ‘life’, ‘liberty’ and ‘law’ in Article 21 have been considerably enlarged by judicial decisions:
children in jail entitled to special treatment (Sheela Barse vs. Union of India [(1986 SC],
health hazard due to pollution (Mehta M.C. v. Union of India [(1987 SC],
right of speedy trial (Raghubir Singh Vs. State of Bihar, AIR 1987 SC 149),
handcuffing of prisoners (Altemesh Rein Vs. Union of India, 1988 SC),
delay in execution of death sentence, immediate medical aid to injured persons (Parmanand Katara Vs. Union of India, 1989 SC),
right to open trial (Kehar Singh Vs. State (Delhi Admn.) 1988 SC),

Many of the non-justiciable Directive Principles embodied in Part IV of the Constitution have now been resurrected as enforceable fundamental rights by the magic wand of judicial activism, playing on Art.21:
Right to pollution-free water and air (Subhash Kumar v. State of Bihar 1991 SC)
Right to food, clothing, decent environment and even protection of cultural heritage (Ram Sharan Autyanuprasi v. UOI 1989 SC)
Right of every child to a full development (Shantistar Builders v. Narayan Khimalal Totame 1990 SC)
Right to education (Mohini Jain v. State of Karnataka, 1992 SC), but not for a professional degree (Unni Krishnan J.P. v. State of A.P. 1993 SC)

While so long the negative language of Art.21 and use of the word ‘deprived’ was supposed to impose upon the State the negative duty not to interfere with the life or liberty of an individual without the sanction of law, the width and amplitude of this provision has now imposed a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of his life and dignity:
Maintenance and improvement of public health (Vincent Panikurlangara v. UOI 1987 SC)
Elimination of water and air pollution (Mehta M.C. v. UOI 1987 SC).
Rehabilitation of bonded labourers (Bandhuva Mukti Morcha v. UOI 1984 SC)
Providing human conditions if prisons (Sher Singh Vs. State of Punjab 1983 SC) and protective homes (Sheela Barse v. UOI 1986 SC)

Authority: National Legal Services Authority v. Union of India [2014 SC]

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RIGHT TO EDUCATION [Article 21A]

State shall provide free and compulsory education
- to all children of the age of 6-14 years
- in such manner as State may, by law, determine

DLA Note:

This article was inserted by the 86^th Amendment in 2002
It came into force on 1.4.2010
To implement this article the Right of Children to Free and Compulsory Education Act was enacted in 2009

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RIGHTS OF ARRESTED PERSONS [Article 22]

Right to be informed of grounds of arrest

An arrested person
- shall not be detained in custody
- without being informed of grounds of arrest

Right to consult a legal practitioner

An arrested person
- shall not be denied the right
- to consult and to be defended by
  - a legal practitioner of his choice

Right to be produced before magistrate

An arrested and detained person
- shall be produced before nearest magistrate
- within 24 hours of arrest
- excluding journey time from place of arrest to court

No person shall be detained in custody beyond the said period of 24 hours
- without authority of a magistrate

Exception

These rights are not available

to an enemy alien
to a person arrested/detained under preventive detention law

Preventive Detention

No preventive detention law shall authorize detention for more than 3 months
- unless an advisory board so authorizes

Some Preventive detention laws made by Parliament:

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974
National Security Act 1980
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA) 1988

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FUNDAMENTAL RIGHTS

RIGHT AGAINST EXPLOITATION

Prohibition of traffic in human beings and forced labour [Article 23]

Traffic in human beings and begar and forced labour are prohibited
Contravention shall be an offence punishable by law
State may impose compulsory service for public purposes
- but, without any discrimination on grounds only of religion, race, caste or class

Enactments under article 23

Immoral Traffic (Prevention) Act, 1956
Bonded Labour System (Abolition) Act, 1976

Prohibition of employment of children [Article 24]

A child below 14 years
- shall not be employed in any factory or mine
- shall not be engaged in any other hazardous employment

Enactment under article 24

Child Labour (Prohibition and Regulation) Act, 1986

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RIGHT TO FREEDOM OF RELIGION

Article 25(1)

Subject to
- public order, morality and health and other provisions of Part III
All persons
- are equally entitled to freedom of conscience
- shall have right to freely profess, practise and propagate religion

Social Reforms

State may make law
- regulating economic or other secular activity associated with religious practice
- providing for social welfare and reform
- throwing open Hindu religious institutions of public character to all sections of Hindus

Explanations:

Wearing and carrying of kirpans is part of profession of Sikh religion
Word ‘Hindus’ includes persons professing Sikh, Jain or Buddhist religion

Question:

Does the exclusion of menstruating women from entering the Sabarimala Temple violate their right to worship?

Ans:

Freedom of conscience and right to freely profess, practise and propagate religion under Article 25(1) is available to every person including women.
The exclusionary practice is neither an essential nor an integral part of Hindu religion.
It is not something without which Hindu religion, of which the devotees of Lord Ayyappa are followers, will not survive.
The exclusionary practice being followed at the Sabrimala temple violates the right of Hindu women to freely practise their religion. This denial denudes them of their right to worship.

Authority: Indian Young Lawyers Association v. State of Kerala [2018 SC]

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Freedom to manage religious affairs

Article 26

Subject to
- public order, morality and health
Every religious denomination shall have right
- to establish and maintain religious and charitable institutions
- to manage its own affairs in matters of religion
- to own and acquire property
- to administer such property as per law

Question:

Can a denomination wholly exclude members of the public from worshipping in the temple managed by it?

Ans:

The right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship.
But where the right claimed is not one of general and total exclusion of the public at all times but of exclusion from certain religious services, then the question is whether it is possible so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights.
This is possible where after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it.

Authority: Sri Venkatramana Devaru v. State of Mysore [1958 SC]

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Religious instructions in educational institutions

Article 28

No religious instruction shall be provided
- in an educational institution
- wholly maintained out of State funds

No person attending an educational institution
- recognized by State or receiving aid from State
shall be required, without his or guardian’s consent
- to take part in any religious instruction or
- to attend any religious worship in such institution

CULTURAL AND EDUCATIONAL RIGHTS

Protection of interests of minorities

Article 29(1)

Any section of citizens residing in India
- having a distinct language, script or culture
shall have the right
- to conserve the same

Scope of Article 29(1)

Question:

Is the protection of Article 29(1) available only to the minorities as suggested by the marginal note or is it also available to the majority community?

Ans:

Although the word ‘minorities’ appears in marginal note, it does not occur in the text
Although commonly Article 29(1) is assumed to relate to minorities its scope is not so confined as it is available to any section of citizens residing in India. This may well include the majority

Authority: Ahmedabad St. Xavier’s College Society [1974 SC]

Article 29(2)

No citizen shall be denied admission
- into any educational institution maintained by the State or receiving aid from the State
- on grounds only of religion, race, caste or language

Minority Educational Institutions

Article 30(1)

All minorities
- whether based on religion or language
shall have the right
- to establish and administer
- educational institutions of their choice

Scope of Article 30(1)

This right is subject to regulatory power of State
Right to administer does not include right to mal-administer
Word ‘minority’ is not defined but it is referred to represent smaller of two numbers or groups

ACQUISITION OF ESTATES

Article 31A

A law providing for acquisition by State
- of any estate or of any rights therein
shall not be void
- even if it takes away or abridges rights conferred by Article 14 or 19

A law providing for taking over
- of management of any property by State for a limited period
- in public interest or to secure proper management of property
shall not be void
- even if it takes away or abridges rights conferred by Article 14 or 19

Validation of Acts and Regulations

Article 31B

An Act or Regulation specified in Ninth Schedule shall not be void
- even if it takes away or abridges any of the rights conferred by Part III

Question:

Can a law included in the Ninth Schedule shall remain valid even when it violates the basic structure of our Constitution?

Ans:

All Acts and Regulations included in the Ninth Schedule after the Supreme Court decision in Keshavanand Bharti case [that is, after 24th April 1973] would have to be tested on the touchstone of basic structure doctrine for determining their constitutional validity

Authority: IR Coelho v. State of Tamil Nadu [2007 SC]

Precedence to some DPSPs

Article 31C: [As inserted by the 25^th Amendment Act]

A law giving effect to the principles laid down in articles 39(b) and (c)
- shall not be void even if it takes away or abridges rights conferred by Article 14 or 19

This Article was amended by the 42^nd Amendment Act in the following way:

A law giving effect to any of the DPSPs
- shall not be void even if it takes away or abridges rights conferred by Article 14 or 19

DLA NOTE:

Changes made in article 31C by the 42^nd Amendment were held to be unconstitutional by the Supreme Court in Minerva Mills v. Union of India [1980]

Second clause of Article 31C

Law declaring that this law is for giving effect to the principles laid down in articles 39(b) and (c)
- shall not be called in question in any court on the ground that it does not so give effect

DLA NOTE:

This provision has been held unconstitutional in Minerva Mills case as it militates against the basic feature of judicial review

State law requires Presidential assent

If such a law is made by a State Legislature:
it should have been reserved for consideration of the President and should have received his assent

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RIGHT TO CONSTITUTIONAL REMEDIES

Article 32

The right to move the Supreme Court
- for enforcement of rights conferred by Part III
- is guaranteed
Supreme Court has power to issue directions, orders or writs
- for enforcement of any of the rights conferred by this Part

Note:

This Article was described by Dr Ambedkar as the “heart and soul” of our Constitution.

WRITS

To protect Fundamental Rights the Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated.
At the same time, the two articles give power to the higher courts of the country to issue writs in order to enforce Fundamental Rights.

What is a writ?

A writ can be understood as a formal written order issued by a Court having authority to issue such an order.

The 5 writs mentioned in Article 32:

1. Habeas Corpus

Meaning:

Habeas Corpus’ literally means “to have a body of”.

Purpose:

This writ is used to release a person who has been unlawfully detained.
Through this writ, Court directs the person detained to be brought before it. If the Court finds the detention unlawful, it directs the person to be released immediately.

Question 1:

Who can file the writ of Habeas Corpus?

Ans:

The writ of Habeas Corpus can be filed
- by the detained person himself or
- his relatives or friends on his behalf

Question 2:

Against whom can this writ be issued?

Ans:

It can be issued against both public authorities and individuals

2. Mandamus

Meaning:

‘Mandamus’ means ‘we command’.

Purpose:

This writ is issued by a Court to direct a public authority to perform the legal duties which it has not performed.

Question 3:

Against whom can this writ be issued?

Ans:

It can be issued
- against a public official, public corporation, tribunal, inferior court or government
- against a private individual or body, the President or a Governor or a Chief Justice

Question 4:

When can this writ be not issued?

Ans:

It cannot be issued
- where the duty in question is discretionary and not mandatory
- for performance of a non-statutory function

Question 5:

By whom can this writ be sought?

Ans:

A writ petition seeking mandamus must be filed by the person who has an interest in the performance of the duty by the public authority.

3. Certiorari:

Meaning:

Certiorari’ means to ‘certify’.

Purpose:

When a Court is of opinion that a lower court or tribunal has passed an order which is beyond its powers or it has committed an error of law, it may transfer the case to itself or quash the order passed by the lower court or tribunal through a writ of certiorari.
A writ of certiorari can be issued for correcting errors of jurisdiction committed by an inferior court or tribunal

Nature:

The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court.
Certiorari is a curative writ.

Question 6:

What errors can be rectified by a writ of certiorari?

Ans:

An error of law which is apparent on the face of record can be corrected by a writ, but not an error of fact, howsoever grave it may appear to be.

Question 7:

Can a writ of certiorari be issued in respect of a finding of fact recorded by a tribunal?

Ans:

A writ of certiorari can be issued in respect of a finding of fact recorded by a tribunal if it is shown that in recording the said finding the tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which influenced its finding.
If a finding of fact is based on no evidence, it would be regarded as an error of law which can be corrected by a writ of certiorari.
However, a finding of fact recorded by a Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding.

4. Prohibition

Purpose:

A writ of prohibition is issued by a Court to prohibit a lower court, tribunal or other quasi-judicial authority from doing something beyond its authority.

Question 8:

How is the writ of prohibition different from writ of mandamus?

Ans:

It is issued to direct inactivity and thus differs from mandamus which directs activity.

5. Quo Warranto

Meaning:

‘Quo Warranto’ means ‘by what warrant’.

Purpose:

Through this writ, the Court calls upon a person holding a public office to show under what authority he holds that office. If it is found that the person is not entitled to hold that office, he may be ousted from it.
Its objective is to prevent usurpation of a public office. It cannot be issued with respect to a private office.

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Who can file a writ petition?

A writ petition can be filed by any person whose Fundamental Rights have been infringed.
Also, under a Public Interest Litigation, any public-spirited person may file a writ petition in the interest of the general public.

Question 9:

In what way the power of the High Court to issue a writ is much wider than that of the Supreme Court?

Ans:

The Supreme Court can issue a writ under Article 32 only if the petitioner can show that his Fundamental Right has been infringed.
The High Court may grant a writ under Article 226 not only for enforcement of fundamental rights but also for any other purpose such as non-performance of a statutory duty by a statutory authority.

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Restrictions of Fundamental Rights

Article 33

Parliament may, by law, restrict or abrogate any right conferred by Part III
to ensure
- proper discharge of duties and
- maintenance of discipline for
  - members of armed forces
  - members of public order maintenance forces
  - persons in any intelligence or counter-intelligence organizations
  - persons in telecom services for these forces and organizations

Enactment under this article:

Police Forces (Restrictions of Rights) Act, 1966

Scope:

This article empowers Parliament
- to restrict or abrogate application of Fundamental Rights
- for armed forces, paramilitary forces, police, etc.

Martial Law Article 34

Parliament may, by law, indemnify any govt servant
- for any act done by him in maintenance or restoration of order
- in any area where martial law was in force

Scope of article 34

This article is primarily concerned with granting indemnity by law
- in respect of acts done during operation of martial law
It does not authorize proclamation of martial law

Laws to be made by Parliament only

Article 35

Parliament shall have power to make laws u/a 16(3), 32(3), 33 and 34
- but State Legislatures shall not have such power

Parliament has power to make laws for prescribing punishment
- for acts declared as offences in this Part [articles 17, 23]
- but not State Legislatures

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DIRECTIVE PRINCIPLES OF STATE POLICY

Directive Principles of State Policy are non-justiciable

Article 37

Provisions in this Part
- shall not be enforced by any court

Directive Principles are fundamental in governance

Principles laid down in this Part
- are fundamental in governance of the country

Application of Directive Principles in making laws

It shall be the duty of State
- to apply these principles in making laws

Promotion of welfare of people through justice

Article 38

State shall strive to promote welfare of people
- by securing a social order in which
  - justice, social, economic and political
  - shall inform all institutions of national life

Article 39

Adequate means of livelihood

State shall direct its policy towards securing that
- citizens, men and women equally,
- have right to an adequate means of livelihood

Ownership and control of material resources

State shall direct its policy towards securing that
- ownership and control of material resources of community are so distributed
- as best to subserve the common good

Operation of economic system

State shall direct its policy towards securing that
- operation of economic system does not result in concentration of wealth and means of production
- to common detriment

Equal pay for equal work

State shall direct its policy towards securing that
- there is equal pay for equal work for both men and women

Implementation:

Equal Remuneration Act 1976

Protection against exploitation

State shall direct its policy towards securing that
- childhood and youth are protected against exploitation

Free legal aid

Article 39A

State shall provide free legal aid
- to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities

DLA Note:

Article 39A was inserted by the 42nd Amendment Act 1976

Implementation:

Legal Services Authorities Act 1987

Village panchayats as units of self-government

Article 40

State shall take steps
- to organise village panchayats and
- to endow them with powers and authority to enable them to function as units of self-government

Implementation:

Constitution 73^rd Amendment Act 1992

Right to work, right to education and right to public assistance

Article 41

State shall
- within its economic capacity and development
make effective provision for securing
- right to work
- right to education
- right to public assistance in cases of unemployment, old age, sickness, disablement, and undeserved want

Humane conditions of work and maternity relief

Article 42

State shall make provision
- for securing just and humane conditions of work and
- for maternity relief

Implementation:

Maternity Benefit Act, 1961

Decent standard of life for workers

Article 43

State shall endeavour to secure
- to all workers agricultural, industrial or otherwise
  - work
  - a living wage
  - a decent standard of life
  - full enjoyment of leisure and social and cultural opportunities

Implementation:

Amendments to Minimum Wages Act 1948
Payment of Bonus Act 1965

Promotion of cottage industries in rural areas

State shall endeavour to promote cottage industries
- on an individual or co-operative basis in rural areas

Implementation:

Khadi and Village Industries Commission Act 1956
Handloom Board
Silk Board

Participation of workers in management

Article 43A

State shall take steps
- to secure participation of workers
- in management of undertakings, establishments engaged in industry

DLA Note:

Article 43A was inserted by the 42nd Amendment Act 1976

Promotion of co-operative societies

Article 43B

State shall endeavour to promote
- voluntary formation, autonomous functioning, democratic control and professional management
- of co-operative societies

DLA Note:

Article 43B was inserted by the 97th Amendment Act 2012

Uniform Civil Code for all citizens

Article 44

State shall endeavour
- to secure for citizens a uniform civil code
- throughout the territory of India

Early childhood care and education

Article 45

State shall endeavour
- to provide early childhood care and education
- for all children until they complete the age of six years

Promotion of weaker sections

Article 46

State shall promote with special care
- educational and economic interests of weaker sections
  - in particular, of SCs and STs

Implementation:

65^th Amendment Act 1990
89^th Amendment Act 2003
National Commission for SCs
National Commission for STs
SCs and STs (Prevention of Atrocities) Act 1989

Nutrition, standard of living and public health

Article 47

State shall regard as its primary duties:
- raising of level of nutrition
- raising of standard of living of people
- improvement of public health

Prohibition of consumption

State shall endeavour
- to bring about prohibition of consumption
- of intoxicating drinks and drugs injurious to health

Agriculture and animal husbandry on modern and scientific lines

Article 48

State shall endeavour
- to organise agriculture and animal husbandry
- on modern and scientific lines

Prohibition of cattle slaughter

State shall take steps for
- preserving and improving the breeds and
- prohibiting slaughter
of cows and other milch and draught cattle

Protection and improvement of environment

Article 48A

State shall endeavour
- to protect and improve environment and
- to safeguard forests and wild life

DLA Note:

Article 48A was inserted by the 42nd Amendment Act 1976

Implementation:

Wildlife(Protection) Act 1972
Forest (Conservation) Act 1980
Environment (Protection) Act 1986
Water (Prevention and Control of Pollution) Act 1974
Air (Prevention and Control of Pollution) Act 1981

Protection of artistic or historic monuments

Article 49

It shall be the obligation of State
- to protect every monument or place or object
  - of artistic or historic interest
  - declared by Parliament to be of national importance

Implementation:

Ancient and Historical Monuments and Archaeological Sites and Remains Act 1958

Separation of judiciary from executive in public services

Article 50

State shall take steps
- to separate judiciary from executive
- in public services of State

Implementation:

Criminal Procedure Code 1973
- Judicial powers have been taken away from executive authorities like Collector, Tehsildar etc.

Promotion of International peace and security

Article 51

State shall endeavour
- to promote international peace and security
- to foster respect for international law and treaty obligations
- to encourage settlement of international disputes by arbitration

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SCOPE AND IMPORTANCE OF DIRECTIVE PRINCIPLES

‘Harmony and balance between the Fundamental Rights and the Directive Principles is an essential feature of the basic structure of the Constitution

They together constitute the core of commitment to social revolution

The Constitution is founded on the bedrock of the balance between the two’

Source: Minerva Mills v. Union of India [1980 SC]

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FUNDAMENTAL DUTIES

DLA Note

The Fundamental Duties were inserted by the 42nd Constitutional Amendment Act 1976

Article 51A

It shall be the duty of every citizen of India

(a)

to abide by the Constitution
to respect
- its ideals and institutions
- National Flag, National Anthem

(b)

to cherish and follow the noble ideals
- which inspired our national struggle for freedom

(c)

to uphold and protect
- sovereignty, unity and integrity of India

(d)

to defend the country and
- to render national service when called upon

(e)

to promote harmony and spirit of brotherhood
- to renounce practices derogatory to dignity of women

(f)

to value and preserve
- rich heritage of our composite culture

(g)

to protect and improve
- natural environment, including forests, lakes, rivers and wild life
to have compassion for living creatures

(h)

to develop
- scientific temper, humanism, spirit of inquiry and reform

(i)

to safeguard public property, to abjure violence

(j)

to strive towards excellence
- in all spheres of individual and collective activity

(k)

to provide opportunities for education
- to his child or ward between 6 and 14 years

DLA Note

Clause (k) was added by the 86^th Amendment Act, 2002

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