CONSTITUTION LAW OF INDIA

Salient Feature of the Constitution of India –

The Constitution of India is unique in that it is exhaustive in topics, elaborate statement thereof, balancing and adjusting
provisions as to cope with the new conditions and challenges and incorporates a host of devices to solve the
constitutional problems found in the constitutional laws of other countries. It has following salient features:-

1. Longest Constitution of the word.

2. Democratic form of Government.

3. Sovereignty of the People.

4. Parliamentary form of Government.

5. Fundamental Rights.

6. Directive Principles of State Policy.

7. Mixture of rigidity with flexibility.

8. Fundamental Duties.

9. An Independent Judiciary.

10. A Secular State.

11. Adult suffrage

12. Single Citizenship.

The Nature of the Indian Constitution-

According to their nature all the constitutions are either unitary or federal. In a unitary constitution the powers of the
Government are centralized in the Central Government and the provinces are made subordinate to the Central. In a
federal constitution, on other hand, there is a division of powers between the Federal and the State Governments and
both are independent in their own spheres.

Essential characteristics of a federal Constitution – A federal constitution usually has the following essential
characteristics-

1. Distribution of Power 4.Rigidity

2. Supremacy of Constitution 5. Authority of the Courts
3. A Written Constitution

Merit and Demerits of unitary Constitution:

Unitary constitutions establishes a strong Central Government which is found more useful in times of war or
emergencies. The central Government or Unitary Government has all the powers of the government and the local
governments enjoy the powers delegated to them by the Central Government.There is no conflict of authority and no
overlapping of jurisdiction in the Unitary form of government. The Unitary Constitution is more flexible than a federal
Constitution and, therefore, it can be changed according to the need of the society. It can easily be amended to meet
the emergencies. The Unitary Constitution suffers from a few defects also. It develops centralized bureaucracy. The laws
are often made in ignorance of the local conditions and needs. They are administered by the persons who do not have
sufficient knowledge of the local needs. Not only does this cause frequent delays during which local interest suffers
while waiting for a dicision from the over-burdened Central officials, but the decision are often made in ignorance of
localconditions and are administered by official who know little about local needs and desires.
Extent Indian Constitution is Unitary- In support of their arguments jurist have pointed out, that Indian Constitution
contains the following modifications of the federal principle-
1. Appointment of Governors
2. Parliament’s power to legisiate in the national interest
3. Parliament’s power to form new State and alter boundaries of existing State
4. Emergency provisions – The Constitution establishes three types of emergencies
5. Central Grants-in-Aid
PREAMBLE
Definition ---

According to Story, “The preamble is the key to open the mind of makers of the Constitution.” This definition of
preamble is approved by Supreme Court in the case of In re Berubari A.I.R.1960.

According to J. Subba Rao, “The Preamble to an Act sets out the objectives which the legislation is intended to
achieve.”

Thus, the preamble of the Constitution is an introduction to constitution. It is a statement of the purposes for
which the Indian constitution was enacted. Almost in all the Acts a preamble is set out to explain the objectives
of the Act.

The Preamble of the Indian Constitution declares: “We, the people of India having solemnly resolved to
constitute India into sovereign Socialist Secular Democratice 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 opportunity; and to promot among them all;

Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In our Constituent’
Assembly this twenty-sixty day of November, 1949 do hereby, Adopt, Enact and Give to Ourselves this
Constitution.”

Objects of the Preamble – The Preamble of our Constitution serves the following three purposes-

1. It indicates the source from which the Constitution springs into Existence – namely, “the people of India.”
The political power in the Indian Republic, therefore, vests ultimately with the people of India. Our
constitution is broad-based on the consent and acquiescence of the people. It is not imposed by any
external authority. It is true that the Constituent Assembly was not directly elected by the people; nor was
the draft of the Constitution subjected to the vote of the people. Yet the Constitution Assembly was fairly
representative of all sections of the people.
 2. The Preamble throws light on the aims and the objects of the Constitution. The declared object is to secure
justice, liberty, equality and fraternity to all the citizens. Thus, the Preamble expresses the political, moral
and religious values which the Constitution is intended to promote.

3. The Preamble indicates as to what is date of the application of the Constitution?

The various Words and expressions used in the Preamble may be explained as under –

a. We the People of India e. Democratic

b. Sovereign f. Republic- i.Social justice

ii.Liberty
c. Socialist iii.Equality
d. Secular iv.Integrity

Fundamental Rights:-
In legal sense right means any interest which is protected and recognized by the state. There are various kinds
and divisions of rights and one such division is that right may be ordinary and fundamental; ordinary right
which is available to any person against another private person and that private person is under a duty not to
infringe the right of another person : but when one person has a right against the mighty state and its
protection needs Constitutional guarantee i.e. the protection is Constitutional or the protection to such right is
guaranteed by the Constitution, then, those rights are known as Fundamental Rights.

The guarantee of certain basic rights of the individual and quick and convenient means to enforce them is the
irreducible minimum for a democratic set-up. Almost all written Constitutions of the word contain declaration
and guarantee of such rights in some from or the other. Fundamental rights are a sort of limitation over the
executive and the Legislature. They are meant not to protect persons against the conduct of private persons. It
is against the might of the State that the individual needs Constitutional protection.

Object of Fundamental Rights

In every democratic system of Government, there are some rights which are regarded as Fundamental. They
are vitally necessary for the attainment by the individual of his full moral and spiritual stature. Without those
rights, the individual’s moral or spiritual life will remain stunted and he will not be able to develop his
potentialities. Therefore, the object of Fundamental Rights is to guarantee the people the protection and
development of the moral and spiritual stature in all respects.

The main object of providing Fundamental Rights in the Constitution is to put limitation on the powers of the
Executive and the Legislature of Country. It is also necessary to provide for such rights so that the
representatives of people may not misure their power in democracy because of their majority.

Characteristic Features of Fundamental Rights-

1. Important characteristic feature of the Fundamental Rights is that they are justifiable.
2. Another important characteristic feature of Fundamental Rights is that some of the Fundamental
Rights are available to all persons, whether natural or artificial, and citizen or not, while some of them
are available to citizens of India only.
 3. Fundamental Rights are limitation on the State action.
4. The judiciary like other organs of the State is restricted by the mandatory provisions of the Constitution
from overriding the Fundamental rights under the shield of their orders passed under the competent
jurisdiction because judiciary being a state one who act as a judge is subject to writ jurisdiction.

Classification of Fundamental Rights

The provisions of Part III of Constitution which enumerate the Fundamental Rights are more elaborate than
those of any other existing written constitution relating to fundamental rights, and cover a wide range of
topics.

The Constitution itself classifies the Fundamental Rights under seven groups as follows:

a. Right to equality
b. Right to particular freedoms
c. Right to against exploitation
d. Right to freedom of religion
e. Cultural and educational rights
f. Right to property
g. Right to constitutional remedies

Right to Equality- (Arts. 14 to 18)

Arts. 14 to 18 of the Indian Constitution guarantees the right to equality to every citizen of India. Art. 14
provides the general principles of equality before the law and prohibited unreasonable discrimination
between persons. Art 14 contains the idea of equality expressed in the Preamble. The succeeding Arts.15,
16,17 and 18 lay down specific application of the general rules laid down in Art. 14 Art. 15 relates to
prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. Art. 16 guarantees
equality of opportunity in matters of public employment. Art. 17 abolishes ‘Untouchability’ , Art. 18 abolishes
title.

Art. 14 declares that ‘the State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India.’ Thus , Art. 14 uses two expression s “equality before the law” and
“equal protection of the laws”. The first expression ‘equality before law’ is of English origin and the second
expression has been taken from the American Constitution. Both these expression aim at establishing the
“equality of status” as established in the Preamble of the Constitution. While the expressions may seem to be
identical, they do not convey the same meaning.“Equality before the law “ is somewhat a negative concept
implying the absence of any special privilege in favor of individuals and the equal subject of all classes to the
ordinary law. “Equal protection of the law” is a more positive concept implying the equality of treatment in
equal circumstances. How ever, one dominant idea common to both the expressions is of equal justice. In
state of westBengal Vs. Anwar Ali Sarkar, AIR 1952, Patanjali shastri, C.J. has rightly observed that the
second expression is corollary of the first and it is difficult to imagine a situation in which the violation of the
equal protection of law will not be the violation of the equality before law. Thus, in substance the two
expressions mean one and the same thing.

1. Equality before Law – The concept of equality does not mean absolute equality among human being
which is physically not possible to achieve. It is a concept implying absence of any special privilege by
reason of birth, creed or the like in favour of any individual, and also the equal subject of all individuals
and classes to the ordinary law of the land.
2. Equal protection of laws – It means that all persons similarly circumstanced shall be treated alike both
in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the
same situation, and there should be no discrimination between one person and another. As regards
the subject matter of legislation their position is the same.
The words “any person” in Art.14 of the constitution denotes that the guarantee of equal protection of
laws is available to any person who includes any company or association or body of individuals. The
protection of Art 14 extends to both citizens and non-citizen and to natural persons as well as legal
persons. The equality before the law is guaranteed to all without to race, colour or nationality.
Art. 14 Permits Classification but Prohibits Class Legislation – It is to be noted that what Art.14
forbids is class -legislation but it does not forbid reasonable classification. The classification, however,
must not be “arbitrary, artificial for evasive” but must be based on some real and substantial
distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation.
R.K.Garg Vs. Union of India, AIR 1981 applies where equals are treated differently without any
reasonable basis. But where equals and unequal’s are treated differently, Art. 14 does not apply. Class
legislation is that which makes an improper discrimination by conferring particular privileges upon a
class of persons arbitrarily selected from a large number of persons, all of whom stand in the same
relation to the privilege granted that between whom and the persons not so favored no reasonable
distinction or substantial difference can be found justifying the inclusion of one and the exclusion of
the other from such privilege. The equal protection of laws guaranteed by Art.14 does not mean be
general in character. It does not mean that every law must have universal application for, all persons
are not, by nature, attainment or circumstances in the same position. The varying needs of different
classes of persons often require separate treatment. From the very nature of society there should be
different laws in different places and the Legislature controls the policy and enacts laws in the best
interest of the safety and security of the state. In fact, identical treatment in unequal circumstances
would amount to inequality. So, a reasonable classification is necessary if society is to progress.
BASIS OF CLASSIFICATION- The constitutionality of every statute depends on as to whether there is a
basis for the classification made in the statute. The basis of classification may be different e.g.
geographical, vocational, difference in time, difference in nature of persons, trade and callings or
occupation, etc.
CONCLUSION: Right to equality is a fundamental right. It can be enforced in High Court under Article
226 and in Supreme Court under Article 32. Fundamental Rights can be enforced only if the state
violates it. Right to Equality is considered as basis feature of the Indian constitution. Right to equality
under Art 14 is vested not only to citizens but to all persons. It includes equality before Law and Equal
Protection of Law. No one is above the law of the land. Every one is equal in the eyes of law. There
should be no discrimination. Law must be equal and must be equally administered. So like must be
treated alike and unlike. Equality before law is negative concept and equal protection of law is positive
 concept. Reasonable classification is allowed in the administration of justice. But it should have some
relation to the object of the legislature.

Art. 19 Freedom of speech and Expression –

Freedom of speech and press is the foundation of all democratic organizations, for without free political
discussion no public education, so essential for the proper functioning of the process of popular Government,
is possible. Art. 19 (1)(a) says that all citizens shall have the right to freedom of speech and expression. But this
right is subject to limitation imposed under Art. 19(2) which empowers the State to put ‘reasonable’
restrictions on the following grounds, e.g. security of the state, friendly relations with foreign states, public
order, decency and morality, contempt of court, defamation, incitement to offence and integrity and
sovereignty of India.

Meaning and Scope of the Freedom of Speech and Expression- Freedom of speech and expression means the
right to express one’s own convictions and opinions freely by words of mouth, writing, printing, picture or any
other mode. It, thus, includes the expression of one’s idea through any communicable medium or visible
representation, such as, gestures, signs and the like. The expression indicates also publication and thus the
freedom of the press is also included in the category. Free propagation of the ideas is the necessary objective
and this may be done on platform or through the press. The freedom of propagation of ideas is secured by
freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed,
without circulation the publication would be of no value.

The freedom of speech and expression includes not only the liberty to propagate one’s views only but also
includes the right to propagate or publish the views of other people also, otherwise this freedom will not
include the freedom of the press.

The foremost amongst these are the six fundamental rights in the nature of freedom which are guaranteed to
the citizens by the Constitution of India. Art. 19 is as follows:

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
(g) To practice any profession, or to carry on any occupation, trade or business.

Restrictions Imposed by the State This freedom is subject to reasonable restriction imposed by the State relating to-
a. Defamation;b. Contempt of court;c.Decency or morality;d.Security of the State;e.Friendly relations with foreign
State;f.Incitement to an offence;g.Public order;i.Maintenance of the sovereignty and integrity of India.
Test of Reason ableness of a restriction: The expression “reasonable restriction” seeks a balance
between the freedom guaranteed by any of the sub-clauses of Art. 19(1) and the social control permitted by
any of the exceptions in cls. (2) to (6). It is to seen, therefore, what criteria or tests have been laid down by the
Supreme Court for determining whether the restriction is reasonable or not. The Supreme Court has said that
a restriction is reasonable only when there is a proper balance between the rights of the individual and those
of the society.

The Supreme Court has held that in examining the reasonableness of a statutory provision, whether it
violated the fundamental right guaranteed under Art. 19, one has to keep in mind:

1. The Directive Principles of the state Policy.

2. The restrictions must not be arbitrary or of an excessive nature, going beyond the requirement of the
interest of the general public.
3. A just balance has to be struck between the restrictions imposed and social control envisaged by Art.
19(6).
4. Prevailing social values as also social needs which are intended to be satisfied by the restrictions.
5. There must be a direct and proximate nexus or reasonable connection between the restrictions
imposed and the object sought to be achieved by the Act, that being so a strong presumption in favour
of the constitutionality of the Act will naturally arise.

Freedom of the press- The fundamental right of the freedom of the press implicit in the right of the
freedom of speech and expression is essential for political liberty. Art. 19 (1)(a) of the constitution does not
expressly mention the liberty of the press but it has been held that liberty of the press is included in the
freedom of speech and expression. The “press has no special rights which are not to be given or which are not
to be exercised by the citizen in his individual capacity. The editor of the press or the manager is merely
exercise the right of the expression and therefore, no special mention is necessary of the freedom of the
press.”

“The liberty of the press” means liberty to print and publish what one pleases, without previous permission.
The freedom of the press is not confined to newspapers and periodicals. It includes also pamphlets and
circulars and every sort of publication which affords a vehicle of information and opinion.

Freedom of press has always been a cherished right on all democratic countries. The newspaper not only
publishes news but also ideas, opinions and ideologies, besides much else. They are supposed to guard public
interest by bringing to fore the misdeeds, failing and lapses of the government and other bodies exercising
power. Rightly, therefore, it has been described as the Forth Estate.

Protection in respect of conviction for offences (Art. 20)

1. No person shall be convicted of any offence except for violation of a Law.
2. No person shall be prosecuted and punished for the same offence more than once.
3. No person accused of any offence shall be compelled to be a witness against himself.
Art. 20 provides certain safeguards to the person accused of crimes. These safeguards may be
discussed under the following:
a. Ex-post Facto law {Clause (1) of Art. 20}
Clause (1) of Article 20 provides safeguards against ex-post facto law.Ex-post facto law means the
law which imposed penalties retrospectively or which increases the penalties from the
retrospectively effect. Thus, ex-post facto law may be understood as the law which imposes
penalties on the acts already done or which increases the penalties for the acts already done.
b. Protection against Double Jeopardy (Art.20(2)) - Art. 20(2) provides that no person shall be prosecuted
and punished for the same offence more than once. It embodies the English rule of ‘memo debit vis vexart’
which means that a man should not be put twice in peril for the same offence.
To claim the protection against double jeopardy under Art 20(2) of the Indian Constitution, the
following conditions are required to be satisfied:
1. Person accused of an offence
2. Prosecution and punishment both
3. Prosecution and punishment before a court of law or judicial tribunal of competent
juruisdiction
4. Prosecution and punishment for the second time for the same offence
c. Protection against self Incrimination [Art 20(3)]- the comman law rule is that every accused is presumed
to be innocent until contrary is proved and it is for the prosecution to establish the guilt and the accused
cannot be compelled to make self-in criminality statement. Art. 20(3) embodies this rule of comman law. It
provides that no person accused of any offence shall be compelled to be a witness against himself.
For the applicability of Art. 20(3),the following conditions are required to be satisfied-
1. Person accused of an offence
2. Compulsion to be a witness
3. Against himself

Doctrine of Severability:
If the law, either the law existing at the time of the commencement of the Constitution or the law which came into
force later on, is inconsistent with the Fundamental Rights or violates them, than, such, a law shall be declared void by
the court. Here a question arises, if a part of an act is un constitutional and another part is valid, then, what will
happen? The answer to this question is that if the portion of the act so declared valid and void are quite separable from
each other, the void portions shall be unconstitutional and shall not be looked into while the remaining portion being
valid and Constitutional, shall continue as such. In a case where these valid and void portions of an act are not separable,
the whole of the Act is invalid, it is known as doctrine of severability.

The Doctrine of severability is applicable only if it is possible to separate the legal from the unconstitutional portion of
the provision. If such separation is not possible entire provision has to be struck down as unconstitutional.

The question of severability depends not on the interpretation of the constitution but on the construction of the
impugned enactment. The history of the legislation is admissible for as certaining the legislative intent when the
question is one of severability but the statement of object and reasons is not admissible for the purpose of determining
severability.

So doctrine of severability or severability implies that it is not the whole Act that should be held invalid or in operative
but only such provision of it as are violative of the fundamental Rights, provided, of course, that the part which violates
the fundamental Rights is separable from that which does not violate them and if they are not severable, the whole Act
will be void.

Art. 21- Personal liberty-

Protection of life and personal liberty

Article 21 of our Constitution provides that:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

It means that no member of the executive shall be entitled to interfere with the liberty of a citizen unless he can support
his action by some provision of low. In short, no man can be subjected to any physical coercion that does not admit of
legal justification. When, therefore, the State or any of its agents deprives an individual of this personal liberty, such
action can be justified only if there is a law to support such action and the procedures prescribed by such law have been
“strictly and scrupulously” observed.

This personal freedom is secured by the Indian Constitution by the judicial writ of habeas corpus by means of which an
arrested person may have himself brought before the Court and have the ground of his imprisonment examined, and
regain his freedom if the Court finds that there is no legal justification for his imprisonment. The Court will also set the
prisoner free where there is a law authorizing the deprivation of liberty of a person but there has been no strict
compliance with the conditions imposed by the law.

Meaning and Scope of personal liberty- The meaning of personal liberty can be studied under two parts-

Prior to Maneka Gandhi’s Decision- The word “personal liberty” under Art. 21 if interpreted widely are
capable of including the right mentioned in Art.19. but in A.K.Gopalan Vs. State of Madras AIR 1950, the
Supreme Court took a very literal view and interpreted these words very narrowly. ‘Personal Liberty’ was said
to mean only liberty relating to or concerning the person or body of the individual and in this sense it was
antithesis of physical restraint or coercion. It was further limited freedom from punitive and preventive
detention. The meaning accepted for the purposes of Art.21 of the Constitution was restricted to limits by
Dicey, according to whom “Personal Liberty” means a personal right not to be subjected to imprisonment,
arrest or other physical coercion in any manner that does not admit of legal justification.

Meaning and Scope of Personal Liberty After Maneka Gandhi’s Decision – The restrictive interpretation of
the expression ‘personal liberty’ in A.K. Gopalan’s Case has not been followed by the Supreme Court in its later
decisions. In Kharak Singh Vs. State of U.P., A.I.R. 1963, it was held that the expression ‘life’ was not limited to
bodily restraint or confinement to prison only but something more than mere animal existence. In that case,
the petitioner, Kharak Singh had been charged in a dacoity case but was released as there was no evidence
against him. Under the U.P. Police Regulations, the Police opened a history-sheet for him and he was kept
under police surveillance which included secret picketing of his house by the police, domiciliary visits at nights
and verification of his movements and activities. The Supreme Court held that the domiciliary visits of the
policemen were an invasion on the petitioner’s personal liberty.

Scope of Art.21 –

1. Right to live with human dignity free from exploitation.:

 “Right to life” should be taken to mean right to live with human dignity. The right to life includes all those aspect
of life which go to make a man’s life meaningful, worth living and complete.
2. Right to livelihood: In Olga Tellis v. Bombay Municipal Corporation, the Supreme Court has made it clear that
the expression “right to life” in Article 21 includes the right of livelihood also. However, it may be curtailed or
curbed by following the just and fair procedure established by law.
3. Right to die – Not included: In P. Rathinam v. Union of India,’ the Supreme Court has held that right to live
includes right not to live a forced life. It includes, thus, right to die. Consequently, Section 309 of the Indian
Penal Code which provides punishment for attempt to commit suicide is violative of Article 21.
4. Right to social security (e.g., insurance policy - included).: It has now been established that the right to life
includes the right to social security. The security against sickness and disablement is included within the right to
life under Article 21.
5. Public Trial: In Kartar Singh v. State of Punjab, the Supreme Court has made it clear that right to open or public
trial is not absolute. In exceptional circumstances trial can be held in camera.
6. Right to pollution free air and water – Included: The Supreme Court has made it clear that right to life under
Article 21. Includes right to pollution free air and water. The Supreme Court has held that right to live is a
fundamental right under Article 21 and it includes the right of enjoyment of pollution free water and air for full
enjoyment of life.
7. Right to Water : In Mrs. Susetha v. State of T.N. the Court has held that right to water flows from Article 21.
Article 51-A makes a fundamental duty of every citizen to protect and improve the natural environment
including forests, lakes, rivers and wild life, but this principle applies only to natural water storage resources. The
same principle cannot be applied in relation to artificial tanks.
8. Right to privacy : The expression “personal liberty” includes the right of privacy also and, therefore, the right of
privacy can be curtailed or taken by following the fair and just procedure established by a valid law.
9. The right to travel abroad : It is included within the meaning of the expression “personal liberty” in Article 21.
The right to travel abroad is significant not merely because it assists in the development of personality but also
because it promotes international understanding and co-operation. Concept of Internationalism can only be
evolved by international movement.
10. Right to Education : Right to education is implicit under Article 21. It flows from the right to life and personal
liberty guaranteed by Article 21. In this case the Court has made it clear that every child up to the age of 14
years has fundamental right to free education.

Effect of Emergency on Art.21 – The provisions of Art.359 have been changed by the 44 th
Amendment. Now the right to life and personal liberty cannot be suspended even if Emergency is
proclaimed under Art.359.

Rights of an Arrested Person- The deprivation of personal liberty result from arrest of the person or his
detection and Art.22 provides ….in both the situations. There are four essential rights of an arrested
person guaranteed by Art.22-

1. The Right to be informed of the Grounds of Arrest – So far as arrest and detention under the law for
preventive detention is concerned, CL(5)…. That any person is detained in pursuance of order made
under any law providing for preventive detention, the authority making the order shall, as soon as may
be, communicated to such person the grounds on which such under has been made and shall afford
him the earlier opportunity of making a representation against the under CL (6) further restricts the
right of the person so detained to be so informed is that the authority for making the order for
detention shall not be required to disclose which such authority ……… to be against public interest.
 2. Right to Legal Aid - Every person ever since his arrest has right to … consulted by a lawyer of his own
choice and to be defended by him. The …. Behind this safeguard is that law can be interpreted well by
lawyers only who are trained in and are well versed with it. Court will be bound to … the assistance of a
lawyer to a person arrested under an ordinary law.
3. Production Before a Magistrate –Cl. (2) fixed the maximum limit for detention. It say that every person
who is arrested and detained in custody shall be produced before the rearest Magistrate within a
period of twenty – four hours of such arrest excluding the time necessary for the journey from the
place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond
the said period without the authority of a magistrate.
4. No detention beyond 24 hours without judicial authority – The maximum period of detention by the
police or the executive is 24 hours Detention thereafter requires magisterial sanction and comes within
the range of judicial purview.

Conclusion: it can rightly concluded from all that what is said above that the life and personal liberty of a
person can be taken only in according with a just and reasonable law and procedure.

Right to Freedom of Religion ( Art 25-28)

India, under the Constitution, is a “Secular State”, i.e., a State which observes an attitude of neutrality and impartiality
towards all religions. A secular State is founded on the idea that the State is concerned with the relation between man
and man and not with the relation between man and God which is a matter of individual conscience. The attitude of
impartiality towards all religions is secured by the Constitution by several provisions (Arts.25-28).

Firstly, there shall be no “State religion” in India. The State will neither establish a religion of its own nor confer any
special patronage upon any particular religion. The State will not compel any citizen to pay any taxes for the promotion
or maintenance of any particular religion or religious institute (Art.27) whil religious instruction is totally banned in State
– owned educational institutions, in other denominational institutions it is not totally prohibited but it must not be
imposed upon people of other religions without their consent (Art.28).

Secondly, every person is guaranteed the freedom of conscience and the freedom to profess, practice and propagate his
own religion, subject only to restrictions imposed by the State in the interests of public order.

A person in India shall have the right not only to entertain any religious belief but also to practice the observances
dictated by such belief, and to preach his views to others (Art.25).

Thirdly, not only is there the freedom of the individual to profess, practice and propagate his religion, there is also the
right guaranteed to every religious group or denomination.

DIRECTIVE PRINCIPLES OF STATE POLICY-

Through the Directive Principles of State Policy are, strictly speaking non-justifiable but recommendations of the
constitution makers for a good governance, in many recent cases, the supreme court has raised them to the status of
fundamental rights and enforced many as such. Thus the Apex Court has enforced the Directives of (1) equal pay for
equal work, (2) protection of children from exploitations, (3) free legal aid,(4) free and compulsory education to children
below the age of 14 years, (5) protection of working women from sexual harassment, etc.

Definition of “state”(Art. 36)—

In this part, unless the context otherwise requires, the state has the same meaning as in Part III.

Application of the principals contained in part IV (Art. 37)-

The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles
in making laws.

The Directive Principles – The Directive Principles provided under Part IV of the Constitution are as follows:-

1. State to secure a social order for promotion and welfare of people (Art. 38)

2. Certain principles of policy to be followed by the state (Art. 39)

3. Equal justice and free legal aid(Art.39 A)

4. Organisation of village Panchayat (Art. 40)

5. Right to work, to education and to public assistance in certain cases (Art. 41)

6. Provision for just and human conditions of workers (Art. 42)

7. Living wages etc. for workers (Art. 43)

8. Participation of workers in management of industries (Art. 43-A)

9. Provision for promotion of Co-Operative Societies (Art. 43-B)

10. Uniform Civil Code for the citizens (Art. 44)

11. Provision for early childhood care and education to children below the age of six year (Art. 45)

12. Promotion for educational and economic interests of scheduled Castes, Scheduled Tribes and other weaker
sections (Art. 46)

13. Duty of the state raise the level of nutrition and the standard of living and to improve public health (Art. 47)

14. Organization of agriculture and animal husbandry (Art. 48)

15. Protection and improvement of environment and safeguarding of forests and wildlife (48-A)

16. Protection of monuments and places of national importance (Art.49)

17. Separation of judiciary from executive (Art 50)

18. Promotion of International Peace and Security (Art. 51)

Restrictions U/A 25 of the Indian Constitution

1. Public Order, Morality and Health : Freedom of religion guaranteed by Article 25 is subject to public order, morality
and health. Preventing a person is not violative of Article 25. Its reason is that forcible conversion may disturb the
public order and therefore it may be prohibited in the interest of public order.
2. Other provisions relating to the Fundamental Rights.: Freedom of religion guaranteed by Article 25 is subject to the
other provisions relating to the Fundamental Rights.
3. Regulation of economic, financial, political and secular activities.- The provision of Article 25 shall not affect the
operation of any existing law or prevent the State from making any law regulating or restricting any economic,
financial, political or other secular activity which may be associated with religious practice.
4. Social Reform, Social Welfare and throwing open of Hindu religious institutions.- The provisions of Article 25 do not
affect the operation of any existing law or prevent the State from making any law providing for social welfare and
reform or the throwing open of Hindu religious institution of a public character to all classes and sections of Hindus.

The ambit of the freedom of religion guaranteed by Arts. 25-26 has been widened by the judicial interpretation that
what is guaranteed by Arts. 25-26 has been widened by the judicial interpretation that what is guaranteed by Arts. 25
and 26 is the right of the individual to practice and propagate not only matters of faith or belief but also all those rituals
and observances which are regarded as integral parts of a religion by the followers of its doctrines. Of course, religion is
a matter of faith but it is not necessarily theistic and there are well-known religions in India like Buddhism and religion
undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as
conducive to their spiritual well – being, it would not be correct to say that religion is nothing else but a doctrine of
belief. Similarly, each religious denomination or organization enjoys complete autonomy in the matter of deciding as to
what rites and ceremonies are essential according to the tenets of the religion they hold.

It should be pointed out in this context that the word ‘secular’ is a dubious word, capable of diverse meanings and one
of its dictionary meaning is ‘concerned with the affairs of the word’ as opposed to religious affairs. This has not only
caused confusion amongst teachers of Political Science and Law in India but has also been taken advantage of by
interested parties. This state of confusion has been set at rest by authoritative pronouncements made by the Supreme
Court, in a nine- Judge decision, as follows:

a. Secularism, in India, does not mean that the State should be hostile to religion but that is should be neutral as
between the different religions.
b. Every individual has the freedom to profess and practice his own religion, and it cannot be contended that “if a
person is a devout Hindu or a devout Muslim, he ceases to be secular”.
c. Preference of Sanskrit in the academic syllabus as an elective subject, while not conceding this status to Arabic or
Persian or the like, would not militate against the basic tenets of secularism.
d. The neutrality of the state would be violated if religion is used for political purposes and advocated by the political
parties for their political ends.
e. It is in this sense that secularism is to be regarded as a basic feature of the Constitution.

Fundamental Duties - Rights originate with duties. So duty can be defined as “work done for the interest
of others”. On the basis of this we can say that vduty is an obligation on us which creates rights of others. So it
is essential to give stress on duty to achive Rights.

Duties can be classified as-

a. Moral duty : Moral duty is based on the morality of man.

b. Legal Duty: There are the duties which come in the area of law. It is our duty not to rob, injure or insult others,
failing that, we shall be punished by the state.
Scope and kinds of duties:-
1. Duty towards self
2. Duty towards neighbours
3. Duty towards village,city and society
4. Duty towards the country
5. Duty towards the world
 6. Duty towards the state
(1) Loyalty to the stat
(2) Militry service
(3) Payment of taxes
(4) Co-operation with the public servants
(5) Following law
(6) Proper use of political rights

Relations between Rights and duties

1. One supplements the other
2. Rights of one person are duties to other
3. Rights depend on performing duties
4. Rights are social duties
5. Awareness of duty is more important than rights

Fundamental Duties and their importance –

On the recommendation of Dr. Swarn Singh Committee the 42 nd Amendment Act of the Constitution has added
Article 51-A to the Constitution of India which prescribed eleven duties of every citizen of India. Such provisions do
not occur in the Constitutions of the Free World Countries, but our law- makers in enacting them were inspired by
provisions for fundamental duties in the Constitutions of many socialist countries, e.g., Yugoslavia. But the
fundamental duties in the Indian Constitution are taken from the former U.S.S.R.’s Constitution. The provisions of
the duties aim at citizens duty to abide by the Constitution, and his role in the defence, good social relations
development, general national uplift and social solidarity. The fundamental duties are intended to serve as a
constant specifically conferred on him certain Fundamental Rights equally, the citizen also is required to observe
certain basic norms of democratic behavior. While the Constitution confers certain Fundamental Rights on the
citizens it also gives power to State to impose reasonable restrictions on these rights. The rights guaranteed by the
Constitution are available to the citizens only when they fulfil their duties. This is implicit in the provisions of our
Constitution.

Fundamental Duties (Article 51-A) – It shall be the duty of every citizen of India-

a. To abide by the Constitution and respect its ideals and institutions, the National Anthem;
b. To cherish and follow the noble ideals which inspired our national struggle for freedom;
c. To uphold and protect the sovereignty, unity and integrity of India;
d. To defend the country and render national service when called upon to do so;
e. To promote harmony and spirit of common brotherhood amongst all the people of India transcending religious,
linguistic and regional or section diversities; to renounce practices derogatory to the dignity of women;
f. To value and preserve the right heritage four composite culture;
g. To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have
compassion for living creatures;
h. To develop the scientific temper humanism and the spirit of equity and reform;
i. To safeguard public property and adjure violence;
j. To strive towards excellence in all spheres of individuals and collective activity, so that the nation constantly
rises to higher levels of endeavour and achievement ;
k. Who are parent or guardian to provide opportunities for education to his child or, as the case may be, ward
between the age of six and fourteen years.” (Added by the 86 th (Constitutional) Amendment Act, 2002).

Implementation of Fundamental Duties- Like Fundamental Rights, Fundamental Duties are not
enforceable by a writ of the Court.

In AIIMS Students Union v. AIIMS, AIR 2001 SC 3262, the Supreme Court declared, “Fundamental duties though not
enforceable by a writ of the Court, yet provide a valuable guide a valuable aid to interpretation of the constitutional
and legal issues. In case of doubt or choice of people’s wish as manifested through Article 51-A, it can serve as a
guide not only for resolving the issues but also for constructing or moulding the relief to be given by the Courts,
constitutional enactment of fundamental duties, if it has to have any meaning, must be used by the Courts as a tool
to tap, even a taboo, on State action drifting away from constitutional values.”

Constitutional Remedies
Abstract declarations of fundamental rights in the Constitution are useless, unless there is the means to make them
effective. Constitutional experience in all countries shows that the reality of the existence of such rights is tested
only in the Courts. The power of the Courts to enforce obedience to the fundamental rights, again, depends not only
upon the impartiality and independence of the Judiciary, but also upon the effectiveness of the instruments
available to it to compel such obedience against the Executive or any other authority.

Special Features of the Jurisdiction of the Supreme Court under Art. 32

Though a fundamental right may be enforced by other proceedings, such as a declaratory suit under the ordinary
law or an application under Art. 226 or by way of defense to legal proceedings brought against an individual, a
proceeding under Art. 32 is described by the Constitution as a ‘constitutional remedy’ for the enforcement of the
Fundamental Right included in Part III and the right to bring such proceeding before the Supreme Court is itself a
fundamental right in Part III.

Prerogative Writs

The expression ‘prerogative writ’ is one of English common law which refers to the extraordinary writs granted by
the Sovereign, as fountain of Justice, on the ground of inadequacy of ordinary legal remedies. In course of time
these writs came to be issued by the high court of Justice as the agency through which the Sovereign exercised his
judicial power and these prerogative writ were issued as extraordinary remedies in cases where there was either no
remedy available under the ordinary law or the remedy available was inadequate. These writs are –

1. Habeas CorpusA WRIT OF Habeas corpus is in the nature of an order calling upon the person who has
detained to produce the latter before the court, in order to let the court know on what ground he has
been confined and to set him free if there is no legal justification for the imprisonment. The ‘habeas
corpus’ literally mean ‘to have a body’. By this writ, therefore, the court secures the body of a person
who has been imprisoned to be brought before itself to obtain knowledge of the reason why he has
been imprisoned and to set him free if there is no lawful justification for the imprisonment.
2. Mandamus-Mandamus literally means a command. It demands some activity on the part of the body
or person to whom it is addressed. In short, it commands the person to whom it is addressed to
perform some public or quasi-public legal duty which he has refused to perform and the performance
of which cannot be enforced by any other adequate legal remedy.
3. ProhibitionThewrit of prohibition is a writ issued by the Supreme court or a High Court to an inferior
court forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a
jurisdiction with which it is not legally vested. In other hands, the object of the writ is to compel
inferior courts to keep themselves within the limits of their jurisdiction.
4. Certiorariwhile prohibition is available at an earlier stage, certiorari is available at a later stage, on
similar grounds. The object of both is to secure that the jurisdiction of an inferior court or tribunal is
properly exercised and that is does not usurp the jurisdiction which it does not possess.
5. Quo Warranto– It is a proceeding whereby the court enquires into the legality of the claim which a
party asserts to a public office, and to oust him from its enjoyment if the claim be not well founded.