CONSTITUTIONAL LAW

What’s meant by constitution?

 It can be written or oral format.

 It can be rigid or flexible.
 Indian constitution is partly rigid and partly flexible.
 There is no universally accepted definition.
 What is constitution?
 Contemporary constitution – they describe the basic principles of the state, the structures
and processes of the government and the fundamental rights of the citizens in a higher law
that cannot be unilaterally
 Describes the territorial extent and limits of the state.
 The newer constitution they talk about the basic principles of the state and it will encompass
the structure of the government and the powers of the legislature, judiciary and executive.
 Constitution is a compilation of the fundamental set of legal and political rules:
1) Binding on everyone including the entire state including citizens and law-making
institutions.
2) They talk about how the institutions of government perform, political principles and
the rights of the citizens.
3) Based on the widespread public legitimacy. Working of the constitution is based on
public legitimacy.
4) Law is harder to change than ordinary laws (two thirds majority of vote)
5) Minimum provision in the constitution which it should meet the internationally
recognized criteria in terms of representation and human rights.it should be
universally acceptable. It should be democratic in nature.

FUNCTIONS OF CONSTITUTION:

 Declare and define the boundaries of the political community. (Part 1 and citizenship)
 Declare and define the nature and authority of political community. Whether it is
democratic, republic, socialist or secular. These are used to define the nature of political
community of the state. Specifies with whom the sovereignty of the state exists. (preamble)
(in India sovereignty lies with the people)
 It can express the identity and the values of national community. The idea of the
constitution is to exists for a long time. The constitution should envision the values.
(Fundamental duties and Directive principles)
 Declare and define the rights and duties of the citizens. (Fundamental rights and duties)
 Establish and regulate the political institutions of the community. (Like the election
commission, parliament etc.)
 Divide and share power between different layers of the government or sub-state
government. (Central and state)
 Declares the official religious identity of state and demarcate relationships between sacred
and secular authorities.
 Social, economic or development goals. (Part 4)

TWO CONSTITUTIONAL ARCHETYPES:

  Classic examples
 Procedural Constitution
1) Constitution basically encompasses only the procedures that are to be followed by
the organs of the state.
2) In other words, it is limited to prescribe the procedure that are to be followed.
3) They have got nothing to do with the goals of the state should be achieved.
4) It just talks about how the state should run.
5) Does not lay any emphasis.
6) For the redressal of grievances there should be a procedure to be followed.
7) Canadian constitution is an example of procedural constitution.
 Prescriptive Constitution
1) It prescribes what the state has to achieve.
2) It prescribes the goals that the society has to achieve.
3) It talks about vision.
 Pre constitutional text also talk about vision of the state.

WHAT DOES A CONSTITUTION TYPICALLY CONTAIN?

 Divisions
 Arrangement
1) Preamble
2) Preliminaries: describes the state
3) Fundamental Rights
4) Social economic (only few specific constitutions)
5) Organs of the State – legislature, executive and judiciary
6) Temporary constitutional provisions
7) Independent institutions
8) Amendment procedure of the constitution

CONSTITUTION, CONSTITUTIONAL LAW AND CONSTITUTIONALISM:

 Constitutionalism is present is US. It is a general concept.

 Constitution is the supreme law of land.
 There is a transition from police state to welfare state.
 Police state looks into maintenance of internal law and order, protection of the state against
external aggression, generation of revenue. It performs limited functions.
 Establishment of the agencies of the state.
 Relationship between legislature, executive and judiciary.
 Relationship between the state and the citizens. Up bridging the (fundamental rights) of the
citizens.
 Existence of instrumentalities.
 Independent Judiciary. If the judiciary is not independent it ends up aligning with the
executive. For the proper democracy to exist and protect the fundamental rights of citizens
it is important for the judiciary to be independent. The judiciary sees to it that the functions
the legislature exercise its functions within the controverse of the constitution. The same
with executive. Power of scrutiny. Judiciary is exercising the power of judicial review over
 the laws made by the legislature and the executive actions are in the conformity of the
constitution.
 Constitutional law includes constitution. Relevant statutory law, judicial decisions and
conventions.
 Judicial decisions because of these judicial decisions we understand how constitutional
provisions are interpreted.
 Significance of conventions it will be followed for a particular period of time without any
hinderances. These are the non-legal norms. For implementing the conventions there is no
remedy which lies in the court of law. Unwritten constitution’s carries much more
conventions compared to written.
 There are few conventions followed by the Indian Constitution. Appointment of chief justice
of India etc.
 Constitutionalism it’s basic idea powers of the government should be limited in nature. Its
present in UK.
 The constitution will never use the word restrictions on the power of government.
 If there are restrictions on the three organs of the government then it means that in some
way the powers of the government are related.
 Judicial review it is exercised by the judiciary. The both the organs are exercising within the
limit. The judiciary will scrutinize the power.
 Law making power of the legislature have been given in the constitution. Extent of law-
making power of parliament and state legislature is mentioned in the provision. 7 th schedule
which talks about the three lists. Union list (parliament), state list (state legislature) and
concurrent list.
 The lists are bifurcated. That there is the restriction on the power of law-making.
 The 7th schedule was there from the starting. The lists have been made exhaustively.
 The subject matter is mentioned in the lists.
 Residuary power it’s the power which is vested with the parliament.
 There is a limitation in the power.
 Central biased.
 Vertical distribution of powers also has limitation of powers.
 Federalism
 Separation of powers that one organ is going to function that is given to it.
 Rule of law
 Decentralization of powers
 Distribution of powers
 Fundamental rights they impose the obligation on the state. These rights are to be assured
by the government to the citizens. It is a restriction on the powers of the government.
 These are the indicators on the limitation of powers.

THEORY OF SEPERATION OF POWERS:

 The separation of power is based on the concept of trias politica. This principle visualizes a
tripartite system where the powers are delegated and distributed among three organs
outlining their jurisdiction each.
 Why Montesquieu? powers must be separated among the organs of the government. The
concept of distribution of powers have come across Aristotle. He has explained it in his book
“The spirit of the Laws” (1748).
  For a free democracy to function and flourish we can keep a check on the concentration of
power.
 The powers are to be exercised between legislature, executive and judiciary.
 Each and every organ should be independent of each other. (1) it’s there in Indian form of
government.
 When one organ is exercising its functions, it should exercise in such a way it avoids
interference with other organs functions. (2)
 Member of one organ of the government should not be the member of the other organ of
the government. (3)
 To protect the liberties of people there should be separation of power.
 These two functions are applicable rigidly is both USA and India.
 There are two types functional separation (2) and personnel separation (3).
 Personnel separation it is to the parliamentary form of government.
 USA there is presidential form of government. Influenced by Montesquieu form of
separation. Functional separation is mentioned. Even personnel separation of power is
possible.
 Parliamentary form of government is the corporation between the organs of the
government. To an extent the functional separation is possible. Personnel separation is not
possible. Because executive is a part and parcel of the legislature. It is not possible in Indian
context. Legislature exercise judicial functions i.e., impeachment and when it punishes the
members for the breach of parliamentary privileges even laymen and members. Executive
also performs the law-making functions like promulgate ordinances, Judiciary exercising
legislature functions are absence of law.
 India has a parliamentary form of government that is the reason why we don’t have
personnel function.
 Parliamentary works on corporation and coordination.
 There has to be some permeable functions between executive and legislature.
 We see a personnel overlap.
 Judiciary remains independent in both forms of government let it be presidential or
parliamentary.
 Advocate on record is the who is practising in the supreme court.
 It’s not in rigidity under Indian content (separation of power)
 Indira Nehru Gandhi v. Raj Narain
 …. That in the Indian Constitution, there is separation of powers in a broad sense only. A
rigid separation of powers as under the American Constitution or under the Australian
Constitution does not apply to India.
 Ram Jawaya Kapur v. State of Punjab
 The Court held that though the doctrine of separation of powers is not expressly mentioned
in the Constitution it stands to be violated when the functions of one organ of Government
are performed by another.
 This means the Indian Constitution had not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of different parts or branches of the
Government have been sufficiently differentiated and consequently, it can very well be said
that our constitution does not contemplate assumption, by one organ or part of the state, of
functions that essentially belongs to another.

CHECKES AND BALANCES:

  Checks and balances, principle of government under which separate branches are
empowered to prevent actions by other branches and are induced to share power. Checks
and balances are applied primarily in constitutional governments.
 One organ checks the other organ and balances other organs.
 It is the facet of separation of powers.
 Appointment of the judges is to be done by the executive and removing is given to the
legislature.

RULE OF LAW:

 There should be a government governed by law.

 It falls under the ambit of article 14 of Indian constitution.
 Basic principle of British constitution.
 A.V.Dicey was an English jurist.
 It is one of the basic principles of the British constitution. The unwritten and the uncodified
British constitution is based on the concept of rule of law.
 It is originated from French phrase “La –Principe-de-Ligalite” which means Government
based on principals of law.
 It has evolved from UK.
 Sir Edward Coke is instrumental is talking about the concept of rule of law. When he was
deciding the case of Prohibition, he ended up having a tussle with the king (James the 1 st).
He tried to establish in the case of prohibitions that there should be supremacy of law
which is the main essence of Rule of law. The law should be supreme and the king should
be below the law. The king should be subject to law. Sir Edward Coke was the Chief Justice.
 The doctrine of rule of law is ascribed to Dicey whose writing in 1885 on the British
Constitution included Absence of arbitrary power, equality before law and individual
liberties are the three distinct through which Dicey kindred ideas in Rule of law. These are
the postulates of law.
 Rule of law has come up as a theory because A.V.Dicey has done a constant comparison with
France. He compared the French legal system which was in existence in France. He
constantly compared the political situation in UK with that of France. He tried to ascertain
the legal system in England and how England is much better placed than France because
they have evolved a different legal system for themselves. Droit Administratiff is the French
admirative evolved themselves and it as compared while the theory of Rule of law.
 Supremacy of law: no man should be above law. Each and every person should be subject
and below the law.
 Unless and until the authority is in question is observing the law to it seen we cannot
establish the supremacy of law.
 No man should be punished except for a distinct breach of law established is an ordinary
legal manner in an ordinary court. If at all a government want to punish an individual
because of which an individual will be put to a loss of its personal liberty or loss of property
in any manner the authority should be able to establish that there is a distinct breach of law.
 Simply having a distinct breach of law is not sufficient to punish an individual that distinct
breach should be established by the court.
 Liberty and property are the two main attributes.
 There shouldn’t any room left for the government to act according to its own fiat.
 Wherever there is discretion there is room for arbitrariness.
 Discretion: if the government authorities are given freedom to make a choice to make a
decision there is every likelihood that it will exercise its fiat that’s devoid. that’s discretion
with arbitrariness.
 Predominance of regular law. A special treatment is not required as supposed to
arbitrariness.
 Government should function in accordance to law.
 Supremacy of law happens when the government will abide law.
 Equality before law: every man, whatever his rank or condition, is subject to the ordinary
law and jurisdiction of the ordinary courts. No man is above law.
 Each and every person should be subject to ordinary law.
 A.V.Dicey wrote the rule of law keeping in mind position in England and comparing it with
French legal system.
 Each and every person should be equally subjected to law.
 There should be no special treatment to the government officials.
 French legal system has different quotes for government officials and laymen that is the
reason he mentioned about equality before law.
 Individual liberties/ predominance of legal spirit: the general principles of the British
constitution and especially the liberties of the individual, are judge-made, i.e., these are the
result of judicial decisions determining the rights of private persons in particular cases
brought before the courts time to time.
 It means about the rights enjoyed by the people.
 General principles of the English constitution are made by the judges.
 People are getting their liberties because they are decided by the courts by the cases and
keep establishing the rights.
 In many countries the liberties are given to us are included in the written constitution.
 Individual liberties are the part and parcel of the constitution because they are upheld by
the court.
 British constitutional laws are not because they are included in the constitution but because
of the judge which are decided by the cases.
 Rights of the individual will be better protecting in the unwritten constitution than the
written constitution because the rights in the written constitution the fundamental rights
can be made a part but does that guarantee that we can enjoy those rights? If a right is
included in the written constitution, we could see that the same right would be refused by
the judicial body.
 ADM Jabalpur v. Shivkant Shukla justice A.N Ray
 This case was revolved when emergency was imposed.
 Petition which was put forth in Allahabad high court. (3 rd)
 According to the representation of people’s act it says how can a person be disqualified from
elections.
 Post keshavnanda Bharathi case. The parliament did not have unrestricted power to amend
the powers by the parliament.
 A.N. Ray was the chief justice from post keshavananda Bharathi till ADM Jabalpur.
 Article 352 talks about 3 grounds on the basis of which national emergency can be imposed
is war,
 Supreme court will always have a division bench and minimum number of the bench is 2.
 Supreme court decided constitutional bench consisting of 5 judges for the case.
 The seniority will constitute the constitution bench.
  RAY, A.N. (CJ)
 KHANNA, HANS RAJ
 BEG, M. HAMEEDULLAH
 CHANDRACHUD, Y.V.
 BHAGWATI, P.N.
 Right to life and personal liberty
 Incorporation of personal liberty in a written constitution

JUDICIAL REVIEW:

 It’s not an Indian origin. It has originated from the American Supreme Court.
 The judiciary sees to it that the functions the legislature exercise its functions within the
controverse of the constitution. The same with executive. Power of scrutiny. Judiciary is
exercising the power of judicial review over the laws made by the legislature and the
executive actions are in the conformity of the constitution.
 There are five types of writs: Habeas Corpus, Mandamus, Certiorari, Quo Warranto and
Prohibition.
 In India, the constitution has provided the Supreme Court with the power to issue the Writ
under Article 32 of the Constitution.
 The power to issue Writs are also provided to the High Courts of India under Article 226.
 Marbury v. Madison (secretary of the state)
 Judge was Jhon Marshall
 John Adams contested for the re-election to Thomas Jeferson.
 John Adams’s secretary of state Marshall
 Thomas’s secretary of state was Madison
 Even after Jhon Adams defeat he appointed 42 justices of peace and 16 circuit judges he
does before demitting the office. They were nominated and approved by the senate. John
Marshall had to deliver all the commissions in a single day.
 Because Marshall was unable to deliver all the commissions one of them was Marbury.
 Thomas Jeferson stated that the remaining commissions as void. He said Madison not to
deliver the rest commissions.
 He files a case in Supreme court of the US.
 John was from federalists
 Thomas was democratic
 1803,
 Original jurisdiction 131 article of the constitution. Types of disputes are mentioned in the
constitution.
 Appellate Jurisdiction the power of a court to hear appeal from the lower courts.
 Writ jurisdiction A Writ means an order i.e., anything that is issued under an authority is
known as a writ. The Constitution of India empowers the Supreme Court and the High
Courts to issue Writs for the enforcement of the fundamental rights conferred by the Part-III
of the Indian Constitution under Article 32 and Article 226. Integrated jurisdiction because
there is only one supreme court at the apex level. USA there is disintegrated Judiciary
because the states in USA enjoy autonomy. The state will have their own constitution. There
is a federal constitution. The states were independent earlier. The states have their own
judiciary. There is a different type of hierarchy in the state.
 Chief justice john Marshall gets the credit for introducing judicial review.
 Article 13, 32, 136, 226, 227
 Article 13 it is one of the sources of power of judicial review. If the fundamental rights under
the constitution have to be protected then judiciary review has to have a connection. It says
that the laws made by the parliament should not infringe/ up bridges the fundamental
rights if it does it becomes unconstitutional.
 32 and 226 talks about authority of issuing writs. Habeas corpus is granted when right to life
and liberty is being infringed.
 Judicial review can also be exercised to keep a particular organ in its concise. It should not go
in the contrary of the constitution.
 Justice Khanna is kesavananda Bharati case the question was regarding constitutional
amendment. Basic structure of doctrine is not mentioned in the constitution but it’s given
under the judiciary. The power of the government to scrutinize the constitutional
amendment. A regular law made by the parliament should be used in such a manner that it
won’t up bridge the fundamental rights (1). When the parliament amends the constitution, it
uses the constituent power to amend the constitution. (2). Judiciary while exercising the
power of judicial review can strike down the constitutional amendment. If it goes beyond its
power judiciary will stuck it down. Judicial review is the basic feature of the constitution
which can be never taken away by the parliament. It is the important working aspect. From
the provisions of the constitution judiciary says judicial review is part and parcel of basic
principles. It needs a holistic appreciation.
 Justice Chandrachud and Justice Bhagwati view in Minerva Mills: Chandrachud said that
judicial wing has to test the validation of legislature. Judiciary reiterated that it’s the basic
structure of the constitution.
 Indira Gandhi v. Raj Narian – 39th CA enacted on 10th August, 1975: when it was pending in
the supreme court, she proclaimed the national emergency. It led to ADM Jabalpur. She
gathered that SC is not with her gradually. 39 th CA was passed to protect the office of prime
minister. The amendment said that the election to the office of President, VP, PM and
speaker of LS cannot be challenged before any court of law. It also said if at all the election
to these have to be challenged it can be done in the forum established by a law made by the
parliament. The decision given by the court before that won’t have no significance it will be
null and void. Power of the court to decide on these disputes have being taken away and
given only to the judiciary to decide in a judicious manner. The court strikes down the
amendment on the basis of the basic structure of the doctrine. The power of judicial review
cannot be taken away by the parliament and struck down the amendment.
 Shreya Singhal v. Union of India is a judgement by a two-judge bench of the Supreme Court
of India in 2015, on the issue of online speech and intermediary liability in India. The
Supreme Court struck down Section 66A of the Information Technology Act, 2000, relating to
restrictions on online speech, as unconstitutional on grounds of violating the freedom of
speech guaranteed under Article 19(1)(a) of the Constitution of India. The Court further held
that the Section was not saved by virtue of being a 'reasonable restriction' on the freedom of
speech under Article 19(2).
 Navtej Singh Johar v. UOI: section 377 of IPC
 Joseph Shine v. UOI
 Sharaya Bano v. UOI
Salient features of the Constitution

 features which are clearly identifiable.

 Modern constitution: it has come into existence at a later point of time. It comes into the
category of contemporary constitution. The content incorporated in the constitution. It is a
heavily borrowed constitution. The CA were also aware that it was borrowed. It was debated
by B.R. Ambedkar. The essential features that are to be incorporated in the constitution are
going to remain similar across the country. Likewise, identifiable fundamental rights given by
the country to their citizens are going to remain the same. Bill of rights from US,
Parliamentary from UK, centre state relationship from Canada, DPSP Irish constitution. We
didn’t adopt them blindly. We did incorporate certain changes. We adapted them to suit our
conditions. To suit our unique needs. The modernity can be understood in terms of time
and in terms of content.
 Written constitution: British constitution is an uncodified constitution. American constitution
is the smallest and our constitution is the lengthiest constitution. The collective
responsibility is not conventions of our government. Rigidity and flexibility. If a constitution
is written the manner in which the constitution has to be amended. So, it ends up being
rigid. IC is partly rigid and partly flexible because the amendment of the constitution. We
have diluted.
 Preamble: re berubari case the SC said that preamble is not a part of the constitution.
Preamble was not constant because there are certain words which were added later. Like
integrity, socialist and secular. Preamble by encompassing the basic ideas of the
constitution. It is essential to help us understand the provisions of the constitution. In
kesavananda bharti case the court corrected it again that the preamble is a part of the
constitution.
 Socialist state: constitution was socialist since the beginning. It was added through the 42 nd
amendment. It is present in FR of article 14 and 16. We have a diluted form which were
suitable to the Indian conditions. The resources of the state should be kept in the control of
the state. If state is in charge of material resources the state will distribute them equally. We
talk about the private sector and the public sector. We talk about mixed economy. We did
open the gates for private enterprises. They will deal with the distribution. We have DPSP.
Concepts like equal pay for equal work. We will bridge the gap between the status. To
reduce the disparities on the income. We try to achieve equilibrium and bring them to the
same pedestal. We are trying to strike a balance. That’s how we have incorporated by the
concept of socialist state.
 Welfare state: the provisions are made in such a manner that we understand the welfare
ideology of the state. Each and every state looking after its citizens and mould its policies in
such a manner for the betterment of the people. Now state thinks that giving basic
education for free. How to ease the life of people. Right to education has been elevated in
such a level that it has become a part of our fundamental rights.
 Secular state: equality of all religions and no discrimination. Article 25 and 14. Secular
philosophy is there in India. There is no state religion which the state identifies itself for it.
Secular features have already incorporated in the constitution.
 Responsible government: we have adopted a parliamentary form of government. West
minster form of government. We had an idea how a parliamentary form of government
functions and dissimilarities with the presidential form of government. Because of the
features of a parliamentary form of government is much more responsible than compared
with presidential form of government. It is a periodic responsibility (presidential). USA have
 presidential form of government. The government cannot be changed the way it can be
done in parliamentary form of government. We have both periodic and owes daily
responsibility. The executive is responsible to the legislature. We identify this as an
important feature.
 Fundamental rights: part 3 is influenced by the Bill of Rights from USA. Freedom of speech
and expression where press is also a part of it. We have privileges and immunities. For the
protection of fundamental rights, we have to bring remedial mechanism. It should be made
available to each and every person if FR are infringed. Article 32 is very much a part and
parcel of a FR. Robust system have been incorporated in the Indian Constitution to protect
FR. Conspicuous feature.
 Minorities and Backward classes: the reason for making certain provisions is because of the
multiple religions and cultures which are in existence. The majority of the population would
have the capacity to dominate the minorities. Rather than saying treat every person equally
is not going to be sufficient we have certain provisions and additional advantages for
protection and promote their cultural identity.
 Elections: communal electorates are something which can’t be continued and the effect was
to segregate different communal groups. UAF was taken as a bold step. UAF was given to
each and every person above 18 years. Electorate which we had was of such a huge number.
Election commission is an independent body. It is kept away from the executive. Free and
fair elections were added.
 Federal constitution and Judiciary: the constitution that establishes two tiers of government.
73rd and 74th amendment which added the third tier. Federal constitution needs minimum
two tier government. Unlike regular federation in Indian constitution centre is biased
compared to the state. Demarcation of powers happens on three plates. 1 st when talking
about legislative power. Law making power of parliament and state legislature. Apart from
legislative distribution of power we have 2nd administrative and 3rd financial distribution of
power. It is said that judiciary has to be absolutely independent. Judiciary will be the only
organ which will have to look whether the state and centre which decides on the disputes
between the tiers of government. If judiciary is not independent then the judiciary can give
decisions in favour of centre and state will lose the autonomy. Collegium system is not the
salient feature. The salient feature is the protection of independence.

PREAMBLE:

 Nani Palkhivala: permeable can be compared with an identity card possessed by an

individual.
 Preamble is window to the provision to the IC.
 By reading preamble the features can be understood easily.
 We the people: it starts with the phrase “we the people”. We had valued independence and
started drafting our own constitution. It places the emphasis of “we the people”. It is we
who are exercising the indigenous choice, our freedom which we are talking about. It is not
something which is gifted to us. It is our choice and we drafted the constitution. To be
absolutely free from any other foreign authority. All the government of India Act were made
by the Britishers.
 These five words describe the nature of Indian polity.
 Sovereign: it has an impact on the way in which we have gained independence. From the
moment preamble and constitution, we have gained we say that we are free. Sovereign
means 1st internal, 2nd external and 3rd political. External means that proclamation that we
make absolutely free from the external force. India as an independent country is absolutely
 free to make independent choices. We will decide the relations ourselves. Internal means
independence of freedom within the country with respect to the choices. For examples what
laws should be made for the people within the country, policy decisions required for the
smooth governance of the country. Internal it talks about within the country and external
are in contrast. Political means Sovereignty is based in the people. We are free to decide
how the government of the country will be functioning. Sovereignty cannot be kept
scattered. It should be institutionalised and give it to our representatives. We are
transferring our authority in those elected few who will help in the governance of the
country.
 Socialist: we have a mixed economy. We are trying to bridge the gaps between the have and
have nots. Bridging the gaps between income.
 Secular: article 25, 14, 15 are always present inside the constitution. Secular nature was also
present in the constitution. We amended the preamble and added the word secular. Our
philosophy is equally secular. Secularism that we follow is different from western secularism.
In the West, the State is separate from the functioning of all religious institution and
groups. Secularism in India means that the state is neutral to all religious groups but not
necessarily separate. The state believes in total non-interference of religion. Western
secularism has evolved from the separation of the church and the state. State is not
concerned about the religion. In India we don’t separate state and religion. “dhram” state
doesn’t align itself without a particular religion. It’s a restriction on the state stopping it from
aligning itself with a particular religion. It has a negative. “sarv dharm samabhav” it’s a
positive duty that has being put on state. We expected the Indian state to treat each and
every religion equally. The state is involved in the religion. The state can promote certain
secular activities. It can help a particular religion it will have to ensure equality. We are not
aiming the state to be irreligious we say that our state should recognize each and every
religion.
 Democratic: Abraham Lincoln: for the people, of the people and by the people. We are
talking about people’s centric, representative who is forming the government. Political,
social and democratic nature of governance. These three heads make up the Indian
manifestation of democratic model. Political democracy when the electorate goes to vote
through UAF we are voting to a political party to be the authority in power wherein we play
a certain role in political process in helping the government to form. Social democracy
means we as a society possess certain rights and raise our voices when something goes
unconstitutional. Freedom of speech and expression is just not the pole along with this the
right to form association and assembly so that we can mobilize the people when something
goes against us. When government acts detriment of the people. Rights are guaranteed to
us by our constitution. Democratic model of governance. We want the government equally
democratic. This can be achieved by having transparent government, accountability and
making the government participate. Transparent means the working of government should
be transparent. We should be able to know what is happening in the regular working of
government. There is a development when transparency is present. Transparency is a norm
and secrecy are an exception. Now because of RTI things become easier. Once there is
transparency automatically accountability will be present. They are interconnected. Judiciary
hold executive and legislative accountability. When the Legislature ends up drafting the
constitution on the grounds of unconstitutionality the legislative can hold the legislative
accountable. Opposition gets the rights to question executive. When we have opted a
democratic format of government the maximum participation of the people is needed.
Participative democracy when we go to vote we are exercising our participation in the
 governance. When it comes to bills can be introduced in the state legislature like the
parliament gets. Any person can introduce from either of the houses. Most of the bills
usually are being done by the executive i.e., the members of the cabinet. The minister in
charge of the ministry puts up the bill. Discussion of the bill is going to be confined. People
can see the bill on the public domain where the participation of the people in the process of
governance.
 Republic: monarch is when the authority to rule a particular country is passed on through
hereditary. Republic is never passed on but the president is appointed through election
which are indirect. It’s done by the electoral college. The head of the state is not being
belonged to a particular royal family be it by direct or indirect elections. The below words
describe the values which the constitution want to inculcate. The provisions are made in
such a manner that justice, liberty, equality and fraternity are sought to be achieved. There
is no set parameter. We aim at higher standards that the government take the initiatives in
such a manner to accomplish these values.
 Justice:
 Liberty: Liberty is a particular zone where the law does not seek to interfere. There are going
to be some reasonable restrictions which are given under the constitution. They are part and
parcel of the constitution. If a law is to be made by trying to control our freedom of speech
and expression, they have to give a reasonable restriction given under the constitution. Law
has to confine itself. Shreya Singhal v. UOI. They are not absolute.
 Equality:
 Fraternity: fraternity is followed by the word unity. Fraternity means to inculcate the sense
of brotherhood. If it is inculcated, we achieve the unity of the nation.
 Dignity of individual: nation came after dignity of individual. We as individual have achieved
a decent place. Then the life of the nation has been talked about. In the recent times we
have tried to understand the concept of dignity of individual. The human existence is not to
be treated as animal existence neither vegetable existence. Rather a human existence to live
or to die. Aruna Shanbaug case. Living will: a written statement detailing a person's desires
regarding future medical treatment in circumstances in which they are no longer able to
express informed consent, especially an advance directive. Common cause (a registered
society v. Union of India) “The judgment has paved the way for the terminally ill patients to
seek death through the passive euthanasia under a "living will". NALSA v. UOI decision by
the Supreme Court of India, which declared transgender people the 'third gender', affirmed
that the fundamental rights granted under the Constitution of India will be equally
applicable to them, and gave them the right to self-identification of their gender
as male, female or third gender.
 26th January 1950: came into force
 26th November 1949: adoption of constitution.
 Ambedkar gave a warning to amend the constitution. However good a constitution maybe it
will turn out to be bad if there is bad who is operating the government and vice versa.

Article 12: (State)

Why understand the meaning of the word “State”?

 Article 12 talks about the definition of state.

 Fundamental rights cannot be infringed because if they are infringed the action be it by the
legislature or be it by the executive which infringes the Fundamental rights is this action will
be struck by the judiciary by exercising its power by judicial review.
 The legislature and the executive are part of the state because they are the part of organs of
the state.
 The legislature in its actions should not up bridge the fundamental rights and the executive
in its action should not up bridge the action of fundamental rights i.e., the state should not
up bridge the fundamental rights.
 If the state by any of its organs if it up bridges the fundamental rights the action of the state
will be struck down by judiciary. So, therefore, the word state has been used across Article
13 as well. The word state has been used in Article 14 as well.
 We are in contemporary time which means we are talking about a welfare state that has
being adopted by all the independent sovereign around the world.
 Apart from these two organs the word state there could be other organs which fall under
the word state. we need to interpret the word state little more liberally.
 If a liberal meaning is given to the word state and try to bring in more and more bodies
within the definition of state, if we do not try to limit ourselves to just executive and the
legislature what will happen is that we will try to bring more bodies within the discipline
of fundamental rights.
 Those bodies also which might be the part and parcel of the state those will also have to
work keeping in mind that their actions will not infringe the fundamental rights.
 The text of the constitution is constant with respect to Article 12 and it has not undergone
any change but the interpretation of the word state has undergone change.
 No longer the state is called the police state. so, the earlier limited functions are not
performed by the state today. Each and every state adopted social welfare state. Earlier
because of the limited functions performed by the state i.e., why the well-being of the
people was not bothered by the state. Minimum intervention was made in the lives of
people by the state. but when the same state adopted the concept of welfare state its not
the people who ask the state to do certain things for the individuals it’s the state on its
own doing certain things for people. It is trying to look after the welfare of the people and
that is the philosophy of the welfare state.
 State is the common denominator. Education and providing the education are
interconnected with making the people employable so that the jobs can be generated by the
state. State ensures to provide minimum elementary education. Free elementary education
is provided by the state, not only elementary education but also by establishing public
universities the state also ensures of providing needs for getting higher education.
 When the state is trying to look out for the well-being of a larger section of society it might
so happen that it ends up infringing rights of some individuals while looking out for the
interest of the greater public. For looking at the betterment of the society as a whole the
state might end up encroaching at the rights of a fewer individuals. Those rights of the fewer
individuals have to be sacrificed for the greater good.
 State might designate few areas as Economic Special Zones. The states do that because
precisely to bring upon development which can be economic or industrial. The state will
ensure that the people of that region are employed. They raise the standard of living
eventually which will happen if the job opportunities are provided.
 The state reserves the authority to compulsorily acquire the lands for these purposes. Land
acquisition act where the state gets an authority to compulsorily acquire the land. Even if
the people are possessing the land in some way or the other because the state will not own
 huge portions of land. That is the reason why acquiring the land arises. For larger good the
state might seek to acquire the land owned by the private ownership of individuals.
 For the larger good the state possesses to acquire the individual property that is vested
with an individual. The state provides fair compensation according to the market price.
 If the state acts arbitrarily and is infringing on the fundamental rights of an individual, the
individual can sue for the mistake done.
 State is an abstract entity. So, therefore, we will have some people in flesh and blood, some
citizens who will be working for the state.
 State can say to be performing its functions through these individuals who are a part and
parcel of the government departments. The state exercises its functions through these
government department.
 Because of the multiple functions the state performs the cliched government departments
usually set up by the government at times might not be sufficient to perform different
functions. So, it is said that the state has to come up with certain bodies whom they have to
pass on this particular function. The necessity of out sourcing arises. State might ask those
bodies to perform those activities which the state is unable to perform.

What is the relation between state and fundamental rights?

 Most of the fundamental rights can be claimed against the state.

 Right to equality cannot be claimed against any other private individual.
 We ask for our protection of fundamental rights from the supreme court against the state.

Article 13(2)

 Article 13(2): The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the extent
of the contravention, be void.
 Article 13 is the source of the power of judicial review.
 Article 13 imposes an obligation on the state not to take away the fundamental rights of the
citizens.
 It the state infringes the fundamental rights then the court will strike down such an action
the state. Be it in the form of law made by the legislature it will be struck down. Be it in the
form of executive action take by the executive it will still be struck down.

Article 12:

 In this part, unless the context otherwise requires, "the State" includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of the
Government of India.
 The term “state” includes
 The government and parliament of India
 The government and the legislature of a state;
 All local authorities; and
 Other authorities within the territory of India, or under the control of the central
government.
 There are different types of definition.
 This type of definition is called as an inclusive definition. It’s an open-ended definition. There
could be other things can be added to the definition.
  Yes, the word state can have a liberal definition.
 We do not have abstract states. We have identifiable states.
 Each and every state have a legislature but every state may not have a council.
 The way bicameralism is practiced at centre it may not be practised at states.
 The corporations, the development trusts If there are any. These are constituted at the
lower level to constitute the city. These are named as local authorities.
 These are easily identifiable above the word other authorities.
 The only problem which arises when the word “state” is interpreted is the meaning of “other
authorities”.
 because what have to come ‘within the territory of India’ is not mentioned. Other
authorities are not defined anywhere in the constitution.
 When we talk about liberal interpretation we are talking about other authorities. If More
and more authorities are brought in the meaning of other authorities, we will ensure those
authorities should also be made subject to fundamental rights. Those independent bodies
also are made in such a manner that they do not infringe the fundamental rights. “the
broader the interpretation of other authorities the broader the interpretation of the
fundamental rights”.

Other authorities:

 State: government departments and autonomous bodies

 Certain functions will still be possible for the state to exercise through its government
department. For some crucial powers for which we have established government
department those functions can still be continued to be exercised by the government
department. Because of the manifold functions that the state performs it might not be
possible for the same department to exercise each and everything.
 The particular government department can be treated as the legal entity or juristic entity. At
the same time, we can have natural individuals who are forming a part and parcel of the
government department. If at all some functions is being functioned by a government
department and such action of the government department infringes the fundamental rights
of the individual.
 Autonomous bodies:
 Statutory body (established under a statute): if it established under the law made
by the parliament such a body will owe its existence to the law that has being made
by the parliament. It can also be established by a law made by the state legislature.
This body is established through a law-making body only.
 Non statutory body (body registered under a general law like Companies Act,
Societies registration Act): it has been formed by some people coming together and
they want to give a legal recognition to that body. The people will register under an
act to form a body or under any law.
 The state will outsource the functions to these bodies.
 They are the independent bodies.
 Societies registration act is there for the state also.
 If they want to get registered under the state level, they will register themselves under the
state registration act.
 The state is capable of performing its functions through such type of bodies which are either
established under the statute or through some non-statutory bodies also.
 Damodar valley corporation it was established in the damodar valley which is shared by
Bengal and Bihar which is Jharkhand currently. Damodar river flows through this valley. The
 river is such that there will be frequent floods in that particular area resulting into damage of
lives and revenue. To stop this ravaging thing caused by the river. A committee was set up to
investigate and it was taught that the development of the damodar valley is brought about
that will ensure the people of the state will be benefited. The loss of human life will be
prevented. Thermal and hydro power stations have been established in the damodar
valley corporation.
 Court will try and look behind who is the driving force behind bodies.
 Obiter Dictum Latin for "something said in passing." A comment, suggestion, or observation
made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not
legally binding on other courts but may still be cited as persuasive authority in future
litigation.
 Ratio Decidendi Literally the "rationale for the decision". The essential elements of a
judgment which create binding precedent, and must therefore be followed by inferior
courts, unlike obiter dicta, which do not possess binding authority. Also known as ratio.
 Ratio decidendi of a judgment may be defined as the principles of law formulated by the
Judge for the purpose of deciding the problem before him whereas obiter dicta mean
observations made by the Judge, but are not essential for the decision reached.
 Most of the discussion on state people usually start from Supreme Court in the case
Rajasthan state electricity board vs. Mohanlal.
 How Supreme Court eventually corrected its mistake of the term “other authorities”
 University of Madras vs Shantha Bai : whether the university can be termed as other
authority and whether will it fall under the definition of state in madras High Court.
 1954 madras authority has got the right to decide the term other authority. High Court
applied certain principals of interpretation i.e., eiusdem generis to understand what is the
meaning of the word. They tried to look at the other three points which are included in the
word state. If the principle has to be applied, we have to identify common genus for the first
three points. The earlier 3 bodies are those bodies which are exercising governmental or
sovereign function. They said that university cannot be considered as other authorities. It
can be considered as other authorities if it is completely depending on the state for
financially assisted. But in this particular case was simply financially assistance of the state
but not completely dependent. University cannot be defined as a state.
 Application of eiusdem generis came into the question of Supreme Court by the case of
Ujjam Bai v. Sate of UP.
 Question was not regarding university. The other question was how would the word other
authorities interpreted. The decision given in madras High Court cannot be binding by the
Supreme Court. The Supreme Court rejected the view taken by the madras High Court. All
the bodies which are being mentioned under article 12 cannot be under the same body. We
are neither talking about two bodies talking about executive function and law-making body.
Local authorities are not mentioned under the constitution rather some of the local
authorities can be constituted under the law-making body of the state. Eiusdem generis
require all those which fall under one category. Other authority cannot be interpreted under
the other 3 bodies mentioned.
 Supreme Court decided it when another case came up Rajasthan State Electricity Board
general explanation of the word other authorities came. It’s a landmark decision. They
developed 2 kind of approaches. Legal and functional approach. In most of the cases what
is concerned is the ratio decidendi and obiter dictum. The law point will be binding on the
later cases. Rajasthan electricity board is a statutory body because it came to be constituted
under the electricity act. Some people were employed by electricity board. Question was
 raised on discrimination against similarly placed employees and abridgement of article 14
and article 16 was raised. Rajasthan violated their fundamental rights. It will be decided
when Rajasthan State Electricity Board is decided whether it is a state or not. other
authorities will include those bodies which owe their existence to constitution or to a
statute. Such kind of bodies on whom the power is conferred by law is considered as other
authorities. Statutory and constitutional can be termed as other authorities. If the body also
possess the authority to issue binding directions and binding rules and regulations which are
having the force of law can be considered as other authorities. They can face penal
consequences if not performed. Rajasthan State Electricity Board is not simply a public body
but also performs commercial functions. Any state electricity board for that matter. Payment
of money for the distribution of electricity is commercial. Such body is not working for the
benefit of the people. The argument was denied Because it is performing commercial
function it cannot be “state”. constitution under article 298 gives the power to the state to
enter into commercial transactions. Rajasthan State Electricity Board exactly fits into the
points pointed out by the SC and can be considered as other authorities under state.
 Legal approach how body has come into existence or how the body has originated.
Functional approach means manner in which it can exercise its power.
 Principal of interpretation is referred when they understand the ambiguity.
 Eiusdem generis means “of the same kind”. The generally used words are put in the light of
specific words. The general words will have to derive their meaning from the specific words.
There has to be a common genus.
 Legislature might talk about articles or bodies applicable. The foresight of legislature will not
be so much to include each and everything. Legislature keeps the points open ended to
understand.
 Sukhdev Singh vs. Bhagatram. There was some development. The court is also
experimenting. The courts outlook will also change. They tried to explain the term other
authorities in a deeper way. Supreme Court has come up with instrumentality or agency
Justice. Mathew. Rajasthan State Electricity Board was a statutory body. ONGC, LIC and IFC
these all corporations are established under a statute and corporations basically. Most of the
time government plays a considerable role. All the governments were interested in setting
up the corporations. The law under which they were made the law gave them the power to
make the rules and regulations. Rajasthan State Electricity Board the Supreme Court said we
need to pay attention to how the body came into existence. The statute also gives the power
to make rules and regulations. So, they were called as other authorities. We also need to
look into the extent of control being exercised by the government on the corporation. If
control is at a great extent, then it can be termed as other authorities. Instrumentality or
agency. The state is an abstract entity. It has to rely on legal person or juridical functions for
the state and on the behalf of the state. If the juridical functions through whom the state is
actually exercising the functions so, if that juridical function happens to perform the
functions of the state on behalf of the state because the state is unable to perform the
functions so instrumentality is stated here. Justice. Mathew gives us the concept of
instrumentality agency of the state can be said to be other authority.
 Ramana Dayaram Shetty v. International Airport Authority – it’s in the year 1979 by the
Supreme Court. They have elaborated in RD Shetty’s case. Sabajit Tiwari vs. by a different
bench. It is of importance because it’s an example for deciding other authority by Supreme
Court. The corporations are other authority. SC on the same day says CSIR is not the other
authority. It’s an erroneous decision. Because it was overruled. RD Shetty was also a five-
judge constitution bench decision. It happens to be landmark decision.
 International airport authority is a statutory body because it came into existence through a
statute. Director issues a public notice inviting a tender at large and publishes a notice if they
want to set up 2 snacks bar and second-class restaurant. The authority possesses a power to
specific eligibility conditions. The eligibility conditions were put in the public domain by the
director. RD Shetty didn’t apply for the tender due to the change and didn’t submit the
tender. Because he couldn’t participate, he challenged and files a writ petition before
Bombay High Court challenging the tender. The authority changed the conditions without
rational backing. The action is arbitrary and Fundamental Rights is violated. Bombay High
Court rejects the writ petition on the basis of locus standi. A person should have legal standi
in case he suffers any grievance. RD Shetty didn’t participate in the tender. If he would have
taken part in the tender, he could have taken stand on the ground of his harm. He
approaches Supreme Court. Whether international airport authority can be called as a state
or not? Supreme Court doesn’t grant any relief to RD Shetty because he is not the aggrieved
person. the Supreme Court does go to decide how international airport authority acted. In
pursuance of the tender being granted the second-class restaurant was running. The
Supreme Court didn’t take the cognizance of the fact. The Supreme Court does talk about
what is the manner the state has to behave with an individual. The court came to a decision
that the management of the airport is overseen by the state and state exercises power. After
considering all the international airport authority was considered as other authority.
Supreme Court says when we are talking about instrumentality this body cannot act
according to its will. When the state is acting as a provider at large the state has to behave in
a non-arbitrary manner. The whimsy capacity cannot be questioned of a private individual.
State has to ensure that its actions are absolutely rational. If the actions are devoid then
they can be challenged in the court of law. The decision that the state takes in multiple
situations the actions should be non-discriminatory. The Supreme Court did talk about
certain pointers. It was for the first time gives 5 pointer tests. 1st where the financial
assistance of the State is so much as to meet almost entire expenditure of the corporation.
If the financial assistance is provided by the state is large that it meets entire expenditure
of the body. We need to look at the financial assistance. 2nd Extent of State control over
Corporation, whether deep and pervasive. This control is to be understood whether the
control is over the management and policy decisions body. 3rd An unusual degree of
control over the management and policies. 4th whether the corporation enjoys monopoly
status which is State conferred or State protected 5th whether the operation of the
corporation is an important public function & closely related to govt. functions. we need to
find out whether the monopoly is conferred by the state or whether the monopoly is
protected by the state. these 5 points are not chronologically listed by the SC. The reason
being that Ajay Hasia have similar points. In Ajay Hasia case in which SC have so elaborately
discussed the work and the control, financial assistance. These points make RD Shetty case
important. Justice Bhagwati was a part of 5 bench judge in RD Shety and Ajay Hasia case. RD
Shetty case the court is simply not taking the look how the body came into existence it is
also trying to understand the control that is over the state. SC is also paying attention to the
functions that the body is having. It didn’t stick to legal and functional approach but partially
the legal approach and the functional approach of the RSEB case also finds a reflection by
the 5 points given by the SC in RD Shetty’s case. RD Shetty and LIC was dealing with statutory
body. The ratio is that, that the supreme court said state cannot work as a private
individual. The private individual can be directed by his own choices. The way a private
individual can exercise his own whims for a particular individual. That’s not a way the
state can work, because the state is doing so many activities it is giving out jobs, licences,
 tenders, grants to the people. So, when it is acting as a provider all the more there is a
necessity to act more responsible and without any discrimination and not like a private
individual.
 RSEB, Sukhdev Singh vs. Bhagatram and RD Shetty’s case can be clubbed int one single
category. They deal with statutory bodies.
 Som Prakash v. Union of India - The next decision was given in 1981. Government company,
Societies registration act etc. will be decided whether they come under other authorities or
not. Som Prakash marks the beginning of jurisprudence where the supreme court says that
other authorities where a government company which was a non-statutory body came
under Article 12 and was termed as other authorities. RC Cooper vs. UOI case.
Nationalisation of banks which brings in the concept of mixed economy which brings in the
private players. Private and public players will work in harmony. Som Prakash was regarding
nationalisation of a company which was already in existence. Company was acquired by the
government by making a law which was passed by the parliament. The law made by the
parliament was Burma Shell acquisition of undertaking in India 1976. The law came to be
passed by the parliament which gave the power to the government to acquire Burma shell
which was a private company earlier now it has been acquired by the government through
the law and the act itself gives the power to the government to transfer the to a
government company by the name Bharat Petroleum Corporation Limited. A private
company was nationalised and came to acquire under Burma Shell Acquisition of
undertaking. The statute also gives the power to the government to transfer the company
to another government company. Can we call a government company a state or not? the
question was regarding the grant pension to the employee of the company. So, the
pensioner also claimed discrimination being done against him by the company. So,
therefore, he says that there is a violation of his fundamental right (Article 14) and for this
he approaches the court of law. So, if he wants to claim his fundamental right against the
company. So, the question that the supreme court has to decide whether we can call the
government company a state or not? The state was nationalising few things. Whether BPCL
can be termed as instrumentality? The supreme court said the test we have to apply is not
to find out whether a body is formed under a statute or not. The ideal test is whether the.
What is the extent of control? What are the functions that are performed? A body may be
established without a statue also. This body BPCL though it’s registered under Indian
company act it has some statutory features also. Because of the fact that the statute which
was passed by the parliament gave certain power which are there under the statute. There
is a great amount of presence of the state. If the government presence is so deep and
pervasive that the control exercised by the government is deep and can be termed as
instrumentality and defined as other authorities under the definition of state within the,
meaning of article 12. It is from statutory body to a non-statutory body. The ratio is test is
its functions not statute. Whether the control of the govt is to great extent.
 Ajay Hasia v. Khalid Mujib – non - statutory body came to be held as other authority after
Som Prakash. Whether the society register under societies registration act is a state or not?
The case is regarding a govt engineering college. There were 13 engineering colleges which
came to be sponsored by the central government. This engineering college was set up under
the society registered under Jammu & Kashmir societies registration act. One of the
individuals who wanted to seek admission in the college was alleged discrimination on the
college as well as the society (article 14). If the society can be said a state, then only then the
applicant can claim. The society received funds and financial assistance from both central
government and state government. This finance can be utilised and invested by the society
 with the prior approval of the state government. The state government as well as central
government had the authority to look into the working of the society and the college. If
there is mismanagement the government can undertake enquiry. The government possess
the power after the enquiry is conducted to take some actions. To overtake the
administration after the enquiry if there is mismanagement in society and college. When
administration is taken over the state government. The state government can overtake the
assets of the society with prior approval of central government. There is a great deal of
control that central government and state government take over the society even after the
society is registered under the registration act. The society does not enjoy a great deal of
autonomy or independence. Even after giving the financial assistance the society is free to
take decisions. Supreme court if at all we can gather that the control which is exercised by
the government over the body it can be termed as instrumentality and it can be said as
other authority under state within the meaning of article 12. Chronological enumeration was
not done in RD Shetty but it was done in Ajay Hasia case. In Ajay Hasia case in which
Supreme Court have so elaborately discussed the work and the control, financial assistance.
These points make RD Shetty case important. Justice Bhagwati was a part of 5 bench judge in
RD Shety and Ajay Hasia case. RD Shetty case the court is simply not taking the look how the
body came into existence it is also trying to understand the control that is over the state.
Financial assistance is so large. 1st where the financial assistance of the State is so much as
to meet almost entire expenditure of the corporation. If the financial assistance is provided
by the state is large that it meets entire expenditure of the body. We need to look at the
financial assistance. 2nd Extent of State control over Corporation, whether deep and
pervasive. This control is to be understood whether the control is over the management
and policy decisions body. 3rd An unusual degree of control over the management and
policies. 4th whether the corporation enjoys monopoly status which is State conferred or
State protected 5th whether the operation of the corporation is an important public
function & closely related to govt. functions. we need to find out whether the monopoly is
conferred by the state or whether the monopoly is protected by the state. It is not
necessary to have these 5 points. These 5 points are indicative indicia. Ajay Hasia has a
specific reason that on statutory body can be treated as state. Court has to exercise its own
discretion.
 Sabhajit Tiwari case was decided on the same day of Sukdhev Singh vs. Bhagatram. Tiwari
case talks about CSIR. Whether CSIR can be termed as state or not? In Tiwari case the
Supreme court said that CSIR is not state even when government has control over it. How is
Tiwari connected to Pradeep Kumar v. Indian Institute of Chemical Biology? Corporation,
non-statutory body and statutory body can be termed as case.
 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology – it is a 7-bench constitution
bench. It was also overruled the decision of Sabajith Tiwari case. The bench said that CSIR is
a state in Pradeep Kumar case. In Pradeep Kumar the question was regarding the salary
being received by the employees of Indian Institute of Chemical Biology? The employee
challenged that article 14 was infringed. All the employees should be receiving same income
of same position. Indian Institute of Chemical Biology is a unit of CSIR that’s how case of
Sabajit Tiwari was pointed out in Pradeep Kumar case. Whether CSIR can be termed as state
or not? The central government also set up industrial research fund because they will be
interested in promoting the research which will lead to development of the country. The
people will incline to undertake research. It constituted this fund. If the central government
constituted the fund how is the fund to be unutilised? Who will take care of fund? It is here
where supreme court will ask the department of accounts of central government to
 constitute and set up a body. It is here CSIR registered as a society under societies
registration act. One member on the society is to be nominated by the department of
commerce because it was set up by the government. One member was to nominated from
the finance department from government of India. If still the central government thinks the
power to nominate more members to the society. The rules were to be made with the prior
approval of the central government. The budget was to made on the prior instructions of the
central government. The assets of the society could be taken over by the central
government. The decision taken by the society those were to be conveyed to the central
government. The central government gave initial financial assistance. The idea belongs to
the central government. The members to be nominated were to be decided by the central
government. Rules and regulation are consonance with the central government. The earlier
decision was erroneous by the supreme court. That’s how supreme court overruled the
decision of supreme court itself in Sabajit Tiwari. Supreme court came up with 3 points. If
the body is financially, administratively and functionally are under the control of the
government over the body which is deep and pervasive. This control must be deep and
pervasive. If the government simple regulatory then it is not state. the control must be deep
and pervasive can be termed as other authorities and therefore state within the definition of
state under article 12.
 Zee Telefilms Ltd. V. UOI: it’s a landmark decision given by the supreme court. It is called as
the BCCI case. The first name of the petitioner and the defendant will be taken. The first
defendant is UOI and second is BCCI. BCCI is the respondent. Petitioner will try and establish
that BCCI can be called as state under Article 12. Mr. Harish was the lawyer for the
petitioner. The BCCI registered as society under TN registration act. It is a non- statutory
body. How the society has the presence of the state? then only it can be termed as state.
how state is present in the working of BCCI? How state regulates the working of BCCI?
Memorandum of Articles of Association of BCCI was brought. BCCI gets the authority to
select the players in the Indian national team, international team and domestic team. No
body apart from BCCI can select the players who are going to play international and
domestic cricket played by the team. The conduct of domestic tournaments is done by BCCI.
The BCCI gets the absolute authority to invite the foreign teams to play in India. The BCCI is
the sole authority who organize the commercial events (cricket activities). BCCI possesses
the sole authority to implement disciplinary action over the players and umpire. It has
gathered a monopoly status. This monopoly status is protected by the state. the BCCI has
the power to decide on the representation. Because cricket is treated as profession the
actions of the board in selecting the players eventually affect the FR of the players under
article 19(1)(g). inviting the foreign players is done by BCCI but the decision is not unilateral
it needs prior approval of the government. BCCI can nominate the players for Arjuna Awards
for cricket. Pradeep Kumar and Ajay Hasia were kept in mind and said that BCCI is termed as
other authority and therefore state within the definition of state under Article 12. The
government of India or UOI is the first respondent in this case was it supported the fact that
BCCI is an autonomous body and it says it exercise control over BCCI. When foreign teams
are invited, the decision is on prior approval of the government. It has refused to give
permission for the Indian cricket team to play with another team. In 2002 it had denied
permission to play cricket with Pakistan. The response from the respondent (BCCI) was it
goes by the cliched test. It says that it’s not a statutory body but it is registered under
registration act. It is an autonomous body and there is no functional control by the
government. BCCI says when it was constituted the financial assistance was never provided
by the state. financial assistance was not given in the working. BCCI is the richest sporting
 body in the world. Indeed, accepted that BCCI enjoys monopoly status. It is not being
protected by the state. It says it has achieved by the first mover advantage. It is the first and
the only body to undertake cricketing activities. It is not conferred by any law. No provision
was being made regarding setup for another body to organize cricketing activities. This is
why it gained monopoly status. It gets the authority to decide the players. These are
regulatory control for the approval but not deep and pervasive. Supreme court said BCCI is
not a state. If BCCI is a state, it will open flood gates of litigation. The board regulates the
cricket activities. There are 64 national sport federations. If BCCI is to be treated as state, we
will have to hold all other 64 national sports federation. All those bodies will have to termed
as other authorities who are performing with respect to their field. There should be some
national federation if we have to term BCCI as state. the supreme court said judiciary have
to be careful because in any country we have private enterprises and public enterprise. The
judiciary should not become that authority which will remove the dividing line between an
autonomous body and a private body. So supreme court stated that BCCI is not a state.
 Whether judiciary is a state or not? Article 12 talks about 4 points Central Government and
parliament; state government and legislature; local authorities and other authorities. Organs
at the central level and state level were mentioned. Judiciary was not mentioned under
Article 12. Judiciary while exercising its judicial functions cannot be termed as state. When a
dispute arises between 2 parties it is taken before the judiciary to resolve the dispute, it will
uphold the rights of a particular party while resolving the dispute. When it decides the
dispute the person against whom the decision goes, he/she cannot say that his/her
Fundamental Rights are being infringed. Judiciary will not be termed as state when
exercising judicial functions. judiciary can be termed as state when it is not exercising its
judicial functions? Naresh Sridhar Mirajkar v. State of Maharashtra in the year 1967. It was
a 9-judge bench of the supreme court who said the judicial decisions cannot be challenged
under Article 13 on the grounds that judicial decision has infringed the fundamental right
of an individual. At the same time supreme court said if the same judiciary is exercising
certain administrative functions or using legislative functions by making a law then these
functions can definitely be challenged if at all they go against the fundamental rights. Article
145 empowers the supreme court to make the rules for itself. So, if this rule is made by the
judiciary in the exercise of its law-making power and through this rule if fundamental right
is infringed then definitely it can be challenged before the court. For the exercise of law-
making power judiciary can be termed as state and for the exercise of its administrative
functions the judiciary can be termed as state within the meaning of article 12 but when
the judiciary is exercising its judicial function it cannot be termed as state within the
meaning of article 12. The decision in Naresh Sridhar Mirajkar was reiterated in A.R.
Antulay v. R.S. Nayak 1988. It was said the judiciary cannot pass any order which would
violate the fundamental rights of the citizen. Because judiciary is exercising its judicial
functions when it decides the case what is brought in the court.

ARTICLE 13:

Laws inconsistent with or in derogation of the fundamental rights. -

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of
such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires. -

"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having
in the territory of India the force of law;

"laws in force" includes laws passed or made by Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or in
particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

 Article 13 it is which provides justiciability of Fundamental Rights .Fundamental Rights will

be enforceable in the court of law.
 Clause 1 and 2 talk about power of judicial review because only these two clauses that the
inconsistency with the provisions of this part has being mentioned. Article 13 is part and
parcel of the chapter of fundamental rights. Both the clauses talk about of those laws which
are in contravention or inconsistent with the fundamental rights. So, if they are found to be
in contravention or inconsistent with the fundamental rights then they will be declared as
void.
 Clause 1 says all the laws enforced within the territory of India and they should not go
against the fundamental rights if they go against the fundamental right, it will be declared as
void by the judiciary with the power of judicial review.
 Clause 2 says the state shall not make any law. The laws made by the state should not
abridge the fundamental rights because if they abridge the fundamental rights, they will be
declared as void.
 The definition of the word law is important because clause 2 uses the word state which talks
about the other bodies which can exercise the law-making power.
 3rd clause talks about meaning of law, talks about existing laws and laws enforced in the
territory.
 4th clause talks about the power of amending the constitution.

CLAUSE 4:

 Article 368 should not apply to the amendment. When the parliament is amending the
constitution, it does through constituent power.
 The regular law-making power of the parliament is different from constituent power of the
parliament. The regular law-making power is exercised while making regular legislation. But
when the parliament is amending constitution, it exercises constituent power.
 The parliament gets the authority because the constitution was made by constitution
assembly. The constituent assembly is no longer so, for the flexibility to be introduced under
the constitution so that the constitution can keep pace with times the provision for the
amendment for the constitution needs to be included.
 Article 368 provides procedure for amendment of the constitution. Because the provision is
not sufficient all the more who is to exercise the power to amend the constitution needs to
be prescribed because the constituent assembly is not there.
 The constituent assembly itself has specifies that it will be the supreme law of the country
which will get the authority to amend the constitution.
  When the Parliament tries to amend the constitution just cannot decide by the majority for
the amendment of the constitution.
 For amending the constitution, the parliament needs to pass a legislation the majority it
passes is the constitution amendment act.
 Clause 4 says when the parliament amends the constitution by making a law and amends
any Fundamental Rights such law by which this amendment is made it cannot be challenged
under article 13. It cannot be asked to the judiciary that the exercise the power of judicial
review and strike down legislation.
 When parliament possess the power to amend the constitution, it means it has the power to
amend the fundamental rights as well. The restriction on amendment is the basic structure.
So, nothing should be done so as to change the basic structure by the parliament. It is the
significance of clause 4.

 Article 13 provides for justiciability to the fundamental rights. Unless and until we have
provision to have those rights implemented (significance).
 Fundamental rights are justiciable and enforceable in the court of law.

CLAUSE 1 AND 2

 Clause 1 of article 13 is limited to pre constitutional legislation which were in force in the
territory of India before the commencement of the constitution and still in existence after
the commencement of constitution for e.g., Indian Contract Act, Indian Penal Code, Civil
Procedure Code are pre constitutional legislation. It says there could be pre constitutional
legislation which continue to be in operation after the commencement of constitution. It can
be declared as void to the extent they are inconsistent with the Fundamental Rights. Pre
constitutional legislation should also confirm to the fundamental rights given under part 3 of
the Indian constitution. If it goes against the fundamental rights then it can be declared as
void by the judiciary.
 Clause 2 of article 13 has come into existence after the constitution has being made (post
constitutional legislation). The state shall not make any law which takes away or abridges
the fundamental rights. In case the state does it will be declared as void to the extent of its
contravention.
 Both clause 1 and 2 say that be it pre or post constitutional legislation should not abridge
the Fundamental Right. They will be declared void only to the extent of inconsistency by the
judiciary.
 The touch stone for the validity of both of them is the Fundamental Right. The judiciary
guards the Fundamental Right. The judiciary is the Sentinel on the qui vive. It keeps the state
within the check.
 The judiciary also keeps a check on the existing law that is enforced in the territory. The pre
and post constitutional legislation will be declared void by the judiciary only till the extent of
their contravention or inconsistency.
 The power of judicial review is a part of basic structure but not only this the power is part
and parcel of the basic structure. This power of judicial review to be the guardian of
fundamental right cannot be taken away by the parliament by amending the constitution
also.
 Article 13 has been interpreted by the court and in the process of interpretation the court
has come up with certain doctrines. When the courts have decided the cases, which are
related to Article 13 in the process it has evolved certain doctrines which help in interpreting
the law. The doctrine of eclipse and severability are of judicial origin.
 A pre and post constitutional legislation if it contravenes the Fundamental Rights, it will be
declared as void to the extent of contravention (only the part which abridges the
 Fundamental Rights). Judiciary has to act responsibly will have to figure the portion of pre
and post constitutional legislation which goes against the contrary to the extent of
Fundamental Rights.
 The principles of interpretation should be used by the judiciary to interpret the provision.
Power of judicial review has been given to the judiciary. Presumption should never be there
but law recognizes the presumptions like validity of legislation means the court will
presume that the law is valid until the presumption is rebutted by the other side and when
the law is made it is presumed that the legislature has applied its mind after thinking about
the necessity of law in detail and then the court goes in the presumption that legislature has
applied its mind and the law made by the legislature will be presumed to be valid. Courts
also realized the law-making process carried out is a lengthy process. Court knows the time
taken by the parliament and legislature. Courts will be cautious before the legislation to be
as unconstitutional.
 When the entire pre and post constitutional legislation is struck down void the parliament
has to start again. This is where the word “to the extent” comes.
 Doctrine of eclipse which has being evolved by Indian judiciary with respect to clause 1 of
Article 13. Pre constitutional legislation possess the power of prospective means when the
law came to be made it will be applicable to all the situations after that particular date which
will be in the future. When the law came to be made on a particular date when it is made
applicable to all the things that have occurred before the law came to be made is called as
retrospective. Simply when the law is to made applicable backdated is retrospective
application. The basic power of the legislature includes the authority to make prospective
and retrospective application.
 When clause 1 is actually dealing with pre constitutional legislation. Can the provisions of
the constitution be made applicable to something that has being done under a law before
the constitution came into being? It was answered by the supreme court in Kesava
Madhava Menon v. State of Maharashtra 1951.
 1951 immediately after constitution came to force the court got the opportunity to decide
on the proceptivity or retrospectivity of clause 1 of Article 13. Clause 1 is prospective in
nature. Pre constitutional legislation came to be made there was no constitution and no
Fundamental Rights. So, for a pre constitutional legislation there was no necessity as such
for it to comply with the Fundamental Right. Neither there was any requirement for the
legislature to keep in mind that the Pre constitutional law does not abridge the Fundamental
Rights because there were no fundamental rights in first place, there was no constitution.
So, therefore the pre constitutional legislation before the constitution has come into being
there is no option for it to abridge the fundamental rights because constitution is not there
and fundamental rights do not exist too. The fundamental rights and the constitution will
have an effect on pre constitutional law from the day constitution has come into force. The
invalidity will occur from 26th January 1950. When they are coming into force on 26thh
January 1950 how can they made be applicable back dated to something which has already
happened because the fundamental rights we got on 26 th January 1950. So, something that
has already occurred before the constitution came into force the Fundamental Rights cannot
be made applicable to them. The nature of Clause 1 is prospective. When the pre
constitutional legislation happens to come in conflict with Fundamental Rights that
particular provision will become void from 26 th January 1950 and not before this. A pre
constitutional law is valid because it did not have to comply with the fundamental principles
because both of them were not in existence. It will remain to be valid for the thing which has
done before the constitution came into picture.
 A person who came to be prosecuted under a pre constitutional law. Under the pre
constitutional law the prosecution of the individual had already started There was a law
which gave a certain punishment and person was held charged with the violation of the
 particular law therefore, his prosecution has already begun. This prosecution began before
the constitution has come into force. But after the constitution has come into force because
of fundamental rights given under the constitution we got the ‘freedom of speech and
expression’ under Article 19(1)(a). The provision of the law came in conflict with the
‘freedom of speech and expression’ because earlier when the law came to be made it had
not to comply with the ‘freedom of speech and expression’ because it was a pre
constitutional legislation there was no Article 19(1)(a) He asked the court to declare his
prosecution illegal. Article 19(1)(a). Therefore, a pre constitutional legislation need not
comply with article 19(1)(1) because there is no 19(1)(a). 19(1((a) cannot have effect on the
law for something that have been done be before 26 th January 1950. His prosecution ha
began before the constitution has come into force. Kesav Madhava still tries to file a writ
petition before the court saying that now the law has become void because we have
‘freedom of speech and expression’. Therefore, he asked the court to declare his
prosecution to be illegal and to hold the prosecution cannot be gone ahead with. The court
says that article 19(1)(a) has come into being 26 th January 1950 so it will be applicable from
26th January 1950 onwards. Article 19(1)(a) cannot be applicable before 26 th January because
there is no article 19(1)(a). so, anything that has been done under a valid legislation that
cannot be nullified after the constitution has come into force because pre constitutional law
was a valid law. Any substantive liability which had accrued under a law which was a valid
law that time those cannot be nullified before the constitution has come into force. Had the
prosecution started after the constitution has come into force then it would have been
wrong. But here the prosecution has already begun and that was an offence. So, the person
is rightfully charged of an offence and his offence is rightfully being prosecuted an offence
because was a valid legislation and valid offence. Supreme court said Article 13(1)(a) is
prospective in nature and not retrospective. Any substantive liability which had accrued
under a law which was a valid law that time those cannot be nullified before the
constitution has come into force. had the prosecution started after the constitution has
come into force then it would have been wrong. His prosecution will not be affected
because it was under the valid law. A pre constitutional legislation before the constitution
came to force will be treated a valid legislation. Any substantive liability which had
accrued under a law which was a valid law that time those cannot be nullified before the
constitution has come into force. Had the prosecution started after the constitution has
come into force then it would have been wrong. The law was valid law when it came to be
made.
 TADA 1985 and POTA 2002 are made by the parliament to deal with terrorist’s activities. The
aim of this legislation was specific unlike a regular law made by the parliament is perpetual
in nature. Unless the law is said to be temporary. TADA and POTA were a temporary law.
TADA was applicable for 2 years and POTA was for 3 years. Clause which will say that law will
expire in a period of time are said to be sunset clauses. TADA came in 1985 but it was said to
remain till 1995 because parliament extended the life of the law. The purpose was not yet
served and it was extended and was allowed to expire that there was constituent expire.
Rights and liabilities of an act can continue later on. If savings clause is included the rights
and liabilities will continue even after law has lapsed.
 If at all any provision of law if it comes in conflict will be declared as void in both the clauses.
Bhikaji v. Case of MP. Pre constitutional legislations which continued to be applied with the
conflict of Fundamental Rights. Supreme Court developed doctrine of eclipse in this case.
The issue was C.P and Berar Motor Vehicles (Amendment) Act, 1948. Under this provision
the power was given to the provision government to take up the entire business of motor
transportation to the exclusion of any private players. after the constitution came 19(1)(g)
came each and every person can carry on any occupation, trade and business. Because
article 19(1)(g) was there the private people can stop the state to monopolise the business.
 Before article that was earlier a valid piece of legislation. After article came state could not
monopolise and became void. In 1951 the first-time amendment of constitution took place.
Article 19 was amended. Clause 6 of article 19 talks about reasonable restriction and came
to be amended and added in the constitution that the state can monopolise any business to
the extent of any private individual. Now constitution also allows the state to monopolise
the business. Because it came into conflict with the Fundamental Right for a brief period of
time. The Supreme Court says that a pre constitutional which was valid earlier and comes in
conflict with the Fundamental Right cannot be wiped all together from the statute book.
That particular provision of the law which comes in conflict with the Fundamental Right it
will we over shadowed for a particular law for a period of time and it will not be removed
but become dormant and if the Fundamental Right is amended then the law blemishes
again. The reason is that a pre constitutional law was made it was valid and did not require
to be in alignment with the in constitution. It was not void ab-intio and it was valid when
enacted. It has lost its validity when constitution came into existence.
 It is not applicable to post constitutional is void ab-intio because clause 2 of article 13 says
there is a prohibition on the state (restriction on the state). If state makes any law and
infringes the right such a law is never a valid law is said to be nullity since its inception.
Doctrine of eclipse is not applicable to post constitutional law.
 The two types of Fundamental Right’s: because for a pre and post constitutional legislation it
should not go contrary to the Fundamental Rights. The two categories available only to
citizens freedoms under e.g., article 19, equality in case of public employment, available to
citizens and non-citizens e.g., Article 21 and 14 uses no person rather than citizens
irrespective of nationality. When a law is said to be inconsistent with fundamental right is
available to all person it means such a law will be ineffective because fundamental right is
available to all person. if a law is inconsistent with a fundamental right only to citizen and
not to non-citizen means it will be ineffective only to the citizens such a law can continue to
the non-citizen it will not have effect on non-citizen and they cannot claim benefit because
the right is not applicable to them. A law which goes against to the fundamental right.
 State of Gujarat v. Ambica Mills this was laid down and pointed by the supreme court if a
law is inconsistent with a fundamental right only to citizen and not to non-citizen means it
will be ineffective only to the citizens such a law can continue to the non-citizen it will not
have effect on non-citizen and they cannot claim benefit because the right is not applicable
to them
 P. Rathinam v. UOI 1994 the petitioner has challenge constitutional validity of section 309 of
IPC a pre constitutional legislation getting in conflict with fundamental rights. The petitioner
says article 21 has to be kept in a manner that it should include right to die. If it is included
then section 309 will not be in existence. The supreme court while interpreting article 21
with respect to other fundamental rights. We can take a look at article 19 freedom of speech
and expression 19(1)(a) but also the authority not to speak. Freedom to be a part of the
association and our choice decide not to be. The fundamental right gives us the authority
not to do. The supreme court said article 21 to say right to life and also right to die. Because
interpretation was given section 309 came to be declared as void (unconstitutional) to the
extent of contravention of fundamental rights. It was a 2-judge bench.
 Section 309 has come up with mental health care act in 2017 it is a new legislation. It
punishes a person for attempting to commit suicide has always met with great amount of
criticism. The criticism was such that if a person is frustrated or driven to such an extreme
that he thinks to take his own life how bad is it for letting the state to punish such an
individual because he survives because of a failed the suicide attempt. Because he survives
the suicide attempt the state gets the power to punish the person and impose a sentence of
imprisonment. Section 115 of mental health care act which recognizes that there could be
great amount of stress behind a person when he attempts to commit suicide. A presumption
 will be taken if a person that he is not under a fit health condition and he will not be charge
and punished. It is presumed that he is not under a fit medical situation and immediately not
be punished.
 When a particular provision is declared as void that is not removed from statute all together
but it becomes ineffective. It remains in dormant condition.
 Gian kaur v. state of Punjab 1996 constitutional validity of section 306 which punishes the
person who abets the commission of suicide. Kaur and her husband were convicted under
section 306 of IPC. The lawyer of Kaur said that section 309 has being declared
unconstitutional. And article 21 has interpreted. If a person abetting the commission of
suicide, he is enforcing another person in taking his own life in the enforcement of article 21.
Supreme court realised that article 21 cannot be interpreted in this manner. The
differentiation it did was omission in other fundamental rights and active act to be done in
taking in particulars life. Supreme court overruled the decision in P. Rathinam and section
309 has been restored.
 The nomenclature state and centre came to be adopted after the constitution came into
force. Earlier the nomenclature was provision was used because it is a pre constitutional law.
The state(provision) was not the same. State’s reorganisation was once before and after the
constitution before came into force. Linguistic grounds are one of the bases in the formation
of state.

SEVERABILITY

 Clause 1 and 2 of article 13 and law being inconsistent with the fundamental rights. The
court will not jump to a conclusion to declare the law completely over shadowed. It will
declare only one portion as void that invalid portion should be capable for the separation
from valid portion.
 The court evolved on its own by Indian judiciary.
 When a void portion is identified if it can be separated from the valid part then it can be
separated. If it is not possible the whole statute has to go.
 Rmd chamarbhag wala (RMCD) v. UOI the court points out 7 principles to separate a valid
portion from invalid portion and unable of separation.
 1st that the intention of the legislature is the determining factor of understanding whether
the valid portion can be separate. Once the court identifies the invalid portion and identifies
to strike down, we need to understand that the legislature could still have made the law or
not have it know to declare it invalid. Intention of the legislature can be gathered from
history of act, preamble of law, debate and discussion and statement of object of law. We
can go beyond the law. (separated)
 2nd the invalidity of small portion will lead to the invalidity of the entire law.
 3rd the valid and invalid are distinct and separate. After identifying invalid portion, the valid
portion can stand by itself. The valid is not affected it is independent and can survive. Court
will uphold the validity.
 4th they are distinct but they are a part of the same scheme. They are dependent on each
other somewhere. The invalid will result is striking the complete law.
 5th they are independent. After culling out the invalid portion and the valid is so thin and
different from substance from the original law which was made. The substance of the law
changes. The entire law will go.
 6th There is an identifiable invalid portion can be culled out the valid portion is so thin that it
cannot survive without any modification then the entire provision will be struck down as
void. The entire law cannot be removed.
 7th severability is not limited to the form of valid and invalid portion. They can be a part of
same section and same section, different chapter of the same act. The form should be
 looked into. The valid should be looked into. The substance should be looked into while
applying the doctrine of severability.
 Navtej singh johar v. UOI 2016 constitutional validity of 377 was challenged because it goes
against equality, expression, dignity, liberty. Only that part which prevented consenting
adults indulging into carnal sexual intercourse in private.
 Joseph shine v. UOI sec 497 was challenged for violation of equality. The entire section was
struck down. The entire concept was such it degraded the status of women; adultery should
be treated as civil matter but not crime.

DOCTRINE OF WAIVER

 Waiver? When a person decides to relinquish his rights.

 It is not defined in article 13
 As far as law is concerned waiver is recognized action. When a person is given legal rights, he
can definitely let go of those rights.
 FR the remedy is different and they are part and parcel of the constitution. Waiver is to be
treated differently.
 Black’ law dictionary says that voluntary relinquishment or abandonment
 A person should have knowledge that he possesses his right is the essential of waiver to
waive his right. Then only he can make choice.
 When a right has being waived it cannot be claimed later on.
 Can we still consciously relinquish our Fundamental Rights?
 Part 3 of Indian Constitution which encompasses the Fundamental Rights. This has been
influenced from the bill of rights of the American constitution. They were not originally part
of American Constitution they have being added through amendment. This is why Indian
Judiciary looks up to the American jurisprudence. Because they have done earlier than ours
tends to look American jurisprudence. They serve as a source of light and inspiration.
 In America waiver of Fundamental Rights is recognized and it is not allowed in India.
 BEHRAM V. STATE OF MAHARASHTRA.
 This aroused when constitution came into force. the decision given by the Supreme Court
was not a unanimous decision. Justice Venkatarama Aiyar says Fundamental Rights can be
divided into 2 categories. The rights which are made available for the benefit of individual
(Article 19(1)(g) which grants benefits on the individual property owner, self-incrimination
under article 20)
 and rights conferring benefits on general public. (Freedom to form association, general
public, freedom to form an assembly)
 he said that’s how the fundamental rights can be bifurcated.
 Fundamental Rights which confer the benefit on an individual can be waived by that
individual. He can exercise his choice.
 Fundamental Rights which confer the benefit of the general public cannot be waived.
 Law made by the parliament is not a nullity in totality it will just become unenforceable
because if that law is infringing a fundamental right that is available to an individual the
individual can make a choice and he can decide that he wants to waive those fundamental
rights because it can be made applicable to him for the reason of waiving his right. Even if it
is abridging the Fundamental Rights an individual can take decision to relinquish that right
and individual can decide. The outcome will be the law can be applicable and enforceable to
him. If a law goes inconsistent with the fundamental right which is available to everybody
will not be applicable it will become nullity.
 Majority in totality rejected the argument. 1 st Fundamental Rights as such is not for the
benefit of individual but society as large. So, the classification is erroneous. 2 nd Fundamental
Rights are included in the constitution for specific purpose, the idea is not to let people
 decide to waive the Fundamental Rights. 3rd the Fundamental Rights are part and parcel of
constitution because they are a matter of public policy that is why Fundamental Rights
waiver cannot be allowed. There are less chances of prostitution are dim and marginal
because it goes against the public policy. The generally acceptable laws can be termed as
public policy.
 BASHESHAR NATH v. IT Commissioner is said to be one of the important cases for waiver of
FR. There was never unanimous decision. It was continued to be cited by the court’s multiple
times whenever the question of waiver of right has arisen.
 The waiver of fundamental rights doesn’t mean that all the fundamental rights can be
waived all together that’s not the idea.
 Income Tax Act the people are supposed to disclose their income accordingly on the
disclosure of the income the tax is calculated.
 In this case the petitioner has also concealed his income and that is why his case came to be
referred to income tax investigation commission. This case was referred to the commission
under the provisions of section 5(1) of the Taxation of Income (investigation Commission)
Act. Under the Act the power has being given to the commission to decide on the concealed
income and accordingly the power has been given to the commission under the act to
provide for the penalty in the cases of concealment of income.
 It is through section 5(1) that the commission gets the authority to decide the cases.
 When Basheshar Nath was given the commission came to a decision that he has concealed
his income. Therefore, the commission gives a decision that he has to pay certain penalty for
his concealment of income. The Act also provided for a settlement to be arrived at between
the parties. The settlement can be arrived at between the guilty (the person who has
concealed the income) and the income tax commission. Because the commission will also be
interested in basically getting back the legally money it was really entitled to.
 When a person is entitled to pay money to an authority and when a person is incapable of
paying that amount in the terms of money then the authority usually poses the power to ask
for the attachment of the property that the person holds in lieu of the money. The property
will be auctioned through public auction through that money will be recovered and that is
how the state or the institute will try to recover the money.
 Settlement came to be entered into between Basheshar Nath between the petitioner and IT
Commissioner. Because the commission have already found him guilty and it had already
come to a decision that he had concealed the income. So, according to the terms of
settlement the petitioner entered into the settlement on 19 th May 1954 and accordingly
agrees to pay monthly instalments of over rupees 3 Lakhs by a way of tax and penalty. In
terms of the settlement, he starts paying the monthly instalments. In the year 1955 in
unrelated case (Suraj Mall Mohta v. Visvanatha Sastri) the constitutional validity of section
5(1) of the same act was challenged on the grounds that section 5(1) ultra vires Article 14 of
the constitution and the supreme court section 5(1) as ultra vires. So, section 5(1) is held as
unconstitutional by the court in the year 1955.
 The petitioner did not come to know on his own for a considerable period of time that
section 5(1) has held to be unconstitutional. The petitioner Basheshar Nath continues to pay
the instalment even after it has been struck down. When it comes to the knowledge of
Basheshar Nath that section 5(1) was held to be unconstitutional. So, any terms of
settlement that has being done through section 5(1) will not be operative. So, after
Basheshar Nath has got to know he stops to pay the instalments.
 Because he stopped paying the instalments. The IT Commission goes ahead and passed an
attachment to his property because he is not paying. It is only when the attachment of the
property because he is not paying and they pass an attachment for his property. It is only
when the attachments properties order is passed that Basheshar Nath challenges this issue
of attachment of the property. It is while deciding the question which went into the court
 that the council for the IT Commission raises the point of waiver of fundamental right. He
says because Basheshar Nath did not challenge the constitutional validity of section 5(1) that
would mean he has waived his fundamental right of article 14 and therefore section 5(1)
should be applicable to Basheshar Nath. That’s how the question of waiver of fundamental
right was raised by the other party. That is how the question of waiver of fundamental right
came to be dealt in the particular question.
 Now with respect to relief there are two things that happened. 1 st is the supreme court came
to the conclusion what is the relief that could be given to Basheshar Nath and the 2 nd is it
came to a conclusion as to the findings of fundamental of waiver rights.
 For the 1st part the court indeed said Basheshar Nath is entitled to remedy because after it
has been struck down it is still continued to collect the penalty under a section that is
unconstitutional. So, that couldn’t have being done by the income tax commission. The
supreme court said it is almost amounting to illegal collection of tax and that is wrong. Apart
from that the court also struck down the order of attachment of the property that’s the
relief that he got.
 The courts take on waiver of fundamental right. The lawyer of IT Commission head said
because Bashehar Nath didn’t challenge the constitutional validity of section 5(1). So, for
him he has waived article 14 and that is why article 14 will not be applicable. The act will be
continuing to be made applicable to him
 That is what Venkatrama Ayar said in Behram. That the person can waive the
unconstitutional of the statute and if he waives the statute can be continued to be made
applicable to him.
 It was precisely taken from Behram and put in front of the supreme court. So, the supreme
court once again decided on this question that can fundamental rights be waived?
 In Basheshar Nath also the supreme court said the fundamental rights cannot be waived but
there was no uniformity in the decision of the supreme court. In the sense that few judges
said Article 14 cannot be waived because it acts like a restriction on the state and it is a
matter of public policy and it is the responsibility of the state to ensure that right to equality
is practiced. It is something which has mandated to the state and that is why the state will
ensure that there is equality and because of this article 14 cannot be waived.
 This decision of the supreme court came vis – a – vis article 14 because the question is
Basheshar Nath was regarding article 14. That is why the response was very specific.
 From the other opinion of the judges was said that no fundamental right can be waived
 There is a difference from the 1st point and the 2nd point. In the 1st point it was said that
article 14 cannot be waived and with respect to other fundamental rights have kept open.in
the 2nd point which was said by majority of the judges was that no fundamental rights can be
waived. They followed the same line state in Behram but in addition they made a few
observations. Fundamental rights are mandatory and they have been included in the
constitution for a specific purpose. So, it’s not for an individual benefit that’s rather to be
taken as conferring for the benefit of society as whole. That is why waiver of fundamental
rights does not arise. Apart from this another major observation by the court said majority
of people in the country are basically economically poor and can see educationally backward
and politically not yet conscious. The supreme court said because majority of the people are
not aware that they have their fundamental right so it will be wrong to come to a conclusion
that they can waive their fundamental right.
 The essential element of waiver is that the person should have the knowledge that he has
the right and there after he should make an informed choice that he has the fundamental
right and decides to waive it. The consequence is that he will never be able to claim that
right again.
 The inclination of the supreme court has been towards not allowing the waiver of
fundamental right and that’s the decision the court in fact did.
 OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION.
 The court still said in the years 1986 as well that fundamental rights cannot be waived.
 Right to livelihood was held to be a part of Right to life (Article 21).
 Only through the judicial decisions that the rights have being added under Article 21.
 It’s a public interest litigation which came to be filed and the case of regarding pavement
dwellers.
 Facts: These pavement dwellers were occupying the footpath and therefore the Bombay
municipal corporation approaches them informing that they are illegally occupying the
pavement and there by encroaching on the public property. The pavement dwellers have
given an undertaking to the Bombay municipal corporation that when the next time
municipal corporation comes to evict the pavement dwellers, they will not raise their plea of
rights to life under article 21. The BMC comes with the bulldozers to evict the people illegally
on occupying the pavement. It is at this time the pavement dwellers raise their fundamental
right under article 21 and it is here they also raise another issue that they also have a right to
earn their livelihood as it is a part and parcel of article 21 and that is why they cannot be
simply evicted by the authorities. so, BMC could not evict the pavement dwellers.
 In the meantime, the case came to be filed by the pavement dwellers through a public-
spirited individual like OLGA TELLIS who move the court and on behalf of the pavement
dwellers case was filed (PIL) saying that right to livelihood should be interpreted as article 21
and therefore each and every person should possess this right to livelihood and if that is
there then some arrangement should be made for the people to earn their right to
livelihood.
 The BMC says to the supreme court that because prior undertaking was given by the
pavement dwellers where they said that they will not invoke the right under article 21 now
they are estopped from invoking article 21 because of the undertaking.
 Estoppel is a legal principle that is acknowledged by law.
 Can we say that there could be an estoppel on the application of fundamental right? Can we
say that a person has waived his right under article 21 so as to allow BMC to evict them
forcefully?
 The supreme court answered in this light again that fundamental rights cannot be waived.
There can never be an estoppel against a fundamental right. The pavement dwellers who are
coming to a particular city it’s because of the fact that they do not possess that much of
capacity in terms of money to afford a place for their own. It is out of their necessity that
they end up encroaching the public property. Each and every person does possess right to
earn his livelihood. These people are earning their livelihood by selling goods. The BMC is
right in asking for evicting the public places. But then given the condition of poor it’s
important that BMC gives them some rehabilitation at some alternative place so that they
can continue with their right to livelihood.
 Consistently the court has being saying that fundamental rights cannot be waived in
totality.
 Right to privacy like right to livelihood is not included in article 21. Right to privacy is held to
be a fundamental right by the supreme court in the case of right to PUTTA SWAMY V. UOI.
 The CG was defending that right to privacy is not a FR. One of the points mentioned during
the course of argument was that if right to privacy is dealt to be a FR, then in accordance to
Behram, Basheshar Nath and Oliga Telis right to privacy cannot be waived.
 If a person voluntarily discloses something which is intimate to an individual. One’s it is put
into public domain it cannot be stopped. Can’t this be treated as waiver of privacy?
 Right to privacy also means decisional autonomy to decide what is to kept private and what
is to be disclosed.
 Justice D.Y. Chandrachud and justice R.F. Nariman both of them mentioned briefly that
decision is Basheshar Nath and Behram should be re visited.
PERSONAL LAW:

 When the question of religion arises, the people are bound with their religion.
 People tend to get territorial. In the sense that they try to identify their religion. People think
they are bound to the same religion by certain practices they follow in common with the
other members of the same religion.
 Religion have said to play a very important part in shaking the secular fabric of our country.
 Personal law can be in the form of practices, certain beliefs that have continued to be
practiced for a very long period of time and they are generally associated with a religion.
 Because of the fact that these beliefs have being in place for a long period of time.
 We test the existing laws with respect to fundamental rights.
 Most personal laws of variety of religions they will have features which in current times goes
contrary to the fundamental rights. Most of the religions in those matters.
 There are practices which were inherently discriminatory.
 Now that we have the fundamental right the aspect of fundamental right is that there
should be gender equality on the basis of sex.
 It is here that the courts come into picture because personal laws are not a part of article 13.
 Can personal laws made be subject to fundamental rights or not?
 How judiciary looked at personal laws?
 Judiciary has always been sceptical of dwelling into the domain of personal laws.
 Judiciary always felt that the practices which are essentially related to a particular religion
and that is why it would not be proper for the institution of the judiciary to intervene it into
that.
 We see a trend of judiciary in their interaction with personal laws.
 We see a trend of judiciary where we see judiciary has majorly exercised a role of caution in
its interaction with personal law. Judiciary has been very careful of entering into the domain
of personal law.
 Earlier the stand of judiciary was that it cannot that it cannot interfere into personal laws
and personal law cannot be tested vis- a- vis the fundamental rights.
 The judiciary has said that we should move to the adoption of uniform civil code.
 Cases which informed the importance of UCC are “lily Thomas v. UOI” and “sarla mudgal v.
UOI”.
 People are territorial when it comes to religion.
 Judiciary earlier was cautious and it is embodiment.
 State of Bombay v. Narasu Appa Mali 1952. Can we include personal laws within article 13?
It’s not a Supreme court decision but it’s a High Court decision. The decision of High Court
can have a persuasive value on the other High Court. The decision of Bombay High Court has
been cited in numerous cases. It came to be cited multiple times by the Supreme Court.
Personal law precedes the constitution as well. Justice Gajendragadkar who became the CJI.
He goes by the traditional interpretation of Article 13.
 Personal law has purposely not interpreted in Article 13. It is conspicuous by its absence
because care has been taken care by the framers of the constitution to describe each and
every law which can come in the constitution and which can come within the definition of
laws in force.
 Therefore, he comes to a conclusion that purposely personal law has kept out from the
definition. It will not subject to the discipline of the Fundamental Right and they will not be
challenged. They cannot be challenged by reason of their violation of fundamental rights. Be
it any personal law if it goes against the Fundamental Right, still such a person law cannot be
challenged for the reason that it cannot be fit into Article 13.
 Ahmedabad Women Action Group v. UOI 1997. The court limits itself to a cautious role. It’s
a public interest litigation that came to be filed. The court says that personal laws cannot be
struck down if they go against the Fundamental Rights.
 PIL came to be filed challenging one of the practices that was followed by the Muslim
personal law that is Polygamy.
 Polygamy was challenged as a practice which offence the principle of Article 14 (non-
discrimination of equality and arbitrariness) and 15(no discrimination shall be made on the
basis of sex).
 Supreme Court refuses to take the cognizance of the matter at all. Supreme Court said it
cannot go into the question because whether to allow polygamy or not it is rather a matter
of policy decision that the state has to take. If the state wants to do it. It will be the state
initiation and remedy does not lie before the judiciary. The remedy will near the legislature
i.ie, asking the legislature to legislate it and polygamy cannot be practiced.
 The perception of judiciary on personal law has undergone a change.
 The understanding of the courts has undergone transition.
 Shayara Bano v. UOI 2017. Polygamy came to be challenged. There were three practices
which were challenged. Triple talaq, polygamy and Nikah Halala. The court did not choose to
all the three issues.
 The court refused to look into polygamy and Nikah halala (if the divorced couple want to
remarry it can’t happen immediately. The women have to marry another person then can
remarry the divorced person).
 A special constitution has been formed. Each and every judge belong to a different religion.
It was not unanimous decision. Dissenting: CJI J.S. Khehar and Abdul Nazeer J. They said that
talaq-e-biddat is an essential part of Muslim personal law. We should not test them against
the FR.
 Majority: Rohinton Nariman J. and U.U. Lalit J. 
 Concurring: Kurian Joseph J. 

 The majority held it violates article 14. It can be struck down as arbitrary.
 It means instant divorce. If the man calls “talaq” thrice he will end up divorcing his wife.
 There are two methods. The ideal way gives time for reconciliation (earlier method). The
instant talaq is the other method. The chances of arbitration increase. Talaq – e – biddat
gives arbitrary power to the Muslim man to obtain divorce and puts the parties in unequal
position and violates article 14.
 In most of the Islamic countries talaq-e-biddat is banned.
 It is not essential religious practice. Vis-à-vis article 14.
 It contravenes the Fundamental Rights and it should be struck down.
 Indian Young Lawyers Association v. State of Kerela.
 The women of 10-50 were not allowed to enter the temple (fertile women)
 It’s a PIL.
 4 were on the majority and 1 minority was by the women.
 The practice is rested on a belief that Lord Ayyapa is situated on a hill. The lame arguments
by the respondents and other interveners where it’s a PIL which has come before the court
and not women. The traditional idea of locus standi where it requires the person who
aggrieved should knock the doors of the court. The traditional understating is reduced in PIL.
 One of the objections was the journey. The ideal journey is 41 days.
 3 amici came to be appointed. A retired judge of a High Court and practicing lawyers of
Supreme Court.
 The impurity aspect was brought in.
 The petitioner has brought in an innovative concept of article 17(untouchability). It is to be
associated within the caste-based exclusion. The original intent and progressive way of
 interpreting the constitution. Traditionally article 21 has given a limited interpretation. If
other provisions are not limited by original intent theory and other provisions of the
constitution can be interpreted liberally. Why not the treatment given to article 21 should be
extended to article 17?
 The argument was not accepted by the majority of the judges.
 Justice DYC was in favour of the argument.
 Supreme Court this is not an essential practice and a belief.

EQUALITY PROVISIONS:

 There are multiple articles which together achieve the concept of equality.
 Some or the other way they are associated with equality.
 14,15 and 16 are termed as equality code.
 The principle of non-discrimination is the facet of equality.
 The idea of discrimination gives a better understanding of provisions and why articles are
worded in such a way.
 Discrimination
 US: Racial Discrimination
 US because part 3 are borrowed from Bill of Rights.
 Courts have got opportunity to develop the jurisprudence in interpreting the Fundamental
Rights.
 It can be taken as a very good example of federal constitution. No, it has not been a federal
constitution. Earlier they were independent and they came together to form confederation
and developed to federation.
 The state was so autonomous that most of the time they want to protect their autonomy by
infringement.
 Northern states have earlier exposure towards development. These states stopped slavery.
 Southern were relied on earning their livelihood by the way of agriculture. Much more
concentration of slaves. They were colonies of Britishers.
 Civil war broke out between Northern and Southern states in the year 1861. For the reason
of slavery. Because of the reason the concentration of slaves was not in northern states so
they abolished the slavery. Southern states relied on hard labour that is put in by the slaves.
The southern states are likely to feel the lose the hard labour. Abraham Lincoln came up
with emancipation proclamation. It was possible for the states to amend American
constitution and abolish slavery. Inclusion of right to equality and protection was made the
part of the constitution. 13th amendment slavery was abolished. 14th amendment equal
protection of law and 15th amendment the black’s got the voting right.
 The mindset of the southern state was not changed. They were not inclined to have slavery
abolished. Now the constitution says there is equal protection of law irrespective of race,
colour etc.
 The JIM CROW LEGISLATIONS. The white Americans used to imitate the black Americans in
the plays. One character was Jim Crow. That is how it came to be associated. Number of
laws came to be made in southern states. It provided for a segregation between blacks and
whites.
 Segregation in the railroad car in 1887. In one of the laws passes in relation to railroad cars it
provided different compartment for blacks and whites with the condition that equal
facilities.
 Florida passed these laws. Mississippi and Texas passed these kinds of legislations.
 Homer Plessey African American gets the ticket and he was not informed for the separate
cars for whites and blacks. The conductor took an objection and asked Homer Plessy to
vacate the seat. He refused because he knew 14 th amendment gave equal rights. He came to
 be arrested and convicted. He challenged the law at the district level. The judge came to be
filed under the judge Ferguson. In supreme court the court for the first time deciding on the
concept of separate and equal facilities. Can racial segregations be allowed? Will it violate
14th amendment? In 1896 held separate but equal facilities constitutional. There is no
violation of 14th amendment. It is applicable only to civil and political rights. Being a part of
jury and voting can be claimed under amendment 14. It doesn’t apply to social rights.
 Because of this decision there is going to be disastrous. Racial segregation that had come to
practice got a constitutional provision in the southern state. It got to be protected by the
supreme court. It’s not only railroad car but also restaurants, schools, each and every place
which came under public. It practiced with absolute impunity. It practiced until a new case
came in front of the supreme court. It came to an extent where there were separate schools
for blacks and whites.
 Brown v. Board of Education (1954): Brown wanted to allow his children to seek elementary
education. In the area where he was staying that public school was meant for whites. The
schools denied education for the girl. The girl was forced to travel. Oliver Brown raises a
question. He filed at a district level. US district was sympathetic. It understood that racial
segregation should not be done. District court followed the same logic which was put in
1896. That’s how the case reached supreme court. The lawyer for the plaintiff was Thurgood
Marshall who is the first black to become justice of US Supreme Court. Supreme Court in the
year 1954 understood equality is achieved when racial segregation is removed. They
understood it as unconstitutional. The white supremacy increases if it is not removed. It
struck down separate but equal clause.
 After passing 14th amendment also blacks were inferior. Because of the mindset of the
society, it took a long time for racial segregation basis on the skin colour to get struck down.
 George Floyd was a black African American who came to be choked to death by a white
American. The society is not yet which absolutely cleared itself for racial discrimination.
Equality is ensured when it comes to blacks as well.
 The constitution might adopt to the changes. The changes will not ensure equality. It will
take change in the attitude and mindset. There is not rational basis for discrimination. All
communities were driven from white supremacy. There was an invalid discrimination. There
is no logical to discriminated against the coloured. Discrimination on the basis of colour is a
wrong form of discrimination. It is illegal.

INDIAN SOCIETY.

 Even before the constitution came into force the ancient hierarchical caste-based society
because it was a caste-based society and it the same after the constitution came into force
(varna system).
 Certain jobs came to be associated with the castes. The jobs were made particular to specific
castes. The people belonging to the particular caste should take the job occupied for that
caste. People belonging to one caste are forbidden to do the occupation which is to be done
by other castes.
 Women as a section of the society for a very long period of time they taught women are not
fit to pursue education.
 Gender discrimination between man and woman.
 The constitution talks about gender equality. No discrimination on the basis of religion and
caste. When the constitution came into force henceforth everybody will be treated equally.
Varna system will not be valid. The discrimination woman faced will go away. Constitution
was not amended but it was made.
 Facet of the constitution was it goes to an extent to say everyone will get equal
opportunities under article 16. Women will also get equal opportunity. This a provision
made in the constitution.
 For marginalised section on the basis of caste and gender. What should be done to deserve
equal opportunity? Remedy lies in substantive equality but not in formal equality.
 The concept of formal equality is basically state. it is on the idea of for all purposes all the
people are consistently treated or equally treated. To neglect the trades of physically
handicap and man and woman. The minute differences are not taken under consideration.
Everybody is subject to same laws and treated equally. This would mean no question of
relaxation and no protection. The universal individual will be in the benchmark to
understand how an induvial to be looked like. Universal individual means an ideal individual.
When attributes are given to ideal individual the problems arise right from the fact. UK also
prescribes a universal individual for themselves. For UK the characteristics of ideal induvial is
Whiteman, Catholic, able bodied and also heterosexual man. Comparison occurs between to
different genders. The different characteristics which might be present individual will vary.
Right from sexual orientation.
 Substantive equality says it basis itself on redistributive justice. Marginalisation is to be
taken into account. The discrimination should be taken into account. If we apply formal
equality, we will leave marginalised equality (ignore). The application of formal equality says
we will be treated everyone equally. We are leaving people on the starting social point. The
gap will not be bridged. The bridge between different sections of the society will be
constant. Substantive equality says we need to adopt to rectify discrimination. We bring the
marginalised section of the society at the same level playing field. Once everybody is on the
level then the application of formal equality can be brought. We take cognizance of traits.
The unequal discrimination will have equal application later on.
 Article 14:
 Article 14 to 18 are termed as equality provision.
 14, 15 and 16 are treated as equality code.
 The idea behind this is article 14 is umbrella provision because it is worded more generously.
Article 15 and 16 are subset of article 14
 Article 14 is termed as genus and 15 and 16 as species.
 Article 14 is applicable to all the persons.
 Equality before law and protection of law are the provisions of article 14
 The essential attribute is there shouldn’t be discrimination.
 It the essential facet of rule of law.
 Because India follows the concept of rule of law and based on rule of law, we will abide the
provisions of equality.
 The Dicey’s rule of law. The second postulate. It’s not blanket equality. Aristotle said likes
are to be treated as likes and unlike to be described as unlike. Those people who are
similarly circumstanced to be treated equally for all purposes. For the purpose of privileges
or liabilities the people similarly circumstances are to be treated equally.
 It should not be discriminatory between who are similarly placed. Similarly placed to be
treated equally. Negation of equality means treating unequal equally.
 Article 14 strikes at discriminatory action on legislation and discriminatory administration.
The state which has behind addressed under article 14. One branch of the government
performs legislative and the other administrative.
 Article 14 can be divided into two different facets. Equality before law is actually take from
the second corollary from dicey’s rule of law. The second part is equal protection of laws.
 The negative and positive.
 Equality before law is taken as negative concept. When equality before law is used it
prohibits the state from treating people differently because of their rank. Certain additional
 privileges have been given to people. Because of this prohibition it is having a negative
notion
 Equal protection of laws has positive notion. The state has been enforced.
 Article 14 says reasonable classification is permissible. It does not prohibit classification.
Because only through the process of classification we will be able to determine.
 There are two tests. 1st it should be based on an intellectual differentia, some real and
substantial distinction, which distinguishes persons or things grouped together in a class
from the others left out of it. 2nd the differentia adopted as a basis of classification must have
a rational or reasonable nexus with the object sought to be achieved by the statute of
question. If classification is done it should be done on basis of intellectual differentia. It
should have connection with the object that is sought to be achieved.
 The differentia should have a nexus with the object sought to be achieved by the act.
 It is the essence of article 14.
 It does not talk about absolute equality. It recognises that people for all purposes cannot be
treated equally.
 Reasonable classification is permissible under article 15 to know who are to be treated
equally.
 The state has to ensure the facets of article 14. It is going to be applicable to the
administrative along with law making bodies.
 The administrative discretion should follow equality.
 The people who are similarly circumstanced are to be treated equal because they are on the
same pedestal.
 Article 14 will come to rescue where all the people are circumstanced or can one person be
treated a class in itself and because he can be treated as a class in itself so, that person will
deserve a different treatment from the others who have being kept out or from the others
who have being given a different kind of treatment. This question came to be addressed by
the supreme court has exhaustively discussed in the case below.
 The SC said in the case of Chiranjit lal v UOI. A legal person is being mentioned i.e., an
artificial person is being mentioned in this case. The government is empowered to take over
certain enterprises and it has done nationalization in earlier times and came to be
centralised and controlled by the state came to be exclusion of private enterprises. To
pursue socialisation. A company, under the company mill was being operated. The name of
the company was Sholaphur Spinning and Weaving Company and It’s a spinning and weaving
factory. The mill is engaged into the production of essential commodity i.e., cloth. The
central commodities legislated a law called Essential’s commodities act was passed. The
state looks after the essential commodity so, that no one is deprived of essential commodity
and equitable distribution. The act provides state to take efforts so, that hoarding doesn’t
take place. Cloth was one of the essential commodities. Spinning and weaving mill was
engaged to manufacture of cloth. This mill was so huge that it provided employment to large
number of people. A large labour force was involved. With the passage of time there was
some mismanagement. The management of the company went into such stage that because
of the improper handling of so many issues the mill was going to shut down. It led to very big
apprehension. The production is suffered and labour force will be put out of employment.
Because these two things were on stake the government to legislate and take over the
company. So, therefor, parliament passed a legislation and therefore the legislation was
Sholapur Spinning and Weaving Company emergency provisions act and then the act was
passed and gave power to central government. To take certain steps and ensure
mismanagement is taken care of. The Central Government can appoint its own directors and
take the control of the company along with all its properties. Because the government is
going to place its directors with the existing directors some of Rights of the shareholders
came to be affected because of this legislation. So, the way earlier shareholders could vote
 for certain decision taken by the company those rights were stripped of from the
shareholders. Because of the drastic effect that came to be made and applicable to only one
company. Chiranjit Lal one of the shareholders challenged it on the ground that only one
company has been singled out. This would amount to picking and choosing one and giving a
differential treatment to this company. Because the shareholders were deprived to hold
their rights, they were deprived to hold their property also. Because the property would lie
under the central government because of the law. The shareholder challenged it that only
one company was singled out amongst all the companies which were in existence and has
management issues. But those companies are not taken over by the central government but
only one was taken over to the detrimental and of the directors and the existing
shareholders. Though it’s not a unanimous decision the Supreme Court upheld the validity of
legislation. So, it upheld where parliament can pass a law where it can take over the
administration of one company. This is definitely upheld by the court. The SC stated that the
mismanagement of the company’s affair that was happening in Sholapur spinning and
weaving company was happening on a larger scale as compared to other companies which
were in existence. The two factors were had this mill shut down because of the
mismanagement of the company? The hampering of the proper supply of the essential
commodity. The 2nd was large scale employment would render many people. Because of
these characteristics of the company the supreme court came to the conclusion was this
company falls on a different pedestal as compared to the other company. So, that is why
because of these distinguishable features of the company it came to be treated as class in
itself and that is why the supreme court permitted the parliament to upheld the law made
by the parliament where only one came to be dealt by the specific legislation to the ouster
of the other companies. If an artificial person would have some extraordinary characteristics
can be treated as a class on itself. If a body, an artificial person in that matter would have
certain extraordinary characteristics then definitely can be treated as a class in itself.
Another point that substantiated its reasoning by concluding that the person who alleges
discrimination the person, the person who says that he gets unequal treatment they will
have to prove by comparing with another person why he is he getting discriminated. The
application of onus is part and parcel of the constitution. The responsibility of proving will lie
on the person who is alleging a particular thought. Chirajit Lal approached the court that this
company is given different treatment because it has been picked and chosen as against the
other companies. It was his responsibility also to prove it to the court that the issue of
mismanagement faced by this company and there were other companies also who had a
similar mismanagement. Another thing he will have to prove that it is similarly
circumstanced he will have to bring to the notice of the court there are other companies
which are being employing huge labour force. there are other companies also which are
engaged into the control of essential commodities and in spite of others being similarly
placed only one company is taken over and management is being looked after. This is what
he will have to prove but he failed to prove. The court came to the conclusion that company
definitely have distinguishable characteristics and features which makes it stand apart from
others. And therefore, person can be treated as class in itself came to be laid down.
 E.P.Royappa v. State of Tamil Nadu is a landmark decision. Since the earlier times the court
has been restricting itself to reasonable classification for a very long period because it was
permitted. With this case the court has come up with a new test called arbitrariness. This
has been laid down by the supreme court.
 State of WB v. Anwar Ali Sarkar: state legislation was in question. The state legislature of
WB had made a law which provided for the establishment of the special courts. Because
special courts came to be specially established that would mean they are different from the
regular courts. The courts came to be established by the law. The law also provided for what
purposes special courts came to be established. The idea was to provide speedy trial. Special
 courts can be established by Central Government and State Government. This is legally
permissible that apart from the legal hierarchy they can establish special courts also. Most of
the special courts are established through a law. Establishment as in a real is either a person
is appointed to deal matter in that particular law or already an existing judge would be given
additional responsibility to deal with special matters. The special legislations might also
allow the parliament to say the rules of procedure, gathering evidence is going to be
different from the regular procedure that is being followed.
 It’s a central legislation made by the state of WB. WB decided to have a special court for the
reason to have speedy trial. The problem lies in a manner in which the cases are identified.
For such offences or classes of offences, or for such cases or classes of cases. As the state
government may direct will be may direct by general or special order, will be given for the
special court for speedily trial. The procedure followed by the special court was less
advantageous as to the procedure followed in the regular court. Because the law did not
provide any guidelines that what type of cases were being given to speedily trial. The court
realised that the act should be declared as invalid because there is no reasonable
classification. On the grounds of lack of reasonable classification, the supreme court said it
amounts to giving a absolute uncontrolled to the government and because of this the
government can discriminate on the basis of the same offences. Therefore, the legislation
came to be struck down vis-à-vis article 14.
 A law can be said to be contrary to article 14 on the ground that there is no reasonable
classification given under the law.
 Indian young lawyer’s association. The classification was based under a criterion of
physiological and biological condition of women. A law that came to made again and was
contrary to article 14 and came to be struck down.
 The interpretation of article 14 has under gone a change. In a modern government absence
of discretionary power is not possible. Discretion has become a necessity. It should have
rationale basis for arriving at conclusion. Administrative comes in the decision of
E.P.Royappa. He himself was a member of Indian administrative services in TN. Civil services
at state level each department will have hierarchical classification. For the working of the
department the minister is head and elected representative. There is a hierarchy. The top
most official is chief secretary who heads the department. The post of chief secretary felt
vacant in the year 1969. E.P.Royappa was eligible he came to be selected. In the meantime,
the SG creates a temporary post. The name of the post id deputy chairman of state planning
commission. SG appoints the E.P.Royappa to this position for a period of 1 year. Now he
came to be given a post of deputy chairman. The position was of the same grade. SG sought
to extended this post beyond the extended period. This post was created for a period of one
year. Against this decision of SG E.P.Royappa makes a representation against this move and
brings it to the notice of state government that continuation of the post beyond the period
will be invalid on the grounds of Rule 4 of Indian Administrative services. He points out a
legal provision that temporary post cannot be extended because of the legal provision. The
SG creates another temporary post called “Officer on Special Duty to Sales Tax Department.
Because of shuttling the petitioner gets agitated and to join the post and proceeds on leave.
When a person of junior cadre came to be appointed as the chief secretary and came to be
appointed. The petitioner proceeded with a writ of mandamus under article 32 challenging
the constitutionality. He used the grounds of malafiedly transferring him from one post to
another post. The case came to be dismissed and petitioner was unable to prove the act of
malafide of the state. the government can create a post. The SG was able to convince the
court by saying there was a specific reason to make the petitioner. The petitioner had
knowledge in these fields. It was out of the experience and quality of person to be
appointed. The resultant was the petitioner came to be dismissed. Invoking Article 14 and
16. Equality in cases of public employment where article 16 came into picture. Justice
 Bhagwati says equality is a dynamic concept it cannot cribbed, cabined or confined. Equality
is opposite to arbitrariness. When equality is part of parcel of rule of law, arbitrariness
resting on the whims of monarch. When there is arbitrariness, the decision will be unequal.
Because if there is arbitrariness there will a condition where a person has said to act
according to his own whims and caprices and therefore is arbitrary. Whenever a person
exercises his own whims, favouritism is going to come into picture. It violates article 14 and
16.
 R.D.Shetty v. The International Airport Authority of India and Ors. the manner in which the
state could take up the action. It will be subject to the disciple of article 14. If action is
arbitrary then such a state action can be struck down. State is not a private induvial.

ARTICLE 15

 After article 14 the articles are specific. Irrespective of citizen or non-citizen. It’s the
umbrella provision.
 Specific provision of article 15.
 We talk about certain particularization done. Discrimination is not permissible. The
grounds have been mentioned in the article 15. Discrimination is forbidden only on
these specific grounds.
 It specifies when can a relaxation is granted.
 Clause 3 allows special protection for women and children.
 For seeking admission, backward classes are encompassed in article 15.
 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth. -
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the
State from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the
State, other than the minority educational institutions referred to in clause (1) of article
30.
(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of
article 29 shall prevent the State from making, —
   (a) any special provision for the advancement of any economically weaker sections of
citizens other than the classes mentioned in clauses (4) and (5); and
   (b) any special provision for the advancement of any economically weaker sections of
citizens other than the classes mentioned in clauses (4) and (5) in so far as such special
 provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30, which in the case of
reservation would be in addition to the existing reservations and subject to a maximum
of ten per cent. of the total seats in each category.
Explanation. —For the purposes of this article and article 16, "economically weaker
sections" shall be such as may be notified by the State from time to time on the basis of
family income and other indicators of economic disadvantage.
 Clause 4,5,6 came to be added through an amendment.
 Clause (1) and clause (2) have the same grounds.
 Classification can be done under article 14, but has to be reasonable. The classification
can be done for article 15. It should not be based on any of the grounds of article 15 and
have to be reasonable according to article 14, it should not be on the grounds of clause
1.
 These grounds are prohibited grounds of discrimination. There are two things “grounds
only of” and “before the grounds start”.
 “only” and “any of them” means there is something specific. “only” means that
discrimination will be prohibited only on the grounds mentioned in article 15. If any
ground is not mentioned they are not the grounds of discrimination under clause (1).
 “No other” can be taken as discrimination. There could be discrimination between a
abled body and disabled individual.
 The significance of the word “or any of them” One ground mentioned under article 15
cannot be dealt with the one which is not specified but can be challenged under article
14 but not with 15.
 Since the inception of the constitution article 15 has being interpreted to deal with
discrimination one ground at a time. Religion and sex cannot be combined. There is
every possibility that a person might be subjected to discrimination on the basis of
religion and another discrimination on the basis of gender, caste. Only one ground can
be dealt.
 If it is not based on the grounds of 15(1) it cannot be challenged.
 The court has taken the concept of intersectional discrimination in the case Navtej Singh
Johar v. Union of India.
 In clause 1 we find the prohibited ground of sex as well. When we have seen
discrimination on the basis of sex. In the earlier time the binary division was recognized.
There was no legal recognition for third gender. There has being a progression in the
sense that we had to struggle gender equality between the binary gender. Initial struggle
was bringing woman to the equal level. We are establishing equality between other
genders which have found legal recognition.
 When classification is being done there should be rationality. The people challenge
classification on a ground that is discriminatory but when it is not challenged on the
basis of classification.
 D.P.Joshi v. Madhya Bharat. Every state has state run medical colleges and hospitals.
Medical colleges maintenance is looked after the state. for keeping such kind of colleges
abridged with the changing technology state government has to extend the expenditure.
The resident student when applying for college the students were exempted to pay
capitation fee. The students outside MB they have to pay capitation fee. Imposition of
capitation was challenged under article 15(1). Imposing capitation fess is on the basis of
residents. The discriminatory is on the grounds of residence. The court said the ground is
place of birth and its difference from residence. They can never be used
interchangeably. The petition could not be entered. It won’t fall under the clause 1 of
article 15. Once claim is raised does not fall within the prohibited grounds. Remedy
 could have been provided if it falls in the ground of article 15 clause 1. The resident
students in all likelihood are more likely to serve the state by remaining in the state. the
students return it back to the society. The non-residents students after obtaining their
degree are more likely to end up in their native place rather than this state. the state
made classification was based on residents and non-residents.
 State of Rajasthan v. Pratap Singh the village resident of the state was said to be
harbouring dacoits. On the basis of the complaint that certain villages are harbouring
dacoits. Rajasthan sanctioned additional police force for protection. It was being done
because of the complaint made by the villagers. The expenses were to be borne by the
villagers. They were not expected to pay for forces. Discrimination on the basis of
religion and caste were put forth. The court struck down the action done by the state.
 The Supreme Court and High Court are not enthusiastic of dealing of violation of FR
dealing with personal laws. Discrimination on the basis of religion. If a person belonging
to one religion claims to be discriminated as compared to other religion. Danial Latifi v.
UOI. The decision of the court starts from the decision given in
 Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945: marriage of Muslim couple
which took place in 1932. After 14 years mohd. Ahmed khan enters into a second
marriage. For a brief period, he happens to stay with both of his wife’s. Later on, he
ended up divorcing shah bano. He agreed to pay maintenance. He gradually stopped the
maintenance. It went before the lower court for claiming of maintenance. According to
Muslim personal law husband is made liable to pay maintenance till the period of iddat.
Iddat is a period a woman has to observe not only after divorce but also after the death
of her person. Iddat is the waiting period which a woman has to observe when she
decides to remarry. It is 3 monthly periods. When husband dies the iddat is for 4 months
10 days. The period of iddat is limited. By the time shah bano filed a case iddat has
expired. The secular law made by the parliament under section 125 of CRPC the woman
can take relief. She went to the High Court to seek the enhance of the maintenance.
Mohammad Khan filed a petition to appeal in Supreme Court. The decision of the
Supreme Court was criticized on the ground that unnecessary interference in the
personal laws. The law came to be passed by the parliament in 1985 and passed in 1986.
The Muslim woman protection of rights on divorce act 1986 was passed. Supreme Court
did deviation from Muslim personal law. The content of the law was issue. Once act is
made Muslim woman can claim for maintenance only under this law. Now remedy
which could have being given under section 125 CRPC is not valid. The act allowed
divorce woman to apply for maintenance only for the period of iddat (3montlhy cycles).
If woman want to seek maintenance and its given only for the period of iddat. If a
divorced woman chose not to remarry still the maintenance will stop. Section 125 CRPC
allowed the court to pay maintenance till the time she remarries. It’s for the lifetime
until she remarries. Danial latifi was the lawyer for shaha bano.
 Danial latifi v. UOI: the court cannot dismiss because it falls under article 15 of clause 1.
The court rather said that the provision of Muslim woman act, how the act is interpreted
was seen. It did in a passing sentence say if woman divorced are getting unequal rights
compared to other woman of different religion. It did hold it unconstitutional. Court
interpreted section 3(1)(A). the supreme court interpreted the word within the period
iddat. But we will be extended it to entire life until she gets remarried. Hence forth
section 3(1)(a) was interpreted.
 Because article 15 is wide. Sex is a specific prohibited ground of discrimination. It will be
declared unconstitutional because it goes against clause 1 of article 15. If equality
between gender is achieved then discrimination has overcome.
 Geetha Hariharan the mother of the child wanted to make investment for the future of
the child. So, when she was about to this according to RBI they requested for the
 signature of the father. They were under separation and fighting for the custody of the
child. In this context RBI brings section 6 Hindu minority and guardianship. Court said
section 6 talks about disparities between man and woman. This came to addressed by
the court by saying that the word after is to be interpreted not to mean after death of
the father. If father is not providing for the child the mother can be the natural guardian
irrespective of father being alive or not. this is how court tried to establish the status of
woman same as man. The custody will equally lie with the mother. Gender equality
established vis-à-vis the binary gender.
 Adultery was treated as offence. There is an unreasonable classification.
 There were several times before where the question has been arisen on the
constitutional validity of Section 497 of Indian Penal Code and Section 198 of Criminal
Procedure Code in front of Supreme Court of India. It has been begun with the case of
Yusuf Abdul Aziz v. State of Bombay where the husband was accused of adultery under
Section 497 of Indian Penal Code.
 But when the complaint was filed, the husband went to the Bombay High Court to check
the constitutional validity of the provisions under Article 228 of the Constitution of India.
The case was decided against the husband and an observation was made by Justice
Chagla about the assumption laid down in Section 497. Mr. Peerbhoy is right when he
says that the underlying idea of Section 497 is that wives are properties of their
husbands. The very fact that this offence is only cognizable with the consent of the
husband emphasizes that point of view. It may be argued that Section 497 should not
find a place in any modern Code of law. Days are past, we hope, when women were
looked upon as property by their husbands.
 But that is an argument more in favour of doing away with Section 497 altogether.
 A challenge was raised before the court which was only to the restriction on treating a
wife as an abettor. This provision was supposed to be violative of Article 14 of the Indian
Constitution but the court held that this provision was safeguarded by Article 15(3) of
the constitution of India which provides for special provisions for women and children.
This history of adultery depicts that section 497 clearly provides that adultery law was
always in favour of husband, for him to reserves an ownership over the sexual
relationship of his wife.
 Therefore, this section was never been in favour to the benefit for the women. This law
provides that any person who are engaged in sexual relation with the wife of another
man and the husband of that women gives his consent for the same then such an act
won't be charged for adultery. This clearly denotes that how women are considered as
an object in the hands of their husbands.
 Clause 3 is to make a special provision for women and children.
 It’s not necessary that only law can be made whereby a special provision is made. Any
special action can be taken by the state that can be done. Executive action can also be
done for special protection.
 Clause 1 and 2 have a specific bar on the state. they are prohibiting the state to take any
kind of action which is discriminatory on the basis of sex.
 Clause 3 is an exception to clause 1 and 2.
 Clause 4 is also an exception.
 From the general rule of equality. There’s a departure from the rigours of non-
discriminatory on the basis of sex of clause 1 and 2.
 Clause 3 as an exception to clause 1 and 2. It’s a traditional way of understanding to call
them as an exception to understand the relation.
 Clause 3 and 4 are treated as a facet. It lies in substantive equality.
 Clause 1 and 2 say that state shall not discriminate on the grounds of sex. Clause 2 when
it comes to access to where in public is frequent.
 This prohibition of discrimination is done so that all the genders are to be treated
equally. So that binary or the third genders to be treated equally. Traditionally there are
incidences that woman as a section of the society largely socially backward,
educationally handicap. They were subjected to discrimination also on the levels of
employment. If this gender should be given level playing equality.
 Some additional advantage can be given to this particular sex as the other sex of the
society. In some special provision by virtue of law or action some relaxation, privilege
and protection can be given to overcome the discrimination and brought into main
stream of society. That is why clause 3 was added.
 In the current times clause 3 is treated as facet of clause 1 of article 15.
 Clause 3 is broadly worded by using the words of special provision. There is no specific
area in which special provision can be made. Provision can also be made for women by
giving a preferential treatment or outlook for securing public employment.
 Article 15: 1 and 2 are generally worded, 3 and 4 are exception, 6 is for economically
backward society. Article 15 nowhere talks about employment at all because reservation
for public services is under article 16.
 Article 15 and 16 are related to each other.
 Article 16: No discrimination when it comes to public employment. 16 does not talk
about reservation in public employment for women.
 A clarity came where do we find the provision under which the state can make provision
for reservation in public employment.
 The special provision can be made by the state by making a law for protection of women
and children. With the presence of clause 3 of article 15.
 Action taken by the government of AP. The government has made a special provision
where in preference will be given for securing a public employment or post under the
government. There will be qualifications required for the post. Male and female can
apply for the post. Both have same educational qualification which are required for the
post vis-à-vis other gender as well. 30% will be reserved for women when the man and
woman when stand on the same ground. Article 15 came to be challenged. Reservation
should be made under 16 by the government. It should invoke article 16 for reservation.
P.B.Vijay Kumar pointed out any reservation made under article 16 prohibits
discrimination on the basis of sex under clause 1. If reservation is till made it will be
unconstitutional. Clause 3 is so wide the basic idea is to bring in equality. Traditionally,
educationally and socially she was discriminated. For achieving equality providing
employment is equally important. Therefore, it came to be interpreted the state can
make reservation in cases of public employed. It cannot be stopped by bringing article
16. 30% reservation came to be valid.
 The original article 15 was of 3 clauses. Clause 4,5, and 6 was added by a way of
amendment.
 STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN AIR 1951 SC 226: the state of madras
decided to provide reservation for students seeking admission under medical and
engineering colleges under state. it provided seats to be reserved on the basis of castes
and religion. 6 for non-brahmin Hindus, 2 for backward Hindus. Right to reservation was
done on the basis of caste. It came to challenge before the court. 15 1 was challenged.
Clause 1 prohibits discrimination. The state of madras defends by saying it is obligated to
make some special provisions. Directive Principle of Stata Policy are. State has to ensure
to bring in these principles for the purpose of good governance which are mentioned
under Directive Principles of State Policy. Article 46 talks about promotion of educational
interests of weaker sections in particular SC’s and ST’s. under this provision it ended up
making communal order. We have Fundamental Rights 15(1) and Directive Principles of
State Policy 37 and 46 and can make special provision for securing education and it can
 be done by reservation but if it is done article 15 is infringed. The court struck down the
communal order on the ground that it infringed Fundamental Rights. Fundamental
Rights will prevail over the Directive Principles of State Policy and no action can be
upheld. Because of this decision if the states genuinely want to do something vis-à-vis
education for the backward sections. By the first constitutional amendment clause 4
came to be added. State can make special provision for protection of backward sections.
Clause 4 gives power to the state for protection of SC’s and ST’s vis-à-vis clause 4.
 The state is empowered because of clause 4. It can constitutionally can make provision.
It is understood that special provision can be made by reserving seats. Where in it can
be promoted and protected. Clause 4 does not provide from any upper limit how much
reservation to be made.
 341 and 342 says what all sub casted fall under SC’s and ST’s.
 The meaning of SC and ST is clear.
 Clause 4 says socially and educationally backward. These words are joined with a
conjunctive. These are to be taken together. There should be skill and bench mark
against which we are comparing the backwardness. The authority has to be let to the
states of India because the state is the best judge of the prevailing circumstances. The
state has the freedom to come up with the criteria of backwardness. The state gets the
freedom to fix the backwardness still the judiciary can look into whether the criteria is
reasonable or not. it needs to be justified.
 Reservation in article 15 are centred. Clause 4 does not change about education. It is
general. Clause 5 has been added by the 93 rd amendment. Clause 4 by the 1st
amendment. Because 5 is not there its only 4. 4 says that special provisions have to be
made with respect to education because this aspect of making reservation can be
substantiated because of article 46 of Directive Principles of State Policy being there.
Even if 46 is not there, there is a relation between advancement and education. Most of
the cases deal with admission in educational institutions.
 BALAJI V. STATE OF MYSORE AIR 1963 SC 649: the state got a free hand to make special
provision. In champakam a communal order has being made in state run medical and
engineering institutions. The backward classes to be divided in two categories. Backward
(50%) and more backward classes (15%). 15% for SC and 3% for ST. the reservation
should be reasonable. The supreme court has said reservation can be made. The court
said in this case that it should not exceed 50%. Apart from SC and ST who can be
recognised. The OBC came to be compared with that of SC and ST. there are other
classes who deserve some special provision. Whether they are as backward as ST and SC
or not. the SC said that caste alone cannot be a sole factor for backwardness. Caste is
relevant and important factor but it’s not the sole criteria. People not belonging to a
backward class could still fall under socially and educationally backward. Poverty cannot
be the only factor to consider backwardness because it will end up having large
population. Occupation, place of habitation and poverty contribute backwardness.
Occupation was associated by the caste for a long period of time previously. All these
factors can be taken into account to ascertain backwardness. Clause 4 uses the word
“classes”. It is different from the word “caste”. The quantum of reservation was not
mentioned in clause 4 or not anywhere in the constitution. The interests are to be
adjusted with the interests of community. Reservation should not be more than 50%.
The court did not venture in specifying because that is the liberty and freedom left to
the state.
 Special provisions which are to be made by the state. nether clause 4 or 5 or article 16 is
not a constitutional mandate. These are the provisions which empower the state for the
advancement of SC and BC. The idea is to help the backward classes and to overcome
 discrimination. It is to compensate and help them advance to reach the main stream of
the society.
 Valsamma Paul v. Cochin University AIR 1996 SC 1010: Voluntary mobility: a woman
marrying a man belonging to a backward caste. She is moving from a forward class to a
backward class. Whether to extend the protection. It is compensatory in nature. The
person can’t claim the benefits of clause 4 or under article 16. Clause 4 has been added
with a specific purpose to acknowledge the hardships. If it happens, we will be
frustrating the purpose. If a person mobilized to move to different caste cannot claim
the benefits. This is where the court should look into that the benefits. The person with
voluntary mobility is not entitled.
 Clause 3 of article 15 reserving seats in cases of admission in educational institution for
women cannot be done in clause 4 and 5.
 Reservation of seats for SC/ST/SEBC can be done in clause 4 and 5.
 Certain seats are also reserved for defence personnel and for people residing in J&K.
Under what provision can it be made? The reservations for these people can be made
under the 1st clause of article 15. Clause 1 talks about non-discrimination which means
there should be equality. Everyone cannot be placed equality and this is where
classification arises. There should be rational and reasonable basis. The same
classification can be applicable for clause 1. If a classification is being made by saying
certain seats are going to be reserved for wards of defence personnel. There is no
intelligible differentia. For the volatile situation the seats are reserved for the people
residing in J&K.
 Nivedita Jain: reservation is in the form of quota system. The reason is that simply saying
that these many seats are reserved for SEBC/ST/SC. there is a great disparity in ither
peripheral areas of the region because of the lack of the accessibility of education. When
a person has day to day difficulty in accessibility eventually lead to be called as socially
and educationally backward. Then is this case reserving seat can also be validity done by
the state. if this is held valid the how further this relaxation is to be given? It comes
across graduate and post graduate level. It may be for obtaining basic education on the
basis of which employment can be given. Residents as a part of the quota is for the
region or balancing the interests.
 Pradeep Jain (Dr.) v. Union of India AIR 1984 SC 1420: The court said as the level of
education increases the lesser the reservation. Because once that is achieved benefit of
reservation can’t be taken. It does not specify how these things are dealt or for how
long. Because it’s not mentioned in clause 4 for how long it should continue. Court said
we need to stop making provisions on the basis of grounds of residents. The quota on
the basis of residents should not be continued for long. Residents should not be one of
the criteria for the post graduate courses. As we climb up the ladder of education the
person in said to be advanced and the reservation should go down. This case had two
issues 1st the rule which had a provision for the residents. 2 nd was along with the
requirement of residents it also provided for institutional preference. It means where a
person has graduated the same student seeking admission at the same place for PG, he
will be getting the preference over the other students. The reservation should be
reasonable is the condition. Even the institutional preference should be reasonable it
should not be such that all the students. There will be an automatically ousted from the
institution. The court tries to bifurcate between the residents from the undergraduate
course and it should not continue in the post-graduation course. Secondly. Particularly
for MD courses should take precedents in PG courses. The 2 nd issues the court said
institutional preference could be there but it should not extend 50%.
 The state finds out innovative ways in which giving preference to the students graduated
from their institute.
  After Pradeep Jains case institutional preference case should be 50% indeed.
 AIIMS Student Association vs. AIIMS: entrance exam is to be given by each and every
graduate from any university. Which means students graduated from AIIMS should
appear for entrance examination. The rule said that it reserved 40% of seats for its own
internal students graduated from AIIMS. The rule said that these 40% will be reserved
irrespective of their performance in their examination. The court struck down and
lowered the institutional preference to 20% with the condition that everyone should be
eligible to have equal cut off so as to secure the admission.
 Residents and institutional preferences are the aspects. The special provision can be
made in a way of relaxation of marks. Because of the difficulty in pursuing education the
person might not be in a situation to get the same percentage of marks. The difference
in marks should not be very wide and should not be a great disparity. It should be
reasonable.
 Dr. Preeti Srivastav v. State of Madhya Pradesh AIR 1999 SC 2894: the state run medical
and engineering college the states of India are free to decide what are the percent of
seats to be reserved and all. The states become so determined with the obligation that
the DPSP mandates in promoting the education for SEBC/SC/ST. the interest of the
deprived section should be adjusted. There should be a fine balance. The political parties
of easement to the backward sections that they make unreasonable provisions. Sadhana
Devi: the state-run medical colleges for admission in PG course. The state had come up
with entrance examination for degree and diploma. The cut off is 45% and no cut off for
the students belonging to SC/ST category. Without there being any minimum qualifying
criteria was put forth. The court says that there should be a minimum qualifying
criterion. The state did put up the qualifying criteria. 45% is for admission for general
category. The cut off for the reserved category is 20%. In addition to that 50% of the
seats came to be reserved and came to be challenged in Preeti Srivastav case. The
percentage has to be reasonable. The court struck down saying that there is a wide
disparity. The court did not prescribe the marks because it is not for the state to decide
the minimum qualifying criteria. It should be handled by the Medical Council of India.
The court left it to them to decide the marks and the court didn’t dwell into that.

CLAUSE 5:

 Clause 4 is general in nature because when compared with clause 5 which is specific.
 It has been added by the 93rd amendment.
 For the evolution of the basic structure of the constitution there has being a tussle between
the parliament and judiciary. Parliament does not possess unlimited power.
 The dispute came to be settled in kesava nanda bharthi case.
 To find out a way the supreme court in two cases limited the power of the sg to provide for
the advancement.
 TMA Pai case was relating to article 30.
 Education is dominated by the private players. the number of private educational
institutions are too huge.
 The state will be able to implement the quota.
 The reservation can be implemented on the private colleges but for the continuance they
are receiving aid from the state.
 The state government started seat sharing where reservation policy is imposed. Almost the
majority of the seats will be cleared by the students who cleared the examination. It is
between the state and the management. The private unaided institutions were not happy
because they also have their right under article 30 to administer their educational institution
in their manner. For minority education have filed writ petitions. Because of the multiple
 writs petitions the supreme court took up the case. It was a 11-judge bench. The state
insisted in seat sharing of private unaided educational institutions. The non-minority
education institution also has a right to administer their institution. It came to be treated as
occupation according to the supreme court. Such a seat sharing cannot be imposed by the
government on a minority or non-minority educational institutions. The supreme struck
down seat sharing. The state cannot insist on the private educational institution. Chief
justice ended up saying in an obiter dictum the state government should enter into
discussion with private educational institution how the private institution can cater to the
need for backward sections. The state government continued and gone ahead with the seat
sharing. In P. A. Inamdar case the court clarified what was said in T. M. A. Pai case. It is a 7-
judge bench. It acknowledges with the decision in Pai case, the state will have no power to
insist of seat sharing be it or minority or not. the state government will not have to interfere
in private educational system. The has led to the amendment where in clause 5 came to be
added.

ARTICLE 16:

 Article 16 talks about equality in public employment.

 Fundamental manner of interpretation of article 16 is similar to article 15. Article 16 is the
facet of article 15. Article 16 is particular than 15. It is narrower.
 It talks about no discrimination in public employment. Equals are to be treated equally.
 It doesn’t not talk about blanket uniformity.
 Article 16 allows classification. It says that employees who are under the services of the
state and central government and the classification should be reasonable.
 Article 15 opens with a general statement which says there should be no discrimination and
it’s the same with Article 16.
 Article 15 talks about prohibited grounds of discrimination. Article 16 also talks about the
prohibited grounds of discrimination.
 Grounds mentioned in Article 15 are lesser as compared to Article 16. Like descent and
residence are two grounds which are included in article 16.
 Clause 2 talks about prohibited grounds of residents are 3 talks about domicile. 4 talks about
provisions of reservation, 4a talks about reservation in case of promotion and seniority, 4b
talks about backlog of reservation is to be dealt. 5 talks about when talking about religious
or denominational institution should belong to the same religion. 6 was added through
amendment for economically weaker section.
 Payment of salary to the similarly circumstanced employees. Termination, pension,
promotion, etc. it is not only to the initial stages of appointment.
 Public services include the instrumentalities also.
 Compassionate appointment is when a person employed with the state (untimely demised).
The regular method of appointment is not followed. it marks a departure from the regular
process. Balbir kaur v. State. The discretion is with the state whether to provide an
appointment. The rules are left open for the central and state government. The rules will be
applicable made abiding these rules. Because compassionate appointment is decided by the
state like the responsibility of the state whether the family. It can be made by virtue of
clause 1 and 2 of article 16.
 For a very long period of time individual has served the state and later on the state has to
serve the individual once the tenure of his service comes to an end.
 Because equal pay for equal work as such in these words have not being mentioned in article
16. Equality in
 16 would not be limited to only initial stage but through all times during the service
 general method of appointment is followed but there is an Inception of compassionate
appointment.
 It happens in the situation of sudden demise or the death of the government employee and
if he is the sole member of the family.
 Appointment on compassionate Grounds of a son or daughter or widow to assist the family
and hence rigorous procedure is not followed.
 The reason of this appointment was discussed in the case of Babli Kaur v. State 1956
 hence the hirer can be given the chance of serving and take care of their family and hence it
can be done.
 This cannot be asked by the individual but it is on the court’s discretion only
 So, here the court has to decide which family needs it or not if the family cannot survive
without your appointment, then it could be given
 It cannot be claimed as a right under article 16. Here according to the guidelines of the
concerned authority and financial condition of the family compassionate appointment would
be provided.
Equal pay for equal work
 The principal has been derived from articles 14, 16 and 39(d) and is now treated as a
fundamental right.
 Earlier it was not mandated expressly but now treated as fundamental right.
 they should be performing similar work then only they can claim. The nature of work should
be the same.
 State of MP v. Pramod Bharatiya 1993: Here it has been enshrined in Article 14 as well as
article 16
 The parameters to be taken are:
 nature of work
 common employee
 So, to claim they should prove that the nature of work is same when compared to others
and they should be working for the same employee as well.
 Person holding same position and performing similar duties and employee holding the same
rank under the same employee should be treated the same.
 Federation of AI Custom and Central Excise Stenographers v. UOI: persons who type the
document or the officers they are dictated and these are written by the scenographer.
Stenographers were appointed with officers in the pay scale of officers of rupees 2500 to
2750 and certain were appointed to joint Secretariat and officer above the rank. Here
officers rank is different. Here stenographers thought that they are stenographer and there
is common employee working for the state and case was filed for party.
 Question: are the stenographers to be grouped together or differentiated?
 Not only amount or volume of work but to the nature as well. Stenographers to joint
secretaries had equal responsibilities because joint secretaries take more decision and the
nature of work here is more.
 Both the group of stenographers were very different because they were differences in
responsibility.
 Hence Court rejected the contention and said that “it is not possible to say that the
differentiation is based on no rational nexus with the object sought to be achieved”.
 The government has justified the differentiation amongst the two classes of stenographers
on the ground of difference in their responsibility, confidentiality and the relationship with
public.
 Article 16 clause 3 is treated as an exception to article 16 clause 1 and article 16 clause 2
article 16 clause 3
 Here certain positions or post could be reserved for residents and domicile
 It is not a compulsion and is a discretionary decision. If there is a requirement there should
be reasons for the decision of reservation.
 Article 16 clause 2 talks about no discrimination on the basis of Residence.
 So, both the classes clash each other. So, here residents can be kept as criteria but not a
compulsion. There is a safeguard included in clause 3 because this requirement of Residence
should not be made by the state legislature or government but if the state think that the
Parliament can make a law and allow it.
 Because in few cases due to political pressure they make decisions and make biased opinion
and hence power is given to the Parliament and it thinks it is needed then given an unbiased
judgement and allow if required
Reservation in services article 16 class 4
 reservation to be made for the backward classes of citizens by the state if it thinks so and
can be made and not a compulsion
 If they think that the particular class is not been showing at the public point services then
they can provide reservation.
 So, this is not a right that can be claimed but it is an optional or discretionary on the state.
 So here if reservation has to be given then they have to come with qualified data so that it
could be proved and a law can be brought.
 The meaning of backward class of citizens in article 16 clause 4 would be treated same as in
article 15 (socially and educationally backward classes). It was proved or settled in the case
law Janki Prasad Parimoo v. State of Jammu and Kashmir, AIR 1973 SC 930.
 Can special treatment in cases of salary, termination or pension be given under article 16
clause 4? No, they cannot because they do not belong here but article 16 clause 1
 Manager, Southern Railway v. Rangachari AIR 1962 SC 36: it revolves around interpretation
of clause 4 of article 16. It could be interpreted to limit reservation at initial stages of
appointment. How clause 4 is to be interpreted? Whether narrower interpretation or
broader interpretation? Narrower means reservation can be provided by the state only at
the initial stages. Liberal interpretation when we include beyond the initial stages. the
circular issued by the railway’s administration for SC/ST for promotion. It is not categorically
mentioned in clause 4. If the reservation is limited. Clause 4 hinges itself on achieving equal
interpretation. The constitutional goal is for adequate representation. The court says the
test for adequate representation it is no the number because the backward lasses might end
up at the lowest if adequate interpretation is limited to backward classes. Number and
values are taken into account. Reservation can be made in cases of promotion. It has
liberally interpreted the provision. There is a risk that reservation might become excessive.
When it comes to reservation it has to be reasonable. Classification made between the
forward sections so that they come to the level playing field. If reservation is unreasonable,
we are putting the constitution at stake. The court put forth 2 points. The court refers to
article 335 it talks about maintain efficiency in administration. The claims are to be decided
against the efficiency of administration. It should not sacrifice efficiency. For giving claims
efficiency should not be sacrificed at it is pointed out by the supreme court. The 2 nd reason
was clause 4 is an exception to clause 1 and 2 of article 16. Clause 4 is a facet of clause 1 but
not an exception. Because clause 4 is an exception to 1 and 2. Reservation can be provided
at the initial stages of appointment but adequate representation.
 T. Devadasan v. Union of India AIR 1964 SC 179: with Rangachari the next important case is
devdasan case. Public services have a multiple post. A roaster is taken out by the state
where in the number of seats for general and reserved category is specified. The supreme
court asked to adjudge the “carry forward rule” in this case. Carry forward rule is continued
for a period of 3years. There is a possibility the reserved post could go beyond 50%. In the
case 17 ½ posts were reserved for SC/ST. 29 were for reserved and 16 for open. There were
45 vacancies in total. The supreme court struck down the carry forward rule. It said when we
 are reserving posts for backward classes it should be adjusted so that the intention should
not be as such, we are sacrificing the fundamental rights of the open category. The decision
was not unanimous. The dissenting judge said clause 4 is not an exception to clause 1.
 State of Kerala v. N.M. Thomas AIR 1976 SC 490: the SC said clause 4 is not an exception to
clause 1 but it is a facet. Kerala government made a rule to say that promotion from the
cadre of lower division clerks to higher cadre of upper division clerks depended on passing a
test within a period of 2 years. For SC/ST’s exemption could be granted for a longer period.
The candidates for SC/ST were given 2 extra years. This preferential treatment came to be
challenged saying it discriminatory. Preferential treatment cannot be given under clause 4. 4
talks about reservation for backward classes who are not adequately represent. Clause 4 of
article 15 had used the words special provisions. It was general in nature. But clause 4 of
article 16 does not mention and limited for providing reservation but nothing apart from
reservation. Under article 16 can some action like this be taken for preferential treatment?
SC says it is permissible under clause 1 of article 16. Clause 1 talks about equality of
opportunity for public employment. Article 16 is a facet of article 14. If classification is based
on intelligible differentia, it can be done. Backward class cannot be equated to general
category. The differential treatment can be done by a way of upliftment. The court says it
can be done under clause 1 of article 16. The court says when we are talking about
promotion the qualification is the same for everyone. Likewise, there is a same uniform
examination. There is no compromise as to the quality. There is a difference between SC/ ST
and general. In fact, through the provisions of clause 1 reservation can be done without
taking the help of clause 4 but clause 4 was added such that there should not be any
controversy. Court justifies that if clause 4 is an exception it would have being difficult for
reservation. Clause 4 is facet of clause 1 and permissible for reservation for people in
backward classes. Reasonable classification has rational nexus. It is constitutional and it can
be done. The supreme court says rule under Balaji case that reservation should not exceed
50% is a mere rule of caution. Strict adherence can be relaxed. It is just a rule of caution.
50% should be followed on general basis. The court liberally interpreting the provision so the
constitutional goal is fulfilled. It should be cautious of the fact that we will not sacrifice the
rights of the other sections of the community. 1 st is basis should be backwardness, 2nd
preferential treatment should be reasonable and rationale nexus with the objective and 3 rd
administrative efficiency should not be sacrificed.
 ABSK Sangh (Railway) v. UOI: the question was the administration reserved 17 ½ % seats for
SC/ST. there was a carry forward rule. It resulted the reservation could go up to 66% and
came to be challenged. The supreme court reiterates what it said in NM Thomas case. The
court held quantum of reservation it held it is not excessive and upheld the carry forward
rule. It is not as a general rule it is because of the factual situation. The court reiterated the
same it should not exceed 50%. If the posts are not filled there is a lack of qualified people
who can apply for the post. Either they are not educationally qualified enough and dearth of
qualifying candidates. The supreme court said when we take a look at reservation in railway
services and the number of candidates very few people represent. Because there are no
qualified candidates. The court said that SC/ST are few in number. The court relaxed it.

MANDAL COMMISSION:

 It is through the quantifiable data that would be collected by the state to identify the
backward classes.
 Reservation services under the states of India is different from the centre. The reservation
between state and centre.
 The quantifiable will have to brought into the public domain through certain bodies. The
constitution of commission will come into picture.
 There could be a change in the number of backward castes in the country. Periodically
commissions are constituted to look into the backward class.
 Mandal commission was set up for the purpose of finding the backward class.
 Kaka kallelkar’s was the first commission set up on 29 th January 1953.
 The criteria are pre decided for the commission.
 It discovers 2399 castes. It was not accepted by the government. The commission is not
expected to bare its expenditure. Whatever expenditure is taken government bares it.
 After a long time, the next committee was constituted in 1979 after the first report in 1955.
 It is chaired by B.P.Mandal commission. The second backward commission came to be set up
in December 1980 submitted its report.
 It identifies 3743 castes and 27% reservation in government jobs. It was not accepted in one
go. Glitches occurred before the commission came to be submitted.
 The janta government collapsed before the report came to be submitted. The congress
government didn’t want to implement the report.
 In 1989 congress government collapsed and janta govt came to power.
 The provision for reservation can be made if they are not adequately represented. The
founders of the constitution specified it is possible through a law made by the parliament.
 Memorandum was issued for 27% of reservation for government jobs for the SEBC issued by
PM V.P. Singh.
 A writ petition came to be filed challenging the memorandum based on the commission. It
was heard by 5 judge constitution benches. It was pending in the SC. Because of large scale
disturbance this came to be taken by cognizance of congress party. The second office
memorandum was issued by congress government. It is introducing economic criteria of 27%
of reservation. Another 10% of vacancy came to be added for SEBC. Thee total went to 37%.
The pending case was to be heard by a larger bench by 9 judge benches.
 Indra Sahani v. UOI came to called as mandal. Because of the decision given in the case
there could be some findings which would go against the policy decisions taken by the govt.
to overcome the findings the amendment came to be added in article 16. The references
have been made to the earlier decided cases. It was decided by 9 judge bench. The bench in
its all-elaborate manner it decided on multiple questions.
Issues:
1. Whether article 16(4) is an exception to article 16(1)?
2. What would be the content of the phrase “backward class” under 16(4) of the
constitution and whether caste by itself could constitute a class and whether economic
criteria by itself could identify a class for article 16(4) and whether “backward classes” in
article 16(4) would include “Weaker Sections” mentioned in Art. 46 as well?
3. If economic criteria by itself could not constitute a backward class under article 16(4),
whether reservation in posts under the state based exclusively on economic criteria
would be covered by article 16(1) of the constitution of India?
4. Can the extent of reservation under the state under article 16(4) or if permitted under
article 16(1) and article 16(4) together exceed 50% of the posts or 50% and can such an
extend of reservation be determined without determining the inadequacy of
representation of each class under the state?
5. Does article 16(4) permit classification of ‘backward classes” into more and most
backward classes or permit classification amongst them based on economic or other
considerations.
6. Would making “provision for reservation” under article 16(4) by the state necessarily
have to be by law made by the parliament or by the state legislature or can be made by
an executive order?
7. Would reservation of appointments or posts in favour of “backward classes” be
restricted to the initial appointment to the post or would it extend to promotions also?
FINDINGS OF THE COURT:

1. If it is reasonable classification, it can be done through clause 1. The bench agreed with the
finding given in NM Thomas case. Clause (4) is not an exception to clause (1). It carves out a
section of society viz. the backward classes for whom reservation in services can be made.
Reservation for other sections of the society can be made under clause (1) of Art. 16.
2. The backward classes are socially backward. Because they are socially backward it results in
educational and economic. Solely economic criteria are not the only criteria. The backward
classes referred to in Art. 16(4) is the socially backward class whose educational and
economic backwardness is on account of their social backwardness. The economic criteria by
itself cannot constitute a class in itself and cannot identify as backward class unless the
economic backwardness of the class is on account of its social backwardness. The weaker
section mentioned in Art. 46 is genus and ‘backward class’ is a species. Art. 16(4) refers to
‘backward class’ which is a part of weaker section of the society and it’s is only for the
backward classes who are inadequately represented in the services and not for all the
weaker sections of the society that reservation in services can be provided under Art. 16(4).
3. No reservation of posts under the State can be made exclusively on economic criteria either
under Art. 16(4) or under Art. 16(1).
4. The bench upholds the judgment in NM Thomas and ABSK. The court by its finding is
upholding the same point. The value of representation talks about adequate representation.
The bench is accepting what it says in Rangachari’s case. Ordinarily, the reservation kept
under Art. 16(1) and Art. 16(4) together should not exceed 50% in any particular year.
However, every excess over 50% will have to be justified on valid grounds which will have to
be specifically made out. The adequacy is not be determined on the basis of the overall
numerical strength. For determining adequacy in representation their representation at
different levels of administration has to be taken into consideration. Article 16(4) permits
classification of Backward into more and most backward. However, this classification is to be
permitted only on the basis of the degree of social backwardness and not on the basis of
economic backwardness alone. If the backward classes are classified as more backward and
most backward separate quotas of reservation will have to be kept for each class. In absence
of such quota such reservation will be illegal. The test of advancement lies in the capacity to
compete with the forward class. If the advanced section of the backward class is so
advanced so as to be able to compete with the forward class, the advanced section of the
backward class no longer belongs to the backward class and should cease to be considered
for benefit of reservation.
5. The reservation in Art. 16(4) can be made by an executive order.
6. Reservation in promotion in services are unconstitutional as they are inconsistent with
maintenance of administrative efficiency. However, backward classes may be provided with
relaxations, exemptions, concessions, etc.
7. Wherever reservation have been provided in promotions, it will continue for a period of 5
years.

ARTICLE 19: RIGHT TO FREEDOM

 17 prevention and prohibition of untouchability. 18 is regarding abolition of titles.

 It has gone under amendments. It has undergone change not only with rights but also with
reasonable restrictions as well.
 International document by the name The International Covenant on Civil and Political Rights
is a multilateral treaty adopted by United Nations General Assembly Resolution 2200A (XXI)
 on 16 December 1966, and in force from 23 March 1976 in accordance with Article 49 of the
covenant.
 Part 3 of the constitution are similar to ICCPR.
 Certain essential liberties are supposed to be given to citizens of the country.
 It helps is own self-determination but also the governance of the country. Whenever
liberties are given, they can never be absolute. Reasonable restrictions on the liberties are
given. boundaries can be fixed and therefore reasonable restrictions are included.
Reasonable restriction is a part of the constitution as well. It has not been left to the power
of the government. The framers said that it should be mentioned in the constitution apart
from clause 2 to clause 6 should be imposed. Because party in power can impose
restrictions. These are multiple for the FR. Reasonable restrictions for freedom of speech
and expression are much more in number compared to others freedom.
 There are 3 significant features of reasonable restrictions: 1 st it cannot be imposed in any
other manner expect by the authority of the law made by the legislature. Parliament and
state legislature impose the power. 2nd restriction on freedom which can be imposed have to
be reasonable. There is no dictionary meaning for reasonable. What could be reasonable
have to be decided by the cases which have come to the court. It is decided on the case-to-
case basis. It is eventually decided by the court. 3 rd when specific restriction has been
mentioned under article 19 then the restriction should be reasonable to the purposes which
is covered under clause 2 to clause 6.
 3 came to be added by a way of an amendment.
 The liberty given to the press is not the only aspect. Freedom of circulation and publication
but it cannot be limited to the right of publication. Associated with publication is freedom of
circulation as well.
 Right to information fills categorically will fall under the article.
 Right to remain silent.
 FREEDOM OF SPEECH AND EXPRESSION: 19(1)(a)
 It has over a period of time said to include freedom of press is not expressly state,
right to information, freedom of commercial speech etc.
 It is not limited. Different facets have been included in the article 19(1)(a)
 There is a difference between UN constitution and Indian constitution. The
significance difference is that the limitations and restrictions are not mentioned
under American constitution. It’s not an absolute right. The restrictions are imposed
and mentioned by the supreme court in the cases which come.
 Unless and until want to participate he should through the exchange of ideas. In any
democratic country freedom of speech and expression is the cherished ideal.
 The reasonable restriction on freedom of speech and expression there are 8
restrictions.
 Initial restrictions have grown with the passage of time. The restrictions have grown
with the growth of the democracy.
 Sovereignty and integrity of India added by the 16 th constitutional amendment act
1963)
 Security of state
 Friendly relation
 Freedom of press:
 Ramesh Thappar v. State of Madras.
 It is a landmark decision. For the reason that when a restriction not mentioned
under clause 2 comes to be imposed. This has been specifically dealt. The restriction
and the action supported by the law.
  Madras government has imposed a ban upon the entry of circulation of weekly by
the name crossroads through the order made under the law. The law was
maintenance of public order act.
 For maintenance of public order, the state imposed the ban.
 The petitioner is the publisher and the editor and being violative of his freedom of
speech and expression. If a restriction is mentioned it should be mentioned under
clause 2. Public order was never present and not a reasonable restriction
 Petitioner says that this is an illegal violation. Freedom of speech and freedom of
press was recognized as a part and parcel.
 A restriction came to be imposed on the grounds which is not a reasonable
restriction and it amounts infringement of freedom of speech and expression and
the public order act came to be set aside. The reasonable restriction came to be
added through a way of amendment.
 Bennett Coleman v. UOI.
 Effect v. subject matter came to be clarified.
 The central government had come up with a newsprint control order was made to
serve 2 purposes. 1st It fixed the maximum number of pages of a newspaper. The
two-fold objective was to ration the imported commodity and 2 nd objective was to
limit the popular newspaper by giving an upper page limit so that to promote the
smaller newspaper
 The company challenged the order of violation of article 19(1)(a). it was made with
the subject matter of rationing the imported commodity. The idea was not to curb
the freedom of speech and expression. The government said the newsprint policy is
aiming to ration the imported commodity but while rationing the commodity the
subsequent. The validity is to be act thought the subject matter but not the effect of
the legislation. The court said that even if there is a collateral damage to the
freedom is caused by taking it away the action has to be struck down. It was
regulating the commodity the effect fell on freedom of speech and expression. So, it
not the subject matters the court will look into the effect of fundamental right.
Effect is what the court will see. If it will not fall within the reasonable restriction, it
will be struck down.
 RIGHT TO INFORMATION:
 The act has come through these cases. Sc establishes that we the people have right
to know. It revolves around election. Free and fair elections are a part and parcel of
basic structure. So, elections have to remain fair and free.
 Election commission is there under the constitution. We need a law to assist. The
law deals with the finer details of election process passed by the parliament.
Inclusion of name, possession of election ID Card. These are covered under
representation of people’s act.
 As a country we have being facing the problem of criminalization of politics. Either
case is pending against them which might result to imprisonment. The people were
able to obtain a ticket to participate in the elections. Each seat is represented by the
parliament in the constituency. There are facets so, that people are informed
regarding elections. The people at large understood that the enough information is
not obtained.
 Association for democratic reforms is an NGO. It decided to approach the court to
ask the court to disclose the information for the sake of the people. Right to
information is an essential part of free speech. It approaches the Delhi high court.
ADR v. UOI. It convinces the court that certain information is essential that the
people are informed. The high court agrees with the ADR. The HC directs the EC it
has to secure the information which will enable a person to assess the candidate.
 The directions given by the high court those will be binding in this case the EC had to
implement the orders. When order was given by the high court it will be detrimental
to the political parties and they will go into an appellate. UOI v. ADR goes before the
Supreme Court challenging the decision of High Court. The supreme court agreed
with the decision of high court. The supreme court realized that fact that non
information is detrimental. Freedom of speech and expression and information is
important. The supreme court in the same manner directed the Election
Commission. The court said the commission exhaustively. Convictions, acquittal and
discharge, punishment, imprisonment, assets, pending case, education qualification
and liabilities. The candidates have to disclose the information. The Election
Commission went ahead with these directions. As a matter of practice when
candidates contest for elections the education qualifications and other are open.
The election commission have given the directions. This decision of the court will not
go down to the political parties. The parliament decided to amend the
representation of peoples act by adding section 33B of the RPA 1951. Unless and
until any demand for assets or criminal cases the candidate is not required to follow
the provision. It negates the RTI. PUCL challenged the validity of section 33B of RPA.
The supreme court says when we are talking about free speech it is not limited to
the literal words. It is not necessary that everything has to spoke. It can happen
through gestures as well. The court said when a person goes to cast a vote, he
selects the candidate from multiple candidates. The ballot constitutes his freedom of
speech and expression through the ballot. The section goes against article 19(1)(a).
so, it came to be struck down.
 RIGHT TO REMAIN SILENT:
 It contains in itself a right not to speak.
 It is part and parcel of article 19(1)(a)
 Bijoy Emanuel/ national anthem case. Is a landmark decision.
 Respect to national anthem, emblem etc is a legislation a person who disrespects
the national anthem, flag etc can be punished.
 The 3 students who were respecting the national anthem but not singing. A case
came to be filed and offence came to be registered. School expelled the students
under the grounds.
 The people should pay the respect. The children stood up and not participated. A
person cannot be compelled to sing. He should be left alone and it will go contrary
to the religious rights. A person posse the right to be silent.
 If a person who would not agree with the opinion of the society the person can form
his own opinion. He can be free to express his opinion. When something is being
said it’s not necessary to agree to it. The people are exposed to different kind of
ideas.
 Unpopular opinion: khusbhu v. kanniamal.
 A south Indian actress while giving an interview talks about live-in relationships with
pre-marital sex. The remark she made was taking cognizance with existing scenario.
She was making woman aware to be cautious. Almost 23 FIR’s were filed against her.
She moves to the high court of Tamil Nadu for the quashing of FIR on the grounds of
defamation. The high court didn’t support the decision. Sc says free flow of ideas is
important. The court says we have to be more receptive to unpopular opinion
because they are a part and parcel of free speech.
 The minority of opinion have become the majority opinion given by the minority
judges. ADM Jabalpur.
 Rajagopal: in his autobiography he mentions the jail officials helped him
  Shreya Singhal: free speech on offline and online medium. What made this case to
go before the supreme court? The historical background was numerous decisions.
 Freedom of expression which a transgender would have would extend to physical
appearance under article 19(1)(a). In Navtej Singh Johar
 Demonstration and Bandh
 Demonstration and protests in one hand. strike and Bandh on the other hand means
closure.
 Demonstration and protests are important attribute of democracy. Being an active
participant means right to criticize another action. It is not an individual
disagreement. It is about collective group people. Demonstration could be held
against the law made by the parliament. Protests and demonstration take place
when the implementation of farm laws, CAA etc. it is not limited to free speech. We
cannot place completely under article 19. Right to form association is also a part of
it. Demonstrations are held with an agenda. Be it the state or instrumentality of
state. the people would want to express their displeasure. If collective of people
wants to exercise right to hold demonstration it should be non-violent, peaceful
they are going to get protect. The moment the demonstration is indulging in the
unwanted activities restriction can be placed under public demonstration need not
be made by a registered association of people. It can be made by any person of any
section of the country and society. It can be across the association.
 Protest is inherent feature of strike. Strike is done by employees against a particular
authority. If they think they are against their rights employees can go on a strike.
Because of strike there is a stop to the particular work. It is done in a particular set
up. Strike is not a FR and it has been held by the SC.
 Ranga Rajan v. Govt. of T.N and Harish uppal v. UOI. Strike to an extent is reginized
under industrial dispute act. It is not an absolute right. When the employee is on a
strike it has to be informed.
 Harish Uppal was basically by right to strike by advocate. Can the lawyers have right
to strike and abstain from the court work? Advocacy as a profession they cannot be
a part of strike. When advocates accept brief from client that he will represent the
client in the court he cannot abstain and break the commitment. It is a public duty
which cannot be refrained. It is not a part of article 19(1)(a).
 Bandh vis-à-vis article 19. Bandh means closure. Call for bandh is usually made in
respect to the states of India or complete country as such. Private individual cannot
call for bandh. Who gets the authority to make call for bandh? The political parties
make these calls. The political parties which are not power call for bandh. When a
bandh is made at state level with handful individual of political party. Bandh has a
repucasion on the FR of the people of state or the people of the country. It’s out of
the fear of violence the institutes will remain closed. The impact of the FR will be
restricted because of call for bandh. There is an infringement of the FR of huge
people. Bandh is an unconstitutional. Peaceful demonstration and protests are still
the means to express displeasure. The supreme court did not get the opportunity to
declare on the constitutionality. Kerala high court decided the distinction between
strike and bandh
 The constitutionality validity came to be decided. Bandh is a call taken by political
party with a handful of individuals. If bandh is effective there is a loss on the
economy. Bandh is not an acceptable way in any democratic country. Because the
Kerala high court gave the decision it came to be challenged. Communist party v.
Bharat Kumar. Supreme court agrees between the distinction between bandh and
strike. Strike is also not a fundamental right. The supreme court said bandh is also
unconstitutional. This is the legal position with respect to demonstration, protest,
 strike and bandh. The writers who call for bandh or the supports of the party will
indulge into illegal activities. They might result in damage of public property. even
the private property. what should be done to make the writers accountable? The
supreme court took up suo motu cognizance. the supreme court appointed two
committees. These committee under the direction of the sc. On the basis of the
report the supreme court gave some guidelines.
 Burden of proof: criminal cases are treated as crime against the society. All the
criminal offence it the state which prosecutes. The state is approaching the court if it
is prosecuting. The burden of proof will lie on the state/ prosecution. Burden of
proof lies on the one who alleges. In civil cases the plaintiff has to do the burden of
proof. In writ petitions filed in high court or supreme court the burden of proof is on
the petitioner. Burden of proof is always on the proof who alleges. The state will say
these are the individual who are writing at the time of bandh and indulging the
property. once the state establishes there was bandh the burden of proof will go to
the writer. There should be aa reversal of burden of proof. There should be
something to be done that should make the writer liable for damage and
compensation should be taken from them. These are the recommendations given by
the committee to the court. The parliament will incorporate these things. These are
the guidelines the court gave with an idea parliament will incorporate it.
 The case of amit sahani: there were claims in other section of society. Certain pleas
came to be filed before the Delhi high court. The high court did not issue a specific
order. The people decided to go against the order of high court. The supreme court
apart from deciding whether clearing of public places is to be done or not. right to
demonstrate and protest is the aspects which came to be talked about. Can peaceful
protest be the absolute right article 19(1)(a). right to demonstrate and protests is a
part of article 191a and 1b. if any restriction is to be placed it can be placed. The
aspect of obligation and duty. The ratio of the case was right to hold demonstrate or
protests recognized as a fundamental right.
 The rights are important because it is collective. If an individual has to agree with the
view of the majority.

ARTICLE 19(1)(G)

 When the framers were making the constitution, they have seen their conception with the
laissez faire era which was known as a police state. The aspect was taken as non-
intervention aspect.
 The framers were sure they didn’t want restricted ideology.
 When provisions were made of the constitution. The factors which included that India
valued freedoms to a very great extent. Political democracy is not possible without
economic democracy. Political democracy is where people have right to participate and
speak up. The framers taught political democracy is of no use where there is no economic
democracy. [people should pursue the trade, occupation or freedom they want.
 Economic democracy is achieved through a fact we achieved independence. When Britishers
left the country, the economy deteriorated. To restore the economic position, it is with this
idea that certain provisions were made where the gaze were concentrated on socio
economic masses. For the social upliftment of the masses is not only the aspect it is of socio-
economic upliftment.
 Private and public are treated similarly all the time.
 For the upliftment of socio-economic upliftment there were few provisions. These provisions
together are indicative of the economic philosophy underlining the state.
 Regulative economy in the sense that the important resources which the state felt are under
the state control and the liberalised were given to private.
 With the passage of time article 19 1g was a part of original constitution. The reasonable
restriction has always been a part just that it came to be amended. It was there since the
inception of the constitution.
 Directive Principles of State Policy was for the upliftment of socio economic.
 The constitutional amendment came to be added by adding “socialist” in the preamble.
 The word which was added in the preamble it can be understood in a different concept. We
didn’t adopt the same meaning. Under the Indian economy the word is understood in a very
mild way. We have adopted a mixed economy wherein private and public places work
together for the flourishment of the economy. For specific reasons we have seen instances
that where the state has taught certain things came to be taken under the control of the
state. what earlier were open for private enterprises came to be nationalised. In the year
1991 the rigidity came to be relaxed to a great extent. A lot came to be open to the private
enterprises and fewer aspects came to be controlled by the state. the attitudes of the state
were not to take control of trade and commerce but the aspect was to regulated the trade
and commerce. Regulation means it doesn’t exercise absolute authority.
 Courts played the constructive role to make us understand the importance of private
enterprises and how they go hand in hand with public enterprises.
 Excel wear v. UOI: the supreme court got a chance to shed some light what is the underline
the stages of nationalisation. The supreme court recognized that it is not going to stay
constant. The original idea is about mixed economy and not nationalization. The provision
will definitely indicate we recognize private players. therefore, the concept of socialism is
not something to ignore private players it is the level playing field between public and
private enterprise. The evolution of jurisprudence of article 19(1)(g). private do possess to
practice profession, trade, occupation or business along with public enterprise.
 To create a monopoly the state can take over a private trade or occupation. The monopoly
can be exercised in such a manner that partially the private individual can participate. State
monopoly gives a freedom to the state because there is no private player. This is a crucial
factor because whenever state exercise monopoly decision given by the court a general
presumption attached in the interest of general public. It is because of the presumption the
aspect of state monopoly becomes crucial. The reasonable restriction which would
otherwise be place under article 19(1)(g). article 19(1)(g) is a right which is available to the
citizens but this freedom of trade occupation and business is subject to reasonable
restriction. When states take it to the complete the court understands that the restriction
are less therefore only those aspects will be considered as general monopoly given by the
general public.
 Akadasi padhan v. state of Orissa: the restriction came to be put by the court by a way of
interpretation. it should be declared that the state is taking over a trade or business. It is
taken by the state to the ouster of private individual. There is a presumption it is in the
interest of general public. The state is not put on the stand of the creation of monopoly. The
moment it is taken to the general public it is reasonable. Therefore, the state is not obligated
to justify that it is reasonable that would mean there is a necessity this taking over the
trading activity needs to be interpreted narrowly. The court said it is going to understand try
and separate the essential and non-essential with the monopolistic provisions of the law.
Only essential provision will come with the interest oof general public. Non-essential should
satisfy the test of reasonableness and public interest. The subsidiary provisions will be
scrutinized by the court. This will have to satisfy the dual test of public interest and
reasonableness. Therefore, the supreme court tried to evaluate the state monopoly strictly
so as to not give the state to exercise the monopoly. The law should be identified in such a
manner which is essential and non-essential.
 Profession, occupation, business and trade. These are the 4 words which come under the
article 19(1)(g). The words are comprehensive and to be interpreted in comprehensive way.
When an activity is said to have a commercial or trade aspect it will definitely come under
article 19(1)(g). when any kind of activity is said to have trade and commerce it means it will
fall under article 19(1)(g). the moment it falls under the article it is a fundamental right and it
will be protected because it is limited to reasonable restrictions under article 19(1)(g). To
have the occupation is a fundamental right. It’s not going to be protected consecutively
because it is not falling under article 19(1)(g). the state can impose more restriction which
are beyond reasonable restrictions.
 Res extra commercium: if any kind of activity which has an element of commerce or trade or
occupation or profession it falls under article 19(1)(g) and state will limit it with reasonable
restriction given under clause 6. If an activity does not fall under within the meaning of
article 19(1)(g) that would mean state can impose restrictions which are not reasonable and
these activities are called as res extra commercium a thing which is outside commerce. Law
does not recognize it in other words. It can be invoked by the state to impose harsh
restrictions.
 When article 19(1)(g) came to be as a part of original constitution.
 Is Trade in liquor under article 19(1)(g) or not under res extra commercium?
 Liquor trade had a history, the idea of the supreme court was consistent.
 Cooveriee v. Excise Commissioner, Ajmerc (1954): the supreme court got a chance to give
its say on the question. If it not treated as fundamental right the state is free to impose
restrictions. The supreme court when the constitution came to be the standards of the
morality is different previously and in present. The supreme court came to the most
expected conclusion no person can claim a fundamental right a trade in liquor, it is
detrimental to the health of the society and community and large. Not only the danger of
the person consumed but also the others who are not intoxicating liquor. Consumption of
liquor is not in the consonances of the moral of the society. If a person tries to obtain a
license for trade in liquor, he cannot claim it as a right. It is on the discretion of the state. the
state is free if it wants to prohibit all together the state is free to do that because trading in
liquor is not a fundamental right under article 19(1)(g). the framers talked about the moral
standards of the constitution makers.
 Krishan Kumar Narula v.State of j&k (1967): because of the time passed from the decision
of Cooveriee. The supreme court in this case took a different view because it already had a
precedent. Supreme court marks a departure from the earlier precedent that had being said.
The decision of the supreme court is not binding on the supreme court but they are binding
on the lower court. If it is a 2-judge bench of the supreme court and later another 2-judge
bench deciding the bench will not be bound by the decision of the previous 2 judge bench.
But if it is a higher bench then they had to bound to the earlier bench. An attempt was made
to convince the supreme court on the basis of Cooveriee. The supreme court was not
convinced all together by the argument. Keeping the res extra commercium or application of
moral standards of society cannot be done in such a manner to limit the rights. The supreme
court said the way the moral standards of the society keep on changing the right on the
moral standard will be changing. The court limited the application of limitation of res extra
commercium.
 Nashiwar v. State of Madhya Pradesh 1975: the supreme court there is no fundamental
rights of trading in liquor and the reasons were based on public
 Khoday Distilleries v. State of Karnataka: it is a landmark decision. The supreme court
adopted vocally of the res extra commercium. Not only the state possesses to impose
additional restrictions but the state can absolutely impose the total ban on liquor. The
subject matters fall under the state list. The state can legislate in such a manner to impose
ban on liquor.
  State of Andhra Pradesh v. McDowell &Company: it talks about the fundamental rights and
directive principle of state policy. In earlier cases that there might be a situation of a relation
between fundamental right and directive principles of state policy. From earlier decisions
though directive principles of state principles are enforceable in the court of law but neither
that state nor the court dismisses the importance of directive principles of state policy. The
court gives due importance to directive principles of state policy. The power has been given
to the state legislature to legislate it. The restriction need not be limited to clause 6 of article
19. The supreme court reiterates the point on trading in liquor is not a fundamental right.
But then the reasoning given by the court is different. The supreme court says it is accepted
that trade in liquor will fall under article 191g but article 47 of directive principles of state
policy which still allows the state to make its policy in such a manner to bring the prohibition
of consumption of intoxicating liquor. Additional restrictions to the extent of absolute
restrictions can be imposed.
 State of Tamil Nadu v. K. Balu: supreme court was made aware of the fact the road users
tend to lose their life because of drunk and driving. The supreme court tried to rationalize
saying that: the right of individual using the roads and the right of shop owner who tend to
sell liquor. These are competing rights because we need to find a way to save life’s and on
the same hand to save the right of people who have the right to trade. The supreme court
said the rights have to be balanced. The court said we will have to find a way to save the
lives and justified its direction on sale and restricted the sale of liquor within 500 meters.
 When free flow of tobacco and the ill effects of tobacco are known. Why is only liquor
treated as res extra commercium and why not tobacco? The tobacco industries are
defending the right to trading is a fundamental right and it should not be ad res extra
commercium. It is because of the revenue that the state earns. It is a very big way of earning
revenue for the state.

Street hawkers:

 Can hawking can be taken as part and parcel of engagement of the trade. This is an
unorganised form. The court has said that trading or hawking indulging on the sale of a
commodity it is definitely a part of a livelihood. If hawking is not being done through a
medium like push cart. The court tried to draw a balance between competing rights.
 The court was faced with this question in Bombay Hawkers: the court said a hawker has a
right and it is a part of article 19(1)(g) as much as it is causing trouble under article 21. The
decision of the supreme court is good for the reason that the decision is vigilant and they
have to earn their life on day-to-day basis. Designated places will be identified as hawking
zones. The reasons for setting up in these areas is when people commute to that area the
people are likely to buy from hawkers at that particular time. There are always certain social
aspects which might always not be possible.
 Sodan singh v. New Delhi Municipality: it was decided as part 1 and part 2. The supreme
court is liberal. When hawkers have to carry on the trade under article 19(1)(g). we cannot
deny them the opportunity to stop them by using the foot path. The supreme court says that
the roads, the pavements and footpath are the state property and state is holding this
property as a trustee and it’s holding them in trust on the behalf of all the people in society.
If it is properly regulated the hawkers can regulate in the pavement as well.

Slaughter of animals.

 MH Quareshi v. State of Bihar: the slaughter of cows is a part and parcel of essential
religious practice. There was plea made that slaughter of animals is also a trade engaged by
certain people in the society. Directive principles of state policy played a considerable role in
 the minds of the state to come up with the state legislation. The court tried to reconcile the
butchers and restriction to impose the slaughter of animals. The court said that the animal is
productive after the age of 15 years. A restriction on slaughter of cows of all ages, and
calves. Bullocks, bulls and she buffalo can be slaughtered after the age of 15 years.

ARTICLE 20:

PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES: (Article 20 (1) and (2))

 Safeguards introduced in the procedure that is to be followed in criminal cases. Procedural

safeguards in the protection of ex-post facto laws, double jeopardy and self-incrimination. 3
different clauses of article 20 which has been attributed.
 Article 20 is a precise provision and are interpreted broadly.
 These are safeguards which have being introduced because it talks about protection in
respect of commission of offences and all the 3 clauses are in reference to the criminal
offences.
 If procedural safeguards have being introduced because the offences might be defined in
different clauses like IPC (substantive laws) etc. when we talk about the conduct, we have
procedural law that is CrPC. The need of procedural safeguards in the constitution is
mentioned because these are essential rights and protection which are to be given to the
accused. It’s not only the Indian criminal law which have inbuilt safeguards under the
constitution. All the countries will have safeguards under the constitution. Regular law can
be amended easily by the parliament and even the constitution can be amended by the
parliament but it is rigours. The status between legal and constitutional rights are different.
Because there is a distinction between legal and procedural rights it’s better that they are
added under constitutional rights. Double jeopardy is based on American constitution. These
procedural safeguards which should be afforded to an accused in cases of criminal offences.
These procedural safeguards have found a backing in international covenant as well. How
the offences have to be proved and the procedures are not mentioned in IPC but it is
mentioned in CrPC. In civil law we have substantive law and procedural law.
 UDHR is a universal declaration of human rights and ICCPR happens to be a covenant (it is a
treaty) for civil and political rights. India is a significant to ICCPR. India is obligated to pay due
respect mentioned in UDHR and ICCPR. These safeguards are under international covenant
which makes it mandatory to incorporate under local law.
 These constitutional safeguards are necessary because whenever we are talking about
criminal cases it is treated as the offence against the society. The society at large is
threatened. Be it theft or grievous hurt. Though a complaint may be lodged at the end it’s
the state prosecutes the crime. State is the prosecutor. The individual allegedly committed
the crime. In these circumstances the police are alleging the individual who committed the
crime. The person who represents the state is the public prosecutor and tries to convince
the court that the crime is committed. The public prosecutor is for the state and the police
authority too. a private individual and the state are not ton the same pedestal. The state is
pre disposed in many factors that it will be easy for them to say that he had committed an
offence. In all other criminal systems, it is the same way. The individual’s power against the
mighty state is not equal and therefore additional protection needs to be given to an
individual so, that he can defend himself in an appropriate manner.
 The safeguards are given under the constitution because they should not be limited.
  There should be a law which should be in existence for a particular person to have
committed for a breach of that law and he can be punished only for that breach of that
existing law.
 Prospective laws are those which are applicable from a future date and retrospective are
those laws which are applicable from a back date.
 There is a clear-cut constitutional provision which can be interpreted as part of clause 1 of
article 20. Penal laws are those laws which impose punishment and they can never be
retrospective and should be prospective. The person should know the offence.
 According to clause 2 if there is a prosecution in punishment the person should not be
troubling the person for prosecution of the same offence when once done.
 Clause 3 talks about self-incrimination in the sense that when certain things are under the
knowledge of the individual can be asked.

CLAUSE 1:

 Can be divided into 2 parts.

 1st No person shall be convicted of an offence expect for the violation of law in force at the
time of commission of an offence. 2nd nor shall he be subjected to any penalty greater than
that which might have inflicted under law in force at time of commission of an offence.
 1st offers protection against ex post facto laws and 2 nd offers for greater offence; punishment
cannot be enhanced.
 It is prospective in nature. (Clause 1)
 Sajjan Singh v. State of Punjab: the supreme court interpreted article 20 clause 1 in such a
way to deal with an important issue that has arisen. People were amassing disproportionate
of assets to their known source of income. The parliament decided to come up with
prevention of corruption act which will be made applicable to the government offices.
According to a provision clause 3 of section 5 creates a presumption to the effect that if the
government servant for corruption has in his possession property or assets which were
wholly disproportionate to his known source of income and if he cannot explain the same
satisfactorily, then he is guilty of criminal misconduct. This provision was challenge because
for ascertain disproportionate assets, the assets which were collected by an individual was
unconstitutional. Its an offence created by the act and it has to be prospective in nature. It
was said that when a person is in possession of property or an asset which are
disproportionate to his known source of income only those assets/ property will have to be
taken into account which has being collected after the act has come into force was argued. It
was further arguing that if we have to interpret the act otherwise so, has to the
property/asset collected before the commencement of the act to be taken into account that
will mean it will be given retrospective to the act. the court understood the act is totally
retrospective in nature certain aspects of the act taken into account (retrospective). The
actions done in the past for the purposes of ascertaining an act to be offence under that
particular statute or not. this can be permitted and this aspect of the act which takes into
account. The antecedent actions before passing of the act that cannot make the act simply
retrospective. So, the act will be said to be retrospective when it is provided under the act
that the act is going to come into force from a back date. If it is not so the act is prospective
in nature. So, even if the act takes into account certain things which have being done prior
to the act coming into force this particular provision will not make the act retrospective. the
essential attribute of the legislature will always be that the legislature should have a
foresight. But it’s not possible always to foresee every eventuality.
 When a particular punishment has being prescribed at the time of commission of the
offence it’s the same penalty that can be imposed. If a law is changes and greater penalty is
 prescribed that penalty cannot be prescribed retrospectively. An action that will be
detrimental such an action should not be taken.
 Ratan lal v. state of Punjab: a juvenile who used to break law and who used to be charged
under the law. There was a nomenclature associated with a juvenile who breaks the law and
is charged under the law. Juvenile delinquency is not used but juvenile in conflict with law is
used in current times. 16 years juvenile was found guilty and 6 months of rigours
imprisonment and a fine was imposed. In simple imprisonment the accused is not supposed
to work. There is no compulsory hard labour. In rigours imprisonment hard labour is a part
of the punishment. The probation of Offenders Act 1 st September 1962 was a new act. his
appeal was dismissed by high court on 27 th September 1962. Unfortunately, it was not
pointed out to the high court. The act was already there when it was decided and the appeal
went to the supreme court. The court observed the ex post facto laws which only reduces
the rigours of the criminal law does not fall under the provisions of clause 1. 2 nd part of
clause 1 offers a protection only against a greater punishment being inflicted. If a
punishment is reduced and brought under the court then a beneficial approach is being
brought. When a law has being changed automatically the prison authorities have no
authority to set the legislature. The proper method is by bringing it to the courts notice.

 GURANTEE AGAINST AND DOUBLE JEOPARDY:

 Basic essentials are accepted in every country.
 The protection is given in India, US and UK.
 It is almost present in every jurisdiction but the degree of protection varies.
 The origin is from nemo debet bis vexari: person should not be prosecuted and
punished for the same offence.
 A person will be given the protection if he has been conviction or acquittal for a
particular offence will be barred for the same offence.
 It is protection given to an individual. The balance of power is tilted towards the
state. so, state is mightier than compared to the people.
 Underlying rational: When state is prosecuting an individual, it is expected that the
state is going to prepare its case in its first instance that only in one prosecution and
the prosecution should not get more than one chance to prosecute the individual
and try to better its gain. It will put the individual in peril for the same offence more
than once. The state is dominant that does not mean it will improve its conviction
again and again.
 American Constitution: it’s the 5th amendment which gives protection of double
jeopardy. It’s a relevant provision. It’s an elaborate amendment. It also talks about
indictment, due process clause, deprivation of private property and double
jeopardy. “Same offence” remains constant in each and every jurisdiction. The
provision is different compared to Indian constitution.
 In American constitution there are two facets of double jeopardy. Procedure which
has to be followed. it’s a procedural safeguard.
 Autrefois Acquit and Autrefois Convict: if after the prosecution for one offence, if
the resultant is conviction, then by the state will be prohibited to prosecute the
individual again.
 UK: it has recently made changes. In UK with the amendment, it has been held that
if there is something new brought up to the record which was not kept in front then
the evidence is procured later which was not in knowledge earlier then the second
prosecution can be done.
 India: the protection that we give to an accused is said to be narrower as compared
to US. After protection even if it an acquittal the protection of double jeopardy is
available is US i.e., why it is robust.
  In India if there is a prosecution for an offence and results in acquittal then
 If there in conviction then punishment will follow.
 If prosecution will become an acquittal, then another prosecution can take place for
the same offence and article 20(2) will not be applicable.
 Prosecution and punishment: it will be invoked only when prosecution if followed by
the punishment. When the words are joined by and they have to be taken
collectively. Prosecution and punishment cannot be interpreted differently. If state
prosecutes an individual and conviction happens. If prosecution happens and results
in acquittal and state wants to prosecute again then
 The degree of double jeopardy and protection might vary. The common phrase is it
prohibits the individual twice for the ‘same offence’. It bars the state in prosecuting
an individual for the same offence. Only when the ingredients are identical only the
clause 2 will be applicable.
 If one action has being taken by an authority if that does not amount to prosecution
and the offence has being filed under IPC and accordingly state is prosecuting the
individual.
 UOI v. Sunil Kumar Sarkar: the employee border road organisation was court
martialled and found to be guilty and sentence of rigours imprisonment was given
for a period of 1 year. Because he was found guilty an action was taken where he
was dismissed from the service. The SC said it does not amount to double jeopardy.
The one proceeding of judicial in nature has taken in the judicial martialled. The
other was taken in the department and therefore, the action under the service rule
is not prosecution at all and the question of application of clause 2 of section 20 is
not applicable. When employees working for the state are bound by the disciplined
required as a part of the service. Departmental proceedings and departmental
action will not come under prosecution.
 PROSECUTION: the description of which authority has to prosecute has not being
given. it can only be done in the court of law and judicial tribunal only then it can be
held as prosecution. Administrative tribunal or departmental enquiry will not be
termed as prosecution and if action is taken under the same ground will not lead to
prosecution.
 SA Venkataramana v. UOI: a government services (Indian civil services) under the
pleasure of the president. This individual was charged with certain offences and a
case came to be filed under IPC and prevention of corruption act. the state was
taking care of prosecuting the individual. A departmental enquiry came to be
constituted. If the behaviour is not met by him under service rule action can be
taken. The commission came to a conclusion that he is guilty. Order for dismissal
from services came to be issued.

ARTICLE 20 CLAUSE 3:

 A person is presumed innocent until proven guilty. Burden of proving the guilt is on the
prosecution. Burden of proof is on the prosecution. Prosecution who alleges, drags him to
the court, asks the court to convict him. Unless and until prosecution proves the person is
guilty the person is innocent.
 Self-incrimination: presumption to be innocent, the accused should not be compelled to
make a statement against his will
 The protection of self-incrimination is incorporated.
 The essential components: it forms a provision of other parts of article 20. The protection is
done under against a compulsion to be witness. A compulsion will naturally be a particular
 orientation. He is compelled to given an evidence to himself. All the three should be present
at the same time only then protection against self-incrimination can be operative.
 No person should be compelled to be a witness then the protection of self-incrimination can
be brought. Clause 3 is only applicable only when there is a compulsion to disclose certain
things.
 testimony: when a person on his free will gives a certain evidence. When a person is
compelled or forced to give or furnish evidence is compulsion testimony.
 if there is a dumb witness is somehow compelled to give evidence against himself through
gestures.
 The documentary evidence should be protected and person should not be forced to produce
documents.
 If the evidence is through free will then clause 3 will not apply.
 The interpretation of clause 3 have undergone amendments.
 The evidence which is said to incriminating or not incriminating.
 the first case the sc got to decide and extend the protection on incrimination was in 1954.
The court gave 2 kinds of decision. The sc says that the provision of clause 3 covers oral
testimony and other than testimony. If a person is forced to produce documents in court of
law, then it can be said to be furnishing evidence. Documentary evidence is also a way of
giving evidence. The 2nd is a little problematic. In clause 3 “to be a witness” the phrase was
interpreted by the sc in MP Sharma case. To be a witness means to furnish evidence. The sc
said that furnishing evidence can be done by speaking orally, production of document, by
production of anything or any other mode. The protection is not to compel somebody to
furnish evidence. If a person is forced/compelled to furnish evidence in the form of speech
or spoken words or documents or production or any other word it will kick in. it is
problematic because we already had different laws in existence which made it compulsory
for the accused to produce certain things so to this all those laws will be affected. Like
identification of prisoner’s act. the accused does not have any chance to deny. CRPC that
police authority can apply the court to provide a sample of his handwriting. Exercising the
choice to say no is not available and it can be said to be compulsion. The state was
authorized to collect this information from accused persons. The court had a re-look in the
case. The repercussion was those different cases challenging the demand for prosecution
where handwriting sample is being asked. There were number of petitions. The next
opportunity sc got a change is Kathi kalu oghad.
 State of Bombay v. Kathi Kalu Oghad 1961: the sc took the opportunity and constitutes 11
judge benches. The sc has to decide whether the asking the accused to give his handwriting,
scan and whether it is violating clause 3 or not. the court said it is not self-incrimination for
that manner and protection of clause 3 will not come in. definitely samples like handwriting,
specimen can be taken. Sc said these can be collected and they cannot be said to be self-
incriminatory and the specimens can be demanded. There arises no question of clause 3
kicking. The person does not exercise choice and does not has any authority to deny. In spite
of compulsion, it does not amount to self-incrimination. Clause 3 will not come in when
person is giving information with is will. The accused has no right to deny. Self-incrimination
would mean giving information that the accused is driving is based on personal knowledge.
Information should be given by exercising his free will. These words of personal knowledge
and free volution should be interpreted. The court says when a person is conveying some
information which is in his personal knowledge and exercises his will the accused has his
authority and exercises the control the sense that he decides what information is to be given
and what should be withheld. When the information that is being conveyed should be based
on personal knowledge and should be compelled to disclose. The control is exercised
because information is in his personal knowledge. Giving of impression: when a person is
asked to give his thumb or palm impression these things are not within his personal
 knowledge. He cannot exercise any kind of control over his attributes. When he is giving an
impression, he does not exercise any control over his personal knowledge therefore the
court said they cannot be self-incriminatory. When a person is asked for impression, it will
not come within the protection of clause 3 of article 20. They are outside the purview of
article 20. The court naturally said the phrase to be a witness came to be equated with
furnishing the evidence. The court said to be a witness cannot be equated with furnishing
evidence. It is narrower.
 Simply giving a sample or impression is not acceptable the evidence in itself. It is naturally
done by the prosecution. The other bio metric collected these will not amount to self-
incrimination. Blood sample, hair, urine. It is beyond his control.
 The basis is “compulsion”. If a person is compelled to give evidence by himself whereby, he
 Physical compulsion where police authority is using force to compel evidence. Compulsion
by use of physical force should be prohibited. Illegal force is unconstitutional. The use of
physical force should not be used because the prosecution should not use the dominant
power. They should do by the own way of investigating. The use of physical force will
amount to compulsion and protection of self-incrimination will kick in. The person is coursed
to give information.
 The police authority might not indulge into physical force but mental pressure which
incriminates him. The court to openly address the issue of mental torture along with physical
torture and brings person to threshold to give the information. The testimonial compulsion
in nandini sathpathy because the different tactics used by police authority and clause 3 of
article 20 has being said to be applicable to the accused. Accused in criminal offence is
interpreted.
 Nandini sathpathy: justice Krishna iyer was speaking with the majority and the sc got an
opportunity to understand article 20. The safeguards are essential for any criminal system of
the world because of the importance and power between individual and state. for the
protection of individual which is a part and parcel of his life. There can be physical and
mental compulsion. A person in police custody then the police authority investigates the
individual. The police authority will enforce force. the individual is accused or suspected of a
particular offence. The police under CrPC have the authority to interrogate. The individual is
under suspicion. The investigation will start much earlier. After a reasonable doubt they will
formally accuse the induvial by putting in FIR. Only on a mere ground of suspicion. The police
can use their power. The person right to life and liberty is curtailed because it is restrained
by police authority under article 21. The care is to be taken by the authority that certain
rights should be made to him such that his basic rights will not be curtailed. Its detrimental
to the dignity of individual. The person in custody should be treated well and essential rights
should be given. when a person is restrained then safeguards under article 20 kick in.
 In nandini satpathy : for the purpose of investigation was called by police authority. Nandini
made herself available before the police for the purposes of investigating. The police
authority prepared a long list of questions. The police authority tried to build up the
atmosphere in such a manner to force her mentally and kept her in troubled position.
Because of these tactics she filed a case. Justice Krishna iyer says if tactics like mental
pressure and person feels intimidated and end up saying something incriminating himself
will amount to compelled testimony. The sc said for the first time use of mental force if it is
over bearing amount to compulsion. The sc also said if the protection of clause 3 of article 20
is limited to the accused we will be defeating the purpose of constitutional safeguard. They
realised that police are veery much capable to use tactics of doing this even when person is
not accused in the offence. Police might use this in the preliminary stages of investigation. If
holistic protection should be given to individual this should be extended to the person who
is simply suspected. If a person is called on the basis of suspicion and interrogating to find
 out him or anybody committing the offence. The protection will be applicable to them as
well. It recognises the rights of the individual.
 Miranda v Arizona: the miranda rights were given by the American sc.
 Selvi vs. state of Karnataka: on the grounds of techniques amount to encroachment on the
mental privacy of individual. The outcome of brain mapping, nacro analysis is not according
too free will of individual. It is unconstitutional. The control of the individual over his
personal knowledge is not there. The control is lost. The court said the invasion of mental
privacy. Sc acknowledged the fact of science and technology is actually being used by people
on both the sides. The wrong use of science and technology which commits the crime is fool
proof way. At the same time to encroach the rights of individual. It should be balanced.
These tests are unconstitutional vis-a-vis clause 3. Administration of these tests is
unconstitutional.
 With the instances of extortion and kidnapping. The police authority will have telephonic
conversation to provide lead. The police authority started collecting voice samples. The
demand for voice sample had come to be challenged. The sc held it to be constitutional.
There is not attribute to exercise control.
 The wordings of clause 3 revolve around this word compulsion.

ARTICLE 21:

 Stands ate the heart of the constitution of India and other fr won’t have any meaning
without its existence.
 it starts with a non-obstante clause. The interpretation becomes strict.
 It is available only to persons. The strict literal reading suggests that right and liberty can be
taken away by the law. Other fr does not specify this is available only to the citizens of the
country. It is available to the non-citizens of the country. The Chairman, Railway Board &
ORS v. Mrs. Chandrima Das & ORS
 life is not mere animal existence. It can be developed in the environment developed by the
state. In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and
held that: By the term life as here used something more is meant than mere animal
existence. The inhibition against its deprivation extends to all those limbs and faculties by
which life is enjoyed. The provision equally prohibits the mutilation of the body by
amputation of an armoured leg or the pulling out of an eye, or the destruction of any other
organ of the body through which the soul communicates with the outer world.
 No body can be deprived of the rights.
 Personal liberty is not defined in constitution. It is used in singular form. With development
of rules of interpretation. personal liberty refers to several liberties. It refers to beyond the
text of constitution.
 Procedure establish by law. It talks about right to life and personal liberty. Procedure
established by law and is prescribed by law life and liberties cannot be taken away.
 A k gopalana was a communist. Challenge the validity of constitutional detention act. 1 st
word law does not merely mean the state enacted law but it also means law must be just
fair and proper, when law must not mean enacted law, law must follow principles of natural
justice. 2nd the reasonableness of preventive detention act is reasonable. It should judge the
touchstone of reasonableness of article 19. There are restrictions mentioned in clause 1 to 6
of article 19. Reasonable restrictions on his freedoms will have to judged on the basis of
article 19 and 21. The 3rd was procedural established by law must mean due process of law.
Article 21 is basically from the roots of various constitution. Right to life can be taken away
only when there is a due process of law. In India we have procedure establishes by law must
mean due process of law. He is trying to impose a context from American context.
  Sc while hearing the matter and concluding it article 21 cannot have any kind of connection
with any article. The provision is clear. He was detained under prevention act. due process of
law cannot be imported from American constitution to fit in the meaning of Indian
constitution. ‘Due process’ was included. They drafted the word due and established the
word ‘procedure establish by law’. gopalan’s argument was outrightly thrown out of the sc.
Article 19 by no imagination can be read under article 21. Article 21 vis-à-vis article 19 does
talk about those liberties which does not talk in article 19. Those restrictions cannot be
applied to any other right. Article 19 and 21 are mutually exclusive. They stand independent
of each other. Mutual exclusivity is invoked by the sc. They applied the rule of literal
interpretation and the decision resulted in article 19 has no nexus with article 21. Judiciary
interprets the texts of the law as it is written by the legislature without expanding the limits.
It resulted in the worst interpretation of article 21.
 Rustom Cavasjee Cooper vs Union of India (bank nationalisation case): it deals with
nationalization of 14 banks and for serval resaons rustham challenged the sc. Sc accepted
article 14 and 19 are not mutually exclusive.
 Maneka Gandhi v. UOI: Gandhi was travelling abroad. Passort was confiscated under section
10. The sc interpretation of law changed. They were vigilant of rights of citizens. Whether
law spoken of under article 21 must mean fair and proper? Whether a law has to be
principles of natural justice or not? whether article 19 or 21 exclusive or not? the sc went
into detail description. Procedure established by law can be of two types. 1 st substantive
procedure and 2nd procedure to enforce the right. It is not only about procedure. Article 21
also talks about substantive procedure of law and
 State of Bombay v maruthi dhubal:
 P ratinam
 Gyan kaur v state of Punjab
 Post maneka period:
 Kadhak singh
 Vishaka v state of rajasthan
 Unni krishnal
 State of himachal Pradesh v umed ram

ARTICLE 22:

 Article 21 connects 20 and 22.

 The proper exercise of right to life and liberty there are safeguards given under the
constitution. Arrest and detention, there is a restraint on the individual. Right to personal
liberty is affected here.
 The individual is being protected through each and every stage. One is arrest and the second
is detention.
 The difference between arrested and imprisonment. When a person is taken under custody
and at that time there is a deprivation of liberty and he will be put behind the bars is called
arrest. When the case culminates with the decision given by the court and says the person is
guilty leads to conviction and a punishment will be given and he has to undergo the period is
called imprisonment.
 Pre conviction arrest/ detention: police custody remand: when a person is arrested, he
should be brought to the magistrate with a period of 24 hours. After he is put before the
magistrate the police authority will ask for time. If magistrate thinks custody is necessary the
he grants PCR. MCR (Magistrate Custody Remand) it protects the individual. If a PCR is given
the person is under the police custody and he should be produced to the magistrate and
only when the magistrate allows the police then can keep him under the custody. The
magistrate should take a look at the person and magistrate should be satisfied and there is
 no instance of police authority. If a person is not produced within 24 hours, then the arrest
will be unconstitutional.
 D.K.Basu: it is a public interest litigation. The letter written to the chief justice is treated as
the petition. The court will be giving direction that the letter should be converted into the
petition. When the court acknowledges the letter and turns into petition is called epistolary
jurisdiction. If the court on its own comes across news articles or news telecast on their own
and takes it is called suo moto cognizance. an amicus curae will be appointed to take this
petition forward and the amicus helps the court. The court appreciated the letter and
converted it into petition, the guidelines given by the court will be applicable to each and
every state who have faced custodial death. The court gave 11 guidelines in this case. The sc
mentioned when the arrest is being done, the police will go to arrest an individual. They
should carry an identification mark to ascertain and identify. When the arrest is being done
arrest memo should be prepared where in time and date is mentioned. The arrest memo
should be signed by the police, witness and the person arrested. It’s the responsibility of the
police to inform the arrested individual to inform his where abouts (where he has been
arrested and at which police station) right to make phone call. If not this it’s the
responsibility of the police authority to inform them. A diary should be maintained where in
the entire process should be documented and mentioned. When he’s being put into the
police lock up, the arrested persons medical check should be done before he is put into the
lock up. Every 48 hours medical check should be done by the medical authority because care
is taken and police authority are not abusing the power. These are not mentioned in article
22 but these have been held to be basic rights of an arrested person and made part and
parcel of article 22. The extent of the guidelines is such the cumulative impact was stated by
the court the basic should be written down on the board on the conspicuous place should be
put up.

PREVENTIVE DETENTION:

 article 22 can be in two parts. Arrest and preventive detention.

 Article 22 allows preventive detention.
 There is no upper time limit. The parliament will decide the time for preventive detention.
 Advisory board has been constituted. if detention is too be constituted beyond three months
approval should be given by the board. The law can be made by the parliament that beyond
3 months detention can be extended and the approval is not needed by the board. The laws
are decided by the parliament for the board.
 Clause 4 to 7 talk about the procedure of the preventive detention. 1 st communication of
grounds. It is in relation to the grounds of the arrested. The idea of communication is such
he can make a representation.
 Communication is essential. The activities and ancillary things associated with individual
should be communicated and orders should be issued.
 Prakash Chandra mehtha: the court clarified the meaning of the word ground. To
understand the ancillary facts on the basis of which he has being detained. Communication
of the grounds is to be done and the whole thing can be overshadowed. It is on the basis of
limited disclosure.
 There could be multiple grounds for a detaining order to be made. It’s not necessary that
detention order should be made on one ground.
 There is a provision to make a representation under clause 5 of article 22. If the activity that
he had done amounts to the threat of the security of the state, how can he justify the threat
is not done. The person should get an opportunity to make representation. Representation
 is to made to whom is not given but naturally is made to the government. The government is
expected to make a look and apply its mind whether the detention is valid or not. for the
representation should be effective the government decides whether detention is made or
not.
 For the representation should be a good one and effective he should understand in the
language which he understands. It is to be communicated in such a way that a laymen can
understand.
 There could be multiple grounds where detention order can be made. If the ground
communicated is vague. The ground to be communicated should be clear in nature. If it is
one ground and the ground is vague, his right to representation is not strong. If there are
several grounds even if one ground is vague or inadequate then the right will get infringed to
represent and if it infringed the detention will be illegal. The detention is in the favour of the
detained person. 5A of NSA if detention order on one or more grounds of detention order is
made then it will be deemed to have being made on each and every grounds separately. If
the ground of relation is vague so the detention on this order on this ground is illegal and
the other two grounds will be considered valid.
 The representation had to be made to the authority who can make detaining order. Because
time period has not being given that does not allow the state to continue the delay on the
detaining ground. If long time is taken and delay in consideration challenged and the state
has not given a valid argument then the detention will be held illegal.
 Advisory board has been constituted and when detention should be extended beyond 3
months it cannot be done without the representation. The grounds on the basis of the
representation of the detaining authority should be kept. The continuation of detention
should decide by the board with the 3months of detention. The detention order has to be
passed. It has been nullified because parliament posses the power to make law and order.
The constitutional amendment had been made by the 44 th CA 1978. The amendment
provided for reduction of the period of 3 months to 2months. The amendment is not
enforced yet. Because it is not enforced the original article continues. The composition was
also being changed but the amendment is not enforced the original article continues.
 Confirmation is to be done by the advisory board. The board cannot be decided blindly. The
grounds and representation are being considered. The record of board indicates the
favouring of the detain authority. If the representation of the detainue is not moved then
the detention can be illegal. The detainue has to bring it to the notice of the court.
 The constitution says under certain circumstances and class or classes of cases the
parliament will specify sand says that for these circumstances the opinion of advisory board
is not required the parliament can take the decision. The interpretation in the earlier times
were rigid. A.K.Gopalan another aspects of article 22 was challenged. The words
circumstances and classes should be read together. It was argued in the court that
circumstances and classes should be prescribed by the parliament. The court says the words
circumstances and classes are joined by ‘and’ is disco junctive and says it ‘or’. This came to
be overruled in shamunath case and it resorted to the original position.
 A.k.Roy: grounds are mentioned under NSA. The constitutional validity was challenged of
NSA. The grounds are vague was challenged. Because the words are not defined. The court
rejected the argument. The court said these words are incapable of precise definition. These
grounds are not to be interpreted liberally but restrictively.

RIGHT TO FREEDOM OF RELIGION:

 Sarva dharma samabhav

 Even if secular was not added the constitution still spoke about secularism.
 Article 26 given individual rights and group rights of freedom were protected
 Each and every religion will have its own stand and state is not going to favour and
discriminate any religion
 Non-discriminatory approach was adopted
 Secular amplified the preamble but there were no changes. 42 nd amendment.
 Preamble is the window, stepping stone towards the constitution.
 Preamble qualified Indian constitution by saying it is secular in nature.
 S.R Bommai v. UOI: it said secularism is the part and parcel of basic structure. When a
feature becomes a part of basic structure it means it will not be in the parliaments capacity
to change that. It talks about state emergency but one of the grounds were secular
characteristics of the state.
 Religious freedoms can be categorized by article provides individual rights (A25) and group
rights (A26 religious denomination – right of a religious set).
 Freedom is cumulatively termed as religious freedom. To practice without any hinderances.
19 has restrictions specifically mentioned but in 25 the restrictions are there. Though
religious freedom has been given it is not unfettered right. It is subject to public order,
health, morality etc. it has been made subject to other fundamental rights. It is only freedom
of religion which is subject to other fundamental rights r.
 Religious freedom is subject to what extent? The supreme court has clarified that: Shirur
Mutt case happens to be a landmark case. In 1954 the case came to be decided by the sc.
the supreme court says the right of religious freedom will not be limited to the fact the
person gets the choice to practice certain beliefs according to his own judgement it also
includes the right to exhibit his ideas/ beliefs is a different thing. Not only he internally
understands but he also gets the right to express those beliefs in an outer act which is
sanctioned by the religion. This right is extended to propagation and disseminate of religious
ideas that a person may have for benefiting other or to enlighten the others. The court
explains length and breadth of religious freedom. Also, with shirur mutt where in supreme
court took a different stand with respect to propagation of ideas. Rev Stainislavs: the court
interpreted the word propagate. Propagate is limited to say to spread or communicate one’s
beliefs of its tenets. The word is to be limitedly interpreted. It does not mean conversion of
another person to your own religion but it means communicating or transferring one’s
religion by an exposition of its tenets.
 Ashwini Kumar Upadhyay: The petitioner says in almost every state we would come across
instances of black magic and also fraudulent and forcible conversion. the state made their
different laws for state itself. But there is no central law to check the fraudulent conversion.
it asks sc to issue some directives. A 3-judge bench heard this case. The bench asked the
petitioner to withdraw the PIL or they will impose a cost on the petitioner on the ground
that it is a simple PIL for gaining publicity. The sc said this because prima facie disclosed its
mind also. The sc said it fails to understand why a person above 18 years should not have a
right to choose his own religion. why shouldn’t have a liberty to choose? By virtue of article
25 he has the right to choose his own religion. the judge disagrees the decision took the
decision in the previous judgement. Propagate have being used by the makers of the
constitution. The culmination of process would be basically to bring the view of other
religion. propagation is only for the purposes of educating the other persons.
 In 1954 the court is liberal in interpreting religious freedom and court is narrower in state of
Madhya Pradesh case.
 The essential religious practices are protected by article 25 and they cannot be interfered by
the state. the secular religious practices can be protected by the state and the state can
make a law to regulate secular activity of particular religion. the bifurcation as to what is
 protected by 25 and what allows state to involve is provided by 25. The necessity to identify
secular religious practices and essential practices.
 Essential religious practices came to be evolved by the supreme court in Shirur Mutt case.
the legislative challenge to the madras Hindu religious and charitable endowments act. the
sc said there is a necessity to draw a line what matters as the matters of religion. the court is
deciding what is essential. The supreme court says for court to come down to the
determination then the doctrine of religion should be looked into. The doctrines of religion
are ascertained by the voices of the people of that religion. the supreme court says it is
essential to distinguishing the matters of religion and what are not. whether it is integral to
the religion or not? the court will look into the doctrine. And the doctrine will be said by the
voices of the people. The court basically tries to balance the individual and group rights and
secular rights. Application of essential religious practices have varied. Whether the practice
is integral or not? it is necessary to apply essential religious practices.
 It’s their religious mandate which demands them to sacrifice cow. The court went into
religious scriptures. Then court says it’s not a mandatory practice therefore, court says it’s
not essential religious practice.
 Tilkayat: (1963) the decision of the court is a slight departure from the decision given in
shirur mutt. The supreme court says the tests to be applied for essential religion. whether
practice is integral part or not? whether practice in question is really integral to the
community or not? the supreme court clarifies by saying that if the followers of the religion
do not unanimously support the practice as integral. The voice might prove to be ineffective.
The supreme court on its own have to look into the religious scriptures and say whether it is
essential or not. it is entirely not feasible to rely on the voices of particular religion.
 Ananda Margis: the followers who claimed the right to perform tandav dance with the
trident and dhumro in hand in public. It came to be denied by the police commissioner. The
court found nowhere in the scriptures to perform tandav dance. The religious tests came to
be changes. So, as to include the dance to be essential. The court said if the scriptures could
be changes then this cannot be identified and it is embellishment.
 Gowda: indeed, the scriptures provide the right of entry of certain communities is denied
and is being followed.
 In ajmer darga case the supreme court says certain practices are superstition in nature. The
practice requires careful scrutiny to find out whether superstitious practice. The court needs
to be critical and observant to find out what are superstitious beliefs.

PRO REFORM:

 There is a transition and different factors considered by the court. The courts evolved with
respect to religion.
 The freedom of religion is being interpreted so as to uphold the indignity of the individual.
 The human dignity plays a crucial role, abolition of caste-based discrimination done by the
court. Reforms have been interpreted.
 N. Adithayan: travan core devas an board appointed a non malyalee and non brahim as
shanthikaran came to be challenge. As long as the person who has being appointed possess
the requisite knowledge for performing the puja. The regular feature was to appoint a
malyalee and brahim to be responsible to conduct a puja. The sc didn’t uphold the appoint
and said that if there is a non malyalee and non brahim because he has the requisite
knowledge and pedigree of caste should not be followed. the court broke caste and tried its
share in bringing about social equality.
 Religious rights one hand have to be interpreted in one hand. Talaq I bidaadt is no an
essential part. It is pro reform because the court pays due attention.
SUBJECT TO PUBLIC ORDER, HEALTH, MORALITY ETC:

 Javed v. state of Haryana: the decision od court has recently upheld in Khursheed. The third
tier to the government came to be added in a way of amendment. Urban local government
and rural local government are the aspects of the third tier. Urban local government and
rural local government are under the state. for the purpose of administration, it is with the
state. the Haryana state legislature made a law which prescribed for eligibility for sarpanch
and panch of gram panchayat. The person with more than 2 children are not eligible. This
came to be challenged. It effects the rights of polygamy and violative under article 25.
Freedom of religion is not absolute and it is subject to health also. The efforts of introducing
family planning were being adopted at national and state level. The court says freedom of
religion is not absolute and made subject to health. The state is capable of interfering
because it is not absolute. These laws which are made for social welfare and promoting
health and family planning can be made by the state. therefore, Haryana law was upheld.
Freedom of religion and the right of polygamy are not absolute.
 Church of god: sc upheld certain restictions being imposed on the ground of environmental
protection. No religion mandates the use of loud speaker for the puposes of prayer. And if
there is use of loud speaker which affects the health of the people resisding in the vicinity on
the indiscriminate use of loud speaker. Absolute freedom of religion was not given.
 Bijoy: when a person has his own fr of freedom of religion then in that case the other person
cannot excersie the freedom of religion in particular manner. The right of the state to
respect of national anthem.

REGULATION OF SECULAR ACTIVITY:

 Moment secular aspect is identified then

 Property of the temple which can be taken by the religious community and state takes care
of the maintenance; maintaining the decorum between the devotees inside and outside the
temple premises.
 Tilkayat: the state is capable of taking over the property belonging to the temple and
administer the property.
 Jaganath puri temple: The state can take over the management of the temple. Taking over of
the management of the temple entirely and making a legislation for the management it
cannot said to be violative. Because these activities of managing the affair are part and
parcel of the secular state.

SOCIAL REFORM:

 Javed: family planning was introduced at a rural level.

 Shayra bano:
 Sabrimala:

ARTICLE 26:

 Talks about the rights of religious denomination.

 Article 26 talks about rights being given to religious denomination.
 Religious denomination is not being defined.
 Any layman that religious denomination means a small association of people who have come
together.
  The people of a particular religion should have common faith between themselves which
bind the members of the community. Community should be based on religion. there should
be a common organisation and should have a distinctive name.
 Indicator towards a religious sect can be called as religious denomination.
 A claim of the people belonging to the religious denomination comes to the court before the
case on the basis of the evidence the court will decide whether denomination can be given
or not?
 The denominational status will be granted when the community have certain religious
tenets which are different from others. Ayyapans as a community did not have anything
different from hindu community and the judges refused to give religious denomination.
 Religious denomination have being given rights under article 26: establishing and
maintaining institutions for religious and charitable purpose, acquire a property and manage
the affairs in the aspect of religion (moveable or immovable).
 The right to administer the religious or charitable institution will be available to an
institution which has not being established.
 Azeez basha: the Muslim community was claiming the right to claim. It is established by a
statute and therefore, the right to manage or maintain the property to the Muslim
community cannot be given. the right to administer the institution will be available only
when the institution has established the institution.
 2nd: the power of any private individual/ religious denomination who has being given the
power to maintain and acquire the property. the state also has the power to acquire the
property. the state can take acquisition of property. the state can compulsory acquire the
property to an individual and religious denomination. The authority of the state to acquire
the property of religious denomination certain restrictions can be made. It should be
acquired only in exceptional. If it is acquiring to a religious place it is said to be a part and
parcel of religion.
 Durgah committee: the ajmer sharif durgah belongs to the chisthi soofies. It was
administered on behalf of the chisthi sect but by the officer of the state. a law came to be
made called Durgah Khwaja Saheb Act XXXVI of 1955. Under this act there was a proper
legislation and according to the legislation the administration will be done by the committee
under the legislation. It came to be challenged on the grounds that in the High Court of
Judicature for Rajasthan at Jodhpur a writ petition was filed under Art. 226 of the
Constitution by the nine respondents who are Khadims of the tomb of Khwaja Moinud-din
Chishti of Ajmer challenging the vires of the Durgah Khwaja Saheb Act XXXVI of 1955
(hereafter called the Act). the SC looked into the facts before the act came into the force.
the officer was administrating before the act came. But now it is by the legislation which
formally says the state will be administration. article 26 does not create a new right of a
religious denomination to administer the property if religious denomination had been
administering the property, then article 26 protects the right and continues the
denomination to administer the property. it was never being administered earlier after
legislation the court came to administer it. Article 26 protects the existing rights

ARTICLE 29 & 30: MINORITY RIGHTS

 Segregation of article 29 and 30 is not possible.

 Minority rights are specified under these articles.
 It becomes necessary to protect the rights of minority. There is a chance of distinguish
culture or language might get extinguish. The holistic understanding of religious
denomination and minority rights are not going to be different. The interference of state is
minimal because of the rights given because of the idea of religious minorities. The rights are
made in such a way that interference of state should be minimal. The rights of minorities are
 not absolute. The autonomy is not taken away but there is a limitation. The majority of the
population should not exercise the right such that the rights can get trampled. They should
not abrogate the rights. Taking care of the rights of minorities are not get washed away.
 The marginal heading of article 29 talks about the protection of interest of minorities. The
word minority has no where being used under clause 1 rather any section of citizens has
been used. Clause 2 the word minority is not being used. The word minority is o were
defined under article 29 or the constitution as well. The words which are conspicuously used
by the framers are any section of the citizens are in the territory or any part of the territory
of India. Clause 2 talks about right of claiming education. It delas with the state not
discrimination against any individual on the grounds of race, religion, caste and language or
any of them. The interpretation is constant. Different grounds of discrimination are given
under article 15 and as well as clause 2 of article 29. The educational institution maintained
by the state and the funds received by the state. When ‘only’ is used the prohibition against
discrimination is applicable only to those grounds.
 Article 30: it talks about rights of minorities to establish and administer educational systems.
All the minorities whether based on religion and language have the right to establish
educational institutions and administer.
 The minorities can be either religious or linguistic minority. Minority under article 30 is not
religious or linguistic. It clearly uses the word ‘or’ to say the right of the religious minority is
available to establish and administer educational institution and linguistic minority to
establish and administer educational institution. Religious and linguistic minorities will be
getting to administer and establish by them if it is established by them.
 Clause 1(a) of article 30: Religious denomination does not possess absolute right. The
property with religious denomination can be acquired by the state. the state can acquire a
property oof educational institution of the minority only if it is going to be in the larger
interest. If state is acquiring the property the state has to pay the compensation which is
determined by the law. The state basically to acquire the property is almost very broad. So
that the state has the power to acquire the property of private denomination, religious
denomination and minorities. When the state is acquiring the property of educational
institution it should not restrict or abrogate the minorities to establish the institution.
 Clause 2 talks about state ensuring equality in its treatment. The state should not
discriminate between 2 educational institutions. When something is being done by the state
there should be a parity while treating.
 Article 29 protection of interests of minorities and 30 talks about rights of minorities of
education and educational institutions.
 DAV College v. State of Punjab AIR 1971 SC 1737: regarding certain colleges in Punjab. These
colleges were affiliated to universities but later on university changed and new university
came to be established. College was set up under a different society and were belonging to a
particular minority. DAV college is not the sole petitioner. There are other colleges who have
come before the court praying for the recognition of rights under article 29(1) and 30. It was
formed in the memory of Dayanand Saraswathi. The society was formed on the basis of
religious tenets of arya samaj. The new university is demanding few things from these
colleges. Would demanding amount to trampling on the rights of minority education or not?
in the state of Punjab these are those societies who established the universities for the
purposes of preserving the different language, distinct culture and script which arya samaj
will have. The earlier university which they were affiliated the university was no longer in
existence. The new university was set up to mark 500 th death anniversary of guru nanak. The
agenda was the colleges affiliated to incorporate teachings on the life of guru nanak. Can
university compel the minority institution to teach Punjabi as the mode of instruction in
minority educational institutions? Question of balance comes from the fact that the states
that have being carved out of the country were made on the basis of language. Language
 becomes the basis of establishment of each and every state. State for the institutions which
have being established by the state the state can compel the medium of instruction to be
the medium of language. The state government can compel the medium of instruction. The
minority education is considered. Hindus in the state of Punjab are in a minority. It is not
about the state institution. The supreme court said that keeping in mind the basis of carving
out the state, and the linguistic basis for the creation of the state. it understands that the
education should be imparted in the regional language. But this cannot be imposed on the
minority educational institutions. Because they are minority in the state, they get the right
to preserve their own language, culture and script. This compulsory adoption of life study on
the teachings of guru nanak this study is not religious instructions that are sort to be
imparted by the minority educational systems. The court upheld the second inclusion on the
study of life teachings of guru nanak. When minority educational institutions are established,
the nature is understood vis-à-vis the majority in the particular area. If they are in minority,
they have their own rights because they are constitutional rights.
 Usha Mehta v. State of Maharashtra (2004) 6 SCC 264: the schools run by linguistic
minorities in the state of Maharashtra those had to compulsory incorporate the education of
marathi language in the curriculum. There were linguistic minorities schools in the state of
Maharashtra. It was an addition but not the substitution. The court said that 29 and 30
protects the rights of minorities and they run the educational system as they want. But by
making marathi language making compulsory was an addition and court didn’t grant relief to
this challenge and the case was dismissed because the articles cannot interpret in negative
manner.

SCOPE OF CLAUSE 2 OF ARTICLE 29

 Grounds are to be interpreted. The restriction on the state is that the state should not
discriminate on the grounds of language, religion, caste and race.
 State of Madras v. Champakam Dorairajan (IAR 1951 SC): communal order issued by the
state of madras was denied because it was completely on the basis of caste.
 State of Bombay v. Bombay Education Society (AIR 1954 SC 561): the Bombay government
issued an order and it banned the admission of those whose language was not English. It
came to be challenged because it deals with right to education in admission in educational
institution. Prohibition on the basis of the grounds was language and denial in admission on
the ground was language. It was struck down because it came to be a foul of clause 2 of
article 29.

Article 30

 Religious minorities and linguistic minorities come across under article 30. These get the
rights to establish their own institutions. These religious and linguistic minorities have an
absolute authority and absolute minority cannot be said. Because they are not maintaining
the basic educational standard that had being demanded. If it is lesser than other
institutions naturally it will be detrimental to the students. There should be a parity between
the level of education and academic excellence. There could be some regulation done by the
state. for other purposes autonomy can be given. for securing academic excellence or parity
for these purposes state can interfere for purpose of regulating institutions. The authority of
educational institutions can get the rights regarding the medium of instruction. When law is
made by the state for the purpose of benchmarking the standard of academic can be
regulated because it is in the larger natural interest. Interference I the form of regulation can
be done. When a law is made for protecting the teacher and if a state is taking care of even
for minority educational institutions cannot be challenged because it does not come into the
 category related to linguistic or cultural but it is relating to the secular aspect so it can be
regulated.

INTERPRETATION OF MINORITY:

 Re Kerala Education Bill AIR 1958 SC 956: if president thinks the question demands judicial
interpretation should be done by the supreme court the president can do that. Sc can give
on the basis of advisory jurisdiction supreme court can give the advice with respect to the
constitutionality of the question. The supreme court says that minority will be that
community which is numerically less that 50%. The 50% would vary in the sense that if
minority community is said to be identified and if country as a whole is taken as a unit, then
it that case with respect to the majority of the population all those communities less that
50% are said to be minority. In respect to the state the same minority the same minority in
the country can be majority. Minority in the state might be majority in the country is
possible. The supreme court in the case that what if a state is making the law and state is
trying to increment the law in a part of the state and what if that part of the state the
minority which is in the state is majority in that art of the state? a minority in the state as a
whole might be in majority in that part of the state. then again ascertaining minority
becomes difficult. Therefore, the supreme court said that minorities is to be determined
with reference to the particular legislation that is to be challenged. If a state law is
challenged the minority is understood vis-à-vis the state as a unit. If it is a central law the
minority will be determined on the basis of country as a unit. It was upheld in the case of
DAV College v. State of Punjab. This reasoning changed with TMA Pai Foundation v. State of
Karnataka.
 TMA Pai Foundation v. State of Karnataka AIR 2003 SC 355: there was no unanimity. The
majority view was giving a different opinion. Majority judgment – ‘language’ being the basis
for establishment of different States, ‘linguistic minority’ shall be determined in relation to
the State in which educational institution is sought to be established. The majority said the
state should be taken as a unit to determine linguistic minority. The minority in the case said
with the decision of the decision given by the supreme court in Kerala and DAV case. The
autonomy can be exercised till what extent by educational institutions which are established
and administered by minorities? The autonomy is not absolute and it can be exercised only
to the extent to the affairs preserving the language, scripts or cultures. Apart from these are
being done by educational institutions those are secular aspects and the for those purposes
the state can interfere into the administration of educational institutions of the minorities.
For example, the educational standards are maintained then the state will not interfere if
the admission in minority educational institution is being done on the basis of merit. But if
the admission is not being done on merit, then in that case the state can interfere. The court
said that the minority educational institutions can be bifurcated into 2 categories. The
regulation of one of those categories could be much more detailed as compared to the other
categories. The 2 categories are 1st is that which is solely established for the purpose of
conserving is language, script and culture. If educational institutions sole criteria is this then
in that case naturally it gets more autonomy because the recruitment of teachers for that
matter will also be the prerogative because it will naturally prefer those teacher which are
aligning themselves with the language, script or culture of the minority. The facilitators
should be such it will help them preserving the minorities and for that purpose educational
institution came to incorporated. Naturally this kind of educational institution will get much
more autonomy than the other one. But the other educational institution which is secular in
nature though established by the minority because they do not emphasise more on the
protection of language, script or culture. If more attention is paid then such educational
institution can be said to be secular in nature and will be regulated by the state. it’s a 11
judge bench decision the supreme court said the autonomy is not absolute fore the secular
aspect definitely the courts can interfere.