Constitutional Law (English) I 2019

(B.A.LL.B. I, B.B.A.LL.B. I, LL.B.
I) Semester – Constitutional Law I
Note :
The question paper is divided into two Parts. Part- A will carry total 08 (eight) questions of
04 marks each and the candidate shall be required to attempt any 05( five) questions. Part B will
carry total 08 (eight) questions (of 20 marks each), two each from the 04(four) Units of the syllabus.
The candidate shall be required to attempt total 04 (four) questions, one each from every Unit.
Constitutional Law – I
Session : 2019-20
(B.A.LL.B. I Semester)
(B.B.A.L.L.B. I Semester)
(L.L.B. I Semester)
 These are only important questions based on the syllabus. No
guarantee can be given.
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(B.A.LL.B. I, B.B.A.LL.B. I, LL.B. I) Semester – Constitutional Law I
Syllabus
Constitutional Law-I
Unit-I
1- Salient Feature of Indian Constitution
2- Nature of the Indian Constitution
3- Preamble of Indian Constitution
Unit-II
1- Fundamental Rights: Article 12 to Article 21 A
Unit-III
1- Fundamental Rights : Article 22 to Article 32
2- Directive Principles of State Policy
3- Fundamental Duties
Unit-IV
1- Executive – Union and State
2- Legislature- Union- and State
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Unit – I
Q1. Discuss the salient features of the Indian Constitution?
Ans. The Constitution of India is a unique constitution. It is the largest written liberal
democratic constitution of the world. It provides for a mixture of federalism and Unitarianism,
and flexibility and with rigidity. Since its inauguration on 26th January 1950, the Constitution
India has been successfully guiding the path and progress of India.
1. The lengthiest Constitution in the world
The Indian Constitution is the length and the most detailed of all the written
Constitutions of the world. While the American Constitution originally consisted of only 7
Articles, the Australian Constitution 128 Articles, the Canadian Constitution 147 Articles, the
Indian Constitution originally consisted of 395 Articles divided into 22 Parts and 8 Schedules.
But after the Constitution 92nd Amendment Act, 2003 the Indian Constitution now consists of
444 Articles divided into 26 Parts and 12 Schedules. Since 1950 to several Articles have been
repealed and 64 more Articles have been added to the Constitution.
Establishment of a Sovereign, Socialist, Secular, Democratic Republic
The Preamble of the Constitution declares India to be a Sovereign, Socialist, Secular,

Democratic Republic. The word ‘Sovereign’ emphasizes that India is no more dependent upon
any outside authority.
The term ‘Socialist’ has been inserted in the Preamble by the Constitution 42 nd Amendment
Act, 1976. This concept was already implicit in the Constitution. The amendment merely spells
out clearly this concept in the Preamble. The word ‘Socialism’ is used in democratic as well as
socialistic Constitutions.
The term ‘Secularism’ means a State which has no religion of its own as recognized religion
of State. It treats all religions equally. In a secular State the State regulates the relation between
man and man.
The Preamble to the Constitution declares that the Constitution of India is adopted and
enacted by the people of India and they are the ultimate master of the Republic. Thus the real
power is in hands of the people of India, both in the Union and in the States. The term
‘Republic’ signifies that there shall be an elected head of the State who will be the chief
executive head. The President of India, unlike the British King, is not a hereditary monarch but
an elected person chosen for a limited period. It is an essential ingredient of a Republic.
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2. Parliamentary form of Government-
The Constitution of India establishes a parliamentary form of Government both at the Centre
and the States. In this respect the makers of the Constitution have followed the British model in
toto. The reason for this is that we were accustomed to this type of Government. The essence of
the Parliamentary form of Government is its responsibility to the Legislature. The President is
the constitutional head of the State. The real executive power is vested in the Council of
Ministers whose head is the Prime Minister. The Council of Ministers is collectively responsible
to the Lower House, i.e., Lok Sabha. The members of the Lower House are elected directly by
the people on the basis of adult franchise normally for five years. The position is the same in the
States. This Government is, therefore, called a responsible Government.
3. Unique blend of rigidity and flexibility-
It has been the nature of the amending process itself in federation which had led political
scientists to classify federal Constitution as rigid. A rigid Constitution is one which requires a
special method of amendment of any of its provisions while in flexible Constitution any of its
provisions can be amended by ordinary legislative process. A written Constitution is generally
said to be rigid. The Indian Constitution, though written, is sufficiently flexible. It is only a few
provisions of the Constitution that require the consent of half of the State Legislatures. The rest
of the provisions can be amended by a special majority of Parliament. The fact that the Indian
Constitution has been amended 94 times during the period of last 60 years of its working
disapproves the view taken by Sir Ivor Jenning who had characterized our Constitution as rigid
for the following reasons: (a) that the process of amendment is complicated and difficult; (b)
that matters which should have been left to ordinary legislation having been incorporated into
the Constitution no change in these matters is possible without undergoing the process of
amendment.
4. Fundamental Rights-
The incorporation of a formal declaration of Fundamental Rights in Part III of the

Constitution is deemed to be a distinguishing feature of a democratic State. These rights are
prohibitions against the State. The State cannot make a law which takes away or abridges any of
the rights of the citizens guaranteed in the Part III of the Constitution. If it passes such a law it
may be declared unconstitutional by the courts. But mere declaration of certain Fundamental
Rights will be of no use if there is no machinery for their enforcement. Our Constitution has,
therefore, conferred on the Supreme Court the power to grant most effective remedies in the
nature of writs Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari whenever
these rights are violated. It must, however, be clearly understood that Fundamental Rights are
not absolute rights are not absolute rights. They are subject to certain restrictions. Thus our
Constitution tries to strike a balance between the individual liberty and the social interest. The
idea of incorporating a Bill of Rights has been taken from the Constitution of the United States.
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But the guarantee of individual rights in our Constitution has been very carefully balanced with
the need for security of the State itself.
5. Directive Principles of State Policy-
The Directive Principles of State Policy contained in Part IV of the Constitution set out the
aims and objectives to be taken up by the States in the governance of the country. Unlike the
Fundamental Rights, these rights are not justiciable. If the State is unable to implement any
provisions of Part IV, no action can be brought against the State in a law court. For this want of
enforceability there has been much criticism. But the criticism is not justified. Though by their
very nature they are not justiciable in the court of law, yet the State authorities have to answer
for them to the electorate at the time of election. The idea of a welfare State envisaged in our
Constitution can only be achieved if the States endeavour to implement them with a high sense
of moral duty.
6. A Federation with strong centralizing tendency-
The most remarkable feature of the Indian Constitution is that being a federal Constitution it
acquires a unitary character during the time of emergency. During the proclamation of
emergency the normal distribution of powers between the Centre and the States undergoes a
vital change. The Union Parliament is empowered to legislate on any subjects mentioned in the
State List. The Central Government is empowered to give directions to States as to the manner
in which it should exercise its executive powers. The financial arrangements between the Centre
and States can also be altered by the Union Government. Thus during the proclamation of
emergency all powers are centralized in the Union Government and Constitution acquires a
unitary character. His combination of federal and unitary system is unique feature of the Indian
Constitution. This feature of the Constitution can be better understood in the historical
background upon which the federalism has been introduced in India and also in the light of the
experience in other federal countries.
7. Adult Suffrage-
The old system of communal electorates has been abolished and the uniform adult suffrage
system has been adopted. Under the Indian Constitution every man and woman above 18 years
of age has been given the right to elect representatives for the legislature. The adoption of the
universal Adult Suffrage (Article 326) without any qualification either of sex, property,
taxation, or the like is a bold experiment in India, having regard to the vast extent of the country
and its population, with an overwhelming illiteracy. This suffrage is wider than all the
democratic countries which have given right to vote to their people. In spite of many
difficulties, this bold experiment has been crowned with success. This is evident with the
increased number of voters on the electoral rolls in the general elections.
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8. An Independent Judiciary-
Mere enumeration of a number of fundamental rights in a Constitution without any provision
for their proper safeguards will not serve any useful purpose. Indeed, the very existence of a
right depends upon the remedy for its enforcement. Unless there is no right, goes a famous
maxim. For this purpose an independent and impartial judiciary with a power of judicial review
has been established under the Constitution of India. It is the custodian of the rights of citizens.
Besides, in a federal Constitution it plays another significant role of determining the limits of
power of the Centre and States.
9. A Secular State-
A Secular State has no religion of its own as recognized religion of State. It treats all religions
equally. The Preamble declares the resolve of the people of India to secure to all is citizens
“liberty of ……..belief, faith and worship”. Article 25 to 28 of the Constitution give concrete
shape to this concept of secularism. It guarantees to every person the freedom of conscience and
the right to profess, practice and propagate religion. In a secular State, the State only regulates
the relationship between man and man. It is not concerned with the relationship of man with
God. One may worship God according to the dictates of his own conscience. However it is to be
noted that the freedom of religion is not an absolute freedom, but subject to the regulatory
power of the State. In the name of religion nothing can be done which is against public order,
morality and health of the public. Secularism is also subject to ‘democratic socialism’.
Religious freedom cannot, therefore, be used to practice economic exploitation. The right to
acquire, own and administer property by religious institutions is subject to the regulatory power
of the State.
10. Single Citizenship-

Though the Constitution of India is federal and provides for dual polity i.e., Centre and States,
but it provides for a single citizenship for the whole of India. The American Constitution
provides for dual citizenship, i.e., the citizen of America and a State citizenship. On the other
hand, there is only one citizenship in India, i.e., the citizenship of India. There is no State
citizenship. Every Indian is the citizen of India and enjoys the same rights of citizenship no
matter in what State he resides.
11. Fundamental Duties-

The Constitution (42nd Amendment) Act, 1976 has introduced a Code of ten “Fundamental
Duties” for citizens. The Fundamental Duties are indeed to serve as a constant reminder to
every citizen that while the Constitution has specifically conferred on them certain Fundamental
Rights, it also requires the citizens to observe certain basic norms of democratic conduct and
democratic behaviors.
With all these features, the Indian Constitution is a constitution best suited to the Indian
environment. The Constitution has been helping India to organize and run her government and
administration in an effective way both in times of peace and war. The basic structure of the
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Constitution i.e. its most fundamental features can be described as: Preamble, Fundamental
Rights, Directive Principles, Secularism, Federalism, Republicanism, Independence of
Judiciary, Rule of Law, and Liberal Democracy.
Q2. What are the distinguishing features of Unitary and Federal Constitution? Do you agree
with the view that the Indian Constitution is federal in nature? Explain.
Ans- According to the traditional classification followed by the political scientists,

Constitutions are either unitary or federal. In a unitary Constitution the powers of the
Government are centralized in one government viz., the Central Government. The provinces are
subordinate to the Centre. In a federal Constitution, on the other hand, there is a division of
powers between the Federal and the State Governments and both are independent in their own
spheres.
There is a difference of opinion amongst the constitutional jurists about the nature of the
Indian Constitution. One view is that it is a quasi-federal constitution and contains more unitary
features than federal. The other view is that it is a federal constitution with a novel feature
adopting itself to national emergencies. The view of the framers of the Constitution is that the
Indian Constitution is a Federal Constitution. Dr. Ambedkar, the Chairman of the Drafting
Committee, observed thus, “I think it is agreed that our Constitution notwithstanding the many
provisions which are contained in it whereby the Centre has been given powers to override the
Provinces (States) nonetheless, is a Federal Constitution”.
But some constitutional jurists hesitate to characterize the Indian Constitution as federal. Dr.
K.C.Wheare in his book “Federal Government” characterized the Indian Constitution as
quasi- federal. Prof. Jennings also characterized it as federal with strong centralizing tendency.
It is, therefore, necessary to ascertain firstly, what federal Constitution is and what are its
essential characteristics, and secondly, to examine whether our Constitution possesses those
characteristics.
Essential characteristics of a federal Constitution-
A federal Constitution usually has the following essential characteristics:-
(1) Distribution of Powers- The distribution of powers is an essential feature of federalism.

Federalism means the distribution of the powers of the State among a number of co-ordinate
bodies each originating in and controlled by the Constitution. The basis of such distribution of
powers is that in matters of national importance, in which a uniform policy is desirable in the
interest of the units, authority is entrusted to the Union, and matters of local concern remain
with the States.
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(2) Supremacy of Constitution- A federal State derives its existence from the Constitution, just as
a corporation derives its existence from the grant by which it is created. Hence, every power,
executive, legislative or judicial whether it belongs to the nation or to the individual State is
subordinate to and controlled by the Constitution. The Constitution in a federal State constitutes
the supreme law of the land. Prof. Where says “that those two institutions-the supreme
Constitution and the written constitution are then, essential institution to a federal Government.
The supreme Constitution is essential if Government is to be federal; the written Constitution is
essential if federal Government is to work well.
(3) A Written Constitution- A federal constitution must almost necessarily be a written
Constitution. The foundations of a federal State are complicated contracts. It will be practically
impossible to maintain the supremacy of the Constitution unless the terms of the Constitution
have been reduced into writing. To base an arrangement of this kind upon understandings or
conventions would be certain to generate misunderstandings and disagreements.
(4) Rigidity- A natural corollary of a written constitution is its rigidity. A Constitution which is the
supreme law of the land must also be rigid. In a rigid Constitution the procedure of amendment
is very complicated and difficult. This does not mean that the Constitution should be legally
unalterable. It simply means that the power of amending the Constitution should not remain
exclusively with either the Central or State Governments. A Constitution of a country is
considered to be a permanent document. It is the supreme law of the land. This supremacy of
the Constitution can only be maintained if the method of amendment is rigid.
(5) Authority of Courts- In a federal State the legal supremacy of the Constitution is essential for
the existence of the federal system. The very nature of a federal State involves a division of
powers between the Central and State Governments under the framework of the Constitution. It
is, therefore, essential to maintain this division of powers between the two levels of
Governments. This must be done by some independent and impartial authority above and
beyond the ordinary bodies whether federal or State legislatures existing under the Constitution.
In The State Of Tamil Nadu Rep. By Secretary v. K. Balu & Anr ( 31 March, 2017)
The issue which the Court addressed was the presence of liquor vends on national and state
highways across the country. Official figures of road accidents, with their attendant fatalities
and injuries provided the backdrop for the intervention of this Court. This Court adverted to the
consistent policy of the Union Government to curb drunken driving and, as an incident of the
policy, to remove liquor vends on national highways. The judgment of this Court concludes that
there is no justification to allow liquor vends on state highways (while prohibiting them on
national highways) having due regard to drunken driving being one of the significant causes of
road accidents in India.Hence, by the judgment of this Court, the following directions have been
issued for stopping the grant of licences for the sale of liquor along national and state highways
and over a distance of 500 metres from the outer edge of the highway or a service lane
alongside. 1 April 2017 is fixed as the date for phasing out existing licences.
The judiciary has, in a federal polity, the final power to interpret the Constitution and guard the
entrenched provisions of the Constitution.
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Even though Indian Constitution possesses all the essential characteristics of a federal
Constitution mentioned above but Prof. Wheare remarked, “ The Constitution establishes
a system of Government which is also quasi federal ….a unitary state with subsidiary
federal features rather than a federal state with subsidiary unitary features.
Though the Constitution of India possesses the essential features of a federation, it differs
noticeably from the typical federal system of the world in certain ways. These are:-
1. Parliament’s power to form new States and alter boundaries of existing States:- The
Parliament of India may form new States, it may increase or diminish the area of any State and
it may alter the boundaries or name of any State. The Constitution does not protect the territorial
integrity of the States.
2. Appointment of Governors:- The Governor of the States are appointed by the President
(Articles 155 and 156) and answerable to him.
3. Parliament’s power to legislate in the national interest:- Under Article 249, Parliament is
empowered to make laws with respect to every matter enumerated in the State list if the Rajya
Sabha passes a resolution by 2/3 majority that it is necessary in the national interest.
4. Emergency Provisions:- The Constitution envisages three types of Emergencies- (a)
Emergency caused by the war or external aggression or armed rebellion (Article 352);
(b) Emergency caused by the failure of Constitutional machinery in State (Article 356);
(c) Financial Emergency (Article 360).
When the proclamation of emergency is in operation the Parliament is empowered to

make directions to any State and Parliament is empowered to make laws with respect to any
matter enumerated in the State list.
In may be that we deviated in respect of certain matters from the strict federalism as
operating in the U.S.A. or Switzerland, but the reasons are obvious. In short, it may be
concluded that the Constitution of India is neither purely federal nor purely unitary but is a
combination of both. It is a union of composite State of a novel type. It enshrines the principle
that inspite of federalism, the national interest ought to be paramount. Thus, the Indian
Constitution is mainly federal with unique safeguards for enforcing national unity and growth.
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Q3. Discuss the importance of Preamble of the constitution. Whether an amendment can be
done in the Preamble?
The Significance of Preamble to a Constitution of India:

The term ‘Preamble’ refers to the introduction of preface to the Constitution. The Preamble to the
Indian Constitution is based on the ‘Objective Resolution’ drafted by Jawaharlal Nehru and adopted
by the framers of the Constitution. The significance of the Preamble lies in its components. It
embodies the source of the Constitution i.e., the people of India. The terms sovereign, socialist,
secular, democratic, republic in the Preamble suggests the nature of the state. The ideals of justice,
liberty, equality, fraternity reflects the objectives of the Constitution. It also contains November 26,
1949 as the date of adoption of the Indian Constitution.
The philosophy of the Indian Constitution is reflected in the Preamble. The independence of India
earned through struggle for independence is sought to be emphasized by the use of the word
‘Sovereign’ in the Preamble. The Gandhian ideals are aimed to be secured by the incorporation of the
word ‘Socialist’ in the Preamble by the 42nd Amendment. The same amendment inserted the word
‘Secular’ to reflect the secular nature of Indian society. The word ‘Republic’ in the Preamble
indicates that India has an elected head, though indirectly elected, the Indian President is the choice of
the people of India. These values are further strengthened by the word ‘Democratic’ in the Preamble.
To emphasize these values the Constitution framers have resorted to the use of the concepts like
justice, liberty, equality and fraternity. Justice socio-economic and political to be secured through the
provisions of Fundamental Rights and Directive Principles of State Policy. Liberty is guaranteed to
the individuals through the provision of Fundamental Rights, which are enforceable in the court of
law. The Preamble secures to all citizens equality of States and opportunity in civic, political. The
unity and integrity of the nation is sought to be secured by the use of the word ‘Fraternity’ in the
Preamble and by the provisions of fundamental duties and single citizenship in the Constitution.
The use of these words in the Preamble shows, it embodies the basic philosophy and fundamental
values on which the Constitution is based. It very well reflects the dreams and aspirations of the
founding fathers of the Constitution.
CAN PREAMBLE BE AMENDED UNDER ARTICLE 368?
In Re Berubari case of 1960, the Supreme Court held that preamble is not a part of the Constitution.
However it was changed in 1973 case of Kesavananda Bharti v. State of Kerala. When Supreme
Court said Preamble is an Integral Part of the Constitution and it is amendable. Followed by this there
was 42nd Constitutional Amendment in 1976, which is also known as Mini Constitution. Under this 3
words “Socialist, Secular and Integrity” were added to the Preamble.
The Supreme Court also held that Preamble is not superior to provisions mentioned in the constitution
as it’s just the summary of the ideals mentioned in the Constitution.
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Q4. What do you understand by Parliamentary form of Government? Differentiate between

Parliamentary form of Government and Presidential form of Government?
Parliamentary form of Government:

1. The executive is not separated from the legislature. The members of council of ministers are
the members of legislature.
2. The executive is accountable to the legislature. The executive loses power when it loses the
confidence of the legislature.
3. In the Parliamentary government, one person is head of state while another person is head of
government.
4. In the Parliamentary systems, the Prime Minister is most powerful.
5. In the Parliamentary system, the Prime Minister can appoint only the members of parliament
as minister.
6. In the Parliamentary system, the tenure of the executive is not fixed. The Council of
Ministers is dismissed if it loses the confidence of the legislature before its tenure is over.
7. The Parliamentary government is more democratic, because the executive (council of
ministers) is accountable to the legislature (Parliament).
8. There is less of separation of powers in the Parliamentary government.
9. During war and other emergencies, the Parliamentary government is relatively less effective
and successful.
Presidential form of Government:

1. The executive is completely separated I from the legislature. The members of executive are
not the members of the legislature.
2. The executive is not accountable to the II legislature. The legislature cannot remove the
executive from power] through no-confidence motion.
3. In the Presidential government, i same person is head of state as well as head of government.
4. In the Presidential system, the President is most powerful.
5. In the Presidential system, the President appoints persons from outside the legislature as
minister.
6. In the Presidential system, executive has a fixed tenure normally, the executive head
(President) stays in power for the whole term. It is not easy to remove him from power through
impeachment.
7. The Presidential government is democratic, because the executive (President) is not
accountable to the legislature.
Conclusion
In conclusion, we may say that both systems have merits and demerits. While public
opinion has better chance to influence the government's policies and decisions in the
Parliamentary system, the Presidential system is more successful in providing political stability.
The Presidential system in the US and the Parliamentary system in Britain have been
more or less equally successful in giving prosperity and security to their respective people. Any
system of government will succeed if different organs of government work sincerely and follow
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the rules of the game. Another critical factor in this regard is the awareness and alertness of
people.
Short Questions:
1. What do you understand by Rule of Law?
The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly
incorporated in the Indian Constitution. The ideals of the Constitution viz; justice, liberty and equality
are enshrined in the Preamble itself (which is part of the Constitution).
The Constitution of India has been made the supreme law of the country and other laws are required
to be in conformity with it. Any law which is found in violation of any provision of the Constitution,
particularly, the fundamental rights, is declared void. The Indian Constitution also incorporates the
principle of equality before law and equal protection of laws enumerated by Dicey under Article 14.
In Keshavananda Bharti v. State of Kerala, the Supreme Court states that “Our Constitution
postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to
arbitrariness."The 13 judge Bench also laid down that the Rule of law is an “aspect of the basic
structure of the Constitution, which even the plenary power of Parliament cannot reach to amend."
2. What do you mean by the principle of social justice?
Social justice denotes the equal treatment of all citizens without any social distinction based on caste,
colour, race, religion, sex and so on. It means absence of privileges being extended to any particular
section of the society, and improvement in the conditions of backward classes (SCs, STs, and OBCs)
and women. Social Justice is the foundation stone of Indian Constitution. Indian Constitution makers
were well known to the use and minimality of various principles of justice. They wanted to search
such form of justice which could fulfill the expectations of whole revolution. Social justice found
useful for everyone in its kind and flexible form. Although social justice is not defined anywhere in
the constitution but it is an ideal element of feeling which is a goal of constitution. Feeling of social
justice is a form of relative concept which is changeable by the time, circumstances, culture and
ambitions of the people. Social inequalities of India expect solution equally. Under Indian
Constitution the use of social justice is accepted in wider sense which includes social and economical
justice both.
The conception of social justice also encompasses firm commitment to the protection of human rights
and civil liberties. Disabilities and problems of other groups like the physically disabled, child labour,
tribals and those affected by environmental pollution also form the agenda of social justice.
After 40 years of independence, 8 Five Year Plans, hundreds of laws leading to a veritable forest of
rules offering a variety of special facilities to the underprivileged ranging from scheduled castes and
tribes to women, in matters of education, employment, housing, etc. social justice is far from a
reality. 53% of over 965 million people are under the poverty line i.e. unable to spend even a dollar a
day on bare necessities. A mere16% of households enjoy the ‘luxury’ of electricity, drinking water
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and toilet facilities. This percentage is 3.9% if only rural households are taken into consideration.
71% of our women are illiterate. The need of hour is to ensure the proper and balanced
implementation of policies so as to make social justice an effective vehicle of social progress.
3. How can citizenship be terminated?
Citizenship (Article 5 to 11)
Citizenship means that th4e citizen shall receive certain care, protection, facilities, be entailed
to hold offices, be eligible for recruitment to public service and be subjected to certain taxation.
Under the Indian Constitution certain fundamental rights are available only to citizens, Aliens
do not enjoy these rights. The rights exclusively enjoyable by the Indian citizens are enumerated
under Article, 15, 16, 19, 29, 30, 58(1)(a), 66(3)(a), 124(3), 217(2), 157, 165 and 76(1) of the
constitution.
Citizenship is to be determined as per the Citizenship Act, 1955 and constitutional provisions.
(Lalbabu Hussain vs. Electoral Registration Officer, AIR 1995, SC 1189)
Citizenship can be acquired by:
1) By birth
2) By descent
3) By registration
4) By naturalization
5) By incorporation of territory into India.
TERMINATION OF CITIZENSHIP:
The Citizenship Act, 1955 prescribes whether acquired under the act or prior to it under the
Constitution viz. renunciation, termination and deprivation.
1.Renunciation:
It is a voluntary act by which a person, after acquiring the citizenship of another country, gives up his
Indian Citizenship. This provision is subject to certain conditions.
2.Termination:
It takes place by operation of law when an Indian citizen voluntarily. He automatically ceases to be an
Indian citizen.
3.Deprivation:
It is a compulsory termination of Indian citizenship by the Central government, if
1. The citizen has obtained the citizenship by fraud.
2. The citizen has shown disloyalty to the Constitution of India.
3. The citizen has unlawfully traded or communicated with the enemy during a war.
4. The citizen has, within five years after registration or neutralization, been imprisoned in any
country for two years.
5. The citizen has been ordinarily resident out of India for seven years continuously.
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4. What do you mean by the term Secularism?
‘Secularism' means a State which does not recognise any religion as a State religion. It treats
all religions equally. The concept of secularism was already implicit in the Constitution, "liberty of
belief, faith and worship". Articles 25 to 28 of the Constitution guarantee to every person the freedom
of conscience and the right to profess, practise and propagate religion. In St. Xavier College v. State
of Gufarat,1 the Supreme Court has said, "although the words 'secular State' are not expressly
mentioned in the Constitution but there can be no doubt that Constitution-makers wanted to establish
such a State" and accordingly Articles 25 to 28 have been included in the Constitution.
5. What do you mean by the term sovereign?
The word ‘sovereign’ emphasizes that India is no more dependent upon any outside authority.
It means that both internally and externally India is sovereign. It’s membership of the Commonwealth
of Nations and that of the United Nations Organisation do not restrict her sovereignty. Critics say that
India’s membership of the commonwealth of nations is not compatible with her sovereign status. But
it is to be noted that India’s membership of the Commonwealth of nations does not in any way restrict
her sovereignty.
6. Write a note of Independence of Judiciary in India.
Ans. Constitutionally judiciary in India is supreme as well as independent. High Court and
Supreme Court are the creation of the Constitution. Decisions and judgments given by these courts
shall be respected by the executive. Judges of the Supreme Court and High Court are appointed by
the President of India. But president of India cannot remove them. Only both the Houses of
parliament may remove the judge of High Court or Supreme Court. For removal of the judge of High
Court and Supreme Court head of the State is not empowered. Simply a previous approval by such a
resolution is condition precedent. Thus judges of Supreme Court and High Courts can function
without fear and favour because government can not remove them. The judiciary in India is thus
independent, impartial as well as strong. It is guardian of fundamental rights and upholder of the
Constitution.
The Constitution has made the following provisions to ensure the independence of judiciary.
1. Security of tenure,
2. Salaries of judges fixed- not subject to vote of legislature,
3. Parliament can extend but cannot curtail the jurisdiction of the Supreme Court
4. No discussion in Legislature on the conduct of the judges.
5. Judges of the Supreme Court are appointed by the executive with the consultation
of legal experts.
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7. What do you mean by Judicial Activism?
The powers of the Supreme Court for the protection of the constitutional rights of citizens are
of the widest amplitude and there is no reason why the Court should not adopt activist
approach similar to Courts in America and issue to the state directions which may involve
taking of positive action with a view to securing enforcement of the fundamental right. The
judiciary has been assigned this active role under the Constitution. They are not expected to
sit in an ivory tower like an Olympian closing their eyes uncaring for the problems faced by
the society
Unit – II
Q1. (a). Discuss the definition of State given under Article 12?
(b) Whether Judiciary is State as per Article 12?
Or,
(c) Whether University is a State under Article 12?
Ans- Definition of State (Article 12)
Article 12 defines the term ‘State’ as used in different Articles of Part III of the
Constitution. It says that unless the context otherwise requires the term ‘State’ includes the
following:-
1. The Government and Parliament of India, i.e., Executive and Legislature of the Union.
2. The Government and the Legislature of each State, i.e., Executive and Legislature of States.
3. All local or other authorities within the territory of India.
4. All local and other authorities under the control of the Government of India.
The term ‘State’ thus includes executive as well as the legislative organs of the Union and
States. It is, therefore, the actions of these bodies that can be challenged before the courts as
violating fundamental rights.
(a) Authorities- According to Webster’s Dictionary: “Authority” means a person or body

exercising power to command. In the context of Article 12, the word “authority” means the
power to make laws, orders, regulations, bye-laws, notification etc. which have the force of law
and power to enforce those laws.
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(b) Local Authorities- ‘Local authorities’ as defined in Section 3 (31) of the General Clauses Act
refers to authorities like Mohammed Yasin v. Town Area Committee, the Supreme Court held
that the bye-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer
was an order by a State authority contravened Article 19 (1)(g). Those bye-laws in effect and in
substance have brought about a total stoppage of the wholesale dealer’s business in the
commercial sense. In Sri Ram v. The Notified Area Committee, a fee levied under Section 294
of the U.P. Municipalities Act, 1919, was held to be invalid.
(c) Other authorities- In Article 12 the expression ‘other authorities’ is used after mentioning a
few of them, such as, the Government, Parliament of India, the Government and Legislature of
each of the States and all local authorities.
Is University comes under the definition of State under Article 12?
In University of Madras v. Santa Bai, the Madras High Court held that ‘other authorities’
could only mean authorities exercising governmental or sovereign functions. It cannot include
persons, natural or juristic, such as, a University unless it is ‘maintained by the State’. But, in
Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held that the expression ‘other
authorities’ is wide enough to include all authorities created by the Constitution or statute on
whom powers are conferred by law. It is not necessary that the statutory authority should be
engaged in performing governmental or sovereign function.
In Sukhdev Singh v. Bhagatram, the Supreme Court, following the test laid down in
Electricity Board Rajasthan’s case by 4:1 majority, held that Oil and Natural Gas Commission,
Life Insurance Corporation and Industrial Finance Corporation, are authorities within the
meaning of Article 12 of the Constitution and therefore, they are ‘State’. All three statutory
Corporations have power to make regulations under the statute for regulating conditions of
service of their employees.
In Ajay Hasia v. Khalid Mujib, it has been held that a Society registered under the
Societies Registration Act, 1898, is an agency or “instrumentality of the State” and hence a
‘State’ within the meaning of Article 12.
In Zee Telefilms Ltd. v. Union of India (2005) the apex court applied the test laid down
in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) that it is to be
established first that the body should be financially, functionally, administratively dominated by
or under the pervasive control of the Government and not regulative control only. In SAIL v.
Madhusudan Das (2009), it was held that Steel Authority of India is State.
Is Judiciary included in the word “State”?
In America it is well-settled that the judiciary is within the prohibition of the 14th
Amendment. The judiciary, it is said, though not expressly mentioned in Article 12 it should be
included within the expression ‘other authorities’ since courts are set up by statute and exercise
Page 16 of 72 (2019-20)
power conferred by law. It is suggested that discrimination may be brought about…even(by)

judiciary and the inhibition of Article 14 extends to all actions of the State denying equal
protection of the laws whether it be the action of any one of the three limbs of the State.
In Naresh v. State of Maharashtra (1967), the Supreme Court was held that even if a
Court is the State a writ under Article 32 cannot be issued to a High Court of competent
jurisdiction against its judicial orders, because such orders cannot be said to violate the
fundamental rights.
In A.R. Antulay v. R.S. Nayak (1988), where it was held that the court could not pass an
order or issue a direction which would be violative of fundamental rights, it can be said that the
expression “State” includes judiciary also.
In Rupa Ashok Hurrah v. Ashok Hurrah (2002), the apex court has reaffirmed and
ruled that no judicial proceeding could be said to violate any of the fundamental rights. It was
said to be settled position of law that the superior courts of justice did not fall within the ambit
of “State” or “Other Authorities”.
A.G. Envrio Infraprojetcs Private Limited, Thane v. State of Maharashtra &

Others (AIR 2019 382) (BOM)
It was held that the contract by Municipal Corporation is subjected to judicial review.
Corporation being local authority is amenable to writ jurisdiction. Arbitrary action of
corporation is subjected in judicial review.
Page 17 of 72 (2019-20)
Q2. “The State shall not deny equality before law and equal protection of laws.” Explain
Or,
“Article 14 permits classification but prohibits class legislation.” Elucidate.
Ans- Article 14 to 18 of the Constitution guarantees the right to equality to every citizen of
India. Article 14 embodies the general principles of equality before law and prohibits
unreasonable discrimination between persons. Article 14 embodies the idea of equality
expressed in the Preamble. The succeeding Articles 15, 16, 17 and 18 lay down specific
application of the general rules laid down in Article 14. Article 15 relates to prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 guarantees
equality of opportunity in matters of public employment. Article 17 abolishes ‘Untouchability’.
Article 18 abolishes title.
A-Equality Before Law- Article 14 declares that ‘the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India’. Thus
Article 14 uses two expressions “equality before the law” and “equal protection of the law”.
The first expression ‘equality before law’ is of English origin and the second expression
has been taken from the American Constitution. ‘Equality before the law’ is a somewhat
negative concept implying the absence of any special privilege in favor of individuals and the
equal subject of all classes to the ordinary law.
Rule of Law
The guarantee of equality before the law is an aspect of what Dicey calls the rule of law
in England. It means that no man is above the law and that every person, whatever be his rank
or conditions, is subject to the jurisdiction of ordinary courts. Dicey wrote “every official from
the Prime Minister down to constable or a Collector of taxes is under the same responsibility for
every act done without legal justification as any other citizen”.
Professor Dicey gave three meanings of the Rule of Law thus-
1. Absence of Arbitrary Power or Supremacy of the law.

2. Equality before the law.
3. The Constitution is the result of the ordinary law of the land.
B. “Equal protection of the law” is a more positive concept implying equality of

treatment in equal circumstances. However, one dominant idea common to both the expressions
is that of equal justice. The word “any person” under Article 14 denote that Right to equality is
available to both:
 Citizens as well as Non- Citizens.
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 Natural as well as legal persons.
It is applicable to both substantive as well as procedural laws.
Exceptions to the rule of Equality:
Article 361 provides that the President and the Governor shall not be answerable to any
Court for the exercise and performance of the powers and duties of office. E.g. foreign
diplomats are immune from the jurisdiction of courts.
Article 14 permits classification but prohibits class legislation-
Class Legislation is that which makes improper discrimination by conferring particular

privileges upon a class of persons arbitrarily selected. The varying needs of different classes of
persons often require separate treatment. From the very nature of society there should be
different laws in different places and the Legislature controls the policy and enacts laws in the
best interest of the safety and security of the State. In fact, identical treatment in unequal
circumstances would amount to inequality. So, a reasonable classification is necessary if society
is to progress.
Test of Reasonable Classification-
While Article 14 forbids class legislation, it does not forbid reasonable classification of
persons, objects and transactions by the legislature for the purpose of achieving specific ends.
But classification must not be “arbitrary, artificial or evasive”. Classification to be reasonable
must fulfill the following two conditions:-
(1) The classification must be founded on an intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the group; and
(2) The differentia must have a rational relation to the object sought to be achieved by the Act.
Illustration: Under Section 11 of the Indian Contract Act, 1872 only major can enter into a
contract i.e. here basis of classification is age (above 18 years) which has a relation with the
capacity to enter into the Contract.
NEW CONCEPT OF EQUALITY
While the traditional concept of equality is based on the doctrine of classification, the
new concept is based upon the doctrine of arbitrariness. To establish violation of equality
principle one need not have to establish discrimination. Arbitrary or unreasonable actions,
according to the Court are discriminatory.
In E.P. Royappa v. State of Tamil Nadu, the Supreme Court has challenged the
traditional concept of equality which was based on reasonable classification and has laid down a
new concept of equality. Bhagwati, J., delivering the judgment on behalf of himself,
Page 19 of 72 (2019-20)
Chandrachud and Krishna lyer, JJ. propounded the new concept of equality in the following
words-
“Equality is a dynamic concept with many aspects and dimensions and it cannot be
‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic
point of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are
sworn enemies; one belong to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is therefore violative of Article 14.”
In Maneka Gandhi v. Union of India, Bhagwati, J., again quoted with approval the
new concept of equality propounded by him in the E.P. Royappa case. He said:-
“…………. Equality is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at
arbitrariness in State action and ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an essential element of equality or
non-arbitrariness, pervades Article 14 like a brooding omnipresence.”
Arbitrary action-State liable to pay compensation to a citizen
Arbitrary or unreasonable actions according to the Supreme Court are discriminatory

and violative of the principles of Natural Justice.
In a landmark judgment in Lucknow Development Authority v. M.K. Gupta, the

Supreme Court has held that if loss or injury is caused to a citizen by the arbitrary actions of
State employees the State is liable to pay compensation to him. Public authorities who are
entrusted with statutory function cannot act negligently.
In Ajay Hasia v. Khalid Mujib(1981 SC ) Supreme Court held that allocation of 1/3rd
of the total marks for interview was plainly arbitrary and violative of Article 14.
In Air India v. Nargesh Mirza (AIR 1981 SC 1829) Supreme Court held that
termination of service on first pregnancy was manifestly unreasonable and arbitrary and was,
therefore violative of Article 14.
In Mithu v. State of Punjab (AIR 1983 SC 473) the Supreme Court struck down
Section 303 Indian Penal Code, 1860 as unconstitutional. Section 303 prescribes that if a person
under a life sentence commits murder, he must be given death sentence, but under Section 302,
if a person commits murder he may be awarded either death sentence or life imprisonment
which is violation of Article 14.
Social Equality and Equal Access to Public Areas
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The right of Social Equality and Equal Access to Public Areas is clearly mentioned
under the Article 15 of the Constitution of India stating that no person shall be shown favoritism
on the basis of color, caste, creed language, etc. Every person shall have equal admittance to
public places like public wells, bathing ghats, museums, temples etc. However, the State has the
right to make any special arrangement for women and children or for the development of any
socially or educationally backward class or scheduled castes or scheduled tribes. This article
applies only to citizens of India.
Equality in Matters of Public Employment
Article 16 of the Constitution of India clearly mentions that the State shall treat everyone
equally in the matters of employment. No citizen shall be discriminated on the basis of race,
caste, religion, creed, descent or place of birth in respect of any employment or office under the
State. Every citizen of India can apply for government jobs. However, there are some
exceptions to this right. The Parliament may pass a law mentioning that specific jobs can only
be filled by candidates who are residing in a particular area. This requirement is mainly for
those posts that necessitate the knowledge of the locality and language of the area. Apart from
this, the State may also set aside some posts for members of backward classes, scheduled castes
or scheduled tribes which are not properly represented in the services under the State to uplift
the weaker sections of the society. Also, a law may be passed which may entail that the holder
of an office of any religious institution shall also be a person professing that specific religion.
Though, this right shall not be granted to the overseas citizens of India as directed by the
Citizenship (Amendment) Bill, 2003.
Page 21 of 72 (2019-20)
Q3. Article 15(4) makes special provisions for the betterment of Socially and Educationally
Backward Classes of citizens. Explain the above provision with the help of decided cases.
Article 15(4) enables the State to make special provisions for the advancement of socially and
educationally backward class of citizens or for SC & ST’s.
State of Madras v. Champakam Dorairajan (1951)
The reservation of seats for non- Brahmins, Backward Hindus, Harijans, Anglo Indians, Indian
Christians and Muslims was held to offend Articles 15(1) and 29 (2). The Court held that the
omission clause like 16(4) from Article 29 indicated the intention of the Constitution makers not to
introduce communal consideration in matters of admission to educational institutions.
Indira Sawhney v. Union of India (1993)
Article 15(4) enables the State to make special provisions for the advancement of socially and
educationally Backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Such
provisions include reservations or quotas and can be made in the exercise of executive power without
any legislative support.
Two things must be determined under Article 15(4):
 Who are socially and educationally backward classes?
 What is the limit of reservation?
Article 340 contemplates appointment of a commission to investigate the conditions of socially and
educationally backward classes but no such definition of backward class is given under the
Constitution of India.
M.P.Balaji v. State of Mysore (1963)
In this case reservation was done in engineering and medical colleges on the basis of following
classes:1. Backward class= 28%
2. More Backward Class= 22%
3. SC/ST =18%
TOTAL RESERVATION= 68%
The SC held that caste of a group of persons cannot be the sole or even predominant factor though it
may be a relevant test for ascertaining whether a particular class is a backward class or not.
Backwardness under Article 15(4) must be social and educational and that social backwardness is in
the ultimate analysis, the result of poverty. The Court held that the sub- classification made by the
order between backward class and more backward classes was not justified under Article 15(4).
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Backwardness as envisaged under Article 15(4) must be social and educational and not either social
or educational. Though caste may be a relevant factor but it cannot be the sole test for ascertaining,
whether a particular class is a backward class or not?
Ajay Kumar v. Union of India (2006)
A tribal woman married a non- tribal by court marriage and her son was brought up in forward
family. The Supreme Court held that offshoots of such marriage cannot claim status of Schedule
Tribe. Casual visit to village in holidays cannot constitute acceptance by the community.
Q4. “The Indian Constitution seeks to secure equality of status and opportunity to all its
citizens.”Point out and discuss the provisions of the Indian Constitution which help in
fulfillment of this object.
Ans. Equally of Status and opportunity
Article 16(1) of the Indian Constitution guarantees an equality of opportunity to all citizens in
matters of employment or appointment to any office under the state. According to Article 16(2), no
citizen can be discriminated against or be ineligible for any employment or office under the state on
grounds only of religion, race, caste, sex, descent, place of birth or residence. These two clauses,
therefore, postulate the universality of Indian Citizenship. As there is one common citizenship,
residence qualification is not required for service in any state.
There should be no discrimination between one employee and another on the basis of any
prejudice, bias or any extraneous ground. Art. 16(1) is much wider in scope than Art. 16(2) and the
grounds of discrimination expressly mentioned in Art. 16(2) are not exhaustive. Art. 16(2) brings out
emphatically in a negative form, what is guaranteed by Art. 16(1). Discrimination is double edged
weapon. It would operate in favour of a person but not against some other.
Equality of opportunity in matters of employment under Art. 16(1) means equality as between
members of the same class of employees and not equality between members of separate independent
classes. Thus in Menor vs Rajasthan, A. 1. R. 1968 S. C. 81 giving of a special pay to members of
Rajasthan Administrative Service, but not to the members of the Rajasthan Secretariat Service was
held not discriminatory. The methods of recruitment, qualification etc. of the two services are not
identical, and even if members of the two services may at times be appointed on the same post, there
is no principle that every one appointed on the same post must be paid identical emoluments.
Art. 16(1) does not debar the state from entering into contracts of temporary service and
impose special terms in each case provided these are not inconsistent with the Article 16(1) and
16(2). These Articles do not forbid the government from creating various cadres or categories of
posts carrying different emoluments. It is for the Government to decide what cadres or grades it
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would create for carrying on administration. Equality of opportunity under Article 16(1) means
equality as between members of separate, independent classes.
In Venkataraman vs State of Madras, A.I.R. 1961 S.C. 279 an order of Madras

Government which reserved posts not only for Harijans and backward classes but also for other
communities namely, Muslims, Christians non-Brahmins and Brahmins was held to violate Article
16.
Article 16(2) prohibits discrimination on ground of place of birth and not on ground of
residence and residence and place of birth are two distinct conceptions. (Shalini vs Union of India
and another, AIR 1985 SC 1420 A)
Where the respondent was appointed as daily wager, however the appointment was not made
in terms of statutory rules or against clear vacancy or in permanent post or he was not placed on
probation and he was not given ticket of permanent employee and he was further more not entitled to
any regular scale of pay attached to any post . He could not be directed to be regularised and was not
entitled to permanent Status.
Exceptions—The right of equality guaranteed by Arts. 16(1)and (2) are subject to a few
exceptions—firstly— Parliament may make a law so as to prescribe conditions for eligibility for
appointment with respect to specified classes of appointments or posts therein. Secondly a law may
prescribe that the incumbent of an office in connection with the affairs of a religious denomination is
an institution or a member of the governing body thereof shall belong to that particular religion or
denomination. This is provided for by Art. 16(3).Thirdly under Art. 16(4) reservation of appointments
or posts in favour of backward classes of citizens, not adequately represented in the public service,
may be made by the state.
Article 16(5) is the third exception to the general rule laid down in Art. 16(1) and (2) which
forbids discrimination in public employment on the ground of religion. Art. 16(5) says that a law
which provides that the incumbent of office in connection with the affairs of any religious or
denomination institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination shall not be treated to be repugnant to
this Article.
In service matters the question of seniority should not be reopened after the lapse of a
reasonable period because that results in disturbing the settled position which is not justifiable. [B. S.
Bajwa vs State of Punjab, AIR 1999 SC 1510]
Page 24 of 72 (2019-20)
Q5. “All citizens shall have the right to freedom of speech and expression”. Discuss the nature
of this right and explain clearly how this right can be restricted by law.
Or,
Discuss the freedom of speech and expression. Does it include freedom of press as well?
Ans- Meaning and scope
Freedom of Speech and expression means the right to express one’s own convictions and
opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus
includes the expression of one’s ideas through any communicable medium or visible
representation, such as, gesture, signs and the like. The expression connotes also publication
and thus the freedom of the press is included in this category. Free propagation of ideas is the
necessary objective and this may be done on the platform or through the press. The freedom of
propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to
that freedom as the liberty of publication. Indeed, without circulation the publication would be
of little value.
Commercial Advertisement-Part of freedom of speech and expression
Advertisement is undoubtedly a form of speech. But every form of advertisement is not a

form of speech or expression of ideas. Advertisement when it takes the form of commercial
advertisement no longer falls within the concept of freedom of speech for the object of such
advertisement is not the proportion of ideas-social, political or economic of furtherance of
literature or human thought. An advertisement of ‘commercial nature’ is not protected under
Article 19(1)(a). Such advertisements have an element of trade and commerce. In ‘Hamdard
Dawakhana v. Union of India(1960), the validity of the Drug and Magic Remedies
(Objectionable Advertisement) Act, which put restrictions on advertisement of drugs in certain
cases and prohibited advertisements of drugs having magic qualities for curing diseases was
challenged on the ground that the restriction on advertisement abridged the freedom of speech.
The Supreme Court held that an advertisement of prohibited drugs would thus not fall within
the scope of Article 19(1) (a).
FREEDOM OF PRESS
The fundamental right of the freedom of the press implicit in the right the freedom of
speech and expression is essential for political liberty and proper functioning of democracy. The
American Press Commission has said, “Freedom of the press is essential to political liberty.
When man cannot freely convey their thoughts to one another, no freedom is secured, where
freedom of expression exists the beginning of a free society and means for every retention of
liberty are already present. Free-expression is therefore, unique among liberties”. The Indian
Press Commission has also expressed a similar view. It says that “Democracy can thrive not
Page 25 of 72 (2019-20)
only under the vigilant eye of its Legislature, but also under the care and guidance of public
opinion and the press is par excellence, the vehicle through which opinion can become
articulate.” Unlike the American Constitution, Article 19(1) (a) of the Indian Constitution does
not expressly mention the liberty of the press but it has been held that liberty of the press is
included in the freedom of speech and expression. The “press has no special rights which are
not to be given or which are not to be exercised by the citizen in his individual capacity. The
editor of a press or the manager is merely exercising the right of the expression, and therefore,
no special mention is necessary of the freedom of the press.”
“The liberty of the press” as defined by Lord Mansfield consists in “printing without any
license subject to the consequences of law.” Thus the liberty of the press means liberty to print
and publish what one pleases, without previous permission. The freedom of the press is not
confined to newspapers and periodicals. It includes also pamphlets and circulars and every sort
of publication which affords a vehicle of information and opinion.
Pre-Censorship invalid
The imposition of censorship on a journal previous to its publication would amount to

an infringement of Article 19(1)(a). The question of validity of censorship came up for
consideration in the case of Brij Bhushan v. State of Delhi(1950). In that case the Chief
Commissioner of Delhi, in pursuance of Section 7 of the East Punjab Safety Act, 1949, issued
an order against the printer, publisher, editor of an English Weekly of Delhi, called the
Organizer, directing them to submit for scrutiny in duplicate before publication till further
orders, all communal matters and news and views, about Pakistan including photographs and
cartoons other than those derived from official sources or supplied by the news agencies. The
Court struck down the order, observing: “…….. The imposition of pre-censorship of a journal is
a restriction on the liberty of the press which is an essential part of the freedom of the speech
and expression declared by Article 19(1) (a).” Similarly, prohibiting newspaper from
publication of its own views or the views of correspondents about the burning topic of the day is
a serious encroachment on the valuable right of freedom of speech and expression.
In Express Newspapers v. Union of India(1958), the Supreme Court held that a law which
imposes pre-censorship or curtails the circulation or prevents newspapers from being started or
require the Government to seek Government aid in order to survive was violative of Article
19(1)(a). In this case, the validity of the Working Journalists Act, 1955, was challenged. The
Act was enacted to regulate conditions of service of persons employed in newspaper which
might be forced to close down and would curtail circulation and thereby narrow the scope for
dissemination of information and hence violative of Article 19(1)(a). The Court held the Act
valid. It said that press was not immune from laws of general application or ordinary forms of
taxation, or laws of industrial relations. The Act was passed to ameliorate the service conditions
of workmen in the newspaper industry and, therefore, impose reasonable restriction on the right
guaranteed by Article 19(1)(a).
Page 26 of 72 (2019-20)
In Sakal Papers Ltd. v. Union of India(1962), the Daily Newspapers (Price and Control)
Order, 1960, which fixed a minimum price and number of pages which a newspaper was
entitled to publish was challenged as unconstitutional by the petitioner on the ground that it
infringed the liberty of the press. The petitioners were required to increase the price of their
newspaper without increasing the pages. An increase in price without any increase in number of
pages would reduce the volume of circulation. On the other hand, any decrease in the number of
pages would reduce the column, space for news, views or ideas. The order, therefore, acted as
double-edged knife. It cut circulation by a price rise or publication or dissemination of news,
ideas and knowledge by restricting column space consequent to decrease in the number of
pages. The State justified the law as a reasonable restriction on a business activity of a
newspaper in the general public. The Court struck down the order rejecting the State’s
argument. It said that the right of freedom of speech and expression cannot be taken away with
the object of placing restrictions on the business activity of a citizen. Freedom of speech can
only be restricted on the grounds mentioned in clause (2) of Article 19. It cannot, like the
freedom to carry on business, be curtailed in the interests of the general public.
In Bennett Coleman and Co v. Union of India (1973), the validity of the Newsprint Control
Order which fixed the maximum number of pages (10 pages which a newspaper could publish
was challenged as violative of fundamental rights guaranteed in Article 19 (1)(a) and Article 14
of the Constitution. The Government defended the measure on the ground that it would help
small newspapers to grow and to prevent a monopolistic combination of big newspapers. The
Court held that the newsprint policy was not reasonable restriction within the ambit of Article
19(2). The newsprint policy abridges petitioner’s right of the freedom of speech and expression.
The newspapers are not allowed their right of circulation. They are not allowed right of pages
growth. The common ownership units of newspapers cannot bring out newspapers of new
editions. The newspapers operating above 10 pages level (and newspapers operating below 10
pages) have been treated equally for assessing the needs and requirements of newspapers which
are not their equals. Once the quota is fixed and direction to use the quota is in accordance with
the newsprint policy made applicable, the big newspapers are prevented any increase in page
number. Both page number and circulation are relevant for calculating the basic quota and
allowances for increase. In the garb of distribution of newsprint the Government has tended to
control the growth and circulation of newspapers. Freedom of the press is both quantitative and
qualitative. Freedom lies both in circulation and in content. The newsprint policy which permits
newspapers to increase circulation by reducing the number of pages, page area and periodicity,
prohibits them to increase the number of pages, page area and periodicity by reducing
circulation. These restrictions restrict the newspapers in adjusting their page number and
circulation.
In a historic judgment in R. Rajgopal v. State of T.N. (1995), the Supreme Court has held that
the Government has no authority in law to impose a prior-restraint upon publication of
defamatory material against its officials. Public authorities who apprehend that they or their
Page 27 of 72 (2019-20)
colleagues may be defamed could not prevent the Press from publication of such material, could
take action for damages after the publication of such material if they prove that the publication
was based on false facts. The Court held that no action could be initiated against the press if the
publication was based on public records including court records.
Grounds of Restrictions
Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech
and expression can be imposed:-
(a) Security of the State.

(b) Friendly Relations with Foreign States.
(c) Public Order.
(d) Decency of Morality.
(e) Contempt of Court.
(f) Defamation.
(g) Incitement of an offence.
(h) Sovereignty and integrity of India.
Unlike the US Constitution, the Indian Constitution does not confer absolute freedom of
speech and expression. No freedom can be absolute or unrestricted. In India Article 19(2)
permits the Parliament/State Legislature to impose reasonable restrictions on this freedom on
the grounds specified above. The number of grounds on which restrictions can be imposed on
the freedom of speech and expression are wider than the grounds on which restrictions can be
put on other five freedoms of Article 19.
Page 28 of 72 (2019-20)
Q6. “No person shall be deprived of his life or personal liberty except according to procedure
established by laws.” Discuss with the help of decided cases.
Or,
Examine the scope of Personal Liberty guaranteed by Article 21 of the Constitution of India.
Whether Right to life includes Right to die?
Or,
Whether Right to Privacy has become a recognized individual fundamental right in India?
Ans- SCOPE OF ARTICLE 21
Article 21 explains with “Protection of life and personal liberty”. The inspiration of the
Article 21 of our Constitution is the Fifth Amendment to the Constitution of the United States of
America which guarantees the fundamental right to life and liberty.
It lay down, “No person shall be deprived of his life, liberty or property without due
process of law”. The phrase without due process of law is not found in Article 21. Dr.
Ambedkar suggested changing the phrase “to the procedure established by law”, and it has been
unanimously agreed and adopted by Constituent Assembly.
Requirements of Article 21
1. There must be a valid law.

2. The law must lay down the procedure.
3. The procedure must be right, just and fair.
4. The law must meet the requirements of Article 14 and Article 19 also.
MEANING
Personal liberty- The expression “personal liberty” has been understood in a wide sense.
Mukherjee J. of Supreme Court explained the meaning of “personal liberty” as follows: “In
ordinary language personal liberty’ means liberty’ in this sense is the antithesis of physical
restraint or coercion.”
Object- The object of Article 21 is to give assurance for the safety of life and liberty of
person. Such assurance is subject to an inherent limitation, it is not an absolute guarantee but is
subject to the condition that life and liberty may be taken in accordance with the procedure
established by law which means that the executive has no power to take them away, but they
can be taken away in pursuance of an expression of the legislative will. While there is a
guarantee against executive excesses, there is no guarantee against legislative aggression upon
individual liberty.
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Law before Maneka Gandhi v. Union of India
The Supreme Court gave judgment in A. K. Gopalan v. State of Madras upholding

restrictions on the freedom of speech and other freedoms in Article 19, and also right to life
under Article 21.
Law after Maneka Gandhi Case:
The Supreme Court opined that there was no guarantee in our constitution against arbitrary
legislation encroaching upon personal liberty. It was expressed in the A.K. Gopalan’s case also.
Meneka Gandhi vs. Union of India (AIR 1978 SC 597)
The Supreme Court opined that “it is not the object of the authority making the law
impairing the right of citizen, nor the form of action taken that determines the protection he can
claim. It is the effect of the law and of the action open the right which attracts the jurisdiction of
the court to grant relief.
People’s Union for Democratic Rights vs. Union of India (AIR 1982 SC 1473)
(The Asiad Games Case)
The Supreme Court agreed with the contention of the Society, and ordered the
defendants to enhance the wages. It was held that non-payment of minimum wages to the
workers employed in various Asiad Projects in Delhi was a denial to them of their right to live
with basic human dignity and violative of Article 21 of the Constitution.
In Olga Tellis vs. Bombay Municipal Corporation (AIR 1986 SC 180) (Pavement
Dweller’s case), The Supreme Court admitted the argument of the petitioner, and ordered the
Bombay Municipal Corporation to show alternative to the pavement dwellers.
In State of Punjab vs. Ramlubhaya Bagga (1998 (4) SCC 417), the Supreme Court
held that right to healthy life is an obligation of the State both under Article 21 and Article 47. It
ordered the State Government to provide best facilities in the hospitals. It ordered to appoint
efficient doctors and sufficient staff to provide medical facilities in Government Hospitals.
In M.C. Mehta vs. Union of India (1997 (8) SCC 770) (Delhi Pollution Case), the
Supreme Court gave judgment in favor of the petitioner. It ordered the Police administration,
and Municipality to take appropriate steps to prevent pollution.
RIGHTS OF UNDERTRIALS
In Parmananda Katara vs. Union of India (AIR 1989 SC 2039), the Supreme Court
gave judgment in favor of the petitioner. It gave directions that whoever brings the injured
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person, it is the first duty of the doctors to treat him. The legal formalities may be followed later
on.
Principle laid down:
i. Now the paramount consideration of the medical profession is that whenever an

injured person is brought to the hospital, whether it is private or government, the duty doctor
should attend him, and should try to save him. Because the injured has the right to live under
Article 21, even though he is a criminal.
ii. It is the State’s obligation to provide medical facilities to all the citizens.
In Hussainara Khatoon vs. Home Secretary, State of Bihar (AIR 1979 SC 1360), the
Supreme Court held that the procedure prescribed by law should not deprive a person of his
liberty and the law should be ‘reasonable, fair and just’. It ordered for the acquittal the several
under trial prisoners.
In Rudal Shah v. State of Bihar (1983) 4 SCC 141, Rudal Shah was illegally arrested by the
police. Even after the High Court’s order he was not released. The Supreme Court ordered to
release him immediately, and also ordered State Government to pay Rs. 30,000/- to the
dependents of the deceased.
RIGHT TO PRIVACY
In People’s Union for Civil Liberties v. Union of India (AIR 1997 SC 568) (Telephone
Tapping Case), the Supreme Court gave judgment in favor of the petitioners. It treated the
petition as Public Interest Litigation. The court held Section 5 of the Indian Telegraph Act, 1885
as void. It was further stated that telephone tapping is a serious invasion of an individual’s right
to privacy which is part of the right to “life and personal liberty” enshrined under act.
The nine-judge bench of the Supreme Court has unanimously delivered its judgment in Justice
K.S. Puttaswamy (Retd.) v. Union of India (2017 SC 4161)
In justice Puttaswamy (Retd) and Another v. Union of India & Others. Upheld the overall
validity of the Adhaar (Targeted Delivery of Financial and other Subsidies, Benefits and
Servicer Act 2016).
The Adhaar Act was held to be constitutional to the extent it allowed for Adhaar number based
authentication for establishing the identity of an indivisoinal for receipt of a subsidy, benefit or
service given by the central or state government funded from the consolidated fund of India.
Whether Right to life includes Right to death?
In P.Rathinam v. Union of India (1994) it was held by the Supreme Court that the right to life
includes right to die and hence Section 309 of Indian Penal Code is unconstitutional.
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In Gian Kaur v. State of Punjab (1996) 2 SCC 648, the Supreme Court overruled its own
decision in P. Ratinam and held that both the Sections 306 and 309 of IPC are constitutionally
valid.
Dr. Sangamitra Acharya and another v. State (NCT of Delhi) & Other (AIR 2019
333Del.)
“There are nine primary types or privacy one of them is decisional privacy which is reflected
by ability to make decisions in respect of intimate relation.” This would include right to specify
whom to include and whom to exclude from one’s circle.
Principle laid down by the Supreme Court
1. “Right to life” is a natural right embodied in Article 21 but suicide is an unnatural termination
or extinction of life and, therefore, incompatible and inconsistent with the concept of “right to
life”. When a man commits suicide he has to undertake certain positive overt acts and the
genesis of those acts cannot be traced to, or be included within the protection of the “right to
life” under Article 21. The significant aspect of “sanctity of life” is also not to be overlooked.
Article 21 which guarantees protection of life’ cannot be construed so as to read therein
extinction of life’ or ‘right to die’, whatever may be the philosophy of permitting a person to
extinguish his life by committing suicide.
2. Abetment of attempt to commit suicide is outside the purview of Section 306 and it is
punishable only under Section 309 read with Section 107. Assisted suicide and assisted attempt
to commit suicide are made punishable for cogent reasons in the interest of society. Such a
provision is considered desirable to also prevent the danger inherent in the absence of such a
penal provision. The abettor is viewed differently, inasmuch as he abets the extinguishment of
life of another person, and punishment of abetment is considered necessary to prevent abuse of
the absence of such a penal provision.
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Q7. Write short notes on the following:
(a) Doctrine of Eclipse
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not
invalid. It is not dead totally but overshadowed by the fundamental right. The inconsistency
(conflict) can be removed by constitutional amendment to the relevant fundamental right so that
eclipse vanishes and the entire law becomes valid.
Explanation of the Doctrine

1. When a Court strikes a part of law, it becomes unenforceable. Hence, an 'eclipse' is said to be
cast on it. The law just becomes invalid but continues to exist. The eclipse is removed when
another (probably a higher level court) makes the law valid again or an amendment is brought to
it by way of legislation.
2. The Supreme Court of India, in P Ratinam case (1994), has held Section 309 of the Indian
Penal Code, 1860 unconstitutional. Hence, the section was under eclipse. However, a
constitutional bench in Gian Kaur case (1996) reversed this decision and held the section as
constitutional whereby the eclipse was removed and it because operable again.
(b) Protection from Ex-Post Facto Laws
Article 20(1) of the Indian constitution provides necessary protection against ex post facto
law. Art. 20(1) has two parts. Under the first part, no person is to be convicted of an offence
except for violating ‘a law in force’ at the time of the commission of the of the act charged as an
offence. A person is to be convicted for violating a law in force when the act charged is
committed. A law enacted later, making an act done earlier (not an offence when done) as an
offence, will not make the person liable for being convicted under it.
The second part of Article 20(1) immunizes a person from a penalty greater than what he
might have incurred at the time of his committing the offence. Thus, a person cannot be made to
suffer more by an ex-post-facto law than what he would be subjected to at the time he committed
the offence.
What is prohibited under Article 20(1) is only conviction or sentence, but not trial, under an
ex-post-facto law. The objection does not apply to a change of procedure or of court. A person
being accused of having committed an offence has no fundamental right of being tried by a
particular court or procedure, except in so far as any constitutional objection by way of
discrimination or violation of any other fundamental right may be involved.
Supreme Court’s Verdict on Ex Post Facto Laws: Supreme Court of India has played an
important role in exploring as well in interpreting the doctrine of ex-post-facto law. The immunity
extends only against punishment by courts of a criminal offence under as ex-post-facto law.
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Article 20(1) does not make a right to any course of procedure a vested right. Thus, a law
which retrospectively changes the venue of trial of an offence from a criminal court to an
administrative tribunal is not hit by Article 20(1). A change in court entitled to try an offence is
not hit by Article 20 (1). Similarly, a rule of evidence can be made applicable to the trial of an
offence committed earlier.
Further, what Article 20(1) prohibits is conviction and sentence under ex-post-facto law for
acts done prior thereto, but not the enactment or validity of such a law. There is, thus, a difference
between the Indian and the American positions on this point, whereas in America, an ex-post-
facto law is in itself invalid, it is not so in India.
In Lily Thomas v. Union of India (2000), it was argued that the law declared by the
Supreme Court in Sarla Mudgal v. Union of India (1995), could not be given retrospective effect
because of Article 20(1); it ought to be given only prospective operation so that the ruling could
not be applied to a person who had already solemnized the second marriage prior to the date of
the Sarla Mudgal judgment. However, Supreme Court rejected the contention arguing that it had
not laid down any new law in Sarla Mudgal. What the court did in that case was only the law
which had always been in existence. The Court has merely interpreted and enforced the existing
law.
(c) Double Jeopardy

Fundamental right which is guaranteed under Article 20(2) of Constitution of India
incorporates the principles of “autrefois convict” or Double jeopardy which means that
person must not be punished twice for the offence. Doctrine against Double Jeopardy
embodies in English common law’s maxim ‘nemo debet bis vexari, si constat curice quod sit
pro una iti eadem causa” (no man shall be punished twice, if it appears to the court that it is
for one and the same cause). It also follows the “audi alterum partem rule” which means that
no person can be punished for the same offence more than ones. And if a person is punished
twice for the same offence it is termed Double jeopardy. Under the American and
British Constitution the protection against Double Jeopardy is given for the second
prosecution for the same offence irrespective of whether an accused was acquitted or
convicted in the first trial. But under Article 20(2) the protection against double punishment is
given only when the accused has not only been ‘prosecuted’ but also ‘punished’, and is sought
to be prosecuted second time for the same offence.
In S.A. Venkataraman v. Union of India (1954), an enquiry was made before the
enquiry commissioner on the appellant under the Public Service Enquiry Act,1960 & as a
result, he was dismissed from the service. He was later on, charged for committed the offence
under Indian Penal Code & the Prevention of Corruption Act. The court held that the
proceeding held by the enquiry commissioner was only a mere enquiry & did not amount to a
prosecution for an offence. Hence, the second prosecution did not attract the doctrine of
Double Jeopardy or protection guaranteed under Fundamental Right Article 20 (2).
It is to be noted that Article 20 (2) will applicable only where punishment is for the
same offence, In Leo Roy v. Superintendent District Jail, the Court held: if the offences are
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distinct the rule of Double Jeopardy will not apply. Thus, where a person was prosecuted and
punished under sea customs act, and was later on prosecuted under the Indian Penal Code for
criminal conspiracy, it was held that second prosecution was not barred since it was not for
the same offence.
The rule against Double Jeopardy stipulates that no one may be put in peril twice for
the same offence. It is a concept originated from “Natural Justice System” for the protection
of integrity of the “Criminal Justice System”. The concept of Double Jeopardy follows the
“audi alterem partem rule” which means a person cannot be punished twice for the same
offence. But it is to be noted that there are some restrictions too in the Indian laws related to
Double Jeopardy.
(d) Protection against Self Incrimination
Clause (3) of Article 20 of the Indian Constitution, 1950 provides that “No person accused
of any offence shall be compelled to be a witness against himself.” This principle is espoused
on the maxim “nemo teneteur prodre accussare seipsum”, which essentially means “NO MAN
IS BOUND TO ACCUSE HIMSELF.”
The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against
testimonial compulsion for people who are accused of an offence and are compelled to be a
witness against themselves. The provision borrows from the Fifth Amendment of the American
Constitution which lays down that, “No person shall be compelled in any criminal case to be a
witness against himself”, same as mentioned in the Constitution of India embodying the
principles of both English and American Jurisprudence. This libertarian provision can be
connected to an essential feature of the Indian Penal Code based on the lines of Common Law
that, “an accused is innocent until proven guilty” and the burden is on the prosecution to
establish the guilt of the accused; and that the accused has a right to remain silent which is
subject to his much broader right, against self-incrimination.
The tendency of Indian legal system manifests scepticism of the police system. This is the
reason confessions of an accused is only admissible if recorded by a Magistrate in accordance
with an elaborate procedure to ensure that they are made voluntarily. Protection is also accorded
by the provisions of The Indian Evidence Act. This protection is available to every person
including not only individuals but also companies and incorporated bodies.
This clause gives protection only if the following ingredients are present:
1. It is a protection available to a person accused of an offence;

2. It is a protection against compulsion to be a witness against oneself; and
3. It is a protection against such “Compulsion” as resulting in his giving evidence against himself.
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The protection contained in Article 20(3) is against compulsion “to be a witness” against
oneself. In M.P Sharma v. Satish Chandra (1954), the Supreme Court gave a wide
interpretation of the expression “to be a witness” which was inclusive of oral, documentary and
testimonial evidence. The Court also held that the protection not only covered testimonial
compulsion in the Court room but also included compelled testimony previously obtained from
him.
Self-incrimination has been extensively discussed in the case of Nandini Satpathy v.

P.L Dani (1978). In this case, the appellant, a former Chief Minister of Orissa was directed to
appear at Vigilance Police Station, for being examined in connection to a case registered against
her under the Prevention of Corruption Act, 1947 and under Section 161/165 and 120-B and 109
of The Indian Penal Code, 1860. Based on this an investigation was started against her and she
was interrogated with long list of questions given to her in writing. She denied to answer and
claimed protection under Article 20(3). The Supreme Court ruled that the objective of Article
20(3) is to protect the accused from unnecessary police harassment and hence it extends to the
stage of police investigation apart from the trial procedure.
Article 20 (3), invokes protection against self-incrimination and gives an accused the
right to remain silent over any issue which tends to incriminate him. This protection by the
Indian Constitution is also extended to suspects.
Short Question
1. What is Judicial Review?
Ans. Judicial Review is the power of the Courts to pass upon constitutionality of legislative acts
which far fall within normal jurisdiction to ensure and the power to refuse to enforce such as they
find to be unconstitutional and hence avoid.
Under this power of judicial review the highest Court of the nation can test all pre-
constitutional and post-constitutional laws and declare them unconstitutional in case they contravene
any of the provisions of Part III of the constitution.
Judicial Review is not an appeal from a decision but a view of the matter in which the
decision was made, it is not for the court to determine. Whether a particular policy or particular
decision taken in the fulfuilment of that policy is fair. The court will interfere only when there is non-
consideration, non-application of mind or arbitrariness.
In Keshvanand Bharti’s case, it has been held that Judicial Review is one of the basic
features of the Indian Consitution and therefore cannot be taken away by amending the Constitution
under Article 368 of the Constitution.
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The doctrine of judicial review was for the first time propounded by the Court of America. (In
Marbury vs. Madison)
Article 13 in fact provides the power of judicial review of all legislations in India, past, as
well as future. This power has been conferred on the High Courts and the Supreme Court of India
(Article 226 and 32) which can declare a law unconstitutional if it is inconsistent with any of the
provisions of part III of the Constitution.
Judiciary in India Under the Constitution is entrusted with the duty to keep the
executive and legislature within the limits or powers conferred upon them by the Constitution. The
power of judicial review is conferred on the Judiciary under this Article. This duty is one of the basis
features of the Constitution. Proceedings in Legislature are not outside the purview of judicial review
by the court. (Chandra kumar v/s Union of India)
2. What is the difference between Writ of Certiorari and Writ of Prohibition?
Prohibition and certiorari are much in common. Both the writs are issued with the object of
restraining the inferior courts from exceeding their jurisdiction. The Supreme Court has expressed the
difference of the two writs in Hari Vishnu Kamath v.. Ahmad Ishaque (AIR 1955 S.C. 233), in the
following terms:
 “When an inferior Court takes up for hearing a matter over which it has no jurisdiction, the
person against whom the proceedings are taken, can move the Supreme Court for a writ of
prohibition and that an order will be issued forbidding the inferior court from continuing the
proceeding.
 On the other hand, if the court hears the case or the matter and gives a decision, the party
aggrieved would have to move the Supreme Court for a writ of certiorari. On that an order
will be made quashing the decision on the ground of jurisdiction.
 “When the case is pending before the court but it has not been finally disposed of, the
Supreme Court has to apply both prohibition and certiorari; prohibition to prevent the court to
proceed further with the case and certiorari for what has been already decided.”
 Prohibition like certiorari lies only against judicial or quasi-judicial bodies. It does not lie
against a public authority which acts purely on an executive or administrative capacity, nor to
a legislative body.
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 Thus, the object of the writ of prohibition is prevention rather than cure, while certiorari is
used as a cure.
3. What do you mean by the Doctrine of Severability?
Article 13 of the Constitution of India says that a law is void if it is inconsistent with the
Fundamental Rights. However, the article also says that a law is void only “to the extent of the
inconsistency or contravention” with the relevant Fundamental Right. This implies that an act may
not be void as a whole but only a part of it may be void and if that part is severable from the rest
which is valid, and then the rest may continue to stand and remain operative. This is called “Doctrine
of Severability.” The Act will then be read as if the invalid portion was not there. If, however, it is not
possible to separate the valid from the invalid portion, then the whole of the statute will have to be
declared as void. In A K Gopalan v. State of Madras, Section 14 of Preventive Detention Act, 1950
is stuck down by the Supreme Court because it is in violation of Fundamental Rights.
4. Explain the Doctrine of Waiver?
Doctrine of Waiver says that Fundamental Rights are not absolute and are subject to certain
reasonable restrictions and hence an individual cannot chose to get his fundamental rights waived,
relinquished or abandoned. Basheshar Nath v Commissioner of Income Tax (AIR 1959 SC 149).
Another important landmark judgment was of Olga Tellis v Bombay municipal corporation,
a case in which in a writ proceeding in the high court, the pavement dwellers gave an undertaking that
they would not claim any fundamental right to put up huts on pavements or public roads and they
would not obstruct the demolition of the huts after a certain date. Later when the huts were sought to
be demolished after the specified date, the pavement dwellers put up the plea that they were protected
by article 21. The government contended that they could not raise any such plea in view of their
previous undertaking. The Supreme Court overruled the objection of the government saying that
fundamental rights could not be waived. There can be no estoppels against the constitution which is
the paramount law of the land. The constitution has conferred fundamental rights not only to benefit
individuals but to secure the larger interests of the community.
5. Whether Fundamental Rights are available against Private Individuals as well?
Following Fundamental rights are available against Individual as well as State. So if some private
individual is violating these, he can be dragged to Supreme Court. Remaining Fundamental rights are
available against State only.
1. Art 15 (2) ( and not 15(1) ) 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
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2. Art 17 Untouchability is abolished and its practice in any form is forbidden The
enforcement of any disability arising out of Untouchability shall be an offence punishable
in accordance with law
3. Art 23 (1) Traffic in human beings and begar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence punishable in
accordance with law
4. Art 24 No child below the age of fourteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.
6. What are the provisions regarding Pre- Constitutional Laws?
According to clause (1) of Article 13 all pre-Constitution or existing laws, ix , laws which
were in force immediately before the commencement of the Constitution shall be void to the extent to
which they are inconsistent with fundamental sights from the date of the commencement of the
constitution.
Article 13 not retrospective in effect. Article 13 (1) is prospective in nature. All pre-
Constitution laws inconsistent with Fundamental Rights will become void only after the
commencement of the Constitution. They are not void ab initio. Such inconsistent law is not wiped
out so far as the past Acts are concerned. A declaration of invalidity of the Courts necessary to make
the laws invalid. The Supreme Court in Keshava Madhav Menon v. State of Bombay, observed:
“There is no fundamental right that a person shall not be prosecuted and punished for an offence
committed before the Constitution came into force. So far as the past Acts are concerned the law
exists notwithstanding-that it does not exist with respect to the future exercise of the Fundamental
Rights."
7. What are the provisions regarding Post- Constitutional Laws?
Clause (2) of Article 13 prohibits State to make any law which takes away or abridges right
conferred by part III of the Constitution. If State makes such a law then it will be ultra vires and void
to be extent of the contravention. It is still-born law and cannot be revived by removal of the
constitutional prohibition by subsequent amendment of the Constitution. Though post-Constitution
Laws inconsistent with fundamental rights are void from their very inception yet a declaration by the
court of their invalidity will be necessary. As distinguished from clause (1), Clause (2) makes
unconstitutional laws shall have to be set aside. “Anything done under such a law, whether closed,
completed or inchoate will be wholly illegal and person adversely affected by it will entitle to relief.
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8. Discuss the provisions regarding Abolition of Untouchability?
Article 17 of the Indian Constitution is a legislation that abolishes practice of untouchability

in any form. According to the provision of Article 17, “enforcement of any disability arising
out of untouchability” is a punishable offence in accordance with law. The ostensible
objective was to put an end to humiliation and harassment faced by the dalits and backward
classes and ensure that their fundamental rights are preserved.
PUDR v. Union of India (1982)
The Supreme Court has held that the fundamental rights under Article 17 are available
against private individuals and it is the constitutional duty of the State to take necessary steps
to see that these fundamental rights are not violated.
In order to strengthen the constitutional provision in Article 17, the Parliament enacted the
Protection of Civil Rights Act, 1955 (formerly known as Untouchability Offences Act). This
Act penalizes expressions of untouchability in any form which include enforcing religious and
social disabilities, refusing to admit persons to hospitals, and unlawful compulsory labour. As
per the Act, the offender “shall be punishable with imprisonment for a term of not less than
one month and not more than six months.”
 To expand the ambit of Article 17, the Rajiv Gandhi government came up with the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. The new legislation was
enacted to deal with more violent caste-driven atrocities against scheduled castes and
scheduled tribes
9. Is constitutional amendment a law under Article 13 (2)?
Ans. Whether a constitutional amendment a law under Article 13 (2)- the question whether the
word law in clause (2) of Article 13 includes a constitutional amendment was for the first time
considered by the Supreme Court in Shankari Prasad vs. Union of India (AIR 1951 SC 458). In
this case the validity of the constitution Firs Amendment Act. 1951, which introduced the new Article
31-A and 31-B was involved. The Court held that the word ‘law’ in clause (2) does not include law
made by the parliament under Article 368. The word law in Article 13 must be taken to mean rules or
regulations made in exercise of ordinary legislative power and not amendments to the Constitution
made in exercise of ordinary legislative power and not amendments to the Constitution made in
exercise of constitutional powers with the result that Article 13(2) does not affect amendments made
under Article 368.
But the Supreme Court Overruled the above decisions in I.C. Golaknath v. State of Punjab,
AIR 1967, S C 164. This case involved the constitutionally of the 17 th amendment, 1964 to the
Constitutions. Delivering the majority judgment, Subba Rao C.K. observed that-
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“the word ‘law’ in Article 13(2) includes every branch of law, statutory, constitutional etc.
and hence, if an amendment to the Constitution takes away or abridges fundamental right, th3e
amending law itself would be void.”
But the above difficulty has been removed by the constitution 24th amendment Act, 1971 by
introducing a new clause (clause 4). The validity of the Constitution 24th Amendment Act, 1971, has
been upheld by the Supreme Court in Kesavanand v. State of Kerala, AIR 1973 SC 1461. It means
that the word ‘law’ in terms of Article 13 will not extend to an amendment made under Article 368.
This position is reassured by adding clause (3) to Article 368 which provides that nothing in Article
13 shall apply to an amendment made under this Article.
10. Discuss the doctrine of Prospective over-ruling.
Ans. The Indian Constitution does not expressly or by necessary implication speak against the
doctrine of prospective over-ruling. Indeed Articles 32, 141 and 142 are enacted in such wide and
elastic terms as to enable the Supreme Court to formulate legal doctrines to meet the ends of justice.
However, this doctrine can be invoked only in matters arising under the constitution and it can be
applied only by the Supreme Court as it has constitutional jurisdiction to declare law binding on all
courts in India. (Golaknath v. State of Punjab, AIR 1966, SC 1643)
The Chief Justice Subba Rao, in the case of Golaknath v. State of Punjab while applying the
American Doctrine of Prospective over-ruling and said that it is a modern doctrine which is suitable
for a fast moving society. It does not, he said, do away with the doctrine of State-Decisis but confines
it to past transaction. It is true only in one sense that the court only declares the law, while in strict
theory it may be said that the doctrine involves in making of law. What are Court really does is to
declare the law but refuses to give retrospective effect to it. The Court, he said, finds law and does not
make law.
(i) The Doctrine of prospective overruling can be invoked only in matter relating to
constitution.
(ii) It can be applied only by the highest court of country.
(iii) The scope of retroactive operation of the law declared by the Supreme Court
superseding its earlier decisions it left to its discretions to be moulded in accordance
with the justice of the cause or matter before it. The prospective declaration of law is
a devise innovated by the apex court to avoid reopening of settled issues and to
prevent multiplicity of proceedings. It is also devise adopted to avoid uncertainty and
avoidable litigation.
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Unit – III
Q1.Throw some light on the right to freedom of religion. On what grounds some restriction can
be placed on such rights?
India does not accept any religion as state religion. India maintains absolute neutrality and
impartiality towards all religions. Hence India is a perfect example of a secular state-flanked by
theocracies in the East and West.
A secular state does not seek to regulate human’s relations with God or his spiritual aspirations.
Secularism is concerned with the regulation of men’s social relations.
The provisions relating to “Right of Freedom of Religion” of the Articles 25 & 28 of the
Constitution of India make India a secular state. To make assurance doubly sure, the 42nd
amendment of the constitution inserts the term “secular” in the preamble of the constitution.
Hence on the question of religion, India’s position is:
1. India has no state religion,

2. State does not discriminate between religions,
3. State cannot impose any tax to promote a religion or to maintain religious institution,
4. Religious instructions cannot be imparted in educational institution run by state funds and
5. In educational institutions recognized by the state and receiving aid from the government,
religious instructions cannot be compulsorily given to an unwilling students. In educational
institutions run by religious establishments, religious instructions can be given only to students
willing to receive it. Religious instructions can be given to the minors only with the express
consent of their guardians.
Article 25 of Indian Constitution grants freedom to every citizen of India to profess, practice and
propagate his own religion. The constitution, in the preamble professes to secure to all its citizen’s
liberty of belief, faith and worship.
Article 25 (1) allows every citizen to freely follow his own religion, subject to public order, morality
and health. Thus in the name of religion, committing sati or infanticide cannot be permitted.
The Hindu religious institutions of a public character must be thrown open to every Hindu. Caste
system or untouchability cannot be practiced in the case of entry into public Hindu temples.
Besides these rights to the individuals to profess, practice and propagate religious of their choice,
religious groups or denominations are given four rights. These are right to
1. Establish and maintain institutions for religions and charitable purposes;

2. To manage its own affairs in matters of religion;
3. To own and acquire movable and immovable property, and
4. To administer such property in accordance with law. (Article 26 of Constitution of India).
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The net position thus is, every individual citizen in India has full freedom of religion. No one is
subjected to any social, economic or political discrimination simply on grounds of religion.
Discrimination in public employment on grounds of religion is prohibited by Article 16. Thus, every
citizen of India is entitled for equality opportunity for public employment. The religious minority, is
given the right to establish and maintain educational, charitable and religious institutions with
minimum of interference by the state. Thus nobody is entitled to question the secular character of the
Indian polity.
The correct position is—while every individual is free to profess, practice or propagate a religion of
his choice; conversion secured through force, fraud or allurement is certainly unwelcome.
The constitution takes every care to protect the religious minority community. In order that culture
and religion of the minority community is not swamped by these of the majority community.
Article 29 of the Indian constitution assures that the state shall not impose on a minority community
any culture other than its own. Further, citizens of India cannot be denied admission in State aided or
State managed educational institutions on the basis of religion, caste, race, etc.
Art. 30 grant the minority community, the right to establish and administer their own educational
institution. The state will make no discrimination in matter of aids to such institutions. All these go to
show that Indian secularism is flawless and that rights of the minority is fully protected in India.
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Q2. Discuss the rights of minorities to establish and administer educational institutions in India.
Or,
What do you understand by minority rights?
Ans- Introduction
Article 29 (1) guarantees to any section of the citizens residing in any part of India
having a district language, script or culture of its own, the right to conserve the same, i.e.
language, script or culture. A minority community can preserve its language, script or culture by
and through educational institutions.
Therefore, the right to establish and maintain institutions of their choice is necessary
concomitant to the right to preserve its distinctive language, script or culture. This right is
guaranteed to them by Article 30(1) which says that all minorities whether based on religion or
language shall have the right to establish and administer educational institutions of their choice.
This right is further protected by Article 30(2) which prohibits the State in granting aid to
educational institutions from discriminating against any educational institutions on the ground
that it is under the management of a minority whether based on religion or language. This right
is, however, subject to clause (2) of Article 29, according to which no citizen shall be denied
admission into any educational institutions maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them. Article 29 applies only
to citizens while Article 30 applies to both citizens and non-citizens.
Right of Minorities to establish and manage Educational Institutions
Article 30(1) guarantees to all linguistic and religious minorities the ‘right to establish’
and the ‘right to administer’ educational institutions of their own choice. The right is conferred
by this clause on two types of minorities-religious and linguistic minorities. The right conferred
upon the above minorities is to establish and administer educational institutions of their choice.
The word “establish” indicates the right to bring into existence, while the right to administer an
institution means the right to effectively manage and conduct the affairs of the institution. The
administration connotes management of the affairs of the institution. The management must be
free of control so that the founders of their community can mould the institution as they think fit
in accordance with their ideas of how the interest of the community in general and the
institution in particular will be served.
In D.A.V. College, Bhatinda v. State of Punjab, the University declared that Punjabi would
be the sole medium of instruction in the affiliated colleges. The Court held that the right of the
minority to establish and administer educational institution of their choice includes the right to
have a choice of medium of instruction also and the University Circular was directly infringing
upon the rights of minorities to have instructions in Hindi as their own language and, therefore,
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was violative of Articles 22(1) and 30(1). The right under Article 30(1) is available to both the
pre-Constitution and post-Constitution institutions.
The Constitution (44th Amendment) Act, 1978
This Amendment has abolished the right to property as a fundamental right guaranteed
by Articles 19(1)(f) and 31 of the Constitution. Consequently, Articles 19(1)(f) and 31 were
omitted from Part III of the Constitution. However, it has taken care that the removal of
property from the list of fundamental rights would not affect the right of minorities to establish
and administer educational institutions of their choice. For this purpose, the Amendment has
inserted a new clause (1-A) in Article 30 of the Constitution. Clause (1-A) says that in making
any law providing for the compulsory acquisition of any property of an educational institution
established and administered by a minority, referred to in clause (1), the State shall ensure that
the amount fixed by or determined under such law for the acquisition of such property is such as
would not restrict or abrogate the right guaranteed under that clause.
Power of Government to regulate minority run educational institutions
The right conferred on the religious and linguistic minorities to administer educational
institutions of their choice is not an absolute right. This right is not free from regulation. Just as
regulatory measures are necessary for maintaining educational character and content of minority
institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound
administration. The right to administer is not the right to maladministration. The right to
administer implies a correlative duty to good administration.
In re Kerala Education Bill, the Supreme Court said that the fundamental right given to all
minorities under Article 30(1) to establish and administer educational institution of their choice
does not militate against the claim of the State to insist that in granting aid the State may not
prescribe reasonable regulations to ensure the excellence of the institutions. Accordingly, the
court in this case upheld certain conditions designed to give protection and security to the ill-
paid teachers who were rendering service to the Nation and to protect backward classes as
permissible restrictions which the State the State can impose on minorities as a condition
designed to give protection and security to the ill-paid teachers who were rendering service to
the Nation and to protect backward classes as permissible restrictions which the State can
impose on minorities as a condition for granting aid should not be imposed in such a manner so
as to take away the rights of minority guaranteed by Article 30(1).
Scope of Article 30 re-examined: Extent of Government Control
In a landmark decision in T.M.A. Pai Foudation v. State of Karnataka, an 11 Judge

Constitution Bench of the Supreme Court headed by Chief Justice B.N. Kirpal held that state
governments and universities cannot regulate the admission policy of unaided educational
institutions run by linguistic and religious minorities, but state governments and universities can
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specify academic qualifications for students and make rules and regulations for maintaining
academic standards. The same principle applies in the appointment of teachers and other staff.
An unaided minority educational institution would be free to hire as it pleased as long as some
essential qualifications were adhered to. Minority educational institutions would have to comply
with conditions laid down by universities or boards to get recognition or affiliation.
Unaided minority educational institution
The Court by majority held that state government and universities cannot the admission
policies of unaided educational institutions run by linguistic and religious minorities. However,
they can prescribe academic qualifications for teachers and other staff and make some rules,
regulations to maintain academic standards. They have the right to admit students of their
choice, but subject to an objective and rational procedure of selection and compliance of
conditions if any, requiring admission of a small percentage of students belonging to weaker
sections of the society by granting them free ship and scholarships. Admissions, the court said,
should be on the basis of merit and be conducted in a transparent manner.
Clarification of certain points in T.M.A. Pai Foundation decision
After the 11 Judge Constitution Bench decision in T.M.A. Pai case it was thought that
the controversies regarding minority educational institution was finally settled. But subsequent
events show a different story. It was observed that the principles laid down by the Court in
T.M.A. Pai decision were so broadly formulated that it gave enough scope to apply those
principles in different ways by various High Courts. The result was that the High Courts were
flooded with writ petitions seeking for settlement of several issues which remained unsolved.
In Islamic Academy of Education v. State of Karnataka, a 7 Judges Bench of the Supreme

Court heard these petitions and tried to solve some of issues. But majority decision in this case
added certain conditions by way of clarification which were not found in the T.M.A. Pai
judgment. This again raised controversies. The majority consisting of Khare, C.J. and Kapadia,
J., directed setting up of two committees in each State, one Committee “to give effect to the
judgment in the T.M.A. Pai case and to approve the fee structure charged by minority
institutions, and second Committee to see the tests to be conducted by the institutions. Thirdly,
fixation of State ‘quota’ for admissions in respect of unaided professional institution. Each
educational institution must place before the Committee well in advance of the academic year
its proposed fee structure for scrutiny by the Committee. The Committee will be at liberty to
approve the fee structure or propose some other fee which can be charged by the institute. The
fee fixed by the Committee shall be binding for a period of three years, and at the end it may
apply for revision. Regarding appointment of Committee for conducting tests by the institution,
the Court directed that it must be fair and in transparent manner.
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P.A. Inamdar v. State of Maharashtra
“Reservation in Private Educational Institution (majority or minority) is violative of

Article 30 and 19(1) (g).”
It was held that the Constitution Bench in T.M.A. Pai case has not accepted the
reservation policy. Neither in the judgment of T.M.A. Pai nor in Kerala Education Bill decision
there is anything which would allow the State to regulate or control admissions in the unaided
educational institutions. Thus, the private unaided professional institutions (minority and non
minority) cannot be forced to accept reservation policy of the State. This would amount to
nationalization of seats. Merely because the resources of the State in providing professional
education are limited, private educational institutions, which intend to provide better
professional education, cannot be forced by the State to make admissions on the basis of
reservation policy to l3ess meritorious candidate. Unaided institutions can have their own
admissions provided it is fair, transparent, and non-exploitative and based on merit. The scheme
evolved in Islamic Academy to the extent it allows States to fix quota for seat sharing between
management and the States on the basis of ‘local needs’ of each State in the unaided private
educational institution runs counter to T.M.A. Pai ruling and is, therefore, liable to be overruled.
Page 47 of 72 (2019-20)
Q3. What is meant by a right to constitutional remedies? Explain how this right is secured
under the Indian Constitution. What is the difference between Article 32 and Article 226?
Or,
Discuss the concept of Public Interest Litigation with the help of decided cases.
The Supreme Court has devised many techniques to meet the constitutional goals listed
in the preamble of the Constitution. Award of compensation in case of infringement of
fundamental rights, relaxation of the rule of locus standi, continuous mandamus and curative
petitions may be listed as some of the instances. The rule of locus standi has been relaxed and
petitions by public spirited individuals or organizations have been accepted for mitigating the
sufferings of the have not’s.
In Fertilizer Corporation case, Krishna lyer, j., has observed:-
“Public interest litigation is a part of process of participative justice and standing in civil
litigation of that pattern must have liberal reception at the judicial door-steps.”
In PIL which is also known as social Action Litigation (SAL), the Court looks at the
general public interest and any member of public having sufficient interest can approach the
Court for enforcing the rights of other persons and Redressal of public grievance. According to
Bhagwati, J., PIL or SAL is available in cases “Wherever there is public wrong or public injury
caused by an act or omission of the State or a public authority which is contrary to the
Constitution or the law, any member of the public acting bona fide and having sufficient interest
can maintain an action for redressal of such wrong or public injury.
Explaining the reason for relaxing the rule of locus standi, Bhagwati, J., has said that
today “the law with respect to locus standi has considerably advanced” and “In the case of
public interest litigation it is not necessary that a petitioner should himself have a personal
interest in the matter.” The purpose of PIL is “To bring justice within the reach of the poor
masses who constitute the low visibility area of the humanity.”
The development of Public Interest Litigation (PIL)
The preamble dream of the founding fathers of the Constitution that the poor, ignorant
and deprived citizens who constitute major segment of Indian society may not get justice. PIL
has been a boon to such population. Thus, the development of PIL has been extremely
significant development in the history of Indian Jurisprudence. Justice Dalveer Bhandari has
divided PIL in three phases as under:
i) In this phase the Court issued directions and orders to protect fundamental rights under Article
21 of the marginalized groups and sections of society who because of extreme poverty,
illiteracy and ignorance cannot approach the apex Court or the High Courts. Hussainara
Khatton v. State of Bihar, Fertilizer corporation, Kamgar Union v. Union of India, and
Peoples Union for Democratic Rights v. Union of India, fall in this phase.
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ii) In this phase the Court took action in cases concerning protection of ecology, environment,
forests, marine life, wild life, mountains, rivers, historical monuments etc. Rural Litigation and
Entitlement Kendra v. State of U.P., M.C. Mehta v. Union of India (Kanpur Tannery Case),
M.C. Mehta v. Kamal Nath, and In Re: Noise Pollution, are some cases falling in this category.
iii) This phase focuses on maintaining the probity, transparency and integrity in governance. The
era of Coalition Government at the Centre and Political parties having regional base joining the
Government has shaken the principle of collective responsibility. To maintain the delicate
balance of thin majority, corruption has entered the corridors of power. As a last resort, the apex
court has come to the rescue of the citizens. PIL has become an effective weapon to abate this
menace. Vineet Narain v. Union of India, Rajiv Ranjan Singh ‘Lalan’ v. Union of India, and
M.C. Mehta v. Union of India (Taj Heritage Corridor Project Case) cases constitute the third
phase of PIL in India.
Abuse of PIL
Relaxation in the rule of locus standi opened the flood gates of PIL in the High Courts
and the Supreme Court. PIL has been used for various purposes including for ‘publicity.’ Thus,
this new tool has been tried to be abused. In Ashok Kumar v. Sate of W.B., the Supreme Court
has deprecated the tendency of using PIL as ‘publicity interest litigation’, or ‘private interest
litigation’ or ‘politics interest litigation’ or ‘paisa income litigation. In T.N. Godavarman
Thirumulpad v. Union of India, the Supreme Court found that one Deepak Agarwal had moved
PIL in the Court to serve the business interest of a private company. The Court dismissed the
PIL application and imposed a fine of one lakh rupees on the petitioner for abusing the process
of law. Similarly, in State of Uttarnachl v. Balwant Sing Chaufal, a fine of Rs. 100000 (one
Lakh) was imposed on the petitioner, in view of the abuse of PIL, the apex Court has laid down
certain guidelines in respect of PIL.
Guidelines for PIL
In view of attempted abuse of PIL, the apex court has laid down certain guidelines in
relation to PIL petitions. Some of them are as under:-
1. Under PIL the Court does not entertain private law cases. But in appropriate cases, it may
accept a private interest case it furthers public interest and justice.
2. The High Courts and the Supreme Court can entertain PIL Petitions under Article 226 and
Article 32 respectively filed by any interested person in the welfare of any disadvantaged
persons particularly to protect their fundamental rights.
3. The Court may relax the rule of locus standi in cases of public importance and enforcement of
fundamental rights of a large number of public vis-a-vis the Constitutional duties and functions
of the State. Even a latter written to the court may be treated as a petition under Article 32 of the
Constitution. This has been termed as epistolary jurisdiction.
4. The Court on Prima facie satisfaction about the infringement of fundamental rights of a
vulnerable group may reject the plea of maintainability of the petition raised by the State.
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5. The rule of locus standi will apply if there is abuse of judicial process or the petitioner is total
stranger and no public purpose will be served.
6. PIL is not immune from procedural laws, but the Court may relax the application of the doctrine
of res judicata or Principles analogous thereto in view of the facts and circumstances of the
case.
7. PIL is to be used as an effective weapon in for delivering social justice to the citizens.
Q4.What are the fundamental duties of the citizens of India under Article 51-A? Whether a
citizen can be punished for the violation of any of the fundamental duties assigned to him by the
Constitution of India?
This new Part IV-A which consists of only one Article 51-A was added to the Constitution
by the 42nd Amendment, 1976. This Article for the first time specifies a Code of ten
fundamental duties for citizens. Article 51-A says that it shall be the duty of every citizen of
India-
a) To abide by Constitution and respect its ideal and institutions, the National Flag and National
Anthem.
b) To cherish and follow the noble ideals which inspired our national struggle for freedom;
c) To uphold and protect the sovereignty, unity and integrity of India;
d) To defend the country and render national service when called upon to do so;
e) To promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
f) To value and preserve the right heritage of our composite culture;
g) To protect and improve the natural environment including forests, lakes, rivers and wild life,
and to have compassion for living creature;
h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
i) To safeguard public property and to abjure violence;
j) To strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievements.
The Constitution (86th Amendment) Act, 2002 has added a new clause (k) to Article 51-
A which provides “who is parent or guardian to provide opportunities for education to his child
or as the case be, ward between the age of six and fourteen years”.
Needs for Fundamental Duties- Rights and duties are correlative. The fundamental
duties, are, therefore, intended to serve as a constant reminder to every citizen that while the
Page 50 of 72 (2019-20)
Constitution specifically conferred on them certain fundamental rights, it also requires citizens
to observe certain basic norms of democratic conduct and democratic behavior. It was claimed
by the ruling party the Congress, that what the framers failed to do was being done now. The
omission is being rectified by providing a Chapter on citizen’s duties. It was argued that in India
people lay emphasis only on rights and not on duties.
Source of fundamental duties- It is significant to note that none of the constitutions of

western countries specifically provide the duties and obligations of citizens. Among the
democratic constitutions of the worlds, we find mention of certain duties of the citizens in the
Japanese Constitution. In Britain, Canada and Australia the rights and duties of citizens in the
Japanese Constitution. In Britain, Canada and Australia the rights and duties of citizens are
governed largely by Common law and judicial decisions. The French Constitution makes only a
passing reference to duties of citizens. The American Constitution provides only for
fundamental rights and does not refer to duties of citizens. It does not mean that the people of
these countries behave in an irresponsible manner. In all these countries the citizens are imbued
with a high sense of patriotism as a result of education and training in the elementary duties and
obligations of citizenship.
Enforcement of duties- The duties incorporated in the Constitution by the 42nd

Amendment is statutory duties and shall be enforceable by law. Parliament, by law, will provide
penalties to be imposed for failure to fulfill those duties and obligations. The success of this
provision would, however, depend much upon the manner in which and the person against
whom these duties would be enforced.
In M.C. Mehta (2) v. Union of India, the Supreme Court has held that under Art. 51-A
(g) it is the duty of the Central Government to introduce compulsory teaching of lessons at least
for one hour in a week on protection and improvement of natural environment in all the
educational institutions of the country. It directed the Central Government to get textbooks
written on that subject and distribute them to the educational institutions free of cost. In order to
arouse amongst the people, the consciousness of cleanliness of environment, it suggested the
desirability of organizing-keep the city clean week, keep the town clean, keep the village clean
week in every city, town and village throughout India at least once in a year.
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Q5. Explain the underlying objects of the Directive Principles of State Policy? Elucidate the
difference between the Directive Principles of State Policy and Fundamental Rights?
Or
Q5. Discuss the relationship between Fundamental Rights and Directive Principles of State
Policy with the help of constitutional provisions and decided cases.
Article 36 to 51 in Part IV of the Constitution of India contains the Directive Principles of State
Policy. The aim of these Directive Principles is establishment of a “Welfare State” which is
envisaged in the preamble to the Constitution. If the U.N. Convention of Right to Development
is an inalienable Human Right, the Directive Principles which also aim at development of the
State, thereby stand elevated to the level of Human Rights. The Supreme Court in P.
Unnikrishnan’s case (AIR 1993 SC 2178) went to the extent of observing that the Directive
Principles constitute “Conscience of the Constitution”.
Briefly stated, by Article 38, the State is directed to strive to promote the welfare of the
people. Article 39 directs the policy of the state to take into account the right of adequate means
to livelihood, equal pay for equal work for both men and women, health and strength of the
workers, ownership and control of material resources to be so distributed to serve the common
goods.
Article 39A refers to equal justice and free legal aid which the State is obliged to promote.
Article 40 directs the State to take steps to recognize Village Panchayats and by Article 41 the
State is directed to strive within the limits of its economic capacity for securing the right to
work, right to education and public assistance in cases of employment, old age, sickness and
disablement. Provision for just and humane conditions of work and maternity relief and
provision for a living wage are the directives in Articles 42 and 43 respectively. Participation of
workers in management of industries is referred to in Article 43A.
Uniform Civil Code for citizens is a goal to be achieved by the State under Article 44.
Provision for free and compulsory education for all children up to the age of 14 years is taken
care of by Article 45 and 46 requires the State to promote educational and economic interests of
Scheduled Castes and Scheduled Tribes and other weaker sections of the society.
Importance with regard to standard of living and improvement of public health are the
directives in Article 47 and Article 48 requires the State to organize its agriculture and animal
husbandry. Environmental Protection and to safeguard the forest and wild life is what Article
48A provide for. Likewise, protection of monuments and places of objects of national
importance are taken care of by Article 49.
Separation of Judiciary from executive is the directive contained in Article 50 and finally
promotion of international peace and security is envisaged in Article 51.
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INTERPRETATION OF DIRECTIVE PRINCIPLES
In the formative years of the working of our Constitution as interpreted by the Supreme Court,
Directive Principles were looked upon as merely directions to the State and it was held that the
Directive Principles did not confer any enforceable rights and their alleged breach does not
invalidate a law nor does it entitle a citizen to complain of its violation by the State.
However, this negative aspect with which the Directive Principles were looked upon began to
receive a positive aspect through later decisions of the Supreme Court and we have now reached
a state wherein the Directive Principles are looked upon as equivalent to Human Rights and the
directives have been held to supplement fundamental rights in achieving a welfare state.
The power of the Parliament to amend fundamental rights in order to implement the Directive
Principles has also been recognized by the Courts as long as the amendment does not touch the
basic structure of the Constitution.
DIFFERENCES BETWEEN DIRECTIVE PRINCIPLES OF STATE POLICY AND

FUNDAMENTAL RIGHTS
Interpretation of Part III and Part IV of the Constitution by the Supreme Court in number of
cases has now crystallized the differences that exist between the Directive Principles of State
Policy and the Fundamental Rights.
The differences between the two are as follows:
(i) The DPSP are not enforceable in the Courts and they do not create any justifiable rights in
favor of individuals.
(ii) The Directives require to be implemented by Legislation, but, at the same time no existing
Law or Legal Right can be violated under the color of following a Directive.
(iii) The Courts can declare any law as void on the ground that it contravenes any of the
Fundamental Rights.
(iv) The Courts are not competent to compel the Government to carry out any Directive or to
make any law for that purpose.
(v) The Directives per se do not confer upon or take away any Legislative Power from the
appropriate Legislature.
(vi) Although it is the duty of the State to implement the Directives, yet the State can do so
only subject to the limitation imposed by the Constitution itself i.e., Article 13(2) prohibits the
State from making any law which takes away or abridges the Fundamental Rights conferred by
Part III and the Directive Principles therefore cannot override this categorical limitation.
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In Mohini Jain v. State of Karnataka (AIR 1992 SC 1858), the Supreme Court was called
upon to deal with the question of right to education under Article 41 and once again the Court
emphasized the importance of Directive Principles by holding that the right to education is
concomitant to the Fundamental Rights .
Hussainara Khatoon & Others v. Home Secretary State Of Bihar (AIR 1979 SC 1369)
In this case, though the question before the Court was about under trial prisoners being detained
in jail for longer period and this fact having been found to be in violation of Article 21, the
Supreme Court referring to Article 39A of the Constitution with regard to free legal aid decided
the case.
T.N Godavarman Thirumalpad vs. Union of India & others (2002), a three judges bench
of the Supreme Court read Article 51-A together as laying down the foundation for a
jurisprudence of environmental protection and held that, “today, the State and the citizens are
under a fundamental obligation to protect and improve.
The present position is that only Article 39(b) and Article 39(c) can be given precedence over
Article 14, 19 and not all the directive principles.
Having thus examined the various land mark judgments of the Supreme court with regard to
interpretation of Directive Principles of State Policy, it is now clear that in effect these
judgments have lifted Directive Principles to the level of Fundamental Rights and the broad
propositions laid down in the above cases will have far reaching effects in future in so far as the
interpretation of Directive Principles of State Policy is concerned. Thus it can be said that
though Directive Principles cannot override Fundamental Rights, but in so far as determining
the scope and ambit of Fundamental Rights, the Courts now cannot entirely ignore the Directive
Principles, but will have to apply the doctrine of harmonious construction so as to give effect to
both Fundamental Rights and Directive Principles.
Directive Principles given status of Fundamental Rights- A New Dimension
In a number of decisions the Supreme Court has given many directive principles of State
policy, the status of fundamental rights. In P.Unnikrishnan v. State of A.P. (1993), the
directive principle contained in Article 45 has been raised to the status of a fundamental right. It
has been held that children from the age of 6 to 14 years have fundamental right to free and
compulsory education. Similarly, ‘equal pay for equal work’ has been held to be a fundamental
right in Randhir Singh v. Union of India, and therefore, enforceable by the Courts. In M.H.
Haskot v. State of Maharashtra(1978), it has been held that “legal aid” and “speedy trial” are
fundamental rights under Article 21 available to all prisoners and can be enforced.
In Griha Kalyan Kendra Workers Union v. Union of India (1991), the Supreme Court has
enforced the provisions of Article 39(d) by giving the directive principles the status of
fundamental rights. In this case the workers sought for a writ of mandamus directing the Union
Page 54 of 72 (2019-20)
of India to pay equal pay scale in parity with other employees performing similar works. The
court held “equal pay for equal pay for equal work” is not expressly declared as a fundamental
right, but in view of the directive principles of State policy as contained in Article 39 (d) of the
Constitution, ‘equal pay for equal work’ has assumed the status of fundamental right.
In Air India Statutory Corporation v. United Labour Union (1997), the Supreme Court
has held that the Directive Principles now stand at par with fundamental rights.
Short Questions
1. What do you understand by Curative Petition?
The concept of Curative petition was evolved by the Supreme Court of India in the matter of
Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an aggrieved
person is entitled to any relief against the final judgment/order of the Supreme Court, after dismissal
of a review petition.
To entertain the curative petitions, the Supreme Court has laid down certain specific conditions:
1. The petitioner will have to establish that there was a genuine violation of principles of natural
justice and fear of the bias of the judge and judgement that adversely affected him;
2. The petition shall state specifically that the grounds mentioned had been taken in the review
petition and that it was dismissed by circulation;
3. The petition is to be sent to the three senior most judges and judges of the bench who passed
the judgement affecting the petition, if available;
4. If the majority of the judges on the above bench agree that the matter needs hearing, then it
would be sent to the same bench (as far as possible); and The court could impose “exemplary
costs” to the petitioner if his plea lacks merit.
2. What do you mean by the Writ of Habeas Corpus? Discuss its nature and object?
Habeas corpus is a prerogative writ, which was granted to a subject of His Majesty, who was
detained illegally in jail. It is an order of release. The words habeas corpus subi di cendum literally
mean ‘to have the body’.
The writ provides remedy for a person wrongfully detained or restrained. By this a command
is issued to a person or to jailor who detains another person in custody to the effect that the person
imprisoned or the detenu should be produced before the Court and submit the day and cause of his
imprisonment or detention. The detaining authority or person is required to justify the cause of
detention. If there is no valid reason for detention, the Court will immediately order the release of the
detained person. The personal liberty will have no meaning in a constitutional set up if the writ of
habeas corpus is not provided therein. The writ is available to all the aggrieved persons alike. It is the
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most effective means to check the arbitrary arrest by any executive authority. It is available only in
those cases where the restraint is put on the person of a man without any legal justification.
When a person has been subjected to confinement by an order of the Court, which passed the
order after going through the merits of the case the writ of habeas corpus cannot be invoked, however
erroneous the order may be. Moreover, the writ is not of punitive or of corrective nature. It is not
designed to punish the official guilty for illegal confinement of the detenu. Nor can it be used for
devising a means to secure damages.
An application for habeas corpus can be made by any person on behalf of the prisoner as well as by
the prisoner himself, subject to the rules and conditions framed by various High Courts. Thus the
writ can be issued for various purposes:
1) Testing the validity of detention under preventive detention laws;
2) Securing the custody of a person alleged to be lunatic;
3) Securing the custody of minor;
4) Detention for a breach of privileges by house;
5) Testing the validity of detention by the executive during emergency, etc.
When The Writ Does Not Lie?
The writ will not lie in the following circumstances:-
1) If it appears on the face of the record that the detention of the person concerned is in execution of a
sentence on indictment of a criminal charges. Even if in such cases it were open to investigate the
jurisdiction of the court, which convicted the petitioner, but the mere jurisdiction would not justify
interference by habeas corpus.
2) In habeas corpus proceedings the court is to have regard to the legality or otherwise of the
detention at the time of the return and not with reference to the date of institution of the proceedings.
It was, thus, held in A.K.Gopalan v. State, that if a fresh and valid order justifying the detention is
made by the time to the return to the writ, the court couldn’t release the detenu whatever might have
been the defect of the order in pursuance of which he was arrested or initially detained.
3) There is no right to habeas corpus where a person is put into physical restraint under a law unless
the law is unconstitutional or the order is ultra virus the statute.
4) Under Article 226 a petition for habeas corpus would lay not only where he is detained by an order
of the State Government but also when another private individual detains him.
Grounds of Habeas Corpus:
The following grounds may be stated for the grant of the writ:-
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1) The applicant must be in custody;
2) The application for the grant of the writ of habeas corpus ordinarily should be by the husband or
wife or father or son of the detenu or a next friend. Even a postcard written by a detenu from jail or
by some other person on his behalf inspired by social objectives could be taken as a writ-petition.
3) In Sunil Batra v. Delhi Administration, the court initiated the proceedings on a letter by a co-
convict, alleging inhuman torture to his fellow convict. Krishna Iyer, J., treated the letter as a
petition for habeas corpus. He dwelt upon American cases where the writ of habeas corpus has been
issued for the neglect of state penal facilities like over-crowding, in sanitary facilities, brutalities, and
constant fear of violence, lack of adequate medical facilities, censorship of mails, inhuman isolation,
and segregation, inadequate rehabilitative or educational opportunities.
4) A person has no right to present successive applications for habeas corpus to different Judges of
the same court. However the doctrine of res judicata does not apply in case of Habeas Corpus.
5) All the formalities to arrest and detention have not been complied with and the order of arrest has
been made mala fide or for collateral purpose.
6) The order must be defective in substance, e.g., wrong description of detenu, failure to mention
place of detention etc. Hence complete description of the detenu should be given in the order of
detention.
7) It must be established that the detaining authority was not satisfied that the detenu was committing
prejudicial acts, etc.
Where the detaining authority did not apply his mind in passing the order of detention, the
court will intervene and issue the order of release of the detenu. Vague and indefinite grounds of
detention, where the detaining authority furnishes vague and indefinite grounds, it entitles the
petitioner to release.
3. Explain the writ of Certiorari? When it can be issued?
Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a

cause or matter pending before them to the superior Court to be dealt with there and if the order of
inferior Court is found to be without jurisdiction or against the principles of natural justice, it is
quashed.
“Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is issued

in the form of an order by a superior Court to an inferior civil tribunal which deals with the civil
rights of persons and which is public authority to certify the records of any proceeding of the latter to
review the same for defects of jurisdiction, fundamental irregularities of procedure and for errors of
law apparent on the proceedings.”
The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court
is not entitled to act as a Court of appeal. That necessarily means that the findings of fact arrived at by
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the inferior Court or tribunal are binding. An error of law apparent on the face of the record could be
corrected by a writ of certiorari, but not an error of fact; however grave it may appear to be. Certiorari
is thus said to be corrective remedy. This is, of course, its distinctive feature. The very end of this writ
is to correct the error apparent on the face of proceedings and to correct the jurisdictional excesses. It
also corrects the procedural omissions made by inferior courts or tribunal. If any inferior court or
tribunal has passed an order in violation of rules of natural justice, or in want of jurisdiction, or there
is an error apparent on the face of proceeding, the proper remedy so through the writ of certiorari.
4. Write a short note on Preventive Detention Laws?
Or,
What are the rights of an arrested person?
Ans. There are three essential Rights of an arrested person guaranteed by Article 22-
1) He must know why he is arrested.

2) He must not be detained for an indefinite period and
3) He must have an opportunity for defence against his detention.
Under clause (1) of Article 22, “No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the rights to
consult, and to be defended by a legal practitioner of his choice.”
Article 22 (clause 4 to 7) provides which is to be followed if a person is arrested under the law
of Preventive Detention. The object of preventive detention is not to punish a person for having done
something but to intercept him before he does it and to prevent him from doing it. No offence is
proved nor is any charge formulated.
Grounds of detention must be communicated to the detenue without delay. In case for delay,
when no acceptable or satisfactory explanation is given by the officers, the detention is liable to be
quashed. (Hem Lal Bhandari vs. State of Sikkim and others, AIR 1987 SC 762)
In the instant case, the Supreme Court held that the police is to give immediately the
information of the fact of such arrest to the nearest Legal Aid Committee. If the detenue is willing,
Legal Aid Committee will give legal assistance. The police must also inform relative or friend or
arrested person immediately. (Sheela Barsey v. State of Maharasthra, AIR 1983, SC 353).
5. What do you understand by Uniform Civil Code?
A uniform civil code will mean a set of common personal laws for all citizens. Currently, for
example, there are different personal laws for Hindus and Muslims. Personal law covers property,
marriage and divorce, inheritance and succession. Uniform Civil code is enshrined as article 44, as
part of the Directive Principles of States policy, in the Indian Constitution. It makes the
implementation of the Uniform Civil Code as a duty of the state. The uniform civil code became a
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flashpoint in Indian politics in 1985 during the Shah Bano case. The Supreme Court had held that
Bano, a Muslim woman, should get alimony from her former spouse. In the context of that judgment,
the court had said uniform civil code should apply for personal law.
Unit – IV
Q.1. President of India is merely a “Constitutional Head’. Explain.
Prior to the 42nd Amendment Act of 1976, Article 53(1) says that the executive power of the
Union shall be vested in the President and shall be exercised by him either directly or through officers
subordinates to him in accordance with the Constitution.
COMPARISON WITH U.S. AND BRITISH MODEL
 India has a republican system of Government. The position of President is not

hereditary like British Government.
 The President in India is elected by an electoral college consisting of elected members
of Parliament and State Legislatures. He is not elected directly by adult suffrage by the people as in
the US system.
Under Article 52- “THERE SHALL BE A PRESIDENT OF INDIA.”
PRESIDENT
VICE PRESIDENT
CHIEF JUSTICE OF INDIA
Hierarchy
SENIOR MOST JUDGE of executive
OF THE system
SC
Originally, Article 74 Provided that there shall be a Council of Ministries with the Prime
Minister at the head, to Sid and advise the President in the exercise of his functions. Article 74 (2)
says that the question whether any, and if so, what advice was tendered by the Ministers to the
President shall not be inquired into in any court. Article 75 says that the Prime Minister shall be
appointed by the President and the other Ministers shall be appointed by the President on the advice
of the Prime Minister. The Minister shall hold office during the pleasure of the President [Art 75 (2)]
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In the Judges Transfer case, S.P. Gupta and others v. President of India and others,
(AIR 1982 SC 149). The Supreme Court has held that though the advice given by the Council of
Ministers to the President cannot be inquired into by the Courts but the materials on the basis of
which such advice is given are not sacred and can be scrutinized by the Courts.
In Ram Jawaya v. State of Punjab AIR 1955 SC 549
A. Sanjeeva Naidu v. State of Madras, AIR 1970 SC 1102
T.K.N. Rajgopal v. T.M. Karunanidhi, AIR 1970 SC 1351, “ The Supreme Court observed,
“Under Article 53 (1) of our Constitution the executive power of the Union is vested on the President
but under Article 74 there is to be a Council of Minister with the Prime Minister as the Head to aid
and advise the President in the exercise of his functions. The President has thus been made a formal
or constitutional head of the executive and the real executive powers are vested in the Minister or the
Cabined.”
In U.N. Rao v. India Gandhi, AIR 1971 SC 1002 the Supreme Court held that even after the
dissolution of the Lok Sabha the Council of Ministers does not cease to hold office. Article 74 (1) is
mandatory and, therefore, the President cannot exercise the executive be power without the aid and
advice of the Council of Ministers.
In Shamsher Singh v. State of Punjab, AIR 1947 SC 2192 The Supreme Court held that the
President and the Governors are only “Constitutional or formal heads.” They exercise their powers
and functions under the Constitution only with the aid and on the advice of the Council of Ministers,
“Save in spheres where the Governor is required to exercise his functions in his discretion.”
After the 42nd Amendment Act, 1976:- This amendment removes all doubts about the
position of the President under the Indian Constitution. It has amended Article 74 of the Constitution
which makes it clear that the President shall be bound by the advice of the Council of Ministers. It
says, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the
President who shall, in exercise of his functions act in accordance with such advice.” In view of the
Constitution 42nd Amendment the President could not play even the role of an advisor or a guide.
44th Amendment Act, 1978:- This amendment has inserted the following Proviso in clause
(1) of Article 74: “Provided that the President may require the Council of the Ministers to reconsider
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such advice, either generally or otherwise, and the President shall act in accordance with the advice
tendered after such reconsideration.”
This amendment is intended to prevent the recurrence of the situation which arose in 1975
when the President had to sign the Emergency Proclamation only on the advice of the then Prime
Minister, Indira Gandhi, without consulting her Cabinet Colleagues.
Q.2. Discuss the Powers of the President in detail?
POWERS OF THE PRESIDENT
1. The Executive Powers :
Article 53 of the constitution lays down that the executive power of the union shall be vested
in the President. Thus, making him the head of the executive. All executive actions of the union must
be expressed to be taken in the name of the President and as such he shall have a right to be informed
of the affairs of the union.
2. Legislative Powers:
The President of India is an integral part of the Union Parliament. He addresses both the
Houses on the inaugural session after each general election and presents the agenda of the
government. He can send messages to either House of Parliament on any important matter of
national, constitutional or public interest. The constitution requires the previous sanction of the
President for introducing certain legislations for example a bill which seeks to create a new state or
change the boundary of an existing state or change the name of a state or dealing with certain matters
relating to Fundamental Rights.
Money bills also require the previous sanction of the President before its introduction
in the Lower House. Besides all bills after they are passed in the Parliament need his consent to
become Acts.
Ordinance making power of the President under Article 123
The President can also promulgate ordinances during the recess of the Parliament. Ordinance
is an emergent legislation. If legislation is warranted at a time when the legislature is not in session,
the President on the request of the executive can issue an ordinance having the force and effect of an
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Act. However every such ordinance must be laid before both the Houses of Parliament and shall
cease to operate, on the expiry of six weeks from the date of its reassembly, unless approved by the
Parliament. The ordinance also becomes in operative if before the expiry of six weeks a resolution is
passed by Parliament against it. The ordinance may be withdrawn by the President at any time.
Right to nominate
He can nominate two members from Anglo Indian Community to the Lok Sabha, if he is
satisfied that the Community is not adequately represented in the House. Besides, he can nominate
twelve members to the Rajya Sabha from among persons having special knowledge and practical
experience of science, art, literature and social service.
3. MILITARY POWERS
The constitution vests the Supreme Command of the Defense Force in the President of India.
As such he makes all important appointments in the Defense Force including the Chief of the three
wings the Armed Force, the Air Force and the Naval Force. He can declare war and conclude peace.
Under the Constitution he is required to do so under the control and authority of the Parliament.
4. DIPLOMATIC POWERS
The President enjoys wide diplomatic powers or powers over foreign or external affairs. He
appoints diplomatic representatives like Ambassadors or the High Commissioners to those countries.
He also takes up the task of negotiating treaties and agreements with other countries subject to
ratification by Parliament. As head of the state he represents India in International affairs.
5. JUDICIAL POWERS
Pardoning Power: The President of India can grant pardons, reprieves or respites or
remission of punishment. He can suspend, remit or commute the sentence of any person
convicted of any offence in cases where the punishment is by a court martial or death
sentence. In Shatrughan Chauhan & Ors. v. Union of India & Ors. (2014), it was held by
the Supreme Court that, “the President or the Governor could reconsider the evidence in a
case and adopt a view, contrary to the court's decision.”
Appointment of Judges: The judges of the Supreme Court and the High Courts are appointed
by him. He is also empowered to transfer the judges of the High Courts or can remove any
judge of Supreme Court or High Courts or an address by the Parliament.
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Advisory opinion of the SC: The President can seek the opinion of the Supreme Court on
any matter of legal or Constitutional importance involving the interest of the State and the
people. It is for the President either to accept or reject such advice if tendered.
6. FINANCIAL POWERS
All money bills will need his consent to be initiated in the Lower House of the Parliament. He
causes the budget to be laid on the floors of Lok Sabha every financial year. He is empowered to
order for the presentation of the report of the Auditor General of India relating to the accounts of
the Government of India. The Contingency Fund of India is at his disposal. He can make advances
out of it to meet the unforeseen expenditure.
7. EMERGENCY POWERS
In the Constitution of India three kinds of emergencies have been envisaged such as
I. National Emergency: The President of India under Article 352 can declare emergency
at any time when he is satisfied that security of India or part thereof has been
threatened by war, external aggression or armed rebellion.
II. State Emergency (Article 356): President's Rule arises when the constitutional
machinery in any state becomes in operative.
1. If the President of India on receipt of report from the Governor of a state, or

2. otherwise is satisfied that a situation has arisen
3. In which the government of a state cannot be carried or in accordance with the
provisions of the constitution he may declare state emergency. Such a proclamation may be made by
the President where any state has failed to implement any central directive.
III. Financial Emergency: If the President of India feels satisfied that the financial
stability of India or any of its part is seriously affected he may proclaim financial
emergency under Art 360.
8. DISCRETIONARY POWERS
The President of India almost always acts on the aid and advice of the Council of Ministers
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except under the following circumstances where he acts on his discretion:

 In appointing the Prime Minister from among the contenders when no single party attains
majority after elections to the Lok Sabha.
 A Council of Ministers is voted out and after resigning advises the President to dissolve, the
Lok Sabha and hold fresh elections (or resigns and advises so without being voted out).
 The President is expected to exercise his discretion in such circumstances as much of the Lok
Sabha's life may still be intact and it is worthwhile to explore the possibility of forming an
alternative Government.
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 While exercising a pocket veto.

 Disqualifying members of the legislature when the Council's advice is not taken.
 Can return the advice of the Council of Ministers once for its reconsideration.
 Can return the Bill passed by the Parliament once for its reconsideration.
Q.3. Discuss the constitutional position and powers of the Governor. What are the
discretionary powers of the Governor, when the constitutional machinery fails in
a State?
The Governor is the chief executive authority in a state. He is appointed by the President on
the advice of the Prime Minister. The Governor is appointed for a period of five years, but holds the
office at the pleasure of the President. He may be removed by the President before the expiry of his
term or he may even resign.
POWERS AND FUNCTIONS OF THE GOVERNOR

1. Executive Powers:
a) He is the constitutional head of the State;
b) He appoints the leader of the majority party as the Chief Minister;
c) He appoints the members of the council of minister on the advice of the Chief Minister;
d) He appoints the Advocate General, Chairman and members of the respective State Public
Commission;
e) He nominates two Anglo-Indian members in the Vidhan Sabha;
f) He can seek any information from the Chief Minister.
2. Legislative Powers:
a) He is a part of the State legislative Assembly and can summon, adjourn or prorogue the
State legislative Assembly.
b) He can call for a joint sitting of both the houses.
c) No bill can become a law until the Governor signs it.
d) He can withhold a bill and send it to the President for consideration.
e) He can issue ordinances during the recess of the legislature.

f) He can dissolve the State Assembly before the expiry of its term on the advice of the Chief
Minister or as directed by the President.
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g) He causes the annual Budget to be presented in the Vidhan Sabha.
No money bill can be introduced in the Assembly without his prior approval.
3. Judicial Powers:
a) The Governor appoints the District Judges.
b) He is consulted in the appointment of the Judges of the High Court by the President;
c) He can, pardon, remit and commute the sentence of a person convicted by a State Court.
In Shatrughan Chauhan & Ors. v. Union of India & Ors. (2014), it was held by the
Supreme Court that, “the President or the Governor could reconsider the evidence in a case and adopt
a view, contrary to the Court's decision.”
4. Financial Powers:
a) He causes the annual budget to be laid before the Vidhan Sabha;
b) No money bill can be introduced without his prior approval.
5. Discretionary Powers:
The Governor can use these powers:
a) If no party gets an absolute majority, the Governor can use his discretion in the selection of
the Chief Minister;
b) During an emergency he can override the advice of the council of ministers. At such times,
he acts as an agent of the President and becomes the real ruler of the state;
c) He uses his direction in submitting a report to the President regarding the affairs of the
state; and
d) He can withhold his assent to a bill and send it to the President for his approval.
Discretionary Power of the Governor when the Constitutional machinery of the State fails (U/a
356) :-
Besides protecting the States from external aggression and internal disturbance (Article 355);
the Union Government is also bound by the Constitution to ensure that the Government of every State
is carried on in accordance with the provisions of the Constitution. Governor is the representative of
the Union Government in the State and he will keep the Centre informed. In case of external
aggression or internal disturbance, the State Government need not necessarily be dismissed. But in
case of failure of Constitutional machinery, the State Government is dismissed. This can be done
either on the report of the Governor or on the satisfaction of the President, (i.e. the Union Council of
Ministers). Generally, the President’s Rule is imposed in a State on the basis of the report of the
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Governor of the State. But, there are cases when President has acted under Article 356 on his own
satisfaction. Thus, the Janata Government in 1977 and the Congress Government in 1980
dissolved State Legislative Assemblies after they came into power at the Centre after general
elections without seeking report from the Governors of these States. This abuse of power under
Article 356 has been restricted by the judiciary to some extent.
Q.4. When the Governor of a State can issue Ordinance? How long does an
Ordinance remain in force? Can an Ordinance which has lapsed, may be
reviewed?
ORDINANCE MAKING POWER OF THE GOVERNOR

The Ordinance making power of the Governor under Article 213 is similar to that of the
President under Article 123.
 The Governor can issue ordinance only on two conditions-
1. The Governor can only issue Ordinance when the Legislative Assembly of a State is
not in Session or where there are two Houses in a State both Houses are not in Session.
2. The Governor must be satisfied that circumstance exist which render it necessary for
him to take immediate action.
The court cannot question the validity or the ordinance on the ground that there was no
necessity or sufficient ground for issuing the ordinance by the governor. The existence of such
necessity is not a justiciable discretionary. The exercise of ordinance-making power is not
discretionary. The governor exercises this power on the advice of the cabinet.
 Duration for which an Ordinance can remain in force:

An Ordinance promulgated under Article 213 shall have the same force and effect as an Act of
the Legislature of the State. The Ordinance expires after six weeks of the reassembly of the
Legislature unless it is approved by the Legislature. The Ordinance may be withdrawn at any time by
the Governor.
 Revival of an Ordinance, if lapsed:
The Ordinance takes effect as soon as it is promulgated by the President (or the Governor, as
the case may be) and that position cannot be reversed unless the Legislature passes an Act to the same
effect, with retrospective effect, subject to constitutional limitations. Thus if certain posts are
abolished by an ordinance which ceases to operate, such posts cannot be revived unless the
Legislature passes an Act to that effect or creates new posts of like nature.
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Q.5. “Under the Constitution of India the President is bound by the advice of the
Council of Ministers.” Is it an absolute truth? Can there be a situation in which
the President can disregard the advice of the Council of Ministers? Discuss.
Article 74 of the Constitution of the Republic of India provides for a Council of Ministers
which shall aid the President in the exercise of his functions. As per Article 74;
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the
President who shall, in the exercise of his functions, act in accordance with such advises. (Added
by the 42nd Amendment Act, 1976).
Provided that the President may require the Council of Ministers to reconsider such advice,
either generally or otherwise, and the President shall act in accordance with the advices tendered after
such reconsideration. (Added by the 44th Amendment Act, 1978)
(2) The question if any, and if so what, advice was tendered by Ministers to the President shall not be
inquired into in any court.
Before the 42nd amendment, Article 74(1) stated that, "there shall be a Council of Ministers
with the Prime Minister at the head to aid and advice the President in the exercise of his functions".
However, there was a slight ambiguity whether the advice of the Council of Ministers is binding on
the President. Forty-second Amendment of the Constitution of India (1976) made it explicit that the
President shall, "act in accordance with such advice". The amendment went into effect from 3
January 1977.
The 44th Amendment (1978) however added that the President can send the advice back for
reconsideration once. But if the Council of Ministers sends the same advice again to the President
then the President must accept it. The amendment went into effect from 20 June 1979.
In S. R. Bommai v. Union of India (1994), “the Supreme Court made some very important
pronouncements regarding scope and effect of Clause (2) of Article 74.”The Supreme Court held that
although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it
does not bar scrutiny of the material on the basis of which the advice is given.
It also said that the material on the basis of which advice was tendered does not become part
of the advice and courts are justified in probing as to whether there was any material on the basis of
which the advice was given, and whether it was relevant for such advice and the President could have
acted on it.
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The Supreme Court also said that, when the Courts undertake an inquiry into the existence of
such material, the prohibition contained in Article 74(2) does not negate their right to know about the
factual existence of any such material.
The Supreme Court also made it clear that Article 74 (2) gives freedom to the President by
making his order unquestionable on the ground that it was either contrary to the advice tendered by
the ministers or was issued without obtaining any advice from the ministers. The object of Article 74
(2) was only to make the question whether the President had followed the advice of the Ministers or
acted contrary thereto, non-justiciable.
Article 74 (2) has overriding priority over 74 (1) in case of conflict. If the union cabinet is
unhappy with the unconstitutional functioning of the President, impeachment by the Parliament is the
only recourse as the legal action by the courts is not possible per Article 74 (2).
Q.6. When will a joint session of Parliament be called? By whom it could be

called? Explain.
Joint session is an extraordinary tool to resolve deadlock between the two Houses of the
Parliament over a passage of a bill which is deemed to have happened under any of the following
three circumstances after a bill has been passed by one House and is sent to other House;
1. if the bill is rejected by the other House;

2. if the Houses have finally disagreed as to the amendments to be made in the bill;
3. if more than 6 months have elapsed from the date of receipt of the bill by the other House
without the bill being passed by it.
In any of the three above situations, the President can summon a joint session of the Parliament.
And, provision of calling joint session is applicable to only ordinary and financial bills. The
House on being summoned by the President for joint sitting shall meet on the date and time as
notified. If at such joint sitting of the two Houses, the bill is passed by the majority of the total
number of members of both the Houses present and voting, it shall be deemed to have been
passed by both the Houses. At a joint sitting of the two Houses, the speaker of Lok Sabha, or in
his absence such person as may be determined by the rules made by the President in consultation
with Chairman of Rajya Sabha and speaker of Lok Sabha. Joint Session of Parliament has been
called three times till date.
Following bills have been passed at the Joint Sitting:
1) The Dowry Prohibition Act, 1961; 2) Banking Service Commission (1978)
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3) The Prevention of Terrorism Bill (2002)

Recently the controversial Land Bill was an ordinary Bill and the NDA Government has the
numbers in the Lok Sabha to pass it. But, in the Rajya Sabha,it was not passed. The Bill remained
under consideration of a joint parliamentary committee and the Government, for the time being,
has re-promulgated the land acquisition ordinance.
The Government considered calling a joint session but later on it was passed in both the houses
and the Act ultimately got the consent of the President. So it can be said that it is an exceptional
device to be used, and has been rarely used in the past. It gives a wrong signal to public and
political watchers that Government does not have the acumen to politically maneuver the
situation and gain the support of the opposition political parties. For any Government, joint
session is the last resort to win over the opposition in the Parliament.
Short Notes
1. PARLIAMENTARY PRIVILEGES
To enable Parliament to discharge functions properly the Constitution confers on each

member of the Houses certain rights and immunities and also certain rights and immunities and
powers on each house collectively. Parliamentary privilege is an essential incident to the high and
multifarious functions which the legislature is called upon to perform.
Sir Thomas Erskine May has defined the expression Parliamentary privileges as follows:
“The sum of the peculiar rights enjoyed by each house collectively is a constituent part of the
High Court of Parliament, and by members of each house of parliament individually, without which
they cannot discharge their functions, and which exceed those possessed by other bodies or
individuals.”
1. Freedom of Speech
Article 105 gives absolute immunity from Courts for anything said within the four walls of the
House during the course of proceedings.
Restrictions:
a) Article 105(1) expressly made restriction on the basis of Article 121, which prohibits
any discussion in Parliament with respect to the conduct of a Judge of the Supreme Court or High
Court in discharge of his duties.
b) Freedom of speech is also subjected to the rules of procedure of a House made under
Article 203.
In P.V.Narsimha Rao v. State the honorable SC has held that the privilege of immunity from
courts proceedings in Article 105 (2) extends even to bribes taken by the Members of Parliament for
the purpose of voting in a particular manner in Parliament. The majority (3 judges) did not agree with
the minority (2 judges) that the words in respect of in Article 105 (2) mean, arising out of and
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therefore would not cover conduct antecedent to speech or voting in Parliament. The court was
however unanimous that the members of Parliament who gave bribes, or who took bribes but did not
participate in the voting could not claim immunity from court proceeding's under Article 105 (2). The
decision has invoked so much controversy and dissatisfaction that a review petition is pending in the
court.
2. Right of publication and proceedings
Article 105(2) declares that no person shall be liable in respect of the publication, by order
under the authority of a House of Parliament, of any report, paper, votes or proceedings. The
Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that no person shall be liable
to any proceedings, civil or criminal, in a court in respect of the publication of a substantially true
report of the proceedings in either House of the Parliament, unless it is proved that the publication is
made with malice.
3. Other privileges
Clause (3) of Article 105, as amended declares that the privileges of each House of
Parliament, its members and committees shall be such as determined by Parliament from time to time
and until Parliament does so, which it has not yet done, shall be such as on 20th June 1979 i.e., on the
date of commencement of Section 15 of the 44th Amendment.
In India freedom from arrest has been limited to civil causes and has not been applied to arrest
on criminal charges or to detention under the Preventive Detention Act. Also there is no privilege if
arrest is made under s.151 Criminal Procedure Code. It has been held in K. Anandan Kumar v. Chief
Secretary, Government of Madras, that matters of Parliament do not enjoy any special status as
compared to an ordinary citizen in respect of valid orders of detention.
In India, the rules of procedure in the House of People give the chair the power, whenever it thinks
fit, of ordering the withdrawal of strangers from any part of the House and when the House sits in a
secret session no stranger is permitted to be present in the chamber, lobby or galleries. The only
exceptions are the members of the Council of States and the persons authorized by the Speaker.
Parliamentary Privileges and Fundamental Rights
In Pandit M.S.M. Sharma's case it was also contended by the petitioner that the privileges of
the House under A.194 (3) are subject to the provision of Part III of the Constitution. In supposrt of
his contention the petitioner relied n the Supreme Court's decision in Gunupati Keshavram Reddi v.
Nafisul Hasan. In this latter case Homi Mistry was arrested at his B'bay residence under a warrant
issued by the Speaker of U.P. Assembly for contempt of the House and was flown to Lucknow &
kept in a hotel in Speaker's custody. On his applying for a writ of habeas corpus, the Supreme Court
directed his release as he had not been produced before a magistrate within 24 hours of his arrest as
provided in Article 22 (2). This decision therefore indicated that Article 194 (or Article 105) was
subject to the Articles of Part III of the Constitution.
In Sharma's case the Court held that in case of conflict between fundamental right under
Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. As regards Article 21,
on facts the Court did not find any violation of it. In Powers, Privileges and Immunities of the State
Legislature, Re , the proposition laid down in Sharma's case was explained not to mean that in all
cases the privileges shall override the fundamental rights.
Page 70 of 72 (2019-20)
The rules of each House provide for a committee of privileges. The matter of breach of
privilege or contempt is referred to the committee of privileges. The committee has power to summon
members or strangers before it. Refusal to appear or to answer or to knowingly to give false answer is
itself a contempt. The committee's recommendations are reported to the House which discusses them
and gives its own decision.
Conclusion
There is a clear demarcation as to what all rights and privileges are absolute and what are not. For
example, in India Legislative Assemblies and Parliament never discharge any judicial function and
their historical and constitutional background does not support their claim to be regarded as courts of
record in any sense. No immunity from scrutiny by courts of general warrants issued by House in
India can therefore be claimed.
2. ORDINANCE AND ACT
ORDINANCE
Ordinances are temporary laws that are promulgated by the President of India on the
recommendation of the Union Cabinet. They can only be issued when Parliament is not in session.
They enable the Indian government to take immediate legislative action.
ACT
Legislative proposals are brought before either house of the Parliament of India in the form
of a bill. A bill is the draft of a legislative proposal, which, when passed by both houses of
Parliament and assented to by the President, becomes an Act of Parliament.
3. DEFECTION LAW
The 52nd amendment Act 1985 added the Tenth Schedule to the Constitution which laid
down the process by which legislators may be disqualified on grounds of defection. A Member of
Parliament or state legislature was deemed to have defected if he either voluntarily resigned from his
party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any
issue in contravention to the party’s whip. Independent members would be disqualified if they joined
a political party. Nominated members who were not members of a party could choose to join a party
within six months; after that period, they were treated as a party member or independent member.
4. OFFICE OF PROFIT
An office capable of yielding some profit to the holder of the office:-

1. Holds an office
Page 71 of 72 (2019-20)
2. The office is under the Central or the State Government
3. The office is one of profit
The expression office of profit has not been defined in the Constitution. It is for the
courts to explain its meaning.
 Jaya Bachchan v. UOI (AIR 2006 SC 2119)
It was held that the decisive factor in determining whether one is holding an office of profit or
not, is whether pecuniary gain is in fact received or receivable in connection with that office. Actual
receipt of the pecuniary gain is not necessary. It includes honorarium paid in addition to daily
allowances (HR, Chauffer driven car etc.)
To deal with the problem of Office of profit, the Indian Parliament passed an
Act called The (Prevention of Disqualification) Act, 1959. By virtue of Section 3 of the said Act,
certain offices did not disqualify their holders from being members of either houses of Parliament.
Certain offices were declared to be non-profit. A list of non-profit offices has been mentioned
in Part II of the Schedule to the Parliament (Prevention of Disqualification) Act, 1959. The
membership of bodies listed in Part I of the same Schedule entail no disqualification on the ground
of holding an office. The expression "office of profit" has not been defined in the Constitution or in
the Representation of the People Act, 1951. It is for the courts to explain the significance and
meaning of this concept. Over the years, courts have decided this issue in the context of specific
factual situations. Thus the final interpretation and decision whether a person is disqualified or not
rests with the courts and not with Parliament.
 Purno Agitok Sangma Vs. Pranab Mukherjee (20012)
The test as pointed out by the Supreme Court in this election petition challenging the
election of President was whether the office gives the incumbent some pecuniary gain other than as
compensation to defray his out-of-pocket expenses which may have the possibility to bring that
person under the influence of the executive.
Recently, 21 MLA’s of the Aaam Aadmi Party (AAP) in Delhi are under threat of losing
their membership of State Assembly. These legislators were appointed Parliamentary Secretaries
under various Ministers. They have been asked by the Election Commission to present their case as
the President can cancel their membership on the advice of the commission.
Page 72 of 72 (2019-20)

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Constitutional Law (English) I 2019

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(B.A.LL.B. I, B.B.A.LL.B. I, LL.B.

I) Semester – Constitutional Law I

1. The lengthiest Constitution in the world

Establishment of a Sovereign, Socialist, Secular, Democratic Republic

The Preamble of the Constitution declares India to be a Sovereign, Socialist, Secular,

2. Parliamentary form of Government-

3. Unique blend of rigidity and flexibility-

The incorporation of a formal declaration of Fundamental Rights in Part III of the

5. Directive Principles of State Policy-

6. A Federation with strong centralizing tendency-

10. Single Citizenship-

11. Fundamental Duties-

Ans- According to the traditional classification followed by the political scientists,

Essential characteristics of a federal Constitution-

A federal Constitution usually has the following essential characteristics:-

(1) Distribution of Powers- The distribution of powers is an essential feature of federalism.

When the proclamation of emergency is in operation the Parliament is empowered to

The Significance of Preamble to a Constitution of India:

CAN PREAMBLE BE AMENDED UNDER ARTICLE 368?

Q4. What do you understand by Parliamentary form of Government? Differentiate between

Parliamentary form of Government:

Presidential form of Government:

2. What do you mean by the principle of social justice?

3. How can citizenship be terminated?

Citizenship (Article 5 to 11)

Citizenship can be acquired by:

4. What do you mean by the term Secularism?

5. What do you mean by the term sovereign?

6. Write a note of Independence of Judiciary in India.

7. What do you mean by Judicial Activism?

(b) Whether Judiciary is State as per Article 12?

(c) Whether University is a State under Article 12?

Ans- Definition of State (Article 12)

(a) Authorities- According to Webster’s Dictionary: “Authority” means a person or body

Is Judiciary included in the word “State”?

power conferred by law. It is suggested that discrimination may be brought about…even(by)

A.G. Envrio Infraprojetcs Private Limited, Thane v. State of Maharashtra &

“Article 14 permits classification but prohibits class legislation.” Elucidate.

Professor Dicey gave three meanings of the Rule of Law thus-

1. Absence of Arbitrary Power or Supremacy of the law.

B. “Equal protection of the law” is a more positive concept implying equality of

 Citizens as well as Non- Citizens.

 Natural as well as legal persons.

It is applicable to both substantive as well as procedural laws.

Exceptions to the rule of Equality:

Article 14 permits classification but prohibits class legislation-

Class Legislation is that which makes improper discrimination by conferring particular

Test of Reasonable Classification-

NEW CONCEPT OF EQUALITY

Arbitrary action-State liable to pay compensation to a citizen

Arbitrary or unreasonable actions according to the Supreme Court are discriminatory

In a landmark judgment in Lucknow Development Authority v. M.K. Gupta, the

Social Equality and Equal Access to Public Areas

Equality in Matters of Public Employment

State of Madras v. Champakam Dorairajan (1951)

Indira Sawhney v. Union of India (1993)

Two things must be determined under Article 15(4):

 Who are socially and educationally backward classes?

 What is the limit of reservation?

M.P.Balaji v. State of Mysore (1963)