Explain the meaning, scope, and extent of the term “citizen” within the purview of

the Constitution of India (480)

The population of a state is divided into two categories: citizens and non-citizens. A citizen of a state enjoys
all civil and political rights. Aliens, unlike citizens, don’t enjoy all the fundamental rights secured to the citizens.

Under the Indian constitution, certain fundamental rights are available only to the citizens, namely: Right
against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15); right to equality of
opportunity in the matter of public employment (Article 16); freedom of speech and expression, assembly,
association, movement, residence and profession (Article 19); cultural and educational rights (Article 29 and 30);
and right to vote and become members of the union and state legislatures.
Citizenship can be of the following three types:
1. By domicile (article 5)
2. By migration (article 6)
3. By registration (article 8)
The law relating to citizenship is now contained in the Citizenship Act, 1955 which prescribes the following ways
for acquisition of Indian citizenship:
1. Citizenship by birth: Anyone born in India on or after January 1, 1950, would be deemed a citizen by birth. This
limit was further amended to include those born between January 1, 1950 and July 1, 1987. By the Citizenship
Amendment Act, 2003, persons born after December 3, 2004, would be deemed to be citizens of India if either
of the parents is Indian or one of the parents is a citizen of India and the other was not an illegal migrant at the
time of the person’s birth.
2. Citizenship by descent: A person born outside India shall be deemed to be a citizen of India if either of the
person’s parents was a citizen of India at the time of his/her birth provided that the birth is registered within one
year of its occurrence or commencement of the Act, whichever is later, at the Indian consulate.
3. Citizenship by registration: A person may be registered as a citizen of India if the person is married to a citizen
of India or has been a resident of India for five years immediately before making an application for registration.
4. Citizenship by naturalization: A person is granted a certificate of naturalization if the person is not an illegal
migrant and has resided in India for 12 months before making an application to seek the certificate. Of the 14
years preceding this 12-months duration, the person must have stayed in India for 11 years.
5. Citizenship by incorporation of territory: If any new territory becomes a part of India, the government of India
shall specify the persons of the territory to be citizens of India. If the central government is of the opinion that an
applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature,
world peace, or human progress generally, it may waive all or any conditions specified to attain Indian
citizenship.

“Fundamental Duties do not destroy Fundamental Rights but balance them”.

Examine the above statement by citing judicial pronouncements.
Rights without duties have no meaning. Therefore, the Constitution lays down some Fundamental duties in Part
IV-A of the Constitution under Article 51- A. The balancing of Fundamental rights is a constitutional necessity as
every right gives rise to a corresponding duty. Besides, in democratic setup participation of the citizens in the
process of governance and nation-building is a fundamental obligation. That is why Fundamental Duties has been
enumerated by the 42nd Amendment of the Constitution in 1976.

The fundamental duties are the mechanism that aims at striking a balance between individual freedom and
social interests. These duties do not cast any public duties but are applicable only to individual citizens. However,
in the Ashoka Kumar Thakur v. UOI case, the Supreme Court held that the Fundamental Duties are as important
as Fundamental Rights and that though Article 51A does not expressly cast any fundamental duty on the State,
the duty of every citizen of India is the collective duty of the state- its de facto enforceability in the sense
that Article 51A is a yardstick against which the action of the State may be assessed. Further, in the case of Union
of India v. Naveen Jindal, the Supreme Court observed that fundamental duties are implicit in the concept of
fundamental duties, the former providing certain restrictions on the exercise of the latter.

In the Unnikrishnan v. State of AP (1993) case, the court stated that, in order to treat a right as a fundamental
right, it is not necessary that it should be expressly stated as one in Part III of the Constitution. The provisions
of Part III and Part IV are supplementary and complementary to each other. That is why very often the court
reads the two together. There is no conflict between the two. It is wrong to assume that the fulfillment of
obligations relating to social and economic human rights would impair fundamental rights

Thus, one does not have existed as well as the meaning without the other, so, there is a strong necessity to
maintain a strong balance between fundamental rights and fundamental duties. This was we can say that
fundamental duties do not destroy fundamental rights but balance them in an effective manner.

Write a short note on Preamble to the Constitution of India (480)

The Preamble to an Act sets out the main objectives with the legislation it is intended to achieve. It is a sort of
introduction to the statute and many times very helpful to understand the policy and legislative intent it
expresses. The framers of our Indian Constitution gave to the Preamble ‘the place of pride’ as it embodies the
ideals which the founding fathers of the Indian Constitution desired to achieve by the citizen, in their best
interest. According to the Supreme Court, the Preamble to the constitution is a key to open the mind of the
makers and shows the general purpose for which they made the several provisions in the constitution

The Preamble to the Constitution of India spells out its authority, i.e. ‘People of India’ and expresses the social
and political philosophy of India with the nation’s concept of Social Justice in its widest term.

Its essential purpose is

1. It indicates the source from which the Constitution comes, viz. The People of India.
2. It contains the enacting clause which brings into force the constitution.
3. It declared the great rights and freedoms which the people of India intended to secure to all citizens and
the basic type of government and polity which was to be established.

The Preamble of the Indian Constitution declares India to be a Sovereign, Socialist, Secular, Democratic,
Republic. The following are the objectives enshrined in the Preamble:
 Justice: Social, Economic and Political;
 Liberty: Of thought, expression, belief, faith, and worship;
 Equality: Of status and of opportunity; and to promote among them all;
 Fraternity: Assuring the dignity of the individual and the unity and integrity of the Nation

Preamble is a part of the constitution and amendable under Article 368. The question whether the preamble is
a part of the constitution was first discussed in the  Berubari’s (1960) case where the Supreme Court held that
the Preamble was not a part of the Constitution and therefore it could never be regarded as a source of any
substantive powers.
The court said that our preamble has a limited application and it can be restored to cases where there is any
ambiguity in the statute. If the terms used in the constitution are ambiguous or capable of two meanings
interpreting them some assistance may be taken from the objectives enshrined in the constitution and
construction with fits the Preamble may be preferred
 However, in Kesavananda Bharti (1973) case, the Supreme Court rejected the above view and laid down the
following prepositions:
 That the Preamble to the Indian Constitution is a part of the Constitution.
 That the preamble is not a source of power nor a source of limitations or prohibitions; and
 The preamble has a significant role to play in the interpretation of statutes, and also in the interpretation
of the provisions of the constitution.

Discuss briefly the ‘three leading characters of a completely developed Federalism’

mentioned by Dicey and point out the merits and demerits of a Federal
Constitution (480)
Federalism is a system of government in which the power is divided between a central authority and various
constituent units of the country. Usually, a federation has two levels of government. One is the government for
the entire country that is usually responsible for a few subjects of common national interest. The others are
governments at the level of provinces or states that look after much of the day-to-day administering of their
state. Both these levels of governments enjoy their power independent of the other. According to A.V Dicey,
there are three leading characters of a fully developed Federalism. They are briefly discussed as below:

1. Distribution of powers among governmental bodies: In a federation, there should be a clear division of
powers among the central and state government, each with limited and coordinate powers so that the units
and the center is required to enact and legislate within their sphere of activity and none violates its limits and
tries to encroach upon the functions of others. This requisite is evident in the Indian Constitution.
2. Supremacy of the constitution: There should be the supremacy of the Constitution of the nation which is not
the hand-made of either the Centre or of the States. In case of any violation of the provisions of the
Constitutional provisions, the courts of laws are there to ensure that the dignity of the Constitution is upheld
at all costs.
3. Authority of the courts as the interpreters of the constitution: In a federal constitution, the court of law has
the authority to act as the interpreters of the constitution and its provisions. In India, the Constitution has
provided for a Supreme Court and every effort has been made to see that the judiciary in India is
independent and supreme. The Supreme Court of India can declare a law as unconstitutional or ultra vires if it
contravenes any provisions of the Constitution.

Although the idea behind the Federal form of government is to be able to better suit the needs of each area of
the country, some issues certainly arise. Following are the outlined merits and demerits of a Federal Constitution
Merits
 It is suitable for nations having a diversity of race, religion, and language.
 It effectively meets the local needs, with a better understanding of their issues and demands.
 It lessens the burden and responsibilities of the Central government,
 Small states have dignity in a federal form of government and have protection against Tyranny.
 State Governments Can be More Responsive to Citizen Needs
Demerits
 It is highly expensive due to the allocation of powers and budgets.
 There is always scope of conflict of the authority between Union and State government and between the
national and local interest.
 It is inefficient because of the diversity of law and administration.
 It allows for regional inequalities between different states.
It has been observed that ‘since’ the expression “quasi-federal” is liable to be used
as a hideout for lurking federalism, it is appropriate that the fact that the
Constitution of India is not federal should be started and acknowledged in those
unambiguous, simple, and accurate words. Develop arguments for this view and
refute them, giving at the end of your answer your own independent views on the
matter (660)
The Indian constitution contains both features of a federal constitution and a unitary constitution. For
example, despite it being federal in character, it declares India to be a union of states. Indian federalism has been
devised with a strong Centre to prevent as well as ameliorate conflict of interests of the Centre and the States.
According to K.C. Wheare, in practice, the Constitution of India is quasi-federal in nature and not strictly federal,
however, are the powers of intervention in the affairs of the States given by the Constitution to the Central
Government and Parliament.

Moreover, the essence of a ‘federation is the existence of the Union of the States, and the distribution of
powers between them. As correctly observed by the Supreme Court in the case of S. R Bommai v. Union of
India,  In India, Parliament can by law form a new State, alter the size of an existing State, alter the name of an
existing State, etc., and even curtail the power, both executive and legislative, by amending the Constitution.

That is why the Constitution of India is differently described, more appropriately as ‘quasi-federal because it is a
mixture of the federal and unitary elements, leaning- more towards the latter but then what is there in a name,
what is important to bear in mind is the thrust and implications of the various provisions of the Constitution
bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related
provisions

Some of the unitary features in the constitution by which we can say that India is a quasi-federal country in
nature are:
1. Strong Centre: The central government has the unitary authority to the appointment of the Governors for
various states. Governor is the representative of the central government and he is also the constitutional
head of the state.
2. Single Citizenship: The constitution provides single and uniform citizenship for the whole of the country.
However, in a federal state like the United States of America, there is dual citizenship in which citizen firstly
owes the duty to the states and then to the union. But in the case of India, there is single citizenship even
though it’s also a federal country. It prescribed that all the Indian citizens owe allegiance to the Indian Union
and not to the state also. Any citizen of the country enjoys civil and political rights
3. Emergency Provisions: The provision of Article 356 provides that the proclamation can be made and once
such proclamation is made, the state government can be either dismissed or the Assembly can be kept in
suspended animation.
4. No Equality of State Representation: Representation in the legislature in the federal states is on an equal
basis, which is also not applicable in the case of Indian States. The Representation of the States in Rajya
Sabha is not equal basis it depends from state to state and regulated by the center which is basically a unitary
feature of the state.
5. Parliament’s Authority over State List: In general the power to make laws under the state list given to the
State Government but in certain cases, the central government has the power to make laws under the state
list. If Rajya Sabha passes a resolution under Article 249 of the constitution with the 2/3rd majority that the
parliament should make law with respect to a particular entry in List II with respect to a particular state. After
passing the resolution the parliament makes law and that law remains in force for 1 and ½ years which
means that the resolution remains in force for one year and the law also will remain to cease after  six
 months the resolution comes to an end

Upon close examination of the above arguments, is to note that in each federal feature of a government,
there exists an extreme centralizing power. In this way, it would not be wrong to conclude that the
Constitution of India is federal in structure.

“The Indian Constitution is federal in form but unitary in substance” (420)

A unitary system is composed of one central government that holds all the power, but a federal system
divides power between national and local forms of government. Federalism is considered to be one of the
most important aspects of modern constitutionalism. As it is democratic in nature and more suitable to a vast
country like India, the framers of the Constitution accepted the federal form of Government. However, not
once in the constitution is the word “federation” ever mentioned but Article I of the Constitution declares
India as a “Union of States”.

The structure of the Indian polity is made federal and there is a dual polity and constitutional division of
powers. An independent Judiciary is provided to interpret the Constitution and safeguard the rights of both
the Centre and the States. Thus there are all federal features in our Constitution, but at the same time, the
unitary spirit of the Constitution is not ruled out.

Following are certain features of the Indian Constitution that suggest its unitary nature:
1. Single Constitution: There are no separate constitutions for the States. In a true federation, there are
separate constitutions for the union and the States.
2. Strong Centre: The central government has the unitary authority to the appointment of the Governors for
various states. Governor is the representative of the central government and he is also the constitutional
head of the state.
3. Single Citizenship: The constitution provides single and uniform citizenship for the whole of the country.
However, in a federal state like the United States of America, there is dual citizenship in which citizen
firstly owes the duty to the states and then to the union. But in the case of India, there is single citizenship
even though it’s also a federal country. It prescribed that all the Indian citizens owe allegiance to the
Indian Union and not to the state also. Any citizen of the country enjoys civil and political.
4. Emergency Provisions: The provision of Article 356 provides that the proclamation can be made and once
such proclamation is made, the state government can be either dismissed or the Assembly can be kept in
suspended animation.
5. Unified judiciary: India has a unified or integrated judicial system. The Supreme Court is the highest court
of justice in the country and all other subordinate courts are under it.
6. Centre’s control over States: The States have to respect the laws made by the central government and
cannot make any law on matters on which there is already a central law.

What the major commitments of the Constitution of India are as incorporated in its
preamble? (780)
The Preamble is the heart of the Constitution of India. The Preamble the Constitution of India sets out the
guidelines which guide the people of the State, to present the principles of the Constitution, and to indicate the
source from which the document derives its authority. The Preamble starts with ‘We the people of India’. This
means this document has been drafted by and for the people of this nation. The Preamble of the Indian
Constitution declares India to be a Sovereign, Socialist, Secular, Democratic, Republic, which corresponds to the
provisions of the constitution.
Sovereign
The Preamble speaks about India being a Sovereign state. It simply means that it’s an independent authority and
is not subject to the control of any other State or external power. In Part V of the Constitution of India, Articles
regarding these three organs have been constituted. The duties, members, and conditions of the three organs
namely Executive, Legislature or the Parliament and Judiciary have been described in Articles ranging
from Article 52 to Article 151

Socialist
Furthermore, the term Socialist was added in the 42nd amendment in the year 1976. It means that if wealth is
generated socially, it should be distributed or shared among the society through distributive justice. It also means
that wealth should not be concentrated in the hands of few people and that the government should regulate the
ownership of land and industry to reduce social-economic inequalities.

Part III of the Constitution upholds the dignity of the individual of the country. The right to equality has been
given in Part III of the Constitution under the title of Fundamental Rights. Article 14 states that all citizens are
equal before the law. Article 15 infers about the prohibition of discrimination on grounds of religion, race, caste,
sex, or place of birth. Article 16 provides for equality of opportunity in matters of public employment. Articles
17 and 18 conclude about the abolition of untouchability and of titles. In this way, the Constitution upholds the
commitment made in the Preamble under the title of equality

Secular
India is proudly a Secular state which infers that there is no difference of religion and that all should be equally
respected. The term Secular was added in the 42nd amendment in the year 1976 which means that there is no
State religion. Fundamental Rights in Part III of the Constitution include the right to practice or profess any
religion under Article 25.

Democratic and Republic

India is a Democratic state which infers the citizens of the country to elect their government via the system of
universal adult franchise, i.e. one person, one vote. Also, we have a Republican form of government that means
the head of state is elected and is not a hereditary monarch. In simple terms, it means we have a government
where no one holds public power as a proprietary right.

From the wider perspective of Article 21, it provides for the right to vote which represents the democracy India
follows. The right to vote portrays a universal adult franchise. This is the way where the Constitution upholds the
commitment of India being Democratic as stated in the Preamble. It also means that we are a Republican form of
Government where the votes of citizens elect the head of the state.

The Preamble narrates about social, economic, and political justice.

 Social justice includes that no citizen shall be discriminated against on the grounds of caste, creed, color,
religion, gender, or place of birth.
 Economic justice infers equitable distribution of wealth and economic equality and the end of monopolistic
control over the means of production and distribution. It also means decentralization of economic resources.
Economic justice includes no discrimination between men and women on the basis of income, wealth, and
economic status.
 The Preamble also speaks of Liberty which means there are no unreasonable restrictions on Indian citizens
in terms of what they think on the manner of expression and the way to follow up their thoughts in action.
However, the Liberty offered shall be exercised within Constitutional limits.
 Fraternity is another major point that Preamble speaks of. It refers to the feeling of brotherhood and a
sense of belonging among the citizens. It leaves no room for communalism casteism and regionalism which
 hinders the unity of the state. It embraces the dignity of individuals of the country

Article 32 provides for remedies for enforcement of rights conferred in Part III of the Constitution.
Infringement of any kind of fundamental rights paves the way towards the doors of justice via the courts
established in our country. The courts ensure social, economic, and political justice to all as stated in the
Preamble

Discuss the relationship between the Fundamental Rights and Directive Principles
of State Policy (510)
Fundamental rights as enshrined under Part III of the Constitution are rights without which a human being
cannot survive in a dignified manner in a civilized society. Fundamental rights are known as  “basic rights”. They
are also called individual rights or negative rights” and impose negative obligations on the state not to encroach
on individual liberty.

On the other hand, directive principles of state policy as enshrined under Part IV of the Constitution are
positive rights and impose positive obligations on the state. Parts III and IV of the Constitution, as described by
the CJ. Chandrachud is the conscience of the Constitution of India; however, there is certain distinction between
the Fundamental Rights and DPSPs. They are:
 Fundamental rights aim to establish political democracy in India whereas DPSP refers to the socio-economic
policies of the country.
 Directive principles are in the nature of instruments of instructions to the government to do positive. They
are not justifiable or enforceable in courts. On the other hand, the fundamental rights are enforceable in the
courts under Articles 32 and 226 of the Constitution and hence are justifiable and are considered as negative
rights.
 Fundamental rights are facilities given by the state to the people, whereas DPSP is directions given by the
constitution to the state.
 Fundamental Rights promote the welfare of individuals and hence are individualistic whereas DPSPs
promote the welfare of the community hence they are socialistic in nature.
 Fundamental Rights do not require any legislation for their implementation and are automatically enforced
whereas DPSPs require legislation for implementation

Instead of having certain distinctions, Constitution Framers always talked about the coherence between
Fundamental Rights and DPSP. In Kerala Education Bill, 1957 the Apex court while affirming the primacy of
fundamental rights over the directive principles, it held that Court may not entirely ignore these Directive
Principles of State Policy laid down in Part IV of the Constitution but should adopt the principle of harmonious
construction and should give effect to both as much as possible. The Supreme Court began to assert that there is
“no conflict on the whole” between the fundamental rights and the directive principles

Further, in the landmark judgment of the Kesavanand Bharti v. State of Kerala, Justice Chandrachud said
that “DPSP should not be permitted to become,’ a mere rope of sand’.” If the State fails to create conditions in
which the Fundamental freedoms could be enjoyed by all, the freedom of few will be at the mercy of many and
then all freedoms will vanish”. Court held with the majority that the fundamental rights and directive principles
constitute the “conscience of the constitution” there is no antithesis between the fundamental rights and
directive principles and one supplement the other.

In conclusion, the relationship between Fundamental Rights and DPSP is cohesive in nature now and is an
essential part of the basic structure of the Indian constitution. Both are complementary and supplementary to
each other. So, it’s the duty of the state to follow the guidelines enumerated in DPSP to protect Fundamental
rights.

What do you understand by Fundamental Rights? How do they differ from other
rights? Are they amendable? Refer to important Supreme Court decisions on the
subject. (660)
Part III of the Constitution of India lists the Fundamental Rights and also mentions the limits on these rights. The
word fundamental suggests that these rights are so important that the Constitution has separately listed them
and made special provisions for their protection. The Fundamental Rights are so important that the Constitution
itself ensures that they are not violated by the government. In this regard, Judiciary has the powers and
responsibility to protect fundamental rights from violations by actions of the government.

Executive, as well as legislative actions can be declared illegal by the judiciary if these violate the fundamental
rights or restrict them in an unreasonable manner. However, fundamental rights are not absolute or unlimited
rights. Government can put reasonable restrictions on the exercise of our fundamental rights, but no organ of
the government can act in a manner that violates them

Moreover, Fundamental Rights are different from other rights available to us. While ordinary legal rights are
protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution
of the country. Ordinary rights may be changed by the legislature by the ordinary process of law-making, but a
fundamental right may only be changed by amending the Constitution itself. So, yes fundamental rights as
enshrined in the Indian Constitution are amendable under Article 368. This has been decided by the Supreme
Court in a series of cases which are discussed as below:

Shankari Prasad v. Union of India (AIR 1951 SC 458)

The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to
abridge the Fundamental rights under Part 3 of the Constitution of India. Supreme Court held that the power to
amend the Constitution, including Fundamental Rights is contained in. An amendment is not a law within the
meaning of Article 13(2) because this provision states that the State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention to this clause shall, to the extent of
the contravention, be void.
Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)
The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the
amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview
of Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court
approved the judgment in the Shankari Prasad case and held that on Article 13 (2) the case was rightly decided.
The amendment includes an amendment to all provisions of the Constitution.
Golaknath v. State of Punjab (AIR 1967 SC 1643)
The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that
Parliament had no power to amend part III of the Constitution so as to abridge or take away any of the
Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of
amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India,
and if it violates any fundamental right, it may be declared void
The Golaknath case created a lot of difficulties and as a result, the Parliament enacted the 24th Amendment act,
1971 whereby the power to make an amendment to the constitution and the procedure thereof was given to the
Parliament

However, the question regarding the extent of the power of the Parliament to amend under Article 368 was
discussed in the Kesavananda Bharati Case 1973, where the Supreme Court overruled its decision in Golaknath’s
case and held that even before the 24th Amendment; Article 368 contained power as well as the procedure for
amendment. The majority bench held that there are inherent limitations on the amending power of the
parliament and Article 368 does not confer power so as to destroy the Basic Structure of the Constitution.

Can Parliament amend Part III of Constitution of India relating to Fundamental

Rights? Discuss (525)
Parliament enacted the 24th Constitutional Amendment act, 1971 whereby under Article 368, the Parliament
was vested with the power to make an amendment to the constitution and the procedure thereof. However,
Parliament has limited power to amend the Constitution. The parliament cannot damage the basic structure of
the Constitution i.e. the guaranteed fundamental rights under Part III of the constitution. Article 368 does not
provide the power to the parliament regarding the Amendment in Part III of the Constitution and the Parliament
by amending Article 368 cannot increase its Amendment powers

The question of whether fundamental rights can be amended under Article 368 first came for consideration in
the Shankari Prasad case. In that case, the validity of the 1st Constitutional Amendment which added Article 31-
A and 31-B of the Constitution was challenged. It was contended that though it may be open to Parliament to
amend the provisions in respect of the fundamental rights, the amendments, would have to be tested in the light
of the provisions contained in Art.13(2) of the Constitution.

The Supreme Court, with a bench of five judges, unanimously rejected the contention that in so far as the First
Amendment took away or abridged the fundamental rights conferred by Part III it should not be upheld in the
light of the provisions of Article 13(2).

Later, the extent of the power of the Parliament to amend under Article 368 was discussed in the landmark
judgment of Kesavananda Bharati Case 1973, where the Supreme Court discussed the Basic structure Doctrine.
The majority bench held that there are inherent limitations on the amending power of the Parliament and Article
368 does not confer power so as to destroy the Basic Structure of the Constitution

In Minerva Mills v. Union of India, the Parliament, through the 42nd Constitutional Amendment Act,
1976, attempted to circumvent Kesavananda Bharati by making Parliamentary power unlimited. It indirectly
declares that there is no limitation on the power of the parliament regarding the Amendment. The Court in this
case struck down the amendment on the grounds that the judicial review of Parliamentary enactments and the
limitation of Parliamentary power to amend the Constitution are part of the basic structure of the Constitution.

However, it was not until much later that the Supreme Court ruled on the question of whether an addition to
the Ninth Schedule would make the listed statute immune from the requirement of not infringing on a
fundamental right. In I. Coelho v State of Tamil Nadu, the court held that all laws were subject to the test of
being consistent with fundamental rights, which are a part of the basic structure. Therefore, it can be said that:
 Parliament has limited powers to amend the constitution.
 Parliament cannot damage or destroy the basic features of the Constitution.
 The procedure prescribed for the amendment is mandatory and any non-compliance with it will result in the
invalidity of the amendment.
 Clauses (4) and (5) inserted in Art. 368 by the 42nd Amendment Act are invalid because they take away the
right of judicial review.
 Parliament cannot increase its amending power by amending Art. 368.
Describe the prohibition of discrimination based on sex (520)
Fundamental Rights as enshrined under Part III of the Constitution of India are guaranteed to all persons by the
constitution of India without any discrimination of caste, religion, sex, etc. These rights entitle an individual to live
life with dignity. Fundamental Rights are meant for promoting the idea of democracy.

Article 15(1) of the Indian Constitution states that state shall not discriminate against any citizen on grounds
only of race, religion, caste, sex, and place of birth. The word “discrimination” refers to make adverse distinctions
with regard to or to distinguish un-favorable from others while the term ‘only’ means that discrimination can be
done on the basis of other grounds. The Constitution of India safeguards the fundamental rights of the citizens
irrespective of their sex and states no person shall be discriminated against based on their sex. Everyone is
equally entitled to enjoy all of the below 6 fundamental rights as mentioned in the constitution.
1. Rights to equality (Article 14-18)
2. Rights to freedom (Article 19-22)
3. Right against exploitation (Article 23-24)
4. Right to freedom of religion (Article 25-28)
5. Cultural and educational rights (Article 29-30)
6. Rights to constitutional remedies (Article 32)

The second clause of Article 15(2) says that no citizen shall be subjected to any disability, liability, restriction, or
condition on grounds of any religion, caste, race, sex, place of birth with regard to;
1. Access to shops, public restaurants, hotels, and places of public entertainment.
2. The use of wells, tanks, bathing Ghats, roads, and places of public resorts maintained wholly or partly by
state funds or dedicated to the use of the general public

However, there is a certain exception to the above, considering the concept of differential treatment
originated from Article 14. The provision guarantees equal protection only when there is no reasonable basis for
the differentiation.
If a law deals equally with members of a well-defined class, it is not open to the charge of denial of equal
protection. If the legislature takes care to classify a person based on their sex reasonably for legislative purposes,
and if it deals with all persons belonging to such a well-defined class, it doesn’t amount to a denial of equal
protection.

If we talk specifically about classifications based on sex, the Courts apply “intermediate scrutiny”, i.e., the
putatively discriminatory law will be upheld if the State can demonstrate a substantial need and a reasonable
classification between the law and the fulfilling of that need.

This can be understood in the terms that while there are almost no justifiable reasons for classifying individuals
on caste or racial lines, such reasons might, on occasion, exist when it comes to the classification of individuals
based on the lines of sex.

However, the burden of demonstrating this lies upon the entity responsible for the classification. In this regard,
we can resort to Article 15(3) which is an enabling clause. It empowers the state to make special provisions for
the protection of women and children.

Even Sir B.N Rau has said that legal provision might occasionally have to be made for women, for example, to
prohibit their employment for certain periods before and after childbirth
What are the application and interpretation of Article 13 of the Constitution?
Discuss the doctrines precisely with leading cases. (620)
Article 13 of the Indian Constitution provides that the parliament and state legislatures are strictly prohibited
from making such laws that may infringe or take away the fundamental rights that are being guaranteed by the
constitution itself. The provision talks about four principles relating to fundamental rights. According to it,
Fundamental rights do exist from the date on which the Indian constitution came into force i.e., on 26th January
1950 hence fundamental rights became operative from this date only

In this regard, clause (1) of Article 13 talks about the pre-constitutional laws i.e. the day from which the
constitution came in existence there were many laws in the country and when the constitution came into
existence fundamental rights do come, therefore the laws before the existence of the constitution must prove
their compatibility with the fundamental rights, only then these laws would be considered to be valid otherwise
they would be declared to be void

Clause 1 is prospective in nature but not retrospective, meaning the article will be in effect from the day when
the constitution came in effect (26th Jan 1950) and the person who committed offense afterward will be
prosecuted according to the laws of the Indian constitution but not according to the pre-constitutional laws.
This leads to the rise of the Doctrine of Severability which states that if some parts of the statue are inconsistent
with that of the fundamental rights, then the whole statue would not be declared to be void but that particular
clause would be treated to be void by the court of law. This can be explained with the landmark judgment of A.K
Gopalan v. State of Madras, AIR 1950 SC 27.

In this case section 14 of the Preventive Detention Act, 1950 was challenged. Section 14 of the Act says that if
any person is being detained under this act then he or she may not disclose the grounds of his or her detention in
a court of law. Notably, this particular statement is inconsistent with that of fundamental rights as per Article
22 of the Indian constitution, thus if we do apply the doctrine of severability here so the whole act would not be
declared as void but only section 14 of the act would be declared as void as it is inconsistent with the
fundamental rights.

Another doctrine originated from this provision, i.e. Doctrine of Eclipse. This doctrine simply states that any law
which is contrary to fundamental rights enshrined in Part III of the constitution is not void but becomes
unenforceable and it becomes dormant for an infinite period of time until the inconsistency is removed from it.
The apex court of India evolved this doctrine in the case of Bhikaji v. State of Madhya Pradesh in this case court
held that any law existing before the commencement of the constitution which is inconsistent with any of the
provisions mentioned in Part III of the constitution is simply not void but becomes unenforceable.

Talking in particular about Clause 4 of this provision, it states that any of the amendment made in Article 368 of
the Indian constitution would not be challenged under article 13; moreover, if the amendment so made would be
against the fundamental rights then also it would not be challenged under Article 13.

This leads to the birth of a landmark doctrine to our constitution, i.e. Doctrine of Basic Structure which prohibits
the parliament to make laws or amendments which are inconsistent with fundamental rights. In Minerva Mills’
case 1980 the court was of the view that judicial review is the basic feature of the constitution hence cannot be
amended therefore any amendment made by parliament will go through the process of judicial review.

What is Judicial Review? Discuss the nature and scope of Judicial Review. How is it different
from an appeal? (566)
 Judicial review is in a sense, the very life-breath of the Constitution of a vibrant, working constitutional
democracy. It is that which provides sinews for enforcement of rights, protection of liberty, and upholding the
rule of law. Judicial review is the exercise of power by superior courts to test the legality of any governmental/
State action. It is the exertion of the Court’s inherent power to determine whether an action is lawful or not and
to grant appropriate relief. It is a fundamental mechanism for keeping public authorities within due bounds and
for upholding the rule of law.

Nature and Scope of Judicial Review

Judicial review which has its foundations essentially in Common Law is, in India, enshrined in the
Constitution- Article 13 read with Articles 32,226,227 expressly confer that power. It has been mentioned in the
constitution with the aim to provide that no power- whether statutory or under the prerogative will be
unreviewable. Courts in India are charged with the responsibility of adjudicating upon the manner of the exercise
of public power, its scope, and its substance. Even when discretionary powers are engaged they are not immune
from judicial review.
However, it is crucial to note that the Indian Constitution is the supreme law from which all organs derive their
authority and within whose confines they have to act. It is for the Court only to uphold constitutional values and
enforce constitutional limitations, exercising their power of Judicial Review. Judicial review does not mean the
supremacy of the judiciary but that of the Constitution. The range, intensity standards, and tests of judicial
review may vary from actions to actions of the concerned authority in question. In essence, it is used only to test
the legality and keep public authorities within the limits of their power- lawful or unlawful, without examination
of merits.

Difference between Judicial Review and Appeal

The difference between judicial review and appeal is one of kind. An appeal is a creature of the statute- the
appellate power being circumscribed by the statutory provisions conferring the power.
Where a question arises as to the scope of appellate jurisdiction, the statute by which the jurisdiction is
conferred must ordinarily be the Court’s first port of call; and will very often be the last. In exercising appellate
power Court concerned with the merits- whether right or wrong, the court independently examines the matter
and comes to its conclusion often times substituting its views for those of the court appealed from.

While Judicial review generally is an objective assessment where the court does not sit as a court of appeal but
merely reviews the manner in which the decision was made. The court does not have the expertise to correct the
administrative decision. Therefore, judicial review is concerned with reviewing not the merits of the decision in
support of which the application for judicial review is made, but the decision-making process itself.

In Chief Constable of the North Wales Police v. Evans Lord Brightman said: Judicial review, as the words imply, is
not an appeal from a decision, but a review of the manner in which the decision was made. Judicial review is
concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of
the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty
of usurping power.

Against whom Fundamental Rights are available? In this context, refer to the
meaning of the term ‘State’ in Part III of the Constitution (500)
Part III of the Constitution deals with Fundamental Rights which are the restriction on the power of the
legislature, executive, and judiciary, which, no one can encroach upon this part. Notably, Fundamental rights are
available against the state, defined under Article 12 of the Indian Constitution
Article 12 gives a wide meaning to the term ‘State’. According to the provision, state means:
1. The Government and Parliament of India,
2. The Government and Legislature of a State,
3. Local Authorities, and
4. Other Authorities within the territories of India

The Supreme Court has laid down that the meaning of the term ‘State’ extends to any action whether
administrative, judicial, or quasi-judicial will be termed as state action. In Ajay Hasia v. Khalid Mujib
Sehravardi (1981 AIR 487) case, the court summarized the criterion for judging whether a body is a state. But in
the Pradeep Kumar Biswas case 2002, the court elaborately formulated the whole law regarding ‘State’ action,
and laid down the following principles:
1. The principles laid down in the Ajay Hasia case are not a rigid set of principles.
2. The question in each case will have to be considered on the basis of facts available- the body is
financially, functionally, or administratively dominated by or under the control of the Government;
3. Such control must be particular to the body in question;

4. Mere regulatory control under a statute or otherwise would not serve to make a body a part of the state.

Moreover, there is no definition of the term ‘other authorities’ in Article 12 given in the Constitution or in the
general clauses Act, 1897 nor in any other statute of India. So, for the purpose of determining what ‘other
authorities’ fall under the scope of ‘State’, the judiciary has given several judgments as per the facts and
circumstances of different cases

In the University of Madras v. Shanta Bai (AIR 1954 Mad 67), the Madras High Court evolved the principle
of ‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered under the expression
‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons,
natural or juristic, for example, unaided universities.

In the case of Ujjam Bai v. State of U.P. (1963) 1 S.C.R. 778), the court rejected the above restrictive scope
and held that the ‘ejusdem generis’ rule could not have resorted to in interpreting ‘other authorities’. The bodies
named under Article 12 have no common genus running through them and they cannot be placed in one single
category on any rational basis.

Lastly, in Rajasthan Electricity Board v. Mohan Lal (AIR 1967 S.C. 1857), the Supreme Court held that ‘other
authorities’ would include all authorities created by the constitution or statute on which powers are conferred by
law. Such statutory authority need not be engaged in performing government or sovereign functions. The court
emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not.

Discuss the terms “Equality before the law” and “Equal Protection of laws” as
provided in the Constitution of India. State the exceptions to it also? (450)
Article 14 of the Constitution reads as the state shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. This answer has two limbs –
a. equality before the law
b. Equal protection of the law.
 The first limb i.e. ‘equality before the law’ is of English origin and it is a negative concept which implies the
absence of any special privilege in favour of any individual and the equal subjection of all classes to law. In  State
of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 750) it was held that Article 14 is designed to prevent any
person or class of persons from being singled out as a special subject for discriminatory and hostile legislation.

The provision enunciated the quality principle in the administration of justice. In its application to legal
proceedings, the article assures everyone the same rules of evidence and mode of procedures in similar
circumstances. This principle, however, does not mean that every law must have universal application for all
persons who are not by nature, attainment, or circumstance, in the same position.

The second limb provides ‘equal protection of law’ which is a positive concept and implies that the equals
should be treated equally. By virtue of this limb, Article 14 doesn’t permit the unequal to be treated alike.
Therefore, all that Article 14 guarantees is the similarity of treatment and not identical treatment. But there are
certain exceptions to the equality clause, which are to be found in the Constitutional itself. They are:

1. Under Articles 105 and 194, the Members of the Parliament and the State Legislatures respectively are not
held liable for anything which they say within the House.
2. Under Article 359 when there is a proclamation of Emergency, the operation of Fundamental Rights
including Article 14 can be suspended and if any violation of this right is done during such proclamation, it
cannot be challenged in the Courts after the proclamation ends.
3. Under Article 361 the President and the Governors are not liable to any court for any act which is done by
them in exercising their power and duties of the office.
4. The United Nations and its agencies are entitled to diplomatic immunity.
5. Rulers of foreign countries, their ambassadors, etc. enjoy immunity from criminal and civil proceedings.

The Karnataka High Court in K. Veeresh Babu v. UOI (W.P. No. 17519/89), the case held that a provision
exempting Sikhs from compulsorily wearing a Helmet, when riding a motorcycle, is not volatile of Article 14 of
the Constitution. Thus, Article 14 prohibits class legislation and not a classification for the purpose of the
legislation

What do you understand by Judicial Review? What is the effect of Article 13 on

Pre-constitutional laws and Post-constitutional laws? Explain your answer with the
help of decided cases (660)
‘Judicial Review’ is the power of courts to pronounce upon the constitutionality of legislative acts which fall
within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be
unconstitutional and hence void. If the provisions of the statutes are found to be violative of any of the articles of
the Constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are
empowered to strike down the said provisions.

The court in this case also propounded the basic structure doctrine according to which it said the legislature can
amend the Constitution, but it should not change the basic structure of the Constitution. Further, in the case
of S.P. Sampath Kumar v.UOI (1987 SCR (3) 233), the court has well settled that judicial review was a basic and
essential feature of the Constitution. If the power of judicial review was taken away, the Constitution would
cease to be what it was.
It further declared that if a law made under Article 323-A (1) were to exclude the jurisdiction of the High
Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or
arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent
power of Parliament.
 Article 13, of the Indian Constitution states that laws, that are inconsistent with/or/are, in derogation of the
fundamental rights, shall be held void by the court. The clause of this provision provides that

All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as
they are inconsistent with the provisions of this Part, shall be void to the extent of such inconsistency . But this
does not make the existing laws that are inconsistent with the void of the fundamental right ab initio. The
entire Part III of the Constitution including Art. 13(1) is prospective.

Hence, existing laws that are inconsistent with any provisions of Part III are rendered void, only with effect from
the commencement of the Constitution, which for the first time created the Fundamental Rights. The
inconsistency referred to in Art.13(1), therefore, does not affect the transaction past and closed before the
commencement of the Constitution or the enforcement of rights and liabilities that had accrued under the
‘inconsistent laws’ before the commencement of the Constitution

The second clause of Article 13 provides that:

The State shall not make any law that takes away or abridges the rights conferred by this Part and any law made
in contravention of this clause shall be void to the extent of the contravention.

Cl. (2) makes the inconsistent laws void ab initio and even convictions made under such unconstitutional laws
shall have to be set aside. Anything done under the unconstitutional law, whether closed, completed, or
inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such
unconstitutional law. Nor is it revived by any subsequent event. However, this doesn’t mean that the offending
law is wiped out from the statute book altogether. It remains in operation as regards persons who are not
entitled to the fundamental right in question.

This was well discussed in the case of Keshav Madhav Menon v. State of Bombay 1951. In this case, the
petitioner published a pamphlet according to the pre-constitutional laws in 1949 but as the Indian constitution
came into effect in 1950 it gave the freedom of speech and expression under Article 19 of the Indian
constitution. Therefore the apex court said that the petitioner’s trial must go on as the benefit of Article 13 would
not be given to him because article 13 is not retrospective.

Therefore, it is clear that once the statute is declared invalid for contravention of a fundamental right, the
invalidity attaches to the law from the date of commencement of the Constitution in the case of a pre-
Constitution law and from the date of its enactment in the case of a post-Constitution law

Right of Equality before Law and the Equal Protection of Laws in the Indian
Constitution have been interpreted to prohibit discrimination but permit
classification. Comment on this statement and point out the basis on which such
classification may be founded. Substantiate your answer with case law (510)
Article 14 of the Constitution reads as the state shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. This article has two limbs –
1. equality before the law
2. Equal protection of the law.

The first limb i.e. ‘equality before the law’ is of English origin and it is a negative concept which implies the
absence of any special privilege in favor of any individual and the equal subjection of all classes to law. In  State of
West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75), it was held that Article 14 is designed to prevent any person
or class of persons from being singled out as a special subject for discriminatory and hostile legislation. The
provision enunciated the quality principle in the administration of justice.

In its application to legal proceedings, the article assures everyone the same rules of evidence and mode of
procedures in similar circumstances. This principle, however, does not mean that every law must have universal
application for all persons who are not by nature, attainment, or circumstance, in the same position.

The second limb provides ‘equal protection of law’ which is a positive concept and implies that the equals
should be treated equally. By virtue of this limb, Article 14 doesn’t permit the unequal to be treated alike.

In Srinivas Theatre v. State of T.N., the court observed that that equality before the law is a dynamic concept
having many facets. One of them there is that there shall be no privileged person of class and name shall be
above state law. A fact thereof is the obligation upon the state to bring about, through the machinery of law, a
more equal society envisaged by the preamble and part IV (directive principles of state policy) of the Indian
constitution.

Further, the Karnataka High Court in K. Veeresh Babu v. UOI 1994, the case held that a provision exempting Sikhs
from compulsorily wearing a Helmet, when riding a motorcycle, is not violative of Article 14 of the Constitution.
Thus, what Article 14 prohibits is class legislation and not a classification for the purpose of the legislation.

The underlying principle is that the Principle of equality under Article 14 of the Constitution is not the uniformity
of treatment to all in all respects. It only means that all persons similarly circumstanced shall be treated alike
both in the privileges conferred and liabilities imposed by the laws.

Equal law should be applied to all in the same situation, and there should be no discrimination between one
person and another. The law should be reasonable and devoid of arbitrariness. In this regard, the Supreme court
in the D.S Nakara v. union of India (1983 AIR 130) case said that Rule 34 of the Central Services (pension) Rules,
1972 as unconstitutional on the ground that the classification made by it between pensioners retiring before a
certain date and retiring after that date did not depend upon any rational principle it was arbitrary and the
infringement of Article 14 of Indian constitution law.

“Arbitrariness is the antithesis to Article 14 of the Constitution of India.” Elaborate.

(425)
It has been enshrined under Article 14 of the Constitution of India that the State shall not deny to any person
equality before the law or the equal protection of the law within the territory of India. Its meaning is that no
person is above the law and he will be within the jurisdiction of ordinary Courts, irrespective of his position or
designation
No person shall be denied equal legal protection before the law. “Equal protection of the law” has been
taken from the Constitution of the U.S.A., according to which, every person in similar circumstances shall be
equally dealt with and while giving protection to any person, there shall not be any discrimination. It is
undisputed that in India, there is a “Rule of law” whose main principle is that where the law is supreme and the
absence of arbitrariness.

In Jaisingh Bhai v. Union of India, it has been held by the Supreme Court of India that it is the first essential
ingredient of the Rule of law that there is the absence of arbitrariness. It is the basis of our democratic system.
Prof. Dicey makes this doctrine more clear. According to him, whether he is Prime Minister or Police Constable,
everyone is amenable to the jurisdiction of one and the same ordinary Court.

Further, none can be made to suffer in person, property, or reputation, except it is proved in ordinary Courts
of law and that too by ordinary legal procedure and manner, considering that all persons are equal before the
law. Reasonable opportunity of hearing must be given to the affected person. The State shall not deny to any
person equality before the law or the equal protection of law within the territory of India. There shall be no
discrimination on the grounds of religion, race, caste, sex, or place of birth.
No person shall be deprived of his life or personal liberty except according to procedure established by law,
and not by any other mode or arbitrariness. The Supreme court in the D.S Nakara v. Union of India (1983 AIR
130) case said that Rule 34 of the Central Services (pension) Rules, 1972 was unconstitutional on the ground
that the classification made by it between pensioners retiring before a certain date and retiring after that date
did not depend upon any rational principle it was arbitrary and the infringement of article 14 of Indian
constitution law. Conclusively, in welfare, developing, and democratic States like India, experience shows that
the Indian judiciary is very well applying the equality principles.

‘Arbitrariness and equality are sworn enemies”. Explain. (350)

Equality is one of the magnificent cornerstones of Indian democracy and the Indian Constitution guarantees the
right to equality vides Articles 14 to 18. The doctrine of equality before the law is a necessary corollary of
the Rule of Law which pervades the Indian Constitution by guaranteeing equality before laws and equal
protection of laws to all persons.

The Supreme Court of India in its landmark verdict of E.P. Royappa v. State of Tamil Nadu (AIR 1974 SCC
555) case has opined that Arbitrariness and equality are sworn, enemies. The Constitutional bench in this case
held that Equality is a dynamic concept with many aspects and dimensions and it cannot be  “cribbed cabined
and confined” within traditional and doctrinaire limits.

It further said that from a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarchy

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. On the basis of this new theory, many decisions were made by the
Supreme Court.

Therefore, Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment.
The principle of reasonableness which legal as well as philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 and the procedure contemplated by Article 21 must answer the test of
reasonableness and non-arbitrariness in order to be in conformity with Article 14. It must be right and just and
fair and not arbitrary, fanciful, or oppressive.

In the matter of Shrilekha Vidyarthi v. State of Uttar Pradesh, the Apex court observed that: It can no longer
be doubted at this point that Article 14 of the Constitution of India applies also to matters of governmental policy
and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of
reasonableness, it would be held unconstitutional.

“Article 14 of India forbids class legislation, but does not forbid classification.” Explain. Section
118 of the Indian Succession Act, 1925 imposes restrictions on Christians alone in the matter of
bequest to religious or charitable purposes. Examine the constitutionality of this provision on
the touchstone of Article. (450)
Article 14 of the Indian Constitution states that state shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India. The provision prescribes equality before the law but the
fact remains that all persons are not equal by nature, attainment or circumstances, and, therefore, mechanical
equality before the law may result in injustice. Thus the guarantee against the denial of equal protection of the
law doesn’t mean that identically the same rules of law should be made applicable to all persons in spite of the
difference in circumstances or conditions.

Therefore, to apply the principle of equality in a practical manner, the courts have evolved the principle that if
the law is based on rational classification it is not regarded as discriminatory. Classification to be reasonable
should fulfill two tests viz.
1. It should not be arbitrary, artificial, or evasive. It should be based on an intelligible differentia, some
substantial distinction, which distinguishes persons or things grouped together in the class from others left
out of it.
2. The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object
sought to be achieved by the statute in question.

The Karnataka High Court in K. Veeresh Babu v. UOI 1994 held that a provision exempting Sikhs from
compulsorily wearing a Helmet, when riding a motorcycle, is not violative of Article 14 of the Constitution. Thus,
what Article 14 prohibits is class legislation and not a classification for the purpose of the legislation.

The question over the constitutionality of Section 118 of the Indian Succession Act, 1925 was challenged in the
case of John Vallamattom v. Union of India, (2003). The fact that this provision imposes restrictions on Christians
alone in the matter of bequest to religious or charitable purposes was held to be arbitrary, unreasonable, and
therefore unconstitutional as per Article 14 of the Indian Constitution.

In the present case, the Apex Court observed that Section 118 of the Indian Succession Act, 1925 comes
within the purview of Articles 14 and 15 of the Constitution of India and it is, therefore, necessary that all
testators who are similarly situated should be subjected to the same rule of procedure.

There cannot be any unusual burden of Christian testators alone when all other testators, making similar
bequests for similar charities and similar religious purposes are not subjected to such procedure.
Therefore section 118 is anomalous, discriminatory and violative of Articles 14, 15, 25, and 26 of the
Constitution. The Court in the exercise of its jurisdiction and to remedy the violation of fundamental rights
declared section 18 as invalid and unconstitutional.

“No person shall be deprived of his life and personal liberty except according to
the procedure established by law.” Discuss with the help of decided cases. (550)
Article 21 of the Indian Constitution states that “No person shall be deprived of his life and personal liberty
except according to the procedure established by law.” Hence, this Article prohibits encroachment upon a
person’s right to life and personal liberty against the state. The state here refers to all entities having statutory
authority, like the Government and Parliament at the Central and State level, local authorities, etc. Thus,
violation of the right by private entities is not within its purview.

The significance of the terms ‘life’ and ‘personal liberty’ is of utmost importance here to give a wide
interpretation to this provision. It encompasses a wide variety of rights of the people, which are a result of the
evolution in the interpretation of Article 21 by the courts over the years in various landmark judgments. The
term ‘Personal Liberty’ was first interpreted in the case of A.K. Gopalan v. State of Madras in 1950, which is
explained below.

In this case, the Petitioner, a communist leader, was detained under the Preventive Detention Act, 1950. He
claimed that such detention was illegal as it infringed upon his freedom of movement granted in  Article 19(1)
(d) of the Constitution of India and thus also violated his Personal Liberty as granted by Article 21 since freedom
of movement should be considered a part of a person’s personal liberty. The court stated that personal liberty
meant liberty of the physical body and thus did not include the rights given under Article 19(1). Hence, Personal
liberty was considered to include some rights like the right to sleep and eat, etc. while the right to move freely
was relatively minor and was not included in one’s “personal” lib

Further, in the case of Kharak Singh v. State of U.P, AIR 1993 SC 1295: The petitioner, was accused of dacoity but
was released due to a lack of evidence against him. The UP Police then began surveillance over him who included
domiciliary visits at night, periodical inquiries, verification of movements, and the like. The petitioner filed a writ
petition challenging the constitutional validity of this State action. The court held that the right to personal liberty
constitutes not only the right to be free from restrictions placed on one’s movements but also to be free from
encroachments on one’s private life. Thus, personal liberty was considered to include all the residual freedoms of
a person not included in Article 19(1).

Finally, the jurisprudential evolution of this concept and its significance related to a wide variety of rights
encompassed in Article 21 was adjudged in the Maneka Gandhi v. Union of India (1978 AIR 597)case. In the
present case, the court held that the right to travel and go outside the country must be included in the Right to
Personal Liberty. It stated that “personal liberty” given in Article 21 had the widest amplitude and covered a
variety of rights related to the personal liberty of a person.
The scope of personal liberty was, hence, greatly increased and it was held to include all the rights granted
under Article 21, as well as all other rights related to the personal liberty of a person. Such a right could only be
restricted by a procedure established by law, which had to be “fair, just and reasonable, not fanciful, oppressive
or arbitrary.”

What according to you should be the basis and limit of reservation of posts in
Government service? Support your answer with relevant case law. (735)
Reservation in India is all about reserving access to seats in government jobs, educational institutions, and even
legislatures to certain sections of the population. The two main aims to provide reservation as per the
Constitution of India are:
1. Advancement of Scheduled Castes (SC) and the Scheduled Tribes (ST) or any socially and educationally
backward classes of citizens or economically weaker sections- guaranteed under Article 15 (4), Article 15 (5),
and Article 15 (6),
2. Adequate representation: of any backward class of citizens or economically weaker sections in the services
under the State- guaranteed under Article 16 (4) and Article 16 (6)

The State of Madras v. Smt.Champakam Dorairajan’s (1951 AIR 226) case was the first major verdict of the
Supreme Court on the issue of Reservation. The case led to the First Amendment in the constitution. The
Supreme Court in the case pointed out that while in the case of employment under the State,  Article
16(4) provides for reservations in favor of a backward class of citizens, no such provision was made in  Article
15. Pursuant to the Supreme Court’s order in the case, the Parliament amended Article 15 by inserting Clause (4).

In a famous case decided in 1992 of Indra Sawhney v. Union of India (AIR 1993 SC 477), the Supreme Court
examined the scope and extent of Article 16(4). The Court has said that the creamy layer of OBCs should be
excluded from the list of beneficiaries of reservation, there should not be reservations in promotions, and the
total reserved quota should not exceed 50%.
The Parliament responded to the case by enacting the 77th Constitutional Amendment Act which
introduced Article 16(4A). The article confers power on the state to reserve seats in favour of SC and ST in
promotions in Public Services if the communities are not adequately represented in public employment

The Supreme Court in M. Nagaraj v. Union of India (2002 (8) SC 212) 2006 case while upholding the
constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall
satisfy the following three constitutional requirements:
 The SC and ST communities should be socially and educationally backwards.
 The SC and ST communities are not adequately represented in public employment.
 Such reservation policy shall not affect the overall efficiency of the administration.

In the Jarnail Singh vs Lachhmi Narain Gupta case of 2018, Supreme Court holds that reservation in promotions
does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the
Scheduled Tribes. The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot
grant reservations in the promotion to SC/ST individuals who belong to the creamy layer of their community.

Recently, the Constitutional (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs
and educational institutions for the “economically backward” in the unreserved category. The Act amends
Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on
the basis of economic backwardness. This 10% economic reservation is over and above the 50% reservation cap.

Reservation is one of the tools against social oppression and injustice against certain classes as it helps in uplifting
backward classes. However, reservation is just one of the methods for social upliftment. There are many other
methods like providing scholarships, funds, coaching, and other welfare schemes. The way the reservation is
implemented and executed in India is largely governed by vote-bank politics. Indian Constitution allowed
reservation only for socially and educationally backward classes. However, in India, it became a caste-based
reservation instead of a class-based reservation.

It’s the duty of the government to provide equality of status and opportunity in India. Article 14 of the
Constitution also provides that unequals should not be treated equally, but reservation is not the only solution,
especially considering the fact that it has been taken a fixed place in the Constitution even now when there is no
implicit need for doing so. Therefore, according to me the basis and limit of reservation of posts in government
services should be done by the state only with the purpose to make laws that promoted “social equality” and
protect the welfare of weaker sections of society as enshrined under Article 46 of Indian constitution. Also,
the “economic criteria” as held above should be one of the relevant factors which should identify social and
educational backwardness.

“Freedom of speech can be restricted only in the interest of the security of the
state, friendly relations with foreign states, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offense.” Elucidate
the above statement with suitable case laws in relation to the freedom of the
press. (500)
Freedom of the press is not specifically mentioned in Article 19(1) (a) of the Constitution and what is
mentioned there is only freedom of speech and expression. However, the framers of the Indian constitution
considered freedom of the press as an essential part of the freedom of speech and expression as guaranteed in
Article 19 (1) (a) of the Constitution. This has been observed by even the Judiciary through the pronouncement of
various landmark judgments, giving the freedom of the press a significant place in our constitution

One of the earliest case laws on the liberty of speech and expression is Romesh Thappar v. State of
Madras [(1950) S.C.R. 594.], in which the Apex Court held that freedom of speech lay at the foundation of all
democratic organizations. The right, even though not absolute in nature, needs to be encouraged and used by
the citizens of a democracy. It was observed in the case that freedom of speech and expression included
propagation of ideas and that freedom is ensured by the freedom of circulation.

It is clear that the right to freedom of speech and expression carries with it the right to publish and circulate
one’s ideas, opinions, and other views with complete freedom and by resorting to all available means of
publication. The right to freedom of the press includes the right to propagate ideas and views and to publish and
circulate them.

However, the freedom of the press is not absolute, just as the freedom of expression is not. Public Interest has to
be safeguard by article 19(1)(2) which lays down reasonable limitations to the freedom of expression in matters
affecting:

1. Sovereignty and integrity of the State

2. Security of the State
3. Friendly relations with foreign countries
4. Public order
5. Decency and morality
6. Contempt of court
7. Defamation
8. Incitement to an offense
The phrase “reasonable restriction” connotes that the limitation imposed on a person in the enjoyment of the
right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
Freedom of the press has three essential elements. They are:
1. Freedom of access to all sources of information,
2. Freedom of publication, and
3. Freedom of circulation.

In Sakal Papers v. Union of India [A.I.R. 1962 SC 305], the Daily Newspapers (Price and Page) Order, 1960,
which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of
freedom of the press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and
Co. v. Union of India [(1972) 2 SCC 78], the validity of the Newsprint Control Order, which fixed the maximum
number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not
to be reasonable restriction under Article 19(2). The Court also rejected the plea of the Government that it would
help small newspapers to grow.

“Right to privacy is not an absolute right, but now it is a fundamental right.”

Explain the statement with reference to Justice K.S. Puttaswamy (Retd.) and Anr
Case (250)
A nine-judge bench of the Supreme Court in the 2017 Aadhar case of Justice K.S. Puttaswamy v. Union of
India (AIR 2017 SC 4161) passed a historic judgment affirming the constitutional right to privacy. It declared
privacy to be an integral component of Part III of the Constitution of India, which lays down our fundamental
rights, ranging from rights relating to equality (Articles 14 to 18); freedom of speech and expression (Article
19(1)(a)); freedom of movement (Article 19(1)(d)); protection of life and personal liberty (Article 21) and others

These fundamental rights cannot be given or taken away by law, and all laws and executive actions must abide by
them. The Supreme Court has, however, clarified that like most other fundamental rights, the right to privacy is
not an “absolute right”. Subject to the satisfaction of certain tests and benchmarks, a person’s privacy interests
can be overridden by competing state and individual interests. Any impugned action will continue to be tested on
the “just, fair and reasonable” standard evolved under Article 21 of the Constitution.
A violation of the Right to Privacy in the context of an arbitrary State action would attract
a “reasonableness” inquiry under Article 14; similarly, privacy invasions that implicate Article 19 freedoms would
have to fall under the specified restrictions under this constitutional provision like public order, obscenity, etc.
Further, intrusion into life or personal liberty under Article 21, which forms the “bedrock of the privacy
guarantee”, would have to be just, fair and reasonable.

Describe the right to life and personal liberty, whether the death sentence is
violative of Article-21? How the right to life and personal liberty, guaranteed by
Article 21, may be curtailed? (580)
Article 21 of the Indian Constitution provides that No person shall be deprived of his life or personal liberty
except according to procedure established by law. Article 21 can only be claimed when a person is deprived of
his life or personal liberty by the State as defined in Article 12. Violation of the right by private individuals is not
within the preview of Article 21. Article 21 uses three crucial expressions, which are listed below:
1. Right to life, and
2. Right to personal liberty;
3. The procedure established by law

The court has given the right of life and personal liberty a wide interpretation through various landmark
judgments to include other essential allied rights, without which the rights guaranteed under Article 21, seem
futile.

While specifically talking about whether a death sentence is violative of Article 21, the Supreme Court has
declared that death by hanging is not violative of Article 21 of the Indian constitution. The question of the
constitutional validity of the death sentence has been raised before the Supreme Court several times vis-a-
vis Articles 14, 19, and 21.

The Supreme Court upheld the constitutional validity of the death penalty in Rajendra Prasad v. State of Uttar
Pradesh (1979 AIR 916). The Court did agree with the proposition that, as the death penalty finally deprives the
accused of his right to life and other Fundamental Rights, the validity of such a punishment can be tested with
reference to Article 14, 19, and 21 of the constitution.

Art. 21 guarantees fair procedure; Article. 19 is based on the reasonableness of deprivation of freedom to live
and exercise the seven liberties guaranteed therein; Art. 14 is an assurance of non-arbitrary and civilized punitive
treatment. Art. 14 ensure that principled sentences of death, not arbitrary or indignant capital penalty, shall be
imposed.

In Machhi Singh v. State of Punjab (1983 AIR 957), the Supreme Court has emphasized that the death penalty
need not be inflicted except in the “gravest of cases of extreme culpability” and that “life imprisonment is the
rule and death sentence is an exception.”

Now, it is to be noted that the fundamental right under Article 21 can’t be curtailed except according to the
procedure established by law. Interpretation of this term arose in the famous A.K. Gopalan v. State of Madras
(1950 AIR 27) case where the Supreme by majority court ruled that the word ‘law’ in Art. 21 was used in the
sense of lex (state-made law) and not jus. The expression ‘procedure established by law’ would, therefore, mean
the procedure as laid down in an enacted law.

In Maneka Gandhi v. Union of India (1978 AIR 597), the court observed the meaning of the term as under: The
procedure “cannot be arbitrary, unfair or unreasonable”. The concept of reasonableness must be projected in
the procedure contemplated by Art. 21. The Court has now assumed the power to adjudge the fairness and
justness of procedure established by law to deprive a person of his personal liberty. The Court has reached this
conclusion by holding that Arts. 21, 19 and 14 are not mutually exclusive, but are inter-linked.

Therefore, the procedure contemplated by Article. 21 must answer the test of reasonableness in order to
conform to Article 14. Thus, the procedure in Article 21, must be ‘right and just and fair’ and not arbitrary,
fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of  Article 21 would not be
satisfied”.

Discuss the scope of the protection given to life and liberty under the Indian
Constitution. Refer to the Supreme Court decisions (460)
The Government of India Act, 1935 established Article 21 in the Constitution of India which states that no
person shall be deprived of his life and liberty except according to the procedure established by law. The right to
life and personal liberty enshrined in the provision is one of the fundamental rights guaranteed to all citizens and
non-citizens of India under Part III of the Constitution. Article 21 is described as the heart of fundamental rights.

While the provision states for two rights i.e. right to life and right to personal liberty the meaning and scope
of Article 21 have been widened by the Judiciary in many cases over the years.

One of the first case laws on this provision was A.K Gopalan v. State of Madras [AIR 1950 SC 27] in which the
Supreme Court took a narrow interpretation of Article 21 and held that this fundamental right is only available
against arbitrary executive action and not against arbitrary legislative action. Meaning, the case empowered the
state to deprive a person of his fundamental rights in Article 21based on a law.

This judgment was flawed in many ways, so in 1978 the Supreme Court overruled its judgment of the Gopalan
Case and took a wider interpretation of Article 21 in the landmark judgment of Maneka Gandhi v. Union of India
[1978 AIR 597]. The SC in this case held that the right to life and liberty of a person can be deprived by law on the
condition that the procedure established by that law is reasonable, fair, and just.

It must satisfy the principle of natural justice, which is a basic component of fair procedure under Article 21. It
further ruled that the right to life doesn’t merely mean animal existence and it covers all those aspects of a life
which contribute to making a man’s life meaningful, complete, and worth living.

After Maneka Gandhi’s case ruling, there were more historic judgments that widened the scope of Article 21.
Some of them are as follows:
1. In Sunil Batra v. Delhi Administration [(1978) 4 SCC 409], the Supreme Court ruled the use of fatal handcuffs
for the convicted persons as unconstitutional as it suggests inhuman behavior towards the prisoner.
2. In Mohini Jain v. State of Karnataka [1992 AIR 1858], the court ruled that the right to life also includes the
right to education.
3. In Shubhash Kumar v. State of Bihar [AIR 1991 SC 420], the court ruled the right to life also includes within
itself the right to get pollution-free air.

In another landmark judgment of Unni Krishnan v. State of Andhra Pradesh [1993 AIR 2178], the court held
that the right to education is a fundamental right to the children for the age of 6 to 14 years.
Write a critical essay on the Concept of personal liberty favoured by the Supreme
Court (510)
The Government of India Act, 1935 established Article 21 in the Constitution of India which states that no
person shall be deprived of his life and liberty except according to the procedure established by law. The
provision mentions two fundamental rights i.e. Right to life and the Right of personal liberty guaranteed to all
citizens and non-citizens of India under Part III of the Constitution. Article 21 is described as the heart of
fundamental rights and the rights could not be suspended even in a case of emergency.

There are various judgments of the Supreme Court which safeguarded the personal liberty of an individual
against arbitrary and unjust laws. The court moved from a traditional pedantic approach to a purposive approach
in constructing the right to life and right to personal liberty under the constitution by pronouncement in the
following cases:

One of the first case laws on this provision was A.K Gopalan v. State of Madras [AIR 1950 SC 27] in which the
Supreme Court took a narrow interpretation of Article 21 and held that this fundamental right is only available
against arbitrary executive action and not against arbitrary legislative action. Meaning, the case empowered the
state to deprive a person of his fundamental rights in Article 21 based on a law.

This judgment was flawed in many ways, so in 1978 the Supreme Court overruled its judgment of the Gopalan
Case and took a wider interpretation of Article 21 in the landmark judgment of Maneka Gandhi v. Union of
India [1978 AIR 597]. The SC in this case held that the right to life and liberty of a person can be deprived by law
on the condition that the procedure established by that law is reasonable, fair, and just. It must satisfy the
principle of natural justice, which is a basic component of fair procedure under Art. 21. In this case, the Supreme
Court not only overruled A.K. Gopalan’s case but also widened the scope of words ‘personal liberty. After that,
the concept of personal liberty under Article 21 has changed multidimensional approaches and reached a new
horizon.

In Indian Young Lawyers Assn. v. State of Kerala,[2018 SC 1690] popularly known as Sabrimala case, SC allows
women entry to Sabarimala temple, says exclusionary practices violate right to worship under Article 25, 14, and
21. It held that Rules disallowing women in Sabarimala are unconstitutional and violative of Article 21 and struck
down Victorian-era Section 497 of IPC as Unconstitutional, Plea on the ground that it “prima facie
unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the
Constitution”.

In its landmark judgment, the Supreme Court in Navtej Singh Johar & Ors. v. Union of India [W. P. (Crl.) No. 76
of 2016] pronounced that Section 377 of the Indian Penal Code is unconstitutional. The five-judge bench read
out four judgments, all of which held that the law, which criminalizes ‘unnatural sex’ between consenting adults
and has been used to target the LGBTQI+ community in India, has been struck down in so far as it criminalizes
same-sex intercourse.

Trace the development of the fundamental right to life and personal liberty from
1950 to the present day. What are the contents of this right now (660)
The Indian Constitution is known as a living document because it is not static and ever-evolving and having
survived after 103 amendments and still moving ahead to match up the needs and requirements of society. The
expression “personal liberty” not only means freedom from arrest, detention, and false or wrongful confinement
but also covers those rights and privileges that are essential to achieve happiness with freedom.
 Supreme Court of India since 1950 when it examined the “Right to personal liberty” under Article 21 in the
case of A.K. Gopalan v. State of Madras [AIR 1950 SC 27] (the Supreme Court narrowed down the meaning and
scope of “personal liberty” and held that the term “personal liberty” meant only freedom of the physical body
and that Articles 19 (1) (d) and Article 21 have to treated separately. It basically ruled that the right to life and
personal liberty can be restricted by the procedure established by law even if it is not fair and reasonable.

Thereafter and not agreeing with the ratio in the A.K. Gopalan case, Supreme Court has expanded and widened
the meaning and expression of “personal liberty” in many cases to reach an interpretation that could best
protect the liberty and freedom of an individual.

In the landmark judgment of Kharak Singh v. State of UP [AIR 1963 SC 129], Supreme Court considered the U.P
Police regulation was ultra vires Article 21 and Article 19 (1) (d) of the Constitution and held that domiciliary
visits by the police every night to check and monitor the doings of Kharak Singh were violative of his right to
personal liberty and right to freedom of movement as “personal liberty meant much more than mere animal
existence”

In R.C. Cooper v. Union of India [AIR 1970 SC 564], the court said in case effect of any act violates the
fundamental rights of citizens, it shall be violative of the Constitution and liable to be struck down.

Then came the judgment of the Supreme Court in the case of Maneka Gandhi v. Union of India [AIR 1978 SC
597] widest possible interpretation was given to words and expression “personal liberty” observing that the
expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which
constitute the personal liberty of a man. It was held that the scope of “personal liberty” is not be construed in a
narrow and stricter sense. The court said that personal liberty has to be understood in the broader and liberal
sense. Therefore, Article 21 was given an expansive interpretation. The court obligated the future courts to
expand the horizons of Article 21 to cover all the Fundamental Rights and avoid construing it in a narrower sense.

After Maneka Gandhi’s case ruling, there were more historic judgments that widened the scope of Article 21. The
fundamental right to life and personal liberty encompasses within itself various rights as subheads. Some of them
are as follows:
1. In Sunil Batra v. Delhi Administration [(1978) 4 SCC 409], the Supreme Court ruled the use of fatal
handcuffs for the convicted persons as unconstitutional as it suggests inhuman behavior towards the
prisoner.
2.  In Mohini Jain v. State of Karnataka [1992 AIR 1858], the court ruled that the right to life also includes
the right to education.
3.  In Shubhash Kumar v. State of Bihar [AIR 1991 SC 420], the court ruled the right to life also includes
within itself the right to get pollution-free air.
4. In another landmark judgment of Unni Krishnan vs. State of Andhra Pradesh [1993 AIR 2178], the court
held that the right to education is a fundamental right to the children for the age of 6 to 14 years.
5. In Navtej Singh Johar & Ors. v. Union of India [W. P. (Crl.) No. 76 of 2016], struck down Section 377 of
the Indian Penal Code as unconstitutional which criminalizes same-sex sexual intercourse between two
consenting adults.

Critically examine the fundamental right to life and personal liberty since 1978
with the help of decided cases (580)
The judgment of Supreme Court in the case of Maneka Gandhi v. Union of India [AIR 1978 SC 597] (Passports Act,
1960) wherein widest possible interpretation was given to words and expression “personal liberty” observing
that the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights
which constitute the personal liberty of a man.

It was held that the scope of “personal liberty” is not be construed in a narrow and stricter sense. The court
said that personal liberty has to be understood in the broader and liberal sense. Therefore, Article 21 was given
an expansive interpretation. The court obligated the future courts to expand the horizons of Article 21 to cover
all the Fundamental Rights and avoid construing it in a narrower sense.

The fundamental right to life and personal liberty encompasses within itself the following rights as subheads:
1. Right to live with human dignity: The Right to live with dignity includes adequate nutrition, clothing, and
shelter over the head with facilities of reading, writing, and expressing oneself. (Bandhua Mukti Morcha v.
Union of India: AIR 1984 SC 802).
2. Right to livelihood: It has been held by the Supreme Court that the imposition of Tehbazari by the
Municipal Corporation is in violation of the rights of hawkers to carry on the business fetching them
livelihood. (Olga Tellis v. Bombay Municipal Corporation: AIR 1986 SC 180)
3. Right to Education: under Article 21A of the Indian Constitution as a fundamental right of a (Mohini Jain
v. State of Karnataka: AIR 1992 SC)
4. Right of prisoners and right against illegal detention. Even a person convicted of any offense, though
deprived of freedom, but is well entitled to rights guaranteed under Article 21 of the Constitution. Even
solitary confinement of a person in jail was held to be violative of Article 21  (Sunil Batra v. Delhi
Administration: 1980 SCC (3) 488). In another important case (D.K. Basu v. State of West Bengal: 1997 1
SCC 416), Supreme Court laid down the guidelines to be followed by the concerned authorities in cases of
arrest and detention.
5. Right to free legal aid and right to a speedy trial has also been held as an inalienable right of every
citizen of the country (Hussainara Khatoon v State of Bihar: AIR 1979 SC 1369 and Khatri v. State of Bihar:
1981 SCC (1) 627)
6. Right against sexual harassment at workplace: (Vishakha v. State of Rajasthan: 1997 (6) SCC 241).
7. Right to choice of sex: The 5 Judges Constitution Bench in the case of Navtej Singh Johar v. Union of
India: 2018 (1) SCC 791 has declared section 377 of IPC ultra vires, thereby striking down criminalization
in same-sex relations between consenting adults.
8. Right to clean environment: Article 21 includes the right to live a life of dignity in a healthy environment
with a proper sanitation system and free of pollution (Vellore Citizens’ Welfare Forum v. Union of India:
1996 (5) SCC 647).
9. Right to Privacy: (Justice K.S. Puttuswamy (Retd.) v. Union of India (2017) 10 SCC 1)
10. Right to die with dignity: The Supreme Court has now allowed passive euthanasia under some
exceptional circumstances and strict monitoring of the court (Aruna Ramchandra Shanbaug v. Union of
India: 2011 (4) SCC 454 and Common Cause v. Union of India: (2018) 9 SCC 382)
11. Right to choose life partner: (Shakti Vahini v. Union of India: 2018 (7) SCC 192)

“Right to privacy is now fully recognized as a Fundamental Right in India”. Explain.

(475)
In independent India, the issue of the right to privacy was first time discussed in the debate of the Constituent
Assembly; however, it was not included as any right in the Constitution of India. The issue of whether the right to
privacy is a fundamental right under the Constitution and as a common law right has been dealt with since the
1960s through various judicial cases.
For the first time, the issue raised in M.P. Sharma v. Satish Chandra [AIR 1954 SCR 1077] in which the 8-judge
bench of the Supreme Court, while dealing with the power to search and seize documents from the Dalmia
Group, held that right to privacy is not a fundamental right and it is alien to the Constitution of India

Thereafter, in Kharak Singh v. State of Uttar Pradesh [AIR 1964(1) SCR 332], a six-Judge bench of the Supreme
Court held that there is no fundamental right to privacy, but struck down the provision that allowed night visits,
for violation of ‘personal liberty. However, Justice Subba Rao gave his dissenting view and stated that the right to
privacy flows from the expression of personal liberty and is an essential component of personal liberty though it
was not incorporated as a fundamental right in the Constitution of India. This minority judgment paved the path
for further development.

After a period of almost 11 years, in Gobind v. State of Madhya Pradesh [1975(2) SCC 14], a three-judge bench
of the Apex Court ruled the existence of a fundamental right to privacy within the ambit of the right of personal
liberty under Article 21 of the Indian Constitution. Hence, for the first time, privacy gained some recognition
under personal liberty under the Indian Constitution.

Further, in Lillu Rajesh and Anr v. State of Haryana, [(2013) 14 SCC 643] the Supreme Court held that Medical
procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and
health should be of paramount consideration while dealing with gender-based violence. Proper measures should
be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy.
Therefore, the court ruled that the two-finger test on rape victims violates her Right to Privacy.

Finally, in a 2017 judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) v. Union of
India(2017) was observed to be a resounding victory for privacy. The ruling is the outcome of a petition
challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. The nine-judge bench of
the Supreme Court unanimously held that the right to privacy was a constitutionally protected right in India, and
it was an intrinsic part of the right to life and personal liberty under Article 21.  Therefore, we can say that the
Right to privacy is now fully recognized as a Fundamental Right in India.

Critically evaluate the scope of the expression ‘Personal Liberty’ in Article 21 of the
Constitution of India. Do you think that the expression ‘procedure established by
law’ in Article 21 introduces in India, the American ‘due process clause’ on the
subject (525)

Article 21 in The Constitution of India provides protection of life and personal liberty. It states that no person
shall be deprived of his life or personal liberty except according to the procedure established by law.  Article
21 constitutes two rights: The right to life and the Right to personal liberty.

The scope of the expression ‘Personal Liberty’ has been widely discussed in many cases, given a wider
interpretation which has led to many allied rights now mentioned under the ambit of the right of personal liberty
under Article 21. For example, the right to die, the right to have a choice of partner, the right to choice of sex,
and much more now comes within the scope of the right of personal liberty.

1. The Procedure Established by law

It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the
correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty
according to the procedure established by law. So, if Parliament passes a law, which is in contravention to the
right to life or personal liberty of a person, it can do so according to the provisions and procedures of that law.
However, it doesn’t imply whether the laws made by Parliament must be fair, just, and not arbitrary.
Therefore, “Procedure established by law” implies that a law duly enacted is valid even if it’s contrary to
principles of justice and equity. This strict following of the meaning may raise the risk of compromise to the life
and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this
situation; SC stressed the importance of the due process of law.

2. Due Process of Law

Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a
person but also sees if the law made is fair, just, and not arbitrary. If the Supreme Court finds that any law is
unjust, it will declare it null and void. Under due process, it is the legal requirement that the state must respect
all of the legal rights that are owed to a person, and laws that states enact must conform to the laws of the land
like – equity principles, fairness, fundamental rights, liberty, etc. This doctrine provides for more fair treatment
of individual rights.
In India, a liberal interpretation is made by the judiciary after the 1978 Maneka Gandhi vs Union of
India [1978 AIR 597] case and since then it has tried to make the term ‘Procedure established by
law’ synonymous with ‘Due process’ when it comes to protecting individual rights. In the case, the SC ruled that
‘procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not
arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of  Article
21 would not be satisfied.

Thus, the ‘procedure established by law’ has acquired the same significance in India as the  ‘due process of
law’ clause in America.

Discuss the right to Freedom of Religion under the Constitution of India and
explain the limitation of it. (660)
The fundamental right to freedom of religion is guaranteed under Articles 25, 26, 27, and 28 of Part III of the
Indian Constitution. It is religious freedom in the background of a secular state. The rights which constitute under
the right to freedom of religion are:

Article 25: Freedom of conscience and free profession, practice and propagation of religion -
This article secures to every person freedom not only to subscribe to the religion of their choice but also to
execute their belief in such outward acts as they think is proper. All persons are also free to propagate their ideas
to others. Thus, under article 25 (1), a person has two-fold freedom:
 Freedom of conscience freedom to profess.
 Practice and propagate religion.

The right guaranteed under Article 25 (1), like other constitutional rights, is not absolute and is subject to public
order, morality and health, and to the other provisions of Part III of the Constitution.

In Bijou Emmanuel v. State of Kerala [(1986)3SC615], three children belonging to Jehovah’s Witness were
expelled from school for refusing to sing the national anthem. The circular issued by the Director of Instructions,
Kerala had made it obligatory for students in schools to sing the national anthem.
The Supreme Court held that the children had not committed any offense. There was no law under which
their Fundamental Right under Article 19(1)(a) could be curtailed. It could only be regulated by law and on the
grounds mentioned in the Constitution or by executive instructions.
Article 26: Freedom to manage religious affairs
This article guarantees to every religious denomination the following rights: to establish and maintain
institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and
acquire movable and immovable property, and to administer such property in accordance with the law.

In TMA Pai Foundation v. State of Karnataka [AIR 2003 SC 355], the Court held that the right to establish and
maintain educational institutions has been conferred by Article 26(a) on every religious denomination or Section
thereof, be it of majority religious community or of minority religious community.

Article 27: Freedom as to payment of taxes for promotion of any particular religion -
The object of Article 27 is to secure that the public funds raised by taxes shall not be utilized for the benefit of
any particular religion or religious denomination.

In Sri Jagannath v. State of Orissa [AIR 1954 SC 400], the Court upheld the levy and observed that the annual
contribution so imposed was in the nature of a fee and not a tax. The payment was demanded for the purpose of
meeting the expenses of the Commissioner and his office which was the machinery set up for the due
administration of the affairs of the religious institutions, concerned.

Article 28: Freedom as to attendance at religious instructions or religious worship in certain educational
institutions -
This provision is confined to educational institutions, maintained, aided or recognized by the state.

Therefore, it is essential to note that though important, the right to the freedom of religion is not an absolute
right and is subject to various restrictions.

The restrictions are:

 Public order, morality, or health
 Other provisions of Part III of the Constitution
 Regulation of non-religious activity associated with religious practice
 Social welfare
 Social reform
 Throwing open Hindu religious institutions of a public character to all classes and sections

Any activity, usage, or custom which contravenes the abovementioned restrictions is not considered a purely
religious activity. In such circumstances, legislation for regulating it will be permissible. Like in the case of  Sarla
Mudgal v. Union of India (1995), the Supreme Court outlawed the practice of married men, whose personal law
does not allow bigamy even though they have been resorting to the immoral practice of converting to Islam for
the sake of contracting a second marriage under a belief that such conversion enables them to marry again
without getting their first marriage dissolved.

Secularism is neither anti-God nor pro-God. It eliminates God from the matters of
State and ensures that no one shall be discriminated on the grounds of religion.” In
the light of the above observation, discuss the true import of freedom of religion
guarantee (520)
The present observation was made by the Supreme Court in the case of Ahmedabad St. Xavier’s College v.
State of Gujarat [1974 AIR 1389], where it held that Secularism neither means anti-god nor pro-god. It just
ensures that no one is differentiated on the basis of religion eliminating the concept of God in matters of the
state.
 In 1976, by the 42nd Constitutional amendment word ‘secular’ was added to the preamble of the
Constitution. India being a secular state is a no-state religion which means that it follows no particular religion.
Secularism is a basic feature of the Constitution. It does not require the state to be hostile to religion. While
dealing with the concept of ‘secularism’ in detail, the Supreme Court in S.R Bommai v. Union of India [1994 AIR
1918] explained that under the Constitution, secularism does not mean an atheist society but a heterogeneous
society providing equal status to all religions without favoring or discriminating against anyone.

Now if we ask what is the meaning of religion then, it is imperative to note here that it is not possible to devise
a precise definition of universal application as to what is religion and what are the matters of religious belief or
religious practice. Religion is not susceptible to a precise definition but it is only a matter of faith and belief and
the Constitution of India guarantees to safeguard the faith and belief of individuals as under ‘right to freedom of
religion enshrined under Article 25 to Article 28 of the Constitution.

In this regard, the Supreme Court in its judgment of S.P. Mittal Etc. Etc v. Union of India [1983 SCR (1)
729] ruled that “In the background of the provisions of the constitution and the light shed by judicial precedent
we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e.,
the spirit of man. It must be capable of expressions in world and dead, such as worship or ritual.”

The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize
complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-
based discrimination between them. Among these provisions are as follows:

1. The State shall not deny to any person equality before the law or the equal protection of the laws within
the territory of India. [Article 14]
2. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth, or any of them, either in general or in the matter of access to or use of general and public place and
conveniences. [Article 15]
3. There shall be equality of opportunity for all the citizens in the matter of employment or appointments
under the State and no citizens shall, on grounds only of religion be ineligible for, or discriminated against,
in respect of any employment or office under the State. [Article 16]
4. The traditional religious concept of ‘untouchability’ stands abolished and its practice in any form is strictly
forbidden. [Article 17]

“Secularism is many a time mistaken as non-religious”. Explain the concept in the

light of freedom of religion. (290)
In 1976, by the 42nd Constitutional amendment word ‘secular’ was added to the preamble of the Constitution.
India being a secular state is a no-state religion which means that it follows no particular religion. Secularism is a
basic feature of the Constitution. It does not require the state to be hostile to religion.

The Supreme Court in the case of Ahmedabad St. Xavier’s College v. State of Gujarat [1974 AIR 1389] held
that Secularism neither means anti-god nor pro-god. It just ensures that no one is differentiated on the basis of
religion eliminating the concept of God in matters of the state.

While dealing with the concept of ‘secularism’ in detail, the Supreme Court in S.R Bommai v. Union of
India [1994 AIR 1918] explained that under the Constitution, secularism does not mean an atheist society but a
heterogeneous society providing equal status to all religions without favoring or discriminating against anyone. It
held that “secularism is a basic feature of the Constitution”.
 The State treats equally all religions and religious denominations. Religion is a matter of individual faith and
cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law. Justice
Ramaswami observed that secularism is not anti-God. In the Indian context, secularism has a positive content.
The Indian Constitution embodies the positive concept of secularism which separates spiritualism from individual
faith. The State is neither anti-religion nor pro-religion. In the matter of religion, the State is neutral and treats
every religion equally.

Therefore, whilst secularism is a basic feature of the Indian Constitution, the state’s duty for just enforcement
of freedom of religion is enshrined as a fundamental right of the citizens as enshrined from Article 24 to 28 of the
constitution.

Discuss critically the provisions in the Indian Constitution guaranteeing protection

to the minorities in India. (450)
Although the term ‘minorities’ is not defined in the Constitution, from the Constituent Assembly Debates, it can
be gathered that the Constitution Makers used it to connote numerically vulnerable groups in the power
equation of the State population. Both Article 29 and Articles 30 guarantee certain rights to the minorities so as
to enable them to conserve their own language, script, culture, and prevent discrimination against minorities on
grounds of only religion, race, language, or any of them in educational institutions. This entails two types of
minorities: linguistic and religious minorities.
Whilst Article 29 protects the interests of the minorities by making a provision that any citizen or section of
citizens having a distinct language, script, or culture has the right to conserve the same. Article 29 mandates that
no discrimination would be done on the ground of religion, race, caste, language or any of them.

On the other hand, Article 30 of the Indian Constitution states the right of minorities to establish and administer
educational institutions. It says: “All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.” Article 30 consists of provisions that safeguard
various rights of the minority community in the country keeping in mind the principle of equality as well. The
provisions mentioned are as follow:
1. Article 30(1) says that all minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice.
2. Article 30(1A) deals with the fixation of the amount for acquisition of property of any educational
institution established by minority groups.
3. Article 30(2) states that the government should not discriminate against any educational institution on the
ground that it is under the management of a minority, whether based on religion or language while giving
aid.

In St. Xaviers College v. State of Gujarat [1974 AIR 1389], the Supreme Court observed that Article 29 (1) is
general protection given to sections of citizens to conserve their language, script, or culture, whereas Section 20
is a general right to minorities to establish educations institutions of their choice. In a landmark judgment
of T.M.A Pai Foundation v. State of Karnataka [AIR 2003 SC 355], the Apex Court ruled that a state will be
regarded as the unit for determining both ‘linguistic minority as well as ‘religious minority.

In Champakam Dorairajan v. the State of Madras [1951 AIR 226]–the case involved the admission of students to
medical and engineering colleges of Madras. The province of Madras was having an issue with the order of
fixation of the number of seats for particular communities. The Supreme Court, in this case, rejected reservations
for minorities on the communal ground.

What is the constitutional concept of Minority? What are the constitutionally

guaranteed minority rights? Refer to relevant case law. (300)
Although the term ‘minorities’ is not defined in the Constitution, from the Constituent Assembly Debates, it can
be gathered that the Constitution Makers used it to connote numerically vulnerable groups in the power
equation of the State population.

Case laws: In re Kerala Educational Bill [AIR 1958 SC 956] the Supreme Court held that the fundamental right
given to all minorities under Article 30 (1) to establish and administer educational institutions 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.

In N Ahmad v. Emjay High School [(1998) 6 SSC 674] it was held that a school that is otherwise a minority school
would continue to be so whether the government declared it as such or not. When the government declared the
school as a minority School it has recognized a factual position that the school was estab

In St. Stephen’s College, Delhi v. University of Delhi [AIR 1992 SC 1630] the validity of the admission program
which gave preference to Christian students at 10% relaxation for them by the college was challenged by Delhi
University as violative of Delhi University circulars for admission to various courses. It was contended that the
college was bound to follow University rules for admission.
The Supreme Court held that the college, being a minority institution was not bound to follow the directions of
the university. It may select students for admission by an interview and may not abide by the university rules to
select students on the basis of marks obtained in the written examination. It also laid down that up to 50% of
seats may be reserved for students belonging to the Christian community. Other students may be admitted
purely on the basis of merit.

Write an essay on The Supreme Court as the protector of Civil Liberties. (400)
The Constitution of India framed in the wake of India’s freedom very appropriately guaranteed certain
fundamental rights which are justifiable. The Founding Fathers had displayed great statesmanship in constituting
the Supreme Court and the High Court as the custodians of the fundamental rights enshrined under the
Constitution. After the commencement of the force of the Constitution in 1950 a new and fascinating chapter in
the life of the Indian Judiciary has opened itself. The Supreme Court, being the Apex Judiciary has become the
vigilant guardian of civil liberties in India.

The Supreme Court has been called upon time and again to protect the civil liberties of the individual against
legislative and executive encroachments. In-State of Madras v. VG Row case (AIR 1952 SC 196). Patanjali Sastri,
C. J., observed: that our Constitution contains express provision for judicial review of legislation as to its
conformity with the Constitution. This is especially true as regards the fundamental rights as to which this Court
has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the
legislative judgment, it cannot desert its own duty to determine finally the con.stitutiona1ity of an impugned
statute.

For the enforcement of the fundamental rights of the citizens, the Supreme Court has been given utmost power
under Article 32 which is regarded as the heart and soul of the Constitution. Art. 32 do not merely confer power
on the Supreme Court, as Art. 226 does on the High Courts to issue certain writs for the enforcement of the
rights conferred by Part III or for any other purpose, as part of its general jurisdiction. Art. 32 provides a
‘guaranteed’ remedy for the enforcement of those rights, and this medical right is itself made a fundamental
right by being included in Part III.

In Bashesharnath v. Commissioner of Income Tax (AIR 1959 SC 149), the Supreme Court took a lofty view of
the nature of fundamental rights. The main question was whether it was open to a citizen to waive his
fundamental rights. The Court held that, as fundamental rights were guaranteed to the people as a matter of
public policy, it was not open to anyone to waive his fundamental rights.

The Supreme Court has thus constituted the protector and guarantor of fundamental rights, and it cannot,
consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against
infringements of such rights.

What remedies can be enforced under Article 32 of the Constitution of India?(660)

Article 32 of the Constitution (Right to Constitutional Remedies): It is a fundamental right, which states that
individuals have the right to approach the Supreme Court seeking enforcement of other fundamental rights
recognized by the Constitution. The Supreme Court has the power to issue directions or orders or writs for the
enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus,
prohibition, certiorari, and quo-warranto.

Since the right guaranteed by Article 32 to move the Supreme Court in case of infringement of a fundamental
right is in itself a fundamental right; therefore, the availability of alternate remedy is no bar to relief under Article
32. However, the SC has ruled that where relief through the high court is available under Article 226, the
aggrieved party should first move the high court. In the Chandra Kumar v. Union of India case (1995 AIR 1151),
the SC ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic
structure of the Constitution.

The right to Constitutional Remedies which are available under the Article 32 and 226 of the Constitution for
the enforcement of fundamental rights are:

1. Habeus Corpus
The literal meaning of the Latin words ‘Habeas Corpus’ is to ‘have the body. This writ is basically meant for a
remedy against the illegal confinement of a person. It is a writ in the nature of an order calling upon the person
who has detained another to produce the latter before the Court, in order to let the Court know on what ground
he has been confined and to set him free if there is no legal justification for imprisonment.

2. Mandamus
Mandamus is a Latin word having the meaning “We command”. The primary purpose of this writ is to make the
Government, machinery work properly. An order of mandamus is a command directed to any person,
corporation, or an inferior tribunal, requiring them to do some particular thing which pertains to their/his office
and which is in the nature of public duty.

3. Prohibition
The object of this writ is to restrain the Courts of inferior tribunals from exercising a jurisdiction which they do
not possess at all or to prevent them from exceeding the limits of their jurisdiction. In other words, the object is
to confine the Courts or Tribunals of inferior or limited jurisdiction within their bounds.
The writ of prohibition lies not only for the excess of jurisdiction or for the absence of jurisdiction object is to
confine the Courts or Tribunals of inferior or limited jurisdiction within their bounds.

4. Certiorari
Certiorari means “to certify”. A writ of certiorari (cert.) is an order of an appeal or appellate court ‘directing a
lower court to deliver the record in the case for review. In other words, it is a writ which is issued by the High
Court to subordinate judicial or quasi-judicial bodies directing them to transfer the records of a particular case in
order to ascertain whether the court has the jurisdiction to give the order or whether it is against the principles
of natural justice. A writ of certiorari is corrective in nature.

5. Quo-warranto
This writ is issued by a superior court inquiring by what authority a person claims to exercise a particular right, or
to hold a particular office. It is a device to control executive action in the matter of making appointments to
public offices. In this process, the usurper of public office may be removed and the rightful person may be
allowed to occupy this office.

Public Interest Litigation

Public interest litigation means litigation filed in the court of law with the view to protect the interest of the
general public. The high court can hear matters of PIL filed under Article 226. Through PIL persons who were not
directly affected in the case may bring to the notice of the court matters of public interest. It is the power
granted to the public by the courts.

“A declaration of Fundamental Rights is meaningless unless there is an effective

judicial remedy for their enforcement.” Comment. What are the Judicial remedies
which the Constitution provides?
A right without a remedy is a meaningless formality. It is the remedy that makes a right real. In this regard,  Dr.
B.R. Amedkar referred to the Particular Article 32 of the Indian Constitution, without which the Constitution
would be a nullity. According to him, Article 32 is the very heart and soul of the Constitution as an individual, be
it, a citizen or a non-citizen of India had an effective judicial remedy for the enforcement of their fundamental
rights.

Clause 1 of this provision guarantees the right to move to the Supreme Court, by appropriate proceedings, for
the enforcement of the fundamental rights; and for this purpose, the court has been empowered under clause
2 to issue appropriate directions, orders, or writs including the writ of habeas corpus, mandamus, prohibition,
quo-warranto, and certiorari. This right to constitutional remedies under Article 32 cannot be suspended except
otherwise provided for by the Constitution itself. Further clauses provide:

The provision provides an expeditious and inexpensive remedy for the protection of fundamental rights from
legislative and executive interference. The provision envisages the role of a “sentinel on the qui vibe” for the
Supreme Court. In Minerva Mills v UOI, 1980 SC 1789, the court has characterized the power of Judicial review
conferred by Articles 32 and 226 as the basic structure of the Constitution. The judicial review power thus cannot
be abrogated without affecting the basic structure which is the basis of the Indian Constitution.

Similar to the provision of Article 32, the same power has been conferred to the High Court of states for the
effective judicial remedy in cases where there is a violation of fundamental rights or any other constitutional
rights of an individual. A question has been raised whether a petitioner seeking to enforce his Fundamental
Rights can go straight to the Supreme Court under Article 32, or should he first go to a High Court under Article
226.

As early as 1950, in Romesh Thappar v. State of Madras, (1950) SCR 594, the Supreme Court ruled that such a
petitioner can come straight to the Supreme Court without going to the High Court first. The Court stated that,
“Unlike Article 226, Article 32 confers a Fundamental Right on the individual and imposes an obligation on the
Supreme Court which it must discharge when a person complains of infringement of a Fundamental Right. Art. 32
provide a guaranteed remedy for the enforcement of the Fundamental Rights and constitute the Supreme Court
as the “guarantor and protector of Fundamental Rights.”

The Judicial remedies which are available under the Article 32 and 226 of the Constitution for the enforcement of
fundamental rights are:

1. Habeus Corpus
2. Mandamus
3. Prohibition
4. Certiorari
4. Quo-warranto
5. Public Interest Litigation
.

Write an essay on the Directive Principles of State Policy. (450)

Part IV of the Indian Constitution sets out what may be seen as active obligations of the state and what is termed
as the Directive Principles of State Policy. As Dr. B.R. Ambedkar states, “In my judgment, the directive principles
have a great value, for they lay down that our ideal is economic democracy.”  Directive Principles of State Policy
are mentioned from Article 37 to Article 51 of the Constitution.

It should be remembered that the Sapru Report of 1945, by which we had given a very precious Constitutional
proposal for India, had suggested dividing the fundamental rights into two categories: justifiable and non-
justifiable. After a thorough discussion on this concept, Sir B.N. Rau, the constitutional adviser of the constituent
assembly suggested accepting the approach of justifiable and non-justifiable fundamental rights, and the same
was accepted by the Drafting Committee.

As a result, we have fundamental rights which are justifiable in Part III and the Directive Principles of state
policy that are non-justifiable in Part IV. Meaning, the Directive Principles are not enforceable in any court,
nevertheless, they are fundamental in the governance of the country and it shall be the duty of the state to apply
these principles in making laws. Some of the important directive principles of state policy are:
1. State to secure a social order for the promotion of the welfare of the people, Article 38
2. Certain principles of policy to be followed by the state as mentioned in Article 39.
3. Equal justice and free legal aid, Article 39A
4. Organization of village panchayats, Article 40
5. Right to work, education, and to public assistance in certain cases, Article 41
6. Uniform Civil Code for the Citizens, Article 44

Unlike, fundamental rights Directive Principles do not create any justifiable rights in favour of the individual.
These directives however are instruments of instructions to the Government and they contain a command to the
state to promote a welfare state. It is now settled that Directive Principle cannot override a fundamental right. In
case of a conflict between the fundamental rights and the Directive Principles, the latter will give way to the
former.

This question was settled in State of Madras v. Champakam Dorairajan, AIR 1951 SC 226. But in Minerva Mills
Ltd. v. UOI, AIR 1980 SC 1789, the Court almost settled the controversy, holding that harmony and balance
between fundamental rights and directive principles is an essential feature of the basic structure of the
Constitution. It is now agreed by one and all, that the Fundamental rights are primarily aimed at assuring political
freedom to the individuals by protecting them against excessive and arbitrary state action while the directive
principles seek to secure social and economic freedom by appropriate action by the state.

Write a critical essay on Relationship between Fundamental Rights and Directive

Principles. (450)
Fundamental Rights and Directive Principles of State Policy as enshrined in the Part III and Part IV of the
Constitution of India respectively together comprise the human rights of an individual.

Part III deals with Fundamental Rights without which a human being cannot survive in a dignified manner in a
civilized society. Fundamental rights are known as “basic rights”. They are also called individual rights or negative
rights” and impose negative obligations on the state not to encroach on individual liberty.

Part IV deals with Directive Principles of State Policy. They are positive rights and impose positive obligations
on the state to not only acknowledge the Fundamental Rights of an individual but also to achieve certain socio-
economic goals.

Regarding the constitutional relationship between Fundamental Rights and Directive Principles, the primary
distinction between the two relates to their enforceability in the court of law. Part III; Fundamental rights of the
Constitution are enforceable against the state but Article 37 expressly provided that Part IV; directive principles
are not enforceable in a court.

In the landmark judgment of State of Madras v. Srimathi Champakam [[1951] SCR 525], Justice Das stated
that directive principles were expressly made unenforceable by Article 37 and therefore could not override the
fundamental rights found in Part III, which were enforceable pursuant to Article 32. The court opined that
fundamental rights were sacrosanct and could not be curtailed by Directive Principles and asserted that the
directive principles although important in their own respect were required to adhere to the Fundamental Rights
and in the case of conflict Part III would prevail over Part IV.

However, in later decisions, the courts were of the view that Directive principles and fundamental rights
cannot be isolated because there is an interrelation between the two. And to achieve the balance between the
two, the court needs to resort to harmonious construction The Supreme Court in the State of Kerala v. N.M
Thomas [(1976) 2 SCC 310], ruled that the Directive Principles and Fundamental rights should be construed in
harmony with each other and every attempt should be made by the court to resolve any apparent inconsistency
between them.

The Fundamental right represents civil and political rights and the directive principles embody social and
economic rights. Merely because the directive principles are non-justifiable by the judicial process does not mean
that they are of subordinate importance. Therefore, it is the duty of the state to achieve the right amount of
balance in the wider interests of the public. The Supreme Court ruled this position in R. Coelho v. State of
T.N. [(1999) 7 SCC 580] SC and said that it is the responsibility of the government to adopt a middle path
between individual liberty (Fundamental Rights) and public good (Directive Principles).

Are the Directive Principles of State Policy enforceable? (510)

Part IV of the Indian Constitution sets out what may be seen as active obligations of the state and what is termed
as the Directive Principles of State Policy. As Dr. B.R. Ambedkar states, “In my judgment, the directive principles
have a great value, for they lay down that our ideal is economic democracy.”  Directive Principles of State Policy
are mentioned from Article 37 to Article 51 of the Constitution.
It should be remembered that the Sapru Report of 1945, by which we had given very precious Constitutional
proposals for India, had suggested dividing the fundamental rights into two categories: justiciable and non-
justiciable. After a thorough discussion on this concept, Sir B.N. Rau, the constitutional adviser of the constituent
assembly suggested accepting the approach of justiciable and non-justiciable fundamental rights, and the same
was accepted by the Drafting Committee. As a result, we have fundamental rights which are justiciable in Part
III and the Directive Principles of state policy that are non-justiciable in Part IV.

Meaning, the Directive Principles are not enforceable in any court, nevertheless, they are fundamental in the
governance of the country, particularly to the well-being of society and individuals, therefore it shall be the duty
of the state to apply these principles in making laws.

Article 37 of the Constitution states that the provisions contained in this Part (IV) shall not be enforceable by any
court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it
shall be the duty of the State to apply these principles in making laws. Hence, they impose a moral obligation on
the state authorities for their application.
Following are the limitations on enforcement of Directive Principles in the Indian Constitution:
 No Legal Force: The DPSP are non-justiciable in nature i.e. they are not legally enforceable by the courts
for their violation.
 Constitutional Conflict: DPSP leads to constitutional conflict between Centre and states, Centre and
President, Chief Minister and governor.
 Conflict with Fundamental rights: They can be amended to implement the fundamental rights.
 Constitutional validity: A law cannot be struck down by courts for violating DPSP.
In Re Kerala Education Bill,[ AIR 1957 SC 956] the court observed that though the Directive Principles cannot
override the Fundamental Rights, nevertheless, in determining the scope and ambit of Rights the court may not
entirely ignore the Directives but should adopt the principle of harmonious construction and should attempt to
give effect to both as much as possible.

The 25th Amendment Act of 1971 considerably enhanced the importance of Directives. It resulted in the
addition of Article 31-C to the Constitution of India which provided that law for implementing Directives
contained in Article 39(b) and (c) could not be stuck down on the ground that it contravened rights conferred
by Article 14, 19, or 31.

The 42nd Amendment Act of 1976 widened the scope of Article 31-C so as to cover all Directive Principles.
Thus, it gave precedence to all the Directive Principles over the Fundamental Rights contained under Article 14,
19 or 31.

Name any three Directive Principles of State Policy (425)

The Directive Principles of State Policy contained in Part IV of the Constitution sets out the aims and objectives
to be taken up by the States in the governance of the country. The idea of a welfare state envisaged by our
constitution can only be achieved if the States endeavour to implement them with a high sense of moral duty.
They contain positive obligations of the State towards its citizens who are required to keep in mind the directive
principles while they formulate and pass a law. Directive Principles of State Policy are mentioned from  Article
37 to Article 51 of the Constitution.

The most significant of all the directives upon which a great deal of stress has been put is  Article 39 which
entrusts upon the State to ensure proper distribution of the material resources of the community to serve the
common good. So far, as the distribution of agricultural land is concerned, the efforts of execution of Article
39 are evident.
The rise of the public sector undertakings and regulation of the private industries and businesses by the
government can also be said to be an implementation of Article 39 by keeping a check on the upheaval in the
monopolistic power of private industries. Almost every Indian state has abolished the jagirdari and
zamindari laws and has made an effort to distribute the land.

The Apex court in the case of Randhir Singh v. State of UP [1982 SCR (3) 298, 306] invoked Article 39 (d) for
adjudicating upon an issue that involved the issue of different pay-scales for drivers employed in different
departments. The court noted that Article 14 and 16 in the light of the Preamble and  Article 39(d), implies ‘Equal
pay for Equal work’ to be applied to cases of unequal scales of pay based on no classification or irrational
classification.

The second important directive principle is mentioned in Article 46, which provides for the promotion of the
welfare of the weaker section of the society, particularly SCs and STs, complying to which, many Acts have been
enacted with the intent to implement this directive. For instance, the Untouchability (Offences) Act, 1955 has
been enforced to end the practice of untouchability and made it a criminal offense.

The next significant directive principle is laid down in Article 47 regarding public health and ensuring minimum
standards of livelihood, specifically amongst the rural population, the Central government launched a community
development initiative. Further, the directive pertaining to put a bar on intoxicating drinks and drugs which are
injurious to health was brought to effect through an operation called the ‘Prohibition Enquiry Committee of
Planning Commission’.

Critically, examine the constitutional provisions which ensure the independent

judiciary in India. (525)
Independence of the judiciary means a fair and neutral judicial system of a country, which can take its decision
without any interference of the executive or legislative branch of government. Judicial Independence is
guaranteed in the constitution and cemented as part of the ‘Basic Structure of Constitution’ by the Kesavananda
Bharati v. State of Kerala AIR 1973 SC 1461 Judgment. The Judiciary keeps in check the executive and Legislature
in accordance with the ‘principle of separation of powers’ derived from Article 13.

The constitution has made the following other provisions to ensure the independence of the judiciary:
1. Separation of judiciary from executive [Article 50]: States have been directed by the constitution through
article 50 to take steps to separate the judiciary from the executive in the interest of public service of the
State.
2. Parliament can extend but cannot curtain the jurisdiction and power of the Supreme Court [Article 138]: To
work more effectively the Parliament may enhance the jurisdiction of the Supreme Court in civil cases, here
the point to be noted that in all the provisions the Parliament an exceed, but cannot curtail the jurisdiction
and power of the Supreme Court under article 138.
3. No discussion in Legislature on the conduct of Judges [Article 121]: No discussion can take place in
Parliament or State Legislature with respect to the conduct of a judge of the Supreme Court in the discharge
of his duties under article 121.
4. Power to punish for its contempt [Article 129 and 215]: The Supreme Court and the High Court have the
power to punish any person for its contempt under article 129 and 215, this power is very essential for
maintaining impartiality and independence of the Judiciary.
5. Judges of the Supreme Court are appointed by the Executive with the consultation of Legal experts [Art.
124(2)]: Executive cannot appoint the Judges without the consultation of the Judges of the Supreme Court.
6. Prohibition on practice after retirement [Article 124(7)]: Under the constitution, a retired Judge of the
Supreme Court is prohibited to appear and plead in any court or before any authority within the territory of
India.
7. Security of Tenure: The judges of the Supreme Court have the security of tenure and they cannot remove
from office except by an order of the President by adopting the set procedure laid down in the constitution.
8. Salary of Judges fixed not subject to vote of Legislature: The salary and allowances of the judges of the
Supreme Court are fixed by the constitution and being paid from Consolidated Fund of India. Salary cannot be
altered.
The independence of the judiciary is one of the basic structures of the Indian Constitution. In S.P. Gupta v.
Union of India (1993) 4 SCC 441, the Supreme Court held that the concept of independence of the judiciary is a
notable concept that inspires the constitutional scheme and constitutes the foundation on which the edifice of
our democratic polity rests. It is the judiciary that is entrusted with the task of keeping every organ of the state
within the limits of the law thereby making the rule of law meaningful and effective.

There are many provisions in the Constitution of India which secure the
independence and impartiality of the Judiciary. Discuss those provisions and refer
to important judgments of the Supreme Court (465)
Independence of the judiciary means a fair and neutral judicial system of a country, which can take its decision
without any interference of the executive or legislative branch of government. Judicial Independence is
guaranteed in the constitution and cemented.

Case laws: The first case was of Marbury v. Madison, [(1803) 1 Cr 137.] which ruled that it is a duty of every
judge in the United States to treat as void any enactment which violates the Constitution. The Court cannot
properly decline to exercise this power. This has led to the establishment of the doctrine of judicial supremacy.
Since then the supremacy and independence and impartiality of the Indian Courts have been dealt with by the
judiciary through many cases.

The transfer of judges of the higher judiciary being one of the essentials which affect the independence and
functioning of the judiciary was discussed in Union of India v. Sankalchand Himatlal Sheth AIR 1977 SC
2328. However, the Supreme Court ruled that the President had the power to transfer judges with neither their
consent nor the ‘concurrence’ of the Chief Justice of India (CJI).

While interpreting the word “consultation,” the Supreme Court ruled that the term can never
mean “concurrence”. Hence, the CJI’s opinion, the court ruled, was not binding on the executive. But
nonetheless, the executive could depart from his opinion only in exceptional circumstances, and, in such cases,
its decision could well be subject to the rigors of judicial review. This position was also reiterated in the  First
Judges Case (1981).

However, in the Second Judges Case (1993), the court overruled its earlier decisions, introduced the collegiums
system, and held that “consultation” really meant “concurrence”, and that the CJI’s view enjoys primacy since he
is “best equipped to know and assess the worth” of candidates. But, the CJI, in turn, was to formulate his opinion
through a body of senior judges that the court described as the collegium.

In 1998, in the Third Judges Case, the court clarified its position further. The collegium, it said, will comprise, in
the case of appointments of judges to the Supreme Court, the CJI and his four senior-most colleagues: and, in the
case of appointments to the high courts, the CJI, and his two senior-most colleagues. Additionally, for
appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme
Court who had previously served as judges of the high court concerned.

When through the 99th constitutional amendment, the collegium system was sought to be replaced by the
National Judicial Appointments Commission, the Supreme Court swiftly struck it down in the Fourth Judges Case
(2015) and ruled that the primacy of the collegium was a part of the Constitution’s basic structure, and this
power could not, therefore, be removed even through a constitutional amendment.

Explain the significance of the Directive Principles of State Policy. Can Courts
restrict Fundamental Rights with a view to attaining any objective included in the
Directive Principles? (600)
Fundamental Rights and Directive Principles of State Policy as enshrined in the Part III and Part IV of the
Constitution of India respectively together comprise the human rights of an individual.

Part III deals with Fundamental Rights without which a human being cannot survive in a dignified manner in a
civilized society. Fundamental rights are known as “basic rights”. They are also called individual rights or negative
rights” and impose negative obligations on the state not to encroach on individual liberty.

Part IV deals with Directive Principles of State Policy. They are positive rights and impose positive obligations on
the state to not only acknowledge the Fundamental Rights of an individual but also to achieve certain socio-
economic goals.

Regarding the constitutional relationship between Fundamental Rights and Directive Principles, the primary
distinction between the two related to their enforceability in the court of law. Part III; Fundamental rights of the
Constitution is enforceable against the state but Article 37 expressly provided that Part IV; directive principles
are not enforceable in a court.

Directive Principles are not enforceable in any court, nevertheless, they are fundamental in the governance of
the country and it shall be the duty of the state to apply these principles in making laws. Some of the important
directive principles of state policy are:
1. State to secure a social order for the promotion of the welfare of the people, Article 38
2. Certain principles of policy to be followed by the state as mentioned in Article 39.
3. Equal justice and free legal aid, Article 39A
4. Organization of village panchayats, Article 41
5. Right to work, education, and a public assistance in certain cases, Article 41.
6. Uniform Civil Code for the Citizens, Article 44.
Unlike, fundamental rights Directive Principles do not create any justifiable rights in favor of the individual. These
directives however are instruments of instructions to the Government and they contain commands to the state
to promote a welfare state. It is now settled that Directive Principle cannot override a fundamental right. In case
of a conflict between the fundamental rights and the Directive Principles, the latter will give way to the former.

This question was settled in State of Madras v. Champakam Dorairajan, AIR 1951 SC 226. But in Minerva Mills
Ltd. v. UOI, AIR 1980 SC 1789, the Court almost settled the controversy, holding that harmony and balance
between fundamental rights and directive principles is an essential feature of the basic structure of the
Constitution.

In the landmark judgment of State of Madras v. S Champakam [[1951] SCR 525], Justice Das stated that directive
principles were expressly made unenforceable by Article 37 and therefore could not override the fundamental
rights found in Part III, which were enforceable pursuant to Article 32. The court opined that fundamental rights
were sacrosanct and could not be curtailed by Directive Principles and asserted that the directive principles
although important in their own respect were required to adhere to the Fundamental Rights and in the case of
conflict Part III would prevail over Part IV.

However, in later decisions, the courts were of the view that Directive principles and fundamental rights cannot
be isolated because there is an interrelation between the two. And to achieve the balance between the two, the
court needs to resort to harmonious construction The Supreme Court in the State of Kerala v. N.M Thomas
[(1976) 2 SCC 310], ruled that the Directive Principles and Fundamental rights should be construed in harmony
with each other and every attempt should be made by the court to resolve any apparent inconsistency between
them

What do you understand about Fundamental Rights? How did they differ from
other legal rights? (800)
Fundamental rights are basics and basic freedoms guaranteed to the individual which are inalienable by the
state. The fundamental rights are freedoms guaranteed but these freedoms are not absolute, but are justiciable,
which means they are judicially enforceable before the court. Articles 12 to 35 of the Indian Constitution
enshrine the provisions for Fundamental rights. Fundamental rights are very important because they are like the
backbone of the country. They are essential for safeguarding the people’s interests.

It is imperative to note that fundamental rights are different from legal rights. The legal rights are protected and
enforced by ordinary law; on the contrary fundamental rights are protected and guaranteed by the Constitution
itself. Also, fundamental rights are different from ordinary legal rights in the manner in which they are enforced.
If a legal right is violated, the aggrieved person cannot directly approach the Supreme Court bypassing the lower
courts.

He or she should first approach the lower courts. But for the enforcement of fundamental rights, the aggrieved
party can seek relief directly from the Supreme Court as per Article 32 of the Constitution. For example, the right
to property is now a legal right and not a fundamental right.

The status of fundamental rights and their enforceability in the court has been dealt with and discussed in
various judicial deliberation in respect of the constitutional validity of Article 368 and the Parliament’s power to
bring changes to the basic structure of the constitution:

Shankari Prasad v. Union of India (AIR 1951 SC 458)

The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to
abridge the fundamental rights under Part 3 of the Constitution of India. Supreme Court held that the power to
amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law
within the meaning of Article 13(2) because this provision states that the State shall not make any law which
takes away or abridges the rights conferred by this Part and any law made in contravention to this clause shall, to
the extent of the contravention, be void

Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the
amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview
of Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court
approved the judgment in Shankari Prasad’s case and held that on Article 13 (2) the case was rightly decided. The
amendment includes an amendment to all provisions of the Constitution.

Golaknath v. State of Punjab (AIR 1967 SC 1643)

 The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that
Parliament had no power to amend part III of the Constitution so as to abridge or take away any of the
Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of
amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India,
and if it violates any fundamental right, it may be declared void.

The Golaknath case created a lot of difficulties and as a result, the Parliament enacted the  24th Amendment
act, 1971 whereby the power to make amendments to the constitution and the procedure thereof was given to
the Parliament. However, the question regarding the extent of the power of the Parliament to amend under
Article 368 was discussed in the Kesavananda Bharati Case 1973, where the Supreme Court overruled its
decision in Golaknath’s case and held that even before the 24th Amendment; Article 368 contained power as
well as the procedure for amendment. The majority bench held that there are inherent limitations on the
amending power of the Parliament and Article 368 does not confer power so as to destroy the Basic Structure of
the Constitution.

Soon after, 42nd Amendment Act, 1976 was passed by the Parliament which added clause 4 and clause 5
to Article 368. Article 368 (4) provided that no Constitutional Amendment shall be called in any court on any
ground. Article 368 (5) provided that there shall be no limitation whatsoever on the constituent power of the
Parliament.

Minerva Mills v. Union of India (AIR 1980 SC 1789)

Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment. Justification for
the deletion of the said clauses was based on the destruction of Basic Structure. The Court was satisfied that 368
(4) and (5) clearly destroyed the Basic Structure as it gave the Parliament absolute power to amend Constitution.
Limitation on the amending power of the Parliament is a part of the Basic Structure explained in Kesavananda’s
case.

Describe the fundamental duties prescribed under Article 51A. (640)

The Fundamental Duties are a part of our constitution through Article 51-A of Part IV- A. Fundamental duties
aim to function as a reminder to every citizen that although the constitution has granted them certain
Fundamental Rights that cannot be taken away or violated by the State, the constitution also demands that the
citizens practice some essential norms of democratic conduct in a civil society.

Duties and Rights are interlinked, if you can enjoy the liberty and power that rights have conferred on you, you
also have an obligation to obey the fundamental duties that your state expects of you. The Fundamental Duties
for citizens were added through the 42nd Amendment in 1976. The idea of incorporating Fundamental Duties in
the Indian Constitution was taken from the USSR Constitution. Initially, there were only 10 duties but the 11th
was added through the 86th Amendment, 2002.

In the case of Mohan Kumar Singhania v. Union of India [AIR 1992 SC 1], it was held that the statutes which
have been drafted as per Article 51 of the constitution are legitimate. To understand the Fundamental Rights in
totality, one needs to take Fundamental Duties into consideration. Therefore, Fundamental Duties help in striking
a balance between the demands of the citizens and the expectations of the civil society and legal structure.

In the case of Chandra Bhavan Boarding and Lodging Bangalore v. State of Mysore and Another [AIR 1970 SC
2042], it was decided by the Supreme Court that it is neither feasible nor fair for our constitution to ensure
fundamental rights to citizens without expecting certain duties and obligations in return. The Court stated that –
“It is a fallacy to think that in our Constitution, there are only rights and no duties. The provisions in Part IV
enable the legislature to build a welfare society and that object may be achieved to the extent the Directive
Principles are implemented by legislation.”

This judgment paved the way for the 42nd amendment as fundamental duties began to be seen as integral.
Regarding enforcement of Fundamental Duties is to note that like Directive Principles, they also cannot be legally
enforced unless a situation arises where the fundamental duty is associated with a statute for the breach.
However, as per the case of Mumbai Kamgar Sabha v. Abdulbhai [AIR 1976 SC 1455], the court stated that one
could resort to Article 51- A in situations where the constitutionality of any legislation has been questioned and
needs to be determined.

The 11 essential Fundamental Duties mentioned in Article 51A are:

1. to abide by the Constitution and respect its ideals and institutions, the National Flag and the National
Anthem;  to cherish and follow the noble ideals which inspired our national struggle for freedom;
2. To uphold and protect the sovereignty, unity, and integrity of India;
3. To defend the country and render national service when called upon to do so
4. To defend the country and render national service when called upon to do so
5. 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;
6. To value and preserve the rich heritage of our composite culture;
7. To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have
compassion for living creatures
8. To develop the scientific temper, humanism, and the spirit of inquiry and reform;
9. To safeguard public property and to abjure violence;
10. To strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement;
11. Who is a parent or guardian to provide opportunities for education to his child or, as the case may be,
ward between the age of six and fourteen years?

What is Public Interest Litigation? How has it helped the Supreme Court in
protecting fundamental rights in India? (550)
Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public Interest”,
such as Pollution, Terrorism, Road safety, Constructional hazards, etc. Any matter where the interest of the
public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.

Public interest litigation is the power given to the public by courts through judicial activism. However, the
person filing the petition must prove to the satisfaction of the court that the petition is being filed for public
interest and not just as a frivolous litigation by a busy body.

The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the
petition of any public-spirited individual. A PIL can be initiated by any public-spirited person or group on behalf of
any aggrieved. Thus the locus standi is liberally construed in the field of PIL to allow standing to any pro bono
public

The first reported case of PIL was Hussainara Khatoon v. State of Bihar (1980 1 SCC 98) that focused on the
inhuman conditions of prisons and under-trial prisoners that led to the release of more than 40,000 under trial
prisoners. The right to speedy justice emerged as a basic fundamental right that had been denied to these
prisoners. The same set pattern was adopted in subsequent cases.

According to the jurisprudence of the Constitution of India, “The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” Ordinarily, only
the aggrieved party has the right to seek redress under Article 32.

However, Justice PN Bhagwati in the landmark judgment SP Gupta v. Union of India (AIR 1982 SC 149),
expressly articulated that when a legal right has been breached and the individual is unable to approach the
court for relief, any member of the public can maintain an application for an appropriate direction, both with the
Supreme Court and the High Court.

In keeping with the spirit of PIL, which is to increase access to justice, there are a few conditions that a petition
must meet:
 The complaint cannot be against a private party
 It must be a bonafide complaint that is not frivolous in nature.

Within this broad framework, PILs have emerged as a powerful tool in the hands of the people. The courts
have even accepted letters and telegrams as petitions. Therefore, evidently, PIL has served to facilitate judicial
innovations by the Supreme Court to help the poor and marginalized and protect their fundamental rights. It is
an important instrument of social change for the welfare of every section of society.
The innovation of this legitimate instrument proved beneficial for developing countries like India where PIL
has been used by the Supreme Court as a strategy to combat the atrocities prevailing in a society like a ban of
smoking in public places, a right against sexual harassment at workplaces, right to clean and pollution-free
environment. For instance, in the Bandhua Mukti Morcha v. Union of India [1984 SCC (3) 161], the Supreme
Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of
bonded labor unless proven otherwise by the employer.

What is the Doctrine of Judicial Review? Is it part of the basic structure of the
Constitution? Discuss in the light of the latest decisions of the Supreme Court.
(375)
In a democracy governed by law, Judiciary constantly stands as the sentinel on the qui vive to protect the
Fundamental Rights of the people. In this regard, the Doctrine of Judicial review encompasses the power of the
judiciary to review actions of legislative and judiciary thus enshrining the principle of Rule of Law and maintaining
the separation of power principle at the grassroots level.

In other words, it means that the constitution is the supreme law of the land, and any law inconsistent therewith
is void. The courts perform the role of expounding the provisions of the constitution and exercise the power of
declaring any law or administrative action which may be inconsistent with the constitution as unconstitutional
and hence void.

The Constitution of India explicitly establishes the Doctrine of Judicial Review in several Articles, such as 13, 32,
131-136, 143, 226, and 246. The doctrine of judicial review is thus firmly rooted in India and has the explicit
sanction of the Constitution. Article 13 (2) reads as “The state shall not make any law which takes away or
abridges the rights conferred by this Part III containing Fundamental Rights and any law made in contravention of
this clause shall, to the extent of the contravention, be void.” Hence, judicial review can be well understood to be
the basic structure of the Constitution.
The Apex Court has immensely widened the scope of judicial review with the case of Maneka Gandhi v. Union of
India [1978 AIR 597]. The concept of natural justice was accepted by the court as a main ingredient of law
thereby importing the American principle of “due process of law” into the Constitution of India

In Chandra Kumar v. Union of India [1997 (2) SCR 1186], it was observed that the jurisdiction conferred on the
Supreme Court under Article 32 and on the High Court under Article. 226/227 of the Constitution has been held
to be part of the inviolable basic structure of the Constitution which cannot be ousted even by a Constitutional
Amendment.

Further, in I.R. Coelho v. State of Tamil Nadu AIR 2008 SC 861, the court held that any act inserted in Schedule 9
can be judicially scrutinized but only those enactments which are inserted after 24th April 1973.

Explain the doctrine of basic structure with the help of decided cases. Why has this
doctrine been evolved by the judiciary? (660)
The ‘Doctrine of Basic Structure’ is a doctrine that was propounded by the Indian Judiciary on 24th April 1973 in
the famous Keshavananda Bharati case to put a restriction on the correcting forces of the Parliament so that the
‘fundamental structure of the essential law of the land can’t be revised in the exercise of its ‘constituent force’
under the Constitution.

This Doctrine was evolved in regard to the power of Parliament to make amendments to the constitution to the
extent which has the effect of violating or abridging of the Fundamental Rights as safeguarded by the
Constitution under Part III. Fundamental rights as enshrined in the Indian Constitution are amendable
under Article 368 but the limitation imposed by the Judiciary that the power must not extend to the level of
destroying the basic structure of the Constitution led to the emergence of ‘Doctrine of Basic Structure’.

The Parliament has the power to make law within its jurisdiction, but this power is not absolute. To preserve the
ideals and philosophy of the original constitution, the Supreme Court has laid down the basic structure doctrine.
The doctrine allows the Supreme Court to strike down any amendments that may alter the ‘basic structure’ of
the constitution. This doctrine is only applicable to the situation of Constitutional Amendments.

This has been decided by the Supreme Court in a series of cases which are discussed as below:

Shankari Prasad v. Union of India (AIR 1951 SC 458)

The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to
abridge the Fundamental Rights under Part 3 of the Constitution of India. Supreme Court held that the power to
amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law
within the meaning of Article 13(2) because this provision states that the State shall not make any law which
takes away or abridges the rights conferred by this Part and any law made in contravention to this clause shall, to
the extent of the contravention, be void.

Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the
amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview
of Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court
approved the judgment in Shankari Prasad’s case and held that on Article 13 (2) the case was rightly decided. The
amendment includes an amendment to all provisions of the Constitution.

Golaknath v. State of Punjab (AIR 1967 SC 1643)

The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that
Parliament had no power to amend part III of the Constitution so as to abridge or take away any of the
Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of
amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India,
and if it violates any fundamental right, it may be declared void.
The Golaknath case created a lot of difficulties and as a result, the Parliament enacted the 24th Amendment act,
1971 whereby the power to make amendments to the constitution and the procedure thereof was given to the
Parliament. However, the question regarding the extent of the power of the Parliament to amend under Article
368 was discussed in the Kesavananda Bharati Case 1973, where the Supreme Court overruled its decision in
Golaknath’s case and held that even before the 24th Amendment; Article 368 contained power as well as the
procedure for amendment. The majority bench held that there are inherent limitations on the amending power
of the Parliament and Article 368 does not confer power so as to destroy the Basic Structure of the Constitution.