Constitutional Law-I

Module-I
 Preamble and Features of the Indian Constitution
Our Transformative Constitutionalism: The Supreme Court of India in Navtej
Johar v. Union of India (2018) said, “For understanding the need of having a
constitutional democracy and for solving the million dollar question as to why we
adopted the Constitution, we perhaps need to understand the concept of
transformative constitutionalism with some degree of definiteness. In this quest of
ours, the ideals enshrined in the Preamble to our Constitution would be a guiding laser
beam. The ultimate goal of our magnificent Constitution is to make right the upheaval
which existed in the Indian society before the adopting of the Constitution. The Court
in State of Kerala and another v. N.M. Thomas and others AIR 1976 SC 490 observed
that the Indian Constitution is a great social document, almost revolutionary in its aim
of transforming a medieval, hierarchical society into a modern, egalitarian democracy
and its provisions can be comprehended only by a spacious, social science approach,
not by pedantic, traditional legalism. The whole idea of having a Constitution is to
guide the nation towards a resplendent future. Therefore, the purpose of having a
Constitution is to transform the society for the better and this objective is the
fundamental pillar of transformative constitutionalism………….……. The concept of
transformative constitutionalism has at its kernel a pledge, promise and thirst to
transform the Indian society so as to embrace therein, in letter and spirit, the ideals of
justice, liberty, equality and fraternity as set out in the Preamble to our Constitution.
The expression ‘transformative constitutionalism’ can be best understood by
embracing a pragmatic lens which will help in recognizing the realities of the current
day. Transformation as a singular term is diametrically opposed to something, which
is static and stagnant, rather it signifies change, alteration and the ability to
metamorphose. Thus, the concept of transformative constitutionalism, which is an
actuality with regard to all Constitutions and particularly so with regard to the Indian
Constitution, is, as a matter of fact, the ability of the Constitution to adapt and
transform with the changing needs of the times.”

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Transformative Constitutionalism: Justice Chandrachud in Indian Young
Lawyers Association vs The State Of Kerala decided on 28 September, 2018, said,
" ....The transfer of political power furnished the imperative for drafting a
fundamental text of governance. But the task which the framers assumed was
infinitely more sensitive. They took upon themselves above all, the task to transform
Indian society by remedying centuries of discrimination against Dalits, women and
the marginalised. They sought to provide them a voice by creating a culture of rights
and a political environment to assert freedom. Above all, placing those who were
denuded of their human rights before the advent of the Constitution – whether in the
veneer of caste, patriarchy or otherwise – were to be placed in control of their own
destinies by the assurance of the equal protection of law. Fundamental to their vision
was the ability of the Constitution to pursue a social transformation. Intrinsic to the
social transformation is the role of each individual citizen in securing justice, liberty,
equality and fraternity in all its dimensions" ......" The Constitution as a fundamental
document of governance has sought to achieve a transformation of society. In giving
meaning to its provisions and in finding solutions to the intractable problems of the
present, it is well to remind ourselves on each occasion that the purpose of this basic
document which governs our society is to bring about a constitutional transformation.
In a constitutional transformation, the means are as significant as are our ends. The
means ensure that the process is guided by values. The ends, or the transformation,
underlie the vision of the Constitution. It is by being rooted in the Constitution’s quest
for transforming Indian society that we can search for answers to the binaries which
have polarised our society. The conflict in this case between religious practices and
the claim of dignity for women in matters of faith and worship, is essentially about
resolving those polarities."........." The fundamental freedoms which Part III confers
are central to the constitutional purpose of overseeing a transformation of a society
based on dignity, liberty and equality. Hence, morality for the purposes of Articles 25
and 26 must mean that which is governed by fundamental constitutional principles.
"….."..... By abolishing “untouchability”, the Constitution attempts to transform and
replace the traditional and hierarchical social order. Article 17, among other
provisions of the Constitution, envisaged bringing into “the mainstream of society,
individuals and groups that would otherwise have remained at society’s bottom or at
its edges”. Article 17 is the constitutional promise of equality and justice to those who
have remained at the lowest rung of a traditional belief system founded in graded

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inequality. Article 17 is enforceable against everyone – the State, groups, individuals,
legal persons, entities and organised religion – and embodies an enforceable
constitutional mandate. "………." The Indian Constitution is marked by a
transformative vision. Its transformative potential lies in recognizing its supremacy
over all bodies of law and practices that claim the continuation of a past which
militates against its vision of a just society. At the heart of transformative
constitutionalism, is a recognition of change. What transformation in social relations
did the Constitution seek to achieve? What vision of society does the Constitution
envisage? The answer to these questions lies in the recognition of the individual as the
basic unit of the Constitution. This view demands that existing structures and laws be
viewed from the prism of individual dignity. "………" The individual, as the basic
unit, is at the heart of the Constitution. All rights and guarantees of the Constitution
are operationalized and are aimed towards the self-realization of the individual. This
makes the anti-exclusion principle firmly rooted in the transformative vision of the
Constitution, and at the heart of judicial enquiry. Irrespective of the source from
which a practice claims legitimacy, this principle enjoins the Court to deny protection
to practices that detract from the constitutional vision of an equal citizenship.
"………" The decision in Narasu, in restricting the definition of the term ‘laws in
force’ detracts from the transformative vision of the Constitution. Carving out
‘custom or usage’ from constitutional scrutiny, denies the constitutional vision of
ensuring the primacy of individual dignity. "……….." The Constitution seeks to
achieve a transformed society based on equality and justice to those who are victims
of traditional belief systems founded in graded inequality. It reflects a guarantee to
protect the dignity of all individuals who have faced systematic discrimination,
prejudice and social exclusion. Construed in this context, the prohibition against
untouchability marks a powerful guarantee to remedy the stigmatization and exclusion
of individuals and groups based on hierarchies of the social structure. Notions of
purity and pollution have been employed to perpetuate discrimination and prejudice
against women. They have no place in a constitutional order. In acknowledging the
inalienable dignity and worth of every individual, these notions are prohibited by the
guarantee against untouchability and by the freedoms that underlie the Constitution.
In civic as in social life, women have been subjected to prejudice, stereotypes and
social exclusion. In religious life, exclusionary traditional customs assert a claim to
legitimacy which owes its origin to patriarchal structures. These forms of

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 discrimination are not mutually exclusive. The intersection of identities in social and
religious life produces a unique form of discrimination that denies women an equal
citizenship under the Constitution. Recognizing these forms of intersectional
discrimination is the first step towards extending constitutional protection against
discrimination attached to intersecting identities. "
Constitutional Morality: Chief Justice of India Dipak Misra said “The concept of
constitutional morality is not limited to the mere observance of the core
principles of constitutionalism as the magnitude and sweep of constitutional
morality is not confined to the provisions and literal text which a Constitution
contains, rather it embraces within itself virtues of a wide magnitude such as
that of ushering a pluralistic and inclusive society, while at the same time
adhering to the other principles of constitutionalism. It is further the result of
embodying constitutional morality that the values of constitutionalism trickle
down and percolate through the apparatus of the State for the betterment of
each and every individual citizen of the State.

Cases
o Nine-Judge Bench case - Indra Sawhney v. Union of India, 1992 Supp (3)
SCC 217. The bone of contention in this landmark judgment was the Mandal
Commission Report of 1980, which was laid before Parliament on two
occasions – once in 1982, and again in 1983. However, no action was taken on
the basis of this Report until 13.08.1990, when an Office Memorandum stated
that after considering the said Report, 27% of the vacancies in civil posts and
services under the Government of India shall be reserved for the Socially and
Economically Backward Classes. This was followed by an Office
Memorandum of 25.09.1991, by which, within the 27% of vacancies,
preference was to be given to candidates belonging to the poorer sections of
the Socially and Economically Backward Classes; and 10% vacancies were to
be reserved for Other Economically Backward Sections who were not covered
by any of the existing schemes of reservation. The majority judgments

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 upheld the reservation of 27% in favour of backward classes, and the
further sub-division of more backward within the backward classes who
were to be given preference, but struck down the reservation of 10% in
favour of Other Economically Backward categories. In arriving at this
decision, the judgment of Jeevan Reddy, J., referred to and contrasted Article
16(4) with Article 15(4), and stated that when Article 16(4) refers to a
backward class of citizens, it refers primarily to social backwardness (See
paragraph 774). Scheduled Castes and Scheduled Tribes, not being the subject
matter before the Court, were kept aside as follows: ―781. At the outset, we
may state that for the purpose of this discussion, we keep aside the
Scheduled Tribes and Scheduled Castes (since they are admittedly
included within the backward classes), except to remark that backward
classes contemplated by Article 16(4) do comprise some castes — for it
cannot be denied that Scheduled Castes include quite a few castes.‖ In
dealing with the creamy layer concept insofar as it is applicable to
backward classes, the last sentence of paragraph 792 also states: ―792.
…… (This discussion is confined to Other Backward Classes only and has
no relevance in the case of Scheduled Tribes and Scheduled Castes).‖
o This conflict of decisions was resolved by a Constitution Bench in Ajit Singh
v State of Punjab (1999) 7 SCC 209 (“Ajit Singh II”). The Constitution Bench
held that Article 16 (4A) is only an enabling provision for reservation in
promotion. In consequence, roster point promotees belonging to the reserved
categories could not count their seniority in the promoted category from the
date of continuance officiation in the promoted post in relation to general
category candidates who were senior to them in the lower category and who
were promoted later. Where a senior general candidate at the lower level is
promoted later than a reserved category candidate, but before the further
promotion of the latter, such a person will have to be treated as senior at the
promotional level in relation to the reserved candidate who was promoted
earlier. The Constitution Bench accordingly applied the catch-up rule for
determining the seniority of roster point promotees vis-à-vis general category
candidates. The Court held that any circular, order or rule that was issued to
confer seniority to roster point promotees would be invalid. However, the
Constitution Bench directed that candidates who were promoted contrary to

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 the above principles of law before 1 March 1999 (the date of the decision in
Ajit Singh I) need not be reverted.

o CONSEQUENTIAL SENIORITY WAS ENACTED BY THE

PARLIAMENT 85TH AMENDMENT 2001- ARTICLE 16-4A- IT
NEGATED CATCH UP RULE.

o M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71- 77th
Constitution amendment (Art 16(4 A) & (16 4B), 85th Constitutional
amendment inserting Art 16 (4)(A) (Consequential Seniority) and 82nd
Amendment Act inserting a proviso at the end of Art 335 were held
constitutional. ……. The Constitution Bench held that Article 16 (4A) is an
enabling provision. The state is not bound to make reservations for the SCs
and STs in promotions. But, if it seeks to do so, it must collect quantifiable
data on three facets: (i) The backwardness of the class; (ii) The inadequacy
of the representation of that class in public employment; and (iii) The
general efficiency of service as mandated by Article 335 would not be
effected…… The principles governing this approach emerge from the
following extracts from the decision: “107. …If the State has quantifiable data
to show backwardness and inadequacy then the State can make reservations in
promotions keeping in mind maintenance of efficiency which is held to be a
constitutional limitation on the discretion of the State in making reservation as
indicated by Article 335. As stated above, the concepts of efficiency,
backwardness, inadequacy of representation are required to be identified and
measured…39 … 117… in each case the Court has got to be satisfied that the
State has exercised its opinion in making reservations in promotions for SCs
and STs and for which the State concerned will have to place before the Court
the requisite quantifiable data in each case and satisfy the Court that such
reservations became necessary on account of inadequacy of representation of
SCs/STs in a particular class or classes of posts without affecting general
efficiency of service as mandated under Article 335 of the Constitution.40 …
123. … In this regard the State concerned will have to show in each case the
existence of the compelling reasons, namely, backwardness, inadequacy of

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 representation and overall administrative efficiency before making provision
for reservation. As stated above, the impugned provision is an enabling
provision. The State is not bound to make reservation for SCs/STs in matters
of promotions. However, if they wish to exercise their discretion and make
such provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation of that class in
public employment in addition to compliance with Article 335. It is made
clear that even if the State has compelling reasons, as stated above, the State
will have to see that its reservation provision does not lead to excessiveness so
as to breach the ceiling limit of 50% or obliterate the creamy layer or extend
the reservation indefinitely.”41 The Constitution Bench held that the
constitutional amendments do not abrogate the fundamentals of equality:
“110…the boundaries of the width of the power, namely, the ceiling limit of
50% (the numerical benchmark), the principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of representation and the overall
administrative efficiency are not obliterated by the impugned amendments. At
the appropriate time, we have to consider the law as enacted by various States
providing for reservation if challenged. At that time we have to see whether
limitations on the exercise of power are violated. The State is free to exercise
its discretion of providing for reservation subject to limitation, namely, that
there must exist compelling reasons of backwardness, inadequacy of
representation in a class of post(s) keeping in mind the overall administrative
efficiency. It is made clear that even if the State has reasons to make
reservation, as stated above, if the impugned law violates any of the above
substantive limits on the width of the power the same would be liable to be set
aside.”
o
o In Jarnail Singh v Lachhmi Narain Gupta, 2018 (10) SCC 396, (“Jarnail”) a
Constitution Bench of the Supreme Court considered whether the decision in
Nagaraj requires to be referred to a larger Bench since: (i) It requires the state
to collect quantifiable data showing backwardness of the SCs and STs
contrary to the nine judge Bench decision in Indra Sawhney; (ii) The creamy
layer principle was not applied to SCs and STs in Indra Sawhney; and (iii) In

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applying the creamy layer principle, Nagaraj conflicts with the decision in E V
Chinnaiah v State of AP(“Chinnaiah”) (2005) 1 SCC 394. In Jarnail Singh v
Lachhmi Narain Gupta, 2018 (10) SCC 396, the Constitution Bench held that :
(i) The decision in Chinnaiah holds, in essence, that a state law51 cannot
further sub-divide the SCs into sub categories. Such an exercise would be
violative of Article 341(2) since only an Act of Parliament and not the state
legislatures can make changes in the Presidential list. Chinnaiah did not dwell
on any aspect on which the constitutional amendments were upheld in
Nagaraj. Hence, it was not necessary for Nagaraj to advert to the decision in
Chinnaiah. Chinnaiah dealt with a completely different problem and not with
the constitutional amendments, which were dealt with in Nagaraj52; (ii) The
decision of the Constitution Bench in Nagaraj, insofar as it requires the state to
collect quantifiable data on backwardness in relation to the SCs and STs is
contrary to Indra Sawhney and would have to be declared to be bad on this
ground; and (iii) Constitutional courts, when applying the principle of
reservation will be within their jurisdiction to exclude the creamy layer on a
harmonious construction on Articles 14 and 16 along with Articles 341 and
34254. The creamy layer principle is an essential aspect of the equality code.
The Supreme Court held: “We do not think it necessary to go into whether
Parliament may or may not exclude the creamy layer from the Presidential
Lists contained under Articles 341 and 342. Even on the assumption that
Articles 341 and 342 empower Parliament to exclude the creamy layer from
the groups or sub-groups contained within these Lists, it is clear that
Constitutional Courts, applying Articles 14 and 16 of the Constitution to
exclude the creamy layer cannot be said to be thwarted in this exercise by the
fact that persons stated to be within a particular group or subgroup in the
Presidential List may be kept out by Parliament on application of the creamy
layer principle. One of the most important principles that has been frequently
applied in constitutional law is the doctrine of harmonious interpretation.
When Articles 14 and 16 are harmoniously interpreted along with other
Articles 341 and 342, it is clear that Parliament will have complete freedom to
include or exclude persons from the Presidential Lists based on relevant
factors. Similarly, Constitutional Courts, when applying the principle of
reservation, will be well within their jurisdiction to exclude the creamy layer

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 from such groups or sub-groups when applying the principles of equality
under Articles 14 and 16 of the Constitution of India. We do not agree with
Balakrishnan, C.J.’s statement in Ashoka Kumar Thakur (supra) that the
creamy layer principle is merely a principle of identification and not a
principle of equality………… Therefore, when Nagaraj (supra) applied the
creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of
application of the basic structure test to uphold the constitutional amendments
leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere
with Parliament’s power under Article 341 or Article 342. We are, therefore,
clearly of the opinion that this part of the judgment does not need to be
revisited, and consequently, there is no need to refer Nagaraj to a seven-Judge
Bench. ”
Module-III
 Right to Life and Personal Liberty (Article 21) and Right to Free and
Compulsory Education (Article 21A)
Recommended Readings:
o Book titled “Constitutional And Administrative Law” by Hilaire Barnett,
Fourth Edition, Cavendish Publishing Limited, London, (2002)- Part VI
“Individual & the State: Protection of Human Rights” relevant pages 591-716.
o Book titled “Constitutional and Administrative Law,” by John Alder, Eight
Edition, (2011). Relevant pages 437-548.
o Routledge Handbook of Constitutional Law, (2013) Edited by Mark Tushnet,
Thomas Fleiner and Cheryl Saunders includes article titled “Procedural
fairness generally” by Sophie Boyron and Wendy Lacey
o S.P. Sathe, ‘Judicial Activism: The Indian Experience’ (2001) Vol. 6:29
Journal of Law & Policy 29, 40 available at
http://law.wustl.edu/journal/6/p_29_sathe.pdf
o Routledge Handbook of Constitutional Law, (2013) Edited by Mark Tushnet,
Thomas Fleiner and Cheryl Saunders includes article titled “‘Human dignity’
as a constitutional doctrine” by Margit Cohn and Dieter Grimm
o Neomi Rao, Three Concepts of Dignity in Constitutional Law, 86 Notre Dame
L. Rev. 183 (2013). Available at:
http://scholarship.law.nd.edu/ndlr/vol86/iss1/4

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 o Book entitled “Making Constitutional Law: Thurgood Marshall and the
Supreme Court, 1961-1991” by Mark V. Tushnet--Chapter 4 “Unless Our
Children Begins to Learn Together”: Desegregating the Schools, pp. 68-93
Cases:
Right to life and Personal liberty
o The State is obliged to protect fundamental right to life and personal liberty of every
person including a non-citizen. Chairman, Railway Board v Chandrima Das 1
o The term ‘life’, as Mr. Justice Field explained in Munn v Illinois,2 is very wide and, is
more than mere animal existence. In Allgeyer v Louisiana,3 the United States Supreme
Court observed that the term ‘liberty’ in the Fourteenth Amendment means not only
freedom from mere physical restraint….
o In Meyer v Nebraska, 4 the United States Supreme Court ‘liberty’ …to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men.
o The Supreme Court of India in Francis Coralie Mullin v Union Territory of Delhi5
observed that Right to life includes the right to live with human dignity and right to
enjoy other basic necessities of life
o In Kharak Singh v State of UP,6 the Supreme Court of India held that the term
‘personal liberty’ under Article 21 of the Indian Constitution included not only mere
freedom from physical restraint but all other aspects of liberty not covered by Article
19 of the Indian Constitution.
o Supreme Court in Maneka Gandhi v Union of India7 said that any ‘procedure
established by law’ for limiting life and personal liberty under Article 21 should be
reasonable, fair and just.
o The Supreme Court of India in Kartar Singh v State of Punjab,8 held that such
procedure under Article 21 should fulfill the requirements of the principles of natural
justice which is ‘fair play in action’.9

1
AIR 2000 SC 988
2
94 U.S. 113 (1876).
3
165 U.S. 578 (1897).
4
262 U.S. 390 (1923) (McReynolds, J.).
5
AIR 1981 SC 746.
6
AIR 1963 SC 1295.
7
AIR 1978 SC 597.
8
(1994) 3 SCC 569.
9
ibid. 671.

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Right to Food, Clothing and Housing
o In Shantistar Builders v Narayan Khimalal Totame,10 the Supreme Court held that
basic needs of man have traditionally been accepted to be three –food, clothing and
shelter.
o In People’s Union for Civil Liberties v Union of India,11 writ Petition (Civil) No. 196
of 2001 the court passed number of interim orders directing the government to
provide food to the needy persons including aged, infirm, disabled, destitute women,
children, etc.
Rights of the Accused Persons/prisoners’ rights
o D.K Basu v State of West Bengal, (1997) 1 SCC 416- Rights of the arrested persons

o Selvi v State of Karnataka AIR 2010 SC 1974- Recognition to Mental Privacy

o Nilabati Bahera v State of Orissa (1993) Cri. LJ 2899- Compensation to victims of

abuse of process

o Sunil Batra v Delhi Administration, (1978) 4 SCC 494

o Prem Shanker Shukla v Delhi Administration, AIR 1980 SC 1535- Handcuffing is

unreasonable

o Sunil Batra (I) v Delhi administration AIR 1978 SC 1675- Solitary confinement is
unjust, unfair and unreasonable

o M.H.Hoskot v. State of Maharashtra, AIR 1978 SC 1548- Legal representation to the

prisoners

o The Supreme Court in R. Rajagopal v. State of Tamil Nadu12 held that an individual
has a right to publish facts about a prisoner’s life insofar as they appear from the
public records. And this can be done even without the prisoner’s consent. But if
someone publishes beyond the public records, he or she violates the prisoner’s right to
privacy.

o Zahira Habibullah Sheikh v State of Gujarat, MANU/SC/1344/2006- fair trial.

10
(1990) 1 SCC 520
11
(2004) 12 SCC 108)
12
(1994) 6 SCC 632.

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 o In order to reduce the population of prisons in India, the Supreme Court of India in
Bhim Singh v. Union of India,13 has directed jurisdictional Magistrate/Chief Judicial
Magistrate/Sessions Judge to identify the under-trial prisoners who have completed
half period of the maximum sentence and release them immediately.

o Re - Inhuman Conditions In 1382 Prisons, In The Supreme Court Of India, Civil

Original Jurisdiction, Writ Petition (Civil) No.406/2013, decided on February 5, 2016,
available at <http://supremecourtofindia.nic.in/FileServer/2016-02-
05_1454655606.pdf>-Living in over-crowding prisons is a serious violation of
prisoner’s right to life and personal liberty.

o Brown v. Plata14- The United States Supreme Court held that overcrowding in prisons
is cruel and unusual punishment and hence, violation of the Eight Amendment to the
United States Constitution.

o The United Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules) 2015

Death Sentence and Article 21 of the Indian Constitution

o The Law Commission of India received a reference from the Supreme Court in
Santosh Kumar Satishbhushan Bariyar v. Maharashtra [(2009) 6 SCC 498] and
Shankar Kisanrao Khade v. Maharashtra [(2013) 5 SCC 546], to study the issue of
the death penalty in India to “allow for an up-to-date and informed discussion and
debate on the subject.” The recommendation of the Commission came in the form of
the Commission’s Report No.262 titled “The Death Penalty”.
o ‘Death Penalty India Report’ 2016 prepared by the Centre on the Death Penalty at
National Law University, Delhi.
o Jagmohan v State of U.P, AIR 1973 SC 947- The provisions relating to Death
sentence are not unconstitutional per se in India.
o Mithu v State of Punjab, AIR 1983 SC 473- the Supreme Court of India declared
mandatory death sentence provision as violative of Article 21 i.e. right to life and
personal liberty.

13
Writ Petition(s)(Criminal) No(s). 310 of 2005, Ordered on 05.09.2014, Supreme Court of India, available at
http://cja.gov.in/TJO/Writ%20Petition%20(Crl.)%20310%20of%202005%20%20IMP%20Judgment.PDF.
14
563 U.S. (2011).

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 o Bachan Singh v State of Punjab, (1980) 2 SCC 684- The Supreme Court of India said
that the death sentence should be awarded only in the rarest of rare cases.
o Shatrughan Chauhan v Union Of India, (2014) 3 SCC 1- An Inordinate delay in the
process of execution of death sentence is a mental torture for the death row convicts
and violation of right to life and personal liberty under Article 21.
o Mohd. Arif v. Registrar, Supreme Court of India and Others, (2014) 9 SCC 737- the
Constitution Bench of the Supreme Court has laid down that the review petition in a
case of death sentence shall be heard in the open court by giving an opportunity to the
review petitioner to make oral submissions, unlike other review petitions which are
decided by the Court by circulation in Chambers. Not only this, such a review petition
is to be heard by a Bench consisting of minimum three Judges.
o Shabnam v. Union of India, decided on May 27, 2015- The Supreme Court held that
death row convicts also have a right to dignity and execution of death sentence cannot
be carried out in a arbitrary, hurried and secret manner without allowing the convicts
to exhaust all legal remedies.

Environment Jurisprudence and Article 21

o The apex court of India applied the doctrine of ‘Sustainable Development’ in Vellore
Citizen Welfare Forum v Union of India.15
o In Rural Litigation and Entitlement Kendra Dehradun v. State of Uttar Pradesh,16 the
Supreme Court ordered to pay the compensation to the victims of environment
degradation.
o In Arjun Gopal v Union of India,17 the Supreme Court acknowledged the fact that the
grim situation of air quality adversely affected the right to education, work, health and
ultimately, the right to life of the citizens. Considering the firecrackers responsible for
the rise in pollution to extreme levels, the Supreme Court directed the Central
Government to suspend all licences permitting sale of fireworks, wholesale or retail,
within territory of NCR till further orders.
Road safety measures saves life of the people.
o The Supreme Court in State of Tamil Nadu represented by its Secretary, Home,
Prohibition and Excise Department v K.Balu18 concluded that there is no justification
15
AIR 1996 SC 2715.
16
AIR 1989 SC 594.
17
(2017) 1 SCC 412.
18
(2017) 2 SCC 281

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 to allow liquor vends on state highways (while prohibiting them on national
highways) having due regard to drunken driving being one of the significant causes of
road accidents in India. Hence, the court directed the governments to stop the grant of
licences for the sale of liquor along national and state highways and over a distance of
500 metres from the outer edge of the highway or a service lane alongside.
o The Supreme Court clarified on March 31, 2017 in the case of State of Tamil Nadu
represented by Secretary v K. Balu19 that the ban extends not just to retail liquor
outlets but also to bars, pubs and restaurants located on highways.
Right to Education
o Bandhua Mukti Morcha v Union of India,20 - right to life under Article 21 of the
Indian Constitution includes right to education.
o Mohini Jain v State of Karnataka21- fundamental right to education should be
enforced at all levels of the education system- right to education helps an individual to
live a dignified life.22
o J.P. Unnikrishnan v State of A.P23 - Right to education under Articles 45 and 41
means every child up to the age of fourteen years has a right to free education. But
after completing the age of 14 years, his right to education becomes subject to the
economic capacity of the State.
o In 2002, 86th Constitutional Amendment Act inserted three new provisions i.e. Article
21A, new Article 45 and 51-A(k) into the Indian Constitution. Article 21A provides
right to free and compulsory education to those citizens who are in the age group of 6
to 14 years. New Article 45 is for the children below the age of 6 years. In pursuance
of Article 21A, Right of Children to Free and Compulsory Education Act, 2009 was
passed. The new legislation enforces fundamental right to education to children in the
age group of 6 to 14 years in India. The Act provides that every child who is of the
age of six to fourteen years will be entitled to get free and compulsory elementary
education.
o Un-aided Private Schools of Rajasthan v. Union of India & anr., (2012) 6 SCC 102

19
Civil Appeal Nos 12164-12166 OF 2016, in the Supreme Court Of India, Civil Appellate Jurisdiction,
decided on March 31, 2017, available at < http://supremecourtofindia.nic.in/FileServer/2017-03-
31_1490967488.pdf > accessed 01 April 2017
20
AIR 1984 SC 802.
21
AIR 1992 SC 1858.
22
ibid. 1864.
23
AIR 1993 SC 2178.

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 o Pramati Educational & Cultural Trust &Ors. v. Union of India &Ors., (2014) 8 SCC
1
Right to Privacy
o Dr. Babasaheb Ambedkar’s Memo on F.R. (Mar. 1947), “The right of the people to be
secure in their persons, houses, papers and effects against unreasonable searches and
sezures, shall not be violated and no warrants shall issue, but upon probable cause,
supported by oath of affirmation, and particularly describing the place to be searched,
and the persons or things seized.” Available at
http://cic.gov.in/sites/default/files/2012/R2Privacy-Venkatesh.pdf
o Book entitled, Privacy and Freedom, by Alan F. Westin (whole book is relevant to
understand the concept and significance of privacy) (1967). Relevant pages 7-10 and
32-42. According to Alan F. Westin , the functions of privacy in democratic societies
can be grouped under the following headings: (a) personal autonomy (b) Emotional
release (c) Self-evaluation and (d) Limited and Protected communication. Alan F.
Westin defines Privacy as the claim of individuals, groups, or institutions to determine
for themselves when, how, and to what extent information about them is
communicated to others.
o Book entitled, The Digital Person, by Daniel J. Solove (2004). P.177- government’s
extensive collection of personal information interferes with an individual’s freedom of
association, right to speak freely, right to speak anonymously, etc.
o Article Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard
Law Review, Vol. 4, No. 5 (Dec. 15, 1890), pp. 193-220, at 196. Available at
http://www.jstor.org/stable/1321160
o Article entitled “The Dangers Of Surveillance” by Neil M. Richards, Harvard Law
Review, Vol. 126, No. 7 (MAY 2013), pp. 1934-1965- Blackmail, Persuasion,
Sorting/Discrimination are the dangers of surveillance.
o Article entitled, “A Litmus Test: Supreme Court must interpret Constitution in a
manner that ensures right to privacy,” Prof. Faizan Mustafa, The Indian Express, July
24, 2017, available at http://indianexpress.com/article/opinion/columns/a-litmus-test-
constitution-right-to-privacy-4764072/
o Olmstead v. U.S.,24 - Dissenting opinion of Justice Louis Brandeis is important- said
that the Constitution makers intended to provide valuable protection to the right to be

24
277 U.S. 438, 478 (1928).

15
 let alone- Justice Brandeis said that the Framers of the Constitution ‘conferred, as
against the government, the right to be let alone-the most comprehensive of rights and
the right most valued by civilized men.’25
o In Katz v. United States,26 the United States Supreme Court adopted Brandeis’s
dissenting view, and overruled its earlier judgment delivered in Olmstead v. United
States. The court refused to rely on the trespass doctrine of Olmstead. An intangible
intrusion is also a search within the meaning of the Fourth Amendment.
o Griswold v. Connecticut, 381 U.S. 47 (1965)- U.S. Supreme Court invalidated the
Connecticut law barring the use of any drug or instrument for contraceptive purposes.
o In Roe v. Wade27, the court struck down a Texas statute which prohibited almost all
abortions. The court’s decision was based on the assumption that the right to abortion
was part of a right of personal privacy.
o Loving v. Virginia28 recognized the fundamental right to marriage in the United
States. It invalidated the laws prohibiting inter-racial marriages. The court said, “The
Fourteenth Amendment requires that the freedom of choice to marry not be restricted
by invidious racial discriminations. Under our Constitution, the freedom to marry, or
not marry, a person of another race resides with the individual, and cannot be
infringed by the State.”29
o Stanley v. Georgia30 ruled that the First and Fourteenth Amendments of the United
States Constitution prohibit the government from criminalizing the mere possession of
obscene material if the material is held privately. The Court said, “the States retain
broad power to regulate obscenity; that power simply does not extend to mere
possession by the individual in the privacy of his own home.”31
o Riley v California32 ruled that a warrantless search of a cell phone violates the Fourth
Amendment, even when it occurs during a lawful arrest. The court said that the
mobile phone is a private document which possesses an individual’s sensitive
personal information.

25
Id., at 478
26
389 U.S. 347 (1967).
27
410 U.S. 113 (1973).
28
388 U.S. 1 (1967).
29
Id., at 13.
30
394 U.S. 557 (1969).
31
Id., at 568.
32
573 U.S. 1 (2014).

16
 o People’s Union for Civil Liberties v Union of India,33 - the Supreme Court recognized
an individual’s right to privacy against illegal wiretapping.
o Selvi v State of Karnataka34- the Supreme Court held that involuntary administration
of the psychological tests amounts to violation of one’s mental privacy.
o Re: Ramlila Maidan Incident Dt. 4/5.06.2011 v Home Secretary, Union of India and
others, decided on 23 February, 2012,- declared the police brutal action of beating the
sleeping protesters in the middle of night as violation of the protesters’ sleeping
privacy.
o “Supreme Court counters push for Aadhaar: Cannot make it mandatory for availing
welfare schemes’.” The Hindu, March 27, 2017, available at
http://www.thehindu.com/news/national/aadhaar-cannot-be-mandatory-for-welfare-
schemes-supreme-court/article17671381.ece- the Supreme Court said obtaining the
12-digit Unique Identification number, which requires the holder to part with his
personal bio-metric data, and using it to avail himself of government subsidy was a
voluntary exercise.
o Binoy Viswam v Union Of India, Writ Petition (Civil) NO. 247 OF 2017, decided on
June 09, 2017 (Division Bench)- Section 139AA is not violative of Article 19(1)(g) of
the Constitution insofar as it mandates giving of Aadhaar enrollment number for
applying PAN cards in the income tax returns or notified Aadhaar enrollment
number to the designated authorities.
o Writ Petition (Civil) No. 494 of 2012 is pending- whether right to privacy if
fundamental right or not?
Right to Die and Passive Euthanasia
o P. Rathinam v Union of India,35 for the first time, declared Section 309 of the Indian
Penal Code 1860 as unconstitutional. The court said that suicide or attempt to commit
it causes no harm to others.
o The larger bench of the Supreme Court in Smt Gian Kaur v State of Punjab,36
overruled P.Rathinam’s case and established that the ‘right to life’ does not include
‘right to die’.
o Aruna Ramchandra Shanbaug v Union of India, decided on 7 March, 2011- the
Supreme Court legalized passive euthanasia
33
AIR 1997 SC 568.
34
2010(4) SCALE 690.
35
AIR 1994 SC 1844.
36
AIR 1996 SC 946.

17
Right to Marry
o Lata Singh v State of Uttar Pradesh,37 - the right to marry comes within the ambit of
fundamental right to life under Article 21 of the Indian Constitution.
o Arumugam Servai v State of Tamil Nadu,38 - the institutions encouraging honour
killings are illegal.
o Bhagwan Dass v State (NCT of Delhi),39 - the perpetrators of so called ‘honour
killings’ deserve death punishment.
o S. Khusboo v. Kanniammal40 also, the court recognized the Live-in relationship which
is again a right of decisional privacy.
o Suresh Kumar Koushal v NAZ Foundation and others,41 - Section 377 IPC is not
unconstitutional. However, the court said that the competent legislature is free to
discuss on the deletion of Section 377.
Access to Justice is a Fundamental Right
o Imtiyaz Ahmad v State of Uttar Pradesh, AIR SC 2012 642- access to justice is a
fundamental right.
o Sunil Batra v Delhi Administration, (1978) 4 SCC 494 - epistolary jurisdiction-taken
suo motto actions on mere postal letters disclosing the human rights violations in
society.
o People’s Union for Democratic Rights v Union of India 42- public interest litigation is
intended to promote public interest- Public interest litigation has been invented to
bring justice to poor and socially or economically disadvantaged sections of the
society.
o Fertilizer Corporation Kamgar Union v Union of India,43- public interest litigation is
part of the participative justice.
o Bandhua Mukti Morcha v Union of India44 - the court has justified the public interest
litigation on the basis of “vast areas in our population of illiteracy and poverty, of

37
AIR 2006 SC 2522.
38
2011 STPL(Web) 403 SC 1.
39
(2011) 6 SCC 396.
40
Decided on 30.04.2008, available at http://indiankanoon.org/doc/761199/ accessed on March 12, 2013, at
2:00 p.m. IST.
41
Civil Appeal No.10972 Of 2013, decided on December 11, 2013
<http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070.> accessed 21 December 2013
42
(1982) 3 SCC 235
43
AIR 1981 SC 344
44
AIR 1984 SC 802

18
 social and economic backwardness, and of an insufficient awareness and appreciation
of individual and collective rights.”
o Sheela Barse v Union of India 45- “The compulsions for the judicial innovation of
the technique of a public interest action is the constitutional promise of a social
and economic transformation to usher-in an egalitarian social-order and a welfare-
State.”
o NALSA v Union of India AIR 2014 SC 1863- Transgender rights were recognised
Rights of the Victims
o Rudul Shah v State of Bihar AIR 1983 SC 1086
o Neelabati Bahera v. State of Orissa,46 the Supreme Court awarded compensation to
the mother of a young man who was beaten to death in police custody.
o D.K.Basu v. State of West Bengal,47
o Bhim Singh v State of J&K, AIR 1986 SC 494
o Delhi Domestic Working Women’s Forum v. Union of India 48- Supreme Court
directed the National Commission for Women to make an effective scheme in order to
rehabilitate the victims of rape.

 Protection of the Rights of the Arrested Persons under the Indian Constitution
(Article 22)
Recommended Readings:
o Derek P. Jinks, The Anatomy of an Institutionalized Emergency: Preventive
Detention and Personal Liberty in India, 22 Mich. J. Int'l L. 311 (2001).
Available at: http://repository.law.umich.edu/mjil/vol22/iss2/3
o Manoj Mate, “The Origins of Due Process in India: The Role of Borrowing in
Personal Liberty and Preventive Detention Cases,” 28 Berkeley J. Int’l Law.
216 (2010). Available at: http://scholarship.law.berkeley.edu/bjil/vol28/iss1/7
o “Notify law to check the excess of ‘preventive detention’” by Hemant Kumar-
The Morarji Desai government got dethroned before it could notify an
amendment to eliminate the provision of indefinite preventive detentions in
Article 22, much exploited during the Emergency. No subsequent govt. has

45
(1988) 4 SCC 226
46
1993 SCR (2) 581.
47
AIR 1997 SC 610.
48
(1995) 1 SCC 14.

19
 cared to notify it.- The Tribune, July 4, 2016, available at
http://www.tribuneindia.com/news/comment/notify-law-to-check-the-excess-
of-preventive-detention/260610.html
o “SC lays guidelines for preventive detention in custody” The Indian Express,
May 20 2012, available at http://archive.indianexpress.com/news/sc-lays-
guidelines-for-preventive-detention-in-custody/951621/
 Right Against Exploitation (Articles 23 and 24)
Recommended Readings:
o “Landmark Rulings of the Courts in India on Combating Human Trafficking”
By NATIONAL LEGAL RESEARCH DESK - October 15, 2013, available at
http://nlrd.org/landmark-rulings-of-the-courts-in-india-on-combatting-human-
trafficking-trafficking/
o People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235-
Forced Labour defined- Supreme Court said, “What Article 23 prohibits is
“forced labour” that is labour or service which a person is forced to provide
and “force” which would make such labour or service “forced labour” may
arise in several ways. It may be physical force which may compel a person to
provide labour or service to another or it may be force exerted through a legal
provision such as a provision for imprisonment or fine in case the employee
fails to provide labour or service or it may even be compulsion arising from
hunger and poverty, want and destitution. Any factor which deprives a person
of a choice of alternatives and compels him to adopt one particular course of
action may properly be regarded as “force” and if labour or service is
compelled as a result of such “force”, it would be “forced labour”……”
o Vishal Jeet v. Union of India, (1990) 3 SCC 318- Formation of Advisory
Committee ordered for all States and Union Government to Combat
Trafficking.
o Supreme Court appoints a Panel to monitor and Suggest Rehabilitation scheme
for Trafficked Sex Workers and Trafficked Victims. Budhadev Karmaskar v.
State of West Bengal, (2011) 11 SCC 538
o Guidelines for Inter Country adoptions laid down to check trafficking through
adoption rackets- Laxmi Kant Pandey v. Union of India, (1984) 2 SCC 244

20
 o Bachpan Bachao Andolan v. Union of India 2011 SCC (5) 1- Government
was directed by the Supreme Court to rehabilitate the children working in
circuses.
o Sampurna Behura v. Union of India, (2011) 9 SCC 801- Constitution of
Juvenile Justice Board and Child Welfare Committees.
 Freedom of Religion (Articles 25-28)
Recommended Readings:
o Article entitled “The Freedom Of Religion Under The Indian Constitution,” by
J. Patrocinio de Souza, The Indian Journal of Political Science, Vol. 13, No.
3/4 (July-September & October-December,1952), pp. 62-78, available at
http://www.jstor.org/stable/pdf/42743402.pdf?refreqid=search
%3Af683fec95c1796fa902274251d2979d5
o Ronojoy Sen, ‘Secularism and Religious Freedom’, in Sujit Choudhry,
Madhav Khosla and Pratap Bhanu Mehta (ed) Oxford Handbook of the Indian
Constitution (Oxford University Press 2016) 885
o Rajeev Bhargava, ‘India’s Secular Constitution’ in Zoya Hasan, E Sridharan
and R Sudarshan (eds) India’s Living Constitution: Idea, Practices and
Controversies (Permanent Black 2002) 117
o Shefali Jha, ‘Secularism in the Constituent Assembly Debates: 1946-50’
(2002) 37 (30) Economic and Political Weekly 3175
o Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life:
Religious Freedom, Minority Groups and Disadvantaged Communities’ in BN
Kirpal and others (eds) Supreme But Not Infallible: Essays in the Honour of
the Supreme Court of India (Oxford University Press 2000)
 Cultural and Educational Rights (Articles 29 & 30)
Recommended Readings:
o Routledge Handbook of Constitutional Law, (2013) Edited by Mark Tushnet,
Thomas Fleiner and Cheryl Saunders includes article entitled “Minority
rights” by Solomon Dersso and Francesco Palermo
o Article entitled “Minority Rights in Education: Reflections on Article 30 of
the Indian Constitution” by Ranu Jain, Economic and Political Weekly, Vol.
40, No. 24 (Jun. 11-17, 2005), pp. 2430-2437, available at

21
 http://www.jstor.org/stable/pdf/4416749.pdf?refreqid=search
%3Af683fec95c1796fa902274251d2979d5
o LIST OF CASES DECIDED BY THE SUPREME COURT OF INDIA ON
RIGHTS OF MINORITY EDUCATIONAL INSTITUTIONS is available at
http://www.dmipune.org/downloads/Minority%20Cases%20-%20Important
%20Judgements.pdf
o Un-aided Private Schools of Rajasthan v. Union of India & anr., (2012) 6
SCC 102
o Pramati Educational & Cultural Trust &Ors. v. Union of India &Ors., (2014)
8 SCC 1

Module-IV
 Constitutional Remedies for the Enforcement of Fundamental Rights (Article 32)
Recommended Readings:
o Baxi, Upendra (1985) “Taking Suffering Seriously: Social Action Litigation in
the Supreme Court of India,” Third World Legal Studies: Vol. 4, Article 6.
Available at: http://scholar.valpo.edu/twls/vol4/iss1/6
o Burt Neuborne, ‘The Supreme Court of India’ [2003] 1 International Journal
of Constitutional Law 476, available at
https://oup.silverchair-cdn.com/oup/backfile/Content_public/Journal/icon/
1/3/10.1093/icon/1.3.476/2/010476.pdf?
Expires=1501135953&Signature=RerNh5tIot1eENdBvwkyrOW4DNrgNakaa
OTR~xR1j2fo7PGCHJyLey3P8uQRdCR9n0kZLII0qGOagF-
QLqGSSj4KgQP1z8sTKN6mhmgPQHcRAcNutUVf4jy0O~onCb9DpCJKGXyi
Vo0ViIVPx2bGilYGXmvhgDSD9TP9mXhT3024xiCzU-
lfVIDWjltC3REKygdv8K8~NHp2lzcAwFjeFTxq6yIT-
cRacV8eFhuo~WgM4c9lPo5vsxKyU6skaM1ECNYy-
QsTIFWsWuNMsPBGhbvg-unVrEfRcdhW9Et9t-
u6QNfYb1oVkSVe115Pa9wUcyBkotcDtX2XdyovDj9LkA__&Key-Pair-
Id=APKAIUCZBIA4LVPAVW3Q

22
 o Routledge Handbook of Constitutional Law, (2013) Edited by Mark Tushnet,
Thomas Fleiner and Cheryl Saunders includes article entitled “The judiciary
and constitutional review” by Albert HY Chen and Miguel Poiares Maduro
o Routledge Handbook of Constitutional Law, (2013) Edited by Mark Tushnet,
Thomas Fleiner and Cheryl Saunders includes article titled “Justiciability” by
Mark Tushnet and Juan F González-Bertomeu
 Directive Principles and Fundamental Duties (Articles 36-51 and 51-A)
Recommended Readings:
o Article by Gautam Bhatia, “Directive Principles of State Policy,” in Sujit
Choudhry et. al. (eds.), The Oxford Handbook Of The Indian Constitution,
(2016) Oxford University Press.
o State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors., decided on
26/10/2005. (2005) 8 SCC 534 (Judges: CJI R.C. LAHOTI,B.N.
AGRAWAL,ARUN KUMAR G.P. MATHUR C.K. THAKKER P.K.
BALASUBRAMANYAN)- The Supreme Court upheld the constitutional
validity of a Gujarat law imposing a complete ban on slaughtering of bulls and
bullocks.
o “India Supreme Court suspends cattle slaughter ban”- India’s Supreme Court
has suspended a law that would have banned the sale of cattle for slaughter
nationwide. Available at http://www.bbc.com/news/world-asia-india-
40565457
o Shyam Narayan Chouskey v Union of India, Supreme Court Order dated
November 30, 2016- the Supreme Court ordered cinema halls to mandatorily
play the anthem and had directed all those present there to stand up to show
respect…. “Time has come for people to realise that the national anthem is a
symbol of constitutional patriotism…people must feel they live in a nation and
this individually perceived notion of freedom must go…people must feel this
is my country, my motherland” SC bench headed by Justice Dipak Misra-----
On December 9, 2016, the Supreme Court first modified its November 30
order by exempting physically challenged or handicapped persons from
standing up when the National Anthem is played before film screenings.-- The
Supreme Court issued second clarification on February 14, 2017, directing all

23
 to mandatorily stand up when the National Anthem is sung or played in a
cinema theatre.

 Judicial Appointments and Removal of Judges in Higher Judiciary (Articles 124

and 217)
Recommended Readings:
o Article entitled “Judicial Independence” at p. 15 by Judith Resnik in Vikram
David Amar and Mark V. Tushnet (eds.) Global Perspectives On
Constitutional Law
o Article by Prof. Upendra Baxi, “Judge Not Too Harshly,” in Outlook
Magazine 19 September, 2016 available at
https://www.outlookindia.com/magazine/story/judge-not-too-harshly/297830
Cases
o S. P. Gupta v Union of India,49 also known as First Judges case
o Supreme Court Advocates-on-Record Association v Union of India 50 (‘The
Second Judges’ Case) overruled The First Judges’ Case and evolved a
collegiums system for the purpose of judicial appointments.
o In Re: Presidential Reference51 or the Third Judges Case, the Supreme Court
laid down a process in which it was said that the CJI should consult with a
plurality of four senior-most Supreme Court judges to form his opinion on
judicial appointments and transfers.
o On October 16, 2015 the Constitution Bench of Supreme Court in Supreme
Court Advocates-on-Record-Association v Union of India,52 in a majority of
4:1 declared the NJAC Act and the Constitutional Amendment
unconstitutional as violating judicial independence. Justice J.S. Khehar, the
presiding judge on the five-judge Constitution Bench, explained in his
individual judgment, “It is difficult to hold that the wisdom of appointment of
judges can be shared with the political-executive. In India, the organic
development of civil society, has not as yet sufficiently evolved. The
expectation from the judiciary, to safeguard the rights of the citizens of this

49
AIR 1982 SC 149.
50
(1993) 4 SCC 441.
51
AIR 1999 SC 1.
52
IN THE SUPREME COURT OF INDIA, CIVIL ORIGINAL JURISDICTION, WRIT PETITION (CIVIL)
NO. 13 OF 2015, <http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444997560.pdf>

24
 country, can only be ensured, by keeping it absolutely insulated and
independent, from the other organs of governance.”
o In March 2017, a newspaper named as Times of India reported that the
collegium, headed by Chief Justice J S Khehar and comprising Justices Dipak
Misra, J Chelameswar, Ranjan Gogoi and Madan B Lokur agreed to the
contentious national security clause i.e. “national security” ought to be part of
the criteria to determine eligibility for appointment as judges. The collegium
agreed with the Centre on the national security clause on the condition that
specific reasons for application of the clause were recorded. In another
breakthrough, as the newspaper reported, the apex court collegium dropped its
reservation about setting up secretariats in the Supreme Court and each high
court to maintain databases on judges and assist the collegiums in the Supreme
Court and the high courts in selection of judges.
o Currently, the government has no role in the cases of complaints related to
corruption or misbehaviour as such complaints are referred to the Chief Justice
of India. Supreme Court or High Court does not have any formal system to
investigate allegations of corruption or impropriety against a judge.
Intelligence Bureau tracks credentials of a person who is to be appointed a
judge. As of now, a judge cannot be investigated by any agency of the
government.53
o However, the court follows “in-house procedure” in this regard. Recently, the
Supreme Court has re-notified the Report of the committee on in-House
procedure that had been developed in 1999 in order to deal with allegations of
misdemeanor against Judges, including accusations of sexual harassment
against Judges of Supreme Court and High Courts. According to this In-house
procedure, when a complaint is received against a Judge of the High Court, by
the Chief Justice of the High Court, he shall first examine it himself. If it is
found by him that it is frivolous or directly related to the merits of a
substantive decision in a judicial matter or does not involve any serious
complaint of misconduct or impropriety, he shall file the complaint and inform
the CJI accordingly. If however, it is found by him that that the complaint is of
a serious nature, involving misconduct or impropriety, he shall ask for the

53
Pradeep Thakur, “Judicial accountability bill hits National Judicial Appointments Commission roadblock,”
The Times of India, Feb 21, 2015.

25
 response thereto of the concerned Judge. If on a consideration of the
allegations in the complaint, in the light of the response of the concerned
Judge, the Chief Justice of the High Court is satisfied that no further action is
necessary, he shall file the complaint and inform the CJI accordingly. Further,
if the Chief Justice of the High Court is of the opinion that the allegations
contained in the complaint need a deeper probe, he shall forward to the CJI,
the complaint and the response of the Judge concerned along with his
comments. In Additional District and Sessions Judge ‘X’ v Registrar General,
High Court of Madhya Pradesh and others,54 the apex Court directed the
Registry to upload the in-house mechanism in public domain on the website,
in order to reinstate the mechanism and bring in transparency into the entire
process.

 Jurisdiction of the Supreme Court and High Courts (Articles 131-143 and 226-
231)
Recommended Readings:
o Book entitled, The Judge In A Democracy, by Aharon Barak (2008) Princeton
University Press, Read Chapter 2 (Protecting the Constitution & Democracy
pp. 20-98), Chapter 13 (Relationship between the Judiciary and & the
Legislature pp. 226-236), Chapter 14 (Relationship between the judiciary &
executive pp. 241-254), and Chapter 15 (Activism & Self-Restraint pp. 263-
279)
o Book by S.P. Sathe, Judicial Activism in India (Sixth Indian Impression, OUP
2010)

 Provisions Relating to Emergency (Articles 352-360)

Recommended Readings:
o “Emergency powers” by Victor V Ramraj and Menaka Guruswamy in
Routledge Handbook of Constitutional Law, (2013) Edited by Mark Tushnet,
Thomas Fleiner and Cheryl Saunders

54
In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No. 792 OF 2014, decided on
December 18, 2014, < http://supremecourtofindia.nic.in/FileServer/2014-12-18_1418904101.pdf>

26
o Article by Rahul Sagar, “Emergency Powers,” in Sujit Choudhry et. al. (eds.),
The Oxford Handbook Of The Indian Constitution, (2016) Oxford University
Press.

27