INDIAN CONSTITUTION-2

CONSTITUTION

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SUMMARY OF FUNDAMENTAL RIGHTS

12 - Definition of State
13 - Laws in Force and Framing of Law
14 - Equality before law to all persons
15(1) - Non-discrimination by State against any citizen
15(2) - Non-discrimination by others regarding public places against any citizen
16 - Equality of opportunity in matters of public employment for citizens
17 - Abolition of Untouchability
18 - Abolition of titles
19 - Freedom of Speech, etc to all citizens
20 - Protection in respect of conviction for offences to all persons
21 - Right to Life and Liberty of all persons
21A - Right to education to children
22 - Protection against arrest and detention to all persons
23 - Prohibition of traffic in human beings and forced labour
24 - Prohibition of employment of children in factories, etc
25 - Freedom of conscience & religion to all persons
26 - Freedom to manage religious affairs to religious denomination or any section
27 - Freedom from payment of taxes for promotion of any religion for all persons
28 - Freedom as to attendance at religious instruction
29 - Protection of interests of minorities
30 - Right of minorities to establish and administer educational institutions
31A - Saving of laws providing for acquisition of estates
31B - Validation of certain Acts and Regulations placed in ninth schedule
31C - Saving of laws giving effect to certain directive principles
32 - Remedies for enforcement of fundamental rights
33 - Parliament to modify the fundamental rights in their application to Forces
34 - Restriction on fundamental rights while martial law is in force in any area
35 - Legislation to give effect to the provisions of this Part III

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SUMMARY OF DPSP
36. Definition of State same as Part III
37. Application of the principles
38. Social order for the promotion of welfare of the people,
minimise income inequlities,
eliminate inequalities in status, facilities and opportunities
39 (a) Adequate means of livelihood
(b) distribution of ownership and control of the material resources
(c) No concentration of wealth and means of production
(d) equal pay for equal work
(e) Health and strength not abused
(f) Opportunities and facilities for children
39A. Equal justice and free legal aid
40. Organisation of village panchayats
41. Right to work, education & public assistance for unemployed, old, sick, disabled
42. Provision for just and humane conditions of work and maternity relief
43. Living wage, etc., for workers to ensure decent standard of living
43A. Participation of workers in management of industries
43B. Promotion of co-operative societies
44. Uniform civil code for the citizens
45. Provision for early childhood care and education to children
46. Promotion of educational and economic interests
47. Duty of the State to raise the level of nutrition and the standard of living
48. Organisation of agriculture and animal husbandry, prohibition of cow slaughter
48A. Protection of environment and safeguarding of forests and wild life
49. Protection of monuments and places and objects of national importance
50. Separation of judiciary from executive
51. Promotion of international peace and security

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CASES
In Excel Wear v. Union of India, the SC considered the effect of the word ‘socialist’
in the Preamble. SC held that the word “Socialist” might enable the courts to lean
more in favor of nationalization and state ownership of an industry. However,
principles of socialism and social justice cannot be pushed to such an extent so as to
ignore the interests of other section of the public namely the private owners of
undertakings.

STATE U/A 12
In Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held that the
expression ‘other authorities’ is wide enough to include all authorities created by the
Constitution or statute on whom powers are conferred by law. It is not necessary that
the statutory authority should be engaged in performing governmental or sovereign
function.
Unaided private schools over which the Government has no administrative control are
not “State” within the meaning of article 12; Salimbla Sharma v. St. Paul’s Senior
Secondary School, 2011 SC.

LAW U/A 13
Doctrine of Severability - In the case of AK Gopalan, SC held that if a part of law is
invalid, it does not affect remaining provisions of the act.
Doctrine of Eclipse - In the case of Bhikji v State of MP, SC held that any existing
law inconsistent with constitution is not invalid but remains eclipsed. The eclipse can
be removed by constitutional amendment.
Doctrine of Eclipse does not apply to laws made after constitution came into effect. In
case of Deep Chand v State of UP, SC held that such law would be still born and void
ab initio.
In Ambica Mills Ltd v State of Gujarat, SC held that post constitutional law is void
because it infringes rights of citizen then that does not mean it is void for non-citizens
as well.

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Doctrine of Waiver - In Bashesher Nath v CIT, SC held that unlike American

Constitution, it is not open for Indian Citizen to waive his fundamental rights.
Doctrine of Lifting of Veil - In case of State of Tamil Nadu v R Shyam Sunder, the
SC held that to test constitutional validity of the Act, the SC ascertain the true nature
and character of Act for which it may consider all factors such as history of the
legislation, purpose, surrounding circumstances, mischief it intended to address, the
remedy, etc.
In case of State of Tamil Nadu v R Shyam Sunder, the SC held that if amending act is
struck down, old law will revive.
Article 13(2) clearly prohibits the making of any law by the State which takes away or
abridges rights, conferred by Part III of the Constitution. In the event of such a law
being made the same shall be void to the extent of contravention; State of Punjab v.
Dalbir Singh, 2012 (SC).
The fundamental rights, enshrined in Part III of the Constitution, are inherent and
cannot be extinguished by any constitutional or statutory provision. Any law that
abrogates or abridges such rights would be violative of the basic structure doctrine;
State of West Bengal v. Committee for Protection of Democratic Rights 2010 SC.

EQUALITY BEFORE LAW U/A 14

Concept of equality is a positive concept. Court can command the State to give equal
treatment to similarly situated persons but cannot issue a mandate that the State should
commit illegality or pass wrong order because in another case such an illegality has
been committed or wrong order has been passed. Article 14 cannot be invoked for
perpetuating irregularities or illegalities, Usha Mehta v Government of Andhra
Pradesh, 2012.
The vires of any subordinate legislation can be challenged that it is arbitrary,
unreasonable and offends article 14 of the Constitution; Sudhir Kumar Consul v
Allahabad Bank, (2011) SC.
Article 14 would apply only when invidious discrimination is meted out to equals and
similarly circumstanced without any rational basis or relationship in that behalf;
Bondu Ramaswamy v. Bangalore Development Authority, (2010) SC.

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A person is treated unequally only if that person is treated worse than others, and
those others (the comparison group) must be those who are “similarly situated” to the
complainant; Glanrock Estate (P) Ltd. v. State of Tamil Nadu, (2010) SC.

TYPES OF AMENDMENTS IN THE INDIAN CONSTITUTION

There are three ways in which the Constitution can be amended:
1) Simple majority of the Parliament
2) Special majority of the Parliament
3) Special majority of the Parliament and the ratification by half of states

By Simple Majority of Parliament

A number of provisions in the Constitution can be amended by a simple majority of
the two houses of Parliament outside the scope of Article 368. These provisions
include:

 Admission or establishment of new states and alteration of areas, boundaries or

names.
 Abolition or creation of legislative councils in states.
 Second Schedule - Emoluments, Allowances, privileges of the President, VP, the
Governors, the Speakers, Judges (SC & HC), PM, Ministers, CAG, etc.
 Quorum in Parliament, Salaries and allowances of the MPs, Rules of procedure
in Parliament, Privileges of the Parliament, its members and its committees.
 Number of puisne judges in the Supreme Court, Conferment of more jurisdiction
on the Supreme Court.
 Citizenship-acquisition and termination.
 Elections to Parliament and state legislatures.
 Delimitation of constituencies.
 Union territories.
 Fifth & Sixth Schedule-administration of scheduled and tribal areas.

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By Special Majority of Parliament

 The majority of the provisions in the Constitution need to be amended by a

special majority of the Parliament.

 Special majority means majority (more than 50 percent) of the total membership
of each House and a majority of two-thirds of the members of each House
present and voting.

 The 'total membership' means the total number of members comprising the
House irrespective of the fact whether there are vacancies or absentees.

 The provisions which can be amended by this way includes: (i) Fundamental
Rights; (ii) Directive Principles of State Policy; and (iii) All other provisions
which are not covered by the first and third categories.
By Special Majority of Parliament and Consent of States

 Those provisions which are related to the federal structure can be amended by a
special majority of the Parliament and also with the consent of half of the state
legislatures by a simple majority.

 If one or some or all the remaining states take no action on the bill, it does not
matter; the moment half of the states give their consent, the formality is
completed. There is no time limit within which the states should give their
consent to the bill.

 The following provisions can be amended in this way:

o Election of the President and its manner.

o Extent of the executive power of the Union and the states.
o Supreme Court and high courts.
o Distribution of legislative powers between the Union and the states.
o Any of the lists in the Seventh Schedule
o Representation of states in Parliament.
o Power of Parliament to amend the Constitution and its procedure (Art-368).
Seventh Schedule defines and specifies allocation of powers and functions between
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Union & States. It contains three lists; i.e. 1) Union List, 2) State List and 3)
Concurrent List.
Constitutional Amendment Process
The procedure for the amendment of the Constitution as laid down in Article 368 is as
follows:

 An amendment of the Constitution can be initiated only by the introduction of a

bill for the purpose in either House of Parliament (Lok Sabha & Rajya Sabha)
and not in the state legislatures.

 The bill can be introduced either by a minister or by a private member and does
not require prior permission of the president.

 The bill must be passed in each House by a special majority. Each House must
pass the bill separately.

 In case of a disagreement between the two Houses, there is no provision for

holding a joint sitting of the two Houses for the purpose of deliberation and
passage of the bill.

 If the bill seeks to amend the federal provisions of the Constitution, it must also
be ratified by the legislatures of half of the states by a simple majority, that is, a
majority of the members of the House present and voting.

 After duly passed by both the Houses of Parliament and ratified by the state
legislatures, where necessary, the bill is presented to the president for assent.

 The president must give his assent to the bill. He can neither withhold his assent
to the bill nor return the bill for reconsideration of the Parliament

 After the president’s assent, the Constitution stands amended in accordance with
the terms of the Act.

Scope of Amendability in Indian Constitution

 The present position is that the Parliament under Article 368 can amend any part
of the Constitution including the Fundamental Rights but without affecting the
‘basic structure’ of the Constitution. However, the Supreme Court is yet to

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define or clarify as to what constitutes the ‘basic structure’ of the Constitution.

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 From the various judgements, the following have emerged as ‘basic features’ of
the Constitution:
o Supremacy of the Constitution
o Welfare state (socio-economic justice)
o Principle of equality
o Sovereign, democratic and republican nature of the Indian polity.
o Judicial review and Independence of Judiciary
o Free and fair elections
o The secular character of the Constitution.
o Freedom and dignity of the individual
o Separation of powers between the legislature, the executive and the judiciary.
o Parliamentary system
o Limited power of Parliament to amend the Constitution
o Federal character of the Constitution
o Rule of law
o Effective access to justice
o Unity and integrity of the nation
o Harmony and balance between Fundamental Rights and Directive Principles
o Reasonableness

IMPORTANT CASES ON BASIC STRUCTURE

Golaknath v. State Of Punjab (1967 SC)
SC ruled that Parliament could not curtail any of the Fundamental Rights in the
Constitution as the fundamental rights are transcendental and immutable.
Article 368 only lays down the procedure to amend the constitution and does not give
absolute powers to the parliament to amend any part of the constitution.
A constitutional amendment under Article 368 of the Constitution was an ordinary
'law' within the meaning of Article 13(3) of the Constitution.

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Since according to Article 13(2), the parliament could not make any law that abridges
the Fundamental Rights, a constitutional amendment, also being an ordinary law
within the meaning of Article 13, could not be in violation of the fundamental rights.
It also held that this ruling will not affect the validity of the Constitution (Seventeenth
Amendment) Act, 1964, or other amendments already made to the Constitution. It
declared that in future Parliament will have no power to amend Part III of the
Constitution so as to take away or abridge the fundamental rights.

Kesavananda Bharti v. State of Kerala (1973) SC

In 1971, the Parliament passed the 24th Constitution Amendment Act. The act gave
the absolute power to the parliament to make any changes in the constitution including
the fundamental rights. It also made it obligatory for the President to give his assent
on all the Constitution Amendment bills sent to him.
In this case, 24th, 25th, and 29th amendments were challenged.
While the Parliament has "wide" powers, it can amend every provision of the
constitution provided that basic foundation and structure remains the same. The basic
structure may be said to consist of following features:
o Supremacy of the Constitution

o Republican, Democratic & Federal Forms of Govt.

o Secular Character

o Separation of power between legislature, executive and judiciary

Applied to fundamental rights, it would be that while FR cannot be abrogated,

reasonable abridgement of fundamental rights could be affected in the public interest.
It also overruled Golaknath and thus, all the previous amendments which were held
valid are now open to be reviewed. They can only be sustained on the ground that
they do not affect the basic structure of the constitution or on the fact that they are
reasonable restrictions on the fundamental rights in public interest. Both the cases, if
seen closely, bear the same practical effects. What Golaknath said was that the
Parliament cannot amend so as to take away the fundamental rights, whereas in
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Kesavananda, it was held that it cannot amend so as to affect the basic structure.
It also held that the Preamble is the part of Constitution.
In also held that the power of judicial review of legislative action under article 226
(for HC) and 32 (for SC) is basic feature & cannot be altered.
It further held that the preamble is part of constitution and can be amended subject to
basic feature doctrine.

Indira Gandhi v. Raj Narain (1975) SC

The Rule of Law embodied in Article 14 is the basic feature and hence it cannot be
destroyed by amendment.
Sitting of the house which passed amendment was not illegal on the ground that a
number of MPs were under preventive detention. The courts cannot go into question
as to validity of the proceedings of the house.
It struck down clause (4) of the Article 329A which validated election of PM with
retrospective effect on the ground that democracy (including free and fair elections)
was part of basic feature.
Following additional features were added to basic features:
o Rule of Law

o Judicial Review

o Democracy which implies free and fair elections

Minerva Mills v. Union of India (1980) SC

SC struck down sections 4 and 55 of the Constitution (Forty-second Amendment) Act,
1976 enacted during the Emergency imposed by Prime Minister Indira Gandhi.
Section 4 of the 42nd Amendment, had amended the Constitution to accord
precedence to the DPSP over the Fundamental Rights.
Section 55 of the 42nd Amendment inserted sub-sections (4) and (5) of Article 368.
Art 368(4) took away judicial review of the amendments and Art 368(5) removed all

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limitations on the amending power.

Clause (4) which barred judicial review in cases of constitutional amendments was
held unconstitutional as it sought to make the entire Part III unenforceable and thus
enlarged the power of the Parliament limited by Article 13.
Clause (5) was declared as unconstitutional on the ground of damaging the basic
features of the Constitution. As the Parliament cannot, under Article 368, expand its
amending power so as to acquire for itself the right to repeal or abrogate the
Constitution or to destroy its basic and essential features. The donee of a limited
power cannot by the exercise of that power convert the limited power into an
unlimited one.

Waman Rao v. Union of India (1981) SC

SC drew a line of demarcation at April 24th, 1973 i.e. the date of Kesavananda
Bharti’s decision and held it should not be applied retrospectively to reopen the
validity of any amendment to the Constitution which took place prior to 24-04-1973,
that means all the amendments which added to the Ninth Schedule before that date
were valid. All future amendments were held to be challengeable on the grounds that
the Acts and Regulations which they inserted to the Ninth Schedule damaged the
basic structure.

S.R Bommai vs Union of India, 1994 (SC)

Federal structure, unity and integrity of India, secularism, socialism, social justice and
judicial review were reiterated as basic features.
GVK Industries v ITO, (2011) SC.
While some features are capable of being amended by Parliament, pursuant to the
amending power granted by article 368, the essential features - the basic structure - of
the Constitution is beyond such powers of Parliament. The power to make changes to
the basic structure vests only in the people sitting, as a nation, through its
representatives in a Constituent Assembly.

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IMPORTANT AMENDMENTS IN INDIAN CONSTITUTION

First Amendment Act, 1951
Added three more ground of restrictions on freedom of speech and expression, viz.,
public order, friendly relations with foreign states and incitement to an offence. Also
made the restrictions ‘reasonable’ and thus, justifiable in nature.
It also provided that state trading and nationalisation of any trade or business by the
state is not to be invalid on the ground of violation of the right to trade or business.

7th Amendment Act 1956

 Reorganisation of states on linguistic basis

 Abolition of Class A, B, C and D states

 Introduction of Union Territories

The Constitution (39th Amendment) Act, 1975

 The Act places beyond challenge in courts the election to Parliament of a person
holding the office of Prime Minister or Speaker and the election of President and
Vice-President.

 This was struck down as unconstitutional in Indira Gandhi vs Raj Narain (1975).

42nd Amendment Act 1976

 It was enacted during the period of internal emergency.

 This is one of the most controversial amendments to Indian Constitution. It

amended/introduced various provisions given below:
o Attempted to reduce the power of the Supreme Court and High Courts

o Laid down Fundamental Duties for citizens

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o Terms- Socialist, Secular and Integrity added to the Preamble

 It added clauses (4) and (5) to Article 368, providing respectively that ‘no
amendment of the Constitution shall be called in question in any court on any
ground’, and that ‘there shall be no limitation whatever on the constituent power
of Parliament to amend by way of addition, variation or repeal the provisions of
this Constitution’. These were struck down in Minerva Mills vs Union of India
(1980).

 Transferred five subjects from the state list to the concurrent list:

1) Education
2) Forests
3) Weights & Measures
4) Protection of Wild Animals and Birds
5) Administration of Justice

 Made President bound to the advice of the cabinet.

 Allowed Centre to deploy central forces in State to deal with the conflicting
situations of law and order (Article 257A).

 Gave special discriminatory powers to the speaker of Lok Sabha and Prime
Minister (Article 329A).

 Directive Principles were given precedence over Fundamental Rights and any
law made to this effect by the Parliament was kept beyond the scope of judicial
review by the Court. This was struck down in Minerva Mills vs Union of India
(1980).

 Added 4 new DPSPs to list

o To secure opportunities for the healthy development of children (Article 39)

o To promote equal justice and to provide free legal aid to the poor (Art 39A)

o The participation of workers in the management of industries (Article 43 A)

o To protect and improve the environment and to safeguard forests and wildlife
(Article 48 A)
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 It established beyond doubt the supremacy of Parliament over the other wings.

 Curtailed the judicial review power of the high courts

 Raised the term of the Lok Sabha and the Vidhan Sabha from five to six years;

 Envisaged the establishment of administrative tribunals for service matters of

Government employees and also other tribunals for economic offences.

The Constitution (43rd Amendment) Act, 1978

 This Act repeals the obnoxious provisions of the Constitution (42nd

Amendment) Act passed during the Emergency. It restores civil liberties by
deleting Article 31D which gave powers to Parliament to curtail even legitimate
trade union activity under the guise of legislation for the prevention of anti-
national activities.

 It restored legislative powers to the States to make appropriate provision for anti-
national activities consistent with the Fundamental Rights.

 Judiciary had also been restored to its rightful place.

 The Supreme Court will now have power to invalidate State laws, a power taken
away by the 42nd Amendment Act. The High Courts will also be able to go into
the question of constitutional validity of Central laws.

44th Amendment Act 1978

 The Act removes major distortions in the Constitution introduced during the
Emergency.

 It removed Right to Property from the list of fundamental rights (Article 31) and
it was made a legal right under Article 300A.

 The right to liberty is further strengthened by the provision that law for
preventive detention cannot authorise, in any case, detention for a longer period
than two months, unless an Advisory Board has reported that there is sufficient
cause for such detention.

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 The Act also extends, for the first time since independence, constitutional
protection for publication of the proceedings of Parliament and State
Legislatures, except in cases where it is proved to be “malicious”.

 The duration of the Lok Sabha and State Legislative Assemblies restored from
six to five years.

 Any proclamation of Emergency need henceforward, be issued by the President

only after receiving the advice of the cabinet as a whole in writing. The President
will not be called upon to act on the basis of advice by the Prime Minister on his
own without consulting his cabinet. Other safeguards provide that the
proclamation will have to be adopted by a two-thirds majority of the members of
both Houses of Parliament within a month.

 Proclamation of Emergency can be issued only when the security of India or any
part of its territory is threatened by war or external aggression or by armed
rebellion. Internal disturbance not amounting to armed rebellion would not be a
ground for the issue of a Proclamation.

86th Amendment Act 2002

 Amended Articles 45 and 51A and added Article 21A.

 Free and compulsory education to children between 6 and 14 years.

103rd Amendment Act 2019

 A maximum of 10% Reservation for Economically Weaker Sections of citizens

of classes other than the classes mentioned in clauses (4) and (5) of Article 15,
i.e. Classes other than socially and educationally backward classes of citizens or
the Scheduled Castes and the Scheduled Tribes.

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IMPORTANT CASES ON FUNDAMENTAL RIGHTS

AK Gopalan v The State Of Madras (1950 SC)
Gopalan was detained under a preventive detention law.
He moved the court saying that his detention was unlawful as it violated his right to
personal liberty. The contention was whether under this writ and the provisions of
THE PREVENTIVE DETENTION ACT, 1950, there was a violation of his
fundamental rights which were article 13, 19, 21 and 22. The counsel on behalf of the
petitioner argued that the right to movement was a fundamental right under article 19
and hence the defence counsel must prove that the law of preventive detention was a
reasonable restriction as per the five clauses of article 19(2).
The court held that the word used in Article 21 meant procedural due process and
since the preventive detention law under which Gopalan was detained was a valid law,
Gopalan's detention was lawful even though that law may have violated some of his
other Fundamental Rights such has his Right to Freedom of Movement under Article
19, or the detention was arbitrary under Article 14.
The reasoning that came out of the case was that Fundamental Rights were silos in
themselves and were not interconnected, and constituted independent articles. This
doctrine is commonly known as "procedural due process".
The majority bench held that the word law u/a 21 doesn’t necessarily be in conformity
with the principles of natural justice.
Judge restricted the scope of fundamental rights and by reading them in isolation of
article 21 and 22 which provided guidelines for preventive detention.
So, in conclusion, Gopalan case held two major points:
19, 21 and 22 are mutually exclusive. Art 19 was to not apply to a law affecting
personal liberty to which art 21 applies. In the above case, the restrictions under
article 19 applied only on free people. Unless the state arrested a person for
making a speech, holding an assembly, forming an association or for entering a
territory, the arrest had to be EXAMINED under article 21.
A “LAW” affecting life and liberty could not be declared unconstitutional
merely because it lacked natural justice or due procedure. Hence article 21
provided no immunity against competent legislative action.

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Maneka Gandhi vs the Union of India (1978 SC)

The apex court held that the "procedure" under Article 21 had to be fair, just and
reasonable, and would have to be also tested with Article 14 (equality) and 19 (the
freedoms) thereby ushering in the era of "substantive due process".
In this, the SC introduced the concept of “DUE PROCEDURE OF LAW” (checking if
the law made is fair and doesn’t violate basic rights).
In the case of AK Gopalan, the SC had a very narrow view on fundamental rights, just
checked if there was any law that backed up the detention of AK Gopalan and since
there was preventive detention act, the SC rejected the petition of AK Gopalan. This is
as per the PROCEDURE ESTABLISHED BY THE LAW.
In the case of Maneka, the SC had a broader view on the fundamental rights and said
that the procedure established by the law should not be arbitrary or unjust or unfair.
The major findings of the court were as follows:

 The SC held that though the phrase used in Article 21 is “procedure established
by law” instead of “due process of law” however, the procedure must be free
from arbitrariness and irrationality.

 The court overruled Gopalan by stating that there is a unique relationship

between the provisions of Article 14, 19 & 21 and every law must pass the tests
of the said provisions. Earlier in Gopalan the majority held that these provisions
in itself are mutually exclusive. Therefore, to correct its earlier mistake the court
held that these provisions are not mutually exclusive and dependent on each
other and they are group of Islands connected with each other.

 The court held that the scope of “personal liberty” is not be construed in narrow
and stricter sense. The court said that personal liberty has to be understood in the
broader and liberal sense. Article 21 was given an expansive interpretation.

 The right to travel abroad as held in Satwant Singh is within the scope of
guarantees mentioned under Article 21.

 The rights discussed under 19(1)(a) & 19(1)(g) are not confined to the territorial
limits of India.

 The right to live is not merely a physical right but includes within its ambit the

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right to live with human dignity.

Bandhua Mukti Morcha Vs. Union of India (1984 SC),
Right to live with human dignity is enshrined under article 21.

Vishakha v. State of Rajasthan

The Supreme Court has declared sexual harassment of a working woman at her work
as amounting to the violation of rights of gender equality and rights to life and liberty
which is a clear violation of Articles 14, 15 and 21 of the Constitution.

Suchita Srivastava v. Chandigarh Administration, 2010 SC

The crucial consideration is that a woman’s right to privacy, dignity and bodily
integrity should be respected. This means that there should be no restriction
whatsoever on the exercise of reproduction choices such as a woman’s right to refuse
participation in sexual activity or alternatively the insistence on use of contraceptive
methods. Furthermore, women are also free to choose birth control methods such as
undergoing sterilisation procedures. Reproductive rights include a woman’s
entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise
children. However, in the case of pregnant women there is also a ‘compelling State
interest’ in protecting the life of the prospective child.

Dipak Shubashchandra Mehta v. CBI 2012 (SC)

When the undertrial prisoners are detained in jail custody to an indefinite period,
article 21 is violated.

Hussain v. UoI, 2017 (SC)

Timely delivery of justice is part of human rights. Denial of speedy justice is a threat
to public confidence in the administration of justice.

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Charu Khurana v. UoI, 2015 (SC)

Restricting membership of association only to men (Make-up men, costume men and
hair dressers) violates section 21 of the Trade Unions Act, 1926. Such discrimination
in the access of employment and to be considered for the employment unless some
justifiable riders are attached to it, cannot withstand scrutiny. When the access or
entry is denied, article 21 which deals with livelihood is offended. Such kind of
debarment creates a concavity in her capacity to earn her livelihood.

Ashwani Kumar v. Union of India 2018 (SC)

Article 21 in its expansive meaning encompasses various rights of elderly
persons/senior citizens such as right to dignity, right to health, right to adequate
pension and right to shelter.

Gian Kaur v State of Punjab

SC held that the right to life is a natural right which is embodied in article 21, but
suicide is an unnatural termination or extinction of life. Therefore it is incompatible
and inconsistent with the concept of right to life. Right to die not part of right to life.
Common Cause V. Union of India
SC gave legal sanction to passive euthanasia, permitting ‘living will’ by patients on
withdrawing medical support. The SC held that the right to die with dignity is a
fundamental right.

Justice KS Puttaswamy (Retd.) Vs. Union of India (2017),

SC held that right to privacy is fundamental right.

Olga Tellis Vs. Bombay Municipal Corporation

In SC held that right to life includes right to livelihood.

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Sodan Singh v New Delhi Municipal Committee,

The Supreme Court distinguished the concept of life and liberty within Art.21 from
the right to carry on any trade or business, a fundamental right conferred by Art. 19(1)
(g) and held the right to carry on trade or business is not included in the concept of life
and personal liberty. Article 21 is not attracted in the case of trade and business.
The court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation
and held that “in that case the petitioners were very poor persons who had made
pavements their homes existing in the midst of filth and squalor and that they had to
stay on the pavements so that they could get odd jobs in the city. It was not the case of
a business of selling articles after investing some capital.”

Right to Environment
Charan Lal Sahu Case (1991),
The Supreme Court interpreted the right to life guaranteed by article 21 of the
Constitution to include the right to a wholesome environment.

Subhash Kumar v State of Bihar (1991),

the Supreme Court held that right to life under Art. 21 includes the right to enjoyment
of pollution free water and air for full enjoyment of life. It has held that a Public
Interest Litigation is maintainable for ensuring enjoyment of pollution-free water and
air.

M.C. Mehta v. Union of India (1991)

The Supreme Court has held that life, public health and ecology have priority over
unemployment and loss of revenue. The Supreme Court ordered the Central
government to show the steps they have taken to achieve this goal through national
policy and to restore the quality of environment. In another case, the Supreme Court
dealt with the problem of air pollution caused by motor vehicle operating in Delhi.

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M. C. Mehta vs. Union of India (1987) (the Oleum Gas Leak case),
The Supreme Court established a new concept of managerial liability - 'absolute and
non-delegable' - for disasters arising from the storage of or use of hazardous materials
from their factories. The enterprise must ensure that no harm results to anyone
irrespective of the fact that it was negligent or not.

Re Noise Pollution v Unknown (2005)

SC held that the right to live in an atmosphere free from noise pollution as the one
guaranteed by Article 21

Shree Sidhbali Steels Ltd. v State of UP, 2011 SC.

A company cannot maintain a petition under article 32 for enforcement of
fundamental rights guaranteed under article 19. Company not being a citizen has no
fundamental rights u/a 19.

Preamble:- A Part of The Constitution or Not

The vexed question whether the Preamble is a part of the Constitution or not was dealt
with in two leading cases on the subject:
1. Berubari case (1960)
2. Kesavananda Bharti case (1973)
On the answer to the primary question- whether the Preamble is a part of the
Constitution, would depend the resolution of the next question, which follows as a
corollary- whether the Preamble can be amended.
Berubari case was the Presidential Reference Under Art. 143(1) of the Constitution on
the implementation of the Indo-Pak agreement relating to Berubari union and
exchange of enclaves. SC held that the Preamble to the Constitution containing the
declaration made by the people of India in exercise of their sovereign will, no doubt is
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a key to open the minds of framers of the Constitution which may show the general
purposes for which they made the several provisions in the Constitution but
nevertheless the Preamble is not a part of the Constitution.
The key findings of Berubari case are as under:

 Preamble serves as a key to open the minds of the framers, and shows the
general purpose for which they made the several provisions in the Constitution;

 The Preamble is not a part of Constitution;

 It is not a source of the several powers conferred on government under the

provisions of the Constitution;

 Such powers embrace those expressly granted in the body of the Constitution
and such as may be implied from those granted;

 What is true about the powers is equally true about the prohibitions and
limitations;

 The Preamble did not indicate the assumptions that the first part of the Preamble
postulates a very serious limitation on one of the very important attributes of
sovereignty.
Berubari case was relied on in Golaknath case, it was said - On a parity of reasoning
we are of the opinion that the Preamble cannot prohibit or control in any way or
impose any implied prohibitions or limitations on the bar to amend the Constitution
contained in Article 368. It was further observed- Moreover the Preamble cannot
control the unambiguous language of the Articles of the Constitution.
It is a matter of regret, that the bench overlooked a matter of record, that constitutional
history. The motion adopted by the Constituent Assembly stated in so many words
that the Preamble stands as a part of the Constitution. The error came to be corrected
in Kesavananda Bharti case where the majority specifically ruled that the Preamble
was as much a part of the constitution as any other provision therein.
Kesavanada Bharati Case - It was held in this case:

 the Preamble is a part of Constitution

 the Preamble is not a source of power nor a source of limitations

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 the Preamble has a significant role to play in the interpretation.

Moreover in Bommai case, the majority of nine Judges laid down a new application of
the Preamble under the Constitution, which is as follows:

 The Preamble indicates the basic structure of the Constitution

 A Proclamation under Article 356(1) is open to judicial review on the ground of

violating the basic structure of the Constitution.

 It follows that a proclamation under Article 356(1), which violates any of the
basic features, as summarized in the Preamble of the Constitution is liable to be
struck down as unconstitutional.

 A further extension of this innovation is that a political party, which appeals to

religion in its election manifesto, acts in violation of the basic structure, and the
President may impose President’s Rule on a report of the Governor that a party
has issued such a manifesto.
A discussion on Preamble cannot be complete without making a reference of Mandal
Commission case. A rainbow of judicial thoughts reflecting the significance, value
and message of the Preamble. B.P. Jeevan, J. held that the four folding objective of
securing to its citizens justice, liberty, equality and fraternity displays statesmanship
of the highest order. The framers of the Constitution did not rest content with evolving
the framework of the state; they also pointed out the goal as spelled out in the
Preamble and the methodology for reaching that goal is elaborated in parts of the
Constitution of India. In the opinion of R.M. Sahai, J. the preamble to the constitution
is a turning point in history. The Preamble of the constitution has the sentiments and it
is the key to the minds of the framers of the Constitution.

Indian Constitution is lawyer's paradise

The Constituent Assembly that framed the country's Constitution significantly
comprised politicians who were also qualified lawyers. Its leading figures, Dr
Rajendra Prasad, Jawaharlal Nehru, Sardar Patel and Dr BR Ambedkar, who became
India's first president, prime minister, home minister and law minister, respectively,
were all lawyers. They framed the Constitution in the company of other legal
stalwarts, such as KM Munshi and Alladi Krishnaswamy Iyer.

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So dominant was the presence of lawyers in the Constituent Assembly that British
advocate and academic Sir Ivor Jennings dubbed the group a "lawyers' paradise".

Why India is sometimes called ‘an indestructible union of destructible states’’?

The Parliament can redraw the political map of India according to its will. Hence, the
territorial integrity or continued existence of any state is not guaranteed by the
Constitution. Hence, India is described as ‘an indestructible union of destructible
states’.
Article 3 authorises the Parliament to:

 Form a new state by separation of territory from any state or by uniting two or
more states or parts of states or by uniting any territory to a part of any state,

 Increase the area of any state,

 Diminish the area of any state,

 Alter the boundaries of any state, and

 Alter the name of any state.

Article 3 lays down two conditions in this regard: one, a bill contemplating the above
changes can be introduced in the Parliament only with the prior recommendation of
the President; and two, before the bill, the President has to refer the same to the State
legislature concerned for expressing its views within a specified period.
The President (or Parliament) is not bound by the views of the state legislature and
may either accept or reject them even if the views are received in time.
It is not necessary to make a fresh reference to the state legislature every time an
amendment to the bill is moved and accepted in Parliament.
In case of a union territory, no reference need be made to the concerned legislature to
ascertain its views and the Parliament can itself take any action as it deems fit.
The Parliament can redraw the political map of India according to its will. Hence, the
territorial integrity or continued existence of any state is not guaranteed by the
Constitution. Therefore, India is rightly described as ‘an indestructible union of
destructible states’.

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The Union government can destroy the states whereas the state governments cannot
destroy the Union.

India is federal state with strong centralizing tendency

Constitution of India has not described India as a federation. On the other hand,
Article 1 of the Constitution describes her as a “Union of States.” This means, India is
a union comprising of various States which are integral parts of it. The Indian Union
is not destructible. Here, the States cannot break away from the union. They do not
have the right to secede from the union. In a true federation, the constituting units or
the States have the freedom to come out of the union.
India is not a true federation. It combines the features of a federal government and the
features of a unitary government which can also be called the non-federal features.
Because of this, India is regarded as a semi-federal state. The Supreme Court of India
also describes it as “a federal structure with a strong bias towards the Centre”.
Federal Features

 Two sets of government - The CG works for the whole country and the SG look
after the States. The areas of activity of both the governments are different.

 Division of Powers - The Seventh Schedule of the Constitution contains three

lists of subjects which show how division of power is made between the two sets
of government. Both the Govts. have their separate powers and responsibilities.

 Written Constitution - Every provision of the Constitution is clearly written

down. It is regarded as one of the longest constitutions of the world.

 Supremacy of the Constitution - The Constitution is regarded as the supreme law

of the land. No law can be made which will go against the authority of the
Constitution. The Constitution is above all and all citizens and organizations
within the territory of India must be loyal to the Constitution.

 Supreme judiciary - The Supreme Court of India is the highest court of justice. It
has been given the responsibility of interpreting the provisions of the
Constitution. It is regarded as the guardian of the Constitution.

 Bi-cameral legislation - The Indian Parliament has two houses - the Lok Sabha

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and the Rajya Sabha. The Rajya Sabha is the upper house of the Parliament
representing the States while the Lok Sabha is the lower house representing the
people in general.

Unitary or Non-Federal Features

 Non-equal division of power - In a federation, power are divided equally

between the two governments. But in India, the CG has been given has been
given more powers and made stronger than the SG.

 Constitution is not strictly rigid - The Constitution can be amended by the Indian
Parliament very easily. On many subjects, the Parliament does not need the
approval of the State legislatures to amend the Constitution. But in a true
federation, both the Union and the State legislatures take part in the amendment
with respect to all matters. Therefore, those constitutions are rigid to amend.

 Single Constitution - Only one Constitution is applicable to both the Union as a

whole and the States. There are no separate constitutions for the States. In a true
federation, there are separate constitutions for the union and the States.

 Centre’s control over States - The Centre exercises control over the States. The
States have to respect the laws made by the central government and can not
make any law on matters on which there is already a central law. The Centre can
also give directions to the States which they must carry out.

 Legislative Power - Parliament's power to legislate in national interest if

approved by Rajyasabha with 2/3 majority. Then there is concurrent list.

 Governors - CG has Governors as its representative head of the States. CG does

not need to even consult CM for such appointments.

 Rajya Sabha does not represent the States equally - In a true federation, the
upper house of the legislature has equal representation from the States. But in
Rajya Sabha, the States do not have equal representation. The populous States
have more representatives in the Rajya Sabha than the less populous States. The
Rajya Sabha is not properly representative of all the States.

 Existence of States depends on the Centre - In India, the existence of a State or a

federating unit depends upon the authority of the Centre. The boundary of a State
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can be changed by created out of the existing States.

 Single citizenship - In a true federal state, citizens are given dual citizenship.
They are the citizens of their respective States and also citizens of the federation.
In India however, the citizens enjoy single citizenship, i.e., Indian citizenship.

 Unified judiciary - India has a unified or integrated judicial system. The HCs are
under control of the SC. The SC is the highest court of justice in the country and
all other subordinate courts are under it.

 Proclamation of emergency - The Constitution of India has given emergency

powers to the President. He can declare emergency in the country under three
conditions. When emergency is declared, the Union or Central governments
become all powerful and the State governments come under the total control of
it. The State governments lose their autonomy. This is against the principles of a
federation.

Thus, though India has adopted a federal form of government, yet there are various
features of our Constitution which are non-federal or unitary. The framers of the
constitution wanted to have a strong central government and therefore, had made
every attempt to the make the central government more powerful than the state
governments. There are various reasons for this. India is a vast country where the
people of different religious, languages, races, castes, etc. are residing. In order to
maintain unity and integrity among them, a strong centre was thought to be necessary.
Again, to perform the vast responsibility of a modern welfare state and for the
economic development of a newly independent country, a strong centre with sufficient
resources and authority was essential. Further, to establish India, in the international
forums, the central government needed to be powerful.

Difference between 'due process of law' and 'procedure established by law'

Procedure Established by Law
It means that a law that is duly enacted by legislature 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

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Parliament passes a law, then the life or personal liberty of a person can be taken off
according to the provisions and procedures of the that law. This doctrine has a major
flaw. It does not seek whether the laws made by Parliament is fair, just and not
arbitrary.

“Procedure established by law” means a law duly enacted is valid even if it’s contrary
to principles of justice and equity. Strictly following procedure established by law
may raise the risk of compromise to 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 due process of law.
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 see if the law made is fair, just and not arbitrary.
If SC finds that any law as not fair, it will declare it as null and void. This doctrine
provides for more fair treatment of individual rights.
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 confirm to the
laws of the land like – fairness, fundamental rights, liberty etc. It also gives the
judiciary to access the fundamental fairness, justice, and liberty of any legislation.
The difference in layman’s terms is as below: Due Process of Law = Procedure
Established by Law + The procedure should be fair and just and not arbitrary.

Article 32 - Right to Constitutional Remedies is referred to as ‘Heart & Soul’

It was called the “Heart and soul of Indian Constitution ” by Dr BR Ambedkar.
Article-32 provides for right to constitutional remedies through which a person may
approach the Supreme Court on violation of his/her fundamental rights.
Part III provides for fundamental right to all the persons living in India. However, for
enforcing such right against the Government, there should an effective mechanism,
which is provided by Article 32. It guarantees the right to move the Supreme Court for
the enforcement of all or any of the fundamental rights conferred by Part III of the
Constitution.

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According to Article 32 one can move directly to Supreme Court any of fundamental
rights have been violated.
In Assam Sanmilita Mahasangha v. UoI, 2015 SC, it was held that this article-32 is
itself a fundamental right.

U/A 32, the different Writs that Courts may issue are:
Habeas Corpus:
If any person is detained by any authority then he must be produced before court.
Then court will decide whether his detainment will continue or he must be set free.
This is done so that no person is wrongly detained by any authority.

Mandamus:
It’s literal meaning is “Command”. Court can order a person or authority to do a task
in Public Duty

Prohibition
A higher court may order a lower court to stop jurisdiction on grounds of over
stepping of jurisdiction
A writ directing a subordinate to stop doing something the law prohibits.

Certiorari
Higher court can ask a lower court to hand over the case for speedy jurisdiction.
A writ issued by a superior court for the reexamination of an action of a lower court.

Quo Warranto
Literal meaning is “By what authority”. The court may ask a person “By what
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authority is a person holding a public office”. A writ requiring the person to whom it
is directed to show what authority they have for exercising some right, power, or
franchise they claim to hold.

CASES ON ART-32
Assam Sanmilita Mahasangha v. UoI 2015 SC.
Article 32 which has been described as the “heart and soul” of the Constitution
guarantees the right to move the Supreme Court for the enforcement of all or any of
the fundamental rights conferred by Part III of the Constitution. This article is itself a
fundamental right.

Hari Bansh Lal v. Sahodar Prasad Mahto, 2010 SC.

Except for a writ of quo warranto, PIL is not maintainable in service matters. For
issuance of writ of quo warranto the High Court has to satisfy that the appointment is
contrary to the statutory rules. Suitability or otherwise of a candidate for appointment
to a post in Government service is the function of the appointing authority and not of
the court unless the appointment is contrary to statutory provisions/rules.

Kunga Nima Lepcha v. State of Sikkim, 2010 SC

The remedies evolved by way of writ jurisdiction are of an extraordinary nature. They
cannot by granted as a matter of due course to provide redressal in situations where
statutory remedies are available.

Kihota v. Zachilhu, 1993 SC

Judicial review under articles 32 and 226 is a basic feature of the Constitution beyond
the pale of amendability.

Centre for PIL v. UoI, 2011 SC.

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Before a citizen can claim a writ of quo warranto be must satisfy the court inter alia
that the office in question is a public office and it is held by a person without legal
authority and that leads to the enquiry as to whether the appointment of the said
person has been in accordance with law or not;

Kalyaneshwari v. UoI, (2011) SC.

A petition which lacks bona fides and is intended to settle business rivalry or is aimed
at taking over a company or augmenting the business of another interested company at
the cost of closing business of office units in the garb of Public Interest Litigation
would be nothing but abuse of the process of law;

DPSP are not enforceable. Is there any justification for incorporating them in
constitution?
Constitution Drafters divided rights of the citizen into two parts i.e., Justiciable and
Non Justiciable part. Part III of the Constitution was made Justiciable and the non-
justiciable part was added in Part IV (Article 36 to Article 51) of the Indian
Constitution. This part is called the Directive Principles of State Policy.
DPSPs are positive obligations on the state. DPSPs were not made justiciable because
India did not have sufficient financial resources. Moreover, its backwardness and
diversity were also a hindrance in implementing these principles at that time. At the
time of the drafting of the Constitution, India was a newly born independent state and
was struggling with other issues and making DPSPs justiciable would have put India
in great difficulty.
Article 37 defines the nature of DPSP. It states that DPSPs are not enforceable in the
courts but at the same time, it defines DPSPs as a duty of the state. Moreover, the
same Article defines DPSPs as principles that are fundamental to the governance of
any country. It shows the relevance and significance of DPSPs in the constitution and
in the governance of a country.
Fundamental Rights are the legal obligation of the state to respect, whereas the DPSPs
are the moral obligation of the state to follow. Article 38 lay down the broad ideals
which a state should strive to achieve. Many of these Directive Principles have
become enforceable by becoming a law. Some of the DPSPs have widened the scope
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of Fundamental Rights.
The Writ of mandamus is generally issued in two situations. One is when a person
files writ petition or when the Court issues it suo moto i.e. own motion. As per
Constitutional Principles, a Court is not authorized to issue the writ of mandamus to
the state when the Directive Principles are not followed.
The compatibility between Fundamental Rights and DPSPs have always been
contentious. The Fundamental Rights and DPSPs are two facades of that coin.
On the one hand Part III i.e. Fundamental Rights limit the power of government and
restrains the state from making any law which contravenes the interests of its people,
on the other hand, Part IV helps the state in making a law which harmonizes the
interest of its people.

Judicial Pronouncements on DPSP

Champakam Dorairajan Case (1952)
All Fundamental Rights are superior over DPSP.

Kerala Education Bill (1957) (1959 1 SCR 995)

In case of conflict between Fundamental Right and DPSPs, the principle of
harmonious construction should be applied. But still after applying the doctrines of
interpretation, there is a conflict between fundamental right and DPSPs, then the
former should be upheld.

Golaknath v State Of Punjab (1967 SC),

The Court was of the view that Fundamental rights cannot be curtailed by the law
made by the parliament. In furtherance of the same the Court also said that if a law is
made to give effect to Article 39(b) and Article 39(c) which come under the purview
of DPSPs and in the process the law violates Article 14, 19 or 31, the law cannot be
declared as unconstitutional and void merely on the ground of said contravention.

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The 42nd Constitution Amendment widened the scope of Article 31C to cover all the
directive principles laid down in the Constitution. Prior to the Amendment Article
31C saved only those laws which gave effect to the Directive Principles of State
Policy specified in Article 39(b) and 39(c).

The parliament responded by bringing the 25th Amendment Act of the constitution
which inserted Article 31C in Part III. Article 31C contained two provisions:
a. If a law is made to give effect to DPSPs in Article 39(b) and Article 39(c) and in the
process, the law violates Article 14, Article 19 or Article 31, then the law should not
be declared as unconstitutional and void merely on this ground.
b. Any such law which contains the declaration that it is to give effect to DPSPs in
Article 39(b) and Article(c) shall not be questioned in a court of law.

Keshavnanda Bharati v the State of Kerala (1973) SC,

Parliament can amend any part of Constitution, but could not destroy Basic Structure
of the Constitution. The second clause of Article 31C was as declared as
unconstitutional and void as it was against the Basic Structure of the Constitution.
However, the SC upheld the first provision of the Article 31C. The court also held that
the power of Judicial review cannot be taken out by Parliament.
Parliament brought the 42nd Amendment Act in 1976, which extended the scope of
the above first provision of Article 31C by including within its purview any law to
implement any of the DPSPs specified in Part IV of the constitutional and not merely
Article 39 (b) or (c).

Minerva Mills v Union of India (AIR 1980 SC),

The question before the court was whether the DPSP enshrined in Part IV can have
primacy over the fundamental rights conferred by Part III of the Constitution. The
court held that the doctrine of harmonious construction should be applied because
neither of the two has precedence to each other. Both are complementary therefore

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they are needed to be balanced.

A law under Article 31C would be protected only if it is made to implement directives
in article 39b and 39c and not any other DPSPs. The extension to all DPSPs was
declared as unconstitutional and void by the SC in the Minerva Mills Case (1980).

Unnikrishnan vs State of Andhra Pradesh (1993 SC)

The Court was of the view that Fundamental Rights and Directive Principles are not
exclusive to each other therefore they should not be read in exclusion. Moreover, the
Court said that the Fundamental Rights are the means through which the goals
enumerated in Part IV are achieved.

KT Plantation Pvt. Ltd. v. State of Karnataka, 2011 SC.

DPSP lay down the fundamental principles for the governance of the country, and
through these principles, the State is directed to secure that the ownership and control
of the material resources of the community are so distributed as best to sub-serve the
common good and that the operation of the economic system does not result in the
concentration of wealth and means of production to the common detriment;

Charu Khurana v. Union of India, 2015 SC.

Directive Principles have been regarded as soul of the Constitution as India is a
welfare State. They provide for guidance to interpretation of fundamental rights of
citizen as also statutory rights.

DPSPs and Amendments

For amending the Directive Principles of State Policies, the Constitutional amendment
is required. It has to be passed by the special majority of both the houses of the
Parliament. Post-independence there have been number of amendments to the
constitution and some of them are pertaining to DPSPs.

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DPSP and its Implementation

Although the implementation of the principles laid down in Part IV are not directly
visible yet there are a plethora of laws and policies which reflect the application of the
principle of Part IV. In the Judicial History of India, many laws and legal provisions
were created by judicial reasoning. In such cases, DPSPs played a very vital role and
the courts took the directive principles into consideration very cautiously.
Policies like Mahatma Gandhi National Rural Employment Guarantee Act
(MGNREGA) get their authority from Article 39(a) which talks about the right to
adequate means of livelihood. Laws such as the Child Labour (Prohibition and
Regulation) Act 1986 bolster the canons of Article 39(g) which deals with the
protection of children.
Laws pertaining to prohibition of slaughter of cows and bullocks get their sanctity
from Article 48. Laws such as Workmen Compensation Act, Minimum Wages Act,
Industrial Employment (Standing Orders) Act, The Factories Act, Maternity Benefit
Act depict the implementation of Article 41, Article 42 and Article 43A.
Government Policies such as Integrated Rural Development Program (IRDP),
Integrated Tribal Development Program (ITDP), and Pradhan Mantri Gram Sadak
Yojana etc. are the reflections of the principle objectives enumerated in Article 47.
In the end, all these laws and policies try to achieve goals and principle given in
Article 38 i.e. the creation of welfare state.

Present Order of Precedence

If there is a conflict between FR and DPSP, the present order of precedence is as
below:
FR except 14 (equality before law) and 19 (freedom of speech etc).
DPSP 39(b) (distribution of resources) and 39(c) (no concentration of wealth).
FR 14 and 19.
DPSP except 39(b) and 39(c).

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This means that DPSP 39(b) and 39(c) has been given precedence over Fundamental
Right 14 (Right to Equality) and Fundamental Right 19 (Freedom of Speech and
Expression).

Article 39(b) - The State shall, in particular, direct its policy towards securing: that
the ownership and control of the material resources of the community are so
distributed as best to subserve the common good.

Article 39(c) - The State shall, in particular, direct its policy towards securing: that
the operation of the economic system does not result in the concentration of wealth
and means of production to the common detriment.

Right Against Self- Incrimination

In a civilized state where law protects the interest of not only of victim but also of
accused, then & there the seeds of privilege against self-incrimination germinates to
shield the basic human rights.
Right against self-incrimination is enshrined in article 20(3) of the Indian constitution,
1950. This provision is in consonance with the general principles of English and
American jurisprudence which dictates that no person can be compelled to give
testimony which has the potential of exposing him to prosecution for crime.
This canon is also backed by various provisions of Indian law, such as:

 Accused is presumed to be innocent unless proven guilty.

 Burden of proof rests with prosecution.

 Guilt should be proved beyond reasonable doubt.

 Accused need not to make any statement against will, i.e. right to remain silence.

In M.P Sharma v. Satish Chandra (1954 SC), the apex court envisaged the following
essentials:

 This right pertains to “accused of an offence”

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 It provides protection against “compulsion to be witness”

 It also provides protection against such ‘compulsion’ relating to his giving

evidence “ against himself”
Accused of an offence: Any person against whom actual trial or enquiry have
commenced in court of law or any person against whom an FIR has been filed and
investigation is ordered by the magistrate can be termed as accused. Umbrella of
article 20(3) is narrower as compared to English and American law. In Indian context,
this privilege is confined to accused only, while in American as well as English
context, this privilege is extended to the witnesses also.
Compulsion to be a witness: In M.P. Sharma V. Satish Chandra (1954 SC), the Apex
Court made a very wide interpretation of the word witness. In consonance with The
Indian Evidence Act, the court stated that a person can be a witness not merely by
giving oral evidence but also by providing documents or other substantial documents.
Hence, this wide interpretation by apex court had the potential to hamper the effective
administration of criminal justice. Therefore, in State of Bombay v. Kathi Kalu (1961
SC), Supreme Court narrowed down its previous interpretation of “witness’. It stated
that “to be a witness” cannot be taken as synonym for “furnishing evidence”. Hence,
taking compulsory photographs, specimen of writings, fingerprints will not attract
article 20(3) of Indian constitution.
Compulsion to give evidence “against himself” To attract the provision of article
20(3), it shall be proved that accused was compelled to give statement, which was
incriminative of himself.

In Nandini Satpathy v. P.L. Dani (1977 SC), supreme court broadened the scope of
article 20(3) and embodied that “compelled testimony” does not pertain to physical
torture but also extends to psychological interrogation.

Right against self-incrimination under article 20(3) does not exclude any voluntary
statements made in exercise of free will and volition; Ajmal Kasab v. State of
Maharashtra, 2012 (SC).

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Protection under article 20(3) does not extend to any kind of evidence but only to self-
incriminating statements relating to the charges brought against an accused. In order
to bring the testimony of an accused within the prohibition of constitutional
protection, it must be of such character that by itself it tends to incriminate the
accused. For invoking the constitutional rights under article 20(3) a formal accusation
against the person claiming the protection must exist; Balasaheb v. State of
Maharashtra, (2011 SC).

Article 20(1) - Ravinder Singh v State of Himachal Pradesh, 2010 SC

It is trite law that the sentence impossable on the date of commission of the offence
has to determine the sentence impossable on completion of trial. This proposition is
clear even on a bare reading of article 20(1). Under article 20(1) what is prohibited is
the conviction and sentence in criminal proceedings under ex post facto law.

PUBLIC INTEREST LITIGATION

“Public interest Litigation“, in simple words, 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 public at large is affected
can be redressed by filing a Public Interest Litigation in a court of law.

PUBLIC INTEREST LITIGATION is not defined in any statute or in any act. It has
been interpreted by judges to consider the interest of public at large. Although, the
main and only focus of such litigation is “Public Interest” there are various areas
where a PIL can be filed.

Who can file Public Interest Litigation

PIL is litigation introduced in a court of law, not by the aggrieved party but by the
court itself or by any other private party. It is not necessary, for the exercise of the

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court’s jurisdiction, that the person who is the victim of the violation of his or her
right should personally approach the court.
Any person can file a PIL. The only condition being that the same has to be filed in
Public Interest. Public Interest Litigation is the power given to the public by courts to
protect interest of public at large.
Such cases may occur when the victim does not have the necessary resources to
commence litigation or his freedom to move court has been suppressed or encroached
upon. The court can itself take cognizance of the matter and precede suo motu or
cases can commence on the petition of any public-spirited individual.

History of PIL in India

PIL had begun in India towards the end of 1970s and came into full bloom in the 80s.
Justice V.R. Krishna Iyer and Justice PM. Bhagwati, honourable Judges of the
Supreme Court of India delievred landmark judgements which opened up new vistas
in PIL.
In December 1979, Kapila Hingorani had filed a petition regarding the condition of
the prisoners detained in the Bihar jail, whose suits were pending in the court. The
special thing about this petition was that it was not filed by any single prisoner, rather
it was filed by various prisoners of the Bihar jail. The case was filed in the Supreme
Court before the bench headed by Justice [Link]. This petition was filed by the
name of the prisoner, Hussainara Khatoon, hence the petition came to be known as
Hussainara Khatoon v State of Bihar. In this case, the Supreme Court upheld that the
prisoners should get benefit of free legal aid and fast hearing. Because of this case
40,000 prisoners, whose suits were pending in the court, were released from the jail.
In the case of SP Gupta v Union of India (1981) that the Supreme Court of India
defined the term "public interest litigation" in the Indian Context.

Objectives of PIL
According to Justice V.R. Krishna Iyer, PIL is a process, of obtaining justice for the
people, of voicing people’s grievances through the legal process. The aim of PIL is to
give to the common people of this country access to the courts to obtain legal redress.

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Procedure to file a PIL

Any public spirited citizen can move/approach the court for the public cause (in the
interests of the public or public welfare) by filing a petition:
o In Supreme Court under Art.32 of the Constitution;

o In High Court under Art.226 of the Constitution; and

o In the Court of Magistrate under Sec.133, Cr. P.C.

With the view to regulate the abuse of PIL the apex court it has framed certain
guidelines (to govern the management and disposal of PILs.)

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ARTICLE 14
Meaning and Scope
In Ram Krishna Dalmia v. Justice S.R. Tendolkar (1958 SC), the Apex Court has laid
down the principles to be borne in mind in determining the validity of a statute on
ground of violation of Art. 14 as under:
“It is now well established that while Article 14 forbids class legislation, it does not
forbid reasonable classification for the purposes of legislation. It condemns
discrimination not only by a substantive law but also by a law of procedure.”

The Apex Court further observed that the following principles will have to be
constantly borne in mind by the Court when it is called upon to adjudge the
constitutionality of any particular law attacked as discriminatory and violative of the
equal protection of the laws:
(a) that a law may be constitutional even though it relates to a single individual if, on
account of some special circumstances or reasons applicable to him and not able to
others, that single individual may be trained as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been a
class transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates
the need of its own people, that its laws are directed to problems made manifest by
experience and that its discriminations are based on adequate grounds;
In Indira Sawhney vs. Union of India (1993 SC) it is held that Article 14 has to be
understood in the light of Directive Principles of State Policy.

The guarantee of “equal protection of law” is available against State action only. It
cannot be invoked against the action of a private individual. The concept “equality
before the law” does not mean that it is applicable to every situation of life. The
Constitution itself has conferred certain privileges on the President of India and the
Governor of a State.

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The Special Courts Act, 1979 which established Special Courts to try certain persons
was declared valid in V.C. Shukla v. STATE (1980 SC).

The Doctrine of Classification

Article 14 does not prohibit classification on ‘reasonable basis’. Equal protection of
law means right to equal treatment in similar circumstances. The two conditions are:
(i) The classification must be founded on an intelligible differential which
distinguishes those that are grouped together from others;
(ii) The differential must have a rational relation to the objects sought to be achieved
by the law under challenge.

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