Module II

Fundamental Rights and Fundamental Duties

Characteristics of the Fundamental Rights as provided in Part III of the

Constitution

In every democratic system of Government, there are some rights which are regarded
as fundamental. They are so regarded because they are vitally necessary for the
attainment by the individual for his full moral and spiritual stature. Without those
rights, the individual’s moral and spiritual life would remain stunted, and he would
not be able to develop his potential.

The Indian Constitution guarantees essential human rights in the form of

Fundamental Rights under Part III (Articles 12 to 35) of the Constitution which has
been described as the Magna Carta of India, borrowed from the U.S. Constitution.

The Fundamental Rights in the Indian Constitution have been grouped under 6
heads as follows–

1. Right to Equality [Article 14-18]

2. Right to Freedom [Article 19-22]

3. Right against Exploitation [Article 23-24]

4. Right to freedom of Religion [Article 25-28]

5. Cultural and Educational Rights [Article 29-30]

6. Right to Constitutional Remedies [Article 32-35]

The general characteristics of Fundamental Rights are as follows –

1. Fundamental Rights are guaranteed by the Constitution – The Constitution has

guaranteed the Fundamental Rights. For this purpose, the Constitution provides –

i. All laws in force in the territory of India immediately before the

commencement of the Constitution, in so far as they are inconsistent with the
provisions of the Part III shall to the extent of such inconsistency be void.
[Article 13(1)]

ii. The State shall not make any law which takes away or abridges the rights
conferred by Part III and any law made in contravention of this clause shall, to
the extent of the contravention, be void. [Article 13(2)]

iii. The Supreme Court has been given the power for the protection of
Fundamental Rights.

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2. Fundamental Rights are justifiable and enforceable by court – If any law or any
executive action infringes the Fundamental Rights, the aggrieved person may
challenge the validity of such law or executive action in either the Supreme Court
or the High Court under Article 32 or Article 226, and the judiciary may declare
such law or executive action ultra vires the Constitution.

3. Fundamental rights are not absolute rights – Fundamental Rights are not absolute
rights and such reasonable restrictions may be imposed upon them in the interest
of the society, as have been laid down along with the concerned Fundamental
Rights.

4. Fundamental Rights are enforceable against the State – Fundamental Rights

provides protection against the State action and not against a private individual
action.

5. Fundamental Rights may be suspended – According to Article 359 of the

Constitution, while the Proclamation of Emergency is in operation, the President
may by order declare that the right to move any court for enforcement of such of
the Fundamental Rights (except Article 20 and 21) shall remain suspended during
the period when the Proclamation is in force or for such shorter period as may be
specified in the order. Also, Article 358 provides that while a proclamation of
Emergency is in operation nothing in Article 19 shall restrict the power of the State
to make any law or to take any executive action abridging or taking away the rights
guaranteed by Article 19.

6. Fundamental Rights may be restricted or abridged with regard to Armed Forces

– Parliament may, by law, determine as to what extent Fundamental Rights may
be restricted or abridged in their application to Armed forces so as to ensure the
proper discharge of duties and maintenance of discipline among members of the
forces. [Article 34]

7. Amendment of Fundamental Rights – Fundamental Rights may be amended by

the amendment of the Constitution under Article 368 by the Parliament. However,
Parliament cannot negatively amend the basic features of the Constitution.
[Keshavananda Bharati v. State of Kerala, AIR 1974 SC 1461]

Right to Equality

Article 14 embodies the idea of equality expressed in the Preamble. Articles 15, 16, 17
and 18 lay down the specific application of the general rule laid down in Article 14.
The underlying object of Article 14 is to secure to all persons the equality of status and
of opportunity as referred to in the Preamble.

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 Article 14 provides that the State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India. It applies to
citizens and non-citizens and natural as well as legal persons. It incorporates two legal
concepts, viz., “equality before the law” and “equal protection of the laws”.

Equality before the Law

The first expression ‘Equality before the Law’ which is taken from the British
Constitution is a negative concept implying the absence of any special privilege in
favour of individuals and equal subjection of all classes to the ordinary laws. It
declares that everyone is equal before the law and no one can claim special treatment.
It is borrowed from A.V. Dicey’s Rule of Law.

Equal protection of the Laws

The second expression, ‘Equal protection of the Laws’ borrowed from the American
Constitution is a more positive concept. It means subjection to equal law applying to
all persons in the same circumstances. Equal laws should be applied to all in the same
condition. Thus, equals must be treated equally while unequals must be treated
differently, i.e., there can be reasonable classification.

Reasonable Classification

The need for reasonable classification arises out of varying needs of different classes
or sections of people. Article 14 forbids class legislation, but it does not forbid
reasonable classification for the purpose of legislation. In order to pass the test of
permissible classification two conditions must be fulfilled, namely –

1. That the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others who are left
out of the group. ‘Intelligible differentia’ means logical, reasonable and clear
difference of classification.

2. That differentia must have a rational nexus to the object sought to be achieved by
the statute in question. What is necessary is that there must be a nexus between the
basis of classification and the objective of the Act which makes the classification.

Various decisions of Article 14 which have established important principles –

● A single individual may constitute a class for the purposes of Article 14, i.e., a law
may be constitutional even if it applies to a single individual on account of some
special circumstances or reasons applicable to him, that individual may be treated
as a class itself. [Chiranjeet Lal Chowdhary v. Union of India, AIR 1951 SC 41, (also
known as Solapur Spinning & Weaving Co. Case)]

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● Article 14 requires the observance of the principle of natural justice, including the
requirement of reasoned decisions. [Maneka Gandhi v. Union of India, AIR 1978 SC
597]

● The classification of films into ‘U’ and ‘A’ categories is a reasonable classification
under Article 14. [K.A. Abbas v. Union of India, AIR 1971 SC 481]

● The termination of service on pregnancy was held to be unreasonable and arbitrary

and therefore violative of Article 14 of the Constitution. [Air India v. Nargesh Mirza,
AIR 1981 SC 1829]

● Section 303 of the Indian Penal Code, 1860, was struck down as unconstitutional
on the ground that the classification between persons who commit murders whilst
under sentence of life imprisonment and those who commit murders whilst they
were not under the sentence of life imprisonment for the purpose of making death
sentence mandatory in the case of former class and optional in the latter class was
not based on any rational principle. [Mithu v. State of Punjab, AIR 1983 SC 473]

● Prohibiting employment of women in restaurants and bars for serving liquors was
held to be violative of gender equality and therefore ultra vires of Article 14 of the
Constitution. [Anuj Garg v. Hotel Association of India, AIR 2008 SC 663]

● Transgender persons (Hijras) who are neither male nor female fall within the
expression ‘person’. They are entitled to legal protection of laws in all spheres of
state activity. [National Legal Services Authority (NALSA) v. Union of India, AIR 2014
SC 1863]

● Exception 2 to Section 375 of the Indian Penal Code creates an unnecessary and
artificial distinction between a married girl child and an unmarried girl child. It is
violative of Article 14, 15 and 21 of the Constitution and hence the age of wife shall
be construed as 18 years instead of 15 years. [Independent Thought v. Union of India,
(2017) 10 SCC 800]

● The Muslim practice of instantaneous Triple Talaq (talaq-e-biddat), or unilateral

divorce was held to be unconstitutional as violative of Article 14 of the
Constitution. [Shayara Bano v. Union of India, (2017) 9 SCC 1]

● The offence of Adultery under Section 497 of the Indian Penal Code, 1860 was
struck down as unconstitutional being violative of Article 14, 19 and 21. [Joseph
Shine v. Union of India, 2018 SCC OnLine SC 1676]

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● Excluding women from access to the shrine at Sabarimala Temple was held to be
a clear violation of their right to equality under Article 14. [Indian Young Lawyers
Association v. State of Kerala, 2018 SCC OnLine SC 1690]

Discrimination of prohibition on grounds of race, religion, caste, sex, place of birth.

Article 15 of the Constitution is a particular application of the equality principle laid

down in Article 14 and provides for prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth. The prohibition is against the state but not
against private persons. Article 15 secures the right against discrimination, only to
citizens and the non-citizens cannot invoke the provisions of this Article. The word
‘discrimination’ means ‘to make an adverse distinction’ or ‘to distinguish unfavorably
from others’. If a law makes discrimination on any of these grounds, it can be declared
invalid. Article 15 provides that –

1. Discrimination on the grounds of religion, race, etc. – The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex, place
of birth or any of them.

2. Religious or racial disabilities – No citizen shall, on grounds only of religion, race,

caste, sex, place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to –

i. Access to shops, public restaurants, hotels and places of public entertainment;

or

ii. The use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public.

3. Special provisions for women and children – Nothing in this article shall prevent
the State from making any special provision for women and children.

4. Special provisions for socially and educationally backward classes, etc. –

Nothing in this Article or in Article 29 (2) shall prevent the State from making any
special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

5. Special provisions for socially and educationally backward classes, etc. in

educational institutions – Nothing in this Article or Article 19 (1) (g) shall prevent
the State from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes
or the Scheduled Tribes in so far as such special provisions relate to their admission

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 to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions
referred to in Article 30 (1).

6. Special provisions for economically weaker sections – Nothing in this Article or

Article 19 (1) (g) or Article 29 (2) shall prevent the State from making –

i. Any special provision for the advancement of any economically weaker

sections of citizens other than the classes mentioned in clauses (4) and (5); and

ii. Any special provision for the advancement of any economically weaker
sections of citizens other than the classes mentioned in clauses (4) and (5) in so
far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred
to in Article 30 (1), which in the case of reservation would be in addition to the
existing reservations and subject to a maximum of 10% of the total seats in each
category.

Here, “economically weaker sections” shall be such as may be notified by the State
from time to time on the basis of family income and other indicators of economic
disadvantage. [Explanation]

Article 15 (6) was inserted by the Constitution (103rd Amendment) Act, 2018.
(w.e.f. 14-01-2019)

Equality of opportunity in matters of public employment

Article 16 is an extension of the equality principle of Article 14 in matters of

appointment and employment of citizens of any post under the State. It lays down –

1. Equality of Opportunity – Article 16 (1) guarantees equality of opportunity for all

citizens in matters relating to employment or appointment to any office under the
State.

2. No discrimination in employment – Article 16 (2) states that no citizen shall, on

grounds only of religion, race, caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in respect of, any employment
or office under the State.

3. Residence – Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to an
office under the Government of, or any local or other authority within, a State or

BY SURBHI WADHWA 6
 Union territory, any requirement as to residence within that State or Union
territory prior to such employment or appointment.

4. Reservation in favour of Backward Classes – The State has the power to make
provisions for the reservation of appointments or posts in favour of any backward
class of citizens which, in the opinion of the State, is not adequately represented in
the services under the State.

4A. Reservation in matters of promotion – The State has the power to make
provisions for reservation in matters of promotion, with consequential seniority,
to any class or classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which are not adequately represented
in the services under the State.

4B. Reservation of unfilled vacancies – The State may consider any unfilled vacancies
of a year which are reserved for being filled up in that year in accordance with any
provision for reservation made under clause (4) or (4A) as a separate class of
vacancies to be filled up in any succeeding year or years.

5. Religious Institution – Offices connected with religious or denominational

institutions, may, however be reserved for members professing any particular
religion or belonging to a particular denomination.

6. Reservations in favour of Economically Weaker Sections – The State has power

to make provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned in clause
(4), in addition to the existing reservation and subject to a maximum of 10% of the
posts in each category. [Inserted by the Constitution (103rd Amendment) Act, 2018]

Abolition of Untouchability

Article 17 of the Constitution enacts two declarations –

1. Untouchability is abolished and its practice in any form is forbidden.

2. The enforcement of any disability arising out of untouchability shall be an offence

punishable in accordance with law.

Abolition of Titles

Article 18 of the Constitution provides for Abolition of Titles. It lays down as follows
–

1. No title, not being a military or academic distinction, shall be conferred by the

State.

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2. No citizen of India shall accept any title from any foreign State.

3. No person who is not a citizen of India shall, while he holds any office of profit or
trust under the State, accept without the consent of the President any title from any
foreign State.

4. No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind from
or under any foreign State.

Right to Freedom

The word ‘freedom’ means absence from control. Article 19 (1) guarantees to the
citizens of India the following six fundamental freedoms–

(a) Freedom of Speech and Expression

(b) Freedom of Assembly

(c) Freedom to form Associations

(d) Freedom of Movement

(e) Freedom to Reside and to Settle

(f) (Repealed)

(g) Freedom of Profession, Occupation, Trade or Business.

(a) Freedom of Speech and Expression [Article 19(1)(a) and 19(2)] – Article 19(1)(a)
says that all citizens shall have the right to freedom of speech and expression, but
this right is subject to limitations imposed under Article 19(2) which empowers the
state to put ‘reasonable restrictions’ on the following grounds, viz., security of the
state, friendly relations with foreign states, public order, decency and morality,
contempt of court, defamation, incitement to offence and integrity and sovereignty
of India.

The freedom of speech and expression means the right to express and
propagate one’s ideas, convictions and opinions freely by words of mouth, writing,
printing, pictures, any visible representation such as gestures and includes
information through electronic and print media.

Freedom of expression has four broad special purposes to serve –

i. It helps an individual to attain self-fulfillment.

ii. It assists in the discovery of truth.

iii. It strengthens the capacity of an individual in participating in decision-making.

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 iv. It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.

(b) Freedom of Assembly [Article 19(1)(b) and 19(3)] – Article 19(1)(b) secures to all
citizens of India the right to assemble peaceably and without arms. There is a right
to hold public meetings and demonstrations and take out processions peacefully.
The assembly must be non-violent and must not cause any breach of public peace.
Under Article 19(3), reasonable restrictions can be imposed on the right by the State
by law in the interests of the sovereignty and integrity of India or public order.

(c) Freedom to form Association [Article 19(1)(c) and 19(4)] – Article 19(1)(c)
guarantees to all citizens the right to form associations and unions pursuing lawful
purposes. It includes the right to start an association and to continue it. An
‘association’ means a collection of persons who have joined together for a certain
object, which may be for the benefit of the members or the welfare or advantage of
the public. The associations so formed would include political parties, societies,
clubs, companies, organizations, partnership firms, trade unions, etc. Under
Article 19(4), however, reasonable restrictions can be imposed by the state in the
interests of the sovereignty and integrity of India or public order or morality.

(d) Freedom of Movement [Article 19(1)(d) and 19(5)] - Article 19(1)(d) guarantees to
all citizens of India the right to move freely throughout the territory of India. This
right is, however, subject to reasonable restrictions mentioned under Article 19(5),
i.e., in the interest of the general public or for the protection of the interest of any
Scheduled Tribe.

(e) Freedom of Residence [Article 19(1)(e) and 19(5)] – According to Article 19(1)(e)
every citizen has the right to reside and settle in any part of the territory of India.
The object of the clause is to remove internal barriers within India or any of its
parts. However, under Article 19(5), reasonable restrictions may be imposed, in
the interest of the general public or for the protection of the interest of any
Scheduled Tribe.

(f) Right to acquire, hold and dispose of property [Article 19(1)(f)] – It was abolished
by the Constitution (44th Amendment) Act, 1978, however, Article 300A was
inserted which provides that a person can be deprived of his property only by a
law made by the legislature.

(g) Freedom of Profession, Occupation, Trade or Business [Article 19(1)(g) and

19(6)] – Article 19(1)(g) guarantees that all citizens shall have the right to practice
any profession, or to carry on any occupation, trade or business. It covers all

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 avenues and methods by which a person earns his livelihood. However, such right
is subject to reasonable restrictions under Article 19(6), viz.,

i. In the interest of the public.

ii. Prescribing professional or technical qualifications necessary for practicing any

profession or carrying any occupation, trade or business.

iii. Enabling the state to carry on any trade or business to the exclusion of citizens
wholly or partially.

Article 19(1)(g) uses four expressions, viz., profession, occupation, trade and
business, to make the right comprehensive and wide. ‘Profession’ means an
occupation carried on by a person by virtue of his personal and personalized
qualifications, training or skill. The word ‘occupation’ has a wide meaning such as
any regular work, profession, job, principal activity, employment, business, or a
calling in which an individual is engaged. ‘Trade’ includes any bargain or sale, any
occupation or business carried on for subsistence or profit, etc. ‘Business’ is a very
wide term and would include anything which occupies the time, attention and
labour of a man for the purpose of profit.

Grounds of Restrictions on Freedom

The term ‘reasonable restrictions’ means that the restrictions imposed on a person in the
enjoyment of his right should not be arbitrary or of an excessive nature, beyond what
is required in the interests of the public. The word ‘reasonable’ implies intelligent care
and deliberation which reason dictates. The grounds on which restrictions on freedom
of speech and expression can be imposed are –

1. Sovereignty and Integrity of India – The right to freedom of speech and

expression can be restricted so as not to permit any one to challenge the integrity
and sovereignty of India. This ground was added to clause (2) of Article 19 by the
Constitution (16th Amendment) Act, 1963.

2. Security of the State – It refers to serious and aggravated forms of public disorder
like rebellion or waging war against the State, insurrection and not ordinary
breaches of public order and public safety, like unlawful assembly, riot, affray, etc.
Thus, speech or expression on the part of an individual which incite to or
encourage the commission of violent crimes, such as murder, are matters which
would undermine the security of the State.

3. Friendly relations with Foreign States – This ground was added by the
Constitution (1stAmendment) Act, 1951. The object behind the provision is to

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 prohibit unrestrained malicious propaganda against a foreign friendly State which
may jeopardize the maintenance of good relations between India and that State.

4. Public Order – This ground was added by the Constitution (1stAmendment) Act,
1951. ‘Public Order’ is something more than ordinary maintenance of law and
order. ‘Public Order’ is synonymous with public peace, safety and tranquility. The
test for determining whether an act affects law and order or public order is to see
whether the act leads to the disturbances of the current of life of the community so
as to amount to a disturbance of the public order. Thus, anything that disturbs
public tranquility or public peace disturbs public order.

5. Decency and Morality – Sections 292 to 294 of the Indian Penal Code, 1860,
provide instances of restrictions on the freedom of speech and expression in the
interest of decency and morality. These sections prohibit the sale or distribution or
exhibition of obscene words, etc. in public places.

6. Contempt of Court – ‘Contempt of Court’ may be either ‘civil contempt’ or

‘criminal contempt’. ‘Civil contempt’ means willful disobedience to any judgment,
decree, direction, order, writ or other process of a court or willful breach of an
undertaking given to a court. ‘Criminal contempt’ means the publication, whether
by words spoken or written, or by signs or by visible representations or otherwise,
or any matter or the doing of any other act whatsoever, which –

i. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of

any court,

ii. Prejudices or interferes or tends to interfere with the due course of any judicial
proceedings,

iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner.

7. Defamation – A statement which injures a man’s reputation amounts to

defamation. It means exposing a man to hatred, contempt or ridicule. Sections 499
and 500 of the Indian Penal Code, 1860 contain the provisions relating to
defamation. These sections are constitutional as they impose reasonable
restrictions on the freedom of speech and expression.

8. Incitement to an Offence – The right to freedom of speech and expression does

not give permission to citizens to incite a person to commit an offence. The freedom
will be curtailed on this ground and incitement to an offence is made punishable
by law.

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Protection in respect of conviction for an offence

Article 20 of the Constitution of India provides for the protection in respect of

conviction for offences. It provides three basic guarantees as follows –

1. Protection from ex post facto laws [Article 20(1)]

2. Protection from Double Jeopardy [Article 20(2)]

3. Protection against Self-incrimination [Article 20(3)]

1. Protection from ex post facto laws – Article 20(1) of the Constitution provides that
–

i. A person shall not be convicted of any offence except for violation of a law in
force at the time of the commission of the act charged as an offence. However,
it does not prohibit the imposition of civil liabilities. Thus, a tax can be
imposed from a past date. It means that if an act is not an offence at the date
of its commission, it cannot be made an offence at any date subsequent to its
commission. Thus, the legislature is prohibited to make criminal laws having
retrospective effect.

ii. A person shall not be subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of the commission of the
offence. Thus, law cannot aggravate the crime. Article 20(2) imposes a
prohibition against retrospective penal laws.

Therefore, an ex-post facto law is a law which is enacted subsequent to the

commission of some act or omission.

2. Protection from Double Jeopardy – Article 20(2) of the Constitution states that
“No person shall be prosecuted and punished for the same offence more than
once.”

The object is to avoid the harassment, which must be caused to a person for
successive criminal proceedings where only one crime has been committed by him.
The constitutional protection against double jeopardy is available to the citizens
and non-citizens of India. In order to bring the case of a person within the
prohibition of Article 20(2), it is necessary that –

i. The person must be accused of an offence.

ii. The prosecution or proceeding must have taken place before the Court.

iii. The person must have been prosecuted and punished in the previous
proceeding.

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 iv. The punishment was for the same offence for which he is being prosecuted
again.

3. Protection against Self-incrimination – Article 20(3) of the Constitution states that

“No person accused of any offence shall be compelled to be a witness against himself.”

The protection of Article 20(3) gives protection against ‘testimonial

compulsion’. No accused shall be compelled to make confessions which might lead
to his conviction. The accused is presumed to be innocent till his guilt is proved
and it is the duty of the prosecution to establish his guilt.

Right to Life and Personal Liberty

Article 21 of the Constitution provides for protection of life and personal liberty. It
states that no person shall be deprived of his life or personal liberty except according
to procedure established by law. It is available to citizens as well as non-citizens. It is
the most organic and progressive provision of our Constitution. The object of the
fundamental right under Article 21 is to prevent encroachment upon personal liberty
and deprivation of life except according to procedure established by law.

Implied Fundamental Rights under Article 21

Right to Live with Human Dignity

● Right to live is not restricted to mere animal existence. It means something more
than just physical survival and includes the right to live with human dignity.
[Francis Coralie v. Union Territory of Delhi, AIR 1982 SC 1473]

● Human dignity is a clear value of our Constitution not to be bartered away for
mere apprehension entertained by jail officials. The use of third-degree methods
by police was held to be violative of Article 21. [Kishore Singh v. State of Rajasthan,
AIR 1981 SC 625]

● Non-payment of minimum wages to the workers was a denial of their right to live
with basic human dignity and violative of Article 21 of the Constitution. [People’s
Union for Democratic Rights v. Union of India, AIR 1982 SC 1473]

● Right to live with human dignity enshrined in Article 21 derives life breath from
Directive Principles of state policy, clauses (e) and (f) of Article 39, 41 and 42.
[Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802]

● The state is bound to protect the life and liberty of every human being whether he
is a citizen or a non-citizen. [National Human Rights Commission v. State of Arunachal
Pradesh, (1996) 1 SCC 742, (also known as Chakmas Migrants Case)]

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● People with disabilities have the right to live with dignity. [Jeeja Ghosh v. Union of
India, AIR 2016 SC 2393]

● Self-determination of gender is a part of personal liberty guaranteed under Article

21. [National Legal Services Authority (NALSA) v. Union of India, AIR 2014 SC 1863]

● The offence of Adultery under Section 497 of the Indian Penal Code, 1860 was
struck down as unconstitutional being violative of Article 14, 19 and 21. [Joseph
Shine v. Union of India, 2018 SCC OnLine SC 1676]

● The Supreme Court decriminalized part of Section 377 of the Indian Penal Code
that banned unnatural sex between adults, being violative of the right to live with
dignity enshrined under Article 21. [Navtej Singh Johar v. Union of India, AIR 2018
SC 4321]

Right to Livelihood

● Although the right to livelihood is included in Article 21, it is not an absolute right
and can be subjected to reasonable restrictions in the interest of the general public.
Thus, the pavement dwellers had no right to encroach upon public streets and
roads which caused inconvenience to the public. [Olga Tellis v. Bombay Municipal
Corporation, AIR 1986 SC 180 (also known as Pavement Dwellers Case)]

Right to Food

● The fundamental right to life enshrined under Article 21 of the Constitution may
be interpreted to include right to live with human dignity, which may include the
right to food and other basic necessities. The directions were issued to all the states
to implement the ‘one nation, one ration card’ scheme and to run community
kitchens for migrants. [Re Problems and Miseries of Migrant Labourers, (2020) 7 SCC
181]

Right to Shelter

● The right to shelter is a fundamental right under Article 21 of the Constitution and
therefore, it is the duty of the state to provide housing facilities to Dalits and
Scheduled Tribes, to enable them to come into the mainstream of national life.
[Chameli Singh v. State of U.P., (1996) 2 SCC 549]

Right to Clean Environment

● The company manufacturing hazardous and lethal chemicals and gases posing
danger to health and life of workmen and people living in its neighborhood were
directed to take all necessary safety measures before re-opening the plant. [M.C.

BY SURBHI WADHWA 14
 Mehta v. Union of India, AIR 1987 SC 1086 (also known as Shriram Food and Fertilizer
Case)]

● Ban on smoking in public places like hospitals, health institutes, public offices,
public transports including railways, court buildings, educational institutions,
libraries and auditoriums. [Murli S. Deora v. Union of India, AIR 2002 SC 40]

● Polluter pays principle, i.e., the responsibility of repairing damages is that of the
offending industry, was propounded. [Indian Council for Enviro-Legal Action v.
Union of India, (1996) SCC 212]

● Every person has the right to live with a noise free atmosphere under Article 21
which cannot be defeated by exercise of right under Article 19(1)(a). [Re Noise
Pollution, AIR 2005 SC 3136]

Right to Health and Medical Assistance

● It is the professional duty of all doctors, whether working in government or private

hospitals, to extend medical aid to the injured immediately to save their life
without waiting for legal formalities to be complied with the police under Code of
Criminal Procedure. [Parmanand Katara v. Union of India, AIR 1989 SC 2039]

● The denial of medical aid by government hospitals to an injured person on the

ground of non-availability of beds amounted to violation of right to life under
Article 21 of the Constitution. [Paschim Bang Khet Mazdoor Samiti v. State of W. B.,
(1996) 4 SCC 37]

Right against Sexual Harassment

● Every individual has the duty to protect the dignity and self-esteem of working
women. Supreme Court has laid down detailed guidelines for preventing sexual
harassment of working women in places of their work until a legislation is enacted
for the purpose. [Vishakha v. State of Rajasthan, AIR 1997 SC 3011]

Right to Marriage

● It was open to the hospital or the doctor concerned to reveal information about the
‘AIDS status’ of a person to persons related to the girl whom he intended to marry
and she had a right to know about the HIV positive status of the appellant. [Mr.
‘X’ v. Hospital ‘Z’, AIR 2003 SC 664]

● The right to life includes the right to marriage. A major boy or girl undergoing
inter-caste or inter-religious marriage is to be protected from harassment, threats
or acts of violence. Stern action should be taken against people who give threats or
harass or commit violence. [Lata Singh v. State of U.P., AIR 2006 SC 2522]

BY SURBHI WADHWA 15
Right to Sleep

● Right to sleep is a fundamental right as sleep is essential for a human being to

maintain the delicate balance of health necessary for its very existence and
survival. [Ramlila Maidan v. Home Secretary, (2012) 5 SCC 1]

Right to Reputation

● The reputation of an individual is a basic element of Article 21 and criminal

defamation does not have a chilling effect on freedom of speech and expression.
The court upheld the constitutional validity of Sections 499 and 500 of the Indian
Penal Code, 1860. [Subramaniam Swamy v. Union of India, AIR 2016 SC 2728]

Right to make Reproductive Choice

● The personal liberty in Article 21 includes the right to make reproductive choice
(to produce or not to produce). [Suchitra Srivastava v. Chandigarh Administration,
AIR 2010 SC 235]

Right to Travel Abroad

● The right to leave India or travel abroad was part of one’s personal liberty which
could be restricted only by authority of law. [Satwant Singh v. Asst. Passport Officer,
New Delhi, AIR 1967 SC 1836]

● Section 10(3)(c) of Passport Act is not violative of Article 21 as it is implied in the

provisions that the rules of natural justice would be applicable in the exercise of
the power of impounding a passport. [Maneka Gandhi v. Union of India, AIR 1978
SC 597]

Right to Protection against Illegal Arrest

● A person is not liable to arrest merely on the suspicion of complicity (involvement)

in an offence. There must be some reasonable justification in the opinion of the
police officer effecting the arrest that such arrest was necessary. The Supreme
Court has issued guidelines governing arrest of a person during the investigation.
[Joginder Kumar v. State of U.P., (1994) 4 SCC 260]

● Torture, cruel or inhuman behavior is violative of Article 21. The Supreme Court
has laid down detailed guidelines to be followed by the Central and State
Governments’ investigating and security agencies like C.B.I., Director of Revenue
Intelligence, Director of Enforcement, Coastal Guards, C.R.P.F., B.S.F., C.I.S.F.,
R.A.W., C.I.D., etc., in all cases of arrest and detention. [D.K. Basu v. State of West
Bengal, AIR 1997 SC 610]

BY SURBHI WADHWA 16
Right against Solitary Confinement

● Solitary Confinement was held to be violative of Article 21. It was also observed
that undertrials are presumably innocent until convicted and if they are kept with
convicts in jail, it offends the test of fairness under Article 21. [Sunil Batra v. Delhi
Administration, AIR 1980 SC 1579]

Right against Handcuffing

● Handcuffing of undertrials unless there is clear and present danger of escape

offends Article 21. [Prem Shanker v. Delhi Administration, AIR 1980 SC 898]

Right against Custodial Violence

● Compensation was awarded to the mother of the deceased who died in the police
custody due to beating. This right to compensation is based on humanitarian
grounds and any aggrieved person can claim compensation if they have been
harassed by any authority. [Nilabhati Bahera v. State of Orissa, (1993) 2 SCC 746]

Right to Speedy Trial

● Speedy Trial is the essence of Criminal justice. The right to a speedy trial is a
fundamental right implicit in the guarantee of life and personal liberty enshrined
in Article 21 of the Constitution. [Hussainara Khatoon v. Home Secretary, State of
Bihar, AIR 1979 SC 1369]

● The right to speedy trial flowing from Article 21 is available to the accused at all
stages namely the stage of investigation, inquiry, trial, appeal, revision, etc. [A.R.
Antulay v. R.S. Nayak, AIR 1988 SC 1531]

Right to Free Legal Aid

● Right to free legal aid at the cost of the state to an accused who cannot afford legal
services for reasons of poverty, indigence, etc., is a part of fair, just and reasonable
procedure under Article 21 of the Constitution. [M.H. Haskot v. State of Maharashtra,
AIR 1978 SC 1548]

● The right to free legal services is an essential ingredient of reasonable, fair and just
procedure for a person accused of an offence and it is implicit in the guarantee of
Article 21. [Khatri v. State of Bihar, 1981 SCC (1) 627]

Right against Bondage

● Bonded Labour is a form of ‘forced labour’ which is totally abolished under Article
21. [Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802]

BY SURBHI WADHWA 17
● Mere identification and release of bonded labourers is not enough, but it is
important that they must be rehabilitated because without rehabilitation they
would be driven to poverty, helplessness and despair. [Neerja Chaudhari v. State of
M.P., AIR 1984 SC 1099]

Right to Education

Article 21-A has been added by the Constitution (86th Amendment) Act, 2002, in the
Constitution. It states that the state shall provide free and compulsory education to all
children between the age of 6 to 14 years.

For the success of democratic system of government, education is one of the basic
elements. An educated citizen has to choose the representatives who form the
government. Education gives a person human dignity who develops himself as well
as contributes to the development of his country. The Constitution also casts a duty
upon the state under Article 45 as one of the directive principles of state to provide
free and compulsory education to all children until they complete the age of 14 years.

Protections against arrest and detention

Article 21 requires some procedure established by law to deprive a person of his life
or personal liberty. However, the procedure must not only be provided by a valid law,
but it must also be just, fair and reasonable. Article 22 contains some minimum
procedural requirements which must be complied with by such procedure.

Article 22 of the Constitution provides for protection and safeguard if life and
personal liberty is curtailed by arbitrary arrest or detention. If a law contravenes the
conditions or limitations prescribed by Article 22, the law would be a nullity. It is
designed to give protection against the act of executive or order of non-judicial
authorities and applies to a person who has been accused of a crime or of offence of
criminal or quasi-criminal nature or some act prejudicial to the state or public interest.
This right is available to both citizens and non-citizens. Article 22 deals with following
two matters –

1. Persons detained under Ordinary Laws [Article 22(1) to (3)]

2. Persons detained under Preventive Detention Laws [Article 22(4) to (7)]

Persons detained under Ordinary Laws [Article 22(1) to (3)]

Article 22 (1) and (2) guarantees four rights to the persons who are arrested under an
ordinary law, viz.,

a. The right to be informed of the grounds of arrest [Article 22(1)] – Any person
who is arrested should be informed of the grounds for such arrest. If police do not

BY SURBHI WADHWA 18
 inform, arrest becomes illegal / arbitrary. The object is to enable the person arrested
to know as to why and for what offence he has been arrested.

b. The right to consult a lawyer [Article 22(1)] – The right to consult and be defended
by a legal practitioner of his choice is guaranteed with a view to enable the detenue
to prepare for his defence. If he is unable to employ a lawyer, either because he is
poor or illiterate, then it is the duty of the court to employ a lawyer.

c. The right to be produced before the Magistrate [Article 22(2)] – Every person
who is arrested and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of the arrest excluding the time necessary
for the journey from the place of arrest to the court of the Magistrate.

d. The right not to be detained in custody beyond 24 hours [Article 22(2)] – The
arrested person shall not be detained in custody beyond the period of 24 hours
without the authority of a Magistrate. Thus, if there is failure to produce the
arrested person before the nearest Magistrate within 24 hours, it would make the
detention illegal. The purpose is to protect the arrested person from police torture
and to help in speedy investigation.

Exceptions

Article 22 (3) provides two exceptions to the rule contained in clause (1) and (2). It says
that rights under clause (1) and (2) are not available to –

a. An enemy alien, and

b. A person detained under a Preventive Detention law.

Right against Exploitation

Right against exploitation is contained under Articles 23 and 24 of the Constitution.

Exploitation is opposed to the dignity of the individual proclaimed in the Preamble
and to the provisions of Article 39 (e) and (f).

Prohibition of traffic in human beings and forced labour

Article 23 (1) of the Constitution provides that traffic in human beings and beggars
and other similar forms of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.

Article 23 (2) provides that nothing in this article shall prevent the State from
imposing compulsory service for public purposes, and in imposing such service the
State shall not make any discrimination on grounds only of religion, race, caste or class
or any of them.

BY SURBHI WADHWA 19
 ‘Traffic in human beings’ means selling and buying men and women like goods and
include immoral traffic in women and children for immoral or other purposes.
Parliament has enacted the Immoral Traffic (Prevention) act, 1956 in order to suppress
immoral traffic in women and children.

‘Begar’ means involuntary work without payment. It is a labour or service which a

person is forced to give without receiving any remuneration for it.

Traffic in human beings and forced labour militates against human dignity. Article
23 protects the individual not only against the state but also against private citizens.
It imposes a positive obligation on the state to take steps to abolish evils of traffic in
human beings and beggar and other similar forms of forced labour wherever they are
found. The protection of this Article is available to both citizens as well as non-citizens.

In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, it was held that bonded
labour is a form of ‘forced labour’ and is violative of Article 23.

Prohibition of employment of children in factories, etc.

Article 24 provides that a child below the age of 14 years shall not be employed to
work in any factory or mine or engaged in any other hazardous employment.

In M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699, it was held that Children
below the age of 14 years cannot be employed in any hazardous industry, mines or
similar other works. The Supreme Court laid down guidelines for the state authorities
to protect social, economic and humanitarian rights of millions of children working
illegally in private education sectors, and to rehabilitate them by raising funds for their
education from their employers and so on.

Right to Freedom of Religion

‘Secularism’ means that the state shall observe an attitude of neutrality and
impartiality towards all religions. Secular state does not mean an irreligious state, it
only means that in matters of religion, it is neutral, the State can have no religion of its
own, and the state protects all religions but interferes with none. Secularism is neither
ante-God nor pro-God, it treats alike a devout and an atheist. The essence of
secularism lies in ‘Sarva Dharma Sambhava’ meaning equal treatment and respect for
all religions.

The Preamble to the Constitution from its inception proclaimed that its purpose is
to secure to all its citizens ‘liberty of thought, expression, belief, faith and worship’.
This read with Articles 25 to 28 guarantees equality in the matters of faith and religion.

BY SURBHI WADHWA 20
The Constitution (42nd Amendment) Act, 1976, made it more explicit by adding the
word ‘secular’ in the Preamble.

In S.R. Bommai v. Union of India, AIR 1994 SC 1918, Supreme Court held that
Secularism is a basic feature of the Constitution. It was observed that in the Indian
context secularism has a positive content which separates spiritualism with individual
faith. State is neither anti-religion nor pro-religion but in the matter of religion, it is
neutral and treats every religion equally.

In Aruna Roy v. Union of India, (2002) 7 SCC 368, the Supreme Court held that
Secularism means developing, understanding and respect for different religions. The
Supreme Court made it clear that ‘religious instruction’ is different from a
comparative study of religions whereas the former is prohibited and not the latter.

In Santosh Kumar v. Secy., Ministry of Human Resource Development, AIR 1995 SC 293,
it was held that the introduction of Sanskrit language as a subject in the Central Board
of Secondary Education (CBSE) is not against secularism as it is the mother of all
Aryan languages.

Right to freedom of religion is contained under Articles 25 to 28 of the Constitution as

follows –

Freedom of conscience and free profession, practice and propagation of religion

[Article 25]

Article 25 (1) provides that all persons are equally entitled to freedom of conscience
and the right freely to profess, practice and propagate religion. This is, however,
subject to public order, morality and health and to the other provisions of Part III.

‘Conscience’ means to have belief or faith which is needed by an individual for his
spiritual well-being. Every person has the right to develop relations or to have direct
connection with God of his own choice based on his will. The belief should be genuine
and conscientious, there should be an object or reason. Freedom of conscience
connotes a person’s right to entertain beliefs and doctrines concerning matters which
are regarded by him to be conducive to his spiritual well-being.

‘Profess’ means to declare freely and openly one’s faith and belief in religion in such
a way that it is known to others. He has the right to practice his belief by practical
expression in any manner he likes.

‘Practice’ means performing rights, rituals, and certain religious duties prescribed
by religion.

BY SURBHI WADHWA 21
 ‘Propagate’ means to spread, publicize one’s religious ideas, beliefs. It also includes
persuasion but without the use of force or coercion. To propagate means to spread
and publicize his religious views for the edification of others. It is a right to
communicate a person’s beliefs to another person or as to expose the tenets of that
faith. The right to propagate one’s religion does not give a right to convert another
person to one’s own religion, as that would impinge on the freedom of conscience
guaranteed to all persons.

Religion has not been defined in the Constitution and it is not susceptible to a
precise definition. It is a matter of personal faith and belief and comprises various
rituals and observances which are considered as an integral part of that religion by
those who follow it.

The wearing and carrying of kirpans shall be deemed to be included in the

profession of the Sikh religion. [Explanation 1]

The reference to Hindus shall be construed as including a reference to persons

professing the Sikh, Jaina or Buddhist religion. [Explanation II]

In Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare Association, AIR 2000 SC
2773, Supreme Court held that noise pollution in the name of religion is not allowed.
No religion prescribed that the prayers should be performed by disturbing the public
peace of others.

Service of priests is a secular activity and that may be regulated by the state under
Article 25 (2). [Bhuri v. State of Jammu and Kashmir, AIR 1997 SC 1711 (also known as
Vaishno Devi Shrine Case)]

The sacrifice of goats on Bakri–eid is not part of Muslim religious faith and hence
could be prohibited by the state under Article 25(2)(a). [Mohd. Haneef Qureshi v. State
of Bihar, AIR 1958 SC 731]

In Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690, (also
known as Sabarimala Temple Case), Supreme Court lifted the ban on entry of women in
Sabarimala Temple as the practice violated the fundamental rights to equality, liberty
and freedom of religion. It was observed that devotion cannot be subjected to gender
discrimination.

Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right –

(a) To establish and maintain institutions for religious and charitable purposes.

BY SURBHI WADHWA 22
(b) To manage its own affairs in matters of religion.

(c) To own and acquire movable and immovable property.

(d) To administer such property in accordance with law.

Article 26 is corollary to Article 25. Freedom of religion is meaningless if there is

no liberty to maintain and manage religious institutions.

In Ismail Faruqui v. Union of India, (1994) 6 SCC 360, the Supreme Court held that
the right to worship is an essential part of a religion but does not include the right to
worship at any place and every place.

In Azeez Basha v. Union of India, AIR 1968 SC 662, it was held that Aligarh Muslim
University was not established by Muslim minority and it cannot claim the right to
maintain it. It was established under the statute passed by Parliament.

In Commissioner of Police v. Acharya Jagadishwarananda, (2004) 12 SCC 809, the

Supreme Court held that the performance of Tandava dance in public procession by
Ananda Marg is not an essential or integral part of their religion and thus, not a matter
of religion within the meaning of Articles 25 and 26.

Freedom as to payment of taxes for promotion of any particular religion [Article 27]

No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination.

Thus, the object is to protect the secular characteristics of the Constitution which
prohibits the promotion or maintenance of any particular religion by the state or at
state’s expenses. Therefore, if such a tax is imposed, no person can be compelled to
pay it.

Freedom as to attendance at religious instruction or religious worship in certain

educational institutions

Article 28 (1) states that no religious instruction shall be provided in any educational
institution wholly maintained out of State funds.

Article 28 (2) provides that clause (1) does not apply to an educational institution
which is administered by the State but has been established under any endowment or
trust.

Article 28 (3) provides that any educational institution recognized by the State or
receiving aid out of State funds cannot compel any person to take part in any religious

BY SURBHI WADHWA 23
instruction or to attend any religious worship that may be conducted in such
institution without the consent of such person or his guardian, if he is a minor.

In St. Stephen’s College v. University of Delhi, (1992) 1 SCC 522, it was held that grants
could not change the minority character of an institution.

In St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389, the Supreme Court held
that if such a person is minor, consent of his guardian would be required for requiring
him to attend the religious instructions.

Cultural and Educational Rights

Article 29-30 of the Constitution provides for Cultural and Educational Rights.

Protection of interests of minorities

Article 29(1) states that any section of the citizens residing in the territory of India or
any part thereof having a distinct language, script or culture of its own shall have the
right to conserve the same.

The right conferred by Article 29 is quite general and applies to all citizens,
whether they belong to majority or minority groups. Therefore, a school run by a
minority, if it is aided by state funds, cannot refuse admission to boys of other
communities. Also, the state cannot direct such schools to restrict admissions to their
own community.

Article 29(2) provides that no citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them.

Right of minorities to establish and administer educational institutions

Article 30(1) states that all minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions of their choice.

Article 30(1) confers rights on two types of minorities – religious and linguistic.
The choice is left to the minorities to determine the type of institution they would like
to establish. The word ‘establish’ indicates the right to bring into existence, while the
right to administer means the right to effectively manage and conduct the affairs of an
institution. An educational institution which has not been established by a religious
minority cannot claim the right to administer it.

Article 30 (1-A) provides that in making any law providing for the compulsory
acquisition of any property of an educational institution established and administered
by a minority, the State shall ensure that the amount fixed by or determined under

BY SURBHI WADHWA 24
such law for the acquisition of such property is such as would not restrict or abrogate
the right guaranteed under that clause. [Inserted by the Constitution (44th Amendment)
Act, 1978]

Article 30 (2) provides that the State shall not, in granting aid to educational
institutions, discriminate against any educational institution on the ground that it is
under the management of a minority, whether based on religion or language.

The word ‘minority’ is not defined in the Constitution; whether a section of citizens
constitutes a minority must be determined by reference to the entire population of the
State. It refers to any community which is numerically less than 50% of the entire
population of the state.

Right to Constitutional Remedies

A right becomes valuable when there is an effective means to implement it. Articles
32 and 226 of the Constitution have been designed for the enforcement of fundamental
rights and for judicial review of administrative actions in the form of writs. It is a
constitutional remedy available to a person to bring his complaint against any
administrative action to the notice of the court because safeguards of fundamental
rights and assurance of natural justice are the most important components of writ
jurisdiction.

Remedies for enforcement of rights conferred by Part III [Article 32]

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by Part III is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the
rights conferred by this Part.

(3) The Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

Article 32 is the very ‘heart and soul’ of the Constitution. It provides substantive
rights and not merely procedural rights. The jurisdiction conferred on the Supreme
Court by Article 32 is an important part of the basic structure of the Constitution
because it is meaningless to confer fundamental rights without providing an effective

BY SURBHI WADHWA 25
remedy for their enforcement when they are violated. The right to move the Supreme
Court where a fundamental right has been infringed is itself a fundamental right. It is
a constitutional remedy which has been guaranteed by the Constitution. Article 32,
thus, provides an expeditious and inexpensive remedy for the protection of
fundamental rights from legislative and executive interference.

Without Article 32, the fundamental aspect of fundamental right would not have
been assured as the fundamental rights are not ordinary legal rights and the direct
remedy through the Supreme Court elevates their position from that of an ordinary
legal right to one of fundamental Right. What is fundamental about the fundamental
rights is that they are directly enforceable through the Supreme Court. It was not only
about giving a guarantee of the rights through the Constitution rather it was also
about giving a guarantee of direct enforceability of these rights. The importance of
Article 32 lies in the fact that it gives essence and effectiveness to fundamental rights.

Article 32 provides for following writs –

Writ of Habeas Corpus

The meaning of the latin phrase ‘habeas corpus’ is ‘to have the body’. The issuance of
the writ means an order to the detaining authority or person to physically present
before the court, the detained person and show the cause of detention so that the court
can determine its legality or otherwise.

The writ of habeas corpus is a device, requiring examination of the question of illegal
detention with utmost promptitude. It is a great and efficacious writ in all manner of
illegal confinement. The writ has been described as a writ of right which is granted ex
debito justitae. It is a constitutional privilege of the citizen or the first security of civil
liberty.

The objective is to provide a quick and immediate remedy to a person for his
release from an unlawful detention. It aims not at the punishment of wrongdoer but
to resume the release of the detenue. In this writ, the merits of the case or the moral
justification for the imprisonment or detention are irrelevant. Any person whether he
is guilty or not is essential to be set at liberty if his imprisonment is not as per law.

Writ of Mandamus

The term ‘mandamus’ means ‘we command’. The writ of mandamus is a judicial remedy
in the form of an order from Supreme Court or High Courts to any inferior court,
government or any public authority to carry out a public duty entrusted upon them
either by statute or by common law or to refrain from doing a specific act which that
authority is bound to refrain from doing under the law. In other words, it is a

BY SURBHI WADHWA 26
command to act lawfully and to desist from perpetrating an unlawful act. For the grant
of writ of mandamus, there must be a public duty. The superior courts command an
authority to perform a public duty or to non-perform an act which is against a law.

For example, if ‘A’ has a legal right which casts certain legal obligation on ‘B’, ‘A’
can seek a writ of mandamus directing ‘B’ to perform its legal duty.

The object of the writ of mandamus is to prevent disorder from failure of justice and
is required to be granted in all cases where the law has established no specific remedy
and where justice despite demand has not been granted.

Writ of Prohibition

The expression ‘prohibition’ literally means ‘to prohibit’. The writ of prohibition is a
judicial order to a constitutional, statutory or non-statutory body or person if it
exceeds its jurisdiction or it tries to exercise a jurisdiction not vested upon them. It is
a general remedy for the control of judicial, quasi-judicial and administrative
decisions affecting the rights of persons. Thus, the writ is issued in both cases where
there is excess of jurisdiction and where there is absence of jurisdiction.

It commands the court or tribunal to whom it is issued to refrain from doing

something which it is about to do, which is not within its jurisdiction or power. In
India, Prohibition is issued to protect the individual from arbitrary administrative
actions. It is popularly known as stay order. After the issue of this writ, proceedings
in the lower court, etc. come to a stop.

The object of the writ is to compel inferior courts to keep themselves within the
limits of their jurisdiction, i.e., to ensure that the jurisdiction of an inferior court or
tribunal is properly exercised and that it does not usurp the jurisdiction which it does
not possess.

Writ of Quo Warranto

The meaning of the word ‘quo warranto’ is ‘by what authority’. It is a judicial order
against a person who occupies a substantive public office without having any legal
authority, he occupies the position or office. This writ is meant to oust a person who
is not legally qualified for substantive public post. It confirms the right of citizens to
hold public offices. In this writ, the court or the judiciary reviews the action of the
executive with regard to appointments made against statutory provisions, to public
offices.

BY SURBHI WADHWA 27
 It also aims to protect those persons who are deprived of their rights to hold a
public office. Any member of the public can seek the remedy of quo warranto, even if
he is not personally aggrieved or interested in the matter.

Writ of Certiorari

Certiorari means ‘to certify’. The writ of ‘certiorari’ is issued by a Superior Court
(Supreme Court or High Courts) to an inferior court or body exercising judicial or
quasi-judicial functions to remove a suit from such inferior court or body and
adjudicate upon the validity of the proceedings or body exercising judicial or quasi-
judicial functions. Through this writ, the court quashes or declares invalid a decision
taken by the concerned authority.

The main object behind the writ of Certiorari is to prevent the inferior courts from
usurping the jurisdiction.

Doctrine of Pith and Substance

‘Pith’ means the true nature or essence of something and ‘substance’ means the most
important or essential part of something. The doctrine of pith and substance is
relevant in the area of division of power between Centre and State. If a law made with
respect to the matter or subject enumerated in one list encroaches on the matter or
subject enumerated in another list, the doctrine of pith and substance is applied by the
court in order to determine whether the Legislature enacting the law was competent
to enact it. Thus, it has been applied to judge whether any particular enactment is
within the power of the legislative organ or another.

The justification of the doctrine of pith and substance is that in a federal

Constitution, it is not possible to make a clear-cut distinction between the powers of
the Union and the State Legislatures. There is bound to be overlap in all such cases, it
is reasonable to ask what in whole is the object or purpose of the law. A strictly verbal
interpretation would result in a large number of statutes being declared invalid on the
ground of overlapping. If the legislature is to have the full scope to exercise the powers
granted to it, it is necessary to assume that the court does not prevent a legislature
from dealing with a matter which may incidentally affect any matter in the other list.

The doctrine flows from the words ‘with respect to’ in Article 246. It requires that in
such a case of encroachment, the law should be read as a whole and not as a collection
of sections or clauses, for determining the true nature and character of the law, i.e., the
pith and substance of the law. If after such an enquiry, it is found that the pith and
substance of the law, pertains to the matter within the competence of the legislature
making the law, then the law would be constitutional even though it incidentally

BY SURBHI WADHWA 28
trenches on matters not within the competence of the Legislature. In order to ascertain
the true character of the legislation, one must have regard to the enactment as a whole,
to its object and to the scope and effect of its provisions.

The doctrine was applied by the Privy Council in Profulla Kumar Mukherjee v. Bank
of Commerce, Khulna, AIR 1947 PC 60. It was held that after ascertaining the true
character of the law, the court must point out in which of the three lists an Act of that
nature truly falls. The Privy Council applied the doctrine of pith and substance and
held that the Act was, in pith and substance, a law in respect of money lending and
money-lenders – a State subject, and was valid, even though it incidentally trenched
on promissory notes, a Central subject.

In State of Bombay v. F.N. Balsara, AIR 1951 SC 318, Supreme Court applied the
doctrine of pith and substance and held that, in order to ensure the smooth
functioning of the administrative structure of the country, incidental encroachment
must be overlooked.

Doctrine of Severability or Separability

When a part of the statute is declared unconstitutional then a question arises whether
the whole of the statute is to be declared void or only that part which is
unconstitutional should be declared as such. To resolve this problem, the Supreme
Court has devised the doctrine of severability or separability.

It is not the whole Act which would be held invalid by being inconsistent with Part
III of the Constitution but only such provision of it which are violative of the
Fundamental Rights, provided that the part which violates the fundamental rights is
separable from that which does not isolate them. But if the valid portion is so closely
mixed up with the invalid portion that it cannot be separated without leaving an
incomplete or more or less mingled remainder, the court will declare the entire Act
void. This is known as the Doctrine of Severability or Separability.

Article 13 uses the words “to the extent of such inconsistency be void" which
means that when some provision of the law is held to be unconstitutional then only
the repugnant provisions of the law in question shall be treated by courts as void and
not the whole statute.

In A.K. Gopalan v. State of Madras, AIR 1950 SC 27, Supreme Court while declaring
Section 14 of the Preventive Detention Act, 1950 as ultra vires, observed, “The
impugned Act minus this Section can remain unaffected. The omission of the Section
will not change the nature or the structure of the subject of the legislation. Therefore,

BY SURBHI WADHWA 29
the decision that Section 14 is ultra vires does not affect the validity of the rest of the
Act.

In Romesh Thapar v. State of Madras, AIR 1950 SC 124, Supreme Court observed that
“Where a law purports to authorize the imposition of restrictions on a Fundamental
Right in language wide enough to cover restrictions, both within and without the
limits provided by the Constitution and where it is not possible to separate the two,
the whole law is to be struck down. So long as the possibility of its being applied for
purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be
wholly void.”

In State of Bombay v. F.N. Balsara, AIR 1951 SC 318, it was observed that the
provisions which have been declared as void do not affect the entire statute, therefore,
there is no necessity for declaring the statute as invalid. The Primary test is whether
what remains is so inextricably mixed with the part declared invalid that what
remains cannot survive independently.

In R.M.D.C. v. Union of India, AIR 1957 SC 628, it was held that Section 2(d) of the
Prize Competition Act, which was broad enough to include competitions of a
gambling nature as well as competitions involving skill, was involved. Supreme Court
held that the provisions of the Act were severable and struck down those provisions
which were related to competition not involving skill.

In Kihota Hollohan v. Zachilhu, AIR 1993 SC 412, it was held that a composite
amendment (containing amendments in provisions requiring ratification by states as
well as provisions not requiring such ratification) is covered by the rule of severability.
It was also held that Section 10 of the Tenth Schedule minus para 7 remains valid and
constitutional. Para 7 which has been declared unconstitutional is severable from the
main provision of Tenth Schedule. The remaining provisions of the Schedule stand
independent of para 7 and are complete in themselves and workable.

Fundamental Duties

Part IV A (Article 51A) of the Constitution provides for Fundamental Duties. It was
added by the Constitution (42nd Amendment) Act, [Link] idea of fundamental
duties was derived from the USSR.

The fundamental duties have been incorporated in the Constitution with the mere
object to remind every citizen that while enforcing his fundamental rights, he must
also be conscious of his fundamental duties towards their country, society and fellow
citizens. That, he cannot enforce his fundamental rights without adhering to the

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fundamental duties prescribed in Article 51-A. These duties have been added to
implement the recommendations of the Swaran Singh Committee reported in 1976.

It shall be the duty of every citizen of India –

(a) To abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem.

(b) To cherish and follow the noble ideals which inspired our national struggle for
freedom.

(c) To uphold and protect the sovereignty, unity and integrity of India.

(d) To defend the country and render national service when called upon to do so.

(e) To promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women.

(f) To value and preserve the rich heritage of our composite culture.

(g) To protect and improve the natural environment including forests, lakes, rivers
and wildlife, and to have compassion for living creatures.

(h) To develop the scientific temper, humanism and the spirit of inquiry and reform.

(i) To safeguard public property and to abjure violence.

(j) To strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavor and achievement.

(k) Who is a parent or guardian to provide opportunities for education to his child or,
as the case may be, ward between the age of 6 and 14 years. [Added by the
Constitution (86thAmendment) Act, 2002]

The fundamental duties (code of conduct) are intended to serve as a constant

reminder to every citizen that while the Constitution specifically confers on them
certain fundamental rights, it also requires citizens to observe certain basic norms of
democratic conduct and behavior.

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